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Agenda - 11/26/2001 AGENDA WOODBlJRNCITYCOUNCIL NOVEMBER 242001 - 7:{)() P.M 270 Montgvmcry Street * * Woodhurn, Oregon 1. CALL TO ORDER AND FLAG SALUTE 2. ROLL CALL 3. ANNOUNCEMENTS AND APPOINTMENTS Announcements: A. Downtown Christmas Tree Lighting - December 8, 2001 at 6:30 p.m. in Warzynski Plaza. B. Spanish Story time at Woodburn Public Library: Every Saturday in December at 11:30 a.m. C. Tuesday Nights at the Library - 6:00 -7:00 p.m. every Tuesday in December. D. Dance, Dance, Dance - Winter Recital, December 8, 2001 from 1:00 pm to 3:00 pm at Woodburn High School Lectorium. Free Admission. Appointments: E. Planning Commission Position 2 - appointment of Larry Grosjacques to fIll an unexpired term ending December 31,2004 .................. 3E F. Recreation and Park Board Position IV - appointment of Rosetta Wangerin to an unexpired term ending December 31,2003 ............ 3F 4. PRESENTATIONSIPROCLAMATIONS 5. COMMITTEE REPORTS A. Chamber of Commerce. B. Woodburn Downtown Association. 6. COMMUNICATIONS - None 7. BUSINESS FROM THE PUBLIC (This allows the public to introduce items for Council consideration not already scheduled on the agenda.) 8. CONSENT AGENDA - Items listed on the consent agenda are considered routine and may be enacted by one motion. Any item may be removed for discussion at the request of a Council member. A. Woodburn City Council minutes of November 13, 2001 ............... 8A Recommended action: Approve the Woodburn City Council minutes November 13,2001. Page 1 - Agenda, Woodburn City Council- November 26,2001. B. Woodburn Planning Commission minutes of October 25, 2001 ......... 8B Recommended action: Accept the Woodburn Planning Commission minutes of October 25, 2001. ~ C. Library Board minutes of November 14, 2001 ....................... 8C Recommended action: Accept the Library Board minutes of November 14,2001. D. Woodburn Public Library Monthly Report for September 2001 ........ 8D Recommended action: Receive the report. E. Woodburn Public Library's receipt of Merit Award from Marion County Historical Society ........................................ 8E Recommended action: Receive ihe report. F. Woodburn Livability Task Force minutes of September 18, 2001 ....... 8F Recommended action: Accept the Livability Task Force minutes of September 18,2001. G. Woodburn Human Rights Commission minutes of November 1,2001 ... 8G Recommended action: Accept the Human Rights Commission minutes of November 1,2001. H. Report concerning Michael Culver v. City of Woodburn .............. 8H Recommended action: Receive the report. I. Report concerning Bank of New York v. Scheratski and City of Woodburn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Recommended action: Receive the report. 9. TABLED BUSINESS 10. GENERAL BUSINESS A. Council Bill No. - Ordinance vacating a portion of an existing sanitary sewer easement and two utility easements -:;. . . . . . . . . . . . . . .. lOA Recommended action: Adopt the ordinance. B. Council Bill No. - Ordinance amending Ordinance No. 2299 in order to enable the transfer and assignment of a cable television franchise from North Willamette Telecom, Inc. (Direct Link) to Willamette Broadband, LLC ......................................................... lOB Recommended action: Adopt the ordinance. C. Council Bill No. - Resolution authorizing amended intergovernmental agreement with the League of Oregon Cities ....... 10C Recommended action: Adopt the resolution D. Request for sound amplification permit for Woodburn Downtown Christmas Tree Lighting Ceremony on Saturday, December 8, 2001 (rom 6:30 pm to 8:30 pm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. tOn Page 2 - Agenda, Woodburn City Council- November 26,2001. Recommended action: Approve a sound amplification permit for the Woodburn Downtown Christmas Tree Lighting Ceremony on Saturday, December 8, 2001 from 6:30 pm to 8:30 pm. 11. PUBLIC HEARINGS A. Community Development Block Grant Application ................. llA Recommended action: Conduct public hearing, receive public comment and instruct staff to prepare an ordinance reflecting Council's decision. B. Cable Television Franchise .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. lIB Recommended action: Conduct public hearing, receive public comment and instruct staff to prepare an ordinance reflecting Council's decision. 12. PUBLIC COMMENT 13. NEW BUSINESS 14. PLANNING COMMISSION ACTIONS - These are Planning Commission actions that may be called up by the City Council. A. Adoption of Final Order approving Site Plan Review 01-01, Variance 01-12 and Lot Line Adjustment 01-07, requesting the expansion of the existing Wal-Mart store with an additional 102,082 square feet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14A B. Acceptance of Planning Director's approval of Partition 01-03, a request to divide the Tukwila tennis courts and swimming pool properties in the Tukwila Planned Unit Development located south of the OGA clubhouse .......................................... 14B C. Acceptance of Planning Director's approval of Partition 01-06, a request to divide property located at 888 Brown Street into two parcels 14C 15. CITY ADMINISTRATOR'S REPORT A. Status Report on the Hardcastle Street Railroad Crossing (R. Rohman). 16. MAYOR AND COUNCIL REPORTS 17. EXECUTIVE SESSION A. To consult with counsel concerning the legal rights and duties of a public body with regard to current litigation or litigation likely to be filed pursuant to ORS 192.660 (l)(h). B. To consider records that are exempt by law from public inspection pursuant to ORS 192.660 (1)(t). 18. ADJOURNMENT Page 3 - Agenda, Woodburn City Council- November 26,2001. WOODBURN ~ 3E-F ORE G 0 N Incorporated 1889 November 21,2001 TO: City Councilors From: Office of the Mayor Appointments The following appointments are made, subject to the approval of the Council. Please forward any adverse comments to me prior to Council Meeting Monday Novemer 26, 2001. No reply is required if you approve of my decisions. Planning Commission Larry Grosjacques - Larry will be replacing Carl Miller who resigned due to health problem in his family. Larry's term will end 31 December 2004. Larry has been active in our community for many years. He has worked on the July 4th Celebration for several years. He is very active in the Woodburn FF A Alumni as well as other service organizations in Woodburn. Recreation and Parks Board Rosetta Wangerin - Rosetta will be replacing Janet Greenwell who has moved to Keizer. Rosetta's term will end 31 December 2003. She has been a Woodburn resident for over 33 years and comes highly recommended by Councilor Sifuentez. From her resume it is obvious that she has b~en an active member of our community including working the Boy Scouts of America, Campfire Girls, Church youth gro.ups, and both state and national Hispanic groups. I have spoken with both of the above individuals and am convinced that they will both represent our community in a responsible and positive manner. Office of the Mayor 270 Montgomery Strut. Woodburn, Oregon 97071 Ph.503-982-5228 . Fax 503-982-5243 1 ~ 8A COUNCIL MEETING MINUTES November 13,2001 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, NOVEMBER 13, 2001. CONVENED. The meeting convened at 7:00 p.m. with Mayor Jennings presiding. 0018 ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Jennings Bjelland Chadwick Figley McCallwn Nichols Sifuentez Present Present Present Present Present Present Present Staff Present: City Administrator Brown, City Attorney Shields, Public Works Director Tiwari, Community Development Director Mulder, Police Chief Null, Finance Director Gillespie, Public Works Manager Rohman, Park & Recreation Director Westrick, City Recorder Tennant 0043 Mayor Jennings stated that he will include an item under New Business for Council action relating to emergency repair work to be performed on an eroding bank along the Pudding River. He also stated that he will be reversing the order of the public hearings and the hearing on the Vacation of Public Easements in conjunction with the Wal-Mart expansion (agenda item lOB) will be held prior to the hearing on the Review ofthe-Plann.ing Commission's decision on Site Plan Review Modification No. 01-10. . 0099 ANNOUNCEMENTS. A) Closure of City Offices - Thanksgiving Holiday: In observance of Thanksgiving Day, the City Hall offices, Library, and Aquatic Center will be closed on Thursday, November 2200. The Library and Aquatic Center will re-open on Friday, November 23rd. B) Public Hearing: The City Council will hold a public hearing on NQ.yember 26, 2001, 7:00 p.m., City Hall Council Chambers, regarding a Cable TV franchise agreement with Direct Linle C) Public Hearing: A public hearing on a proposed Community Development Block Grant will be held before the City Council on November 26,2001, 7:00 pm., in the City Hall Council Chambers. Page 1 - Council Meeting Minutes, November 13, 2001 - 8A COUNCIL MEETING MINUTES November 13, 2001 TAPE READING 0131 PRESENTATION: HUMAN RIGHTS AWARD. Doyne Deos, Human Rights Commission member, stated that the Commission presents Human Rights A ward to citizens who have worked to bridge the diversity and culture within our community. This award was presented to Elida Sifuentez, City Councilor, who has served on the Council since 1985, and has been a member of numerous boards and commissions including the US Commission on Civil Rights, Woodburn School District Strategic Planning Committee, St. Luke's Parish Council, Oregon Youth Authority, Hispanic Advisory Council, Love Santa Project, and other state and local committees. Ms. Sifuentez works at MacLaren Youth Correction Facility as their Volunteer Coordinator and as a Nurse. Councilor Sifuentez expressed her appreciation to the Commission for the award. 0320 CHAMBER OF COMMERCE REPORT. City Administrator Brown stated that the following Chamber events are scheduled: 1) Business After Hours - Thursday, November 15th, 4:30 pm to 6:00 pm, at Tukwila Center for Health & Medicine, 693 Glatt Circle. 2) Chamber Forum lunch will be held on November 21 st with the guest speaker being Police Chief Paul Null who will be presenting a program on "Protecting Your Business from Modem Threats". The location for the forum is the Woodburn Crossing Conference Center, Rose Room, beginning at 12:00 noon. 0411 WOODBURN SCHOOL DISTRICT REPORT. A representative from the School District informed the public that the District teachers and principals will be participating in McTeacher's Night at McDonalds, 2910 Newberg Hwy., on November 15th from 4:30 pm to 7:30 pm. A portion ofthe sales will be donated to the Schools to benefit education and the public is encouraged to attend this fundraiser. 0520 LETTER FROM MARION COUNTY BOARD OF COMMISSIONERS. City Administrator Brown read the letter requesting public input on organizational issues such as a change from a general law County to a home rule County. The next hearing date for obtaining public input is scheduled for Monday, November 19,2001,5:30 p.m., at the Senator Hearing Room at the County's Courthouse Square. Informational packets can be obtained through the Council Commissioner's office. Councilor Figley stated that she did check out the website and found the it to be very interesting. Additionally, interested persons can respond on-line to the Commissioners. 0664 CONSENT AGENDA. A) Approve the regular Council minutes of October 22,2001 and the workshop minutes of October 15, 200 I; B) Accept the Planning Commission minutes of October 11, 2001; Page 2 - Council Meeting Minutes, November 13,2001 8A -- COUNCIL MEETING MINUTES November 13,2001 TAPE READING C) Accept the Community Center Planning Committee minutes of October 25, 2001; D) Approve claims for the month of October 2001; E) Report update on arsenic limit for drinking water; F) Police Department Activity Report for August and September 2001; G) Building Activity Report for October 2001; and H) Report on Rainier Road traffic analysis and planned action. FIGLEYINICHOLS... adopt the consent agenda as presented. The motion passed unanimously. 0691 PUBLIC HEARING: VACATION OF PUBLIC EASEMENTS IN CONJUNCTION WITH THE WAL-MART EXPANSION. Mayor Jennings stated that Exhibit A, B, and C maps show "Lawson Street" but the street name should be "Harvard". He has brought this to the attention of Public Works and the maps will be corrected when the final ordinance is drafted for Council consideration. Mayor Jennings declared the public hearing open at 7:16 p.m.. Public Works Director Tiwari stated that the public easement is proposed to be vacated and the applicable infrastructure lines relocated to City requirements. There are three easements affected by this vacation process: 1) Hayes Street utility easement; 2) a sanitary sewer force main , and 3) a water main. The sanitary sewer force main and the water main will be relocated and the size of the line will be increased at the expense of the developer (Wal-Mart). He stated staff has met the requirements established by state law and he reiterated that, if the vacation is approved, new easements will be provided by the property owner to replace the existing easements. He reviewed the staff recommendation, along with the conditions of approval, as outlined in the staff report. 1268 Scott Franklin, representing Wal-Mart Stores (petitioner), stated:that they have worked closely with City staff on the relocation of the infrastructure and agree with the findings of the staff report including the conditions of approval. He also provided a visual aid of the location of the easements in relationship to the store site. No one in the audience spoke either for or against the proposed vacation of public easements and no written comments were received. Mayor Jennings closed the public hearing at 7:26 p.m. FIGLEYINICHOLS... instruct staff to prepare an ordinance vacatingJhe two utility easements and a portion of the sanitary sewer easement subject to the conditions outlined in Randy Scott's memo dated October 31, 2001. Councilor Bjelland questioned if the enlargement of the lines at the developer's expense is included in the report. Director Tiwari stated that the increase size of the lines are included in the City's approved plans which have been agreed to by the petitioner. On roll call vote, the motion passed unanimously. Page 3 - Council Meeting Minutes, November 13,2001 ~ 8.A COUNCIL MEETING MINUTES November 13, 2001 TAPE READING 1452 PUBLIC HEARING: REVIEW OF PLANNING COMMISSION DECISION ON SITE PLAN REVIEW MODIFICATION NO. 01-10 (Woodburn Company Stores). Mayor Jennings declared the public hearing open at 7:28 p.m. The Mayor declared an ex-parte contact prior to the filing of the appeal. Since then, he has taken 5 of the 6 Councilors to view the site to better acquaint them with the issue before them. He stated that he has worked on this issue over the last 30 days trying to get the public hearing established and requesting the Council to bring it up for a public hearing. Other than that, he has not tried to convince Councilors to vote one way or the other nor would he attempt to do so. Councilor Figley stated that she was taken on a site visit to see what was going on and being talked about as far as the road specifically. Councilor McCallum also declared that he had visited the site, discussed it with the Mayor, and discussed it with City staff. Councilors Nichols, Sifuentez, and Chadwick also declared that they had visited the site with the Mayor. City Attorney Shields stated that this is also the time for anyone to challenge anyone's right to participate or rebut anything that has been put into the record. Since there were no challenges stated for the record, Recorder Tennant read the land use statement required by ORS Chapter 197. 1950 Mayor Jennings stated that the intent for re-opening this hearing is to discuss the ruling by the Planning Commission which denied the applicant's request to be relieved of building of the road on Arney Lane. Community Development Director Mulder stated that the Council had called this item for review and as such, it has been noticed as a de novo public hearing which will allow new evidence and testimony to be presented by any party. The Planning Commission considered a request by Craig Realty Group to amend two conditions of approval for Phases II and III of Woodburn Company Stores which were previously imposed on Site Plan Review #00-18. The applicant has proposed the following modifications to the . approved site plan #00-18: 1) eliminate the westerly driveway and fire department turnaround; 2) construction of road consisting ofa 44-foot wide travel surface with curb, gutter, sidewalk and planting strip on each side of Arney Lane between Arney Road on the east and the west end of the easterly driveway on Arney Lane; 3) dedicate 60 feet of right-of-way to accomplish the modified improvements; 4) widen the easterly driveway to 36 feet to provide for truck access to and from the Woodburn Company Stores since the original plan had a driveway at a different location; 5) dedicate the necessary public easements in favor of the City; and 6) no right-of-way be dedicated for Arney Lane west of the west end of the easterly driveway nor to make any public improvements beyond the easterly driveway. At the October 11 th meeting, the Planning Commission adopted a final order amending Page 4 - Council Meeting Minutes, November 13,2001 - 8A COUNCIL MEETING MINUTES November 13, 2001 TAPE READING the conditions of approval that would approve all of the applicant's requests except for the proposal to not dedicate right-of-way nor make any public improvements beyond the easterly driveway. The Planning Commission determined that the right-of-way dedication and improvements were to be made which were voluntarily proposed by the applicant, and approved by the Planning Commission, under Site Plan #00-18. It was noted that Site Plan #00-18 requires dedication of land and improvement of Arney Lane from existing Arney Road westerly to the west boundary of the subject property. The Planning Commission's decision also allowed for the deferral of dedication and improvement of Arney Lane to occupancy of Phase III which the applicant, at the hearing, stated that it would be several years into the future. Subsequent to the Council's calling this action up for hearing, staff has had discussions regarding potential defense of the Planning Commission's decision if it were to be challenged. It is the consensus of staff that the City would have a strong case to uphold the Planning Commission decision based on the argument that the applicant waived its right to challenge the conditions of approval on the original decision when it did not appeal that decision. The staff report in the Council packet also goes into some analysis of potential legal issues and provides the Council with some alternatives that could be considered. The Council has the following options in regard to this hearing: 1) concur with the Planning Commission's final order amending certain conditions of approval in Site Plan Review 00-18; 2) amend the conditions of approval in a different manner; or 3) choose not to amend the conditions of approval in Site Plan Review #00-18. 2458 Mayor Jennings questioned if the property to the north and west of the subject property is outside of the city limits and outside of the Urban Growth Boundary (UGB). Director Mulder confirmed that the area identified by the Mayods outside the city limits and however, as part of the UGB, the property to the west is within the UGB but the property to the north is outside the UGB. Councilor Figley questioned how Phases II and III would be served by delivery trucks. Director Mulder stated that delivery trucks for Phases II and III would enter from Arney Lane, go through the drive aisle to the back of the building. Councilor Bjelland questioned if the extension of Arney Lane is intended to serve the property to the west of the subject property that is within the UGH. - Director Mulder stated that the extension would provide a second pubITc access to the property west of the subject property which is designated as high density residential. The Mayor stated that, off of Woodland A venue, there is also a dedicated area that is outside of the UGB and, ifin fact the 2 parcels outside of the city limits but within the UGB want to develop, it will not benefit Woodburn Company Stores. According to the Transportation System Plan, the only way Company Stores would benefit is if the road would go east all of the way across to Woodland Avenue. Page 5 - Council Meeting Minutes, November 13,2001 - 8A COUNCIL MEETING MINUTES November 13, 2001 TAPE READING Councilor Bjelland stated that the parcels do require access and Arney Lane would be an access point. Director Mulder stated that Sprague Lane does provide an access to one parcel while the second access, which would required under the City code for anything over 10 apartment units, would be Arney Lane. Additionally, the Transportation System Plan (TSP) shows that Arney Lane will extend westerly but the Transit System plan part of the TSP actually shows a connection all of the way across to Woodland Avenue. 2751 City Attorney Shields distributed a memo that he had prepared earlier today regarding the legal parameters of this land use application. He stated that the memo was prepared for the purpose of outlining procedural issues that the Council needed to be reminded of with this particular application. The property is building permit eligible, however, Craig Realty has submitted an application to modify two conditions. This application looks at two specific conditions of approval. The Planning Commission concluded that, as a legal matter, the applicant has waived its legal opportunity to object to a condition that was previously imposed. This waiver issue can be litigated in Oregon and there would be a legal argument to be made on that if this case is appealed to the Land Use Board of Appeals (LUBA). Options available to the Council are: 1) Do not modify the Original Conditions in Site Plan Review 00-18; 2) Modify the original conditions as decided by the Planning Commission in Site Plan Review 01-10; 3) Modify the original conditions to require the applicant to propose a dedication and sign a non-remonstrance agreement. This option was discussed by staff after the Commission had made their decision for the purpose of providing a resolution to this issue. This modification would not require the improvement at the this ti~but there would be a potential requirement for the applicant to participate in an improvement district if there is a later Local Improvement District (LID) and the issue of dedication for future planning would be taken care.; and 4) Eliminate the requirements of the original conditions and Craig Realty would have no requirement to dedicate and improve old Arney Road. As a matter of procedure, the waiver argument will need to be addressed in options 1, 2 & 3. The Council has the option continuing the hearing and directing Planning and Engineering staff to supplement the record to better document the facts-concerning the waiver issue and why the dedication and/or improvement is justified. City Attorney Shields also stated that this is a new hearing since, under the City's procedure, in a de novo hearing the Council has the authority to look at that application even though the Planning Commission has held a hearing and made a decision. He reiterated that this is a brand new application and a brand new hearing on a very limited application which is to modify two conditions on a pre-existing approval. Page 6 - Council Meeting Minutes, November 13,2001 8A ~ COUNCIL MEETING MINUTES November 13,2001 TAPE READING 3575 Steve Craig, managing partner of Craig Realty Group LLC, stated that the map he had on display was prepared to demonstrate what improvements have been made as a result of Phase I approval. He stated that all property owners contiguous and abutting Woodburn Company Stores have access including the Stampley property. He stated that the agreement he had reached with Mr. Stampley, whose property is within the Urban Growth Boundary but outside of the current city limits, required his company to put a rock base down and, in some future time when"Mr. Stampley would elect to sell or develop his property, Mr. Stampley would build the roadway up to the existing paved surface of what is known as Arney Lane. It was also noted that Mr. Stampley has access to Woodland A venue. In regards to parking, there is adequate parking on-site to take care of the needs of Woodburn Company Stores and it is his understanding that it exceeds the code requirements regarding parking per 1,000 square feet. He stated that all of the parking area included in Phases II and III is installed and he reviewed the traffic flow for truck deliveries. To enter the parking lot, they have found that 80% of the motorists turn at the first entrance at the south end of the parking lot, however, they hope to get more of the motorists to use either the second or third access once the next phases are built. The store management has tried to get motorist to use Arney Road north to exit, however, motorists tend to use major arterials located south of the development. In regards to Arney Lane, the issue he remembers being voluntary about the roadway was the parking along the side of the road. The roadway was included from staff meetings with his engineering group and the City engineering staff's decision to create a package of roads around it. He came in after this and said that if the road had to be built then he wanted to have parking along the roadway which isn't allowed on Arney Rd in front of the mall. He disagreed with the supposition made by property owner Marty Rohrer in his letter dated October 31, 2001 regarding direct route and value. He does not feel that there is 3-Ileed that is being created by Woodburn Company Stores nor that the mall is generating that need. Other concerns brought up by Mr. Rohrer include the employee parking area and potential tie-up of traffic trying to exit to the north of the development. He stated that they have minimal problems to date with the accesses to the north since most motorists use the most southerly access. In the future, if the property owners on the north side of the mall property elect to build commercial, high density housing, or housing tracts, the City Council may want to look at the demand being created by those uses and then consider a traffic signal for Arney Lane since they believe most of the traffic generated would be for those uses rather than the outlet mall. Mr. Craig also took exception toa comment made in the letter that infers that Craig Realty bargained public approvals in exchange for the Arney Lane roadway. He expressed his opinion that some property owners have seen the success of the mall and they now have aspirations to change their property to another use thereby building off of the infrastructure that was built by his company. He shared with the Council some of the projects that his company did in conjunction with mitigating the impacts determined by the City and State along with the costs associated with these Page 7 - Council Meeting Minutes, November 13,2001 SA ~ COUNCIL MEETING MINUTES November 13, 2001 TAPE READING projects. Even though the project has been successful to the general public, it has not been an economic success and, ifhe would have to do it all over again, he would approach it completely differently. It was his intent to provide the Council with factual information on costs pertaining to this project which far exceeded original projections. He assured the Council that his company has extremely good financial statements that are updated monthly. As his company began to move forward with Phase II, and bids were received for the project, they were unable to build this particular condition which is the extension of Arney Lane. They cannot do it economically and they do not feel that they should do it. They believe that they have very little use of that roadway and, for the most part, it is a private driveway for some of the neighbors. If, and when, one of the property owners has a significant development, that would be the time in which the roadway needs to be improved. That new development would create a need which would then trigger the need for improvements. He stated that he is willing to work with the City by entering into an agreement that would dedicate the necessary right-of-way at no cost at the time an LID is formed provided that they would not be contributing anymore than the land they are giving, which is approximately 1 acre, and the plans which have already been completed which is approximately $50,000 - $60,000 in engineering costs. In exchange, they would ask that the time period for their Site Plan approval be extended and run parallel in conjunction with the LID with period oftime not to exceed 10 years. He expressed his opinion that his proposal is a fair resolution to this situation and that it is fair in regards to traffic generation. Additionally, should the property owners wish to develop their property, they will have quality access provided that they significantly participate in those costs. Mayor Jennings questioned Mr. Craig as to why he would want to wait to dedicate the right-of-way ifit will need to be done in the future anyway since-he would not be paying taxes on dedicated right-of-way. Mr. Craig stated that his concern is that the roadway might not be built and the result is having property that is not maintained once it is dedicated without having to obtain right of entry permits. If an agreement is negotiated, he feels that language could be included that would require them to maintain the property. 6368 Mike Robinson, attorney representing Craig Realty Group, spoke on the legal issues involved in this application. In reference to Figure 29 of the Transporation System Plan (TSP), it shows a connection from Arney Rd by Arney Lane back to the west. In Figure 32 in the Transit Plan, it shows this same area. In his opinion the TSP is not revelant to the Council's decision since the TSP is a part of the City's Comprehensive Plan and not incorporated into the City's zoning ordinance. He stated that Figure 29 shows that Arney Lane is a potential local street connection and there is no definitive requirements in the TSP that the connection be built nor does it show how it is going to be developed to the west. Page 8 - Council Meeting Minutes, November 13,2001 8A ~ COUNCIL MEETING MINUTES November 13, 2001 TAPE READING Tape 2 0008 Attorney Robinson stated that TSP Section 9.2.3 lists required street upgrades and Arney Lane is not on the list, and even though it may be a potential street, it is not shown as an upgrade. Another point he made is that in Figure 32 of the TSP Transit Plan, it shows as a dash line with a notation that it is an optional bus routing in future as area develops. In regards to the elimination of the westerly driveway on Arney Lane, the applicant will be enhancing the paving back through the parking lot so that emergency vehicles and trucks can use it without having the paving break up. He reviewed comments that he made at the Planning Commission which included his statement that 1) Arney Lane is not needed to serve nor does it benefit Woodburn Company Stores and 2) with the change in the economy, this is not a cost that Woodburn Company Stores should have to bear at this time. He reviewed the following 5 reasons for which the City should approve the application: 1) there is no code requirement that requires either the dedication or the improvement; 2) there is no need for the improvement to the west since the properties currently have accesses in place; 3) the road is not needed to serve anything that is going on in Woodburn Company Stores; 4) all of the traffic studies have shown that access is more than sufficient from Arney Road and it has reduced the impact on Arney Lane; and 5) the proposed condition of approval will still leave Craig Realty Group in a position to where they will have to give up property and make an improvement at some point in the future that has no connection to the impact of the store. He stated that he had distributed copies of his November 13th letter to the Council and, made the point that, assuming all of properties get developed and come into the City, there is no reason why they cannot build the road. He suggested that they could negotiate with Woodburn Company Stores to acquire the right-of-way just like Woodburn Company Stores negotiated with Mr. Sprague and Mr. Stampley. For the record, Attorney Robinson asked that the entire Planning Department file which is before the Council be part of the record for this hearing since LUBA has ruled that the entire file is before the governing body. He disagreed with the City's position that the applicant had waived the Dolan issues by not raising the road extension in the 2001 hearing. He stated that a new application has been made and, under Oregon law, they are entitled to raise new issues. In all fairness, he expressed his opinion that there is no evidence that shows that the road is needed for Woodburn Company Stores and he stated that Mr. Craig has worked with the City and State in making public improvements. Craig Realty Group should not have to bear the expenses for this road improvement. He asked that the Council affirm the Planning Commission's decision in general but remove the condition of approval that they have recommended that the right-of-way be dedicated and the road be constructed west of the east driveway. Lastly, it is his understanding the City Page 9 - Council Meeting Minutes, November 13,2001 SA -- COUNCIL MEETING MINUTES November 13, 2001 TAPE READING Attorney is asking that the public hearing be continued to the next meeting. He stated that he has a problem with that potential request in that if the hearing is continued until November 26th, the staff report is due November 20th which is one day before businesses are closed for Thanksgiving and he will not see the report until November 26th. He feels that if there is evidence that would substantiate this improvement, it should have been presented before this hearing date. Even though the Council can continue the hearing, he requested that the Council vote on this issue tonight. If the hearing is continued, he requested that it be continued to another date after November 26th which would give them time to respond to the staff report. 0602 Mayor Jennings stated that the intent has been to look at potential relief to Woodburn Company Stores for having to build this road at this time but that the applicant would join in an LID at such time as the UGB is changed and the road is required. The issue is now becoming adversarial and it may be best that the hearing is continued. His initial reaction was that this would be a simple issue in which an agreement could be reached regarding the road improvement and right-of-way dedication. Attorney Robinson stated that they had offered to come down to meet with the staff just prior to this meeting to try and resolve this issue. Mayor Jennings stated that he was under the impression that Attorney Robinson was going to recommend that this issue be appealed to LUBA in the event they are not able to get the Council to agree to their terms, therefore, it would be in the City's best interest to continue the hearing for the purpose of preparing a staff report. Attorney Robinson stated that, at the night of the Planning Commission meeting, no one had told him that the City Attorney's office was going to inform the Commission that the applicant had waived appeal rights (Dolan case). Therefore, it is plausible that both sides are now feeling adversarial. He reiterated that they offered to come down at 6:00 pm this evening to meet with staff but there was not a desire on the part of staff to meet at that time. Of the 4 options the staff has recommended, the only one he thinks is legally defensible is the one that does not require the original conditions. On the other hand, the applicant has indicated that he is willing to do something other than the 4 options listed in the City Attorney's memo dated November 13, 2001. If the hearing is continued, he suggested that the Council direct staff to sit down with the applicant to try and resolve this issue. So far, only staff reports and opinions have been forwarded to his office and their has been no real attempt to meet with the applicant to resolve thiS issue. Mr. Craig stated that he had been in town last week at the mall and he had no intention of meeting with the Mayor but he happened to be there and they did have a discussion which has been declared at the beginning of this hearing. At that time, he had told the Mayor that Attorney Robinson had not received any return calls from the City staff with respect to this matter and, at that time, he had expressed to the Mayor what he was willing to do to resolve the issue. He suggested that staff members may not have been pleased with his challenging this particular point and he feels that they may have resentment towards him. Page 10 - Council Meeting Minutes, November 13,2001 8A ~ COUNCIL MEETING MINUTES November 13,2001 TAPE READING He suggested that staff looks at having developers pay full cost for improvements whereas he feels that improvement costs should be paid for by those generating a demand for the improvement. In this case, he does not feel that Woodburn Company Stores is generating a demand for the road improvement west of the easterly driveway on Arney Lane. He feels strongly that they should not be responsible for the improvement and he is willing to stand by his position and the question is whether all parties want to take it to the next step or try and resolve the-issue. He stated that maybe he should have been more aggressive in regards to originally going after this condition and having it removed, and, after having difficulty with every property owner to the north abutting Arney Lane since none of the property owners would sign a right-of-entry permit so that the work could be done, they began questioning why the improvement should be done in the first place. Upon receipt of the final estimates of cost, it was decided to pursue a modification of the conditions relating to the roadway improvement. He expressed his hope that this issue can be resolved without going any further. Discussion was held regarding time limits in which this issue needs to be acted upon by the Council. Attorney Shields stated that this land use application is subject to the 120-day rule, however, the applicant could provide a waiver which would give the City more time to make a decision on this issue. Attorney Robinson stated that Mr. Craig is not willing to give a waiver. 1221 Marty Rohrer, owner ofa farm abutting Arney Lane, stated that he hoped that the City would complete the process on the UGB study and his property would eventually be included within the UGB. He expressed his opinion that time lines are difficult on the UGB process and he would not like to see the Council place a time frame on when the road would need to be built even though right-of-way dedication is involved at this time. His preference is to have the road built at this time, however, if this is not the case, he would agree to the applicant's newest proposal with no time frame. He stated that the property owners have had to give up a direct access to the freeway when the mall was constructed. He agreed that there was nothing in writing about how Arney Lane was going to be improved, however, there were some general discussions where the developer promised that the abutting property owners would be happy with the improvements and they would be back in a position as good as what it was before. A comment was made by the applicant that Woodburn Company Stores does not need an improved roadway west of the easterly access. This is because they have designed it so that they do not need the roadway, however, if they had an access at the west end of the property, he suggested that employees would use that access. Under the current proposal, the employees will have to drive through the parking lot from the west parking area and will need to enter/exit from the one driveway on Arney Lane. There will also be future exit problems at Arney Lane when more motorists use the Arney Lane/Arney Road intersection. If the road is put Page 11 - Council Meeting Minutes, November 13,2001 8A - COUNCIL MEETING MINUTES November 13, 2001 TAPE READING in, he assumed that Woodburn Company Stores would be approaching the City for an application to allow an exit on the west end of their property. Lastly, he stated that he had spoken to Mr. King from SDC Deacon regarding the right-of-entry permit and he did not object to signing a permit, if it had been forwarded to him, so that work could be done on his property. Mayor Jennings did not feel that employees would use Crosby Road as a alternate exit due to the amount of additional time it takes to get back into town. He also questioned Mr. Rohrer if he felt it was fair for all benefitted property owners to pay their fair share of improvement costs. Mr. Rohrer agreed that fair share is applicable, however, he feels that there is a reason for getting this issue decided at this time because he does not want to see future arguments on this issue. 1821 Attorney Robinson expressed his feeling that staff has not had any problems with the design of Arney Lane/Arney Road and how the traffic will flow. If Arney Lane is extended, he feels that more traffic will be generated past the single family homes on Arney Lane. Mr. Craig stated that during Phase I planning, Marion County had submitted a design speed limit requirement of 30 MPH for this interchange area. The design speed then required a complete re-design of the Arney Lane/Arney Road intersection and it will now be a 90 degree connection. The new property owner near the Arney Lane intersection is uncooperative in terms of the exchange of a certain portion of property in order to make the required improvement. Frank King, SDC Deacon, stated that he had approached the property owners to let them know what is going on and to obtain a permit-of-entry. He stated that, other than Mr. Stampley, no one gave him a permit-of-entry to do grade level and similar types of work. He did contact Mr. Rohrer as a common courtesy, however, Mr. -Rohrer did not have any work that needed to be done on his property that would require a permit-of-entry. Mr. Craig stated that the permit-of-entry was, more specifically, for driveway approaches. Many of the property owners want a driveway approach that was in excess of what they currently have. In regards to the Stampley property, they had a pre-existing agreement which related to the 42-inch wide drain lines, roadway, and providing an easement in exchange for the wetlands mitigation. He stated that he has made his offer and, after tonight, the offer will be that they give no property, will not participat<?jn an LID, and will probably aggressively object to UGB additions to the City. He apologized for the way this is turning out, however, he was willing to come back later this evening after other city business is conducted in hopes to get this matter resolved. Councilor McCallum questioned the amount of time left within the 120-day period. Attorney Shields stated that the 120 days expire on December 26, 2001. Councilor Figley stated that, based on the City Attorney's comments, staffhas some Page 12 - Council Meeting Minutes, November 13,2001 SA - COUNCIL MEETING MINUTES November 13, 2001 TAPE READING issues that they need to communicate to the Council before the hearing is closed and a decision is made. She did not want to put the City at a disadvantage nor did she want to be unfair to the developer since they have made some points that have a great deal of merit. Even though this may not be a win-win situation, she feels that there are some issues that need to be addressed as a matter of fairness. She questioned the impact on staff to complete a report if the hearing is continued to either the next meeting or the first meeting in December. Administrator Brown stated that continuing the hearing to the next meeting does not give the applicant much time to complete his analysis of the staff report. The staff would do their best to get a staff report out earlier. The report that is before the Council at this time went out a week ago and the City just heard back on it this morning. He suggested that the first meeting in December would be a better date for the continued hearing. This would then require staff to prepare a couple of different sets of findings and ordinances ready for the first meeting so that the Council would be prepared to adopt an ordinance based on their decision at that meeting. It would also insure that findings were adopted before December 26th. A special session could be called after the December lOth meeting. He stated that there were some issues raised during this hearing that he wished to respond to and requested that he be given some time to make some comments before the hearing is closed. 2629 Mayor Jennings expressed his opinion that the road should not be built if it is not going to be used by the applicant. If the property owners to the west were to develop, they would be responsible for the improvements since it benefits there property. The road that has been looked at is outside of the UGB, therefore, that road would require County permission in order to construct it. He reiterated that he did not feel that developers need to build a road that goes nowhere and he concurred with Mr. Cmig that it is a driveway at this time. He would like to see a resolution to this issue such as the road does not need to be built but there is a need for the dedication and a non-remonstrance agreement for a future LID. This does not take away the right of Woodburn Company Stores to argue about the formula or computation if that should occur. He stated that for what he thought was not very complicated issue has now turned into something very convoluted. Councilor McCallum stated that he felt that the Planning Commission did a good job in looking at the economics and at the fact that Woodburn Company Stores has been an excellent neighbor and addition to our community. He thought the sta!!had prepared some good options for the Council to look at. However, he is extremely disappointed whenever someone comes to the table with issues that need to be resolved just prior to the meeting. He stated that it is best to try and resolve issues before additional measures are taken. Staff has always been willing to work with people even though they are not going to sell the store. There is a need to resolve issues and he feels that there is an opportunity available for both parties. If one party says that this is it and a decision has to be made tonight, then he stated that he knew what his decision would be on this issue. Page 13 - Council Meeting Minutes, November 13,2001 SA ~ COUNCIL MEETING MINUTES November 13,2001 TAPE READING Councilor Nichols agreed with Councilor McCallum's comments. He stated that the Council needs to be very careful about not tying the hands of future Councilors. He felt that the Council could finalize this issue by the middle of December rather than doing it at this meeting. Councilor Sifuentez stated that she had come into the meeting thinking it would be a very simple issue that could be taken care of at this meeting, however, it has now become an issue that needs more consideration. This would include working with City administration in order to do what is best for the City. Councilor Bjelland stated that he had several questions before he made a decision on this issue. He expressed his concern when he hears comments that say a resolution will be brought to the Council whereas he feels that the Council's decision is the resolution and it is not something that can be decided prior to the Council meeting and consideration at the public hearing. He suggested that a joint recommendation would be acceptable but a resolution is the Council's responsibility. He is also concerned about establishing a precedent from the standpoint of approvals that access needs to be made to abutting properties so that it does not inhibit development of adjoining properties. He sees the extension of a road as a necessary transportation element for the City to address the needs of the property to the west which is within the UGB and zoned for high density family. Development of this property would require more than a lane or driveway in order to achieve a site plan approval from their standpoint. The question is then what is the obligation of a property owner to provide that access to adjoining properties when an approval of a site plan has been conditioned upon a set of agreements and understandings. He did not feel that is was fair to come back to the Council to change those conditions unless there was strong evidence that it is justified. Therefore, he would want further evidence to exactly show what the City's requirements are in dealing with this type of property development and the applicant's obligation to provide access to adjoining properties. He was also curious on the status of the Phase II and III site plan review in as much as can Woodburn Company Stores build those phases without resolution of this issue. He reiterated that this is a significant decision since it will have potential ramifications on other issues of properties that come before the City and not just dealing with this particular issue. Councilor Figley stated that on the merits of the request, she feels that the applicant had addressed her concern regarding the construction of Arney Lane suffici~nt to deal with the delivery and emergency service issues for the site. The Council needs to be very careful about what is requested of the applicant since the additional roadway is not needed at this time. However, two issues in the public policy arena and a responsibility of the Council are as follows: 1) an adjoining property who has satisfactory access for the current use of his property but will not have satisfactory access in the event the property is developed at a greater density; and 2) the City has experienced past problems on poor planning, lack of connectivity, and other issues and the Council would be remiss if it is Page 14 - Council Meeting Minutes, November 13, 200 1 SA ~ COUNCIL MEETING MINUTES November 13,2001 TAPE READING allowed to happen only because the Council agrees that the applicant should not have to build all of this road. She stated that the Council needs to consider that there may be future development in the area and those benefitting from future.development should pay the majority of costs. She also stated that private party agreements, some of which have been required in the past, are not always in the best interest of the City and other parties. She felt that any decision made should be made based on public policy to be applied even-handily to all of the applicants. She expressed her opinion that Mr. Craig should not have to build the whole road, however, there should be a dedication of property and some written assurance that he will not object to a future LID. Her primary concerns are the access issue, the way in which the transportation plan fits into the .overall scheme, and giving staff sufficient time to bring forth additional information on the waiver issue. Mayor stated that, when the TSP was being developed, the plan showed the road as "potential" since the area was outside of the UGB. He did not feel that there would be connectivity to Woodland Avenue since there would be a multitude of residents objecting to the increased traffic level on Woodland Avenue. 3899 Attorney Robinson requested that the Council take a IO-minute break so that he could discuss an issue with his client now that he has had the benefit of hearing the Council's comments. Mayor Jennings called for a break at 9:33 pm and reconvened the meeting at 9:43 pm. 3927 Attorney Robinson expressed his appreciation for being giving the opportunity to address the Council on comments made during Council discussion. He stated that he has never suggested that he could make decisions for the Council. When he said "resolve the matter", he meant to say to discuss with staffand come up with-ajoint recommendation and he respects their position. Another point he wanted to bring up is that Mr. Craig has placed onto the record what he is willing to do and it is his feeling that they are not as far apart as the Council might seem. He reiterated that the applicant is willing to dedicate the land and willing to do the waiver of remonstrance as long as everyone understands that the value of the dedication (approximately I acre ofland) and the value of the improvement drawings constitutes Woodburn Company Stores obligation under the LID. He stated that Woodburn Company Stores does not want to be in a position to spend more money to build another facility. If they have an opportunity to talk to staffbefore the continued hearing date, staff may then be able to bring back a recommendation to the Council that they would be able to agree with. They would like the opportunity to meet with staff on this issue. The last point he made was that he represented Wal-Mart and there were last minute issues with the road improvements. They were able to talk with City staff and resolve those issues so that they were able to present to the Planning Commission a recommended condition of approval that staff and the applicant had agreed on. It is his hoped that they will be able to do something similar in this case. In regards Page 15 - Council Meeting Minutes, November 13,2001 SA ~ COUNCIL MEETING MINUTES November 13,2001 TAPE READING to a waiver of remonstrance, he stated that he had told staff last week that Mr. Craig would not agree to the waiver but, since then, Mr. Craig has stated that he would agree to it if it is done in his way. He reiterated that they want a resolution to this issue and it is not their desire to file an appeal to LUBA. To date, they have not had to file an appeal on anything that the City has done which is a record that more cities should have. Overall, all parties are close but the piece that is outstanding relates to future road improvement if abutting property is developed. They do not know what the LID would look like and, by signing a non-remonstrance agreement, the applicant has no control over future costs. He stated that he felt strongly about trying to resolve the issues so that there is not an appeal. If this can be done, he felt everyone's time can be better used over the next 2 or 3 weeks to accomplish this. If the hearing is continued, he would appreciate the continuance to December 10th in order to give him time to respond to the staff report. Mayor Jennings requested clarification on the meaning of a non-remonstrance agreement. Attorney Robinson stated that a property owner signing a waiver of remonstrance is essentially saying that the owner has agreed, for purposes of counting property that goes into the LID, that the owner is a yes vote on the LID. The owner can still go to the Council when the LID is established to express an opinion on the improvement requirements or on the methodology of assessing costs. Steve Craig stated that his past history with the reimbursement district issue has had a significant economic impact on his company. They are currently in litigation over one property owner, another property owner has only paid a portion of the assessed costs, and a third property owner has decided to pull all of his permits and will not be participating. His company has been left to pay for the majority of costs from the mall to Woodland Avenue which is a cost they should not have had to incur and, for the record, if it ever came back up again and they had the right to change it, he wo~ have objected vigorously and the shopping center would not have been built had the condition been imposed on his company. This is why there are such hard feelings at this meeting since damage has been severely done to his company over this and there is mistrust as to what the Public Works Dept. will come up with as far as a proportionate amount of cost that their property would be encumbered with and, if he was to sign the waiver tonight, it would give them the ability to assess any cost. This is why his proposal is to accept their plans and accept their property but, in as much as the road does not benefit their property beyond what they are doing, let the property owners who do benefit from it pay for the improvement costs. He reminded the Council that his company is already building about 20% of Arney Lane and all of those costs will be lost when an LID is finally formed. He urged the Council to consider his comments as to why he has taken his current position. Attorney Robinson suggested that they will be returning to the Council in about 1 month and, if it is possible, he would like to meet with staff before the staff report is prepared to see what options might be possible and the staff could understand their position on this issue with the hope of providing a recommendation that they could agree with. Page 16 - Council Meeting Minutes, November 13,2001 SA -- COUNCIL MEETING MINUTES November 13, 2001 TAPE READING Mayor Jennings questioned if they would reconsider an extension of the 120 day rule. Attorney Robinson stated that if extra time is needed to try and resolve this issue, they would be willing to give an extension of the 120 day rule. 4995 Administrator Brown stated that he was a little disturbed that there may have been a some indication that the staffhas not been cooperative enough. He requested an opportunity to provide some history to the Council on this development. In his position, he has the opportunity to talk to staff and applicants on a one-to-one basis to see where everyone is coming from whereas the Council is limited to the exposure to information in the hearing and to make decisions based on the record. He feels that he has a better idea of what the motivations and intentions are from staff than most people along with how staff has worked through this project. He stated that staff members take into consideration the consistent application of city codes and the rules and regulations the Council have established. The Community Development Director tries to balance these issues when making recommendations to the Commission and Council, the City Attorney looks at these issues for the purpose of protecting the City, and the Public Works Director tries to adhere to Council policy that development is going to pay for itself when possible and at the greatest amount of public benefit that can be gained from the kinds of decisions that recommended to the Council. He does not feel that this project is any different than others that have been before the City. Since he came to the City in September 1998, the staff has made this project their highest priority every time something came up and, over the last 3 years, this has been a very needy project which has taken a large amount of staff time to bring the mall to the opening and try to resolve some of the problems that have surfaced. He is not going to argue with Mr. Craig's comments that he has spent a tremendous amount of money building this project, however, this project has been built with business in mind and much of what has been done, if not all, is a cost of doing business. At a number of times along the way, City staff involved itself in this project in order to try and make some of the conditions of approval work for the developer. In regards to the wetlands mitigation, along with the storm drain culvert, the City streamlined the opportunity for the developer to get the various permits from the Army Corps of Engineers and he felt that the City's involvement moved the process along faster than if the developer did it on his own. The sound wall was only going to be extended to a certain point since the condition was not specific. The City moved f~!Ward and contributed money to the wall to extend it to the length that the commenting public had intended to see it to, along with getting a wall that would be aesthetically pleasing, and the City and applicant worked together on this issue. The taper on Woodland Avenue required the City to take on some small level of paving which was done without any objection from staff. Additionally, when the initial building permits were to be taken out for this project, the staff administratively deferred the acceptance of system development charges and traffic impact fees for several months which allowed the applicant to Page 17 - Council Meeting Minutes, November 13, 2001 8A ~ COUNCIL MEETING MINUTES November 13, 2001 TAPE READING maintain some level of interest earnings on the money instead of putting it into the City's funds. The reimbursement district has been brought up as a sore spot by the developer but what is forgotten is that the original condition of approval required the applicant to form an LID and he ran up against opposition from the property owners in the area, in addition to legal issues, because of property being located either inside or outside of the city limits. The City made it possible for the establishment of the reimbursement district. It may not be working to everybody's satisfaction, however, the opportunity to receive the reimbursement is a consequence of the efforts the City put forth in trying to develop the reimbursement district. He agreed that there have been legal fees associated with this district since some of the property owners in the district do not want to pay for the benefit they are receiving from this improvement. The waterlines were a joint project of Craig Realty Group and the City since there was benefit that would be extended to the area outside of the development. There has been a number of special hearings over the years to try and accommodate people's travel schedules and to accommodate the need to get things done within certain time frames that were entirely related to this project. A soft opening was held before conditions of approval were completely fulfilled and temporary occupancy permits were issued to allow the mall to open and begin generating revenue. Until recently, some the conditions of approval from Phase I had not been signed off by the City. He reiterated that the staffhas worked with this applicant all along to try and make this project move along and yet make it a quality project that will benefit everyone including the public. In this particular matter, the Planning Commission made a decision about the road which, he has been told, was because the applicant had proposed to build this road. The applicant indicates that he was coerced into the requirement and staff will be looking into this over the next couple of weeks. Presuming that this is true, staff looks at it a little differently than if it had been offered up as an optioa. The applicant had contacted him a few months ago to let him know that there were-financial concerns and had asked staff for assistance in what could be done to reduce costs. Staff then looked at the engineering plans to see if costs could be saved such as manhole covers, drainage system, roadway width, etc.. Staff did recommend a number of changes to the applicant that included one recommended to the Planning Commission that would delay improvement until Phase III. The applicant chose to propose just eliminating the road improvement. As it comes back to staff, they are balancing what the Planning Commission has said it wants, what the Council has said it wants, wha.!_the applicant has said what they are planning to do with this, and the reliance the public and other public agencies may have had and the actions they have taken in respect to this project. When the Council called the issue up for a hearing, staff began looking at options and, in his opinion, there is no real justification for having this applicant build the full roadway improvement to the end of their property. The roadway has stopped at the driveway and the remainder of the roadway area would not service property and, from an equity and fairness standpoint, he personally does not feel that the applicant should pay for the Page 18 - Council Meeting Minutes, November 13,2001 8A - COUNCIL MEETING MINUTES November 13,2001 TAPE READING roadway. In thinking about the reliance other property owners or other agencies have had on what has been proposed to the City and approved based on those proposals, on the Transportation System Plan, and development standards referred to by Councilor Bjelland, staff believes that it is appropriate for the Council to require that this particular piece of property be dedicated right-of-way for future road extension. Staff also believes that if there is any road to be built, there will most likely be some level of benefit that goes to the mall property. Staff did not purposely give Council a recommendation rather they provided four different options to be considered. Staff believes that the applicant should dedicate the right-of-way and participate in some level ofUD and the value of their participation should be at the time the LID is formed. If it is appropriate at that time to apply the cost of the engineering work that has been done if that road which has been engineered will be constructed, then staff will take that into account in all fairness. The City has tried to be fair and tried to participate and partner wherever the City could in respect to this particular project. The staff is certainly able and willing to work with the applicant but time is needed over the next couple of weeks to make sure that the record will support the decision that the Council will make whether it supports an agreement that staff reaches in the meanwhile or supported of a role that the City will need to play if it goes to LUBA or some other area. He recommended that the hearing be continued to December 10th and a special meeting could be held to continue the decision making process prior to Christmas. If a decision is made at this meeting, it will leave staff in a weak position and with a project that may not be as good as what it could be. He reiterated that the staff is working for the Council, with developers, and with the public benefit first and foremost in mind. For the record, the Mayor clarified his poor choice of words made earlier relating to the Council deciding in advance. He assured the public that the Council did not have any secret meetings nor has it been discussed in private. He apologized for his choice of words and will try to be more careful in the future. 6500 Discussion was held regarding a date in which to continue the hearing since, unless there is an extension granted by the applicant, the 120 day period will expire on December 26th. Tape 3 It was also the consensus of the Council that the final decision on this application be made at a Council meeting in which all of the Councilors are present. Attorney Robinson expressed concern regarding the 6-month expiratioJl of the site plan approval. Attorney Shields stated that, by virtue of this application, there is no need to extend the expiration date. Attorney Robinson stated, that in the spirit of cooperation, the applicant will agree to an extension of the 120 day rule provided that there is some cutoff date well in advance of the continued hearing date in order to give them an opportunity to review and respond to the staff report. He suggested that a late December date in which the staff report is due Page 19 - Council Meeting Minutes, November 13,2001 ~ 8A COUNCIL MEETING MINUTES November 13, 2001 TAPE READING thereby giving them time to submit a final written argument. In this way, the Council will see all of the staff and applicant responses at their January 14, 2002 Council meeting. It was agreed that the staff report would be forwarded to the applicant by December 17th and then the deadline for all input is January 4,2002. Attorney Robinson stated that, based on that schedule, the applicant is granting an extension of the 120 day period until 5:00 p.m. on January 30, 2002. Discussion was held as to what will be allowed at the hearing on January 14th. It was agreed that the written arguments must be submitted by January 4, 2002, however, verbal testimony can be submitted into the record on January 14,2002. 0723 FIGLEYIMCCALLUM... continue the public hearing to January 14, 2002 subject to the following additional dates as discussed previously: 1) City of Woodburn staff report will be available by December 17, 200 I; 2) the opportunity for submission of evidence by the applicant and/or others will be allowed until January 4,2002; and 3) the 120 day rule will be extended until January 30, 2002 in order to allow the Council to make a decision. Attorney Shields requested that the applicant, once again, put into the record that the motion is being made in reliance upon their extension until 5:00 p.m. on January 30, 2002. Attorney Robinson stated that, on behalf of the applicant, they are extending the 120 day clock until January 30, 2002 at 5:00 p.m. and they understand that Councilor Figley's motion was made on reliance of that extension of the clock. On roll call vote, the motion passed unanimously. 0888 COUNCIL BILL 2356 - RESOLUTION ENTERING INTO-AN INTERGOVERNMENTAL AGREEMENT WITH MARIO-N COUNTY FOR PLUMBING AND ELECTRICAL PROGRAM. Councilor Chadwick introduced Council Bill 2356. Recorder Tennant read the bill by title only since there were no objections from the Council. Mayor Jennings stated that this program will allow the City to take plumbing and electrical permit applications for the County which will make it more convenient for the public. On roll call vote for final passage, the bill passed unanimously. Mayo.rJennings declared the bill duly passed. 1020 COUNCIL BILL 2357 - ORDINANCE AFFIRMING THE PLANNING COMMISSION'S DENIAL OF SUBDIVISION #01-01 AND VARIANCE #01-06 TO SUBDIVIDE TWO RESIDENTIAL PARCELS INTO 5 LOTS (1810 and 1820 E. Hardcastle). Page 20 - Council Meeting Minutes, November 13,2001 SA ~ COUNCIL MEETING MINUTES November 13, 2001 TAPE READING Council Bill 2357 was introduced by Councilor Chadwick. The two readings of the bill were read by title only since there were no objections from the Council. On roll call vote for final passage, the bill passed unanimously. Mayor Jennings declared Council Bill 2357 duly passed with the emergency clause. 1137 AUTHORIZATION TO PURCHASE TRANSIT BUS. Staff recommended the utilization of an existing contract from Basin Transit Service in Klamath Falls, OR, as authorization to purchase a transit bus from Schetky Northwest Sales in the amount of$138,125.00. FIGLEYINICHOLS... authorize utilizing an existing public agency contract with Basin Transit Service for the purchase of a transit bus from Schetky Northwest Sales for $138,125.00. The motion passed unanimously. 1155 REOUEST FOR SOUND AMPLIFICATION PERMIT: Woodburn Company Stores. A request was submitted by Woodburn Company Stores for the purpose of allowing for live musical entertainment in conjunction with their Christmas tree lighting ceremony. FIGLEY/SIFUENTEZ... approve a sound amplification permit for Woodburn Company Stores on Sunday, November 18,2001, from 5:00 pm to 6:00 pm. The motion passed unanimously. 1180 LIQUOR LICENSE APPLICATION: SALVADOR'S BAKERY 111.320 N. Pacific Hiehway. Police Chief Null recommended the approval of the limited on-premise liquor license application submitted by Salvador Larios DBA: Salvador's B~ III. Mayor Jennings expressed concern that so many businesses are submitting applications for liquor licenses within the City. FIGLEYIBJELLAND.... Approve a limited on-premise liquor license for Salvador's Bakery III located at 320 N. Pacific Highway, Woodburn. The motion passed 5-1 with Councilor Nichols voting nay. 1258 COUNCIL BILL 2358 - ORDINANCE RELATING TO THE REAPPORTIONMENT OF WARD BOUNDARIES AND REPEALING ORDINANCE NO. 2075. Councilor Chadwick introduced Council Bill 2358. Recorder Tennant read the two readings of the bill by title only. Mayor Jennings expressed his appreciation to Community Development and Public Works staff in getting the maps ready for this meeting. On roll call vote for fmal passage, the bill passed unanimously. Mayor Jennings declared Council Bill 2358 duly passed with the emergency clause. Page 21 - Council Meeting Minutes, November 13,2001 ~ SA COUNCIL MEETING MINUTES November 13, 2001 TAPE READING 1418 NEW BUSINESS: EMERGENCY REPAIRS TO ERODED BANK ALONG THE PUDDING RIVER IN CLOSE PROXIMITY TO THE WASTEWATER TREATMENT PLANT DISCHARGE LINE. Public Works Director Tiwari stated that some emergency work needs to be done to protect the Pudding River Bank. Dean Morrison, Project Engineer, reviewed the staff memo along with the attached contour map which shows that erosion is taking place along the Pudding River bank and it is necessary to perform emergency rip-rap work prior to slope failure. It is anticipated that permission to complete the work from the Division of State Lands and the US Army Corps of Engineers is expected during the week of November 12,2001. FIGLEYINICHOLS... City acts as general contractor and hire sub-contractors to accomplish the emergency river bank rip-rap work prior to slope failure at an estimated cost of $27,000.00. Director Tiwari stated that funds are available to perform this emergency work. The motion passed unanimously. 1734 PLANNING COMMISSION ACTIONS: A) Approval of Variance 01-11 to increase the size of an existing free-standing sign for an additional sign panel and to add a wall sign for Silverton Hospital Urgent Care Center located at 1014 Newberg Highway B) Approval of Partition 01-04 to partition a 148.76 acre lot into 2 parcels located west of Harvard Drive and south of Evergreen Road C) Approval of Partition 01-05 to partition a .91 acre property into 2 lots located along Stark Street and "A" Street Mayor Jennings stated that with the approval of Variance 01-1 rthe sandwich board sign will be removed from that location. No action was taken by the Council on these Planning Commission actions. 1806 CITY ADMINISTRATOR'S REPORT. A) Financial System Purchase: City Administrator Brown stated that if the Council is agreeable to the financing of the new computer financial system in-house rather than a lease purchase,--.it will commit the Council to a budget transfer and supplemental budget hearing in January 2002. It was the consensus of the Council to proceed with the purchase as recommended by staff. 1861 MAYOR AND COUNCIL REPORTS. Councilor Nichols invited the community to attend the Homeschooler's program that is being presented at the Nazarene Church on Saturday, November 17th, at 1 :00 pm and 4:00 pm. Page 22 - Council Meeting Minutes, November 13,2001 SA ~ COUNCIL MEETING MINUTES November 13,2001 TAPE READING Councilor Figley thanked those who were responsible for getting the new City Logo sign in the City Hall Council Chambers. Councilor McCallum stated that he had attended the League of Oregon Cities conference and he felt that it was very worthwhile program. Councilor McCallum also stated that Woodburn Together will be presenting a Community Forum on December 3rd relating to Modern Threats. This forum is based on the forum in which Sheriff Raul Ramirez had presented several weeks ago in Salem for community leaders. A location has not been decided upon as of yet but presenters will include Police, Fire, Marion County Emergency Management, Red Cross, Public Health, Schools, and the Justice Department. It is anticipated that the program will be about 1 ~ hours is duration. Councilor Bjelland stated that MW ACT had a special meeting called to address the prioritization of projects since Keizer, which had been the #2 project on the small project list, had been bounced off at the Region II meeting due to concerns with some issues on their original application. They submitted a revised application for a $500,000 project rather than the initial $2 million project and they asked MW ACT to reconsider that application along with some other issues during discussion of that project. MW ACT was also informed that the Transportation Commission was asking that Regions submit an "A" list and a "B" list with the "A" list representing those project which would use the money that was allocated to the Regions for modernization and preservation. The "B" list would be submitted in case any of the projects on the "A" list were not funded at the amount originally estimated or removed from the list. He feels that he was successful in getting the Woodburn Interchange project to be included in at least the "B" list assuming that the City could look at exploring some phasing of the project. Staff has had some preliminary discussions with ODOT on this issue. Administrator Brown stated that City staff is trying to get a meeting with ODOT staff members scheduled for November 14th and, if not, there will be a meeting before the end of the week. 2261 Councilor Bjelland questioned if, in the recent civil infraction ordinance, the $500 penalty is the actual amount levied or is it an amount in which the Judge has the discretion to levy. Attorney Shields stated that the Judge takes the position that, if the defendant makes an appearance, she has discretion on how much a defendant is fined. Councilor Sifuentez invited the Council, staff, and interested persons to an Open House at MacLaren on November 16th, to celebrate their 75th Anniversary. In order to attend, she does need to be contacted in advance so that names can be entered on the list of attendees. Page 23 - Council Meeting Minutes, November 13,2001 SA ~ COUNCIL MEETING MINUTES November 13,2001 TAPE READING There will be a program lasting about 45 minutes and tours of the facility will follow. Councilor Sifuentez stated that she also attended the League of Oregon Cities conference and did obtain a lot of information that she can share with the School District regarding youth programs. Councilor Chadwick also stated that she felt that the LOC conference was very informative this year. Councilor Nichols also thanked the Parks & Recreation Department for the Tee shirts that will be given out and sold as part of the Veteran's Day activities at the Aquatic Center. 2636 Mayor Jennings stated that, by the end of the year, the Human Rights Commission will have 7 of 9 positions vacant. He is concerned with the lack of active members and he is unable to find anyone interested in serving on this Commission. He requested Council assistance in either finding new members or to come up with an alternative plan. He also stated that he will be submitting a list of City Board and Commission appointments for Council consideration at the next regular meeting. Councilors Nichols and Figley stated that they will not be in attendance at the November 26th Council meeting. 2860 Police Chief Null stated that Woodburn Company Stores is participating in a nation wide event known as "Recognition of Heroes". Woodburn Company Stores has elected to recognize both the Police and Fire Departments and they plan on donating up to $2500 to both agencies. To date, 25 different stores will donate 1 % of their November 17th and 18th daily proceeds to this event. The Police Department will be-at the mall on those days as part of this event. Mayor Jennings encouraged Councilors who have not visited the new Tukwila Medical Center to do so on November 15th as part of the Chamber Business After Hours. He also thanked Councilor Bjelland for all of his efforts in trying to get funding for I-5/Hwy. 214 improvements. The staff also worked hard to get funding for this mu~ needed project and, even though the City is not on the "A" list, it is still on the "B" li~for consideration. EXECUTIVE SESSION. Attorney Shields stated that an executive session would not be necessary for this meeting and he will talk to Councilors individually if necessary. Page 24 - Council Meeting Minutes, November 13,2001 SA ~ COUNCIL MEETING MINUTES November 13,2001 TAPE READING 3111 ADJOURNMENT. FIGLEY/SIFUENTEZ... meeting be adjourned. The motion passed unanimously: The meeting adjourned at 11 :03 p.m.. APPROVED RICHARD JENNINGS, MAYOR A TIEST Mary Tennant, Recorder City of Woodburn, Oregon Page 2S - Council Meeting Minutes, November 13,2001 8B ~ WOODBURN PLANNING COMMISSION October 25, 2001 CONVENED The Planning Commission met in a regular session at 7:00 p.m. with Chairperson Young presiding. ROLL CALL Chairperson Vice Chairperson Commissioner Commissioner Commissioner Commissioner Commissioner Commissioner Young Cox Fletcher Lima Miller Mill Bandelow Lonergan P A P P A P P P Staff Present: Jim Mulder, Community Development Director Denlece Won, Assistant City Attorney Chairperson Young provided an opening statement for Public Hearing. MINUTES A. Minutes of October 11. 2001 Planning Commission Meeting Commissioner Lima moved to approve the minutes as written. Commissioner Bandelow seconded the motion. Motion carried. BUSINESS FROM THE AUDIENCE None COMMUNICATIONS A. City Council Workshop Minutes of September 17.2001 B. City Council Minutes of September 24. 2001 PUBLIC HEARING A. Site Plan Review 01-01. Lot Line Adiustment 01-07 and Variance 01-12.102.082 sauare foot expansion of the existina Wal-Mart store located at 3002 StaCV-Allison Wave Pacific Land Design. applicant (continued from the October 11. 2001 Planning Commission Meeting). Staff read the applicable ORS Statement and provided a presentation as reflected in the Staff Report. Staff recommended approval of all three applications subject to the conditions of approval outlined in the Staff Report. Commissioner Mill asked if an occupancy permit will not be issued unless th6 extension on Evergreen Road is completed? Staff replied affirmatively. He referred to condition of approval #28 and stated the de.9ication of the right-of- way must be given prior to a building permit for the expansion and that a performance guarantee also be given before the issuance of a building permit. Staff explained that both of these things are needed in order to have an assurance that Wal-Mart has the ability to make sure that this happens. Additionally, he remarked Staff wishes to avoid a situation where Wal-Mart may be held hostage by the property owner if dedication is not given prior to the issuance of a building permit because Wal-Mart can not control improving right-of-way that it does not own or control. Planning Commission Meeting - October 25, 200] Page 1 of 7 8B ~ Commissioner Lima expressed concerns regarding the additional traffic generation that this expansion will create. He asked if this is something that can be absorbed or is it something that will create more problems than we currently have on Highway 214 and 1-5? Staff indicated the Staff Report addressed this issue and comments were received by Randy Rohman with the Public Works Department. He stated it is clear that this development is a significant expansion and it will create a considerable amount of additional traffic. Staff did believe that the extension of Evergreen and the extension of the south driveway is necessary for this development to meet the applicable approval criteria. Staff also remarked the conditions placed on this application is as far as Staff believes it can go with it. Commissioner Loneraan referred to page 12 of the Staff Report and requested clarification regarding the statement made by the Program Manager about the developer traffic study indicating that during the p.m. peak hour approximately 393 trips will take place on the street system. He inquired if this is a true statement or is it not 393 additional trips that will take place? Staff clarified it is 393 additional trips. Commissioner Loneraan further inquired if these are Wal-Mart generated trips not counting neighborhoods and communities? Randy Rohman. Proaram Manaaer. Public Works Department replied those are Wal-Mart generated trips. There is a portion of those vehicles that are already on the roadway. Commissioner Lonerqan questioned if we can limit the time of day that truck traffic can manage those streets? Randy Rohman answered we can not limit that. He explained they generally generate truck traffic early morningllate night deliveries. Mr. Rohman further commented it is his observation that certain deliveries i.e., bread, potato chips, soda pop, tend to take place during the middle ofthe day. He stated he does not believe that you would see a large number of trucks going to and from Wal-Mart involved in that p.m peak hour because they tend to avoid that time frame mainly because they are interested in efficiency of operation. Commissioner Bandelow requested clarification regarding whether traffic is not one of the criteria utilized to turn this project down. Staff replied this is correct. He explained Staff believes the further away you get from the site, the harder it is to make that connection. Chairperson Youna referred to condition of approval #22 that pertains to the relocation of an existing public easement subject to the vacation process as found in ORS Chapter 271. He_reported a public hearing is scheduled to hear that and requested that Staff briefly explain what this is all about. Staff reported this is a City Council public hearing for vacating an existing utility easement that runs through the Wal-Mart parking lot. Randy Rohman interjected there are a number of easements that run through there. He stated the primary thing that runs through concurrently is the force main that comes from the lift station that is over by the interstate. Mr. Rohman reported as a part of the project this easement will be vacated and the applicant will relocate that force main and grant us an easement on the new path that the force matn takes. Testimony by the Applicant Scott Franklin. Pacific Land Desian. 10121 SE Sunnyside Rd.. Suite 215. Clackamas. OR 97015 stated he is representing Wal-Mart stores. Commented they have worked over the last 6-8 months with City staff and believe they have come up with a project that Woodburn could be proud of. He addressed the truck delivery issue and stated Wal-Mart truck deliveries usually take place at night, typically 8:00-10:00 pm and sometimes Planning Commission Meeting - October 25, 200] Page 2 of 7 8B ~ 8-to midnight with some off-peak hour deliveries. Mr. Franklin introduced his team to the Planning Commission. He provided an extensive presentation and commenced by identifying the existing facilities. The existing store is approximately 102,000 sq. ft. to be expanded another 102,000 sq. ft. Mr. Franklin reported the grocery component will be roughly 70,000 sq. ft. He indicated they are also expanding the garden center to include a covered canopy. Additionally, a decorative fence and pilaster will be placed around the garden center. He stated everything that was in the existing easements that need to be moved will move at Wal-Mart's expense and dedicate the necessary easements to cover those. Andrew Mortensen. Senior ReQional Transportation PlanninQ ManaQer. TransPO Group. 309 NE 3rd St.. Suite 5. McMinnville. OR 97128 stated his firm completed a series of reports to city staff and discussed a number of modifications and enhancements to their analysis of traffic conditions of the proposed site. He further stated they believe in studying the various conditions of those traffic operations that they meet the city's plans and policies for the transportation system serving the existing and the planned land uses consistent with the Comprehensive Plan and the city's Transportation System Plan. Mr. Mortensen referred to Commissioner Lonergan's comment regarding the 393 new trips with the expansion portion of the site and stated that is an accurate number. He explained that is the total number of vehicle trips to and from the site. Furthermore, Mr. Mortensen indicated level of service was measured under existing traffic conditions which is reflective of the traffic to and from the current Wal-Mart site plus the neighboring commercial and residential activities that are serviced by the roadway network immediately near the site. He reported most of those intersections operate today under the level of service A or B. Additionally, Mr. Mortensen commented it is an indicator that the existing traffic control system along with some of the new connections are going to provide adequate level of service for traffic operations for both the traffic that we see out there today plus some of the traffic that is going to be generated by other uses in the area that are not developed yet to include the expansion of the Wal-Mart site. He stated all of these meet the criteria that were established in their discussions with Staff. It is a consistent road way network circulation pattern and operational condition consistent with the Comprehensive Plan uses within the immediate studied area and the Transportation System Plan that Woodburn has adopted for some years. In closing, Mr. Mortensen said the project will generate more traffic but it is certainly within the city's tolerable and approve able limits. Commissioner Mill asked Mr. Mortensen what grades have been assigned to Highway 214 and Evergreen as well as Highway 214 and Lawson intersections? Andrew Mortensen replied presently the intersection of Highway 214 and Evergreen are at a level of service 0, level of service E in five years and that includes a lot of growth which is regional in nature and not related to any of the site development traffic at Wal-Mart. He stated this is assuming the present lane configuration and traffic control. Mr. Mortensen indicated Lawson is at a level of service 0 as well. Commissioner Lima pointed out everyone's concem is the increase in traffic up north. Although he understood this is an area outside of what the City can ask them to do, he questioned what commitment will Wal-Mart have to help resolve that issue since they are going to generate extra traffic? Andrew Mortensen responded this is an off-site condition that is not incumbent on the application to mitigate. He stated the whole region and community will grow out there and it is not just under Wal-Mart's proposed expansion. Mr. Mortensen reported under the system development charges program this application is going to contribute approximately % million dollars towards the city's transportation system funding program for a series of off-site improvements that will be made to the collector and arterial systems. He indicated Wal- Mart's contribution to the neighborhood is pretty significant above and beyond just making the site improvements as part of the expansion of the Wal-Mart site. Additionally, Mr.~ortensen stated he understands every community where we have all lived in has had to struggle with the issue of growth management and how to deal with traffic. He indicated Highway 214 has been a problem for well over a dozen years and it is just not the responsibility of this particular site to mitigate those conditions. However, there are longer range plans that are coming closer to it that help that out. Commissioner Loneraan inquired how did Mr. Mortensen arrive to the figures that indicate 40% of the traffic Planning Commission Meeting - October 25, 2001 Page 3 of 7 8B - flow is expected to come from 1-5 going down Highway 214? Andrew Mortensen answered those trip distribution numbers have been used as the basis of the Woodburn Transportation System Plan. However, he is familiar with a number of traffic studies that date almost ten years ago that were based on traffic volume studies of existing commercial and other development activities within the interchange area. Mr. Mortensen further commented that was the travel pattern for those uses and most of those studies that have been presented to the Commission for developments within the interchange area have been using those trip distribution estimates. He stated they were using the best piece of information that is available to them. It was indicated by Mr. Mortensen that it is not a perfect science to understand exactly where each and every vehicle trip is going to be coming from and going to but it is the best piece of information that they have worked with staff and confirmed with them for the purposes of the site. Additionally, he commented you can change the distribution estimates around quite a bit and you are still going to result in the same levels of service conditions on your street system, perhaps no change again on Highway 214 and the interchange. Scott Franklin interjected the distribution was arrived at through work with Randy Rohman's office and it is not something that they came up with in a vacuum. Commissioner LonerQan inquired at what level is an intersection classified as a failure and do any of the studies show that any of those intersections along Highway 214 are now at that level? Andrew Mortensen replied E or F levels of service are classified as failure. He explained E is a warning flag that you better get your studies done and do something about this or you are going to fail very shortly. What happens at major intersections is that you will come up to the signal and you will probably have to wait 40 or 50 seconds before you can get through that signal. Mr. Mortensen indicated Highway 214 is at level of service o and E now. Their operational analysis with the expansion of the Wal-Mart site is not going to appreciably degrade those conditions. Furthermore, he remarked they did this at the request of City staff in the full recognition that this was not really an incumbrance on them to mitigate those conditions. Commissioner Mill expressed concerns believing that the project will not have much of an appreciable impact on degradation of those intersections when a lot of the vehicle traffic is coming down to Wal-Mart. He also asked what will Wal-Mart do as far as assisting the city in convincing OOOT that moving up the 1-5 Interchange and fixing Highway 214 would be a real good idea? Andrew Mortensen answered Wa1-Mart's financial contribution could be additional leverage that states the city now has more revenue than some of the other competing jurisdictions have who want their projects higher up on the list. He indicated this empowers the City of Woodburn to say they have greater contribution for a better transportation system and hence, feel they have a stronger case to elevate the real critical regional improvement project that the City has been wanting for over a dozen years. Scott Franklin addressed the existing sanitary force main issue and stated this serves the existing pump station facility near 1-5. He also addressed the Sign Variance request and reported they want to stay under the code maximum allowable and increase the number of signs from 12 to 14. Additionally. he commented they have multiple business units within the store. i.e., bakery, photo, optical. produce, deli. general merchandise, which could all be separate businesses on the site which each one would be allowed two signs on the frontage and pylon signs. He indicated if you were to add all of those buildings up the signage would be far greater than what they are proposing. Mr. Franklin stated they do not plan on changing the pylon sign but there will be new wording. He reported they are not proposing to change the existing sign on the north side of the store. -- Commissioner LonerQan inquired who are they trying to reach with the new signage? Scott Franklin replied it will be the people accessing and circulating throughout the parking field. They intend to show the corporate identity of Wal-Mart. He stated they worked extensively with City staff to come up with Planning Commission Meeting - October 25, 200] Page 4 of 7 8B - a landscape program and layout that both the City and Wal-Mart can be proud of. Their proposed landscaping adds extensive landscaping within the existing parking field. Commissioner LonerQan asked Mr. Franklin ifthey project any noise problems generated from the trucks on the south entrance? Scott Franklin responded they do not project any noise problems because the screen wall will have a significant benefit as well as the proposed landscaping. He stated the assisted living facility is set back a little ways from Harvard Drive. The truck well at the truck dock goes down about 4 feet from finished floor and therefore, the net effect is about a ten foot tall screen wall. Mr. Franklin also addressed trash compactors and stated they do not generate loud noise and will be covered by a far greater amount of landscaping. The architectural design of the proposed project were as well addressed by Mr. Franklin. He remarked as a result of the work done in conjunction with staff, this building is unique and there is no other Wal-Mart building like it. In conclusion, Mr. Franklin reported the store will generate approximately 200-250 new jobs on top of what is out there right now. Commissioner Fletcher inquired what specific contributions has Wal-Mart contributed to Woodburn? Scott Franklin referred this question to Scott Gavic, Waf-Mart Store Manager. Scott Gavic. Woodburn Wal-Mart Store. ManaQer reported he has been with the store for six years. He stated he does not have a specific donation dollar amount to local groups. He explained they have matching grant programs where people do fund-raisers and Wal-Mart matches the amount of money they make, they donate monies to various organizations, athletic events, clubs, schools. Mr. Gavic stated the Wal-Mart home office also donates money to different groups, i.e. Woodburn Historical Museum. It was reported by Mr. Gavic that they are directed to keep the monies in the local area and the home office is involved in all of the areas. Commissioner Lima questioned when will construction of the proposed expansion begin? Scott Franklin replied construction is scheduled to start next summer with the duration of construction taking approximately 10-12 months or so once construction begins. He said the store will remain open during construction. The construction will be sequenced to minimize the impact to the customers and keep the store open. Commissioner Fletcher asked if any thought has ever been given to provide on-site day care for their employees? Scott Gavic answered no thought has been given to that at this time. He stated this has not been an issue with any of his employees and employees have not requested it. Chairperson YounQ questioned how many other stores of this size are presently in the system? Scott Franklin reported there is one under construction in Springfield, Oregon and is slightly larger than this one. Additionally, there are several Super Centers in Oregon. Frank Lonerqan inquired whether the future leased lot will not be pertinent to this development? Scott Franklin commented this will not be pertinent to this proposal and is something that could be any number of things. However, it would have to come back through the city to get approval for whatever went in there. In closing, he reported there are going to be 200-250 new jobs as a result ofthis development. He stated the Site Plan does meet the applicable code criteria. The development will be contributing to the city an expected $900,000 in total SDC fees in addition to the improvements being made. Mr. Franklin stated there will be significant improvement to the area in terms not only the visual impact to the building but the landscaping and street system. Planning Commission Meeting - October 25. 200] Page 5 of 7 8B ~ Testimony by Proponents None Testimony by Opponents None Applicant Rebuttal None Discussion Chairperson YounQ closed the Public Hearing and opened discussion to the Commission. Commissioner Mill stated for the record his concerns in the area of traffic. Absent the traffic, he has no reason to not move forward and will be voting for approval. Commissioner Bandelow concurred with Commissioner Mill and stated she would vote in favor of the project. Commissioner Lima shared his fellow Commissioner's concerns. He remarked this is a wonderful addition to Woodburn. However, in his opinion, the project will generate traffic beyond what can be absorbed despite what the applicant states. He also stated the applicants are not residents of Woodburn and will not be affected by the project. Unfortunately, this is not enough grounds to reject the application. Commissioner Lonerqan also expressed concerns regarding the traffic. He stated we have been addressing this issue for years and we have to continue to address it. Commissioner Lonergan commented some of the traffic problems can be pinned on to Wal-Mart if they are bringing in 873 cars an hour with this project. He also stated he is very much in favor of Wal-Mart and he is very familiar with their marketing strategy and what they have done over the years. This is an excellent plan and the building exterior facade will be a huge improvement. Furthermore, he indicated he has no concerns with the other areas of the project but he is very concerned with the traffic issue. He stated he will vote in favor of the project but has serious concerns with the traffic issue because this will be a large impact on all areas. Chairperson Younq stated the conditions of approval have been well done and have been approved by both parties. He commented the building may be classed as an integrated business center to allow that. Additionally, he said the upgraded design reflects today's architecture. Commissioner Mill moved to approve Site Plan Review 01-01 and Lot Line Adjustment 01-07 and Variance 01-12 including the terms and conditions outlined in the latest Staff Report dated October 25, 2001 and requested Staff to return with a Final Order. Commissioner Bandelow..seconded the motion which unanimously carried. 10 MINUTE BREAK B. Variance 01-10. SiQn Variance to chanae the cabinet and fact of a freestandina sian located at 3000 NewberQ HiQhway (Hillyer's Ford), Martin Bros. SiQns. applicant. Staff reported the attorney for the applicant in this matter submitted a letter tonight withdrawing their application. ITEMS FOR ACTION A. Final Order for Variance 01-11. SiQn Variance to add a 2' x 6' panel to the existina detached business center sian and add an additional wall sian on the north side of buildina located at 1014 Newbera HiQhway 214. Silverton Hospital UrQent Care Center. Silverton Hospital. applicant. Commissioner Lima moved to approve the Final Order as written. Motion was seconded by Commissioner Fletcher. Motion carried. Planning Commission Meeting - October 25, 200] Page 6 of 7 8B ~ Commissioner Mill complimented Staff on bringing forth the terms and conditions of approval. B. Partition 01-04. Partition a 148.76 acre lot Into 2 parcels located West of Harvard Drive and south of Everareen Road. KWDS. LLC. applicant. Motion was made by Commissioner Lima to approve Partition 01-04 as presented by Staff. Commissioner Bandelow seconded the motion, which carried. C. Partition 01-05. Partition a 0.91 acre lot into 2 lots located at 226 Stark St.. Bob Enale. applicant. Commissioner Lima moved to approve Partition 01-05 as presented by Staff. Commissioner Loneroan seconded the motion. Motion carried. DISCUSSION ITEMS None REPORTS A. Plannina Proiect Trackina Sheet (revised 10-09-01) BUSINESS FROM THE COMMISSION Commissioner Loneroan questioned Staff whether the $700,000 generated from the Wal-Mart project goes into the general fund? Staff replied that would go to the traffic impact fee account and would only be spent on increasing capacity within the transportation system based on the Capital Improvement Program adopted by the City Council which is based on the Transportation System Plan. ADJOURNMENT Commissioner Lima moved to adjourn the meeting. Motion was seconded by Commissioner Loneroan, which carried. Meeting adjourned at 9:20 p.m. .. ((!6f~( DATE IRPERSON ATTEST Jim Co m nity Development Director City I/-i'- 0/ Date Planning Commission Meeting - October 25. 200] Page 7 of 7 8e MINUTES -. MONTHLY MEETING OF WOODBURN PUBLIC LIBRARY ErOARD DATE: November 14, 2001 ROLL CALL: Phyllis Bauer Marie Brown Ardis Knauf Kay Kuka - Present - Present - Present - Excused Barbara Pugh Kevin Schiedler Pat Will Mary Chadwick Ex-Officio - Excused - Present - Present - Present STAFF PRESENT: Linda Sprauer, Director Judy Coreson, Recording Secretary GUESTS: None CALL TO ORDER: Vice-President Pat Will called the meeting to order at 12 Noon. SECRETARY'S REPORT: The monthly Board minutes of October 10, 2001 were approved as submitted. CORRESPONDENCE: Marion County Historical Society invited Linda to a dessert and program to receive a "merit award" for the library for the Carnegie building restoration Wednesday, November 14. PUBLIC COMMENT: None DIRECTOR'S REPORT: Monthly Statistics: The monthly statistics were self-explanatory. The number of people visiting the library for the month of October was 17,610. Activities: A list of activities was distributed to the Board. . The library was closed Monday, November 12, for Veterans' Day.. The library will be closed Thursday, November 22, for Thanksgiving Day.- The library will be open 8 am to 12 Noon on Monday, December 24, on Christmas Eve day and will be closed Tuesday, December 25, for Christmas Day. To celebrate Children's Book Week, "Puss In Boots" by the Creative Works Theatre Co. is scheduled for Thursday, November 15 at 3:30 pm. On Thursday, November 29, at 2 pm "Hot Reads For A Cold Winter Nights" is scheduled. Library staff and patrons will present favorite new books. Story times continue and Tuesday Night at the Library has resumed since "Prime Time Family Reading Time" has ended. Internet classes continue Friday and Saturday mornings. 1 8e Staff News: Beverly Phillips was hired October 23rd as Children's Librarian to replace Mary Parra who resigned to accept a librarian J'eSition at Nellie Muir School. Shirley Linn was hired as a part-time Page to replace Betty Yoder. Shirley was working at the library as a Green Thumb employee. Volunteer of the Month: Jane Stockfleth was chosen Volunteer of the Month for November. Grants: The LST A grant, funded through the State Library, is for a feasibility study in Marion County for Library District(s). A telephone survey of 100 people in Woodburn and 100 people in the other cities with libraries in Marion County will be conducted. Another 150 non-residents will be surveyed. OLD BUSINESS: Carnegie Exterior Project: This project is nearing completion. The windows have been removed and will be repaired with storm windows then installed on the inside. Lead was found in the old paint, so the old paint will be disposed of properly. Hopefully, the weather will permit the painting to be finished soon. Woodburn/Canby Exchange Cards: Linda is waiting to hear from Canby concerning how they plan to continue this agreement. Canby will need to have a method to determine if the patron's library card is current at Woodburn. Goals & Planning Session: Linda distributed and discussed the results of a survey completed by the Board at their planning session on November 1. NEW BUSINESS: Gervais Community Learning Center: Gervais has a 3 year grant to develop a Community Learning Center. Linda is working with the Gervais School District to provide library materials requested by Gervais residents to be . sent to the Learning Center. The Library Board voted to support The Articles of Understanding between Woodburn Public Library and the Gervais School District. It will eventually need to be approved by the Woodburn City Council before it goes into effect. BUSINESS TO/FROM THE CITY COUNCIL AN D/OR MAYOR: None ADJOURNMENT: The meeting was adjourned at 1 :05 pm. Respectfully Submitted, ~OJ~~ J6d;Mson Recording Secretary Library Board Minutes - 11/14/01 2 8D WOODBURN PUBLIC LIBRARY MONTHLY REPORT FOR SEPTEMBER 2001 ~ I. CIRCULATION Current: 11,042 Adult: Children: 8,344 2,698 Previous: 2000 1999 1998 11,022 11,441 13,600 II. INTERLIBRARY LOAN In-House Use: 1,362 Books Loaned: 770 CCRLS: 769 All Other In-State: 1 In-State Special: 0 Out-Ot-State: 0 Books Borrowed: 895 CCRLS: 873 All Other In-State: 17 In-State Special: 0 Out-Ot-State: 5 III. REFERENCE Woodburn Referrals Other Total 2001 1,061 65 1,059 2,185 2000 776 44 672 1 ,492 1999 812 47 888 1,747 1998 855 46 1,097 1,998 IV. VOLUNTEER HOURS WORKED 134 1/4 V. LIBRARY SPONSORED PROGRAMS Adults: Children: 10 7 VI. FINANCE ILL Postals Fines Lost Books Copies Rural Fee Donation Collection Fee Other TOTAL Monthly Statistics: September 2001 No. Attending: No. Attending: 82 172 3.50 786.51 98.32 92.58 100.00 0.00 10.00 114.40 - Misc. 1,205.31 1 New Adds For The Month of September: 700 VIII. PATRON LOAN TYPES Adult Resident Adult Non-Resident Senior Resident Senior Non-Resident Y A Resident Y A Non-Resident Juvenile Resident Juvenile Non-Resident Reference Staff Library Staff Outreach Visitor City Department TOTAL Monthly Statistics: September 2001 3 4,515 3,176 909 253 1,047 713 1,248 691 5 24 22 20 10 12,633 8D ~ -- ACCOUNT # 511.000 512.000 512.050 513.000 520.000 531.000 540.000 541.000 542.000 543.000 544.000 545.000 601.021 602.000 602.003 602.005 602.006 602.008 602.009 602.010 602.011 602.012 602.013 602.014 602.015 602.016 602.020 602.051 602.052 603.000 603.010 607.000 610.010 615.000 616.060 616.329 616.448 620.001 620.007 Library Operations - September 2001 LIBRARY OPERATIONS 8D ~ Month Ending: September 30; 2001 DESCRIPTION PERSONNEL SERVICE Intergovernmental Service Salaries Performance Bonus Temporary Employees Payroll Overtime C.E.TA Grant Workman's Compo Social Security Medical, Dental, Life Insurance Retirement L.T.D. Insurance Unemployment Insurance $ 5,452.20 29,169.89 0.00 0.00 0.00 0.00 34.15 2,170.74 1,935.27 2,388.80 76.40 29.18 Sub-Total $ 41,256.63 MATERIALS AND SERVICES Telephone Office Supplies & Printing Copy Machine Leasing & Supply Library Supplies $ 214.36 152.76 0.00 468.62 Adult Program Supplies large Print Books Children's Program Supplies Books Children's Books Periodicals Foreign Language Books Book Collection Project Expense 0.00 940.04 0.00 2,977.69 79.52 73.66 568.73 0.00 Bindery Lost Book Expense Postage State Aid Expense Audio-Visual Materials Office Machine Rental Computer Supplies Uniform Allowance Transportation Reimbursement Training, Conference & Memberships Contractual Services Other Operating Supplies Rent - Internal Equipment Repair & Maintenance Vehicle Repair & Maintenance 0.00 169.07 334.63 60.00 988.38 0.00 819.34 0.00 0.00 315.00 2,275.12 0.00 15,265.00 0.00 0.00 1 620.045 Facilities Repair & Maintenance 0.00 I 8D 620.070 Building Maintenance Expense 0.00 620.072 Lighting Repair & Maintenance ~ 0.00 620.075 Heating & A1C Maintenance - 0.00 620.080 Vandalism Repair - City Property 0.00 621.005 LSCA - Reading Center 0.00 621.039 Paint Supplies 0.00 621.043 Plumbing Repair & Maintenance 0.00 622.000 Janitorial Supplies 0.00 635.000 Utilities - Electricity -- 0.00 635.010 Utilitites - Natural Gas 0.00 635.030 Utilities - Garbage Service 0.00 635.055 Sewer 0.00 641.020 Insurance - Building & Equipment 0.00 641.060 Insurance :. Liability 0.00 641.080 Insurance Service 0.00 651.000 Accounting Forms & Supplies 18.42 652.000 Auditing Service 58.47 658.000 Materials & Services - NOC 727.80 670.008 Loan Repayment/HV AC 0.00 Sub-Total $ 26,506.61 MISCELLANEOUS LIBRARY ACCOUNTS 710.005 Office Equipment $ 0.00 710.008 Computer Equipment 0.00 710.010 New Equipment/Facility Improvement 0.00 711.052 Miscellaneous Equipment 0.00 713.010 Building Betterments 0.00 713.016 Sidewalk Construction 0.00 910.068 Transfer to IS Fund 7,222.50 921.000 Contingencies 0.00 Sub-Total $ 7,222.50 ** The power bill for the month of September f$-1, 748.46) will be paid in October. - Library Operations - September 2001 2 library Operations - September 2001 DESCRIPTION TOTAL LIBRARY FUND EXPENDITURES Personnel Service Materials and Service Books & Periodicals $4,808.71 Miscellaneous Library Accounts TOTAL PERCENT EXPENDED BALANCE 19.6% 8D ~ ~ $ 41,256.63 26,506.61 7,222.50 $ 74,985.74 3 WOODBURN 8E ~ ORE G 0 N Incorporated 1889 MEMO FROM: City of Woodburn Mayor and City Council through John Brown, Woodburn City Administrator Linda Sprauer, Library Director ~ November 20, 2001 ~ TO: DATE: RE: Woodburn Public Library's Merit Award Woodburn Public Library Merit Award 2001 On Wednesday, November 14, 2001, the Marion County Historical Society honored three outstanding history and preservation efforts during the past year in the county at its Community and Volunteer Recognition Event. The three awards were presented to: The Woodburn Public Librarv. Still located in a Carnegie library built 87 years ago, the Woodburn Public Library is renovating the exterior of the building and restoring its copper roof. Statesman-Journal newspaper of Salem. Celebrating its 150th anniversary, the newspaper has published special features, editorials, a special section and a pictorial book, as well as supported preservation and history through its marketing department. Salem Downtown Historic District. Although first thought about 30 years ago, the district was finally placed on the National Register of Historic Places this year. A half dozen of the leaders of the successful effort were honored. The nonprofit Marion County Historical Society is a multi-faceted organization dedicated to promoting an appreciation of regional history. It operates a museum, library, publications and an education program. Founded in 1950, it is headquartered at 260 12th St. SE, Salem, OR 97301. The organization's web site is www.marionhistorv.orQ Woodburn Public library 280 Garfield Street. Woodburn, Oregon 97071 Ph.503-982-5263 . Fax 503-982-5258 -~ 8E -- Accepting the award for the Woodburn Public Library were Randy Rohman, Public Works Project Manager and Library Director, Linda Sprauer, who was accompanied by her husband Allen. CarneQie Librarv Exterior Proiect Update The Carnegie Library exterior renovation project is nearing completion. To date the contractor has cleaned, repointed, and sealed the bricks, repaired the chimney, removed the existing roof and restored it to the 'rumored' copper covering, and repaired and/or rebuilt the gutters and downspouts. Left to be accomplished is the repair or replacement and painting of the windows. Some of the windows were removed and delivered to a subcontractor in order that the new ones can be rebuilt as nearly as possible to the same specifications. Lead was found in some of the previous layers of paint and the abatement process has begun to ready the wood trim surfaces for painting. Finally, there will be storm windows installed on the inside of the windows to aid the heating and cooling system to maintain a constant temperature. It is anticipated that all work will be completed by January 30, 2002. " The City of Woodburn Livability Task Force :\IE:\lBms I SF ~ Pete :\kCalIlIlll Naney KirksC'y Jo.l\nn Bjelland Mike fkrgeron Jane Christoff BC'lly Guzman Lisa Ellsworth Mission Statement: "It is the mission of the Livability Task Force to create and promote programs that result in a cleaner community where there is pride in property ownership, with a full range of commercial services, and with ample recreational, cultural, and entertainment activities for all age groups. It is the Task Force's further mission to create and promote an environment where all residents can feel safe, will interact with each other, will celebrate their unique traits and diversity, and can share a strong and common sense of community. II Woodburn Livability Task Force Meeting Minutes - September 2001 City Hall Conference Room ~September 18, 200 1 ~ 7:00 pm I. Call to Order Meeting called to order in the City Hall Conference Room at 7:05. Task Force Members: Pete McCallum Mike Bergeron Lisa Ellsworth Betty Guzman Present Absent Absent Present Jane Christoff Nancy A. Kirksey Victoria Bellum J oAnn Bjelland Absent Present Absent Absent Staff: Kezia Merwin Present Guests Nikki Debuse, Adrianna Guizar Woodburn Independent n. Approval of August Meeting Minutes m. Progress Reports A. Fall Clean-up and Tulip Planting Event. Nikki presented some tulip planting instructions (see attached information). She expressed the beneficial partnership between the Livability Task Force and the TulipFestival Committee on this particular project. She also made the comment that she would ensure that the Independent had coverage of the event. Betty Guzman stated the need to get some coffee supplies for the clean up event to serve at the high school. Nancy Kirksey said that she would pick the items up at Costco. Kezia would contact Mike Bergeron to confirm the City's role in the clean-up, Livability Task Force Minutes September 18.2001 -Page 1 0/2 ~ SF to provide the equipment for the trash pick-up as well as some Public Works department staff. B. Front Street Park. Betty said that the park was scheduled to be done in 30-60 days time, although it would not be as large as originally planned. c. Farmers Market (Saturday Market). Mike and Lisa were not present to provide an update on this topic. D. Flower Baskets. J oAnn was not present to provide an update on this topic. V. Discussion Items A. Water Bill Insert. The insert is to be a flier for the leaf pick-up and drop-off program. The Cleveland Yard is the drop off site for leaves during the November through December program. The Public Works department will be coordinating efforts with Livability T.F. on this program. It was also suggested that a press release, sponsored by L.T.F., be put in the Indpendent and WCAT during mid-November. VI. Public Comment. A. Woodburn Resident, Adrianna Guizar, was introduced. She indicated her interest in joining the group and her desire to work to improve the community. She is originally from California, moved to Woodburn this year, and has children in Woodburn School District. VII. Next Meeting. The next meeting date has been changed to Tuesday October 23. vrn. Adjourn The Committee adjourned at 8:35 p.m. Livability Task Force Minutes September 18,2001 N-Page 2 0/2 1 8G WOODBURN HUMAN RIGHTS COMMISSION Meeting Minutes - November 1, 2001 - 1. Roll Call President Scott Summers Commissioner Doyne Deos Commissioner Marilyn Landeen Commissioner Eliborio Fernandez Commissioner Alicia Hernandez Commissioner Donna Wood Present Present Present Absent Absent Present Staff: Paul E. Null Nita Marr Present Present 2. Report from Seattle Office of Health & Human Services - Commissioner Summers spoke with a representative of the Seattle office and found that their operation is indeed geared toward the health care field. Their presentations are mainly for hospitals and doctors regarding provision oflanguage assistance in their facilities. Any health care facility receiving federal funding must comply with such regulations. In light of this information Commissioners decided to drop the idea of a public presentation, stating it did not seem to be a subject for this body to pursue. Commissioner Wood took some of the materials to the Salud Clinic. They showed interest in two of them, but only in a very limited quantity. 3. Reminder - Human Rights Award to Elida Sifuentez - The award will be presented at the November 13, 2001, City Council meeting. Commissioner Deos has contacted Mrs. Sifuentez for biographical information and will serve as the presenter. All Commissioners are encouraged to attend. 4. Award Recipient Reception Planning - The reception will be set in January, preferably the 23M or 30th. Commissioner Wood volunteered to book the PGE building for the event and to explore the possibility of entertainment of some sort. 5. City Employee Diversity Training - Training has been scheauled for November 14th and November 26th. Employees will attend one 2-hour (9-11am) class. All city employees will be required to attend, and any commissioners are invited to attend the class. The class will be conducted by Woodburn Police Officer Robert Rodriguez who is bilinguallbicultural and who has recently undergone a train-the-trainer course in the subject of diversity. Commissioner Summers expressed his appreciation to the Chief and the City Manager for their commitment in this area. 6. Election of Officers - Commissioner Summers announced that with mixed feelings, he would indeed be stepping down as Chairperson, and, in addition, would not be seeking another term as Human Rights Commissioner. Commissioner Landeen stated the commission needed new blood, suggesting Commissioner Wood be nominated as the Chair of the Commission. Chairperson Summers agreed, stating she certainly seem well connected and had a passion for human rights issues. Chief Null advised those in attendance that there were not enough Commissioners to constitute a quoru~ nor to hold nominations and elections at this point, stating he would approach the City Manager regarding the future of the commission. Donna Wood volunteered to convene the January meeting, and suggested that future commissioners be recruited from the group of award recipients. 7. Adjournment - Meeting was adjourned at 8:45 p.m. The next meeting is scheduled for 7:00 p.m., January 3, 2001, at City Hall Conference Room, 270 Montgomery Street. cc: Commissioners Mayor Jennings & City Council Woodburn Independent me -- SH MEMO from the office of the City Attorney RE: MA YOR AND CITY COUNCIL N. ROBERT SHIELDS, CITY ATIORNEytftL) MICHAEL CULVER V. CITY OF WOODBURN U.S. DISTRICT COURT NO. 99-1586 TO: FROM: DATE: NOVEMBER 20, 2001 On November 13,2001, U.S. District Court Judge Garr King granted the City's Motion to Strike, granted the City's Motion for Summary Judgment, denied plaintiff Culver's motion to amend his compliant, and then dismissed the case of Michael Culver v. City of Woodburn without providing the plaintiff any option to refile. Unless Judge King's ruling is reversed on appeal, this brings to a close this extended litigation. Plaintiff Culver is a former city code enforcement officer who was disciplined and suspended by the city in 1999 and was then terminated as a result of further discipline in February 2001. In his complaints Culver claimed that the City violated his statutory and constitutional rights. However, Judge King affirmed the actions the City in all respects and ruled that it followed all of the correct procedures in suspending and terminating Culver. NRS/kv MEMO - 81 From the office of the City Attorney TO: FROM: RE: DATE: MAYOR AND CITY COUNCIL N. ROBERT SHIELDS, CITY ATTORNEY IV rt-~ BANK OF NEW YORK V. SCHERATSKI AND CITY OF WOODBURN MARION COUNTY CIRCUIT COURT NO. 00C18226 NOVEMBER 20, 2001 I am pleased to report to you that the City was recently paid the sum of $21,171.25 to satisfy the full amount of its mortgage in this case. This litigation began when the Bank of New York foreclosed the primary mortgage on the property. In order to protect the City's interest, it was necessary for me to file a cross claim on behalf of the City foreclosing the second mortgage related to the housing rehabilitation program. The payment of the City's entire claim finally ends the litigation. NRS/kv lOA MEMO ~ To: For Council Action, through the City Administrato;f17 From: Randy Scott, Senior Engineering Technician, through the Public Works Director~' Subject: Vacation In Conjunction With The Wal-Mart Expansion Date: November 20, 2001 ~ RECOMMENDATION: It is being recommended that City Council pass the attached ordinance vacating two utility easements and a portion of a sanitary sewer easement. BACKGROUND: The City Council, at it's November 13,2001 meeting conducted a public hearing on the question whether the two utility easements and a portion of an existing sanitary sewer easement should be vacated. At the conclusion of that hearing, the Council directed staff to prepare an Ordinance vacating the easements, subject to certain conditions. As directed, the Ordinance is attached. lOA COUNCIL BILL NO. 2359 ~ ORDINANCE NO. AN ORDINANCE VACATING A PORTION OF AN EXISTING SANITARY SEWER EASEMENT AND TWO UTILITY EASEMENTS AND DECLARING AN EMERGENCY. WHEREAS, abutting property owners have submitted a petition requesting the City Council to vacate a portion of an existing sanitary sewer easement and two utility easements; and WHEREAS, Resolution NO.1657 fixed the time, place and date of a public hearing to hear the petition on whether the easements described herein should be vacated; and WHEREAS, on November 13,2001 a public hearing was held and the petition was heard on this question; and WHEREAS, the City Council has considered the petition, the public testimony, the staff reports, the need for the proposed easement vacation, and the public interest herein, NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. The portion of the sanitary sewer easement to be vacated is legally described as follows: A portion of a Sanitary Sewer Easement as recorded in Deed Document Reel 876, Page 168, Marion County Deed Records, situated in the Southwest quarter of Section 12, Township 5 South, Range 2 West, Willamette Meridian, City of Woodburn, County of Marion, State of Oregon, being more particularly described as follows: Beginning at a two inch iron pipe with a two inch aluminum cap inscribed "Barker PLS 636" for the Southeast comer of Parcel I as recorded in Partition Plat No. 92-17, Marion County Deed Records, Salem, Oregon, Thence along the south boundary line of said Parcell, North 88052' 10" West a distance of 991.15 feet to a point, said point is 93.20 feet from the west line of said Parcel I; Thence North 01007' 50" East a distance of27.96 feet; Thence South 880 52' 10" East a distance of991.15 feet; Thence South 01007' 50" West a distance of27.96 feet to the point of beginning. Containing an area of27,713 square feet, more or less Basis of Bearing is Partition Plat No. 92-17 A diagram of said tract is attached to this Resolution as Exhibit" A" and is incOrporated herein. Section 2. The sixty foot wide utility easement to be vacated is legally described as follows: A sixty (60.00') feet wide Utility easement as recorded in Deed Document Reel 907, Page 003, Marion County Deed Records, situated in the Southwest quarter of Section 12, Township 5 South, Range 2 West, Willamette Meridian, City of Woodburn, County of Marion, State of Oregon, being more particularly described as follows: lOA Commencing at a two inch iron pipe with a two inch aluminum cap inscribed "Barker~S 636" for the Southeast comer of Parcel I as recorded in Partition Plat No. 92-17, Marion County Deed Records, Salem, Oregon, Thence along the east boundary line of said Parcel I, North 0 10 07' 50" East a distanceof27.96 feet to the TRUE POINT OF BEGINNNING: Thence North 880 52'10" West a distance of 452.46 feet; Thence North 11007' 25" East a distance of 60.92 feet; Thence South 880 52' 10" East a distance of 441.89 feet to a point in the east line of said Parcell; Thence along said line, South 0 I 007' 50" West a distance of 60.00 feet to the TRUE POINT OF BEGINNING. Containing an area of 26,829 square feet, more or less. Basis of Bearing is Partition Plat No. 92-17 A diagram of said easement is attached to this Resolution as Exhibit "B" and incorporated herein. Section 3. The twenty five foot wide utility easement to be vacated is legally described as follows: -- A twenty five (25.00') feet wide Utility easement as recorded in Partition Plat No. 92-17, Marion County Deed Records, situated in the Southwest quarter of Section 12, Township 5 South, Range 2 West, Willamette Meridian, City of Woodburn, County of Marion, State of Oregon, being more particularly described as follows: Commencing at a two inch iron pipe with a two inch aluminum cap inscribed "Barker PLS 636" for the Southeast comer of Parcel I as recorded in Partition Plat No. 92-17, Marion County Deed Records, Salem, Oregon, Thence North 850 19' 59" West a distance of 453.32 feet to the TRUE POINT OF BEGINNING; Thence North 880 52' 10" West a distance of26.06 feet; Thence North 01007' 50" East a distance of25.00 feet; Thence South 880 52' 10" East a distance of 30.46 feet; Thence South 11007' 25" West a distance of25.39 feet to the TRUE POINT OF BEGINNING. Containing an area of 706 square feet, more or less. Basis of Bearing is Partition Plat No. 92-17 A diagram of said easement is attached to this Resolution as Exhibit "c" and incorporated herein. Section 4. The Council finds the petition filed with the city conforms with the requirements of ORS 271.080. The petition contains the consen.Lofall abutting property and of not less than two-thirds in the area of the real property affected thereby. No oral objections were made at the public hearing and no written objections have been filed with city for the vacation of easements legally described in Section 1,2 and 3. Section 5. The Council finds that- the easements as described in Section 1,2 and 3 are vacated subject to the following express conditions: a. The existing sanitary sewer force main within the area to be vacated shall be relocated in accordance with city requirements and city approved plans, all relocation costs to be borne by the petitioner. Proper easement to accommodate the relocated sewer main shall be provided to the city. b. The existing city water main within the area to be vacated shall be relocated in accordance with city requirements and city approved plans, all relocation costs to be borne by the petitioner. Proper easement to accommodate the relocated water lOA main shall be provided to the city. ~ c. The petitioner shall relocate all franchised utilities that exist in the vacated easement area and provide the proper easements for the relocation. d. Petitioner shall pay the street/easement vacation processing fee 0[$ 560.00 as adopted in Ordinance No. 2300. Section 6. Pursuant to ORS 271.150, a certified copy of this ordinance shall be filed with the Marion County Clerk. Section 7. This ordinance being necessary for the immediate preservation of the public peace,bealth and safety, an emergency is declared to exist and this ordinance shall take effect immediately upon passage by the City Council and approval by the Mayor. Approved as to form:~"~ ~ City Attorney / /-'2 d "2001 Date APPROVED: Richard Jennings, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Mary Tennant, City Recorder City of W qodburn, Oregon .LN. 1645 7-10-01 EXHIBIT "A" "l- ~~ SCALE; l' - 120' TAX LOT 200 052W\3 POlHT Of BEClNNlNO lOA ! ~ /\ s~~.... .~ \ ~ .f :::1 NOI"07';;O"[ s~ I ::~ 27.96 lS--f}-- : :~ :: 1 : :1 J _ :: 1 :::i ':-j ;0 :::/ :d :::i 8: ::;1 :-:1. :::/~ ~:~/g : :;/ ::~ ::~ SANITARY SEWER On :r:3 EASatENT ::: ::3 TO BE .vACAlID g =: ~:] .' . ::) - ::J ::1 F "::1' ;: ~~:I E :::~ ~ ....IQ z m:~ :'::I~ H;,. : ::1 ::~ ::_~ ::~ ::~ ::f ~ :~ : ~f' ~~.~ SOl"Or50.W ::: 27.Q6' PAAca 1 PART11IOH PlAT NO. g2-17 ~ .~; : . ;~'. CE&tJW~ ~BANGYIOAD~" UolCKOSWBOO, C SOS.PCS8.665S ... EXHIBIT "8" TAX LOT 200 052W13 27.96 lOA ~ "L .~~ , .. I 100 50 0 100 NII"07'2rE 60.112 1"'". -.... ..... I):~:::~ 60' unuty ,: : :: ~ ~ ~:,;r-- EASBdENT (~~i~! -TO BE VACATEU I~U\~/ (AS PER R. go7, P. oo:J) 1:::::::::1 (:-:-:.:-:1 -: ';-:';:J 1:,:-:,;.:,1 ...... .':.0. I::::::;: ~ ~ 1<>(...... .)_ ~ ;':';';'J~ N ........)"f- Wlt.;-:.:-: ...(\~) f::::::::) ........ 1 f:::::::; r::-;::::::I (~:~ :~: ~:It: J- -.;.;.:-:(- bE::::::;: << ~-(:::::::::Ii {~:~:~:~( ....... '-( 2:;1':':;1::: .... . "1 I:::: ::::;. ,:::::::: ~ ,;:::::::~ , :~::::::; .........1 . 0 .' ~,or60"w HARVARD DRIVE~- ~I~ I-jg: U'JU'J .~ .uc. 1646 LOCATED VilN..1HE S.W. 1/4 ~'OF :SEC'rtON 12.- -' 1. ". "" i"5':':S~~{R.;':2 W., W.M. QtiOF WOqOBURN MARtON - eout-ny, OREGON P MCEl. 1 PMnllON PlAT NO. 92-17 --- ~ REGISTERED PROrESSIONAL u.ND SURVEYOR . ~ .~. .;Jo. . .~. EXHIBIT "C" ~r I I I I I I / EXlSnNG 'n' UllUTY I . EASf:MENT I I (PER PARTITION / I PlAT NO. 92-17) , , , I I / I I I I I I I I _ -1 ___, .. ---, I '.: L.J .'( S88"52'IO.E I . 30.46' : S!l"07'2S.W I 25.39' I }=I gilt ~I!J ~I~ %:1 , I I , I I I I I I ~ I 100 , 50 . o I 100 unuTY EASOJENT TO BE VACATED r---------- I r------- / r.J N8a-:i2'IO-W / I 26.06' / , , , I / r I I / TAX LOT 200 / I 052W13 . I , , , NEW , r/ WA1ERI.fAJN I , . EASELlENT I I I I I I / , , I I I , , , I I I I I I I I PARCEl. 1 PARnllON PLAT NO. Q2-17 . HARVARD DRIVE ---:r- - . .I~I REGI5-TEREO ~,~ PROfESSIONAL - ~ LAND SUR OR ~11Jl , .I.N. '64S lOA \ -i. lOB ~ November 26, 2001 TO: FROM: SUBJECT: Honorable Mayor and City Council , F?? John C. Brown, City Administrator.-JG-" ~ Direct Link Transfer of Ownership and Franchise Recommendation: It is recommended the City Council adopt the attached ordinance extending the authorization of the transfer of cable television system ownership and franchise from Direct Link of Oregon, Inc to Willamette Broadband LLC, contingent upon satisfaction of certain conditions of approval, until January 2,2002. Background: On May 9, 2001, the City received a request for approval of a transfer of the cable television franchise serving Woodburn from Direct Link to a new owner, Willamette Broadband LLC (Willamette). On August 2001, the City Council adopted Ordinance 2299, which approved the conditional transfer of a cable television franchise from Direct Link to Willamette. Conditions of approval included: · Completing the franchise renewal negotiations, represented in a mutually agreeable new franchise designed to meet current Woodburn regulatory requirements and community needs; · Providing a guarantee of franchise performance by the principals of Willamette, including Avalon Equity Partners, TFC Textron, and Peter Luscombe; · Posting a performance bond, to cover all franchise performance by Willamette, in an amount of $300,000; · Establishing a security fund or letter of credit running to the City in the amount of $25,000 (one quarter of Willamette's anticipated franchise fees for the first year). Such security would be retained by the City for a period of five years, or until such time as the City Council deems, based upon Willamette's performance under a franchise, that such security is no longer necessary; and · Agreeing, in writing, to remedy any historical violation or default under the franchise, regardless of whether Direct Link or Willamette is responsible for the violation. Since the Council's August 27th meeting, staff and the City's cable consultant have negotiated what is hoped the Council will find to be a mutually agreeable Honorable Mayor and City Council November 26, 2001 Page 2. lOB ~ franchise renewal. Conditions of Ordinance 2299 are incorporated into the agreement, which requires a performance guarantee of $300,000, a security guarantee of $25,000. The agreement also requires a $100,000 construction bond. These items are to be provided by the effective date of the franchise renewal, which is intended to be January 2,2002. During discussions regarding guarantees, Willamette indicated it couldn't provide the corporate guarantees, for the reasons stated in the attached correspondence from Mr. Peter Luscombe. As Mr. Luscombe notes, Willamette will be r~quired to provide a total of $425,000 in guarantees under the agreement. It appears that amount is sufficient to protect the City in the event that franchise defaults occur. Willamette has requested that the City eliminate the corporate guarantee condition from the transfer conditions. That action requires an amendment to Ordinance 2299. Ordinance 2299 required the satisfaction of all conditions within 90 days of its effective date. The Mayor approved the ordinance on August 30, 2001; the 90- day period expires on November 28, 2001. The negotiated effective date of the franchise renewal is January 1, 2002. For consistency with that date, and to continue to allow for the transfer to Willamette, Ordinance 2299 needs to be amended. Accordingly, the attached ordinance replaces Ordinance 2299 and incorporates the noted revisions to the conditions of approval. As these amendments are consistent with the terms that have been negotiated, and will allow for the orderly and uninterrupted transfer of the cable franchise from Direct Link to Willamette Broadband, your approval is respectfully recommended. JCB cc: Dr. Steven Jolin Mr. Peter Luscombe Ms. Sandra Coleman lOB ~ Willamette Broadband, LLC Mr. John Brown City Administrator City of Woodburn 270 Montgomery Street Woodburn, Oregon 97071 Regarding: Guarantees from financial partners Dear John, The City of Woodburn, in ordinance #2299, requested guarantees of franchise performance by the principles ofWillamette Broadband, LLC and other financial partners. This will not be possible due to contractual constraints by at least one of its equity partners, Avalon Equity Fund, L.P. Avalon is a Small Business Investment Corporation, ("SBIC") licensed by the Small Business Administration ("SBA") which participates and provides equity capital to their Fund. Under the terms and conditions of participation with the SBA and other rules and regulations, Avalon would be precluded from providing guarantees on behalf of Willamette. Given this preclusion it would be an unworkable business arrangement for the remaining principals to guarantee Willamette's performance if they were so inclined, which they are not. To mitigate this guarantee, the proposed franchise requires Willamette Broadband, LLC to provide general bonding of $300,000; construction bonding of $ 100,000 and to provide a security fund equal to 3 months of franchise fees or $25,000. This overall guarantee level of $425,000 from Willamette Broadband should provide sufficient surety to guarantee the performance of the company under the terms and conditions of the franchise. In adqition, the franchise specifies in detail many other criteria of default and details the remedies that Willamette must undertake if such defaults occur. Willamette Broadband, LLC may be a relatively new company, but it includes professional cable operators and investors with more than 100 years of experience in the cable television business. In addition, Willamette intends to retain the entire operational cable employee base including the technicians, installers, customer service personnel and management. The company will have the benefit of continued operations from the day of closing with highly experienced professional individuals. As the President of Willamette I bring to the company over 25 years of experience in operations and management in cable television. I will have daily access to a Board of Managers with not only general business and communications experience, but with cable television operational experience including years as Chief Executive and Financial Officers for much larger cable concerns who have 626 Maye Street Westfield, New Jersey 07090-2423 (908) 233-6405 Fax (908) 233-7769 lOB ~ personal investment in our company. In addition, Willamette will have the expertise of some of the largest cable financing institutions in the country with Textron Financial and General Electric Capital Corporation. Willamette will have new sources of capital so that it can make substantial investments to upgrade the cable system in Woodburn. Over the coming months the system will be transformed into a modern broadband communications network allowing more programming and advanced services such as high speed internet access. This will be accomplished through a large scale deployment of fiber optic cables, establishment ofbi-directional communications, and an increase in system bandwidth. Willamette Broadband and our financial partners, Avalon, Northwest Capital Appreciation, General Electric Capital Corporation and Textron Financial are committed to these improvements in both operations and technology. Willamette will back these commitments with not only our word and experience and a completed franchise agreement, but with $425,000 of bonds and other securities at the disposal of the City should we not meet our obligations. I very much look forward to years of cooperation and mutual success with the City of Woodburn. Sincerely, Peter C. Luscombe President lOB ~ COUNCIL BILL NO. 2360 ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE NO. 2299 IN ORDER TO ENABLE THE TRANSFER AND ASSIGNMENT OF A CABLE TELEVISION FRANCHISE FROM NORTH WILLAMETTE TELECOM, INC. (DIRECT LINK) TO WILLAMETTE BROADBAND, LLC., AND DECLARING AN EMERGENCY. WHEREAS, the Council passed Ordinance No. 2299 approving and consenting to the transfer and assignment of a cable television franchise from North Willamette Telecom, Inc. (Direct Link) to Willamette Broadband, LLC, (Willamette) based upon the satisfactory completion of certain conditions; and WHEREAS, one condition was that Direct Link complete its franchise negotiation with the City in order to achieve a mutually agreeable new franchise designed to meet current Woodburn regulatory requirements and community needs; and WHEREAS, after certain negotiations, a franchise agreement has been proposed and will be presented before the Council at a public hearing on November 26, 2001; and WHEREAS, it is necessary that the 90 days provided by Ordinance 2299 to complete the franchise renewal negotiations be extended; and WHEREAS, it is also necessary that the condition originally imposed upon Willamette requiring an independent and unconditional guarantee of franchise performance by its principals be removed, Willamette having demonstrated to the City that such a guarantee is not possible; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. Section 1 of Ordinance No. 2299 is hereby amended to read as follows: Section 1. The City hereby approves and consents to the transfer and assignment of the Franchise from North Willamette Telecom, Inc. to Willamette Broadband, LLC contingent upon Willamette's satisfactory completion of the following conditions no later January 2,2002. (A) Complete the franchise renewal negotiations, represented in a mutually agreeable new franchise designed to meet current Woodburn regulatory requirements and community needs; (B) Post a performance bond, to cover all franchise performance by Willamette, in an amount of $300,000. Said bond shall be in a form acceptable to the City Attorney; Page 1 - COUNCIL BILL NO. ORDINANCE NO. -lnB ~ (C) Establish a security fund or letter of credit running to the City in the -amount of $25,000. Such security fund or letter of credit shall be in a form acceptable to the City Attorney, and shall be retained by the City for a period of five years, or until such time as the City Council deems, based upon Willamette's performance under a franchise, that such security is no longer necessary; and (D) Agree in writing to remedy any historical violation or default under the Franchise, regardless of whether the Seller or Willamette is responsible for the violation or default. IfWillamette fails to complete any of the conditions (A) to (D) above by January 2,2002, consent to the sale and transfer of the Franchise is denied Secti~n 2. Section 2 of Ordinance No. 2299 is hereby amended to read as follows: Section 2. Subject to condition (A) to (D) above being met by January 2, 2002, and from and after the closing of the sale of the Franchise and related assets to Willamette, Willamette shall become the operator of the Franchise and shall be bound by the lawful obligations and duties that arise on and after the closing with respect thereto and the Seller shall be released of such obligations and duties. Section 3. This ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist and this ordinance shall take effect immediately upon passage by the Council and approval by the Mayor. Approved as to formm. ~ /Irt'CJ r \ - 2 ( - 20 c ( N. Robert Shields, City Attorney Date Approved: Richard Jennings, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Mary Tennant, City Recorder City of Woodburn, Oregon Page 2 - COUNCIL BILL NO. ORDINANCE NO. toe ~ November 19,2001 Richard Jennings Mayor 270 Montgomery St. Woodburn, OR 97071 Dear Mayor Jennings: This correspondence comes as a request for your city to approve the attached Resolution enacting an amended 190 Agreement for the League of Oregon Cities. All current members of the League enacted a similar agreement in the early 1980s. The 190 Agreement is our "enactment document" and reflects under Chapter 190 of the Oregon Statutes that two or more cities can join to provide services for themselves through an association. As many of you know, the League's Constitution was amended at this year's annual conference by adding two additional Directors to its Board. The old 190 Agreement specified a Board with nine (9) Directors; the new constitution now calls for eleven (11) Directors, in addition to the Officers. There are also a few word-smithing modifications such as changing the references to the "Executive Secretary" to the "Executive Director" position, and clarifying quorum requirements for conducting business. None of these amendments reflect a change in the way the League functions or the relationship between the League and its members. We have enclosed a working copy of the 190 Agreement which shows the changes along with a revised Agreement and accompanying Resolution (on blue paper) for passage. We would appreciate it if, at your next regularly scheduled council meeting, your City could approve the Resolution and sign the new 190 Agreement. Please forward to our office a copy of both the Resolution and signed Ar<reement by January 1, 2002. If you'd like the Agreement and/or Resolution in electronic format, they are available on our web site at www.orcities.orgfloc/About/governance.cfm. They are available in Word, WordPerfect and Text formats. You'll also find on the site the LOC Constitution and Bylaws with the recent changes noted. Please contact our office if you have any questions. In the meantime, our best to everyone in the City as the Holiday season approaches. Kind Regards, ?~~~ (. -/~~ Richard C. Townsend Executive Director RCT:kab cc: City Manager/Recorder F:\190 letter 10 mayors.wpd Worki11g together for lillable Oregon communities loe ..:...... COUNCIL BILL NO. ~361 RESOLUTION NO. A RESOLUTION AUTHORIZING THE MAYOR AND CITY ADMINISTRATOR OF THE CITY OF WOODBURN TO EXECUTE AND ENDORSE AN AMENDMENT TO THE AGREEMENT WITH THE LEAGUE OF OREGON CITIES GOVERNING THE LEAGUE STATUS AS A UNIT OF LOCAL GOVERNMENT, SIMILAR TO OTHER COOPERATIVE INTERGOVERNMENTAL AGENCIES IN WHICH CITIES CREATE AND PARTICIPATE. WHEREAS, the Council has found that it is necessary and desirable to endorse and adopt an amendment to the agreement proposed by the League of Oregon Cities, NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the Mayor and City Administrator are hereby authorized to execute and endorse the agreement with the League of Oregon Cities of which the City of Woodburn is a member, governing the League status as a unit of local government, similar to other cooperative intergovernmental agencies that cities create and participate in, all this in the State of Oregon, upon the terms and conditions as set forth in an agreement entitled "Intergovernmental Agreement of Oregon Cities," a copy of which is attached hereto as Exhibit "A" and incorporated by reference herein. Approved as to form:?/.. ~ ~ N. Robert Shields, City Attorney 11- 20 - 2DQ ( Date Approved: Richard Jennings, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Mary Tennant, City Recorder City of Woodburn, Oregon Page 1 - COUNCIL BILL NO. RESOLUTION NO. . Exhibit "A" loe .~ INTERGOVERNMENTAL AGREEMENT OF OREGON CITIES THIS AGREEMENT made and entered into this _ day of ,20_ by each city of the State of Oregon agreeing to enter into the same by ordinance or resolution, and every other City having also so agreed and being collectively referred to herein as "CITIES", now therefore WIT N E SSE T H: RECITALS: 1. This is an agreement for intergovernmental cooperation by units of local government under ORS 190.010 to ORS 190.111 inclusive, in performing functions and providing services which all of the parties have authority to perform and provide. 2. For purposes of this agreement, the organization created by the Cities to perform certain functions and activities herein set forth shall be deemed a consolidated department of all of the Cities who are parties to this agreement to carry the same out by a combination of methods provided for in ORS 190.020. 3. This agreement reduces to writing the terms, conditions, purposes and objects of services. functions and activities of the League of Oregon Cities performed since 1926 as a cooperative and joint endeavor of Oregon Cities. Nothing herein is intended to change its status as being for some purposes a political subdivision of the State of Oregon, an instrumentality of the State and its Cities for better administration of public affairs, and an agency or instrumentality for performing governmental functions owned and controlled by the Cities of Oregon. THE CITIES OF OREGON BECOMING PARTIES HERETO AGREE: 1 Exhibit" A" toe ~ I. ACTIVITIES: 1. To form and continue an organization for the cooperative provision of local governmental services, to perform governmental purposes and functions as hereinafter set further under the name of the League of Oregon Cities, hereinafter referred to as the "League." 2. The League of Oregon Cities shall have the following purposes and functions: a. To maintain an organization to secure cooperation among the cities of the state by thorough study of local problems, and in the application of efficient methods to local government; b. To provide a means whereby officials may interchange ideas and experiences and obtain expert advice; c. To collect, compile and distribute to municipal officials information about municipal government and the administrator of municipal affairs; d. To engage in the study and preparation of uniform ordinances and practices; e. To formulate and promote such legislation as will be beneficial to the cities of the state and the citizens thereof and to oppose legislation detrimental thereto, but not to expend monies in favor of or in opposition to any public measure initiated by or referred to the people, or for or against the election of any candidate for public office; f. To provide such services to cities as cities may authorize and require through the League of Oregon Cities, including but not limited to assistance in collective bargaining with employees,1 liability,2 casualty,2 and health insurance,3 and the provision of joint facilities for local governments with other governmental units acting singly or cooperative. To that end the League may create or participate in appropriate entities and trusts which are suitable and convenient for carrying out its purposes; g. To secure harmony of action among municipalities in matters that affect the rights and liabilities of cities; h. To institute or participate in litigation in the name of a member city, upon request of such city, or in its own name for the purpose of securing a determination relative to the rights and liabilities of cities of Oregon under any constitutional provision, statute or ordinance; 2 Exhibit" A" lOC ~ to appear as a friend of the Court in any Court proceeding wherein the rights and liabilities of cities are affected; to appoint or employ counsel for the purpose herein mentioned; i. To adopt and amend, from time to time, such rules, regulations, constitution and bylaws as are not inconsistent with this agreement; j . To do any and all other things necessary or proper for the benefit of the cities of Oregon which the cities themselves might do singly or in cooperation with other units or agencies of government. " II. GOVERNANCE AND CONTROL: 1. The Board of Directors shall have general supervision over all of the affairs of the organization, subject to the will of the organization expressed any duly called meeting. The Board of Directors shall possess all powers necessary to carry out the provisions of this agreement and the specific purposes and functions set forth in Section I, ACTIVITIES, including but not limited to the power on behalf of the League of Oregon Cities, directly or through other entities, to rent, lease, purchase, receive and hold property, both real and personal, and to rent,lease, mortgage, hypothecate, sell or otherwise dispose of the same. 2. The Board of Directors shall consist of the officers and Directors of the League. 3. The officers of the League shall be a President, Vice President, Treasurer, Past-President, eleven members at large, and an Executive Director, each of whom, with the exception of the Executive Director, shall hold an elective or appointment position in a city who is a participant in this agreement. The officers shall exercise the usual powers and duties incident to their offices and as provided herein. 4. All officers, except the Executive Director, shall be elected at the annual conference of the League for a term of one year and shall hold office until their successors are elected and qualified. The Executive Director shall be appointed by the Board of Directors and shall hold office at the pleasure of said committee. 5. Any vacancy in office shall be filled by appointment by the President, subject to the approval of the Board of Directors. 3 toe Exhib1t'-.' A" 6. Meetings of the Board of Directors may be held at any time upon call of the President or of any three members. A majority of incumbent members shall constitute a quorum. The members of the Board of Directors may vote either in person or by mail upon any issue submitted to the Committee. III. PROVISION OF FUNDS: 1. The cities shall provide the revenues for payment of expenses incurred in the performance of the functions and activities of the League by the payment of annual fees or assessments based upon the POPulations of the respective cities entering into this agreement, as established by the Board of Directors no later than January 1 of any calendar year the assessment is levied for the fiscal year beginning on July 1, in an amount sufficient to finance the expenses of the League for each year.4 2. An annual charge, established by the Board of Directors, may also be made to separate boards or commissions of any city also desiring to participate in activities of the League. 3. The Board of Directors may also levy assessments, in addition to the annual fee or assessment, for maintenance of the Legislative Service Bureau, during sessions of the State Legislature. 4. The League may also make such other charges for direct services furnished to cities or others as the Board of Directors may approve. 5. Incidental income from any activity shall be devoted solely to the governmental purposes of the League and its member cities. No profit from any activity shall inure to the benefit of any private person, firm or corporation. 6. No funds shall be expended except upon a vote of the Board of Directors and in furtherance of the objects and purposes of the League. All funds, revenues and expenditures of the League shall be audited at least annually.5 4 Exhibit" A" IOC -~ IV. MEETINGS: 1. An annual conference of the League shall be held each year at the time and place to be determined by the Board of Directors. The program of the annual convention shall be arranged by or under the direction thereof. 2. Special meetings of the League may be called by the President or the Board of Directors at any time by giving notice to the Recorder, or other designated official, of each member city, at least ten (10) days prior to the date of the meeting. The notice shall state the purpose of the meeting. 3. Regional meetings may be called at any time by the President or Board of Directors for the benefit of city officials located in various sections of the state. Resolutions adopted at the regional meetings shall be forwarded to the Board of Directors. 4. All questions of parliamentary practice shall be decided according to Roberts Rules of Order, newly revised. 5. There shall be no limit upon the number of delegates to be sent by an member city to a meeting of the League. All delegates may be heard in debate, but each member city shall be entitled to only one vote. Each delegation shall select one of its members as chairperson to express or record its vote. V. EXECUTIVE DIRECTOR/EMPLOYEES: The Executive Director shall be the chief administrative officer of the League and be responsible to the Board of Directors for such duties as may be assigned by it. The League, through the Board of Directors, may employ such other employees as necessary to carry out the purposes, activities and functions of the League under this agreement. This agreement does not contemplate the transfer of any personnel.6 VI. DURATIONfTERM: The term of this agreement shall be perpetual.7 The parties hereto shall have the right to terminate their participation herein as a party at any time, by ordinance or resolution forwarded to the Executive Director. The entire agreement may be terminated at any time by a two-thirds vote of 5 toe F.xhibit~' A" the cities then participating. e The agreement may be amended at any time, by agreement with each city participating by ordinance or resolution in the same manner as originally entered into. VII. RIGHTS UPON TERMINATION: Upon termination of the agreement the cities then participating shall mutually agree upon the transfer of personnel or the division of assets and liabilities between the parties and in the event that they are unable to agree, then venue shall be established in the Circuit Court of Multnomah, Marion, or Lane County to determine that transfer or division.9 No city shall be liable, upon termination, for any dues, charges, assessments or other liabilities of any kind beyond the year in which such city ceases to participate or in which the agreement is terminated. VIII. EXECUTION: The resolution or ordinances of each participating city agreeing hereto shall be placed on file with the original of this agreement. The City of , a municipal corporation By: By: ATTEST: FOOTNOTES 1. Chapter 243 ORS 2. ORS 731.036 (4) 3. ORS 731.036 (5) 4. ORS 190.020 (1) (a) 5. ORS 190.020 (1)(b) 6. ORS 190.020 (1) (c) 7. ORS 190.020 (1) (e) 8. ORS 190.020 (1) (f) 9. ORS 190.020 (2) M:\lOClPub"cations\190 Agreemenl.wpd 6 Ion City of Woodburn Police Department --'- 270 Montgomery Street Staff Report Woodburn, Oregon 97071 (503) 982-2352 Date: November 19, 2001 Paul Null. Chief of POli~ Mayor and City Council d John Brown, City Administrato~) ..... From: To: Through: Subject: - Sound Amplification Permit - Woodburn Downtown Christmas Lighting Ordinance 1900, 3, (5) The use or operation of an automatic or electric piano, phonograph, loudspeaker or sound-amplifying device so loudly as to disturb persons in the vicinity thereof or in such manner as renders the same a public nuisance; provided however, that upon application to the Council permits may be granted to responsible persons or organizations to broadcast programs of music; news speeches or general entertainment. The police department has received a request for a sound amplification permit from Kezia Merwin, Special Events Coordinator. The request is for Saturday, December 8, 2001, from 6:30 - 8:30 p.m. The permit is to allow for entertainment in conjunction with a Woodburn Downtown Christmas Tree Lighting Ceremony in Warzenski Plaza. The event is open to the community. Recommendation: The City Council approve a sound amplification permit for the Woodburn Downtown Christmas Lighting Ceremony on Saturday, December 8,2001, from 6:30 to 8:30 p.m. llA STAFF REpORT -~ To: FROM: VIA: DATE: SUBJECT: Mayor and City Council ~ ~ Matt Smith, Management Analyst. I~ John C. Brown, City Administrat~ November 26,2001 CDBG Grant Application Public Hearing RECOMMENDATION: It is recommended the City Council conduct a public hearing, receive public comment, and if appropriate, direct staff to submit, in cooperation with the F armworker Housing Development-Corporation, a Community Development Block Grant application. BACKGROUND: The Federal government distributes Community Development Block Grant (CDBG) funds to states. The grants can used for public facilities and housing improvements, primarily for persons with low and moderate incomes. Approximately $15 million will be awarded to Oregon non-metropolitan cities and counties in 2002. Funding guidelines for Community Development Block Grants (CDBG) state that only non-metropolitan cities and counties in Oregon may apply for and receive CDBG grants. Non-profit organizations wishing to receive CDBG funding must work with local governments to jointly submit applications and receive pass-through funding for eligible projects. Local jurisdictions are limited to a maximum of three open CDBG grants at any one time. The City of Woodburn currently does not have any open CDBG grants. CDBG funding guidelines also require that the applicant's governing body hold at least one public hearing, covering both the overall community development needs of the jurisdiction and the proposed project, before the application is submitted. Farmworker Housing Development Corporation (FHDC) approached City staff with a request for assistance in developing funding sources for the proposed Cipriano Ferrel Education Center. The proposed project involves the construction of a 9,000 square foot Education Center on the grounds of the Nuevo Amanecer housing complex. There is currently a community-based effort to raise funds for the project with a wide variety of participants, including the Mayor. Based on discussions with City staff, FHDC has prepared a grant application for CDBG funding for the project. The Center would function as a shared resource for the Woodburn community. Programs offered in the facility will be available to farmworkers and other low-income residents of the Woodburn area, as well as to residents of Nuevo Amanecer. Programs offered at the center would include: . Head Start and daycare programs; 11A -~ . Adult classes on citizenship preparation, development of leadership skIlls, English (spoken and written), financial management, income tax preparation, home ownership counseling, and credit application; and . A computer lab where basic computer skills will be taught, and small businesses and start-ups can utilize the facility to improve their viability. The proposed Center would also have large multi-purpose rooms that would be used for community meetings and training activities. The community has a demonstrated need for each of these programs, and the intent of the FHDC proposal is to meet these needs. The purpose of this public hearing is to fulfill the CDBG program requirements, and gather input---on the project submitted by FHDC to determine whether the project fits within the City's development needs. A copy of sections of the application pertaining to the project description and budget are attached. The full application is available for review at the Community Development Department front desk. DISCUSSION: The proposed project has a total estimated cost of$I,300,000. FHDC has identified sources-private foundations, contributions, and small loans-to fund $700,000 of the project. The grant application requests $600~000 from the State to fund the remainder of the project. The City will provide FHDC with the standing necessary to receive CDBG funding for the grant application. CDBG funding guidelines limit the amount of the grant that can be used for grant administration to $15,000. CDBG grant guidelines state that funds cannot be used to pay existing staff members to administer the grant, and -hiring a part-time staff member to administer the grant would not be cost-effective. Should Council approve the application, it is staff s intent to have the Mid- Willamette Valley Council of Governments (MWVCOG) administer the grant, and ensure that grant requirements are met. MWVCOG currently provides this service for smaller cities in the area, and contracting out to the MWVCOG is the most effective use of these limited funds. FINANCIAL IMPACT: The project requires no additional funding from the City. Staff Report re CDBG Public Hearing November 26,2001 I Page 2 of2 llA Part E Project Information: I. Backeround/Need. Briefly identify the problem(s) you are trying to solve and their effects on current residents of your jurisdiction or the project area. The answer should indicate how the project is in the public interest. The City of Woodburn is experiencing considerable population growth, especially among persons of Hispanic descent. The City's population of 20,000 is now more than 50% Hispanic. A substantial percentage of these individuals are employed as year-round or seasonal laborers in the agricultural sector. In I 998,-the Oregon Employment Department estimated approximately 8600 agricultural workers were living in the Woodburn area. Sixty-three percent of the population of Woodburn is categorized as low to moderate income, but among the Hispanic population, the percentage is even higher. One recent survey of families living in Nuevo Amanecer, a housing project established for farmworker families, indicated that 81 % of the families had a yearly income of less than $24,000. Many farmworkers make less than minimum wage and very few have employee health benefits. Hispanic adults, in particular those who are fIrst generation residents, frequently have poor English skills and limited education. These limitations hinder them in complex business transactions, such as buying a home, purchasing an automobile, or applying for credit. They may not know how to file income tax reports and are subject to unscrupulous lenders. Though hardworking, it is very difficult for these individuals to improve their job prospects, purchase a home, improve their standard of living, assist their children with school lessons, or help their children with college expenses. While a substantial percentage of the Hispanic residents of Woodburn are U.S. citizens, many others are eligible for citizenship, but do not have the knowledge to apply and therefore do not have some of the legal protections of U.S. citizens or the benefits that accrue to citizens. Assistance with preparation for citizenship is requisite. Computer knowledge is becoming essential to success, yet few low-income families have access to computers or training in how computers might be used to improve their lives. A survey of families living at Nuevo Amanecer indicates that none own a computer. This 'digital divide' prevents many from moving on to better employment. Sixty-one percent of students in the Woodburn School district are Hispanic. Many of these children begin school inadequately prepared to compete with non-Hispanic stUdents. They frequently have limited English skills and no exposure to computers or similar technologies. Their parents are sometimes illiterate and are unable to offer their children needed assistance with school work. Results include a greater need for costly remedial education, a higher school drop-out rate, and an increased incidence of juvenile delinquency. Children who drop out of school are often poorly prepared to compete for better paying jobs. With limited income, few parents can afford good quality day care or early education programs for their children. Farmworker families are often forced to bring their children with them into unsafe settings in the fields or leave their children with older children or otherwise unqualified caregivers. Sometimes children are left alone without supervision. None of these options have the same developmental, educational, or social benefits of organized, certifIed childcare. A local Head Start program, operated by the Oregon Child Development Coalition, is located in a facility that is inadequate in size to take more than a few of all the children who are eligible. The large number oflow-income Hispanic residents, reduced revenues from property taxes, a low rate Application (RevtHdSeptember2001) Page 3 of9 IIA of home ownership, and the special educational, health, and legal needs of this population have presented the City of Woodburn with specific challenges. The City is working closely with several Hispanic organizations and individuals to identify their needs and to help ensure a better quality of life for the large and growing number of Hispanic residents. 2. Proposed Solution. Summarize the project that you expect to carry out. The project to address the identified problems is the construction of a 9,000 square foot Education Center on the grounds of the Nuevo Amanecer housing complex. Programs offered in the facility will be available to farmworkers living in the Woodburn area, as well as to residents of Nuevo Amanecer. The facility will contain two large classrooms for children's programs and two for adult programs as well as a computer center accessible to both youngsters and adults. One large classroom will serve up to forty children in the Head Start Program. The second classroom will be used to provide day care services for as many as fifty children. Oregon Child Development Coalition, a non-profit organization, will offer both the Head Start and day care programs. Revenues sufficient to cover utilities, maintenance and repair costs for the facility, some program costs, and debt service will come from Oregon Child Development Coalition. Two large classrooms will serve adult farmworkers. These classrooms can be combined to serve a total of one hundred persons. Classes on citizenship preparation, development of leadership skills, English (spoken and written), fmancial management, income tax preparation, home ownership counseling, and credit application will be offered. A computer laboratory with at least fifteen computers will be accessible to both youngsters and adults. Adults will learn basic computer skills, including use of some. software programs, and will learn how to use the Internet to conduct job searches and gain job skills. Additionally, adults will be encouraged to use computers to take college classes now available via Internet. Both youngsters and adults will utiliie the computer lab to complete homework assignments. A large commercial kitchen will be used to prepare meals for children's programs and for cultural events and meetings. Vocational and home economic programs may also be offered in the kitchen. The facility contains both indoor and outdoor play areas. Cultural events, craft demonstration, and other events open to the general community will utilize both the indoor and outdoor areas. Interior hallways will be utilized to display local crafts. Some events will be open to the general public. A sharing of cultural arts, performances, histories, and values will help inform other Woodburn residents who may have little knowledge of Hispanic cultures. Over the course of a year, the program will serve approximately 150 children and 500 adults. Cultural events, craft demonstrations, art displays, meetings, and ceremonial events will serve an estimated 1000 to 1500 additional persons. 3. Applicant Capacity. Identify who will be administering the project and their experience with similar projects. Describe the selection process that will be used to procure personal services from independent contractors (e.g., professional registered engineersllicensed architects). The project will be administered by the Farmworkers Housing Development Corporation (FHDC). The grant will be administered by the Mid- Willamette Valley Council of Governments. FHDC is well known in the Northwest for its affordable housing programs. FHDC has constructed and manages the large Nuevo Amanecer housing complex with approximately 450 occupants and the smaller Esperanza Courts. FHDC has recently begun work on construction of six homes that will be sold to Application (Reviled September 2001) Page 4 of9 Farmworker families upon their completion. FHDC's work in housing development has received llA numerous awards and recognition for design and affordability. FHDC -has also received-recognition for the development of leadership among farmworkers and for its Nuevo Amanecer Resident Association. The Resident Association is regarded as a model by other housing developers. FHDC has been featured in a number of newspaper and magazine articles. It has received the PGEf[ ACS Community Treasure Award in 1995 and 1996; the 1994 Affordable Housing Certificate of Merit; the 1994 Governor's Economic Development Award; the 1995 Grass Roots Victory Award; the Maxwell Awards of Excellence Honorable Mention in 1995; and the Nordstrom Award for Cultural Diversity in 1996. FHDC has continued close relationships with a number of local and regional agencies, including Oregon Child Development Coalition, Oregon Legal Services, Salud Medical Center, and the Oregon Law Center, as well as continued support from the Meyer Memorial Trust and several other granting agencies. FHDC has thus far raised almost $600,000 of the total project costs through a combination of grants, loans, and community contributions. Architectural design/construction monitoring will be completed by Grant administration will be conducted by the Mid- Willamette Valley Council of Governments (MWVCOG). MWVCOG is an ORS 190 and is exempt from competitive procurement requirements. 4.0wnershio Whatjurisdiction(s) will own, operate and/or maintain the project when it is complete? Own: Farmworkers Housing Development Corporation Operate: Farmworkers Housing Development Corporation Maintain: Farmworkers Housing Development Corporation Part F Land Use Information: ~ ~ ,- , . ' -~ ~ - "- ~ ~'" fj",)r;:-Y'f~nIYikj " ( ,Ynl'flto;r,. ,in;, :-;.,l tt,)!' E H)~ l-vitl'~' t t!\''iObi~,' .;;O-af ~h'~~1'';ri'>~ {(jt~~~i~.lt'!.rv(')rl~t}t !~t~.I~~~t~(Ul~ rOr ~~~~~ fl~i.lr.;;"i~'.~ ~ (H"'t:j(~U~.t:lt)~) S.Consistency with Comprehensive T .and Use Plan Location of project service area (i.e. the area where the primary beneficiaries are located): Check all that apply. .XJnside city limits of Woodburn. Oregon _ Outside city limits, but within the urban growth boundary of the city of - _Unincorpornted area of the county approved for urban development under Goal 11 : Public Facilities and Services of the State Planning Goal in compliance with the applicable requirements of Chapter 660 of the Oregon Administrative Rules, Division 11 (public Facilities Planning), Division 4 (Goal 2 Exception Process) and Division 22 (Unincorporated Communities). For projects outside of urban erowth boundaries only: Name of the area in the county=s Comprehensive Plan: Unincorporated Area type: _AF.xception~ area allowed by State Planning Goals _ Urban Unincorporated Community _ Rural Community Rural Service Center l Project is consistent with land-use plan _ Land-use plan consistency does not apply. Explain: Application (~6eplember2001) Page 5 of9 llA Part G Project Cost Summary: l'li~'!fI~)~:jr;.-'in~';i~'~~ ;);: ~ji;::~it :. ;r~t:llt~..t' :)ijiY')(~J:,;~,i~ll: :~":.[!J' ~i <);- r ), t.". ,,', t ,,~... ~ .' i ~! ? 'l~ >j,:(,... ~ t-:'''t~-rf~'''':'.f;",.,-,'lY:::i;rJ.;...-h:y'.< cr.,:) -'''':) 1f.)",y;,<~'!',~'Z'-1l'.:\i':!.: '. . l!.~f.~1W.=J.!""L~'J!~.~~I='!. ,l!!.A!mh.~ .~I... ....'-!'JL=;.~~.!:m:!:E_ic_.;._.'of .t': Project Activities Land Acquisition, Clearance, Disposition Water System Improvements Sanitary Sewer Improvements Storm Drainage Improvements Public Facilities - Streets, Roads, Sidewalks Public Facilities - Bridges Public Facilities - Telecommunications Public Facilities - Ports Public Facilities - Railroads Public Facilities - Airports Studies/Plans Marketing Analysis Work Force Training Public/Community Facilities (Buildings) Relocation Assistance Legal Engineering/Architectural Site Assessments Cleanup Underground Storage Tanks Construction Contingencies Administration Other (specify) Total Project Funds Requested Other Public Funds. Benefited Propertiesl Private Investments" Pro'ect Total $600,000 o $700,000 $1,300,000 Other Public Funds. Loan Terms Source Amount (Years and Interest Rate) Not available 0 0 Total Other Public Funds Private Funds.. Activity Source Amount Public Infrastructure Private Infrastructure (Access Roads, Sewer Collectors, etc.) Buildings Private Foundations, Contributions, Small Loans $700,000 Other (specify) Total Private Investment $700,000 Application (ReviHd September 20(1) Page 6 of9 Farmworer Housing De:v-e1opment Corporation (FHDC) CIPRIANO FERREL EDUCATION CENTER -.......1. IIA PROPOSED BUDGET PROPOSED DEVELOPMENT BUDGET Characteristics of Proposed Facility Area of lot size Area of the Center Development Costs (Soft Costs) Site acquisition (FHDC will donate the land) Appraisal Environmental Fundraising Costs Legal Property Survey Architectural & Engineering Builder's risk insurance Construction period interest Construction loan fee @ 1 % Marketing Developer's overhead and fees Development Contingency @ 5% Total Soft Cost Construction Cost (Hard Costs) Building Pennitslfees System Development Charges (SOC's) Construction Costs$90/sq.ft. @ 8,564sq.ft. Construction contingency (5% of construction co Furnishing Playground equipment Total Hard Cost Total Soft Cost Total Hard Cost Operating Reserve Total Development & Construction Cost 0.75 acre 8,564 Sq_Ft 100,000.00 1,500.00 1,800.00 30,000.00 5,000.00 2,500.00 100,000.00 2,750.00 2,625.00 1,500.00 5,000.00 75,000.00 16,133.75 343,808.75 16,000.00 21,000.00 nO,760.00 33,750.00 100,000.00 25,000.00 941,510.00 343,808.75 941,510.00 25,000.00 FUNDING SOURCE 1,310,318.75 GrantslDonations Investment Related Programs Adrian Dominican Sisters Sisters of Loretta Sinsinawa Sisters Dubuque Bank & Trust Edwards Foundation TOTAL FUNDS 1,110,318.75 20,000.00 50,000.00 30,000.00 3.5%/5 50,000.00 3%/10 50,000.00 3%/3 3%/10 1,310.318.76 3%/10 lIB November 26, 2001 TO: FROM: SUBJECT: Honorable Mayor and City Council A~ John C. Brown, City Administrator-<f"'/ Cable Television Franchise Agreement Recommendation: It is recommended the City Council conduct a public hearing, and direct staff to prepare the appropriate legal document to approve renewal of a franchise agreement with North Willamette Telecom, Inc. Background: In 1992 the City awarded a ten-year franchise to Northland Cable Television. In 1998, Northland transferred the franchise to North Willamette Telecom (Direct Link). That franchise expires in October 2002. In July 2000, Direct Link requested a franchise renewal and indicated its intention to sell the cable system. That sale was not completed. In September 2000 the City retained Dr. Stephen Jolin, a cable television consultant, to assist with franchise renewal negotiations and transfer of the franchise. Although the proposed sale of the cable system had fallen through, Dr. Jolin continued to assist the City with preparation for franchise renewal in anticipation of the October 2002 expiration of the existing franchise. Cable television regulation is largely a matter of Federal jurisdiction, as exercised by the Federal Communications Commission (FCC). Local franchise authority has been curtailed by legislation and case law. The latitude cities once ha~ in regulating matters such as programming and rates has been greatly restricted. The processes for franchise renewals and transfers are dictated by the FCC, which regulates the timing in which such actions may occur, the information that may be considered, and the justifications necessaiy of local jurisdictions to support services or commitments requested of cable television grantees. To prepare for franchise negotiations, Dr. Jolin conducted community ascertainment sessions, a technical review of the existing cable system, a review of Direct Link's finances as they relate to the Woodburn franchise, and worked with City staff to conduct a community-wide customer service survey. Ascertainment sessions took place in April 2001, with the business community, local agencies, and the community at large. Sessions were televised. Session participants Honorable Mayor and City Council November 26,2001 Page 2. LIB and viewers were asked to complete detailed questionnaires. Respondents indicated strong interest in high-speed Internet access, public, educational and governmental (PEG) programming, institutional network (I-Net) capability, and enhanced customer service. The community wide survey, which was distributed in water billings in May 2001, netted 752 responses. The survey results reflected needs and concerns similar to those identified in the ascertainment sessions. Technical evaluations were completed in June 2001 and identified a well-maintained system for it's age, but one which lacks the capability to provide two-way data services, such as high speed internet, and which does not provide an institutional network. The financial review was conducted in August 2001 and identified no material irregularities. The results of these efforts, a proposal provided by the Woodburn Community Access Television (WCA T), and comments and concerns raised by City Councilors, formed the basis for the City's proposed franchise agreement language. That proposed language was the subject of franchise negotiations. In May 2001, Direct Link sought the City's approval of a transfer of the cable system serving Woodburn to Willamette Broadband LLC (Willamette). Dr. Jolin reviewed the application for transfer and supporting material. He found that, although Willamette had no track record providing cable service, from a regulatory perspective the transfer request met Federal requirements. On August 27, 2001, the City Council granted conditional approval of the transfer to Willamette. Among those conditions: the completion of a mutually agreeable franchise renewal with Direct Link, within 90 days. Discussion: Since the Council's August 27th meeting, staff and Dr. Jolin held telephone conferences and met with Direct Link and Willamette representatives several times to negotiate a mutually agreeable franchise renewal. Although the franchise is between the City and Direct Link, Willamette took the lead in negotiating the Cable position, as it will be responsible for fuUilling franchise obligations following its purchase of the system. The purchase transaction is scheduled for completion in December 2001. Enclosed with your agenda packages is the /I final" draft of the franchise agreement negotiated with Direct Link and Willamette representatives. The document was developed consistent with Federal regulations and applicable case law. In developing the franchise agreement, staff sought to consolidate the City's cable regulations, previously expressed in a cable television ordinance arid a franchise agreement, in one document. While the enclosed document is more detailed and lengthier than earlier franchise agreements, it should prove to be more user-friendly than two separate but related documents. Major provisions of the agreement are summarized as follows: llB Honorable Mayor and Oty Council November 26, 2001 Page 3. . A ten-year, non-exclusive franchise, effective January 2,2002. This period will afford the grantee ample security to insure a return on its investment in system upgrade, and I-Net and PEG support. . Franchise fees will be five percent of the grantee's gross revenues, adjusted for bad debt. In addition, the grantee will be required to pay for all necessary city permits. . The system will be upgraded from the current 440 Megahertz one-way network to a 550 Megahertz broadband system with bi-directional capability, by January 2004. Upgrade will replace a predominantly coaxial network with a hybrid fiber/ coaxial network. The system currently has a capacity of 63 video channels. The upgraded system will have a minimum capacity of 78 video channels and will have the ability to provide pay-per-view and other services without a site visit, and permit the delivery of services such as high-speed Internet and Video- on-demand. A previous provision, requiring a head-end in Woodburn had been eliminated. Fiber optic technology eliminates any service quality concerns the head-end requirement may have been intended to address. . The grantee is required to provide service to all residences within current or future city limits, at standard connection charges. Where the density of residences does not equal 30 residences per strand mile, the grantee is required to provide service, upon request, and pursuant to a cost sharing formula with those residents desiring service. Under-grounding the system is required when expanding into new areas and subdivisions. Under-grounding in existing areas will be provided where possible. . The grantee will be- required to meet all FCC technical standards. . Programming. As indicated previously, the City's ability to regulate programming is limited by Federal regulations and case law. With respect to programming, the City's authority is limited to regulating broad categories of service. As provided in the franchise, these include: News and information Sports General Entertainment, including movies, music, and comedy Arts, Culture, performing arts Children/Family Science/ Documentary Weather Information Governmental and Educational Programming Foreign Language/Ethnic programming The grantee cannot delete any of these categories without first obtaining City approval. lIB Honorable Mayor and City Council November 26, 2001 Page 4. . Support for Public Access. This franchise provides strong support for public, educational, and government access (PEG). The grantee will provide up to four channels for PEG access, and increase PEG support to include: A $40,000 one-time payment to upgrade existing studio equipment, and to keep pace with changes in technology during the franchise period. This is in addition to the annual per-subscriber fee that is provided for equipment replacement. An increase of the annual per-subscriber payment from $1.00 per subscriber to $1.25 per subscriber. An increase from $1,300 to $1,500 per month in payments to WCA T for production coordination and assistance. Installation of return lines from City Hall, the High School, the Fire District, French Prairie Middle School, the Woodburn Public Library, the proposed Community Center, and a new future Police Station or City Hall building, to the WCA T studio. This will provide for live transmissions from those locations. This work will be done in conjunction with system upgrade. Provision of additional space at the WCA T studios, and construction to segregate a control room from studio space. Provision of funding which may be used flexibly, to support the costs of interconnection with local access programmers in adjacent communities served by the grantee or other systems, or to support costs associated with the construction of an institutional network (I-Net). Agreement to negotiate the provision of a local news operation. . Institutional Network. In addition to the residential network capacity of the system, the grantee will construct, upon the City's request, an institutional network. This will consist of up to two pair of fiber, and the electronics, labor and services necessary to connect a set number of non-commercial, governmental, educational, and non-profit users. The cost of the I-Net construction will be supported by users, but offset by a credit of $50,000 that may be used flexibly, at the City's discretion, for I-Net construction or I-Net and/ or PEG interconnections. Users will have up to two years to pay for I-Net construction once that system is built. If payment is not made, costs shall be credited against franchise fees. The I-Net will be used for: Transmitting GIS and other data between City departments and to and from the public Linking libraries and providing public access to remote library data bases Transmitting live and stored instructional materials to schools and other agencies Honorable Mayor and City Council ~overnber26,2001 Page 5. llB Providing kiosks for public access to governmental information Providing video conferencing to and among municipal and educational locations for uses such as distance learning Providing for remote permitting, remote arraignment, and voice traffic from the city to other agencies Other non-commercial uses as they are developed. . The City reserves the right to regulate rates, to the extent permitted by Federal Law. This is currently limited to the basic tier of service. . Due process is specified for correcting deficiencies in franchise compliance, and liquidated damages are specified for a variety of violations. These provide adequate sanctions for violations, and a clear and fair due process for determining and correcting violations and imposing sanctions. . Customer service standards, at least as strict as FCC standards are established. These include office location and hours, in-person and telephone coverage, service call response standards, complaint resolution, and credits for outages or other service disruptions. In addition to these provisions, the agreement also provides for: A performance bond in an amount of $300,000, to be maintained for the life of the franchise, to assure that each condition of the franchise is met. This may be reduced, at the Council's discretion, after a period of five (5) years, to $150,000 provided the grantee has acted in good faith and in accordance with the franchise agreement. A construction bond of $100,000, to be maintained during the entire period of system upgrade, to assure that construction of the system upgrade is completed pursuant to franchise conditions. A security bond of $25,000, to secure the payment of franchise other fees owed, to secure any other performance promised in the franchise agreement, or to pay any other taxes, fees, or liens owed to the City. Indemnification and defense of the City, including legal fees, from damages or from any suit arising from the exercise of the franchise. As well, the agreement provides for a variety of other provision, which address but are not limited to: The rights reserved to the City, including the right to purchase the cable system under certain circumstances, the right to eminent domain, the right to perform franchise fee review and audits, the right to inspect construction, and the right to require the removal of grantees property from public rights-of-way. Honorable Mayor and City Council ~overnber26,2001 Page 6. lIB The protection of individual rights, including the right to privacy, protection from discrimination, requirements for permission to access private property, and provision of service to multiple dwelling units. Processes and procedures for revocation of the franchise agreement. Grantee record retention and reporting requirements; and Miscellaneous housekeeping provisions. The franchise renewal, as negotiated, addresses the Council's goals for a technologically current cable system. It addresses the community's desire for PEG access, I-Net capability, and enhanced customer service. It provides generous support to public access programming, and for the sharing of data and video communication between institutional users. It provides a complete system upgrade within a reasonable period of time, at a cost that should continue to be affordable to subscribers. The agreement clearly defines the rights and responsibilities of both parties, and retains that degree of local regulatory authority conveyed by the FCC. The document meets with the approval of negotiators for the City and the Cable company, and that portion of the agreement related to PEG support meets with the approval of WCAT. For these reasons, your approval is respectfully recommended. Representatives of Direct Link and Willamette Broadband, and Dr. Jolin will attend the November 26, 2001 hearing, and will be available with me to answer any technical questions you may have. Financial Impact: Based on current payments, the franchise will provide the City approximately $90,000 in fees in its first year. That amount will increase with subscriber-ship and the provision of expanded services, and Internet services once the system upgrade is competed. In addition, the franchise provides one-time payments of $40,000 for PEG support and $50,000 for I-Net construction. It also provides monthly payments of $1,500 and annual payments equal to $1.25 per subscriber to WCA T, for equipment maintenance, replacement, and production coordination services. JCB Attachments cc: Mr. Peter Luscombe, Willamette Broadband Ms. Sandra Coleman, Direct Link Dr. Stephen Jolin, Mum-Com CABLE TELEVISION FRANCHISE AGREEMENT between CITY OF WOODBURN, OREGON and DirectLink of Oregon, Inc. Final Draft, November 14, 2001 City of Woodburn Cable Franchise TABLE OF CONTENTS 1. PURPOSE AND INTENT....... ........ ....... ....... ............................................... 1 1.1 Intent. .......... ...... ...... ........ ............ ........ ................... ................... ...... .....1 1.2 Purpose... ... . ....... . . .... ...... . ..... ... . ... . ..... . ......... . . . .... .... .... . . . . . ....... ... .... . . .. .... 1 2. DEFINITIONS.... ..... ......... ..... ........ ........ ...... ....... ...... ................ ........ ...... ... 2 3. GRA.NT OF FRA.NCHISE .... ..... ........ ....... ....... ...... ...... ... .............. ........ ........ 9 3. 1 Gran t .................................................................................................... 9 3.1.A Grant of Franchise............................. .................................... .................9 3. 1. B Police Power and Laws............................................................................ 9 3.1. C Compliance by Affiliates.......................................................................... 9 3.1.D No Rights by Implication......................................................................... 9 3.2 Use of Streets and Public Ways..................................................... ....... 10 3.3 Duration and Effective Date of Franchise............ ............... ....... ........... 10 3.4 Franchise Not Exclusive.......................................................................11 3.5 Franchise Non-Transferable.. ......... .......... ........... ............... ........ ..........11 3.5.A No Transfer Without Consent................................................................ 11 3.5.B Notification........................................................................................... 11 3.5.C Request for Approval............................................................................. 12 3.5.D Cable Act Requirements Apply.............................................................. 12 3.5.E Filing Evidence of Transfer.................................................................... 12 3.5.F Grantor Inquiry into Qualifications ....................................................... 12 3.5.G Approval No Waiver............................................................................... 12 3.5. H Exceptions.. . . .. .. .. . .. .. .. .. .. .. .. . .. .. . .. .. .. .. .. . .. .. . .. .. .. . .. .. . .. .. .. .. . . . .. .. .. . . .. . .. .. .. .. ... 13 3.6 Franchise Acceptance.......................................................................... 13 3.6.A Filing. .............. ...... ..... .................. ........... ............................... ....... ...... .13 3.6.B Failure to File....................................................................................... 13 4. CONSTRUCTION AND SERVICE REQUIREMENTS ................................... 14 4.1 General ...... ....... ...... ....... ..... ... .......... ........ ............ ............... ........ ........ 14 4.2 System Upgrade and Construction Schedule ........................................ 14 4.2.A System Upgrade Required.......................................... ............... .......... ..14 4.2.B Construction Plan and Schedule ...........................................................14 4.3 Right of Inspection of Construction ......................................................15 November 21,2001/11:17 AM TABLE OF CONTENTS / Page i City of Woodburn Cable Franchise 4.4 Provision of Residential Service............................................................ 15 4.4.A In General ............................................ ................................................15 4.4.B Low-density Areas................................................................................ .16 4.4.C Commercial Rates................................................................................. 17 4.4.D Newly Annexed Areas............................................................................ 17 4.4.E New Subdivisions............................................................................ ......18 4.4.F 18 4.5 Erection of Poles. . .... . .... . . . .. ... .. . . . .. ... .. . . . .. ... .. . . .. . .. .. . . .. . ..... . . . .. .. . . . . .. . .. . . . ... 18 4.6 Trimming of Trees or Other Vegetation................................................. 18 4.7 Repair and Restoration of Streets, Public Ways and Grounds ...............18 4.8 Construction Codes ............................................................................. 19 4.9 Reservations of Street Rights ............................................................... 19 4.10 Street Vacation and Abandonment. ...... .......... ............ ............... ...........20 4.11 Movement of Facilities......................................................................... 20 4.12 Undergrounding ..... .......... ....... ............ ......... ...... ........... ........ .............. 20 4.12.A Underground Requirement ...... ...... ............ .................... ...................... .20 4.12.B Use of Conduit...... ............................ .............................. ..................... .21 4.13 Location Maps..................................................................................... 21 4.14 Emergency. . ......... .............. . ........ ......... . ..... ... . ....... . . ..... .... . . ..... . . .... .. . ... 21 5. SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS ........................22 5.1 System Configuration........... ......... ...... ......... ......... .......... ......... ....... ....22 5.2 Channel Capacity .............. ........ ........ ............ ...... .................... ............22 5.3 Emergency Alert Capability ...................................:..............................22 5.4 Standby Power.. ............. ............. ....... ........ ........... ......................... ......22 5.5 Parental Control Lock .... ......... .................. ........ ........... ........................22 5.6 Technical Standards ..... ......... ......... ........ ..... .... ......... .... ....... ........ ........23 5.7 Performance Testing .... ......... ......... ......... .... .... ........ ...... ...... ........ .........23 5.7.A Schedules....... ............. ............. ...... ............ .......................... ............... .23 5.7. B Reporting.. . .. . .. .. .. .. .. . .. .. . .. .. . .. .. . .. .. .. . . .. .. . .. .. . .. . .. . .. .. . .. .. .. . .. .. . .. .. . .. .. . .. . .. . .. .. . 23 5.7. C Inspection............................................................................................. 23 5.7.D FCC Compliance .......... ........................................................................ .23 5.7.E Remedy for Non-Compliance..... ................................................... .........24 6. SERVICES AND PROGRA.MMING. ....... ........ ....... ........ ....... ............. .......... 25 NovemberZ1, ZOO 1 /11:17 AM TABLE OF CONTENTS/ Page ii City of Woodburn Cable Franchise 6.1 Programming Categories and Number of Services .................................25 6.2 Changes in Video Programming Services.............................................. 25 6.3 Leased Channel Service ....................................................................... 25 6.4 Community Access and Local Programrning ......................................... 26 6.4.A Management and Control of Access Channels .......................................26 6.4.8 Channel Capacity and Use............................................... ........ ........... ..26 6.4.C Financial Support for PEG Access ........... ..... ................. ........... ........ .....28 6.4.D Studio Improvement... .......... ................................................ ........ ........ 29 6.4.E PEG Support Not Franchise Fees ..........................................................29 6.4. F Technical Quality.................................................................................. 30 6.4.G Change in Technology.. .......................... .................... ........................ ...30 6.4.H Local News Operation........................................................................... 30 6.4.1 Non-Commercial Use ..... .............................. ....... ..................................31 6.4.J Interconnection of PEG Access.............................................................. 31 6.5 Institutional Network ........ ....... .......... ......... ....... .......... ......... ........ .......32 6.5.A Obligation to Construct........................................................................ .32 6.5.B I-Net Design, Functionality and Management........................................ 32 6.5.C Cost and Method of Payment ................................................................33 6.5.0 Process for Integrating I-Net with System Upgrade and Future Construction......................................................................................... 33 6.5.E Interconnection of I-Net........................................................................ 35 6.5.F Limits on Use........................................... ............................................. 35 6.5.G No Charge for I-Net Use ...................................................................... ..37 6.6 Credit Against Incremental Costs ........ .......... ................. ........ ........ ......37 7. FRANCHISE REGULATION AND CUSTOMER SERVICE STANDARDS........ 38 7.1 Intent..................................................................:............................... 38 7.2 Areas of Regulation and Administration............................................... 38 7.3 Rate Regulation................................................................................... 38 7.3.A Rate Regulation Right Reserved ............................................................38 7.3.8 Rate Discrimination Prohibited ............................................................. 38 7.3.C Provisions Subject to the Cable Act.......................................................39 7.4 Remedies for Franchise Violations........................................................ 39 7.4.A Notification........................................................................................... 39 7.4. B Plan for Cure........................................................................................ 40 7.4.C Imposition of Liquidated Damages ........... ............ ................ ........ .........40 7.4.0 Contest of Violation.............. ..... .............................~........ ........ ....... ...... .40 November 21,2001/11:17 AM TABLE OF CONTENTS I Page iit City of Woodburn Cable Franchise 7.4.E Opportunity to Be Heard................................................ .......... ........... ..41 7.4.F Reduction of Liquidated Damages .........................................................41 7.4. G Nature of Remedies............................. ............. ..... ....... ..... ............. ....... 41 7.5 LIQUIDATED DAMAGES.................. ...................................... ......... ..... 42 7.5.A Amounts: ....... ........ ...... ...................................... ................................. ..42 7.5. B Collection of Liquidated Damages. ........................................................42 7.5. C Recourse to Securities .......................................................................... 43 7.6 Remedies Not Exclusive....................................................................... 43 7.7 Customer Service & Consumer Protection Standards ...........................43 7.7.A Customer Service and Telephone Responsiveness................................. 43 7.7. B Service and Repair Calls....................................................................... 44 7.7. C Disconnection....................................................................................... 45 7.7.0 Credits Upon Outage.. ................... ....... ..... ............. ............ ............. .....46 7.7.E Downgrade Charges.............................................................................. 46 7.7. F Billing Information Required................................................................. 46 7.7. G Information to Subscribers................................................................... 46 7.7.H Complaint Acknowledgment..... .............. ..... .......... ....... .......... ...............47 7.7.1 Complaint Resolution........................................................................... 48 8. GENERAL FINANCIAL AND INSURANCE PROVISIONS ............................. 49 8.1 Compensation..................................................................................... 49 8.1.A Franchise Fee..................................................................................... ..49 8.1.B Payment of Franchise Fees................................................................. ..49 8.1. C Franchise Fees on Bundled Services..................................................... 50 8.2 Faithful Performance Bond.................................................................. 50 8.2.A Posting................................................................................................. 50 8.2.B Payment of Premiums.......................................:................................... 50 8.2.C Notice of Termination............................................................................ 51 8.3 Construction Bond .............................................................................. 51 8.4 Security Fund.. ........ ........ ........ ........ ....... .......... ........ ............ .......... ..... 51 8.5 Damages and Defense...... ......... ....... ........ ........ ......... .... ... ..... .......... .....52 8.5.A General Indemnification........................................................................ 52 8.5.B Defense of the Franchise....................................................................... 52 8.6 Liability Insurance and Indemnification .................:.............................5.3 8.6.A Insurance Coverage.............................................................................. 53 8.6.B Minimums and Limits........................................................................... 53 8.6.C Additional Insureds.............................................................................. 53 November 21,2001/11:17 AM TABLE OF CONTENTS I Page iv City of Woodburn Cable Franchise 8.6.D Cancellation and Replacement..................................................... .........54 8.6.E Certificate of Insurance....................... ..................................................54 8.6.F Grantor Held Harmless......................................................................... 54 9. RIGHTS RESERVED TO GRA.NTOR .........................................................55 9.1 Grantor's Purchase of the System........................................................ 55 9.1.A Continuation of Operations / Purchase at Fair Market Value ................55 9.1.B Transfer of System to Others................................................................. 56 9.1.C Cable Act Requirements....... ................................................................56 9.2 Eminen t Domain ................................................................................. 56 9.3 Right to Perform Franchise Fee Audit or Review................................... 56 9 A Right of Inspection of Construction...................................................... 57 9. 5 Intervention.... . ....... . . ........ ......... . ... .... . ....... ....... . . . .. ... .. . . . ... .. .. . ... . ... ...... . 57 9.6 Right to Require Removal of Property ................................................... 57 10. RIGHTS OF INDMDUALS PROTECTED .................................................. 58 10.1 Discriminatory Practices Prohibited..................................................... 58 10. LA Grantee Shall Not Unlawfully Discriminate ...........................................58 10. 1. B Services to Disabled.............................................................................. 58 10. 1. C Permitted Discounts............................................................................. 58 10.2 Privacy and Other Rights..................................................................... 58 10.3 Permission of Property Owner Required................................................ 59 lOA Multiple Dwelling Units... ......... ................ ....... .............. ....... ....... .........59 11. TERMINATION AND EXPIRA.TION ...........................................................60 11.1 Revocation...........................................................:............................... 60 11.1.A General................................................................................................. 60 11.1.B Conditions of Revocation....................................................................... 60 11. 1. C Due Process.......................................................................................... 60 11. 2 Receivership ........................................................................................ 61 11.3 Expiration......... . ........ . ..... ... . ........ . .. .... . ...... . ....... . . ......... . . ..... ... . ....... .... 61 11.4 Continuity of Service Mandatory.......................................................... 61 12. OPERA.TIOK AND MAINTENANCE ...........................................................63 12. 1 Books and Records.............................................................................. 63 12.2 Communications with Regulatory Agencies ....... ............ ......... ........ ...... 63 November 21,2001/11:17 AM TABLE OF CONTENTS / Page v City of Woodburn Cable Franchise 12.3 Reports. . .... .. . .. . . . ... .. . . ..... . . . . ... . . . . ... . ... . .. .. .. . . . . .. .. . .. . . . .. . . . .. .. .. .. . . . . .. .. . . .. .. .. . . 64 12.3.A Form of Reports............................... .....................................................64 12.3.B Annual Report............... ................................ .......................................65 12.3.C Additional Reports. ........ ..................................... .................... ..............65 12.4 Safety.................................................................................................. 66 12.4.A Safety Standards. ............. ...... .............................................................. 66 12.4.B Adherence to National Electric Safety Code.................... ....... .......... ...... 66 12.4.C Proper Maintenance of Equipment.... ..................... ..... ..... ............. ... ..... 66 13. MISCELLANEOUS PROVISIONS. ......... ....... .......... ....... .............. ....... ....... 67 13.1 Compliance with Laws ....... ......................................... .... ............... ...... 67 13.2 Severability.......................................................................................... 67 13.3 Captions. .... ..... . ... .... . ...... . . .... .. . ....... . . .. .... . .... .. . ....... . . ...... .... . ..... .. . . .. .. .. . . 67 13.4 No Recourse Against the Grantor......................................................... 67 13.5 N onenforcemen t by Gran tor... ........ . ....... ...... . .... ... . .......... . . .. ..... . ....... . '" 68 13.6 Force Majeure. ....... ........ ....... ......... ....... ....... ........ ........... ......... ....... .....68 13.7 Entire Agreement... ....... ........ ........... ..... ...... ........ .......... .......... ........ ..... 68 13.8 Consent............................................................................................... 68 13.9 Notices and Time Limit for Grantee Communications ...........................68 13. 10 Consistency of Franchise with Cable Act.............................................. 69 13. 11 Franchise Review................................................................................. 69 13.12 Grantee Responsibility for Costs of Franchise Compliance.................... 69 13.13 Notice.................................................................................................. 69 13.14 Grantor Rights Upon Termination........................;...............................70 13.15 No Waiver .......... ....... ........ ....... ......... ...... ....... .................... ............ ......70 EXHIBIT A: origination points ...... ........ ......... ......... .......... ....... ..... ....... ........ ... 71 EXHIBIT B: acceptance and Guarantee ...........................................................72 EXHIBIT C: price for work-incremental cost ................................................. 73 EXHIBIT D: I-Net sites for 2-way video, voice, data......................................... 75 November 21,2001/11:17 AM TABLE OF CONTENTS / Page vi City of Woodburn Cable Franchise 1. PURPOSE AND INTENT 1.1 Intent The City of Woodburn, Oregon (hereafter Grantor) is authorized to and by this Franchise agreement does grant to OirectLink of Oregon, Inc. (hereafter Grantee) a non-exclusive lO-year Franchise, revocable as provided herein, to construct, operate and maintain a cable communications system in the City, to provide Cable Service, related Internet services, and such other services as it must provide in order to satisfy its obligation to provide an Institutional Network. This Franchise does not authorize the provision of any service other than the services specified above; or in any way relieve the Grantee of any obligation to obtain any authorizations, licenses or Franchises to use the rights of way to provide other services, or to comply with any requirements with respect to the use of the rights of way for the provision of such services. 1.2 Purpose The purpose of this Franchise agreement is to create a binding, enforceable contract between Grantor and Grantee. November 21,2001/11:17 AM 1 - PURPOSE AND INTENT! Page 1 City of Woodburn Cable Franchise 2. DEFINITIONS For the purposes of this Franchise agreement, the following words, terms, phrases, and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. Words used in this Franchise which are not defined hereunder but defined in the Cable Communications Policy Act of 1984, as amended by the Cable Communications Policy Act of 1992 and the Telecommunications Act of 1996, (Cable Act), shall have the meaning specified in the Cable Act definition. 2.1 "Access" or "Community Access" or "Public, Educational and Government (PEG) Access" means the availability for use by various agencies, institutions, organizations, groups and individuals in the community, including the Grantor and its designees, of the Cable System to acquire, create, and distribute non- commercial Programming not under the Grantee's editorial control. 2.2 "Access Channel" or "Public, Educational or Government Access (PEG) Channel" means any channel or portion of a channel utilized for non-commercial programming, where any member of the general public or any organization may be a programmer, without charge by the Grantee, on a non-discriminatory basis. 2.2.A "Educational Access Channel" means any channel or portion of a channel available for educational programming by individuals or institutions. - 2.2.B "Government Access Channel" means any channel or portion of a channel available for programming by govemment agencies. 2.2.C "Public Access Channel" means any channel or portion of a channel where any member of the general public may be a programmer on a non-discriminatory basis. November 21, 2001 /11:17 AM 2 - DEFINITIONS / Page 2 City of Woodburn Cable Franchise 2.3 "Addressability" means the capability of the cable system by which the cable operator can add, drop or delete subscriber programming from a remote location, without the need for a site visit. 2.4 "Affiliate" means, when used in relation to any person, another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person. 2.5 "Basic Cable Service" means that tier of cable service which is required as a condition of access to all other video services and which includes but is not limited to a) the retransmission of local broadcast station signals, and b) public, educational and govemment access channels. 2.6 "Broadcast Signal" means a television or radio signal that is transmitted over-the-air to a wide geographic audience and is received by the cable communications system off the air, whether by microwave link, by satellite receiver, or by other means. 2.7 "Cable Act" means the federal Cable Communications Policy Act of 1984, as amended, including provisions of the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996. 2.8 "Cable Service" means a) the one-way transmission to subscribers of video programming or other programming service; and b) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. 2.9 "Cable Operator" any person or group of persons (a) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system November 21, 2001 /11:17 AM 2 - DEFINITIONS / Page 3 City of Woodburn Cable Franchise 2.10 "Cable System" or "System" shall have the meaning specified in the definition of "Cable System" in the Cable Act. In every case of its use in this Franchise, unless otherwise specified or made clear by the context, the term shall refer to the cable system constructed and operated by the Grantee in the City of Woodburn under this Franchise. 2.11 "Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the FCC by regulation). 2.12 "City" means the City of Woodburn, Oregon, a municipal corporation, and all of the territory within its corporate boundaries, as such may change from time to time. 2.13 "Converter" means a device for changing the frequency of a television signal. A set-top converter changes the frequency of signals to a suitable channel which the television receiver is able to tune. 2.14 "FCC" means the Federal Communications Commission. 2.15 Financial Partner means Avalon Equity Fund LP, a Delaware limited partnership; or Northwest Capital Partners II LP, A Washington limited partnership; or General Electric Capital Corporation, a Delaware corporation; or the successor of any of these companies. 2. .16 "Franchise~' or "Franchise Agreement" means the authorization granted by this document, or renewal thereof (including renewal of an authorization which has been granted subject to Section 626 of the Cable Act), issued by a franchising authority, whether such November 21,2001/11:17 AM 2 - DEFINITIONS / Page 4 City of Woodburn Cable Franchise authorization is designated as a Franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system. Unless otherwise specified or made clear by the context, "Franchise" shall designate this agreement, including all referenced material, adopted in the appropriate manner by the Grantor. 2.17 "Franchise Area" means all portions of the City of Woodburn, as now or hereafter constituted. 2.18 "Grantee" or "Grantor" means Directlink of Oregon, Inc., and the lawful successors, transferees, or assignees thereof. 2.19 "Grantor" means the City of Woodburn, a political subdivision of the State of Oregon. 2.20 "Gross Receipts" means Gross Revenues less any bad debts related to the operation of the System authorized by this Franchise. 2.21 "Gross Revenues" means all amounts earned by Grantee, any Affiliate of Grantee, or any entity that constitutes a "cable operator" under the Cable Act definition, in whatever form and from all sources, derived from the operation of Grantee's Cable System to provide Cable Service within the Franchise area. "Gross Revenues" shall include, without limitation, amounts for: all Cable Services, e.g., basic service, expanded basic service, premium and pay-per-view services, online services such as Intemet access containing programming content, e.g., @Home or RoadRunner (unless determined by Congress or the FCC not to be a Cable Service); advertising, commissions on sales of goods or services by third parties utilizing the Cable System to provide Cable Service in the Franchise Area (e.g., home shopping networks), installations, leasing, renting or selling of system equipment or leasing of capacity to provide Cable Service within the Franchise Area, and all other revenues derived from the operation of Grantee's Cable System to provide Cable Service within the Franchise Area, regardless of whether initially recorded to another entity and however characterized. Gross Revenues shall not be net of any expenses. November 21,2001/11:17 AM :2 - DEFINITIONS / Page 5 City of Woodburn Cable Franchise Any sales, excise or other taxes or fees levied directly upon subscribers by a local, state or federal government and collected by Grantee for direct pass- through to such government shall not be included in Gross Revenues. Franchise fees and copyright fees shall not be deducted from Gross Revenues. Gross Revenues shall not be double counted. Revenues of both Grantee and an Affiliate and that would otherwise constitute Gross Revenues of both Grantee and the Affiliate under this provision, shall be counted only once for purposes of deterrnining Gross Revenues. 2.22 "Institutional Service" means video, audio, data and other services provided to institutional subscribers on an individual application, private channel basis. These services may include, but are not limited to, two-way video, audio or digital signals among institutions, or between institutions and residential subscribers. 2.23 "Institutional Network" means that part of a Cable System designed principally for the provision of non- entertainment, non-profit and non-commercial programming, provided such use does not exceed the limitations agreed to in Section 6.5.F of this document. 2.24 "Institutional Subscriber" means a public agency, school or non-profit corporation receiving institutional services on the institutional subscriber network. 2.25 "Interconnection" means the linking of the Cable System or I-Net with another cable system, communications system or I-Net, or the linking of locations connected to portions of the Cable System outside the Franchise Area and those portions of the Cable System inside the Franchise Area, including technical, engineering, physical, financial, and other necessary components to accomplish, complete, and adequately maintain such linking, in a manner that permits the transmission and receiving of electronic or optical signals between the systems or locations. Such linking does not necessarily include the provision of end-user equipment for generating or receiving signals. November 21,2001/11:17 AM 2 - DEFINITIONS / Page 6 City of Woodburn Cable Franchise 2.26 "Leased Channel" means any channel or portion of a channel available for programming by persons or entities other than Grantee for a fee or charge. 2.27 "Pay Channel" or "Premium Channel" means a channel on which television signals are delivered to subscribers for a special fee or charge over and above the regular charges for standard subscriber service, on a per program, per channel, or other subscription basis. 2.28 "Person" means an individual, proprietorship, partnership, association, joint stock company, trust, corporation, or governmental entity. 2.29 "Programmer" means any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital or other storage methods or media, to subscribers, by means of the cable communications system. 2.30 "Programming" means the process of causing television programs or other patterns of signals in video, voice or data formats to be transmitted on the Cable System, and includes all programs or patterns of signals transmitted or capable of being transmitted, on the Cable System. 2.31 "Record" means written or graphic materials, however produced or reproduced, or any other tangible permanent record, including, without limitation, all letters, correspondence, memoranda, minutes, notes, summaries or accounts of telephone conversations, magnetic and laser disk files, opinions or reports of consultants or experts, invoices, billings, statements of accounts, studies, appraisals, analyses, contracts, agreements, charts, graphs, and photographs. 2.32 "Resident" means any individual person residing within the Franchise area. November 21,2001/11:17 AM 2 - DEFINITIONS / Page 7 City of Woodburn Cable Franchise 2.33 "Residential Service" means services delivered on the residential subscriber network. 2.34 "Residential Subscriber" means a subscriber who receives services on the Residential Network. 2.35 "Residential Network" means a Cable System designed principally for the delivery of Cable Services to individual dwelling units. 2.36 "School" means any public educational institution, including primary and secondary schools, community colleges, colleges, universities and extension centers, and all similarly situated private and parochial educational institutions which have received the appropriate accreditation from the State of Oregon and, where required, from other authorized accrediting agencies. 2.37 "Section" means any section, subsection or provision of this Franchise agreement, unless otherwise made clear by the context. 2.38 "Streets and Public Ways" means the surface of and the space above and below any public street, sidewalk, alley, or other public way of any type whatsoever, now or hereafter existing as such within the Franchise area, and any easements, rights of way or other similar means of access to the extent Grantor has the right to allow Grantee to use them. 2.39 "Subscriber" means any person who elects to subscribe to, for any purpose, a service provided by the Grantee by means of, or in connection with, the Cable System whether or not a fee is paid for such service. 2.40 "Year' means a full twelve-month calendar year, unless designated otherwise, such as a "fiscal year". November 21,2001/11:17 AM 2 - DEFINITIONS / Page 8 City of Woodburn Cable Franchise 3. GRANT OF FRANCHISE 3.1 Grant 3. LA Grant of Franchise Grantor hereby grants to the Grantee a non-exclusive, revocable Franchise for alO-year period from and after the effective date hereof, revocable as provided herein, to construct, operate and maintain a cable communications system, including an Institutional Network, within the Franchise area. This Franchise authorizes Grantee to engage in providing Cable Service, as that term is defmed in 47 U.S.C. Sec. 522(6) as amended, along with related Internet services, and to provide I-Net Capability for voice, video, and data as described in Section 6.5. This Franchise shall not be interpreted to prevent the Grantor from imposing lawful additional conditions, including additional compensation conditions for use of the Rights-Of-Way should Grantee provide service other than Cable Service. 3.1.B Police Power and Laws This Franchise is subject to the laws of the United States and the State of Oregon, and to the police powers of Grantor to adopt and enforce ordinances of the Grantor affecting matters of general applicability and not merely Grantee, whether now existing or hereinafter enacted. Franchisee agrees to comply with all applicable laws, regulations and ordinances enacted, or hereafter enacted, by Grantor or any other legally constituted governmental unit having lawful jurisdiction over the subject matter hereof. Nothing in this Franchise, however, shall be construed as a waiver of any right Grantee has by law, nor interpreted to prevent Grantee from challenging the lawfulness or enforceability of any provision of applicable law, including any purported use of the police power. 3.1.C Compliance by Affiliates Franchisee promises and guarantees as a condition of exercising the privileges granted by this Agreement, that any Affiliate or joint venture or partner of the Franchisee which assumes actual working control over in whole or in part the management or operation of the Cable System to provide Cable Service in the Franchise Area, will also comply with the terms and conditions of this Agreement. ..3.1.D No Rights by Implication No rights shall pass from Grantor to the Franchisee by implication. Without limiting the foregoing, by way of example and not limitation, the Franchise shall not include or be a substitute for: November 21,2001/11:17 AM 3 - GRANT OF FRANCHISE / Page 9 City of Woodburn Cable Franchise 1) Any other permit or authorization required for the privilege of transacting and carrying on a business within the City that may be required under generally applicable ordinances and laws of the Grantor; 2) Any permit, agreement or authorization required under generally applicable ordinances and laws of the Grantor in connection with operations on or in Public Rights of Way or property, including by way of example and not limitation, street cut permits; or 3) Any permits or agreements for occupying any other property of the Grantor or private entities to which access is not specifically granted by this Franchise including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the Grantor or a private entity. This provision should not be interpreted to restrict Franchisee's general franchise rights under 47 V.S.C. ~ 541(a). 3.2 Use of Streets and Public Ways For the purpose of constructing, operating and maintaining a cable communications system in the Franchise area, the Grantee may erect, install, audit, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public streets and ways within the Franchise area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary, convenient and appurtenant to the operation of the cable communications system. Prior to construction or alteration, however, the Grantee shall in each case file plans as required with the appropriate agencies of Grantor and pay applicable fees, and receive approval as necessary before proceeding. 3.3 Duration and Effective Date of Franchise Except as otherwise provided herein for revocation, the term of this Franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be ten (l0) years from the effective date of this Franchise, at which time the Franchise shall expire and be of no force and effect. The effective date of the Franchise shall be January 2, 2002 unless the Grantee fails to file the Franchise acceptance in accordance with Section 3.6 herein, or to establish the performance bond and security fund in accordance with Sections 8.2 and 8.4, in which event this Franchise shall be null and void. November 21, 2001 /11:17 AM 3 - GRANT OF FRANCHISE / Page 10 City of Woodburn Cable Franchise 3.4 Franchise Not Exclusive The Franchise granted herein is not exclusive. This Franchise shall not be construed as any limitation upon the right of the Grantor, through its proper officers, to grant to other persons or corporations, including itself, rights, privileges or authority the same as, similar to or different from the rights, privileges or authority herein set forth, in the same or other streets and public ways or public places by Franchise, permit or otherwise. In the event the City enters into a franchise, permit, license, authorization or other agreement of any kind with any other Person or entity other than the Franchisee to enter into the Public Rights-of- Way for the purpose of constructing or operating a Cable System or providing Cable Service to any part of the Franchise Area, and such franchise, permit, license, authorization, or agreement contains terms which are materially more favorable than this Agreement, Franchisee may request that the City amend this Agreement to give the Franchisee the reasonably comparable benefit of any such terms. The City shall rule promptly on such request. 3.5 Franchise Non-Transferable 3.S.A No Transfer Without Consent Neither the Cable System nor this Franchise may be sold, assigned, transferred, leased, or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger, consolidation, nor shall title thereto, either legal or equitable, or any right, interest, or property therein pass to or vest in any Person, nor may actual working control of the Grantor be changed, transferred or acquired without the prior written consent of the Grantor, which consent shall not be unreasonably withheld. The word "control" as used in this Section 3 5 is not limited to majority stockholders but includes actual working control in whatever manner exercised. This Section is not intended to. require Grantor's consent to the hiring and firing of employees. 3.S.B Notification The Grantee shall promptly notify the Grantor of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the Grantee. Every change, transfer or acquisition of control of the Grantor shall make this Franchise subject to cancellation unless and until the Grantor shall have consented thereto. November 21,2001/11:17 AM 3 - GRANT OF FRANCHISE / Page 11 City of Woodburn Cable Franchise 3.S.C Request for Approval The parties to the sale or transfer shall make a written request to the Grantor for its approval of a sale or transfer and furnish all information required by law and the Grantor. 3.S.D Cable Act Requirements Apply In accordance with Section 617 of the Cable Act, applicable at the time of the granting of this Franchise, the Grantor shall render a final written decision on the request within one-hundred twenty (120) days of the request, provided it has received all required information. Subject to the foregoing, if the Grantor fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the Grantor agree to an extension of time. Should federal law change during the term of this Franchise relative to the time limits and conditions placed on the Grantor for responding to a request for transfer of ownership or control, the Grantor shall respond to any such request from the Grantor in a manner consistent with the changed federal law. 3.S.E Filing Evidence of Transfer Within thirty (30) days of any transfer or sale, if approved or deemed granted by the Grantor, Grantee shall file with the Grantor a copy of the deed, agreement, lease or other written instrument evidencing such sale or transfer of ownership or control, certified and sworn to as correct by Grantor and the transferee. 3.S.F Grantor Inquiry into Qualifications In reviewing a request for sale or transfer, the Grantor may inquire into the legal, technical and fmancial qualifications of the prospective controlling party or transferee, and Grantee shall assist the Grantor in so inquiring. The Grantor may condition said sale or transfer upon reasonable terms and conditions related to the legal, technical, and fmancial qualifications of the prospective controlling party or transferee, and to the resolution of outstanding and unresolved issues of noncompliance with the terms and conditions of this Franchise by Grantor. 3.S.G Approval No Waiver The consent or approval of the Grantor to any transfer by the Grantor shall not constitute a waiver or release of any rights of the Grantor, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of this Franchise. November 21,2001/11:17 AM 3 - GRANT OF FRANCHISE / Page 12 City of Woodburn Cable Franchise 3.S.H Exceptions Notwithstanding anything to the contrary in this Section, the prior approval of the Grantor shall not be required for any sale, assignment or transfer of the Franchise or Cable System for cable television system usage to an entity controlling, controlled by or under the same common control as Grantee provided that the proposed assignee or transferee must show financial responsibility as may be determined necessary by the Grantor and must agree in writing to comply with all provisions of the Franchise. In addition, this Section shall not apply: to sales of property or equipment in the normal course of business; to any transfer in trust, mortgage, or other instrument of hypothecation, in whole or in part, to secure an indebtedness, or; to sales of less than 5% of common stock or other equity that do not effect a change in actual working control of Grantee. 3.6 Franchise Acceptance 3.6.A Filing The Grantee, on or before passage of this Franchise agreement by the City Council, shall execute and file in the office of the City Administrator a written acceptance executed by Grantee, in the form attached hereto as Exhibit B. 3.6.B Failure to File In the event Grantee fails to file the acceptance as required herein, then this Franchise shall be null and void. November 21,2001/11:17 AM 3 - GRANT OF FRANCmSE / Page 13 City of Woodburn Cable Franchise 4. CONSTRUCTION AND SERVICE REQUIREMENTS 4.1 General In all its construction and service provision activities, Grantee shall meet or exceed the construction, extension and service requirements set forth in this Franchise agreement. 4.2 System Upgrade and Construction Schedule 4.2.A System Upgrade Required Grantee shall rebuild or modify its cable system to upgrade the system to a minimum practical capacity of 78 downstream video channels throughout the Franchise area. The system shall be a broadband system, and shall have a minimum activated capacity of 550 MHz in the feeder portion of the system, with higher activated capacity in the trunk portion of the system, and shall be of hybrid fiber coaxial design with fiber running to neighborhood nodes, with no more than 800 homes passed served by each node upon initial completion of the upgrade and the commencement of service. All cable and equipment used in the modification of the system shall be new, and generally regarded in the cable industry as being of highest quality; however, the upgraded system may include plant and equipment which were in place in the System prior to the upgrade. The system, as upgraded, shall have the capacity to provide pay-per-view and other services requiring addressability (i.e., the capability to add or drop programming without a site visit). The System shall throughout the Franchise term include bi-directional capability, permitting activation of the System for the delivery of such services as high speed Internet access or Video on Demand without altering the general spacing of amplifiers in the System, or otherwise performing major System upgrade work. 4.2.B Construction Plan and Schedule A construction plan and schedule, which shall be in accordance with the requirements of this Franchise, shall be submitted to the Grantor no later than 60 days prior to the commencement of construction of the system upgrade described in (A) above (upgrade). The plan and schedule shall specify the general routes of fiber and of coaxial cable, the location of nodes, the location of all existing cable and equipment to be replaced, and the sequence and time frames for all significant portions of the construction. Prior to the commencing construction, Grantee shall meet with Grantor upon request to provide any requested clarification of the construction plan and schedule. November 21,2001/11:17 AM4 - CONSTRUCTION & SERVICE REQUIREMENTS / Page 14 City of Woodburn Cable Franchise Grantee shall commence construction of the System upgrade above within six (6) months after the effective date of this Franchise, and shall complete upgrade construction and all activation procedures within twenty-four (24) months of the effective date of this Franchise. For purposes of this Franchise agreement, "commencement of construction" shall mean the beginning of installation of any part of the system upgrade, including, but not limited to, the construction of any facility, building or structure, or the stringing of any strand wire or the laying of any conduit, or the installation of any active or passive electronic equipment to facilitate the required system upgrade. At the request of the Grantor, Grantee shall meet with the Grantor quarterly or, in emergency or other special circumstances at any time, during the construction period to report on construction progress and the fulfillment of the construction schedule. The Grantor acknowledges that there may be acts of nature or other events such as delays in the permitting process which are fully outside the control of Grantee and may prevent the timely start or completion of construction. If such. events occur, Grantee may explain them to the Grantor, and request a reasonable extension of the construction schedule, and the Grantor shall not unreasonably refuse such extension. 4.3 Right of Inspection of Construction Grantor shall have the right to inspect all construction or installation work performed within the Franchise area and to make such tests as it shall find necessary to ensure compliance with the terms of this Franchise agreement and other pertinent provisions of law. Grantee shall reasonably cooperate to facilitate such inspection and testing, and shall be subject to any fees or charges applicable under ordinances or other laws or regulations affecting similarly situated users of the Grantor's rights of way. 4.4 Provision of Residential Service 4.4.A In General It is the Grantor's general policy that all residences in the Grantee's Franchise Area should have equivalent availability of Cable Service from Grantee's Cable System under non-discriminatory rates and reasonable terms and conditions. Grantee shall not arbitrarily refuse to provide Cable Services to any Person within its Franchise Area. November 21, 2001 /11:17 AM4 - CONSTRUCTION & SERVICE REQUIREMENTS / Page 15 City of Woodburn Cable Franchise Following a period of sixty (60) days after the date on which any part of the Franchise Area has reached a minimum density of thirty (30) dwelling units per linear strand mile, as measured from the nearest cable line, and thereafter throughout the term of the Franchise, Grantee shall extend and make cable television service available at the standard connection charge to any resident within the Franchise area who requests connection, if the connection to the resident would require no more than a standard one hundred twenty-five (125) foot drop line or extension from the nearest feeder cable. With respect to requests for connection requiring a drop line in excess of the maximum standard distance, Grantee shall extend and make available cable television service to such residents at a connection charge not to exceed its actual costs for the distance exceeding the standard one hundred twenty-five (125) feet of cable. In all new subdivisions or other areas where undergrounding is required, cable plant and drops will be placed underground; in other areas, new or replacement cable plant and drops will be placed underground whenever feasible. 4.4.B Low-density Areas In Low-density Areas (those having fewer than thirty (30) residential units per proposed cable bearing strand mile) Grantee shall offer a cost- sharing arrangement with residents. A dwelling unit will be counted for this purpose if its lot fronts a street. At the request of a resident desiring service in such a low-density area, Grantee shall determine the cost of the plant extension required to provide service to the potential subscriber from the closest point on the cable system where it is technically feasible. The cost of construction shall be allocated based on the following terms: 1) If a request for extension of service into a residential area requires the construction of cable plant which does not pass at least thirty (30) potential subscribers per proposed cable bearing strand mile, Grantee and residents who agree to subscribe to cable service will each bear their proportionate share of construction costs. For example, if there are five (5) dwelling units per proposed cable bearing strand mile, Grantee's share will equal5/30ths or one sixth (1/6) of the construction cost. The remaining cost will be shared equally by each subscriber. 2) Should additional residents actually subscribe to cable television service in areas where subscribers have already paid a proportionate share under the extension cost sharing formula, subscribers who have previously paid a proportionate share under the extension formula shall be reimbursed pro rata for their contribution or a proportional share thereof. In November 21,2001/11:17 AM4 - CONSTRUCTION & SERVICE REQUIREMENTS / Page 16 City of Woodburn Cable Franchise such case, the pro rata shares shall be recalculated and each new subscriber shall pay the new pro rata share, and all subscribers who previously paid a proportionate share shall receive pro rata refunds. In the event such subscribers (or prior subscribers) have been disconnected or have moved and owe the Grantee money which has not been recovered, Grantee shall have the right to first apply the refund to amounts owed the Grantee and give the balance, if any to the subscriber. At such time as there are thirty (30) potential subscribers per cable bearing strand mile, the subscribers shall receive their pro rata share of construction costs. In any event, three (3) years after the completion of a project, subscribers who have paid a share of line extension costs are no longer eligible for refunds, and the amounts paid in construction costs will be credited to the plant account of Grantee. 3) Where the density of residential dwelling and occupied commercial or industrial structures, adverse terrain, or other factors render extension of the system and offering of cable service impractical, technically infeasible or would create an economic hardship, the Grantor may, upon petition of the Grantee, either waive the extension of the system into such areas, or allow the extension and offer of service on special terms or conditions which are reasonable and fair to the Grantor, the Grantee and potential subscribers in such areas. 4) It shall be the responsibility of the Grantee to maintain records documenting any special terms or conditions for extending cable, and any refund arrangements. Such documentation shall be made available to the Grantor upon request. 4.4.C Commercial Rates Notwithstanding Section 4.4.A, Grantee may establish different and nondiscriminatory rates and charges and classes of cable services for Commercial Subscribers, as well as different, nondiscriminatory monthly rates for classes of Commercial Subscribers. For the purposes of Section 4.4.C, "Commercial Subscribers" means any Subscribers other than Residential Subscribers in single family or multifamily dwellings. 4.4.D Newly Annexed Areas As areas are annexed to the City, Grantee shall provide Service Availability to all residences within the annexed area on the same terms November 21,2001/11:17 AM4 - CONSTRUCTION & SERVICE REQUIREMENTS / Page 17 City of Woodburn Cable Franchise as provided for in Section 4.4.A-C unless otherwise authorized by the City. 4.4.E New Subdivisions In new subdivisions, service will be made available under the terms of 4.4.A to 4.4.C above either (i) contemporaneously with other utility services; or (ii) no more than 60 days from first occupancy, whichever is first. 4.4.F Notwithstanding any other provision in this Franchise, Grantee shall not be required to extend its Cable System lines to any area of the City that already receives Cable Service from a provider that is not commonly owned to any degree with Grantee, unless the density meets or exceeds 60 residential units per proposed cable-bearing strand mile 4.5 Erection of Poles Grantee shall not erect, for any reason, any pole on or along any street or public way in an existing aerial utility system unless approved by the Grantor. The Grantee shall make all reasonable efforts to lease pole space from the existing pole owners for all aerial construction, under mutually acceptable terms and conditions. 4.6 Trimming of Trees or Other Vegetation In the conduct of its business, it may be necessary for Grantee to trirn trees or other vegetation in order to provide space for its facilities. Tree or vegetation trimming in the right of way, on other public property and dedicated easements shall be done only in accordance with the ordinances and other rules and regulations of Grantor. Nothing contained in this Franchise agreement shall be deemed to empower or authorize Grantee to cut, trim or otherwise disturb any trees or other vegetation, whether ornamental or otherwise on private property. In cases of emergency, Grantee may trim trees or other vegetation with notification to the Grantor at the earliest feasible time. 4.7 Repair and Restoration of Streets, Public Ways and Grounds Whenever the Grantee shall disturb the surface or otherwise damage any street, alley, public highway, other public way or ground for any purpose mentioned herein, it shall repair and restore the same to at least the condition in which it was prior to the opening or other damage thereof. And when any opening is November 21,2001/11:17 AM4 - CONSTRUCTION & SERVICE REQUIREMENTS / Page 18 City of Woodburn Cable Franchise made by the Grantee in any hard surface pavement, in any street, alley, public highway or other way, the Grantee shall promptly refill the opening and restore the pavement to at least its original condition. The Grantor shall notify Grantee if any Opening made by Grantee requires further restoration and, after an eight-hour period for Grantee to affect repairs, Grantor may refill and/or pave. The cost thereof, including the cost of inspection, supervision and administration shall be paid by the Grantee. All excavations made by the Grantee in the streets, alleys, public highways or other ways shall be properly safeguarded for the prevention of accidents. The work hereby required shall be done in compliance with the rules, regulations and ordinances of Grantor as now or hereafter in effect. Unless otherwise provided for in a written contract with a private property owner, Grantee shall repair and restore any private property it disturbs in the same manner required by this Franchise with respect to public property. The requirement under this Section for the City to notify the Grantee and to allow a minimum period for the Grantee to make repairs is effective except in the case of emergency. 4.8 Construction Codes The Grantee shall strictly adhere to all applicable building, zoning or other construction laws and codes currently or hereafter in force in Grantor's jurisdiction. This provision, however, does not diminish or impair Grantee's rights under law to rely on t..his Franchise. The Grantee shall arrange its lines, cables and other appurtenances, on both public and private property, in such a manner as to cause no unreasonable interference, as determined by the Grantor in reliance on generally accepted practices, with the use of said public or private property by any person. In the event of such interference, Grantor may require the removal of Grantee's lines, cables and appurtenances from the property in question 4.9 Reservations of Street Rights Nothing in this Franchise agreement shall be construed to prevent any public work of the Grantor, including without limitation constructing sewers, grading, paving, repairing and/or altering any street, alley, or public highway, or laying down, repairing or removing sewer or water mains or maintaining, repairing, constructing or establishing any other public property. If any property of the Grantee shall interfere with the construction or repair of any street or public improvernent, whether it be construction, repair or removal of a sewer or water main, the improvement of a street or any other public improvement, then on reasonable notice from the Grantor all such property including poles, wires, conduits or other appliances and facilities shall be protected, removed, replaced or relocated in a timely manner as shall be directed by the Grantor, so that the same shall not interfere with the said public work of the Grantor, and such removal, replacement or relocation shall be at the expense of the Grantee. In all November 21,2001/11:17 AM4 - CONSTRUCTION & SERVICE REQUIREMENTS / Page 19 City of Woodburn Cable Franchise such instances of relocation of Grantee's property, however, Grantor shall not treat Grantee any less favorably than it treats other providers of Cable Services. In the event of failure, neglect or refusal of the Grantee, to repair, restore, or reconstruct such street, the Grantor may do such work or cause it to be done, and the cost thereof to the Grantor shall be paid by the Grantee. Except in the case of emergencies, reasonable notice shall mean sixty (60) days at a minimum. 4.10 Street Vacation and Abandonment In the event any street, alley, public highway or portion thereof used by the Grantee shall be vacated by the Grantor, or the use thereof discontinued by the Grantee, during the term of this Franchise, the Grantee shall forthwith remove its facilities therefrom unless specifically permitted in writing to continue the same by the new controlling jurisdiction or property owner, as appropriate. At the time of removal thereof the Grantee shall restore, repair or reconstruct the street area where such removal has occurred, and place the street area where such removal has occurred in such condition as may be reasonably required by Grantor. In all such instances of requiring restoration, repair or reconstruction, however, Grantor shall not treat Grantee any less favorably than it treats other providers of Cable Services. In the event of failure, neglect or refusal of the Grantee, to repair, restore, or reconstruct such street, the Grantor may do such work or cause it to be done, and the cost thereof to the Grantor shall be paid by the Grantee. 4.11 Movement of Facilities In the event it is necessary temporarily to move or remove any of the Grantee's conduit, wires, cables, poles or other facilities placed pursuant to this Franchise, in order to lawfully move a large object, vehicle, building or other structure over the streets, alleys or highways of the Gran_tor, Grantee, upon reasonable notice, shall move at the expense, paid in advance, of the person requesting the temporary removal such of its facilities as may be required to facilitate such movements; provided that, if the Grantor is the party requesting the removal, for movement of buildings or structures of the Grantor, then the removal shall be done at the expense of the Grantee. 4.12 Undergrounding 4.12.A Underground Requirement Cable must be installed underground where (1) all existing utilities are located underground, (2) all utilities are required to place their facilities underground by statute, or ordinance, policy or other regulation of Grantor, (3) all overhead utility lines along the same route as the November 21,2001/11:17 AM4 - CONSTRUCTION & SERVICE REQUIREMENTS / Page 20 City of Woodburn Cable Franchise Grantee's lines are replaced with underground (Grantee shall bear the cost of such movement of its facilities unless specific exemption is given by Grantor in any individual case), (4) Grantee is unable to get pole clearance, (5) underground easements are obtained from developers of new residential areas, or (6) utilities are overhead but residents prefer underground (service to be provided at cost to resident). 4.12.B Use of Conduit Grantee shall use conduit or its functional equivalent on 100% of undergrounding, except for drops from pedestals to subscribers' homes and for cable on other private property where the owner requests that conduit not be used. Cable and conduit shall be utilized which meets the highest industry standards for electronic performance and resistance to interference or damage from environmental factors. Grantee shall use, in conjunction with other utility companies or providers, common trenches for underground construction wherever available. 4.13 Location Maps Grantee shall maintain drawings of the system route, showing at minimum the strand and trench portions along the system's route, power supply locations, and node locations, and shall make them available to the Grantor for inspection upon request. Such drawings shall be updated as changes occur in the system. The Grantee shall provide to the Grantor, within ten (10) days of Grantor's request, a copy of the drawings in electronic form compatible with the Grantor's GIS system if the Grantee has them in such form 4.14 Emergency In the event of an emergency, or when the cable system creates or is contributing to an imminent danger to health, safety or property, the Grantor may remove or relocate Grantee's cable system without prior notice. Whenever possible, the City shall make a reasonable attempt to notify the Grantee prior to such removal or relocation. November 21,2001/11:17 AM4 - CONSTRUCTION & SERVICE REQUIREMENTS / Page 21 City of Woodburn Cable Franchise 5. SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS 5.1 System Configuration The Cable System shall consist, at a minimum, of a Residential Network and, to the extent provided for under the terms of this Franchise, an Institutional Network. As upgraded in accordance with the requirements of this Franchise, the System shall have bi-directional communications capability and addressability, be capable of passing a minimum of 550 MHz in all portions of the system and be designed in a hybrid fiber coaxial configuration with no more than_800 homes served from any fiber node, at the time of the initial completion of the upgrade and commencement of service. 5.2 Channel Capacity The residential Cable System shall be upgraded, in accordance with the requirements of this Franchise, to provide the capability of delivering a minimum of 78 video Channels outbound. 5.3 Emergency Alert Capability Grantee shall provide the system capability to provide video interrupt and audio alert on all System channels for emergency purposes, and allow the Grantor to transmit an emergency alert message from locations designated by the Grantor to all subscribers. This capability shall be consistent with the requirements of Part 11 of the regulations of the FCC. Emergency alert capability as required in this Section shall be operational throughout the term of the Franchise, beginning with completion of the System upgrade required by this Franchise. 5.4 Standby Power Beginning with the completion of the System upgrade required by this Franchise, Grantee shall provide standby power generating capacity at the cable system headend and hubs capable of providing emergency operation for at least forty-eight (48) hours, and shall maintain standby power system supplies, rated at least at two (2) hours duration, throughout the trunk and distribution networks 5.5 Parental Control Lock Grantee shall provide subscribers (by sale or lease or otherwise), upon request, with a manual or electronic parental control locking device that permits inhibiting the viewing of any channel, consistent with 47 D.S.C. 9 544(d)(2) Any charge for such device shall be consistent with applicable rate regulations. Subscribers shall be notified by Grantee of the availability of the locking device no less frequently than annually. November 21,2001/11:17 AM5 - SYSTEM DESIGN & PERFORMANCE REQUIREMENTS / Page 22 City of Woodburn Cable Franchise 5.6 Technical Standards The Grantee shall meet the requirements of the Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards), as now or hereafter constituted. 5.7 Performance Testing 5.7.A Schedules Upon request, Grantee shall advise Grantor of schedules and methods for testing the Cable System to determine compliance with the provisions of applicable FCC technical standards. Representatives of Grantor may witness tests, and copies of written test reports shall be made available to Grantor upon request. 5.7.B Reporting As required by FCC Rules, Grantee shall conduct proof of performance tests and cumulative leakage index tests designed to demonstrate compliance with FCC requirements. Grantee shall provide Grantor a written copy of the results of such tests upon request. 5.7.C Inspection The Grantor shall have the right to inspect any and all work performed in the streets and rights-of-way. In addition, for initial and semi-annual FCC proof-of-performance tests, the Grantor shall be given the opportunity by Grantee to review test sites. Upon Grantor's request Grantee shall notify the Grantor of the time and place of the next scheduled test and shall cooperate in facilitating the Grantor's witnessing at the time of the tests. The Grantor may, at its own expense and upon thirty (30) days written notice to Grantee, conduct independent tests of the System, for which Grantee shall give its fullest cooperation. 5.7.D FCC Compliance It shall be the responsibility of the Grantee to document that the System and its operation are in compliance with FCC technical specifications and performance requirements. If the Grantor has received Subscriber complaints regarding the performance of the Cable System; and the Grantor determines that the most efficient or only reasonable way to determine a question of System compliance with FCC technical specifications is through specific electronic testing of the System in addition to tests required by the FCC, the Grantee shall, upon written notice by the Grantor, perform such testing at a reasonable time, give the November 21,2001/11:17 AMS - SYSTEM DESIGN & PERFORMANCE REQUIREMENTS / Page 23 City of Woodburn Cable Franchise Grantor an opportunity to witness the testing, and provide the Grantor with documentation of the testing results. The FCC's technical standards shall govern the protocols for all such testing. 5.7.E Remedy for Non-Compliance In any case where system testing reveals non-compliance with FCC standards, the Grantee shall repair the System or make whatever modifications are necessary to bring the System performance into compliance with FCC standards. November 21, 2001/11:17 AMS - SYSTEM DESIGN & PERFORMANCE REQUIREMENTS / Page 24 City of Woodburn Cable Franchise 6. SERVICES AND PROGRAMMING 6.1 Programming Categories and Number of Services The Grantee shall provide video programming services in at least the following broad categories, to the extent such categories are reasonably available: 1. News & Information 2. Sports 3. General Entertainment, movies, music & comedy 4. Arts, Culture, Performing Arts 5. Children / Family 6. Science / Documentary 7. Weather Information 8. Governmental and Educational Programming 9. Foreign language / Ethnic Programming The Grantor acknowledges that identification of these broad categories of programming in no way infers regulatory authority by the Grantor over specific programming services or networks which may be carried on the Cable System. 6.2 Changes in Video Programming Services Subject to the provisions of the Cable Act, no category of services as referred to in Section 6.1 may be deleted, or so limited as effectively to be deleted by the Grantee without Grantor approval, which shall not be unreasonably withheld. In the event any applicable law or regulation materially alters the terms and conditions under which Grantee carries programming within the broad programming categories described in Section 6.1, then the Grantee shall be obligated to carry such programming only upon reasonable terms and conditions. 6.3 Leased Channel Service The Grantee shall offer leased channel service to the extent required by 47 V.S.C. Section 532 (Section 612 of the Cable Act), or regulations adopted thereunder. November 21,2001/11:17 AM 6. SERVICES & PROGRAMMING / Page 25 City of Woodburn Cable Franchise 6.4 Community Access and Local Programming 6.4.A Management and Control of Access Channels The Grantor may authorize Designated Access Providers to control and manage the use of any or all Access Facilities provided by Grantee under this Franchise, including, without limitation, the operation of Access Channels for noncommercial, non-profit PEG Access purposes. The Grantor or its designee may formulate rules for the operation of the Public Access Channel, consistent with this Franchise. Nothing herein shall prohibit the Grantor from authorizing itself to be a Designated Access Provider. 6.4.B Channel Capacity and Use 1) Channels used for PEG Access purposes shall be administered by the Grantor or its designee. 2) Downstream Channels a) Upon the date the upgrade required by Section 4 is substantially completed, Grantee shall provide a minimum of 3 Access Channels for PEG use. Each Access Channel if analog shall be a minimum of 6Mhz, subject to (B)(5) & (B)(3) below, and be capable of carrying a video signal. Although nothing in this Franchise restricts the use of PEG channels to video applications, any other use shall be subject to the technical limitations of the Grantee's system and the requirements of this Franchise. b) After the initial 3 Access Channels have been made available for PEG use, and in accordance with the trigger criteria set forth in Section 6.4.A(3) below, the Grantor may require the Grantee to activate one additional Access Channels for a maximum of four Access Channels. c) Grantee may use unused PEG Channels for its own purposes until such time as the Grantor, upon 60 days prior written notice, requests them for PEG use by the Grantor or a Designated Access Provider. 3) Triggers for Additional Access Channels After the initial 3 Access Channels have been made available for PEG Access use, Grantee shall, if directed by the Grantor, provide additional activated Access Channels for PEG use to a maximum total of four Access Channels as required in this subsection. The November 21, 2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 26 City of Woodburn Cable Franchise Grantor shall give Grantee at least 90 days prior written notice of required additional Access Channels. Such written notice shall include information verifying that the trigger criteria have been met. One additional Access Channel shall be made available to the Grantor each time that the existing Access Channels are in use for locally scheduled video programming (not to include character- generated programming, non-video transmissions, or repetitions of programs beyond three (3) repetitions) an average of 80% of the time, seven days per week for any consecutive five hour block during the hours from 10:00 a.m. to 10 p.m. for 10 consecutive weeks. Provided, however, that if the usage ratio of any additionally designated channel should at any time fall below 30% of the level of usage required above for the addition of a channel, then the use of that channel shall revert back to the Grantee. This mechanism for exchanging control of channels based on usage shall be continuous throughout the life of the Franchise. 4) Grantee may be required to deliver the PEG Channels to Subscribers in an analog format unless and until all other Channels on the System are delivered in a digital format. At such time, Grantee shall provide 6 Access Channels in digital form. The Access Channels must be receivable by Subscribers without special expense, other than the expense required to receive Basic Service. Designated Access Providers have no obligation to provide a signal to Grantee in a digital format. 5) If Grantee modifies its Cable System in a manner that has the effect of requiring modifications to PEG facilities and equipment, in order to deliver PEG signals, Grantee will bear any cost that the Designated Access Providers must incur as a result. If, for example, Grantee requires high definition signals, Grantee will bear the costs Designated Access Providers incur to provide high definition signals. 6) The Grantee will provide all PEG Channels on the Basic Service tier throughout the life of the Franchise, consistent with the requirements of federal law. If there is no Basic Service tier, shall provide the PEG Channels at no additional charge to any Person who subscribes to any level of cable video programming service and otherwise in accordance with federal and state law. If channels are selected through a menu system, the PEG Channels shall be displayed in the same manner as other channels. Designated Access Providers shall be responsible for the costs associated with specific November 21,2001/11:17 AM 6 - SERVICES & PROGRAMMING I Page 27 City of Woodburn Cable Franchise program listings for the PEG Channels on Cable System program guides and menus. 7) Upstream Channels a) All retum lines for upstream PEG Access transmissions which are in place as of August 9,2001 shall be maintained in working order throughout the term of the Franchise. Beginning with the completion of the upgrade construction and throughout the term of this Franchise, Grantee shall provide and maintain communications return lines, as well as all necessary wires and electronic and optical interface and transmission equipment, sufficient so that the Grantor or its designee can transmit full motion video signals as described in this Section from the Master Control Site and other Origination Points identified in Exhibit A onto the Cable System, to enable the distribution of programming on Access Channels. Grantor and/ or qualified access users shall provide all other routers and equipment necessary to produce and manage the control of programming from the Master control site and other Origination Points identified on Exhibit A. For all Origination Points, Grantee shall provide the capacity to transmit at least one (1) full motion analog video signal upstream; except that, for the WCAT Master Control Site, Grantee shall provide the capacity for the upstream transmission of at least as many full motion analog video signals as are necessary for simultaneously transmitting programming for all access cable channels . active from that location to the headend serving the area for distribution. The requirements of this Section relating to connections to and from the Grantee's facilities shall apply wherever Grantee's facilities are located or relocated. b) As an altemative to providing some or all of the hard-wired Origination Points identified in (a) above, the Grantee, upon approval of the Grantor, may provide a microwave transmit and receive system which would allow upstream programming to the WCAT Master Control Site from remote locations. 6.4.C Financial Support for PEG Access 1) The Grantee shall provide the following financial support for PEG Access: a. Forty Thousand Dollars ($40,000) within thirty (30) days November 21, 2001 /11:17 AM 6 - SERVICES & PROGRAMMING / Page 28 City of Woodburn Cable Franchise following the effective date of the Franchise, for necessary major equipment purchase, replacement and associated services. b. One Dollar Twenty-five Cents ($1.25) per subscriber per year thereof, payable in October of each year of the Franchise term or its extension, for ongoing equipment needs and associated services. c. One Thousand Five Hundred Dollars ($1,500) per month for production and related services. 2) The Grantor may use a portion of PEG Access support for the costs of the Institutional Network. 3) Should Grantee continue to provide Cable Service after the scheduled expiration of the Franchise, pursuant to a Resolution passed by the Grantor allowing Grantee to continue to operate under the this Franchise, until and unless this Franchise is superseded by a renewed Franchise issued by the Grantor, Grantee shall continue to provide support of PEG Access as specified herein above. 4) Any PEG Access support amounts owing pursuant to this Franchise which remain unpaid more than 25 days after the date the payment is due shall be delinquent and shall thereafter accrue interest at 2 percent above the highest prime lending rate published by the Wall Street Journal during the period the payment is overdue, whichever is greater. 6.4.D Studio Improvement Grantee shall continue to provide the studio space and facilities for PEG Access existing as of August 9, 2001. In addition, Grantee shall provide 86 additional square feet of space, and provide a separate, fully walled-in space to house an effective control room separate from the studio space proper. 6.4.E PEG Support Not Franchise Fees Grantee agrees that support for PEG Access agreed to in this Franchise is not Franchise Fees, nor shall it be treated as payment in lieu of Franchise Fees, and that it fall under one or more of the exceptions to the definition of Franchise fee under federal law. Nothing in this Section is intended to affect in any way (by expansion or contraction) Grantor's rights under applicable law goveming rates. November 21,2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 29 City of Woodburn Cable Franchise 6.4.F Technical Quality Grantee shall maintain all Upstream and Downstream PEG Channels and Interconnections of PEG channels at the same level of technical quality and reliability as the commercial Channels carried by Grantee. There shall be no significant deterioration in signal due to Grantee's signal carriage from the point of origination Upstream to the point of reception Downstream. 6.4.G Change in Technology 1) In the event Grantee makes any change in the Cable System and related equipment and facilities or in Grantee's signal delivery technology, which directly or indirectly substantially affects the signal quality or transmission of Access services or programming, Grantee shall, at its own expense, take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, and full training of Designated Access Providers' Access personnel to ensure that the capabilities of Access services are not diminished or adversely affected by such change. 2) In accordance with Section 6.4.B(5) the Grantee is required to provide connections as described herein to its headend wherever the headend may be located or relocated. Without limiting the foregoing, in the event Grantee alters its Cable System (including by relocating its headend), Grantee will be responsible for replacing or restoring all connections at Grantee's cost so that all the functions and capacity remain available, operate reliably and satisfy all applicable technical standards without additional cost to the Grantor or Designated Access Providers. To the extent that additional costs are incurred by the Grantor as the result of such alteration, Grantee will reimburse the Grantor. 6.4.H Local News Operation The Grantee shall, within thirty (30) days following a request by the Grantor, enter into good faith discussions with WCAT to consider establishing and funding a news operation which would produce five to ten minutes of local news five days per week for distribution on a cable channel. The Grantor and Grantee agree that such an operation may require the employment of up to three full-time individuals, and may involve the sale of commercial advertising for support to the operation. The parties acknowledge that this provision does not impose any November 21,2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 30 City of Woodburn Cable Franchise obligation on Grantee to agree to establish, fund or otherwise assist in the production of any programming. 6.4.1 Non-Commercial Use The PEG Access Channels shall be used only for non -commercial purposes; however, this requirement does not prohibit the use of program sponsorship similar to that used in public broadcast television, consistent with federal law. 6.4.J Interconnection of PEG Access 1) Communities Served by Grantor Grantor may request at any time an interconnection for the transport of Access programming to or from communities provided service by Grantor's headend for Woodbum or an interconnected headend. If technically and legally possible, within 6 months following a request from the Grantor, Grantee will perform such interconnect or provide method of transportation of the access channels, provided Grantor pays all Incremental Costs therefor, subject to the credit described in Section 6.6. Incremental Cost shall be determined in accordance with Exhibit C. 2) Interconnection with Other Systems a) Grantor may request at any time an interconnection for the transport of access programming to or from adjacent communities served by cable operators other than the Grantee. If technically and legally possible, within 6 months following a request from the Grantor, Grantee will perform such transport or pr<?vide method of transport of the access programming, provided Grantor pays all Incremental Costs therefor subject to the credit described in Section 6.6. For the purposes of this Section, Incremental Cost shall be determined in accordance with Exhibit C. b) With respect to installing the capacity required under this Section 6.4.J(2), the Grantor understands that interconnection requires cooperation from other cable system operators as to engineering, design, and technical operation issues. In addition, Grantee's interconnection obligation shall be limited to providing equipment needed, and performing construction work required, within Grantee's Franchise areas in order to November 21,2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 31 City of Woodburn Cable Franchise enable the required interconnections to occur. In order to actually establish the interconnections, it may be necessary for the operators of other cable systems interconnecting with the Grantee's system to provide equipment and perform construction work within their respective Franchise areas; and the provision of such equipment and performance of such construction work shall not be the obligation of Grantee under this Franchise. Therefore Grantor shall make every reasonable effort to assist Grantee in achieving the cooperation of interconnecting cable system regulators and operators necessary to establish the interconnections, and Grantee's interconnection obligations hereunder shall be subject to such cooperation being obtained. 3) Signal Quality All PEG Access interconnections shall be accomplished in a manner that permits the transmission of signals meeting the technical standards of this Franchise on all interconnected channels; provided that the Grantee shall not be responsible for the quality of signals provided by programmers or the interconnected systems of other operators. 6.5 Institutional Network 6.5.A Obligation to Construct In addition to the Residential Network capacity of the System established in the System upgrade required under this Franchise, the Grantee shall, upon the request of the Grantor, at Incremental Cost as described in Exhibit C subject to the credit described in Section 6.6, provide System plant, capacity, or services, or a combination thereof, according to a design and functionality to be specified by the Grantor, to be used for an Institutional Network (I-Net). At the Grantor's discretion, the I-Net may be used for non-commercial, non-profit applications, subject to Section 6.5.F below, by the Grantor and its agencies, other governments and their agencies, Schools, libraries, public corporations created by the Grantor, and other non-profit institutions to the extent that such non- profit institutions provide public services. 6.5.B I-Net Design, Functionality and Management At Incremental Cost as defined in Exhibit C, subject to the credit described in Section 6.6, to be paid by the Grantor, the Grantor may require the Grantee to install: 1) up to two (2) pair of fiber for I-Net use to November 21, 2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 32 City of Woodburn Cable Franchise each I-Net site listed in Exhibit D; and 2) such electronics, labor and services as may be necessary to make the Grantor's I-Net functional. If Grantor elects to pursue the construction of an I-Net in accordance with the terms of this Franchise, Grantee agrees that the Grantor may utilize fibers within the Grantee's fiber sheath as part of Grantee's planned System upgrade, in order to maximize the cost savings to be realized through paying Incremental Costs only. The Grantor or its designee shall have the right to control and manage the use of the I-Net provided for herein. The Grantee shall, if requested by the Grantor, maintain the I-Net it provides up to the demarcation point as defined below, according to the terms of a maintenance agreement between the parties. The Grantor will be responsible for the Incremental Costs associated with maintenance of the I-Net that Grantee is required to perform. The demarcation point for purposes of this Section shall be the patch panel, termination block, or other termination device located at each I-Net site, at the point closest to the Grantee's facilities where the device transmits signals to and from the I-Net provided by Grantee. 6.5.C Cost and Method of Payment The cost to the Grantor for the construction of the I-Net shall be no more than the Incremental Cost of I-Net construction, subject to the credit described in Section 6.6, and there shall be no charge by the Grantee to the Grantor or other authorized user for the use of the I-Net, other than maintenance. Incremental Cost shall be determined in accordance with Exhibit C. 6.5.D Process for Integrating I-Net with System Upgrade and Future Construction. 1) The I-Net capacity to any location identified in Exhibit D shall be provided during the period of the System upgrade required by this Franchise. Any additional sites shall be constructed within 18 months following a request by the Grantor that the Grantee construct or provide an I-Net connection to that location. In no event shall Grantee be required to provide 1- Net capacity prior to completion of its System upgrade required under this Franchise. The Grantee shall cooperate with the Grantor to ensure the most cost-effective construction of the I-Net. 2) In order to ensure that the Grantor may take full advantage of the cost savings to be realized from constructing the I-Net in conjunction with any Grantee upgrade construction, within 60 days of the effective date of this Franchise, Grantor shall notify Grantee if it desires to have an I-Net constructed and if November 21,2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 33 City of Woodburn Cable Franchise so provide a list of sites for Exhibit D to be constructed; within 30 days of the effective date of this Franchise, Grantee shall notify the Grantor of any plant construction scheduled to occur within the next six months, and in a timely manner any construction scheduled during the rest of the upgrade period, near any of the locations listed in Exhibit D. a) If the Grantor is requesting Grantee to construct an 1- Net Grantee shall enter into discussions with the Grantor to determine what particular I-Net installations, if any, the Grantor desires to have served as part of the construction. Once the locations are identified, the Grantee shall provide cost estimates to the Grantor within 30 days, and shall if the Grantor so directs, proceed with construction of the I-Net. The Grantor has 30 days from receipt of cost estimates to approve the costs and authorize construction of the I-Net. If the Grantee fails to give the Grantor timely notice that it intends plant construction near the locations listed in Exhibit D, and the Grantor later elects to have Grantee provide I-Net connections to locations that could have been served in conjunction with Grantee construction carried out for its own purposes, then the Grantee shall provide the I-Net connections at a cost to the Grantor which does not exceed what would have been the Incremental Cost of providing the I-Net connections, subject to the credit described in Section 6.6, had it been done along with Grantee's construction for its own purposes. Grantor and Grantee agree that if payment for I-Net facilities is not made by the Grantor within two years from the Grantor's approval of costs and authorization for construction, then Grantee (i) may deduct such payment from franchise fees otherwise due and owing to Grantor; or, at Grantee's option, (ii) Grantee may notify Grantor that Grantee is no longer obligated for further I-Net construction for the Grantor, and all rights to the use ofl-Net facilities constructed by the Grantee for the Grantor but not paid for shall revert to the Grantee. b) Subsequent to the completion of the System upgrade required under Section 4 of this Franchise, Grantee shall notify the Grantor of any plans for additional plant construction near the locations in Exhibit D, 90 days in advance. If the Grantor notifies the Grantee within 30 days that it desires to have an I-Net constructed by the November 21,2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 34 6.5.E 6.5.F City of Woodburn Cable Franchise Grantee, then the same requirements shall apply as are set forth in the previous paragraph following provision for notification by the Grantor to Grantee that it desires to have Grantee construct an I-Net. Costs of construction shall not exceed the estimate provided by Grantee. Interconnection of I-Net 1) In the event that Grantee constructs an interconnect between Grantee's headends or between systems served by the headend serving Woodburn, and upon Grantor's request, Grantee will provide up to 2 fiber pairs provided the Grantor pays for all Incremental Costs therefor, subject to the credit described in Section 6.6. Incremental Cost shall be determined in accordance with Exhibit C. 2) In the event the Grantor requests Grantee to interconnect the I-Net with any communications system inside or at the borders of the franchise area, Grantee shall, if legally and technically possible, perform this construction as requested, during the upgrade period or 6 months following Grantor's request whichever is later, provided Grantor pays for all Incremental Costs therefor, subject to the credit described in Section 6.6. Incremental Cost shall be determined in accordance with Exhibit C. 3) The Grantor shall be permitted to interconnect the I-Net, directly or indirectly, with any other communications network for PEG or I-Net purposes. 4) If the design of the I-Net involves the use of the Grantor's headend, then The Grantee shall provide sufficient floor space in its facilities to accommodate such equipment as maybe necessary there to operate or monitor the I-Net; and shall permit the Grantor reasonable access to its facilities as may be necessary to install, replace, repair or maintain such equipment. However, Grantee shall not be required to operate, make available, or maintain such facilities, unless such facilities are a necessary part of Grantee's own cable system operation. Limits on Use 1) The I-Net may only be used for any (a) municipal purpose (proprietary or governmental); (b) educational purpose; (c) public purpose, or for use of the PEG Channels on the Subscriber Network. It is understood that the connections to November 21,2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 35 City of Woodburn Cable Franchise City, county or other governmental institutions and transmissions to and among these institutions fall within the terms above. Fees may be charged by the Grantor to Persons other than Grantee for use of the I-Net or for the information transmitted via the I-Net. The I-Net may be linked to any other communications network used by the Grantor or to any I-Net user authorized by the Grantor, provided such user is either a public agency or such use is for non-commercial, non-profit purposes. The I-Net may also be linked to the Internet; however, an I-Net user, the Grantor (or an entity under the Grantor's control) may not use the I-Net provided by Grantee to act as the Internet Service Provider for the general public or any commercial establishments. 2) Appropriate uses of the I-Net include, by way of example and not limitation: a) Transmitting GIS and other data to and from Grantor departments and to and from the public; b) Linking libraries and providing terminals at library locations that allow members of the public to access library databases and other remote databases; c) Transmitting live and stored instructional materials (whether in the form of data, video, or otherwise) to and from schools and to the public; d) Providing kiosks where members of the public may access information; e) Providing video conferencing among municipal and educational locations and to other locations for municipal and educational purposes such as economic development and distance learning; f) Providing for remote permitting, remote arraignment, and voice traffic to and from the Grantor and the Schools. 3) The Grantor may designate an entity to control and manage the use of the I-Net provided by Grantee. The Grantor may not lease, to a third party, any portion of the network that Grantee installs or leases to the Grantor without the prior written permission of the Grantee; provided that the Grantee shall not unreasonably deny such permission, and shall limit denial to those cases where the lease may reasonably be construed as facilitating the provision of a service in competition with the Grantee. Moreover, where the purpose of November 21, 2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 36 City of Woodburn Cable Franchise any use is commercial and for profit, such use shall not be allowed without the written permission of Grantee. 4) The I-Net is a private communications network governed by this Franchise Agreement and the Cable Act. The City and Institutional Subscribers will use the I-Net solely for non- commercial applications. The Institutional Subscribers will not attach any equipment or otherwise use the I-Net in any way that will interfere with the signal quality and the normal operation of Grantee's quality and the normal operation of Grantee's Cable System in conformity with this Franchise or FCC regulations, including but not limited to regulations pertaining to signal leakage. The City and Institutional Subscribers will not resell access to the I-Net. 6.5.G No Charge for I-Net Use The parties agree that there shall be no charge for the I-Net provided by Grantee other than the Incremental Costs and possible maintenance charges as described in this Section. 6.6 Credit Against Incremental Costs Solely for the purposes of construction and interconnection of the I-Net pursuant to Section 6.5, and interconnection of PEG Access channels and programming pursuant to Section 6.4.J, the Grantee shall provide to Grantor an aggregate credit of Fifty Thousand Dollars ($50,000) against Grantor's Incremental Costs, which may be applied in whole or in part anytime during the term of the Franchise, in amounts and against projects identified by the Grantor. November 21,2001/11:17 AM 6 - SERVICES & PROGRAMMING / Page 37 City of Woodburn Cable Franchise 7. FRANCHISE REGULATION AND CUSTOMER SERVICE STANDARDS 7.1 Intent It is the intent of the Grantor to administer and enforce the provisions of this Franchise. Grantor may delegate all or a part of its administrative and regulatory authority under this Franchise to an entity designated by the Grantor. 7.2 Areas of Regulation and Administration The Grantor (or its designee) has authority for regulation in the following areas: 1) administering and enforcing the provisions of this Franchise agreement, including the adoption of administrative rules and regulations to carry out this responsibility; 2) coordination of the operation of Public, Government and Educational Access channels. 3) coordinating the Grantee's technical, programming and operational assistance and support to public agency users, such as Grantor departments, schools and health care institutions; 4) formulating and recommending long-range cable communications policy for the Franchise area; 5) disbursing and utilizing Franchise revenues paid to the Grantor; 6) regulating rates, to the extent permitted by law. 7) customer service, to the extent permitted by law; and 8) planning and facilitating development of public uses of the cable system on the residential and institutional networks, both within the Grantor and through interconnection with adjacent systems. Nothing in this Section is intended to expand Grantee's authority beyond the scope authorized by state and federal law 7.3 Rate Regulation 7.3.A Rate Regulation Right Reserved Grantor reserves the right to regulate Grantee's rates and charges to the full extent authorized by applicable federal, state and local law, as these may change during the period of the Franchise; and to establish rate regulation policies and guidelines for carrying out its authority. 7.3.B Rate Discrimination Prohibited Grantee shall apply non-discriminatory rates and charges to all subscribers purchasing similar services, regardless of race, color, creed, sex, marital or economic status, age, national origin, sexual preference, or neighborhood of residence, except as otherwise provided herein; provided that nothing in this Franchise shall prevent the Grantee from establishing discounted rates and charges for low-income or elderly November 21, 2001/11:17 AM7 - FRANCHISE REGULATION & CUSTOMER SERVICE / Page 38 City of Woodburn Cable Franchise subscribers, or from temporarily reducing or waiving rates and charges in connection with promotional campaigns. 7.3.C Provisions Subject to the Cable Act The provisions of this Section 7.3 shall be subject to the provisions of 47 U.S.C. Section 543 (Section 623 of the Cable Communications Policy Act of 1984), as amended from time to time. It is not intended that this Section expand or diminish the rights of the Grantor in relation to regulation of rates and charges under those provisions of the Act, and any provision of this Section or of any other provision of this Franchise that purports to expand or diminish such rights shall be deemed superseded by those provisions of the Act. 7.4 Remedies for Franchise Violations 7.4.A Notification If the Grantor believes that the Grantee has failed to perform any obligation under this Franchise or has failed to perform in a timely manner, and Grantor wishes to impose liquidated damages or seek revocation under this Section 7, Grantor shall notify Grantee in writing, stating with reasonable specificity the nature of the alleged violation. Grantee shall have a Cure Period following receipt of such notice to: 1) Respond to Grantor, contesting Grantor's assertion that a violation has occurred and request a hearing in accordance with Section 7.4.D below; or 2) Cure the violation; or 3) Notify the Grantor that Grantee cannot cure the violation within the Cure Period because of the Il:ature of the violation, and notify the Grantor in writing of what steps the Grantee shall take to cure the violation including the Grantee's projected completion date for such cure. In such case, the Grantor shall, within thirty (30) days of receipt of such response, either a) accept the Grantee's plan and schedule for curing the violation, or b) set a hearing in accordance with 7.4.B below. The Cure Period, for purposes of Section 7, shall be thirty (30) days, unless Grantor specifies a longer cure period, and except that in cases of emergency, or repeat violations within any 3-month period, the Grantor may set a reasonable shorter Cure Period. November 21,2001/11:17 AM7 - FRANCHISE REGULATION & CUSTOMER SERVICE / Page 39 City of Woodburn Cable Franchise If a Grantee fails to demonstrate to the reasonable satisfaction of Grantor that no violation exists, or if Grantee fails to correct the violation within the time prescribed, or if a Grantee is unable to correct the violation and fails to commence corrective action within the time prescribed and to diligently remedy such violation thereafter, the Grantee shall then be given written notice of not less than thirty (30) days of a public hearing to be held before the Council, pursuant to Section 7.4.E. of this Franchise. Said notice shall indicate with reasonable specificity the violation alleged to have occurred. This procedure shall apply to all alleged Franchise violations, including those in which grounds for revocation are considered. 7.4.B Plan for Cure In the event that the Grantee notifies the Grantor that it cannot cure the violation within the Cure Period, and proposes a plan and schedule for cure which is not accepted by the Grantor, Grantor may, within thirty (30) days of Grantee's receipt of such notice, set a hearing before the City Council. At the hearing, Grantee shall review and determine whether the Grantor has taken reasonable steps to cure the violation and whether the Grantor's proposed plan and completion date for cure are reasonable. In the event such plan and completion date are determined by mutual consent to be reasonable, the same may be approved by the Grantor, who may waive all or part of the liquidated damages for such extended cure period in accordance with the criteria set forth in Section 7.4.F. 7.4.C Imposition of Liquidated Damages In the event that the Grantee fails to cure the violation within the Cure Period, or within an extended cure period approved by the Grantor pursuant to Section 7.4.B the Grantor may impose liquidated damages or revoke this Franchise in accordance with this Section 7, but may do so only in accordance with the requirements of this Section, only after it holds a hearing before the City Council to determine what liquidated damages, if any, or revocation, shall be applied. Any such liquidated damages shall not begin to accrue until after the Cure Period has expired. 7.4.D Contest of Violation In the event that the Grantee contests the Grantor's assertion that a violation has occurred, and requests a hearing in accordance with Section 7.4.A (1) above, the Grantor shall set a hearing within sixty (60) days of the Grantor's receipt of the hearing request to determine whether the violation November 21,2001/11:17 AM7 - FRANCHISE REGULATION & CUSTOMER SERVICE / Page 40 City of Woodburn Cable Franchise has occurred, and if a violation is found to have occurred, what remedies under this Section 7 shall be applied. 7.4.E Opportunity to Be Heard In the case of any hearing pursuant to this Section 7.4 Grantor shall notify Grantee of the hearing in writing at least 30 days prior to the hearing date. At the hearing, Grantee shall be provided an opportunity to be heard, examine Grantor's witnesses, and to present evidence in its defense. The Grantor may also hear any other Person interested in the subject, and may provide additional hearing procedures as Grantor deems appropriate. After the hearing is closed, Grantor shall issue written fmdings and a decision based on the evidence presented. In the event Grantor determines that a breach has occurred, Grantor may appeal the decision of the City Council to a court of competent jurisdiction for a judicial review. 7.4.F Reduction of Liquidated Damages The liquidated damages set forth in Section 7.2 of this Franchise may be reduced at the discretion of the Grantor, taking into consideration the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: 1) Whether the violation was unintentional; 2) Whether substantial harm resulted; 3) Whether there is a history of prior violations of the same or other requirements; 4) Whether there is a history of overall compliance, and/or; 5) Whether the violation was voluntarily disclosed, admitted or cured. 7.4.G Nature of Remedies If, after the hearing, Grantor determines that a violation exists, Grantor may use one or more of the following remedies: 1) Order Grantor to correct or remedy the violation within a reasonable time frame as Grantor shall determine; 2) Establish the amount of liquidated damages set forth in Section 7.5, taking into consideration the criteria provided for in Section 7.4.F as appropriate in Grantor's discretion; 3) Revoke this Franchise, subject to Sections 7.4 and 11.1 of this Franchise and/ or;i November 21,2001/11:17 AM7 - FRANCHISE REGULATION & CUSTOMER SERVICE / Page 41 City of Woodburn Cable Franchise 4) Pursue any other legal or equitable remedy available under this Franchise or any applicable law 7.5 LIQUIDATED DAMAGES 7.5.A Amounts: Because Grantor's failure to comply with provisions of the Franchise will result in injury to the Grantor, and because it will be difficult to estimate the extent of such injury in certain instances, the Grantor and Grantor agree to the following liquidated damages for the following violations. Violation of the Franchise in these instances will damage the Grantor, the amount of such damage will be impracticable to determine, and the specified amounts are the parties' best estimate of the damages resulting from each injury. 1) For failure to extend Cable Service within the Franchise Area as required: by this Franchise, Twenty-Five Dollars ($25) per day, per affected potential Subscriber, up to a maximum of $500 per day. 2) For failure to provide any capability for Public, Education and Government Access use of the Cable System required in this Franchise: Five Hundred Dollars ($500) for each violation, per day. 3) For violation of applicable customer service standards: Twenty-Five Dollars ($25) per day, multiplied by the number of affected Subscribers, up to a maximum of $500 per day. 4) For failure to upgrade the Cable System as provided for in this Franchise: Two Hundred Fifty Dollars ($250) per day for the first 365 days of violation, and Five Hundred Dollars ($500) per day thereafter. 5) For failure to submit any report, maps, documentation, or other information required by this Franchise, Fifty Dollars ($50) per day for each day past the due date for the first thirty (30) days, and One Hundred Dollars ($100) per day thereafter. 6) For all other material violations of this Franchise, other than those specified in this Section, for which actual damages may not be ascertainable, up to One Hundred Dollars ($1,00) per day for each provision of this Franchise that is violated. 7.5.B Collection of Liquidated Damages. The collection of liquidated damages by the Grantor shall in no respectdaffect: November 21,2001/11:17 AM7 - FRANCHISE REGULATION & CUSTOMER SERVICE / Page 42 City of Woodburn Cable Franchise 1) Compensation owed to Subscribers; or 2) The Grantor's obligation to comply with all of the provisions of this Franchise or applicable law; or 3) Other remedies available to Grantor. 7.5.C Recourse to Securities In conformance with the procedural requirements herein, the Grantor shall be entitled to draw upon the Grantor's letter of credit, performance bond or any security, including any parental guarantee, to collect the foregoing damages. 7.6 Remedies Not Exclusive The Grantor has the right to apply anyone or any combination of the remedies provided for in this Franchise, including without limitation all remedies provided for in this Section 7, and may without limitation pursue any rights, remedies or actions that it may have in law or equity regardless of whether they are specifically mentioned in this Franchise. 7.7 Customer Service & Consumer Protection Standards The following customer service and consumer protection standards shall apply. Nothing in this Section shall limit the rights of the Grantor to establish additional or different standards in accordance with federal law and regulations. 7.7.A Customer Service and Telephone Responsiveness 1) The Grantee shall maintain an office within the Urban Growth Boundary of Woodburn. The office must be staffed 40 hours per week, and Grantee shall be able to respond to subscribers and the public not less than 40 hours per week during normal business hours, plus at least 8 weekend or evening hours. 2) During the 40 hours the office is open, customer service representatives shall be available to respond in at least the following ways: to accept payments; to exchange or accept returned converters or other company equipment; and to respond to inquiries. 3) Toll-free telephone lines, either staffed or with answering capability, providing at least emergency referral information, must be operational 24 hours a day, including weekends and holidays. November 21,2001/11:17 AM? - FRANCHISE REGULATION & CUSTOMER SERVICE / Page 43 City of Woodburn Cable Franchise 4) No later than the completion of the system upgrade required in this Franchise, the Grantee shall maintain and make available upon request statistical data to verify, on average a) Sufficient customer service staff and telephone line capacity to handle normal call volume with a minimum of delay to customers. Under normal operating conditions, the customer will receive a busy signal less than 3% of the time. Grantee shall be excused from providing the data relative to meeting this busy signal standard if the relevant data is practically unable to obtain through a request for it from the appropriate telephone service provider. b) Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds once the connection is made. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions, measured on a quarterly basis. 7.7.B Service and Repair Calls 1) Under normal operating conditions, at least 95% of the time measured on a quarterly basis, requests from subscribers for repair and maintenance service must be acknowledged by the Grantee within 24 hours from the time of the request or prior to the end of the next business day, whichever is earlier. Repair and maintenance for service interruptions or other repairs not requiring on-premises work must be completed within 24 hours under normal circumstances. All other repairs should be completed within 72 hours under normal circumstances. 2) Under normal operating conditions, at least 95% of the time measured on a quarterly basis, as a normal operating procedure, upon subscriber request for service calls, installations or other installation activities, the Grantee shall offer either a specific time or, at maximum, a four-hour time block during normal business hours. (The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.) The Grantee shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. November 21, 2001/ 11:17 AM7 - FRANCHISE REGULATION & CUSTOMER SERVICE / Page 44 7.7.C City of Woodburn Cable Franchise If a Grantee representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. 3) For mobility-limited customers, upon subscriber request the Grantee shall arrange for pickup and/or replacement of converters or other company equipment at the subscriber's address, or else a satisfactory equivalent (such as the provision of a postage-prepaid mailer). 4) Under normal operating conditions, at least 95% of the time measured on a quarterly basis, where the service requested is installation of service, standard installations shall be performed by the Grantee within seven (7) business days after an order has been placed. "Standard" installations, for the purposes of this Section, shall mean those that are located up to 150 feet from the existing distribution system. Disconnection 1) The Grantee may disconnect a subscriber if: a) at least 30 days have elapsed without payment after the due date for payment of the bill of the affected subscriber; and b) the Grantee has provided at least 10 days written notice to the affected subscriber prior to disconnection, specifying the effective date after which cable services are subject to disconnection. 2) Regardless of subsection 7.7.C(1) hereof, the Grantee may disconnect a subscriber for cause at any time if the Grantee in good faith determines that the subscriber has tampered with or abused company equipment, or is or may be engaged unlawfully in theft of cable services, or is causing a system violation of FCC rules or regulations. 3) The Grantee shall promptly disconnect any subscriber who so requests from the Grantee's cable system. No period of notice prior to voluntary termination of service may be required of subscribers by the Grantee. No charge may be imposed by the Grantee for any cable services delivered after the date of the disconnect request. Upon the later of the date of actual disconnection or the return of all company equipment to Grantee, the Grantee shall under normal operating conditions, at least 95% of the time measured on a quarterly basis, within November 21,2001/11:17 AM? - FRANCHISE REGULATION & CUSTOMER SERVICE / Page 45 City of Woodburn Cable Franchise thirty working days return to such subscriber the amount of the deposit, if any, collected by Grantee from such subscriber, less any undisputed amounts owed to Grantee for cable services or charges prior to the date of disconnection. 7.7.D Credits Upon Outage Except for planned outages where subscribers are provided reasonable notification in advance, upon a subscriber's request the Grantee shall provide a pro-rated 24-hour credit to the subscriber's account for any period of four hours or more during which that subscriber experienced the effective loss or substantial impairment of video or audio service on the system. 7.7.E Downgrade Charges Grantee may not impose Downgrade Charges on Subscribers, except as allowed by applicable law. 7.7.F Billing Information Required The Grantee bill to subscribers shall itemize each category of service, equipment, or other applicable fees, and state clearly the charge therefor. The Grantee shall make its best effort to inform subscribers as clearly as possible when payments are due and when late fees and disconnection may occur. 7.7.G Information to Subscribers 1) Upon installing initial service to or reconnecting each customer, and upon request by the customer thereafter, and upon request by the Grantor but no more often as a result of such request than annually, the Grantee shall advise the customer, in writing, of: a) the equipment and services currently available (including parental lock-out devices) and the rates and charges which apply; b) the amount and criteria for any deposit required by Grantee, if applicable, and the manner in which the deposit will be refunded; c) the Grantee's policies and procedures by which complaints or inquiries of any nature will be addressed; November 21,2001/11:17 AM7 - FRANCffiSE REGULATION & CUSTOMER SERVICE / Page 46 City of Woodburn Cable Franchise d) the toll-free telephone number and address of the Grantee's office to which complaints and inquiries may be reported; e) the company's practices and procedures for protecting against invasions of subscriber privacy; and f) the notice and referral information, as set forth in subsection 7.7.G(2) hereof. 2) Notice to Subscribers a) The Grantee shall inform the Grantor and subscribers within 30 days, prior to any changes in programming or increases in rates, costs, or charges to subscribers, or any channel repositioning within the control of Grantee. b) All Grantee promotional materials, announcements, and advertising of residential cable services to subscribers and the general public, where price information is listed in any manner, shall clearly and accurately disclose price terms. In the case of pay-per-view or pay-per- event programming, all Grantee-prepared promotional materials must clearly and accurately disclose price terms and any restrictions for use. Likewise, in the case of telephone orders, the Grantee shall take appropriate steps to ensure that Grantee customer service representatives clearly and accurately disclose price terms and any restrictions for use to potential customers in advance of taking the order. c) The Grantee shall, upon request by the Grantor and no more often than annually, send at Grantee's own expense written notice approved by the Grantor to all subscribers that any complaints or inquiries not satisfactorily handled by the Grantee may be referred to the Grantor or its designee, giving the address and phone number of the appropriate Grantor office. Such notification may be included with a billing statement. 7.7.H Complaint Acknowledgment Within ten (10) days following receipt of a written complaint from a subscriber which is separately mailed to and received at the Grantee's primary business address, the Grantee shall provide an acknowledgment by phone or in writing to the subscriber of receipt of the complaint and of any action the Grantee has taken or intends to take in response to the complaint. This requirement does not apply to complaints November 21,2001/11:17 AM7 - FRANCmSE REGULATION & CUSTOMER SERVICE / Page 47 City of Woodburn Cable Franchise submitted for processing by a regulatory agency other than the Grantor, such as the FCC. 7.7.1 Complaint Resolution 1) The Grantor may take all necessary steps to ensure that all subscribers and members of the general public have recourse to a hearing of any complaints, where there is evidence that the Grantee has not settled the complaint to the satisfaction of the person initiating the complaint. 2) For purposes of this Section, a "complaint" is a grievance related to the service of the cable communications system within the Franchise area that is reasonably remediable by the Grantee, but does not include grievances regarding the content of programming or information services other than grievances regarding broad categories of programming, and does not include customer contacts resulting in routine service calls that resolve the customer's problem satisfactorily to the customer. November 21,2001/11:17 AM7 - FRANCHISE REGULATION & CUSTOMER SERVICE / Page 48 City of Woodburn Cable Franchise 8. GENERAL FINANCIAL AND INSURANCE PROVISIONS 8.1 Compensation 8.1.A Franchise Fee 1) As compensation for the Franchise to be granted, and in consideration of permission to use the streets and public ways of the Grantor for the construction, operation, and maintenance of a Cable System within the Franchise area and to defray the costs of Franchise regulation, the Grantee shall pay to Grantor an amount equal to five percent (5%) of the gross receipts generated in any manner through the operation of the cable system to provide Cable Services under this Franchise. In the event any law or valid rule or regulation applicable to this Franchise limits Franchise fees below the five percent (5%) of Gross Receipts required herein, the Grantee agrees to and shall pay the maximum permissible amount and, if such law or valid rule or regulation is later repealed or amended to allow a higher permissible amount, then Grantee shall pay the higher amount up to the maximum allowable by law, not to exceed five percent (5%). 2) Any bad debts or other accrued amounts deducted from Gross Revenues in the calculation of Gross Receipts shall be included in Gross Receipts at such time as they are actually collected. 3) The Grantee shall, upon request by the Grantor, supply to the Grantor an up-to-date list of all entities receiving Gross Revenues as such revenues are defined in this Franchise. 8.1.B Payment of Franchise Fees 1) Payments due under this provision shall be computed and paid quarterly, for the preceding quarter, as of March 31, June 30, September 30, and December 31. Each quarterly payment shall be due and payable no later than forty-five (45) days after the dates listed in the previous sentence. A quarterly report shall be made as hereinafter provided which shall contain the relevant facts necessary for the Grantor to verify the amounts of Franchise fee payments. Late franchise fee payments will be subject to late fees calculated on the basis of nine percent (9%) per annum of the amount past due. 2) No acceptance of any payment shall be construed as accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any November 21,2001/11:17 AM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page 49 City of Woodburn Cable Franchise claim Grantor may have for further or additional sums payable under the provisions of this Franchise. All amounts paid shall be subject to audit and recomputation by Grantor. 8.1.C Franchise Fees on Bundled Services When Cable Services are bundled with non-cable services and sold to subscribers at a discounted price, or simply as part of the total price for the bundled services, then the allocation of revenues for the purpose of calculating Gross Revenues and cable franchise fees shall be reasonably proportionate to the average relative price of the individual services as normally charged during the period for which the franchise fees are calculated. Nothing in this Section shall be construed to (1) regulate Grantee's rates in a manner beyond that which is expressly authorized by federal law; or (2) compel Grantee to pay more than its statutorily authorized taxes and fees on combined cable and non-cable services. 8.2 Faithful Performance Bond 8.2.A Posting Upon or before the effective date of this Franchise, the Grantee shall furnish proof of the posting of a faithful performance bond running to the Grantor with good and sufficient surety approved by the Grantor, in the penal sum of Three Hundred Thousand Dollars ($300,000.00), conditioned that the Grantee shall well and truly observe, fulfill and perform each term and condition of this Franchise. Such bond shall be maintained by the Grantee throughout the term of this Franchise; except that after five years from the effective date of this Franchise Grantee may request a review by the Grantor for a reduction to a bond value of One Hundred Fifty Thousand Dollars ($150,000) which request shall not be unreasonably denied provided Grantee has acted in good faith in accordance with this Franchise. 8.2.B Payment of Premiums Grantee shall pay all premiums charged for any bond or other s~curity required under Sections 8.2, 8.3, and 8.4, and unless the City Council specifically directs otherwise, shall keep the same in full force and effect at all times through the later of either: 1) The remaining term of this Franchise; or 2) If required by the Grantor, the removal of all of Grantee's system installed in the Grantor's Streets and Public Ways. November 21,2001/11:17 AM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page 50 City of Woodburn Cable Franchise 8.2.C Notice of Termination The bond shall contain a provision that it shall not be terminated or otherwise allowed to expire without 30 days written notice first being given to the Grantor. The bond shall be subject to the approval of the City Attorney as to its adequacy under the requirements of Sections 8.2, 8.3, and 8.4. During the term of the bond, Grantee shall file with the Grantor a duplicate copy of the bond along with written evidence of payment of the required premiums unless the bond otherwise provides that the bond shall not expire or be terminated without 30 days prior written notice to the Grantor. 8.3 Construction Bond During the entire period of the System upgrade required by this Franchise, Grantee shall post a faithful performance bond or irrevocable letter of credit, running to the Grantor, with good and sufficient surety approved by the Grantor, in the sum of One Hundred Thousand Dollars ($100,000). The bond or letter of credit shall be conditioned that the Grantee shall well and truly observe, fulfill and perform each term and condition under Section 4 and Section 6.5. Grantee shall pay all premiums or other costs associated with maintaining the bond or letter of credit, and shall keep the same in full force and effect at all times during the upgrade construction work. The bond or letter of credit shall provide that it may be terminated upon final written approval of Grantee's upgrade construction work in or under the Streets by the Grantor. Upon such approval, the Grantor agrees to sign all documents necessary to release the bond in accordance with the terms of this Section. During the duration of the upgrade construction work, Grantee shall file with the Grantor a copy of the bond or letter of credit, along with written evidence of the required premiums. The bond or letter of credit shall be subject to the approval of the City Attorney as to its adequacy. Following the period of the System upgrade required by this Franchise, the Grantee shall be subject to such construction bond requirements as may be imposed by the Grantor as part of the process of obtaining appropriate permits for particular projects. 8.4 Security Fund Upon or before the effective date of this Franchise, Grantee shall establish a cash security fund of Twenty-Five Thousand Dollars ($25,000) under the control of the Grantor, or provide the Grantor an irrevocable letter of credit in the amount of Twenty-Five Thousand Dollars ($25,000), to secure the payment of fees owed, to secure any other performance promised in this Franchise, and to pay any taxes, fees or liens owed to the Grantor. The letter of credit shall be in a form and with an institution acceptable to the Grantor and in a form acceptable to the City Attorney. Should the Grantor draw upon the cash November 21,2001/11:17 AM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page 51 City of Woodburn Cable Franchise security fund or letter of credit, it shall promptly notify the Grantee, and the Grantee shall promptly restore the fund or the letter of credit to the full- required amount. However, prior to any fund attachment, Grantee shall be provided with notice of the amount owed, the reason for the amount owed, and be given a reasonable opportunity to make the required payment, which shall be no less than 30-days. The minimum 30-day period shall be calculated from the date Grantee receives the notice of the required payment. 8.5 Damages and Defense 8.5.A General Indemnification Grantee agrees and covenants to indemnify, defend and hold the Grantor, its officers, agents and employees harmless from any claim for injury, damage, loss, liability, cost or expense, including expert witnesses and other consultants, court and appeal costs and reasonable attorney fees or expenses, arising from any casualty or accident to person or property, including, without limitation, copyright infringement, defamation and all other damages, arising out of or by reason of any construction, excavation, operation, maintenance, reconstruction or any other act done under this Franchise, by or for Grantee, its agents, or its employees, or by reason of any neglect or omission of Grantee to keep its system in a safe condition, but not if arising out of or by reason of any negligence or willful misconduct by the Grantor or its officers, agents or employees. The Grantor shall provide Grantee prompt notice of any such claim which Grantee shall defend with counsel of its own choosing and no settlement or compromise of any such claim will be done without the prior written approval of the Grantor which approval shall not be unreasonably withheld. Grantee shall consult and cooperate with the Grantor while conducting its defense of the Grantor and the Grantor shall fully cooperate with Grantee. 8.5.B Defense of the Franchise Grantee agrees and covenants to indemnify, defend and hold the Grantor, its officers, agents and employees, harmless from injury, damage, loss, liability, cost or expense, including expert witnesses and other consultants, court and appeal costs and reasonable attorney fees or expenses, arising from or in any way related to the grant of, or terms of, this Franchise. This agreement to indemnify, defend and hold harmless encompasses, but is not limited to, injury, damages, losses, liabilities, costs or expenses, including expert witnesses and other consultants, court and appeals costs and reasonable attorney fees and expenses that in any way arise in connection with a claim or defense that the Grantor: (1) lacked authority under federal or state law, their respective charters, city codes or ordinances in issuing this Franchise to Grantee; (2) violated federal or state laws, if any, in awarding this Franchise to Grantee; (3) acted in any disparate or discriminatory November 21,2001/11:17 AM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page 52 City of Woodburn Cable Franchise manner against any incumbent franchisee in awarding this Franchise to Grantee; (4) granted this Franchise to Grantee in violation of any incumbent franchisee's contractual rights; (5) are required to alter the terms of another Franchise because of the terms of this Franchise; or (5) accepted terms or conditions in the Franchise awarded to Grantee which violate federal or state laws. 8.6 Liability Insurance and Indemnification 8.6.A Insurance Coverage Grantee shall maintain automobile and Worker's Compensation insurance, as well as public liability and property damage insurance, that protects the Grantee and the Grantor, its officers, agents and employees, from any and all claims for damages or personal injury including death, demands, actions and suits brought against any of them arising from operations under this Franchise or in connection therewith, as follows: 8.6.B Minimums and Limits The insurance shall provide coverage at all times for not less than $5,000,000 for personal injury to each person, $5,000,000 aggregate for each occurrence, and $1,000,000 for each occurrence involving property damages, plus costs of defense; or a single limit policy of not less than $5,000,000 covering all claims per occurrence, plus costs of defense. The limits of the insurance shall be subject to statutory changes as to the maximum limits of liability imposed on municipalities of the State of Oregon during the term of this Franchise. The insurance shall be equal to or better than commercial general liability insurance. The evidence of coverage for Workers' Compensation shall show that it includes State of Oregon Statutory Limits, and Employer's Liability limits of at least $5,000,000. Grantee's insurance carrier shall have an A. M. Best rating of "A" or better, or a Best Financial Performance Rating of 7 or better. 8.6.C Additional Insureds The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the Grantor and its officers, agents, and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would November 21,2001/11:17 AM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page 53 City of Woodburn Cable Franchise have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. 8.6.D Cancellation and Replacement The insurance shall provide that the insurance shall not be canceled or materially altered so as to be out of compliance with the requirements of this Section 8.6 without thirty (30) days written notice first being given to the Grantee and the Grantor. If the insurance is canceled or materially altered so as to be out of compliance with the requirements of this Section 8.6 within the term of this Franchise, Grantee shall provide a replacement policy. Grantee agrees to maintain continuous uninterrupted insurance coverage, in the amounts required, for the duration of this Franchise. 8.6.E Certificate of Insurance Grantee shall maintain on file with the Grantor a certificate of insurance certifying the coverage required above, which certificate shall be subject to the approval of the City Attorney as to the adequacy of the certificate and of the insurance certified under the requirements of Section 8.6. The certificate shall show that the general liability portion of the insurance includes: 1) Broad form property damage; 2) Products and completed operations; 3) Explosion, collapse, and underground exposures; 4) Contractual liability; and 5) Owners and contractors protective coverage. 8.6.F Grantor Held Harmless The Grantee shall also indemnify, defend and hold harmless the Grantor and its officers, agents and employees for any and all claims for damages or personal injury which exceed the limits of insurance provided for in this Section. November 21,2001/11:17 AM8 - GENERAL FINANCIAL & INSURANCE PROVISIONS / Page 54 City of Woodburn Cable Franchise 9. RIGHTS RESERVED TO GRANTOR 9.1 Grantor's Purchase of the System 9.1.A Continuation of Operations I Purchase at Fair Market Value In the event Grantor has declared a forfeiture for cause or otherwise revoked for cause this Franchise agreement as provided in Sections 7.4 or 11 herein, or in the event of expiration of the initial term of this Franchise agreement without the Franchise being renewed or extended in accordance with Cable Act guidelines, the Grantee shall continue its operations for a period of up to 270 days under the terms and conditions of this Franchise agreement and as required by Section 11 herein, following the date of the forfeiture or revocation or expiration of the initial term, if such continuation of operations is ordered by the Grantor. If the Grantor purchases the Cable System or any part of it under these circumstances, the fair value of the system for purpose of this subsection 9.1.A shall be determined by mutual agreement between Grantor and the Grantee. The Grantor, however, does not have a right of first refusal or other right to purchase or acquire the Cable System under this Franchise. For purposes of revocation or forfeiture under this subsection 9. LA, the fair value of all or part of the system shall be an equitable price for the system or part of the system being acquired, reduced by the amount of any lien, encumbrance, or obligation of the Grantee which Grantor may assume. For any other purpose under this Section, the fair value of all or part of this system shall be its fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the Franchise itself, reduced by the amount of any lien, encumbrance, or obligation of the Grantee which Grantor may assume. In the event of the Grantor's acquisition of all or portions of Grantee's cable system, as provided herein, Grantee shall use all best efforts to obtain any needed consent to assignment, to the extent any existing and future rental, lease, and lease-purchase arrangements for Grantee's cable system or any facilities to be acquired require any consent to assignment by third parties; and Grantee shall not unreasonably withhold any consent to assignment of any rental, lease, and lease- purchase arrangements for Grantee's cable system or any facilities to be acquired. November 21, 2001/11:17 AM 9 - RIGHTS RESERVED TO GRANTOR / Page 55 City of Woodburn Cable Franchise 9.1.B Transfer of System to Others In the event Grantor purchases, acquires, takes over, or holds all or parts of the system pursuant to subsection 9.1.A or through any other lawful process, Grantor shall have the right without limitation to assign, sell, lease, or otherwise transfer its interest in all or parts of the system to any other persons, including any other Grantee of a cable communications Franchise, on whatever terms Grantor deems appropriate. 9.1.C Cable Act Requirements The provisions of this Section shall be subject to the provisions 47 U.S.C. '627 (Section 547 of the Cable Act), as amended from time to time. It is not intended that this Section diminish the rights of either the Grantor or the Grantee under the Act, and any provision of this Section that purports to diminish such rights shall be deemed superseded by the Act. 9.2 Eminent Domain Nothing in this Franchise is intended to expand or restrict the Grantor's lawful condemnation authority. 9.3 Right to Perform Franchise Fee Audit or Review The Grantor shall have the right to perform, or cause to have performed, a formal audit or a professional review of the Grantee's books and records, and, for the specific purposes of a Franchise enforcement effort, the books and records of any parent or affiliate company, for the purpose of determining the gross receipts of the Grantee generated in any manner through the operation of the cable system under this Franchise and the accuracy of amounts paid as Franchise fees to the Grantor by the Grantee, provided that any audit or review must be commenced not later than five (5) years after the date on which Franchise fees for any period being audited or reviewed were due. As part of any such audit, Grantee shall, upon request, identify for the Grantor the amount collected by the Grantee or any parent or affiliate of the Grantee from the use of Grantee's cable communications system under this Franchise to provide Cable Services. The cost of any such audit or review shall be borne by the Grantor, except that if it is established that the Grantee has made underpayment of 2% or more in Franchise fees than required by this Franchise, then the Grantee shall, within 30 days of being requested to do so by the Grantor, reimburse the Grantor for the full cost of the audit or review. To the extent that they are not involved in the operation of the Cable System, Financial Partners shall not be subject to audit or review of their Records under this Section 9.3; provided that, should specific Records needed by the Grantor for an audit or review reside with a Financial Partner, it shall be made available to the November 21, 2001 /11:17 AM 9 - RIGHTS RESERVED TO GRANTOR / Page 56 City of Woodburn Cable Franchise Grantor by the Grantee upon request. Nothing in the Section implies that the Grantor waives its right to have legal recourse through the courts to obtain Records necessary to the enforcement of the Franchise. 9.4 Right of Inspection of Construction The Grantor or its representatives shall have the right to inspect all construction or installation work performed pursuant to the provision of this Franchise agreement and to make such tests as it shall find necessary to ensure compliance with the terms of this Franchise and other pertinent provisions of law. 9.5 Intervention This Franchise does not alter any lawful right Grantor may have to intervene in any suit or proceeding to which the Grantee is party which may have an effect upon the construction, upgrade, maintenance or operation of the system 9.6 Right to Require Removal of Property At the expiration of the term for which the Franchise is granted providing no renewal is granted following completion of the renewal procedures required by the Cable Act, or upon its forfeiture or revocation, as provided for herein, the Grantor shall have the right to require the Grantee to remove, at Grantee's own expense, all or any part of the cable communications system from all streets and public ways within the Franchise area. If the Grantee fails to do so, the Grantor may perform the work and collect the cost thereof from the Grantee. The actual cost thereof, including direct and indirect administrative costs, shall be a lien upon all plant and property of the Grantee effective upon placement in the lien books of the Grantor. Notwithstanding the other provisions of this Section, the Grantee, by written notice to the Grantor, m~y elect to abandon underground cable in place, in which event the Grantee shall have no further obligation hereunder as to the abandoned cable; except that the Grantor may nevertheless, by written notice, require the Grantee to remove cable as deemed necessary by the Grantor to provide space for other authorized uses or to accomplish or enable the accomplishment of other public purposes. November 21,2001/11:17 AM 9 - RIGHTS RESERVED TO GRANtOR / Page 57 City of Woodburn Cable Franchise 10. RIGHTS OF INDIVIDUALS PROTECTED 10.1 Discriminatory Practices Prohibited IO.1.A Grantee Shall Not Unlawfully Discriminate The Grantee shall not deny service, deny access, or otherwise unlawfully discriminate against subscribers, programmers, or persons on the basis or race, color, religion, national origin, sex, age, disability, income, or, except as otherwise provided herein, the area in which such person lives. The Grantee shall adhere to the equal employment opportunity requirements of the federal government, as expressed in Section 76. 13(a) (8) and 76.311 of Chapter 1 of Title 47 of the Code of Federal Regulations, as now or hereafter constituted. The Grantee shall comply at all times with all applicable federal, state, or local laws, rules and regulations relating to non-discrimination. lO.1.B Services to Disabled The Grantee shall comply with all laws regarding the provision of Cable Services to Subscribers with disabilities, including the provision of a remote control device to those subscribers who are mobility limited, or where a member of the subscriber's household is mobility limited. This obligation includes Grantee's compliance with all requirements for hearing impaired customers, such as the provision of information concerning the cost and availability of equipment to facilitate the reception of all basic services for the hearing impaired. In addition, Grantee, upon request by a hearing impaired Subscriber, shall make available a TDD/TTY, or shall make arrangements to accommodate the Subscriber in a comparable manner satisfactory to the Subscriber. lO.l.C Permitted Discounts Nothing in this Section shall be construed to prohibit: 1) the temporary reduction or waiving of rates and charges in conjunction with promotional campaigns; or 2) offering reasonable discounts to economically disadvantaged citizens. 3) the establishment of different rates for different classes of customers and services. 10.2 Privacy and Other Rights The Grantee shall be subject to 47 U.S.C Section 631 (Section 551 of the Cable Act), as amended from time to time, regarding limitations on the cable November 21,2001/11:17 AM 10 - RIGHTS OF INDIVIDUALS PROTECTED / Page 58 City of Woodburn Cable Franchise company's collection and use of personally identifiable information, and other issues involving the protection of subscriber privacy. In addition, subject to applicable law, the Grantee shall not utilize, nor intentionally permit to be utilized by others, the two-way communications capability of the system for unauthorized or illegal subscriber surveillance of any kind. For purposes of this subsection, tenants who occupy premises shall be deemed to be subscribers, regardless of who actually pays for the service. Written consent, as required herein, shall not be required of any subscriber by Grantee as a condition of receiving any other cable service. 10.3 Permission of Property Owner Required No cable, line, wire, amplifier, converter, or other piece of equipment owned by the Grantee shall be installed by the Grantee without first securing the written permission of the owner or tenant of any property involved except where there is an existing utility easement or other easement reserved by plat or other conveyance. If such permission or easement is later lawfully revoked, whether by the original or a subsequent owner or tenant or Grantor, the Grantee shall remove forthwith on request of the owner or tenant any of its equipment and promptly restore the property to its original condition. The Grantee shall perform all installations and removals in a workmanlike manner and shall be responsible for any damage to residences or other property caused by the installation. 10.4 Multiple Dwelling Units Grantee shall offer and provide to individual units of a multiple housing facility, such as a duplex, apartment or condominium unit, all services offered and provided to other dwelling units within the Franchise area; provided that this requirement shall not apply in cases where a) Grantee is providing services under a bulk services agreement with a building owner, ~) where offering full service not legally possible because a building owner prevents it or because of other circumstances, or c) where total construction costs would exceed $250 per subscriber and the subscriber is unwilling to pay the amount of the cost exceeding that figure. November 21,2001/11:17 AM 10 - RIGHTS OF INDIVIDUALS PROTECTED / Page 59 City of Woodburn Cable Franchise 11. TERMINATION AND EXPIRATION 11.1 Revocation 11.1.A General In addition to any rights set out elsewhere in this document, the Grantor reserves the right to declare a forfeiture or otherwise revoke this Franchise, and all rights and privileges pertaining thereto, under certain circumstances. II.I.B Conditions of Revocation The grounds for which the Grantor may declare forfeiture or revoke the Franchise are the following: 1) the Grantee is in substantial violation of any material provision of the Franchise agreement after application by the Grantor of a remedy lesser than Franchise revocation pursuant to this Franchise agreement, and fails to correct the violation after written notice of the violation and proposed forfeiture and a reasonable opportunity thereafter to correct the violation; 2) the Grantee or the Guarantor becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt; 3) the Grantee is found to have engaged in fraud or deceit upon the Grantor, persons or subscribers; 4) the Grantee fails to obtain and maintain any permit required by any federal or state regulatory body, relating to the construction, maintenance and operation of the system; provided, however, that the Grantee shall be allowed a reasonable time to cure failure to obtain any permit; or 5) the Grantee fails to maintain the full amount of its insurance and security fund or to post a performance bond, and construction bond, as required under the terms of this Franchise. l1.I.C Due Process Upon the occurrence of one of the events set out above, following 30 days written notice to Grantee of the occurrence and the proposed forfeiture and an opportunity for Grantee to be heard, Grantor may by ordinance declare a forfeiture. In a hearing of the Grantee, the Grantee shall be afforded due process rights as if the hearing were a contested case November 21,2001/11:17 AM 11 - TERMINATION & EXPIRATION/Page 60 City of Woodburn Cable Franchise hearing subject to ORS Chapter 183, including the right to subpoena and cross-examine witnesses, to subpoena documents, and to require that all testimony be on the record. Findings from the hearing shall be written, and shall stipulate the reasons for the Grantor's decision. In the event that the Grantee believes that the Grantor improperly has declared a forfeiture, the Grantee may file such proceeding as is appropriate in a court of competent jurisdiction to determine whether the Grantor properly has declared a forfeiture. 11.2 Receivership In addition to its other rights and remedies as set forth in this Franchise, the Grantor shall have the right, subject to federal law, to declare a forfeiture of this Franchise one hundred and twenty (120) days after the appointment of a receiver or trustee to take over and conduct the Grantee's business, whether in receivership, reorganization, bankruptcy or other similar action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred and twenty (120) days, or unless: a) within one hundred and twenty (120) days after such appointment, the receiver or trustee shall have fully complied with all provisions of this Franchise and remedied any and all violations or defaults, as approved by a City Council resolution; and b) within said one hundred and twenty (120) days, such receiver or trustee shall have executed an agreement with the Grantor, duly approved by the Grantor and the court having competent jurisdiction, in which such receiver or trustee assumes and agrees to be bound by each and every provision of this Franchise. 11.3 Expiration Upon expiration of the Franchise, in the event there is no forfeiture or revocation of the Franchise, and the Grantee desires to renew the Franchise, both the Grantee and the Grantor shall abide by the Franchise renewal provisions of the Cable Act, as amended from time to time. 11.4 Continuity of Service Mandatory It shall be the right of all subscribers to receive all available services insofar as their financial and other obligations to the Grantee are honored. In the event that the Grantee elects to overbuild, rebuild, modify, or sell the system, or Grantor revokes or fails to renew the Franchise, the Grantee shall make its best effort to ensure that all subscribers receive continuous uninterrupted service, regardless of the circumstances, during the lifetime of the Franchise. In the event of purchase, lease-purchase, condemnation, acquisition, taking over and holding of plant and equipment, sale, lease or other transfer to any other person, including any other Grantee of a cable communications November 21,2001/11:17 AM 11- TERMINATION & EXPIRATION/Page 61 City of Woodburn Cable Franchise Franchise, the Grantee shall continue its operations for a period of 270 days under the terms and conditions of this Franchise agreement following the date of the transfer, if such continuation of operations is ordered by the Grantor with a view to maintaining continuity of service to all subscribers. November 21,2001/11:17 AM 11 - TERMINATION & EXPIRATION/Page 62 City of Woodburn Cable Franchise 12. OPERATION AND MAINTENANCE 12.1 Books and Records The Grantee shall maintain a business office within a radius of 25 miles of Woodburn, for managing the cable system, and, subject to the provisions of Section 10 of this Franchise and, to such privileges as may be established under Oregon law, shall make available to the Grantor access to all books and records reasonably necessary to the regulation or enforcement of the material terms of this Agreement. The Grantor shall have the right under this provision to inspect at any time during normal business hours upon reasonable notice, all such records, books, electronic or optical files, maps, plans, service complaint logs, performance test results, records required to be kept by the Grantee and also of any parent company, affiliate or any cable operator, which directly relate to the operation of the cable system in the Franchise Area, and all telephone logs and customer service logs maintained by the Grantee. If the records the Grantor wishes to inspect under the terms of this Section are not available in the business office within the radius of 25 miles, then the Grantee shall pay reasonable travel expenses to permit the Grantor to inspect the records. Access to the aforementioned records shall not be denied by the Grantee to representatives of the Grantor on the basis that said records contain "proprietary information," nor on the basis that they contain trade secrets unless the Grantor cannot protect the trade secrets from disclosure under Oregon law. To the extent allowed under Oregon law, the Grantor shall protect proprietary information including trade secrets of the Grantee from disclosure. To the extent that they are not involved in the operation of the Cable System, Financial Partners shall not be subject to inspection of their Records under this Section 12.1; provided that, should specific Records needed by the Grantor for a regulatory or enforcement effort reside with a Financial Partner, it shall be made available to the Grantor by the Grantee upon request. Nothing in the Section implies that the Grantor waives its right to have legal recourse through the courts to obtain Records necessary to the enforcement of the Franchise. Grantee agrees to meet with a representative of the Grantor upon request to review its methodology of record-keeping, financial reporting, computing franchise fee obligations, and other procedures the understanding of which the Grantor deems necessary for understanding the meaning of reports and records. 12.2 Communications with Regulatory Agencies A list of all material written petitions, applications, communications, and reports submitted by the Grantee, and also by any affiliate or any cable operator of the system authorized by this Franchise, to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in November 21,2001/11:17 AM 12 - OPERATION & MAINTENANCE / Page 63 City of Woodburn Cable Franchise respect to any matters affecting the Grantee's provision of Cable Services pursuant to this Franchise agreement, shall be submitted to the Grantor upon request, and copies of any such documents and their replies from respective agencies shall also be made available to the Grantor upon request. In addition, copies of any communications to and from any regulatory agency pertaining to any alleged, apparent or acknowledged violation of an applicable rule or law of the agency affecting operations within the Franchise area, shall be immediately submitted to the Grantor, if the communications are to or from the Grantee, or upon written request from the Grantor if the communications are to or from an affiliate or cable operator of the cable system authorized by this Franchise; except that such submission shall not be required in the case of the customary first signal leakage violation notice from the FCC based on a complaint from an individual subscriber. To the extent that Financial Partners are not involved in the operation of the Cable System, Financial Partners shall not be subject to the requirements of this Section 12.2; provided that, should specific Records needed by the Grantor for a Franchise enforcement effort reside with a Financial Partner, they shall be made available to the Grantor by the Grantee upon request. Nothing in the Section implies that the Grantor waives its right to have legal recourse through the courts to obtain Records necessary to the enforcement of the Franchise. 12.3 Reports 12.3.A Form of Reports With respect to all reports required under this Franchise, the Grantor shall accept reports in the form normally generated by the Grantee so long as the information requested by the Grantor can reasonably be recognized and understood by the Grantor in such form; provided, however, that nothing in this Franchise shall excuse the Grantee from providing such information as may be required by the Grantor for the administration and enforcement of the Franchise. - The requirements of this Section shall not require the Grantee or an affiliate to keep on a regular basis or in a particular form such records or information which may be required on an ad hoc basis by the Grantor, unless otherwise required by the Franchise. . Within 30 calendar days after the end of each fiscal quarter of the Grantee, Grantee shall, upon request of the Grantor, submit to the Grantor a summary report of all trouble call complaints received by or referred to Grantee within the report quarter. The reports shall contain, as a minimum, the specific nature of complaints, remedial action taken if any, and the current status of the complaints. Upon request by the Grantor, Grantee shall also provide outage reports, summary statisticson patterns of complaints or service problems, and other customer November 21,2001111:17 AM 12 - OPERATION & MAINTENANCE / Page 64 City of Woodburn Cable Franchise service information, provided that such information may be reasonably generated by the Grantee. Within 45 days after the end of each of the Grantee's fiscal quarters, the Grantee shall submit a written report to the Grantor, verified by an officer of Grantee, which shall contain an accurate statement of all gross revenues earned and gross receipts collected by the Grantee or any cable operator, related to operation of the cable system Franchised hereunder, in sufficient detail to enable the Grantor to verify the accuracy of Franchise fee payments. 12.3.B Annual Report No later than June 1 following the end of the Grantee's fiscal year each year, Grantee shall present a written report to the Grantor which shall include: 1) Financial statements for the Grantee and for any parent company of the Grantee-audited if existing, otherwise unaudited. 2) A financial report for the Franchise area identifying gross revenues and receipts for the previous year. Such report shall identify revenues derived from each category of services generating revenues, including but not limited to basic service, expanded basic service, pay tv, pay-per view, internet service, home shopping, and advertising. The report shall be certified as accurate by an officer of the Grantee; except that, if requested by the Grantor, no more often than once every three years, the report shall be audited. 3) A summary of the previous year's activities including, but not limited to, subscriber totals in each category and new services. All financial reports required under this Section shall be presented to the Grantor accompanied by such notes and explanations as are required to fully understand the reports. Such notes and explanations shall include, but not be limited to, an explanation of any and all deductions made from Gross Revenues in order to arrive at Gross Receipts for the calculation of Franchise fees to be paid to the Grantor. 12.3.C Additional Reports The Grantee shall prepare and furnish to the Grantor, at the times and in the form prescribed, such additional reports with respect to its operation, affairs, transactions, or property, as may be reasonably November 21,2001111:17 AM 12 - OPERATION & MAINTENANCE / Page 65 City of Woodburn Cable Franchise necessary and appropriate to the determination of the correctness of Franchise Fees paid by the Grantee, or the specific performance with respect to any other material provision of this Franchise. The requirements of this Section are not to be interpreted as authorization to establish additional regular reporting; rather they authorize the Grantor's requiring information from time to time, on an ad-hoc basis, as may be necessary for Franchise administration and enforcement. 12.4 Safety 12.4.A Safety Standards The Grantee shall, at all times, employ the standard of care attendant to the risks involved and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public or to employees of the Grantor. 12.4.B Adherence to National Electric Safety Code The Grantee shall install and maintain its wires, cable, fixtures, and other equipment in accordance with the requirements of the National Electric Safety Code. 12.4.C Proper Maintenance of Equipment All lines, equipment and connections in, over, under, and upon either the streets and public ways of Grantor or private property within boundaries of Grantor, wherever situated or located, shall at all times be kept and maintained in good order and repair. November 21, 2001111:17 AM 12 - OPERATION & MAINTENANCE / Page 66 City of Woodburn Cable Franchise 13. MISCELLANEOUS PROVISIONS 13.1 Compliance with Laws The Grantee shall comply with all federal and state laws and regulations, including regulations of any administrative agency thereof, as well as all general ordinances, resolutions, rules and regulations of the Grantor heretofore or hereafter adopted or established during the entire term of this Franchise, provided that any such ordinances, resolutions, rules and regulations of the Grantor hereafter adopted or established shall not conflict or interfere with the existing rights of the Grantee hereunder. The Grantor shall make a good faith effort to provide copies to the Grantee of all general ordinances, resolutions, rules, regulations, and codes, and any amendments thereto, to which the Grantee is subject under this Franchise. ORS 279.312, 279.314, 279.316, and 279.320, having to do with certain conditions oflabor, payment for medical care, workers' compensation insurance, liens, and other matters, are included in this Franchise by reference. 13.2 Severability If any Section, subsection, sentence, clause, phrase or word of the Franchise agreement is held to be invalid or unconstitutional by any court of competent jurisdiction or pre-empted by federal or state regulations or law, such Section, subsection, sentence, clause, phrase or word shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining provisions hereof. 13.3 Captions The captions to Sections throughout this Franchise agreement are intended solely to facilitate reading and reference to the Sections and provisions contained herein. Such captions shall not affect the meaning or interpretation of this Franchise agreement. 13.4 No Recourse Against the Grantor Grantee's recourse against the City of Woodburn, its officers, agents and employees, for any claim arising from any provision or requirement of this Franchise, shall be limited as prescribed by applicable laws, rules and regulations as in effect from time to time including without limitation the restrictions set forth in 47 USC & 555a, the Local Government Antitrust immunity Act and sovereign immunity. November 21,2001111:17 AM 13 - MISCELLANEOUS PROVISIONS / Page 67 City of Woodburn Cable Franchise 13.5 Nonenforcement by Grantor The Grantee shall not be relieved of its obligations to comply with any of the provisions of this Franchise agreement by reason of any failure of the Grantor to enforce prompt compliance. 13.6 Force Majeure If by reason of force majeure the Grantee is unable in whole or in part to carry out its obligations hereunder, the Grantee shall not be deemed in violation or default during the continuance of such inability. The term "force majeure" as used herein shall mean the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders of the government of the United States of America, or of the State of Oregon, or their departments, agencies, political subdivisions, or officials; acts of any civil or military authority; insurrections; riots; epidemics; landslides; earthquakes; lightning; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; restraint of government and people; civil disturbances; explosions; partial or entire failure of utilities; and similar occurrences outside the control of the Grantee. The Grantee agrees, however to give its best efforts to remedy as soon as possible, under the circumstances, the cause or causes preventing Grantee from carrying out its responsibilities and duties under this Franchise agreement. 13.7 Entire Agreement This Franchise agreement contains the entire agreement between the parties, supersedes all prior agreements or proposals except as specifically set forth herein, and cannot be changed orally but only by an instrument in writing executed by the parties. 13.8 Consent Wherever the consent or approval of either the Grantee or the Grantor is specifically required in this Franchise, such consent or approval shall not be unreasonably withheld. 13.9 Notices and Time Limit for Grantee Communications All communications with the Grantor by the Grantee referred to in this Franchise shall be made through the Office of the City Administrator of Woodburn, unless otherwise specified in this Franchise. Grantee shall provide any written communication required by this Franchise within Thirty (30) days of being requested to do so by the Grantor, in each case in which no other specific minimum time limit for a communication is identified in the Franchise. November 21,2001111:17 AM 13 - MISCELLANEOUS PROVISIONS / Page 68 City of Woodburn Cable Franchise 13.10 Consistency of Franchise with Cable Act The parties intend and believe that all of the provisions hereof are consistent with and permitted by the Cable Communications Policy Act of 1984, as amended in 1992. 13.11 Franchise Review Either the Grantor or the Grantee may request the other party to participate in good faith negotiations, no more often than tri-annually beginning three years after the effective date of this Franchise, for a period not to exceed 6 months, to consider adoption of amendments to the Franchise. There shall be no obligation for either party to enter negotiations. If the parties enter negotiations, the subjects of consideration, or areas in which the Franchise may be subject to amendment, shall be limited to the following: a) Technology, b) parity with neighboring systems; c) PEG Access and Institutional Network support by the Grantee; d) customer service issues; and e) Franchise term. Following negotiations, amendments to the Franchise may be presented to the City Council for adoption. Nothing in this Section requires either the Grantor or the Grantee to agree to any amendment to the Franchise, and any amendment to the Franchise must be formally accepted by both parties. 13.12 Grantee Responsibility for Costs of Franchise Compliance Except as otherwise specifically stated in this Franchise, it shall be the responsibility of the Grantee to bear the cost of compliance with all of the terms of the Franchise. 13.13 Notice Any notice provided for under this Franchise shall be sufficient if in writing and delivered personally, sent by overnight delivery service, or deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed as follows, or to such address as the receiving party specifies in writing: If to the City: Office of the City Administrator 270 Montgomery St. Woodburn, OR 97071 November 21,2001111:17 AM 13 - MISCELLANEOUS PROVISIONS / Page 69 City of Woodburn Cable Franchise If to the Grantee: 13.14 Grantor Rights Upon Termination If a renewal or extension of the Grantee's Franchise is denied or the Franchise is lawfully terminated, and the Grantor lawfully acquires ownership of the Cable System, any such acquisition shall be at the price determined pursuant to the provisions set forth in Section 627 of the Cable Act. The Grantee and the Grantor agree that in the case of a final determination of a lawful revocation of the Franchise, the Grantee shall continue to operate the system for a period of 270 days, or until the Grantor determines in writing that the system has been transferred to a qualified transferee, whichever is earlier. During this period, the Grantee shall be given a reasonable opportunity to effectuate a transfer of its Cable System to a qualified third party. 13.15 No Waiver No provision of this Franchise will be deemed waived unless such waiver is in writing and signed by the party waiving its rights. However, if Grantee gives written notice of a failure or inability to cure or comply with a provision of this Franchise, and the Grantor fails to object within a reasonable time after receipt of such notice, said provision will be deemed waived. November 21,2001111:17 AM 13 - MISCELLANEOUS PROVISIONS / Page 70 EXHIBIT A: ORIGINATION POINTS WCAT Studio and Master Control Site City Hall Woodburn High School Fire District French Prairie Woodburn Public Library Community Center (planned) Police Facility or City Hall (Planned) November 21,2001111:17 AM City of Woodburn Cable Franchise Exhibit A / Page 71 City of Woodburn Cable Franchise EXHIBIT B: ACCEPTANCE AND GUARANTEE City Administrator City of Woodburn 270 Montgomery St. Woodburn, OR 97071 This is to advise the City of Woodburn, Oregon (the "Grantor") that DirectLink of Oregon, Inc, (the "Grantee") hereby accepts the terms and provisions of Ordinance No. , passed by the City Council on ,2000 (the Franchise) granting a Franchise for ten (10) years to DirectLink or Oregon, Inc. The Grantee agrees to abide by each and every term of the Franchise. Direct Link of Oregon, Inc. BY TITLE DATE The undersigned guarantees the faithful performance of each and every term of this Franchise by the Grantee. [Guarantor] BY TITLE DATE November 21,2001111:17 AM Exhibit B / Page 72 City of Woodburn Cable Franchise EXHIBIT C: PRICE FOR WORK-INCREMENTAL COST 1. Specification of Costs For the construction of the I-Net or Interconnection of I-Net or PEG Access Channels, Grantee agrees that the term "Direct Costs" include only those costs specified in Section 2 of this Exhibit, and no Indirect Costs. 2. Direct Costs are: 2.1. Costs of necessary materials, equipment and hardware to construct the 1- Net/ Interconnection; 2.2. Payments made by Grantee to subcontractors in accordance with the requirements of the subcontracts; 2.3. Wages and salaries of Grantee's employees performing work on the relevant portion of the I-Net/Interconnection, including those employees involved in designing and mapping the I-Net/Interconnection (to the extent such designing and mapping is a Direct Cost that is over and above any Direct Cost that Grantee would incur in designing and mapping its Cable System,) and including management and supervision costs incurred by persons working within the City (over and above any Direct Cost that Grantee would incur in managing and supervising its own Cable System), and also including their welfare, unemployment compensation, social security and other benefits, for such part of their time as is employed on this work; 2.4. Payroll taxes and insurance and contributions applicable to wages and salaries of Grantee's employees performing work on the relevant portion of the I-Net/Interconnection, and sales, excise, business and occupation, and other taxes paid by Grantee on materials, equipment, supplies and services chargeable to the relevant portion of the I~Net/Interconnection; 2.5. Any labor force travel expenses directly chargeable to the work on the relevant portion of the I-Net/Interconnection; 2.6. Costs of necessary Franchises and permit fees, including Right-of-Construction Permit fees and inspection fees, if any, related to the relevant portion of the I-Net/Interconnection; 2.7. Actual rental costs for the use of any necessary temporary facilities, or special machinery, equipment and hand tools used in the work on the relevant portion of the I-Net/Interconnection; 2.8. That portion directly attributable to this Franchise of premiums for insurance and bonds related to the design, construction, lease of optical fibers and maintenance of the I-Net/Interconnection; November 21,2001111:17 AM Exhibit D / Page 73 City of Woodburn Cable Franchise 2.9. Losses, expenses, and cost of reconstructing any work destroyed or damaged, not compensated by insurance or otherwise, sustained by Grantee in connection with the work, provided they have resulted from causes other than the fault or negligence of Grantee; 2.10. Costs of removal of debris on the relevant portion of the I- N et/ In terconnection; 2.11. Costs incurred on the relevant portion of the I-Net/Interconnection in taking action to prevent threatened damage, injury, loss in case of an emergency affecting the safety of persons and property; and 2.12. Other costs incurred on the relevant portion of the I-Net/Interconnection in the performance of the work if and to the extent approved in advance in writing by Grantor. 3. "Indirect Cost" shall include: 3.1. Salaries and other compensation of Grantee's employees stationed at Grantee's principal office or offices other than the work site, except as provided in Section 2.3 of his Exhibit; 3.2. Overhead and general expenses, except as may be expressly included in Section 2.3 of this Exhibit; 3.3. Grantee's capital expenses, including interest on Grantee's capital, employed for the work; 3.4. Costs due to the fault or negligence of Grantee, subcontractors, anyone directly or indirectly employed by any of them, or for those whose acts any of them may be liable, including, but not limited to, costs for the correction of damage, defective or nonconforming work, disposal and replacement of materials and equipment incorrectly ordered or supplied, in making good damage to property not forming a part of the work. 4. "Incremental Cost" shall mean: That portion of the Direct Cost wholly attributable to the Grantor's requirements; Le., only that portion of the Direct Cost which would not have been incurred but for the obligation to construct, operate or maintain facilities required by the Grantor in accordance with this Franchise. November 21, 2001111:17 AM Exhibit D / Page 74 City of Woodburn Cable Franchise EXHIBIT D: I-NET SITES FOR 2-WAY VIDEO, VOICE, DATA [To be provided within 60 days of the effective date of the Franchise] November 21, 2001111:17 AM Exhibit F / Page 75 14A CITY OF WOODBURN Community Development MEMORANDUM 270 Montgomery Street Woodburn, Oregon 97071 (503) 982-5246 Date: November 26, 2001 To: From: Honorable Mayor and City Council thru City Administrator Jim Mulder, Director of Community Development r Planning Commission's Action on Site Plan Review 01-01, Variance 01- 12, and Lot Line Adjustment 01-07; a request to expand the existing Wal-Mart store with an additional 102,082 square feet of building space, located at 3002 Stacey Allison Way. Subject: At their meeting of November 8, 2001, the Planning Commission adopted a final order approving a Site Plan Review, Variance, and Lot Line Adjustment request to expand the existing Wal-Mart store with an additional 1 02,082 square feet to consist mainly of a grocery store. This decision is final unless the City Council calls this decision up for review. Applicant: Pacific Land Design 10121 SE Sunnyside Road Suite 215 Clackamas, Oregon 97015 Property Owners: Wal-Mart Real Estate Business Trust 2001 SE 10th Street Bentonville, Arkansas 72712-6489 Capital Development Company P.O. Box 3487 Lacey, Washington 98509-3487 NATURE OF THE APPLICATION: The applicant proposed and received approval to expand the existing Wal-Mart store with future office and retail tenant spaces (within the building and the future lease lot on the westerly portion of the site), stockroom/warehouse space, and a grocery store. The proposal included a variance request to exceed the number of exterior wall signs permitted by the Woodburn Sign Ordinance. A property line adjustment was also proposed as part of this project to expand the Wal-Mart site to the south to accommodate the proposed expansion. RELEVANT FACTS: The subject site is located on the east side of Interstate 5 and on the south and east sides of Stacey Allison Way. Said property is addressed at 3002 Stacey Allison Way, Woodburn, further identified on Marion County Assessor maps as 1 14A Township 5 South, Range 2 West, Section 12C, Tax Lot 1200. The proposed property line adjustment will expand the property to the south, and this expanded area is identified on Marion County Assessor Maps as Township 5 South, Range 2 West, Section 13, Tax Lot 200. The expanded portion of the property is currently owned by the Capital Development Company, and the property will be transferred to Wal-Mart upon completion of the proposed property line adjustment. The site is fairly flat with no more than four (4) feet of variation in elevation. The size of the site is currently 11.91 acres. The Lot Line Adjustment will increase the subject property to 19.03 acres in size. The existing Wal-Mart building is 102,329 square feet in size, and the expansion area will be an additional 102,082 square feet for a total of 204,411 square feet. The existing building footprint is to remain. Some of the expansion will take place around its perimeter, but the majority will be to the south where the grocery store is to be located. Both the existing site and the proposed expansion area are zoned Commercial General (CG) District and have Comprehensive Plan Map designations of Commercial. Interstate 5 is adjacently located to the west with Hillyer's Ford and the Winco Foods distribution facility on the opposite side. To the north, on the opposite side of Stacey Allison Way, is a vacant field and a trailer sales business (Trailer World), both of which are zoned CG. Adjacently located to the east, on the opposite side of Harvard Drive, is an apartment complex (Barclay Square) which is zoned Multi-Family Residential (RM) District. There is also a vacant portion of land on the northeast corner of Harvard and West Hayes zoned CG. The property on the southeast corner of Harvard and West Hayes zoned RM and is currently under construction for an elderly care facility. When the Wal-Mart site is expanded to the south as approved, this care facility will be adjacently located to the east. The area to the south of the existing site and the proposed expansion area is currently vacant and zoned CG. In addition to the expansion of the building and the subject property, the applicant requested a variance to the number of exterior wall signs permitted in the CG District. The Woodburn Sign Ordinance currently limits each business in commercial zones to two (2) wall signs. Wal-Mart requested the variance and received approval to place 14 separate sign displays on the north and west sides of the new building. The applicant proposed to stay within the total square footage allowed for all signs. 2 14B CITY OF WOODBURN Community Development MEMORANDUM 270 Montgomery Street Woodburn, Oregon 97071 (503) 982-5246 Date: November 26, 2001 Subject: Honorable Mayor and City Council thru City Administrator Jim Mulder, Director of Community Development .~ Planning Commission's Action on Partition 01-0~ a request to divide the property with the Tukwila tennis courts and swimming pool south of the OGA Clubhouse. To: From: At their meeting of November 8, 2001, the Planning Commission accepted the Planning Director's decision to approve a Partition request to divide the property with the Tukwila tennis courts and swimming pool in the Tukwila Planned Unit Development, located south of the OGA Clubhouse. This decision is final unless the City Council calls this decision up for review. Applicant: Dorothy Monnier Tukwila Partners 955 Tukwila Drive Woodburn, OR 97071 Property Owner: Tukwila Partners 955 Tukwila Drive Woodburn, OR 97071 NATURE OF THE APPLICATION: The applicant requested to partition a parcel in the Tukwila PUD with an existing swimming pool and tennis courts, which is along the south side of the OGA Clubhouse parking lot. The partition request was made so that the Tukwila Partners could deed the swimming pool over to the Orchard Green Homeowner's Association and the tennis courts over to the Tukwila Homeowner's Association. No further development or improvements are planned for the proposed parcels at this time. RELEVANT FACTS: The subject property is located on the east side of Hazelnut Drive on the south side of the OGA Clubhouse parking lot. It is currently identified as Parcell of Lot 8 of the Tukwila PUD, further identified on Marion County Assessor Maps as Township 5 South, Range 1 West, Section 6DC, Tax Lot 2700. The subject site is currently developed with a swimming pool and tennis courts. Proposed Parcel 1 will encompass the tennis courts on the west side of the existing lot, 1 14B and Parcel 2 will encompass the swimming pool on the east side. Parcel 1 will have public right-of-way frontage on its west side along Hazelnut Drive, and Parcel 2 will be a flag lot with its stem fronting on Hazelnut Drive along the south side of Parcel 1. The subject property is currently 37,702 square feet (0.87 ac.) in area. Proposed Parcel 1 will be 16,152 square feet in size, and Parcel 2 will be 21,550 square feet. Designated zoning for the subject property and all of its adjacent properties is Single-Family Residential (RS) District. The adjacent uses to the east, south and west (across Hazelnut Drive) consist of single-family homes. The adjacent use to the north is the OGA clubhouse. 2 14C CITY OF WOODBURN Community Development MEMORANDUM 270 Montgomery Street Woodburn, Oregon 97071 (503) 982-5246 Date: November 26, 2001 From: Honorable Mayor and City Council thru City Administrator Jim Mulder, Director of Community Development t:: Planning Commission's Action on Partition 01-06, a request to divide a residential property into two parcels located at 888 Brown Street. To: Subject: At their meeting of November 8, 2001, the Planning Commission accepted the Planning Director's decision to approve a Partition request to divide a large residential property into two parcels located at 888 Brown Street. This decision is final unless the City Council calls this decision up for review. Applicant & Property Owner: Rudy and Paulette Sonnen 888 Brown Street Woodburn, OR 97071 NATURE OF THE APPLICATION: The applicant requested to partition the subject property into two separate parcels. RELEVANT FACTS: The subject property is located at 888 Brown Street. It is further identified on Marion County Assessor Maps as Township 5 South, Range 1 West, Sections 18CA, Tax Lots #3100 and #3200. The annexation of 2.1 acres of the subject site (a portion of the site that was formerly an island of unincorporated land surrounded by the city limits) into the City of Woodburn was approved by the City Council on June 11, 2001 (ref. Ordinance No. 2289 approving Annexation 01-03). The Marion County zoning designation of Urban Transition Farm (UTF) was retained on the southern portion of the subject property until such time that the property owner or the City of Woodburn requests a zone change. The applicant is not proposing to change the zoning or develop the property as part of this partition request. Tax Lot #3100 is currently vacant. A single family residential home and accessory structure are located on tax lot #3200. The subject parcel (including tax lots #3100 & 3200) is approximately 3.25 acres in size. The property was proposed to be divided into two parcels. Parcel #1 will be 2.8 acres in size, and Parcel #2 will be 0.45 acres. 1 14C The subject property has two zoning designations including City of Woodburn Single Family Residential District (RS) and Marion County Urban Transition Farm (UTF). . The proposed parcel #1 will retain both zoning designations. The proposed parcel #2 will only be zoned RS. The applicant is not proposing to develop the property at this time. The properties surrounding the subject site are zoned RS and designated residential less than 12 units per acre on the Woodburn Comprehensive Plan. Residential homes are located on the properties surrounding the subject site. 2 ~ ~ ~ ~ << SENIOR ESTATES (;,,11 &. COUllt!'\ Cluh A 55 Plus Community 1776 Country Club Road Woodburn, Oregon 97071-2348 November 19,2001 To: City Council City of Woodburn Woodburn, Oregon Ladies and Gentlemen: Senior Estates Golf and Country Club, acting through its Board of Directors, respectfully petitions and requests the City Council to change the name of the portion of Vanderbeck Street lying east of Senior Estates. The reasons why this change is appropriate and desirable are outlined on the attached memorandum. Respectfully submitted, _..-~ ,--- By Telephone 503-982-1776 Fax: 503-982-5144 MEMORANDUM Reasons for RenaminQ Part of Vanderbeck Lane . Our position is, simply, that the name should be changed to something other than Vanderbeck to avoid confusion and to minimize future pressure to connect the two sections. . Until a few years ago Vanderbeck Lane was an improved public street only within Senior Estates. The street terminated about 125 feet east of the Astor Way intersection, at the edge of Senior Estates. Onward to the east, the street, although dedicated, was completely unimproved and was not open for general travel. It was farmers' fields. . About three years ago two new subdivisions were approved on the north side of Vanderbeck, taking their primary access to the east onto Boones Ferry Road. One of these subdivisions has been completed, but at this time only three homes have been built on Vanderbeck. The other subdivision has not been completed; the street construction has been delayed and no homes have been built. . At the time the new subdivisions were being considered many residents of Senior Estates were concemed that Vanderbeck would be extended and connected to the portion of the street already existing in Senior Estates. It seemed inevitable that if the connection were made, Vanderbeck would become used as a shortcut from Boones Ferry to Highway 214, causing a dangerous and unacceptable increase of traffic on streets in Senior Estates that were not designated or designed as collector streets and which have a large amount of pedestrian traffic with no sidewalks. . The objections were presented to the Planning Commission and the City Council. The Council- against the recommendations of the Public Works staff-agreed with the objections. The Council directed that the connection not be improved, and that a barrier be placed between the two sections of the street. The barrier remains in place today. . The public is now faced with the strang~ situation where Vanderbeck Lane, as shown on maps and as implied by its name, is not a single continuous street. One cannot get from one part of Vanderbeck to the other without a lengthy detour. This confusing situation is certain to cause public inconvenience, and may quite possibly cause public safety problems due to delayed emergency vehicles. . As long as the two portions of the street are separated only by a barrier that could be removed in 10 minutes, and as long as both portions of the street remain named "Vanderbeck," there will be continuing pressure to reverse the Council's decision and remove the barrier. This pressure will become increasingly strong when the remainder of the easterly segment of Vanderbeck is improved (in the delayed subdivision) so that only a few feet separate the easterly and westerly parts. . The best time to change the name is now. Only three newly constructed homes would be affected by the change at this time. It would be more disruptive to change the name after additional homes have been built. We pledge to work with the three existing homeowners and the Post Office to ease the transition from "Vanderbeck" to some other suitable name. . We have no particular suggestions for the new name to be given to the easterly section. The new name should be selected by the City Council after receiving any suggestions offered by the owners of the three homes and the owners of the two subdivisions. November 26, 2001 ~~~)t~ I,...hlt'c... ~~rt ~f: e...., rt rrt 141"~ /)~ I/-,/,/O( ~ ~/oc..k er--l-.-.- II/d4/'V/ ~ Woodburn City Council 270 Montgomery St. Woodburn, OR 97071 Re: Farm Worker's Housing Development Corp. Dear Council; I am a member of the Fundraising Committee for the Cipriano Ferrel Education Center being planned by the Farm Worker's Housing Development Corp. This is a very worthy project that embraces the concepts of the City of Woodburn's seal, "City of Unity". The center will focus on needs within the farm worker's community to assist them in their struggle for child care, to improve their economic well being and most importantly to give them the skills to stand on their own and to become part of the community in which they live. The center will also be open to the greater Woodburn community and hopefully will engender more harmonious relationships in our diversity. The October 7,2001 Groundbreaking Ceremony was a great success and shows community acceptance of the Educational Center. I support and applaud the City's efforts in sponsoring the application to the Oregon Economic & Community Development Department for-construction funds for the project. Respectfully, t&1stOff 671 I ronwood Terrace Woodburn, OR 97071 (503-981-0621) C '015 G <f~BL\Lft..eA r2jN~ J-.) 0 v'L-h,--b CI c?-t';. I c3-C)O I f\.l Ctlht e. '7; D 0 P rY) ~ he rk, fr C\. 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