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Agenda - 02/28/1994
CITY OF WOODBURN 270 MONTGOMERY STREET **°* WOODBURN, OREGON AGENDA WOODBURN CITY COUNCIL FEBRUARY 28, 1994 - 7:00 P.M. 10. A. Council minutes of February 14, 1994. 3A APPOINTMENTS: ANNOUNCEMENTS: W.D.A.TOWNHALL MEETING TO DISCUSS AMENDMENTS TO THE DOWNTOWN HISTORIC DISTRICT ZONING REGULATIONS - MARCH 9, 1994 - 7:00 P.M. ST. PATRICK'S DAY PARADE, MARCH 19, 1994. PROCLAMATIONS A. Chamber of Commerce B. Other Committees A. Written (This allows public to introduce items for Council consideration not already scheduled on the agenda.) A. Liquor License Renewal - The New Club Cafe. A. Council Bill No. 1506 - A resolution finding that the building located at 199 N. Front Street is a dangerous building, declaring it to be a public nuisance and ordering its owner to make it safe. 8A 9A A. Council Bill No. 1525 - Ordinance providing for regulation of cable television rates. .10A Page 1 - Council Agenda, February 28, 1994 Council Bill No. 1526 - Resolution entering into an agreement for professional G. Clarification of insurance coverage for parade. services for study of pedestrian circulation in vicinity of the high school. .1 OB Bid award: hydraulic shoring. 1 Liquor license application: El Nopal Restaurant, 333 N. First St. .10D No parking on W. Hayes Street near Settlemier. 10E Request for sound amplification - Swimming Pool Committee 10F 10G 13. A. Statewide Transit Improvement Plan meeting. B. Towing ordinance. C. Differential Police Response (DPR) report. D. Basketball hoops in right-of-way. E. Service Center report. F. Filing period for Mayor and Council positions. G, Proposed constitutional amendment/tax limitation. ........ i?"'-'?'.'=' ........... ~'~F':~ ............ ~:=='--' ................ ~' ' ' ' '=' ':'~ ' '" ':: ':I:~; ' '"' ': .' ....... "'"'.' '.""~ 17. 15A 15B 15C 15D 15E 15F 15(~ To conduct deliberations with persons designated by the governing body to negotiate real property transactions. Authority: ORS 192.660(1 )(e) Page 2 - Council Agenda, February 28, 1994 3A COUNCIL MEETING MINUTES February 14, 1994 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY H~LL, CITY OF WOODBURNt COUNTY OF MARION, STATE OF OREGONt FEBRUARY 14~ 1994. CONVENED. The Council met in regular session at 7:00 p.m. with Mayor Kelley presiding. 0010 ROLL CALL. Mayor Kelley Present Councilor Figley Present Councilor Galvin Present Councilor Hagenauer Absent Councilor Jennings Present Councilor Mitchell Present Councilor Sifuentez Present Staff Present: City Administrator Childs, City Attorney Shields, Community Development Director Goeckritz, Police Chief Wright, 9-1-1 Director Wolf, Finance Director Gritta, Library Director Sprauer, Public Works Manager Rohman, City Recorder Tennant 0020 MINUTES. JENNINGS/FIGLEY .... approve the Council minutes of January 24, 1994, February i and 2, 1994; and accept the Planning Commission minutes of January 27, 1994, the Recreation and Park Board minutes of January 31, 1994, and the Library Board minutes of January 26, 1994. Councilor Jennings stated that the minutes of January 24, 1994 should reflect that he was not in attendance at the meeting. The motion passed unanimously. 0047 ANNOUNCEMENTS. Mayor Kelley reminded the public that the St. Patrick's Day Parade will be held on Saturday, March 19, 1994. 0054 WASTEWATER ADVISORY COMMITTEE REPORT. Councilor Mitchell stated that a meeting would not be held this monthv however, he urged local residents to contact their councilors for input on the proposed facility and/or to attend the March meeting. 0O83 PUBLIC HEARING - TAX COORDINATION PLaN FOR 1994-95. Mayor Kelley declared the public hearing open at 7:04 p.m.. Administrator Childs presented the staff report which summarized the Budget Committee's recommendation to present to the voters a total tax levy authority for operations in the amount of $2,886,931. This amount is 6% over the City's current total tax levy authority and it would maintain parity with other local government taxing districts within Woodburn Page 1 - Council Meeting Minutes, February 14, 1994 3A TAPE READING 0241 COUNCIL MEETING MINUTES February 14, 1994 as long as they only increase their total tax levy authority by 6%. A breakdown of the total levy is as follows: Tax Base - $209,060; One-Year Operating Levy - $1,577,413; Library Continuing Levy - $444,643; and Parks Continuing Levy - $655,815. It was noted that this tax levy authority hearing relates only to taxes levied for operational purposes that are subject to the Measure 5 limitations. No one in the audience commented on this issue. Mayor Kelley declared the public hearing closed at 7:10 p.m.. FIGLEY/SIFUENTEZ .... Council Bill 1510 be removed from the table. The motion passed unanimously. COUNCIL BILL 1510 - RESOLUTION FINDING THAT THE BUILDING LOCATED AT 347 N. FRONT STREET IS A DANGEROUS BUILDING (FORMERLY SALUD MEDICAL BUILDING}. Council Bill 1510 was read by title only since there were no objections from the Council. Councilor Figley stated that her purpose in removing the bill from the table was to receive a progress report on Salud's negotiations with the federal government. A1 Nunez, Executive Director, stated that he is still waiting to hear on two grant programs (Economic Development lottery funds and Publio Health Service) for the funding of a new facility. Until arrangements are made for a new building, the Farmers Home Administration and Public Health Service will not give their approval for the sale of the building at 347 N. Front Street. Interest has been expressed by the Migrant & Indian Coalition to purchase the building and rehabilitate it for their use. If they purchase the building, at least one funding source is available to them for rehabilitation funds. He will also be contacting Chemeketa Community College to see if they might have an interest in the purchase and rehabilitation of the building for additional classroom space. He stated that it was his intention not to leave the property in the current~condition or demolish it but to try and sell the building and have it rehabilitated. Councilor Mitchell questioned if there was anything the Council could do to assist him in forcing the federal government to take some action. Mr. Nunez stated that a letter of support from the Council may be necessary to work out some of the details with the State regarding the Economic Development Grant. Councilor Jennings expressed concern on the Council's continual retabling of this issue when private property owners have been required to make extensive repairs in a shorter period of time. He stated that he was willing to retable the bill for another 30 days but felt that something should be done at the end of that time period if no additional action has been taken by the federal government. Page 2 - Council Meeting Minutes, February 14, 1994 3A TAPE READING 0895 0922 0945 COUNCIL MEETIN~ MINUTES February 14, 1994 JENNINGS/FIGLEY .... table Council Bill 1510 until March 14, 1994. The motion and second were withdrawn. Councilor Sifuentez suggested that the City send a letter to the federal agencies to give them notice of pending action. Mr. Nunez reminded the Council that the last structural engineer report did state that the building would probably not be dangerous to the public for a couple of years. Discussion was held on potential deterioration of the masonry due to the recent fire in the building adjacent to Salud. It was noted that the structural engineer's report was made prior to the fire. JENNINGS/FIGLEY .... table Council Bill 1510 until March 14, 1994. On roll call vote, the motion passed unanimously. COUNCIL BILL 1521 - RESOLUTION OF SUPPORT FOR COMPLETION OF A TRANSPORTATION SYSTEM PLAN FOR THE CITY~, Council Bill 1521 was introduced by Sifuentez. Recorder Tennant read the bill by title only since there were no objections from the Council. On roll call vote for final passage, the bill passed unanimously. Mayor Kelley declared the bill duly passed. COUNCIL BILL 1522 - RESOLUTION ENTERING INTO INTERGOVERNMENTAL, AGREEMENT WITH THE STATE TO PROVIDE B~FETY BELT ~ MOTORCYCL~ HEn~T L~W ENFORCEMENT. Councilor Sifuentez introduced Council Bill 1522. The bill was read by title only since there were no objections from the Council. On roll call vote, Council Bill 1522 passed unanimously. Mayor Kelley declared the bill duly passed. COUNCIL BILL 1523 - RESOLUTION ENTERING INTO A CONTRACT 0972 ~N~_NDN~NT WITH CH~N~KETA COMMUNITY COLLEGE REGARDING C~EMEKETA COOPERATIVE REGIONAL LIBRARY SERVICE. Council Bill 1523 was introduced by councilor Sifuentez. The bill was read by title only since there were no objections from the Council. On roll call vote for final passage, the bill passed unanimously. COUNCIL BILL 1524 - ORDINANCE ~__~_NDING ORDINANCE 1998 (CIVIL INFRACTION ORDINANCE}. Council Bill 1524 was introduced by Councilor Sifuentez. Recorder Tennant read the two readings of the bill by title only since there were no objections from the Council. Councilor Figley questioned what type of infractions are included in each class level. Community Development Director Goeckritz provided the following examples: Class I - zoning and wastewater violations; Class 2 - vicious dog Class 3 - obnoxious vegetation Class 4 - solicitor's license Class 5 - animal ordinance and parking violations Page 3 - Council Meeting Minutes, February 14, 1994 3A COUNCIL MEETING MINUTES February 14, 1994 TAPE READING It was noted that the amendment would only increase the assessment of a forfeiture for Class 3, 4, and 5. On roll call vote for final passage, the bill passed unanimously. Mayor Kelley declared Council Bill 1524 duly passed with the emergency clause. 1065 OLCC LIQUOR LICENSE RENEWALS FOR 1994. Chief Wright's memo recommended the renewal of liquor licenses establishments in Woodburn with the exception of Don Juan's Mexican Restaurant since the owner(s) of the business were involved in illegal drug transactions on the licensed premise in 1992 and 1993. The following establishments are recommended for approval: AM/PM Mini Mart, Bi-Mart, Crossroads Deli, Gary's Market, Lind's Market, Lind's Plaza Market, OLCC Store $60, Payless Drug Store, Piper's Jewelry, Roth's IGA, Safeway, Salvadore's Bakery, Shop N Kart, 7-11 Store, Westview Texaco, Woodburn Chevron, Young Street Market, Eagle's Lodge, Woodburn Elks, Abby's Pizza Inn, Izzy's Pizza, Pizza Hut, Pub 99, The Raven Inn, Senior Estates Country Club, Woodburn Lanes, Chung Sing's Restaurant, The Pier, and Yun Wah chinese Restaurant. It was noted that Chu's Eatery and La Linda's Tortillia were approved by the Council for 1994 within the last 2 months. JENNINGS/FIGLEY .... all the liquor license applications be approved with the exception of Don Juan's Mexican Restaurant. The motion passed unanimously. JENNINGS/FIGLEY... public hearing be held at the next regular Council meeting for Don Juan's Mexican Restaurant. The motion passed unanimously. / 1106 BID AWARD - DUMP BODY FOR STREET SHOP TRUCK. Bids were received from the following vendors for a 5 to 6 cubic yard dump body: Commercial Body Builders, Inc.,. $9,985.00; Columbia Body & Equipment Co., $10,385.00; and Coast Crane & Equipment Co., $10,393.00. Staff recommended the acceptance of the second lowest bid since the low bid did not meet specifications. It was noted that the manufacturer of the dump body proposed by the low bidder does provide the crossmembers as an option, however, the bidder chose not to offer this option on the bid. JENNINGS/FIGLEY .... award the bid as recommended by staff to Columbia Body & Equipment Co. in the amount of $10,385.00 and reject the bid from Commercial Body Builders Inc.. The motion passed unanimously. 1138 1164 CLAIMS FOR T~ MONTH OF JANUARY 1994. SIFUENTEZ/GALVIN... approve voucher checks $21449 - 21767 for the month of January 1994. The motion passed unanimously. Betty Stuchlik, 938 Oregon Way, stated that she lives near the Hwy. 214/Oregon Way/Country Club Rd. intersection and a public hearing is scheduled before the Planning Commission on site Page 4 - Council Meeting Minutes, February 14, 1994 3A COUNCIL MEETING MINUTES February 14, 1994 TAPE READING plan review of a sandwich shop to be located in that area. She questioned the distance in which residents are automatically sent a public hearing notice on actions before the Planning Commission. Community Development Director Goeckritz stated that developers are required to provide the City with a certified list from the Title Company of property owners within a 200 foot radius of the proposed development. Other individuals interested on specific projects can notify the Planning Department and hearing notices will also be sent to them when a hearing is scheduled on that project. In regards to this particular proposed development, he stated that a developer has the right to file for site plan review at anytime and they have a right to a hearing. Since a public hearing is scheduled for February 24th, he did not wish to discuss the issue in much depth and jeopardize the land use hearings process. However, he did state that the site plan has 2 different proposals and the Commission will be looking at alternatives. The Councilors expressed concern over not being kept informed on this issue since the area in question is part of the proposed realignment project. They questioned why an executive session had not been called earlier to provide them with updated information on a proposed real property transaction that would affect this area. Administrator Childs stated that he had planned on scheduling an executive session for the first meeting in March at which time Public Works Director Tiwari would be back to discuss this issue with the Council, however, he would schedule an executive session for an earlier date if necessary. Councilor Jennings suggested that the Planning Commission delay their public hearing until such time as the Council has an opportunity to hold an executive session on the real property negotiations. In regards to posting of public hearing notices, Mayor Kelley suggested that signs placed in the affected area notifying the public of the scheduled hearing be enlarged so more people will take notice that something is happening in their area. Attorney Shields advised the Council that the City has 120 days after filing of a land use application to complete the hearing process. He stated that an executive session can be held to discuss negotiations of real property but it would not have a bearing on the land use issue before the Planning Commission. The site plan hearing will review the proposed development and the Commission will establish any conditions that they feel are necessary prior to the actual development of the property. At this point, the Planning Commission could 1) re-notice the public hearing for another date, or 2) open the public hearing on February 24th and continue the hearing until after the Council meets in an executive session regarding the negotiation of real property. Page 5 - Council Meeting Minutes, February 14, 1994 3A COUNCIL MEETING MINUTES February 14, 1994 TAPE READING A brief discussion was held regarding options presented by city Attorney shields and it was the consensus of the Council to have the Planning Commission open the hearing on February 24th with the hope that the hearing would be continued until a later date. 1754 SITE PLAN ACTIONS. Information was provided in the Council packet relating to the following site plan actions approved by the Planning Commission: 1) Oregon Golf Association Maintenance Facility; and 2) Park Department Utility Building & office complex. No action was taken by the Council on either site plan action. 1782 1950 STAFF REPORTS. The following staff reports were included in the packet: 1) Administrator goals and accomplishments; 2) city bonded indebtedness limits; 3) Charter amendment/follow-up election of appointed Council member; 4) Memorandum Opinion concerning connection fee subsidy; 5) Cooperative pedestrian circulation study for Woodburn High School; and 6) Building Activity report for 1993. Councilor Jennings referred to the staff report on the charter amendment issue and stated that he felt that he had received sufficient information within the Administrator's memo not to pursue a charter amendment at this time. Councilor Figley stated that she did not want to spend City tax dollars for a special election, however, she was still concern about citizen representation by an un-elected representative. Councilor Figley expressed her desire to see a forfeiture or vehicle towing ordinance of uninsured vehicles before the Council in thevery near future. Administrator Childs stated that a draft ordinance is at the staff level for discussion and he hopes to have it ready for the next Council meeting. In regards to notifying property owners of upcoming public hearings in their area, Councilor Figley questioned staff as to whether an expanded notice area should be considered if there is an impact within a neighborhood area. Administrator Childs stated that the City could impose more stringent requirements, however, his concern that there would be consistency in how those requirements are imposed and the definition of significant impact. Director Goeckritz also stated that expanding the requirements under certain conditions would call for some subjectivity and it is very important on land use actions that the city be consistent. Page 6 - Council Meeting Minutes, February 14, 1994 3A TAPE READING 2489 COUNCIL MEETING MINUTES February 14, 1994 Councilor Jennings stated that he had seen a Street employee sweeping the sidewalk in front of the Salud building, which at the time, felt that the City should be doing maintenance work other than sweeping sidewalks. He later found out that the employee was sweeping leaves out from the doorway area as part of the leaf pick-up program. He suggested that if the City is required to sweep the sidewalks in front of businesses, then the businesses be billed for the work being performed by employees. He also stated that he had received several complaints about basketball boards that are facing the street and kids are using the streets as the court area. He requested the Administrator to look into this dangerous situation and, if it is illegal, the Code Enforcement officer to take appropriate action. Lastly, Councilor Jennings suggested that, if possible, gas tax dollars be used to install a storm drain system in the alley way between Garfield and Grant Streets. Councilor sifuentez advised the Council that she had visited with Councilor Hagenauer before the meeting and that he is looking quite well following his recent surgery. Mayor Kelley stated that he had approached the downtown business owners in that area in the past regarding the drainage situation. They were willing to work towards the installation of a storm drain system but unwilling to assist in the payment of costs. Mayor Kelley encouraged public participation in the St. Patrick's Day parade which is scheduled for March 19th. ~DJOURNMENT · The meeting was adjourned at 8:18 p.m.. APPROVED LEN KELLEY, MAYOR ATTEST Mary Tennant, Recorder City of Woodburn, Oregon Page 7 - Council Meeting Minutes, February 14, 1994 City of Woodburn Police Department 8A 270 Montgom~ Ken Wrigh~~ ~ ~J Chief of ~ Woodburn, Oregon 97071 (503) 982-2345 Date: February 21, 1994 To: Mayor and Council C. Childs, City Administrator Subject: Liquor License Renewal - The New Club Cafe, 553 N. Front St. Licensee: Juan T. / Aurora Ruiz Authority: Council Bill 1276, dated 02-12-91 ORS 471.210 ..... local government recommendations... ORS 471.295 Grounds for refusing to issue license Illegal Activities, Disturbances The liquor commission may refuse a license if an owner/operator, employees or customers of the business are involved in illegal activities in or near the business or there is a serious and persistent problem with fights, noisy activities or other disturbances in or around the business. Illegal Activities Selling alcohol to a visibly intoxicated person, selling alcohol to minors, making alcohol available to minors through other people ( called furnishing), selling alcohol between 2:30 a.m. and 7 a.m., licensee or employee drinldng on duty, illegal drug use or sale, lewd conduct and prostitution. Disorderly Activities Assaults, fights, harassment, vandalism, excessive or obtrusive noise, public urination, public drunkenness, and trespassing on private property. Council policy directs the police department to automatically recommend denial of a renewal application when there is a record of ten arrests, in the prior 12 months, of employees or patrons of the licensed business for unlawful activities related to the sale or service of alcohol under the license either on the premises or in the immediate vicinity. In the year 1993 the police department responded to 21 calls for service at 553 N. Front St., The New Club Cafe. These responses resulted in 13 arrests, one of which was the licensee Juan T. Ruiz on Federal charges of delivery of a controlled substance, cocaine. These drug transactions occurred between May 1992 and October 1993. Further aggravating circumstances are included on pages 3 and 4 of OLCC letter that while the licensee was involved at Don Juan's Mexican Cuisine, 2300 Country Club Road Between illegal drag transactions occurred. Recommendation: As a result of the activities occurring on and around the licensed premises of 553 N. Front St., and the Federal Drug charges, and that Juan Ruiz has pled guilty in Federal Court to illegal drag violations, that Floyd Ruiz (son and employee) has admitted to illegal drag transactions, and on many of the illegal drag transactions Aurora Ruiz was on the licensed premises; I recommend that the Woodbum City Council send a negative endorsement to the Oregon Liquor Control Commission. Exhibits: 1) 2) Letter dated Jan. 7, 1994 from OLCC to Juan T. and Aurora Ruiz. City Police 1993 annual activity report of 553 N. Front St, New Club Cafe. OLCC Attorney Mills SA 2 January 7, 1994 LIQUOR CONTROL COMMISSION Juan T. and Aurora RUIZ TmA~ dba~DON JUAN'S MEXICAN._RESTA------~ AND LOUNGE (DA) formerly NEW CLUB CAFE (DA) 553 N. Front E ~ ~ ~ Woodburn, OR 97071 X ~ PERSONAL DELIVERY NOTICE OF PROPOSED LICENSE C2tNCELLATION Regulatory staff recommend the Commission cancel your liquor license for the following violations: Violation Number One On May 13, 1992, you permitted unlawful activity on the licensed premises. While at the licensed premises, licensee Juan T. Ruiz used the business telephone to negotiate a drug transaction; took money for a drug exchange which occurred at another location, previously licensed as Don Juan's Mexican Cuisine. This is a violation of OAR 845-06-047(3). Violation Number Two On January 19, 1993, you permitted unlawful activity on the licensed premises. While at the licensed premises, licensee Juan T. Ruiz used the business telephone to take an order for cOcaine; personally negotiated the drug transaction and took money from undercover agent Sandlin and gave undercover agent Sandlin three ounces Of cocaine in exchange for the money. This is a violation of OAR 845-06-047(3). Violation Number Three On February 4, 1993, you permitted unlawful activity on the licensed premises. While at the licensed premises, licensee Juan T. Ruiz used the business telephone to take an order for and sold undercover agent Sandlin four ounces of cocaine. This is a violation of OAR 845-06-047(3). ~ 9079 SE McLoughlinBlvd. Portland, OR 97222 (503) 653-3055 1-800-452-6522 8A RUIZ Aurora & Juan T. DON JUAN'S MEXICAI~ RESTAURANT AND LOUNGE (DA) and NEW CLUB CAFE (DA) Woodburn, Oregon 97071 Page 2 January 7, 1994 Violation Number Four On February 9, 1993, you permitted unlawful activity on the licensed premises. While at the licensed premises, licensee your employee, Juan Floyd Ruiz, used the business telephone to facilitate a drug deal between undercover agent Sandlin and his father, Juan T. Ruiz. This is a violation of OAR 845-06-047(3). Violation Number Five On February 17, 1993, you permitted unlawful activity on the licensed premises. While at the licensed premises, licensee Juan T. Ruiz used the business telephone to negotiate drug transactions with undercover agent Sandlin. This is a violation of OAR 845-06-047(3). Violation Number Six On October 22, 1993, you permitted unlawful activity on the licensed premises. While at the licensed premises, licensee Juan T. Ruiz used the business telephone to negotiate a drug transaction with undercover agent Sandlin. This is a violation of OAR 845-06-047(3). Violation Number Seven On October 27, 1993, you permitted unlawful activity on the licensed premises. While at the licensed premises, licensee Juan T. Ruiz sold undercover agent Sandlin one-half ounce of cocaine and negotiated with her to conduct future drug deals. This is a violation of OAR 845-06-047(3). MITIGATING FACTORS Commission staff notified Aurora Ruiz that an immediate suspension of the liquor license was being considered by the Commission. In response, Aurora Ruiz submitted a temporary operational plan. Licensee agreed to cease alcohol sales for 90 days or until the Commission approves a business operating plan that will prevent future violations and eliminate the immediate threat to public health and safety. 8A RUIZ Aurora & Juan T. DON JUAN'S MEXICAN RESTAURANT AND LOUNGE (DA) and NEW CLUB CAFE (DA) woodburn, Oregon 97071 Page 3 January 7, 1994 AGGRAVATING CIRCUMSTANCES ORS 472.180(1)(a) authorizes the Commission to cancel any license when a licensee has violated any provision of ORS 472 or any rule of the Commission adopted pursuant thereto. The Commission does not normally apply sanctions to a licensee at locations other than the one where violations occur. The Commission does believe, however, that repeated sales, delivery, possession and use of controlled substances occurring in and around your other licensed businesses are aggravating. The following unlawful activities occurred at another business licensed to you, Don Juan's Mexican Cuisine, 2300 Country Club Road, Woodburn, Oregon: Between approximately January, 1990 and May, 1992, your employee, Juan Floyd Ruiz, sold cocaine and marijuana approximately 30 times. On December 5, 1991, licensee Juan T. Ruiz conspired with agent Sandlin about future drug deals. On December 11, 1991, licensee Juan T. Ruiz took an order for one ounce of cocaine from undercover agent Sandlin. On December 12, 1991, licensee Juan T. Ruiz sold one ounce of cocaine to undercover agent Sandlin. On December 19, 1991, licensee Juan T. Ruiz took an order for one ounce of cocaine from undercover agent Sandlin. On December 20,~ 1991, licensee Juan T. Ruiz sold one ounce of cocaine to undercover agent Sandlin. on February 26, 1992, your employee, Juan Floyd Ruiz, used the business telephone to take an order for cocaine and negotiate a drug transaction with undercover agent Sandlin. On March 17, 1992, licensee Juan T. Ruiz used the business telephone to arrange a drug deal with undercover agent Sandlin and sold her four ounces of cocaine. 8A RUIZ Aurora & Juan T. DON JUAN'S MEXICAN RESTAURANT AND LOUNGE (DA) and NEW CLUB CAFE (DA) Woodburn, Oregon 97071 Page 4 January 7, 1994 2. On November 27, 1993, Juan Floyd Ruiz was working on the premises tending bar and serving alcohol after Commission staff advised Aurora Ruiz about Juan Floyd Ruiz's involvement in drug transactions at the licensed businesses. Licensee Aurora Ruiz told Commission staff on November 10, 1993, that she would not employ Juan Floyd Ruiz. 3. Licensee Juan T. Ruiz personally committed many of the violations. 4. Licensees and employees committed multiple unlawful acts over a long period of time. 6. The illegal acts the licensee committed are felonies. You are a poor risk for compliance with the alcoholic beverage laws of this state because of your disregard for the law with respect to cocaine. DETERMINING THE PENALTY OAR 845-06-200 defines these violations as Category III violations and recommends a 10-day suspension or $650.00 fine for the first violation of this type, a 30-day suspension or $1,950.00 fine for the second, a 30-day mandatory suspension for the third and license cancellation for the fourth. These are your first, second, third, fourth, fifth, sixth and seventh. Because of the aggravating circumstances, staff recommend the Commission cancel your license. HEARINGS RIGHTS You have the right to have a hearing to dispute this Notice of License Cancellation. If you want a hearing, please sign and date the enclosed form and return it to the address listed on the form by February 7, 1994. If you do not request a hearing, the Commissioners will adopt this notice as a Final Order at their February, 1994 Commission meeting. The investigation report by Inspector Montgomery will provide the basis for the final order. RUIZ Aurora & Juan T. DON JUAN'S MEXICAN RESTAURANT AND LOUNGE (DA) and NEW CLUB CAFE (DA) Woodburn, Oregon 97071 Page 5 January 7, 1994 Hearings are conducted according to the Administrative Procedures Act (ORS Chapter 183) and Commission Administrative Rules (OAR Chapter 845 Division 03). Cancellation will be effective March 1, 1994. OREGON LIQUOR. C~N~TROL .COMMISSION Charles Kurtz \ ~- Director, Regulatory Process Division CK:LJ:es Enc. If you have any questions call toll free, 1-800-452-0LCC (6522) Please ask for the Compliance Section. 94-441 ~-1( -/3~~ CAD//516 ~ GRID 601 ALLEY LOUNGE/CLUB CAFE: 503 N. FRONT ST., WOODBURN OWNER/MANAGER: JUAN RUIZ In 1993 the Woodbum Police Department responded to a total of 24 calls for service at the Alley Lounge and Club Cafe. In 1992 the police department responded to a total of 21 calls for service. This represents a 12.5 % increase in calls for service in 1993. 1993 calls for service are as follows. CITIZEN nqrrtn'r~D ~¥ CR# TYPE OF CALL ARREST ARREST OWNER CITIZEN POLICE 93-358 Detox 1 NO X 93-639 Misuse ID 1 NO X 93 -977 Fight 0 NO X 93-1472 Trespass 1 YES X 93-1583 Liquor Law 0 NO X 93-1677 Fight 0 NO X 93-1723 Fight/CAID/Warrant 4 2 X 93-1828 Trespass 1 YES X 93-1876 Fight 0 NO X 93-2149 Fight 0 NO X 93-2784 Trespass 0 NO X 93-3739 UPW/Menacing/Assault 1 NO X 93-4096 Theft/Trespass 1 NO X 93-4950 Extra Patrol 0 NO X 93-6514 Assault (Handgun) 0 NO X 93-6975 Trespass 0 NO X 93-7412 Unwanted Persons 0 NO X 8A CR,q 94-441 Page 2 of 4 CITIZEN mrr~'mr~ BY CR// TYPE OF CALL ARREST ARREST OWNER CITIZEN POLICE 93-7429 Trespass 0 NO X 93-7663 Suspicious Person 0 NO X 93-7952 MINOR LIC PREM/LIQ FUR 2 NO X 93-8013 Trespass 0 NO X 93-8109 AOA (Drug Invest.) 1 (FBI) NO X 93-8121 Burglary 0 NO X 93-8786 Liquor Law 0 NO X TOTALS 24 13 4 17 4 3 Detox, 93-358, On 01-23-93 police arrive to report of a male passed out in a booth at the club cafe. The subject was highly intoxicated and detoxed, by the officer, at W.P.D. It is unknown where the subject had consumed alcohol. Misuse ID, 93-639, On 02-06-93 police responded to report of a bar customer using someone else's ID card. The subject was cited/released. Fight, 93-977, On 02-24-93 police contact the bartender in regards to a fight behind the Alley Lounge. Bartender told the police the 4 subjects left when they "saw" she had called the police. Trespass, 93-1472, On 03-22-93 police responded to the Alley Lounge on a trespass. The bartender signed a citizen's arrest against a hispanic male who had no ID, was asked to leave the bar, left, then returned and refused to leave when asked to do so again. The subject was arrested. Liquor Law, 93-1583, On 03-28-93 police was advised by a citizen of at least 1 juvenile, drinking, in the Alley Lounge. The officer contacted the suspect and asked for ID. The subject told the officer it was at home. The bartender told the officer she did not know the subject but he had been in the bar the past 4 1/2 hours. The bartender told the officer the subject had displayed ID at that time. When the officer checked the subject he only found a Social Security card. The subj~t was told to leave by the officer. No citations were issued. Fight, 93-1677, On 04-02-93 police respond to report of a fight. The bartender told the officer she called because the 2 subjects were going to fight outside the bar and they had knives. The bartender said the 2 subjects had started to argue inside the bar so she kicked them out. They were gone prior to the officer's arrival. CR# 94-441 Page 3 of 4 Fight, 93-1723, On 04-04-93 the police responded to report of a fight, between several subjects, inside the alley lounge. On first officer arriving sees several subjects run out the back door of the Alley Lounge. When the officer went inside the bar he saw 5 subjects fighting. 1 of the subjects was a Minor (Noe Meza). 1 subject (Jacob Collazo) was arrested on a PV. Noe Meza was arrested for: assaulting a public safety officer, disorderly conduct, minor loitering on a licensed premise, and Criminal mischief I (breaking the windshield of a patrol car when he fled the scene). Alonzo Villareal was arrested for disorderly conduct (citizen's arrest). Leopoldo Garcia was arrested for: disorderly conduct (citizen's arrest), False info to P.O., PCS (cocaine) and 2 warrants. Trespass, 93-1828, On 04-08-93 the police entered the Alley Lounge after checking the area for report of persons, inside the Alley, urinating outside. The officer contacted the bartender who pointed out the suspect, who was refusing to leave. A citizen's arrest was signed and the suspect was arrested. Fight, 93-1876, On 04-11-93 police respond to the Alley Lounge on report of 4-6 H/M fighting. The bartender told the officer she tried to stop the fight and the unknown subjects ran out the door. Fight, 93-2149, On 04-24-93 the police arrived to the Woodburn Independent parking lot. An assault victim, who had injuries, refused treatment. A witness told the police the suspects had followed the victim out of the Alley Lounge. Trespass, 93-2784, On 05-22-93 the police arrive to report of a person refusing to leave the Alley. The owner, who called the police, was not around and the bartender was unaware of the problem. UPW, 93-3735, On 07-04-93 police respond to report of a fight that had originated inside the Alley Lounge. The suspect pulled a gun on the victim, outside the Alley, threatening to shoot him. The victim returned inside the Alley and told the bartender the suspect (who remained outside) had a gun and to "watch" him (the victim). After the victim leaves, he is assaulted by the suspect, who hit the victim in the head with the pistol. The suspect is located and charged with: UPW, Unlawful Use of a Weapon, Menacing, and Assault 4. The bartender never did call the police. Assault, 93-6514, On 09-07-93 police respond to report of shots fired. On arrival police see the owner of the Alley Lounge outside the bar. Mr. Ruiz told the officer he heard 2 shots, outside, so he came out to investigate. Investigation showed that a patron, who had earlier been involved in a verbal argument inside the bar then asked to leave, was the shooting victim. 3 of the Alley Lounge owner vehicle's fires were slashed with a knife. The shooting victim was uncooperative with the police during the investigation and no arrest was made. Curfew/MIP/Lic. Premise Violation, 93-7952, On 10-29-93 an officer does a bar check at the Alley Lounge. The officer recognizes a female he believes to be under 21 years old but she gives him a false DOB. She did not have any ID. The officer later checks police records and learns the female is only 17 years old. He recontacts her downtown, outside the bar, and arrests her for: MIP, Curfew, Protective Custody, Minor Loiter 8A CR//94-441 Page 4 of 4 on Licensed Premise, and Minor in Possession of Tobacco. Minor Loiter on Licensed Premise. The officer later cites the bartender for allowing Drag Investigation, 93-8109, On 11-04-93 Woodbum Police Department assisted the FBI in an on-going drag investigation in which a search warrant was served on the Alley Lounge. The owner was arrested on Federal warrants for Distribution of Cocaine. 9A COUNCIL BILL NO. /5~ RESOLUTION NO. A RESOLUTION FINDING THAT THE BUILDING LOCATED AT 199 N. FRONT STREET IS A DANGEROUS BUILDING, DECLARING IT TO BE A PUBLIC NUISANCE, AND ORDERING ITS OWNER TO MAKE IT SAFE. WHEREAS, the Woodburn City Council passed Ordinance No. 1999 which provides a process for the abatement of building nuisances, and WHEREAS, pursuant to Resolution 1173, a public hearing was set for May 10, 1993 at 7:00 p.m. in the Woodburn City Council Chambers, 270 Montgomery Street, Woodburn, Oregon, on the question of whether the building located at 199 N. Front Street, Woodburn, Oregon, constitutes a dangerous building as defined by Ordinance 1999, and WHEREAS, the City Recorder provided notice of said hearing as prescribed by Ordinance 1999, and WHEREAS, said hearing occurred and substantial evidence was presented indicating that the building located at 199 N. Front Street, Woodburn, Oregon, constitutes a dangerous building and is a public nuisance, and WHEREAS, said hearing was continued by the Council on several occasions in order to afford the owner of the building due process and an adequate opportunity to repair or abate said structure, NOW, THEREFORE THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the subject real property is described as follows: Lot 1, Block 4, in the original Town of Woodburn, County of Marion, State of Oregon, also known as 199 N. Front Street, Woodburn, Oregon. Section 2. That the subject real property is owned by Nora Fives and Lee Lemos. Section 3. That pursuant to Ordinance 1999 and Resolution 1173, a public hearing was held on May 10, 1993 at 7:00 p.m. in the Woodburn City Council Chambers, 270 Montgomery Street, Woodburn, Oregon, on the question of whether the building located at 199 N. Front Street, Woodburn, Oregon, constitutes a Page I COUNCIL BILL NO. /~-C~ RESOLUTION NO. 9A dangerous building as defined by Ordinance 1999. Section 4. That the public hearing was continued several times and adequate opportunity and notice was provided to all persons with ownership interests in the building to testify. Section 5. That, based upon the evidence presented at the public hearing, the Woodburn City Council finds that the building located at 199 N. Front Street, Woodburn, Oregon, is a dangerous building and declares said building to be a public nuisance. Section 6.That that the owners of the property located at 199 N. Front Street, Nora Fives and Lee Lemos, are hereby ordered to repair or abate the building located on the property by January 24, 1994 at 5:00 p.m. Section 7. That if said owners do not repair or abate the building during the prescribed time, the city will proceed to abate the building according to law. Section 8. That pursuant to Ordinance 1999 the City Recorder is hereby directed to provide a copy of this resolution to the owners of the property at 199 N. Front Street, Woodburn, Oregon. Approved as to form'~'~~' ~ City Attorney APPROVED: Len Kelley, 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. ./~'~ ~ RESOLUTION NO. IOA MEMO TO: FROM: SUBJ.: Mayor and City Council Chris Childs, City Administrator ~ Ordinance to Regulate Cable Television Rates DATE: February 18, 1994 RECOMMENDATION: Approve the accompanying ordinance providing for the regulation of cable television rates and fees. BACKGROUND: On September 27, 1993 Council authorized the City Administrator, by motion, to make application to the Federal Communications Commission (FCC) for certification to regulate basic cable service rates, which was subsequently accomplished. You may recall from the background material provided at that time that all Oregon municipalities were being encouraged to seek such certification to provide the essential tools to prevent unwarranted rate increases and to be better positioned to respond to citizen complaints regarding rates. The accompanying ordinance represents the next phase in this process. By approving the ordinance, the city is essentially adopting the FCC rate regulations developed for this purpose. Upon adoption of these regulations the city is then authorized to request justification from the cable company (Northland Cable, in this instance) of its rates for basic cable, installation and other services. As previously noted, such local regulation will not extend to premium channels (HBO, Showtime, etc.). Also, the city's right to regulate these rates would terminate at any time "effective competition" would become a factor (primarily through award of a competing franchise). Additional background material from the state Department of Justice is included as "Attachment A" to this memo. Obviously, we have already sought the FCC certification suggested in the letter, making our regulatory authority retroactive to September, 1993. It is interesting to note, however, that a FCC-imposed rate freeze was scheduled to expire on February 15, 1994, making the passage of this ordinance both timely and appropriate. T/dEODO~E R. KULONGOSKI ATTORNEY GENERAL DEPARTMENT OF JUSTICE CIVIL ENFORCEMENT DIVISION 1162 Court Street NE Justice Building Salem, Oregon 97310 Telephone: (503) 378-4732 FAX: (503) 373-7067 TDD: (503) 378-5938 February 7, 1994 THOM,~c ^ n ^LMER Attachment A Dear Local Franchising Authority: In 1992, Congress enacted the Cable Television Consumer Protection and Competition Act of 1992 (Cable Act). The Cable Act provides fOr regulation of cable television where competition does not exist. Under the Cable Act and the Federal Communications Commission's (FCC) rules implementing the ACt, local franchising authorities and the FCC share authority for regulating cable rates. The local franchising authority regulates basic cable service rates and the rates for installation, service charges and equipment associated with basic service. Basic service is the program package that includes signals from local television stations (such as ABC, NBC and CBS) and public, educational and governmental access channels. In addition to those channels, the cable operator may include any other channels that it chooses in the basic cable serviee~ The FCC regulates rates for all channels not in basic service or not offered separately as pay-per-channel (such as I-lBO). To regulate basic rates, the local franchising authority must become certified with the FCC by filing the single page FCC form 328 (enclosed) and adopting regulations consistent with the FCC's regulations. The FCC will not regulate basic service, if the local authority does not become certified, except in very limited circumstances. Those circumstances are: (1) a local franchising authority's certification is denied or revoked; or (2) the franchising authority requests the FCC to regulate basic rates, because it has insufficient resources to regulate or it lacks the legal authority to do so. Franchising authorities requesting FCC intervention on the basis of insufficient.funds must submit a showing explaining why the franchise fees it obtains cannot be used to cover the cost of rate regulation at the local level. Currently, the FCC has frozen cable service rates. That freeze expires February 15, 1994. After that, the basic tier and customer service will be unregulated, unless the local franchising authority has been certified. Cable operators will be able to raise rates without IOA Local Franchising Authority February 7, 1994 Page 2 Attachment A justification if the local franchising authority fails to certify. Although the local franchising authority may become certified later, it will lose the authority to order refunds retroactive to September 1, 1993. This letter is written to alert you to the upcoming deadline and is a public service of the Attorney General's office. Although we recommend that you become certified with the FCC as soon as possible to protect cable consumers in your area, the decision whether to certify is, of course, your own. S~cerely, Amy Alpaugh Assistant Attorney General AA:CABLE. SER 10A COUNCIL BILL NO. / ..~-'~ ~_:? ORDINANCE NO. AN ORDINANCE PROVIDING FOR THE REGULATION OF BASIC SERVICE TIER RATES AND RELATED EQUIPMENT, INSTALLATION AND SERVICE CHARGES OF ANY CABLE TELEVISION SYSTEM OPERATING IN THE CITY OF WOODBURN AND DECLARING AN EMERGENCY. WHEREAS, on October 5, 1992, Congress enacted the Cable Television Consumer Protection and Competition Act of 1992 which, among other things, provided that the basic service tier rates, and the charges for related equipment, installation and services, of a cable television system (hereinafter, "Basic Service Rates and Charges) shall be subject to regulation by a franchising authority in accordance with regulations prescribed by the Federal Communications commission (hereinafter the "FCC"); and WHEREAS, on April 1, 1993, the FCC prescribed such regulations in the Report and Order, In the Matter of Implementation of Sections of Cable Television Consumer Protection and Competition Act of 1992: Rete Regulation. MM Docket 92- 266, FCC 93-177 (released May 3, 1993) (hereinafter the "FCC Rate Regulations")' and WHEREAS, the City of Woodburn (hereinafter, the "City") is a franchising authority with the legal authority to adopt, and the personnel to administer, regulations with respect to the Basic Service Rates and Charges of any cable television system operating in the City, including, without limitation, the system currently being operated by Northland Cable Television, (hereinafter "the Company") pursuant to Ordinance 1766 and Ordinance 2093 (hereinafter the "Franchise:); and WHEREAS, the City desires to regulate the Basic Service Rates and Charges of the Company and any other cable television system operating in the city and shall do so in accordance with the FCC Rate Regulations, notwithstanding any different or inconsistent provisions in the Franchise; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. The City shall follow the FCC Rate Regulations in its regulation of the Basic Service Rates and Charges of the Company and any other cable television system operating in the City, notwithstanding any different or inconsistent provisions in the Franchise; and Page I - COUNCIL BILL NO. ORDINANCE NO. 10A Section 2. In connection with such regulation, the City shall ensure a reasonable opportunity for consideration of the views of interested parties; and Section 3. The City Administrator is authorized to execute on behalf of the City and file with the FCC such certification forms or other instruments as are now or may hereafter be required by the FCC Rate Regulations in order to enable the City to regulate Basic Service Rates and Charges. Section 4. This ordinance being necessary for the immediate preservation of the public peace, health and safety, and 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 form.''~ ~ I~. / , , City Attorney Dat~ ' APPROVED: Len Kelley, 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. lOB MEMO TO: FROM: SUBJECT: DATE: City Council through City Administrator Public Works Program Manager Professional Services Agreement for Woodburn High School Pedestrian Study February 23, 1994 RECOMMENDATION: Approve the attached resolution entering into an agreement with DKS Associates and authorizing the Mayor to sign the agreement on behalf of the city. The agreement is for a study of pedestrian circulation to Woodburn High School. Costs of the study will be $6,150.00 which will be shared on an equal basis with the Woodburn School District. BACKGROUND;,, Public works staff has been concerned for some time about pedestrian access to Woodburn High School. This concern has been shared by Woodburn School District officials. The increase in the number of apartments near the school has increased the number of students walking. At a recent meeting between the city, school district and state highway department it was decided to hire a consultant to conduct a study of pedestrian circulation in the vicinity of the high school. The public works department and school district agreed to equally share costs of the study. Proposals were requested for the study and public works and school district representatives selected the proposal of DKS Associates. The costs of the study is estimated at $6,150.00 and should be completed within six weeks of contract signature. Staff recommends the attached resolution be approved. COUNCIL BILL NO. RESOLUTION NO. lOB A RESOLUTION ENTERING INTO AN AGREEMENT FOR PROFESSIONAL SERVICES WITH DKS ASSOCIATES. WHEREAS,, The City of Woodburn has been concerned about pedestrian access to Woodburn High School, and WHEREAS,, Woodburn School District has shared the concerns of the city regarding pedestrian movement to the high school, and WHEREAS, , The City and the School District have agreed to jointly fund a professional services contract to conduct a study of the situation and to recommend solutions, NOW THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City of Woodburn enter into an agreement with DKS Associates, Inc. to provide professional engineering services to evaluate pedestrian circulation on or along city streets to Woodburn High School which is attached as exhibit "A" and by this reference incorporated herein. Section 2. That the Mayor is authorized to sign said agreement on behalf of the City of Woodburn. Approved as to form: City Attorney Date APPROVED: Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Mary Tennant, Recorder City of Woodburn, Oregon Len Kelley, Mayor Page 1 - COUNCIL BILL NO. RESOLUTION NO. lOB DKS Associates 921 S.V~/ Washington Street, Suite 612 Portland, OR 97205-2824 Phone: (503) 243-3500 Fax. (503) 243-1934 February 4, 1994 Randy Rohman City of Woodburn 270 Montgomery Street Woodburn, OR 97071 Subject: Woodburn High School Pedestrian Study A94x0012 Dear Randy: Thank you for providing DKS Associates the opportunity to submit a work proposal to assist you with analysis of pedestrian conditions at Woodburn High School. DKS Associates has been extensively involved with evaluation of transportation conditions at school facilities throughout the west coast. Specifically in the Portland area, DKS has completed evaluations of traffic, pedestrians and parking for the new Wilsonville High School, the proposed West Linn Middle School, West Hills Christian School and Boeckman Elementary school in Wilsonville. Our staff in Portland have also been involved in studies which involve pedestrian circulation for four high schools in Hayward, California, six high schools in Campbell, California and the University of Washington in Seattle. This broad understanding of education facilities and pedestrian circulation planning provide DKS unique expertise to address the Woodburn High School Pedestrian study. Based upon our discussion and review of your letter from last week, we have prepared a seven task work program which follows your work outline. SCOPE OF WORK Task 1: Evaluate Existing Coaditions. Five specific activities will be conducted. · Meetings with officials the City of Woodburn and Woodburn High School to review current conditions, problems, ideas and possible concepts. All existing information will be collected at this time. · Based upon meeting information, conduct specific pedestrian counts surrounding the Woodburn High School in the morning and afternoon peak time. These counts will form the basis for determining desire lines and quantification of pedestrian flows. · Up to date traffic counts will be conducted on ORE 214 and N. Front Street. These counts will record hourly volumes and speeds. · Field observations will be conducted by DKS staff of morning and afternoon school peaks. EXHIBIT "A" lOB Randy Rohman February 4, 1994 Page 2 · Discussions will be conducted with ODOT staff to reflect any data and records they have for this study area. Task 2: Develop Alternative Pedestrian Circulation Concepts. DKS will develop a series of alternatives to address pedestrian flows. Desire lines for pedestrian flows will be developed and confirmed with City and School staff. Based upon these desire lines, alternative pedestrian accommodations will be outlined. Consideration will be given to recent DLCD/ODOT grant funds which many be used as a means to fund implementation of specific pedestrian circulation elements as part of a specific pedestrian circulation system element. Task 3: Meeting with School and City Representatives. Based upon the alternatives developed, DKS will conduct a workshop with city and school representatives to review concepts and refined alternatives. The objective of this meeting will be to refine the pedestrian alternatives for the school and how it fits into any overall city objectives. Task 4: Screen Alternatives and Develop Preliminary Costs. Following the workshop, DKS will screen the alternatives and develop preliminary engineering costs to implement the plans. Stages of plans will be outlined. Task 5: Draft Report. A project summary report will be prepared which outlines the existing conditions, problems, concepts and alternatives. Screened alternatives and costs will be provided. This document will be used to review with City Council and School District Board members. Eight copies will be provided (including one reproducible copy). Task 6: Meetings. DKS will attend up to two total meetings of the City Council and School Board to present the draft report. Additional meetings can be attended, if authorized, but for budgeting purposes two have been identified. Task 7: Final Report. Based upon input from the Task 6 meetings, a final report will be prepared which outlines the decisions of the City Council and School board. DKS will respond to One set of unified, non-contradictory comments provided by the City project manager in preparing the final report. This report will be available to staff for implementation of the plan. Eight copies of the report will be provided (incl~uding one reproducible copy). SCHEDULE This work would take approximately 6 to 8 weeks to complete through task 5. The schedule can be accelerated if necessary. Task 6 and 7 will be determined by scheduling needs of the City and School board. BUDGET Table 1 summarized the cost estimate for this work. The estimate includes all labor, expenses and administrative costs associated with the work. We are happy to discuss this work plan in more detail if there are elements or costs which you want added or deleted, to suit your needs. lOB Randy Rohman February 4, 1994 Page 3 Table 1 Budget Task Hours Budget Estimate 1 24 $2,000 2 12 $850 3 8 $650 4 12 $850 5 6 $500 6 10 $800 7 TOTAL 6 78 $5O0 $6,150 In consideration of the performance of these services, DKS Associates will be compensated the lump sum amount of $6,150. This lump sum amount is based upon the work scope and level of effort presented above and includes the cost of all related technical and administrative services. DKS will invoice upon project completion. If, however, work should continue beyond the estimated completion date of June 30, 1994, DKS will issue progress billings each month based upon our estimate of progress (percent complete). Payments are due on a net 30 day basis. A service charge of 1 ~A % per month compounded will be assessed on billings not paid when due. If payment of our invoices is not made within 45 days of the due date, DKS reserves the right to cease work on this project until such time as payment is received. In the event of any litigation between the parties to this agreement arising from this agreement, the prevailing party shall be reimbursed for its reasonable attorneys fees and costs. Should the work not be authorized in thirty (30) days; or should changes occur in the work scope or level of effort; or should the completion date extend beyond the estimated completion date stated above due to circumstances beyond DKS's control; we reserve the right to revise the work scope, budget and schedule to reflect current conditions. Such revisions will be effected through amendments to this agreement. Two originals of this letter have been provided. If this agreement is acceptable, please have a duly authorized official of your city sign below and return one original for our files. Your signature will constitute formal authorization to proceed with the work program according to the terms outlined. DKS Associates is please to have the opportunity to submit this proposal and look forward to developing a working relationship with you on this project. If you would like more information regarding our firm, please do not hesitate to call me. I believe you will find DKS to be hard working, lOB Randy Rohman February 4, 1994 Page 4 dedicated and committed to producing solutions for the City of Woodburn and its citizens. Please contact me next week if you have any questions. Sincerely, DKS AS~iOL~ES Principa~ Approved By City of Woodburn By: Title Date 10C MEMO TO: FROM: SUBJECT: DATE: City Council through City Administrator Public Works Program manager/~ ~ Bid Award for Hydraulic Shoring February 22, 1994 RECOMMENDATION: Accept the bid of The Plank Company of $6606.56 for hydraulic shoring. NOTE: The shoring will be utilized by the street shop. Funds are in the approved budget in account #040-400-710.010. BACKGROUND: Bids for City of Woodburn bid number 94-15 for a set of 8 foot by 8 foot hydraulic shoring shield and temporary end shields were opened at 2:00 pm on February 14, 1994. The results were: Bidder Price The Plank Company Road Machinery Inc. Senter Tool Service 6,6O6.56 7,719.25 8,556.00 The shoring will be utilized by the street shop while working in trenches to comply with OSHA requirements and provide a safe environment for the employees. City of Woodburn Police Department 270 Montgi~ Ke.n Wri/~ht ~ Chief of~ ~ Date: February 14, 1994 Woodburn, Oregon 97071 To: Mayor and Council Subject: OLCC New License Application - WPD 93-9341 Applicant: Mrs. Dom Rivas - E1 Nopal Restaurant 333 N. First St. Woodbum (503) 982-2345 1OD License Type: Restaurant On December 9, 1993 the police department received application from Mrs. Dora Rivas for a Restaurant Liquor license. Applicant wishes to serve alcohol (beer) with meal service. On January 10 and February 8 the police department met with the Woodburn Downtown Association regarding the applicant and her desire to obtain a liquor license. *see attached endorsement. On January 18, 1994 the police department completed a criminal background investigation for the business and owner/operator finding no adverse information. On February 3rd the applicant, OLCC and I met at my office. At this time Mrs. Rivas related that her intent was to provide a restaurant in downtown Woodbum. Her primary service would be food and she would like to serve beer with meals for those who wished. We discussed several possibilities and ultimately resolved numerous items and agreed to certain conditions. Those conditions being voluntary on her part and agreed to be bound by them as a condition of her beer/wine liquor license. I have provided a copy of those conditions *see attached, and brought them to the Woodbum Downtown Association. The WDA in turn supports a Liquor license for the EL Nopal Restaurant. RECOMMENDATION: The Woodbum City Council approve the endorsement for a Restaurant liquor license for Mrs Dora Rivas, dba E1 Nopal Restaurant. t.o;4/~ F_-c.,nZ/,'~C,~-~ ,~6 ~<tt~/.,ff~ t'xJ WOODBURN D 0WNT 0 WN A S S 0 C~J~I A T I 0 N ~ B--~-~ T WOODBURN, OREGON 97071 1OD REC'D FEB 0 February 8, 1994 Lt. Don Eubank Woodburn Police Dept Woodburn, OR 97071 Don, The Woodburn Downtown Association Board of Directors met today and part of its agenda was devoted to the proposed liquor license for the E1 Nopal Restaurant located at 333 N Front St. Updated information was received concerning conditions to the license application; those being (1) service only with food (2) service limit of three drinks (3) service only after 11:00 AM. After a discussion, it was the position of the Board that with these conditions, the proposed liquor license would not be detrimental to the Association's efforts to improve the downtown environment for businesses and shoppers. Therefore, the Woodburn Downtown Association reverses its position of January 10th and now supports the proposed liquor license with the above conditions for the E1 Nopal Restaurant. S i~ce~e~¥~, //~ /~rent M Reddaway Secretary Robert E. Thomas, III Attorney and Counselor P.O. Box 801 Molalla, OR 97038 Telephone (503) 829-3555 Facsimile (503) 829-7646 10D February8, 1994 Chief Kenneth Wright Woodburn Police Department 270 Montgomery Street Woodburn, Oregon 97071 Re: Letter of Intent: Beer/Wine Application of Dora Alitia Rivas Dear Chief Wright; Pursuant to our telephone conversation from yesterday, and my discussions with my client, Mrs. Rivas, we submit the following letter of intent concerning her operation of her restaurant, El Nopal, located at 333 First Street of your city. Mrs. Rivas would like to serve beer with meals in her restaurant. In conjunction with this, she agrees to be bound by the following conditions which are acceptable to the OLCC. She would: premises; one meal; 1.) 2.) 3.) Serve alcoholic beverages only with meals ordered and consumed on the Serve no more than three (3) alcoholic beverages to any one patron at any Not serve any alcoholic beverages before 11 a.m., nor after 10 p.m.; and, 4.) Require all employees to attend and successfully complete an alcohol servers class approved by the OLCC prior to serving any alcoholic beverages to any customer. While these conditions are purely voluntary, Mrs. Rivas agrees to be bound by them as a conditional grant of a beer/wine liquor license pending any further conditions/regulations imposed by the OLCC. Mrs. Rivas' signature on this letter and the attached interpretation of this letter in Spanish gives evidence of her knowledge of and consent to these conditions. Member Oregon and California Bars .... 1OD Re: RIVAS' VOLUNTARY CONDITIONS FOR BEER LICENSE February 8, 1994. Page 2 If your office or the City of Woodburn has any questions concerning these matters, please feel free to contact this office. Robert E. Thomas, III I agree to abide by these and any successor conditions should the City and/or the OLCC permit me to serve beer and/or wine with meals in my restaurant. DORA ALITIA RIVAS SUBSCRIBED AND SWORN TO before me on %.,~ tqq¢ N~/tary Public for Oregon/// . omm ss on expires: Wf C:\NOTES\RIVASI.LTR IUl:: MEMO TO: THROUGH: FROM: SUBJECT: DATE: City Administrator for Council Action Public Works Programs Manager Julie Moore, C.E. Tech III C~~ NO PARKING request on W. Hayes Street near Settlemier Ave. February 22, 1994 RECOMMENDATION: It is recommended that approval be made to install NO PARKING signs along both sides of the north leg of W. Hayes triangle from Settlemier to approximately 100 feet to the west. Restricted parking in this area would eliminate congestion which is mused by cars parked on the street and increase traffic safety due to the volume of traffic on W. Hayes. See attached map. BACKGROUND: There have been many complaints recently regarding traffic congestion at the intersection of W. Hayes St. and Settlemier Ave. due to cars parked on the north leg of W. Hayes near the intersection of Settlemier causing a bottleneck with vehicles turning onto or off of Settlemier. W. Hayes St. intersects Settlemier Ave. in two locations with both legs of W. Hayes accommodating two directions of traffic until the end of the triangle, which is approximately 100 feet from Settlemier, where both legs join into one street with two directions of travel. The average daily traffic on W. Hayes is approximately 2,800 vehicles. The north leg is 26 feet wide and parking is permitted on both sides of the street. The south leg is 32 feet Wide with a bike path on the south side and no parking is allowed on that side. The Institute of Transportation Engineers Transportation and Traffic Engineering Handbook states that streets with a width of 30 feet or less warrant restricted parking on one side of the street. In this case it would be safer to restrict parking on both sides because of the short distance of the triangle legs until they merge into one street and the volume of traffic on this street. Therefore, it is recommended that parking be restricted on both sides of the north leg of W. Hayes until the triangle area joins into one street, which is approximately 100 ft. to the west. This will eliminate congestion until such time that the road gets modified and improved. 9780 0 ~o. 0 0 945 SETT, % q o % o ~ LEGEND. (2 each) (2 each) (existing) 1OF MEMORANDUM TO: Woodburn City Council and Mayor THRU:/~l~ity Administrator, Chris Childs FROM:('~I~V Nevin Holly, Director Recreation and Parks SUBJECT: Swimming Pool Political Action Committee Request DATE: February 24, 1994 Recommendation: Grant authorization to Swimming Pool Committee for use of sound amplification device on Saturday, March 12, 1994. Background: The Swimming Pool Committee, a PAC registered with the City Recorder, has requested permission to utilize a sound amplification device as described in the accompanying letter. Ordinance 1900 requires Council approval of such a request. 1OF February 24, 1994 City of Woodburn 270 Montgomery Street Woodburn, OR 97071 Dear Sirs, The "Swimming Pool Committee", a Political Action Committee registered with the Woodburn City Recorder, requests permission for use of a sound amplification device on Saturday, March 12, 1994. We understand that authorization for this purpose must be granted by the City Council. Supporters of our group will be driving around the community on that day using a loudspeaker system to promote passage of the upcoming pool bond measure. Contact person for this event is Flurry Stone, Jr.. Sincerely, Frank Anderson, Chairman Political Action Committee lOG TO: FROM: SUBJ.: DATE: MEMO Mayor and City Council Chris Childs, City Administrator ~ Insurance Coverage for St. Patrick's Day Parade February 24, 1994 ISSUE: It is requested that the Council, by motion, clarify its intent regarding extension of liability coverage to organizers of the proposed March 19, 1994 St. Patrick's Day Parade. BACKGROUND: At a special Council meeting held on February 1, 1994 a motion was made to cover the proposed St. Patrick's Day parade under the city's liability insurance coverage. Discussion preceding the motion seemed specific in that, to avoid future precedent, it was the Council's desire that the city not be considered the sponsor of the parade; that the committee organizing the parade should act as its own sponsor. City coverage of the "Drums of Fire" event in previous years was cited as an example of city insurance coverage for events organized by others. The city's insurance Agent of Record, Durham & Bates Agencies, Inc., after consultation with City County Insurance Services, the city's liability carrier, has expressed concern that the council's previous action was ambiguous in terms of clearly reflecting the terms of the city's liability policy. A copy of the letter received from Jim Camburn, the Agent of Record representative, is included as Attachment As evidenced by Mr. Camburn's letter, the key issue is whether or not the council is willing to consider the parade committee as an "agent" of the city in this instance, irrespective of whether or not the city wishes to be considered a "sponsor" of the event. Notwithstanding possible changes in policy language, it would have to be presumed that some degree of "agency" status was extended in the past instances, such as the "Drums of Fire", even though the city may not have been actively involved in organizing the event. Extending the city's liability coverage in any manner unquestionably increases the potential for exposure. Thus, the concern expressed by councilors regarding setting of precedents remains a valid one. Many community-wide events could be desirous of coverage under the city's liability policy. Would the council be comfortable in granting city "agent" status to such other groups? lOG Page 2 - Liability Coverage/Parade (2/24/94) It may be worthwhile to note that in early 1992 the "Drums of Fire" organization filed for official status as a non-profit corporation. Ostensibly, one of the principal reasons for this action was because of confusion and/or concern regarding the previous practice of "tagging on" to the city's liability coverage. Other groups, such as the Woodburn Latin American Club which puts on the "Mexican Fiesta" are responsible for their own liability insurance needs. lOG FEB 2 4 199,4 February 24, 1994 Mary Tennant City of woodburn 270 Montgomery Street Woodburn, Oregon 97071 Re: 'St Patrick's Day Parade Dear Mary, This letter is to confirm our telephone conversation that followed the receipt of your February 15, 1994; received in our office February 18. As we discussed, the city council does not have contractual authority to extend CIS beyond the scope of the contract. If the St Patrick's Day Committee ia an agent of the City of Woodburn, coverage would be extended to the Committee while acting within the scope of their authority. The liability contract responds to the liability of members as defined in the contract. Please note the definition of members on page 7; copy attached. The City's contractual coverage will extend to the Oregon Department of Transportation for the liability release. Hold harmless wording is included in the definition of "Member". contractual coverage does not; however, extend to sole negligence. The city may enter into a covered contractual agreement with the St Patrlck'~ Day Parade Committee but.coverage will not extend to sole negligence of the Committee if it i~ not an agent of the city. cIs could exercise its subrogation rights against the Com]nittee if the Committee was solely responsible for a legal action that involved the city and the committee was not an agent of the City. ,AND BATES lOG I have discussed this issue with Chris Childs, Bob Shields and Richard Egan. Please call me if you have questions. I would also encourage you to discuss the scope of coverage with Richard Egan or Mark Rauch. I will be out of town the week of February 28; .returning March 8. Sincerely, cc: Bob shields Richard Egan 1 5A MEMO TO: FROM: SUBJECT: DATE: City Council through the City Administrator Public Works Program Managor/~,~2~ Statewide Transportation Improvement Program Public Meeting February 23, 1994 Public review meetings for Oregon Department of Transportation's preliminary 1995-1998 Statewide Transportation Improvement Program (STIP) have been scheduled. The meeting location most convenient for Woodburn is the meeting scheduled for March 9, 1994 at the Stayton Community Center from 4-8:00 p.m. A copy of a newsletter concerning the STIP review process has been attached. The STIP has replaced what used to be called the "six-year highway plan" and now contains projects for all transportation modes. The period covered by the plan has been reduced from six to four years. The plan as proposed reflects a $400 million funding shortfall to the state. The program was shortened two years in order to schedule projects more effectively. A concern from the city's viewpoint is that no highway projects on the state system that is located within the city limits are scheduled in the program. Staff feels that there are projects on the state highway system that should be addressed. Staff will be preparing written comments to be presented to ODOT at the public meeting and will also be planning an oral presentation. As indicated on the attached newsletter, ODOT has changed the public hearing process from the formal hearing format to what has been termed an "open house" style. The process will be more informal but there will still be a process through which formal testimony will be received. In the past, the mayor and at least one council member, along with city staff, has attended these meetings. Since there are no council meetings prior to this public meeting some discussion may be warranted on council participation. RR:Ig STIPMTG.CC TIP 1 5A 1995 - 1998 STATEVVIDE TRAI~IS~RTATION IM?ROVEMEI'q-I- PROGI~M Public Asked to Review 1995-1998 STIP Public review of the preliminary 1995-1998 Statewide Transportation Improvement Program (STIP) is now underway. The Oregon Department of Trans- portation (ODOT) uses the STIP to prioritize and schedule transporta- tion projects throughout the state. These projects have been developed by the state, local and regional governments, transportation agencies and the public through various planning processes. The 1995-1998 STIP has a new format. It now shows local and state projects according to mode of travel and geographic area. This new format reflects statewide concern for the overall transportation system and the full range of transportation options. The 1995-1998 STIP has been downsized to reflect a $400 million funding shortfall. This has caused some projects to be delayed or reconfigured, and others to be eliminated. The shortfall resulted from less-than-anticipated federal funding, decreased state gasoline tax revenues and increased project development costs. The downsized 1995-1998 STIP maintains equity among ODOT's regions. Criteria used to downsize the STIP gave priority to projects that preserve the existing transporta- tion system. Consideration also was given to projects that improve air quality, increase the usage and safety of the existing system, are funded under special categories, have signifi- cant cost-sharing and have statewide significance. The 1995-1998 STIP also has been shortened from six years to four years in order to schedule projects more effectively. Public Involvement Plays Key Role in 1995-1998 STIP Public involvement in local and regional transportation planning has played a major role in determining which projects to include in the preliminary 1995-1998 Statewide Transportation Improvement Program (STIP). Public involvement also has played a key role in downsizing the 1995-1998 STIP. That role will increase in the future through an expanded public involve- ment process developed by the Oregon Department of Transporta- tion (ODOT). ODOT has mailed copies of the preliminary 1995-1998 STIP to elected officials, local governments, regional governments, tribal govern- ments, transportation providers, interested individuals and organiza- tions throughout Oregon. The document also is available for review at public and private libraries throughout the state. During February and March, ODOT will hold informal public meetings throughout Oregon to provide information and gather comments on the preliminary 1995-1998 STIP (see public meeting schedule and map on page 3). Summaries of public comments will be provided to participants and to the Oregon Transportation Commission (OTC). After reviewing the public com- ments, the OTC will finalize the 1995-1998 STIP and submit it to the U.S. Department of Transportation's Federal Highway Administration and Federal Transit Administration for approval. Federal approval is required before funds are released. A second newsletter in the fall of 1994 will summarize results of the meetings. Copies of the final 1995- 1998 STIP will be made available to the public upon request. ODOT will evaluate the procedures used in this year's STIP public involvement process, as well as public comment on the procedure, in order to ensure an even more effective process in the future. 15A Transportation Commission to Meet PubliC Henry H. Hewitt Steven H. Corey John W. Whitty Cynthia J. Ford Susan E. Brody At least one member of the Oregon Transportation Commission (OTC) will attend each public meeting scheduled to review the preliminary 1995 - 1998 Statewide Transportation Improvement Program. Two new members have been named to the OTC by Governor Barbara Roberts. Henry H. Hewitt, Portland, has been named chair to replace Michael P. Hollern, Bend, whose term expired. Steven H. Corey, Pendleton, has been named to the unexpired term of Roger L. Breezley, Portland, who resigned. John W. Whitty, Coos Bay, has been reappointed to a second term as vice chair. (All appointments are pending Senate confirmation.) Henry H. Hewitt, Portland, is chair of the law firm of Stoel Rives Boley Jones & Grey, where he is engaged in all aspects of business practice. He is vice chair of the Oregon Resources & Technology Development Fund Board and vice chair of the board of trustees of Willamette University. He also serves on the boards of the Oregon Graduate Institute and the Oregon Symphony. He holds a bachelor's degree from Yale Univer- sity, New Haven, Connecticut, and a law degree from Willamette Univer- sity, Salem. Byler Rew Lorenzen & Hojem in Pendleton. He is also a director and partner in two family-owned opera- tions, the Cunningham Sheep Company and the Nolin Farming Company. He is the president of the Oregon Historical Society, chair of the Oregon Tourism Council, chair of the Oregon Trail Advisory Coun- cil and a director of the Pendleton Round-up Association. He holds a bachelor's degree from Yale Univer- sity, New Haven, Connecticut, and a law degree from Stanford Law School, Stanford, California. John W. Whitty, Coos Bay, has served as vice chair of the OTC since February 1987. He is an attorney and partner in the firm of Foss, Whitty, Littlefield & McDaniel. A native of Coos Bay, he served in the United States Air Force from 1957 to 1959. He has served on numerous boards and commissions, including the Oregon International Port of Coos Bay Commission and the Bay Area Health District Board. He also has been active in Oregon State Bar committees and in continuing legal education events as a speaker and ' writer. He holds both a bachelor's degree and a law degree from the University of Oregon, Eugene. Steven H. Corey, Pendleton, is a partner with the law firm of Corey Cynthia J. Ford, Medford, has been a member of the OTC since February 1987. She is the first woman to serve on the commission. A well-known educator, she is the former director of, and currently special assistant to the president of, the Regional Services. Institute at Southern Oregon State College (SOSC), Ashland. She has served on numerous boards and commissions, including Willamette University, Oregon Health Sciences University and the Council for Economic Development in Oregon. She holds a bachelor's degree from Wellesley College, Wellesley, Massa- chusetts, and a master of business administration degree from SOSC. Susan E. Br0dy, Eugene, has served on the OTC since September 1992. Currently director of management services for the Eugene Water & Electric Board, she also has served as director of the Oregon Department of Land Conservation and Development and planning director for the City of Eugene. She has served on numerous boards and commissions, including the Eugene City Club and the Oregon chapter of the American Planning Association. She is a fellow of the American Leadership Forum. She holds a bachelor's degree from Reed College, Portland, and master's degrees from the University of California, Santa Barbara, and the Massachusetts Institute of Technol- ogy, Cambridge, Massachusetts. 1 5A Public Meetings Scheduled Throughout State Informal public meetings to review the preliminary'1995-1998 Statewide Transpor- tation Improvement Program have been scheduled throughout the state. Anyone needing special accommodations should contact the region representative. If unable to attend, you may submit written testimony to the region representative within 10 days of the meeting in your area. (Where possible, STIP meetings will be held in conjunction with transportation planning meetings scheduled for the same area.) REGION 1 Robin McArthur-Phillips . (503) 731-8230 1. Oregon City, March 2, 4-8 p.m. Oregon City High School Cafeteria 1306 12th Street 2. St. Helens, March 3, 4-8 p.m. St. Helens High School Commons 2735 Gable Road 3. Gresham, March 7, 4-8 p.m. Mt. Hood Community College Town & Gown Rm., 26000 S.E. Stark 4. The Dalles, March 10, 4-8 p.m. Wahtonka High School 3601 W. 10th Street (With Region 4) 5. Hillsboro, March 16, 4-8 p.m. Washington County Building Cafeteria 155 N. First Avenue REGION 2 Rick Sjolander (503)986-2600 6. Newberg, March 1, 4-8 p.m. George Fox College Cap & Gown Rm. 414 N. Meridian 7. Newport, March 2, 4-8 p.m. Marine Science Center S. Marine Science Drive 8. Stayton, March 9, 4-8 p.m. Community Center 400 W. Virginia Street 9. Seaside, March 16, 4-8 p.m. Convention Center Riverview Rms. A, B and C 415 First Avenue 10. Corvallis, March 29, 4-8 p.m. Corvallis Library 645 N.W. Monroe Avenue REGION 3 John Christopherson (503) 440-3399 11. Medford, February 28, 4-8 p.m. Jackson County Auditorium 200 Antelope Road 12. Roseburg, March 2, 4-8 p.m. Church Annex 1134 S.E. Douglas Avenue 13. North Bend, March 3, 4-8 p.m. North Bend Community Center 2222 Broadway (With Oregon Coast Corridor Plan Public Open House) 14. Springfield, March 9, 4-8 p.m. Springfield High School Cafeteria 875 N. Seventh Street REGION 4 Kelly Hansl°van (503) 388-6332 15. Bend, February 28, 4-8 p.m. Public Works Training Center 1375 N.E. Forbes Road (With Aviation System Plan Workshop) 16. Lakeview, March 3, 4-8 p.m. Lakeview Interagency Fire Center 222 N. E Street 17. The Dalles, March 10, 4-8 p.m. Wahtonka High School 3601,W. 10th Street (With Region 1) 9 7 13 12 FIVE - REGION ":5 16 MAP AND LOCATION OF MEETINGS 18. Warm Springs, March 29, 4-8 p.m. Agency Longhouse REGION 5 Randi Kobernik (503) 963-3177 19. Baker City, March 3, 4-8 p.m. Baker County Court House 1995 Third Street 20. Pendleton, March 10, 4-8 p.m. Vert Little Theater S.W. Dorian Avenue & Fourth Street (With Aviation System Plan Workshop) 21. Burns, March 11, 4-8 p.m. Harney CoUnty Senior Center 17 S. Alder Street 1 5A INO~93blO 'IN=i'IVS S9 'ON lllNt:l=Jd (]l~d =IEIVISOd 's'n 31Vbl ~-'IN'8 9N/a'7/n8 NOII'c'IblOdSNV,~J- O#l Illl NOI. I. tf.I.I:IOdSNVHI ..~0 .I.N~ltll. l.,5l~d:3O NO~)..=-I~O EH.J. ~ Public Meetings Become More Informal, Informative The format for the 1995-1998 STIP public meeting process will be considerably more informal and informative than in past years. The purpose for the change in format is to encOurage a broader participation by all segments of the public. In the past, meetings were conducted in a formal hearing format. Individu- als who wished to testify did so in front of an audience. While this provided a welcome forum for some, it inhibited comments from others. This year's meetings will be con- ducted in a more user-friendly, open-house style. Meetings will begin in the late afternoon and continue into the evening to allow as many people as possible to participate. Attendees will have an opportunity to gather information and speak informally with Oregon Department of Transportation (©DOT) staffabout the future of transportation, the planning pro- cesses currently underway and specific transportation projects. Anyone wishing to testify will be seated at a table with a member of the Oregon Transportation Com- mission and a member of ODOT regional management. Comments will be transcribed by a court re- . porter, and written testimony will be accepted. Feedback on the process will be solicited, and summaries of formal and informal comments will be provided to everyone who attends the meetings. OR 97310. 1998 City of Woodburn Police Department 15B 270 Montgom/~y Ken Wrigl t / Chief of Date: February 24, 1994 Woodburn, Oregon 97071 (503) 982-2345 To: Mayor & Council Chris Childs, City Administrator Subject: Draft Towing Ordinance Beginning in October of 1993 the City Attorney and myself have been working on the design of a city ordinance addressing the towing and impounding of vehicles operated by uninsured motorists within the corporate city limits of Woodbum. As the process of enforcement can have a detrimental affect upon those effected by this ordinance we have had to be painstakingly precise in our policy development. Public Education and Warning. Between March 1st and the enactment of this ordinance the police department will post flyers in all public places around town. We will be asking Newspapers, Northland Cable and radio stations for their cooperation. Towing firmq. On February 11, 1994 I met with the two towing firms who are licensed to operate within Woodburn. Among topics explored were: 1) How many vehicles? In the year ending 1993, the police department issued 587 uniform traffic citations for the offense of 'Driving Uninsured'. Should the police department cite and equal number of citations in 1994 and in addition have the vehicle towed what would be the process be for the police officer and the towing company? Can the fn'ms handle the increased business in reasonable time frame and do they have the storage capacity? In our discussions with both firms the process was openly discussed and all questions were answered that they should be able to respond and handle the increased workload. At this time there will be no direct fiscal impact upon the city from the towing firms as a result of the proposed ordinance. We are working on how to best address concerns of additional workload. ln.~urance proof documentation. So as to not create a liability for the city through the enforcement of this ordinance, we need to assure a process of establishing proof that the vehicle is not insured before we tow it. A driver and vehicle may be insured but not have documentation as required by law in the vehicle. How do we (police) establish this and only issue a citation for not having a proof of insurance card and not towing the vehicle. Conversely, we (police) must document that a vehicle and driver are not insured in order to tow the vehicle. The police department is establishing a list of Insurance Company telephone numbers for the officers to call from their patrol units to establish that the driver is or is not insured. Written Notice of towed vehicle. As a requirement of the ordinance the department must notify the registered owners and security interest holders within 48 hours after the tow. This notice does not need be mailed if all registered owners are present at the time of traffic stop. Another requirement is to notify all required persons of the opportunity to contest the validity of the tow of a vehicle, and how to request such a hearing. This form is being developed. Driver and occupant Impact. When the police officer stops a vehicle that meets the requirements of the ordinance and subsequently tows the vehicle what happens to the driver and occupants? Our primary concern is that of single women and children. Do we leave them at the scene? This is a serious consideration of both liability for the city and a moral standard. If we have the police officer taxi them then we involve more of the officers time which will reduce the effectiveness of the police department resources. Police department staff are contacting other police agencies to obtain their polices. Release of vehicle. A vehicle towed pursuant to this ordinance shall be immediately released to the person(s) entitled to lawful possession upon proof of compliance with financial responsibility requirements. On the normal workday a civilian staff is present at the police department to receive money and establish that the financial responsibility requirements have been met. On week-ends and holidays provisions must be made for police officers to accommodate this provision. This process is being developed and will be in place by the effective date of the ordinance. POLICE DEPARTMENT AND CITY IMPACT. It normally takes a police office 15-25 minutes to issue a traffic citation after the initial traffic stop is completed. With the enactment of this ordinance the additional time of wrecker response, hook-up and departure will be added. Response will average 10-15 minutes, hook-up and departure with required documentation will add an addition 5-10 minutes. 2 15B This will be an approximate addition of 15-25 minutes to these traffic stops. Should the police department issue the equal of 1993 citations we could add an annual impact of 140- 240 additional patrol hours per year. If we are to add the time to care for the driver/occupants of the vehicle we could realize the equivalent loss of one police officer for a complete month. Another consideration is the requirement of printed forms and notices. This is estimated to be $125-$200. The requirement of a contested hearing will involve additional court clerk time and the time of the Hearings officer ( Municipal Judge ). As we do not have a track record to make an estimate the hours the total cost is not available. The possibility of towing a vehicle that may appear to meet all the requirements of the ordinance, in the middle of the night, may in fact turn out to be a improper tow. Should this be the case the city would be liable for the towing and storage. This will average $75-$175 per vehicle. While the Ordinance requirements are as specific as possible, all policy material will attempt to take into consideration all reasonable ramifications, there will undoubtedly be a mistake. 15B COMMENTARY While it is not meant to alarm the council, this information is meant only to keep the council fully advised of all possible liabilities. I fully support the enactment of this ordinance and believe it to be in the public good. But, we do not add the burden of additional enforcement without substantial costs. In speaking with other police agencies, the initial months of enforcement saw substantial resource consumption. Most then leveled off. Each jurisdiction leveled differently. Some saw a 50% reduction while some saw only a 15% reduction. We will not know until we try it. 3 City of Woodburn Police Department 15C Ken Wr~ht ~ / Chief O~p~01~ Date: February 21, 1994 Woodburn, Oregon 97071 (503) 982-2345 To: Mayor & Council C. Childs, City Administrator Subject: Differential Police Response (DPR) - Staff Report During the public hearings for the city budget of fy 92-93 the Council approved the committee implementation for the purpose of researching alternative methods of handling the ever increasing demand for Police services. The reduction of sworn police officer positions, the population increases and the constraints of Measure 5 made it imperative to determine alternatives to a police officer response. As a result a committee comprised of citizen volunteers Carl Brown and Mary Schultz, Lt Don Eubank, Sgt Tom Tennant, Officers J Rodriguez and J Tlusty and a NORCOMM dispatcher L. Coggins was assembled. Some facts were presented to the committee that continue today: In 1990 the city provided a police force with a ratio of 1.87 officers per thousand, one of the highest in the state. Of Oregon cities with a population of 10-15,000 only Oregon City reported a higher crime index. Woodburn police officers responded to all calls for service with no formal prioritizafion. One of the first duties of the committee was to survey the police department customer base to determine what level of service was satisfactory. The survey results revealed that the citizen (customers) were very satisfied with police services and that the customer was willing to try alternatives to immediate response to each call for service. I am enclosing a copy of the *survey for Council review. As part of the DPR Program implementation is was necessary to develop dispatch response priorities. The priority response identified each priority and who was responsible. I am also providing the Council with a copy of those priorities. At the October 26, 1992 the DPR committee presented the final report and recommendations to the Council for approval. The Council approved the report as an accepted form of delivery of police services. Along with the approval the Council directed a complete evaluation of the program and report back to the Council. I am providing a *staff report developed by Lt Eubank as a evaluation of the program for the council. I would note that the employment of the DPR Clerks did not occur until August of 1993 with the implementation of complete telephone reporting beginning in September. The prioritization of police response began immediately and has worked to direct officers to the highest priority calls frrst. If we were to weigh the cost effectiveness of the reports taken by the DPR program we have added approximately two police officer months. While the Council would prefer the immediate response of a uniform police officer the cost is prohibitive. Under the current citizen philosophy of less government this program is an example of how the Council and Police department have attempted to subscribe to this philosophy and make it work. The current ratio of police officers to citizen is down from the mid 1980's of 1.85 to between 1.4 (14,500 pop.) and 1.2 (16,500 pop.) If the Council was to attempt to provide the 1.85 ratio of police officers to population the city would employ 26 - 30 police officers. As the survey points-out not all citizens fred it acceptable to have their call prioritized or handled via the telephone. I would point out that at the time of survey this was 23 % of those polled. The poll was not scientific and only comprised 100 homes of persons who had had called the police in the lyr prior to the survey. As Lt Eubank outlines in his report the department has been able to increase its ability to make special assignments and follow-up investigative assignments. In 1993 the department cleared 41% of all Major Index Crimes reported and 47% of all incidents reported. With the DPR in place for this full year (1994) our target is to increase the clearance of incidents by 5%. 15C 2 15C City of Woodburn Police Department MEMORANDUM 270 Montgomery Street Woodburn, Oregon 97071(503) 982-2345 Ext. 351 Don Eubank Operations Lieutenant Date: January 28, 1994 To: Ken Wright, Chief RE: Differential Police Response (DPR) STAFF REPORT/EVALUATION On October 2, 1992 you gave a presentation to the Woodburn City Council which listed four (4) recommendations as it related to the DPR and those were: 1) 2) 3) 4) Adopt and implement the DPR Program. Adopt the Property Loss Form. Add additional clerical staff to answer telephones and take appropriate reports. This request was for sufficient "Call-Takers" to answer telephones 12-16 hours per day, 7 days per week. Survey and program evaluations to be completed in approximately one year. On October 26, 1992 the Woodburn City Council authorized implementation of the Woodburn Police Department's Differential Police Response Program (DPR). The intent of the program was to implement alternative methods of handling the ever increasing demand for police services. By implementing response alternatives, we should be relieving officers of responding to every call. The Officers should become available to provide important services such as performing crime directed patrol activities, follow up investigations and crime prevention. Listed below are the three recommendations you made to the council and progress to date. 1) DPR PROGRAM (Dispatch Priorities, Follow-ups & Directed Patrol Activities) The DPR Program has been phased in various stages over the past year. This program includes three essential components, Dispatch, Supervisor Responsibilities and Call- Takers. As shown in the attached DPR Program, DISPATCH RESPONSE PRIORITIES dictate what each component's responsibilities are and how they fit in the program. 15C A) Dispatch Response Priorities...There are four priorities, (1) Immediate Dispatch/Response, (2) No immediate threat, Delay Authorized, (3) No Threat Delay Authorized and (4) Handled by Call-Takers, Records, and Secretary. In reviewing these, I am finding that referring or delaying calls for service has been more difficult for Dispatch and the Officers than it has for the citizen. For years we have been programmed to finish the call as quickly as possible and then get on to the next one. Having calls for service holding or stacked" has not been the norm and this tends to annoy those involved in the process. Daily I hear over the radio "Your ETA to clear"? When asked why, Dispatch responds, I have a call holding. On the other side, I hear Officers "clear" a call and later find out that they have not done the report, they just felt that they should clear. In talking with the Officers and Dispatch, and from personal experience, very few complaints have been expressed in regards to Delayed Responses, Referrals and Telephone Reporting. In most instances, the citizen initially feels that evidence will be left uncollected if an officer does not respond. However, when a supervisor explains the process, the citizen is often quite satisfied, even if the report is taken over the phone. Follow-up Investigations and Directed Patrol Assignment...To better track Follow-up investigations, a Follow-up Assignment Log was created and added as part of SOP #17. In 1993, 368 Follow-up Investigations were assigned to Patrol Personnel. By December 1994, we should be able to better analyze Follow-up investigation assignments to Patrol to enhance Case Management with the use of DPR. Numerous Directed Patrol Assignments have been made throughout 1993 including Gang Houses and activities, Graffiti Suppression, Burglary Suppression, Shots Fired Calls, Traffic Complaints, and various public meetings. To accomplish these tasks, certain officers were assigned to a certain area or assignment and calls were held or deferred. 2. PROPERTY LOSS FORM The Property Loss Form was adopted to reduce police report writing time, The report is primarily a "fill-in-the-blanks" report and generally requires less than ten minutes to complete. The form has proven to an be excellent tool of police work, making reporting and recording easier for the officer and the citizen, whether the report is taken in person or over the telephone. Listed below are estimated statistics as they relate to the use of the Property Loss Form. 2 15C AVERAGE NUMBER OF PROPERTY LOSS FORMS USED DURING 1993. DAILY: 10 WEEKLY: 70 MONTHLY: 280 ANNUALLY: 3,650 3. CALL-TAKERS In July 1993 two (2) part-time Call-Taker positions were authorized in the Police Department Budget. Prior to this time a records clerk and the secretary would handle the "business" phone lines and walk-in traffic at the reception area of the department. The Call-Taker is the person who receives mostly non-emergency calls for service at the front counter of the police department. They are an important link to police services with which most citizens come in contact. A Call-Taker has the responsibility of taking walk-in complaints, phone reports and providing referrals to other departments and agencies when appropriate. On the average, each call taker refers five (5) calls for service and walk-in traffic to other departments and agencies per day. This is 50 per week, 400 per month and 4800 per year. The Call-Taker is able to handle these referrals and various calls for service, versus calling a Police Officer in from the field. Call-Takers work 0900-1700 Monday through Friday, each working a 4 hour shift. During the calendar year for 1993 there were approximately 1,124 calls for service during these periods of time. (This is only an estimate at this time due to the fact I have not received the OUCR for the last six (6) months of 1993) There were 187 calls for service taken by Office personnel. The calls taken by the listed personnel represents 16.6% of the total calls. By the end of 1994 the goal is to increase this to 25%-30% of the total calls. With additional training and experience and hopefully additional clerical personnel this goal will easily be achieved. Listed below are calls for service taken by Call-Takers, Records and the Secretary in 1993. SECRETARY 44 RECORDS 83 CALL-TAKERS 60 TOTAL CALLS 187 3 '- 15C 4. PROGRAM EVALUATION The DPR Committee worked very hard on this program and did an excellent job. I am of the opinion that DPR is starting to work as originally planned. I will list some reasons for such a slow start. For this program to succeed, training was and is necessary for all concerned. An SOP had to be written and distributed to all to ensure compliance and understanding. TRAINING...There was no formal training for Patrol or Dispatch personnel. Each got copies of the DPR Dispatch Priorities and "winged it". In recent meetings, the Supervisors have been given additional information and empowered to use DPR as it was intended, to free up officers for criminal investigations and other assignments. The new director of 911 has been brought up to date on the history, philosophy and procedure of DPR. The previous Director had little if any involvement in the DPR Program and process. DPR was originally explained to dispatch personnel by a dispatcher who was on the committee. DPR has been related to dispatch personnel by the current Director and calls are handled as intended, by their rank in the priority of calls for service. SOP...On October 3, 1993 I wrote an SOP for DPR and Call-Takers. The SOP, to my knowledge, was never finalized and given to Police and Dispatch personnel. I have printed and attached a copy of the proposed SOP to this Staff Report for your review. DPR will work as long as we continue to correct the listed deficiencies, constantly and closely monitor how calls for service are RECEIVED, HANDLED, DISPATCHED, DEFERRED, DELAYED AND REFERRED and modify the program as necessary. If modified, ensure that all involved in the process are trained and acknowledge they understand. 4 15C response to their calls for service. Most citizens agreed to participate. Listed below are the results of these surveys, the questions asked and the number of persons surveyed. 404. Findings (1) Satisfaction with the manner in which the initial phone call was handled either by Dispatch or Police Reception. (2) (3) Very Satisfied 31 or 61% Satisfied 17 or 33% Dissatisfied 3 or 5% Very Dissatisfied 0 or 0% Satisfaction with response time by the police. Very Satisfied 28 or 57% Satisfied 20 or 41% Dissatisfied 0 or 0% Very Dissatisfied 1 or 2% Would citizens be open to options other than immediate police response, such as: Someone taking the complaint over the phone? 33 Yes 69% 11 No 23% 4 Don't Know 8% Arranging an appointment at a later time for an Officer to respond? 37 Yes 79% 8 No 17% 2 Don't Know 4% Willingness to have a report mailed to them for completion and then mail it back to the Police Department? 27 Yes 53% 21 No 41% 3 Don't Know 5% 15 15C 405. Willingness to come to the Police Department to file a report? 34 Yes 71% 10 No 21% 4 Don't Know 4% CONCLUSIONS (a) With only a few exceptions, the citizens are very satisfied with the way initial phone calls are handled, and with police response time. The foregoing findings and analysis suggest that the citizens of Woodburn are willing to accept alternatives to immediate police response, when appropriate. With this information at hand and by exploring other cities' examples of DPR, the Committee has developed the attached Differential Police Response Program (DPR) recommendation for the Woodburn Police Department and the citizens of Woodburn. 16 15D MEMO TO: FROM: SUBJECT: DATE: City Council through the City Administrator for Information Public Works Program Manager ,~~ Basketball Hoops Facing City Streets February 23, 1994 Councilor Jennings at the February 14, 1994 meeting brought up problems with children playing at a basketball hoop on Joyce Street that faced the street. There are many such basketball hoop installations in the city. I feel it would be safe to estimate that there are probably 50 or more. There is nothing in current city ordinances that I or the city attorney feel comfortable with to utilize as an enforcement tool. There are also some liability considerations that'must be further researched before recommending a specific course of action. Staff will continue to research the best course to follow in this situation and this will be presented for council consideration at a future meeting. RR:Ig BSKHOOP. CC 15E M~.MO 1'0:. FROM: R~: DAT~: MAYOR ~ CITY COUNCIL NAlq~ GRITTA, FINAIqCE DIRECIX)R AGI~~ WITH SERVI~ FEBRUARY 24. 1994 This communication is to provide you with information about recent developments in our collection of water and sewer revenues. The City has had a written a~reement with the Servi- Center at Fairway Plaza for a number of years (at least since 1975) for utility bills to be receipted and collected at their location. This has been primarily an a~eement for the convenience of customers and the City's 1988 contract provides for payment of 20 cents per account receipt. Other utilities have done the same, however, the phone company, at least in the past, has required that the customer pay the fee. Recently the Servi-Center was sold. The new owner is currently learning the business from the former owner and seems to be highly motivated and very interested in doing a good job. We have been paying between $250 and $300 a month for bills processed by the Servi-Center, a service, because of its convenience to customers, worth the cost when done properly. However, when it is-not done correctly it takes us longer than it would have, had we done all the receipting from {he be~innin§-in effect, costing us twice. Therefore, this a~reement is cost-effective only when the service is being done well. Meanwhile, Lind's Market at Fairway Plaza had contacted us about putting a box in their store to collect all kinds of utility payments as a way to bring people into their store. Lind's would simply collect payments and pass them on. Plans are to start this soon. Mr. Lind tells me some of the other utility businesses plan to have the Servi-Center collect their payments from Lind's and process them as usual. We are planning to collect and process our own payments from Lind's. In time, we may wish to change this arran§ement and if we do continue with the Servi-Center; we may also wish to revise our a~reement so it can be si~ned by the new owner. We do not recommend Council action at this time. We feel we can better determine the best course after the new Servi-Center owner has had time to adjust and after we have seen the impact of citizens being able to pay at the ~rocery store. 15F MEMO TO: FROM - DATE : SUBJECT: Mayor and Council Mary Tennant city Recorder February 23, 1994 Filing Period for Mayor/Council Positions -- November 8, 1994 Election At this year's biennial general election, voters will have an opportunity to vote on candidates for the position of Mayor and Councilors from Wards III, IV, and V. Current incumbents are as follows: Mayor Ward III Ward IV Ward V At-Large Precinct 125 Precinct 130 Precinct 127 Len Kelley Don Hagenauer Joe Galvin Kathy Figley To be eligible for office, candidates must be qualified electors and residents of the city during the 12 months preceding the election. In addition, candidates for Councilor positions must be residents of the Ward from which they are elected. Attached are copies of the ward boundaries for these positions. The filing period for these positions begins March 4, 1994 and ends at 5:00 p.m. on August 30, 1994. All required election forms must be filed with the City Recorder, who in turn, will file the list of candidates with the County Elections office. Citizens interested in filing for office are encouraged to contact the City Recorder's office for additional information. 15F 15F ........ -Fl - T I 1 .......... -- I' ,} Jill 15F 1 5G MEMO TO' FROM' SUBJECT: MAYOR AND COUNCIL CHRIS CHILDS, CITY ADMINISTRATOR ~ PROPOSED CONSTITUTIONAL AMENDMENT/ TAX LIMITATION DATE: FEBRUARY 18, 1994 Provided for your information is a synopsis independently prepared and distributed by the Portland law firm of Preston Thorgrimson Shidler Gates & Ellis concerning a proposed Constitutional amendment to impose further tax limitations on state and local governments. Referred to by some as" Son of 5" (in reference to 1990's Ballot Measure 5) this measure will, ironically, appear on the November 8, 1994 General Election ballot as Measure #5. Among other features, the measure would categorize virtually all local government fees as "taxes" and would require a vote of the people to increase any of these fees as well as the more 'traditional votes required to increase property taxes. Passage of this measure could significantly impact the city of Woodburn along with virtually all other state or local government units, Preston Thorgrimson Shidler Gates & Ellis A'I'rORNEYS AT LAW 15G A Special Report on the Proposed New Tax Limit The New Limit - A Preliminary Analysis General Description of the Measure Proposed Article I, Section 32a of the Oregon Constitution (the 'New Limit"), which will appear as measure five on the general election ballot in November of this year, defines as a 'tax"all fees and charges of state and local governments except specific, enumerated charges. If the New Limit passes, all new 'taxes,' and all 'tax' increases after the effective date of the New Limit must be approved by the voters unless the Oregon Legislature declares an emergency. The ballot submitted to the voters to authorize a new tax or tax increase must include the 'reasonably estimated annual dollar amount of the proposed new tax or tax increase. A copy of the New Umit is attached to this report. The New Umit's definition of 'tax" includes many charges which would not be considered "taxes" by people on the street or lawyers, including some charges for goods and services which citizens are in no way compelled to pay. The inclusion of voluntary payments is a distinct difference between the New Limit and Article XI, Section 11b of the Oregon Constitution ('Old Measure Five"), which was approved by Oregon voters in November of 1990. Old Measure Five limited its scope to charges which are "imposed" on property or property owners. 'Imposed" charges are charges which people are compelled to pay. Uke some of the predecessors to Old Measure Five, the New Limit creates important new concepts which it does not define, and apparently has some critical drafting errors. This means that the effect of the New Measure on Oregon and Oregonians cannot be predicted accurately, and ultimately will be determined in litigation. "Taxes" under the New Limit The New Limit defines as a '~ax" any state or local government fee or charge except: 1. User fees charged by People's Utility Districts or port districts. 2. school, college or university tuition and fees. 3. incurred charges and local improvements as defined by Article Xl, Section 11b of [the Oregon] Constitution. 4. other user fees paid voluntarily for specific services that are not monopolized by government. 5. increases in charges for monopolized products solely to pass through increased costs of wholesale inputs that are not state or local government labor costs and are not othenNise under the charging government's control. 6. fines or forfeitures for violations of law. 7. earnings from interest, investments, state lottery proceeds, donations or asset sales. The exemption for user fees charged by People's Utility Districts or port districts. People's Utility Districts are currently authorized to provide only electrical, water and drainage services. User fees for those services may be instituted or increased under the New Limit without a vote. Port districts do not provide, and are not currently authorized to provide, traditional governmental services. Port districts operate docks, airports and industrial parks. User fees for these activities could be instituted or increased without a vote. Special Report, Page 1 PRESTON THORGRIMSON SHIDLER GATES & ELLIS Telephone: (503) 228-3200 Telecopier: (503) 248-9085 January 28, 1994 15G The exemption for 'school, college or university tuition and fees. Only community colleges and universities in Oregon regularly charge tuition to all students. grade schools and high schools do not. All Oregon schools are beginning to increase fees to replace funding lost as a result of Old Measure Five. This trend may continue without interference by the New Limit. The exemption for incurred charges and local improvements as defined by Article Xl, Section 11b of [the Oregon] Constitution. The New Limit exempts two charges which are defined in Old Measure Five: 'incurred charges' and 'local improvements.' These Old Measure Five exemptions, when compared to some of the New Limit exemptions, were more carefully drafted and cleady defined. Because the "incurred charge" and "local improvement" definitions are clearer than some of the exemptions created by the New Limit, the New Limit provides an incentive to local governments to structure their fees and charges so that they qualify as "incurred charges" and 'local improvements.' This will have the somewhat ironic effect of increasing the burden of governmental charges which are imposed on the owners of real property, since these Old Measure Five exemptions appear to be available only for charges which are imposed on property or as a direct consequence of properly ownership. Incurred charges. Old Measure Five states that "Incurred charges"~ include and are specifically limited to those charges by government which can be controlled or avoided by the property owner (i) because the charges are based on the quantity of the goods or services used and the owner has direct control over the quantity; or (ii) because the goods or services are provided only on the specific request of the property owner;, or (iii) because the goods or services are provided by the govemmental unit only after the individual property owner has failed to meet routine obligations of Special Report, Page 2 ownership and such action is deemed necessary to enforce regulations pertaining to health or safety. Incurred charges shall not exceed the actual costs of providing the goods or services. Because the incurred charge exemption is available only for charges which can be 'controlled or avoided by the property owner' it would appear that only charges imposed on property or property owners can be exempt as incurred charges. However, if the charges can be imposed on property or property owners, the incurred charge exemption allows government to impose a wide variety of charges for goods and services which are sold based on quantity of goods consumed, or are provided only upon the request of the property owner. Incurred charges are not permitted to exceed "actual cost,' and no one is yet certain what that means. The 1991 legislature provided a definition of actual cost that permits local governments to use fiat fees, and include depreciation and other non-cash costs of operating utility systems. However, these definitions have not been scrutinized by Oregon courts, and it is not yet known whether the courts will accept the legislative definitions. Local Improvements Old Measure Five contains an exemption from its limits for assessments for local improvements. The New Limit only has an exemption for "local improvements.' "Local improvements" are not fees or charges, only assessments are. This is such a gladng error in draftsmanship that we may reasonably hope that the courts will construe the New Limit's exemption for 'local improvements' as an exemption for 'assessments for local improvements." Old Measure Five provides: A "local improvement" is a capital construction project undertaken by a governmental unit (i) which provides a special benefit only to specific properties or rectifies a problem caused by specific properties, and (ii)' the costs of which are assessed against those properties in a single PRESTON THORGR1MSON SHIDLER GATES & ELLIS Telephone: (503) 228-3200 Telecopier: (503) 248-9085 January 28, 1994 15G assessment upon the completion of the project, and (iii) for which the payment of the assessment plus appropriate interest may be spread over a pedod of at least ten years. The total of all assessments for a local improvement shall not exceed the actual costs incurred by the govemmental unit in designing, constructing and financing the project. The exemption for assessments for local improvements appears to be relatively well understood, and to incorporate many of the Oregon local government assessment practices which were being used before the adoption of Old Measure Five. The exemption allows property to be assessed for an allocable share of capital improvement projects which specially benefit the assessed property. The exemption can not be used to provide revenue for operating costs. The exemption for other user fees paid voluntarily for specific services that are not monopolized by government. This exemption is confusing and unclear. This is particularly unfortunate, because it is the major exemption available to fund the costs of services provided by traditional local governments, unless those governments choose to impose their charges on property. Some charges, such as transit fees, cannot reasonably be imposed on property. This exemption, by its terms, applies only to "services;" it does not apply to goods or 'products.' Legislation and litigation will be required to determine what is a 'service" which can be exempted under this provision. For example, sewerage services are cleady a 'service" since the customer gets no tangible item in exchange for' payment. However, although we typically talk about water "service" the customer does get a tangible item (water) in exchange for payment. This lack of clarity may suggest that water fees (and any other utility fees for which there is lack of clarity) should be imposed on property and structured to comply with the 'incurred charge' exemption. The meaning of "paid voluntarily." This is a particularly puzzling phrase, and may simply be the result of carelessness on the part of the drafters. At one level, the only fees that are paid 'voluntarily' are gifts and donations. Presumably the drafters did not intend to restrict this exemption to voluntary contributions to local governments. Perhaps 'paid voluntarily" was meant to eliminate collection efforts; fees can be charged, but governments cannot sue to collect them. Perhaps local governments could qualify for this exemption by billing for services in advance, and refusing to provide service if no payment is made. An advance payment for services would appear to be wholly voluntary. However, it would appear to require citizens to pay for government services earlier than they do now. It is even possible that this phrase was intended to mean what the drafters of Old Measure Five meant when they exempted fees for goods or services which 'are provided only on the specific request of the property owner.' Unfortunately, a court may have trouble reaching this conclusion, since the New Limit cross-references the 'specific request' language of Old Measure Five. A judge is likely to assume that the drafters of the New Limit would have written 'services provided at the specific request of the person charged" if that was what the they meant. The meaning of "monopolized." One of the most complicated specialties in American law is anti-trust law. Much of the complexity is associated with determining whether particular activities constitute a 'monopoly." The determination depends heavily on complex facts such as the type of market that is served, the geographic coverage of the alleged monopolizer, and the alternatives of the consumers. We do not believe there is a clear legal definition of monopoly that can be applied easily to governmental services; that lack of clarity is bound to provoke lawsuits which will divert scarce public funds from governmental services to lawyers. We will illustrate this point by contrasting two typical governmental services: sewerage service and mass transit service. Special Report, Page 3 PRESTON THORGRIMSON SHIDLER GATES & ELLIS Telephone: (503) 228-3200 Telecopier: (503) 248-9085 January 28, 1994 15G The Sewerage Example Sewerage services in Oregon are provided by both public and private entities. The majority of sewerage service providers are public, but generally there is no prehibition on the prevision of sewerage services by private providers. People use the public sewers because they are there. Because they are there, they are the cheapest sewerage alternative. Are sewerage services 'monopolized by government" because the substantial majority of sewerage services are provided by governments? Are sewerage services 'monopolized by government" because an individual preperty owner cannot reasonably choose a non- government provider for preperty which is in an area served by a public sewer system? Are sewerage services not "monopolized by government" because there are pdvate previders in Oregon? Are sewerage services not 'monopolized by government' because government does not prevent private business frem operating competing sewerage services, even though no private business could practically previde services at rates comparable to those previded by the government? The Mass Transit Example Most local mass transit services are provided by governments, often because it is not profitable for a pdvate business to provide adequate service levels. However, most areas that have public mass transit also have private taxi cabs and Greyhound busses. Are mass transit services in the City of Portland 'monopolized by government' because the only local bus and train service is previded by Td- Met? Are mass transit services in the City of Portland not 'monopolized by government" because a passenger can always call a cab instead of riding the bus? Are mass transit services in the City of Portland not 'monopolized by government" if the City of Klamath Falls has a small, local, pdvate bus line? We fear the government' may Special Report, Page 4 "pornography." It's hard to say just exactly what makes something pornographic, but "you know it when you see it. The difficulty with this kind of definition is that everyone sees it a little differently. This means that the exemption cannot be utilized efficiently by a government which is trying its best to comply with the New Limit, until the phrase has been reviewed by the Oregon courts. Court review is time consuming and costly, and diverts the limited funds and time of public bodies from providing services. Moreover, since the New Limit encourages lawsuits against governments by rewarding lawyers for bringing them (see "The Prevision to Keep Your Lawyers Green" below), we must expect substantial and pretracted litigation over the meaning of this phrase. The exemption for increases in charges for monopolized products solely to pass through increased costs of wholesale inputs that are not state or local government labor costs and are not otherwise under the charging government's control. This exemption also uses the phrase 'monopolized,' and suffers from the same lack of precision which is described in the preceding section. The exemption allows local governments to pass threugh increases in out of pocket costs, but not increases in internal costs. Where this exemption applies, it will provide an incentive for local governments to reduce the quality of products in order to increase the portion of the charge that is available to cover increases in overhead. This exemption does not apply to fees for services. It applies only to fees for products. There is no definition of charge 'preducts." (See "Charges For Which No Exemption Appears Available. - Fees for Products" below) The exemption for 'Yines or forfeitures for violations of law': This exemption currently does not raise significant revenues for the state or local governments. However, the state and local governments may be encouraged by the New Limit to make greater use of these exemptions in the future. phrase 'monopolized by be like the definition of PRESTON THORGRIMSON SHIDLER GATES & ELLIS Telephone: (503) 228-3200 Telecopier: (503) 248-9085 January 28, 1994 15G For example, federal laws and regulations of the United States Environmental Protection Agency set standards for clean water which the state and local govemments are required to meet. Local govemments have responded to these requirements, in part, by instituting surface water management fees and using the revenues to construct storm water systems which help keep rivers, lakes and groundwater clean, and by mandating connection to sewer systems and imposing charges on those who connect in order to construct and improve sanitary sewer systems which also keep water within federal limits. To the extent that the New Limit reduces the ability of local governments to collect for these services, local governments may be forced by federal law to substitute building moratoria, new standards for development which shift to developers costs previously paid by local governments, and to impose substantial fines for violations of these requirements. The exemption for "earnings from interest, investments, state lottery proceeds, donations or asset sales." This is another exemption which should have been drafted differently. The normal rules of grammar suggest that the phrase 'earnings from' modifies each noun that follows, so that there are exemptions only for 'earnings from interest,' 'earnings from investments,' "earnings from state lottery proceeds," and so forth. This 'normal" construction produces an unfortunate result, because it suggests that charges for lottery tickets and the sales price of property sold by a government are ~taxes" subject to the New Limit. As one person remarked to us, the normal construction would means "a local government couldn~ sell a used pickup truck without a vote.' Regardless of the constru'ction a court applied to this exemption, it would appear that interest earnings and investment earnings are exempt from the New Limit. The effect of this exemption on state lottery proceeds and asset sales is less clear. While it seems that there is no good public policy reason to require a vote to institute or increase lottery ticket prices or the prices at which governments sell assets, the phrases "earnings from state lottery proceeds' and "eamings from asset Special Report, Page 5 sales" are grammatical and understandable, and a court conceivably could conclude that the 'normal" construction should be applied. The exemption for "donations' is puzzling. It is hard to think that a donation to a state or local government is a fee or charge of that government (let alone a 'tax"). It therefore seems pointless to have an exemption for donations. It seems equally pointless to have an exemption for "earnings on donations' since the measure already cleady exempts interest earnings and investments. Charges For Which No Exemption Appears Available. Fees for Monopolized Services There is no exemption for fees for services which are 'monopolized by government,' even if they are paid voluntarily. These fees cannot be instituted or increased without a vote. The following charges clearly seem to be 'taxes" under the New Limit; if the New Limit passes, a vote will be required to institute or increase these 'taxes:" State income taxes. Gas and cigarette taxes. State or local sales taxes. Local business and income taxes. Collections of tax increment revenues. Surface water management fees. Franchise fees. Court filing fees. Fees for governmental permits, including building permits, fees for parades, public events, additional police protection, and use of public ways for construction. Business, dog and other license fees. All other user fees for services which are monopolized by government, unless those fees are imposed on property or property owners and structured as "incurred charges.' Strong arguments can be made that the New Limit treatS the following charges as 'taxes:' Fees for sewer, water and municipal (other than PUD) electric service, unless the fees are "incurred charges" and are imposed on PRESTON THORGRIMSON SHIDLER GATES & ELLIS Telephone: (503) 228-3200 Telecopier: (503) 248-9085 January 28, 1994 15G property or as a direct consequence of property ownership. To be exempt, Oregon courts must conclude that these fees are paid voluntarily and that these services are not "monopolized by govemment." If water or electricity is a "product" rather than a service, then fees for these products cannot be increased unless they are monopolized by govemment (and then only limited increases are allowed). Fees for use of state and I°cal parks. Fees for fire protection services (other than voter approved property taxes), because this service may well be "monopolized by government." Ticket charges for governmentally operated buses and trains. These fees appear to be paid voluntarily, since they are generally paid on entry into the vehicle. However, a court could decide that these services are "monopolized by government." Fines imposed by public libraries for overdue books (these fines are not imposed for "violations of law"). Increases in charges for copies of public documents (there may be a monopoly, because a customer must make the copy in the library or govemment offices using their machines; if the customer purchases a "service" a vote is required for any increase; if the customer purchases a "product" the government may increase charges only to cover increases in the cost of the copier and the paper.) Fees for Products There is no exemption for fees or charges for "products' which are not monopolized by governments. The measure does not define 'products' or indicate how they are distinguished from 'services." The New Limit may exempt the price at which a government sells an 'asset.' (See 'The exemption for 'earnings from interest, investments, state lottery proceeds, donations or asset sales.' above) The New Limit does not give any indication of the difference in meaning between a 'product" and an 'asset.' If one could figure out what a 'product' is, and was sure that it was different than an 'asset,' it would be clear under the New Limit that Special Report, Page 6 increases for charges for products could be made without a vote only if the product is monopolized by government; if the product not monopolized by government, any increase requires a vote. Other Increases which are Clearly Exempt The following tax increases are cleady exempt from the New Limit: The six percent increase in voter approved tax bases which is permitted by Article XI, Section 11 of the Oregon Constitution. Increases in revenues which come from rate based taxes, such increases in state income taxes which occur when Oregon personal income increases, and increases in sales tax revenues which occur when the price of goods or the amount of sales increases. Increases which may be Exempt The following tax increases are may be exempt from the New Limit: Taxes and charges which are indexed. Taxes or charges which increase according to a schedule adopted pdor to the effective date of the New Limit. Effect on Revenue Bonds Rate Covenants Most revenue bond issues contain 'rate covenants.' A rate covenant is a promise to bondowners to maintain rates which are sufficient to pay operation and maintenance expenses, debt service, and an additional "coverage" amount, which assures bondowners that enough money will actually be available to pay the bonds. As costs of operation and maintenance increase, rate covenants require that issuers increase their fees and charges. A valid rate covenant for revenue bonds issued pdor to the enactment of the New Limit should be protected by the contracts clauses of the Oregon and United States Constitutions. It is unclear whether revenue bonds could be issued with a traditional rate covenant after enactment of the New Limit, if the rates which subject to the covenant are 'taxes' under the New Limit. Since traditional rate covenants require the collection of amounts in addition to actual operation and maintenance costs, and since operation and maintenance costs increase PRESTON THORORIMSON SHIDLER GATES & ELLIS Telephone: (503) 228-3200 Telecopier: (503) 248-9085 January 28, 1994 15G over time beyond the control of the issuer, it is not clear that a ballot could 'reasonably estimate the annual dollar amount of the new tax or increase.' Inability to use traditional rate covenants could adversely affect local governments and citizens in two ways: If an issuer has outstanding bonds with a rate covenant, new bonds could not be issued on padty unless the new bonds have a valid rate covenant. If the issuer cannot issue on padty, the only options are to use junior lien bonds (which are less secure and may therefore have a higher interest rate) or to refund all outstanding bonds (which can be expensive, and may be prohibited by federal law). Lack of a traditional rate covenant may be perceived by the bond market as a weakness in the structure of the issue, which could reduce ratings and increase interest costs. Need for Voter Approval Bonds paid from revenues which are 'taxes' will need to have any 'tax increase approved by the voters. Need to Restructure or Litigate If the bonds are supported by fees and charges which may or may not be 'taxes" under the New Limit, issuers may need to restructure those fees and charges as incurred charges which are imposed on property, or institute litigation to cladfy the status of those fees and charges. Issuing revenue bonds without knowing whether the revenues are "taxes will create uncertainty in the minds of 'bond purchasers, which will increase bond interest costs. Litigation is time consuming and expensive. Some charges (for example, mass transit fees) cannot reasonably be imposed on property, and litigation may be the only viable way of resolving uncertainty. The New Limit encourages litigation against governments (see "The Provision to Keep Your Lawyers Green" below). Litigation can delay a proposed bond issue indefinitely. If the bonds are sold while litigation is pending, it may increase interest rates. Effect on General Obligation Bonds No Stated Exemption The New Limit does not contain an exemption for taxes levied to pay for general obligation bonds which were issued before its effective date. The New Limit requires that a ballot measure submitted to voters to authorize a 'tax' or "tax increase' 'cleady describe the proposed new tax or increase and the reasonably estimated annual dollar amount of the proposed new tax or increase.' Virtually all ballot measures approving state and local government bond issues have omitted this 'reasonable estimate,' since it has not previously been a requirement of Oregon law. Taxes levied to pay these bonds are not therefore exempt under the stated terms of the New Limit. Contracts Clause Protection The United States and Oregon Constitutions contain prohibitions on legislation which interferes with contracts which were entered into before the date of the legislation. The 'contracts clause" of the United States constitution has been invoked in the past to prevent legislation which weakens the security previsions of state and local government bonds. We believe that the contracts clause will protect the ability of Oregon issuers to levy taxes sufficient to pay general obligation bonds which are issued before the effective date of the New Limit, even though the New Limit does not contain an exemption for those taxes. Potential Risk of the Lack of an Exemption The lack of a stated exemption may create dsk for local governments which have issued general obligation bonds before the effective date of the New Limit, have operating levies, and need to increase their bond levies after the effective date of the New Limit. This could happen because scheduled bond debt service is increasing, or because revenues previously used to pay the bonds are no longer available, and the local government is obligated by its bond contract to levy additional taxes. The drafters of the New Limit may not have been aware that taxes for general obligation bonds are not always level, and may decrease in one year, and increase in another. Special Report, Page 7 PRESTON THORGRIMSON SHIDLER GATES & ELLIS Telephone: (503) 228-3200 Telecopier: (503) 248-9085 January 28, 1994 15G The risk adses because our judicial system prefers to avoid making decisions based on constitutional principles, such as the contracts clause. Instead, courts must attempt to construe apparently conflicting previsions harmoniously, and in a way that raises no constitutional issues. A judge construing the New Limit might therefore find that a local government's contract with general obligation bondowners is merely to levy a tax sufficient to pay the bonds. If the issuer levied both bond taxes and operating taxes, a judge could conclude that the issuer must apply all of its authorized operating taxes to pay the bond tax increase before the contracts clause would allow the local government to increase a tax in violation of the New Limit. Such a conclusion would protect the bond levy, but reduce operating revenues and adversely affect the general financial health of the issuer. Since the general financial health of an issuer is an important factor in the secudty of its bonds, we believe it is more likely that a court would conclude that issuers have contracted with their general obligation bondowners to levy a tax sufficient to pay the bonds which is in addition to its authorized operating taxes. Avoiding the Risk Local government general obligation bonds which have been outstanding for some time, and for which the issuer has been levying a tax, often may not be subject to this risk, because the bond levies tend to be relatively level. This means that there would be no 'increases' in the bond tax after the New Limit becomes law. Local government general obligation bonds which will be issued soon may not be affected by this risk because the first levy for these bonds will occur in November of 1994, which is before the New Limit takes effect. If that first levy is the highest expected levy, no increase would occur in the bond tax after the New Limit takes effect. It may reduce the risk to structure debt service on these issues so that the levies necessary to pay them are "strictly decreasing;' that is, each levy is either the same as the previous year's bond levy, or is less. in addition, it may be desirable to certify the largest possible bond levy for fiscal year 1994- Special Report, Page 8 1995, simply to reduce the dsk that someone will later claim there has been an increase in violation of the New Limit. Effect of the Date of Issuance General obligation bonds which have been authorized before the New Limit, but are not issued before it becomes law, usually will not be issuable as general obligations after the New Limit becomes law, because the ballot measure approving the bonds will not have stated 'the reasonably estimated annual dollar amount of the tax to be levied to pay the bonds.' Local government general obligation bonds which are authorized before the effective date of the New 'Limit may be awkward to issue if no levy will be certified for those bonds for fiscal year 1994-1995. It may be prudent for issuers seeking authority to issue GO bonds at elections in 1994 which occur after the last date for certification of bond levies to include a reasonable estimate of the bond tax in the ballot. If the New Limit becomes law, the State of Oregon apparently cannot issue the general obligation bonds now authorized by the Oregon Constitution, because the ballots amending the constitution to authorize those bonds will not have stated 'the reasonably estimated annual dollar amount of the tax to be levied to pay the bonds.' Emergency Override The New Limit allows the Oregon Legislature, by a three-fourths vote of both houses, and the Governor, to impose emergency 'taxes' in excess of that allowed by the New Limit, but only for twelve months at a time. The Oregon legislature currently only meets once every two years. The Provision to Keep Your Lawyers Green The New Limit authorizes any person residing in, or doing business within, the unit of government imposing the 'tax' to bdng suit to enforce the provisions of the New Limit. The party suing does not need to be subject to the tax which is alleged to violate the New Limit. If the person suing prevails, they are entitled to attorney's fees and costs. If the state or local government prevails, they are forbidden to collect attorney's fees or costs. PRESTON THORGRIMSON SHIDLER GATES & ELLIS Telephone: (503) 228-3200 Telecopier: (503) 248-9085 January 28, 1994 15G This provides an enormous incentive to sue the state and local governments for alleged violations of the New Limit. Lawyers will accept these cases on a contingent fee basis. If the person suing loses, it will cost nothing. If the person wins, the person and the persons lawyer will win big. This provision would be bound to provoke specious lawsuits if the provisions of the New Limit were clear. Since the provisions of the New Limit are extremely unclear, we must expect that the New Limit will trigger a very large number of suits against Oregon governments. Protective Measures This will be the subject of a second newsletter, which we will send out soon. However, in the meantime, we note the following: Issuers should carefully analyze any proposed long term contractual commitments. If the New Limit becomes law, it will affect a wide variety of charges, and will tend to reduce governmental revenues. The New Limit applies only to taxes and increases which occur after the New Limit takes effect. This means that governments which will require additional revenues in the near future to serve cdtical public needs should institute new "taxes" or increase those "taxes" before the effective date of the New Limit. If "taxes" are in effect before the New Limit, they may .be continued after the New Limit becomes law. Indexed "taxes' may"be possible, which will collect additional revenues as circumstances change, but will not involve 'increases" which are subject to voter approval. Revenue bonds payable for New Limit "taxes" which are issued after the New Limit takes effect will likely require voter approval of the taxes. This means issuers should either issue before the effective date of the New Limit, or should seek voter approval of the "tax" increases in a way that complies with the New Limit. Previously authorized but unissued general obligation bonds should be issued in time to certify a levy for the 1994-1995 fiscal year, and the levy should be as large as any subsequent levy is expected to be. Issuers seeking approval of general obligation bonds which will not be issued in time to certify a levy for the 1994-1995 fiscal year should PRESTON THORGRIMSON SHIDLER GATES & ELLIS Special Report, Telephone: (503) 228-3200 Page 9 Telecopier: (503) 248-9085 consider including in the ballot a reasonable estimate the dollar amount of taxes which will be required to pay the bonds. Issuers should consider drafting emergency override legislation to submit to the 1995 legislature. The legislation would authorize emergency taxes for one year which are necessary to comply with contracts entered into by issuers before the New Limit was approved. This legislation could 'buy time' to get legislation (and perhaps even litigation) to clarify the many uncertainties of the New Limit. Office of Pr~ton,~S~rt' located ",. t l:~ S.W.:' Those lawyers are: ¥:::.: Please Call any of them implications'of: the :New' urni~ .~.!fl :.~! author of' this :Special" R~Po~t ::I$: Ha~ -R~i~!::?:i::::A:~::!~:::::~I and some' of its. Pro~s~ns:'~ich'wem:'n~::i~:.:!n':~ls':~:::: report, ~ll be sent to ====================================================================================================================================================================== January 28, 1994 15G AN ACT Be it enacted by the People of the State of Oregon: PREAMBLE. The purpose of this ^ct is to ensure that tax increases, which further depdve citizens of income and property, are hereafter directly approved by the people. PARAGRAPH 1. The Constitution of the State of Oregon is amended by creating a new Section 32a in Article I to read: Section 32a, People's dght to approve all taxes. Notwithstanding any other provision of this Constitution, any new taxes or tax increases shall require approval by the people, as follows: (1) No new tax shall be levied and not tax or tax rate shall be increased, by the state or by any local government or district, unless such tax or tax increase is first approved by a majority of voters voting on the question. The question submitted to voters shall clearly describe the proposed new tax or increase and the reasonably estimated annual dollar amount of the proposed new tax or increase. (2) Any elimination or reduction of tax exemptions, credits, deductions, exclusions, or cost-of-living indexing shall be considered a tax increase. Any extension of an expidng tax shall be considered a tax increase. (3) The following revenues shall not be considered taxes or tax increases for the purposes of this section: User fees charged by People's Utility Districts or pert districts; school, college, or university tuition and fees; incurred charges and local improvements as defined by ^rticle XI Section 11b of this Constitution; other user fees paid voluntarily for specific services that are not monopolized by government; increases in charges for monopolized products solely to pass through increased costs of wholesale inputs that are not state or local government labor costs and not otherwise under the charging government's control; fines or forfeitures for violations of law; and earnings from interest investments, state lottery proceeds, donations, or asset sales. (4) Any state or local government fee or other charge not listed in subsection (3) shall be considered a tax for the purposes of this section. (5) New taxes or tax increases may only be submitted to voters at the following election dates: one pdmary election date in each even-numbered year, the general election date in each even-numbered year, and up to two election dates, designated by law, in each odd-numbered year. (6) A government may combine requests for multiple tax and fee changes into a single measure submitted to voters. Such a combined measure shall be considered to embrace one subject. (7) This section shall not require a vote of the people when increases in government revenue occur solely due to changes in federal tax law, increases in income, increases in real market property values, or other changes in the circumstances of individual taxpayers. (8) A tax base increase of no more than 6%, as allowed by Article XI Section 11 of this Constitution shall not require voter approval under this section. (9) Notwithstanding Article IX Section la of 1his Constitution, if a State of Emergency is declared as provided by the law, the Legislative Assembly and Governor may override this section and enact by law particular taxes, or authorize particular local taxes, without a vote of the People if such taxes are approved by a three-fourths vote in each house and signed into law by the Governor. Such emergency taxes shall not be enacted without the Governor's signature. Any taxes authorized or enacted by such action shall be specifically designated for the declared Emergency and shall be in effect no longer than twelve months. Revenue from such taxes in excess of the amount required by the Emergency shall be retumed to the People in a timely manner. During any such Emergency, this section shall remain in effect for all other taxes. (10) A govemment that levies taxes or fees in violation of this section shall refund any tax or fee amounts collected in violation of this section, plus interest, to taxpayers in the twelve months following the determination of violation. Interest paid shall be computed as the cost of living change plus six PRESTON THORGRIMSON SHIDLER GATES & ELLIS Special Report, Telephone: (503) 228-3200 Page 10 Telecopier: (503) 248-9085 January 28, 1994 15G percent per year, compounded for the period from collection of the taxes or fees to payment of the refunds. PARAGRAPH 2. SEVERABILITY. If any provision of this act is invalidated, then the remaining provisions shall remain in effect. PARAGRAPH 3. CONFLICT WITH OTHER BALLOT MEASURES. If there is an irreconcilable conflict between any provision in this measure and a provision in another measure amending the Oregon Constitution and passed at the same election, then the provision in the measure that received the most affirmative votes shall prevail. PARAGRAPH 4. LEGAL ACTION. Any legal action contesting or enforcing any part of this ACt or any laws implementing it shall be brought in the Oregon Tax Court or any successor court. Any Oregon resident or legal entity doing business in Oregon has standing to bdng suit to enforce this Act and any laws implementing it, provided that person or legal entity bdnging the suit resides or does business within the taxing unit or distdct which shall be the defendant to the suit. If the Oregon resident or legal entity bdnging suit prevails, then the Oregon resident or legal entity shall be reimbursed by the defendant for all reasonable expenses of the suit, including, without limitation, attorney's fees, costs, and reasonable expenses at tdal and on appeal. No government unit shall be entitled to attorney's fees, costs or expenses. Any legal action alleging violations of this Act or of any law implementing this Act must be begun within two years of the date of any alleged violations. Special Report, Page 11 PRESTON THORGRIMSON SHIDLER GATES & ELLIS Telephone: (503) 228-3200 Telecopier: (503) 248-9085 January 28, 1994 15G MAIL COMPLETED PETITIONS TO: Taxpayers Protection, 19201 SE Division, Suite C, Gresham, OR 97037 (667-8315) CHIEF PETITIONERS: Frank A. Eisenzimmer 19201 SE Division, Gresham, OR 97030 Elmer Specht 19201 SE Division, Gresham, OR 97030 BALLOT TITLE Amends Constitution: Bars New or Increased Taxes Without Voter Approval QUESTION: Shall Oregon Constitution bar new or increased state and local taxes, certain fees and certain charges without prior voter approval? SUMMARY: Amends Oregon Constitution. Bars new or increased state, local taxes without prior voter approval. Tax increase includes extending an expiring tax, reducing or eliminating exemptions, credits, deductions, exclusions. 'Tax' includes all fees, charges, except fines, forfeitures, tuition, utility and port district user fees, 'local improvements,' 'incurred charges,' earnings from investments or asset sales, two other exceptions. Permits two tax elections annually. Automatic annual six percent tax base increases still allowed without vote. Legislature may override by three- fourths vote in emergency. Enforceable by private lawsuit. AN ACT 15G Be it enacted by the People of the State of Oregon: PREAMBLE. The purpose of this Act is to ensure that tax increases, which further deprive citizens income and property, are hereafter directly approved by the people. PARAGRAPH 1. The Constitution of the State of Oregon is amended by creating a new Section 32a in Article I to read: Section 32a, People's right to approve all taxes. Notwithstanding any other provision of this Constitution, any new taxes or tax increases shall require approval by the people, as follows: (1) No new tax. shall be levied and no ta.x or tax rate shall be increased, by the state or by any Ioca! government or district, unless such tax or tax increase is first approved by a majority of voters voting on the question. The question submitted to voters shall clearly describe the proposed new tax or increase and the reasonably estimated annual dollar amount of the proposed new tax or increase. (2) Any elimination or reduction of tax exemptions, credits, deductions, exclusions, or cost-of-living indexing shall be considered a tax increase. Any extension of an expiring tax shall be considered a tax increase. (3) The following revenues shall not be considered taxes or tax increases for the purposes of this section: User lees charged by Peoples' Utility Districts or port districts; school, college, or university tuition and fees; incurred charges and local improvements as defined by Article XI Section 11b of this Constitution; other user fees paid voluntarily for specific services that are not monopolized by government; increases in charges for monopolized products solely to pass through increased costs of wholesale inputs that are not state or local government labor costs and not otherwise under the charging government's control; fines or forfeitures for violations of law; and earnings from interest, investments, state lottery proceeds, donations, or asset sales. (4) Any state or local government fee or other charge not listed in subsection (3) shall be considered a tax for the purposes of this section. (5) New taxes or tax increases may only be submitted to voters at the following election dates: one primary election date in each even-numbered year, the general election date in each even-numbered year, and up to two election dates, designated by law, in. each odd-numbered year. (6) A government may combine requests for multiple tax and fee changes into a single measure submitted to voters. Such a combined measure shall be considered to embrace one subject. (7) This section shall not require a vote o1' the people when increases in government revenue occur solely due to changes in federal tax law, increases in income, increases in real market property values, or other changes in the circumstances of individual taxpayers. (8) A tax base increase of no more than 6%, as allowed by Article XI Section 11 of this Constitution, shall not require voter approval under this section. 15G (9) Notwithslanding Article IX Seclion la of this Constitution, il a State of Emergency is declared as provided by the law, the Legislative Assembly and Governor may override this section and enact by law particular taxes, or authorize particular local taxes, without a vote of the People if such taxes are approved by a three-fourths vote in each house and signed into law by the Governor. Such emergency taxes shall not be enacted without the Governor's signature. Any taxes authorized or enacted by such action shall be specifically designated lot the declared Emergency and shall be in effect no longer than twelve months. Revenue from such taxes in excess of the amount required by the Emergency shall be returned to the People in a timely manner. During any such Emergency, this section shall remain in effect for all other taxes. (10) A government that levies taxes or fees in violation of this section shall refund any tax or fee amounts collected in violation of this section, plus interest, to taxpayers in the twelve months following the determination of violation. Interest paid shall be computed as the cost of living change plus six percent per year, compounded lot the period from collection of the taxes or fees to payment of the refunds. PARAGRAPH 2. SEVERABILITY. If any provision of this act is invalidated, then the remaining provisions shall remain in effect. PARAGRAPH 3. CONFLICTS WITH OTHER BALLOT MEASURES. If there is an irreconcilable conflict between any provision in this measure and a provision in another measure amending the Oregon Constitution and passed at the same election, then the provision in the measure that received the most affirmative votes shall prevail. PARAGRAPH 4. LEGAL ACTIONS. Any legal action contesting or enforcing any part of this Act or any laws implementing it shall be brought in the Oregon Tax Court or any successor court. Any Oregon resident or legal entity doing business in Oregon has standing to bring suit to enforce this Act and any laws implementing it, provided that person or legal entity bringing the suit resides or does business within the taxing unit or district which shall be the defendant to the suit. If the Oregon resident or legal entity bringing suit prevails, then the Oregon resident or legal entity shall be reimbursed by the defendant for all reasonable expenses of the suit, including, without limitation, attorney's fees, costs, and reasonable expenses at trial and on appeal. No government unit shall be entitled to attorney's fees, costs or expenses. Any legal action alleging violations of this Act or of any law implementing this Act must be begun within two years of the date of any alleged violations.