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November 9, 2020 Agenda Packet E RIC S WENSON,M AYOR D EBBIE C ABRALES,C OUNCILOR W ARD 1 C ITY OF W OODBURN L ISA E LLSWORTH,C OUNCILOR W ARD II R OBERT C ARNEY,C OUNCILOR W ARD III C ITY C OUNCIL A GENDA S HARON S CHAUB,C OUNCILOR W ARD IV M ARY B ETH C ORNWELL,C OUNCILOR W ARD V N OVEMBER 9,2020–7:00 P.M. E RIC M ORRIS,C OUNCILOR W ARD VI VIAVIDEOCONFERENCING 1.CALL TO ORDER AND FLAG SALUTE 2.ROLL CALL 3.ANNOUNCEMENTS AND APPOINTMENTS Announcements: None. Appointments: None. 4.COMMUNITY/GOVERNMENT ORGANIZATIONS None. 5.PROCLAMATIONS/PRESENTATIONS Proclamations: A.November 2020 asSmall Business Month1 Presentations: A.Community Center Update B.Mary Tennant Award C.Covid-19 Update 2 6.COMMUNICATIONS None. 7.BUSINESS FROM THE PUBLIC–This allows the public to introduce items for Council consideration not already scheduled on the agenda. This facility is ADA accessible. If you need special accommodation, please contact the City Recorder at 503-980-6318or Statewide Toll Free Relay (800) 735-1232, at least 48 hours prior to this meeting. Si usted necesita asistencia especial, comuníquese al 503-980-6322 o a la línea telefónica gratuita, (800) 735-1232, con un mínimo de 48 horas, antes de la reunión. **Habrá intérpretes disponibles para aquéllas personas que no hablan Inglés, previo acuerdo. Comuníquese al (503) 980-6322.** November 9,2020Council Agenda Page i 8.CONSENT AGENDA–Items listed on the consent agenda are considered routine and may be adopted by one motion. Any item may be removed for discussion at the request of a Council member. A.Woodburn City Council minutes ofOctober 12, 202015 Recommended Action: Approve the minutes. B.Woodburn City Council Executive Session minutesof October 12, 18 2020 Recommended Action:Approve the minutes. C.Acceptance of a Public Utility Easement at 691 N. First Street, 20 Woodburn, OR 97071 (Tax Lot 051W07DC04500) Recommended Action:Authorizethededication ofapublicutility easementgranted byMatthew John Waite, owner of the property located at 691 N. First Street, Woodburn, OR 97071 (Tax Lot 051W07DC04500). D.Crime Statistics through September 202025 Recommended Action:Receive the report. E.Building Activity for October 202030 Recommended Action: Receive the report. 9.TABLED BUSINESS None. 10.PUBLIC HEARINGS None. 11.GENERAL BUSINESS –Members of the public wishing to comment on items of general business must complete and submit a speaker’s card to the City Recorder prior to commencing this portion of the Council’s agenda. Comment time may be limited by Mayoral prerogative. A.Council Bill No. 3137 –An Ordinance Providing for the Management 40 of Utility Services Within the City and Access to and use of the City's Rights-of-Way Recommended Action:Enact the Utility Services Ordinance. B.Council Bill No. 3138-A Resolution Setting the Right-of-Way Utility 71 License and Usage Fee Rates within the City of Woodburn Recommended Action:Adopt a Resolution setting ROW utility November 9,2020Council Agenda Page ii license and usage fee rates in the City. C.Council Bill No.3140-A Resolution Adopting the Updated 74 Woodburn Transit System Title VI Program Recommended Action:Adopt via resolution the updated Title VI Civil Rights Program for public transit programs, as required by the Federal Transit Administration. D.PUBLIC TESTIMONY ON THIS ITEM IS CLOSED. NO PUBLIC 92 COMMENTS WILL BE RECEIVED Design Review DR 2019-05 Allison Way Apartments Final Decision Recommended Action:Authorize the mayor to sign the attached final land use decision document. E.Memorandum of Understanding (MOU) with Portland General 126 Electric (PGE) Recommended Action:Authorize the City Administrator to sign the enclosed MOU with PGE, which serves to memorialize the City’s commitment to resolve PGE’s concerns with the proposed Utility Services Ordinance prior to the June 30, 2023 expiration of PGE’s franchise agreement with the City. 12.PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS–These are Planning Commission or Administrative Land Use actions that may be called up by the City Council. A.Call-Up Briefing: Planning Commission Approval of a Conditional Use 129 and Variance application package for AT&T Cell Tower at 1414 Commerce Way (CU 2020-02 & VAR 2020-07) Recommended Action:Staff recommends no action and briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO) Section 4.02.02. The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. B.Call-Up Briefing: Planning Commission approval of a Design Review 131 and Property Line Adjustment application package for La Morenita Tortilla Bakery at 2230 & 2400 N. Pacific Hwy (DR 2020-05 & PLA 2020- 03) Recommended Action:Staff recommends no action and briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO) Section 4.02.02. The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. C.Call-Up Briefing: Planning Commission Approval of a Modificationto133 Conditions of Approval for Mid Valley Community Church at 591 November 9,2020Council Agenda Page iii Gatch Street (MOC 2020-01) Recommended Action:Staff recommends no action and briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO) Section 4.02.02. The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. 13.CITY ADMINISTRATOR’S REPORT 14.MAYOR AND COUNCIL REPORTS 15.EXECUTIVE SESSION None. 16.ADJOURNMENT COUNCIL GOALS 2019-2021 Thematic Goals 1.Create an inclusive environment where residents participate and are engaged in the community (that is vibrant, safe and active). 2.Promote an environment that encourages sustainable economic health maximizing our geographic, workforce, cultural and community assets. Strategic Goals 3.Create an inclusive environment where Woodburn residents want to participate and are engaged in the community. 4.Develop innovative funding sources to help support the completion of capital improvement projects. 5.Grow and support strategic partnerships for economic health. 6.Explore the development of a non-profit consolidation facility. 7.Improve Communication and Coordination with School District on matters of mutual interest. 8.Completion of the First Street remodel. 9.Completion of Phase 1 & 2 of the Community Center Project including the formation of an ad hoc steering committee to review and recommend design. 10.Creation of the Dick Jennings Community Leadership Academy. 11.Develop a strategy to limit PERS liability. 12.Establishment of a Woodburn 20 year community-visioning plan. November 9,2020Council Agenda Page iv PROCLAMATION NOVEMBER 2020 AS SMALL BUSINESS MONTH WHEREAS,the City of Woodburn celebrates our small businesses and the contributions they make to our local economy and community; and WHEREAS, small businesses employ 50percent of all businesses with employees in the United States; and WHEREAS, small businesses contribute positively to the local economy by providing jobs and generating revenue; and WHEREAS, small businesses are critical to the overall economic health of the United States economy; and WHEREAS, the City of Woodburn supports our local businesses that create jobs, boosts our local economy and preserves our neighborhoods; and WHEREAS, advocacy groups as well as public and private organizations across the country have endorsed the Saturday after Thanksgiving (November 28, 2020) as Small Business Saturday. NOW, THEREFORE, I, Eric Swenson, Mayor of Woodburn, do hereby proclaim the month of November 2020, as SMALL BUSINESS MONTH and urge the residents of our community, and communities across the country, to support small businesses and merchants during the month of November and on Small Business Saturday on November 28, 2020 and throughout the year. Dated this 9th day of November 2020. ___________________________________________________ Eric Swenson, Mayor City of Woodburn, OR 1 2 PROGRAMS Woodburn City Council November 9 , 2020 COVID19 COMMUNITY FUNDING 3 OFFERINGS COVID19 COMMUNITY PROGRAMS & Covid19 UpdateBusiness AssistanceFood SecurityMortgage Assistance Rental AssistanceUtility AssistanceInternet AssistanceChildcare Payment AssistancePPE and Education Materials Public Transit 4 oodburn Rotary, City CARES Funds BUSINESS ASSISTANCE PROGRAMS Allocation per program participant: $500 -$5000 Amount of total funding: $180,000Funding Sources: Business Oregon, WWho is administering funds: City Number of program participants: 60+Current funds distributed: $90,000 (still distributing)Date funds must be distributed: December 30, 2020 5 FOOD SECURITY Amount of total funding: $20,000Funding Sources: Northwest Senior Disability ServicesWho is administering funds: AWARE FoodbankProgram Support: Food security for seniors in the Latinx communityNumber of program participants: Program being administeredDate funds must be distributed: December 30, 2020 6 4 applicants and 1pending allocation. MORTGAGE ASSISTANCE Amount of total funding: $413,000Funding Sources: City Housing Rehabilitation Funding Reallocation Who is administering funds: DevNWMax allocation per program participant: $20,000Number of program participants: 12 inquires,Current funds distributed: PendingDate funds must be distributed: Open ended nd 7 RENTAL/INTERNET ASSISTANCE Amount of total funding: $50,000Community funds available: $45,000Funding Sources: City CARES FundingWho is administering funds: Love INC.Max allocation per program participant: $2,500Number of program participants: Program began November 2Current funds distributed: PendingDate funds must be distributed: December 30, 2020 8 ASSISTANCE December 30, 2020 and June 30, 2021 UTILITY/CHILDCARE/ PRESCRIPTION Amount of total funding: $225,000Community funds available: $155,000Funding Sources: Marion County & Oregon Health AuthorityWho is administering funds: Love INC.Max allocation per program participant: $2,500Number of program participants: Program began November 2nd Current funds distributed: PendingDate funds must be distributed: 9 ngs, physical distance markers and hand sanitizer PPE & EDUCATION ASSISTANCE Amount of total funding: $95,265Funding Sources: Oregon Health AuthorityWho is administering funds: Woodburn Downtown Association/CityProgram Support: Providing PPE and Education MaterialsNumber of program participants: 20+ Local BusinessesCurrent items distributed: Sneeze guards, facial coveriDate funds must be distributed: December 30, 2020 nistered by the Oregon Department of Transportation 10 PUBLIC TRANSPORTATION Funds Remaining: $38,549 Amount of total funding: $139,996Current funds distributed: $101,447Funding Sources: Federal Transit Administration, admiWho is administering funds: City of WoodburnNumber of program participants: 1, City of WoodburnÔs Transit DivisionDate funds must be distributed: June 30, 2021 11 $15,000 $458,000 TOTAL COMMUNITY FUNDING SUPPORT Total Fund Amount Total$1,123,261 Other$500 Transits$139,996 Supplies Staff Cost$75,000 Assistance) Community Food Security$15,000 SupportType PPE & Education$111,765 Utility Assistance$95,500 Housing Assistance Business Assistance$180,000 ChildcareAssistance$25,000 (Mortgage and Rental PrescriptionAssistance$7,500 Cleaning/Hygiene/Infant $20,000$60,000$10,000 $139,996 $170,265$150,000$413,000$160,000 $1,123,261 Total Fund Amount 12 Total Business Oregon City of Woodburn Woodburn Rotary TOTAL GRANT FUNDING SOURCES Oregon Health Authority Grant Funding Source Federal Transit Administration City of Woodburn CARES Funds Marion County Health Department NorthwestSenior Disability Services 8% 22% E-Blast, 40,424, Mailer, 104,610, Radio Est. , 125,175, 26% 13 Total Outreach 479,433 Community Education & Outreach (Est. 93,342, 20% Social Media, 115,882, 24% Printed Matrials, MARKETING AND OUTREACH 14 QUESTIONS? COUNCIL MEETING MINUTES OCTOBER 12, 2020 DATECOUNCILCHAMBERS,CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, OCTOBER 12, 2020 CONVENEDThe meeting convened at 7:03 p.m. with Mayor Swenson presiding. ROLL CALL Mayor Swenson Present Councilor CarneyPresent -via video conferencing Councilor Cornwell Present -via video conferencing Councilor SchaubPresent -via video conferencing Councilor MorrisPresent -via video conferencing Councilor EllsworthPresent -via video conferencing Councilor Cabrales Present -via video conferencing Staff Present(via video conferencing):City Administrator Derickson,City Attorney Shields, Assistant City Administrator Row, Economic Development Director Johnk, Police Chief Ferraris, Finance Director Turley,Assistant City Attorney Granum, Human Resources Director Gregg, Engineering Director Liljequist, Parks and Recreation Manager Cuomo, City Recorder Pierson ANNOUNCEMENT City Hall and the Library will be closed on November 11 in observance of Veterans Day. PROCLAMATION The Mayor read a proclamation declaring October 2020 as Domestic Violence Awareness Month. CONSENT AGENDA A. Woodburn City Council minutes of September 14, 2020, B.Acceptance of a Statutory Warranty Deed for Right-of-Way Dedication and Two Public Utility Easements at 1220 Fifth Street, Woodburn, OR 97071 (Tax Lot 051W07DB02500), C.Leasing Specialist, LLC. Contract Award, D.Liquor License Application – Metropolis LLC., E.Crime Statistics through August 2020, F.Building Activity for September 2020. Councilor Morris stated his concerns with not giving a recommendation to OLCC for the Metropolis, LLC liquor license application. Carney/Cornwell…adopt the Consent Agenda. The motion passed unanimously. WORK SHOP UTILITY SERVICE ORDINANCE & RESOLUTION SETTING ROW UTILITY LICENSE AND USAGE FEE RATES RebaCrocker with Right of Way consultants provided information to the City Council on the proposed utility service ordinance and the resolution for right of way utility license and usage fee rates. Councilors asked questions and provided comments. Wendy Veliz with PGE stated that she appreciates the opportunity to work with Jim and McKenzie on this item and that she is pleased to say that they landed in a good place addressing the energy pieces that were raised in their discussions. The Mayor noted that item 11B will be deferred to the next meeting. CALL-UP BRIEFING: PLANNING COMMISSION APPROVAL OF A VARIANCE FOR Page 1 - Council Meeting Minutes,October 12, 2020 15 COUNCIL MEETING MINUTES OCTOBER 12, 2020 ERIC & CHARMAINE COTTRELL AT 1311 E. LINCOLN STREET (VAR 2020-04) The Council declined to call this item up. CITY ADMINISTRATOR’S REPORT The City Administrator reported the following: The League of Oregon Cities is having a virtual conference this week on Wednesday and Thursday and if anyone that is not already signed up but wants to be to let him or Brenda know. The Oregon Senate reaffirmed the Governor’s appointment of him to the DPSST Board. Presented to the Greeter’s meeting last Friday and took questions about the City and discussed thethings that were going on in the City. A group of regional City managers have tried to start a chapter of theLocal Government Hispanic Network Organization which is affiliated with ICMA. He will be helpingtodraft the bylaws for this and will assist with getting the chapter going. Three new officers have been hired. Chief Ferraris provided information on the officers and the steps the police department takes in hiring new officers. The agenda setting meeting will not take place this week due to the LOC conference taking place. MAYOR AND COUNCIL REPORTS Councilor Morris reminded people that October 13 is the last day to register to vote. He asked if this is the last meeting until after the election and City Administrator Derickson stated that it was his understanding that there would be one meeting a month unless the Mayor called a second meeting for a work session. Councilor Ellsworth stated that she has been reflecting on what the Council has done and that she is proud of the work that has been accomplished. She thanked Council and staff for everything and that she looks forward to what’s next for Woodburn. Councilor Cornwell thanked staff for all of the work they have done. Councilor Cabrales asked that people not forget to fill out the Census. Councilor Schaub stated that she concurs with Councilor Ellsworth and Councilor Cornwell. She added that she is proud to be associated with a great City, a terrific Council and a great staff. She thanked the City Administrator for all the great work that he and his team are doing. She asked people to vote and support Councilor Ellsworth and Councilor Morris. Councilor Carney gave a shout out to McKenzie Granum for pulling the workshop together and that he concurs with the commentary by Councilor’s Ellsworth, Cornwell, and Schaub. Mayor Swenson stated that he attended a Council of Governments meeting and they are looking for a Director. Attended the final community center meeting and thanked Jim and the committee for a job well done. He added that it was great to see Scott during the Chamber of Commerce Greeters. EXECUTIVE SESSION Mayor Swenson entertained a motion to adjourn into executive session under the authority of ORS 192.66(2)(i).Carney/Cornwell… move into executive session. The motion passed unanimously. The Council adjourned to executive session at 8:18 p.m. and reconvened at 8:58 p.m. Mayor Page 2 - Council Meeting Minutes,October 12, 2020 16 COUNCIL MEETING MINUTES OCTOBER 12, 2020 Swenson stated that no action was taken by the Council while in executive session. Carney/Morris…direct the Mayor sign an amendment to the City Administrators current Employment Agreement to do the following: 1. Extend the term of the presentagreement by five years, 2. Increase severance pay to one full year, 3. Add an additional five vacation days to the City Administrators vacation bank and 4. Change the vacation cap from 288 hours to 328 hours. The motion passed unanimously. Carney/Cornwell…direct the Mayor to sign an amendment to the City Attorney’s current Employment Agreementto do the following: 1. Agree to 2 year term with a one year termination notice, 2. Increase severance pay to one full year. 3.Addan additional 5 vacation days to the City Attorney’s vacation bank. The motion passed unanimously. Mayor Swenson entertained a motion to adjourn into executive session under the authority of ORS 192.660 (2)(f). Carney/Cabrales…move into executive session. The motion passed unanimously. The Council adjourned to executive session at 9:02 p.m. and reconvened at 9:52 p.m. Mayor Swenson stated that no action was taken by the Council while in executive session. ADJOURNMENT Morris/Ellsworth… meeting be adjourned. The motion passed unanimously. The meeting adjourned at 9:52 p.m. APPROVED ERIC SWENSON, MAYOR ATTEST Heather Pierson,City Recorder City of Woodburn, Oregon Page 3 - Council Meeting Minutes,October 12, 2020 17 EXECUTIVE SESSION COUNCIL MEETING MINUTES OCTOBER 12, 2020 DATECOUNCIL CHAMBERS,CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, OCTOBER 12, 2020 CONVENEDTheCouncil met in executive session at 8:18 p.m. ROLL CALL Mayor Swenson Present Councilor Carney Present -via video conferencing Councilor Cornwell Present -via video conferencing Councilor Schaub Present -via video conferencing Councilor Morris Present -via video conferencing Councilor Ellsworth Present -via video conferencing Councilor Cabrales Present -via video conferencing Mayor Swenson reminded those in attendance that information discussed in executive session is not to be discussed with the public. Media Present: None. Staff Present:City Administrator Derickson, City Attorney Shields, City Recorder Pierson The executive session was called: To review and evaluate, pursuant to standards, criteria and policy directives adopted by the governing body, the employment-related performance of the chief executive officer of any public body, a public officer, employee or staff member unless the person whose performance is being reviewed and evaluated requests an open hearing pursuant to ORS 192.660 (2)(i). ADJOURNMENT The executive session adjourned at 8:58 p.m. CONVENEDThe Council met in executive session at 9:02 p.m. ROLL CALL Mayor Swenson Present Councilor Carney Present -via video conferencing Councilor Cornwell Present -via video conferencing Councilor Schaub Present -via video conferencing Councilor Morris Present -via video conferencing Councilor Ellsworth Present -via video conferencing Councilor Cabrales Present -via video conferencing Page 1 – Executive Session, Council Meeting Minutes, October 12, 2020 18 Mayor Swenson reminded those in attendance that information discussed in executive session is not to be discussed with the public. Media Present: None. Staff Present:Assistant City Administrator Row, Human Resources Director Gregg, City Attorney Shields, City Recorder Pierson Others in attendance:Kathy Peck with Peck Rubanoff Hatfield The executive session was called: To consider records that are exempt by law from public inspection pursuant to ORS 192.660 (2)(f). ADJOURNMENT The executive session adjourned at 9:52 p.m. APPROVED_______________________________ Eric Swenson, Mayor ATTEST_______________________________ Heather Pierson,CityRecorder City of Woodburn, Oregon Page 2 – Executive Session, Council Meeting Minutes, October 12, 2020 19 Agenda Item November 9, 2020 TO:Honorable Mayor and City Council through City Administrator FROM:Eric Liljequist, Public Works Projects & Engineering Director SUBJECT:Acceptance of a Public Utility Easement at 691 N. First Street, Woodburn, OR 97071(Tax Lot 051W07DC04500) RECOMMENDATION: That City Council authorizethededication of a public utility easement granted byMatthew John Waite, owner of the property located at 691 N. First Street, Woodburn, OR 97071 (Tax Lot051W07DC04500). : BACKGROUND The property owner is required to provide this public utility easement in order to satisfy the conditions of building permit No. 971-20-000067-DWL. DISCUSSION: Thepublic utiltiyeasement isa5’ x 55’ area that provides apermanent easement and right-of-way, including the permanent right to construct, reconstruct, operate, and maintain public utilities. FINANCIAL IMPACT: There is no cost to the City for thePublic Easement. Attachments ACopy of thePublic Utility Easement document is included asExhibit “A” and Exhibit “B”. Agenda Item Review:City Administrator __x____City Attorney ___x___Finance __x___ 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Agenda Item November 9, 2020 TO:Honorable Mayor and City Council FROM:Jim Row, Assistant City Administrator McKenzie Granum, Assistant City Attorney SUBJECT:Utility Service Ordinance & Resolution setting ROW Utility License and Usage Fee Rates RECOMMENDATION: As part of the City's implementation of a new licensing program to regulate utility services providers that access, use, and occupythe City's rights-of-way ("ROW"): 1.Enact the Utility Services Ordinance; and 2.Adopt a Resolution setting ROW utility license and usage fee rates in the City. BACKGROUND: Earlier this year, staff initiated a review of the City’s process for regulating utility services providers’ use of the City’s ROW.At the July 13th City Council Meeting, Consultant Reba Crocker of ROW Consultants LLC, introduced what is to be a new utility licensing program in the City. At that a meeting a general introduction to the topic was presented and an initial draft ordinance and associated fee resolution was presented for the Council's review. Following that meeting, the proposed draft was sent to numerous providers of telecommunications, gas, and electric services in Oregon. The City received written feedback regarding its ordinance proposal from four companies (AT&T, Verizon, Fatbeam, and PGE). The Council then reviewed this feedback and other policy considerations regarding the ordinance and fee resolution at a work session during its October council meeting. DISCUSSION: Agenda Item Review:CityAdministrator ______CityAttorney ______Finance _____ 40 Honorable Mayor and City Council November 9, 2020 Page 2 By adopting the Utility Service Ordinance and correlating fee schedule, the City will join roughly one dozen other municipalities in Oregon that have implemented a uniform ROW licensing system. Given the complexity of developing and implementing the proposed ROW management program, staff has worked closely with ROW Consultants LLC, and its Principal Reba Crocker, to develop the program, which if adopted will have an implementation date of January 1, 2021. After the City adopts the new Utility Services Ordinance, utility service providers will be actively identified and subjected to the new licensing program. The six (6) providers that are currently operating under franchise agreements will not be subject to the new ROW management/licensing program until their existing agreements expire. As provided previously, the pertinent provisions of the enclosed Utility Services Ordinance include: Utilities operated by the City and other municipalities are exempted from the requirements of this ordinance (currently managed under a different ordinance); Providers are required to maintain a City of Woodburn Business Registration; Providers with existing franchises agreements are exempted until their agreements expire; Preserves the City’s right to enter into franchise agreements with individual providers in situations where the public interest warrants; Wire line cable television providers will continue to operate under franchise agreements due to protections under FCC law; Each license with utility providers will be for a term of five (5) years; Licenses are transferrable upon the written consent of the City, provided the transfers are consistent with state and federal law; Providers seeking license renewals shall submit license applications at least thirty (30) days, but not more than ninety (90) days prior to expiration; Includes provisions under which the City may terminate licenses; Includes requirements that providers must comply with related to the location, construction, maintenance and removal of facilities in the ROW; and Provides for ROW license and usage fees to be established by resolution. Current vs. Proposed usage fees are shown in the below chart with substantivechanges highlighted in red: 41 Honorable Mayor and City Council November 9, 2020 Page 3 CurrentProposedEnd User NW Natural3% + 2% (5%)5%2% PGE3.5% + 1.5% (5%)5%1.5% Cable Franchised @5% 5%5% •Waveof Gross Revenue Small Cell Wireless0%$270 per year, Unknown per cell Facility Owners-Franchised @ 7% 7% of Gross Up to 7% providing servicesof Gross RevenueRevenue • Data Vision • LightSpeed • Wave •Zayo Facility Owners –not 0%$3.00 per linear 0% providing servicesfoot - $5,000 •Longhaul/backhaul minimum Non-Facility Owners0%7% of Gross Up to 7% • Wireless Providers Revenue • Resellers •ESS providers Program Implementation Timeline: •November 9 –Ordinance & Resolution Adoption •November 10 –December 31 •Management systems and forms developed •Contact with all known providers •License applications processed and issued •Several providers have already requested applications •January 1, 2021- Ordinance and Resolutionin effect •April 30, 2021 - first usage payments are remitted •Ongoing – at least yearly updates and housekeeping to the Ordinance : FINANCIAL IMPACT The development ofa uniform utility service provider licensing program is anticipated to result in an increase in ROW usage fees, formerlyreferred to as franchise fees. The amount of the increase is unknown at this time and will depend 42 Honorable Mayor and City Council November 9, 2020 Page 4 on the number of utility service providers the City is able to determine are utilizing the ROW. Enclosures: Utility Service Ordinance Utility License& Usage Fee Resolution 43 COUNCIL BILL NO. 3137 ORDINANCE NO. 2583 AN ORDINANCE PROVIDING FOR THE MANAGEMENT OF UTILITY SERVICES WITHIN THE CITY AND ACCESS TO AND USE OF THE CITY'S RIGHTS-OF-WAY WHEREAS, the City of Woodburn ("City") has a statutory and Constitutional authority to manage its rights-of-way and to receive compensation for private use of the rights-of-way consistent with applicable state and federal law; WHEREAS, the City has generally granted individually-negotiated franchises to each utility using the City's rights-of-way to provide utility services; WHEREAS, the City has determined that it can more effectively, efficiently, and fairly manage the City's rights-of-way and provide consistent standards for utility useofthe rights-of-way through licenses rather than franchises; THE CITY OF WOODBURN ORDAINS AS FOLLOWS: .The ordinance willbe known and may be referenced as Section 1.Title the Utility Service Ordinance. Section 2.Purpose and Intent.The purpose and intent of this Ordinance is to: A. Permit and manage reasonable access to and use ofthe City’s rights-of-wayfor utility purposes and conserve the limited physical capacityof those rights-of-wayheld in trust by the Cityconsistent with applicable state and federal law; B.Assure that the City’s current and ongoing costs of granting and regulating access to, the use of the rights-of-wayand utility services provisioned in the City,are fully compensated by the persons seeking such access and causing such costs; C.Secure fair and reasonable compensation to the Cityand its residents for permitting use of the rights-of-wayby persons who generate revenue by placing, owning, controlling, using or operating facilities therein or generate revenue for utility services; Page 1 Council Bill No. 3137 Ordinance No. 2583 44 D.Assure that all utility companies, persons and other entities owning, operating facilities, using facilities,or providing services within the Citycomply with the ordinances, rules and all regulations of the Cityheretofore or hereafter amended or adopted; 1.For the purposes of this Ordinance, all utility services owned or operated by the City are excluded. 2.For the purposes of this Ordinance, all utility services owned or operated by other municipalities are excluded. E.Assure that the Citycan continue to fairly and responsibly protect the public health, safety and welfare of its residents; F. Encourage the provision of advanced and competitive utility services on the widest possible basis to businesses and residents of the City by, 1. Allowing the City to enter into other or additional agreements with Utility Providers and Operators, if the public’s interest is served, and to amend the requirement of this Ordinance and the City regulations, as new technology is developed; 2. Allowing the City to be resilient and adaptive to changes in technology; and G.Comply with applicable provisions of state and federal law. . Section 3.Jurisdiction and Management of the Public Rights-of-way A. The Cityhas jurisdiction and exercises regulatory management over, all rights-of-waywithin the Cityand provision of services,under authority of the City Charter and Oregonlaw. B. The Cityhas jurisdiction and exercises regulatory management over each right-of-waywhether the Cityhas a fee, easement, or other legal interest in the right-of-way, and whether the legal interest in the right-of-waywas obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means. C.The exercise of jurisdiction and regulatory management of a right-of- wayby the Cityis not official acceptance of the right-of-way anddoes not obligate the Cityto maintain or repair any part of the right-of-way. Page 2 Council Bill No. 3137 Ordinance No. 2583 45 D.The provisions of this Ordinance are subject to and will be applied consistent with applicable state and federal laws, rules and regulations, and, to the extent possible, willbe interpreted to be consistent with such laws, rules and regulations. Section 4.Regulatory Fees and Compensation Not a Tax. A.The fees and costs provided for in this Ordinance, and any compensation charged and paid for use of the rights-of-wayand the provision of services provided for in this Ordinance, are separate from, and in addition to, any and all other federal, state, local, and Citycharges, including but not limited to: any permit fee, or any other generally applicable fees, tax, or charge on business, occupations, property, or incomeas may be levied, imposed, or due from a utility operator, utility provider, franchiseeor licensee, its customers or subscribers, or on account of the lease, sale, delivery, or transmission of utility services. B. The Cityhas determined that any fee or tax provided for by this Ordinance is not subject to the property tax limitations of Article XI, Sections 11 and 11b of the Oregon Constitution. These fees or taxes are not imposed on property or property owners. C. The fees and costs provided for in this Ordinance are subject to applicable federal and state laws. Section 5.Definitions.For the purpose of this Ordinance the following terms, phrases, words and their derivations willhave the meaning given herein. When not inconsistent with the context, words not defined herein willbe given the meaning set forth in the Communications Actof 1934, as amended, the Cable Act, and the Telecommunications Act. If not defined in those statues, the words willbe given their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive. “Cable Act” means the Cable Communications Policy Act of 1987, 47 U.S.C., Section 521, et seq., as now and hereafter amended. “Cable service” is to be defined consistent with federal laws and means the one- way transmission to subscribers of: (i) video programming, or (ii) other Page 3 Council Bill No. 3137 Ordinance No. 2583 46 programming service; and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. “Calendar year” means January 1 to December 31, unless otherwise noted. “City” means the cityof Woodburn,an Oregon municipal corporation, and individuals authorized to act on the City’s behalf. “City council” means the elected governing body of the cityof Woodburn, Oregon. “City facilities” means Cityor publicly ownedstructures or equipment located within the right-of-wayor public easement used for governmental purposes. “City standards” means the all ordinances, codes, regulations and rules of the City of Woodburn, in effect at the time of any work. “City property” means and includes all real property owned by the City, other than public right-or-way and utility easement as those are defined herein, and all property held in proprietary capacity by the City. “Communications services” means any service provided for the purpose of transmission of information including, but not limited to, voice, video, or data, without regard to the transmission protocolemployed, whether or not the transmission medium is owned by the provider itself. Communications service includes all forms of telephone services and voice, video, data or information transport, but does not include: (1) cable service; (2) open video system service, as defined in 47 C.F.R. 76; (3) private communications system services provided without using the public rights-of-way; (4) public communications systems; (5) over-the-air radio or television broadcasting to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto; and (6) direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act. “Construction” means any activity in the public right-of-way resulting inphysical change thereto, including excavation or placement of structures. “Control” or “Use of Facilities” means actual working control over utility facilities in whatever manner exercised, whether or not the facility is owned. For example, but not limitation, Control means and includes leased capacity, transport, or any other use. Page 4 Council Bill No. 3137 Ordinance No. 2583 47 “Days” mean calendar days unless otherwise specified. “Emergency” means a circumstance in which immediate work to repair damaged or malfunctioning facilities is necessary torestore lost service or prevent immediate harm to persons or property. “Federal Communications Commission” or “FCC” meansthe federal administrative agency, or its lawful successor, authorized to regulate and oversee telecommunications carriers, servicesand providers on a national level. “Gross Revenue” means any and all amounts, of any kind, nature or form, without deduction for expense, less net uncollectable, derived from the operation (including revenue derived from aleases or other agreements allowing use of facilities toother utility operators or providers), oruseof utility facilitiesin the City, operation of a Communications Services orthe provision of utility service(s)in the City, subject to all applicable limitations in federal or state law. “License” or “Utility License” means the authorization granted by the Cityto a utility operatoror utility providerpursuant to this Ordinance. “Licensee” or “Utility Licensee” means any person that has a valid Utility licensed issued by the City. “Person” means and includes any individual, firm, sole proprietorship, corporation, company, partnership, co-partnership, joint-stock company, trust, limited liability company, association, municipality, special district, government entityor other organization, including any natural person or any other legal entity. “Private communications system” means a system, including the construction, maintenance or operation of the system, for the provision of a service or any portion of a service which is owned or operated exclusively by a person for their use and not for sale or resale, including trade, barter or other exchange of value, directly or indirectly, to any person. “Public communications system” means any system owned or operated by a government entity or entities for its exclusive use for internal communications or communications with other government entities, and includes services provided by the state of Oregon pursuant to ORS 283.140. “Public communications system” does not include any system used for sale or resale, including trade, barter or other exchange of value, of communications services or capacity on the system, directly or indirectly, to any person. Page 5 Council Bill No. 3137 Ordinance No. 2583 48 “Public utility easement” means the space in, upon, above, along, across, over or under an easement for the constructing, reconstructing, operating, maintaining, inspecting, and repairing of utilities facilities. “Public utility easement” does not include an easement (i) that has been privately acquired by a utility operator, (ii) solely for the constructing, reconstructing, operating, maintaining, inspecting, and repairing of cityfacilities, or (iii) where the proposed use by the utility operator is inconsistent with the terms of any easement granted to the City. “Right-of-way” , “Rights-of-Way”, “Public right-of-way”, or “ROW” means and includes, but is not limited to, the space in, upon, above, along, across, over or under the public streets, roads, highways, lanes, courts, ways, alleys, boulevards, bridges, trails, paths, sidewalks, bicycle lanes, public utility easements and all other public ways or areas, including the subsurface under and air space over these areas, but does not include parks,parkland, or other cityproperty not generally open to the public for travel. This definition applies only to the extent of the City’s right, title, interest and authority to grant a license to occupy and use such areas for utility facilities. “Small CellWireless Facility” means Facilities owned or operated for the provision of communications that are shorter ranged, wireless systems affixed to a structure with generally smaller components than traditional Macro Wireless Facilities and are deployed where suitable in flexible configurations to provide capacity and coverage. Small Cell Wireless Facilities means a facility that meets each of the following conditions per 47 C.F.R § 1.6002(l), as may be amended or superseded: (1)The facilities (i) are mounted onstructures 50 feet or less in height including the antennas, or (ii) are mounted on structures no more than 10 percent taller thanother adjacent structures, or (iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;and, (2)Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume;and, (3)All other wireless equipment associated with the structure, including wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;and, (4)The facilities do not result in human exposure to radio Page 6 Council Bill No. 3137 Ordinance No. 2583 49 frequency in excess ofthe applicable safety standards specified in 47 C.F.R. §1.1307(b). “State” means the state of Oregon. “Structure” means any facility a Utility Provider or Utility Operator places in the ROW, including but not limited to poles, vaults or manholes, hand holds, or junction boxes, conduit, direct bury cable, wires, pedestals, aerial cables or wires and transformers. “Telecommunications Act” means the Communications Policy Act of 1934, as amended by subsequent enactments including the Telecommunications Act of 1996 (47 U.S.C., 151 et seq.) and as hereafter amended. “Utility facility” or “facility” means any physical componentof a system, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, transmitters, plant, equipment and other facilities, located within, under or above the rights-of-way, any portion of which is used or designed to be used to deliver, transmit or otherwise provide utility service. “Utility operator” or “operator” means any person who owns, places, controls, operates or maintains a utility facility within the City. “Utility provider” or “Provider” means any person who provides utility serviceor communication servicesto customers within the City limits, whether or not any facilities in the ROW are owned by such provider. “Utility service” means the provision, by means of utility facilities permanently located within, underor above the rights-of-way, whether or not such facilities are owned by the service provider, of electricity, natural gas, communications services, or cable services, to or from customers within the City limits, or the transmission or provision of any of these services through the Citywhether or not customers within the Cityare servedby those transmissionsand whether or not the facilities used for transmission are owned by the service provider. “Work” means the construction, demolition, installation, replacement, repair, maintenance or relocation of any utility facility, including but not limited to any excavation and restoration required in association with such construction, demolition, installation, replacement, repair, maintenance or relocation. .Business RegistrationRequired. Every Section 6.Business Registration person that desires to use, operate or control utility facilities,or provide utility Page 7 Council Bill No. 3137 Ordinance No. 2583 50 services to customers within the Citywillregister with the Cityprior to use, operation, control of utility facilities, or providing any utility services to any customer in the City, in compliance with Ordinance No. 2399. Every person using, operating, controlling, or providing utility services to customers within the Cityas of the effective date of this Ordinance willobtain a Business Registration within thirty (30)days of the effective date of this Ordinance. Every person subject to this Ordinance willrenew and maintain a Business Registrationas required in Woodburn’s Ordinances that areheretofore or hereafter amended, at all times that the person, uses, operates, controls, provides or operates a utility services, to customers within the City. . Section 7.Utility License A.License Required. Except those utility operatorsand utility providers with a valid franchise or other valid agreement from the City, every person will obtain a Utility Licensefrom the Cityprior to conducting any work in or use of the ROW, or providing utility services or communication services to or from customers within the City limits, or the transmission or provision of any of these services through the City whether or not customers within the City are served by those transmissions and whether or not the facilities used for transmission are owned by the service provider. 1.Every person that owns, or controls,provides utility services, oruses utilityfacilities in the rights-of-wayasof the effective date of this Ordinance willapply for a Utility Licensefrom the City within thirty (30) days ofthe later of: (1) the effective date of this Ordinance, or (2) the expiration of a valid agreement granted by the City, unless a new agreement is granted by the City(3) for a person that is not a utility operator, providing utility services within the City. 2.The provisions of this section do not apply to any person subject to and in compliance with the cable television franchise requirement, except that subsection K willapply to the extent such person provides multiple services,subject to applicable law. B.Utility LicenseApplication. The license application willbe on a form provided by the City, and willbe accompanied by any additional documents required by the applicationor the City, in the City’s sole discretion,to identify the applicant, its legal status, including its authorization to do business in Oregon, a description of the type of utility service provided or to be provided by the applicant, a description of the facilities over which the utility service will be Page 8 Council Bill No. 3137 Ordinance No. 2583 51 provisioned, and other information necessary to determine the applicant’s ability tocomply with the terms of this Ordinance. C.Utility License Application & Renewal Fee. The application and renewal application willbe accompanied by a nonrefundable fee or deposit set by resolution of the City Council. D.Determination by City. The Citywillissue, within a reasonable period of time, a written determination granting or denying the Utility Licensein whole or in part. If the Utility Licenseis denied, the written determination willinclude the reasons for denial. The Utility Licensewillbe evaluated based upon the provisions of this Ordinance,the information contained on the Utility Licenseapplication, the continuing capacityof the rights-of-wayto accommodate the applicant’s proposed utility facilities and the applicable federal, state and local laws, rules, regulations and policies. E.Changes to information contained on the Utility Licenseapplication. Within thirty (30) days of a change to the information contained in the license application, the Licensee willnotify the City in writing of such change(s). F.Franchise and other Agreements. If the public interest warrants, as determined by the Cityin its sole discretion,the Cityand any communications provider –including cable providers, utility operator or utility provider,including Small Cell wireless providers,may enter into a written franchise or other agreement that includes terms that clarify, enhance, expand, waive or vary the provisions of this Ordinance, consistent with applicable state and federal law. The agreement may conflict with the terms of this Ordinance with the review and approval of City Council. The franchisee willbe subject to the provisions of this Ordinance to the extent such provisionsare not in conflict with the express provisions of any such franchise or agreement. In the event of a conflict between the express provisions of a franchise or other agreementand this Ordinance, the franchise or other agreementwillcontrol. 1.The provider requesting a franchise agreement willdeposit a non- refundable fee, as set by resolution of theCity Council before negotiations occur. G.Rights Granted. 1.The Utility Licensegranted hereunder willauthorize and permit the licensee, subject to the provisions of the Cityregulations and ordinance and other applicable provisions ofthe City,state or Page 9 Council Bill No. 3137 Ordinance No. 2583 52 federal law, in effect and as may be subsequently amended, to construct, place, maintain, upgrade, repairand operate, controlor useutility facilities in the rights-of-wayfor the term of the licensefor the provision of utility service(s) authorized in the license. In the event the licensee offers different service(s) than those authorized in the license, the licensee willinform the City of such changes no later than thirty (30) days after the change. 2.Any Utility Licensegranted pursuant to this Ordinance willnot convey equitable or legal title in the rights-of-way andmay not be assigned or transferred except as permitted in subsection L of this section. Neither the issuance of the Utility Licensenor any provisions contained therein willconstitute a waiver or bar to the exercise of any governmental right or power, including without limitation,the police power or regulatory power of the City, in existence at the time the license is issued or thereafter obtained. H.Term. Subject to the termination provisions in subsection N of this section, theUtility License granted pursuant to this Ordinance will be effective as of the date it is issued by the City or the date services began, whichever comes st first, and will have a term of five (5) calendar years beginning: (1) January 1of the year in which the license took effect for licenses that took effect between stthst January 1and June 30; or (2) January 1of the year after the license took effect stst for licenses that become effective between July 1and December 31. I. Utility License Nonexclusive. No license granted pursuant to this section willconfer any exclusive right, privilege, license or franchise to occupy or use the rights-of-wayfor delivery of utility services or any other purpose. The City expressly reserves the right to grant licenses, franchises or other rights to other persons, as well as the City’s right to use the rights-of-way, for similar or different purposes. The license is subject to all recorded deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record that may affect the rights-of-way. Nothing in the license willbe deemed to grant, convey, create, or vest in licensee a real property interest in land, including any fee, leasehold interest or easement. J.Reservation of City Rights. Nothing in theUtility Licensewillbe construed to prevent the Cityfrom grading, paving, repairing and/or altering any rights-of-way, constructing, laying down, repairing, relocating or removing City facilities or establishing any other public work, utility or improvement of any kind, including repairs, replacement or removal of any cityfacilities. If any of licensee’s Page 10 Council Bill No. 3137 Ordinance No. 2583 53 utility facilities interfere with the construction, repair, replacement, alteration or removal of any rights-of-way, public work, city utility, cityimprovement or city facility, except those providing utility services in competition with a licensee, licensee’s facilities willbe removed or relocated as provided in subsections C, D and E of Section 9, in a manner acceptable to the Cityand consistent withCity standards, industry standard engineering and safety codesin effect at the time the work is required. K.Multiple Services. 1.A utility operator that provides or transmits or allows the provision or transmission of utility services and other services over its facilities is subject to the license and Usagefeerequirements of this Ordinance for the portion of the facilities and extent of utility services delivered over those facilities.Nothing in this subsection J(1) requires a utility operator to pay the Usageuse fee, if any, owed to the Cityby another personusing the utility operator’s facilities. 2.A utility operator that provides or transmits more than one utility service to customers in the City maynot be required to obtain a separate Utility Licenseor franchise for each utility service, but is required to file separatereports,remittancesand submit any Usage fees due for each service provided. . To the extent permitted by applicable state L.Transfer or Assignment and federal laws, the Utility Licenseewillobtain the written consent of the City prior to the transfer or assignment of the license. The license willnot be transferred or assigned unless: 1.The proposed transferee or assignee is authorized under all applicable laws to own or operate the utility facilities and/or provide the utility service authorized under the license; and 2.The transfer or assignment is approved by all agencies or organizations required or authorized under federal and state laws to approve such transfer or assignment. The Utility Licenseerequesting the transfer or assignment will fullycooperate with the City and provide requested documentation, as the City deems necessary, in the City’s sole discretion, at no cost to the City, to sufficiently understand the transferees’ abilityto perform under the license. Page 11 Council Bill No. 3137 Ordinance No. 2583 54 If the City approves such transfer or assignment, the transferee or assignee will become responsible for fulfilling all obligations under theUtility License. A transfer or assignment of a license does not extend the term of the license. l. At least thirty (30) days, but no more than ninety (90) days M.Renewa prior to the expiration of a Utility Licensegranted pursuant to this section, a licensee seeking renewal of its license willsubmit a license application to the City, including all information required in subsection B of this section and applicable fees fee required in subsection C of this section. The Citywillreview the application as required by subsection D of this section and grant or deny the license. If the Citydetermines that the licensee is in violation of the terms of this Ordinance, or other City Ordinances, rules or regulations,at the time it submits its application, the Citymay require that the licensee cure the violation or submit a detailed plan to cure the violation within a reasonable period of time, as determined by the City, before the Citywill consider the application and/or grant the license. If the Cityrequires the licensee to cure or submit a plan to cure a violation, the Citywill grant or deny the license application within ninety (90) days of confirming that the violation has been cured or of accepting the licensee’s plan to cure the violation. N.Termination. 1.Revocation or Termination of a Utility License. The City may terminate or revoke the license granted pursuant to this Ordinance for any of the following reasons: a.Violation of any of the provisions of this Ordinance; b.Violation of any provision of the license; c.Misrepresentation in a license application; d.Failure to pay taxes, compensation, fees or costs due the City after final determinationby the City,of the taxes, compensation, fees or costs; e.Failure to restore the rights-of-wayafter construction as required by this Ordinance or other applicable state and local laws, ordinances, rules and regulations; f.Failure to comply with technical, safety and engineering standards related to work in the rights-of-way; or g.Failure to obtain or maintain any and all licenses, permits, certifications and other authorizations required by state or federal law for the placement, maintenance and/or operation of the utility facilities. Page 12 Council Bill No. 3137 Ordinance No. 2583 55 2.Standards for Revocation or Termination. In determining whether termination, revocation or some other sanction is appropriate, the following factors willbe considered: a. The egregiousness of the misconduct; b. The harm that resulted; c. Whether the violation was intentional; d.The Licensee’s history of compliance; and/or e.The Licensee’s cooperation in discovering, admitting and/or curing the violation. 3.Notice and Cure. The Citywillgive the Utility Licenseewritten notice of any apparent violations before terminating a Utility License. The notice willinclude a short and concise statement of the nature and general facts of the violation or noncompliance and provide a reasonable time (no less than twenty (20) and no more than forty (40) days) for the Licensee to demonstrate that the Licensee has remained in compliance, that the Licensee has cured or is in the process of curing any violation or noncompliance, or that it would be in the public interest to impose a penalty or sanction less than termination or revocation. If the Licensee is in the process ofcuring a violation or noncompliance, the Licensee must demonstrate that it acted promptly and continues to actively work on compliance. If the Licensee doesnotrespond or if the City determines that the Licensee’s response is inadequate, the City may revoke and/or terminate the Utility License. 4.Termination by Utility Licensee. If a licensee ceases to be required to have a Utility License,as defined under this Ordinance, the licensee may terminate or surrender its license, with a thirty (30) day noticeto the City. Licensee may reapply for a Utility Licenseat any time. No refunds or credits will be given for licenses terminated by the licensee or the City. a.Within thirty (30)daysof surrendering a Utility License, the licensee willfile a final remittance form with the City stating, “final remittance” and will remit any funds due. b.Upon surrendering a Utility License, the licensee will file a written statement that it has removed, or will remove within 60 days, any and all facilities from the City and no longerprovides Utility Services, as defined in this ordinance. . Section 8.Construction and Restoration Page 13 Council Bill No. 3137 Ordinance No. 2583 56 A.Construction Codes. Utility facilities willbe constructed, installed, operated, repairedand maintained in accordance with all applicable federal, state and local codes, rules and regulations, including but not limited tothe National Electrical Code and the National Electrical Safety Codeand the City Standards, in effect at the time of the work. When a utility operator, utility provider or licensee, or any person acting on its behalf, does any work in or affecting the rights-of-way, the utility operator will, at its own expense, promptly restore the rights-of-wayas directed by the Cityconsistent with applicable citycodes, rules and regulations, in effect at the time of the work. A utility operator, utility provider, licensee or other person acting on its behalf willuse suitable barricades, flags, flagging attendants, lights, flaresand other measures as required for the safety of all members of the general public and to prevent injury or damage to any person(s), vehicle or property by reason of such work in or affecting the rights of way or property. B.Construction Permits. 1.No person willperform any work on utility facilities within the rights-of- waywithout first obtaining all required permits. The Citywillnot issue a permit for the construction, installation, maintenance or repair of utility facilities unless the utility operator of the facilities hasapplied for and received a valid license, franchise agreement or other valid agreement (if applicable),required by this Ordinance, and all applicable fees have been paid. No permit is required for routine maintenance or repairs to customer service drops where such, repairs or maintenance do not require cutting, digging, or breaking of, or damage to, the right of way and do not result in closing or blocking any portion of the travel lane for vehicular traffic, bicycle lanes or sidewalks. 2. In the event of an Emergency, a utility operator or provider with a license pursuant to this Ordinance or its contractor may perform work on its utility facilities without first obtaining a permit from the City, provided that, to the extent reasonably feasible, it attempts to notify the City prior to commencing the emergency work and in any event applies for a permit from the City as soon as reasonably practicable, but not later than 5:00pm PST of the next business day after commencing the emergency work. Section 9.Location of Facilities. A.Location of Facilities. Unless otherwise agreed to in writing by the City: Page 14 Council Bill No. 3137 Ordinance No. 2583 57 1. All utility operators are required to make good faith effort to both cooperate with and coordinate their construction schedule with those of the City and other users. 2. Utility facilities willbe installed underground in all areas of the City where there are no existing polesin the ROW, there is no spaceon existing poles in the ROW, or where the only poles in the ROWare used only for high voltage lines (as defined below). This requirement willnot apply to facilities used for transmission of electric energy at nominal voltages in excess of thirty-five thousand (35,000) volts or to antennas, pedestals, cabinets or other above-ground equipment of any utility operatorfor which the utility operator has written authorization to place above-ground. 3. Whenever any existing electric utilities, cable facilities or communications facilities are located underground within theROW of the City, the utility operator with permission to occupy the same ROWwillinstall all new facilities undergroundat no cost to the City. This requirement willnot apply to facilities used for transmission of electric energy at nominal voltages in excess of thirty-five thousand (35,000) volts (“high voltage lines”) or to antennas, pedestals, cabinets or other above-ground equipment of any utility operator. The Cityreserves the right to require written approval of the location of any such above-ground equipment in the ROW. B.Interference with the Rights-of-Way. No utility operator or other person may locate or maintain its facilities so as to unreasonably interfere with the use of the rights-of-wayby the City, by the general public or by other persons authorized to use or be present in or upon the rights-of-way.Utility facilities willnot be located in area of restricted sight distance nor interfere with the proper function of traffic control signs, signals, lighting, or other devices that affect traffic operation. All use of the rights-of-waywillbe consistent with Citycodes, ordinances, rulesand regulationsin effect and as may be subsequently amended. C.Relocation of Utility Facilities. Unless otherwise agreed to in writing by the City: 1.A utility operator will, at no cost to the City, temporarily or permanently remove, relocate, change or alter the position of any utility facility within theROW, including relocation of aerial facilities Page 15 Council Bill No. 3137 Ordinance No. 2583 58 underground, when requested to do so in writing by the City. If relocation is required by the City, the City willbear no responsibility or incur any costs, to provide or in any way secure alternate locations. 2.Nothing herein willbe deemed to preclude the utility operator from seeking reimbursement or compensation from a third party, pursuant to applicable laws, regulations, tariffsor agreements, provided that the utility operator willtimely comply with the requirements of this section regardless of whether or not it has requested or received such reimbursement or compensation. 3.The City maycoordinate the schedule for relocation of utility facilities and based on such effort willprovide written notice of the time by which the utility operator must remove, relocate, change, alter or underground its facilities. If a utility operator fails to remove, relocate, change, alter or underground any utility facility as requested by the City by the date reasonably established by the City, the utility operator willpay all costs incurred by the City due to such failure, including but not limited to costs related to project delays, and the City may cause, using qualified personnel or contractors consistent with applicable state and federal safety laws and regulations, the utility facility to be removed, relocated, altered, or undergrounded at the utility operator’s sole expense. Upon receipt of aninvoice from the City, the utility operator willreimburse the City for the costs the City incurred within thirty (30) days. 4.The City will cooperate with the utility operator in securing alternate locations. However, the City will bear no responsibility or costs for securing alternate locations. The City will bear no responsibility to obtain, compensate, or otherwise assist the utility operator in relocation of is facilities to location not in the control of the City. D.Removal of Unauthorized Facilities. 1.Unless otherwise agreed to in writing by the City, within thirty (30) days following written notice from the Cityor such other time agreed to in writing by the City, a utility operator and any other person that owns, controls, or maintains any abandoned or unauthorized utility facility within therights-of-waywill, at its own expense, remove the facility and restore the affected area. Page 16 Council Bill No. 3137 Ordinance No. 2583 59 2.A utility system or facility is unauthorized under any of the following circumstances: a.The utility facility, or any portion of the facility,is outside the scope of authority granted by the Cityunder the Utility License, franchise or other written agreement. This includes facilities that were never licensed or franchised and facilities that were once licensed or franchised but for which the license or franchise has expired or been terminated. This does not include any facility for which the Cityhas provided written authorization for abandonment in place. b.The facility has been abandoned and the Cityhas not provided written authorization for abandonment in place. A facility is abandoned if it is not in use and is not planned for further use. A facility will be presumed abandoned if it is not used for a period of twelve (12) consecutive months. A utility operator may overcome this presumption by presenting plans for future use of the facility. c.The utility facility is improperly constructed or installed or is in a location not permitted by the construction permit, license, franchise or this Ordinance. d.The utility operator is in violation of a material provision of this Ordinance and fails to cure such violation within thirty (30) days of the Citysending written notice of such violation, unless the City extends such time period in writing. E.Removal by City. 1.The Cityretains the right and privilege to cut or move any utility, without notice, as the City determines, at its sole discretionto be necessary, appropriate or useful in response to a public health or safety emergency. The Citywill use qualified personnel or contractors consistent with applicable state and federal safety laws and regulations to the extent reasonably practicable without impeding the City’s response to the emergency. The Citywill use best efforts to providetheutility operator with notice prior tocutting or moving facilities. If prior notice is not possible, the Citywill provide such noticeas soon as reasonably practicable after resolution of the emergency. 2.If the utility operator fails to remove any facility when required to do so under this Ordinance, the Citymay remove the facility using qualified personnel or contractors consistent with applicable state Page 17 Council Bill No. 3137 Ordinance No. 2583 60 and federal safety laws and regulations, and the utility operator will be responsible for paying the full cost of the removal and any administrative costs incurred by the Cityin removing the facility and obtaining reimbursement. Upon receipt of aninvoice from the City, the utility operator willreimburse the Cityfor the costs the City incurred within thirty (30) days. The obligation to remove willsurvive the termination of the license or franchise. 3.The Citywillnot be liable to any utility operator for any damage to utility facilities, or for any incidental or consequential losses resulting directly or indirectly therefrom, by the Cityor its contractor in removing, relocating or altering the facilities pursuant to this Section 9, or resulting from the utility operator’s failure to remove, relocate, alter or underground its facilities as required by this Section 9, unless such damage arises directly from the City’s or it’s contractor’s negligence or willful misconduct. .The utility operator willprovide the F.Engineering Record Drawings Citywith two complete sets of record drawingsin a form acceptable to the City showing the location of all its utility facilities after initial construction if such plan changed during construction. The utility operatorwillprovide updated complete sets of as built plans upon request of the City, but not more than once per year. G. Facility Map.Utility operator, Utility provider and Utility Licenseewill provide, at no cost to the City, a comprehensive map showing the location of any facility in the City. Such map willbe provided in a format acceptable to the City, with accompanying data sufficient enough for the City to determine the exact location of facilities, currently in Shapefile or Geodatabase format. The Utility Operator, Utility Provider and Utility Licenseewill provide such map yearly by February 1if any changes occurred during the prior year. The City may also request and will be provide the map, at no cost to the City, upon request, no more than once per year. Section 10.Leased Capacity.A utility operator may lease capacityon or in its facilities to others, provided thatthe utility operator requires and has verified with the City, that the proposed lessor has obtained proper authority from the City prior to leasing capacity or allowing use of itsfacilities. Upon request, at no cost to the City, the utility operator willprovide a complete list with the name, businessaddressand contact informationof any lessee. If requested by the City, the utility operator will also provide exact details of any attachment by lessee.Autility operator is not required to provide such information if disclosure is expressly prohibited by applicable law. Page 18 Council Bill No. 3137 Ordinance No. 2583 61 Section 11.Maintenance. A. Every utility operator willinstall and maintain all facilities in a manner that complies with applicable federal, state and local laws, rules, regulations and policies. The utility operator will, at its own expense, repair and maintain facilities from time to time as may be necessary to accomplish this purpose. B. If, after written notice from the Cityof the need for repair or maintenance as required in subsection A of this section, a utility operator fails to repair and maintain facilities as requested by the Cityand by the date reasonably established by the City, the Citymay perform such repair or maintenance using qualified personnel or contractors consistent with applicable state and federal safety laws and regulations at the utility operator’s sole expense. Upon receipt of an invoice from the City, the utility operator willreimburse the Cityfor the costs the Cityincurred within thirty (30) days. .If the Cityvacates any ROW, or portion thereof, that Section 12.Vacation a utility operator uses, the utility operator will, at its own expense, remove its facilities from the ROWunless the Cityreserves a public utility easement, which the Citywillmake a reasonable effort to do provided that thereis no expense to the City, or the utility operator obtains an easement for its facilities. If the utility operator fails to remove its facilities within thirty (30) days after a ROW is vacated, or as otherwise directed or agreed to in writing by the City, the City may remove the facilities using qualified personnel or contractors consistent with applicable state and federal safety laws and regulations at the utility operator’s sole expense. Upon receipt of an invoice from the City, the utility operator will reimburse the Cityfor the costs the Cityincurred within thirty (30) days. Section 13.Usage Fee. A. Except as set forth in subsection Bof this section, every person that owns utility facilities in the City’s rights-of-wayand every person that uses or controls utility facilities in the City’s rights-of-way to provide utility service, whether or not the person owns the utility facilities used to provisionthe utility services and every person that provides utility services within the City, willpay the usage fee for every utility service provided in the amount determinedby resolution of the City Council. B.A utility operator whose only facilities in the ROWare facilities mounted on above-ground structures within the ROW, which structures are owned by another person, and with no facilities strung between such structures Page 19 Council Bill No. 3137 Ordinance No. 2583 62 or otherwise within, under or above the ROW(other than equipment necessary to operate the mounted facilities that has been expressly approved by the City to be placed in the ROW),willpay the attachment fee set by City Council resolution for each attachment, or such other fee set forth in the license granted by the City. Unless otherwise agreed to in writing by the City, the fee willbe paid quarterly, in arrears, withinthirty (30)days after the end of each calendar quarter andwillbe accompanied by information sufficient to illustrate the calculation of the amount payable. C. No acceptance of any payment willbe construed as accord that the amount paid is in fact the correct amount, nor will such acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable. D.Usagefeepayments required by this section willbe reduced by any franchise fees or privilege taxes, due to the City, but in no case will be less than zero dollars ($0). E.Unless otherwise agreed to in writing by the City, theUsage fee set forth in subsection A of this section willbe paid quarterly, in arrears, within thirty (30)days after the end of each calendar quarter. Each paymentwillbe accompanied by an accounting of gross revenues, if applicable, and a calculation of the amount payable(a remittance form will be provided by the City).The City may request and will be provided at no cost to the City, any additional reports or information it deems necessary, in its sole discretion, to ensure compliance by the utility provider, utility operator or licensee. Such information may include, but is not limited to: chart of accounts, total revenues by categories and dates, list of products and services, narrative documenting calculation, details on number of customers within the City limits, or any other information needed for the City to easily verify compliance. F.The calculation of the Usagefeerequired by this section willbe subject to all applicable limitations imposed by federal or state lawin effect and as may be subsequently amended. G. The Cityreserves the right to enact other fees and taxes applicable to the utility providers, utility operators and licensee subject to this Ordinance. Unless expressly permitted by the Cityin enacting such fee or tax, or required by applicable state or federal law, no utility operator may deduct, offset or otherwise reduce or avoid the obligation to pay any lawfully enacted fees or taxes based on the payment of the Usage fees or any other fees required by this Ordinance Page 20 Council Bill No. 3137 Ordinance No. 2583 63 Section 14.Penalties and Interest on Usage Fee.Penalties and interest imposed by this section are in addition to any penalties that may be assessed under other ordinances orregulations of the City. A.Any person who has not submitted the required remittance forms or remitted the correct fees when due as provided in Section13willpay a penalty listed below in addition to the amount due: 1.First occurrence during any one calendar year; Ten percent (10%) of the amount owed, or Twenty-five dollars ($25.00), whichever is greater. 2.Second occurrence during any one calendar year; Fifteen percent (15%) of the amount owed, or Fifty dollars ($50.00), whichever is greater. 3.Third occurrence during any one calendar year; Twenty percent (20%) or the amount owed, or Seventy-five dollars ($75.00), whichever is greater. 4.Fourth occurrence during any one calendar year; Twenty-five percent (25%) of the amount owed, or One hundred dollars ($100.00), whichever is greater. B.If the City determines that the nonpayment of any remittance due under this section is due to fraud or intent to evade the provisions hereof, an additional penalty of twenty-five percent (25%) of the amount owed, or Five hundred dollars ($500.00), whichever is greater, willbe added theretoin addition to other penalties stated in section 14. C.In addition to the penalties imposed, any person who fails to remit any fee when due as provided in Section 13willpay interest at the rate of 1.5% per month or fractions thereof, without proration for portions of a month, on the total amount due (including penalties), from the date on which the remittance first became delinquent, until received by the City. D.Every penalty imposed, and such interest as accrues under the provision of this section, willbe merged with, and become part of, the fee required to be paid. The City or its designee, in their sole discretion, willhave the authority to reduce or waive the penalties and interest due under Section 14. Page 21 Council Bill No. 3137 Ordinance No. 2583 64 Section 15.Audits and Records Requests. A.Within thirty (30) days of a written request from the City, or as otherwise agreed to in writing by the City: 1.EveryUtility Licensee, Utility Operator and Utility Provider will furnish the City, at no cost to the City,with information sufficient to demonstrate compliance with all the requirements of this Ordinance, any franchise agreements or other agreements, if any, including but not limited to payment of any applicable Business Registrationfee, licensing fee, usage fee, attachment fee, franchise feeor privilege taxes. 2.Every Utility Operator, Utility Provider and Utility Licenseewill make available for inspection by the Cityat reasonable times and intervals all maps, records, books, diagrams, plans and other documents, maintained by the utility operator with respect to its facilities or use of facilities, within the rights-of-way. Access willbe provided within the Cityunless prior arrangement for access elsewhere has been madeand approved by the City. B.If the City’s audit of the books, records and other documents or information of theUtility Licensee, Utility Operator or Utility Provider demonstrate that there has been underpaid the usagefee,licensing fee, attachment feeor franchise feeor any other fee or paymentby two percent (2%) or more in any one(1)year, the licensee, utility operator, or utility provider willreimburse the City for the cost of the audit, in addition to any interest owed pursuant to Section 14 or as specified inother agreements or franchises with the City. C.Any underpayment, including any interest or audit cost reimbursement, willbe paid within thirty (30) days of the City’s noticeof such underpayment. D. The Licensee, Utility Provider or Utility Operator is not required to maintain records for more than six (6) years. The City is not required to maintain records beyond the State retention schedules. Section 16.Insurance and Indemnification. Page 22 Council Bill No. 3137 Ordinance No. 2583 65 A.Insurance. 1.All utility operators willmaintain in full force and effect the following liability insurance policies that protect the utility operator and the City, as well as the City’s officers, agents, and employees: a.Comprehensive general liability insurance with limits not less than: i.Three million dollars ($3,000,000.00) for bodily injury or death to each person; ii.Three million dollars ($3,000,000.00) for property damage resulting from any one accident;and iii.Three million dollars ($3,000,000.00) for all other types of liability. b.Commercial Automobileliability insurance for owned, non- owned and hired vehicles with a limit of one million dollars ($1,000,000.00) for each person and three million dollars ($3,000,000.00)for each accident. c.Worker’s compensation within statutory limits and employer’s liability with limits of not less than one million dollars ($1,000,000.00). d.If not otherwise included in the policies required by subsection a. above, maintain comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than three million dollars ($3,000,000.00). e. Utility operator may utilize primary and umbrella liability insurance policies to satisfy the preceding insurance policy limit requirements. 2.The limits of the insurance willbe subject to statutory changes as to maximum limits of liability imposed on municipalities of the state of Oregon. The insurance willbe without prejudice to coverage otherwise existing and willname, or the certificate of insurance will name, with the exception of worker’s compensation, as additional insureds the Cityand its officers, agents, and employees. The coverage must apply as to claims between insureds on the policy. The insurance willnot be canceled or materially altered without thirty (30) days prior written notice first being given to the City, and the certificate of insurance willinclude such an endorsement. If the insurance is canceled or materially altered, the utility operator will obtaina replacement policy that complies with the terms of this sectionand provide the Citywith a replacement certificate of insurance. The utility operator willmaintain continuous uninterrupted Page 23 Council Bill No. 3137 Ordinance No. 2583 66 coverage, in the terms and amounts required. The utility operator may self-insure, or keep in force a self-insured retention plus insurance, for any or all of the above coverage. 3.The utility operator willmaintain on file with the Citya certificate of insurance, or proof of self-insurance acceptable to the City, certifying the coverage required above. B.Financial Assurance. Unless otherwise agreed to in writing by the City, before a franchise is granted or license issued pursuant to this Ordinance is effective, and as necessary thereafter, the utility operator willprovide a performance bond or other financial securityor assurance, in a form acceptable to the City, as security for the full and complete performance of the franchiseor license, if applicable, and compliance with the terms of this Ordinance, including any costs, expenses, damages or loss the Citypays or incurs because of any failure attributable to the utility operator to comply with the codes, ordinances, rules, regulations or permits of the City. This obligation is in addition to the performance surety required under this Ordinance. C.Indemnification. 1.Each utility licensee willdefend, indemnify and hold the Cityand its officers, employees, agents and representatives harmless from and against any and all liability, causes of action, claims, damages, losses, judgments and other costs and expenses, including attorney fees and costs of suit or defense (at both the trial and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by any person in any way arising out of, resulting from, during or in connection with, or alleged to arise out of or result from the negligent, careless, or wrongful acts, omissions, failure to act, or other misconduct of the utility licensee or its affiliates, officers, employees, agents, contractors, subcontractors, or lessees in the construction, operation, maintenance, repair, or removal of its facilities, and in providing or offering utility services over the facilities, whether such acts or omissions are authorized, allowed, or prohibited by this Ordinance or by a franchise agreement. The acceptance of aUtility license, orof a franchise granted by the City, will constitute such an agreement by the applicant whether the same is expressed or not, unless expressly stated otherwise in the license or franchise. Upon notification of any such claim the Citywillnotify the utility operator and provide the utility operator with an opportunity to provide defense regarding any such claim. Page 24 Council Bill No. 3137 Ordinance No. 2583 67 2.Every utility licensee willalso indemnify the Cityfor any damages, claims, additional costs or expenses assessed against or payable by the Cityarising out of or resulting, directly or indirectly, from the utility licensee’s failure to remove or relocate any of its facilities in a timely manner, unless the utility licensee’s failure arises directly from the City’s negligence or willful misconduct. Section 17.Compliance.Every Utility licensee, utility operatorand utility provider willcomply with all applicable federal and state laws and regulations, including regulations of any administrative agency thereof, as well as all applicable ordinances, resolutions, rules and regulations of the City, heretofore or hereafter adopted or established during the entire term of any Utility License granted under this Ordinance. Section 18.Confidential/Proprietary Information.If any personis required by this Ordinance to provide books, records, maps or information to the Citythat the personreasonably believes to be confidential or proprietary, and such books, records, maps or information are clearly marked as confidential at the time of disclosure to the City(“confidential information”), the Citywilltake reasonable steps to protect the confidential information to the extent permitted by Oregon Public Records Laws. In the event the Cityreceives a public records request to inspect any confidential information and the Citydetermines that it will be necessary to reveal the confidential information, to the extent reasonably possible the Citywill notify the person that submitted the confidential information of the records request prior to releasing the confidential information. The Citywillnot be required to incur any costs to protect any confidential information,other than the City’s routine internal procedures for complying with the Oregon Public Records Law. Section 19.Penalties and Violations. A.Any person found in violation of any of the provisions of this Ordinance or the Utility Licensewillbe subject to a penalty of not less than one hundred fifty dollars ($150), nor more than twenty-five hundred dollars ($2,500) for each offense,which shall be processed in accordance with theprocedures contained in the WoodburnCivil Infraction Ordinance (Ord. No. 1998). A violation willbe deemed to exist separately for every section violated and be assessed each and every day during which a violation exists. B.Nothing in this Ordinance willbe construed as limiting any judicial or other remedies the Citymay have at law or in equity, for enforcement of this Page 25 Council Bill No. 3137 Ordinance No. 2583 68 Ordinance, including those Civil Infractions that may be imposed under Ordinance 1998. C. The City or its designee, in their sole discretion, willhave the authority to reduce or waive the penalties and interest due under this subsection 19. Section 20.Severability and Preemption. A.The provisions of this Ordinance willbe interpreted to be consistent with applicable federal and state law, and willbe interpreted, to the extent possible, to cover only matters not preempted by federal or state law. B. If any article, section, subsection, sentence, clause, phrase, term, provision, condition or portion of this Ordinance is for any reason declared or held to be invalid or unenforceable by any court of competent jurisdiction or superseded by state or federal legislation, rules, regulations or decision, the remainder of thisOrdinance willnot be affected thereby but willbe deemed as a separate, distinct and independent provision, and such holding willnot affect the validity of the remaining portions hereof, and each remaining section, subsection, clause, phrase, term, provision, condition, covenant and portion of this Ordinance willbe valid and enforceable to the fullest extent permitted by law. In the event any provision is preempted by federal or state laws, rules or regulations, the provision willbe preempted only to the extent required by law and any portion not preempted willsurvive. If any federal or state law resulting in preemption is later repealed, rescinded, amended or otherwise changed to end the preemption, such provision willthereupon return to full force and effect and willthereafter be binding without further action by the City. Section 21.Application to Existing Agreements.To the extent that this Ordinance is not in conflict with and can be implemented consistent with existing franchise agreements, this Ordinance willapply to all existing franchise agreements granted to utility operatorsand utility providersby the City. Section 22. Effective Date. This Ordinance shall take effect on January 1, 2021. Approved as to form: City AttorneyDate Page 26 Council Bill No. 3137 Ordinance No. 2583 69 Approved: Eric Swenson, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Heather Pierson, City Recorder City of Woodburn, Oregon Page 27 Council Bill No. 3137 Ordinance No. 2583 70 COUNCIL BILL NO. 3138 RESOLUTION NO. 2162 ARESOLUTION SETTING THE RIGHT-OF-WAY UTILITY LICENSE AND USAGE FEE RATES WITHIN THE CITY OF WOODBURN WHEREAS,the City of Woodburn("City") has constitutional and charter authority to manage its rights-of-wayand utility usage within the City; and WHEREAS, the WoodburnCity Counciladoptedan ordinance regulating utilities operating within the Cityand exercising the City’s authority to secure compensation to the City and its residents for utility use; WHEREAS, per the ordinance theWoodburnCouncil shall by resolution establish Utility Licensing fees; WHEREAS,per the ordinance the Woodburn Council shall by resolution establish a Franchise negotiations fee; and WHEREAS, per ordinance the WoodburnCity Council shall by resolution establish Usage fees;NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. The Utility License application fee shall be $300.00 (excluding Small Cell Wireless Facilities) and shall include an initial five-year license (if approved). Section 2. Utility License application fee for Small Cell Wireless Facilities, as they involve both access to rights-of-way and vertical infrastructure shall be $500.00 for up to 5 sites and $100.00 for each additional site, plus any additional reasonable fees the City must incur for outside expertise to evaluate such applications,including compliance with the Federal Communication Commission “RF” standards. Section 3. The Utility License renewal fee (excluding Small Cell Wireless Facilities) shall be $250.00 for a five-year license. Section 4.The refundable franchise negotiation depositshall be $5,000.00; Page 1 Council Bill No. 3138 Resolution No. 2162 71 Section 5. The usage fee shall be as follows, to the extentpermitted under applicable law: ServiceUsage Fee Rate Electric:Provides services to customer within 5% of gross revenue Woodburn via owned or non-owned facilities located within the City’s ROW Natural Gas:Providing services to customer 5% of gross revenue within Woodburn via owned or non-owned facilities located within the City’s ROW. Cable Television 5% of gross revenue Communications*(other than Small Cell 7% of gross revenue Wireless** Facilities):Providing services to customer within Woodburn via owned or non- owned facilities located within the City’s ROW Attachment fee (other than Small Cell Wireless**$5,000 per attachment per year Facilities) Small Cell Wireless**Communications Facilities$270.00 per attachment per year Usage of owned or non-owned facilities inthe $3.00 per linear foot of Utility rights-of-way for purposes other than generating Facilities in the rights-of-way or a revenue or providing services to customers within minimum annual fee of $5,000.00, the City.whichever is greater. The per- linear-foot fee and the minimum fee shall increase 3% annually on st July 1of each year, beginning July 1, 2022 “Gross Revenue” shall have the meaning defined in the Utility Services Ordinance. Section 6: The annual attachment fee(excluding Small Cell Wireless Facilities) shall be $5,000.00per attachment. The attachment fee shall increase st of each year, beginning on July 1, 2022. 3% annual on July 1 Section 7: The annual attachment fee for Small Cell Wireless Facilities shall be the fair market value of such attachments, but until the Federal Communications Commission September 26, 2018 small cell order is overturned, City staff are directed to establish what the reasonable approximation of costs for such attachment are, but it nocase less than $270.00 per attachment, per year. Page 2 Council Bill No. 3138 Resolution No. 2162 72 * "Communications" shall have the meaning defined in Woodburn’s Utility Service Ordinance and shall include telecommunication utilities, long distance providers, private networks, wireless, wireline, VoIP, ILEC, CLEC, inter and intrastate. ** "Small Cell Wireless Facilities" shall have the meaning defined in Woodburn’s Utility Service Ordinance. Section 8. The fees implemented by this Resolution take effect on January 1, 2021. Approved as to Form: City AttorneyDate APPROVED: Eric Swenson, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Heather Pierson, City Recorder City of Woodburn, Oregon Page 3 Council Bill No. 3138 Resolution No. 2162 73 Agenda Item November 9, 2020 TO:Honorable Mayor and City Council through City Administrator FROM:Jim Row, Assistant City Administrator Mel Gregg, Human Resources Director SUBJECT:Title VI Program : RECOMMENDATION Adopt via resolution theupdatedTitle VI Civil Rights Programfor public transit programs, as required by the Federal Transit Administration. BACKGROUND: Any entity receiving federal dollars, either directly from the Federal Transit Administration (FTA) or through the Oregon Department ofTransportation Rail and Public Transit Division (RPTD), must not discriminate based on factors which include, but are not limited to, race, color, national origin, religion,age,marital status, sexual orientation, gender, ordisability status. Specifically, Title VI of the 1964 Civil Rights Act states: "No person in the United States shall, on the grounds ofrace, color, or national origin,be excluded fromparticipation in, be denied the benefits of, or be subjected todiscrimination under any program or activity receiving Federal financial assistance.” Subject entities are required to adopt a Title VI Program meeting requirements established by the FTA every three years. The City last adopted a Title VI Program in October 2017. : DISCUSSION In Accordance with Title VI of the Civil Rights Act of 1964, this Title VI Program reflects theWoodburnTransit System's commitment to ensuring that no person shall, on the ground of race,color, national origin, religion, age, marital status, sexual orientation, gender, or disability be excludedfrom participation in, be Agenda Item Review:City Administrator __x____City Attorney ___x___Finance ___x__ 74 Honorable Mayor and City Council November 9, 2020 Page 2 denied the benefits of, or be subjected to discrimination under anyprogram or activity provided by the Woodburn Transit System (WTS). Highlights of the Programinclude the following items: 1)A copy of the requiredTitle VIpublicnotice and a list ofwhere the notice is located. 2)Instructions to the public regarding how to file a Title VI discrimination complaint, including a copy of the complaint form. 3)A list of any public transit-related investigations, complaints or lawsuits since the time of the last submission. 4)A public participation plan that includes an outreach plan to engage minority and limited English proficient populations, as well as a summary of outreach efforts made since the last Title VI Program submission. 5)A copy of the plan for providing language assistance to persons with limited English proficiency. 6)A description of efforts made to encourage the participation of minorities on such committees or councils. 7)Service standardsfor a fixed route. a)Vehicle headways and periods of operations b)On-time performance standards c)Service availability standards. FINANCIAL IMPACT: No additional direct cost to the City related to the requirements of the Title VI Program is anticipated. 75 COUNCIL BILL NO. 3140 RESOLUTION NO. 2164 A RESOLUTION ADOPTING THE UPDATED WOODBURN TRANSIT SYSTEM TITLE VI PROGRAM WHEREAS, any entity receiving federal dollars, either directly from the Federal Transit Administration (FTA) or through the Oregon Department of Transportation Rail and Public Transit Division must not discriminate based on factors which include, but are not limited to, race, color, national origin, religion, age, marital status, sexual orientation, gender, or disability status; and WHEREAS, subject entities are required to adopt and submit a Title VI Program meeting requirements established by the FTA every three years; and WHEREAS, the City of Woodburn previouslyadopted a Title VI Program on September 25, 2017;NOW THEREFORE, THE CITY OF WOODBURN HEREBY RESOLVES AS FOLLOWS: Section 1. The updated Woodburn Transit System Title VI Program, dated November 9, 2020and attached hereto as Exhibit “A”, is hereby adopted. Approved as to form: City Attorney Date Approved: Eric Swenson, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Heather Pierson, City Recorder City of Woodburn, Oregon Page 1 – COUNCIL BILL NO. 3140 RESOLUTION NO. 2164 76 Exhibit A Woodburn Transit System Title VI Program November 9, 2020 City of Woodburn Woodburn Transit System 270 Montgomery Street Woodburn, Oregon 97071 77 Table of Contents Introduction .............................................................................................................................................................................. 3 Policy Statement ..................................................................................................................................................................... 3 Title VI Notice to the Public ............................................................................................................................................... 3 Title VI Complaint Procedures .......................................................................................................................................... 3 Record of Title VI investigations, Complaints, or Lawsuits .................................................................................... 5 Minority Representation on Non-elected Bodies ......................................................................................................... 5 Title VI Public Participation Plan ..................................................................................................................................... 6 Summary of Ongoing Public Participation Efforts and Outreach ........................................................................... 6 Woodburn Transit System Limited English Proficiency Outreach Plan .............................................................. 6 Primary recipients and monitoring sub recipients ........................................................................................................ 8 Title VI equity analysis ........................................................................................................................................................ 8 Service Standards ................................................................................................................................................................... 9 Attachment A ........................................................................................................................................................................ 11 Attachment B ........................................................................................................................................................................ 13 2 78 Introduction This program reflects the Woodburn Transit System’s commitment to ensuring that no person shall, on the ground of race, color, national origin, religion,age, marital status, sexual orientation, gender, or disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity provided by the Woodburn Transit System(WTS). Policy Statement It is the expresspolicy of the WTSthat no person shall be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under, any of its programs or activitieson the grounds of race, color, national origin, sex, age, disability,or income, as provided by Title VI of the Civil Rights Act of 1964, the Civil Rights Restoration Act of 1987, the Federal Aid Highway Act of 1973, Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, Executive Order 12898 and Executive Order 13166. MelGregg,Human Resources Director isthe Title VI Coordinator for WTS, and can be reached at (503) 982-5231 by phone; at mel.gregg@ci.woodburn.or.usby email; or at 270 Montgomery St, Woodburn, OR 97071 by post. Title VI Notice to the Public The Title VI Notice to the Publiccan be found in Attachment Aand will be posted at the Woodburn Transit office, on the Woodburn Transit webpage, and on board buses operated by Woodburn Transit System. The notice is provided in both English and Spanish. Title VI Complaint Procedures Complaints alleging discrimination which is prohibited under Title VI of the Civil Rights Act of 1964 shall be filed in accordance with the following procedure.The following procedures cover all complaints arising under Title VI. Every effort will be made to obtain early resolution of complaints at the lowest level possible. The option of informal meetings between the Title VI Coordinator and affected parties may be utilized for resolution. These procedures do not deny the right of the complainant after completion of the Title VI complaint process to file a complaint with state or federal agencies or to bring a private action based on the complaint. 1.Any person who believes he or she, individually, as a member of any specific class, or in connection with any disadvantaged business enterprise, has been subjected to discrimination prohibited by federal law,may file a complaint with the WTS. A complaint may also be filed by a representative on behalf of such a person. All complaints will be referred to Title VI Coordinatorfor review and action. 3 79 2.In order to have the complaint considered under this procedure, the complainant must file the complaint no later than 180 days after: a)The date of alleged act of discrimination; or b)Where there has been a continuing course of conduct, the date on which that conduct was discontinued. In either case, WTS may extend the time for filing or waive the time limit in the interest of justice, as long as WTS specifies in writing the reason for so doing. 3.Complaints shall be in writing and shall be signed by the complainant and/or the complainant’s representative. Complaints shall set forth as fully as possible the facts and circumstances surrounding the alleged discrimination. In the event a person makes a verbal complaint of discrimination to an officer or employee of WTS, the person shall be interviewed by the Title VI Coordinator. If necessary, the Title VI Coordinatorwill assist the person in reducing the complaint to writing and submit the written version of the complaint to the person for signature. The complaint shall then be handled according to WTS’s investigative procedures. The complaint may be filed in writing with WTS at the following address: Woodburn Transit System Human Resources Director 270 Montgomery Street Woodburn, OR 97071 503-982-5231 mel.gregg@ci.woodburn.or.us 4.Within 10days, the Title VI Coordinatorwill acknowledge receipt of the allegation, will determine if the City has jurisdiction over the complaint, whether the complaint is complete and if additional information is needed, inform the complainant of action taken orproposed action to process the allegation, and advise the complainant of other avenues of redress available, such as the Oregon Department of Transportation (ODOT) and U.S. Department of Transportation (USDOT). 5.The Title VI Coordinator will advise ODOT and/or USDOT within 10 days of receipt of the allegations. Generally, the following information will be included in every notification to ODOT and/or USDOT: a)Name, address, and phone number of the complainant. b)Name(s) and address(es) of alleged discriminating official(s). c)Basis of complaint (i.e., race, color, national origin, or sex) d)Date of alleged discriminatory act(s). e)Date complaint received by the recipient. f)A statement of the complaint. 4 80 g)Other agencies (local, state, or Federal) where the complaint has been filed. h)An explanation of the actions WTS has taken or proposed to resolve the issue in the complaint. 6.Within 60 days, the Title VI Coordinatorwill conduct an investigation of the allegation and based on the information obtained, will render a recommendation for action in a report to the Woodburn City Manager. The report of will include identification of persons interviewed, findings, informal means of resolution attempted and results of such and recommended disposition. The Title VI Coordinator will provide City's investigative report and determination of appropriate action to ODOT and/or USDOT. 7.Within 90 days of receipt of the complaint, the Title VI Coordinatorwill notify the complainant in writing of the final decision reached, including the proposed disposition of the matter. The notification will advise the complainant of his/her appeal rights with ODOT, or USDOT, if they are dissatisfied with the final decision rendered by WTS. 8.Contact information for the state and federal Title VI administrative jurisdiction is as follows: ODOT Public Transit Division th 555 13Street NE Salem, OR 97301 503-986-4305 503-986-4189 fax Federal Transit Administration Office of Civil Rights Attention: Title VI Program Coordinator East Building, 5th Floor –TCR 1200 New Jersey Avenue, SE Washington, DC 20590 Record of Title VI investigations, Complaints, or Lawsuits The City of Woodburnwill maintain a list of any and all transit related Title VIinvestigations, complaints, and lawsuits. The list shall bekeptandmaintained at the Woodburn City Hall located at 270 Montgomery Street, Woodburn, OR 97071. Minority Representation on Non-elected Bodies At this time, the WTSdoes not have any non-elected bodies, committees,or councils of which it must report racialmembership rates.If the Transit system develops any non-elected bodies the City will encourage the participation of minorities in proportion to the minority makeup ofthe service area. Additionally, the City will maintain a table documenting the racialmakeupof membership of such committees. 5 81 Title VI Public Participation Plan The WTSshall strive to include minority and LEP (Limited English Proficiency) individuals in its decision-makingprocesses. This includes outreach to minority groups in Woodburn and the surrounding area. Summary of Ongoing Public Participation Effortsand Outreach In accordance with Oregon public meetings law, all public meetings,includingbudget committee and City Council meetings where resource allocation and transportation planningdiscussions and actions are taken,are open to the general public. Accommodations are available for those with limited English proficiency if requested in advance of the meeting. Passenger Surveys WTS conducts onboard rider and general awareness surveys occasionally, in both English and Spanish. Bilingual Outreach The City maintains a list of fluent Spanish-speaking employees, and can contract for Spanish interpreters, if necessary. Additionally, the City’s Outreach Coordinator has responsibility for coordinating the City’s communication and outreach activities with the Spanish speaking population. Phone Access The City has a contract with the translation service “Language Line” for phone calls taken from LEP individuals. Schedules translated in Spanish The current service schedule includes a Spanish section. New service schedules will be provided in English and Spanish and made available via paper brochures and on the WTS website. Woodburn Transit SystemLimited English Proficiency Outreach Plan WTSis required to take responsible steps to ensure meaningful access to the benefits, services, information and other important portions of our programs and activities of individuals who are Limited English Proficient (LEP). WTSconsulted the USDOT’s LEP Guidance and performed a four factor analysis of our contact with the public to determine the appropriate mix of LEP services to offer. Four Factor Analysis: Factor1: The number or proportion of LEP persons in the service area. Step1:Prior experience with LEP individuals.Over the past year, our dispatchers have taken approximately 2 calls per week from LEP persons which have required the use of an interpreter. 6 82 Step2:Data was gathered from the following sources to identify information on persons who speak languages other than English at home and those who speak English less than well or not at all and would be classified as Limited English Proficient or “LEP”: a. U.S. Census Bureau’s American Community Survey-American Factfinderdata A review of the 2018American Community Survey data (http://factfinder.census.gov) on the numbers of limited English proficient or LEP persons revealed that in Woodburn, Oregon the number of people over age 5 who speak a language other than English at home was54.4% of the total population 5 and over in Woodburn. The same data shows that 25.1% of the Woodburn populationover age 5speakEnglish less than “very well.” The data indicates the most common language other than English spoken at home for population over 5 isSpanish, with 49%. (Source: American Community Survey 5-Year Estimates, S1601, Woodburn, Oregon). Factor2: The frequency with which LEP individuals come into contact with the service. Woodburn Transit serves LEP persons daily through transit and paratransit services. Over the past year, our dispatchers took approximately 2 calls per week from LEP persons which have required the use of an interpreter. Factor3:The importance of the service to LEP persons. Woodburn Transit provides important transit services to the public through its fixed route and complementary paratransit programs. Woodburn Transit is one of a fewpublic transportation providers that serve the City of Woodburn and provides a link between residential areas, commercial centers, healthcare facilities, educational campuses, and social service offices. Language barriers would most affect users of the complementary paratransit system as reservations for the system are taken via telephone. The complementary paratransit portion of Woodburn Transit provides approximately 52% of the total rides provided through the Woodburn Transit System. Factor4:The resources available to the recipient of the federal funds to assure meaningful access to the service by LEP persons WTS currently provides some information in Spanish through bus schedules, the transit website, and information on the buses. The City of Woodburn maintains a list of employees who are fluent in Spanish and other languages, and professional translation services are available if required. WTS also contracts with “language line” to assist LEP individuals with phone inquiries. Processes for providing language assistance services by language Based on the four factor analysis, WTS recognizes the need to continue providing language services. A review of WTS relevant programs, activities and services that are being offered by the City as of October 2020include: o If a bilingual employee is unavailable, the Cityhas a contract with the translation service “Language Line” for phone calls taken from LEP individuals o Spanish speaking translators who work for the City are available upon request during normal business hours o Route and schedule information are available in Spanish on the Woodburn Transit website o Community surveys are available in Spanishlanguage Based on the demand for alternate language services, and considering the limited budget of the Woodburn Transit programs, other activities and services that will be developed in the next three years include: 7 83 o Transit surveys conducted by Woodburn Transit will be available in Spanish o Future route maps will be available in both English and Spanish o Bilingual employees will continue to be available to provide written and verbal translation services Woodburn Transit’s outreachand marketing initiatives have yielded a list of community organizations that serve populations with limited English proficiency. The following list of community organizations will be contacted to assist in gathering information and see what services are most frequently sought by the LEP population: Woodburn Public School District Hispanic Advisory Council Woodburn Area Chamber of Commerce Providing notice to LEP’s of language assistance Notice will be placedon the transit buses, transit website, and on the bus schedules, and brochures announcing the availability of Language assistance. Monitoring, evaluating and updating LEP Woodburn Transit staff will contact the community organizations that serve LEP persons, as well LEP persons themselves, and also perform a four factor analysis every three years to identify what, if any, additional information or activities might better improve transit services to assure non-discriminatory service to LEP persons. WTS will then evaluate the projected financialand personnel neededto provide the requested services and assess which of these can be provided cost-effectively. Training Employees Woodburn Transit will train all employees, staff and volunteers to proficiency regarding the need and availability of language assistance to LEP individuals who use the service. Employees will be encouraged to use the services provided when contact with LEP individuals prevents or hinders communication. This training will be provided at least annually. Primary recipients and monitoring sub recipients Currently the City of Woodburnis not a primary recipient of FTA funds and does not have any sub- recipients. Title VI equity analysis There are no current planned facilities or construction projects that require a Title VI equity analysis. 8 84 Service Standards Vehicle Load for Each Mode Standard (expressed as a ratio) The peak-hour vehicle load standards by mode for Woodburn Transit System are: Vehicle Load Standards are expressed as a ratio. (A 40 passenger bus that allows 12standees would have a load standard of 1.3) Fixed Route (35 passenger bus)1.2 Express(8passenger van).75 Demand Response (8passenger van).75 Demand Response (4 passenger van).5 Vehicle Headway for Each Mode (Time between vehicles on same route) Fixed Route (35 passenger bus)1 hour Express(8passenger van)30 min Demand Response (8passenger van)n/a Demand Response (4 passenger van)n/a On Time Performance for Each Mode May Run Early On-time Consideration (yes/no) Fixed Route (35- NO<10 minutes behind passenger bus) Paratransit (16 NO(+or –) 5 minutes passenger van) Demand Response YES(+or –) 15 minutes (16 passenger van) Demand Response YES(+or –) 15 minutes (4 passenger van) Service Availability for Each Mode The Woodburn Transit System provides equitable service availability to customers within the service area. Distribution of Transit Amenities for Each Mode The Woodburn Transit System has a policy to distribute transit amenities equally across the system. Any new amenitieswill be distributed equally across the system without regard to race or national origin of users from that service area. This applies to: 9 85 Seating and benches at stops and stations Bus shelters Provision of information including maps, route maps, and schedules Waste receptacles. VehicleAssignment for Each Mode The Woodburn Transit Systemsets a policy of vehicle assignment for each mode without regard to race, color, national origin, religion age, marital status, sexual orientation, gender, or disabilityof users from that service area. Woodburn Transit will assign vehicles with higher capacity to routes with higher ridership. Age of the vehicles will only be considered a factor when assigning vehicles to routes. 10 86 Attachment A Notifying the Public of Rights under Title VI City of Woodburn, Oregon The City of Woodburn operates its programs and services without regard to race, color and national origin in accordance with Title VI of the Civil Rights Act of 1964. Any person who believes they have been aggrieved by any unlawful discriminatory practice under Title VI may file a complaint with the City of Woodburn. For more information on the City of Woodburn’s Civil Rights Program and/ or the procedures for filing a complaint, contact Mel Gregg, Human Resources Director at (503) 982-5231 or mel.gregg@ci.woodburn.or.us or visit Woodburn City Hall at 270 Montgomery St, Woodburn, OR 97071. A complaint may also be filed directly with the Federal Transit Administration’s Office of Civil Rights at: Federal Transit Administration Office of Civil Rights Attention: Title VI Program Coordinator East Building, 5th Floor –TCR 1200 New Jersey Avenue, SE Washington, DC 20590 If information is needed in another language, please contact the City of Woodburn’s community outreach office at (503) 982-5233. Notificación al Publico bajo Los Derechos de Titulo VI Ciudad de Woodburn, Oregon Los programas y servicios de la Ciudad de Woodburn funcionan sin ninguna consideración por motivos raciales, de color y origen nacional de acuerdo con el Título VI de los Derechos Civiles de 1964. Alguna persona que cree que fue ofendido de una práctica discriminatoria ilegal bajo este Título VI puede presentar una queja con la Ciudad de Woodburn. Para más información tocante el Programa de Derechos Civiles de la Ciudad de Woodburn y/o para saber el proceso de presentar una queja, comuníquese con Mel Gregg, Director de Recursos Humanos al (503) 982-5231 o por correo electrónico al mel.gregg@ci.woodburn.or.uso visítenos en el Ayuntamiento de la Ciudad al 270 Montgomery St., Woodburn, OR 97071. Una queja también se puede presentar con las Oficinas de Derechos Civiles de la Administración Federal de Transito al: Oficinas de Derechos Civiles de la Administración Federal de Transito Atentamente: Coordinador del Programa Title VI East Building, 5th Floor – TCR 11 87 1200 New Jersey Avenue, SE Washington, DC 20590 Si necesita la información en otra idioma por favor comuníquese con la oficina del Agente Comunitario al 503-982-5233. 12 88 Attachment B City of WoodburnTitle VI Complaint Form Name: Address: City:State: Zip Code: Telephone Number: Were you discriminated against because of your: Race/EthnicityNational OriginGender ReligionAgeDisability Other: To your best recollection, date and time of alleged incident: Explain as clearly as possible what happened and how you werediscriminated against. Indicate who was involvedand if applicable, the transit route and vehicle. Be sure to include the names and contact information of any witnesses. If more space is needed, please use additional pages. ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Have you filed this complaint with any other federal, state or local agency or with any court?Yes No 13 89 If yes, check and identify all that apply: Federal Agency ________________________ Federal Court ________________________ State Agency ________________________ State Court ________________________ Local Agency ________________________ Please provideinformation for a contact person at the Agency or Court where the complaint was filed. Name: __________________________________________________________________ Address: ________________________________________________________________ City, State, & Zip Code: ___________________________________________________ Telephone Number: _______________________________________________________ Please sign below(We cannot accept unsigned complaints). You may attach any additional written materials or other information you believe is relevant to your complaint. Signature Date Please mail this form toor email: Human Resources Director City of Woodburn 270 Montgomery St Woodburn, OR 97071 hr@ci.woodburn.or.us 14 90 15 91 Agenda Item November 9, 2020 TO:Honorable Mayorand City Council THROUGH: Scott Derickson, City Administrator FROM:Chris Kerr, Community Development Director AICP,CNU-A,Senior Planner Colin Cortes, SUBJECT:Design Review DR 2019-05 Allison Way Apartments Final Decision RECOMMENDATION: Authorize the mayor to sign the attached final decision document. BACKGROUND: The City Council had called up the Planning Commission decision on the subject project pursuant to Woodburn Development Ordinance (WDO) 4.02.02 and then on July 13 and September 14, 2020held public hearings that resulted in the Council on September 14 tentatively approvingthe project the same as did the Planning Commission except that Condition: 1.EX2 is revised such that Stacy Allison Way will have 5-foot bicycle lanes; 2.V9-2 that establishes the standard of approved Variance request 2 is revised from a parking ratio minimum average of 1.77 stalls per dwelling to an absolute minimum of 1.9 stalls per dwelling; and 3.V5-3-1 that establishes the standard of approved Variance request 3 is revised from a compact parking maximum of 60% to 25%. Agenda Item Review:CityAdministrator ______CityAttorney ______Finance _____ 92 Honorable Mayor and City Council October12, 2020 Page 2 DISCUSSION: n/a. FINANCIAL IMPACT: n/a. ATTACHMENT: 1.Final Decision document (November 9,2020) with its Attachment 107 Applicant’s letter (Excludes remaining attachments listed on final decision final pagethat were attachments to the July 13, 2020 Council agenda packet) 93 Final Decision City Council File number(s): DR 2019-05, EXCP 2020-05, PP 2019-01, PLA 2019-04, & VAR 2019-04 Project name: Allison Way Apartments Date of decision: November 9, 2020 Applicant: Leeb Architects; attn Robert Leeb, Principal in Charge & Doug Hamilton, 308 SW 1st Avenue, Suite 200 Portland, OR 97204-3567 Landowner: Stacy Allison Way Holdings, Attn: Eugene Labunsky, 25030 SW Parkway Avenue, Suite 110, Wilsonville, OR 97070-9816 Site location: 0 Hooper St & 0 Stacy Allison Way NE; Tax Lots 052W14 02000, 2100, & 2300 Summary: First, the Planning Commission held a public hearing on May 28, 2020 and approved by 3-2 vote the consolidated applications package (Type III) with the conditions recommended by staff through the staff report published May 21, except for three revision items: 1.Striking transportation Condition T-BP9 that would have required the Evergreen Path, a bicycle/pedestrian path approximately 350 feet (ft) long within the unimproved Evergreen right- of- to the existing Montebello 2 subdivision bicycle/pedestrian path that connects to Baylor Drive at Citadel Street per the image below: 94 Exhibit T-BP9A. Location and Conceptual Alignment 2.Revising Street Exception Condition EX2 to omit a landscaped median from the required custom cross section of the Stacy Allison Way extension to maintain a continuous two-way left turn lane along and between Interstate 5 and the approximately 800 ft of site development frontage that has no driveways; and Exhibit EX2b revised June 2 (Median example concept not to scale.) 3.Approving variance request 2 regarding parking ratio minimum (WDO Table 3.05A, Residential 1) and setting a minimum average of 1.77 stalls per dwelling. (See Condition V9-2.) Second, the City Council called up the Commission decision on June 8, 2020 pursuant to Woodburn Development Ordinance (WDO) 4.02.02 and held a public hearings on July 13 and September 14, 2020 that resulted in the Council on September 14 tentatively approving the project per the variance excerpts of the September 1 letter of testimony that was agenda item Attachment 1 (final decision Attachment 106). The Council tentative approval results in conditions of approval the same as were in the Planning Commission decision document except that Condition: 1.EX2 is revised such that Stacy Allison Way will have 5-foot bicycle lanes (p. 10); DR 2019-05 Allison Way Apts. Council Final Decision - Page 2 of 28 95 2.V9-2 that establishes the standard of approved Variance request 2 is revised from a parking ratio minimum average of 1.77 stalls per dwelling to an absolute minimum of 1.9 stalls per dwelling (p. 22); and 3.V5-3-1 that establishes the standard of approved Variance request 3 is revised from a compact parking maximum of 60% to 25% (p. 18). Staff returned to Council on November 9, 2020 with this final decision doc signature. One party testified (besides the applicant). He is listed at the end. The request was for site development of three lots totaling 19.03 acres into 586 apartments across 23 buildings across Phases 1 & 2 such that the one parcel north/northeast of Hooper Street (5.93 acres) would be 180 apartments across 7 buildings as Phase 1 and the two parcels south/southwest of Hooper (13.1 acres) would have 406 apartments across 16 buildings as Phase 2. The buildings are three-story walk-ups, conventional for new construction. Each phase has a common building and landscaped and paved common areas. Regarding street improvements, Phase 1 includes for existing Stacy Allison Way removal of curb-tight sidewalk to install a planter with street trees and construct new, wide sidewalk. Phase 2 includes extension of Stacy Allison Way that relocates the dead-end from Hooper Street south/southwest along Interstate 5 (I-5) to city limits. The subject property is in the Commercial General (CG) zoning district. Section references are to the Woodburn Development Ordinance (WDO). DR 2019-05 Allison Way Apts. Council Final Decision - Page 3 of 28 96 Conditions of Approval: General G1. As part of building permit application, the applicant shall submit revised site plans meeting the conditions of approval and obtain Planning Division approval through sign-off on permit issuance. G2. The applicant or successors and assigns shall develop the property in substantial conformance with the final plans submitted and approved with these applications, except as modified by these conditions of approval. Were the applicant to revise plans other than to meet conditions of approval or meet building code, even if Planning Division staff does not notice and signs off on building permit issuance, Division staff retains the right to obtain restoration of improvements as shown on an earlier land use review plan set in service of substantial conformance. G3. References: The descriptions below define certain words, phrases, and assumptions in the context of the conditions of approval: -site walkway paved at least eight (8) feet wide to serve as a bicycle/pedestrian path to and from sidewalk or to and from an off-street public bicycle/pedestrian path and that is ADA-compliant. north to south. A1 is in Phase 1, and A2 & A3 are in Phase 2. two in Phase 1 and three in Phase 2 that is a landscaped linear central common area framed by three buildings for enclosing the common area. et. H1 & H2 are in Phase 1, and H3 & H4 are in Phase 2. e of travelers using a particular type of transportation or number of trips using a type, as examples walking, cycling, riding transit, and driving. MUTCDManual on Uniform Traffic Control Devices of the U.S. Department of Transportation (U.S. DOT) Federal Highway Administration (FHWA). -center spacing, such as of trees or shrubs. to the Oregon Department of Transportation. DR 2019-05 Allison Way Apts. Council Final Decision - Page 4 of 28 97 -site surface parking extending southeast and buildings. Phase 1 has one and Phase 2 has two. Lot 9) and the full extents of adjacent Allison and Hooper and the whole of their intersection. subdivision Lots 7 & 8) to be consolidated and the full extent of adjacent Allison from Hooper. refers to Public Works (the department) or public works (civil infrastructure) depending on context. . -of-way. ncrete; with a tabletop that is raised at least four (4) inches above drive aisle grade, at least six (6) ft wide, flat, and stamped or otherwise treated to have a pattern; and, with the vehicular ramps striped in compliance with MUTCD Figure 3B-30, Option A, and with minimum and maximum slope ratios of 1:25 and 1:10 respectively. standard specifications and drawings. ees that conform to the WDO, including 3.06.03A and Table 3.06B. Woodburn Transportation System Plan. to vision clearance area as WDO 1.02 and 3.03.06 establish. Woodburn Development Ordinance. fers to the Woodburn Transit System. G4. Due dates / public improvements: a.By application: Unless a condition specifies otherwise, conditions including those relating to any of final subdivision, final partition, property line adjustment or lot consolidation recordation are due by building permit application. Prior to both any recordation of any final subdivision, final partition, or property line adjustment and building permit application, the applicant shall submit and obtain approval of an Address Assignment Request. b.By issuance: Unless a condition specifies otherwise, ROW and easement dedications and recordation(s), construction of frontage/street improvements, and construction of off-site, park, and other public improvements are due by building permit issuance. Where phasing is relevant, building permit issuance means issuance for the phase in which the conditioned improvement is located. See also the Phasing Plan (PP) condition(s). DR 2019-05 Allison Way Apts. Council Final Decision - Page 5 of 28 98 G5. Recordation due dates: The applicant shall apply to the County for recordations of items that the City requires no later than six (6) months past an anticipated Planning Commission tentative decision date, i.e. by December 30, 2022, and shall complete recordations no later than almost three years past, i.e. by May 25, 2023. The due date to complete recordations shall not supersede when recordations are due relative to the building permit stage. G6. Public Improvements Civil Plan Review: The process by which to receive, review, and approve drawings and other documents related to public improvements required by these conditions of approval may be paired with or incorporated into building permit review, or, if directed by the City Engineer, through a civil engineering plans (CEP) review process led by the Engineering Division. If opting for CEP, the applicant shall not only follow the direction of the Engineer Division, but also take some actions to facilitate tracking by Planning staff and coordination with Engineering: a.Cover letter: Upon submitting application to the Engineering Division, simultaneously alert the Planning Division through a cover letter to the attention of the Planning Division referencing the intended or, if known, actual submittal date as well as the project name, project phase, tax lot number(s), street address(es), and the land use / planning / zoning final decision conditions of approval that require the public improvement that is the subject of the civil engineering plans. Referencing conditions may be by quotation or citing the identification numbers (e.g., T-A1). Identify the specific sheet (by number) or document page number that illustrates or notes how each subpart of a condition is met. b.-mail, and desired date for City staff to respond with review comments. The cover letter may include these. c.Plan copies: Submit to the attention of the Planning Division at least two plan size copies of plan sets (24 by 36 inches). Within the cover sheet title b d.Re-submittal fee: If there are multiple re-submittals, beginning with a third submittal / second revised submittal and continuing with each subsequent submittal, the applicant shall pay through the Planning Division into City general revenue a fee of $100. G-PW. Public Works: Follow the appended Public Works comments (May 19, 2020; Attachment 102A). If conflict arises between implementation of public works conditions and referenced standards in that document with implementation of the remaining conditions in this document, the Assistant City Administrator would arbitrate or mediate based on guidance from legal counsel, the Director, the Public Works Engineering Director, and the City Engineer. Design Review 2019-05 applicant shall resolve existing easements with newly required easements so as to conform to the streetside PUE minimum width of five (5) ft per WDO 3.02.01B, conform to all other conditions, and follow the direction of the City Engineer per WDO 3.02.01A. DR 2019-05 Allison Way Apts. Council Final Decision - Page 6 of 28 99 D2. Driveways: a.Number: To meet WDO 3.04.03B.1 regarding access management, the number of driveways is limited as follows: ROW Phase 1 Phase 2 Allison 1 joint (A1) 2 (A2 & A3) Hooper 2 (H1 & H2) 2 (H3 & H4) b.Approach / apron / curb cut: Driveways shall conform to PW SS&Ds, Section 4150. c.Traffic control: To meet WDO 3.05.02J: (1)Parking on site: The central and narrowest drive aisle in each of the parking courts and between Buildings P & R shall have one-way traffic to the northwest, and the applicant shall: (a)Stripe on the pavement an arrow at each of the beginning and end of each aisle; and (b)Install at the end of each aisle a do-not-enter sign that complies with MUTCD Figure 2B- 11, sign R5-1. (2)Allison: Outbound left turns are prohibited from driveway A3, and the applicant shall install a no left turn sign that complies with MUTCD Figure 2B-4, sign R3-2. D3. Cross access / joint driveway A1: To meet WDO 3.04.03B, the applicant shall: a.On Tax Lot 052W14 02300 (Town Center of Woodburn subdivision Lot 9; Phase 1): (1)Spur the easterly northeast-southwest drive aisle to the north property line of Tax Lot 052W13 01600 (subdivision Lot 10) at minimum width of twenty (20) ft minimum width between face of curb, and (2)Spur the westerly northeast-southwest drive aisle to the north property line of Tax Lot 052W13 01600 (subdivision Lot 10) at minimum width of twenty (20) ft minimum width between face of curb. b.To meet WDO 3.04.03B.1 & 3, dedicate a public access and utility easement that is to the satisfaction of the Director, revocable only with the concurrence of the Director, and connects the two bulges with driveway A1. c.Have the easement width be either (i) minimum twenty (20) ft and centered on the drive aisle centerlines or (ii) minimum twenty-eight and a half (28½) ft measured southwest from the north lot line. DR 2019-05 Allison Way Apts. Council Final Decision - Page 7 of 28 100 d.Have the easement text include a paragraph that states that the delineated easement area serves as a public access easement to the benefit of Lot 10 of the Town Center at Woodburn subdivision plat (Tax Lot 052W13 01600), and such cross access to and from the joint driveway at Stacy Allison Way shall not be revoked without concurrence of the City Community Development Director in conformance with Woodburn Development Ordinance (WDO) 3.04.03B.3. Place such text under a Cross Access & Joint Driveway Easement header. D4. Parking signage/striping: To meet WDO 3.05.02J, the applicant shall designate compact stalls ne (1) foot high minimum and stripe them as such in the field prior to building permit final inspection. D5. Parking stall double striping: To meet WDO 3.05.02K, the applicant shall delineate parking stalls with double parallel lines pursuant to Figure 3.05C and stripe them as such in the field prior to building permit final inspection. D6. Bicycle parking near main entrance: To meet WDO 3.05.03E, prior to building permit final inspection the applicant shall provide bicycle parking within fifty (50) ft of a main entrance. In the context of a new construction apartment complex with conventional three-story buildings with open stairwells, each apartment building has two main entrances as follows: a.In all apartment buildings except Phase 1 B & C and Phase 2 B, C, J, & L there are four points where a building main wall plane intersects the walkway serving building ground floor entrances and the stairwell to upper floor entrances; b.In Phase 1 Buildings B & C and Phase 2 Buildings B, C, J, & L there are six such points; c.Each building has either (a) two walkways with two points each totaling the four or (b) three walkways with six points total; and so d.The condition shall apply to three points minimum for each of Phase 1 Buildings B & C and Phase 2 Buildings B, C, J, & L and two points minimum for remaining buildings and apply to one point minimum per walkway. D7. Patios: Visual separation shall conform to WDO 3.07.05B.1a as follows: a.Pavement: As proposed, patios shall be paved with brick, concrete pavers, or poured concrete. b.Railings/fencing & gate: The outermost edges of patio concrete slabs that do not abut building walls shall have either metal or wood railings or cedar wood fencing at least three (3) ft high. If the latter, then opacity shall be full, but if fencing is higher than the minimum height, it shall be no more than ninety percent (90%) opaque, such as by being fully opaque from grade but from the top having a lattice pattern. The railings or fencing shall have a gated opening at least two (2) ft and four (4) inches wide. c.Height maximum: the railings or fencing maximum height shall be either five (5) ft or, where a patio faces a courtyard, three and a half (3½) ft. d.Shrubbery: Evergreen shrubbery shall line fully the outermost edges of patio concrete slabs, except along the gated opening. DR 2019-05 Allison Way Apts. Council Final Decision - Page 8 of 28 101 Phasing Plan 2019-01 PP1. Phases / Phasing: a.Number and extent: As Condition G3 defines. b.Order / ordering: The applicant shall construct Phase 1 first. c.Improvements: Improvements within a phase are due by that phase. d.Vesting: Construction of Phase 1 shall vest land use / planning / zoning entitlement for Phase 2; but, were the applicant (or successors and assigns) to fail to make use of any of the two provisions of WDO 4.02.04B.1 or 3 to avoid expiration, expiration shall occur upon one of the two following events: (1)The arrival of July 1, 2030; or (2)City adoption of a unified development ordinance replacing the WDO were to have intervened on or between July 24, 2023 and June 24, 2030, approximately 3 to 10 years from the anticipated land use final decision date. Property Line Adjustment 2019-04 PLA-1. Recording: To meet WDO 5.01.08B.5., upon City approval of the subject PLA, the applicant shall revise the drawing or drawings as needed and record the re-plat (or whatever it is that the County terms it) with the County. The expiration date is per WDO 4.02.04B, and were subsection 2 that refers to "the activity approved in the decision has commenced" to become relevant, that provision would mean recordation of the subject PLA, and to this end the applicant shall apply to Marion County for recordation by December 30, 2022 and complete recordation by May 25, 2023. In any case, the applicant shall record the re-plat prior to both City assignment of street addresses, which would follow the applicant submitting an address assignment request, and building permit application. Street Exception 2020-05 EX1. Hooper: a.Existing improvements: The planter strips, including curb widths, may remain 6½ ft instead of 7 ft, sidewalks may remain 5½ ft instead of 5 ft, and existing curbs may remain in place where not otherwise disturbed by newer improvements. b.Curb extensions: The applicant shall construct the proposed four curb extensions that cap the on- street parking aisles. c.Mid-block crossing: The applicant shall construct of the proposed two mid-block crossings of Hooper Street only the southeastern one and shall: (1)Construct it of poured concrete minimum width of eight (8) ft; (2)Stamp or otherwise treat the concrete to have a pattern that drivers would sense tactilely as well as visually. (3)Install ADA-compliant curb ramps and pave connections to the sidewalks. (4)Provide signage and striping per PW SS&Ds, or, if none exist for a given topic, per the direction of the City Engineer. Required signage may include two advance warning signs for drivers; and DR 2019-05 Allison Way Apts. Council Final Decision - Page 9 of 28 102 (5)Meet federal or state criteria or guidelines that the City Engineer may establish in writing as standards for the mid-block crossing. d.Crosswalk upgrade: Instead of the proposed northwestern of the two proposed mid-block crossings, the applicant shall traffic calm the crosswalk of the southeast leg of the T-intersection of Allison & Hooper. The applicant shall construct a poured concrete crosswalk at minimum width of eight (8) ft and that is either stamped or otherwise treated to have a pattern tactilely that drivers would sense tactilely as well as visually. The applicant shall stripe the crosswalk. e.Street trees: The applicant shall plant trees at 1 per 30 ft of frontage, equaling fourteen (14) trees per frontage (instead of 1 per 50 typical, 9 trees per frontage). For up to no more than two (2) of the absolute number of trees required along each frontage (4 total), the applicant may pay a fee in-lieu of $125 per tree. This fee provision is intended to substitute for the applicant invoking 3.06.03A.3 (Director modification/relocation). EX2. Allison: The City modifies and approves the street exception request as follows regarding improvements and that applies to both phases: a.Phase 1: (1)Northbound travel lane: Either narrow from twelve (12) to eleven (11) ft, or, restripe the center left turn lane from twelve (12) to eleven (11) and shift the travel lane accordingly. However, were the sidewalk described below within this list were to overlap the PUE by at least one and a half (1½) ft, if the bicycle lane is removed, or by up to four and a half (4½) ft, if the bicycle lane remains, no lane narrowing would be required. (2)Bicycle lane s: Remove or narrow to Minimum five (5) ft each. (3)Planter strip: Install a planter strip six (6) ft wide and landscape with street trees at 1 per 30 ft of frontage, equaling twenty (20) trees along the Phase 1 frontage (instead of 1 per 50 typical). The total number shall be divided evenly between either Betula pendula \[silver or European white birch\] or another Betula \[birch\] species and an evergreen species among any of Magnolia grandiflora Arbutus menziesii \[Pacific madrone\], and Tsuga heterophylla \[Western hemlock\]. Ninety- seven percent (97%) of the remainder of the strip shall be medium size category shrubbery to the minimum size at planting per Table 3.06B and at maximum size that maintains conformance with VCA, and at least two (2) distinct openings in the shrubbery that total the remaining area of three percent (3%) shall be lawn grass. (4)Sidewalk: Construct a sidewalk as a bicycle/pedestrian path at minimum width of eight (8) ft (whether or not a northbound bicycle lane remains) that the City shall allow to overlap the streetside PUE by at least a half (½) ft and as much as four and a half (4½) ft from edge of ROW. If and where sidewalk would need to deflect or meander, such as at driveway A1 or at the northeast corner of Allison & Hooper, it may fully overlap a streetside PUE. (5)Striping: (a)Bicycle: At the Phase 1 north end where the existing bicycle lane will continue at the north side of driveway A1, at the opening of the bicycle lane the developer shall stripe an MUTCD-compliant bicycle lane symbol or symbols. (b)Turn: The applicant shall stripe a turn arrow within the existing center left turn lane southbound at Hooper. DR 2019-05 Allison Way Apts. Council Final Decision - Page 10 of 28 103 (6)Utilities: Relocate underground/subsurface utilities that would conflict with street trees, such as a potable water line, and surface utilities such as street light poles and boxes to be within either or both of the planter strip and a streetside PUE. Existing covered vaults may be incorporated within altered or additional sidewalk if meeting PW SS&Ds. (7)NW side landscaping: The following applies between the project north end and the south end of the existing stormwater detention pond fencing a point approximately 330 ft southwest along Allison ROW from Hooper centerline. The applicant shall plant at least two hundred and forty-eight (248) woody shrubs of large size category as WDO Table 3.06B defines, of one or more evergreen species capable of growing to a mature minimum height of ten (10) ft (preferably Taxus brevifolia var. reptaneta \[English yew reptaneta variant\]), and with average o.c. spacing of four (4) ft. b.Phase 2 / extension: (1)Lanes, travel: Minimum width twelve (12) ft. (2)Lane, center left turn lane and turn pockets: Width eleven (11) ft. (3)Bicycle lane s: Northbound: none; and, southbound, either none or mMinimum five (5) ft each. (4)Planter strip: Install a planter strip six (6) ft wide and landscape with street trees at 1 per 30 ft of frontage, equaling forty-one (41) trees along the Phase 2 frontage (instead of 1 per 50 typical). The total number shall be divided evenly between Betula pendula \[silver or European white birch\] or another Betula \[birch\] species and an evergreen species among any of Magnolia grandiflora Arbutus menziesii \[Pacific madrone\], and Tsuga heterophylla \[Western hemlock\]. Ninety-five percent (95%) of the remainder of the strip shall be medium size category shrubbery to the minimum size at planting per Table 3.06B and at maximum size that maintains conformance with VCA, and at least six (6) distinct openings in the shrubbery that total the remaining area of five percent (5%) shall be lawn grass. (5)Sidewalk: Construct a sidewalk as a bicycle/pedestrian path at minimum width of eight (8) ft (whether or not there is a northbound bicycle lane) that the City shall allow to overlap the streetside PUE by at least a half (½) ft and as much as four and a half (4½) ft from edge of ROW. If and where sidewalk would need to deflect or meander, such as at driveways A2 and A3 or at the southeast corner of Allison & Hooper, it may farther overlap a streetside PUE. (6)Median: \[previously struck by the Planning Commission\] (7)Turn areas: At the north, the median shall \[previously struck by the Commission\] (8)NW side landscaping: The following applies between the fencing south end and the south end of extended Allison. The applicant shall plant at least two hundred and fifty-two (252) woody shrubs of large size category as WDO Table 3.06B defines, of one or more evergreen species capable of growing to a mature minimum height of ten (10) ft (preferably Taxus brevifolia var. reptaneta \[English yew reptaneta variant\]), and with average o.c. spacing of four (4) ft.: (9)Interim signage: Signed barricades remain required per WDO 3.01.05A.2.b & c. and to PW SS&Ds. The developer shall also install an MUTCD-compliant dead-end sign, either W14-1 or W14-2, at the intersection of Allison & Hooper for southbound drivers. The City Engineer may require the developer to install either (a) also at the intersection either a W14-1a or a W14- DR 2019-05 Allison Way Apts. Council Final Decision - Page 11 of 28 104 2a sign to warn drivers turning south from Hooper that Allison ends in the left direction as the arrow within the sign copy would indicate, or (b) a sign or signs serving similar purpose. Design Review 2019-05: Transportation Exhibit T Vicinity map T-A1. Evergreen & W. Hayes: The developer shall: a.Mitigation fee / Fee in-lieu: Pay a mitigation fee or fee in-lieu of $33,000 to fund a transportation study. This is due by Phase 2, building permit issuance. \[TIA\] b.Evergreen sidewalk west: See Condition T-BP2. T-A2. Allison & Evergreen: The developer shall pay a mitigation fee or fee in-lieu of $33,000 to fund a transportation study. This is due by Phase 2, building permit issuance. \[TIA\] DR 2019-05 Allison Way Apts. Council Final Decision - Page 12 of 28 105 T-A3. OR 214 & Evergreen: The developer shall pay a mitigation fee or fee in-lieu of $15,000 to fund a transportation study, specifically to investigate corridor signal timing and coordination adjustments in coordination with ODOT. This is due by Phase 1, building permit issuance. \[R10\] T-BP1. Allison & Lawson: The developer shall upgrade the T-intersection so that the south landing of either the east or west leg crosswalk has an ADA-compliant curb ramp and the crosswalk is striped. This is due by Phase 1, building permit issuance. T-BP2. Evergreen sidewalk west: The developer shall fill in the sidewalk gap along the Evergreen frontage of Tax Lot 052W12C 01600 (601 Evergreen Road). The sidewalk shall be minimum eight (8) feet wide and located no closer than one (1) ft from edge of ROW and no more than six (6) ft from edge of ROW. The developer shall to the extent feasible meander the sidewalk as needed to save existing trees in or partially within existing ROW, upgrade the intersection west leg crosswalk by installing an ADA- compliant north curb ramp, and stripe the crosswalk. This is due by Phase 1, building permit issuance. \[P6\] T-BP3. Evergreen sidewalk east: The developer shall fill in the sidewalk gap along the Evergreen frontage of Tax Lots 052W12DC01400 (2333 W. Hayes Street), 052W12DC01200 & 1300, and 052W12DB04400 (2330, 2340, & 2343 Oregon Court). The sidewalk shall be minimum six (6) feet wide and located no closer than one (1) ft from edge of ROW and no more than six (6) ft from edge of ROW. The applicant shall to the extent feasible meander the sidewalk as needed to save existing trees in or partially within existing ROW, upgrade the W. Hayes intersection east leg crosswalk by installing an ADA- compliant north curb ramp, and stripe the crosswalk. This is due by Phase 2, building permit issuance. \[P6\] T-BP4. W. Hayes sidewalk: The developer shall fill in the sidewalk gap along the W. Hayes frontage of Tax Lot 052W12C 01600 (601 Evergreen Road). The sidewalk shall be minimum six (6) feet wide. The applicant shall to the extent feasible meander the sidewalk as needed to save existing trees in or partially within existing ROW, including to align sidewalk curb-tight. Within the parameters of this condition, the sidewalk placement shall otherwise reasonably conform to WDO Figure 3.01G, particularly regarding placement relative to centerline and establishing a planter strip with street trees where they can fit. This is due by Phase 2, building permit issuance. T-BP5. Harvard curb ramp(s): At the T-intersection with W. Hayes, the developer shall install at least one ADA-compliant curb ramp at the west end of either the north or south leg crosswalk, pave new sidewalk minimum six (6) ft wide that connects to existing sidewalk, and stripe the crosswalk. The applicant shall to the extent feasible save existing trees in or partially within existing ROW, including by using returned curbs instead of flares along ramps. This is due by Phase 2, building permit issuance. DR 2019-05 Allison Way Apts. Council Final Decision - Page 13 of 28 106 Exhibit T-BP North: This exhibit illustrates locations and represents improvements related to Conditions T-BP1 through 5. Sidewalk is in blue dashes and ADA ramps are in yellow trapezoids. T-BP6. Evergreen sidewalk south: The developer shall fill in the sidewalk gap along the Evergreen frontage of Tax Lot 052W12C 02400 (0 Evergreen Road NE). The minimum width and placement shall conform to WDO Figure 3.01C, and within the planter strip the applicant shall plant at least two (2) street trees with root barriers, one each near Harvard and the driveway and to allow future adjacent site development to add trees to conform fully with the quantity required by WDO 3.06.03A (1 per 50 ft typical). This is due by Phase 2, building permit issuance. T-BP7. Evergreen / Walmart driveway curb ramp: The developer shall fill in the sidewalk gap along the Evergreen frontage of the pole of the flag lot that is Tax Lot 052W12C 01900 (3002 Stacy Allison Way) and install an ADA-compliant curb ramp at the west side of the driveway. This is due by Phase 2, building permit issuance. T-BP8. Evergreen curb ramp(s): At the T-intersection with Oxford, the developer shall install at least one ADA-compliant curb ramp at the west end of either the north or south leg crosswalk, pave new sidewalk minimum six (6) ft wide that connects to existing sidewalk, and stripe the crosswalk. The applicant shall to the extent feasible save existing street trees, including by using returned curbs instead of flares along ramps. This is due by Phase 1, building permit issuance. DR 2019-05 Allison Way Apts. Council Final Decision - Page 14 of 28 107 Exhibit T-BP South: This exhibit illustrates locations and represents improvements related to Conditions T-BP6 through 8. Sidewalk is in blue dashes and ADA ramps are in yellow trapezoids. T-BP9. Evergreen Path: \[previously struck by the Planning Commission\] T-BP10. BP fee in-lieu option: In order for the City to construct any of the bicycle/pedestrian improvements that Condition T-A1b (Evergreen sidewalk west) and the T-BP conditions above describe, a developer may pay a fee in-lieu as follows: DR 2019-05 Allison Way Apts. Council Final Decision - Page 15 of 28 108 a.Percentage estimate. b.Estimate: An estimate shall have construction cost item estimates based on the improvements being bid and approve a construction estimate prior to acceptance of a fee in-lieu payment. c.Bond/bonding/performance guarantee: If the applicant were to bond, then the above condition subparts a. and b. about percentage and estimate shall apply also to a bond. T-T. Bus transit fee: The developer shall pay a mitigation fee that is a total of a fixed base amount plus a rate per dwelling of $208.28. The fixed base amount shall be $12,510.20 for Phase 1 and $46,750 for Phase 2. (This condition relates to TSP projects T1, 2, 4, 16, 18 &, TSP Fig. F5, and TPU projects 9, 11, 12, & 20.) Variance 2019-04 V1-1. Driveway (WDO Table 3.04A): a.The minimum driveway widths shall be per the table below (instead of 24 feet typical): Minimum Driveway Width (feet) One-way Travel Two-way Travel Single Lane Paired Lanes Paired Lanes With Left Turn Lane 10 9 per lane; 18 total 20 30 total b.The maximum driveway widths shall be per the table below (instead of 38 feet typical): Maximum Driveway Width (feet) One-way Travel Two-way Travel Single Lane Paired Lanes Paired Lanes With Left Turn Lane 11 10 per lane; 20 total 22* 31 total *Except 26 ft where required by Oregon Fire Code (OFC) Appendix D c.The condition applies within ROW, and may apply outside ROW along driveway throat length, so as not to interfere with the drive aisle width provisions of WDO Table 3.05C. V2-4. Drive aisle (WDO Table 3.05C): a.The minimum drive aisle widths shall be per the table below (instead of 24 feet typical): Parking Context Minimum Drive Aisle Width (feet) One-way Travel Two-way Travel Single Lane Paired Lanes Standard or ADA-18 10 per lane; 20 total 20 compliant stalls Compact stalls 16 9 per lane; 18 total 20 No adjacent stalls 10 9 per lane; 18 total 20 b.The condition applies up to newly dedicated ROW so as not to interfere with the driveway minimum width provisions of WDO Table 3.04A. DR 2019-05 Allison Way Apts. Council Final Decision - Page 16 of 28 109 V3-5. Curb dimensions, parking area (WDO 3.06.02I): Curb or curbing that delineates on-site walkways and landscaped, parking, and vehicular circulation areas shall have a minimum height and width each of four (4) inches (instead of 6 inches typical). a.Speed table: The applicant shall construct a speed table along the walkway crossing nearest and between the Phase 2 clubhouse, play area, and Building R. (See Condition G3 for specifications.) b.Wheel stops: Wherever required or proposed, wheel stops shall be four (4) inches high maximum. V4-6. Architectural Wall (WDO Table 3.06D & 3.06.06): a.The property lines subject to the Architectural Wall provisions of Table 3.06D and 3.06.06 are exempt from those provisions. b.Landscaping: (1)Along the Phase 2 southeast and east lot lines, the applicant shall landscaped a buffer of (2)The landscaping shall include evergreen shrubbery planted at the large category minimum size per WDO Table 3.06B. (3)The applicant shall include within fifteen (15) ft of the lot lines at least twenty-one (21) trees. The applicant shall add at least four (4) trees of large category per WDO Table 3.06B for a total of 25 trees. The four additional trees shall be in the lawns near Buildings Q & R, within sixty (60) ft of the lot lines, and with one (1) near Building Q and three (3) near Building R. The proposed site perimeter tree closest to the east/northeast corner of Building R shall be changed to a coniferous or evergreen species. (4)Transformer box: Any on-site at-grade electrical transformer box shall be screened with evergreen shrubbery on all sides except the panel door side. c.Fence, cedar: Along the two segments of the Phase 2 southeast and east lot lines within six (6) ft of parking stalls that face the lot lines, the applicant shall install a treated cedar wood fence at least five (5) ft, ten (10) inches high and with boards arranged for opacity, except that the highest foot may be mostly opaque lattice pattern. Fence height shall not supersede applicable height limits per WDO 2.06.02. d.Lighting: If proposed, exterior light fixtures shall be full cut-off or fully shielded and limited in height as follows: (1)Full cut-off: Exterior lighting fixtures shall be full cut-off or fully shielded models. (2)Heights: As measured to the underside of the fixture: (a)Wall: Exterior wall-mounted fixtures shall be no higher than ten (10) feet above walkway finished grade. (This height limit is not applicable to emergency egress lighting and permanent wall signs allowed through WDO 3.10 were they to have interior illumination.) (b)Parking pole: Exterior pole-mounted fixtures within four (4) feet of or in parking, loading, and vehicular circulation areas shall be no higher than fourteen-and-a-half (14½) feet above vehicular finished grade. (c)Other pole: Remaining exterior pole-mounted fixtures, if any, shall be no higher than twelve (12) feet above grade. DR 2019-05 Allison Way Apts. Council Final Decision - Page 17 of 28 110 V5-3-1. Compact parking (WDO 3.05.03C): a.Percentage: The compact parking maximum as a percentage of the required minimum amount of parking shall be sixtytwenty-five percent (6025%; instead of 20% typical) and hundred percent (100%) of any amount in excess of the minimum required. For each phase, at least twenty percent (20%) of the minimum amount of stalls shall be compact b. high minimum. c.Wheel stops: Where used, wheel stops shall be four (4) inches high maximum. V6-3-2. Off-street parking provisions: a.Bicycle parking amount and distribution: For each phase unless otherwise specified, the applicant shall provide a minimum number of bicycle parking stalls as follows: (1)At least one (1) per dwelling in each dwelling in the outdoor closet of the balcony or patio in which the applicant shall install a wall-mounted folding or retractable hook designed for the hanging of a bicycle; (2)At least one (1) stall at the base of each building stairwell, with each of these locations having a bicycle parking sign with minimum face dimensions of (1) foot wide by one-and-a- half (1½) feet high; (3)Phase 1: Guest: Excluding outdoor closet and stairwell stalls, a set of at least two (2) stalls within five to fifteen (5-15) ft of Hooper ROW and near or along the access way; (4)Phase 2: Guest: Excluding outdoor closet and stairwell stalls, at least two sets of at least two (2) stalls each, one northwesterly within five to fifteen (5-15) ft of Hooper and one southeasterly within ninety (90) ft of Hooper ROW. (5)Phase 1: Common: Excluding outdoor closet, stairwell, and guest stalls, there shall be at least twenty (20) outdoor stalls. Of these at least four (4) shall be among the clubhouse / leasing office, clubhouse plaza, or barbeque (BBQ) area, and sixteen (16) shall be covered/sheltered. (6)Phase 2: Common: Excluding outdoor closet, stairwell, and guest stalls, there shall be at least fifty-six (56) outdoor stalls. Of these at least four (4) shall among the clubhouse / leasing office, clubhouse plaza, BBQ area and play area, two (2) shall be northeast of Building F and within ninety (90) ft of Allison ROW, two (2) shall be northeast of Building K and within ninety (90) ft of Allison ROW, and thirty-two (32) shall be covered/sheltered. (7)At least two (2) stalls outside and near each apartment building spaced to conform to the 50-foot distance provision of WDO 3.05.03E as applied through a Design Review (D) condition. (8)In no case shall the total number of bicycle parking stalls equal fewer than 1.2 per dwelling, and in no case shall the minimum coverage/sheltering from precipitation of bicycle parking be for fewer than forty-eight (48) stalls excluding outdoor closet and stairwell stalls. b.Bicycle standards: Stalls shall conform to City of Portland Title 33, Chapter 33.266.220C (amended 5/24/2018), except that the applicant may ignore subsections C6, C7, & C5c, and that C4b does not apply to the outdoor storage closets for which the minimum stall depth from wall instead shall be four (4) feet minimum. Vertical clearance instead shall be eight (8) feet or, where a stall is under stairs, six (6) feet. DR 2019-05 Allison Way Apts. Council Final Decision - Page 18 of 28 111 c.Access ways: (1)Phase 1: At least one access way shall remain as proposed that extends from Hooper sidewalk at least one-hundred and fifty (150) ft to the plaza between the clubhouse and the barbeque (BBQ) shelter. (2)Phase 2: At least one access way shall remain as proposed that extends from Hooper sidewalk at least five-hundred and fifty (550) ft from to the clubhouse southwest doors / play area. d.Walkways: (1)Courtyards: The applicant shall revise Sheets SP-1 through 3 (Exhibits 10-12; civils) and each Note 6 to illustrate and note the proposed decorative pavement of the segments of courtyard walkways that the landscape plans (Exhibits 38-42) illustrate. (2)Drive aisle crossings: The shall revise Sheets SP-1 through 3 (Exhibits 10-12; civils) and install in the field at least six (6) walkway drive aisle crossings not only as striping but also as extensions of poured concrete, listed north to south clockwise: (a)Phase 1, north of Building A (b)Phase 2, north of Building R (c)Phase 2, north of Building P (d)Phase 2, south of Building L (e)Phase 2, east of Building M, and (f)Phase 2, SW of Building K. (3)Parking courts: The applicant shall pour concrete or lay concrete pavers to form a pedestrian shortcut up and over the curbed landscaped strip island within each parking court, in order to pass amid groundcover and shrubbery. It shall be roughly aligned at the boundaries of parking stalls, with the side of a landscaped peninsula, and with the nearest walkways that orient northeast-southwest and are between buildings. The minimum width shall be twenty-one (21) inches. (4)Building stormwater scuppers shall not dump onto walkways. e.EV: As proposed and premised on OAR 918-020- minimum of either 36 stalls or three and half percent (3.5%) of minimum required parking whichever is greater shall be a designated EV stall or stalls and with a charging station or stations, which the landowner may limit to tenant use. Of 36 or more stalls, Phase 1 shall have at least twelve (12) and Phase 2 at least twenty-four (24). (1) similar and also stencil an EV image or logo. Reflect this on revised site plans. (2)Signage: Post at each stall a wall-mounted or pole- size of one (1) foot wide by one-and-a-half (1½) feet high. The top of a posted sign is to be between five-and-a-half (5½) and six-and-a-half (6½) feet above vehicular grade. Reflect this on revised site plans including with an elevation detail. f.Balconies/patios: WDO 3.07.05B.1 (area/size and narrowest dimension) shall apply as minimum standards, except that for whatever balconies and patios among those proposed exceed these dimensions, their larger areas/sizes and wider narrowest dimensions shall be the minimum standards for those. DR 2019-05 Allison Way Apts. Council Final Decision - Page 19 of 28 112 g.Common open space facilities: (1)Benches: Install at courtyards, clubhouse plazas, or common lawns at least two (2) Phase 1 benches and at least eight (8) Phase 2 benches. Each bench shall at least six (6) feet wide and with a back. In Phase 2 were 7 benches are proposed, add the eighth bench at the lawn southeast of Building M. Relocate two Phase 2 benches: 1.From NW of Building G to the lawn NE of Building R and roughly in line with the walkway drive aisle crossing; and 2.From NE of Building K to the lawn SE of Building R. (2)Clubhouse plazas and BBQ grill shelters: As proposed, build at least one (1) each of a clubhouse plaza and a barbeque (BBQ) grill shelter in each of Phase 1 and 2. (3)Administrative minor adjustment by the Director to the above common open space facilities is permissible. h.Windows: (1)Proportion: All windows shall be square or vertically proportioned, except that horizontally proportioned windows are allowed if they have grilles or muntins dividing lights or panes so as to be vertically proportioned. (2)Per room: Within apartments, every habitable room abutting a building exterior wall shall have at least one window. (3)Insect screens: All operable windows shall have insect screens. V7-3-3. Public access easement: a.Dedication: Regarding the Phase 1 proposed public park in the form of a plaza along Hooper and its related improvements, the applicant as part of re-plat recordation shall dedicate to the City a public access and utility easement encompassing the plaza and some extra perimeter area, specifically with a boundary that follows the centerlines of the walkways to the northwest and northeast that border the plaza and, to the southeast, along the back side of drive aisle curb. The easement shall grant public access during the same hours and subject to the rules and regulations for City parks per Ordinance Nos. 2060 (1991) and 2377 (2004) or as the City may amend ordinances. b.Boundary marking: The developer shall mark the public boundary through one of the following two options: (1)Caps: Metal caps that either are or mimic land survey markers, are minimum diameter of three and a quarter (3¼) inches, and at a minimum number equal to and with average placement of 1 cap per 10 lineal ft of walkway. There shall be two additional caps along the boundary where it follows the drive aisle curb. (2)Plaques: Metal plaques embedded within walkway concrete, aligned with the boundary, read by persons looking away from the plaza. The minimum size shall result from a minimum lettering height of two (2) inches, and the minimum number shall be equal to and with average placement on center of 1 plaque per 20 lineal ft of walkway. There shall be two additional plaques along the boundary where it follows the drive aisle curb. DR 2019-05 Allison Way Apts. Council Final Decision - Page 20 of 28 113 c.Sign: Public 7AM - 10PM April - September, & 7AM - 7 PM October - height of two (2) inches. The developer shall place it near the plaza entry that is along the sidewalk and within five (5) to nine (9) ft of ROW. (1)If a monument sign type, the sign face area shall be twelve (12) sq ft minimum, with a flat top at least three (3) ft above grade and in the form of a concrete cap at least three (3) inches wide. (2)If a pole sign type, the lettering shall be green, and the sign face shall be no lower than three and a half (3½) ft above grade and no higher than five (5) ft and of minimum dimensions of two (2) ft by one-and-a-half {1½) ft. d.Due date: These shall be due by Phase 1, building permit issuance. V8-3-4. Parking management: a.Survey: The applicant or any successor and assigns such as a property manager shall collect data about off-street parking usage or allocation and provide it to the City to the attention of the Director. (1)Reporting period: Collect data by each half of a year January through June and July through December. Submit each biannual report by the last City business day in the last month of the next quarter of a year and that is not a federal holiday. (For example, a report for January through June 2022 would be due by September 30, 2022.) (2)First report: The first report shall cover whatever irregular length of time would pass between phase occupancy and the end of the next half of a year ending June or December. (3)Attributes: Collect and report on: (a)Geography: Report numbers divided between Phases 1 & 2 (as defined in Condition G3). (b)The number of off-street spaces/stalls that are available and how many, if any, are closed due to occasional events such as parking area resurfacing, temporary outdoor events, outdoor storage, or the stationing of large trucks or truck trailers. (c)Track stalls and usage by type: regular standard size, regular compact, accessible/ADA/handicap, EV, and any other type (such as those designated for visitors, leasing office employees, staff golf cart, or mail carrier). (d)Collection: The property manager shall do field counts as per condition subpart (4 agreements, i.e. what tenant households are allocated a stall or stalls and for what periods, assumed that stalls are occupied as lease agreements describe. (e)Usage: Report how many stalls are used and allocated. For vacant apartments in the context of assumed counts, record stalls associated with vacant apartments as unallocated. (f)If and when a parking area resurfacing project were to happen, provide written notice to the Director of approximate start date and duration, location, and number of stalls involved. DR 2019-05 Allison Way Apts. Council Final Decision - Page 21 of 28 114 (g)Format: Use tables to report by phase absolute numbers and percentages of stall type occupancies. Include phase and sitewide totals. (4)Field count: The property manager shall do at least two field counts per reporting period, meaning to travel the project and count in real time occupied and vacant stall types such as by marking a project site plan. Each count shall be on Tuesday, Wednesday, or Thursday that is neither a federal holiday nor within a week (7 days) of a federal holiday. One count shall be daytime starting no earlier than 9:30 a.m. and concluding no later than 4:30 p.m., and one count shall be nighttime starting no earlier than 10:00 p.m. and concluding no later than 12:30 a.m. Report when on a given date the counts were done and how long it took, for example, from 11:30 a.m. to noon. (5)Bicycle parking: For outdoor bicycle parking stalls, including those within stairwells but excluding outdoor closets, the property manager shall also do field counts the same way as per condition subpart (4) above and as part of the larger report confirm the total number of existing outdoor bicycle stalls. (6)Parking demand management: The reporting that a parking demand management condition requires, if it exists, may be incorporated with the parking usage data collection report. (7)Context: In each report, cite the project name, phases, street addresses, master/parent case file number DR 2019-05, and the condition identification(s), state what period the report covers, state the number of vacant apartments and when and how the number was determined given fluctuation over six months, and provide an employee name and direct contact information for questions City staff might have. (8)Intent: It is not the express intent of this condition to police property management or punish tenants or management for perceived misuse of parking, but instead without judgment to collect data on how parking is actually used in a conventional large apartment complex. (9)Change of ownership: If and when property ownership were to change, the property manager shall pass along record of the conditions of approval to the contract purchaser and successive property manager. (10)Expiration: This parking usage/allocation data collection condition becomes optional as of July 1, 2031. If reporting were to cease, the last report for the January to June 2031 period would be due September 30, 2031. V9-2. Parking ratio minimum: a.The minimum ratio shall be by unit type as follows for each: (1)Studio dwelling, 1.0 stall; (2)One-bedroom, 1.0 stall; (3)Two-bedroom, 1.77 stalls; and (4)Three or more bedroom unit type, 4.14; which would result in an average of 1.771.9 stalls per dwelling based on the unit type mix across both phases. DR 2019-05 Allison Way Apts. Council Final Decision - Page 22 of 28 115 b. c.Trial period: Until July 1, 2025, there shall be a trial period in which the Director may receive evidence of a chronic parking overflow problem and choose to investigate, review, and act upon it, including by obtaining the latest documentation of any parking permit system were the property manager to have instituted and be managing such. (1)This condition authorizes the Director to require that the applicant or any successors and assigns apply for and receive approval of a solution to the satisfaction of the Director. The review shall default to a Type II process, but the Director may instead elevation the review to Type III to obtain Planning Commission review and decision. (2)The Director may condition that the applicant or any successors and assigns fulfill the offer made through the revised narrative (submitted March 25, 2020, p. 12; Attachment 106) to contact a car share company and allow a parking space or two to be allocated such a company car or cars for tenant use. (This condition does not supersede WDO 4.02.07 Modification of Conditions.) d.EV: The property manager: (1)Shall keep EV stalls available for EVs and plug-in hybrid vehicles and keep conventional gasoline vehicles from parking in them. Priority users shall be tenants and property management company employees; guests/visitors would be secondary. (2)May charge EV stall users for the costs of charging an EV through a charging station, but shall not (a) charge tenants for either simply parking an EV or plug-in hybrid vehicle in an EV stall or for leaving such a vehicle parked without actively charging, and (b) shall charge to recoup costs to the property manager and not generate profit for the property manager. (This does not preclude the property manager contracting with a for-profit company to manage EV charging stations). (3)Regardless of whether tenant demand is less than, meets, or exceeds the sitewide supply of EV stalls, may whether or not the manager expands supply institute a permit system, including a waiting list and assigning a tenant EV to a particular delineated group or zone of stalls, and as part of doing so shall not charge any fee that discriminates among particular EV parking stalls based on the perception of some stalls being more convenient or otherwise desirable than others. an the combined supplies of Phases 1 and 2, regardless of any division of property management between the two phases. Expiration: Per Woodburn Development Ordinance (WDO) 4.02.04B., a final decision expires within three years of the date of the final decision unless: 1.A building permit to exercise the right granted by the decision has been issued; 2.The activity approved in the decision has commenced; or 3.A time extension, Section 4.02.05, has been approved. DR 2019-05 Allison Way Apts. Council Final Decision - Page 23 of 28 116 Notes to the Applicant: The following are not planning / land use / zoning conditions of approval, but are notes for the applicant to be aware of and follow: 1.Records: Staff recommends that the applicant retain a copy of the subject approval. 2.Fences, fencing, & free-standing walls: The approval excludes any fences, fencing, & free-standing walls, which are subject to WDO 2.06 and the permit process of 5.01.03. 3.Signage: The approval excludes any private signage, which is subject to WDO 3.10 and the permit process of 5.01.10. 4. three years of the date of the final decision unless: 1. a building permit to exercise the right granted by the decision has been issued; 2. the activity approved in the decision has commenced; or 3. a time extension, Section 4.02.05, has been approved. Because unrecorded re-plats lingering indefinitely have burdened staff, a condition sets sooner time limits for subsection 2. to begin and finish recordation. 5.Mylar signature: The Community Development Director is the authority that signs plat Mylars and not any of the mayor, City Administrator, Public Works Director, or City Engineer. Only one City signature title block is necessary. 6.PLA Plat Tracker: Marion County maintains a plat tracking tool at <http://apps.co.marion.or.us/plattracker/>. Use it to check on the status of a recordation request to the County. City staff does not track County plat recordation. 7.Technical standards: a.Context: A reader shall not construe a land use condition of approval that reiterates a City technical standard, such as a PW standard, to exclude remaining standards or to assert that conditions of approval should have reiterated every standard the City has in order for those standards to be met. b.Utilities: A condition involving altered or additional sidewalk or other frontage/street improvement that would in the field result in displacement or relocation of any of utility boxes, cabinets, vaults, or vault covers does not exempt the developer from having to move or pay to move any of these as directed by the City Engineer and with guidance from franchise utilities. 8.Other Agencies: The applicant, not the City, is responsible for obtaining permits from any county, state and/or federal agencies, which may require approval or permit, and must obtain all applicable City and County permits for work prior to the start of work and that the work meets the satisfaction of the permit-issuing jurisdiction. The Oregon Department of Transportation (ODOT) might require highway access, storm drainage, and other right-of-way (ROW) permits. All work within the public ROW or easements within City jurisdiction must conform to plans approved by the Public Works Department and must comply with a Public Works Right-of-Way permit issued by said department. Marion County plumbing permits must be issued for all waterline, sanitary sewer, and storm sewer work installed beyond the Public Right-of-Way, on private property. DR 2019-05 Allison Way Apts. Council Final Decision - Page 24 of 28 117 9.Inspection: The applicant shall construct, install, or plant all improvements, including landscaping, prior to City staff verification. Contact Planning Division staff at least three (3) City business days prior to a desired date of planning and zoning inspection of site improvements. This is required and separate from and in addition to the usual building code and fire and life safety inspections. Note that Planning staff are not primarily inspectors, do not have the nearly immediate availability of building 10.Stormwater management: The storm sewer system and any required on-site detention for the development must comply with the City Storm Water Management Plan, Public Works storm water practices and the Storm Drainage Master Plan. 11.Public Works Review: Staff performs final review of the civil plans during the building permit stage. Public infrastructure must be constructed in accordance with plans approved by the City, as well as current Public Works construction specifications, Standard Drawings, Standard Details, and general conditions of a permit type issued by the Public Works Department. 12.ROW: a.Dedication: The Public Works Department Engineering Division has document templates for ROW and easement dedications that applicants are to use. ROW and public utility easement (PUE) dedications are due prior to building permit issuance per Public Works policy. b.Work: All work within the public ROWs or easements within City jurisdiction must require plan approval and permit issuance from the Public Works Department. All public improvements c 13.Franchises: The applicant provides for the installation of all franchised utilities in any required easements. 14.Water: All water mains and appurtenances must comply with Public Works, Building Division, and Woodburn Fire District requirements. Existing water services lines that are not going to be use with this new development must be abandoned at the main line. The City performs required abandonment of existing water facilities at the water main with payment by the property owner. All taps to existing ctors. The applicant shall install the proper type of backflow preventer for all domestic, lawn irrigation and fire sprinkler services. The backflow devices and meters shall be located near the city water main within an easement, unless approved otherwise by Public Works. Contact Byron Brooks, City of Woodburn Water Superintendent, for proper type and installation requirements of the backflow device at (503) 982-5380. 15.Grease Interceptor/Trap: If applicable, a grease trap would need to be installed on the sanitary service, either as a central unit or in the communal kitchen/food preparation area. Contact Marion County Plumbing Department for permit and installation requirements, (503) 588-5147. 16.Fire: Fire protection requirements must comply with Woodburn Fire District standards and requirements, including how the District interprets and applies Oregon Fire Code (OFC). Place fire hydrants within the public ROW or public utility easement and construct them in accordance with DR 2019-05 Allison Way Apts. Council Final Decision - Page 25 of 28 118 Public Works Department requirements, specifications, standards, and permit requirements. Fire protection access, fire hydrant locations and fire protection issues must comply with current fire codes and Woodburn Fire District standards. See City of Woodburn Standard Detail No. 5070-2 Fire Vault. The fire vault must be placed within the public right-of-way or public utility easement. 17.SDCs: The developer pays System Development Charges prior to building permit issuance. Staff will determine the water, sewer, storm and parks SDCs after the developer provides a complete Public Works Commercial/Industrial Development information sheet. Appeals: Per WDO 4.01.11E., the decision is final unless appealed pursuant to Oregon Revised Statutes (ORS), state administrative rules, and WDO 4.02.01. The appeal to City Council due date is twelve (12) days from the mailing date of this final decision notice per 4.02.01B.1. A valid appeal must meet the requirements of 4.02.01. A copy of the decision is available for inspection at no cost, and the City would provide a copy at reasonable cost at the Community Development Department, City Hall, 270 Montgomery Street, Woodburn, OR 97071. For questions or additional information, contact Vicki Spitznogle, Administrative Assistant, at (503) 982-5246 or vicki.spitznogle@ci.woodburn.or.us. DR 2019-05 Allison Way Apts. Council Final Decision - Page 26 of 28 119 Attachments: Planning Commission May 28, 2020 Staff Report Attachment 101. Tax Maps Marked (2 sheets) 101A. Town Center at Woodburn Subdivision Plat, Sheet 1 (2004) 102A. Public Works Comments May 21, 2020 (2 pages) 104. Transportation System Plan (TSP) Figure 7-1 (2005) 105. Site plans excerpted (submitted Mar. 25, 2020; 16 sheets) 105A. Site plans revised (submitted Sept. 1, 2020; 3 sheets; new attachment) 106. 12 (submitted Mar. 25, 2020) 107letter (submitted Sept. 1, 2020; 4 pages; new attachment) Sincerely, Colin Cortes, AICP, CNU-A Senior Planner Affirmed, ________________________________ November ____, 2020 Eric Swenson, Mayor CP/cmc cc: Chris Kerr, Community Development Director Dago Garcia, P.E., City Engineer Ted Cuno, Building Official Jason Space, GIS Technician Robert Leeb, Principal in Charge, Leeb Architects (applicant) Doug Hamilton, Leeb Architects (project manager) Eugene Labunsky, West Coast Real Estate Holdings (landowner) Testifiers (1): Stephen D. Rippeteau (562 Prairie St, Woodburn, OR 97071-4496) DR 2019-05 Allison Way Apts. Council Final Decision - Page 27 of 28 120 Casey Knecht, P.E., Development Review Coordinator, Oregon Dept. of Transportation (ODOT) Region 2 Marion County Public Works Dept. DR 2019-05 Allison Way Apts. Council Final Decision - Page 28 of 28 121 122 123 124 125 Agenda Item November 9, 2020 TO:Honorable Mayor and City Council FROM:Jim Row, Assistant City Administrator McKenzie Granum, Assistant City Attorney SUBJECT:Memorandum of Understanding (MOU) with Portland General Electric (PGE) RECOMMENDATION: Authorize the City Administrator to sign the enclosed MOU with PGE, which serves to memorialize the City’s commitment to resolve PGE’s concerns with the proposed Utility Services Ordinance prior to the June 30, 2023 expiration of PGE’s franchise agreement with the City. BACKGROUND: Earlier this year, staff initiated a review of the City’s process for regulating utility services providers’ use of the City’s ROW. At that time, staff retained ROW Consultants LLC to develop a Right of Way (ROW) Management Program, including a Utility Services Ordinance and associated fee structure. Prior to it being presented to the City Council at their regular meeting in September, thedraft ordinance was distributed toutility providers for their review. The City received written feedback from four providers, including PGE. Subsequent discussions with PGE highlighted the fact that electric utility providers are uniquely different from other providersand that some of the sections in the ordinance should be modified as it pertains to those types of services. : DISCUSSION During discussions with PGE, City staff agreed that PGE’s comments and requested modification were valid and should be addressed, either through changes to the Utility Services Ordinance, the execution of a “short form” franchise, or the renewal of a traditional franchise agreement that would be specific to the electric utility services provided by PGE. Agenda Item Review:City Administrator __x____City Attorney __x____Finance __x___ 126 Honorable Mayor and City Council November 9, 2020 Page 2 Staff agreed that these issue would need to be resolved prior to the June 30, 2023 expiration of PGE’s current franchise agreement. The enclosed MOU serves to memorialize the City’s and PGE’s agreement to do so. With MOU in place, PGE has expressed their support for the Utility Services Ordinance and associated fee structure, as presented to the City Council on tonight’s agenda. : FINANCIAL IMPACT N/A 127 MEMORANDUM OF UNDERSTANDING Portland General Electric Franchise Agreement This Memorandum of Understanding (MOU) is entered into by and between the City of Woodburn (City) and Portland General Electric Company (PGE), and is for the purpose of memorializing the agreementof both parties to address issues that are unique to the provision of electric utility services and to ensure that these matters are resolved prior to the June 30, 2023 expiration of PGE’s Franchise with the City. Whereas,inearly2020, staff retained ROW Consultants LLC to develop a Right of Way (ROW) Management Program, including a Utility Services Ordinance and associated fee structure; and Whereas,The ROW Management Program has many benefitsto the City; and Whereas, PGE provided comments to the City regarding concerns they have with the draft Utility Services Ordinance; and Whereas, the City agrees that electric power providers are uniquely different fromother utility services providers; and Whereas, PGE’s Franchise Agreement with the City expires on June 30, 2023; and Now,Therefore, the parties have agreed to address the unique needs of electric utility providers prior to the June 30, 2023 expiration of PGE’s Franchise Agreement with the City. These issues may be resolved through future edits to the Utility Services Ordinance, the execution of a “short form” franchise that addresses the limited number of issues specific to electric utilities, or the renewal of a traditional Franchise Agreement with PGE. In Witness Whereof, the parties have caused this MOU to be signed in their respective names by their duly authorized representatives as of the dates set forth below: CITY OF WOODBURNPortland General Electric Company City AdministratorDateVice PresidentDate 128 Agenda Item November 9, 2020 To: Honorable Mayor and City Council through City Administrator From:Chris Kerr,Community Development Director Subject:Call-Up Briefing:Planning Commission Approval of a Conditional Use and Variance application package for AT&T Cell Tower at 1414 Commerce Way (CU 2020-02 & VAR 2020-07) RECOMMENDATION: Staff recommends noactionand briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO)Section 4.02.02.The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. BACKGROUND: The subject property is within the Light Industrial (IL) zoning district and a portion of the property is within the Riparian Corridor and Wetlands Overlay District (RCWOD). The proposal included a 100-foot tall monopole telecommunications facility with additional site improvements including a paved driveway and screening around the base of the facility.The image to the right is a rendering of what the facility will look like. Telecommunications facilities are a “Specific Conditional Use” within the IL zone and have certain review criteria they must meet, including provisions for setbacks, height, visual impact, noise, lighting, and others. Agenda Item Review:City Administrator ___x___CityAttorney __x____ 129 The applicant’s Variance application included requests to waive the following Woodburn Development Ordinance (WDO) provisions: WDO 3.01.01, 3.01.02A, 3.01.03, 3.01.04, and Figure 3.01F –Dedication of right-of-way andconstruction of minimumstreetimprovements along Commerce Way; WDO 3.02.01B –Dedication of a 5-foot public utility easement along Commerce Way; WDO 3.02.02A –Dedication of a public use easement for the RCWOD overlay area on the subject property; WDO 3.02.03A –Installation of street lighting along Commerce Way; and WDO 3.06.03A –Installation of street trees along Commerce Way. The Planning Commissionheld apublic hearing onOctober 8, 2020for the proposal. Prior to the hearing, staff received written testimony from the applicant and from opponents of the proposal. Both the applicant and opponents presented oral testimony during the hearing. A request was made to continue the hearing and the Commission voted to continue the hearing until October 29, 2020. Staff received additional written testimony from the applicant and from opponents prior to the October 29 continuation of the public hearing. In response to concerns raised at the October 8 meeting, staff recommended a new condition be addedto require the applicant fix any damage done to the gravel portion of Commerce Way during construction of the cell tower. At the October 29 meeting, the Planning Commission heard additional oral testimony from the applicant and opponents, closed the public hearing, and deliberated. Commissioners foundthe applicant’s arguments in favor of the Variance to be compelling and unanimously approved the application with the conditions recommended by staff, except that the condition to dedicate easements over the RCWOD area was removed. Variance requests to waive the following requirements were denied: Dedication of right-of-way along Commerce Way; and Dedication of a 5-foot public utility easement along Commerce Way. Variance requests to waive the following requirements were approved: Construction of minimum improvements along Commerce Way; Dedication of a public use easement for the RCWOD overlay area on the subject property; Installation of street lighting along Commerce Way; and Installation of street trees along Commerce Way. 130 Agenda Item November 9, 2020 To: Honorable Mayor and City Council through City Administrator From:Chris Kerr,Community Development Director Subject:Call-Up Briefing:Planning Commission approval of a Design Review andProperty Line Adjustmentapplication package forLa Morenita Tortilla Bakery at 2230 & 2400 N. Pacific Hwy (DR 2020-05 & PLA 2020- 03) RECOMMENDATION: Staff recommends noactionand briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO)Section 4.02.02.The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. BACKGROUND: The subject properties are within the Commercial General (CG) zoning district. The proposal included a Property Line Adjustment to consolidate the three lots and a Design Review to construct a new 44,400 square foot commercial tortilla bakery with frontage improvements to N. Pacific Highway and on-site landscaping and parking upgrades.The image to the right is a colored site plan of the proposal. Agenda Item Review:City Administrator ___x___CityAttorney __x____ 131 The west (front) façadeof the proposed building. The Planning Commission held a public hearing on October 22, 2020 and unanimously approved the application package with the conditions recommended by staff, except the Commission voted to modify two conditions. No parties testified in opposition to the proposal. The first modified condition is related to a public utility easement along the north property line, required in order to reserve the area for a future streetidentified in the Transportation System Plan. The condition was modified to state the property owner would receive compensation in accordance with state and federal law if and when the easement was modified to include allowance for public access, or if and when the area covered by the easement was dedicated as right-of- way. The second modified condition was a Public Works condition regarding street lighting along N. Pacific Hwy. The condition was modified to only be applicable if street lighting is required by Oregon Department of Transportation (ODOT). 132 Agenda Item November 9, 2020 To: Honorable Mayor and City Council through City Administrator From:Chris Kerr,Community Development Director Subject:Call-Up Briefing: Planning Commission Approval of a Modification to Conditions of Approval forMid Valley Community Church at 591 Gatch Street (MOC 2020-01) RECOMMENDATION: Staff recommends noactionand briefs the Council on this item pursuant to Woodburn Development Ordinance (WDO)Section 4.02.02.The Council may call up this item for review if desired and, by majority vote, initiate a review of this decision. BACKGROUND: In September 2017, the Planning Commission approved a land use package for a new gymnasium building for Mid Valley Community Church. Several months later, in November 2017, a code enforcement case was opened for an illegal gravel driveway within the Riparian Corridor and Wetland Overlay District (RCWOD)on the church’s property.In response to the code enforcement case, the church applied for a Variance to the prohibited uses within the RCWOD. On January 24, 2019, the Planning Commission approved the Variance applicationwith conditions, allowingforthe temporary use of thegravel driveway. Rather than removing the driveway immediately, the applicant was afforded additional time to allow it to be usedfor construction of the gym building. A condition of approval for this Variance was to remove the driveway curb cut along Young Street and restore the street improvements, due by either October 31, 2020 or upon building permit final inspection, whichever came first. An image on the following page illustrates the driveway’s location on the property. Agenda Item Review:City Administrator ___x___CityAttorney __x____ 133 Site plan showing the gym building in yellow and the illegal gravel driveway in red. In September of this year, the church indicated that it did not anticipate being able to meet this deadline and submitted a Modification of Conditions of Approval application on September 15, 2020. Therequest was to modify the due date of thecondition mentioned on the previous pageto instead be simply by building permit final inspection. Staff was amenable to granting the applicant more time, but not an indefinite amount of time. Because the gravel driveway in question is prohibited within the RCWOD and is part of a code enforcement case, staff wanteda“date certain” its removal. Staff therefore recommendedthe conditiondue datebe modified to be July 1, 2021or building permit final inspection, whichever comes first. On October22, 2020, the Planning Commission held a public hearing and unanimously approved the modification as recommended by staff. No parties testified in opposition. 134