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HomeMy WebLinkAbout2007-1106 Council Mtg Packet CITY OF ASHLAND VII. VIII. ~ ~~~ AGENDA FOR THE REGULAR MEETING ASHLAND CITY COUNCIL November 6, 2007 Civic Center Council Chambers 1175 E. Main Street 6:30 p.m. Executive Session to discuss pending litigation pursuant to ORS 192.660(2)(h) 7:00 p.m. Regular Meeting I. CALL TO ORDER II. PLEDGE OF ALLEGIANCE III. ROLL CALL IV. MAYOR'S ANNOUNCEMENT OF BOARD AND COMMISSION VACANCIES V. SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS? [5 minutes} ^ Study Session of October 15, 2007 Z Executive Session of October 16, 2007 YRegularCouncil of October 16, 2007 SPECIAL PRESENTATIONS & AWARDS l. / .,\ 1. Presentation of FEMA Award to the City of Ashland -. ~bIL flQ.~ C';(!..rq9fr. ~ ~ CONSENT AGENDA [5 minutes} 1. Does the Council accept the Minutes of Boards, Commissions, and Committees? 2. Should Council accept the quarterly report as presented? . 3. What will the community process be for the City Facilities Master Plan and Updated ......-space Needs Analysis? vr. Will the Council conti the Mayor's appointmen f Bill Molnar to be the City's Community Developmen Ire n approve the attached employment agreement? VI. PUBLIC HEARINGS (Testimony limited to 5 minutes per speaker, unless it is the subject of a Land Use Appeal. All hearings must conclude by 9:00 p.m., be continued to a subsequent meeting, or be extended to 9:30 p.m. by a two-thirds vote of council {AMC S2.04.040}) 1. Does the Council want to reject the appeal of the Meadowbrook Subdivision SDC credits and affirm the staff calculation of SDC credit at $63,075 or grant the appeal and award the SDC credits in a greater amount or partially grant the appeal by COUNCIL MEErINGS ARE BROADCAST LIVE ON CHANNEL 9 VISIT THE CITY OF ASHLAND'S WEB SITE AT WWW.ASHLAND.OR.l!S ~-~. --------- -.._--._-- -...--- considering other aspects of the developer's improvements that may be eligible for additional credits? ..-2. Does the Council find that the negotiated development agreement (Verde Village) that governs a land exchange, three annexations, a Comprehensive Plan Map and Zone change, and Outline Plan and exception to street standards, a physical constraints review permit, and a tree removal permit is consistent with State law, City Code and City policies either as presented or as modified? IX. PUBLIC FORUM Business from the audience not included on the agenda. (Total time allowed for Public Forum is 15 minutes. Speakers are limited to 5 minutes or less, depending on the number of individuals wishing to speak.) [15 minutes maximum] X. UNFINISHED BUSINESS None. XI. NEW AND MISCELLANEOUS BUSINESS None. XII. OR NANCES RESOLUTIONS AND CONTRACTS Shall the Council approve the second reading of an ordinance amending chapter 15 of the Ashland Municipal Code adopting the 2007 Oregon Fire Code with Ashland . ~mendments? vv. I?oes the Council want to ado a Resolution e led "A Resolution exempting the Ashland Solar Pioneer II Projec erformance Bonding Requirement"? 3. Does the Council wish to formally invoke the recreational immunity laws as defined in ORS 105.682? /' Should Council approve second resolution adjus I g the FY 2007.2008 Budget to create appropriations a u orlze ex ure of assest forfeiture revenues received in conjunction with the City's participation in the regional drug enforcement /. eprogram? I~ "' ,. Does the Council wish to ~C!QQ!A!J ordin.ance amending the Ashland Municipal Code 2.04 Rules of the City Council? 6. Should the Council finalize the last step of including within the Ashland City Limits approximately 8A.acres of industrial and employment zoned land, by approving first reading of an ordinance formally annexing the property and withdrawing the property from Jackson County Fire District NO.5? XIII. OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS XIV. ADJOURNMENT In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Administrator's office at (541) 488.6002 (TTY phone number 1.800.735. 2900). Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102.35.104 ADA Title I). COUNC:IL MEETINGS ARE BROADCAST LIVE ON CHANNEL 9 VISrrl1IE CITY OF ASHLAND'S WEB SIIE A1 WWW.ASHLAND.OR.LJS u.s. Department of Homeland Security Region X 130 228lh Slreel, SW BOlheJl. WA 98021-9796 October 12, 2007 ;-~~~~ ~.~~~~c.~.) FEMA -~~~--- r1Nll ~~~ rnn I~ rF IE -n-\~rT~ i~~~' 1 V L~ ~I) ., ., ... -- OCT 1 8 2001 The Honorable John Morrison Mayor, City of Ashland 20 East Main Street Ashland, Oregon 97520 By -~,-----~--- -.------. Dear Mayor Morrison: I would like to congratulate your community for its commitment to wise floodplain management through your participation in the Community Rating System (CRS) of the National Flood Insurance Program (NFIP). The CRS recognizes local efforts to reduce future flood losses by reducing flood insurance premiums for a community's property owners by 5% to 45%. Some of the flood preparedness efforts credited under CRS include: maintaining open space in the floodplain, elevating new buildings beyond the minimum NFIP protection level, initiating storm- water management programs, and mapping flood hazards, just to name a few. As the enclosed plaque highlights, Ashland is currently a Class 7 community in the CRS. This rating translates into a premium savings of 15% for each flood insurance policyholder located in the designated floodplain in your community. Communities participating in the CRS not only reduce flood insurance premium rates for their constituents, but also limit future economic losses caused by flooding with the mitigation and preparedness efforts undertaken through the CRS. Again, I commend you for your work in reducing future flood damages through participation in the CRS. If you have any questions concerning the CRS or how to increase your rating, please contact Ms. Linda Ryan, ISO Commercial Risk Services at (503) 842-0029, or John Graves, at (425) 487-4737. Sincerelyt (I t~!VJl ccvwt1 Mark Carey, Director Mitigation Division Enclosure cc: Amy Anderson, Assistant Planner, Ashland Chris Shirley, Department of Land Conservation and Development, Salem www.fcma.gov ASHLAND CONSERVATION COMMISSION MINUTES These minutes will be approved by the Conservation Commission at the November 2Efh, 2007 meeting. 7 p.m. - October 24, 2007 Siskiyou Room Community Development Building 51 Winburn Way CALL TO ORDER Chairperson Chapman called the meeting to order at 7:00pm in the Siskiyou room at the Community Development Building. The Commission members introduced themselves to the two guests present, Jennien Rossa and Donelle Miranda. Allendees: Risa Buck, Russ Chapman, Stuart Corns, Ross Finney, Jim Hartman, Jim McGinnis and Tracy Harding. Melisssa Schweisguth was not present. APPROVAL OF MINUTES Chairperson Chapman asked for an approval of the September 26, 2007 minutes. The following corrections were noted: Commissioner Buck clarified, North Mountain park will contribute $10.00 per bin, when match by the Conservation Commission toward a citizen's purchase of a compost bin. The following correction was read in reference to a leller of appreciation that was read to the Commission about their purchase of Green Tags at the last meeting. The Green Energy Fee instated by the student vote is in effect for 3 years, through June 2010. It is anticipated that the number of Green Tags needed to cover campus-wide energy use will decrease annually due to conservation strategies being employed by SOU Facilities Management; the number of Green Tags purchased will be adjusted to match actual energy data usage each year. The total purchase over 3 years will be under $410,000. Commissioner Hartman moved to accept the addendum into the minutes, seconded by Commissioner Finney. Voice Vote: All Ayes Chairperson Chapman stated Approval of the minutes as amended without objection. PUBLIC FORUM Huelz Gutcheon introduced himself to the guests/new members of the Commission and explained briefly about Zero Net Energy Homes. Jeannine RossalTalent spoke to the Commission on behalf of the Bear Creek Watershed Council. She explained the intent of the Watershed Council and the assessment they are currently conducting. Her common goal was to link and share information with all concerning parties that might be interested and affected by the assessment. Commissioner Finney feitthere might be a good Educational opportunity supporting the Council in some way. She will bring back to the Council the Bear Creek Watershed's action plan when it is finalized. She may be reached at ecolink1@earthlink.net. ASHLAND SANITARY & RECYCLING UPDATE Commissioner Buck reported: . The successful E-Way Electronic Collection Day in Medford, filling up six (6) 53 foot trailers of electronic waste. . 26 people attended the final compost class this year, bringing the annual total to 96. . Free Fall nursery recycling will be Nov 6th _20th . Free leaf drop off at the recycling center will be two (2) Tuesdays in November, the 6th and the 20th . Commissioner Buck explained about a New Program that will be subsidized by The City of Ashland. Vouchers sold at the Community Development Center for 5 Leaf Bags, which hold up to 35 pounds of leaves, would be % the cost to the citizens, with the City subsidizing the rest of the cost. During the months of NovemberlDecember 2007, these bags may be put out curbside on the scheduled pick up days for Residential Green Debris collection. See the website for further information. htto://www.ashlandsanitarv.com . . She passed around a brochure from a plastics recycling conference she attended in Eugene. . She will be meeting with the Green Task Force from The Oregon Shakespeare Festival to discuss reduction in waste and recycling options. . Working with some SOU capstone students initiating a pilot recycling program in one of the Resident Halls OLD BUSINESS July 4'" Recycling Discussion The Commissioners discussed Commissioner McGinnis's proposal to the Ashland Chamber of Commerce's 4th of July event. Using his proposal as a work in progress long term plan, Commissioners McGinnis, Harding and Councilman Chapman will introduce to the Chamber different ideas for the 2008 event. They hope to organize 10-30 volunteers to help with recycling efforts. Memo, Bottled Water The Commissioners wanted clarification on "City sponsored event", trying to determine if contractor/vendors who participated within City events would not be able to purchase/sell bottled water. Commissioner Chapman suggested they simplify a recommendation to requiring the City not to purchase any bottled water. They also requested information on how much the City purchases for bottled water and what would be the gain from not purchasing them. The Commissioners were interested in City staff input. Sub-Committee Reports Education No report Green Business Commissioner Finney recapped the Green Team that will participate in recruitment and evaluation of new/existing green businesses. Car sticker/Carbon offset Update Commissioner Hartman hopes to update the Commission with a design at the next meeting. NEW BUSINESS Sponsorsh ip for Solar Video Cathy Cartmill explained about a promotional/educational video that will highlight solar home tours. Don McCoy was working in conjunction with the Southern Oregon producer/director Kim Lewis of Kingsley Lewis & Associates, Inc to produce the video. Cathy is hoping to preview the video and be able to show the Commission at the next meeting. Mr. McCoy is asking for monetary support for his project. Budget Items There were no Items presented for the current budget, but Cathy Cartmill reminded the Commission of the annual thank-you ad for the Solar Pioneer Program, Adopt a Street Program and Green Business Program that would be published soon. The Commission and the Conservation Deparment split the cost of the ad. The Commissioners requested information from past budgets and Mary McClary will forward those budgets to them. COMMISSION ITEMS NOT ON AGENDA Commissioner Buck passed around a copy of a flyer advocating clean air by not participating in outdoor burning. Chairperson Chapman explained the outdoor burning ordinance to the Commissioners. The Commission also discussed gas powered leaf blowers, collection of ieaves and the different programs available. Commissioner McGinnis offered to do some research on power blowers and report back to the Commission. Commissioner Finney reported about the grand opening of the Dry Creek Landfill Water to Energy facility that produces electricity from burning waste. The Commissioners decided to put together another tour of the Ashland Sanitary Transfer Station, Dry Creek, and Bio Mass. Commissioner Buck would like to put Jarred Ferman from SOU to give the Commission a quarterly report. CITY OF ASHLAND ASHLAND PLANNING COMMISSION SPECIAL MEETING October 4, 2007 MINUTES I. CALL TO ORDER The meeting was called to order at 7:00 p.m. by Chair John Stromberg at the Ashland Civic Center, 1175 E. Main Street, AsWand, OR Commissioners Present: John Stromberg, Chair Michael Dawkins Tom Dimitre John Fields Pam Marsh Melanie Mindlin Mike Morris Council Liaison: Cate Hartzell, Council Liaison, absent due to quasi-judicial agenda items. Absent Members: Olena Black Dave Dotterrer Staff Present: David Stalheim, Community Development Director Bill Molnar, Planner Adam Hanks, Permit Manager Diana Shiplet, Executive Secretary II. ANNOUNCEMENTS Mr. Stromberg stated Mike Morris will be late, Olena Black and Dave Dotterrer have previous connnitrnents and so have excused absences. Mr. Stromberg stated that Planet Citizen, an organization listed in the most recent Planning magazine, has on-line training programs for Planning Connnissioners. There is some money in the budget for PC training. He would encourage commissioner who is interested in participating in the training to talk to Susan Yates in Community Development to get registered. III. APPROVE AGENDA MarshlDawkins mls to approve the agenda. Voice Vote: Approved. IV. TYPE III PLANNING ACTIONS A. PLANNING ACTION: PA2007.01283 APPLICANT: City of Ashland DESCRIPTION: Proposed amendments to the Ashland Land Use Ordinance implementing portions of the recommendations in the Land Use Ordinance Review prepared by Siegel Planning Services. In addition, other recommendations of the City Planning Director concerning land use decision.making procedures will be considered. Mr. Stromberg stated that this is the kind of project where you can easily get caught up in the specific issues but in the big picture we have a very large collection of detailed changes in the land use ordinance. He stated that due to the size of this project often some of the details are not captured in the summary. Staff is much more familiar with all the details than the commission they are looking at the practical use, efficiency, and customer service. The Planning Commission is more focused on the balance between community interests and private interests. With that in mind, he, John Fields, Mike Morris, David Stalheim, Bill Molnar, and Adam Hanks met for about two and a half hours going over all the non-policy, non-procedural portions of the proposed changes. During that meeting he realized how challenging and how many questions arise from these changes. He stated that to the extent that it is possible to dig into the details tonight will mean the Planning Connnission is doing their part more effectively. He reminded the connnission that they have until October 12'" to make any suggestions or alterations to the ordinance so that staff can make changes in time for the October 23" Planning Connnission meeting. On October 23", it is hoped that the Planning Commission will bring this process to completion. Also, on the 23"' he would like to bring back the revised Planning Commission Goals and talk about the strategy for getting everything approved by the City Council. David Stalheim, Community Development Director, stated this process started with the Zucker report and the Seigel report in February and April of2006. Following that, John Stromberg, John Fields, and Mike Morris met between June 2006 and February 2007 and went through the Seigel report. Mr. Stalheim prepared recommendations based on the reports and the meetings in February of2007. Planning Commission did a study session in April of 2007, a retreat in June of2007, another study session and the end ofJune 2007, and the fIrst draft of the ordinance was released in July of2007. Planning Commission agreed to start the public hearing process at the end of July 2007 and the second draft, based on public comments, staff review and Planning Commission input, was released in August of 2007. That second draft is the version we are working from tonight. Mr. Stalheim reminded the Commission that they did have a public hearing on this topic which started on September II" and was continued to tonight. He stated that the Commission need to see if there was any public input tonight and then close the public hearing. Mr. Stalheim reminded the Commission that at tonight's meeting they need accomplish 4 things tonight; I) address any new public input, 2) to discuss the procedure changes in the ordinance, 3) discuss any policy issues identifIed in the ordinance and 4) detennine what the next steps might be in the process. Mr. Stalheim stated he would like to highlight some of the issues he thinks the Planning Commission should focus on during their discussions tonight. The fIrst is the procedures issue. He stated that the real issue is whether or not they should be packaged together for passing on to the Council for approval or if they should be separated. The proposed changes in the site design chapter require changes in the procedures chapter, so they can't really be separated. If the Planning Commission detennines they would like the procedures separated out, they much also separate out the site design chapter. Mr. Stalheim stated he went through the ordinance and attempted to identify other sections that would be affected. The fIrst is that in every zoning district there is a reference regarding wireless communication facilities that refers to a specific section in the revised site design chapter. It is the same standard as before but they moved things around and so there is a reference to that section and that would get lost if they didn't update the site design chapter. The second is a small reference to procedures in the tree preservation chapter which needs to be updated in the site design chapter. Mr. Stalheim stated that by not doing the site design chapter there are some things in the site design chapter that are standards improvements in the chapter and staff feels that these improvements will be valuable and last for a long period oftime without needed additional updates. Mike Morris arrived at 7:13 pm. Mr. Stalheim stated that he met with planning staff last week to make sure that they are really comfortable with the procedures changes. Staff stated that they believe winder is the best time to implement any procedure changes, due to lower planning pennit activity levels. One staff member also recommended a longer timeframe for implementing the procedure changes. Mr. Stromberg stated he also recommends the winter as a good time to implement this. not only with us but also with the City Council as they have fewer things on their agenda during that time as well. He stated that the important thing is that this is very valuable and there is a lot of potential for success with these changes. Mr. Stromberg stated that the group who had met including himself, John Fields, Mike Morris, Bill Molnar, and Adam Hanks would like to become an official subcommittee of the conunission in order to continue working on this project and complete looking at all the changes. Mr. Molnar stated that because there already is a land-use subcommittee there is no need for a motion to approve this subcommittee. Mr. Stalheim stated that one of the other procedure issues which needs to be discussed is the appeal fees. The ordinance does not prescribe fees, but states that if they are set, need to be paid and notes the ORS requirement to reimburse fees if the appeal is successful. So the question to the Planning Commission is do you wish to recommend to Council appeal fees? The second issue is whether or not the appeals to Council will continue to be de novo or will become on the record appeals. Mr. Stalheim stated that the fIrst policy issues which needs to be discussed includes that the Commission can review the options - including no action. The other "top six" options that need to be discussed include: ASHlAND PlANNING COMMISSION REGUlAR MEETING MINUTES SEPTEMBER 11. 2007 2 Residential Ground Floor in C-I and E-I zonings The options regarding this were outlined in the September II, 2007 staff report. The first option was No Action. This does not address the problems of interpretation regarding lot area. He reminded the Commission that it currently states that 65% of the ground floor if there is one building, but if there are multiple buildings it calls for 50% of the lot area. The problem is that they don't really know what is the lot area when measuring buildings and square footage. Option two is what is in the current draft of the ordinance and that is to allow one small unit or approximately 500 square feet on the ground floor. Option three is the original draft which prohibited residential units on ground floor. Additional Dwelling units in R-2 and R-3 zonings The options for this were also outlined in the September II, 2007 staff report. The first option is to take no action. The result of that would be that you could have more density in the R-I zone than in the multi-family zones. The second option is in the August 28th draft which would allow units of up to 1,000 square feet. Option three is what was in the original draft of the ordinance which would allow units of up to 500 square feet. And option four has not been drafted but there were some discussions about "splitting the difference" and allowing units of up to 750 square feet. HoteVMotel definition The options for this were, again, outlined in the September II, 2007 staff report. The first option is to take no action. Option two has a new definition that would require a lobby and on-site staff. The intention of this is to avoid timeshare residential units which were really not hotels or motels. Option three is a new definition without any of the limits on the lobby or on-site staff. Temporary Storage This relates to units like the PODS, which we are starting to see around the city. Again, the options for this were outlined in the September II, 2007 staff report. The first option is to take no action so there would be no regulation of these within the city. The second option, which is in the current draft, places limits on these facilities. Option three would allow for some longer time periods for active building projects. The fourth option is to set standards that consider size of the sign on the storage building in order to make a distinction between these temporary storage units, because some might have signs that are not that obvious and others have quite a bit of advertising on the sides of them. Vision Clearance Option one is no action. This option does not address the problems with the current standards. However, the details of a replacement standard have not been resolved with Engineering. Option two would be for the commission to direct staff to continue to work on this issue. Fire Turnaround on Flag Partitions Option one is no action. This does not address the Council directive to make the Land Use Ordinance consistent with the Fire Code. The Commission can table this for a later discussion. The second option is to adopt the update as drafted in the ordinance. Mr. Stalheim reiterated that the idea is to come out of this discussion with a clear set of directions on procedure and policy issues. Also, it is hoped that the group will review details and make recommendations for the full Planning Commission action at the October 23, 2007 meeting. Also, to perhaps identify which of these issues need to be tabled for discussion at a later time and should not be included in this round of amendments. PUBLIC HEARING No members of the public were present. DimitrelMorris mls to close the public hearing. Voice Vote: all ayes. Motion passes. Fire Turnaround Mr. Stalheim asked Fire Division Chief. Margueritte Hickman, to discuss with the Commission the Fire Department's concerns regarding the fire turnaround on flag lots issue. Ms. Hickman stated the new 2007 Oregon Fire Code, which was adopted by the City Council, does not match with our current Land use code. In order to get those two aligned they need to amend the ASHLAND PLANNING COMMISSION REGULAR MEETING MINUTES SEPTEMBER 11, 2007 3 Land Use Code. Currently the Ashland City Code states that you don't need a turn around on a dead-end street until 250 feet. However, the Oregon Fire Code requires a turn around after 150 feet. The Council requested that the two codes match. Ms. Hickman stated that the Fire Department did some research and found that in the last 7 months of building permits there were 5 projects that required a turn around and if the 150 foot requirement were in place, an additional 2 turnarounds would have been required. She stated that it is her understanding that, historically, the land use code originally adopted the 250 foot requirement based on the Fire Code. Ms. Hickman stated that the Council requested that Fire staff change the fire code and to bring to them a different amendment so that Ashland did not amend the fire code in a less restrictive fashion. The reason this is less restrictive is that we are allowing people to have a longer driveway or a longer dead-end before they have a turn around. Rather than requiring it at a shorter length which would be more restrictive. The numbers are bigger but it is less restrictive. The Council wanted this change to be made to the Ashland Fire Code. She stated that the concern they brought to the Council was that this change would be in conflict with the State Fire Code. After bringing this to the Council, the Council decided that they would like the Land Use Code updated to reflect the State requirements. Ms. Midlin questioned ifthere were other alternatives in place of the turn around requirement, such as requiring fire sprinklers instead of a turnaround. Ms. Hickman stated that currently the Fire Code does not give such an alternative as an option. That is something they could consider, if necessary. Typically, the requirement for sprinklers is to mitigate a longer response time and the purpose of the update really has more to do with being able to turn the equipment around and not have to back the equipment out. Backing equipment has been proven to be more risky than moving forward. Mr. Stromberg asked ifthere were any comments from builders regarding this requirement. A comment was made that on a single flag lot, the amount of paving for a turn around is huge. Mr. Stalheim read a previously submitted comment from Mark Knoxs which stated, "... that staff should re-evaluate the standard primarily due to the amount of asphalt associated with the turn around standard as illustrated in the multitude of in-fill parcels this is going to effect. He would hope 250 feet would still remain as long as fire sprinklers were added which are probably far more important than the turn around. This seems to be a better compromise and one he is sure Fire could agree upon. For many years the Fire Department touted sprinklers as the primary safety measure, minimizing fire hazard and the spread offire." Mr. Stromberg stated fire prevention isn't really the issue here, it is the difficulty of backing out the extra 100 feet and he assumes that could mean slower response time if they have to back out prior to heading to the next call. Ms. Hickman agreed that it certainly could decrease the response time. Mr. Stromberg questioned if there are any insurance issues with the City not adhering to the State Fire Code. Ms. Hickman stated it was researched and determined that City Land Use Code could supersede State Code, as it relates to access. Mr. Molnar also pointed out that the 250 foot requirement is also identified in the performance standards under street standards. We would want to make that consistent with the other parts ofthe code. He stated that one of the issues over the years has been that often private driveways or flag-lot drives are in areas of slope. This becomes an issue of design in terms of how do you construct these taking into consideration treed areas, cuts, and fill. The issue the Commission needs to look at is if there is some flexibility when detemrining location of the turnaround. For example, if the turn around could be moved 15 feet in either direction this may preserve trees, etc. In discussions with Fire over the years, they have been flexible and it doesn't seem like this new requirement will be even more restrictive. Ms. Hickman clarified that this does not mean there has to be a turn around every 150 feet. It is one turn around required for any driveway over 150 feet. At the same time, they have interpreted the code to mean that if a driveway is, for example, over 750 feet and a turn around is not possible at the end of that 750 feet Fire will accept a turn around within 150 feet ofthe end of the driveway. As Mr. Molnar stated, the Fire Department can be flexible as to where the actual turn around is located. Ms. Midlin stated that she has issues with this, because, having just installed one, it is a lot oflot coverage, especially when you add in the 5 foot clearance for under 18" plants requirement. Mr. Stromberg asked if this code is subject to administrative variance. Mr. Molnar stated that anything in the ordinance, unless it has heen specified as not, is subject to a variance. Any variances issued, however, are done so while working closely with the Fire Department. Ms. Hickman stated that she would need to re-read that section of the code, however, there has been discussion in the code that if it is impractical due to physical land features, existing buildings, etc... the Fire code official can make some adjustments. ASHLAND PLANNING COMMISSION REGULAR MEETING MINUTES SEPTEMBER 11, 2007 4 Mr. Morris stated that he prefers the flexibility of working with the Fire Department to determine what is acceptable to them. He does not like seeing rigid numbers in the code. He also questioned why Council would go to the Fire Department and require them to get the land use ordinance changed without directing the Planning Commission to change it. Ms. Marsh asked how much square footage is required to install a turn around. Ms. Hickman stated it was approximately 1500 square feet. Ms. Marsh questioned if the added turn around will significantly effect the lot coverage requirements. Mr. Hanks stated, yes, with smaller rural residential lots those issues do come quicker, however there are many options such as moving the garage closer to the street to limit the driveway length. Ms. Marsh stated that it might be interesting to take a look at the two which would have fallen under this rule and see how this rule would have effected what was developed there. Mr. Stalheim stated that another option, based on Ms. Marsh's comments, is that the Commission could look at exemptions to lot coverage for those smaller lots which require a turn around. Mr. Dimitre asked, since we are currently requiring turnarounds for driveways over 250 feet are we currently having issues regarding lot coverage? Mr. Stalheim stated that recently there have been some variance requests regarding lot coverage in flag lots. Mostly this is due to people not taking into consideration the shared drive when planning the lot coverage. Mr. Molnar stated the most effected areas like lower Clay Street or Tolman Creek, where itls an R-5 zoning, 5000 square foot lot size, and there are some very long, skirmy lots with very small total lot SIZe. Mr. Stromberg stated that he doesn't have a clear sense of what direction the commission would like to head in, and asked if anyone wanted to make a motion on this topic. Mr. Dawkins asked for clarification as to what option one (no action) would mean. Does it mean that essentially staff would continue to work with the Fire department to determine when turnarounds were necessary? Mr. Stalheim stated it means that the 250 foot requirement would still be in place and the city code would not match the state code. He stated that we could write an option three which changed it to the 150 foot requirement but grant exemptions for lot coverage and could also write as part of the code that 150 feet is the requirement but that with the Fire Marshall's approval a variance on that requirement could be given. Ms. Midlin stated that she doesn 'tthink we should make our exemption related to lot coverage. She sees the point in shortening it if there is flexibility and a variance. If we leave it at 250 feet, there is no way to require anyone to put one in at any shorter distance. If we go with the shorter distance and have some flexibility depending upon each individual situation she much prefers that option. Mr. Fields stated that by changing the requirement where it becomes an issue is steepness. If it is a wide open area it is different than a heavily treed area. If it is one house versus 22 houses it can be an issue. He wanted clarification on where a driveway technically ends. Is it where a garage begins? Does it start at the back of sidewalk? If so, his driveway would be more than 150 feet, and he can't imagine a fire engine ever needing to go down his driveway and if they do, he can't imagine them having a hard time backing out. He suggested we table this issue, as there are too many unknown issues. Mr. Dimitre asked ifMr. Fields was interested in recommending any parts ofthis issue tonight, or ifhe would prefer that staff take it and re-work the whole thing. Mr. Fields stated that 250 feet is a long distance if it is multiple units, if it is on a steep hillside. There are conditions in which 250 feet is too far and other times where it isn't worth the cost to do a turn around on a shorter distance. He thinks we need to take a look at the real safety issue. We need to take this issue out of this current process or we will never get finished with any other items. Ms. Hickman stated that, in response to Mr. Fields question as to where does a driveway end it ends at the point where the Fire Department can reach within 150 feet of the furthest point of the house. Mr. Stromberg suggested we sent it back to staff to bring back to the Commission as part of the October 23" meeting with something that goes for 150 feet, per Council request, but gives staff and Fire Department the Flexibility to lengthen that per the special conditions of any given situation. FieldslDimitre mls that staff follow up and present the Commission with exceptions and conditions for ways to not restrict the requirement to 150 feet but to make something that is a little more balanced. Voice Vote: all ayes. Motion passes. ASHLAND PLANNING COMMISSION REGULAR MEETING MINUTES SEPTEMBER 11, 2007 5 Procedures Mr. Stalheim stated that the two issues the Commission needs to discuss are the appeal fee and the appeal to Council. Mr. Stromberg stated he also has several other issues he would like to discuss, but he will wait until after other have discussed these two appeal topics. He asked if any other members of the commission have any other procedural issues they would like to have discussed. Ms. Midlin stated she did have a question from page 6 regarding notice requirements. She asked, regarding the staff permits versus Type I permits if anything anyone applies for anything if it meant they would have to wait a month before getting their permit? Mr. Stalheim stated, no there is a tier of permits and some of them are ministerial actions, such as fence permits, home occupations, sign permits, etc... those have no noticing requirements and therefore have no delay in processing. Mr. Stromberg asked that the commission take a look at the staff report and refresh their memory as to what the major changes are that they are going through tonight. The first is the Expedited Land Divisions. Mr. Stalheim stated that the State requires a "referee" for handling appeals who is not a city employee or official and so in the updated land use ordinance it states that the City Administrator has the authority to hire a "referee" if that issue ever came up. The other choice as with may jurisdictions in Oregon we could adopt no procedures, but if someone asked for that type of application that procedure could be available. So the Commission could adopt no procedure but refer to the ORS. Mr. Fields requested clarification on the maximum densities - how is this different than a minor land partition and how you could do incrementally every 12 months to create more? Mr. Stalheim stated that this is a minor land partition and you couldn't create more because you have to put in that density. The intention of the statute was that you couldn't come in and divide up a parcel and do it expedited and then come back in 12 months. Mr. Stromberg stated that the next change is to staff permit and type I planning actions. He stated that the main thing with this modification is a consolidation of these two types of permits into one style - a Type I permit. He asked ifthe change to Type I permits is being made because it simplifies the noticing requirements. Mr. Hanks stated, yes, the change helps staff because it keeps all permits tracking on the same timeline. Otherwise staff has to notify individual actions which each have different expiration and approval deadlines but all the Type I, II, and III actions have the same deadline regarding notifications. Mr. Fields asked if there were any Type II permits being turned into Type I permits? Mr. Stalheim stated, yes, there are and that this will be discussed further later in the meeting. He stated that in order to increase efficiencies it is important that the Type I permit final action be by the staff. Mr. Stromberg asked if there is a downside for citizens or developers in doing this? Mr. Stalheim stated that the downside would be that with staff permits people can apply at any time. They did write into the procedures the ability for staff to adopt application deadlines so there is the ability for staff to say certain types of applications could be accepted more often than the larger applications. That way staff can still proceed in a timely fashion. Mr. Stromberg stated the next issue he would like to talk about is staff decisions final and reconsideration and appeal procedures. He read the summaries from the staff report. He then asked if anyone believed that the City Council would actually agree to have the Planning Commission be the final hearing authority? Mr. Stalheim stated he believes there should be only one appeal process in the city and they need to decide where that appeal body is. Ms. Marsh stated that as the Commission goes through this process it is their job to put forward the best recommendation possible - they can't look to try and put together a packet just so Council will approve it. Mr. Stalheim reminded the Commission that appeals consume a considerable amount of staff time. He estimates the last few appeals have consumed roughly 20 hours of staff time each. Ms. Marsh asked if we have any idea of how many times in the last five years a Type I permit has been pulled by the hearings board for review by the full Planning Commission? Mr. Stalheim stated that there have been two in the last nine months. Mr. Molnar stated that prior to those two there have been fairly few. Ms. Marsh stated that the point is that these are fairly routine kinds of actions. Mr. Dimitre stated the other question is did any of those that came to the Planning Commission get over turned. Mr. Morris asked for confirmation on whether or not staff has taken Type I permits and turned them into Type II. Mr. Stalheim stated that has been done on a lot of occasions over the years. Mostly this is because some of the Type I permits are on the edge of public interest and concem and so staff has bumped those up to a Type II. Both the current and proposed ordinances allow staff to change Type I permits to Type II in order to have a public hearing. It also allows the applicant to request this change. Mr. Stromberg asked if the ordinance allows any Planning Commissioners to request the change. Mr. Stalheim stated the Commissioners need to be cautions with that sort of action because they will run into conflict of interest ASHLAND PLANNING COMMISSION REGULAR MEETING MINUTES SEPTEMBER 11, 2007 6 and ex-parte contact before the action came before the Commission for review. Mr Stromberg questioned if the hearings board sending items to the Planning Commission created ex-parte or conflict of interest problems. Mr. Stalheim stated that as there is no contact because it is not a public hearing and so it doesn't create an e-parte contact. Mr. Dimitre asked for clarification as to whether or not the public can ask for a public hearing on Type I permits. Mr. Stalheim stated that right now they can and with the update to the ordinance they could only by appeal to the Planning Commission. Mr. Molnar stated that one ofthe key issues is that items which are called up now are often due to property owners who don't have a whole lot of information but with the changes we are making in regard to the notification many ofthose issues will be cleared up because property owners will have the opportunity to discuss there issues with staff prior to a decision being made. Mr. Morris stated as long as we have the process for reconsideration it is good, because the Commission can focus on factual errors and not be dealing with policy issues. Ms. Midlin stated the concern she has is lack of public access to even having an initial public hearing without paying a lot of money. She would feel more comfortable with this process if it cost a lot less to call up an item Ms. Marsh said there are two questions which need to be answered; 1) is the process a betrer process for getting public input and moving the item along and 2) for the piece of it that includes an appeal, should there be a fee. These two questions should remain separate. Mr. Dimitre stated that he believes there is a fundamental change as currently people can ask for a hearing in front of the Commission and it doesn't cost them anything but with the change the only time you can get in front of the Commission is when you pay $250 for an appeal. This is a fundamental shift in how we handle items. Particularly for those folks who don't have a lot of money. Mr. Fields stated that if you look at the net saving of time and paperwork we probably could have no appeal fee and still see a savings in the department. Mr. Stromberg reiterated his earlier question of what is the downside of this process for the citizen. Mr. Stalheim stated that he can't see any downside other than the issue of appeal fees. In his opinion the improved notification process is nothing but beneficial. Mr. Stromberg asked if staff included anything in the new Type I permits that wasn't in there already or wasn't part of the lower level items which have been brought up? Mr. Stalheim stated, yes, and this has been discussed on several different occasions. He gave a list of those permits. He reiterated that it still is under staff discretion to change some Type I permits to Type II. Mr. Molnar stated that typically all permits in the downtown area are bumped up to Type II, due to the higher levels of public interest. Mr. Stromberg stated he would like to discuss the appeal fee issue. He stated that if the Commission passes this ordinance they way it is structured then the City Council will be the ones who will decide on the appeal fee. The Commission is not required to take a position regarding the fees, however, they can make a recommendation. Mr. Fields would like to recommend that they not add an appeal fee, with the understanding that Council can add a fee later if they need to. Ms. Marsh would like to recommend a Fifty-dollar fee just to make sure the people who are asking for things to be brought forth for a full hearing are serious about it. Mr. Dimitre stated that it seems like the best way to deal with this is to get the process in place, see how it works, and if we are getting too many appeals, the fee could be reconsidered. Mr. Morris stated he would go along with the fifty dollar fee because the reconsideration should be looked at first, which has no fee. If that falls through then an appeal happen but there should be a fee associated with the appeal, even if it is a minor fee. Mr. Stromberg stated that he would prefer to have no fee, see if we have a problem and then the Council could make the decision to have a fee. He believes that for many people fifty dollars is not a small amount. Dimitre/Fields mls that they reeommend to Council that there be no appeal fees. Voice Vote: 5 ayes. 1 no. Motion passes. Mr. Stromberg read the summary of the Type II Planning Action procedural modifications from the Staff Report. Mr. Stromberg stated this was the only Type II procedural modification. He reminded the Commission that they did this process with the Verde Village permit. Mr. Stalheim stated that they did start this process but were unable to complete it because they ran out of time. Mr. Stromberg asked Mr. Stalheim ifhe had any additional comments regarding this change. Mr. Stalheim stated that he thinks it is a tool that could be used it is not a requirement it is an option. He thinks it will increase the ability to have a ASHLAND PLANNING COMMISSION REGULAR MEETING MINUTES SEPTEMBER 11. 2007 7 different type of hearing which might allow a little bit more participation and might allow the Commission to have more information when they begin their deliberations. The record would be more complete. Mr. Stromberg asked how this would affect the 120 day rule. Mr. Stalheim stated it shouldn't affect the rule because the process gives staff some flexibility on when the hearings take place. Mr. Dawkins asked for some simple examples of the process. For example, with the Northlight permit which is just starting through the process, would the Commission be the ones doing the hearing? Mr. Stalheim stated no, that the initial, evidentiary hearing would be conducted by stafffor information gathering only - no decision making. Ms. Midlin stated she has a concern about requiring the applicant and the public to come to two meetings to do the same thing. Mr. Stalheim stated that they are not required to attend both meetings. Mr. Fields said in public hearings where the public is heard in a more informal setting (rather than in front of the Commission) it allows people to articulate their ideas and concerns without it being such a formal, rigorous setting. Mr. Stalheim stated that additionally, with the informal hearings you have much more time to discuss issues, whereas in the formal public hearings you are limited by the agenda and the constraints of time of the meeting. Additionally, there is the possibility to stop the hearing and allow the parties to work out issues before they go on the record in a formal public hearing. Mr. Morris stated that he likes the idea of an evidentiary hearing to allow all parties the opportunity to work out all the details without wasting time in front of the Commission attempting to do so. All agreed that it would be useful to use this method and see how it works. Mr. Stromberg read the summary of Type II Planning Actions Reconsideration and Appeal from the Staff Report. He stated that the reconsideration portion seems to be fairly straight-forward it is just that the Planning Director can do it and it is only for factual errors. Mr. Stromberg asked for clarification regarding the appeal changes as to why this allows for a greater public comment period. Mr. Stalheim stated that it has been his experience that for appeals which go to Council as de novo we see entirely new information presented in front of the Council which never was brought in front of the citizen commissions. In some projects it comes before quite a few commissions; historic, tree, planning, etc. and so when you have a de novo process suddenly this whole new body of evidence can be presented to Council so rather than it becoming an appeal it really becomes a whole new public hearing process. On the record appeals really encourage the public to get involved early in the process so that they present all their information in front of the citizen conunissions. Mr. Stromberg also noted that the other part of this process is that the City Administrator would be authorized to selectively allow new information in. He questioned how that would work and if the State rules allow this. Mr. Stalheim stated that the State rules state each city has to adopt its own procedures. One of the things that came up was that sometimes there is new information which comes to light, which may not have been available at the original hearing process so it is necessary for those exemptions to be made. The reason for involving the City Administrator is to avoid any pre-judgment on the part of the Council. This also takes away the Council's ability to appeal to themselves but not their ability to call an item up. Ms. Marsh asked what is contained in the public notice for a Type II or Type III permit. Mr. Stalheim stated that they send a notice of application and a notice of public hearing which has all the dates for all the meetings for all commissions the item will be sent to. FieldslMarsh mls to recommend that appeals to Council be on the record rather than de novo. DISCUSSION: Ms. Midlin questioned why Mr. Fields think on the record is a good idea. Mr. Fields stated that we go through all the effort to develop a record and then no matter what is decided people can introduce new evidence at the last minute which causes these cases to drag on for months and months and finally a decision is made based on information that the Commission didn't even have the chance to hear or consider. It seems the process, rather than being extended longer and longer, needs to be compressed and clear. The obligation is to make the case, have the hearing, and if the decision is faulty then you appeal that decision but that is different than saying, well we didn't like the decision so we want to do it all over again. At a certain point a decision just has to be made. Mr. Stalheim stated that part of the reason to have a de novo hearing is to cure any procedural problems which occurred during the earlier process but that is why, if we make this change, we need to give the City Administrator authority to review these things to cure any procedural issues. Voice Vote: all ayes. Motion passes. ASHLAND PLANNING COMMISSION REGULAR MEETING MINUTES SEPTEMBER 11, 2007 8 V. UNFINISHED BUSINESS None. VI. Other A. Regional Problem Solving: Discussion and overview of population and urban reserve issues Mr. Stalheim gave an overview of the current Regional Problem Solving (RPS) population and urban reserves issues. In 2003 the City of Ashland decided to notify the RPS process that they did not intend to propose and new urban reserves. Mr. Stromberg asked for a definition of urban reserves. Mr. Stalheim stated urban reserves are land that the City identifies in the comprehensive plan as areas which will be urbanized in the future but which are not currently within the urban growth boundary. Mr. Stromberg asked ifit were true the City of Ashland can not expand the urban grown boundary unless the City first got approval from the State based on the urban reserves. Mr. Stalheim stated that the RPS regional plan will start affecting that, and he will discuss this more later in the presentation. Mr. Stalheim gave information on the population allocation. In 2006 the County did a population allocation for cities in the county. The consulting firm of ECONorthwest assisted them and sent population allocation information to the cities. They identified that by 2026 the city would have 5,177 more people than currently and 12,260 by the year 2056. Three weeks later they sent responses to the allocations, and noted that Mr. Molnar had sent a memo stating that the figures allocated to Ashland are reasonable. With this response they also re-sent out the population allocation numbers which were still the same as before. Less than 9 days later ECONorthwest sent out preliminary population allocations with no explanation as to why Ashland's figures had changed to 1,439 by 2026 and 2,176 by 2056. As a side note, Ashland population has consumed nearly 50% of the total population allocation we were given for then next 20 years in the last two years. Mr. Stromberg asked for clarification on allocation versus prediction and if it means that, for example, Central Point took some of our growth. Mr. Stalheim stated this is exactly what happened. The total population allocation for Jackson County did not change between the two letters only Ashland's portion of that population. After ECONorthwest's work, the County went through a process to amend their comprehensive plan. They adopted the same population allocation as the later ECONorthwest figures. Ms. Midlin asked ifthe lower numbers were the numbers presented to the Commission. Mr. Stalheim stated that the numbers were in the Economic Opportunity Analysis and it was that presentation which first got Planning Staff to start questioning the figures. They particularly questioned why population and employment numbers didn't seem to match up. The Regional Plan is only reviewed every 10 years, with 2012 as the first year of review. There currently is no process in place for review ofthe population allocation and the county allocations (based on the lower numbers) has now been ratified by the State. If the Regional Plan needs to be amended because there is a new unallocated population the State says Jackson County has grown by more than previously estimated then all the other signatories need to consider the amendment. Basically, Ashland and all the other cities will have to sit down together and agree on the allocation numbers. Mr. Stalheim also reminded the group that the Regional Plan has no specific population allocations - they only have population for the entire region, not specific cities - the only place that does have these figures is the County comprehensive plan. The effect, though, is that the Regional Plan sets aside urban reserves and Ashland has requested none. In order to, in the future, ask for urban reserves to expand the urban growth boundary the population allocation issues then comes back into question. Cities who choose to expand the urban growth boundary into land not designated in the urban reserves will be required to go through the RPS plan amendment process. Since Ashland had no urban reserves if we needed to expand, the City could not make that decision, we would need to go to RPS for approval. This change can only happen during the 10-year periodic review and, of course, at that time there will be a question of population allocation numbers. Ms. Marsh asked for clarification on if we had said before that we could handle the 5,177 population growth within our existing UGB. Ifso, then what is our argument? Even if we get the 5,177 in population increase, we are still on the record as saying we could accommodate that increase. Mr. Stalheim stated that the difference is that Ashland has a higher density ASHLAND PLANNING COMMISSION REGULAR MEETING MINUTES SEPTEMBER 11. 2007 9 standards and he believes RPS is trying to aim for those standards. He thinks that our buildable lands inventory needs to be updated to ensure we still are accurate with our assumptions. Mr. Stromberg asked if, when we do the inventory, we would be using the allocated figures? Mr. Molnar stated that when the County adopted their new population element they did put in a provision that they will review the coordinated population estimates every five years. This was the only concession they could make to us. They didn't say they would change anything, but that they would be willing to look at the numbers in 2012. To answer Ms. Marsh's question, when Mr. Molnar went and spoke to the RPS policy committee months ago, to give updates and to re-affirm the City's position, the one concern RPS had was that almost 3 \/, years had gone by since the City gave their initial suggestion not to do any urban reserves and two items had come out which could affect that original position. These were, I) we conducted our wetland inventories and one of the chief in-fill areas turned out to be a wetland (south of east main) and 2) Measure 37 was approved, which brings up many impacts on a community that weren't even considered in 2003. The question now is if there is more ofa tool to the City to have identified urban reserves to accommodate growth within the style of the City rather than be at the unknown hands of Measure 37? Mr. Stromberg asked if the State has other agencies who have told RPS that this draft of their plan is not acceptable and RPS has decided to push ahead anyway? Is there a chance RPS will have to re-work their plan? Mr. Stalheim stated the State submitted a letter to RPS policy group and RPS has reviewed that and has gone to Salem to talk to the State agency. He thinks there have been some adjustments so a change might not be necessary. Mr. Stalheim stated that his recommendations are: I) Regional Plan should review the population allocation prior to concluding that there should not be any more urban reserves for Ashland. Mr. Stalheim sent a letter to the RPS technical and policy group but has not been put in place. He believes Ashland should have first opportunity to add urban reserves, if Ashland so wishes. 2) Ashland should review the decision about urban reserves perhaps holding those areas while the Comprehensive Plan is reviewed and updated. The 5 or 10 year review in the Regional Plan will greatly limit Ashland's opportunities to consider adding to the Urban Growth Boundary. 3) An alternative would have the Regional Plan formally recognize that Ashland could come forward to add urban reserves, if it wishes after our public process, without having to wait for the periodic review of the Regional Plan in 2012. Notes for future meetings: Mr. Morris will be out oftown for hearings board, Mr. Dawkins agreed to take his place. ADJOURNMENT - The meeting was adjourned at 9: 15 p.rn. Respectfully submitted by, Diana Shiplet, Executive Secretary ASHLAND PLANNING COMMISSION 10 REGULAR MEETING MINUTES SEPTEMBER 11, 2007 CITY OF ASHLAND Council Communication Current Year Financial Report - July through September 2007 Meeting Date: November 6, 2007 Primary Staff Contact: Lee Tuneberg iM.b( Department: Administrative Services E-Mail: tuneberl@ashland.or.us Secondary Dept.: Secondary Contact: Approval: Martha Bennett Estimated Time: Consent Question: Should Council accept the quarterly report as presented? Staff Recommendation: Staff recommends Council accept the quarterly report as presented Background: The Administrative Services Department normally submits reports to Council on a quarterly basis to provide assurance of budget compliance and for informational and comparative purposes throughout the year. Information can be provided in differing formats and timetables at Council's request. Financial numbers for the first three months are always difficult to present and subject to change as the Administrative Services Department is busy completing the prior year audit and report. Additionally, with only three months to report on, it becomes difficult to evaluate our current financial position as compared to the adopted annual budget or to project our position at year end due to the receipt or payment of annualized amounts and seasonal activities like construction or utility consumption. Staff cannot adjust these reports for all such deviations. The reports are intended to present information in formats consistent with the department, fund and business activity presentations included in the adopted FY 2007-08 budget document and the manner in which it will be shown in the end of year report. Unaudited, detailed balance sheets, revenues and expenditure reports are available for your review in the Administrative Service Department office should you require any additional information. Related City Policies: City of Ashland Financial Management Policies, Budget Document Appendix Council Options: Council may accept this report as presented, recommend modifications as discussed or defer acceptance (takes no action) awaiting further information or clarification. CC - Quarterly Financial Report 11-6-07 r.l' CITY OF ASHLAND Potential Motions: This report is on the Consent Agenda and can be approved with other items. If removed from the Consent Agenda for separate discussion one of the following motions may be employed: A. Council moves to accept the financial report as presented. B. Council moves to accept the report as modified by discussion. C. Council takes no action pending further information or clarification. Attachments: Attached is the City of Ashland financial report for the fiscal year ended September 30, 2007. This report includes: 1. Financial Narrative (pages iii-vi) 2. Summary of Cash and Investments as of September 30 for the last two years (page I) 3. Combined Statement of Financial Position City Wide (page 2) 4. Schedule of Revenues by Fund (page 3) 5. Schedule of Budgetary Compliance per Resolution #2007-36 (pages 4-7) 6. Schedule of Expenditures by Fund (page 8) The numbers presented are unaudited and unadjusted. ii CC - Quarterly Financial Report 11-6-07 r., CITY OF ASHLAND Financial Narrative Summary of Cash and Investments provides an understanding of changes in the City's cash position across funds and investment types. The city-wide cash balance has decreased $2,545,866 between fiscal years at the end of September. This reduction is similar to the one reported one year ago. Each fund varies for its own reasons. In general, cash balances drop in the first part of the year as construction work and significant debt service payments are made. The reduction in the total cash balance over the year is primarily due to three factors. First, our operational costs have increased. Second, we did not raise utility rates until the last three months even though we had budgeted to increase them in the first quarter of FY 2006- 2007. Third, capital projects have reduced Water Fund reserves. Please note that those funds (the General Fund, Debt Service Fund, Parks & Recreation Fund and Youth Activities Levy Fund) that have a relatively large property tax revenue element will see a significant change in the six month report because of November receipts. The distribution of cash and investment balances shows an increased amount ($2.3 million) held in the Local Government Investment Pool to provide short term interest earnings beyond that which could be gained from a bank account. General banking accounts are $1 million less and longer-term City investments have decreased from $5.4 million to $1.5 million as part of the overall $2.5 million reduction in cash. Normally, reserves increase in the second quarter of the fiscal year as property tax revenue is received and disbursed by the County. The Combined Statement of Financial Position is similar to presentations presented in the annual financial report. It is intended to provide the reader an overall sense of the City's financial position at the present time. Unappropriated Ending Fund Balance (EFB) is $21 million but $6,530 less than last year at this time. This is 19.7% larger than the budgeted city-wide EFB and should fairly represent the amount for the end of the prior year, adjusted for first quarter activity. Despite approximately $800,000 less in EFB being carried forward from FY 2006-2007 and property tax revenue having not been received, this year's EFB at the end of September is $3.5 above the FY 2007-2008 budget, city-wide. This amount will fluctuate through out the year based upon the timing and amount of revenue received as compared to expenditures made for the same period. Revenues and Budoetarv Resources at September 30,2007, total $12,107,523 as compared to total year-to-date requirements of $14,245,467 which results in a $2.1 million decrease to Unappropriated Ending Fund Balance. This is $4.2 million less than the City's Adopted budget of a $6.4 million decrease during the year and relates to the timing of receipts and expenses. It is still early in the year and there will be changes in revenues and expenses that will alter this comparison and bring these numbers closer to budget. 111 cc - Quarterly Financial Report 11-6-07 r.l' CITY Of ASHLAND Total Revenues on a city-wide basis are consistent with the prior year. General tax receipts are down because property tax is not received until November and charges for services are up. No external financing has been done and only 13.5% of internal transfers were completed in the first quarter. The $85,884 Budgetary Transfer In represents the amount paid between funds for general debt service. Total Requirements are at 19.2% of the annual budget for this "first quarter" of the year with all categories well under the 25% mark. Total Operating Expenditures are at 21.9%, despite some annual costs and debt service being paid in the first quarter. This would indicate that some activities and related expenses have not occurred. Similarly, Capital Outlay is only 8.5% of the annual budget and less than half the amount expended in the prior year. Budqetarv Requirements activity includes the $85,884 Transfer Out mentioned above. Contingency is unused and remains at the budgeted amount of $1 ,631 ,000 city-wide. The Schedule of Revenues by Fund provides an overview of total resources by fund for the year. It is too early in the year to make predictions since many funds include financing or seasonal revenue streams that have not occurred as of the date of this report. More telling information is found later in this report in the individual fund statements narratives. The Schedule of Budgetary Compliance is intended to present expenditures on a budget basis by fund consistent with the resolution adopting appropriation levels in the budget compliance section of the document. All appropriations are as adopted with the revised resolution that was done to lower the amount to be spent on Ashland library operations. An overview by fund is as follows: General Fund - Total revenues are 13.8% and expenditures are 21.4% with $400,000 in Contingency unused. Charges for Service are 26.0% and taxes are 11.4% of budget, respectively. The budget includes $997,000 in revenue for the sale of Strawberry properties and a similar amount to be spent on the affordable housing program. CDBG Fund - Expenditures have primarily been for staff work with only interest earnings tod ate as revenue. Street Fund - A positive cash flow year-to-date has been recorded with $773,289 in charges, interest and intergovernmental revenue and $615,993 in operational expenses. Airport Fund - A negative cash flow has been recorded due to capital work funded by grants on a reimbursement basis. Monies were received after the close of the period to make cash positive once again. Capital Improvements Fund - Charges for service are at 27.1 % of the annual estimate and over $300,000. Operational expenditures and capital outlay are less than revenues resulting in a $46,349 positive cash flow for the first quarter. IV CC - Quarterly Financial Report 11-6-07 r~' CITY OF ASHLAND Debt Service Fund - Charges for service, taxes, transfers and interest total $731,118 (including Telecommunications Fund's $356,000) with Debt service payments (34.0% of budget) totaling $685,595. The Ending Fund Balance is just above the budgeted $601,085. Water Fund - Expenses exceed revenues by $372,181 with Revenue posting 31.9% of the budgeted amount. Only debt service payments are above 25% with the ending fund balance above budget. Wastewater Fund - Expenses exceed Revenues by $259,199 with DEQ debt service yet to be made. Charges for service are near target at 23.0% but Tax revenue (80% of Food & Beverage Tax proceeds) is only 3.5% year-to-date. Significant F&B tax payments will be recorded in the second quarter but consumed by the debt service payment for the treatment plant. External borrowing of $3.0 million will soon be needed for the $1.2 million in approved capital projects this year and the $1.5 million in FY 2008-2009. Electric Fund - Total revenues are slightly above expenses in the first three months without borrowing for projects or use of Contingency. Ending Fund Balance is $2.3 million (35% above budget) with wholesale power costs below projections at this point in the year. Surcharge revenues have contributed $265,000 to operational costs and are scheduled for review along with rates during the winter months. Telecommunications Fund - Revenue is at 27.4% of budget including Miscellaneous Income of $62,374 for selling set top boxes. Expenditures exceed revenues by $388,539 but include this fund's portion ($356,000 to) of the Debt Service on AFN GO bonds. Fund balance is $575,357 or $212,641 (58.6%) above budget and will help with future debt service. Central Services Fund - Revenues and Expenditures are near breakeven with an $88,700 positive cash flow for the quarter resulting from revenues at 24.7% and expenditures at 21.2% of budget. The fund balance is above target and will provide some offset to expenses by end of this year or in the budget for FY 2009. Insurance Services Fund - Expenses total $375,021 (42.4% of budget) representing annual premiums being paid as compared to only $183,501 (27.3%) in revenue (primarily internal charges) being collected. Equipment Fund - Internal Revenues are 24.9% of the budget and Expenditures are at 14.9% resulting in a $19,606 addition to fund balance at this time. The majority of acquisitions ($1.3 million) are slated for later in the year. Cemetery Trust Fund - Charges for Service are 26.1 % of budget. Interest earnings are at 39.0%. Interest earnings are transferred to the General Fund periodically through the year. v CC - Quarterly Financial Report 11-6-07 . r.l' CITY OF ASHLAND Parks and Recreation Fund - Expenditures are ahead of Revenues by $833,676 awaiting property taxes to be collected in November. Divisional expenses average 22.6% of the budget with revenues at 8.6% leaving $347,236 as fund balance (39.6% of budget). Ashland Youth Activities Levv Fund - Revenues are $681666 and Expenses are $19,995. This years Taxes have not been collected so no transfer to the school has been made. Parks Capital Improvements Fund - Only interest earnings have been recognized and no expenses have been made as of this time. Unaudited, detailed balance sheets, revenues and expenditure reports and fund statements are available for your review in the Administrative Services Department office should you require any additional information. VI cc - Quarterly Financial Report 11-6-07 r., City of Ashland Summary of Cash and Investments September 30, 2007 Balance Balance Change From Fund September 30, 2007 September 30, 2006 FY 2007 General Fund $ 1,379,276 $ 765,902 $ 613,374 Community Block Grant Fund 10,645 261,635 (250,990) Street Fund 2,495,422 1,401,297 1,094,125 Airport Fund (12,343) 52,265 (64,608) Capital Improvements Fund 802,376 154,324 648,052 Debt Service Fund 595,913 180,606 415,305 Water Fund 3,000,712 5,009,556 (2,008,844) Wastewater Fund 4,448,769 5,298,863 (849,894) Electric Fund 1,422,136 3,283,502 (1,861,366) Telecommunications Fund 416,533 470,365 (53,832) Central Services Fund 1,026,695 863,110 163,585 Insurance Services Fund 1,233,310 1,276,085 (42,775) Equipment Fund 1,763,265 1,677,543 85,722 Cemetery Trust Fund 752,513 730,122 22,391 19,335,221 21,424,978 $ (2,089,757) Ski Ashland Agency Fund 2,474 224,944 (222,470) Parks & Recreation Agency Fund 786,880 1,020,518 (233,638) 789,354 1,245,483 (456,109) Total Cash Distribution $ 20,124,575 $ 22,670,441 $ (2,545,866) Manner of Investment Petty Cash $ 3,510 $ 3,010 $ 500 General Banking Accounts 654,267 1,600,104 (945,837) Local Government Inv. Pool 17,966,799 15,689,453 2,277,346 City Investments 1,500,000 5,377,874 (3,877,874) T olal Cash and Investments $ 20,124,575 $ 22,670,441 $ (2,545,866) Dollar Distribution Central Services, Insurance and Equipment Funds 20% Ski Ashland, Parks and Recreation Funds 4% All Other (General Government) 30% ~,- Business Type Funds 46% 3Fl/l3nciaIRepon5ep:lOFY2OOll.x\s '"",,,,,,, City of Ashland Combined Statement of Financial Position City Wide For the third month ended September 30, 2007 Fiscal Vear 2008 Percent Fiscal Vear 2007 Vear-To-Date Fiscal Vear 2008 Collected I Vear-Ta-Date Resource Summary Actual. Adopted Expended Balance Actual. Revenues Taxes $ 1,517,205 $ 19,991,810 7.6% $ (18,474,605) $ 2,054,742 Licenses and Permits 209,754 900,000 23.3% (690,246) 204,984 Intergovernmental Revenues 503,543 3,386,500 14.9% (2,882,957) 466,830 Charges tor Services 9,366,981 35,604,558 26.3% 126,237,577) 8,683,549 System Development Charges 229,174 930,000 24.6% (700,826) 211,062 Fines and Forfeitures 40,006 180,000 22.2% (139,994) 38,488 Assessment Payments 33,523 102,427 32.7% 168,904) 6,886 Interest on Investments 287,164 787,950 36.4% 1500,786) 200,236 Miscellaneous Revenues 190,289 1,426,300 13.3% (1,236,011 ) 54,610 Total Revenues 12,377,639 63,309,545 19.6% (50,931,906) 11,921,389 Budgetary Resources: Other Financing Sources 3,800,000 0.0% (3,800,000) Intertund Loans Proceeds From Debt Issuance Transfers In 85,884 638,073 13.5% (552,189) 225,000 Total Budgetary Resources 85,884 4,438,073 1.9% (4,352,189) 225,000 Total Resources 12,463,523 67,747,618 18.4% (55,284,095) 12,146,389 Requirements by Classification Personal Services 5,404,982 23.578,545 22.9% 18,173,563 5,301,498 Materials and Services 6,733,233 31,385,988 21.5% 24,632,755 6,568,766 Debt Service 1,374,553 5,161,206 26.6% 3,786,653 915,938 Total Operating Expenditures 13,512,768 60,105,740 22.5% 46,592,971 12,806,204 Capital Construction Capital Outlay 1,002,819 11,767,605 8.5% 10,764,766 2,190,162 Intertund Loans Transfers Out 65,684 638,073 13.5% 552,169 Contingencies 1,631,000 0.0% 1,631,000 225,000 Total Budgetary Requirements 85,664 2,269,073 3.8% 2,163,169 225,000 Total Requirements 14,601,467 74,142,418 19.7% 59,540,946 15,221,386 Excess (Deficiency) of Resources over Requirements (2,137,944) (6,394,600) 33.4% 4,256,656 (3,074,997) Working Capital Carryover 23,137,522 23,927,048 96.7% (769,526) 24,727,622 Unappropriated Ending Fund Balance $ 20,999,578 $ 17,532,248 119.8% $ 3,467,330 $ 21,652,625 3Fir.aJ1CiaIRepor\Sep30FY2008.xts ''''''''''' 2 City of Ashland Schedule of Revenues By Fund 9/30/2007 Fiscal Year 2008 Fiscal Year 2007 Year-To-Date Fiscal Year Percent to Year-To-Date Revenues by Fund Actuals 2008 Adopted Budget Balance Actuals City General Fund $ 2,058,464 $ 14,955,065 13.8% $ (12,896,601) $ 2,244,286 Community Block Grant Fund 2,982 213,500 1.4% (210,518) 97,183 Street Fund 773,289 4,410,000 17.5% (3,636,711) 687,076 Airport Fund 141,484 348,500 40,6% (207,016) 31,628 Capital Improvements Fund 341,260 1,631,961 20.9% (1,290,701) 272,302 Debt Service Fund 731,118 2,082,775 35.1% (1,361,657) 243,488 Water Fund 1,675,603 5,245,000 31.9% (3,569,397) 1,646,917 Wastewater Fund 821,260 7,905,600 10.4% (7,084,340) 1,149,394 Elect"c Fund 3,014,785- 13,677,800 22.0% (10,663,015) 3,026,226 Telecommunications Fund 476,648 1,742,324 27.4% (1,265,676) 717,417 Central Services Fund 1,377,669 5,583,708 24.7% (4,206,039) 1,302,585 Insurance Services Fund 183,501 672,485 27.3% (488,984) 164,311 Equipment Fund 355,795 1,417,000 25.1% (1,061,205) 333,673 Cemetery Trust Fund 15,463 45,500 34.0% (30,037) 12,145 Total City Components 11,969,322 59,931,218 20.0% (47,961,897) 11,928,632 Parks and Recreation Component Parks and Recreation Fund 423,626 4,946,400 8.6% (4,522,774) 217,757 Ashland Youth Activities Levy Fund 68,166 2,658,000 2.6% (2,589,834) Parks Capital Improvement Fund 2,409 212,000 1.1% (209,591) Total Parks Components 494,202 7,816,400 6.3% (7,322,198) 217,757 Total City 12,463,523 67,747,618 18.4% (55,284,095) 12,146,389 Workin9 Capital Carryover 23,137,522 23,927,048 96.7% (789,526) 21,652,625 Total8udget $ 35,601,045 $ 91,674,667 38.8% $ (56,073,621) $ 33,799,014 3 FlT\ancial FIepon Sep30FY2008.xls "".,,'" 3 City of Ashland Schedule of Budgetary Compliance Per Resolution #2007-36 For the third month ended September 30, 2007 Fiscal Year 2008 Year-To-Date Fiscal Year 2008 Percent Actuals Adopted Used Balance General Fund Administration $ 625 $ 121,050 0.5% $ 120,425 Administration - Library 10,274 373,635 2.7% 363,361 Administrative Services - Municipal Court 106,365 427,360 24.9% 320,995 Administrative Services - Social Services Grants 100,010 121,000 82.7% 20,990 Administrative Services - Economic & Cuhural Grants 239,691 527,519 45.4% 287,828 Administrative Services - Miscellaneous 1,000 0.0% 1,000 Administrative Services - Band 31,640 60,509 52.3% 28,869 Police Department 1,246,046 5,458,209 22.8% 4,212,163 Fire and Rescue Department 1 ,126,447 4,997,175 22.5% 3,870,728 Public Works - Cemetery Division 81,632 339,165 24.1% 257,533 Community Development - Planning Division 301 ,960 2,411,548 12.5% 2,109,588 Communtly Deveiopment - Building Division 198,034 833,991 23.7% 635,957 Transfers 500 500 100.0% Contingency 400,000 0.0% 400,000 Total General Fund 3,443,224 16,072,661 21.4% 12,629,437 Community Development Block Grant Fund Personal Services 4,901 23,600 20.8% 18,699 Materials and Services 317 203,700 0.2% 203,383 Total Community Development Grant Fund 5,218 227,300 2.3% 222,082 Street Fund Public Works - Street Operations 453,368 3,327,919 13.6% 2,874,551 Public Works - Stonm Water Operations 131,259 834,957 15.7% 703,698 Public Works - Transportation SDC's 28,457 188,800 15.1% 160,343 Public Works - Slorm Water SDC's 73 172,500 0.0% 172,427 Public Works - Local Improvement Districts 2,836 685,998 0.4% 683,162 Debt 400,000 0.0% 400,000 Transfers 200,000 0.0% 200,000 Contingency 89,000 0.0% 89,000 Total Street Fund 615,993 5,899,174 10.4% 5,283,181 Airport Fund Materiais and Services 22,230 111,032 20.0% 88,802 Debt Service 17,536 35,172 49.9% 17,636 Contingency 5,000 0.0% 5,000 Total Airport Fund 94,901 379,809 25.0% 284,908 3FInardaIRepOOSep~FY::r08_xls ''''''''''' 4 Schedule of Budgetary Compliance Per Resolution #2007-36 For the third month ended September 30, 2007 Fiscal Year 2008 Year-Ta-Date Fiscal Year 2008 Percent Actuals Adopted Used Balance Capital Improvements Fund Personal Services 41,447 176,216 23.5% 134,769 Materials and Services 98,081 489,275 20.0% 391,194 Cap~al Outlay 79,740 300,000 26.6% 220,260 Transfers 75,643 302,573 25.0% 226,930 Contingency 50,000 0.0% 50,000 Total Capital Improvements Fund 294,912 1,318,064 22.4% 1,023,152 Debt Service Fund Debt Service 685,595 2,016,821 34.0% 1 ,331 ,226 Total Debt Service Fund 685,595 2,016,821 34.0% 1 ,331 ,226 Water Fund Electric - Conservation Division 41,030 177,300 23.1% 136,270 Public Works -Forest Lands Management Division 49,917 385,670 12.9% 335,753 Public Works -Water Supply 40,695 448,819 9.1% 408,124 Public Works - Water Treatment 204,756 1,137,338 18.0% 932,582 Public Works - Water Division 650,549 3,802,816 17.1% 3,152,267 Public Works -Improvement SDC's 1,053 605,250 0.2% 604,197 Public Works - Debt SDC's 124,850 0.0% 124,850 Contingency 144,000 0.0% 144,000 Total Water Fund 1,303,422 7,611,747 17.1% 6,308,325 WasteWater Fund Public Works - Wastewater Collection 605,876 2,479,706 24.4% 1,874,030 Public Works - Wastewater Treatment 391,188 1,926,453 20.3% 1,535,265 Public Works -Reimbursements SDC's 239,403 0.0% 239,403 Public Works -Improvements SDC's 83,595 121,423 68.8% 37,828 Debt Service 1,788,160 0.0% 1,788,160 Contingency 140,000 0.0% 140,000 Total Wastewater Fund 1,080,459 6,695,145 16.1% 5,614,686 Electric Fund Electric - Conservation Division 138,824 942,887 14.7% 804,063 Electric - Supply 1,356,484 6,102,504 22.2% 4,746,020 Electric - Distribution 1,216,783 5,711,671 21.3% 4,494,888 Electric - Transmission 213,256 903,600 23.6% 690,344 Contingency 375,000 0.0% 375,000 Total Electric Fund 2,925,347 14,035,662 20.8% 11,110,315 3FinanciaIRepot1Sep30FY2(X)lxls ''''''''''7 5 Schedule of Budgetary Compliance Per Resolution #2007-36 For the third month ended September 30, 2007 Fiscal Year 2008 Year-Te-Date Fiscal Year 2008 Percent Actuals Adopted Used Balance Telecommunications Fund IT - Internet 447,213 1,228,233 36.4% 781 ,020 IT - High Speed Access 61,974 468,607 13.2% 406,633 Debt - To Debt Service Fund 356,000 356,000 100.0% Contingency 100,000 0.0% 100,000 Total- Telecommunications Fund 865,187 2,152,840 40.2% 1,287,653 Central Services Fund Administration Department 314,123 1 ,502,580 20.9% 1,188,457 Administrative Services Department 334,399 1,575,530 21.2% 1,241,131 IT - Computer Services Division 262,578 1,165,588 22.5% 903,010 City Recorder 66,064 298,589 22.1% 232,505 Public Works - Administration and Engineering 311,805 1,387,186 22.5% 1,075,381 Contingency 150,000 0.0% 150,000 Total Central Services Fund 1,288,969 6,079,453 21.2% 4,790,484 Insurance Services Fund Personal Services 25,000 85,000 0.0% 60,000 Materials and Services 350,021 700,000 50.0% 349,979 Contingency 100,000 0.0% 100,000 Total Insurance Services Fund 375,021 885,000 42.4% 509,979 Equipment Fund Personal Services 65,615 268,698 24.4% 203,083 Materials and Services 128,016 503,222 25.4% 375,206 Caprtal Outlay 142,557 1 ,438,000 9.9% 1,295,443 Contingency 43,000 0.0% 43,000 Total Equipment Fund 336,188 2,252,920 14.9% 1,916,732 Cemetery Trust Fund Transfers 9,741 25,000 39.0% 15,259 Total Cemetery Trust Fund 9,741 25,000 39.0% 15,259 3FiflancIaIF\eportSIl!lJ'JFY2IXl6.xlS ''''''''''' 6 Schedule of Budgetary Compliance Per Resolution #2007-36 For the third month ended September 30, 2007 Flscal Year 2008 Year-Ta-Date Fiscal Year 2008 Percent Actuals Adopted Used Balance Parks and Recreation Fund Parks Division 860,397 3,948,075 21.8% 3,087,678 Recreation Division 286,297 1,051,727 27.2% 765,430 Go~ Division 110,608 419,019 26.4% 308,411 Debt Service 10,500 0.0% 10,500 Transfers 110,000 0.0% 110,000 Contingency 35,000 0.0% 35,000 Total Parks and Recreation Fund 1,257,302 5,574,321 22.6% 4,317,019 Youth Activities Levy Fund Personal Services 196,000 0.0% 196,000 Materials and Services 19,989 2,381,000 0.8% 2,361,011 Total Youth Activities Levy Fund 19,989 2,577,000 0.8% 2,557,011 Parks Capital Improvement Fund Capital Outlay 331,000 0.0% 331,000 Total Parks Capital Improvement Fund 331,000 0.0% 331,000 Total Appropriations $ 14,601,467 $ 74,133,918 19.7% $ 59,532,451 3Finarw::~IR~Sep:llFY2C03_x1s '''''''''' 7 City of Ashland Schedule of Expenditures By Fund 9/30/2007 Fiscal Year 2008 Fiscal Year Year-To-Date Fiscal Year Percent 2007Year- To-Date Requirements by Fund Actuals 2008 Adopted Expended Balance Actuals City Funds General Fund $ 3,443,223 $ 16,072,662 21.4% $ 12,629,439 $ 3,356,261 Community Block Grant Fund 5,218 227,300 2.3% 222,082 10,301 Street Fund 615,993 5,899,174 10.4% 5,283,181 687,861 Airport Fund 94,901 379,809 25.0% 284,908 16,776 Capital Improvements Fund 294,912 1,318,064 22.4% 1 ,023,152 840,372 Debt Service Fund 685,595 2,016,821 34.0% 1,331,226 522,310 Water Fund 1,303,422 7,611,747 17.1% 6,308,325 2,383,802 Wastewater Fund 1,080,459 6,695,145 16.1% 5,614,686 730,420 Electric Fund 2,925,347 14,035,662 20.8% 11,110,315 3,227,676 Telecommunications Fund 865,187 2,152,840 40.2% 1,287,653 518,382 Central Services Fund 1,288,969 6,079,453 21.2% 4,790,484 1,238,753 Insurance Services Fund 375,022 885,000 42.4% 509,978 332,641 Equipment Fund 336,188 2,252,923 14.9% 1,916,735 204,922 Cemetery Trust Fund 9,741 25,000 39.0% 15,259 Total City Components 13,324,177 65,651,600 20.3% 52,327,423 14,070,477 Parks and Recreation Component Parks and Recreation Fund 1,257,296 5,574,318 22.6% 4,317,022 1,143,774 Youth Activities Levy Fund 19,995 2,577,000 0.8% 2,557,005 7,135 Parks Capital Improvements Fund 331,000 0.0% 331,000 Total Parks Components 1,277,290 8,482,318 15.1% 7,205,028 1,150,909 Total Requirements by Fund 14,601,467 74,133,918 19.7% 59,532,451 15,221,386 Ending Fund Balance 20,999,578 17,532,248 119.8% 3,467,330 21,652,625 Total Budget $ 35,601,045 $ 91,666,167 38.8% $ 62,999,781 $ 36,874,011 3 Financial RepoItSepJOfY2008.xls ''''''''''' 8 CITY OF ASHLAND Council Communication Approval of the Community Process for the City's Facilities Master Plan Meeting Date: Department: Secondary Dept.: Approval: November 6, 2007 Public Works/Engineering Administration Martha Benne Primary Staff Contact: E-Mail: Secondary Contact: Estimated Time: Paula Brown, 552-2411 brownp@ashland.or.us Ann Seltzer, 552-2106 Consent Agenda Question: What will the community process be for the City's Facilities Master Plan and Updated Space Needs Analysis? Staff Recommendation: Staff recommends that Council ask the Mayor to appoint an Ad Hoc Community Facilities Committee consisting of a council member, a member of the planning commission, a member of the historic commission and two members of the public. This would be similar to the 1993 Ad Hoc Space Needs Committee. This Ad Hoc Committee will assist the staff team in guiding the consulting firm of Ogden Roemer Wilkerson (ORW) Architecture as they develop the best course of action for the City's future comprehensive Facilities Master Plan. The Ad Hoc Community Facilities Committee would serve with assigned staff members (Fire- Keith Woodley, City Hall/Administration- Ann Seltzer (also will take the lead for this project), Finance- Lee Tuneberg, AFN (and the 90 N. Mountain link) - Joe Franell, Facilities Maintenance- Mike Morrison, Jr.). Background: The City owns over 80 distinct pieces of property; 36 of those are City owned and not specifically designated for parks or parks open space (see attached map). The majority of the properties are actively in use. Through the efforts of the City's Facility Master Plan, these properties will be evaluated for their best use and function; one or more property or facility might be better served as a different function or combined for better efficiencies. The City convened an Ad Hoc Space Needs Committee in 1993 to identify and better define concerns with City Facility locations; over-crowded staffing at various sites, the desire to remain a viable presence in the downtown area, and to make recommendations on future office space needs for the City. Reviewing the minutes of one of the final meetings held in April 1994, we continue to face similar issues today. The original Space Needs Analysis was completed in 1993 (Aspeth) and an updated Space Needs Assessment was completed in 1999 (Berry Architects). Many of the concerns from 1993-99 Space Needs analyses have been addressed from a facilities stand point - new Library, new Fire Station # 1, renovations to City Hall and a new building for Community Development and Engineering Services. However, many of the prior recommendations are still needed; better space for Computer Services as they are now over crowded in the Service Yard facility at 90 N. Mountain; a need to upgrade the Council Chambers, a need to upgrade and resolve crowded conditions for the Police and Fire Station #2. There are also some new concerns with regard to a growing employee base and their functions at Page 1 of5 CC Approve OOW Contract Facilities Master Plan 11 07.doc r.l' CITY OF ASHLAND City Hall, Court, the location and adjacent land uses of the City's storage yard(s) and service center, the ability to combine efficiencies with the Parks Department and others, and ensure we are looking at overall needs, not just a specific need in one department. After an open solicitation process and internal review of the proposals, the City is in the process of awarding the contract of the current City's Facilities Master Plan and Updated Space Needs Analysis to Ogden Roemer Wilkerson (ORW) Architecture in the amount of $49,500. As this contract is not over $75,000 it does not require Council approval prior to award. The request for proposals for the Facilities Master Plan and Updated Space Needs Analysis included a comprehensive review of all ofthe City Facilities. We have asked the consultant to provide the following scope of work: A. Update the Space Need Analysis 1. Evaluate current locations and their proximity to other departments and City functions, future staffing and growth expectations for the next 10 and 20 years. 2. Explore various options with an internal City facilities team and with the Community Facilities Master Plan Committee. B. Evaluate the physical location of all City Facilities with regard to their current and potential best use. City Hall maintains a strong presence downtown and the ancillary building at 51 Winburn Way for Planning, Building, Conservation and Public Works Engineering offices. 1. The City's property at 90 N. Mountain is the location for Public Works Water, Street, Equipment, Shop and Facilities Divisions, Electric Department, Ashland Fiber Network, Computer Services, Purchasing offices. Across Mountain Avenue is the B Street Yard which is primarily used as storage and an equipment washrack. There is a small piece of property on E. Nevada Street) that is currently used as an electric storage and training facility. a. Are these the best locations in the City for this type offacility(s); should we combine sites at a different location; are there ideal locations for these service functions that should be purchased; should 90 N. Mountain be for used for specific offices and not storage, etc. b. If the City Yards are recommended to be combined and relocated, provide several options for optimal location and combined facilities. c. Provide pros and cons to a variety of alternatives. 2. The Ashland Gun Club and Lithia Springs property is located to the east part of town. This is the original site of the Lithia Water and pumps and piping are still located at this site for use through the City. The City uses this site for clean fill from spoils of public works projects. The Ashland Gun Club has a long term lease on the majority of this site. Is this the best use of the property? 3. The City has two Fire Station locations; Fire Station #1 was re-built in place at the south end of the downtown core. Fire Station #2 is on the eastern part oftown in a small facility and has been programmed to be rebuilt. Is this the best location for Fire Station #2? Should there be additional collocated facilities? Is the proposed size correct? Page 2 of5 CC Approve ODW Contract Facilities Master Plan 11 07.doc r.l' CITY OF ASHLAND 4. The City's Civic Center houses the Police Department, Court and court offices, Council Chambers, and a community facility (The Grove). a. The Council Chambers is undersized and not functional. The Consultant will evaluate the best options, configuration, sizing and location for the Council Chambers - best location and sizing (relocate to the Grove; B Street Yard; Police Building; alternate relocation options) b. Police Department - Best location and facility size (combine with Fire Station #2; relocate to the Grove; B Street Yard; alternate relocation options); initial needs for safety and operations are being addressed at the existing facility on a need now basis. c. Municipal Court - Best location and facility size (relocate to the Grove; B Street Yard; alternate relocation options). d. Best use of the Grove. e. Provide pros and cons to a variety of alternatives. 5. Future City Hall needs a. City Hall serves the Mayor, Administrator, staff; City Clerk and staff (Passport services); Human Resources; Finance; Legal; Utility Billing and Risk Management. b. With the City Hall building in downtown, what critical functions should reside in this building; should this building be expanded (at one time there was discussion of a third floor)? Should only some functions be retained at this location and the remaining functions relocated to a new facility: where? 6. Storage Needs a. Currently the City has records storage in several locations but primarily at the Cemetery and in office buildings. What is the best long term solution and storage location? 7. Evaluate duplication of services and identify pros/cons and recommendations for combined uses (or reasons not to do so). a. Shared training facilities for both Fire Stations. b. Shared training facilities for Fire and Police. c. Shared City Yard and Parks Department storage areas. d. Shared equipment storage and yards (90 N Mountain, B Street, Nevada Street, Parks on Winburn, etc). There may also be an opportunity to discuss shared equipment yard space with the Oregon Department of Transportation and the Ashland School system. e. Identify other opportunities to combine service functions. 8. Meetings: Open House / Community Meetings; Committee Meetings; and Council Meetings a. Open House / Community Meetings: It is likely that there will be a minimum of three community meetings: one for City Hall; Community Service Area; Police and Fire, to discuss proposals, impact to the community, gain community input. Pagd of 5 CC Approve ODW Contract Facilities Master Plan 11 07.doc r.l' CITY OF ASHLAND b. Council Meetings: There will be at least one meeting perhaps two to make recommendations to Council. c. Committee Meetings: It is anticipated that the consultant will meet and discuss options with an internal City facilities team and with the Community Facilities Master Plan Committee roughly every two months. It is expected that the contract with ORW will be signed not later than November 5th, and that the initial kick off meeting will be held the following week. Currently the plan is to hold the first public Open House the first half of December. The Plan is on a relatively quick schedule and should be completed by the end of March 2008. Related City Policies: Comprehensive Plan Budget and Capital Improvement Plan Council Options: Council has expressed interest in the Facilities Master Plan process. The following options are offered as suggestions for Council and community input. 1. Revitalize the intent of the 1993 Ad Hoc Space Needs Committee and have the Mayor appoint a council member, a member of the planning commission, a member of the historic commission and two members ofthe public to assist the staff committee in determining the best course of action for the City's future facilities master plan. This Ad Hoc Community Facilities Master Plan Committee would serve with assigned staff members (Ann Seltzer (lead staff member), Keith Woodley, Lee Tuneberg, Joe Franell, and Mike Morrison, Jr.). 2. Have the full Council be the "Ad Hoc Community" Facilities Master Plan Committee and be involved in the Master Plan effort through special council meetings. Community members would be invited to participate through the Open Houses. 3. Have the Planning Commission serve as the "Ad Hoc Community" Facilities Master Plan Committee and be involved in the Master Plan effort through special Planning Commission meetings. Council and community members would be invited to participate through the Open Houses and Council would have the final decision making authority at Council meetings. 4. Revise the membership of both the staff and "Ad Hoc Community" Facilities Master Plan Committee membership and appoint those members. 5. Do not appoint an "Ad Hoc" Committee and have the community participate through the open houses and Council meetings. Potential Motions: Council may move one of the options above or if selecting #5, decline to appoint a Facilities Committee and direct staff to proceed with the Facilities Master Plan. Attachments: Map of City Facilities Page 4 of5 CC Approve ODW Contract Facilities Master Plan 11 07.doc rA' City Properties, 2007 c--t,,,- F'~~~' l .. -if '''''ilI -I J . ~\ I I ... :;.',' 72(*, irJ I J7ii 1". ,,"1=L.3>' ,,-, /~;'/~;)I ' Iv f '--,-- hlB.. l.iG....)~~':: '''-l..c" I 1-- ~\ -~. ~! --,4f/'''V\r ("''' ,I~... I~\'\I' Q " L j" r-J'1l f9i. 1925-~{..\ 167_Jal'~J~ r { ,.~/ J8~J ASHlANU S 'Ij;(j~' ASH!~)..,.,r '~ ~j y im,5') \ r-\", OO'8T '~.' I"., ["~. "' \i <<' 1 1i;2 ___ "',~I ,\v(,,,,.' I. l-L ;. ~\\ "7'-1 '\ ~," (' \ /' L?_f1, ('-J,~--r ~-\v J I _ r. I 1~;1'\..- 82 r.' L\ N 1...J Not City Owned City Owned Land by type _ Cemetery _ City Yard _ Facility Facility/Reservoir Open Space OSF _ Parking Lot Parks Parks/F acility Parks/OSF /Facility 0%a Other , ' City Properties, 2007 ""Q t'?'''-_~" l .. r''i-' J If" ., ''''l I mr \ " : ~ ~.J 731 , 16 :!' ...... L.., 75. ' I, .~' .~ ~,I io, "ill Q ~ -''<<''''r >m I I" r" f' Z It ~~J ~ r-,--... I ~ "I~I' ~ 84 , ASHLANOS~!2 ~ ~HL~)...r ., . II r-\." -t,. , r7rlRs:l --_ ",.,," ~ I '\ '" \ l_L-. /~o~~< \. ~ ~ "\ r <:. t::<, ('\v ~_ 1, ("',,:I-r b'" J I Y~I I 62 ~~, Ii N ~. ~ D Not City Owned City Owned Land by type _ Cemetery _ City Yard _ Facility ~ Facility/Reservoir _ Open Space OSF _ Parking Lot _ Parks ~ Parks/Facility ~ Parks/OSF/Facility ~ Other CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dept.: Approval: Confirmation of Community Development Director November 6,2007 Primary Staff Contact: Mayor John Morrison Office ofthe Mayor E-Mail: morrisoj@ashland.or.us Administration Secondary Contact: Martha Bennett Martha Benn Estimated Time: consent Question: Will the City Council confirm the Mayor's appointment of Bill Molnar to be the City's Community Development Director and approve the attached employment agreement? Staff Recommendation: Confirm the Mayor's appointment Background: On October 17, 2007, Mayor Morrison announced that he is recommending to the City Council that Bill Molnar be confirmed as the Community Development Director, replacing David Stalheim, who has taken a position in Whatcom County, Washington. Molnar has worked for the City of Ashland for nearly 20 years. In his time with the City, Molnar has worked on a wide variety of projects, including establishing Ashland's Site Design and Use Standards, the Hillside Development Standards, North Mountain Neighborhood Plan, Affordable Housing Requirements for Annexation and Zoning, Ashland Local Street Standards, Floodplain Management Program and major revisions to the comprehensive plan during the early 1990s. Molnar has been Planning Manager since January of2005. Molnar served as Interim Community Development Director from September of 2005 through January of 2007 and is the lead staff person for the development ofthe Croman property and development ofthe wetland riparian ordinance. Council Options: . Confirm the Mayor's appointment . Deny the appointment and request that the City recruit outside candidates to fill the position Potential Motions: . I move to confirm the Mayor's appointment of Bill Molnar as Community Development Director . I move that the Council not confirm the Mayor's appointment and request that the Mayor and City Administrator conduct a recruitment for Community Development Director Attachments: Draft employment contract 2007-CC-Molnar.doc r~' CITY OF ASHLAND Employment Agreement Community Development Director THIS AGREEMENT, made and entered into this 6th day of November 2007 by and between the City of Ashland ("City") and Bill Molnar ("Employee"). R E C I TAL S: A. City desires to employ the services of Employee as Community Development Director of the City of Ashland; and B. It is the desire of the City to establish certain conditions of employment for Employee; and C. It is the desire of the City to (1) secure and retain the services of Employee and to provide inducement for Employee to remain in such employment, (2) to make possible full work productivity by assuring Employee's morale and peace of mind with respect to future security; (3) to act as a deterrent against malfeasance or dishonesty for personal gain on the part of Employee; and (4) to provide a just means for terminating Employee's services at such time as Employee may be unable fully to discharge Employee's duties due to disability or when City may otherwise desire to terminate Employee's services; and D. Employee desires to accept employment as Community Development Director of City of Ashland, and to begin his employment on November 7,2007. City and Employee agree as follows: Section 1. Duties. The city hereby agrees to employ Bill Molnar as the Community Development Director of the City to perform the functions and duties specified in City ordinances, and the job description attached as Exhibit A and to perform such other legally and ethically permissible and proper duties and functions as the City Council shall from time to time assign. The Community Development Director shall devote full time to the performance of his duties. The Community Development Director may hold outside employment so long as it does not impact the ability of the Community Development Director to effectively perform his duties. Section 2. Term. A. Nothing in this agreement shall prevent, limit, or otherwise interfere with the right of the Mayor, with the consent of the City Council in accordance with the City Charter, from terminating the services of the Community Development Director at any time, subject only C:IDOCUME-1IshipletdILOCALS-1ITempIDRAFT Employment Contract - MOLNAR Community Development Director.doc Page - 1 to the provisions set forth in the section entitled "Severance pay" of this agreement. B. Employee agrees to remain in the employ of City until November 1, 2009, and, except as set forth in Section 1, neither to accept other employment nor to become employed by any other employer until this termination date, unless the termination date is affected as otherwise provided in this agreement. This provision shall not restrict Employee from using vacation or personal leave for teaching, consulting or other activities provided these activities do not conflict with the regular duties of the Employee. C. In the event written notice is not given by either party to terminate this agreement at least ninety (90) days prior to the termination date, this agreement shall be extended for successive two-year periods on the same terms and conditions as provided herein. D. In the event Employee wishes to voluntarily resign the position during the term of this agreement, Employee shall be required to give the City six weeks written notice of such intention, unless such notice is waived by the City Administrator with the approval of the Mayor and City Council. Employee will cooperate in every way with the smooth and normal transfer to the newly appointed individual. Section 3. Salary. Beginning November 6, 2007, City agrees to pay Employee a monthly salary at Step C. of the salary schedule ($8,001 per month) payable at the same time and in the same manner as other employees of the City are paid. The Employee shall be eligible for an increase to step D of the salary schedule ($8,319 per month) upon completion of a satisfactory evaluation 6 months after start date. Section 4. Performance Evaluation. The City Administrator shall review and evaluate the performance of the employee at least once annually. Section 5. Hours of Work. It is recognized that Employee must devote a great deal of time outside the normal office hours to business of the City, and to that end Employee will be allowed to take compensatory time off as Employee shall deem appropriate during normal office hours, so long as the business of the department is not adversely affected. Work in excess of an average of forty (40) hours per week is deemed part of the professional responsibility for which the Employee shall not be paid overtime but for which he shall receive a minimum of five (5) days of administrative leave each year. Employee will receive additional administrative leave if granted by the City Council in the Management Resolution adopted each year. Section 6. Automobile. Employee's duties require that Employee shall have the exclusive use at all times during employment with the City of an automobile to carry out the business of the City. The City shall provide an automobile allowance of $350/month for the use of said C:IDOCUME-1IshipletdILOCALS-1ITempIDRAFT Employment Contract - MOLNAR Community Development Director.doc Page - 2 automobile for travel. Employee shall be responsible for paying for insurance, operation, maintenance and repairs of the vehicle. Section 7. Health, Welfare and Retirement. Except as modified by this agreement, Employee shall be entitled to receive the same retirement, vacation and sick leave benefits, holidays, and other fringe benefits and working conditions as they now exist or may be amended in the future, as apply to any other department head, in addition to any benefits enumerated specifically for the benefit of Employee as provided in this agreement. Section 8. Dues and Subscriptions. City agrees to budget and to pay for the professional dues and subscriptions of Employee necessary for the continuation and full participation in national, regional, state and local associations and organizations necessary and desirable for Employee's continued professional participation, growth and advancement, and for the good of the City. Section 9. Professional Development. A. The City hereby agrees to annually budget and allocate sufficient funds to pay the expenses of the Community Development Director's necessary travel and living expenses to represent the City at conferences or meetings of national and state committees or commissions upon which the Community Development Director serves as a member, said membership on said state commissions or committees being subject to the approval of the City Administrator, and for such other official meetings or travel as are reasonably necessary for the professional advancement of the Community Development Director as approved by the City Administrator B. City also agrees to budget and to pay for the travel and subsistence expenses of Employee for short courses, institutes and seminars that are necessary for his professional development and for the good of the City. Section 10. Professional Liability. The City agrees that it shall defend, hold harmless, and indemnify the Community Development Director from all demands, claims, suits, actions, errors, or other omissions in legal proceedings brought against the Community Development Director in his individual capacity or in his official capacity, provided the incident arose while the Community Development Director was acting within the scope of his employment. If in the good faith opinion of the Community Development Director, conflict exists as regards to the defense of any such claim between the legal position of the City and the Community Development Director, the Community Development Director may engage counsel, in which event, the City shall indemnify the Community Development Director for the cost of legal counsel. Section 11. Severance Pay. A. In the event of the involuntary termination of the Community Development Director during the term of this agreement, or a successor agreement, he shall be entitled to receive a lump sum payment equal to six (6) months aggregate salary and benefits. Termination by C:\DOCUME-1\shipletd\LOCALS-1\Temp\DRAFT Employment Contract - MOLNAR Community Development Director.doc Page - 3 the City, as used in this paragraph, means the Community Development Director's discharge or dismissal by the Mayor with consent of the City Councilor the Community Development Director's resignation following a salary reduction greater in percentage than an across-the-board reduction for all city employees, or the Community Development Director's resignation following a formal request to him by the City Council that he resign. Said sum shall be paid to the Community Development Director within thirty (30) days of the next regular council meeting after said termination. B. In the event Employee is terminated because of his conviction of any crime involving moral turpitude or illegal act involving personal gain to him, then, in that event, City shall have no obligation to pay the aggregate severance sum designated in Section 11.A. Section 12. Other Terms and Conditions of Employment. City shall, by amendments to this agreement, fix such other terms and conditions of employment, from time to time, as it may determine, relating to the performance by Employee with the agreement of Employee, provided such terms and conditions are not inconsistent or in conflict with the provisions of this agreement. Section 13: Severability. If any part, term, or provision of this agreement is held by the courts to be illegal or in conflict with the laws of the State of Oregon, the validity of the remaining portions of the agreement shall not be affected and the rights and obligations of the parties shall be construed and enforced as if the agreement did not contain the particular part, term, or provision. Section 14. PERS Pick-up. Employee contributions to the Public Employees' Retirement system (PERS) shall be "picked up" by the City. Employee shall not have the option of receiving money designated for retirement contributions and directly making the contribution to PERS. Employee's reported salaryfortax purposes shall be reduced by the amount of the employee's contribution to PERS. Dated this of ,2007. Barbara Christensen, City Recorder John Morrison, Mayor Accepted this _ day of November 2007. Bill Molnar C:IDOCUME-1IshipletdILOCALS-1ITempIDRAFT Employment Contract - MOLNAR Community Development Director.doc Page - 4 CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dept.: Approval: Meadowbrook II Subdivision SDC Credit Appeal November 6, 2007 Primary Staff Contact: Paula Brown 552-2411 Public Works Engineering E-Mail: Brownp(@ashland.or.us Legal Secondary Contact: Pieter Smeenk 552-2413 Martha Bennett Estimated Time: 20 Minutes Question: Does the City Council: Reject the appeal of the Meadowbrook Subdivision SDC credits and affirm the staff calculation of SDC credit at $63,075? - Or- Grant the appeal and award the SDC credits in a greater amount? - Or- Partially grant the appeal by considering other aspects of the developer's improvements that may be eligible for additional credits? Staff Recommendation: Staff recommends that the Council reject the appeal and affirm the staff determination of SDC credits based on the following: ./ Credits were given for only the additional requirements from the Planning Commission findings; ./ Credits were based on the developer's actual costs; ./ Credits were consistent with SDC methodology and were lenient with allocations. Background: Staff has prepared this report following a petition for a writ ofreview and writ of mandamus in Circuit Court as the City and Developer agreed to provide this appeal hearing of the City's decision to award credits for E. Nevada Street improvements totaling $63,075. The developer claims to be entitled to the SDC credit equal to the full cost of all improvements based on $311,834.25 for improvements on E. Nevada Street and N. Mountain Avenue made by the developer. System Development Charges (SDCs) are fees imposed on new developments that are collected to defray infrastructure expansion expenses incurred by the City as a result of development. The magnitude ofSDC charges varies for each of the different infrastructure enterprises funds. The SDCs questioned in the item are Transportation SDCs determined in accordance with Resolution 99-42 (attached). The transportation SDC is based on a pro-rata share of future transportation system needs, including new street and street frontage costs (needs) and new trip generation/travel need estimates. The Transportation System Plan (TSP) outlines transportation system needs for the City. The TSP identifies project specific needs for street, bicycle, pedestrian and transit improvements. Long-range Page] of5 CC Meadowbrook SDC (V2) 2.doe ~~, CITY OF ASHLAND travel projections used in the TSP have been developed based on future land development projects consistent with the City's Comprehensive Plan. SDCs are normally paid by the developer at the time building permits are issued. The City has the option to reduce system development fees by granting the applicant credit for the cost of constructing public improvements if those improvements are more extensive than required by the conditions of approval of their land use decision. This type of credit is referred to as an SDC credit. There are other limitations placed on these credits by Resolution 99-42 and by Planning conditions of approval. Under Oregon law only a portion of roadway and transit costs are eligible for funding through SDCs. The maximum portion that can be funded by SDCs is based on a very specific list of projects, and only a certain percentage of the cost of each of those projects can be funded by SDCs. The table on page 4 of Resolution 99-42 is Ashland's list of eligible projects and percentages. The City can only charge as much in SDCs as listed in that table. Likewise, the City is limited in how much credit it can award by that same table. Based on the 1999 SDC Methodology, a Credit is described as follows: Credits against the calculated SDC will be given for the cost of qualified public improvements, in whole or in part, identified on the "SDC Eligible Transportation Improvements" table. Costs not included in the calculation of the SDC shall not be eligible for SDC credit. Except that the City may agree that certain costs may, in fact, represent "system" costs that will be considered for addition to SDC-eligible costs during the next SDC update. If those "non-eligible" costs are subsequently changed to become SDC eligible, credit will be given in a form of a reimbursement of a portion of the SDC improvement fees. The overall project was the Meadowbrook II Subdivision which consists of building public improvements including streets, storm drain, sewer, water, electrical utilities, parkrows, sidewalks and site improvements. Subdivisions also include private improvements to individual lots to prepare them for construction of homes. Additional items that could be specified by the planning findings such as open space, wetland mitigation, parking, traffic calming and other facilities differ for each subdivision. This subdivision was proposed to include the widening ofE. Nevada Street and frontage improvements to North Mountain Avenue. The Petitioner, North Mountain Land Company, LLC, is claiming to be due SDC credits based on construction of public facilities beyond what required by planning findings and development conditions. The claim states that the City did not sufficiently credit the full construction costs of the required road improvements. Staff disagrees with the developer's assertion that 100% of his costs are eligible for an SDC credit. Staff has calculated the credit based on three factors: 1. The Planning Commission findings and decision for the Meadowbrook Subdivision development dated January 13, 2004, determined in condition number 29 that: "Specifically, the applicant shall be eligible for SDC credits for asphalt widening from 22' to 24' and curb and gutter on the north side of E Nevada for the frontage of the applicant's Page 2 of5 CC Meadowbrook SDC (V2).doc r~' CITY OF ASHLAND property and tax lot 401 (Cislo). Further, the applicant shall be eligible for SDC credits for the street improvements abutting tax lots 500 & 600. " The Planning Commission deliberated publicly to reach this decision, The developer did not appeal the land use decision. Only after project completion and acceptance did the developer challenge the decision. The City's development standards required that the developer pave the portion ofE. Nevada Street fronting the development to a width of at least 22 feet. Because E. Nevada Street is classified as an A venue in the Transportation Plan, and because of the ultimate plan to cross Bear Creek in the future, it was determined that the future street width would need to be paved to at least 24 feet. The Planning Commission required the widened street section and offered SDC credits for the specific increase from 22 to 24 feet. The Planning Commission likewise offered credits for the entire width in front of Tax lots 500 and 600 because the developer did not originally propose to pave that segment. No credit was considered for N. Mountain A venue improvements as those improvements except for the crosswalk and traffic island were made to the developers own frontage and was a consideration for the development's sake. The improvements included lot grading, utility backfill, irrigation structure removal, and asphalt paving that did not increase the capacity of N. Mountain A venue. Since Transportation SDCs are intended to pay for improvements that increase traffic capacity, credit cannot be awarded for improvements that do not contribute to increased capacity. 2. Public Works Engineering applied the developer's own unit costs submitted for this project towards the specific improvements deemed eligible in the Planning Commission findings to arrive at the portion of the construction that could be considered to calculate SDC credits. The calculations estimated the proportion of the total quantities and thus costs of material and labor required to increase the width and length ofE. Nevada Street improvements on a straight line volumetric basis. In the case of rock excavation, all of the rock excavation was credited as staff lacked the detail necessary to assign the appropriate proportion. Improvements including sidewalk, ramps, and other frontage improvements that were already required on the south side were not given any SDC credits. The calculations were based solely on the development's engineering drawings, the unit costs provided by the developer, the Planning Findings, and Resolution 99-42. The calculations were prepared and reviewed by licensed Professional Engineers (Pieter Smeenk and Paula Brown), and were also reviewed by Jim Olson, Richard Appicello, and Bill Molnar prior to issuing the letter to Adam Hanks on February 16, 2007. The developers own Engineer of Record did not dispute the calculations, but the developer claimed that all ofthe costs of construction of both E Nevada Street and N. Mountain A venue abutting the project should be due the developer in full, not just the improvements specified in the Planning Commission Findings. This claim conflicts with the Planning Findings, and also with City Resolution 99-42, which limits the amount that can be funded by SDCs to only a portion of the total cost. 3. Public Works Engineering allocated the percentage assigned for this specific project (65%) for SDC charges based on Resolution 99-42 as the maximum proportion of construction costs eligible for credit. Since the City can only collect 65% ofthe costs in SDCs, it can not reimburse a larger portion than it can collect. Public Works Engineering concluded that 65% of$97,039.04, or $63,075, is the maximum amount eligible for SDC credit. Page3of5 CC Meadowbrook SDC (V2).doe r~' CITY OF ASHLAND If there is ANY basis for re-determination, staff would request reconsideration for credit given for the calculations of the curb and gutter improvements and would recalculate the 65% to 100%. This would result in a net increase to the overall SDC credit to a total credit of$67,967.30. This recalculation would not be consistent with the SDC collection and credit policies. Related City Policies: Ashland Municipal Code 18.68: Land Use General Regulations (general development oriented) Ashland Municipal Code 4.20: Systems Development Charges 4.20.040 - Systems Development Charge Established (attached) 4.20.050 ~ Methodology (attached) Resolution 99-42 -Transportation Systems Development Charge Methodology and Charges (attached) Council Options: Council basically has three options: I. Affirm staff's prior decision and basis for SDC credits and retain the credit of $63,075. 2. Accept the appellant's request for re-determination ofSDC allocations and award the developer all or a portion of the request based on that testimony. 3. Request additional information from staff prior to making a determination. The Council's decision can be appealed to Circuit Court under Writ of Review. Potential Motions: 1. Council moves to affirm the initial determination of$63,075 in SDC credits owed to the developers of the Meadowbrook Subdivision. 2. Council moves to re-determine the SDC credits owed to the developers of the Meadowbrook Subdivision and authorizes the following amount $ (Council determined up to the $311,834.25 requested by the developer) based on the facts as presented by the developers. 3. Council moves to continue this hearing to the next Council meeting as Council feels that there is not a clear basis for determination with the information presented and requests additional information form staff. Attachments: 1. Option Recalculation ofSDC Credit 2. AMC Sections 4.20.040 - Systems Development Charge Established and 4.20.050- Methodology 3. Resolution 99-42 - Transportation Systems Development Charge Methodology and Charges 4. Meadowbrook Subdivision Final Planning Findings 5. Meadowbrook Subdivision Final Engineering Plans 6. Meadowbrook Subdivision: February 16, 2007 letter from Pieter Smeenk to Adam Hanks with attachments including calculations and supporting documentation 7. Hornecker, Cowling, Hassen & Heysell, L.L.P. Letter Dated March 1,2007 & Attachments 8. Hornecker, Cowling, Hassen & Heysell, L.L.P. Letter Dated June 8, 2007 9. Order for Writ of Review Page40fS CC Meadowbrook SDC (V2).doc r~' OPTIONAL RECALCULATION item 1 Excavation $14,300.00 item 2 Asphalt $55,44000 item 3 Base material $75,000.00 item 4 Geotextile $5,374.00 $150,11400 $90,818.97 ' $7,568.25 cost for the 2 feet wi~-...... ) $ 59,807.92 I $52,239.67 / $52,239.67 cost attributable to 1L 500/600 60.5% road widen only 2 of24 feet 34.8% 1L 500/600 100% CITY OF ASHLAND om Y ALLOW TIIE EXTRA 2 FEET AND 1L 500/600 ASPHALT item 7 curb and gutter $23,446.50 60.50% one side only 34.80% $14,18513 NOT ALLOW_____.. 17,09257 ,no md, foc wi_ ~ ~ _~ ~ $15)5:(j5 $8, 159.38 ~ $8,159.38 100% 1L 500/600 I $8,159.381 I $ 67,967.30 I PageS of 5 CC Meadowbrook SDC (V2).doe r~' Ashland OR Municipal Code SECTION 4.20.020 Purpose. The purpose of the systems development charge (SDC) is to impose an equitable share of the public costs of capital improvements upon those developments that create the need for or increase the demands on capital improvements. SECTION 4.20.030 Scope. The systems development charge imposed by Chapter 4.20 is separate from and in addition to any applicable tax, assessment, charge, fee in lieu of assessment, or fee otherwise provided by law or imposed as a condition of development. A systems development charge is to be considered in the nature of a charge for service rendered or facilities made available, or a charge for future services to be rendered on facilities to be made available in the future. SECTION 4.20.040 Systems Development Charge Established. A. Unless othef'Nise exempted by the provisions of this Chapter or other local or state law, a systems development charge is hereby imposed upon all development within the City; and all development outside the boundary of the city that connects to or otherwise uses the sanitary sewer system, storm drainage system or water system of the City. The City Administrator is authorized to make interpretations of this Section, subject to appeal to the City CounciL B. Systems development charges for each type of capital improvement may be created through application of the methodologies described in Section 4.20.050 of this code. The amounts of each system development charge shall be adopted initially by Council resolution following a public hearing. Changes in the amounts shall also be adopted by resolution following a public hearing, except changes resulting solely from inflationary cost impacts. Inflationary cost impacts shall be measured and calculated annually by the City Administrator and charged accordingly. Such calculations will be based upon changes in the Engineering News Record Construction Index (ENR Index) for Seattle, Washington. (ORD 2791, S2 1997) SECTION 4.20.050 Methodology. A. The methodology used to establish a reimbursement fee shall consider the cost of then-existing facilities, prior contributions by then-existing users, the value of unused capacity, rate-making principles employed to finance publicly-owned capital improvements, and other relevant factors. The methodology shall promote the objective that future systems users shall contribute an equitable share of the cost of then-existing facilities. B. The methodology used to establish the public improvement charge shall consider the cost of projected capital improvements needed to increase the capacity of the systems to which the fee is related and shall provide for a credit against the public improvement charge for the construction of any qualified public improvement. C. The methodology shall also provide for a credit as authorized in Subsection 4.20.090. D. Except when authorized in the methodology adopted under Subsection 4.20.050A, the fees required by this Code which are assessed or collected as part of a local improvement district or a charge in lieu of a local improvement district assessment, or the cost of complying with requirements or conditions imposed by a land use decision are separate from and in addition to the systems development charge and shall not be used as a credit against such charge. E. The methodologies used to establish the systems development charge shall be adopted by resolution of the Council following a public hearing. The specific systems development charge may be adopted and amended concurrent with the establishment or revision of the systems development charge methodology. The City Administrator shall review the methodologies established under this section every three (3) years, and shall recommend amendments, if and as needed. to the Council for its action. F. The formulas and calculations used to compute specific systems development charges are based upon averages and typical conditions. Whenever the impact of individual developments present special or unique situations such that the calculated fee is grossly disproportionate to the actual Page 2 of6 Ashland OR Municipal Code impact of the development, alternative fee calculations may be approved or required by the City Administrator under administrative procedures prescribed by the City Council. All data submitted to support alternate calculations under this provision shall be site specific. Major or unique developments may require special analyses to detennine alternatives to the standard methodology. G. When an appeal is filed challenging the methodology adopted by the City Council, the City Administrator shall prepare a written report and recommendation within twenty (20) working days of receipt for presentation to the Council at its next regular meeting. The council shall by resolution, approve, modify or reject the report and recommendation of the City Administrator, or may adopt a revised methodology by resolution, ifrequired. Any legal action contesting the City Council's decision in the appeal shall be filed within sixty (60) days of the Council's decision. SECTION 4.20.060 Compliance with State Law. A. The revenues received from the systems development charges shall be budgeted and expended as provided by state law. Such revenues and expenditures shall be accounted for as required by state law. Their reporting shall be included in the City's Comprehensive Annual Financial Report required by ORS Chapter 294. Reimbursement Fees shall be spent on capital improvements associated with the systems for which the fees are assessed. Improvement fees shall be spent only on capacity increasing improvements. The portion of such improvements funded by improvement SDCs must be related to current or projected development. S. The capital improvement plan required by state law as the basis for expending the public improvement charge component of systems development charge revenues shall be the Ashland Capital Improvements Plan (CIP) or public facility plan and the CIP of any other governmental entity with which the City has a cooperative agreement for the financing of commonly-used public improvements by the collection of systems development charges, provided the plan is based on methodologies confonning with State Law and is consistent with the City's CIP and the City's Comprehensive Plan. (ORD 279 I. S3 1997) SECTION 4.20.070 Collection of Charge. A. The systems development charge is payable upon, and as a condition of, issuance or approval of: 1. A building or plumbing permit for a development; or 2. A permit for a development not requiring the issuance ofa building permit; or 3. A penn it or other authorization to connect to the water, san itary sewer or storm drainage systems. 4. A planning action or change in occupancy (as defined in the Uniform Building Code) that will increase the demands on any public facility for which systems development charges are charged. (Ord. 2670, 1992) B. If development is commenced or connection is made to the water system, sanitary sewer system or stonn sewer system without an appropriate permit, the systems development charge is immediately payable upon the earliest date that a pennit was required, and it will be unlawful for anyone to continue with the construction or use constituting a development until the charge has been paid or payment secured to the satisfaction of the City Administrator. C. Any and all persons causing a development or making application for the needed permit, or otherwise responsible for the development, are jointly and severally obligated to pay the charge, and the City Administrator may collect the said charge from any of them. The City Administrator or hislher designee shall not issue any permit or allow connections described in Subsection 4.20.070A until the charge has been paid in full or until an adequate secured arrangement for its payment has been made, within the limits prescribed by resolution of the City Council. Page 3 of6 RESOLUTION NO. 99- 'I ~ A RESOLUTION ADOPTING A NEW TRANSPORTATION SYSTEMS DEVELOPMENT CHARGE METHODOLOGY AND CHARGES, PURSUANT TO SECTIONS 4.20.040 AND 4.20.050 OF THE ASHLAND MUNICIPAL CODE. THE CITY OF ASHLAND RESOLVES AS FOllOWS: SECTION 1. The Transportation Systems Development report recommended by the Ad-hoc Systems Development Charge Committee, marked exhibit "A", is adopted by the Ashland City Council and replaces the current resolution establishing the methodology and charges for transportation systems development charges. SECTION 2. The Transportation Systems Development Charges shall be phased in three steps. Phase one of the charge implementation described in exhibit "A" shall be effective August 16, 1999, with phase two effective January 2, 2000 and phase three effective July 1, 2000. Charges shall be adjusted for inflation at each phase. SECTION 3. The Transportation Systems Development Charge methodology and charges will be reviewed three years from the date of adoption to ensure consistency between the Transportation System Plan and the Transportation Systems Development Charges. SECTION 4. Transportation Systems Development Charges collected will be distributed to transportation projects based on the aggregate growth percentage described in exhibit "A". This resolution was read by title only in accordance with Ashland Municipal Code 90 duly PASSED and ADOPTED this ~It day of .July .1999. Barbara Christensen, City Recorder SIGNED and APPROVm this ~ day of JJ!.,/ , 1999. I ~ ;,M~~ Cathenne M. Shaw, Mayor &/:tJsk Paul Nolte, City Attorney PAGE 1-RESOLUTJON (F:\USER\MAC\SDC Comm\resolution. wpd) I Exhibit "A" City of Ashland ~)" '". ;". ' .,::" niil "~I ..;;$ lb, """'J!I 'liN ". \"" 1; 'i~IJ ''". .,,"',., .'0 .~;.;,; ,,'~i ,. ,,1111\' ., ,Ii. ~~iii,W 1m ,Ii '%, !!ii I,I! j!: ,r.r :~% ....' >, 1<i r;: iim~; , ;ij1" II, . ,I, ' "- ,f . Iii'! .'ill" i. ~,ill' ". #" .!.;, ' ,,!.~i~'~ <lnlil'i!i" " . :~ "'~", "~:;'i'\"~:9;:;")~'j: ":;,, ;';,~;, > /;1"'" Transportation Systems Develop. ment Charge . ~ Fce Increase Proposal - July, 1999 . (,itv of Ashland TralfSDortation Svsrems DeveloDment Charf!e July. 1999 INTRODUCTION Background In 1996, the City of Ashland adopted its current transportation Systems Development Chard (SDC) which became effective January I, 1997. The current SDC is based on a pro-rate share of future transportation system needs, including new street and street frontage costs (needs) and new trip generation/travel need estimates for typical developments. The future "needs" are not defined by specific projects. The City of Ashland has developed a Transportation System Plan (TSP) that outlines transportation system needs for the City within the Urban Growth Boundary (UGB) area. The Ashland TSP identifies project specific needs for street, bicycle facility, pedestrian and transit improvements. Long-range travel projections used in the TSP have been developed based on future land development projects consistent with the City's Comprehensive Plan. These land development projections were used by W & H Pacific, Inc. to estimate the trip generation capacity of land consumption by the year 20 I 7 and define the detailed methodology for a revised SDC. The purpose of this report is to describe the revised methodology for implementing a project specific transportation SDC to fund a portion ofthe needed transportation projects within the Ashland UGB by year 2017. This same methodology may be adjusted to include a revised scope of transportation improvements, as needed. The Ashland Transportation SDC Methodology is based on similar SDC methods already adopted and in place by other Oregon jurisdictions, mainly Salem and Portland, Oregon. Consistency With State Law ORS 223.297 through 223.314 establishes a uniform framework for governmental units to impose systems development charges to pay for capital improvements, including facilities or assets used for transportation. Such charges may be assessed or collected "at the time of increased usage of a capital improvement or issuance of a development permit, building permit or connection to the capital improvement." ORS 223.299(4)(a). The statute allows imposition of systems development charges for costs associated with capital improvements to be constructed ("improvement fees") and capital improvements already constructed or under construction ("reimbursement fees"). ORS 223.304. The statute also provides for credits against fees for the construction of qualified public improvements. ORS 223.304 (3), (4). As relevant to the City's proposed Transportation SDC, ORS 22.307(2) authorizes improvement fees on new development to help cover the costs of capacity increasing capital improvements. Under ORS 223.309(1), such improvements must be identified in a capital improvement plan, public facilities plan, transportation master plan or similar plan which lists the capital improvements which may be funded with improvement fee revenues. Consistent with ORS 223.307(2), the capital improvements identified in the TSP and included in this report are limited to those which are capacity increasing. Their City of Ashland - Department o/Community Development 1 Citv of Ash/and Transoortation Systems Develooment Charf!e Julv 1999 inclusion in a plan as defined in ORS 223.309(1) assures compliance with that requirement of the statute. Under ORS 223.304(2), improvement fees must be established by ordinance or resolution setting forth a methodology that considers the costs of projected capital improvements needed to increase the capacity of the system to which the fee is related. The statute requires no specific methodology. However, there must be a rational basis for the chare, i.e. the costs imposed on development must reasonably relate to the impacts created by the development and the overall costs of the improvements. NEEDED IMPROVEMENTS Types of Deficiencies The Ashland TSP indicates that there are a number of projects that will be needed by 2017 to provide sufficient transportation system capacity to accommodate future travel demand. These improvements include new streets, upgrades to existing streets to urban standards (i.e., added bicycle lanes, curbs/gutters, sidewalks, etc.), new bicycle lanes and/or sidewalks, new traffic signals and improved transit to serve expanded public transportation needs. New streets and bridges, street upgrades, and new traffic signals provide improvements resulting in a transportation system that can accommodate higher travel demand (additional capacity). New buses and shelters provide added capacity to route coverage serving more transit riders; and together with bicycle and pedestrian improvements provide the needed capacity that otherwise require major street widening in areas deficient of adequate right-of-way or compatible land use (e.g., North Main Street between Helman and Wimer). Estimated Improvement Costs Improvement costs are those capital costs that will be required to construct the projects identified in the Ashland TSP. These projects and the estimated costs (estimated in 1998 dollars) for each project are listed in Appendix A of this document. Improvement fees are the systems development charges (defined and summarized below) imposed on new development to help fund the projects identified in the Ashland TSP. Improvement fees imposed on new development are used to provide a portion of the funding required for project improvement costs. The Ashland Transportation SDC includes improvement fees, but does not include reimbursement fees. Improvement fees are system development charges that are applied to improvement costs associated with capital improvements to be constructed. Reimbursement fees are systems development charges applied to improvement costs for capital improvements already constructed or under construction. City a/Ashland - Department o/Community Development :1 Cirv of Ashland Transoortation Svstems Develooment Charfle Julv. /999 To comply with Oregon law, only a portion ofthe roadway and transit improvement costs are eligible for funding through an SDC program. Improvement costs to maintain or improvement the structure of existing roadways and intersections, or costs associated with transit operations do not provide significant capacity increases. Thus, this portion of the improvement cost is not eligible for funding through the SDC. As previously stated, improvement fees are authorized under Oregon law to help cover the costs of capacity increasing capital improvements, identified in a capital improvement plan, public facilities plan, transportation master plan, or similar plan. New streets, bridges, traffic signals, sidewalk, and buses are fully eligible for SDC funding. The cost associated with street upgrades paid for by the SDC can be based on the proportionate share of the added street amenities to the total street improvement costs (e.g., bike lanes, curb/gutter and sidewalks). Additionally, it is proposed that a portion of local street improvements done through the LID process be funded through the Transportation SDC. It is estimated that an overall capacity of 18% will be realized city-wide by the improvement of local streets. This is based up the buildable lands analysis undertaken by the city which has shown that when local streets are improved, the opportunity for additional lot splits will be available, increasing the use of local streets for new trips related to growth. As such, the Ashland Transportation SDC program will generate funds from improvement fees that may be used to partially fund improvement projects that provide additional roadway and transit capacity. As discussed below, the improvement fees are based on the estimated number of daily trips generated by new development, resulting in an improvement fee that is fair and equitable. Thus, the program is in compliance with Oregon law. City of Ashland - Department a/Community Development 3 Cirv of Ashland Transoortation Systems Develooment Charf!e Julv 1999 SDe ELIGIBLE TRANSPORTATION IMPROVEMENTS Street - at Siskiyou Upgrade $92, Tolman Cr Rd - Siskiyou to UPRR Capacity $352,38 Nevada - Bear Creek 10 N Mountain Capacity $239,92 6.10 Bear Creek Bridge@ Nevada Capacity $2,500,00 6-10 N Mountain - Hersey to Nepenthe (~ street) Capacity $120,27 6-10 Tolman Cr - Siskiyou Blvd Approaches Capacity $184,0 6-10 Clay 5t . Siskiyou to Ashland Upgrade $374,88 6-10 E Main - City Limits to Normal (west) Capacity $104,96 11.20 N Main - Hwy 99 to Fox Upgrade $37,48 0 11-20 Ashland Mine Rd Upgrade $187,44 11-20 E Hersey. Ann to Mountain (% Streel) Upgrade $39,91 2 11-20 4th 5t ExlenSlon 10 Hersey Capacity 3 11.20 N Mountain - Nepenthe to Nevada Capacity 4 '1-20 Totman Cr. Green Meadows to Black Oak Upgrade . 11-20 Tolman Cr - Black Oak to Siskiyou Upgrade . 11-20 E Main - Nonnal AIIfJ to City limits (eas1) Upgrade 17 11-20 E Main. at Tolman Cre$ Rd Upgrade 40,80 18 11-20 Crowson Rd . Siskiyou 10 Green Springs Hwy Upgrade ,. 11.20 Normal Avenue Extension to E Main Capacity 0 11-20 Clay St . Ashland 10 E Main Upgrade 1 11.20 TolmanCr Rd -Ashland SttoE Main Capacity 2 11-20 Mistletoe - SiskiyOU to Tolman Creek Upgrade 3 11-20 Dead Indian - Green Springs Hwy Approach Upgrade ',,,-,,,,, fi' q'l INTERSECnONS 11-20 Capacity Capacity 1,,_'~t,:~tm~~.!I, ' II 11-20 UPRR CROSSINGS 14) Upgrade "" 11.20 TRANSIT (Local, capHal costS) 25" 11.20 SIDEWALKS 2Sa", 11.20 BICYCLE FACILITIES 25% LOCAL IMPROVEMENT DISTRICTS ~NDT= 51 p", ELNDT 39.lI4~ $21 August 1, 1999 Cost per ELNDT = $93 anuary 1, 2000 Cost per ELNDT= $154 uly 1, 2000 Cost per ELNDT = $214 C;ty of Ashland- Department ofCommun;ty Development 4 ('iN of Ashland TransDorlation Svstems DeveloDmenl Charfle Julv 1999 TRANSPORTATION SDC UNIT COST Introduction The Ashland Transportation SDC has been developed to provide fairness and equity among the various types of development that are likely to occur by 2017. To reach this goal, the Ashland Transportation SDC methodology recognizes that the number of trips generated varies by type of land use. It has been shown that some types ofland use (retail, for example) attract trips from traffic that is already passing the retail site (a motorist that is going home from work that stops en route to buy groceries). In this instance, a trip is "generated" by the retail use, but not all generated trips are new to the adjacent roadway traffic stream, hence the retail use adds lower number of new vehicle- miles of travel to the roadway system compared to other uses. This type of trip is known as a "linked trip". A "Linked Trip Factor" has been used to account for this difference in new trip generation versus total trip generation. When the basic trip generation rates (i.e. trips per dwelling unit) is adjusted by the linked trip factor and applied t the new development, the resulting number of new generated trips are called Equivalenl Lenglh New Daily Trips (ELNDT). The ELNDT are used as the basis for the Ashland Transportation SDC. Methodology To develop the City of AsWand Transportation SDC, a summary of the planned land uses within the UGB was made. From these planned land uses the number of daily vehicle trips generated on the public street system was made. These trips were added to the number of existing traffic volumes throughout the study area to estimate the total number of vehicle trips on the study area street system. Since the SDC is based on trips generated by new development, the number of new trips divided into the estimated improvement costs results in the dollar cost per new trip generated. The future planned land use and new trip generation estimates within the Ashland UGB are summarized in the attachments. Future land use estimates and the daily trips generated by new land development within the Ashland UGB are estimated based on future trip estimates from Ashland's emmel2 travel model, and validated by ITE Trip Generation Manual estimates summarized in Appendix B. Inherent in these trip estimates is the provision for linked-trip characteristics by land use type. The Equivalent Length New Daily Trips generated within the Ashland UGB by the year 2017 is indicated in the table on the following page. Trip Generation Adjustments As mentioned previously, inherent in the travel demand forecasting model is the type of trip by land use and effect of linked trips. The methodology used to determine the transportation system development charge fee in Ashland is consistent with the ELNDT concept. This methodology uses the best available trip generation, and linked trip information. Trip generation rates for each of the land use categories were adjusted using City of Ashland - Department afCommunity Development 5 City of Ash/and TransDorlalion Svstems Deve/oDmen! Charf!e Julv 1999 the trip generation rates reported in Trip Generation, Fifth Edition (published by the Institute of Transportation Engineers, 1991). The attachment at the end ofthis report lists these trip generation rates and the adjustment factors used to determine the ELNDT generation rate for each general land use category listed in the ITE Trip Generation Manual. Unit Cost Methodology The Transportation SDC is calculated by dividing the total cost ofthe SDC-related transportation improvements by the number of city-wide ELNDT, resulting in an SDC cost per ELNDT. The Transportation SDC unit cost per trip is summarized as follows: Ashland Transportation Systems Development Charge SDC-Related Transportation Improvement Total CostlELNDT Costs ELNDT Transportation SDC Calculation The Transportation SDC is applicable to all new land development within the Ashland UGB and is calculated at $214 per ELNDT The Trio Generation. Fifth Edition is to be used for all SDC calculations. Tabulations of trip generation rates and linked trip factors for various land uses are found in the attachments. The following table identifies the Ashland Transportation SDC fee as applied to various land use developments such a single-family, multi-family homes, fast food restaurant (3,000 sq. ft), and industrial centers (30,000 sq. ft.) Transportation System Development Charge Calculations Single Family Dwelling Multi Family Dwelling Fast Food Restaurant (3000 sq. ft.) Light Industrial (30,000 sq. ft.) $2,040 $1,382 $23,131 $50,037 Credits Credits against the calculated SDC will be given for the cost of qualified public improvements, in whole or in part, identified on the "SDC Eligible Transportation Improvements" table. Costs not included in the calculation of the SDC shall not be eligible for SDC credit. Except that the City may agree that certain costs may, in fact, represent "system" costs that will be considered for addition to SDC-eligible costs during the next SDC update. [fthose "non-eligible" costs are subsequently changed to become City 0/ Ashland - Depar/ment o/Community Development 6 Citv of Ashland TronSDorlalion St'slems Develoomenl Charf!e Julv 1999 SDC eligible, credit will be given in a form of a reimbursement of a portion of the SDC improvement fees. TOM Credits Credits may be given for developments that implement transportation demand management (TDM) plans designed to reduce generated vehicle trips. The proponent of the development must declare an intention to apply for TDM vehicle trip reduction and Transportation SDC credit as a part of the building permit application. The TDM plan must be prepared by a transportation planning professional recognized by the Community Development Director as being proficient in TDM programs. Oregon law requires that provisions be included in the SDC for alternative methodologies to calculate the trip generation (ELNDT) for use in calculation of improvement fees. These provisions are needed in case standard trip generation rates or linked trip factors included in the SDC do not adequately reflect the true trip generation characteristics of a particular land use development. These provision s also provide an approach for project proponents that believe their development does not generate trips in the same way as described in the SDC. Credits for TDM vehicle trip reductions will be limited to a maximum of 15% of the SDC charge calculated without TDM credits. TDM plans must include an annual reporting plan that will document the amount of vehicle trip reduction that is actually achieved. Failure to achieve the projected level of trip reduction shall result in the required payment of the full SDC. Redevelopment Redevelopment of existing land use (of which the traffic generated by the existing use is implied to be already accounted for under existing traffic conditions and will not be considered as part of the transportation SDC calculation) requiring a building permit that results in a net change in trip generation (due to either a change in general land use category - residential vs. commercial, number of dwelling units, or building area) will also be required to pay a transportation SDC in lieu of the existing use. Specifically, the transportation SDC will be calculated based on the net difference between the trip generation (including equivalent and new trip rate adjustments) of the new use less the trip generation of the existing use. If the new use generates fewer trips than the existing use no transportation SDC shall be paid, but no reimbursements will be given to the proposed development. Implementation Given the substantial proposed increase in the transportation SDC, it is recommended that the new charge be implemented using a phased approach, as follows: City of Ashland - Department afCommunity Development 7 Citv of Ashland Transoortation Systems Develooment Char2e Julv 1999 I" Phase 2nd Phase 3'd Phase August 16. 1999 January I, 2000 July I, 2000 ELNDT = $93 ELNDT = $154 ELNDT = $214 This phasing would result in an implementation schedule and costs for typical development shown in the following table: Transportation Systems Development Charge Calculations - Implementation Smgle Family Dwelling Multi Family Dwelling I Fast Food Restaurant , (3000 sq. ft.) I Light Industrial (30,000 sq. ft.) $6.123 $21.780 $36,066 $50.037 City of Ashland - Department o/Community Development 8 ITE Trip Gener.tion Rates & ELNOT Adjustment Factors ITE A\lCr.I~W<<Jutay EquiulnltLMr:th COIfPerU..ir ITE Land he Nol" IA.. ITE Trip Rare New Daily Trip & lln ELNDT Adju,tman Faden C.... .... Viii"" Trin lAn.cb I Uakcd Tri 111/99 IIVOO 7fI1OO '9l U54 S214 Rf:SIDDlTIAl. -;,m!I~I'amilv 210 'l55 DwellingUni, 100 1.0 $BSa SI,471 $2.040 \Iuh;.~;unily 220 '" DwellingUni\ 097 10 "'.. .- SI,341 R"s,<.Jenti"("ondo",inium z:;o '" Dwellmgl!ni' GO, 10 5529 "" 51.214 \l;UlufacturcdHousing '" '" Oc:C\lpi...:io-...'el1ingUni, ", '0 ...'" $119 '9'>' Itttrealional Homei(' ondo "" 316 Owetlin"Unit 1.00 '0 "'" ..." .." I:'IlSTITIrTlO;o.(AL r,u~\,; 'rcnninals 1 30 m I.OOOsfGFA 112 '.0 SI.026 51.699 $2.J57 BU'DepoI , " 1000sfGFA 100 '.0 52,32S n.aso SS,341 I'",\,; 1 ." 2ZJ Acres "0 10 S187 "09 ..." ("ll",~elopcdl , 50 Acres 0'10 10 SU85 S6.9JO S9.615 'eillhbomoodlundevelopcdl , 5 Acres 0'10 1.0 "''' l69' '961 ~mu5C1llcnt(Tho:mel 5 80 Acres 0'10 10 $6.696 SII,088 $IS)8J ';,,If("o..SC' 2 "'0 l75'l Hol~s '" 10 S3,181 55.16& S1:300; \to\',elhealre , ....' '" Seals 0<6 10 l1S $125 S173 KacquctClub 2 41)2 1714 I.OOOsfGF." 051 10 $813 $1,346 $1.868 RacQUClball , " l.000sfGFA 0>, 10 S1,897 $3,142 $4,3S r~nn;s , .JO Coun .51 10 $1.423 $V56 "::: \liIiWy8a.v 50' '" Employee '00 10 "66 Sn4 " Flem~larySch()01 5Z0 "" Stud.,.,t 100 " $109 $181 "" lun.or Jligh School , I ~O Stuclo:nt 108 " SI21 $200 5277 11,!!hS<:hool 530 1.llI Student 100 " $139 $230 $318 ',mi""{.<>>nm....ily('ollege 1..1 '<0 11.\ Stud,"", 10' " SI34 5221 $307 \'hurch '60 'lJ2 1.00lhfGfA 'OS 10 $936 SI.SSO $1,151 !)a,' ('a'eCcmerll'reschool 2 ,., ..., """'0' OZJ 10 ... 5165 $229 :.,b'a" , ''10 4550 I,OOOsfGFA 0.49 10 $2,073 SJ,43) $4,7&3 ll"59'tal 61. 1678 1.000lfGf"A 0.95 10 $1.413 $2.455 ,,:.... "'UJlin~ Home 620 2.60 OccuDi~ Bed 0.95 10 S230 SUO S521 Bl'SI/'liESS" COMMERCIAL IlntellMotel llO 8.70 O:cupiedRoom 009 0.75 .", l69' '96' ULlildill!!MarerialS/l.umber 8t2 .l05t> I.OOOsfGFA 0'" 0,75 $1,044 $1,730 52.400 :-.pwi.ItI.lt.d8ilC'mter , ".. 40()1 l.000sfGFA 0.49 0.1S 51,J90 $2)02 5.1,193 Ill""'-'\lnl Slor"~ 815 7013 l.000sfGFA 0.49 015 52,397 $3,969 $5,507 Ilardwa,elPain' SIOf~S , ". SI2Q I.OOOsfGFA "'" 01' SI,753 S2,903 $4.027 'lIr$Cf'\-Reta,1 2 811 .1608 I.OOOsfGFA '" 0.75 51.233 52,042 $un "hnpr>'n!!C'enter 820 (und...,.50.000<fOFAf 820 J07SQ I.OOOsfGFA OJI 0.18 $1,353 $1,240 S~.IO& (50.000_ 'l9.~9 .rOFA! 820 <:1165 I.OOO~fGFA on 036 SI,406 S2.329 $l.23 1 1I0ll.000 - 1Q'l.999 !fOfAI 820 7067 I,OOO.fGFA 0<0 0.61 $t.604 $2.055 $3,684 t:!OOOOO.2<19.999!fGFA) 820 5450 I,OOOsfGfA ..., 0.67 SI.6M S2.755 5~::~ t~Oo,ClOO. 3'l9.999,fGFAI 820 40:.81 1.000.fGFA .., 011 $1.5IS $2,508 S3,4 ,400,00ll.49'l,9'l9sfGFAI 820 4202 LOOO.fGFA .., OJ} $1.398 n,ll5 $3,211 ~500,llOO. S99.9'l9!fGFAI 820 1865 l.llOOsfGFA 0'" 080 SJ,409 52.)33 SJ,237 I !iSh lurnO"o'er Si,.Down R~uaufant , 8n 205J6 I,OOOsfGfA 019 015 $2.722 54.507 S6,252 I...." f<~>d Restaurant on 18622 l,llOOsfOFA 009 0$1 $3,356 $5.5n 17.710 ''''''' ("~r Sale. .., 47<>t 1.000.fOFA 060 01' '12,005 n,J20 "'.606 """i~.., Sllllion I.J .., 14254 G~lillePump 0.07 077 $715 S1.I83 51,642 SupermarkCl , 850 g782 Employee 0.14 0... $526 ..11 $1,208 (.onICl1ienceMmel , &51 7J79Q IJOOs{GFA 0,08 OJS 51,922 51,182 S4A15 (\'n'et"ence Mar\C'f v.1 Gas Pump l.5 8~J 1'>>.34 Gasoline Pump OJ2 on $1.271 $2,]07 $2,923 \ppal"d$lore , ,,, .11 ~7 I,OOO~fGFA 0.4<:1 01' $1,069 51,770 52,455 1 urn,tu'~ Store , '90 ~ .\4 l,OOO$fGfA '''' 0.15 5148 $246 SJ41 llan\,;."Sa,'ingsWalk-in , '" 140.01 l.000sfGFA 0.17 0.75 51,661 $2,761 $3,83 ~ank/Sayin"s Drive-in 2 912 ~65.21 I,OOOsfGFA 0.17 OS5 52,306 53,819 55,298 OFFICE ('hni. I 6.10 2_179 I,OOOsfGFA 0.5J 10 5un SI,942 $2,694 (;...,e,al Offi~e 'ID (Lndcr IOO.OOOsfGfAJ 710 1658 l.000sfGF.... 065 1.0 $l.002 SI.660 S2.303 (IOO.OOO.I'l9.99Q<fGFA) 710 140) 1.000~fGFA 06' 10 $848 51,404 Sl,948 (JOO.OOO sfGfA and oHrl 71.0 II liS I,OOOsfGFA 065 10 $716 $1,186 11.64< \1..dicaIOmceBuildill8 120 J411 I.OOO,fGFA 0.S3 10 SI,684 $2.789 $3,869 (,,,,.emment Office Bldg , no 6893 I,OOO.fGFA 0.96 10 $6,154 $10,191 $]4,138 ~lalC Mutor Vehicles Depf 711 16602 I,OOOsfGFA 096 10 $]4,822 $24,544 $34,OS2 (SP(lSlOffiec , H2 8712 l.000sfGFA 096 10 $7,778 S12,880 $11,S6S KC:searchCcnlcr '60 7.70 I,OOOsfGFA 0.67 10 "'80 S794 $1,102 liusinessPark 710 14,)7 I,OOOsfGFA 0,61 1.0 S895 $1,483 Sl,057 lYE Trip (;en.radon Ratn & ELNDT Adjuatment Factors IT[ Aver.ceWH'k(by liqlliv.lent t.-cth Cost Per Unit IrE LAnd llse Noles Lo.d ITE Trip Rate New D.il,. Trip &: list EL~DT Adjll,trnml F.cton Code R.t< Uaitf6J Tn ....... Unked Tri 1111" 1/2100 711100 '" "" $214 INOt-STRIAI. ! ;cnef~1 Lightllldu!ilflal 110 "7 IOOOsfGFA 112 10 1126 $1,202 51.668 I;enefal Hea~y Industrial , I ~O ISO l,OOOsfGFA 112 10 $156 S2S9 5.15 Illdu:>trialPark , IJO "7 l.OOOsfGFA 112 10 5126 $1,202 $1,66 \lanu!'Xlurin!l '" '" I,OOO$fGF.... "2 10 '''I ,.... 5921 '.\arel1""sc: '" ". t.OOOsfGF.... '" 10 5508 '842 St,16 \I,ni-\\'.vehouse '" 261 1.000 sf Of A ." 10 $114 5189 $262 I-lililo.., , "0 ''''' Employees '00 10 '" $163 S226 \\lloje,~lc , "'" (,7.\ I,OOOsfGFA "" 10 "07 $508 S705 \......~,,,';....'''<Iuk GF... .. (;"'..n.........c..,onoI1f........" 1<<1 In.;: ,,,,,'b<;I...,,,,, G....04 """,'""",,,,'c..o. I(",LAI ;"cilodforslqlpi~<<"'''',"'n T...G_'~"OII;.j.\ j r~oITFTrip~'iotol3l"';v.r....,,...;"'lt\tl"""dcri..Gf..."",luU".'... ,,<.,.. rh<ITt;Tripf><:ncl'alioo>~..I..._.._...""""'"i...,h;."'~."'I....pp.i""".......""'Jh.ACOI""lIocI'o.:ondllCl..'ho:i. ,'...".'''''''..,_~'lrip~.......di'''..........noflhci.''''''lic..ior\ ,!. n"'r",....reI.._lpbcl..."""'...""""""....-..,iI._lhc"'o<;......cddol,IripJ<flcnlion;dooolallnITET..c.....-........lun .>><f'!i;icoooo'.,.,...I;rl...IR1'o'lcullwo".71l"wl"""".K_'.....""r-.Illaloo<.........,..,...;,-...,"""f'<3IK.iIodq>_ 'np'......-;a"Il'I>di""Ioo__0rl...it"fll>li~. "; ....r.'k......."h..l><m_o'i....lOdr_'hcpubl.......p.nI pCIlbourlnpltCJ>Cndonral. """liQrl"_"_I. """"''''gal ,,,,oood'.......""hci.OII"C''''''"''', illdcpcnok.. ,rip__..........ldl..........".... of,,,,,,, "1'1'_"'" I" \,<..."..ot.lc......or:>.ndhi,h..,h.Joltriptl<'flC'r""kMo....."" I" '""D,<_...T"'lr,,~""'[l;.........o<;..i....olGo\<m'"""...M...hl...Jl ASHLAND - FUTURE LAND USE VALIDATION LAND USE CATEGORIZATION LAND DENSITY [3) DEVELOPABLE LAND AREA FORECAST ITE Sub. ADJUSTED DUsI Employee local 1000 SF 1000 GROWTH [2J GROWTH 51 Land Use Category DU. Employees Code Allocation DU. Employees Acre 1000 SF Adjustment GFAlAcre SF GFA Acres [1) [3J GFA Single-Family 2558 210 100% 2558 40 NA 640 Residential Multj.Famify 644 220 100% 644 15.0 NA 43 Residential Health Care - Senior 180 220 100% 180 15.0 NA 12 Housing RelaiVCommercial 1014 Specialty Retail 814 14% 142 1.82 100% 8.83 78 9 Hardware 816 7% 71 0.96 100% 10.64 74 7 Quality Restaurant 831 17% 172 7.46 100% 7.50 23 3 Fast Food Restaurant 834 17% 172 10.90 100% 7.50 16 2 Drive-In Bank 912 20% 203 382 100% 7.50 53 7 Shopping Center 14} 820 25% 254 1.00 100% 11.00 254 23 Industrial Ught 370 110 34% 370 2.16 100% 8.18 171 21 Heavy 245 120 33% 245 1.82 100% 4.51 135 30 Industrial Part< 399 130 33% 399 2.00 100% 11.06 200 18 Service [71 145 912 50% 73 3.82 100% 8.00 19 2 848 50% 73 0.94 100% 8.00 77 10 School 200 Elementary 520 50% 100 NA NA NA NA High School 530 50% 100 NA NA NA NA Office Office Part< 750 50% 0 3.59 100% 18.16 0 0 GeneraliS] 710 50% 0 3.29 100% 2.24 0 0 Total 3202 2373 3202 2373 0 826 Notes [1] Consistent with Ashland TSP/City of Ashland Comprehensive Plan. [2] Residential = dwelling units; all other uses = employees [3]ITE Trip Generation, Fifth Edition [4) Assumes 1 employee per 1000 SF GFA [5] Assumes office building of 25.000 SF GFA (trip generation rates vary by building size) [6J Average of 9.5 employees and 4000 SF GFA [7J Assumes Bank [ITE 912] and Tire Store riTE 848] ASHLAND - FUTURE TRIP GENERATION VALIDATION DEVELOPABLE LAND AREA (4)[5] ITE TRIP GENERATION (2-1'\ 1000 Now PM Dolly PM P.ok I Us. Peak Land Use Category DU. SF GFA Employees Factor Hour Rate Hour Trips Rate Single.Family Residential 2558 100% 101 955 2584 MuJti.Family Residential 644 100% 0.63 6.47 406 Heslth Care - Senior 180 100% 100 3.00 180 Housing Reta;VCommercial Specialty Retail 38 100% 4.93 40.67 187 Hardware 19 100% 4.74 5129 90 Quality Restaurant 46 100% 9.72 76.51 447 Fast FOOd Restaurant 46 100% 4626 632.12 2128 Drive-In Bank 55 100% 51.23 265.21 2818 Shoppmg Center (3J 68 100% 6.57 187.59 447 Industrial Manufacturing 354 100% 0.86 385 150 School Elementary 100 100% 3.10 13.39 310 High School 100 100% 2.87 16.79 287 Notes (1) Trip length variation compared to single.family residential (2) Pass-byllinked trip rate reduction 13) Assumes 50,000 SF GFA shopping center (4) Based on buildable lands data within the city limits (1/26196) and outside the city limits inside the UGB (10/30190) (5) Data fOf buildable lands outside the city limits C;nside the UGB) assumes no development or rezoning since 10190. and assumes any annexation 'f1 expansion BEFORE THE PLANNING COMMISSION January 13, 2004 IN THE MATTER OF PLANNING ACTION #2003-158, REQUEST FOR FINAL ) FINDINGS, PLAN APPROVAL FOR AN 81-LOT SUBDIVISION UNDER THE ) CONCLUSIONS PERFROMANCE STANDARDS OPTIONS, LOCATED WITHIN THE NORTH ) AND ORDERS MOUNTAIN NEIGHBORHOOD PLAN AREA WEST OF NORTH MOUNTAIN ) A VEBUE, EAST OF BEAR CREEK CHANNEL AND SOUTH OF THE ) UNIMPROVED SECTION OF NEVADA STREET. THE APPLICATION ) INCLUDES A REQUEST TO MODIFY A CONDITION OF OUTLINE PLAN ) APPROVAL TO PERMIT THE REMOVAL OF AN EXISTING WETLAND, ) WHILE MITIGATING ITS REMOVAL THROUGH THE ESTABLISHMENT OF ) ADDITIONAL WETLANDS ELSEWHERE IN THE PROJECT (I.E. BEAR CREEK FLOODPLAIN). APPLICANT: NORTH MOUNTAIN LAND COMPANY, LLC ) ) RECITALS: I) Tax lots 400, 50 I & 700 of391E 04 AC is located along the west side of North Mountain Avenue, east of Bear Creek Channel and to the south of the unimproved section of Nevada Street. 2) The applicant is requesting Final Plan approval for an 81-lot subdivision under the Performance Standards Optioris, located within the North Mountain Neighborhood Plan area west of the North Mountain Avenue, east of Bear Creek channel and south ofthe unimproved section of Nevada Street. The application includes a request to modify a condition of Outline Plan approval to permit the removal of an existing wetland, while mitigating its removal through the establishment of additional wetlands elsewhere in the project (i.e. Bear Creek Floodplain). 3) The criteria for Final Plan approval are described in the Performance Standards Option chapter 18.88 as follows: Final plan approval shall be granted upon finding of substantial conformance with the outline plan. Nothing in this provision shall limit reduction in the number of dwelling units or increased open space provided that, if this is done for one phase, the number of dwelling units shall not be transferred to another phase, nor the open space reduced below that permitted in the outline plan. This substantial conformance provision is intended solely to facilitate the minor modifications from one planning step to another. Substantial conformance shall exist when comparison of the outline plan with the final plan shows that: a. The number of dwelling units vary no more than ten (10%) percent of those shown on the approved outline plan, but in no case shall the number of units exceed those permitted in the outline plan. b. The yard depths and distances between main buildings vary no more than ten (10%) percent of those shown on the approved outline plan, but in no case shall these distances be reduced below the minimum established within this Title. c. The open spaces vary no more than ten (10%) percent of that provided on the outline plan. d. The building size does not exceed the building size shown on the outline plan by more than ten (10%) percent. e. The building elevations and exterior materials are in conformance with the purpose and intent of this Title and the approved outline plan. f. That the additional standards which resulted in the awarding of bonus points in the outline plan approval have been included in the final plan with substantial detail to ensure that the performance level committed to in the outline plan will be achieved. g. The development complies with the Street Standards. (Ord 2836, S3 1999) 4) The Planning Commission, following proper public notice, held a Public Hearing on January 13, 2004, at which time testimony was received and exhibits were presented. The Planning Commission approved the application subject to conditions pertaining to the appropriate development of the site. Now, therefore, The Planning Commission of the City of Ashland finds, concludes and recommends as follows: SECTION 1. EXHIBITS For the purposes of reference to these Findings, the attached index of exhibits, data, and testimony will be used. Staff Exhibits lettered with an "S" Proponent's Exhibits, lettered with a "P" Opponent's Exhibits, lettered with an "0" Hearing Minutes, Notices, Miscellaneous Exhibits lettered with an "M" SECTION 2. CONCLUSORY FINDINGS 2.1 The Planning Commission finds that it has received all information necessary to make a decision based on the Staff Report, public hearing testimony and the exhibits received. 2.2 The Planning Commission finds that the request for Final Plan approval for an 81-lot subdivision under the Performance Standards Option, as well as the request to modify a condition of Outline Plan approval to permit the removal of the majority of an existing wetland meets all relevant approval standards described in the Performance Standards Option chapter 18.88 and North Mountain Neighborhood Plan chapter 18.30. 2.3 The Commission finds that adequate key City facilities can be provided to serve the project including -water, sewer, paved access to and through the development, electricity, urban storm drainage, police and fire protection and adequate transportation; and that the development will not cause a City facility to operate beyond capacity. The following existing and upgraded public utilities and facilities will serve the project: . City of Ashland water, sewer and electric service. . Paved access from North Mountain Avenue. . Paved access from Nevada Street. . Public sidewalks along all new streets, North Mountain and Nevada frontages. 2.3 The Commission finds that existing and natural features of the land; such as wetlands, floodplain corridors, ponds, large trees, rock outcroppings, etc., have been identified in the plan of the development and significant features have been, to the greatest extent feasible, included in the open space, common areas, and unbuildable areas. As presented on the Final Plan, the majority of the area within Bear Creek 1 DO-year floodplain shall be a public park. In addition, a narrow wetland has been identified along the northerly boundary of the project. Areas of the wetland not disturbed by street construction shall retained. The area of the wetland impacted shall be mitigated with the adjoining floodplain. 2.4 The Commission finds that development of the land will not prevent adjacent land from being developed for the uses shown in the Comprehensive Plan. The proposed Final Plan is consistent with the street layout and connectivity standards associated with the North Mountain Neighborhood Plan, specifically providing for the extension of streets and other transportation facilities to the south. 2.5 The Commission finds the proposed density meets the base and bonus density standards established under the North Mountain Neighborhood Plan and shown on the approved Outline Plan. The North Mountain (NM) Neighborhood zone sets minimum density standards for developments within the neighborhood planning area. Specifically, projects shall provide for residential densities between 75 to 110 percent of that permitted. Density transfer within in a project is permitted if shown that the density transfer furthers design and access concepts, as well as provides diversity in size and style of housing types as advocated by the neighborhood plan. The North Mountain Neighborhood Plan anticipates a residential density for this project between approximately 70 to 100 residential units. Consequently, evidence has been included in the record to show that the proposed project density is within 75% to 110% of the allowed density within the North Mountain Neighborhood Plan. SECTION 3. DECISION 3.1 Based on the record of the Public Hearing on this matter, the Planning Commission concludes that the proposed Final Plan for an 81-lot subdivision under the Performance Standards Option and modification of a condition of Outline Plan approval, as modified through the conditions of approval, are supported by evidence contained within the whole record. Therefore, based on our overall conclusions, and upon the proposal being subject to each of the following conditions, we approve Planning Action #2003-158. Further, if anyone or more of the conditions below are found to be invalid, for any reason whatsoever, then Planning Action #2003-158 is denied. The following are the conditions and they are attached to the approval: 1) That all proposals contained within the application shall be conditions of approval unless otherwise modified below. 2) That all relevant conditions of Outline Plan approval (P A2002-151) remain applicable to the project. 3) That a revised site, size and species specific landscaping plan, which incorporates the recommendations of the Ashland Tree Commission, be provided prior to signature of the Final Survey Plat. The landscaping plan shall apply to right-of-way plantings strips and all common areas. Plantings and grading within the Bear Creek Greenway area shall be reviewed and approved by the Staff Advisor for consistency with Goal 5 with respect to buffer width and riparian plant selection. 4) That street names be reviewed and approved by the City of Ashland for compliance with the City's resolution for street naming. The public street adjacent to the floodplain shall be named Greenway Drive, unless determined otherwise by the Staff Advisor. 5) That all fencing be consistent with the provisions described in the NM Zone as well as under the General Regulations chapter 18.68. Stipulations with regards to fencing shall be described in the project's CC&R's. Fence heights within side and rear yard areas adjoining a public right-of-way or public multi- use pathway shall not exceed four feet. All construction boundary fencing shall be chain link with slats. Construction fencing shall be removed at the appropriate time. 6) The Final Utility plan shall prohibit the installation of underground pipes through the drip lines of existing trees east of Alley (C). The engineered design shall be consistent with any applicable methodologies used in the City of Ashland Stormwater and Drainage Master Plan, as determined by the Ashland Engineering Division. 7) That a Physical Constraints Review Permit for development associated with the construction of the storm water detention facility (bio-filtration swale) and wetland mitigation area shall be approved prior to signature of the subdivision survey plat. The final engineering design for these facilities shall be submitted as part of the Physical Constraints Review Permit. The long-term maintenance of the facility shall be the responsibility of the Homeowner's Association, unless otherwise modified by the Public Works Director, and described in detail in the CC&R's. 8) That the location and final engineering for all potable water system improvements associated with the project, be submitted prior to signature of the subdivision plat for review and approval by the departments of Public Works and Planning. The engineered design shall address the abandonment and re-routing of the existing 8-inch line along Nevada Street. 9) That additional right-of-way shall be dedicated along the project's Nevada Street frontage (consistent with City of Ashland A venue standards) needed to accommodate Nevada Street improvements. In addition, right-of-way shall be dedicated adjacent to and within tax lot 40lfor the purpose of street construction. Right-of-way width adjacent to tax lot 401 shall be of sufficient width to accommodate a minimum street width of 24-feet, curbs on both sides, storm drainage facilities, with a 7' to 8' planting strip, and 5-foot public sidewalk along the south side. 10) That the properties within the project sign in favor and agree to participate in a local improvement district for future construction of the Nevada Street bridge across Bear Creek. The agreement shall be prepared by the City of Ashland and signed by the property owner prior to signature of the final survey plat. 11) That a draft copy of the CC&R's for the Homeowner's Association is provided at the time of Final Plan. CC&R's to describe responsibility for the maintenance of all common area-improvements including landscaping, hardscape and water features, as well as pedestrian pathways, planting strips and street trees. Stipulations with regards to fencing shall be described in the project's CC&R's. 12) That City of Ashland approved street trees shall be installed every 30 feet along street frontages as part of the overall subdivision improvements or, when appropriate, prior to the issuance of a certificate of occupancy. Street trees shall be installed within the planting strip/park row prior to the certificate of occupancy. A tree planting detail and the irrigation system plan shall be submitted for review and approval. 13) That all easements for public multi-use pathways, sewer, water, electric, and streets are indicated on the final survey plat a required by the City of Ashland. 14) That final engineering for all proposed streets and alleys shall be reviewed and approved by City of Ashland Planning & Engineering Divisions for consistency with City of Ashland Street Local Street Standards prior to signature of the final survey plat. Plans to include profiles and cross sections, indicating cuts and fills. 15) That erosion control and slope stability methodologies for cut and fill slopes consistent with the standards for Hillside Lands contained in AMC l8.62.080B. shall be submitted with the final engineering plans. (i~That a final engineered grading plan for the project shall be reviewed and approved by City of Ashland _.- Planning & Engineering Divisions prior to signature ofthe final survey plat. The grading plan shall include information on cut and fill slopes resulting from infrastructure construction, and propose slope stabilization and erosion control measures consistent with the standards described in 18.62.080 (B). In addition, the grading plan shall address final street elevations and insure the appropriate transition and extension of streets south of the project. 17) That engineered construction drawings for improvements along the project's North Mountain Avenue frontage (through the intersection with East Nevada Street) shall be reviewed and approved by City of Ashland Planning & Engineering Divisions prior to signature of the final survey plat. Improvements to North Mountain Avenue shall include curb and gutter, scored-concrete pedestrian crossings, 8-foot center landscape median, storm drains, bike lane, curbside parking lane (where feasible), seven-foot planting strip and six-foot public sidewalk. 18) That all requirements of the Ashland Fire Department, as noted in their pre-application comment sheet dated July 23,2002, be addressed prior to the signature of the final survey plat or the issuance of a certificate of occupancy for each new home. In addition, the location of all fire hydrants shall be identified on the final engineering drawings for public improvements. 19) That prior to the commencement of construction activities, including public infrastructure improvements and individual building construction, the 100-year flood plain boundary must be delineated on-site by a registered surveyor and maintained until the completion of all construction activities. 20) That proposed residences constructed on lots with frontage on a public alley shall take automobile access from the alley. No driveway approaches shall be installed along the street frontage. 21) That a certificate of elevation be provided for homes constructed upon lots 1, 14-17, and 21-25. The certificate shall be completed an Oregon registered surveyor and shall certify that the elevation of the finished habitable floor level is 2-feet or greater above the base flood elevation as required in AMC 15.10.080B.1.a. 22) That a one-foot wide street plug be provided on the survey plat at the terminus of all southerly street and alley extensions. 23) That the project CC&R's include a statement informing property owners that an area of the subdivision is located within the Area of Inundation in the case of an Emigrant Lake dam failure, as depicted in the Bureau of Land Management (BLM) study. 24) That a separate Site Review application be processed for all attached housing units (with the exception of accessory residential units) and mixed-used units (76-96), prior to issuance of a building permit. Unit design shall be consistent with the architectural renderings, in terms of diversity of materials and building details, provided in the record as part of Outline Plan approval. Findings of Fact shall accompany the Site Review application describing consistency with North Mountain Design Standards, specifically with respect to "Repetitive Elevations". 25) That a Physical Constraints Review permit be processed with Final Plan for all "Development", as defined in 18.62.030 E., proposed upon Floodplain Corridor Lands. 26) That the applicant agrees to design each "C"- type residential structure along East Nevada frontage with gates in fences and man-door on garages, landscaping, entrance walks, porch stoops, residential lighting, . windows in second story facades and garages that support a general appearance of front yards. The design toward Nevada Street shall be consistent with Architectural Elevation provided by the applicant at the March II, 2003 Public Hearing. 27) That pedestrian-scaled street lighting installed along North Mountain, East Nevada, Greenway Drive and all neighborhood streets shall comply with the standards of Ashland's Electric Utility and approved by the Staff Advisor. In general, the City of AsWand's Commercial light standard (i.e. Sternburg) shall be installed in the NM-C area, while the City of Ashland's residential light standard (with downward illumination) shall be installed along residential streets. 28) That the final engineering submitted prior to signature of the final survey plat for all streets and alleys shall be consistent with City standards addressing distance between driveways, as well as driveway distance from proposed street intersections. Specifically, with units 66-78. In addition, a shared driveway approach (12' in width) is required to serve units 48 & 50 and units 57 & 59. 29) That the applicant shall be responsible for the improvement ofE. Nevada Street from the intersection with Greenway Drive east to the intersection with North Mountain Avenue. Such improvement shall include a minimum 24' paved width, curb and gutter on both sides of the street. A parkrow and sidewalk on the south side of the street from the intersection with Greenway Drive east to end of the applicant's property shall also be constructed. No sidewalk improvements shall be required at this time for the right-of-way abutting tax lots 500 and 600 (White and Marr properties). The applicant shall be eligible for SDC credits for improvement costs beyond those improvements shown on the layout plan for the subdivision. Specifically, the applicant shall be eligible for SDC credits for asphalt widening from 22' to 24' and curb and gutter on the north side ofE. Nevada for the frontage of the applicant's property and tax lot 401 (Cislo). Further, the applicant shall be eligible for SDC credits for the street improvements abutting tax lots 500 and 600. Street improvement plans and SDC credits shall be reviewed and included as part of Final Plan review. All streets shall be constructed and surfaced prior to the issuance of a building permit. 30) That the written authorization from the Oregon Division of State Lands, and any other applicable Federal or State permitting agency, be provided for alteration of the delineated wetland prior to Final Plat approval or proceeding with the constructions of subdivision improvements. If off-site mitigation is approved, mitigation measures shall be located and carried out in the floodplain and should be associated with the water quality facility. In addition, the design of the water quality facility shall blend together with the natural area and habitat associated with the floodplain. A final design for the mitigation plan, including grading and wetland Planting Plan, shall be provided prior to signature of the Final Survey Plat. 31) The following Solar Access standards shall be applied to the project: A. Sinl!le Familv Homes ITYDe Fl. - All homes (Type F) with public right-of- way to the north shall be subject to Solar Standard "A". All other homes (Type F) that are to be constructed on east/west oriented lots and that do not have a right-of-way to the north shall be permitted to have their shadow encroach four feet up (measured 4- feet above the living area's finished floor elevation) upon the neighboring residence. B. Town Homes (Tvpes 8.C,D & E). - All town home units with a public street/alley to the north shall also be subject to Standard "A". Common or attached walls are not subject to solar access regulations. Where separation occurs between groups of attached units (i.e. "B" units 63 & 64) as indicated above, Standard "A" shall be relaxed and the shadow may encroach four feet up (measured 4-feet above the living area's finished floor elevation) upon the neighboring residence. Accessory Residential Units - Accessory Residential Units are subject to the same solar standard as the primary residence structure, as indicated above. 32) That the following lot coverage requirement be applied to development in each Neighborhood Overlay: NM-RI7.5 = 45% lot coverage; NM-R1.5 = 50% lot coverage; NM-MF = 75% lot coverage; and NM-C = 85% lot coverage. 33) That individual buildings in the Neighborhood Central Overly (NM-C) are limited to 3,500 square feet of total floor area (18.30.030 E.). 34) That setbacks along the perimeter ofthe project shall comply with setback requirements of the parent overlay. 35) That tree protection measures consistent with those described in 18.61 shall be erected and maintained throughout duration of the project prior to grading or other site disturbances resulting from subdivision construction. In addition, tree protection measures shall be included to protect the existing large tree on tax lot 401. Fill within the tree's dripline shall be limited to a depth of no greater than 12 inches, unless otherwise approved in writing by the Tree Commission in conjunction with the Staff Advisor. 36) That lots I - 9 as shown on the tentative Final Plat map accommodate only one-unit per lot as identified on the Outline Plan map. A proposal to increase density on these lots shall be processed an amendment to the approved Outline Plan and subject to the density transfer provision of the NM Zone. 37) That unless otherwise agreed upon by the City of Ashland, the storm water retentionlbio-filtration system and mitigated wetland area shall be maintained through the Homeowner's Association. As noted in the application, Homeowner's Association is responsible for contracting with a utility maintenance company for the maintenance of the facility. All parameters for maintenance of the facility, including time lines and enforcement, shall be reviewed and approved by the City Public Works Department and described in the CC&R's. 38) That the final CC&R's shall be amended to remove any text referring to the prohibition of drying clothes outside. 39) That the existing irrigation distribution system for surrounding property owners remains intact. If it is modified, changes shall be approved by the Talent Irrigation District (TID), with the proposed changes noted on the final engineering documents. 40) That Final Plan be modified to pull back the sidewalk to within six feet of units 64 and 65, creating a swale between the sidewalk and Nevada Street. The intent and implementation of the swale shall be to preserve the existing groundwater seep, maintain the overflow feed from Till, and supplemental irrigation as any other planting strip improvement would receive. 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G , , ~ , , , ~ < ~ , ;t 6 ~ ~ , , l ~ ~ ~ ~ ~ ~ ~ ~ , ~ I' CITY OF ASHLAND February 16, 2007 Adam Hanks City of Ashland 20 East Main St Ashland, OR 97520 RE: MEADOWBROOK SUBDIVISION (PW NO. 03-06) Dear Adam, I have reviewed the costs that are eligible for transportation SDC credits as prescribed by final planning conditions for the above referenced project, reviewed the estimates provided by the contractor, assigned the appropriate percentages according to the SDC eligibility criteria, and reviewed my calculations and assumptions with the Public Works Director and City Attorney. Please credit the developer for $63,075 for building permits that are issued within the subdiviSion's boundaries. If you have any questions, please call me at 552-2413. Sincerely, /JQA,Stnae4} Pieter Smeenk PE SE Associate Engineer CC: Mark S. Bartholomew Steve DeCarlow Richard Appicello Bill Molnar Paula Brown Jim Olson G:\pub-wrks\eng\03-06\5\Meadowbrook Subdivison-SDC credits reccomendation.doc ( 2.16.07) Public Works Engineeering 20 East Main Street Ashland,Oregon97520 www.3shland.oLUS Tel: 541-488-5587 Fax: 541-488-6006 TIY: 800-735-2900 .... IF.. '1 W1tr~t>L)Ol.mJ1' fOR COf'{\f\JT)~\~~ soc CRfOtS II/sO f 6(, ?RofO\tODN\vJG or t-~ ~)f\cA ST, (::,e€- o.,~C\d\<?J\ fV\lhp ~ dev.,\ S1..J\ il ON \ r-:(; lX.N1;\\-i (;t~ IS. NSIJADA s-r 4455' - 4s'O S = 7d (4:J %) 5'&::,Y'!\tNt FRoN.....S N, MNTN),M '(<.oW 4'3~'; - 3'2>7D ::: 51S) (34.t>1;'J ~~)'l\(NT f~Nt; it.. sco t b00 3B7D - 211:; :::. ~G,o.s?,;) SwMtr.r: fRoM-iS mfADo'WPJ:x)K 14BD (loO;f:'::>) -rurAL- SUf->onJi,))!)kJ PRo\')OR"i0N Of RJJV:::W()((J:,:" St-,1.,\fSL.t PG( fU'\N~IN(, M'iJ0_ l' (S~e (Att~c\\("O: Cur"i of \J10"l"\i':j (\('1,3'0 Cllt\,"\")n (1),2'1 ") , J ('2-') ~oS~b + 34-'bq~ :::: 3~.e% ~ Irf'R- -\\e,mS l-fhru 4 2-4' ~\ \ 5 i\z " ') c.,/ t ., J1.. ()., q, -- !.L \ oJ (J{ I' '11 n",^ '1 .~ 'LS'lLlei \-~ "':>'0 :>'"'T.V/0 _.. l7~1 16 '1 \(\e 't~f'" T A,\.-'v OIM1SR LXNt HElY\S ARf C""'1JE~ ~\A)( twiJ~g\.~ O'K ~oT PtT Au- S\;lOt:?,J::I?>'tGf:\LF;t Gt tt~,R, WCJ11ID~ ('Set ~~~uJ j \ ~ 12\"'" '\ "\ [)\O- Sc..'n-eO\~, 't ~~'f0 :), \\5 JJc\('Jltre ) ~ -rot~\ = '11)0Yl ,04- PRDro\Zf))~ (/;:; CD';\"';' f:UJo\:,t.( t;6L sp c.. (R.tp!T:::: 0S%1\ ( ~e 0\Ttoi'r\'(~ COrj oC'S'Dc. ~\..~b' B.1.f- ie-\Sfe\R:rAh:nJ II'W~OV\') \RAN')\'6~1 Jl,.1!JN Sf)l~ e-roJ,} )<11P?'1\()cr~ bsO;; =~ro?"P7r; bUt r ;ok O\c\op~~r} bj c.mj\\t:\l '111 \o\~~ J Dro-x;M {Gf~ ~ YrC\(,C~(Xi\l'I'l1\j r / ~ gates in fences and man-door on garages, landscaping, entrance walks, porch stoops, residential lighting, windows in second story facades and garages that support a general appearance of front yards. The design toward Nevada Street shall be consistent with Architectural Elevation provided by the applicant at the March 11, 2003 Public Hearing. 27) That pedestrian-scaled street lighting installed along North Mountain, East Nevada, Greenway Drive and all neighborhood streets shail comply with the standards of Ashland's Electric Utility and approved by the Staff Advisor. In general, the City of Ashland's Commercial light standard (i.e. Sternburg) shall be installed in the NM-C area, while the City of Ashland's residential light standard (with downward iilul11ination) shall be instailed along residential streets. 28) That the final engineering submitted prior to signature of the final survey plat for ail streets and alleys shail be consistent with City standards addressing distance between driveways, as weil as driveway distance from proposed street intersections. Specificaily, with units 66-7R. In addition, a shared driveway approach (12' in width) is required to serve units 4R & 50 and units 57 & 59. 29) That the applicant shail be responsible fLlf the improvement of E. Nevada Street from the intersection with Greenway Drive east to the intersection with North Mountain Avenue. Such improvement shall include a minimum 24' paved width, curb and gutter on both sides of the street. A parkrow and sidewalk on the south side of the street from the intersection with Greenway Drive east to end of the applicant's property shall also be constructed. No sidewalk improvements shail be required at this time for the right-of-way abutting tax lots 500 and 600 (White and Man properties). The applicant shall be eligible for SDC credits for improvement costs beyond those improvements shown on the layout plan for the subdivision. Specifically, the applicant shall be eligible for SDC credits for asphalt widening from 22' to 24' and curb and gutter on the north side of E. Nevada for the frontage of the applicant's property and tax lot 401 (Cislo). Further, the applicant shail be eligible for SDC credits for the street improvements abutting tax lots 500 and 600. Street improvement plans and SDC credits shall be reviewed and included as part of Final Plan review. Ail streets shall be construeted and surfaced prior to the issuance of a building pennit. 30) That the written authorization from the Oregon DiVISion of State Lands, and any other applicable Federal or State permitting agency, be provided for alteration of the delineated wetland prior to Final Plat approval or proceeding with the constructions of subdivision improvements. If off-site mitigation is approved, mitigation measures shail be located and carried out in the floodplain and should be associated with the water quality facility. In addition, the design of the water quality facility shall hlend together with the natural area and habitat associated with tbe floodplain. A final design for the mitigation plan, including grading and wetland Planting Plan, shall be provided prior to sii,'11ature ofthe Final Survey Plat. 31) The following Solar Access standards sball be applied to the project: A. Single Family lIomes (Type F). - 1\11 bomes (Type r) witb puhlic right-ot~ way to the north shall be subject to Solar Standard "!\". All otber homes (Type F) that are to be constructed on cast/west oriented lots and that do not bave a right-ot~way to the north shall be permitted to have thcir shadow encroacb four feet up (measured 4- 1- ,e , I I I I I I I ~ I ~ t- I ~ U1 I ~ I .J I I I U) I, dl ~ -.11, (;)1 IT 7[ ~. I ~ I oE2' I ;;;~~ I ... I I I I I I I I ~-----------~. ~--- -.-- - ~ .... V) ~ . <l: Cl <l: > w Z I I I ~, "', -SIA. 43-t~ STA.~ _ 41+55 JI)NJ-1'" """J.Nn 0,," HJ..IJo", '~j NIVINn o " 0 ..- Q) .1 -, o. ~, i~ ~~ f-~~' ~~ I~ ~-:;';:'~ ~~ :~ ....2;:D Ul<D II) NO ~ ~j un~;o U)... , ..8 !g --;;:; ~ 0" ~ 69: ~::~l^I~ 330ltl "Old IVU~ "014 ]^,HO ];"u, '~o , r69 ~. ~ ~iGJ ., :0' ,_ ~ ~~-"'- ]NYl "'O.uVd l~ - --~"'~' ( l, ,; Jf1NJA., J:Ja/#JJNoJ.S r-_:::, I, ~r-;, I~. P '!I I"'~f' . I ~I; ---T[I", i ~;:""=1 ~"~ ' I; ~nnrrrrTl; I I ~ ! l . , 11 .. I "~-I I I ; . , i i ~ ! ;; ;; U" ----- ! H I 1 I l__ - ~ (]~- ~ ------ PA.RKW""" i"WNDALE I J I ! l_ I I I .J --~ ---~-- . ~-.<~ S:::::::::JD ~I>i.lf~~<i 17;-=0'-' _____ 'Y"'1v..j _____ ~_ _ :;,~~ "'?,,J JI"v . "" 00 u ___u> '.- ^" ~,-,.,.~" Bill's Back-Hoe Service Inc. 1568 Pacific Lane - Phoenix, Oregon 97535 Telephone (541) 773-3995 BILL REAGAN - Owner CCB# 21657 Meadowbrook Park II at North Mountain Quantity Estimate to Completion March 16, 2006 Item East Nevada Street Units Qty Unit Price Total Price 1 Excavation (Roadway) it 5bC\I.4J CY 2200 $6.50 $14,300.00 2 Asphalt Concrete, Class "C" 21.Q)5.1'2 Tons 880 $63.00 $55,440.00 3 Base, 3/4"-0" Minus Crushed Rock 2'1E)SO,cD CY 3000 $25.00 $75,000.00 4 Geotexli/e Fabric, Non-Woven 'L\? B\'b~ SY 5374 $1.00 $5,374.00 5 18' Driveway Apron ~oo EA 2 $800.00 $1,600.00 6 26' Commercial Driveway Apron \ DO EA 1 $1,400.00 $1,40000 7 Curb & Gutter 15 Z..,J,G1 LF 3234 $7.25 $23,446.50 8 Sidewalk SF 2480 $4.25 $10,540.00 9 Wheel Chair Ramps EA 9 $800.00 $7,200.00 10 Sawcut Existing Asphalt LF 60 $4.00 $240.00 11 Remove Existing Asphalt Tons 492 $5.00 $2,460.00 12 Construct Natural Green Area 4'1:0 SF 1100 $4.50 $4,950.00 13 SDCI (4A) 2~ EA 4 $720.00 $2,880.00 14 Rock Excavation !'2.roJ LS 1 $12,000.00 $12,000.00 11 q 70~1 .~ Sub-Total $216,830,50 Item North Mountain Avenue Units Qty Unit Price Total Price 1 Excavation & Haul Away CY 403 $6.50 $2,619.50 2 Asphalt Concrete, Class "C" Tons 90 $63.00 $5,670.00 3 Base, 3/4"-0" Minus Crushed Rock CY 449 $25.00 $11,225.00 4 Geotextile Fabric, Non-Woven SY 862 $1.00 $862.00 5 Standard Vertical Curb (16") LF 218 $10.00 $2,180.00 6 Curb & Gutter LF 381 $7.25 $2,762.25 7 Wheel Chair Ramps EA 3 $800.00 $2,400.00 8 Sawcut Existing Asphalt LF 480 $4.00 $1,920.00 9 Remove Irrigation Structure EA 1 $800.00 $800.00 10 Street Lights LS 1 $40,325.00 $40,325.00 11 Crosswalks LS 1 $8,040.00 $8,040.00 12 Lot Grading, Sidewalk, & Utility Backfill LS 1 $16,200.00 $16,20000 Sub-Total $95,003.75 Grand-Total $311,834.25 Time Line: Start April 3, 2006 Complete June 15, 2006 To Completion Citv of Ashland Transportation Svstems Deve/aoment Chan!e Julv /999 t,f f7.ll Jb t,O C:Y' ~~ O~ I~:~;~VJ~~~ \ C)\1 {~ SDC ELIGIBLE TRANSPORTATION IMPROVEMENTS 1-5 ". 6-10 Nevada - Bear Creek to N Mountain Capacity 6-10 Bear Creek Bridge @ Nevada Capacity 6-10 N Mountain - Hersey to Nepenthe ('h street) Capacity 6-10 Tolman Cr - Siskiyou Blvd Approaches Capacity 6-10 Clay SI - Siskiyou to Ashland Upgrade 6.10 E Main. City Limits to Normal (west) Capacity 11-20 N Main - Hwy 99 to Fox Upgrade ,. 11-20 AShland Mine Rd Upgrade 11 11-20 E Hersey - Ann to Mounlain ('h Street) Upgrade 12 11.20 4th St Extension to Hersey Capacity 13 11-20 N Mountain - Nepenthe 10 Nevada Capacity 14 11-20 Tolman Cr - Green Meadows to Black Oak Upgrade 5 11-20 Tolman Cr- Black Oak 10 Siskiyou Upgrade 6 11-20 E Main - Normal Ave to City Limits (east) Upgrade 17 11-20 E Main - at Tolman Creek Rd Upgrade 18 11-20 Crowson Rd - Siskiyou to Green Springs Hwy Upgrade ,. 11-20 Normal Avenue Extension to E Main Capacity . 11-20 Clay St - Ashland to E Main Upgrade 1 11-20 Tolman Cr Rd - Ashland SI to E Main Capacity 2 11.20 Mistletoe - Siskiyou to Tolman Creek Upgrade 3 Dead Indian - Green Springs Hwy Approach Upgrade INTERSECTIONS Capacity Capacity 11-20 UPRR CROSSINGS (4) 11-20 TRANSIT (Local, capital costs) 11-20 SIDEWALKS 11-20 BICYCLE FACILITIES Upgrade Capacity Capacity Capacity Combo $2,500,00 $2,500,00 $314,16 $120,27 $184,00 $184,00 45O,{ $660,00 $374,88 35O,{ $184,80 $104,966 25O,{ $66,00 $37,48 15O,{ 9,90 $330,000 $187,44 150;' 49,50 $142,56 $39,91 150;' 21,38 $106,25 1000;' 106,25 $286,44 $109,666 65",{ 186,18 $528,00 $299,904 15O,{ 79,20 $158,40 $89,971 15O,{ 23,76 $3,976,80 $3,554,82 15o/c 596,52 $272,00 $272,00 15o/c 40,80 $1,000,00 $568,00 30% 300,00 $344,89 750;' 455,40 $418,90 15"": 110,62 $162,408 65% 275,73 $682,31 75"'{ 900,93 $92,00 15o/c 13,800 '5 ::~1;!:*1O~fAA~ 1,000,000 175,000 25% 250,00 70,00 40% 1,000,000 303,282 2,052,000 3,041,000 3,135,119 ~i1~~I'~la,!81 15% 150,00 75,821 513,00 760,25 564,321 25% 25% 25% 18% ELNDT- ast Per ELNDT 39,0 $2 ugust 1,1999 Cost per LNDT = $93 anuary 1, 2000 Cost per LNDT = $154 uly 1, 2000 Cost per ELNDT = $214 City 0/ Ash/and -- Department a/Community Development 4 , CITY OF ASHLAND June 11,2007 Mark S. Bartholomew 717 Murphy Road Medford, OR 97504 RE: Meadowbrook Park II Appeal of SDC credit determination Dear Mr. Bartholomew: My office is in receipt of your June 8, 2007 request for an appeal hearing on the City's determination of the amount of SDC credits owed to North Mountain Land Company, LLC. Your request will be forwarded to the City Administrator's office for any further action. Barbara Christensen City Recorder roJ~@~DW~~ [ill JUN 11 2007 IJJ Cc: Richard Appicello, Ass!. City Attorney Paula Brown, Public Works Director By CITY RECORDERlTREASURER 20 E Main Street Ashland, Oregon 97520 www.ashland.or.lIS Tel: 541-488-5307 Fax: 541-552-2059 TTY 800.735-2900 ~~, HORNECKER, COWLING, HASSEN & HEYSELL, L.L.P. Attorneys at Law Gregory T Horncckcr Robert L. Cowling John R. HaS$cn R. Ray Hcyscll n. 8(;otl PiouS{' P. Dnid Ingalls Adam 'f. Stamper"' Joseph E. Kelluman James A. Wallan Benjamin M. Bloom Charll2'S E. B()lcn RyanJ. Vanderhoof 717 Murphy Road Medford, on 97504 (54:1) 779-S9OG Fax: (541)779.2982 htlp:www.ro~m.law.(Om Richard L. Hillin .Stefanit L. Burke Mark S. Bartholomew Eric D. Mitton UErik C. Lal"S('n, LL.M. Stephen L. Brown OjCollnsf!!_ Fred M. Aebi Raired - B. Kent BJlIdulUTSl Enin B. Hogan ]927.1000 -Also admitted in California ."AlsoadmiUE'rlln Idaho VIA E-MAIL AND REGULAR MAIL June: 8, 2007 Ms. Barbara Christensen City Recorder City of Ashland 20 E Main St. Ashland, OR 97520 RE: Meadowbrook Park II Appeal of SDC credit determination , Our File No. 24429B Dear Ms. Christensen: We are requesting an appeal hearing. pursuant to 4.20.100(B), of the City's determination of the amount of SDC credits owed to North Mountain Land Company, LLC. North Mountain Land Company, LLC is entitled to SDC credits as a result of work performed by the developer for PW No. 03-06. 1_ Appellant-North Mountain Land Company, LLC, 3126 State Street, Suite 202, Medford, OR 97504. 2. Agents for Appellant-P. David Ingalls and Mark Bartholomew, 7]7 Murphy Road, Medford, OR 97504. 3_ Nature of the Determination Being Appealed-City's determination that $63,075 in credit is owed to Appellant. 4. The City's determination is incorrect for the following reasons: HORN ECKER, COWLING, HASSEN & HEYSELL Barbara Christensen June 8, 2007 Page 2 A. The sum of the dcve]oper's expenditures is listed, and written, on the document from Bill's Backhoe Service, Inc. Those handwritten numbers were derived by Pieter Smeenk. Mr. Smeenk's sum total is $97,039.04. Mr. Smeenk then multiplied this figure by .65 to arrive at the total amount of credits, which is $63,075. It is unclear to us why $97,039.04 was multiplied by .65. Mr. Smeenk pointed to a document entitled "SDC Eligible Transportation Improvcments," which states that Item No.3, Nevada _ Bear Creek to North Mountain, is listed with a capacity of 65 percent. It is unclear 10 us what the 65 percent figure represents. Additionally, we have not found any authority in the Comprehensive Plan that would indicate that the 65 percent capacity should result in credits in the amount of only 65 percent of expenditures. The 65 percent is apparently derived from the SDC portion of the total project and the revised estimated cosl of Nevada _ Bear Creek to North Mountain. That is, that the SDC portion of the total project, being $274,560, is 65 percent of the revised estimated cost of $422,400. The SDC E]igible Transportation Improvements document also seems to indicate that the amount of $239,923 is eligible for rebate. If that is the case, why is the developer currently only set to receive $63,075? We believe the developer is entitled to more. B. It appears that Mr. Smeenk's calculations are erroneous, perhaps due to a misunderstanding of the figures on the document from Bi]l's Backhoe Service. For example, Item No. I - Excavation had a total price of $14,300. This figure, along with all other figures on the document from Bill's Backhoe Service, is the cost of the improvements abutting tax lots 500 and 600, which by Mr. Smeenk's calculations constituted 34.8 percent of the total improvements on East Nevada. Mr. Smeenk credited 34.8 percent of $]4,300 to the SDC credits (prior to multiplying it by .65). However, he only gave credit fOT 2/24ths of 60.5 percent of $14,300 (as well as all of the other items on the Bill's Backhoe Service document). We bclieve that Mr. Smeenk was perhaps mistaken about the total cost and was under the impression that the figures represented the total cost of construction of that portion of the street not abutting tax lots 500 or 600 or located near North Mountain. Because the figures from Bill's Backhoe Service already only included the marginal increased costs from 22 feet to 24 feet of street, his mu]tiplication of the portion of expenditures allocable to that portion of East Nevada by 2/24th should not have been done. because it was already taken into account prior to submittal of the figures to the City. C. 4.7 percent of the work performed On East Nevada Street, which on a handwritten note by Mr. Smeenk titled "Methodology for Computing SDC Credits" dated 11-30-06. was not credited. Mr. Smeenk indicated that this was because it was only parking and did not increase capacity. It is true that the developer only recei ves SDC credits faT improvements that increase capacity. However, that ponion fronting the North Mountain Avenue right-of-way is indeed a street which connects East Nevada and North Mountain, thereby enhancing capacity. HORNECKER, COWLING, HASSEN & HEY SELL Barbara Christensen June 8, 2007 Page 3 D. Item Nos. 8, 9, 10, and lIon the Bill's Backhoe Service document were not credited. Wc believe these should be credited. Sawculling and removing existing asphalt arc nccessary precursors to the construction of the road, increasing capacity. Sidewalks and wheel chair ramps are necessary components of road construction, also lending to capacity. E. The developer also constructed part of North Mountain A vcnuc just south of the previously mentioned 4.7 percent segment. It is apparent from Bill's Backhoe Service's document that no credits werc awarded for that work, which totaled $95,003.75. It is our understanding that the City's position is that the approval document, paragraph 29, only specifically stated that the development will he eligible for SDC credits for asphalt widening from 22 feet to 24 fcct and curb and gutter on thc north side of East Nevada, for tax lot 40], and for street improvements abutting tax lots 500 and 600. Although the improvements done on North Mountain A venue were not specifically mentioned in paragraph 29 for SDC crcdits, paragraph 29 docs mandate, as a condition of approval, the improvements the developer did perform on North Moumain A venue. That section of North Mountain A venue does appear to be one of the SDC eligible transportation improvements according to that document. We believe that the work performed on North Mountain A VCnue is a qualified public improvement, which is on the City's list of SDC eligible transportation improvements, and, therefore, SDC credits should be awarded for that work. 5. We respectfully request credit in the lUllount of $311,834.25, as noted on the attached document from Bil], s Backhoe Service. Chapter 4 of the municipal code does not indicate that there is an appeal fee for an appeal of an SDC credit detemlination. Please advise us immediately if a fee is required. Very truly yours, :gnu cc: Richard AppiceHo, ES4. Mdc MARK S. BARTHOLOMEW H:\USER\FILES\24429B\appcal_SDC credits issues.doc HORNECKER, COWLING, HASSEN & HEYSELL, L.L.P. Attorneys at Law Grc~ory T. Borncckcr Robert L. Cowling John R. Hassen R. Ray llcy~dl II. Scott Plousc P. David Ingalls Admn T. Stampcr* Joseph E. Kellerman James A. WuHan Benjamin M. Bloom Charles E. Boll'n Ryan J. Valldcrhoof 717 Murphy Road Medford, OR 97504 (541) 779.8900 Fax: (541)779-2982 http:www.n.~llclaw.colll Richard L. Hillin "Stefanic L. Burke Mark S. Bartholomew Eric It Mitton *"'Erik C. Larsen, LL.M. Of Counsel- Fn.-d M. Acbi Retired - It Kent Blackhurst Ervin B.lIogan 1927-2000 *Also admiUcd in California ** Also admitted in Idaho VIA E-MAIL AND U.S. MAIL March I, 2007 Pieter Smeenk, P.E., S.E. City of Ashland Public Works Engineering 20 East Main St. Ashland, OR 97520 RE: Meadowbrook Subdivision (PW No. 3.06) Our File No. 24429B Dear Pictcr: Thank you for your e-mail of February 16,2007, which included a letter from you to Adam Hanks regarding SDCs, as well as your calculations and an additional sheet titled "SDC Eligible Transportation Improvements" (attached for your easy reference). Despite the information you sent me, it is still unclear to us exactly how the City has determined what is creditable and how that determination was made. More specifically, we have the following questions: 1. On the page titled "SDC Eligible Transportation Improvements," you list item no. 3 as Nevada - Bear Creek to North Mountain with a capacity of 65%. We would like to know from what document this page was copicd. It appears to be page 4 to some other document. Where is the remainder of the document? Was this document adopted by the Council in 1999 (you reference on your handwritten sheet entitled "Methodology for Computing SDC Credits" that something was adopted by the Council in 1999)? 2. On the statement li'om Bill's Back-Hoe Service, you wrote various amounts. On lines 1-5 and line 7, you wrote a dollar amount lower than the total price charged to Steve DeCarlow by Bill's Back-Hoc Service. On :lines 6 and 12-14, you wrote the same amount HORNECKER, COWLING, HASSEN & HEYSELL Pietcr Smeenk, P.E., S.E. March j. 2007 Page 2 charged by Bill's Back-Hoc Service. Additionally, lines 8-11 were not credited. We do not understand why some amounts were credited for the full amount, while other amounts were either credited at a lower rate or not credited at all. Please explain this to us. Finally, we ask for your explanation as to why none of the North Mountain A venue work was credited. 3. Your handwritten notes titled "Methodology for Computing SDC Credits" include various calculations that are related to your notes on the statement from Bill's Back- Hoe Service. We would like an explanation of the numbers and calculations because without answers to the above questions, the calculations appear to be quitc esoteric. We would appreciate receiving answers to our questions within 10 days of this letter. If that is not possible or if you feel that it would be beneficial to meet with us in person to explain everything, please let us know. We are looking forward to putting this issue to rest, as I am surc you are. Thank you for your help and thank you in advance for your cooperation. Very truly yours, ,c I. 7 ;VLL MARK S. BARTHOLOMEW :gnu Attachment 1 ,. " " ;: I' v c " 'f"'/ ;" '-,.,.... "L~ ;\ !~D rjLED 07 SEP I 7 PM 2: I 0 2 ;str2tor )JNTY , RI /..L cOUP. T .~ D1iJ;1:S T R t.. T OR DOCKETED u '( 3 4 CIRCUIT COURT OF TIIE ST ATE OF OREGON FOR THE COUNTY OF JACKSON S 6 Case No. 1)73695 z:-1" 7 NORTH MOUNTAIN LAND COMPANY, LLC, an Oregon Limited Liability Company, 8 9 10 11 12 13 14 15 16 17 Petitioner, ORDER FOR WRIT OF REVIEW vs. THE CITY OF ASHLAND, a municipal corporation of the state of Oregon Respondent. Petitioner having petitioned for a writ of review to issue requiring respondent to return to 18 the clerk of the court a certified copy of the records and proceedings concerning respondent's decision to award System Development Charge credits in the amount of $63,075, IT APPEARS TO THE COURT that an undertaking has been filed by this petitioner, as required by law, It is HEREBY ORDERED that the clerk of this court forthwith issue a writ directed to respondent requiring the return of the writ to this court on or before Cic.J1o&Jz. ~~ ,2007, together with a certified copy of the records and proceedings, concerning System Development Charge credits related to planning action 2003-151, together with the findings and final order 19 20 21 22 rendered. ~.17 DATED: ,20m. /~~ ---/~. .... Circuit Court Judge ~.2) 23 24 2S 26 Page I - AFFIDAVIT OF SURETY 1I0RNECKER, COWLING, HASSEN & IIEYSELL, LLP 717 Murphy Road Medford. OR 97504 541-779-8900 \24429B\Affidavit of Surely I nECEIVEO 6!H) :~. \L ED 2 07 SEP 17 PI, Z: 10 ,RI!.L CCUR T :,Dl-l;r.;1S TR l', TOR 3 4 COCKEiED BY IN THE CIRCUlT COURT OF THE ST ATE OF OREGON FOR THE COUNTY OF JACKSON 5 6 State ex reI NORTH MOUNTAIN LAND COMPANY, LLC, an Oregon Limited 7 Liability Company, Case No. nn695Cf 8 ORDER ALLOWING ALTERNATIVE WRIT OF MANDAMUS Relator, 9 vs. 10 THE CITY OF ASHLAND, a municipal corporation of the state of Oregon 11 12 Defendant. 13 The State of Oregon, on the relation of North Mountain Land Company, LLC, has 14 petitioned for issuance of an alternative writ of mandamus, direct to City of Ashland. 15 It is ORDERED that the clerk of the court shall issue an alternative writ of mandamus in 16 accordance with the petition herein, commanding defendant to provide an appeal hearing to 17 determine the proper amount of System Development Charge credits due under planning action 18 2003-151 in accordance with Ashland Municipal Code 4.20.100 or to show cause before this court 19 why defendant has not done so; and directing defendant to return the writ, with its certificate 20 annexed on 0'::..1-01.1,,--,, ~ lIt 9.' OD AcM , in Room cJ.. 0.3 , of the Jackson County 21 Circuit Court. 22 23 24 25 26 DATED: ~J. /1 ,2007. /1/~ ~. Circuit Court Judge Page I ~ ORDER ALLOWING ALTERNATIVE WRIT OF MANDAMUS HORNECKER, COWLING, HASSEN & IIEYSELL, LLP 717 Murphy Road Medford,OR 97504 541.779.8900 \244298\ Order Allowing Alternative Writ of Mandamus I 2 3 4 5 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JACKSON 6 State ex rei NORTH MOUNTAIN LAND COMPANY, LLC, an Oregon Limited 7 Liability Company, 8 Relator, Case No. n736951;.'1- ALTERNATIVE WRIT OF MANDAMUS 9 vs. 10 THE CITY OF ASHLAND, a municipal corporation of the state of Oregon 11 12 Defendant. 13 TO: City of Ashland 14 From the petition of the State of Oregon, on the relation of North Mountain Land IS Company, LLC, the following facts appear: 16 1. 17 Relator North Mountain Land Company, LLC ("North Mountain"), is an Oregon Limited 18 Liability Company duly authorized to conduct business in the State of Oregon. Relator owns 19 property ("Property") in Ashland, Jackson County, Oregon, that is the subject of this petition. 20 2. 21 Defendant is a duly organized and existing local government body. 22 3. 23 Relator filed an application to subdivide the Property for residential development. 24 Defendant approved the application ("Approval") with conditions under Planning Action 2003- 25 151 on June 10, 2003. 26 1// Page I-ALTERNATIVE WRIT OF MANDAMUS HORNECKER, COWLING, HASSEN & HEYSELL, LLP 717 Mwphy Road MeJford,OR 97504 541-719-8900 \24429B\ Alternative Writ of Mandamus 4. 2 The Approval required Relator to construct improvements to E. Nevada Street from the 3 intersection with Greenway Drive east to the intersection with North Mountain A venue, including 4 a minimum 24-foot paved width and curb and gutter on both sides of the street. The Approval 5 also required construction of a parkrow and sidewalk to the south side of the street from the 6 intersection with Greenway Drive east to the end of the Property. 7 5. 8 Relator constructed the required improvements stated in Paragraph 3 at a total cost of 9 $311 ,834.25. 10 6. 11 Defendant's municipal code requires Defendant to grant credits against System 12 Development Charges when a capital improvement constructed as part of a development reduces 13 the development's demand upon existing capital improvements or the need for future capital 14 improvements which would otherwise have to be provided at Defendant's expense under existing 15 city policies. Ashland Municipal Code 4.20.090(C). The improvements in Paragraph 3 are part of 16 the "SDC Eligible Transportation Improvements." The "SDC Eligible Transportation 17 Improvements" are part of Defendant's comprehensive plan and are adopted pursuant to 18 ORS 223.309. 19 7. 20 Defendant offered $63,075.00 in System Development Charge credits as compensation for 21 the SDC Eligible Improvements in a letter dated February 16,2007. That letter was written by 22 Associate Engineer Pieter Smeenk and addressed to Adam Hanks, Permit Center Manager of the 23 Public Works Department of Defendant. The letter was copied to Relator's attorney. 24 8. 25 Relator made $311,834.25 in improvements. Relator should be entitled to $311,834.25 in 26 System Development Charge credits. By awarding an incorrect amount of System Development Page 2 -ALTERNATIVE WRIT OF MANDAMUS HORNECKER, COWLING, HASSEN & HEYSELI., LLP 711 Murpby Road Medford, OR 97504 541-779-8900 \244298\ Alternative Writ of Maudarrrus 1 Charge credits, Defendant failed to follow the procedure for calculating System Development 2 Charge credits, calculated System Development Charge credits in a manner not supported by 3 substantial evidence, and improperly construed its applicable law in calculating System 4 Development Charge credits. 5 9. 6 Relator met with Defendant's attorney on May 17, 2007 to question how Defendant 7 arrived at the credit amount in the February 16, 2007 letter. At the request of Defendant's 8 attorney, Relator sent a letter via electronic mail to Defendant's attorney, outlining Relator's 9 assertions that the System Development Charge credits were not sufficient. 10 10. 11 Defendant's attorney responded on May 31, 2007 by sending a letter stating that 12 Defendant was correct in its determination of the System Development Charge credits. Defendant 13 also stated that the February 16, 2007 letter from Pieter Smeenk constituted a final and unappealed 14 decision. 15 11. 16 Defendant's municipal code states that, following a decision on System Development 17 Charge credits by the City Administrator or the City Administrator's designee, a person aggrieved 18 by that decision shall appeal the decision by written request with the City Recorder for 19 consideration by the City Council. Ashland Municipal Code 4.20.100(B). 20 12. 21 Pieter Smeenk's letter of February 16, 2007 did not contain any language to indicate that it 22 constituted an official decision on System Development Charge credits, was not from the City 23 Administrator, did not indicate that Mr. Smeenk is the City Administrator's designee, was not 24 addressed to Relator, and did not inform Relator of any appeal rights, in violation of 25 ORS 223.302(3)(a). 26 1/1 Page 3 -ALTERNATIVE WRIT OF MANDAMUS HORNECKER, COWLING, HASSEN & lIEYSELL, LLP 717 Murphy Road Medford, OR 97504 541-779"8900 \24429B\ Alternative Writ of Mandamus I 13. 2 In response to Defendant's attorney's letter of May 31, 2007, Relator sent a letter via 3 electronic mail and U.S. Mail to the City Recorder on June 8, 2007, requesting an appeal under 4 Ashland Municipal Code 4.20.100(B). 5 14. 6 Defendant's City Recorder acknowledged receipt of Relator's appeal request on June 11, 7 2007. 8 15. 9 Defendant's municipal code requires Defendant to hear the appeal within 30 days of the 10 receipt of the request for appeal. Ashland Municilpal Code 4.20.100(E). 11 16. 12 On July 24, 2007, Defendant mailed a letter to Relator's attorney, stating that the appeal 13 was untimely, and that the final decision was rendered on February 16, 2007. Because Defendant 14 did not give Relator an opportunity for an appeal hearing, as provided by Defendant's municipal 15 code, Defendant did not follow the procedure applicable to the matter before it. 16 17. 17 Pursuant to ORS 34.040, this writ should be allowed because Defendant: 18 19 A. Failed to follow the applicable appeal procedure mandated by its municipal code; Made a determination of System Development Charge credits that is not supported B. 20 by substantial evidence; 21 C. Improperly construed its own municipal code m denying Relator's request for 22 appeal. 23 18. 24 A substantial interest of Relator has been injured, because Relator believes it is due an 25 additional $248,759.25 in System Development Charge credits. 26 /II Page 4 -ALTERNATIVE WRIT OF MANDAMUS HORNECKER, COWLING, HASSEN & IIEYSELL, LLP 711 MurptJy Road Medford, OR 97504 541.779-8900 \24429B\ Alternative Writ of Mandamus 19. 2 Relator has no other plain, speedy, or adequate remedy than the review prayed for herein. 3 W. 4 Relator filed an application to subdivide the Property for residential development. 5 Defendant approved the application ("Approval") with conditions under Planning Action 2003- 6 151 on June 10, 2003. 7 21. 8 On July 24, 2007, Defendant mailed a letter to Relator's attorney, stating that the appeal 9 was untimely, and that the final decision was rendered on February 16, 2007. Defendant denied 10 Relator an appeal hearing. 11 WHEREFORE, you are commanded to provide an appeal hearing to determine the 12 property amount of System Development Charge credits due under planning action 2003-151 in 13 accordance with Ashland Municipal Code 4.20.100 immediately after your receipt of this writ, or 14 to appear before this court or a judge hereof., on D G+, d-d, ,2007, at q :01) AM, in 15 Room ~03, of the Jackson County Circuit Court, to show cause why you have not granted 16 an appeal pursuant to Relator's request for an appeal under Ashland Municipal Code 4.20.100(E). 17 You are further commanded then and there to return this writ, with your certificate annexed, 18 showing that you have granted an appeal or showing cause for your omission to do so. 19 DATED: ~ W: ,2007. 20 21 22 Cl 23 24 25 26 Page 5 -ALTERNATIVE WRIT OF MANDAMUS \24429B\ Alternative Writ of Mandamus HORNECKER, COWLING, HASSEN & HEYSELL. LLP 7!7MurphyRoad Medford, OR 97504 541-779-8900 1 2 3 4 5 r I ,,,, I L,,_, :lECEIVED t'l,~~D FILE 2001 SE? 13 AM 10: 26 J~~CL SOl; Cli:CJ~T COURT DOCKETED 8Y: IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JACKSON 6 NORTII MOUNTAIN LAND COMPANY, LLC, an Oregon Limited Liability Company, 7 8 9 vs, Case No, n7~695 =1:.1 Petitioner, AFFIDAVIT OF SURETY TIIE CITY OF ASHLAND, a municipal 10 corporation of the state of Oregon 11 Res ndent. 12 State of Oregon ) ) ss. 13 County ofJ acksoD ) 14 I, Steve DeCarlow, being fIrst duly sworn, say: 15 16 17 1. 2. 3. I make this affidavit as surety for North Mountain Land Company, LLC. I am a resident of Oregon. I am a freeholder of worth within Oregon and am worth more than the sum of $100 18 specifIed in the undertaking, exclusive of property exempt from execution, and over and above all 19 just debts and liabilities. 20 II! 21 III 22 I! I 23 II! 24 I! I 25 I! I 26 I! I Page 1 - AFFIDAVIT OF SURETY \24429B\Affidavit of Surety HORNECKER, COWLING, HASSEN & HEYSELL, LLP 717 Murphy Road Medford, OR 97504 541-779-8900 1 4. 1 am not an attorney at law, peace officer, clerk, or other officer of the court. 2 DATED: September 12, 2007. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By: Jii- tP~ Steve DeCarlow, Surety Subscribed and sworn to before me on September 12, 2007. ~Y>J.~ Notary for State of Ore n My Commission Expires: ().3-I';-dOI! OFFICiAl SEAL GINA M. RYAN. NOTARY PUBUC-OREGON COMMISSION NO. 413142 MY COMMISSION EXPIRES MAR. 14, 2011 Page 2 - AFFIDAVIT OF SURETY \24429B\Affidavit of Surety HORNECKER, COWLING, HASSEN & HEYSELL, LLP 717 Mwpny Road Medford, OR 97504 541-179-8900 1 2 D,['iCIVED /'1 ",:r) Fir \C' ~\ L...... "._' .,.... , ',':" ,__ ',. 2001 SEP 13 M110: 26 J ti C;\ SON eli, C ujf COUh'l 3 4 5 DOCHTED BY: IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JACKSON 6 NORTH MOUNTAIN LAND COMPANY, LLC, an Oregon Limited Liability Company, Case No. 073695 ':b 1- 7 8 9 Petitioner, UNDERTAKING FOR WRITOFREVlEW vs. THE CITY OF ASHLAND, a municipal 10 corporation of the state of Oregon 11 Res ondent. 12 WHEREAS, the above-named petitioner is applying for a writ of review claiming that 13 respondent has erroneously proceeded in the exercise of its function in denial of System 14 Development Charge credits owed to petitioner under planning action 2003-151. 15 NOW TIlEREFORE, petitioner, Steve DeCarlow, as principal, and Steve DeCarlow, as 16 surety, is jointly and severally bound and undertakes this action on the review in the sum of $100. 17 DATED: September 12, 2007. 18 NOR'IH MOUNTAIN LAND COMPANY, LLC 19 20 21 22 23 24 25 26 Page 1 - UNDERTAKING FOR WRIT OF REVIEW \24429B\Undertaking for Writ of Review By: _ Jii" rJ wi-- Steve DeCarlow, Member By: . J);;tiw( Steve DeCarlow, Surety IIORNEcKFlR. COw,LING, IlASSEN l!; JlEYSELL. LLP 717 Murphy Road Medford, OR 97504 541-779-8900 2 3 4 IN THE CIRCUIT COURT OF THE STATE OF OREGON 5 6 7 FOR THE COL:NTY OF JACKSON 0736957::-1- NORTH MOUNTAIN LAND COMPANY, LLC, an Oregon Limited Liability Company, Case No. 8 Petitioner, WRIT OF REVIEW vs. 9 THE CITY OF ASHLAND, a municipal 10 corporation of the state of Oregon 11 Respondent. 12 13 TO: City of Ashland By virtue of an order of the above-entitled court, made and entered on -3 r / t r 14 2007, you are hereby required to return this writ to the court on or before 15 fo-;)J-. , 2007, with a certified copy of the records and proceedings had in the 16 matter of System Development Charge credits owed to petitioner under planning action 2003-151, 17 together with the findings and final order rendered. 18 This writ is based on the petition for writ of review filed ~{. l::) , 2007, 19 attached hereto as Exhibit 1. 20 WITNESS b. C)\3v.t.ivo-- , clerk of the court, with the seal thereof, affixed 21 22 23 24 25 26 ~f\- ' \<6 ,2007. Page 1 -WRIT OF REVIEW HORNECKER, COWLING, HASSEN & llEYSELL, LLP 711 Mmpby Road Medford,OR 97504 54\.779.8900 \24429B\ Writ of Review 1 2 3 4 5 RECEIVED If,.jD F1Lr:"' Z[]07 SEP 13 AM 10: 25 ~'~.\Gh sc:~ C;;::CU;T COU;;j' DOCHHO BY; IN TIffi CIRCUIT COURT OF TIffi STATE OF OREGON FOR TIffi COUNTY OF JACKSON 6 NORTH MOUNTAIN LAND COMPANY, LLC, an Oregon limited liability Company, Case No. 073695 ~ l-- 7 8 9 PetitionerlRelator, PETmON FOR WRIT OF REVIEW OR ALTERNATIVELY RELATOR'S PETmON FOR ALTERNATIVE WRIT OF MANDAMUS vs. THE CITY OF ASHLAND, a municipal 10 corporation of the state of Oregon 11 Res ondent/Defendant. 12 First Claim for Relief-Petition for Writ of Mandamus 13 1. 14 PetitionerlRelator North Mountain Land Company, LLC ("North Mountain"), is an 15 Oregon limited liability Company duly authorized to conduct business in the State of Oregon. 16 PetitionerlRelator owns property ("Property") in Ashland, Jackson County, Oregon, that is the 17 subject of this petition. 18 2. 19 Respondent/Defendant is a duly organized and existing local government body. 20 3. 21 PetitionerlRelator filed an application to subdivide the Property for residential 22 development. Respondent/Defendant approved the application ("Approval") with conditions 23 under Planning Action 2003-151 on June 10,2003. The Approval is attached as Exhibit A and 24 incorporated herein by this reference. 25 III 26 III Page 1 - PETmON FOR REVlEW H:\UsenFLles'24429B\Petition Writ of Review-Mandamus. doc HORNECKER, COWLING, HASSEN & HEYSELL. LLP 717 Murphy Road Medford, OR 97504 541. m-S9QO EXiimlT NO. ~~ 1 4. 2 The Approval required PetitionerlRelator to construct improvements to E. Nevada Street 3 from the intersection with Greenway Drive east to the intersection with North Mountain Avenue, 4 including a minimum 24-foot paved width and curb and gutter on both sides of the street. The 5 Approval also required construction of a parkrow and sidewalk to the south side of the street from 6 the intersection with Greenway Drive east to the end of the Property. 7 5. 8 PetitionerlRelator constructed the required improvements stated in Paragraph 3 at a total 9 cost of $311,834.25. 10 6. 11 RespondentlDefendant's municipal code requires Respondent!Defendant to grant credits 12 against System Development Charges when a capital improvement constructed as part of a 13 development reduces the development's demand upon existing capital improvements or the need 14 for future capital improvements which would otherwise have to be provided at 15 Respondent!Defendant's expense under existing city policies. Ashland Municipal Code 16 4.20.090(C). The improvements referred to in Paragraph 3 are part of the "SDC Eligible 17 Transportation Improvements," attached as Exhibit B and incorporated herein by reference. The 18 "SDC Eligible Transportation Improvements" are part of Respondent!Defendant's comprehensive 19 plan and are adopted pursuant to ORS 223.309. 20 7. 21 Respondent!Defendant offered $63,075.00 in System Development Charge credits as 22 compensation for the SDC Eligible ImproveIDi~nts in a letter dated February 16, 2007 (attached as 23 Exhibit C). That letter was written by Associate Engineer Pieter Smeenk and addressed to Adam 24 Hanks, Permit Center Manager of the Public Works Department of RespondentlDefendant. The 25 letter was copied to PetitionerlRelator's attorney. 26 III Page 2 - PEI1TION FOR REVIEW H:\User\Fi1es\24429B'htition Writ of Review-Mandamu.doc HORNECKER, COWLING, HASSEN & IIEYSELL, LLP 717 MUl:phy Road Medfon:l. OR 975G4 541-179_8900 I 8. 2 PetitionerlRelator made $311,834.25 in improvements, as shown on Exhibit D, which is 3 attached hereto and incorporated herein by reference. Per Exhibit D, PetitionerlRelator should be 4 entitled to $311,834.25 in System Development Charge credits. By awarding an incorrect amount 5 of System Development Charge credits, RespondentlDefendant failed to follow the procedure for 6 calculating System Development Charge credits, calculated System Development Charge credits 7 in a manner not supported by substantial evidence, and improperly construed its applicable law in 8 calculating System Development Charge credits. 9 9. 10 PetitionerlRelator met with RespondentlDefendant's attorney on May 17, 2007 to question 11 how RespondentlDefendant arrived at the credit amount in the February 16, 2007 letter. At the 12 request of RespondentlDefendant's attorney, PetitionerlRelator sent a letter dated May 18, 2007 13 (attached as Exhibit E) via electronic mail to RespondentlDefendant's attorney, outlining 14 PetitionerlRelator's assertions that the System De:velopment Charge credits were not sufficient. 15 10. 16 RespondentlDefendant's attorney responded on May 31, 2007 by sending a letter (attached 17 as Exhibit F) stating that RespondentlDefendanlt was correct in its determination of the System 18 Development Charge credits. RespondentlDefendant also stated that the February 16, 2007 letter 19 from Pieter Smeenk constituted a final and unappealed decision. 20 11. 21 RespondentlDefendant's municipal code states that, following a decision on System 22 Development Charge credits by the City Administrator or the City Administrator's designee, a 23 person aggrieved by that decision shall appeal the decision by written request with the City 24 Recorder for consideration by the City Council. Ashland Municipal Code 4.20.1oo(B) (attached 25 as Exhibit G). 26 I II Page 3 - PE1TI10N FOR REVIEW H;\Uscr\Files\24429B\Petition Writ of Review-Mandamns.doc nORNECKER, COWLING, HASSEN 8< HEYSEU., LLP 717 Murphy Road Medford, OR 97504 541-779-8900 I 12. 2 Pieter Smeenk's letter of February 16, 2007 did not contain any language to indicate that it 3 constituted an official decision on System Development Charge credits, was not from the City 4 Administrator, did not indicate that Mr. Smeenk is the City Administrator's designee, was not 5 addressed to PetitionerlRelator, and did not inform PetitionerlRelator of any appeal rights, in 6 violation of ORS 223.302(3)(a). 7 13. 8 In response to RespondentlDefendant's attorney's letter of May 31, 2007, 9 PetitionerlRelator sent a letter (attached as Exhibit II) via electronic mail and U.S. Mail to the City 10 Recorder on June 8, 2007, requesting an appeal. under Ashland Municipal Code 4.20.loo(B). II 14. 12 Respondent/Defendant's City Recorder acknowledged receipt of PetitionerlRelator's 13 appeal request on June 11, 2007. 14 IS. IS Respondent/Defendant's municipal code requires RespondentlDefendant to hear the appeal 16 within 30 days of the receipt of the request for appeal. Ashland Municipal Code 4.20.l00(E). U ~ 18 On July 24, 2007, RespondentlDefendant mailed a letter (attached as Exhibit 1) to 19 PetitionerlRelator's attorney, stating that the appeal was untimely, and that the final decision was 20 rendered on February 16, 2007. Because Respondent/Defendant did not give PetitionerlRelator an 21 opportunity for an appeal hearing, as provided by RespondentlDefendants municipal code, 22 Respondent/Defendant did not follow the procedure applicable to the matter before it. D I~ 24 Pursuant to ORS 34.040, this writ should be allowed because Respondent/Defendant: 25 A. Failed to follow the applicable appeal procedure mandated by its municipal code; 26 III Page 4 - PErmaN FOR REVIEW H:\User\FtIes\24429B\Petition Writ of Review-Mandam.ls.doc BORNECKER, COWLING, HASSEN & BEYSELL, LLP 717 Murphy Road Medford, OR 97504 541.779-8900 1 B. Made a determination of System Development Charge credits that is not supported 2 by substantial evidence; 3 c. Improperly construed its own municipal code III denying PetitionerlRelator's 4 request for appeal. 5 18. 6 A substantial interest of PetitionerlRelator has been injured, because PetitionerlRelator 7 believes it is due an additional $248,759.25 in System Development Charge credits. 8 19. 9 PetitionerlRelator has no other plain, speedy, or adequate remedy than the review prayed 10 for herein. 11 Second Claim for Relief-Petition for Writ of Mandamus 12 2Q 13 PetitionerIRe1ator realleges paragraph one. 14 21. 15 PetitionerlRelator filed an application to subdivide the Property for residential 16 development. Defendant approved the application ("Approval") with conditions under Planning 17 Action 2003-151 on June 10, 2003. The Approval is attached as Exhibit A and incorporated 18 herein by this reference. ~ n 20 PetitionerlRelator realleges paragraphs 4-7 and 9-15. 21 23. 22 On July 24,2007, Defendant mailed a letter to Relator's attorney, stating that the appeal 23 was untimely, and that the final decision was rendered on February 16, 2007. This letter is 24 attached as Exhibit I and incorporated herein by reference. Defendant denied Relator an appeal 25 hearing. 26 III Page 5 - PErmaN FOR REVIEW H:\User\FUes\24429B\Petition Writ of Review-Mandamus.doc IIORNECKER, COWLING, HASSEN & 1IEYSELL, LLP 717 Murphy Road Medfoo:l, OR 97504 541.779-8rxlO 1 WHEREFORE, PetitionerlRelator prays for relief from the Court as follows: 2 1. For an order issuing a writ of review directed to RespondentJDefendant, 3 commanding RespondentJDefendant to return the writ to this Court with a certified copy of the 4 record and proceedings in this matter for review by the Court. 5 2. Alternatively, Relator respectfully requests that the Court issue an order 6 commanding RespondentJDefendant, immediately after receipt of the writ, to provide an. appeal 7 hearing in accordance with Ashland Municipal Code 4.20.100 or to show cause why the 8 Defendant has not done as commanded. 9 DATED: September 12, 2007. 10 G, HASSEN 11 12 13 14 15 16 17 18 19 20 21 22 23 MARK S. B OLOMEW, OSB No. 03566 Of Attorneys for PetitionerlRelator Fax No.: 541-773-2635 E-mail: msb@roguelaw.com Trial Attorney: P. David Ingalls, OSB No. 78439 I hereby certify that I have examined the proceeding in this matter to the extent that it is now available to me and have examined the determination made in it and that the decision and S. BAR OLOMEW, OSB No. 03566 Of Attorneys for PetitionerlRelator 24 25 26 Page 6 - PETITION FOR REVIEW H:\User\Files\24429B\Petition Writ of Review-Mandamus.doc HORNECKER, COWLING, HASSEN & HEYSEIL, LLP 117 MUlphy Road Medfoni. OR 97504 541.779.8900 gates in fences and man-door on garages, landscaping, entrance walks, porch stoops, residential lighting, windows in second story facades and garages that support a general appearance of front yards. The design toward NeVada Street shall be consistent with Architectural Elevation provided by the applicant at the March 11, 2003 Public Hearing. 27) That pedestrian-scaled street lighting installed along North Mountain, East Nevada, Greenway Drive imd all neighborhood streets shall comply with the standards of Ashland's Electric Utility and approved by the Staff Advisor. In general, the City of Ashland's CC1mmerciallight standard (Le. Stemburg) shall be installed in the NM-C area,while the City of Ashland"s residential light standard (with downward illumination) shall be installed along residential streets. 28) That the final engineering submitted prior to signature of the final survey plat for all streets and alleys shall be consistent with City standards addressing distance between driveways,. as we1I as driveway distance from proposed street intersections. Specifically, with units 66-78. In addition, a shared driveway approach (12' in width) is required to serve 'units 48 & 50 and units 57 & 59. 29) That the applicant shall be responsible for the improvement of E. Nevada Street from the intersection with Greenway Drive east to the intersection with North Mountain Avenue. Such improvement shall include a minimum 24' paved width, curb and gutter on both sides of the street A parkrow and sidewalk on the south side of the street from the intersection with Greenway Drive east to end of the applicant's . property shall also be GOnstructed. No sidewalk improvements shall be required at this tiIDe for the right-of-way abutting taX lots 500 and 600 (White and Marr properties). The applicant shall be eligible for SDC credits for improvClI!ent costs beyond those improvements shown on the layout plan for the SubdiVision. Specifically, the applicant shall be eligible for SDC credits for asphalt . . . I " J._. b....J lJ f. for the frontage of the applicant's property and tu lot 401 (Cislo). Further, the applicant shall be eligible for SDC credits for the . . ..' '. " -^^ . oM Street improvement plans and SDC credits shall be reviewed and - . included as part of Final Plan review. All streets shall be constructed and surfaced prior to the issuance of a building permit. 30) That the written authorization from the Oregon Division of State Lands, and any other applicable Federal or State pennitting agency, be provided for alteration of the delineated wetland prior to Final Plat approval or proceeding with the constructions of subdivision improvements. If off-site mitigation is . approved, mitigation measures shall be located and carried out iil the floodplain and should be associated with the water quality facility. In addition, the design of the water quality facility shall blend together with the natural area and habitat associated with the flOodplain. A final designfor the mitigation plan, including grading and wetland Planting Plan, shall be provided prior to signature of the Final Survey Plat. 31) The following Solar Access standards shall be applied to the project: A. Sinde Familv Homes (Type Fl. - All homes (Type F) with public right-of- way to the north shaH be subject to Solar Standard "An, All other homes (Type F) that are to be constructed on eastJwesloriented lots and that do not have a right-of-way to the north shall be permitted to have their shadow encroach four feet up (measured 4- Exhibit A p~'~e---L_ of I Julv. 1999 {4J. 1/ \~ \,0 cY ')..'(1" 1)1( 'vv~:~~<f' ~~ \~ ~'f Citv of Ashland Transr>orlati- " Svslems Develor>menl Charpe SDC ELIGIBLE TRANSPORTATION IMPROVEMENTS III III II .,. o 1 2 3 4 S I 7 . I Hi 6-10 6-10 6-10 6-10 6-10 6-10 11-20 11-20 11-20 11.20 11-20 11.20 11.20 11-20 11..,20 11-20 11-20 "-20 11-20 11-20 11-20 Tolman Cr Ad - SisI<Iyou lD UPRR Nevada - Bear Creek to N Mountain Bear Cnlek BridQe ClI Nevada N MountaIn - Her>ey lD Nepenthe (II Ilroet) Tolman Cr - Siskiyou BNd A!>!>roaches Clay SI - Siskiyou 10 Ashland E Main - CIty !.mila 10 NonnaI <-l NMaln-Hwy99IoFox Allhland Mine Ad E Hersey - Ann '" Mountain (II Stretj 4th 51 ExIonaIon lD Heloey N MountoIn - Nepenthe 10 Nevada Tolman Cr - G.... _lD Illod< Ool< T_ Cr -Illod< Oak 10 SIIIdjau E MaIn - _ Ave 10 CIty L.ImIla (eal) E MaIn -It Tolman CRlOk Rd Cnlwaon Ad - SiIldyou lD _ SprIngs Hwy _A_~lDEIoIain Clay St-_lD EMaIn T_ Cr Ad -AllhIond St lD E MaIn --SisI<IyouIoT_CRlOk Dead IndIon - Green Springs Hwy Approoch Capacity Capacity Capacity Capadty c.opoclty Upgrade Capacity Upg.- Upgrade Upgrade CilpOdty ClpOcIty Upgrade Upgrme Upgrade Upg.- Upgrme CilpOdty U_ CllpOcity U_. Upg.- INTERSECTIONS Slakiyou/UthIaI MaIn Oak Sl/Heraey St TIOIIic Signal ~DT. Per ELNDT 39$:~ ugust 1, 1999 Cost per LNDT = $93 anuary 1, 2000 Cost per LNDT = $154 uly 1, 2000 Cost per LNDT = $214 City of Ashland - Departmenr of Community Development ., Exhibit P419 I h ~of / February 16, 2007 CITY Of ASHLAND Adam Hanks City of Ashland 20 East Main St Ashland, OR 97520 RE: MEADOWBROOK SUBDIVISION (PW NO. 03-06) Dear Adam, I have reviewed the costs that are eligible for transportation SDC credits as prescribed by final planning conditions for the above referenced project, reviewed the estimates provided by the contractor, assigned the appropriate percentages according to the SDC eligibility criteria, and reviewed my calculations and assumptions with the Public Works Director and City Attorney. Please credit the developer for $63,075 for building permits that are issued within the subdivision's boundaries. If you have any questions, please call me at 552-2413. Sincerely, 1J~~ Pieter Smeenk PE SE Associate Engineer cc: Mark S. Bartholomew Steve DeCarlow Richard Appicello Bill Molnar Paula Brown Jim Olson G:\Pub-wr1<s\eng\O~6\5\Meadowbrook Subdivison-SDC credits reccomendation.doc (2.16.07) Public Wor1<s Engl.....rtng 20 East Main Slreet Ashland, Oregon 97520 'NWW.ashland.Ol'.US Tel: 541-488-5587 Fax: 541-488-6006 TTY: BOO.735.2900 1'1' ExhIbit (!" n....~ I ~ I B~~.'s Back-Hoe Servic{nc. 1568 Pacific Lane - Phoenix, Oregon 97535 Telephone (541) n3-3995 BILL REAGAN - Owner CCB# 21657 .;Meadowbr06k Park II at North Mountain Quantity Estimate to Completion . March 16, 2006 1tem East Nevada Street Units Qty Unit Price Total Price 1 Excavation (Roadway) t .5b<1I,~ CY 2200 $6.50 $14,300.00 2 Asphalt Concrete, Class "C" '2.1~"I'2. Tons 880 $63.00 $55,440.00 3 Base, 3/4'-0." Minus Crushed Rook 7..'1 eso.dJ CY 3000. $25.00 $7.5,000.00 4 Geotexllle Fabric, Non-Woven l..}"? ~ 1j: SY 5374 $1.00 $5,374.00 5 18' Driveway Apron ':EA 2 $800.00 $1,600.00 6 26' Commercial Driveway Apron \~g EA 1 $1,400.00 $1,400.GO 7 Curb 8. Gutter 15u,1.101 LF 3234 $7.25 $23,446.50 a SideWalk SF 2480 $4.25 $10,540.00 9 Wheel Chair Ramps - .EA 9 $800.00 $7,200.00 10 SawcutExis.ting Asphalt LF 60 $4.00 $240..00 11 Remove Exlstin9 Asphalt Tons 492 $5.00 '$2,460.00 12 Construct NatUral Green Area 4't~ SF 1100 '$4.50 $4,950.00 13 SDCI {4A) Z~ EA 4 $720.00 $2,880.00 14 Rock Excavation l'l~ LS 1 $12,000.00 $12,000.00 :\14?o5'i .0<\- Sub-Total $216,830.50 Item North Mountain Avenue Units Qty Unit Price Total Price 1 Excavation & Haul Away Cy 403 $6.50 $2,619.50 2 Asphalt Concrete, Class "C- Tons 90 $63.00 $5,670.00 3 Base. 3/4'-0" Minus Crushed Rock CY 449 $25.00 $11.225.00 4 Geotextlle Fabric, Non-Woven Sy 862 $1.00 '$862.00 5 Standard Vertical Curb (16") LF 218 .$10.00 $2,180.00 6 Curb & GUtter IF 381 $7.25 $2,762.25 7 Wheel Chair Ramps EA . 3 $800.00 $2,400.00 8 Sawcut Existing Asphalt LF 480 $4.00 $1,920.00 9 Remove Irrigation Structure EA 1 $800.00 $800,00 10 Street Lights LS 1 $40,325.00 $40,325.00 11 Crosswalks LS 1 $8,040.00 $8,040.00 12 Lot Grading, Sidewalk, & Utility Backfill LS 1 $16,200.00 $16,200.00 Sub-Total $95,003.75 Grand-Total $311,834.25 Time Line: Start April 3, 2006 Complete June 15,2006 To Completion 7) ExhIbIt Page 1 of I HORNECE ., COWLING, HASSEN & HEYSE , L.L.P. Attorneys at Law Gregory T. Horoec.ker Robert L. Cowting John R. Hassen R. Ray Heysell H. Scott Plousc P,Davldl11g'alls Adam T. Stamper" Joseph E. Ktllcnnan J..... A. Wallan Benjamin M. Bloom Charles E. Bolen Ryan J. Vanderhoof 717 Murphy Road Medford, OR 97504 (541) 779.8900 Fax, (541)779-1982 http:www.roguelaw.com Richard L. BUlin .Std'anie L. Burke Mark S. Bartholomew Eric B. Mitton '*Erik C. Larsen, LL.M. Stephen L. Brown Of Co...., - Fred M. Aehl Retired - B. Kent Blackhurst Enln B. Hogan 19Z7.lO(JO . Also admitted In Calilornia .. Also admitted in Idaho VIA E-MAIL May 18,2007 Richard Appicello, Esq. City Attorney City of Ashland 20 E. Main St Ashland, OR 97520 RE: Meadowbrook Park II Our File No. 24429B Dear Mr.Appicello: Thank you for meeting with Steve, David, and me yesterday. This letter is intended to clarify the issues we have identified with regard to SDC credits as follows: 1. The sum of the developer's expenditures is listed, and written, on the document from Bill's Backhoe Service, Inc. Those handwritten numbers were derived by Pieter Smeenk. Pieter's sum total is $97,039.04. Pieter then multiplied this figure by .65 to arrive at the total amount of credits, which is $63,075. It is unclear to us why $97,039.04 was multiplied by .65. Pieter pointed to a document entitled "SDC Eligible Transportation Improvements," which states that Item No.3, Nevada - Bear Creek to North Mountain, is listed with a capacity of 65 percent. It is unclear to us what the 65 percent figure represents. Additionally, we have not found any authority in the Comprehensive Plan that would indicate that the 65 percent capacity should result in credits in the amount of only 6S percent of expenditures. The 6S percent is apparently derived from the SDC portion of the total project and the revised estimated cost of Nevada.- Bear Creek to North Mountain. That is, that the SDC portion of the total project, being $274,560, is 6S percent of the revised estimated cost of $422,400. The SDC Eligible Transportati(llllmprovements document also exhibit Page / --- C 010 HORN! :ER, COWLING, HASSEN & HE'. ~LL Richard Appicello. Esq. May 18.2007 Page 2 seems to indicate that the amount of $239,923 is ,eligible for rebate. If that is the case, why is the developer currently only set to receive $63,075? 2. It appears that Mr. Smeenk's calculations are erroneous, perhaps due to a misunderstanding of the figures on the document from Bill's Backhoe Service. For example, Item No. I - Excavation had a total price of $14,300. This figure, along with all other figures on the document from Bill's Backhoe Service, is the cost of the improvements abutting tax lots 500 and 600, which by Mr. Smeenk's calculations constituted 34.8 percent of the total improvements on East Nevada. Mr. Smeenk credited 34.8 percent of $14,300 to the SDC credits (prior to multiplying it by .65). However, he only gave credit for 2124ths of 60.5 percent of $14,300 (as well as all of the other items on the Bill's Backhoe Service document). We believe that Mr. Smeenk was perhaps mistaken about the total cost and was under the impression that the figures represented the total cost of construction of that portion of the street not abutting tax lots 500 or 600 or located near North Mountain. Because the Bill's Backhoe Service figures already only induded the marginal increased costs from 22 feet to 24 feet of street, his multiplication of the portion of expenditures allocable to that portion of East Nevada by 2124th should not have been done, because it was already taken into account prior to submittal of the figures to the City. 3. 4.7 percent of the workperfOlIDed on East Nevada Street, which on a handwritten note by Mr. Smeenk titled "Methodology for Computing SDC Credits" dated 11-30-06, was not credited. Mr. Smeenk indicated that this was because it was only parking and did not increase capacity. It is true that the developer only receives SDC credits for improvements that increase capacity. However, that portion fronting the North Mountain Avenue right-of-way is indeed a street which connects East Nevada and North Mountain, thereby enhancing capacity. 4. Item No. lion the Bill's Backhoe Service document is for the removal of existing asphalt. This was not credited. We believe that this should be credited, because it was a necessary precursor to construction of the road, which increases capacity. 5. The developer also constructed part of North Mountain Avenue just south of the previously mentioned 4.7 percent segment. It is apparent from the Bill's Backhoe Service document that no credits were awarded for that work, which totaled $95,003.75. It is our understanding that the City's position is that the approval document, paragraph 29, only specifically stated that the development will be eligible for SDC credits for. asphalt widening from 22 feet to 24 feet and curb and gutter on Ithe north side of East Nevada, for tax lot 401, and for street improvements abutting tax lots 500 and 600. Although the improvements done on North Mountain A venue were not specifically mentioned in paragraph 29 for SDC credits, paragraph 29 does mandate, as a condition of approval, the improvements the developer did perform on North Mountain A venue. That section of North Mountain A venue does appear to Exhibit P~ge c:L E: of 3 . HORN. .CER, COWLING, HASSEN & HE~ _ELL Richard AppicelJo, Esq. May 18,2007 Page 3 be one of the SDC eligible transportation improvements according to that document. We believe that the work performed on North Mountain Avenue is a qualified public improvement, which is on the City's list of SDC eligible transportation improvements, and, therefore, SDC credits should be awarded for that work. We appreciate your attention to these matter's and thank you for your cooperation. Very truly yours, :gmr ce: Steve DeCarlow MARK S. BARlHOLOMEW exhibit f'aqe::..7 c 01 ~ - CITY OF ASHLAND LEGAL DEPARTMENT Richard Appicello, Interim City Attorney Sue Colton, Paralegal Nancy Snow, Legal Secretary May 31, 2007 Mark S. Bartholomew Homecker, Cowling, Hassen & Heysell , L.L.P. 717 Murphy Road .' Medford, OR 97504 RE: Meadowbrook Park n May 18,2007 correspondence onSDC credit Dear Mark: I am in receipt of your request to re-examine the February 16, 2007 SDC Credit detennination for the above referenced project, In response to your request, I reviewed your submission, the documentation for the February 16, 2007 determination and I met with Public Works Director Paula Brown and. Pieter Smeenk, Associate Engineer regarding your allegations, . . . At the outset, I would note that the February 16, 2007 dco;ision on SDC credit is a final unappealed decision. Any appeal of this determination to the City Council would have needed to be filed, along an analysis of the alleged errors, within 10 working days of the final determination. No such appeal was filed; accordingly, please do not inteJ:pretthe City's wi1lingness to review your allegatiow: as re-opening orre-making that final decision. You requeste.:I an explanation regarding the 65% figure. Simply put, the Qualified Public Improvement, identified in the Plan and eligIble for SDC credit is 65% of the identific;d transportation improvement. Whilethe estimated cost of the total facility is $422,400,only65% oft1lli;improvementis qualified as SDC eligIble. If you constructed the entire improvement at a cost of $422,400, you certainly would be eligible for 65% [$239,923] in SDC credit. As you constructed $97,039,04 of the impriJ,vernent, you are eligIble for $63,075, As regards the alleged math error in paragraph 2, Mr. Smeenk has reviewed you assertions andiriforms me that there is no error. The methodology used was. based on averaging, and as such, was imprecise, but if the actual excavation quantities as detailed by the as-built topographic swvey were to be used instead of averages, the eligible SDe credit would actually be less than I initially estimated, because over 70% of the length of the north curb line of ENevada Steitherrequiredjill (not excavation) or matched existing grade: Only theportion between LEGAl. DEPARTMENT 20 East Main Street Ashland, Oregon 97520 .www.ashlandor.us Tel: 541-488-5350 Fax: 541-552-2092 TTY: 800-735-2900 aooicelravashland or us coltons((i)ashland or us snownl8lashland.or.us ~~, PR1HTID ON RECYCLED PAP[lI Exhibit PlIfI& / F nL~ station 34+07 and 38+70'required significant excavation, and only 2' of width out of that 24' width was eligible for SDC credit (ea $1400 = 207 CJ? In addition, much of that was "rock excavation ", which was credited at the maximum rate of 65% under the rock exe'Ivation line item, so it was effectively credited twice. A1J regards the rem.ining allegations, it appears that the unappea1ed land use decision specifically delineated eligtble improvements. While the approval did provide au opportunity to address these matters and work out credit as part of fina1 plan approval, pursuant to the conditions of approval: "...SDC credits shall be reviewed and included as part of the Final Plan review", this was not doue. Also, with regard to the referenced improvements on North Mountain, obviously these improvements provide access to the new parking lot and during the final plan review City staff did not see these improvements as capacity increasing facilities. A1J an aside, the location of the parking area in the right -<>f-way is questionable even with City authorization under Chapter 13 of the Municipal Code. [If you have not obtained an encroachment permit, pl'ease do so immediately.] Accordingly, it does not appear that it would be appropriat,~ to revisit the credit detenninations made during the now final, land use decisions and the, now final, ailminiotrative detennination of credit. If you have additional questions or concerns, please do not hesitate to contact me. Sincerely, /)~ ~...~,. Richard Appicello Interim City Attorney RAlsc G:I1egal\RicIwd\PIalming\Lc:ttc[DC MEADOWBROOK 5.31.07.doc -''''-, ~ Exhibit -Pagsc2 r of c:2. recommendation by the Park and Recreation Commission for land or park development projects identified in the Capital Improvement Plan, referred to in Section 4.20.060(B). E. In situations where the amount of credit exceeds the amount of the system development charge, the excess credit is not transferable to another development. It may be transferred to another phase of the original development. F. Credit shall not be transferable from one type of capital improvement to another. 4.20.100 Appeal Procedures A. As used in this Section "working day" means a day when the general offices of the City are open to transact business with the public. B. A person aggrieved by a decision required or permitted to be made by the City Administrator or designee under Sections 4.20.010 through 4.20.090 or a person challenging the propriety of an expenditure of systems development charge revenues may appeal the decision or expenditure by filing a written request with the City Recorder for consideration by the City Council. Such appeal shall describe with particularity the dedslon or the expenditure from which the person appeals and shall comply with subsection 0 of this section. (ORD 2791, S10 1997) C. An appeal of an expenditure must be filed within two years of the date of alleged Improper expenditure. Appeals of any other decision must be filed within 10 working days of the date of the dedsion. D. The appeal shall state: 1. The name and address of the appellant; 2. The nature of the determination being appealed; 3. The reason the determination is incorrect; and 4. What the correct determination should be. An appellant who falls to file such a statement within the time permitted waives any objections, and the appeal shall be dismissed.. (ORD 2791, S10 1997) E. Unless the appellant and the City agree to a longer period, an appeal shall be heard within 30 days of the receipt of the written appeal. At least 10 working days prior to the hearing, the City shall mail notice of the time and location thereof to the appellant. F. The City Council shall hear and determine the appeal on the basis of the appellant's written statement and any additional evidence the appellant deems appropriate. At the hearing, the appellant may present testimony and oral argument personally or by counsel. The City may present written or oral testimony at this same hearing. The rules of evidence as used by courts of law do not apply. (ORD 2791, S10 1997) G. The appellant shall carry the burden of proving that the determination being appealed is incorrect and what the correct determination should be. H. The City Council shall render its decision within 1S days after the hearing date and the decision of the Council shall be final. The decision shall be in writing but written findings shall not be made or required unless the Council in its discretion, elects to make findings for precedential purposes. Any legal action contesting the Council's decision on the appeal shall be filed within 60 days of the Council's decision. Exhibit P8s<l / http://www.ashland.or.us/CodcPrint.aSD ?B ranch,= Tn le&l'nrlp.l f)=) 1 )4 G of / Rll F.nnn< rag~ 1 01 1 Mark S. Bartholomew From: Mark S. Bartholomew Sent: Friday, June 08, 2007 9:16 AM To: 'christeb@ashland.or.us'; 'Richard Appicello' Attachments: appeal.pdf Mr. Appicello and Ms. Christensen, Attached is an appeal of the city's SDC credits for Meadowbrook Park II at North Mountain. A copy is in the mail as well. Thank you. Mark S. Bartholomew Homeaker, Cowling, Hassen & Heysell LLP 717 Murphy Road Medford. OR 97504 541- n9-8900 voice 541-n3-2635 fax hun:llwww.roauelaw.com Exhibit PIp I H of1 HORNECl ., COWLING, HASSEN & HEYSL _, L.L.P. Attorneys at Law Gregory T. Horneclo:r Robert L. Cowling John R. Hasoen R. Ray Heysell H. Scott PIo.... P. D..id IDgaDs Adam T. Stamp"" Joseph E. Kellerman James A. WaI1an B"Ilamin M. Bloom Charks E. Bolen Ryan]. Vanderhoof 717 Murphy Road Medford, OR '7504 (541) 779-8900 Fax: (541)779.2982 htlp"nnr.roguelaw .aim Richard L. Blllln *Stefanie 1.. Burke Marl< S. BarthoIo..... ErlcB. Mi_ ""Erik C. Larsen,!L.M. Stephen L. B",1I'D Of CtnUUd - Fnd M. Ad>! lWired - B. Kent Blackhurst ErvinB. Hopnln7.2OOQ . AIao admitted In CaJllornia .. Abo acbritted In Idaho VIA E-MAIL AND REGULAR MAll.. June 8, 2007 Ms. Barbara Christensen City Recorder City of Ashland 20 E. Main St Ashland, OR 97520 RE: Meadowbrook Park IT Appeal of SDC credit determination OJJ File No. 24429B Dear Ms. Christensen: We are requesting an appeal hearing, pursuant to 4.20.100(B), of the City's determination of the amount of SDC credits owed to North Mountain Land Company, lie. North Mountain Land Company, LLC is entitled to SDC credits as a result of work performed by the developer for PW No. 03-06. 1. Appellant-North Mountain Land Company, LLC, 3126 State Street, Suite 202, Medford, OR 97504. 2. Agents for Appellant-P. David Ingalls and Mark Barth010mew, 717 Murphy Road, Medford, OR 97504. 3. Nature of the Determination Being Appealed-City's determination that $63,075 in credit is owed to Appellant. 4. The City's determination is incorrect for the following reasons: Exhibit Pager2 1-1 III t-f HORN.~R, COWLING, HASSEN & HIL LLL Barbara Christensen June 8,2007 Page 2 A. The sum of the developer's expenditures is listed, and written, on the document from Bill's Backhoe Service, Inc. Those handwritten numbers were derived by Pieter Smeenk. Mr. Smeenk's sum total is $97,039.04. Mr. Smeenk then multiplied this figure by .65 to arrive at the total amount of credits, which is $63,075. It is unclear to us why $97,039.04 was multiplied by .65. Mr. Smeenk pointed to a document entitled "SDC Eligible Transportation Improvements," which states that Item No.3, Nevada _ Bear Creek to North Mountain, is listed with a capacity of 65 percent. It is unclear to us what the 65 percent figure represents. Additionally, we have not found any authority in the Comprehensive Plan that would indicate that the 65 percent capacity should result in credits in the amount of ouly 65 percent of expenditures. The 65 percent is apparently derived from the SDC portion of the total project and the revised. estimated cost of Nevada _ Bear Creek to North Mountain. That is, that the SDCportion of the total project, being $274,560, is 65 percent of the revised estimated cost of $422,400. The SDC Eligible Transportation Improvements document also seems to indicate that the amount of $239,923 is eligible for rebate. If that is the case, why is the developer currently only set to receive $63,075? We believe the developer is entitled to more. B. It appears that Mr. Smeenk's calculations are erroneous, perhaps due to a misunderstanding of the figures on the document from Bill's Backhoe Service. For example, Item No. I - Excavation had a total price of $14,300. This figure, along with all other figures on the document from Bill's Backhoe Service, is the cost of the improvements abutting tax lots 500 and 600, which by Mr. Smeenk's calculations constituted 34.8 percent of the total improvements on East Nevada Mr. Smeenk credited 34.8 percent of $14,300 to the SDC credits (prior to multiplying it by .65). However, he only gave credit for 2I24ths of 60.5 percent of $14,300 (as well as all of the other items on the Bill's Backhoe Service document). We believe that Mr. Smeenk was perhaps mistaken about the total cost and was under the impression that the figures represented the total cost of construction of that portion of the street not abutting tax lots 500 or 600 or k)(:ated near North Mountain. Because the figures from Bill's Backhoe Service already only included the marginal increased costs from 22 feet 10 24 feet of street, his multiplication of the portion of expenditures allocable to that portion of East Nevada by 2124th should not have been done, because it was already taken into account prior to submittal of the figures to the, City. C. 4.7 percent of the work performed on East Nevada Street, which on a handwritten note by Mr. Smeenk titled "Methodology for Computing SDC Credits" dated 11-30-06, was not credited. Mr. Smeenk indicated that this was because it was only parking and did not increase capacity. It is true that the developer only receives SDC credits for improvements that increase capacity. However, that portion fronting the North Mountain Avenue right-of-way is indeed a street which connects East Nevada and North Mountain, thereby enhancing capacity. exhibit f! Page. 1 of 4- HORN~_..rnR, COWLING, HASSEN & Hh. ~ELL Barbara Christensen June 8, 2007 Page 3 D. Item Nos. 8, 9, 10, and lIon the Bill's Backhoe Service document were not credited. We believe these should be credited. Sawcutting and removing existing asphalt are necessary precursors to the construction of the road, increasing capacity. Sidewalks and wheel chair ramps are necessary components of road construction, also lending to capacity. E. The developer also constructed part of North Mountain Avenue just south of the previously mentioned 4.7 percent segment It is apparent from Bill's Backhoe Service's document that no credits were awarded for that work, which totaled $95,003.75. It is our understanding that the City's position is that the approval document, paragraph 29, only specifically stated that the development will be eligible for SDC credits for asphalt widening from 22 feet to 24 feet and curb and gutter on the north side of East Nevada, for tax lot 401, and for street improvements abutting tax lots 500 and 600. Although the improvements done on North Mountain Avenue were not specifically mentioned in paragraph 29 for SDC credits, paragraph 29 does mandate, as a condition of approval, the improvements the developer did perform on North Mountain Avenue. That section of North Mountain Avenue does appear to be one of the SDC eligible transportation improvements according to that document. We believe that the work performed on North Mountain Avenue is a qualified public improvement, which is on"the City's list of SDC eligible transportation improvements, and, therefore, SDC credits should be awarded for that work. 5. We respectfully request credit in the amount of $311,834.25, as noted on the attached document from Bill' s Backhoe Service. Chapter 4 of the municipal code does not indicate that there is an appeal fee for an appeal of an SDC credit determination. Please advise us i=ediately if a fee is required. Very truly yours, :gmr ce: Richard Appicello. Esq. ;A.kL MARK S. BARTHOLOMEW H:\USER\FILES\24429BlappeaI-SDC credits issues.doc Exhibit fI Pao9 1./ of 4 - - July 24, 2007 CITY OF ASHLAND . Mark S. Bartholomew Hornecker, Cowling, Hassen & Heysel! , L.L.P. 717 Murphy Road Medford, OR 97504 RE: Meadowbrook Park II February 16, 2007 SDC credit determination The City Administrator reviewed your request for an appeal hearing and .prepared a letter to you dated Juue 19, 2007. Unfortunately, that letter was inadvertently not mailed to you. We apologize for the delay in providing you this notification. The text of Ms. Bennett's letter reads as follows: I am in receipt of your June 8, 2007 request for an appeal hearing pursuant to AMC 4.20.10O(B) concerning the above referenCed determination. As regards the requiredappea! statement, AMC 4.20.100 (D) provides: An appellant who fails to file such a statement Within the time permitted waives any objections, and the appeal shall be dismissed.. . . Th~.::~e.~tted" is expressly stated in AMC 4.20.1 OO(C), "Appeals of any other decision must be filed Within 10 working days of the date of the decision. Accordingly, any ~. pp~:9ftheFebl1lary 16, 2007 decision needed to be filed on or before March 5, 2007. The - City Council is without jurisdiction to consider untimely appeals. The Code language is .' mandatory reqUiring dismissal; no allowance is granted to excuse a late filing. Therefore, the June 8, 2007 appeal is hereby dismissed. If you have any questions, please feel free to contact Int~rim City Attorney Richard Appicello. Sincerely, MM Dick Wanderscheid Electric Department Director Acting City Administrator Cc: Richard Appicello ~arbaraChristensen '.... '--., ." '.. P!lJ.lI.a BrO\yu p{~t:eiSnieeclc "!-. . ~'; :.) >~:- ": ::,jJ . :.{~ , . ;'(<1'" . ~ . '"fi, [i:i. :':1"" ::-~::; r~\:~ ':-.H/.;'. .::;,L: .:TI~ <.r_ .)\: ~ ADMINISTRATION 20 East Main S1ree1 . Ashland. Oregon 97520 www.ashland.or.us T~: 541-4BB-<iOO2 Fax: 541-488-531' TTY: B1JO.735-2900 "'. .. IF.., f'RIHTEDON RECYClED PAP61 . I::xhlblt b...ft,ft I L ..I CITY OF ASHLAND Council Communication Public Hearing for an Ordinance declaring approval of a Development Agreement, including a Land Exchange involving a portion of the City Dog Park property and Planning Action 2006-01663 for the Annexation and associated development approvals for the properties located at 87 W. Nevada St. and 811 Helman St. (Ashlan~; reenhouses). Meeting Date: November 6, 2007 Primary Staff Contacts: [-Mail: Department: Legal Community Development / p,arlt.'h /iJjl Secondary Contact: Estimated Time: Richard Appieello Maria Harris appiec I[@.a;;hland.or. us h<lIlj;;m (a)ashland.or. us Don Robertson 2 hours Secondary Depts.: Approval: Question: Does the Council find that the negotiated development agreement that governs a land exchange, three annexations, a Comprehensive Plan Map and Zone ehangc, an Outline Plan, and exception to strect standards, a physical constraints review permit, and tree rcmoval permit is consistent with State law, City Code, and City policies either as prescnted or as modified') Staff and Commission Recommendations: The Ashland Parks and Recreation Commission made a rccommendation for approval of the land exchange on June 25,2007. Staff supports the reeommcndation of the Parks and Recreation Commission. The Ashland Planning Commission recommended approval of Planning Action 2006-01663 on August 28, 2007 for an Annexation, Comprehensive Plan Map and Zoning Map change from Jackson County zoning RR-5 (Rural Residential) to City of Ashland zoning R-I-3.5 (Suburban Residential) and R-1 (Single-Family Residential), request for Outline Plan approval for a 68-unit residential development under the Perfonnanee Standards Options Chapter 18.88, requests for Exception to the Street Standards for not locating a street adjacent to natural features and to use a privatc drive to access the collages rather than the required public street, request for a Physical Constraints Review Pernlit to locate a multi-use path in the Ashland Creek Riparian Prescrvation Area, and request for a Tree Removal Pennitto rcmove a 25- inch diameter at breast height Oak tree. The Planning Commission also reviewed the proposed land exchange and recommended approval. Staff suppolis the recommcndation of the Planning Commission as stated in the recommendation document dated August 28, 2007 (pages 30-59 of the record). Page 1 or I () CC Nevada ';;7 11 (dl7.doc ..111 r..., CITY OF ASHLAND Background: 1. Land Exchanl!e The application includes a request for a land exchange with the City of Ashland. The land exchange is a prerequisite to development of the property as proposed in P A-2006-01663. The proposal is for the City to receive approximately 2.78 acres adjacent to Ashland Creek for City parks purposes in exchange for approximately 1.54 acres of the Dog Park access area. The specific area of exchange is the entrance road and lawn area to the south of the parking lot. The exchange will not impact the parking lot or actual Dog Park itsclf Tax lot 200 of39 IE 0488 is City of Ashland property and is commonly referred to as the Dog Park. The acreage for the land exchange has been revised and updated based on an October 2007 survey in the revised application. (Exhibits N-l and N-2 in Book Ill-Narrative, dated stamped October 30, 2007). (2.78 acres, up from 2.57 acres previously) (1.54 acres, up from 1.37 acres previously) .EGEND 39 u: 04BB TL 700 (\(ILLIAAS) CITY or A5HLAtO J91[04BB IEGEN 1 I I I I I I I ~llt80C:BB: i (.....IU.IAHS~ .,1--- I ~.' , I '\ .~CALE' I'.. 200' . >, ~I~ ~I~ fq'" ~I 'I t\ I \ ,I ~ VaI...PIj, gb... ~I~ __~ ~:,' " R"" ,rSALDf:SCRJ'PrlDN \ ,C' P[]1~'r OF acC,[NN!IoIG '~-. \-- 1 ~8 L9 I '\ \ 596"2<"00'1: '", / .:> /./. _ \ . _ ~c=::!~~~9fr, .,~"..:'t:',~$,~~:~~ \ _ . ---'-'-'-~.......:...:...L~'~;' J9Jf:048) \--- "86.'C'<'-O~'W 1.-:;;-::;;. n. 80C I ):--- 3'PJ,9I) '//,'//;. Of< 89-O<JW5/ (~-_. (/;~~J~i;: (l,Ill.L!AA'SJ / L-..- -'9 1, .1<83 J;. Y\'>,i:,,/,>;J' ~ ~ ;' I rL 7:)8 ..<:5 >->c; IS Cw'iLLlMlS! ~c.i ';/j. '" va. 2%, pt,. 36Z ~ ~(;%?~ \ .c. ////. \ ,9 IE: 0'88 :;:-/' ) r~. 8CO ,.->, ( ('o'iLUA'l5J ~/_ i n_____ ---'j (j]R61-04OZ0)~L:, ;:]911:048, I '/ ,rL 1100 j'/ I -il.iilLiMSJ -j?~'i~~.Jiii-'T~~I:u0,.ILLli\!>jS) I ( "':';'''/ ",.;1 8.'. I p(<e L_J " ASHLA:"'D, OOROCR OF rRACf TO BE TRANSfERRED FRClH Io'ILLlAHS Ta CITY OF ASHLAND (SHl1'o/N SHAOCID n 200 eN l7-133i!" ~- flfTICIAL RfCfJRDS, JACKSDN ~ry, ~GQN DI<77-13324 )" - -- -::::::..:::..::-::::.. ~,- -'iVrLLIOO) L~.._ ._._ _ ( I I NEVADA STRCET CR 66-1tl285' !EVADII STREIT TEHI{ PROf E.'>: ORS 221.725 requires an advertised public hearing when the City finds it '.necessary or convenient'" to sell or otherwise dispose of real property or an inkrest in real property. At the public hearing. .'any resident of the City" may submit written or oral testimony concerning the exchange. The hearing has been properly advertised. ORS 271.310 -ORS 271.350 requires findings by the Council in order to sell, convey, or exchange real property. To sell, conveyor exchange property the City Council must find either that the property is .'not needed for public use.' or ..that the public interest may be P;1gC 2 of lO CC NC\/~Kb 87 ll.6'()7.doc r~' CITY OF ASHLAND furthered." The consideration for the transaction may be cash, real property or both. [ORS 271.31 O( 1 )]. ORS 271.310(3) further provides that real property needed for public use may only be exchanged for property which is of equal or superior useful value for public use. (While the finding that "the public interest may be furthered" can avoid this equal value requirement, it is required by State and Federal approvals). Finally, ORS 271.340 expressly provides that the value of the real property accepted by the City in exchange for any of its property cannot be less than the value of the property relinquished. [n addition, County, State and Federal approval of the real property exchange is required. Because the Property was acquired using Land and Water Conservation Funds, State and Federal Park agencies must approve the exchange. Because the County's deed to the City reserved to the County a reversionary interest, it must be released by Resolution of the Board of Commissioners under ORS 271.335. The County will require a similar encumbrance on the new parcel. The Federal, State and County approvals must be addressed as conditions of approval, because the applications cannot be fully processed until the City approves the exchange under ORS 271.310. Although not part of the land exchange, the Development Agreement requires construction of City standard street access to the Dog Park and construction of the multi-use path (Greenway) at developer's expense. The applicant's attorney submitted the following drafi findings concerning compliance with these criteria as part of an earlier draft of the Development Agreement (emphasis added): City's Councillinds that the publie intere!.t will be furthered by the exchange of the City Property previously and currently utilized as access to City's Dog Park in exchange f()f the Williams Property owned by AFSG. Exhihil /, Suh-Erhihit N-/ (Map). The Williams Property appears on City's Parks, Trails and Open Space Master Plan Map (a part of City's Comprehensive Plan) as Long-Term Acquisition Area "10". The real property exchange allows City to acquire a parcel of property (Williams Property) identified on City's Parks, Trails, and Open Space Master Plan's long term acquisition list since 2002. Acquisition by City of the Williams Parcel also provides City with the opportunity to extend City's multi-use path, which is part of the regional Bear Creek Greenway. The real property exchange also provides the public with additional scenic frontage along Ashland Creek. Further, acquisition of the Williams Property provides City with an opportunity to benefit the community by preserving and enhancing the riparian area along Ashland Creek. [n contrast, the City Parcel to be exchanged herein currently serves as a sub-standard access for vehicles, pedestrians, and cyelists from West Nevada Street to City's Dog Park and the Bear Creek Greenway multi-use "bike path". When the Verde Village Project is completed under this Agreement, access to City's Dog Park wi II be enhanced via fully improved public streets, approved and constructed to serve the Verde Village Project, while also serving as a safer and more efficient access to the City's Dog Park and the Bear Creek Greenway "bike path". Tbe Bear Creek Greenway "bike path" connects the City of Ashland with the City of Central Point, and promotes the goal of "modal equity", in a time when the fInancial and environmental costs associated with petroleum resource dependence are under enhanced scrutiny. The real property exchange is described in Exhibit "l"[Outline Plan Narrative] (at page 6) and Sub-Exhibits M and N-} appended thereto. Concerning the monetary value of the exchange, Applicant's counsel offered: Page::; of 1 () CC Ncv:.lda 87 11'(J.ll7.doc -.,. r_~ CITY Or ASHLAND On or about June 7, 2007, City received Appraisal Reports reneeting the respective value of the Williams Property and City's Dog Park Property. Exhihit 2 alld Exhihit 3. These Appraisal Reports werc commissioned by City, with the appraisal cost borne equally by City and AGFS. The appraiser was competent and experienccd. The respective Appraisal Reports for the Williams Property and the City Property arc attached as Exhibit 2 and Exhibit 3, and incorporated herein by reference. The Appraisal Reports were made available to the public prior to the public hearings before Planning Commission and Council. ... The value of the City Property to be conveyed to AFSG in connection with the real property exchange authorized by this Agreement is less than the valuc of the Williams Property to be conveyed to the City in connection with sai d real property exchange, as reflected in attached Exhibit 2 and Exhibit 3, incorporated herein by reference. City's approval of the real property exchange is approved based, in part, on the attached Appraisal Reports, and pursuant to ORS 271.310(1). City finds that the value of the Williams Property to be exchanged is $360,000. See: Fxhihit 2 (pages I alld 6). City finds that the value of the City Property to be exchanged is S 101,000. See.' Ethihit 3 (pages I alld 6). City finds that the difference in value between the two parcels being exchanged is S259,OOO in favor of City, based on the analysis and conclusions contained in the Appraisal Reports commissioned by City, attached hereto as Exhibit 2 and Fxhibit 3, and incorporated herein by reference. ^FSG agrees to "'gift" the $259,000 difference to City, so that same may be used for the purposes of parkland, recreation, open space, or similar uses consistent with Jackson County deed restrictions contemplated for transfer as agreed below. The Council can find based on the evidence in the record, that it is necessary or convenient to exchange the Dog Park Property, that the exchange furthers the public interest, that the exchange will be for property that is of equal or superior useful value for public use, and that the monetary value of the real property accepted is not less that the monetary value of the property relinquished. 2. Plannin2 Action Summary of Application The land use application requires seven planning approvals. A summary of the application according to the required planning approvals follows. The approval criteria from the Ashland Land Use Ordinance (ALUO) are listed in parenthesis after each approval. The July 10,2007 and August 14,2007 Staff Reports included in the record provide further information on the project description, project impact and applicable approval criteria (see pages 231-248 and 112- 138 of the record). . Annexation (18.106.030) The application involves the annexation of an 11.64-aere site and subsequent development of approximately 10.40 acres. . Comprehensive Plan Map and Zoning Change (18.108.060.8) The application includes a Comprehensive Plan Map and Zoning Map change from City of Ashland Single-Family Residential (R-I) to a combination of City of Ashland Suburban Page' 4 of)O CC !\cv'ada 87 11.6,07.doc ~.l' CITY OF ASHLAND Residential (R~ I ~3.5) and Single~Family Residential (R~ I). The Ashland Comprehensive Plan Map currently identifies the entire site as Single~Family Residential (R~ 1). The requested Comprehensive Plan Map and Zoning Change is for approximately 4.35 acres or 42 percent of the site to modify the Single~Family Residential (R~ I) designation in the Ashland Comprehensive Plan Map to the Suburban Residential (R~ I ~3.5) designation. The location of the Comprehensive Plan Map Change is for Phase I, or the cottage and town home portion of the project to the west of Almeda Dr. and Canine Way. The remainder of the site would remain in the Single~Family designation. . Outline Plan Approval (18,88.030.A.4) The apphcation requests Outline Plan approval to develop a 68~unit sing1e~family residential subdivision. The units arc a mixture of housing forruats and sizes including 24 cottages, 15 town homes and 29 sing1c~family homes. The 15 town homes arc identified as affordable housing to meet the annexation and comprehensive plan map and zone change requirements. The project description states that the land with utilities and access constructed to the site will be donated to Rogue Valley Community Development Corporation (RVCDC) to develop as 15 affordable units for the range of 80 to 100 percent ofmedian income. . Exceptions to the Street Standards (18.88.050.F) The application includes two requests for Exceptions to the Street Standards. The first is to locate the multi~usc path adjacent to the natural feature, being Ashland Creek, rather than a public strcct. The second exception requested is to use a private drive to access the cottages rather than the required public street. . Physical Constraints Review Permit (18.62.040.1) The application includes a request for a Physical Constraints Review Perruit to locate a multi~use path in the Ashland Creek Riparian Preservation Area. The applicants propose to construct a multi~use path located in the Ashland Creek riparian corridor that would connect Nevada St. to the Bear Creek Greenway connection located in the Dog Park. The proposed multi~use path weaves above and below the biologically detcn11ined riparian zone and the uppermost top of the slope grade break. The multi~use path itself and the disturbance created by the construction is located largely inside of the biologically determined riparian zone. · Tree Removal Permit (18.61.080) The application includes a rcquest to remove a 25~inch diameter at breast height Oak tree (see tree 39 on Exhibit D~D, Sheet T ~ 1, Revised Outline Plan, Book III~Narrative, revised October 24, 2007). Thc trce is an Oregon White Oak and located between proposed units 33 and 34. Revisions to Application The applicants submitted a revised application for the Council review (see Revised Outline Plan, Book lII~Narrative, rcvised October 24,20(7). Thc revised application includcs a few Page.5 or 10 CC NC\/~Kia S7 11.cdl7.doc ~.l' CITY OF ASHLAND changes from the application which was reviewed by the Planning Commission. The revisions arc described below. . Exception to the Street Standards to Install Curbside Sidewalks on Sander Way The revised application includes a redesign of Sander Way, the new street that would provide access to the eastern portion of the development. The redesign of Sander Way provides a parkrow between the curb and sidewalk on both sides of Sander Way (see Exhibit 0-0, Sheet S-5, Revised Outline Plan, Book Ill-Narrative, revised October 24, 2007). The Street Standards require a parkrow to be located between the curb and sidewalk. Since the redesign of Sander Way meets the Street Standard requirement, the previous request for an Exception to the Street Standards to install curbside sidewalks on Sander Way is no longer included in the revised application. The application reviewed by the Planning Commission included a request to deviate from the Street Standards requirement by installing curbside sidewalks on both sides of Sander Way. The Planning Commission did not recommend approval of the exception request finding that this portion of the application did not meet the approval criteria for an Exception to the Street Standards (see Section 2.6 of the August 28, 2007 Planning Commission recommendation, pages 30-59 of the record). As a result, the following condition was added in the Planning Commission August 28, 2007 Recommendation requiring a parkrow on both sides of Sander Way. If the Council approves the revised application, this condition is no longer necessary. 37) That a parkrow a minimum of seven feet in width shall be provided between the curb and sidewalk on both sides of Sander Way in accordance with the Ashland Street Standards and in accordance with 18.88.050. The Sander Way parkrow and sidewalk design shall be included in the preliminary street design in the Final Plan application. . Numbcr of Units and thc "Net Zero Energy" Performance Standard The revised application states that the 15 town homes can not be guaranteed to meet the "Net Zero Energy" Performance Standard. As a result, the current proposal is for 53 units (68 total units - 15 town homes ~ 53 units) to meet the "Net Zero Energy" Performance Standard proposed by the applicant (see Exhibit K-3, Revised Outline Plan, Book Ill-Narrative, revised October 24,2007). The town homes will be deeded to RVCDC to meet the affordable housing requirements for an annexation and comprehensive plan map and zoning change. The application states that .'the Net Zero Energy and sustainable aspect of the Townhomes arc dependant upon an additional grant. which RVCOC is pursuing." The number of units meeting the "Net Zero Energy" Performance Standard was not clear in the application reviewed by the Planning Commission. As a result, a condition was added in the Planning Commission August 28, 2007 Recommendation that required all of the 68 residential units to meet the performance standard (see below). If the Council approves the application, this condition may need to modified. Pagc(loflO CC l\cvada 87 lIJ).(17.doc .... IF.., CITY OF ASHLAND 26) That all of the residential units in the subdivision shall meet the application '"Net Zero Energy" Performance Standard as outlined in Exhibit K-3 of the application Book III dated June 8, 2007. The Final Plan application shall include systems for measuring and monitoring compliance of the devclopment with the Performance Standard that is administered by the applicants and verified by the city. . Cottage Front Yard Setbacks The front yard setback from the cottages fronting Almeda St. to the front property line was increased to 20 feet in the revised application (see Exhibit 0-0, Sheet S-l, Revised Outline Plan, Book III-Narrative, revised October 24, 2007). The front yard setback was increased to meet the front yard requirement for the R-I-3.5 zoning district (Suburban Residential). The previous version of the application delineated 15 feet from the cottages fronting Almeda St. to the front property line. Suggested Condition Modifications and Additions If the Council approves the application, staffrecommends incorporating the conditions of approval included in the August 28, 2007 Planning Commission recommendation document (see pages 30-59 of the record) into the Council Findings, Orders and Conclusions. If the Council approves the development agreement, Findings, Orders and Conclusions will be prepared for Planning Action 2006-01663 and will be included in the development agreement. In addition, staffreeommends the following modifications and additions to the August 28, 2007 Planning Commission recommendation because of the revisions to the application. Deleted te)(t is shown with striketlueHgfl and new text is shown with an underline. . Delete Condition 37 for Sander Way Sidewalk Design 37) That a parkrow a minimum of seven feet in width shall be prm ided between the cmb and sidev.alk on both sides of Sander 'Nay in aecordanee with the ,'\shl~md Street Standards and in accordance \\ ith 18.88.050. Tile Sander Way parhow and sidewalk design shall be ineluded in the preliminary street design in the Final Plan application. . Possible Modification of Condition 26 Concerning Number of Units and the "Net Zero Energy" Performance Standard 26) That all of the a minimum of 53 residential units in the subdivision, including the cottag~:s, duplexes and single-family units, shall meet the application "Net Zero Energy" Performance Standard as outlined in Exhibit K-3 of the application Revised Outline Plan, Book Ill-Narrative dated June 8, 2007 revised October 24,2007. The Final Plan application shall include systems for measuring and monitoring compliance of the development with the Perforrnance Standard that is administered by the applieants and verified by the city. Page 7 of)O CC Ncvad'-l 87 1] ,()'()7.doc r~' CITY OF ASHLAND . Sander Way Sidewalk The redesign of Sander Way includes a system of treatment wetlands and hio-swales for conveyance and treatment of stonn drainage between the sidewalk and curb. The treatment wetlands and bio-swales are curvilinear and vary in width from seven to 25 feet in width. As a result, the sidewalk as shown in the revised application is located outside of the street right-of-way in some locations. Since the sidewalk is a component of the public street, it is required to provide puhlic access. Staff recommends the following condition be added if the application is approved. 43) That the Sander Way sidewalks shall provide public access either by heing included in the street right-of-way or having a public pedestrian easement as required by the Ashland Engineering Division. The Final Plan suhmittals shall be modified accordingly. . Conservation Division Recommendations The Conservation Division reviewed the "Nct Zcro Energy" Performance Standard proposed by the applicant (see Exhihit K-3, Revised Outline Plan, Book III-Narrative, revised October 24, 2007), and made four recommendations for revisions to the standard. Staff recommends adding these items as conditions of approval. The Conservation Division memo from Dick Wandcrseheid, Electric Director detailing the recommendation is on pages 10-11 ofthe record. 44) That "Net Zero Energv" Performance Standard as outlined in Exhibit K- 3 of the Revised Outline Plan, Book III-Narrative revised October 24,2007 shall he revised as follows. . That all dishwasher and washing machines shall qualify for the State of Oregon tax credit and be selected from the list of qualified machines maintained by the Oregon Department of Energy. . That each unit shall be provided with a photovoltaie system that is at least three kilowatts in size. In addition, all units will have enough available roof space to add photovoltaic panels that can provide enough electricity to offset the total energy use of the home on a BTU basis. . That the homes will meet a minimum requirement ofR-49 attic insulation for flat ccillings. . That the passive solar homes shall meet the State of Oregon's minimum requirements for the passive solar home tax credit. Page 8 of 10 CC Ncv;Jda 87 I] _()'()7.doc ~~, CITY OF ASHLAND 3. Development Agreement The land exchange and numerous land use applications are "bundled" in an ORS Chapter 94 Development Agreement. There are two reasons fi)r this consolidation. First, the Development Agreement allows the Council and the public to consider in one consolidated review all the issues presented by the applications. Second, by using the statutorily authorized negotiated development agreement, a legislative decision, (i.e. you are not required to enter into a development agreement), you maintain and emphasize the discretionary character of the annexation question. That is, the expansion of the City limits will occur in an orderly fashion, with the City and Developer planning together in a contract, the logical and timely extension of urban public facilities and services. The negotiated agreement also permits you more flexibility; for example, exactions can be creative and negotiated where otherwise they would be subject to strict case law restrictions of Nolan and Dolan (i.e. rationally related to impacts of development and rough proportionality). The technical terms of the Development Agreement are in large part dictated by Oregon Statutes ORS 94.504 - 94.528. The Agreement provides protection to the Developer from the application of new laws, except where the agreement provides otherwise. The Agreement prcsents certainty about what the developer is expected to do and when. Exhibit F presents the Timetable of Development for this phased project. The Council should examine the timetable and note that public infrastructure, recreational improvements and affordable housing arc scheduled early in the timetable. Exhibit E includes special conditions and incorporates all the staff conditions that arc not otherwise required as part of the Code at final plan. There are some added "risk management" provisions in the Agreement to protect the City from liability and reservation of legislative power. The agreement also incorporates a real property exchange (purchase /sale) that is triggered only after the required Federal, State and County approvals of the land exchange (this probably needs refinement). Similarly the Council should note in Section 16, that there is an order to the approvals, conveyances and annexations. The Federal, State and County approvals arc prerequisites to the land exchange, as is construction of the multi-use path in the riparian area. Similarly, the annexation request requires three ordinances and must occur in the order provided in the special conditions. Vertical construction of the project units cannot occur prior to conveyance of the deed to the affordable housing provider. The Development Agreement is approved by Ordinance. The Ordinance will contain the Agreement, as well as supporting Findings of Fact, Conclusions of Law and Order for P A- 2006-016('} and Findings of Fact, Conelusions of Law and Order for the land exchange. Related City Policies: None Council Options: The Council may approve, approve with modifications and conditions, or deny the development agreement including: 1) approval of the proposed land exchange pursuant to ORS 271.310 -271.350 to dedicate approximately 2.78 acres adjacent to Ashland Creek to the city for parks purposes in cxchange for approximately 1.54 acres of the Dog Park access area, and 2) approval of Planning Page \) of 10 CC Nevada '/37 ] I.Cl.07.doc .... ._~ CITY OF ASHLAND Action 2006-0 \663 for the annexation and development of the properties located at 87 W. Nevada St. and 811 Hclman St., consistent with ALUO criteria for an Annexation in 18.106.030, Comprehensive Plan Map and Zone Change in 18.\ 08.060.B, Outline Plan in 18.88.030.AA, Exception to the Street Standards in 18.88.050.F, Physical Constraints Review Permit in 18.62.040.1 and Tree Removal Permit in 18.61.080. Potential Motions: Move to declare by Ordinance the approval of a ORS Chapter 94 negotiated development agreement including: I) approval of the proposed land exchange to dedicate approximately 2.78 acres adjacent to Ashland Creek to the city for parks purposes in exchange for approximately 1.54 acres of the Dog Park access area, and 2) approval of Planning Action 2006-01663 for the annexation and development of the properties located at 87 W. Nevada St. and 811 Helman St. Move to declare by Ordinancc the approval of a ORS Chapter 94 negotiated devclopmcnt agreement with modifications and conditions including: I) approval of the proposed land exchange to dedicate approximately 2.78 acres adjacent to Ashland Creek to thc city for parks purposes in exchange for approximately 1.54 acres of the Dog Park access area, and 2) approval of Planning Action 2006-01663 for the annexation and development of the properties located at 87 W. Nevada St. and 811 Hclman St. List modifications and added conditions: Move to deny the request and not declare approval of an Ordinance approving the dcvelopment agreement including: 1) approval ofthc proposed land exchange to dedicate approximately 2.78 acres adjacent to Ashland Creek to the city for parks purposcs in cxchange for approximately 1.54 acres of the Dog Park access area, and 2) approval of Planning Action 2006-01663 for the annexation and devclopment of the properties located at 87 W. Nevada St. and 811 Helman St. Attachments: Appraisal for the Dog Park Property, June 22, 2007 Appraisal for the Williams Property, Junc 22, 2007 ORS 271.310 - 271.350 (Land Exchange Requirements) Record of Planning Action 2006-01663, 87 W. Ncvada St. and 811 Helman St. Draft Development Agreemcnt Letter from Davis Hearn Sa!adoff and Bridgcs Page I () of] () CC Nevada 1:)7 I] .Cl.07.doc ~~, ORS ~ 271.310 (2005) 271.310. Transfer or lease of real property owned or controlled by political subdIvisIOn; procedure in case of qualrfied title. (I) Except as provided m subseclIon (2) ofthl:> section, whenever any polrtical subdivision posscsses or controls real property not needed for public use, or whenever the public interest may be furthered, a political subdIvIsion may sell, exchange, conveyor lease for any period not exceeding 99 years all or any part of their mterest in the property to a governmental body or pnvate mdividual or corporation. The consIderatIon for the transfer or lease may be cash or real propcrty, or both. (2) If the ownership, right or title of the polrtlca] subdivision to any real property set apart by deed, will or otherwise for a burial ground or cemetery, or for the purpose of interring the remains of deceased persons, is Irmited or qualilied or tbe use of such rcal property IS restncted, whether by dedication or othcrWlse, the political subdivision may, after the county court or governing body thereof has first declared by resolution that such real property is not needed for publrc use, or that the sale, exchange, conveyance or lease thereof will further the public interest, tile a complaint in the circuit court j,)r the county in which such real property is located agamst all pcrsons claimmg any right, title or interest in such real property, whether the interest be contmgent, conditIOnal or otherwise, fllr authonty to sell, exchange, conveyor lease all or any part of such real property. The resolution is prima facie cvidence that such real property IS not needed for publrc use, or that the sale, exchange, conveyance or lease Will further the publrc interest. The action shall be commenced and prosecuted to final determination in the same manner as an action not tnable by nght to a Jury. The complaint shall contain a description of such real property, a statement of the nature of the restriction, qualificatIon or Irmitations, and a statement that the defendants claim some interest therein. The court shall makc such judgment as it shall deem proper, taking into consideration the Irmltation, qualifications or restrictions, the resolution, and all other matters pertinent thereto. NeIther costs nor disbursements may be recovered against any defendant. (3) Unless the governing body ofa polrtical subdivision detennmes undcr subsection (I) of thIs section that the publrc interest may be furthered, real property needed for public use by any polrtical subdiviSIOn owning or controlling the property shall not be sold, exchanged, leased or conveyed under the authority ofORS 271.3!)Q to 27.1,360, except that it may bc exchanged for property which is of equal or superior useful value for public use. Any such property not immediately needed fllr publrc use may be leased if, in the discretion of the governing body havmg control of the property, It will not be needcd for public use within the penod of the lease. (4) The authority to lease property granted by tillS section includes authority to lease property not owned or controlled by the polrtical subdivision at the time of entenng mto the lease. Such lease shall be condItIOned upon the subsequent acquisition of the mtcrest covered by the lease. ORS ~ 271.335 (2005) 271.335. Relinquishing reversIonary mterest held by polrtical subdIVIsion. Any political subdiVIsion, by resolutIon adopted by the govermng body of the polrtlcal subdiVision, may waive and relmquish any rcversionary interest held by the polrtieal subdiviSIOn in property translerred under ORS 271.330 when the transfer occurred not less than 20 ycars prior to the date on which the resolution IS adoptcd. ORS ~ 271.340 (2005) 271.340. Property valuatIOn in exchange to be equal. When property is exchanged under the authority of ORS 271.310 to 271.330, the value of the real property accepted by tbe polil1cal subdivisIOn m exchange for any of ItS property plus cash, if any, shall not be less than the value of the propcrty relinquished. ORS ~ 271.350 (2005) 271.350. Detcrmmmg valuation of property in exchanges. The value of the respective properties proposed to be exchanged shall be determined by the governmg body of the political subdivIsion. The governing body shall cause It to be appraised by one or more competent and experienced appraisers. The compensation, ifany, of the appraisers shall be borne equally by the respective owners of the property. In case the valuation shall not be mutually satisfactory to the respective owners It shall not be bmdmg upon thcm. ORS ~ 221.725 (2005) 221.725. Sale of city real propcrty; publicatIon of notice; public heanng. (I) Except as proVided in ORS 221.727, when a city council considers It necessary or convenient to sell real property or any mterest therein, the city cOlmcIl shall publish a notice of the proposed sale in a newspaper of general Circulation in the city, and shall hold a public hearing concerning the sale prior to the sale. (2) The notice required by subsection (I) of this section shall be published at least once during the week prior to the public hearing required under thiS section. The notice shall state the timc and place of the public hearing, a description of the property or mtcrest to be sold, the proposed uses for the property and the rcasons why the city council considers it necessary or convenient to sell the property. Proof of publication of the notice may be made as provided by ORS 193.070. (3) Not earlier than flvc days after publication of the notice, the public hcanng concerning the sale shall be held at the lime and placc stated in the nol1ee. Nothing in this sectIOn prevcnts a city council from holdmg the hearing at any regular or special meeting ofthc city council as part of its regular agenda. (4) The nature of the proposed sale and the general terms thereof, mcluding an appraisal or other evidencc of the market value of the property, shall be fully disclosed by the city council at the public hearing. Any resident of the city shall be given an opportunity to present written or oral testimony at the hearing. (5) As used in thiS sectIon and ORS 221.727, '''ale'' mcludes a leasc-optlon agreement under which the lessee has the right to buy the leased real property in accordance With the terms speci fled in the agreement. DEVELOPMENT AGREEMENT FOR VERDE VILLAGE This Agreement is entered into this _ day of , 2007, by and between CITY OF ASHLAND, a municipal corporation and political subdivision of the State of Oregon (hereinafter referred to as "City"); and ASHLAND FLOWER SHOP AND GREENHOUSES, INC., an Oregon corporation (hereinafter referred to as "AFSG"). RECITALS WHEREAS, AFSG is the owner of real property located on West Nevada Street in Ashland near the terminus of Helman Street (a portion of which is currently outside City's limits, but within City's Urban Growth 13oundary); and, WHEREAS, AFSG desires to develop three (3) Planned Unit Developments (Single Family, Cottage and Townhome Communities) consisting of, inter alia: 68 residences, in a variety of formats: (1) 25 Single Family Homes, approximately 2500 SF maximum, 19 as detached units and 6 attached units, some with attached garages, a common green space, surface conveyance of storm water in constructed treatment wetlands; (2) 24 Cottages, approximate size 800-1200 SF, of which 10 are duplexed, featuring community gardens, units clustered around open space and group parking with no garages; (3) 15 Townhome units, approximate size 900-1200 SF, with common open space and play area, developed as an Affordable Housing Project by Rogue Valley Community Development Corporation; and four additional standard residential lots for individual sale; said development to be known as "Verde Village" more particularly described in the application, including but not limited to Revised Outline Plan Narrative - Book III, with Sub-Exhibits A through U, and Appendices, supporting documents, materials and official plans, in the Planning Department File #2006-01663, incorporated herein and made a part hereof by this reference; and WHEREAS, Verde Village is proposed as a sustainable residential development featuring "Net Zero Energy Homes" (residences which can potentially produce as much energy annually as they consume) and AFSG hopes that Verde Village will serve as a prototype for sustainable development, and concurrently serve as an example of DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -1- economically feasible "green development" for builders in other communities throughout the Northwest; and, WHEREAS, to realize the development of Verde Village, numerous City, County, State and Federal approvals and authorizations are required, including but not limited to: 1. Real Property exchange between AFSG and the City of Ashland, including Federal, State, County and City acceptance of the exchange; 2. Annexation; 3. Comprehensive Plan Map Change; 4. Zoning Map Change; 5. Outline Plan Approval; 6. Street Exceptions; 7. Physical Environmental Constraints Permit; 8. Tree Removal Permit. WHEREAS, efficiency, public policy, and community involvement are best promoted if the various public processes and approvals required for the required real property exchange, annexation, comprehensive plan amendment, zone map change, and other land use approvals necessary to approve Verde Village are "bundled" for global consideration; and, WHEREAS, AFSG and City agree that a Development Agreement pursuant to ORS Chapter 94 is the best tool to bundle the required approvals to achieve consolidated review and action on the approvals necessary for the Verde Village Project and, WHEREAS, a decision to enter into a Development Agreement is a negotiated legislative land use decision by the City addressing the orderly and efficient development of land within the City's urban growth boundary; and, WHEREAS, on July 10, August 14, and August 28, 2007, City's Planning Commission considered this proposed Development Agreement at a public hearing held in accordance with the notice and advertising requirements of the Ashland Land Use Ordinance and the Oregon Revised Statutes, and said Commission then recommended approval of the Development Agreement to City's Council; and, WHEREAS, on November 6, 2007, City's Council considered this Development Agreement at a public hearing held in accordance with the notice and advertising requirements of the Ashland Land Use Ordinance, the Oregon Revised Statutes [ORS 94.513(2)] and local policies; and, DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -2- WHEREAS, on November 20, 2007, the City's Council deliberated on the proposed Development Agreement and approved the First Reading of an Ordinance approving the Development Agreement; and WHEREAS, on December 4, 2007 the City's Council approved the Second Reading of an Ordinance approving the Development Agreement, with an effective date of January 4, 2007; WHEREAS, City's Council finds and determines that this Development Agreement is consistent with City's Comprehensive Plan, the applicable provisions of City's Land Use Ordinance and provisions of the Oregon Revised Statutes in effect at the time of entering into the Development Agreement pursuant to ORS 94.508; and WHEREAS, City has authority to enter into this Development Agreement and to adopt a City Ordinance, pursuant to ORS 94508(2), approving this Development Agreement pursuant to City's Charter, City's Land Use Ordinance, and ORS 94.504 through ORS 94528. WHEREAS, the adoption of the ordinance approving the Verde Village Development Agreement, land exchange, annexation, comprehensive plan map change, zoning map change, outline plan approval, street exceptions, environmental constraints permit and tree removal permit, [PA #2006-016663], is fully supported buy evidence in the whole record, including specifically the evidence supporting the Findings of Fact, Conclusions of Law and Order(s), attached to the Ordinance approving this Agreement as Attachment 2 and 3 and made a part hel-eof by this reference. NOW, THEREFORE, in consideration of the mutual promises and performance obligations of each party as set out in this Agreement, the City and AFSG do hereby agree as follows: 1.0 RECITALS. The above Recitals are true and correct and are incorporated herein by this reference. 2.0 INTENT AND PURPOSE. This Development Agreement is intended to facilitate, control and manage the development of the Verde Village project within the City of Ashland. The Ordinance approving the Development Agreement "bundles" required approvals for consolidated consideration and approval as well as enumerating the special terms, conditions and requirements of development, including a timetable of development, negotiated and agreed to by the City and AFSG. DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -3- 3.0 LEGAL AND EOUITABLE OWNERSHIP. AFSG, an Oregon corporation, represents and warrants that it is the fee owner of the following real property located on West Nevada Street in Ashland near the terminus of Helman Street, (a portion of which is currently outside City's limits, but within City's Urban Growth Boundary): (39-1E-4BB, Tax Lots 700, 800 & 900) (39-1E-4B, Tax Lots 800 &1100) City represents and warrants t~lat it is the fee owner of real property adjacent to AFSG holdings, commonly referred to as the City's Dog Park, more particularly described as follows: (39-1E-04BB, Tax Lot 200) City's property is subject to limitations concerning a Federal Land and Water Conservation Funds and Jackson County deed limitations. 3.1 Within the identified AFSG's holdings, AFSG owns a parcel of property which is identified on City's Parks, Trails and Open Space Master Plan Map for long-term acquisition by City (identified as Long-Term Acquisition Area "10" on said Map). A portion of the Dog Park property serves as ingress and egress to City's Dog Park, but said access could be better utilized if that portion of the City's parcel was exchanged for the identified portion of the AFSG holdings and standard street access to the Dog Park was provided. The appraised value of the City's Dog Park access property is less than the appraised value of AFSG's property proposed for exchange. AFSG and City desire to enter into a real property exchange pursuant to ORS 271.300, et seq., in which City will convey to AFSG a portion of real property currently owned by City ("City's Parcel"); and AFSG will concurrently convey to City a portion of real property currently owned by AFSG ("Williams Property"). This real property exchange is more fully described in Section 10.0 below and in the Findings attached to the Ordinance approving the Development Agreement. 3.2 After the real property exchange is completed with the City as contemplated in the Agreement, AFSG, an Oregon corporation ), its successors or assigns, will be the fee owner of the "Verde Village Property", including specifically the real property described and shown in Exhibit A attached hereto and made a part hereof by this reference. 4.0. DEFINITIONS. 4.1 "AFSG" means Ashland Flower Shop and Greenhouses, Inc., an Oregon Corporation (principals: Gregory D. Williams, President; and Valri Williams, Secretary. 4.2 "ALUO" means Chapter 18 of the Ashland Municipal Code, known as the Ashland Land Use Ordinance. 4.3 "Agreement" means this Development Agreement, entered into between the parties pursuant to ORS 94.504 through ORS 94.528. DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -4- 4.4 "Applicant" means AFSG, their successors and assigns. 4.5 "City" means the City of Ashland, Oregon. 4.6 "Council" means the City of Ashland's City Council and Mayor. 4.7 "Planning Commission" means the City of Ashland's duly appointed Planning Commission. 4.8 "City Property" means that portion of real property, approximately 1.54 acres in size, which is currently owned by City and proposed to be exchanged for a portion of the "Williams' Property" as part of the real property exchange described in this Agreement. It is generally that portion of real property serving as the current access to City's Dog Park, and is more specifically described in the "Dog Park Property" Appraisal Report as "portion to be traded" in the Appraisal Report for the City Property included in the Record, as well as the June 8, 2007 Revised Outline Plan Narrative: Sub-Exhibits A, B, C, M, N-1, and Q in the record. 4.9 "Comprehensive Plan" means the City of Ashland's Comprehensive Plan, as amended. 4.10. "Dog Park Property" means the entire collection of tax lots under City ownership prior to the date of the Agreement and more fully described in the Dog Park Property Appraisal Report for the City Property included in the Record. Only a portion of the Dog Park Property is to be exchanged for the Williams Property pursuant to this Agreement, as described in the Appraisal Report for the City Property included in the Record, as well as the June 8, 2007 Revised Outline Plan Narrative: Sub-Exhibits A, B, C, M, N-1, and Q in the record. 4.11 "ORS" means the Oregon Revised Statutes, as amended. 4.12 "Owner" means AFSG, their successors and assigns. 4.13 "Verde Village" and "Verde Village Project", and "Project" mean the AFSG residential subdivision project approved by City pursuant to this Agreement, as described in the record, including the June 8, 2007 Revised Outline Plan Narrative. 4.14 "Verde Village Property" means the real property to be owned by AFSG after the herein described real property exchange is consummated. This includes the real property owned by AFSG prior to the date of this Agreement (but not including the "Williams Property" to be exchanged), coupled with the access portion of the City's Dog Park Property ("City Property") to be exchanged for the "Williams Property" pursuant to this Agreement, as more fully described in tile Record of this proceeding. 4.15 "Williams Property" means that portion of the real property, approximately 2.78 acres in size, which is currently owned by AFSG, and which borders Ashland Creek. The "Williams Property" is more specifically described in the Williams Property Appraisal Report in the Record as "portion to be traded". The Williams Property is to be exchanged for the City Property which currently serves as access to the Dog Park, as more specifically described in the Dog Park Property Appraisal Report in the Record. 4.16 "Real Property Exchange" means transferring or conveying real property currently owned by City in exchange for the reciprocal transfer or conveyance of real property DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -5- owned by a private party pursuant to ORS 271.310 through ORS 271.330. As used herein, "Real Property Exchange" refers specifically to trading the 2.78-acre "Williams Property" in exchange for the 1.54-acre "City Property", as per the detailed map in the June 8, 2007 Revised Outline Plan Narrative: Sub-Exhibit "N-l" . 5.0 UNIFIED CONTROL. The Owner hereby warrants that he has or will have pursuant to this Agreement unified ownership of all real property included in the Verde Village Property, as set forth in Exhibit A. Verde Village Property" means the real property currently owned or to be owned by AFSG. Documents certifying title are attached hereto and incorporated herein as Exhibit B. A covenant of Unified Control by the Owner is attached hereto and incorporated herein as Exhibit C. 6.0 DEVELOPMENT PLAN USES. DENSITY. INTENSITY. HEIGHT. [ORS 94.504(2)(b)(c)(d)] The Owner agrees that Verde Village will be undertaken and carried out in accordance with this Agreement and with the following: 6.1 The permitted development uses, maximum densities, intensities, building height, and dimensions permitted for Verde Village shall be those specifically set forth below and as depicted on the approved outline plan, final plan and plat and final civil plans (engineering construction approval) and associated permits: Density or Intensity: Up to 68 residential units; 6.57 units per acre (68 units on approximately 10.37 acres). This Project is subject to a minimum density of 90% of the base density for the zone, pursuant to ALUO 18.106.030(F). Accordingly future development of the Verde Village property shall comply with the minimum density set forth on this agreement and the approved plans. 7/20/07: Revisions to Area and Density Tables Maximum Height: Not to exceed 35 feet Maximum Structure Size: (No structure size limit per se). The construction of all structures within the Project shall be governed by the size and dimension criteria (e.g. setbacks) set forth in this Agreement and reflected on the Outline Plan for DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -6- the Project. When not specifically addressed the coverage limitations and other requirements of the following zones shall be met: R-1-3.5: R-1-5: R-1.7.5: up to 55% of total lot area up to 50% of total lot area up to 45% of total lot area Permitted uses of property: The uses permitted within Verde Village, including three (3) separate PUDs and 4 individual lots shall be those uses indicated on the Outline Plan together with such accessory uses as may customarily be associated with the permitted uses. When not specifically addressed, the uses, standards, regulations, limitations and restrictions of the following zones shall be met in the designated areas: R-1-3.5 R-1-5 R-1.5 R-1-7-5 Townhome Area PUD Cottage Area PUD Single Family PUD & (3) Nevada Lots (1) single family lot on Alameda The permitted uses, density and intensity of uses, and other aspects of the development requirements on the Verde Village Project shall also be governed by this Agreement and the City Council Findings of Fact, Conclusions of Law and Order concerning the development. 6.2 It is agreed and understood that, unless otherwise expressly stated herein, the provisions of the City's Municipal Code, City's ALUO, City's Comprehensive Plan, and City's other rules and policies governing development of land were applied by City in considering and entering into this Development Agreement, to the extent such Code provisions, Ordinances, Comprehensive Plan provisions, rules and policies existed on the date of this Agreement. [ORS 94.518]. (a) It is agreed and understood that the development of Verde Village will be undertaken and carried out in accordance with this Agreement, the outline plan approval, final plan and final plat, civil engineering approval (construction plans) and applicable construction permits, and associated City approvals, as officially approved or to be approved and adopted by the City, and in strict compliance with the approved timetable of development. DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -7- (b) It is agreed and understood that the development of Verde Village authorized by the preliminary approval (outline plan) stage, includes no actual physical commencement of construction but only development of detailed Final Plan and Site Review Approvals and Final Civil (Engineering) Plans and Specifications, and that such plans comply with the laws and ordinances, including engineering standards then in effect, and shall also conform with and be accomplished pursuant to this Agreement as well as the outline plan approval, a copy of which is attached hereto as Exhibit D and made a part hereof by this reference. (c) It is agreed and understood that the development of this PUD at Final Plan and Site Review Approval stage, including but not limited to infrastructure construction, shall be accomplished in accordance with the approved Final Plan and Site Review Approval, as well as the Final Civil Plan Approval, (construction plan authorization) and applicable construction permits to be approved by the Ashland Engineering Department, in accordance with such laws, ordinances and regulations, including engineering standards as were in effect at the time of the final plan application is deemed complete. (d) It is agreed and understood that the remaining development of this PUD must be accomplished in accordance with the final plat or plats to be approved by the City in accordance with such laws, ordinances and regulations as may be in effect at the time the final plat application is deemed complete. (e) When not specifically addressed in this Agreement, and except as provided for subdivision infrastructure construction in ORS 92.040, all permits and authorizations for the development of this PUD project shall be in accordance with the law in effect at the time further development permits or authorizations are sought. 6.3 The special conditions and requirements adopted or imposed by the City in the process of the approval of the outline plan and PUD for the property which requirements are set forth in Exhibit E, attached hereto and made a part hereof, shall be strictly adhered to by the Owner. 7.0 TIMETABLE OF DEVELOPMENT AND PHYSICAL COMMENCEMENT. [ORS 94.504(4)] The timetable for development, including commencement and completion dates, as officially approved and adopted by the City and agreed to by Owner, are described and shown in Exhibit F, attached hereto and made part hereof by this reference. The timetable shall be strictly adhered to by the Owner. Notwithstanding the above, it is DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -8- expressly understood that all timetables set forth herein shall be tolled during any LUBA or subsequent appeal or remand of the development agreement and associated approvals. 8.0 VESTED RIGHTS. 8.1 Except where specified in this Agreement, the Owner shall have the right to develop Verde Village in accordance with applicable laws, ordinances and regulations, the provisions and requirements of this Agreement, the outline plan approval, the approved Final Civil Plan (engineering construction plan) and permits, and the final subdivision plat. 8.2 There shall at all times be a strict adherence to the provisions of this Development Agreement and the approved outline plan and Final Plan and Site Review Approvals/plats as well as the approved construction plans and permits. Failure to strictly comply with any such provisions or requirements shall be deemed a breach of this agreement. Any change or amendment to this Agreement, the outline plan, final plans, plats, construction plans or permits can only be made in accordance with such laws and ordinances as may be in effect at the time of such Amendment or change. The limitations and restrictions imposed on local governments by ORS 92.040 are expressly understood to be inapplicable to changes or amendments to the above-referenced approvals. 8.3 Notwithstanding the timetable of development, and subject to unilateral amendment by the City to address then current public health, safety and welfare regulations, in the event that all or a portion of the Verde Village project should be destroyed by a storm, fire or other common disaster, the Owner, its grantees, successors or assigns and/or the Association(s), shall have the right to rebuild and/or repair so long as there is strict compliance with the outline plan and Final Plan and Site Review Approval/plat, approved construction plans and permits, as the same may be formally amended from time to time. 9.0 DURATION OF AGREEMENT AND CONTINUING OBLIGATIONS. [ORS 94.504(2)(a)] The duration of this Agreement commences upon Ordinance adoption, execution and effectiveness and terminates on January 4, 2015, (seven years from the anticipated effective date of the Agreement). Termination of the duration of this Agreement only terminates authorization to engage in physical construction and development of the property, excluding vertical construction of (4) single family dwelling units on individual lots; this Agreement remains in full force and effect as the development approval and authorization for completed development, including all continuing maintenance obligations. DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -9- 10. O. PROVISION FOR THE RESERVATION. DEDICATION OR SALE OF LAND FOR PUBLIC PURPOSES, [ORS 94.504(2)(e)] 10.1 Temporary Access Easement. Owner shall maintain safe and free public access to the City Dog Park during the development of the Verde Village Project. Accordingly, prior to physical commencement of infrastructure construction which has the effect of disrupting the existing City access to the Dog Park, Owner shall grant to the City a Temporary Access Easement or Easements for purpose of maintenance of free and unrestricted public access to the City Dog Park. The temporary free access need not be paved but must be sufficiently improved to provide safe access to the Park by the public. Temporary access does not excuse the Owner's obligation to timely complete the Phase I extension of Almeda to Nevada Street and timely complete the construction of "Canine Way" to the Dog Park, so that City standard access is provided at the earliest possible date. Said Temporary Access Easement shall be provided to the City Legal Department for approval prior to acceptance by the City and recording. The easement shall be in substantially the form set forth in Exhibit H. The precise location of such easement area shall be approved by the City Public Works Director, or designee. The Temporary Access Easement terminates only after conveyance of permanent easements and right-of-way dedications, containing City accepted public infrastructure providing improved public access to the City Dog Park. 10.2 Subdivision improvements and Offsite Public Infrastructure. Except where the timetable of development expressly provides otherwise, Owner shall make appropriate improvements and dedicate to the City prior to, or concurrent with, the final plat for each respective phase of the Project, all such public tracts, public rights-of-way, permanent easements, dedications, and public facility improvements, including specifically but not limited to, utility easements, public streets, rights-of-way, bike paths, recreation parcels, multi-use paths, drainage easements, and other improvements, as are necessary to implement the approved development in PA #2006-016663, including the Outline plan, final plans and civil plans to be approved, to fully address and implement all the public facility and service needs of the development. Said tracts, easements, dedications and improvements shall be in a form approved by the City Public Works Director and City Attorney and shall be recorded after approval and acceptance by the City. The dedications, including but not limited to easements, public rights-of-way and public improvements shall be provided by the Owner at no cost to the City of Ashland. 10.3 AFSG and City Real Property Exchange AFSG proposed a real Property exchange with City in order to provide a more rational and efficient use of land within City and its UGB, to preserve the Ashland Creek riparian DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -10- area and open it to public use, and to provide safe, efficient, and fully improved public access to City's Dog Park and the Bear Creek Greenway. The completed exchange results in AFSG owning the property represented and shown in Exhibit A, and the City will own a tract identified as Long-Term Acquisition Area "10" on City's Parks, Trails and Open Space Master Plan Map. AFSG proposes a real property exchange of IN sum, approximately 2.78 acres of riparian area and field ("Williams Property") as a "quid pro quo" exchange for approximately 1.54 acres of City land, consisting primarily of City's Dog Park access separating the East and West parcels owned by AFSG. See June 8, 2007 Revised Outline Plan Narrative Sub-Exhibit N-l(Map) in the record. The mechanics of the exchange are set forth in Exhibit G to this Agreement, incorporated herein and made a part hereof by this reference. The findings necessary to approve the exchange under ORS Chapter 271, are attached as Attachment 3 to the Ordinance Declaring the approval of this Development Agreement and are incorporated herein by this reference. For tax purposes, $ shall be the agreed upon value of the gift or donation by AFSG (i.e. the acknowledged difference between the value of the Williams Property and the Value of the City Property exchanged.). 11.0 SCHEDULE OF FEES OR CHARGES. [ORS 94.504(2)(f)] All development authorized in the Verde Village project is subject to payment of applicable System Development Charges (SDCs) and utility fees and charges at the applicable trigger times, usually building permit issuance, as specified in the SDC ordinances and other codes in effect at the time development occurs. This Agreement does not award or grant any SDC credits to any party nor does this Agreement freeze or otherwise fix the SDC charges for development referenced herein. 12.0 RESPONSIBILITY FOR INFRASTRUCTURE. [ORS 94.504(2)(h)] The Owner is fully responsible for the construction of all infrastructure development to support the Verde Village project includin~ public facility improvements (street/traffic improvements, water, sewer and storm water) recreation improvements, common area improvements and restoration and enhancement of natural areas, and internal project infrastructure, including private utilities, and amenities, both on-site and off-site and as required by the ALUO, including City Engineering Standards, as more fully set forth in the Findings of Fact, Conclusions of Law and Order attached to the Ordinance approving the Development Agreement, incorporated herein and made a part hereof by this reference. 13.0 RESPONSIBILITY FOR COMMON AREAS. The Ashland Land Use Ordinance requires that common areas, including shared open DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -11- space, be shown on the final plan/plat and recorded. The Code further requires that the Owner make adequate provisions for the continuing maintenance and upkeep of common areas by an association or other legal entity. The following common area maintenance provisions shall apply: 13.1 The OWNER shall create a Declaration of Covenants, Conditions and Restrictions for Verde Village, (hereinafter the nCCRn). As a part of said Covenants and Restrictions, the OWNERS ASSOCIATION shall be established for the maintenance, operation and management of the Common Areas as defined therein. All of the above areas in the PUD are designated and shown on the Outline Plan which is attached hereto as Exhibit "0" and made a part hereof. The CCR shall be part of the first application for Final Plan and Site Review approval and shall be in conformity with the ALUO and Oregon State Statutes. 13.2 It shall be deemed a breach of this Agreement for any land to be conveyed by the Owner by an instrument which does not contain the Covenants and Restrictions or incorporate them by reference. The Association shall not be dissolved nor shall it dispose of any Common Areas, by sale or otherwise, except to an organization conceived and organized to own and maintain the Common Areas, without first receiving approval of the City. The City, as a condition precedent to the dissolution or disposal of Common Areas, may require dedication of common open areas, utilities or road rights-of-way to the public as are deemed necessary. 13.3 In the event that the Association (or any successor organization) fails at any time to maintain the Common Areas of the PUD in reasonable order and condition in accordance with the approved outline plan, final plans and plats, and any preservation area management plan then the City can serve written notice by certified mail, return receipt requested, upon such organization or upon each owner of real property within the PUD, which notice shall set forth the manner in which the organization has failed to maintain the Common Areas in reasonable order and condition, and shall demand that such failure be remedied within thirty (30) days of the sending of such notice or, in the alternative, that such organization appear before the City Councilor their designee at a specified time (at least ten (10) days but not more than thirty (30) days after the sending of such notice) either to contest the alleged failure to maintain the Common Areas or to show cause why it cannot remedy such failure within the thirty (30) day period. If such failure has not been remedied within the thirty (30) day period or such longer period as the City may allow, then the City, in order to maintain strict compliance with development authorizations, and in order to preserve the taxable values of the real property within the PUD and to prevent the Common Areas from becoming a public nuisance, shall hold a public hearing to consider the advisability of the City enterin(j upon such Common Areas and maintaining them for a period of one (1) year. Notice of such hearing shall be sent by certified mail, DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -12- return receipt requested, to the organization involved and (if such organization is dissolved) to each owner of real property within the PUD and shall be published in a newspaper of general circulation published in Ashland, Oregon. Such notice shall be sent and published at least fifteen (15) days in advance of the hearing. At such hearing the City may determine that it is or is not advisable for the City to enter upon such Common Areas, take non-exclusive possession of them and maintain them, according to City standards and the management plan, if any, for one (1) year. Such entry, possession and maintenance when followed in accordance with the above procedures shall not be deemed a trespass. In no event shall any such entry, possession and maintenance be construed to give to the public or the City any right to use the Common Areas. 13.4 The City may, upon public hearing with notice given and published in the same manner as above, return possession and maintenance of such Common Areas to the organization, or successor organization, abandon such possession and maintenance, or continue such possession and maintenance for additional one (1) year periods. 13.5 The cost of such maintenance by the City, including the full administrative cost of the notice and hearing processes identified herein and outlined above, shall be assessed ratably against the real properties within the PUD, the owners of which have the right to the enjoyment of the Common Areas and shall become a charge or lien on said properties if not paid within thirty (30) days after the receipt of a statement therefore. 14.0 ASSUMPTIONS UNDERLYING CIRCUMSTANCES. [ORS 94.504(6)] AGREEMENT AND CHANGED The assumptions underlying this Agreement, specifically as regards the ability of the City to service the Development with regards to public facilities, are set forth herein, or are included in the Findings of Fact, Conclusions of Law and Order, attached to the Development Agreement Ordinance and incorporated into or referenced in this Agreement. In sum, this agreement is based on the assumption that City has adequate capacity to provide necessary services to the Verde Village Project, as determined by the City's Director of Public Works. In particular, the terms, conditions and restrictions of this Agreement as well as the law in effect at the time further development approvals are sought, determine the ability of the development to be served. In the event of changed circumstances, this Agreement provides for permitted amendment, modification or revocation. The parties will work together in good faith to find a solution to cure any inability to provide services or otherwise comply with the terms of this Agreement. This Agreement specifically contemplates development of the Verde Village project in accordance with the approved timetable of development. DEVELOPMENT AGREEMENT FOR VERDE VILLAGE - 11-06-07 Page -13- 15.0 BUDGET AND GENERAL DISCLAIMER. [ORS 94.504(5)] All City obligations pursuant to this Agreement which require the expenditure of funds are contingent upon future appropriations by the City as part of the local budget process. Nothing in this Agreement implies an obligation on the City to appropriate any such monies. City acknowledges that following the required review and approval of Final Plan and Site Review s for adequacy of public facilities, and approval of final civil plans (construction plan approval) and associatecl construction permits, the determination for issuing building permits for the construction of buildings on the Property is not an obligation that would require the expenditure of funds and, therefore, is not contingent upon future appropriations by the City. The City and Owner are entering into this Agreement voluntarily in the spirit of cooperation and coordination to facilitate the Owner's desire to develop a sustainable residential development, with a focus on public recreation and environmental sensitivity. The City desires to facilitate forward thinking development which recognizes environmental constraints, the importance of public recreation and promotes sustainability. However, nothing in this Agreement makes the City or Owner responsible for the contracts or commitments of the other as regards development of the Verde Village or as regards public improvements constructed by Owner with tile intention of donating such facilities to the City. The Owner is not subject to public contracting rules and regulations and nothing herein makes Owner subject to such public agency requirements. No City funds are provided by this agreement for City construction of public infrastructure in this project. Owner is not the City's agent and City is not the Owner's agent for purposes of any contracts or commitments made by either party. Owner acknowledges and agrees that future final approvals, including final plan, final plat approval, final civil plan (construction plan approval) and construction permits and building permits are subject to compliance with all applicable approved plans, approval conditions and applicable land development regulations in effect at the time the approvals are sought, except as may be provided for infrastructure construction in ORS 92.040 or as otherwise provided in this Agreement. No rights to obtain final development approvals, e.g. final plan, plat, or building permits nor any other rights to develop Verde Village have been granted or implied simply by the City's approval of this Development Agreement, including the donations, dedications and land exchange contained herein, without Owner's full compliance with approved plans, approval conditions and the applicable law in effect at the time such final approvals are sought. The Owner, or its successors and assigns, may not attempt to force, coerce or intimidate the City to approve the final plan, plat or other grant other development authorizations, including building permits, by asserting that the City has committed to such approvals for Verde Village based on ttle theory of vested rights or equitable DEVELOPMENT AGREEMENT FOR VERDE VILLAGE ~ 11-06-07 Page -14- estoppel or any other legal theory based on the City's approval of this Agreement, or other approval, or acceptance of donations, dedications or land exchange identified herein. City approval of final development ol~ders requires strict compliance with applicable approval conditions and the applicable criterion for approval. 16.0 FUTURE DISCRETIONARY APPROVALS. [ORS 94.504(3)] The following is a list of all discretionary local development approvals (bold) as well as other steps and ministerial actions necessary for the development of Verde Village: 1. Ordinance Declaring Council Approval of Development Agreement, as well as Findings of Fact, Conclusions of Law and Order for other approvals, including Annexation, Comprehensive Plan Map Change, Zone Map Change, Outline Plan Approval, Street exceptions, Physical and Environmental Constrains Permit and Tree Removal Permit, (some approvals have delayed effectiveness while prerequisite approvals, are finalized as stated below). 2. Ordinance Approving Land Exchange by City Council (same as 1 above) 3. Land Exchange Approved by Resolution of Jackson County Board of County Commissioners pursuant to ORS 271.335 (condition of 1 above) 4. Land Exchange Approved by State Parks (condition of 1 above) 5. Land Exchange Approved by Federal Parks (condition of 1 above) 6. Ordinance Approving Annexation and Fire District Withdrawal of Phase I (condition of 1 above) 7. Ordinance Approving Annexation and Withdrawal re: Recreation Tract (condition of 1 above) 8. Ordinance Approving Annexation and Fire District Withdrawal of Phase II (condition of 1 above) 9. Ordinance Approving Comprehensive Plan Map and Zone Changes for Annexed Lands (concurrent with 6-8, condition of 1) 10. Owner prepares detailed Final Plan application and Civil Plans, processes other state, federal and agency permits and approvals. 11. Final Plan and Site Review Approval Phase I (Deadline July 4,2009) 12. Final Civil (Engineering Construction) Plan Approval for Phase I 13. Final City Construction Permits. 14. Approval of all other State, County, Federal Agency permits prerequisite to construction activity. 15. Commencement Deadline January 4, 2010: Construction of Public Infrastructure, including street extensions, multi-use path, access roads to Dog Park and other Phase I Improvements to facilitate private development. (See Exhibit F) DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -15- 16. Conveyance of deeds to effectuate land exchange, including acceptance by City of completed public recreation improvements constructed by Owner. 17. Final Plat Approval Phase I 18. Conveyance of Parcel from Owner to RVCDC for Affordable Housing Project. (must occur prior to vertical construction) 19. Building Permits Phase I for Vertical Construction 20. Final Plan and Site Review Approval Phase II (Deadline July 4,2011) 21. Final Civil (Engineering Construction) Plan Approval for Phase II 22. Final City Construction Permits. 23. Applicable State, County, Federal Agency permits prerequisite to construction activity . 24. Construction of Public Infrastructure, including street extensions and other Phase II Improvements to facilitate private development. (See Exhibit F) 25. Final Plat Approval Phase II 26. Building Permits Phase II for Vertical Construction 27. Deadline to complete Vertical Construction Phase I: January 4, 2013 28. Deadline to Complete Vertical Construction Phase II: January 4, 2015 The terms, restrictions and requirements of these approvals are set forth in the applicable City Ordinances, including the Ashland Land Use Ordinance, applicable State statutes and regulations, the preliminary approvals, including outline plan approval and this Agreement. Generally, the law in effect at the time of the application is deemed complete governs the review and approval of the decision, when not inconsistent with the Outline Plan approval, except for subdivision infrastructure. All local development approvals and permits identified in this Agreement shall be obtained at the sole cost of the Owner. The failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve the Owner of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions. Any matter or thing required to be done pursuant to the requirements of the ordinances of the City of Ashland shall not be otherwise amended, modified or waived unless such modification, amendment or waiver is expressly provided for in this Agreement with specific reference to the provisions so modified waived or amended. In no event shall delay in obtaining permits from other agencies be deemed as automatically requiring an extension of time to obtain required development approvals or the Development Agreement with City. Nor shall such delay be interpreted as requiring the City to appmve an extension of time to any existing development order or development agreement. The following sworn statement shall be submitted prior to commencement of Physical construction: Sworn Statement, Verification of Federal, State, and Local Permit Compliance. Prior to any land clearing, alteration, or physical construction (other than survey work or DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -16- environmental testing) on a site the property owner and developer, if any, shall execute a sworn statement under penalty of perjury and false swearing, that owner/developer has obtained all required Federal, State, and local authorizations, permits and approvals for the proposed development, including any proposed use, or alteration of the site, including also any off-site improvements. Owner/Developer shall be solely responsible for obtaining all approvals, permits, licenses, insurance, and authorizations from the responsible Federal, State and local authorities, or other entities, necessary to use the property in the manner contemplated, including all authorizations necessary to perform land clearing, construction and improvement of property in the location and manner contemplated. This provision includes, but is not limited to, when applicable, a permit or statement from the National Marine Fisheries Service and/or Fish and Wildlife Service that owner's proposed use and/or development will not take or harm any endangered or threatened species as that term is defined in applicable Federal Statutes and Regulations. Further, it is expressly agreed and understood that the City of Ashland has no duty, responsibility or liability for requesting, obtaining, ensuring, or verifying owner/developer's compliance with the applicable state and federal agency permit or approval requirements. Any permit or authorization granted by the City, including any exemption, exception, permit, approval or variance pursuant to the Ashland Land Use Ordinance shall not in any way be interpreted as a waiver, modification, or grant of any state or federal agency permits or authorizations or permission to violate any state or federal law or regulation. Owner/Developer shall be held strictly liable, and shall hold the City of Ashland, its officers and employees harmless for administrative, civil and criminal penalties for any violation of Federal and State statutes or regulations, including but not limited to the Clean Water Act, Endangered Species Act and regulations and rules implementing such laws. Nothing herein shall be interpreted as restricting or limiting the City from bringing an enforcement action under the Ashland Municipal Code. 17.0 SCHEDULE/PROCEDURE FOR COMPLIANCE REVIEW. [ORS 94.504(2)(g)] Two weeks prior to the anniversary date of the adoption of this Ordinance approving this Agreement, the Owner and City shall submit a written report to the Planning Director for the City, for review and consideration at the next available Council meeting. The report shall address the extent and timing of compliance with the terms and conditions of this Agreement by both parties. The submission shall be made in letter form to the City Planning Director for placement on the next available agenda. The Council shall review this report and this Agreement at the next available meeting, and if deemed necessary, may direct that a subsequent report be submitted and considered on or about the subsequent anniversary date of this Agreement, and likewise thereafter. The Planning and Engineering Departments shall prepare the City's portion of the report. If the Council believes the reports demonstrate failure to comply with the terms of this Development Agreement, the reports and this Agreement shall be I'eferred to the Planning Commission for DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -17- recommendation to the Council. In accordance with the amendment/revocation procedures the Council shall determine whether the evidence demonstrates that the Owner or City has not complied in good faith with the terms and conditions of this Development Agreement. At such time the Council shall also determine whether this Agreement should be amended, modified, revoked or terminated. 18.0 BREACH OF AGREEMENT/REMEDIES & ENFORCEMENT [ORS 94.504(2)(j)] [ORS 94.522] 18.1 It is the intent of the parties to strictly comply with the terms and conditions of this Development Agreement to the mutual benefit of both the Owner and the City. 18.2 In the event either party believes CI material breach of the terms and conditions of this Agreement has occurred, whether by action or inaction of a party, the injured party shall serve written notice on the other of the alleged breach and the other party shall have thirty (30) days to cure or respond in wl'iting to the injured party. In the event of a disagreement after the exchange of writings, the City Administrator shall set a time, date, and place for a public meeting of the City Council. The meeting shall give the City and the Owner an opportunity to explain to the Council the facts supporting or disproving the alleged breach, and allow the parties to propose a method of fulfilling this Agreement's terms and conditions. The parties may mutually negotiate an amendment to this Agreement to cure the alleged breach, and approve such amendment, after required notice, hearing and ordinance procedures are followed. Material breach includes but is not limited to any assignment by a party for the benefit of creditors, or adjudication as a bankrupt, or appointment of a receiver, trustee or creditor's committee over a party. Material breach also includes failure to proceed with the land exchange after all approvals are obtained from Federal, State and County approvals. 18.3 Until termination or revocation of this Development Agreement, the terms of this Agreement are enforceable by any party to this Agreement. [ORS 94.522(6)] The parties stipulate and agree that enforcement in Circuit Court is subject to the prerequisite administrative process set forth above. Thereafter, each party shall have all available remedies at law or in equity to recover damages and compel performance of the other party pursuant to this Agreement. The rights and remedies afforded under this Agreement are not exclusive and shall be in addition to and cumulative with any and all rights otherwise available at law or in equity. The exercise by either party of anyone or more of such remedies shall not preclude the exercise by it, at the same or different time, of any other remedy for the same default or breach or of any of its remedies for any other default or breach by the other parties, including, without limitation, the right to compel specific performance DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -18- 18.4 It is expressly agreed by the parties that the appropriate remedy for enforcement of this Agreement in relation to the land exchange is specific performance as it relates to the Owner or City's breach of the obligation to convey; provided however that no action shall be permitted if all City, County, State, and Federal approvals have not been obtained. In no event shall an injunctive order be issued which would require City of Ashland to issue a development approval or permit in violation of Ashland Land Use Ordinances, as they exist at the time of this Agreement, or as otherwise made applicable to the development authorized in this agreement or State Statutes or the terms and conditions of the outline plan approval or subsequent final approvals. This provision does not limit the available remedies for other forms of breach. The parties agree that the prevailing party shall be entitled to attorney fees and costs in the event of litigation, including any appeal, to enforce this Agreement. 18.5 In the event of a material breach by the Owner, City may, but is not required as a prerequisite to legal action, pursue revocation or termination of this Agreement in accordance with the following administrative process: If at the public hearing to revoke or terminate this Agreement, the City finds, based on substantial competent evidence, that the Owner is in material breach of this Agreement, and an amendment to this Agreement to cure the breach is not appropriate, the City may revoke and terminate the Development Agreement and the development authorization for all or part of the Verde Village Project. The breach hearing shall be held concurrent with a revocation hearing held pursuant to the Ashland Land Use Ordinance which may include revocation of final plan, outline plan, change of zoning or other designations on the property. In lieu of revoking this Agreement, and the development authorization, City may agree, in its sole discretion, to modify this Agreement upon a finding that such modification is in the best interests of City and the public. It is further agreed by the Owner and the City that all costs incurred by the City for the breach and revocation proceedings shall be paid by the Owner. However, no costs shall be assessed against the Owner if the result of the hearing is a finding that the City is in material breach of the Agreement, or that the Owner is not in material breach. If assessed costs are not paid by the Owner, the City is empowered to place a lien against the property in the amount of the unpaid costs. This provision shall not be interpreted to provide an exclusive remedy, and either party may pursue any appropriate remedy at law or equity in the event the other party or its successors in interest fail to abide by the provisions of this Agreement. If Owner disagrees with City's decision concerning revocation or termination of this Agreement as set forth above, then Owner may file a legal action in a court of competent jurisdiction to review and determine the merits of City's decision and issue an appropriate judgment or decree. DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -19- 18.6 In addition, any person who violates the Ashland Land Use Ordinance, and development approvals, authorizations and conditions issued pursuant thereto, are subject to the enforcement provisions set out in the Ashland Municipal Code, as amended from time to time, including civil and criminal the penalties set forth therein. Nothing herein shall constitute an exclusive remedy and the City reserves the right to pursue any and all legal and equitable remedies in order to abate a violation of this Ordinance. 19.0 STATE AND FEDERAL LAW CHANGE. [ORS 94.504(2)(1)] The parties agree that this Agreement is based on the proposition that the Verde Village Project will comply with City, Regional, State, and Federal policies, laws, and rules. If Regional Policy, State or Federal laws are enacted after City approval of this Agreement, which are applicable to and preclude either party's compliance with the terms or conditions of this Agreement, or render compliance impossible, unlawful, or inconsistent with such laws or rules, or regional policies, this Agreement shall first be modified or amended, by mutual agreement, as is necessary, to comply or to sever provisions and give effect to the remainder of the Agreement. If such modification or amendment cannot remedy the inconsistency, this Agreement shall be revoked to comply with the relevant State or Federal laws or regional policies and regulations. Accordingly if this Agreement fails in its essential purpose, then the parties shall be placed into their original position to the extent practical. If not practical, such revocation proceeding, caused without fault to either party, shall preserve to the extent possible under the law, an equal balance between the parties, with protection afforded the City and protection for the Owner related to the development authorizations and improvements for which the Owner has expended funds in good faith reliance on the governmental authorization. 20.0 EFFECT OF ANNEXATION [ORS 94.504(2)(L)] Annexation is necessary to authorize the development contemplated in the Verde Village project as described and shown in Planning Action 2006-01663. A portion of the property is located inside the City limits, but not a discrete geographic phase severable from the remainder. Accordingly, this Agreement contemplates that property which is the subject of this Agreement will be fully annexed into City as part of the terms and conditions of the Development Agreement. The required public hearings having be held concurrent with the approval of this Agreement, only the normal ordinance processes for annexation and withdrawal from Fire Districts remains to effectuate the approval. The Annexation is more fully described in the Findings of Fact, Conclusions of Law and Order concerning the land use approvals, attached to the Ordinance declaring approval of this Development Agreement. This Agreement contemplates and provides for annexation of all portions of the Verde Village Property not currently within City limits as a material term of this Agreement. Therefore, failure to accomplish DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -20- annexation as contemplated will require amendment, modification, or revocation of the Development Agreement. 21.0 AMENDMENT. TERMINATION OR REVOCATION. [ORS 94.508(2)] [ORS 94.522] 21.1 Owner and City, their successors and assignees may mutually agree to amend, modify, terminate or revoke this Agreement after compliance with the Ordinance amendment procedures identified herein, or as otherwise provided for in this Agreement. In the event of such mutual amendment, modification, termination or revocation, the parties shall be required to mutually agree as to any required allocation, return, or payment for public improvements, dedications or expenditures made in reliance upon this Agreement. In the event the land exchange is not approved by the Federal, State and County, the Parties agree that this Agreement shall be immediately scheduled for termination by Ordinance. 21.2 The parties hereto shall at all times strictly adhere to the terms and conditions of this Agreement. Amendment, termination or revocation of this Agreement shall be made by adoption of an Ordinance declaring the action and setting forth the terms and conditions. Unless another procedure specific to Development Agreements is provided in a City Development Agreement Ordinance, (and such procedure pursuant to ORS 94.513(1) is specifically contemplated and anticipated herein) the procedures and requirements for amendment, revocation or modification of a Development Agreement are the same as for approval of a Development Agreement, currently notice and hearing before the Council with a recommendation from the Planning Commission. Except as provided below. no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document approved and executed by all the parties hereto. 21.3 Pursuant to ORS 94.518, except as provided in this Development Agreement, the local government law and policies governing this Agreement shall be those laws and policies in effect at the time of approval of this Development Agreement. Pursuant to the terms of this Development Agreement, generally, unless specifically inconsistent with the outline plan, the law in effect at the time of subsequent development approvals governs those approvals. In addition, unless a reservation of legislative power is included in a Development Agreement, the Agreement is subject to a legal challenge as void or voidable for "'contracting away the police power". Accordingly, the following reservation of power is included in this and in all City Development Agreements. City may apply subsequently adopted laws and policies to this Development Agreement if the City holds a public hearing proposing imposition of such subsequently adopted laws in an amendment of this Agreement and determines anyone of the following: DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -21- A. The laws and policies are not in conflict with the laws and policies governing the Development Agreement and do not prevent development of the land uses, intensities or densities in the Development Agreement; or B. The laws and policies are essential to the public health, safety, or welfare, and expressly state that they stlall apply to a development that is subject to a Development Agreement; or C. The laws and policies are specifically anticipated and provided for in the Development Agreement; or D. City demonstrates that substantial changes have occurred in pertinent conditions existing at the time of approval of the Development Agreement; or E. It is demonstrated that the Development Agreement is based on substantially inaccurate information supplied by the Owner. Nothing in this section shall prohibit the City from applying subsequently enacted laws to the Development Agreement in the event an amendment or modification of this Agreement is requested by Owner pursuant to the terms of this Agreement. This Agreement specifically anticipates applying current health and safety regulations to any reconstruction of the PUD, should destruction occur, (e.g. current regulations will be used to guide re- installation of public infrastructure). 22.0 RECORDING AND EFFECTIVENESS. [ORS 94.528] 22.1 Recording. The Owner shall provide the City an executed Development Agreement, unaltered except for changes agreed upon during consideration of the matter, or to correct typographical errors, together with executed and unaltered Exhibits, including legal description, prior to 5:00 p.m. on January 2, 2008. City shall record this Agreement and Exhibits with the County Clerk as required by ORS 94.528 within ten (10) days of the execution of this Agreement by all parties. Owner is solely responsible for recording costs. Any alteration or change to this Agreement not accepted by the City in writing shall render this Agreement and the Ordinance approvinl~ it, ineffective and recording shall not occur. If this Development Agreement is amended, canceled, modified, extended or revoked, the appropriate recording shall be made in the County records to reflect the action. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties of this Agreement. 22.2 Finality and Effectiveness. The Ordinance declaring approval and adopting the DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -22- Development Agreement is a final City land IJse decision on the date the Ordinance Second Reading is completed, the Ordinance and Findings are signed by the Mayor and Notice of the City's Decision is provided. Notwithstanding the finality of the land use decision, the decision shall not be effective until the later of the following: the complete execution of this Development Agreement and Exhibits by AFSG and City; and (3) the finality of the Land Use Approvals defined herein. As used herein "finality of Land Use Approvals" means the date upon which the Ordinance is effective if no appeal is filed, and, if an appeal is filed, the date that all appeals are final. All timetables are tolled for the period of delay caused by any appeal; and the parties agree to an administrative addendum to restate deadlines for clarity after the resolution of any appeal. 23.0 ADOPTION OF ORDINANCE [ORS 94.508(1)&(2)] City's Council finds that this Development A,greement is consistent with the provisions of the ALUO in place at the time of it's adoption, and approves this Agreement by adoption of an Ordinance declaring approval of this Agreement, and supported by Findings of Fact, Conclusions of Law and Orders concerning the actions referenced therein. This Development Agreement is a land use decision under ORS Chapter 197. 24.0 ENTIRE AGREEMENT. This Agreement incorporates or references all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in, incorporated into, or referenced in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 25.0 SEVERABILITY. If any clause, section, sentence or any other portion or any part of this Agreement is contrary to, prohibited by, or deemed invalid or null and void for any reason under any applicable law or regulation, such provisions shall be inapplicable and deemed omitted to the extent so contrary, prohibited, invalid or void, however, the remainder hereof shall not be invalidated thereby and shall be given full force and effect to the fullest extent permitted by law. In the even t of such invalidation or prohibition, the Parties shall meet to discuss amendments and alternatives to address the deficiency. 26.0 JURISDICTION AND GOVERNING LAW. DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -23- The parties acknowledge that this Agreement has been negotiated and entered into in the State of Oregon. The parties hereto further agree that any and all suits or actions at law shall initially be brought in the Circuit Court of the State of Oregon for Jackson County, or the United States District Court for the District of Oregon. This Agreement shall be construed and interpreted under the laws of the State of Oregon. 27.0 ASSIGNMENT/SUCCESSORS AND ASSIGNS. [ORS 94.504(k)] This Agreement shall be recorded pursuant to ORS 94.528 in the Official Records of Columbia County, Oregon and said Agreement shall run with the land. Such Agreement is binding upon the City and AFSG, their successors in interest, heirs, assigns and personal representatives. This Agreement shall be fully assignable, in whole or in discrete approved part (see the covenant of unified control), by AFSG and shall bind and inure to the benefit of AFSG and its assigns and successors. 28.0 NOTICES. All notices, demands, requests, or replies provided for or permitted by this Agreement shall be in writing and may be delivered by anyone of the following methods: (a) by personal delivery; (b) by deposit with the United States Postal Service as certified or registered mail, return receipt requested, postage prepaid, to the addresses stated below; (c) by prepaid nationally-recognized overnight courier (such as UPS, overnight mail, or Federal Express), or be by facsimile transmission). Notice deposited with the United States Postal Service in the manner described above shall be deemed effective three (3) business days after deposit with the Postal service. Notice by facsimile or overnight express delivery service shall be deemed effective one (1) business day after transmission or after deposit with the express delivery service. Notice by personal delivery shall be deemed effective at the time of personal delivery. For purposes of notice demand, request or payment: Ashland F/ower Shop and Greenhouses, Inc. Attn.: Gregory D. Williams, President 744 Helman Street Ashland, OR 97520 (541) 482-2699 fax with copy to: Christian E. Hearn Davis, Hearn, Saladoff, Bridges & Visser, P.C. 515 East Main St. Ashland, OR 97520 (541) 488-4455 fax DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page -24- In the case of notice or communication to the City, addressed as follows: City of Ashland Legal Department 20 East Main St. Ashland, OR 97520 (541) 552-2092 fax with copies to: City of Ashland Office of the City Administrator 20 East Main St. Ashland, OR 97520 (541) 488-5311 fax City of Ashland Department of Community Development 20 East Main St. Ashland, OR 97520 (541) 552-2050 or addressed in such way in respect to a Party as that Party may, from time to time, designate in writing and dispatched as provided in this Agreement. 29.0 MISCELLANEOUS PROVISIONS. 29.1 Headinas. The titles of the sections in this Agreement are inserted for convenience of reference only, and shall be disregarded in construing or interpreting any of its provisions. 29.2 Waivers. No waiver made by either Party with respect to the performance, or manner or time thereof, or any obligation of the other Party or any condition inuring to its benefit under this Agreement shall be considered a waiver of the rights of the other Party making the waiver. No waiver by City or AFSG or any provisions of this Agreement or any breach thereof shall be of any force or effect unless in writing; and no waiver shall be construed to be a continuing waiver. DEVELOPMENT AGREEMENT FOR VERDE VILLAGE -11-06-07 Page - 2S- 29.3 Time of the Essence. Time is of the essence in this Agreement. 29.4 Calculation of Time. All periods of time referred to herein shall included Saturdays, Sundays, and legal holidays in the State of Oregon, except that if the last day of any period falls on a Saturday, Sunday, or legal holiday in the State of Oregon, the period shall be extended to include the next day which is not a Saturday, Sunday, or such legal holiday. 29.5 Construction. In construing this Aqreement, singular pronouns shall be taken to mean and include the plural and the masculine pronoun shall be taken to mean and include the feminine and neuter, as the context may require. 29.6 Good Faith and Reasonableness. The Parties intend that the obligations of good faith and fair dealing apply to this Agreement generally, and that no negative inferences be drawn by the absence of an explicit obligation to be reasonable in any portion of this Agreement. The obligation to be reasonable shall only be negated if arbitrariness is clear and explicitly permitted as to the specific item in question, as in the case of a Party being given "sole discretion" or being allowed to make a decision in its "sole judgment." 29.7 Coooeration in the Event of Leaal Challenae. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, or Ordinance adopting this Agreement, the parties agree to cooperate in defending such action. 29.8 Enforced Delav. Extensions of Time of Performance. In addition to the specific provisions of this Agreement, a performance by any party shall not be in default where such default or delays is due to war; insurrection, strikes, walkouts, riots, floods, drought, earthquakes, fires, casualties, acts of God, unforeseen governmental restrictions imposed or mandated by governmental entities other than the City, enactment of conflicting state or federal laws or regulations, new or supplementary environmental regulation, litigation or similar bases for excused performance which is not within the reasonable control of the party to be excused; provided, however, that the Parties agree to proceed in good faith in accordance with the terms and conditions of this Agreement. 29.9 No Third Party Beneficiaries. City and AFSG, and their successors and assigns, are the only parties to this Agreement and are the only Parties entitled to enforce its terms. Nothing in this Agreement gives, or is intended to give, or shall be construed to give or provide, any benefit or right, whether directly or indirectly or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as the intended beneficiaries of this Agreement. 29.100ther Necessary Acts. Each party shall execute and deliver to the other all such further instruments and documents and take such additional acts (which in the Page 26 case of the City, shall require adopting necessary ordinances and resolutions) as may be reasonably necessary to carry out this Aweement in order to provide and secure to the other parties the full and complete enjoyment of rights and privileges hereunder. 29.11 Survival of Representations. The covenants, agreements, representations, and warranties made here shall survive the close of escrow and shall not merge into the deed and the recordation of it in the official records. IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the day and year first above written. The date of this Agreement shall be the date on which this Agreement is effective (i.e. 30 days after it was approved by Ordinance at Second Reading by the City Council of the City of Ashland, Oregon.) OWNER ASHLAND FLOWER SHOP AND GREENHOUSES, INC. ("AFSG") Signed, sealed and delivered in the presence of: Gregory D. Williams, President Dated: Witness Name printed: Address: Witness Name printed: STATE OF OREGON) ) ss County of Jackson ) The foregoing instrument was acknowledged before me this day of , 2007, by Gregory Williams, as the President and authorized agent of Ashland Flower Shop and Greenhouses, Inc. Notary Public for Oregon My Commission Expires: Approved as to Form: Davis, Hearn, Saladoff, Bridges & Visser, P.c. Christian E. Hearn, OSB 01182 Attorneys for Ashland Flowershop and Greenhouses, Inc. Page 27 CITY OF ASHLAND, OREGON ("City") By: John Morrison, Mayor STATE OF OREGON) ) ss County of Jackson ) The foregoing instrument was acknowledged before me this day of , 2007, by John Morrison, as the Mayor and authorized agent of the City of Ashland, Oregon, on behalf of said City. Notary Public for Oregon My Commission Expires: Approved as to Form: Legal Department, City of Ashland Richard Appicello, OSB 90433 Interim City Attorney Page 28 MORTGAGE HOLDER CONSENT ALL MORTGAGE HOLDERS MUST SIGN A CONSENT TO THE DEVELOPMENT AGREEMENT TO ACKNOWLEDGE AND CONSENT TO INTER ALIA THE PROVISION FOR THE RESERVATION OR DEDICATION OF LAND FOR PUBLIC PURPOSES. [ORS 94.504(2)(e)] The undersigned mortgage holder.. , hereby certifies that it is the holder of a certain mortgage lien or encumbrance on the land subject to this Development Agreement and does hereby consent and agree to the foregoing Development Agreement, including the reservations, dedications, donations, sales, and/or exchanges of land for public purposes contained herein and agrees that its mortgage, lien, or encumbrance shall be subordinate to such reservation, dedication, donation, sale or exchange. Dated this day of ,2007 MORTGAGE HOLDER Signed, sealed and delivered in the presence of: Signature of Authorized Agent Name printed: Title: Address: Witnesses: Name printed: Name printed: State of County of City of ) ) ) The foregoing instrument was acknowledged before me this day of 2005, by of , a Name of Officer Name of Corporation corporation, on behalf of the corporation. He/She is personally State or Place of Incorporation known to me or has produced as identification. Notary Public My Commission Expires: Page 29 EXHIBIT A Verde Village LEGAL DESCRIPTION attach legal descr~'Jtion of Verde Village after exchange Exhibit A EXHIBIT B Title Company Preliminary Title Report Certification Exhibit C EXHIBIT C UNIFIED CONTROL We, the undersigned, being the Owners of the property described in Exhibit A to that to that Development Agreement for "Verde Villaqe", dated this day of , 20_, between The City of Ashland Oregon and Ashland Flower Shop and Greenhouses Inc,,-, do hereby covenant and agree that said described parcel shall be held under single ownership and shall not be transferred, conveyed, sold or divided in any unit other than in its entirety; provided, however, (that individual subdivision lots or fully constructed condominium units, if any, may be conveyed to individual purchasers). In addition, the following conveyances shall be permitted: (1) If the PUD is designed and planned to be developed in phases or portions of phases, and each phase or portion of a phase complies with the requirements contained within the Development Agreement and PUD documents, then each phase may be conveyed separately upon final development plat approval of that phase or approved sub-phase. (2) Common elements, common open area open spaces, preservation areas and developed recreation areas, if any, may be conveyed to a property owners' association or other legal entity or governmental entity, so long as such conveyance shall be subject to the express restriction that the subject property will never be used for any purpose other than as common elements, common open areas, open spaces, preservation areas or developed recreation areas, as applicable. (3) Other portions of the subject property that will be used or maintained by governmental, environmental, charitable or other organizations or agencies for such purposes as the City Council of the City of Ashland may deem appropriate. Nothing herein contained shall limit, in any manner, the undersigned, or their successors or assigns, to mortgage or encumber the property or any part thereof. Encumbrances are encouraged to correspond to approved phase or lot lines. The undersigned further agrees that this condition, restriction and limitation shall be deemed a covenant running with the land and shall remain in full force and effect and be binding on the undersigned, its successors and assigns, until such time as the same may be released in writing by the City of Ashland, Oregon. The undersigned further agrees that this instrument may be recorded in the public records of Jackson County, Oregon. Exhibit C IN WITNESS WHEREOF, the parties hereto have executed these presents on the dates indicated below. OWNER ASHLAND FLOWER SHOP AND GREENHOUSES, INC. ("AFSG") Signed, sealed and delivered in the presence of: Gregory D. Williams, President Dated: Witness Name printed: Address: Witness Name printed: STATE OF OREGON) ) ss County of Jackson ) The foregoing instrument was acknowledged before me this day of , 2007, by Gregory Williams, as the President and authorized agent of Ashland Flower Shop and Greenhouses, Inc. Notary Public for Oregon My Commission Expires: Approved as to Form: Davis, Hearn, Saladoff, Bridges & Visser, P.c. Christian E. Hearn, OSB 01182 Attorneys for Ashland Flowershop and Greenhouses, Inc. Exhibit C EXHIBIT D Preliminarv Development Plan/Plat (The approved Outline Plan must be reduced to a legal sized legible document(s) for recording as Exhibit D) Exhibit D EXHIBIT E VERDE VILLAGE Special Conditions 1) Affordable Housinq Requirements. A deed restriction shall be recorded for the town home portion of the development specifying the land is required to be developed as affordable units in accordance with AMC 18.06.030.G(5) and in conformance with the approval of PA 2006-01663. The deed restriction shall require the affordable units to remain affordable per Resolution 2006-13 for a 60 year period from initial occupancy. The town home area shall be serviced with all needed public facilities. The deed restricted land shall be dedicated to a non- profit (IRC 501(3)(c)) affordable housing developer or comparable Development Corporation with proof of the dedication and deed restriction being presented to the City of Ashland Housing Program Specialist prior to issuance of a building permit for the development of the first market rate residential unit. The deed for the land conveyed for affordable housing purposes shall include a reverter to the Owner or deed restriction requiring conveyance of the property to the City of Ashland if the affordable housing development is not fully developed in accordance with the approval of PA 2006-01663 within five years of this approval. In the event the property reverts to the Owner the Owner shall thereafter convey the property, without encumbrances, to the City of Ashland, for affordable housing purposes. City may accept or reject the offer, but the owner shall not be relieved of the obligation to provide affordable housing. 2) Annexation Sequence. The sequence is set forth in Section 16 of this Agreement. Property comprising Phase I shall be annexed first. The land dedicated to the City for parks purposes adjacent to Ashland Creek shall be annexed second. Following such Park annexation, Phase II of the project (single-family development) may be annexed. 3) Applicant's Proposals: The applicant agrees that Project shall be constructed to the standards as proposed in the application, and as finally approved by the Council, including supporting documentation as entered into the record. All proposals of the applicant are conditions of approval for purposes of enforcement. 4) Archaeoloqical Artifacts: In the event of discovery of archaeological artifacts during project construction, the Owner shall stop construction in that area and notify the City and the State of Oregon. Proper protection and/or relocation of artifacts, to the satisfaction of State and Local approval authorities shall be provided by the Owner, prior to recommencement of construction. 5) Ashland Creek Riparian Corridor Enhancement and Mitigation. The Owner shall Exhibit E be solely responsible for the restoration and enhancement of the Riparian Corridor to be conveyed to the City as part of the land exchange. A mitigation plan prepared by a riparian biologist or a natural resource professional with training and experience in biology, ecology or related fields for the impact of the construction of the multi-use path in the riparian corridor and to address the 10- foot wide riparian corridor buffer. The riparian corridor buffer is the setback between the new eastern property line adjacent to the Ashland Creek riparian corridor and the single family homes and yards for units 68, and 25 -39, and is delineated as common area in the application materials. Disturbed areas from the multi-use path construction shall be re-vegetated and an additional area restored and enhanced with local source native plant material including ground cover, shrubs and trees at a 1: 1.5 ratio, erosion control material shall be applied (e.g. mulch, hay, jute-netting, or comparable) and temporary irrigation facilities installed. The mitigation plan shall include but not be limited to a statement of objectives, measurable standards of mitigation, an assessment of riparian corridor functions and values, a statement and detail plan of the location, elevation and hydrology of the mitigation area, a planting plan and schedule, a monitoring and maintenance plan, a contingency plan and performance guarantees. The applicants shall install the mitigation measures in the approved mitigation plan in conjunction with the multi-use path installation. The Final Plan application shall include a mitigation plan (see contract required plant materials) The Contract for Installation of Plant Materials with Security acceptable to the City Attorney and Planning Director shall be submitted for restoration and enhancement consistent on or before the commencement of construction as specified in the Timetable of Development. 6) Boundarv Description. A final boundary description and map shall be prepared in accordance with ORS 308.225. A registered land surveyor shall prepare the description and map. The boundaries shall be surveyed and monuments established as required by statute subsequent to Council approval of the proposed annexation. 7) Covenants Conditions and Restrictions. A draft copy of the CC&R's for the homeowners association(s) shall be provided at the time of Final Plan application. Lots 65 - 68 shall be included in a homeowners association and subject to all subdivision requirements. CC&R's shall describe responsibility for the maintenance of all common area and open space improvements, parkrows and street trees. CC&R's shall provide reciprocal easements for residents of the various homeowners associations (i.e. cottages, town homes and single-family residential) to access and use all of the project open spaces. CC&R's shall note that any deviation from the Tree Protection Plan must receive written approval from the City of Ashland Planning Department. That the CC&R's identify the units are which are subject to the City's Affordable Housing requirements and terms of affordability. The CCRs shall include reference to the administrative enforcement provisions of this agreement and the ability of the City to enforce Exhibit E and assess the association for the maintenance of common areas, including the association's responsibilities for maintenance of the storm water areas offsite. 8) Curb-Cut Compliance. The Final Plan application shall include revised and corrected driveway curb-cuts for units 45 and 46 - spaced at least 24-feet apart as measured between the outside edges of the apron wings of the driveway approaches in accordance with the Ashland Street Standards. 9) Easements: Buildings or permanent structures shall not be located over easements, including but not limited to the sanitary sewer pressure line easement. 10) Endanoered Species: In the event that it is determined that any representative of a protected plant or animal species pursuant to the federal, state, regional or local law, is resident on or otherwise is significantly dependent upon the Verde Village property, the Owner shall cease all activities which might negatively affect that individual or population and immediately notify the City of Ashland, State of Oregon and the U.s. Fish and Wildlife Service. Construction may resume when proper protection, to the satisfaction of all agencies, including the City, is provided by the Owner. 11) Enemv Conservation: Earth Advantaoe Prooram. A minimum of 48 of the residential units shall qualify in the City of Ashland Earth Advantage program. The applicants shall meet with the Ashland Conservation Division regarding eligible site activities prior to issuance of an excavation permit. The required Earth Advantage documentation shall be submitted with each building permit application. 12) Enerov Conservation: Net Zero Energy. All of the residential units in the subdivision shall meet the application "Net Zero Energy" Performance Standard as outlined in Exhibit K-3 of the application Book III dated June 8,2007. The Final Plan application shall include systems for measuring and monitoring compliance of the development with the Performance Standard that is administered by the applicants and verified by the city. 13) Intersection Desion: Applicant shall design the pedestrian crossing at the new intersection of Helman St., Almeda Dr. and Nevada St. Pedestrian safety and refugee shall be addressed in the intersection design. Design must be submitted with the Final Plan application. 14) LID Non-remonstrance: Prior to Final Plan Approval, the applicant shall execute a document as consistent with ALUO 18.68.150 agreeing to participate in their fair share costs associated with a future Local Improvement District for improvements to Helman Street and to not remonstrate against such District Exhibit E prior to signature of the final subdivision survey plat. Executeddocuments shall be submitted with the application for Final Plan. Nothing in this condition is intended to prohibit an owner/developer, their successors or assigns from exercising their rights to freedom of speech and expression by orally objecting or participating in the LID hearing or to take advantage of any protection afforded any party by city ordinances and resolutions in effect at the time 15) Lot Coveraqe Compliance. The Final Plan application shall include revised and corrected lot coverage calculations in square footage and percentage for each development area (i.e. cottages, town homes and single-family/duplex areas). Any area other than landscaping such as structures, driveways, patios and pervious paving that does not allow normal water infiltration shall be included as lot coverage. 16) Measure 37 Waiver. The applicant expressly agrees to construct the project in accordance with the approved plan and City ordinances and waives the right to file a claim under Oregon Statewide Measure 37. The signed waiver shall be submitted to the City of Ashland Legal Department for review and approval prior to signature of the survey plat or adoption of a resolution or ordinance formally annexing the property, whichever is first. 17) Multi-Use Path Improvements. As specified in the approved Timetable of Development, all the multi-use paths shall be constructed according to City Code standards, specifically, paths shall be paved with concrete, asphalt or a comparable all-weather surfacing. Two to four foot wide gravel or planted strips are required on both sides of the multi-use paths in accordance with the Ashland Street Standards. Fencing or retaining walls shall be located two to four feet from the improved edges of the path to provide clear distance on both sides of the path for safe operation. The clear distance areas shall be graded to the same slope as the improved path to allow recovery room for pedestrians and bicyclists. The clear distance areas shall be limited to gravel or landscape materials, and vegetation in excess of six inches in height shall not be placed in the clear distance areas. The transition from Almeda Dr. to the multi-use path, from Canine Way to the multi-use path and from Nevada St. to the multi-use path shall be addressed. Specifically, the preliminary engineering shall address bicycle access from the street grade and provide sufficient turning radius for bicycle navigation. The preliminary engineering plans submitted with the Final Plan application shall include details for the multi-use path improvements and this design. All multi-use path public easements shall be clearly identified on the final survey plat, conveyed, and identified in the project, (with appropriate markings or compliant signage). Easements are required for paths between units 64-65 and adjacent to 39. The project CC&R's shall expressly note that the pathways are for public use and shall not be obstructed or through access restricted unless authorized by the City of Ashland and Ashland Parks Department. Exhibit E 18) Multi-Use Path Revisions: The adjustments to the width and location of the multi-use path in and adjacent to the Ashland Creek riparian corridor shall not affect the width or location of the 10-foot wide setback to buildings and structures or riparian corridor buffer between the new eastern property line adjacent to the Ashland Creek riparian corridor and the single family homes and yards for units 68, and 25-39 that is delineated as common area in the application materials. The 10-foot wide setback to buildings or structures or riparian corridor shall be located and sized as shown on plans S-l dated June 8, 2007, S-4 dated June 8, 2007 and P-2 dated July 17 from the application. 19) Open Space Usabilitv. [Planning Commission Condition]. The Final Plan submittal shall address the usability, including community access, of the open spaces. Usability shall be specifically addressed for the two small open spaces in the town home area (550 sf and 700 sf), one small open space in the cottage area (1,300 sf) and the one small open space adjacent to the alley 1,310 sf). Layout and landscaping of the open spaces as well as any improvements such as play equipment shall be detailed in the Final Plan submittals. 20) Parking Compliance: The Final Plan application shall include revised and corrected on-street parking placement so that parking spaces are not counted that are within 20 feet measured along the curb of any corner or intersection of an alley or street in accordance with 18.92.025.D. 21) Sidewalk Construction. A sidewalk meeting the requirements of the Ashland Street Standards shall be installed on the north side of Nevada St. from the eastern project boundary to the intersection of Nevada S. to Oak St. Sidewalk design shall be at the discretion of the Staff Advisor in order to address site constraints such as grade and right-of-way width. These sidewalk improvements shall be included in the preliminary street improvement plan included with the Final Plan application. 22) Solar Ordinance Compliance. The Final Plan application shall demonstrate all new structures comply with the Solar Setback A, or that each home shall receive an equivalent certification by the project architects and mechanical engineers that the shadow height on southern facing exposures will not exceed that allowed under Solar Setback A in accordance with Chapter 18.70 of the Ashland Land Use Ordinance. 23) Storm water Continuinq Maintenance Obligation: The Owner, and thereafter, the Association, (or the owners of units in the project in the event the Association is dissolved), shall be responsible for permanent maintenance of both on-site and off site storm water bio-engineered swales and wetland systems. Specifically, the created wetland area and storm water swale system to Exhibit E be constructed with the project and to be located on property exchanged with the City shall remain the maintenance obligation of the Owner, Association, its successors and assigns. Maintenance shall be coordinated and approved by the City Public Works Department and Building Division and shall be performed in accordance with approved plans by licensed contractors, hired by the Association and authorized by City Public Works to enter property for maintenance purposes. 24) Sworn Statement. Prior to any land clearing, alteration, or physical construction (other than survey work or environmental testing) on a site the property owner and developer, if any, shall execute a sworn statement under penalty of perjury and false swearing, that owner/developer has obtained all required Federal, State, and local authorizations, permits and approvals for the proposed development, including any proposed use, or alteration of the site, including also any off-site improvements. 25) Tree Protection Compliance. The Final Plan application shall address mitigation for the removal of the 25-inch dbh Oak tree (tree 39 on Tree Survey and Protection Plan, T-1, June 8, 2007). Mitigation shall meet the requirements of Ashland Land Use Ordinance 18.61.Cl84. A Verification Permit in accordance with 18.61.042.B shall be applied for and approved by the Ashland Planning Division prior to removal of the approved Oak tree(tree 39 on Tree Survey and Protection Plan, T-1, June 8, 2007) and prior to site work, storage of materials and/or the issuance of an excavation or building permit. The Verification Permit is to inspect the tree to be removed and the installation of the tree protection fencing. The tree protection for the trees to be preserved shall be installed according to the approved Tree Protection Plan prior to site work or storage of materials. Tree protection fencing shall be chain link fencing a minimum of six feet tall and installed in accordance with 18.61.200.B. 26) Vision Clearance Compliance. The Final Plan application shall include revised and corrected delineation of vision clearance areas at the intersections of streets and alleys throughout the project in accordance with 18.92.070.D. Structures, signs and vegetation in excess of two and one-half feet in height shall not be placed in the vision clearance areas. Building envelopes shall be modified accordingly on the Final Plan submittals. 27) NO Waiver. The failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve the Owner of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions. Any matter or thing required to be done pursuant to the requirements of the ordinances of the City of Ashland shall not be amended, modified or waived unless such modification, amendment or waiver is expressly provided for in this Agreement with specific reference to the provisions so modified waived or amended. Exhibit E 28) Wetland Setbacks. A minimum of five feet shall be maintained between the northern pavement edge of the multi-use path and the wetland. The Final Plan application shall address the full width of the path improvement including the base materials and methods to protect the wetland during construction (i.e. sediment fencing). 29) Zoninq Compliance. The Final Plan application shall include demonstration that the buildings in the R-l- 3.5 zoning district (cottages and town homes) meet the required front yard for the R-1-3.5 zoning district. Exhibit E EXHIBIT F TIMETABLE OF DEVELOPMENT - OUTLINE PLAN PHYSICAL COMMENCEMENT AND COMPLETION [ORS 94.504(4)] This development will be constructed in phases as shown on Exhibit D to this Agreement. Each phase to be constructed, and the date which Final Plan and Site Review and final plat approval of each phase must be obtained, are as follows: Physical commencement of construction of any phase of development shall occur on or before January 4. 2010. Completion of all infrastructure and vertical construction, except for single family units on individual platted lots, [4 total exempt frum vertical construction deadline] shall occur no later than January 4. 2015. Phase Final Plan and Site Review Approval Infrastructure Completion Final Plat and Completion of Vertical Construction I July 4, 2009 July 4, 2011 January 4, 2013 January 4, 2010. Final Civil Plan Approval (construction authorization) and any associated construction permits must be obtained and Contract for Installation and Maintenance of Plant Materials with Security submitted and executed, and construction commenced with respect to Phase I elements within 6 months of Final Plan Approval, no later than specified. July 4, 2011. Complete extension of Almeda to Nevada Street, completion of construction of "Canine Way" access to Dog Park, including installation of water, sanitary sewer, storm drainage power, gas, telephone and all utilities. July 4, 2011. Complete sidewalk on the north sicle of Nevada Street from the eastern project boundary to the intersection of Nevada and Oak Street. July 4, 2011. Complete Restoration and Enhancement of Riparian Corridor and Wetland Areas pursuant to Contract for Installation of Plant Materials, Security and Preserve Area Management Plan. Exhibit H Phase II Final Plan and Site Review Approval July 4, 2011 July 4, 2011. Complete construction of multi- use path and transfer deed to City of Ashland to effectuate land exchange and acceptance of tendered public recreation improvements. July 4, 2011. Complete construction of subdivision infrastructure to the affordable housing site and complete extension of all needed public facilities to the affordable housing site. (to service 15 town home units). July 4, 2011. Complete construction of "subdivision" Infrastructure for Phase I (R-1-3.5 pmtion) of the project inclusive infrastructure for one (1) single family lot, and infrastructure for twenty-four (24) cottage units July 4, 2011. Phase 1. Deadline for final survey to be signed after completion of subdivision infrastructure and before start of vertical construction. July 4,2011. Deadline to transfer property title to Affordable Housing Tract to Rogue Valley Community Development Corporation (RVCDC) or other approved non-profit affordable housing developer. Transfer shall occur prior to vertical construction on any Phase of the project. January 4, 2013. Vertical construction deadline for twenty-four (24) cottage units and vertical construction deadline for fifteen (15) multi-family units for affordable housing (town-homes). Infrastructure Completion Final Plat and Completion of Vertical Construction July 4, 2013 January 4, 2015 July 4, 2013. Complete construction of Exhibit H "subdivision" Infrastructure for Phase II (R-1-5 pOltion) of the project inclusive infrastructure for three (3) single family lots on Nevada Street, and infrastructure for twenty-five (25) single family lots, including Sander Way parkrow. July 4, 2013. Phase II. Deadline for final survey to be signed after completion of subdivision infrastructure and before start of vertical construction. January 4, 2015. Vertical construction deadline for twenty-five (25) single family homes of which 19 are detached and 6 are attached. July 4, 2013. Completion of Maintenance and Security Period for Restoration and Enhancement of Riparian Corridor and Wetland Areas pursuant to Contract for Installation of Plant Materials, Security and Preserve Area Management Plan from Phase 1. Failure to strictly comply with this timetable of development requires an amendment to this Agreement and subjects the Owner to then current laws, including but not limited to engineering construction standards, contrary to the ordinary protection of ORS 92.040. Notwithstanding this provision, the Director may extend, once, by no more than twelve (12) months, any internal project timetable in accordance with procedures then in effect to extension of outline plan approvals. The title transfer, physical commencement and the 2015 completion deadline shall not be administratively extended. After the construction termination date, no further development as authorized herein (except for building permits for single family units on individual platted lots) shall be allowed on the subject property unless such development is in compliance with applicable development regulations in effect at the time. Any amendment to the extent of the Amendment shall comply with the laws in effect at the time the amendment is sought. Failure of the timetable of development to list an element of the Project does not relieve or excuse the Owner from the requirement to complete that element. Exhibit H EXHIBIT G Aareement for Purchase and Sale: Exchanae of Real Prooertv. 1. Definitions Exchange Properties, (as used in this section): For purposes of this Agreement, "Property" shall mean Exhibit A-lor Exhibit A-2 depending upon who is the Buyer and who is the Seller. Exhibit A-l describes the property to be deeded from the City of Ashland to AFSG. Exhibit A-2 describes the property to be deeded from AFSG to City of Ashland, with completely constructed multi-use path improvements and completion restoration and enhancement of riparian areas. Parties to the Agreement: For purposes of this Agreement, AFSG shall be considered both the Buyer of the property identified in Exhibit A-1 and Seller of the Property in Exhibit A-2. City shall be considered both the Buyer of the Property identified in A-2 and the Seller of the Property identified in A-l. Sell: For purposes of this agreement, "Sell" means a quid pro quo exchange with no monetary exchange. 2. Purchase and Sale. The Seller agrees to sell to the Buyer, and the Buyer agrees to purchase from the Seller, the Property on the terms and conditions set forth in this Agreement. 3. Purchase Price. The purchase price for the Property shall be quid pro quo property exchange, with no financial remuneration to be paid by City Buyer to AFSG Seller, despite any disparity in appraised value of the real property interests being exchanged. The legal requirement is that the value of the Property the City receives is greater than the value of the property the City is exchanging. The difference in values of the real property, established by the City Finance Department after review of the appraisals in the record, shall be considered and acknowledged as a gift or donation to the City by the Williams family. 4. Closing Date. The exchange is approved by the City with the adoption of the Ordinance Declaring approval of the Development Agreement. However, the exchange is delayed until the occurrence of three (3) events outside the control of the parties: (1) approval of the transaction by the Federal Government; (2) approval of the transaction by the State Government; and (3) approval of the transaction by the County government. Accordingly, the transaction shall close on or before the date that is sixty (60) business days following the receipt by the City of written documents reflecting the "Trigger" to closing, that is the occurrence of the last required approval identified above. The City Buyer will provide the Seller AFSG with written notice of the Closing Date at least five business days before that date. Exhibit H 5. Conditions to Closing (a) Conditions Precedent to Buyer's Obligations. The Closing and the Buyer's obligations with respect to the transaction contemplated by this Agreement are subject to the satisfaction, not later than the Closing Date (unless otherwise provided), of the following conditions, and the obligations of the parties with respect to such conditions are as follows: (i) Title. At closing the Seller shall convey fee simple title to the Property by statutory warranty deed, subject only to non-delinquent real property taxes, items_, _, _, _, and _ of the preliminary title report Order No. , dated , 20_ (the "Preliminary Commitment"), a copy of which is included in the record of this proceeding and such other matters that may be approved in writing by the Buyer. (ii) Within 30 days of the Trigger identified in 10.5.4. above, at the Seller's cost and expense, shall cause to issue to the Buyer its preliminary title report on the Property (the "Preliminary Commitment"), along with copies of all documents that give rise to exceptions listed in the report (the "Underlying Documents"). Within 10 days of receiving the Preliminary Commitment and the Underlying Documents, the Buyer shall give the Seller written notice setting forth the exceptions that are not acceptable to the Buyer (the "Unacceptable Exceptions"). All other exceptions shall be deemed acceptable to the Buyer. The Seller shall have ~ days after receiving the Buyer's notice within which to give the Buyer its written notice stating whether it will remove some or all of the Unacceptable Exceptions; provided, however, that the Seller must remove all monetary liens and encumbrances to the Buyer's reasonable satisfaction on or before the Closing Date. If the Seller agrees to eliminate the Unacceptable Exceptions, the Seller must do so at its cost and as of the Closing Date. If the Seller declines to eliminate all of the Unacceptable Exceptions, the Buyer has the right to terminate this Agreement by written notice given to the Seller within _ days of receiving the Seller's notice. (iii) Investigation and Review Within 30 days of the Trigger identified in 10.5.4. above, the Seller shall deliver or cause to be delivered to the Buyer the Investigation Documents. The Buyer shall have the right to review and approve each and every Investigation Document to its sole satisfaction within 10 days after the Buyer receives it. The Buyer's failure to respond timely shall constitute the Buyer's approval of the Investigation Document provided. If the Buyer disapproves any Investigation Document, the Buyer shall timely notify the Seller in writing, and the Seller shall have ~ days in which to cure. If a cure acceptable to the Buyer is not timely achieved, the Buyer may waive the requirement in writing, or elect to terminate this Agreement for failure to satisfy a condition precedent to the Buyer's obligation to close. . As a condition to closing, the documents described herein must be delivered to the Buyer and approved as provided, and the results of the Buyer's site studies identified herein must be acceptable to the Buyer in its sole discretion. A. Records and Plans. Copies of all architectural drawings, construction plans and specifications, "as-built" records of the improvements, environmental studies, inspection reports, and all topographical surveys and soil tests for or relating to the Exhibit H Property in the Seller's possession or reasonably available to the Seller. B. Leases. A copy of each tenant's lease or rental agreement, if any, together with all amendments. C. Permits. Copies of all permits, orders, letters, and other documents available to the Seller relating to the zoning, land development and permitted uses of the Property. E. Tax Notices. Copies of all tax and assessment notices and bills for the Property for the most recent two property tax years. F. Past Uses. Any information in the Seller's possession or available to the Seller relating to the past uses of the Property. G. Service Contracts. Copies of all service or maintenance contracts with respect to the Property. H.. Site Study. Before closing, the Buyer may engage consultants or engineers of the Buyer's choosing to conduct site studies of the Property as the Buyer deems necessary. The Buyer or its agents shall have the right to enter the Property at reasonable times before closing to make such tests, inspections, studies, and other investigations as the Buyer may require, at the Buyer's expense and risk. The Buyer shall indemnify and hold the Seller harmless from any loss, damage, or claim arising out of the Buyer's access to the Property for the purpose of making tests, inspections, studies, and other investigations. It shall be a condition to closing that the results of such studies or analyses be acceptable to the Buyer in its sole discretion. (iv) Representations, Warranties, and Covenants of Seller. The Seller shall have duly performed each and every agreement to be performed by the Seller hereunder and the Seller's representations, warranties, and covenants set forth in this Agreement shall be true and correct as of the Closing Date. (v) No Material Changes. At the Closing Date, there shall have been no material adverse changes related to or connected with the Property, whether directly or indirectly. (vi) Seller's Deliveries. The Seller shall have timely delivered each and every item to be delivered by the Seller pursuant to this Agreement. (vi) Title Insurance. As of the Seller shall have issued or shall have committed to issue the title pol icy to the Buyer. The conditions set forth above are solely for the benefit of the Buyer and may be waived only by the Buyer. The Buyer shall at all times have the right to waive any condition. Such waiver or waivers shall be in writing to the Seller. The waiver by the Buyer of any condition shall not relieve the Seller of any liability or obligation with respect to any representation, warranty, covenant, or agreement of the Seller. Neither the Seller nor the Buyer shall act or fail to act for the purpose of permitting or causing any condition to fail (except to the extent t'he Buyer, in its own discretion, exercises its right to disapprove any such items or matters). (b) Conditions Precedent to Seller's Obligations. Closing and the Seller's obligations with respect to the transactions contemplated by this Agreement are subject to the each Buyer's performance, and delivery on or before the Closing Date, of the documents and materials described in Paragraph 6, below. (c) Failure of Conditions to Closing. If any of the conditions set forth above Exhibit H are not timely satisfied or waived, or a reason other than the default of the Buyer or the Seller under this Agreement: (i) This Agreement, and the rights and obligations of the Buyer and the Seller shall terminate, except as otherwise provided herein; and (d) Cancellation Fees and Expenses. If this agreement terminates because of the nonsatisfaction of any condition for a reason other than the default of the Seller or the Buyer under this Agreement, the Seller and the Buyer will equally bear any cancellation charges required to be paid. If this agreement terminates because of the Seller's default, the Seller will bear any cancellation charges required to be paid. If this agreement terminates because of the Buyer's default, the Buyer will bear any cancellation charges required to be paid. At this time, the Parties do not contemplate any cancellation charges. 6. Deliveries at closing. (a) By Seller. On or before the Closing Date, the Seller shall deliver the following: (i) Deed. A statutory warranty deed, duly executed and acknowledged in recordable form by the Seller, conveying the Property to the Buyer subject only to nondelinquent property taxes, items _, __, _, _, and _ of the Preliminary Commitment, and other matters that may be approved in writing by the Buyer. (ii) Bill of Sale. A bill of sale, duly executed and acknowledged by the AFSG Seller in favor of the City Buyer, assigning and conveying to the Buyer all of the Seller's right, title, and interest in and to the improvements, and personal property, if any, used in connection with the operation of the Property, free and clear of all liens, encumbrances, and adverse claims. (iii) Assignment of Leases. There are no leases existing and the Parties agree not to enter into any leases impacting the Property. If leases are discovered, an assignment of leases, if any, duly executed and acknowledged by the Seller in recordable form, assigning to the Buyer, all of the Seller's right, title, and interest in and to all the tenant leases and tenant deposits. (iv) General Assignment. An assignment, , duly executed by the Seller, assigning to the Buyer all of the Seller's right, title, and interest in and to all service contracts accepted by the Buyer and all other intangible property constituting part of the property being sold. (v) Nonforeign Certification. The Seller represents and warrants that it is not a "foreign person" as defined in IRC 91445. The Seller will give an affidavit to the Buyer to this effect in the form required by that statute and related regulations. (vi) Tenant Notification Letter. There are no tenants and the parties agree not to rent or lease the premises. In the event leases are discovered, a letter to tenants, duly executed by the Seller and dated as of the Closing Date, satisfactory in form and substance to the Buyer, notifying each tenant that: A. The Property has been sold to the Buyer; B. All of the Seller's right, title, and interest in and to the tenant leases and tenant deposits have been assigned to the Buyer; and C. Commencing immediately, all rent and other payments and any notices Exhibit H under tenant leases are to be paid and sent to the Buyer. (vii) Changes of Address. Written notices executed by the Seller to taxing authorities having jurisdiction over the Property, changing the address for service of notice and delivery of statements and bills. (viii) Proof of Authority. Such proof of the Seller's authority and authorization to enter into this Agreement and consummate the transaction contemplated by it, and such proof of the power and authority of the persons executing and/or delivering any instruments, documents, or certificates on behalf of the Seller to act for and bind the Seller, as may be reasonably required by the Buyer. (ix) Lien Affidavits. Any lien affidavits or mechanic's lien indemnifications as may be reasonably requested by the Title Company in order to issue the title policy. (b) By Buyer. On or before the Closing Date, the Buyer shall deliver the following to tine Seller: (i) Purchase Price. The purchase price in accordance with Paragraph B.3 above. The Buyer must complete performance as sellers in order to complete the transaction. (ii) Tenant Lease Assignment. The tenant lease assignment, if any, duly executed and acknowledged by the Buyer in recordable form. (iii) General Assignment. The general assignment duly executed by the Buyer. (iv) Prorations. The amount due tile Seller, if any, after the prorations are computed in accordance with Paragraph lO(b) below. 7. Deliveries to Buyer at Closing. The Seller shall deliver possession of the Property to the Buyer at close of escrow. On or before the Closing Date, the Seller shall deliver to the Buyer possession of the following: (a) Tenant Leases, if any. Originals of all of the tenant leases or, to the extent an original tenant lease is unavailable, a duplicate original of it with a certificate executed by the Seller warranting the authenticity of the duplicate original. (b) Service Contracts, if any. Originals of all service contracts or, to the extent an original service contract is unavailable, a duplicate original of it with a certificate executed by the Seller warranting the authenticity of the duplicate original. (c) Personal Property. Possession of the improvements and personal property, if any. (d) Termination Agreements. Executed termination agreements or other evidence reasonably satisfactory to the Buyer that any service contract disapproved by the Buyer in accordance with the terms of this Agreement has been duly and validly terminated effective on or before the Closing Date. (e) Records and Plans. To the extent not already delivered to the Buyer, copies of all architectural drawings, construction plans and specifications, "as-built" records of the improvements, environmental studies, inspection reports, and all topographical surveys and soil tests for or relating to the Property in the Seller's possession or reasonably available to the Seller. 8. Title Insurance. At closing, the Seller shall provide, at its expense, a standard owner's title insurance policy in the amount of the value established in the respective Exhibit H appraisal documents, insuring title vested in the Buyer or its nominees, subject only to nondelinquent real property taxes, items __, _, _, _, and _ of the Preliminary Commitment, and other matters that may be approved in writing by the Buyer. The Buyer has the right, if the Buyer so elects, to cause the title policy to be issued as an extended coverage policy, provided the Buyer pays the additional premiums and all survey costs associated with that coverage. If the Buyer elects extended coverage, it shall be at Buyer's sole cost and expense 9. Adjustments. The Seller shall pay for the standard coverage title insurance policy, AFSG shall pay all recording charges,. any other fees or costs, and the Seller's share of prorations pursuant to Paragraph 10 below. The City Buyer shall pay no recording charges, or any other fees and costs, and the Buyer's share of prorations pursuant to Paragraph 10 below. The Buyer and the Seller shall each pay its own legal and professional fees of other consultants incurred by the Buyer and the Seller, respectively. All other costs and expenses shall be allocated between the Buyer and the Seller in accordance with the customary practice in Jackson County, Oregon, except as otherwise set forth herein. At closing, the Buyer shall contribute any funds necessary to pay its share of adjustments. 10. Prorations (a) General. Rental, revenues, and other income, if any, from the Property and presently existing taxes, assessments, improvement bonds, and other expenses, if any, affecting the Property, shall be prorated as of the day following the Closing Date. For the purpose of calculating prorations, the Buyer shall be deemed to be in title to the Property and, therefore, entitled to the income and responsibility for the expenses for the entire day following the Closing Date. (b) Method of Proration. All prorations shall be made in accordance with customary practice in Jackson County, Oregon, except as expressly provided herein. The Buyer and the Seller agree to cause their accountants to prepare a schedule of tentative prorations before the Closing Date. Such prorations, if and to the extent known and agreed on as of the Closing Date, shall be paid by the Buyer to the Seller (if the prorations result in a net credit to the Seller) or by the Seller to the Buyer (if the prorations result in a net credit to the Buyer) by increasing or reducing the cash to be paid by the Buyer at closing. Any such prorations not determined or not agreed on as of the Closing Date shall be paid by the Buyer to the Seller, or by the Seller to the Buyer, as the case may be, in cash as soon as practicable following the Closing Date. 11. Recording and Disbursements At Closing. At closing the Seller and Buyer shall cause the deeds to exchanged and recorded as well as any other documents that the parties may mutually direct to be recorded in the official records and obtain conformed copies for distribution to the Buyer and the Seller. Title Policies shall be issued and Disbursements of Documents to Buyer shall occur. Disburse to the Buyer the bill of sale, the general assignment, the FIRPTA certificate, the tenant notification letters and change of address notices duly executed by the Seller, and any other documents (or copies thereof) deposited into escrow by the Seller pursuant hereto. Exhibit H 12. Seller's Representations and Warranties. In addition to any express agreements of the Seller contained here, the following constitute representations and warranties of the Seller to the Buyer: (a) Representations Regarding Seller's Authority. (i) The Seller has the legal power, right, and authority to enter into this Agreement and the instruments referred to here and to consummate the transactions contemplated here. (ii) All requisite action (corporate, trust, partnership, or otherwise) has been taken by the Seller in connection with entering into this Agreement, the instruments referred to here, and the consummation of the transactions contemplated here. No further consent of any partner, shareholder,. creditor, investor, judicial or administrative body, governmental authority, or other party is required. (iii) The persons executing this Agreement and the instruments referred to here on behalf of the Seller and the partners, officers, or trustees of the Seller, if any, have the legal power, right, and actual authority to bind the Seller to the terms and conditions of this Agreement. (iv) This Agreement and all documents required to be executed by the Seller are and shall be valid, legally binding obligations of and enforceable against the Seller in accordance with their terms. (v) Neither the execution and delivery of this Agreement and documents referred to here, nor the incurring of the obligations set forth here, nor the consummation of the transactions here contemplated, nor compliance with the terms of this Agreement and the documents referred to here conflict with or result in the material breach of any terms, conditions, or provisions of, or constitute a default under any bond, note, or other evidence of indebtedness, or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease, or other agreements or instruments to which the Seller is a party or affecting the Property. (b) Warranties and Representations Pertaining to Real Estate and Legal Matters. (i) The information contained in the recitals is true and correct. (ii) Except as disclosed to the Buyer in writing, there is no litigation, claim, or arbitration, pending or threatened, with regard to the Property or its operation. (iii) No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings are pending or, to the best of the Seller's knowledge, threatened against the Seller, nor are any such proceedings contemplated by the Seller. (iv) To the best of the Seller's knowledge after due inquiry, the construction, occupancy, and operation of the Property materially conform to and comply with all applicable city, county, state, and federal law, statutes, ordinances, and regulations. (v) To the best of the Seller's knowledge after due inquiry, there are no material structural defects in any building or structure, nor are there any major repairs required to operate the building or structures in a lawful, safe, and efficient manner. (vi) The Seller is the legal and beneficial fee simple titleholder of the Property and has good, marketable, and insurable title to the Property, free and clear of all liens, Exhibit H encumbrances, claims, covenants, conditions, restrictions, easements, rights of way, options, judgments, or other matters, except as disclosed by the preliminary title report. There shall be no change in the ownership, operation, or control of the Seller from the date of this Agreement until the Closing Date. (vii) The electrical, plumbing, heating, and air conditioning systems, if any, and any other utility systems will be in substantially the same condition at closing as when the Buyer conducted its inspection. (viii) The improvements and personal property listed in the inventory is all located at the Property and is all of the personal property used in the operation of the Property, other than personal property owned by tenants. (ix) The Seller has not entered into any other contracts for the sale of the Property, nor do there exist any rights of first refusal or options to purchase the Property . (x) The Seller has not received any notices from any insurance company of any defects or inadequacies in the Property.. (xi) Any licenses and permits obtained by the Seller have been fully paid for and are not subject to any liens, encumbrances, or claims of any kind. (xii) The Seller has not sold, transferred, conveyed, or entered into any agreement regarding "air rights" or other development rights or restrictions relating to the Property. (xiii) To the best of the Seller's knowledge, the Property is materially in compliance with applicable local, state and federal environmental standards and requirements affecting it. (xiv) The Seller has not received any notices of violation or advisory action by regulatory agencies regarding environmental control matters or permit compliance with respect to the Property. (xv) The Seller has not transferred hazardous waste from the Property to another location that is not in compliance with applicable environmental laws, regulations, or permit requirements. To the best of the Seller's knowledge, no other person has transferred hazardous waste from the Property to another location that is not in compliance with applicable environmental laws, regulations, or permit requirements. (xvi) There are no proceedings, governmental administrative actions, or judicial proceedings pending or, to the best of the Seller's knowledge, contemplated under any federal, state, or local laws regulating the discharge of hazardous or toxic materials or substances into the environment. (xvii) To the best of the Seller's knowledge, the Seller has not, during its ownership of the Property, stored, produced, or disposed of any hazardous substance, including asbestos, on the Property. (c) Other Representations. To the best of the Seller's knowledge after due inquiry: (i) The leases, and all other information and documentation to be provided by the Seller to the Buyer in connection with this transaction are complete, true, and accurate, and are presented in a manner that is not misleading. (ii) All leases are in full force and effect with rents paid currently. Exhibit H (iii) With regard to the tenant leases, the Seller knows of no default by it or by any of the tenants, and there have been no verbal changes and no concessions granted with respect to the leases or tenants under the leases, except as indicated in the rent roll. (iv) The only service or maintenance contracts have been provided or disclosed in writing to the Buyer. Except where the Seller has indicated to the contrary, all the service contracts may be terminated without penalty or other payment, except for the current sum then owing by the Buyer on 30 days' or less notice. (v) There is no current default or breach under the terms and provisions of any of the service contracts. The service contracts have not been and will not be amended or modified except as indicated here. (vi) As of the Closing Date, the Seller's interest in tenant leases and rentals due or to become due thereunder will not be subject to any assignment, encumbrance, or liens. (vii) No leasing or brokerage fees or commissions of any nature whatsoever shall become due or owing to any person, firm, corporation, or entity after closing with respect to the tenant leases. (viii) The operating statements provided to the Buyer are true and accurate in all material respects. (ix) The Seller has no employees whom the Buyer will be required to employ after closing. (d) Representations, Warranties, and Covenants Regarding Operation of the Property Through the Closing. (i) The Seller further represents and warrants that, until this transaction is closed or escrow is terminated, whichever comes earlier, it shall: A. Operate and maintain the Property in a manner consistent with the Seller's past practices; B. Keep all existing insurance policies affecting the Property in full force and effect; C. Make all regular payments of interest and principal on any existing financing; D. Comply with all government regulations; E. Keep the Buyer timely advised of any repair or improvement required to keep the Property in substantially the same condition or improved conditions as contemplated. (ii) The Seller hereby agrees that the Seller will not hereafter modify, extend, or otherwise change any of the terms, covenants, or conditions of the tenant leases, or enter into new leases or any other obligations or agreements affecting the Property without the prior written consent of the Buyer, which consent shall not be unreasonably withheld. Without the prior written consent of the Buyer, the Seller shall not terminate any of the tenant leases, unless the tenant thereunder has materially defaulted in the payment of rent. The Seller shall not accept from any of the tenants payment of rent more than one month in advance or apply any security deposit to rent due from any tenant. Nothing contained here shall restrict the right of the Seller to enter into month- to-month leases or grant month-to-month extensions of existing tenant leases in the Exhibit H ordinary course of business at rates consistent with those reflected in the rent roll, nor shall anything here restrict the right of the Seller to enter into service contracts or extend existing service contracts in the ordinary course of business as long as such service contracts can be terminated, without penalty or payment by the Buyer, upon 30 days' or less notice. (iii) The Seller will give the Buyer at least 10 business days' notice before commencing any forcible entry and detainer' action or any other action with respect to the Property and will refrain from bringing any such action except on such terms as are mutually acceptable to the Seller and the Buyer. The Buyer shall not unreasonably withhold the Buyer's consent to any action that the Seller wishes to institute before closing, and the Buyer's failure to disapprove any such action within _ business days after the Seller's request shall be deemed to constitute the Buyer's consent. (iv) The Seller will not enter into any new leases until the Buyer has given its written approval of leases submitted to it by the Seller, which approval will not be unreasonably withheld or delayed. (v) Any lease submitted by the Seller to the Buyer will be accompanied by a statement setting forth in reasonable detail all out-of-pocket costs to be incurred in connection with each such lease during the interim period. This will include the cost of tenant improvements, leasing fees, any tenant concessions, any moving cost allowances, and any assumptions of existing rental or lease agreements. Such costs shall be approved in writing by the Buyer, together with the applicable lease, and such approval shall not be unreasonably withheld or delayed. Each of such costs shall be specifically set forth or, if it is not practical to designate a fixed amount, the manner of determining the amount of the cost shall be set forth. (vi) All such preapproved costs that are incurred and paid out by the Seller before the closing date shall be reimbursed by the Buyer to the Seller by payment through the escrow at closing. All such costs that the Seller has incurred and that are payable following the closing date shall be assumed and paid by the Buyer as and when payable. (vii) If the sale does not close because of failure of any of the conditions, it is understood that the Buyer will have no responsibility for payment or reimbursement of any such costs approved by the Buyer. (viii) Except as otherwise provided here, the Seller will not extend, renew, modify, or replace any of the service contracts without the prior written consent of the Buyer. If the Buyer does not disapprove any request of the Seller regarding a service contract within 10 business days of the request, the Buyer shall be deemed to have approved the request. (ix) The Seller will not make any alterations to the Property or remove any of the personal property from it, unless the personal property so removed is simultaneously replaced with personal property of similar quality and utility. (e) General Representation. The Seller's representations and warranties contained here are true and accurate, and are not misleading. The Seller's representations and warranties contained here shall be continuing and shall be true and correct as of the Closing Date with the same force and effect as if remade by the Seller in a separate certificate at that time. The Seller's representations and warranties Exhibit H contained here shall survive the close of escrow and shall not merge into the deed and the recordation of the deed in the official records. 13. As Is. Other than the Seller's representations and warranties contained in this Agreement and those contained in any instrument delivered to the Buyer at closing, the Buyer acknowledges that it is purchasing the Property AS IS. 14. Buyer's Representations and Warranties. In addition to any express agreements of the Buyer contained here, the following constitute representations and warranties of the Buyer to the Seller: (a) The Buyer has the legal power, right, and authority to enter into this Agreement and the instruments referred to here and to consummate the transactions contemplated here. (b) All requisite action (corporate, trust, partnership, or otherwise) has been taken by the Buyer in connection with entering into this Agreement and the instruments referred to here and the consummation of the transactions contemplated here. No further consent of any partner, shareholder, creditor, investor, judicial or administrative body, governmental authority, or other party is required. (c) The persons executing this Agreement and the instruments referred to here on behalf of the Buyer have the legal power, right, and actual authority to bind the Buyer to the terms and conditions of this Agreement. (d) This Agreement and all documents required by it to be executed by the Buyer are and shall be valid, legally binding obligations of, and enforceable against the Buyer in accordance with their terms. (e) Neither the execution and delivery of this Agreement and documents referred to here, nor the incurring of the obligations set forth here, nor the consummation of the transactions contemplated, nor compliance with the terms of this Agreement and the documents referred to here conflicts with or results in the material breach of any terms, conditions, or provisions of or constitute a default under any bond, note, or other evidence of indebtedness, or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease, or other agreements or instruments to which the Buyer is a pa rty. 15. Damage or Destruction; Condemnation. Until close of escrow, the risk of loss shall be retained by the Seller. The Seller shall keep the Property fully insured until close of escrow. In the event all or any material portion of the Property is damaged, destroyed, or condemned or threatened with condemnation before the close of escrow, the Buyer may terminate this Agreement. In such event, escrow will be terminated, the earnest money deposit and accrued interest thereon will be promptly returned to the Buyer, and this Agreement shall have no further force or effect whatsoever. If a nonmaterial portion of the Property is destroyed or condemned, this Agreement shall remain in full force and effect, including, without limitation, the Buyer's obligation to close this transaction as provided for here and to pay the full purchase price to the Seller. In such event, the Buyer shall be assigned all insurance proceeds or condemnation proceeds Exhibit H payable to or for the account of the Seller. 16. Required Actions of Buyer and Seller. The Buyer and the Seller agree to execute all such instruments and documents and to take all actions pursuant to the provisions of this Agreement in order to consummate the purchase and sale contemplated and shall use their best efforts to accomplish the close of escrow in accordance with the provisions here. 17. Entry. The Buyer, its agents, and designees shall have reasonable access to the Property for the sole purpose of confirming that it is in substantially the same condition at closing as it was when inspected. The Buyer's right to access does not negate the warranties and covenants contained here. The Buyer shall indemnify and hold the Seller harmless from any loss, damage, or claim arising out of the Buyer's access to the Property . 18. Statutory Disclaimer. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS, IF ANY, UNDER ORS 197.352. THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 197.352. n THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS, IF ANY, UNDER ORS 197.352. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES, THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 197.352. IF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IS SUBJECT TO SPECIAL ASSESSMENT UNDER ORS 358.505. ORS 358.515 REQUIRES NOTIFICATION TO THE STATE HISTORIC PRESERVATION OFFICER OF SALE OR TRANSFER OF THIS PROPERTY. Exhibit H .-,~ ORDINANCE NO. AN ORDINANCE APPROVING THE ~VERDE VILLAGE DEVELOPMENT AGREEMENT," AN AGREEMENT BETWEEN THE CITY OF ASHLAND OREGON AND ASHLAND FLOWER SHOP AND GREENHOUSES, INC., PURSUANT TO ORS CHAPTER 94 AND THE ASHLAND MUNICIPAL CODE Recitals: The City of Ashland City Council after consideration of the staff report, the recommendation of the planning commission, and the comments and evidence presented during the public hearings on the requested Verde Village Development Agreement between the City of Ashland, Oregon and Ashland Flower Shop and Greenhouses, Inc., finds and determines that the proposed Verde Viii age Development Agreement is in the best interest of the public health, safety and welfare of the City of Ashland, meets a public need and provides a public benefit and that said Agreement is consistent with all applicable City of Ashland Laws and Ordinances; and THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: Annotated to show deletions and additions to the code sections being modified. Deletions are lincd thr-ough and additions are underlined. Section 1. The above recitations are true~od_herebYJncorpora!~AeE~~~y_ this refererice~ u _. ... . - . Section 2. The City of Ashland declares the approval and adoption of the Verde Village Development Agreement (together with all Exhibits and documents attached thereto and incorporated therein) said Development Agreement being attached to this Ordinance as Attachment 1 and made a part hereof by this reference. Section 3. The adoption of this Ordinance declaring approval of the Verde Village Development Agreement, together with the conditional approval of the requested real property land exchange, and conditional approval of all land use applications contained in Rle # PA-2DD6--01663, (annexation, comprehensive plan map change, zoning map change, outline plan approval, 2 of 3 requested street exceptions, environmental constraints permit and tree removal permit) are fully supported buy evidence contained in the whole record, including specifically the evidence and application materiais supporting the Findings of Fact, Conclusions of Law and Order on PA-2D06-01663, and the Findings of Fact, Conclusions of Law and Order on Real Property Exchange, attached to this Ordinance as Attachment 2. and Attachment 3 respectively, and made a part hereof by this reference. Section 4. The Ordinance shall be effective after execution of the Verde Village Development Agreement by both the City and the Ashland Flower Shop and Greenhouses, Inc., but not earlier than thirty (30) days after the second reading of this Ordinance and signature by the Mayor. Individual approvals shall be effective upon compliance with all terms and conditions as more fully set forth in the Development Agreement, and Findings of Fact, Conclusions of Law and Orders. Section 5. Severability. If any section, provision, clause, sentence, or paragraph of this Ordinance or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other sections, provisions, clauses or paragraphs of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. Section 6. Codification. Provisions of this Ordinance shall be incorporated in the Ashland Municipal Code and the word ~ordinance" may be changed to "code", "article", "section", or another word, and the sections of this Ordinance may be renumbered, or re-Iettered" provided however that attachments to the Ordinance, Whereas clauses and boilerplate provisions need not be codified. The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C)of the City Charter on the day of . , 2007, and duly PASSED and ADOPTED this day of , 2007. Barbara Christensen, City Recorder SIGNED and APPROVED this day of ,2007. John W. Morrison, Mayor Approved as to form: Richard Appicello, Interim City Attorney --.....--.--.-.. .~...-.._------ TERRASl)J:f. \iJJJY, INC. PROFESSIONAL LAND SURVEYORS --- -- --- 274 ]<'OUllTlI STREE'I' ASIlLANI>, OREGON 97520 TRANSMITI'AIJ DATI<]: 10-22-07 JOB NO: 478-05 TO: Alex FOI'l'est<lr SUBJECT: Verlle Village Et~IB\-r A 'I'ELEPHONE: (541) 482-6474 Ji'XtJS]1I'!lLE:(5U) 552'021)2- -- Jl~L]oc.:TRONIC: t.crra,iJl@bisp.llet Attached are the originals of the legal descriptions and maps for the property swap between t,he Williams and tbe City. If Yl'luhave any questions please feel free to call me. l;C: \ \ , \ \ \ \ \ \k~ ~IJ lV rA~Jj 1\.jJ~5-1lJ\ Ie) . 14 .01 Sincerely, ;(~^' . L- Stuart 1\'L Osmus ~- \ EXHIBIT 'A' CITY OF ASHLAND TO VERDE VILLAGE A parcel of land, being a portion of that certain tract conveyed from Jackson County to the City of Ashland in Document No. 77-13324, Official Records, Jackson County, Oregon, and being more particularly described as follows: Commencing at a point 356.40 feet West of the Northwest Corner of Donation Land Claim No. 53, Township 38 South, Range I East, WilIamette Meridian, Jackson County, Oregon; thence South 00 17' 00" West, 874.58 feet to the center of Ashland Creek; thence along the easterly line of said tract described in Document No. 77-13324 of said Official Records, South 00 17' 00" West, 405.01 feet to the Point of Beginning; thence continuing along said easterly line, South 00 17' 00" West, 428.30 feet to a point East of the Northeast corner of tract described in Correction Deed recorded as Document No. 67- 04020 of said Omcial Records; thence to said Northeast corner and along the North line of said tract, West, 50.00 feet to the Northwest corner thereof; thence along the West line of said tract and it's extension South 0017' 00" West, 267.82 feet to the northerly line of Nevada Street as described in Document No. 66-10285 of said Official Records; thence along said northerly line, North 890 49' 50" West, 30.00 feet to the easterly line of tract described in deed recorded in Volume 296, Page 362, Deed records, Jackson County, Oregon; thence along said easterly line, North 00 17' 00" East, 149.34 feet; thence continuing along said easterly line, North 30 33' 00" West, 446.90 feet to the Northeast corner of said tract; thence along the northerly line of said tract, North 860 22' 00" West, 388.90 feet to the northwest corner thereof; thence North 90 58' 00" West, 16.03 feet; thence South 860 22' 00" East, 224.98 feet; thence North 530 38' 46" East, 53.42 feet; thence North 5013' 34" East, 14.61 feet; th<'nce North 61056' 43" East, 36.00 feet; thence North 78029' 33" East, 50.25 feet; thence South 850 33' 47" East, 79.84 feet; thence North 840 03' 01" East, 72.17 feet to the Point of Beginning, containing 1.54 acres more or less. October 22, 2007 RIi!~19T!:f\EO PROFESSIONAL LAND SURVEYOR. -A.-.., G-- OREGON .JUt-v ,$fa.. ,~ STUART M. OSMVS D.4M . JI 0 ~~\ MAP OF VERDE VILLAGE /CITY DOG PARK PROPERTY EXCHANGE CITY OF ASHLAND TO WILLIAMS . "', ~'\ FOR FORRESTER & FORRESTER 545 A STREET, SUITE J ASHLAND, OREGON 97520 ., I II ;! \ SCALD 1'= eoo' ~I 81' , :ill ~l~ ~ICXl '~ 1\ : \ VOL, PG, ~:~.~ gl~ '\ "'I LEGAL DESCRIPTrDN I PaIN T OF BEGINNING I _~ \ J '\ \ \ \ 39 IE 04B) ) TL 800 I OR 88-09105/ / (IIILUAMS> I ! / \ ( / ) I / / ~ 39 IE 04B / I TL !l00 ,(i;.iiCDAMS5 '-391t"o4IiB I~ (IIILL...J.A_M._.S._>.Lf _~. . TL ~2QO - --rY /I ~ 0J ('t')V/....Cl;l J@~~ - . ___.J CITY aF ASHLAND LEGEND 39 IE 04BB TL 200 OR 77-13324 '\ OR 77-133134 39 IE 048B rL 700 (IIILLlAMS> VOL 296, PG, 3613 BORDER OF TRACT TO BE TRANSFERRED FROM CITY OF ASHLAND TO IIILUAMS (SHDIIN SHADED> OFFICIAL RECORDS, JACKSON COUNTY iJR[GaN DEED RE:CORDS, JACKSON COUNTY ORE:GaN LINE: Li L2 L3 L4 L5 L6 L7 L8 L9 LiD LINE TABLE LENGTH BEARING 50.00 IIEST 30,00 N89'49'50'1I 149.34 NOO'I7'00'E: 1603 N09'58'00'1I 53.42 N53'38'46'E: /4,61 N05'IJ'34'!: 36.00 N61'56'43'E 50.25 N78'29'33'E 79.84 S8Y33'4?'!: 72.J7 N84'03'01'!: I , i I I Re~ISTrfl'E-O PROFESSION.t...L LAND SURVEYOR , . - -.- -/L...c-. OR!;GON .JUL.Y .2D. 'tWO STUART M. O$MUS 0.24 ~}. o I L TERRASURVEY, INC. PROFESSIONAL LAND SURVEYORS 274 FOURTH STREET ASHLAND. OREGON 97520 (541)482-6474 rCIT8.Jn<llblsp.ner NEVADA STREET (OR 66-10285> ~/~ -_._-----~---~_..- ----~...._~-_.. --_.._._~._-~------ , EXHIBIT 'A' WILLIAMS TO CITY OF ASHLAND A parcel of land, being a portion of that certain tract conveyed to the Ashland Flowcrshop and Greenhouses, Inc. in Document No. 88-09105, Official Records, Jackson County, Oregon, and being more particularly described as follows: Commencing at a point 356.40 feet West of the Northwest Corner of Donation Land Claim No. 53, Township 38 South, Range 1 East, Willamette Meridian, Jackson County, Oregon; thence South Do 17' 00" West, 874.58 feet to the center of Ashland Creek, being the most northerly corner of said tract described in Document No. 88-09105 and being the Point of Beginning; thence along the center of Ashland Creek the following courses and distances; thence South 3D" 53' 06" East, 118.09 feet; thence South 21;) 59' 3Ill East, 66.00 feet; thence South 48' 04' 13" East, 78.43 fcet; thence North 75' 10' 41" East, 30.58 feet; thence South 83' 19' 34" East, 65.92 feet; theoce South 65' 07' 06" East, 44.31 feet; thence South 260 42' 09" East, 51.85 feet; thence South 160 01' 50" East, 219.08 feet; thence South 180 54' 37" West, 136.23 feet; thence South 00 23' 16" East, 81.45 feet; thence South 25' 08' 05" West, 252.60 feet; thence South 7" 01' 15" West, 87.65 feet; thence South 190 50' 49" East, 45.13 feet; thence South 40 48' 17" East, 43.49 feet to the northerly line of Nevada Street as described in Document No. 66-10285 of said Official Records; thence along said northerly line, North 890 49' 50" West, 68.10 feet; thence leaving said northerly line, 42.53 feet along the arc of a non-tangent curve which is concave to the southwest, having a radius of 121.45 feet, a central angle 01'200 03' 58", and a long chord which bears North 130 12' 33" West, 42.32 feet; thence 40.91 feet along the arc of a curve to the right, having a radius of98.52 feet, a central angle of230 47' 36", and a long chord which bears North 11020' 44" West, 40.62 feet; thence North 00 33' 04" East, 18.93 feet; thence North 5' 53' 11" East, 47.20 feet; thence North 17' 37' 31" East, 54.81 feet; thence North 21' 26' 34" East, 72.03 feet; thence North 35' 59' 13" East, 48.55 feet; thence 57.31 feet along the arc of a curve to the left, having a radius of 48.70 feet, a central angle of670 25' 26", and a long chord which bears North 20 16' 30" East, 54.06 feet; thence 58.49 feet along the arc of a curve to the right, having a radius of 57.76 feet, a central angle of 58001' 05", and a long chord which bears North 20 25' 41" West, 56.02 fee~ thence North 26' 34' 52" East, 30.74 feet; thence North 22" 55' 37" East, 58.94 feet; thence North 18' 57' 01" East, 32.25 feet; thence North 10' 39' 55" Eas~ 97.44 feet; thence North 150 38' 24" West, 38.84 feet; thence North 3Y' 24' 16" West, 60.15 feet; thence North 530 22' 56!t West, 19.90 feet; thence North 660 58' 54" West, 44.99 feet; thence South 88' 56' 50" West, 54.96 feet; thence South 82' 05' 30" West, 35.65 feet; thence South 890 31' 29" West, 67.18 feet; thence South 30 26' 59" East, 34.10 feet; thence South 840 03' 01" West, 20.18 feet to the easterly line aftract described in Document No. 77-13324 of said Official Records; thence along said easterly line, North 00 17' 00" East, 405.01 feet to the Point of Beginning, containing 2.75 acres more or less. October 22, 2007 RE~laTe.R"'D 'PROFEOSSIONAL.! LAND SVRVEYOR-! A-"".G- o~t;C;ON JUlV.",1W) STUART M. o~us o. . __ .0 --VERDE VILLi\.~:/C~:;Y DOG"PARK 1- PROPERTY EXCHANGE I', WILLIAMS TO CITY OF ASHLAND FOR FORRESTER & FORRESTER 545 A STREET, SUITE 1 ASHLAND, OREGON 97520 '\ f--- II=-::::~ ,I ---l II \ II I \ I \ I 1 39 IE 04BB\ I TL 800 ~ (\{ILLIAMS) :X +--"---l I I ~ I~ t' \ I 39 IE 04B ... -39 IE 04BB A I TL JIOO :: __ T_L 900 I (\{[LLIAMS) ::J - n I :J ~--- __'2- 6;:.f/~- N89' 48'50'\{ L30'" I 39 IE 04B 1 TL BOO I OR 88-09105 I (\{ILLIAMS) I I I I SCALf:> J'= 200' r'--~ " '- - - --'\\ CITY OF ASHLAND 39 IE 04BB TL 200 OR 77-13324 , , \ , ::.1 , I' ~ffi "I' ~K gl'" " I \1 '\ LEGEND OR- BORDER OF TRACT TO BE TRANSFERRED FROM \{ILLIAMS TO CITY OF ASHLAND (SHO\{N SHADED) OFFICIAL RECORDS, JACKSON COUNTY, OREGaN il Ii II Ii 39 IE 04BB TL 700 (\{ILLIAMS) 1/__ ('WILLIAMS) iL-- -- I , , I , ___~_-.J NE:VADA STREeT OR 66-10285 CURVE TABLE CURVE LENGTH RADIUS C1 42.53 121,45 C2 40,91 98,52 C3 57,31 48,70 C4 58.49 57,76 DE:L TA CHORD BRG, 20'03'58' NJ3'J2'33'1.' 23'47'36' NJ1'20'44'1.' 67'25'26' N02'16'30'E 58'01'05' N02'25'4J'1.' LEGAL DESCRIPTiON - PaINT OF BEGINNING i ,:. /!;, ~0> .f:::5 IJ,; ({j/(j <; ,I , _.. _I LINE: LINE II L2 L3 L4 L5 L6 L7 LS L9 lI0 Lll L12 L14 L15 L16 L17 L18 L19 L20 L21 L22 L23 L24 L25 L26 L27 L28 L29 L30 TABLE: LENGTH 66,00 78,43 30,58 65,92 44,31 51.85 136.23 81,45 87,65 45.13 43.49 18,93 47,20 54,S 1 72,03 48,55 30,74 58,94 32,25 97.44 38,84 60,15 19,90 44.99 54,96 3S,65 67,18 34.10 20.18 ~/1 BEARING S21 '59'31 T S48'04'13'[ N75'10'41'[ S83'19'34'E S65'07'06'[ S26'42'09'[ SI8'54'3?"1,I SOO'23'16"E S07'OI'IS'1,I SI9'50'49'[ S04'48'17'[ NOO'33'04'[ NOS'53'II'[ NI7'37'31'[ N21'26'34'[ N3S'S9'13'[ N26'34'52'E N22'55'37'E NI8'S7'0I'E NIO'39'SS'E NIS'38'24'1,I N35'24'16'1,I N53'22'56'1,I N6E,"S8'54'\1 S8S'S6'50'1,I S82'OS'30'1,I S89'31'29'1,I S03'26'59'E S84 '03'01'1,1 '.Ill R~";;IS.rp.fi!:.D --) PROFESSIONit\L I LAND S\)F!::::~~'?~,.A ).. 1\.. L. ... ~~';.....-ilit~....., Oh!':l,,),~ j J1JLV't~.')~) STUART M. OSMUS Nc, 24d4 . '> bP.... 11.. 3/ 0 CHORD 42,32 40,62 54,06' 56,02 TERRASURVEY, INC PROFESSIONAL LA!\'D SURVEYORS 274 FOURTH S'/R,Et.T ASHLAi'lD. OREGON 97520 154!) 482-6474 lerramIPbiSp,ner Nov 01 2007 10:55AM HP LASER JET FAX p.1 JACK DAVIS CIIRISTIAN E HeARN. SUSAN VOGEL ML.ADOFFt JENNIFER A BRIDGES C. CASi:Y WHIT!:." ~-- DAVIS I-:WARN---- SALADOFFC~RIDGES A '1" T () R N E Y S -o.;1-A T L ^ '\Xi EsCablfsnerl1953 SAM B DAVIS Re~ red SIONEYI:: AINSWORTH (1927-2003~ DONAlD M PINNOCK - Rutirod CAVin v GILS"T"RA~ - Retired .AI~lJ""'drnitlfld\oPracticeinCA. :I: Also Adm!1od ~ PI"ctl~e In DC. MO, PA lllld NJ A PrOfessional Corporation 515 EAST MAIN STREET ASHLAND, OREGON 97520 (541)482-3111 FAX (541)4B8-4455 I/IWW. davIshearn,com Telephone: (541) 482-311 J fax: (541) 488-4455 November 1,2007 FACSIMILE COVER SHEET Deliver to: Richard Appicello - Ashland Legal Department Fax Number: 552-2092 Fax From: Jack Davis Subject: Verde Village Development Agreement No. of Pages (including cover page): 3 [ ] An original is being mailed. [ J Fax transmittal only. ***************.. CONFIDENTIALITY NOTICE Tbis qommunic.ation rutty con':.:lin illformaho:l that IS privileged and/or confidential It is intended only for tf1c individual or entity nam:o:u above. lfyou ere neithdr the intcrlded recipient noran agent oremployec: responsible forddivenng the document to the intended ,~ipienl. you may not rcad, disseminate. cc>py or distri~uteth;s information. If you receive this communication in error, please n()lify us immediately to arrange for return of the original documents Nav 01 2007 10:55AM HP LASERJET FAX p.2 JACK DAVIS CHRISTIAN E. rlEARN" SUSAN VOCEl SAI.;Af)OFFi JENNIFER A- BRI04ES C. CASEY WHITE~ ___J)4VIs.liEAKN._ S ..._.,~. ---.-.------ ALADOFF;~I.;:\VlRIDGES ATTORNEYS.".J\T LAW SAM e DAVIS - Ret,-~ SIDNEY E. AINSWORTH (1927 2C)(J3) DONAlD M. PINNOCK- R9(lred DAVID V GilSTRAP - Retired EstabJisned 1953 OAl50Admittedt() P~ttiDain CA ;AIscAdmlttad10 Pr<!lctlce in DC, Mo, P.'IlInd NJ A Professional Corporation 515 EAST MAIN STREET ASHlAND, OREGON 97520 (541)432-3111 FAX (S41) 488-4455 wNw.davishearn.com November I, 2007 RICHARD APPICELLO ASHLAND LEGAL DEPARTMENT viA FACSIMILE TRANSMISSION 552-2092 Re: Verde Village Development Agreement Ddr Richard: , Because my partner, Chris Hearn, is completely unavailable to help with the Owner's response to yom latest revision of the Development Agreement, and in view of the deadline of 11:00 o'clock this morning for submission of the response, I am standing in for him. Please present the follpwing to the Council with the disclaimer that I have not been able to receive the input of eitHer the clients or Chris before preparing this There may be additional items of concern and thet may feel differently about some of the following. Section 16: 1 feel it might be wise to make it clear that these items should occur in the ord~ stated. Of particular concern to the Owners is that Items 1 . 14 must be achieved before 16 an~ 18 take place. There should be no conveyances until every approval is received. Also, I woitld think that the O"ners should have the right to move Item 17 and 25 in front of 15 and 24, resj>ectively, with acceptable sureties or cash deposits. We now know that approvals of fmal pla1s are sometimes appealed. Section 18.4: Please remove "or as otherwise made applicable to the development aut~orized in this Agreement". Because this is, first and foremost, a bilateral agreement, the City canJnot reserve for itselfthe right to unilaterally change "the deal" by enacting ordinances which tru61p terms in the Agreement. I feel this language permits that. Section 18.5: In the middle of the larger paragraph, you have stated that the Owner will not!bc liable for costs ifnot determined to bc in breach. Please expand the sentence to have it als$ apply if the Court detennines that the Owner is not in breach if a lawsuit is later filed. Nov 01 2007 10:55AM HP LASERJET FAX p.3 Pa1l:e -2- Exhibits E. F and G: Your revisions t[) E and P, as well a~ the whole of G, have not been reviewed by the O\\'llers and discussion of these will have to be deferred. Yours tm&, DAVIS, H~RN' SALADOFF & BRIDGES, fl.C. JA~VI . . earn eheam@.davishearn.com Greg iIliams grel!@verdevillage.net Williams valri(a)a~hlandgreenhouses.c(lm DAVIS. IiEAR"j SALADOFF & BRfDGES A Pro!'es510ni'll Corporation 515 EAST MAIN STREET ASHLAND, OREGON Q7520 (5-,*1)4S2 311" FAX (54 II 488.4455 Diana Shlplet - Re: Vesta Real Estate Services - answers Page 1 From: To: Date: Subject: Martha Bennett Colin Swales 9/3/200724743 PM Re. Vesta Real Estate Services - answers Colin - Thanks. I will hold this emall for the packet when Verde Village gets to the Council It's likely to be late October or November. Martha >>> "Colin Swales" <collnswales@gmailcom> 08/28107 10:04 AM >>> Martha, (cc David) 'Re Williams/Dog Park properties exchange' I read with interest the response from Vesta Real Estate Services Inc. dated Aug 6. 2007 - answering prevIous questions I had with regard to the proposed Land Swap in connection with the Verde Village project [ see my original questions Pages 92/93 - Vesta's an"wers 63/64 http//www.ashland.or.us/Files/ Auoust14Plan ninoConmission Packet pdf (BTW, I was disappointed that the proposed Land Exchange - or an Easement alternative) was not even discussed by the PC at their Aug 14 meeting - apart from the further testimony In support of the Applicants from Parks Commissioner Mike Gardiner [ approx hr. 23200 of meeting video], and I have previously shared my concerns about its appropriateness) Firstly, my question about the wisdom of bUilding a "sustainable development" at the city's periphery was not directed toward the Appraisal per se, but to the City In general While I am interested in the Appraiser's personal opinion '''.sustainable development is not dependent on public transport. .'" I feel is not within the scope of the appraisal work requested and shows an arguable bias toward the proposed development that is qUite unprofessional Also her definition quote from Webster's Dictionary seems to differ from that available online. in that the latter makes no mention whatsoever of "construction" at all - which IS what the appraiser seems to only limit her thoughts to {see http//www.websters-onllne-dictionarv.oro/defin Ition/SUST AI NABLE+DEVELOPM E NT ] Her opinion also seems to be at odds with that of some Planning Commissioners who mentioned during the public hearing their concerns about public transportation [ about Hr 130:00 (?) of meeting video http//rvtvroouedatavaultnet554/ramoen/ashland/plan n ino/plan08-14-07. rm ] So let me also deal With the enumerated points on page 2 of her answers in order 1&2 The Appraiser mentions previously that she *" cannot address the planning Issues of annexation and upzoning.. '" - yet she hac been in contact with city staff Old they not Inform her adequately? Diana Shlplet - Re Vesta Real Estate Services - answers Page 2 Density bonuses seem now to have been factored In, but stili not the affordable penatles of that would apply to only the Williams' property upon annexation and up-zoning The presumption of annexation being "well Into the process" IS misguided The PC can only opine on whether the proposal meets the threshold of possible consideration for annexation The Council MAY decide If this is to be approved - or not Such presumption of a future outcome for the Williams' property does not address the very modest "highest and best use" currently allowed and possible at the time of the appraisal (minimum 5 ac lot size) and such future value is purely speculative ( The City "dog park" property IS currently already zoned for city R-1 residential use), E,ven the" "presumed zoning of R-1-5," for the Williams' property takes no account of the R-1-7,510ts that are adjacent to the north and west 3, Developable Land is not the same as a ."Iarge box of detergent" . To compare the value of a scoop from one box with a scoop from a larger box IS facile, The residentially-zoned City property could be easily partitioned off and developed, The Williams' flood plain land cou,d not Therein lies the major flaw in the appraiser's methodology 4 The land was not appraised ."as-is",. The Williams' land was valued after a "presumed" annexation and re-zone etc, Affordable housing requirements would not apply to toe City property as it does not require annexation nor upzoning, both of which procedures (required for the Williams' property) demand affordable sacrifices 5 The other comparables have no flood plain land, therefore they are worth more? Yet only they are considered to be "high indicators" for both the City (flat, non-flood plain) and the Williams' riparian embankment parcel? Identical com parables used for totally different land - go figure" 6 ."",the sale is a high Indicator due to the size issues discussed earlier" . Earlier dsicussion pOints to the fact that the appraiser puts very different values on disparate sized parcels, But the City property conSidered for swapping could eaSily be partitioned to a Similar size as #2, hence having a similar value, The Williams property could not be similarly partitioned and developed, 7 The #2 Fordyce Co-Housing property was approved for up-zone to R-2 with Comp Plan change and Planning PermiSSion by CounCil on ( minimum 5 ac lots), The subsequent "comparable" sale took place -accol'dlng to the appraisal - on June 06 at R-1-5, How does the appraiser judge that thiS sale "meets the criteria" as a "high Indicator" with the Williams County 5 -ac minimum land? 8, .",,,Location of the sewerage works, in my experience, would not reduce the value of the lots '" While it would appear that It IS mainly the "affordable" lots (that are to be donated, and therefore have zero value to the WI'llams) that are clustered around the part of the site closest to the sewerage works, I find Diana Shlplet - Re: Vesta Real Estate Services - answers Page 3 the appraiser's opinion curious Could she give some examples of her experience selling such lots in other places to substantiate her claim? I realize the Record is now closed for public Input before the PC, so I am writing so that you can share this with Council at the appropriate time. (or the PC should they re-open the Record) thanks Colin cc: David Stalhelm; Diana Shlplet October 30, 2007 I',JO\I (i , !I City Council of Ashland 20 East Main Street Ashland, OR 97520 Dear City Council Members: I am writing this letter to show my strong support for the Verde Village project. I have lived in Ashland for 11 years and have watched various building projects be ac- cepted and implemented. None of these projects have had the positive impact that Verde Village would have to our community. In this time of great concern over energy use, Verde Village would be the most energy and water efficient project ever built in Ashland, if not in all of Oregon. For the first time we would have a community focused on environmentally responsible home design and construction as well as careful land planning, management and stewardship. I feel that Verde Village would quickly become a model for other housing projects throughout the nation. We are all well aware of the shortage of low cost housing in our city. Verde Village would help to alleviate this need by providing both low cost housing as well as work force housing. Our Chamber of Commerce describes Ashland as a place which offers qualities of life many towns only dream about. Verde Village would enhance that description by respect- ing the environment, fostering a spirit of community and just being a great place to live. I was pleased to see that the Planning Commission approved Verde Village. It is my hope that the City Council gives their whole hearted approval as well. Respectfully submitted, (, ~Y~[at<u)'-r ~esse Hanwit 458 Beach Street Ashland, OR 97520 552-1841 _,_~."'~",'T~^'~'_'__""__'__ To: The Ashland Mayor and City Council ll-~,'I (-~; 1,1-0, i-;:,-~: i I 'I"i,' i'l '[\ ", UJ ,,- I I 'n i\ -< 111[11\ 1"ll'J'\1 (I' I \U . ", ~ 18" L..-}". ,'..-"""'-' I \1 'I :i This letter is in support oCthe Verde Village project. Unfortunately I will be out of town on the night oCthe meeting You arc the leaders of our town, and as leaders you are charged with seeing the big picture while they analyze the detail. Not an easy task in this case, but a crucial one, This is obviously a complex application, The fact that the application is so thick, and the process has taken so long, is evidence of it. The applicants are not developers. They are simple 3'11 generation Ashland small town farmers, who have for better or worse watched their town grow up around them, and who now have a unique, progressive vision for the property that, because of Corces beyond their control, is to valuable to leave as farm land. They have been courageous in spending what it took to hire the best advisors who did there best to make all the many constituencies of this town happy. These people care about this town because they live here, and will continue to live here when this project is complete. In my opinion the big picture is this. I C Ilhere ever was a project that belonged in Ashland, it is this one. If there ever was a project that Ashland could look back on and be proud of it is this one. It has the best known use of energy efficiency, it is giving the city much needed affordable housing (and because of the size of the rest of the houses the whole development will stay relatively aflordable) and it retains much of the natural beauty of the area by giving the city a sweet deal on open space. Scores of folks who have spoken in favor of this agree. Very few disagree, and they are the ones who never see a development they like.... ..you know who they arc. I urge you all now to show some courage and see the big picture. The details have been nit-picked for almost a year. Please don't nit-pick it to its death. Please don't force these good people to develop this property to its allowed use, large homes on large lots. Please allow this wonderful and needed project to go forward. Thank Yau, Dave Bernard. 378 Terrace St. Ashland ( (----'-~-'>l~\___ /- "- ~/~\ ::.~~_// CITY OF ASHLAND Council Communication Second Reading of an Ordinance Amending Chapter 15 of the Ashland Municipal Code Adopting the 2007 Oregon Fire Code with Ashland Amendments . - - - ~ Meeting Date: 11/6/07 Primary Staff Contact: Marguerittc LR Hickman Department: Fire E-Mail: hickmanmCc[:ashland.oLus Sccondary Dep!.: Secondary Contact: Keith Woodley Approval: Estimated Time: woodlevkCii:ashl"nd.oLus , " , Question: Shall the City Council approve the second reading of an ordinance amending chapter IS of the Ashland Munieipal Code adopting the 2007 Oregon Fire Code with Ashland amendments? The 2007 Oregon Fire Code hecame effective in April 2007 after heing adoptcd by the state of Oregon. A code review cycle is completed every three years resulting in the development of a new model code. The State of Oregon then adopts a modified version of the model code creating the Oregon Fire Code. After each state adoption, a loeal adoption is necessary in order to maintain local fire code amendments. Staff Recommendation: Adopt the 2007 Oregon Fire Code with Ashland Amendments. Background: There are six proposed changes to the Ashland amendments in this adoption. Four of these changes are for clarification purposes and do not create a substantive change to the meaning of the codc. These changes are reflected in the attached ordinance. Related City Policies: AMC 15.28 Council Options: Amend the Oregon Fire Code with amendments as provided. Potential Motions: Move to approve the second reading of an ordinance amending Chapter 15 of the Ashland Municipal Code adopting the 2007 Oregon Fire with Ashland amendments. Attachments: Ordinance to adopt the 2007 Oregon Fire Code Page 1 of I _~_~J:' - ;\)~1cndll1cnlS To_Jl_1C}007 On:gon Fire Cod~_- Second RC:Jding,doc ~~, ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 15 OF THE ASHLAND MUNICIPAL CODE ADOPTING THE 2007 OREGON FIRE CODE WITH ASHLAND AMENDMENTS THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOllOWS: Annotated to show deletions and additions to the code sections being modified. Deletions are lined through and additions are underlined. SECTION 1. Section 15.28.010, of the Ashland Municipal Code is amended to read as follows: 15.28.010 Adoption Of Oregon Fire Code The 2W4 2007 Oregon Fire Code and appendices A through l & SR are hereby adopted, except where specifically excluded or modified by this section. The 2W4 2007 Oregon Fire Code and all adopted appendices, as excluded or modified by this section, will be referred to in the Ashland Municipal Code as the Oregon Fire Code. One copy of the Oregon Fire Code and appendices shall be filed in the office of the City Recorder. SECTION 2. Section 15.28.040 of the Ashland Municipal Code is amended to read: 15.28.040 Above-ground Storage of Flammable or Combustible Liquids The limits referred to in Section 3404.2.9.5.1 of the Oregon Fire Code in which the storage of flammable or combustible Class I and II liquids in above-Qround tanks outside of buildin!:ls is restricted are established as follows: All City of Ashland residential and historical district areas as defined in the Comprehensive Plan. SECTION 3. Section 15.28.060 of the Ashland Municipal Code is amended to read as follows: 15.28.060 Storage of Explosives - Prohibited. The limits referred to in Chapter 3301.2.3 of the Oregon Fire Code, in whiGh storage of explosives and blasting agents is prohibited, are established as follo'NS: All areas within City of Ashland limits. The scope referred to in Chapter 3301.1 of the OreQon Fire Code which references the Ore!:lon Revised Statutes and OreQon Administrative Rules related to explosives is amended as follows. The sale. manufacture. PAGE 1 . OUTDOOR BURNING ORDINANCE CIDOCUME-1IshipletdILOCALS-1ITemp\2007 Oregon Fire Code adoption Ord.docadoption Ord possession, transfer and storaQe of explosives as defined bv ORS 480.200 (3) are prohibited in all areas within the Citv of Ashland limits. SECTION 4. Section 15.28.070 of the Ashland Municipal Code is amended to read as follows: SECTION 15.28.070 Amendments to the Oregon Fire Code The Oregon Fire Code is amended in the following respects: 1'.. Section 503.2.5 Dead Ends: Change 150 feet in length to 250 feet in length. A. 8. Section 506.1 Replace the second sentence as follows: The key box shall be of an approved type, installed and maintained in accordance with manufacturers instructions, and shall contain keys to gain necessary access as required by the fire code official. B. Co Section 508.5.1 & Exceptions Delete and replace with the following: The approved fire apparatus operating area must be located within 300 feet from a hydrant, as measured by an approved route, along an approved driving surface. With the installation of an approved automatic fire sprinkler system, hydrant distance may be increased to 600 feet. C. 0. Section 3301: Notwithstanding ORS 480.110 through ORS 480.165 and OAR 837-012-0600 through OAR 837-012-0675, the exceptions listed in this secction, the sale of DOT classification 1 AG (Class C common firev:orks) retail fireworks as defined in OAR 837-012-0610 is prohibited within the City of Ashland. The use of common fireworks retail fireworks within the City of Ashland is prohibited during any declared fire season except when the sale of fireworks is permitted within the State of Oregon pursuant to ORS 480.127 (June 23 to July 6 of each year). D. Eo Appendix D1 05.1 Change first sentence as follows: Buildings or portions of buildings or facilities exceeding 24 feet in height above the lowest level of fire department vehicles access shall be provided with approved fire apparatus access roads capable of accommodating fire department aerial apparatus. Appendix 0105.2 & 105.3 Chanqe 30 feet to 24 feet. SECTION 5. Section 15.28.080 of the Ashland Municipal Code is amended to read as follows: SECTION 15.28.080 Appeals. Whenever the GRief Fire Code Official disapproves an application or refuses to grant a permit applied for, or when it is claimed that the provisions of the code do not apply or that the true intent and meaning of the code have been misconstrued or wrongly interpreted, the applicant may appeal from the decision PAGE 2 - OUTDOOR BURNING ORDINANCE C'.DOCUME-1\shipletd\LOCALS-1\Ternp\2007 Oregon Fire Code adoption Orddoc of the crnef Fire Code Official to the Ashland Fire Code Appeals Board as defined bv Appendix A of the Oreqon Fire Code within 30 days from the date of the decision appealed. SECTION 6. Severability. If any section, provision, clause, sentence, or paragraph of this Ordinance or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other sections, provisions, clauses or paragraphs of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. SECTION 7.. Codification. Provisions of this Ordinance shall be incorporated in the Ashland Municipal Code and the word "ordinance" may be changed to "code", "article", "section", or another word, and the sections of this Ordinance may be renumbered, or re- lettered, provided however that Sections 6 thru 7, unincorporated Whereas clauses and boilerplate provisions need not be codified. The foregoing ordinance was first read by ti,tle only in accordance with Article X, Section 2(C) of the City Charter on the day of , 2007, and duly PASSED and ADOPTED this day of ,2007. Barbara Christensen, City Recorder SIGNED and APPROVED this day of ,2007. John W. Morrison, Mayor Reviewed as to form: Richard Appicello, Assistant City Attorney PAGE 3 - OUTDOOR BURNING ORDINANCE C:IDOCUME-1IshipletdILOCALS-1ITemp\2007 Oregon Fire Code adoption Ord ,docadoption Ord CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dept.: Approval: Resolution Exempting the Ashland Solar Pioneer II Project from a Performance Bonding Re uirement Primary Staff Contact: E-Mail: Secondary Contact: Estimated Time: 11/06/2007 Electric Finance ~ r Martha Benn~t ~ .1} Dick Wanderscheid..:~/J ) wandersd(n ash I and .or. LIS Lee Tuneberg 5 minutes Question: Does the Council want to adopt a Resolution entitled "A Resolution exempting the Ashland Solar Pioneer II Project from a Performance Bonding Requirement~ Staff Recommendation: Staff recommends that the Council adopt the attached Resolution. Background: The City received approval from the IRS to sell up to $500,000 in Clean Renewable Energy Bonds (CREB's) in December, 2006. The PV system was bid out in May 2007 as a construction project. No acceptable bids were received. In July, the City Council granted an exemption from competitive bidding to re-bid the system using a point system to award the project. One of the reasons that the City only received 2 bids in May, was the standard construction project requirement for performance bonding was included. When staff proposed to exempt the project from competitive bidding we requested that the performance bonding requirement would be replaced with a warranty. This was clearly stated in the Council Communication but unfortunately the actual resolution didn't reflect this. Therefore, the attached resolution removes this performance bonding requirement and the City will be able to re-bid the project using a warranty instead of a performance bond to ensure system reliability. The revised RFP to re-bid this project has now been prepared, received legal review and can be issued after the attached resolution is adopted. We anticipate this would occur shortly, with bids due in early 2008. Keep in mind that re-bidding this project does not commit the City to building the project, but allows us to potentially get an acceptable bid should the City decide to move ahead with this project. Related City Policies: None Council Options: I) Pass the attached Resolution granting an exemption from performance bonding for the Ashland Solar Pioneer II project. 2) Bid the project with a performance bonding requirement. Potential Motions: Move to adopt the attached resolution exempting from performance bonding for design and construction of the Ashland solar Pioneer II Generation System Project. Page I of2 Pioneer II performance Bond reqdwl 0.29.07 r~' CITY OF ASHLAND Attachments: Resolution no. 2007 Page2of2 Pioneer II performance Bond rcqdwl 0.29.07 r~' RESOLUTION NO. 2007- A RESOLUTION EXEMPTING THE REQUIREMENT FOR A PERFORMANCE BOND FOR CONSTRUCTION OF THE ASHLAND SOLAR PIONEER II GENERATION SYSTEMS PROJECT Recital: ORS 279C.390( 1) provides that a contract may be exempted by the Local Contract Review Board from the requirement that a good and sufficient bond be furnished to ensure performance. THE CITY OF ASHLAND RESOLVES AS FOLLOWS: SECTION 1. Pursuant to ORS 279C.390( 1), the Ashland Local Contract Review Board exempts the Ashland Solar Pioneer II Generation Systems Project from the requirement of a performance bond.. This resolution was read by title only in accordance with Ashland Municipal Codc S2.04.090 duly PASSED and ADOPTED this ___ day of November 2007. - Barbara Christensen, City Recorder SIGNED AND APPROVED THIS DAY OF NOVEMBER, 2007. John Morrison, Mayor Reviewed as to forn1: Richard Appieello, City Attorney CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dept.: Approval: A Resolution Adopting a Supplemental Budget Establishing Appropriations _ Within the 2007-2008 Budget November 6, 2007 Primary Staff Contact: Administrative Services E-Mail: Police Secondary Contact: Martha Benne1 ~ Estimated Time: ,_/ \ Lee Tuneberg M~ tuneberl@ashland.or.us 15 Minutes Question: Should Council approve a sccond resolution adjusting the ry 2007-2008 Budget to create appropriations and authorize expenditure of asset f()rfeiturc revenues received in conjunction with the City's participation in the regional drug enforcement program? Staff Recommendation: Stall recommends approval of the attached rcsolution. Background: Thcre arc three ways in which to change appropriations afler the Budget is adopted. I. A transfer of appropriations decreases an appropriation and increases another. This is the simplest budget change allowed under Oregon Budget law. This does not increase the overall budget. This is approved by a City Council resolution. 2. ^ supplemental budget of less than I 0 perc~nt of total appropriations within an individual fund follows a process similar to the transfer of appropriations. ]. A supplemental budget in excess of 1 0 percent of total appropriations requires a longer process. This process includes a notice in the paper and a public hearing. ^ supplemcntal budget (Item #2 above) is needed to adjust the FY 2007-2008 budget. The City's participation in regional drug task force operations has generated revenue to the City that cannot be expended without Council approval of the proposed budget adjustment. Revenues received li'orn this program are restricted in LIse and this reeummendation is in keeping with federal requirements. Thc attaehcclmemo provides mure detailed information. This is the second supplemental budget request for FY 2007-08. Both have been requests from the Police Department to recognize I(Jrfeiture proceeds and create qualifying appropriations I()r a totaluf' $] 90,000. Attached is a resolutiun for your approval. The recommended changes in the budget are explainecl after each request. Related City Policies: Compliance with Oregon Budget Law ~_________~ _ Supplemental !3udgct - Police DEi\ Flllld~ 11-6~____ ~~, CITY OF ASHLAND Council Options: Council may accept this supplemental budget request as presented, recommend modifications as discussed or deCer acceptance (takes no action) awaiting further information or clarification. Potential Motions: I make a motion to approve the attached resolution adopting a supplemental budget for FY 2007-2008 for the purposes specitled. Attachments: Supplemental13udgellclJ' ^sset ForCeitures Funds memorandum Notice of Supplemental Budget Resolution adopting a supplemental budget establishing appropriations within the 2007-2008 budget 2 cc _ Supplemental Budget - Police DE~_t1ds Il:.0..::(!L_ r.l' Memo DATE: October 29, 2007 TO: Martha Bennett, City Administrator FROM: Terry Holderness, Police Chief RE: Supplemental Budget for Asset Forfeiture Funds Since 2000 the Ashland Police Departmcnt has participated in a regional drug task force that handles drug investigations in and around the city. As a member of that task force the Police Department is entitled to a percentage of assets seized by the task force from drug dealers in accordance with federal law. The US Treasury Department has written guidelines on how asset forfeiture money and interest on that money may be spcnt. Under those guidelines that money shall be used "for only law enforcement purposes." The guidelines then list specific permissible uses that inelude training, investigative resources, facilities, equipment and law enforcement operations. The money can never supplant local funds and has to be used for projects that the local agency would not otherwise be able to pay for. Federal regulations also require that asset forfeiture funds "should he expended for their designated law enforcement purpose as they are received. However, these funds may he retained in a holding accounl for a reasonahle period or time, generally no longer than Iwo years, to satisfy afuture need, sueh as a capital expenditure." In August, the department reported that we need to expend at least an additional $190,000 in forfeiture funds this budget year to remain in compliance with Federal regulations. On August 19, 2007 the Council approved a supplemental budget that authorized the department to spend $66,900 of the asset forfeiture funds. That was done with the understanding that approximately $17,000 of this money would be recovered by charging outside agencies tuition for training classes. We had also requested $5,000 to hire an architect that was subsequently found to be unnecessary. Therefore, a total of $22,000 needs to be reallocated in addition to the other funds that need to be spent. This would leave the department with a balance of $145,100 ($190,000- $66,900=5123,100+$17,000+55,000=$145100) in Federal forfeiture funds to spend this budget year. Following arc the areas that meet the legal criteria for use of asset forfeiture funds that the police department would like to expend during this budget year. Training; The department can only use forfeiture funds for training that has not been previously budgeted and cannot reduce spending already budgeted for training. I recommend that we start training all officers in tactical communications annually. To do this in a cost effective manner we need to send our trainer to an instructor school. We have not previously budgeted for a training instructor in tactical communications, and this type of one-time training meets the requirements for the use of forfeiture funds. We estimate that the total cost of training one instructor is $2000. Equipment The department has looked at several versions of in-car camera systems for patrol units. These types of systems can be turned on by an officer during an enforcement action and are automatically activated when an officer turns on their emergency lighting equipment. This creates a video record of officers engaging in enforcement activity within the range of the camera. New systems also have a second camera that can record the back seat of a patrol car to monitor the actions and condition of suspects placed in that seat. The recordings would be the best possible evidence to document the actions of the officer and subjects contacted. Under state law these recordings could bc used as evidence in criminal or civil court and in intcrnal investigations. The total cost of this typc of systcm is betwecn $5,000 and $7,000 pcr unit. I rccommend purchasing one system for placement and tcsting in one of our units. Police Facilities I recommend we spend most ofthc funds that need to be allocated on our existing station and setting up our new contact station. Since thc City is conducting a facilities study, I do not recommend changing the footprint or size of the existing building. I recommend we purchasc crgonomic, modular office furniture which can be moved to a new facility, replacc worn out flooring, paint areas in need of painting, improvc and expand the parking lot and purchasc a temporary storagc structurc. The department is very short on storage space. The only way to add storage space without adding onto thc building is to build or purchasc a temporary storage structure. Moving supplies and equipment into a temporary storage structure will free up enough space for a dedicated interview room wherc officers can interview witnesses and victims. Our existing parking lot is too small and cmployee and sometimes police vehicles have to be parked in the public parking lot between the court and thc Grove or in the city yard parking lot. Expanding the parking lot would also give us room to placc thc tcmporary storagc structure. The expanded parking area should be useful to any future uscr of thc existing police building if the police department is moved. I am also rccommending the covering eight spaces in the existing lot. The purpose of the covered spaces is to give officers a dry area to load and unload arrested persons, property and evidence during inclement weather. Following are the general areas where we are planning on expending forfeiture funds on police facilities: Use Estimated cost ____u. Parking lot expansion with _.n Modular, ergonomic furniture Eight covered parking spaces Archive shelving .. . Temporary storage structure Replace worn}looring Painting Total --~-- .. ----.-.~ $41,000 ----- S41,000 $20,000 $12,000 $10,000 -_.- $7,100 -...-- SS,OOO .....- $136,100 ---...---- The following table shows how the poI-Ice department is recommending that asset forfeiture funds be expended this budget year. Permissible Use - Training S Equipment $ Facilities S Total .J Next Priority Expenditures Estimated Expenditure 2000 70()() 136,100 14S,1()O ~~ ~ These expenditure figures are estimates, and our actual costs may be less. Additionally, it looks likc we may be reimbursed more from other agencies than we had originally anticipated on the leadership training. I f we have any remaining funds after we complete the projects outlined above, our next priority expenditures will be: . Ethics Training: The department is looking for an Ethics instructors training class so that we can conduct regular ethics training. We have not identified a vender for a train the trainer course but we cstimate that type of eourse in an out of state location would be approximately $2000. . Equipment for Support of Area Commander Program: The new area commander program will require that the area commanders hold and attend community meetings in their areas. To help facilitate those meetings they could use a Toughbook type laptop computer estimated cost $3,500, and an LCD projector estimated cost $2000. . Training Equipment: Thc Departmcnt needs to purchase a computer, LCD projector and screen for the briefing room for training. Estimated cost 53,200. RESOLUTION NO. 2007- A RESOLUTION ADOPTING A SUPPLEMENT AL BUDGET ESTABLISHING APPROPRIATIONS WITHIN THE 2007-2008 BUDGET Recitals: ORS 294.480 pern1its the governing body of a municipal corporation to make a supplemental budget for the fiscal year for which the regular hudgct has been prepared under one or more of the following reasons: a. An occurrence or condition which had not been ascertained at the time of the preparation of a budget for the cun-cnt year which requires a change in financial planning. b. A pressing necessity which was not ~Jreseen at the time of the preparation of the budget for the current year which requires prompt action. c. Funds were made available by another unit of federal, state or local government and the availability of such funds could not have been ascertained at the time of the preparation of the budget for the current year. d. Other reasons identified per the statutes. THE CITY OF ASIlLAND RESOLVES AS FOLLOWS: SECTION I. Because of the circumstances stated below, the Mayor and City Council of the City of Ashland determine that it is necessary to adopt a supplemental budget, establishing the following additional appropriations: General Fund Approprwtion: Resource: Police Department Miscellaneous Income (Asset Forfdtures) $123,100 $123,100 {o recogf/lze asset fiJI/eiture revenue received and create additional appropriations in the General Fund. Police Department, restricted h'c federal requirements to paylor training, cqUlj)!nent andfacilit.v improvements. SECTIQtL~ All other provisions of the adopted 2007-2008 BUDGET not specifically amended or revised in this Supplemental Budget remain in full force and effect as stated therein. SECTION 3. This resolution takes effectupoll signing by the Mayor. This resolution was read by title only in accordance with Ashland Municipal Code Section 204090 duly PASSED and ADOPTED this day of November, 2007: Barbara Christensen, City Recorder SIGNED and APPROVED this... _ day ofNovcmber, 2007: Jobn W. Morrison, Mayor Reviewed as to form: Ricbard Appicello, Interim City Attorney Notice of Supplemental Budget A resolution adopting a supplemental budget for the City of Ashland, Jackson County, State of Oregon, for the fiscal year July 1, 2007 to June 30, 2008 willlle considered at the Civic Center, 1175 East Main Street, Ashland, Oregon as part of the City's regular business on November 6, 2007, at 7:00 p.m. A copy of the supplemental budget document may be inspected or obtained on or after November 1, 2007 at the Administrative Services Department, 20 East Main, Ashland, Oregon 97520 between 8:30 a.m. and 430 p.m. A summary of the supplemental budget is presented below. GENERAL FUND Miscellaneous Income (Asset Forfeitures) Police Department Resources $ 123,100 Requirements $ 123,100 TOTAL $ 123,100 $ 123,100 $ 123,100 $ 123,100 TOTAL ALL FUNDS To recognize asset forfeiture revenue received from operations and create appropriations in the General Fund, Police Department, restricted by federal requirements for training, equipment, furniture and facilities improvements. This is the second request this fiscal year and the total for both is $190,000. CITY OF ASHLAND Council Communication Reading of an ordinance Annexing property and Withdrawing an Annexed Area from Jackson County Fire District No.5 (BRAMMO Motorsports, Jefferson Avenue Annexation - #2006-00366) Meeting Date: Department: Secondary Dept.: Approval: November 6, 2007 Community Developmcnt Ad i . stration Primary Staff Contact: E-Mail: Secondary Contact: Estimated Time: Bill Molnar bill(@ashland.or.us Richard Appicello 10 minutes Question: \ IJ Should Council finalizc the last step of including within the Ashland City Limits approximately 8.4- acres of industrial and employment zoned land, by approving first reading of an ordinance formally annexing the property and withdrawing thc property from Jackson County Fire District No.5? Staff Recommendation: Staff rccommends that the Council approve the ordinance on first reading and move the ordinance to second reading Background: At the May 16,2006 mccting, thc Council approved the application for an Annexation of an 8.43-acrc parcellocatcd on Jefferson A venuc. The Council adopted the findings of their decision on June 19th, 2006, which completed the land use ordinance portion of the annexation proeess. The applieant has prepared and submitted the requircd boundary description of the property. The final step for the Couneil in the annexation process is to approve the ordinance annexing the property and withdrawing the area from the jurisdiction of Jackson County Fire District 5. Related City Policies: Since the Council has already approved the land use ordinance portion annexing the area, it has previously found that thc applicable goals and policies of the City have been met by this request. Council Options: Council ean choose to move the ordinance to second reading, or choose not to annex and withdraw the property from the jurisdiction of Fire District 5. Potential Motions: Approve the ordinance on first reading and move 1:0 second reading. Pugc I of 2 CC JctTerson BnllTlscher Annex I st reading [1.06.06 ~~, CITY OF ASHLAND Attachments: Ordinance Map of Survcy & Legal Description - Annexation Area Irrevocable Consent to Annexation May 16th, 2007 Council Meeting - Public Hearing Notice, Minutes and Findings Page:2 01'2 CC Jefferson Bramschcr Annex 1 st ~cading I] .06.06 ~.,. ...11 ORDINANCE NO. AN ORDINANCE ANNEXING PROPERTY AND WITHDRAWING AN ANNEXED AREA FROM JACKSON COUNTY FIRE DISTRICT NO.5 (Jefferson Ave. Annexation - # 2006-00366) Recitals: A The owner of the property described in the attached Exhibit "A" has consented to the annexation of this property to the City of Ashland. There are no electors residing in the tract to be annexed. B. Pursuant to ORS 222.120 and ORS 222.524 a public hearing was held on May 16, 2006, on the question of annexation as well as the question of withdrawal of the property from Jackson County Fire District NO.5. The hearing was held in the Council Chambers, Civic Center, 1175 East Main Street, Ashland, Oregon, THE PEOPLE OF THE CITY OF ASHl.AND DO ORDAIN AS FOLLOWS: SECTION 1. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2. The land described in the attached Exhibit "A" is declared to be annexed to the City of Ashland. SECTION 2. The land described in the attached Exhibit "A" is declared to be withdrawn from Jackson County Fire District No 5, pursuant to the provisions of ORS 222.111. The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C) of the City Charter on the_day of , 2007, and PASSED and ADOPTED the day of , 2007. Barbara Christianson, City Recorder SIGNED and APPROVED the _day of ,2007. 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Tax Lot 110,1 ['hat trad llf land dcscrihed within Instrument No_ 2005-032764 \If the Official Records of Jackson County, Oregon. along with that portion ol"thc Central Orcg'lI\ & Pacific Railroad right (lr way (f(mncrly Southern Ilacillt: Company) as slHlwn Oil SIII"CY I'(l. 1970 J. \11l file in the ollie\.' of the Jackson County Surveyor, said Iract lying situate within the NOIthcast ()uancf of Sediun )il, Township 19 South, R;mge 1 East of the Will(lmdlc Meridian in Jackson ('ounty. Oregon. more particularly descrihed and hounded as follows, 10 wit; Commencing at the northeast corner ofthc Southwest ()uartcr of the Nurthcasl ()uartcr of SectIOn 14, Township 39 South, Range] East, of the Wil1ameltc Meridian ill JaLkson County. Orcf!.on: thence South 89044'33" West (Deed Record South 8lr~5'16" We~,ll. along the nnrthcrly bnt1lldary of those parcels scl forth in Volume 309, Page 375, and VolulTle 335, Page _121 of the Deed Rccords of said County, 126.28 feet to a 5/8 inch iron pin along the southwesterly right of way of Interstate Highway No.5, for the True Point of Ikginning: tht:nct.' continuing South X9"44':)J" West, along said descrihed parcel, :) \ L74 fed (()et:d Rt."cord Snllth 8lf 45'\6" West 111.72 feet) to a 5/8 inch iron pin at the northwest corner then:oL thence South 00"02'07" WesL <llong the west line of said parcels, 692_15 feet (Deed Recnrd Soulh O(),,02' 16" West 692_15 kd), to a S/8 inch iron pin; thence continuing South 00002'Or West 66.'11 feet to a 5/8 inch iron pin on the northeasterly line orlhe 100 root wide deeded ri~ht of way or the CClltral OR'gOB and Pacilic Railroad (fonnedy Snuthern Pacific Railroad), as dt:scrihed wilhin VnlulIll" 16, Page 205 of the Deed Records in said County; thCfl(~t: continuing South 00"02'OT West 135_01 fed to the southwesterly deed record right of way of said Railroad; thence li111()"-lng said snuthwesterly righl of way the following courses: J80.24 feet along the arc of a 2M H_9) fool radius curve to (ht: lelt, having a ddta angle of0704tl'22" (Chord bearing North 50'':~,1-,18'' West, 179.95 feel) 10 a point of spiral curvature; thence along the arc ora spiral curve tn tht: Icn (Chord bearing North 54"50'5:1" West, Q0.38 fed), to a point oftangent:y; thence North 55' 11'51" West 64J.09 feet to thl: north-south centerline of said Sl"ction 14: thcnct: North OO"O~'12" I'",ast, kaving said southwesterly right of way and along said Section cenlerlinc, 1 ~G.58 fed to the southwesterly line ()f Ashland Business Park Subdivision: thence South 550 II 53" l;,ast, along said southwesterly line, being parallel with and 100.00 feet at right angles to said Railnlad centerline, 169.90 fed to a 5/8 inch iron pin at the most southerly corner thereof; thence along the southeasterly lines or said Subdivision the following, courses: North 60002' 16" East. 298.88 feet to a 5/8 ineh iron pin (Deed Record North 60"02'33" I.:ast, 298_64 feel); thence North 89"58'49" Fast. 159.15 fed to a 5/l{ inch iron pin (Deed Record East, 159.24 feet); thence North 06"41 '00" Fast, 42.30 fed to a 5/8 inch iron pin (Deed Record North 06050'20" East, 42.30 feel); thell\:t: North 89"59'37" East. leaving said southeasterly subdivision line, 621.]0 feel to a 5/8 inch iron pin on the southwesterly line of Inters tale 5 (Deed Record North 89059'51" East, 622_96 1"cel) : thence South 26036'56" I;,ast. .17.56 feci (Deed Record South 26011 '00" East. 47.6' ICel) to the Point of Beg.inning_ Shawn Kampmanll Pnlfesslonal Land SurveYl1r c l f, :r~'--i<'~~"l ,.-'.f" , '.f .....r,. Prepared hy: r F Polaris I.and Surveying I.[.C 1'_0. Box 459 Ashland. Oregon 97520 (54i)4~2-S()09 sh--J~- ,.~ ..__..~~,_..........Y._' '_._"'~~ _,"_-'--"r<=~'=c-~ '>J' ""-E , ~ " J{enewal [)alc(,{I()/09 Dale: June 18,2007 s '''U1,'cys\I~5-()6\BKAMMO ^JlIlc~alj(l" I ,cgal.doc 1",,4' ~ ~ ;, 1 ~ " ,. ,.. ii r; ~ i :.' t ;.' {J .\,' 'ir ",(1(:," 1'_', j11 ..1/'/' ,.J ,9:7 M('I CITY OF ASHLAND ENGINEERING DIVISION IRREVOCABLE CONSENT TO ANNEXATION The undersigned, referred to in this document as "Owner" whether singular or plural, owns or is the purchaser under a recorded land sale contract of real property in Jackson County, Oregon, described below and referred to in this document as "the property": See attach~d Exhibit "A" In consideration of the application for annexation and subsequent connections from the property to City of Ashland services, Owner declares and agrees that the property shall be held, sold, and conveyed subject to the following covenants, conditions, and restrictions which shall constitute covenants running with the land and shall be binding on all parties, their heirs, successors and assigns, having any right, title, or interest in the property or any part thereof: Whenever a proposal to annex the pr'operty is initiated by the City of Ashland or otherwise, Owner shall consent and does consent to the annexation of the property to the City of Ashland. Owner agrees this consent to annexation is irrevocable. Dated this~ day of ~ ,2006. Signature: ~ -----., , Owner State of Oregon ) ) ) 5S: County of Jackson ~ {(fl., (:/ :h<4M.S.~HC1'(;md acknowledged the foregoing ed~_ Personally appeared the above named instrume . OFFICIAL EAL MELODY R DE KORT~ ' NOTARYPUBUC-OREc.: - . COMMISSION NO. 372720 MY COMMISSION EXPIRES SEPTEMBER t). 2,,) (c:\ellgiJleer\.doc) ~..... . ". '...-..j[ ..o' ;~..-. 111 -. .~. ~ M/-\Y _ d Ii i~ ~ ; C;r'j '\',' ,:' ~'f'I'~I'-'I'.' :f ." - ~ ; . '" , ~ __ ~ OFio'd 0\....11, i 'J)! r~' Planning Department 51 Winbe ,Way, Ashland, Oregon 97520 541-488-5305 Fax 541-552-2050 wwwashland,oru!, TTY 1-800-735-2900 CITY OF ASHLAND PLANNING ACTION: #2006-00366 SUBJECT PROPERTY: Jefferson Street OWNER/APPLICANT: Craig Bramscher DESCRIPTION: Request for Annexation, Comprehensive Plan and Zoning Map change from Jackson County zoning RR-5 (Rural Residential) to City of Ashland zoning M-1 (Industrial) and E-1 (Employment) for an approximately 8.43-acre parcel located on Jefferson Ave. The application is to develop a specialty automobile design, research, fabrication, and assembly campus in phases. The completion of Jefferson Avenue is required to serve the site. COMPREHENSIVE PLAN DESIGNA nON: Industrial and Employment; PROPOSED ZONING: M-1, E-1; ASSESSOR'S MAP#: 391E 14A; TAX LOT: 1104. ASHLAND CITY COUNCIL MEETING: May 16, 2006, 7:00 PM, Ashland Civic Center --'.,~'" ,.--/ , . ---------~ . ..-----'/ ,., I ';;>\ ,! ~!.~,>,i , <'!!,' '< ! ! ! , J flLANNING AcnoN If2OOf.OO3l!i6 l.-.rIt:fttONAVE ....CTPlltONRTV i-------- , l_ '-- ''-.,'-- -------'-., ""-----.., 1 " , ,..1 ''--. --, '-., _.N Notice is hereby given that a PUBLIC HEARING on the following request with respect to the ASHLAND LAND USE ORDINANCE will be held before the ASHLAND CITY COUNCIL on meeting date shown above, The meeting will be at the ASHLAND CIVIC CENTER, 1175 East Main Street. Ashland. Oregon, The ordinance criteria applicable to this application are attached to this notice. Oregon law states that failure to raise an objection concerning this application, either in person or by letter, or failure to provide sufficient specificity to afford the decision maker an opportunity to respond to the issue, precludes your right of appeal to the Land Use Board of Appeals (LUBA) on that issue. Failure to specify which ordinance criterion the objection is based on also precludes your right of appeal to LUBA on that criterion. Failure of the applicant to raise constitutional or other issues relating to proposed conditions of approval with sufficient specificity to allow this Commission to respond to the issue precludes an action for damages in circuit court. A copy of the application, all documents and evidence relied upon by the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost, if requested. A copy of the Staff Report will be available for inspection seven days prior to the hearing and will be provided at reasonable cost, if requested. All materials are available at the Ashland Planning Department, Community Development and Engineering Services, 51 Winburn Way, Ashland, Oregon 97520. During the Public Hearing, the Chair shall allow testimony from the applicant and those in attendance concerning this request. The Chair shall have the right to limit the length of testimony and require that comments be restricted to the applicable criteria. Unless there is a continuance, if a participant so requests before the conclusion of the hearing, the record shalf remain open for at least seven days after the hearing. In compliance with the American with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Administrator's offtce at 541-488-6002 (TTY phone number 1-800-735-2900). Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting, (28 CFR 35,102,-35,104 ADA Title I), If you have questions or comments concerning this request, please feel free to contact the Ashland Planning Department, at 541-488-5305. 1..3. 1J:\comm-aev'.plllnmng'.,Notlce;MlI1 ouncil Annex_Brammo 5-!6-06.doc City of Ashland, Oregon - Agendas And Minutes Page 3 of? environment. She stated the main issue with the dirt road Is the dust, however the residents have been able to deal with this on their own and there are alternatives to paving that would solve the problem In a more thrifty and sustainable way. She stated that paving heats the environment and the fiscal Impact of this LID would be a real burden to some of the property owners. Jared Cruce/l030 Park Street/Stated this project contradicts the Historic Preservation Proclamation presented tonight and noted the majority of the resJdents do not support this LID. He asked that the LID evaluation be completed and commented on the division this has caused In the neighborhood. Mr. Cruce stated the improvements would not be financially beneficial to his property and explained that he purchased his property because of the quaint feel. He stated the dust affects a small minority of the property owners however this issue could be solved In other ways and requested the Council not accept this proposal. Peter Dragula &. Patricia Aguinaga/l024 Park Street/Mayor Morrison read aloud the letter submitted to the Council, which voiced objections to the LID. ,*Wrltten testlmonv was submitted Into the Dubllc recot's[, Mayor Morrison noted that written testimony was also received from: Michael &. Margaret Gerrard/l060 Park Street/*Wrltt@n testlmonv was submitted Into the Dublle record. Councilor Hartzell arrived at 7; 55 p. m. Peter Berney/l070 Plaza/Stated the alley creates an enormous amount of dust and noted the issue of mud In the wintertime. Mr. Berney voiced his support for the LID and asked the Coun-:::II to proceed with this project. Art Bullock/791 Glendower/Submitted written materials to the Council and explained that he had surveyed the neighborhood and the Information submitted shows the results of that survey. He stated he was able to contact all of the property owners and 11 of the 16 object to the LID. He explained this constitutes an official remonstrance and prevents the Council from taking a vote. He stated the owners would like the dust problem solved, but do not feel this LID is the best way to solve this issue. !.W.dtte:n materials were submitted Into the nubile recorQ.., Thomas Knudsen/l044 Park Street/Mayor Morrison read aloud the letter submitted to the Council, which voiced objections to the LID. *Written testimony was submitted into the nubile recont. Public Hearlna Closed: 8:05 p.m. City Attorney Mike Franell asked to examine the documents submitted by Mr. Bullock. Mr. Olson clarified the maximum cost per unit is capped at $4,911. In regards to Mr. Eadie's concern, he clarified the design would match the driveway to the paved street and they would excavclte if necessary. Abstentions. Conflicts of Interest. Ex Parte Contact Councilor Silbiger, Amarotlco, Jackson and Chapman declared site visits. Councilor Hartzell questioned if coming in late would disallow her participation in this decision. Mr. Franell stated It might not be necessary to make that determination and requested time to review Mr. Bullock's documents. Council Dellb@ratlon Mr. Olson clarified the storm drain systems of the surrounding area for Council. He also commented on the estimated assessment and clarified that staff estimated high in order to compensate for increasing construction costs and stated It Is impossible to make a precise estimate without a final design. It was questioned If concrete could be used Instead of asphalt. Mr. Olson stated that this has never been done before and explained concrete would be expensive and difficult to maintain. Mr. Olson clarified in the event the project costs exceed the estimate, the property owners could not be assessed an additional 10% because of the cap. Mr. Franell completed his review of the submitted materials and explained that more than 2/3 of the property owners have objected to the LID and this constitutes a legal remonstrance. tie said pursuant to the Ashland MunIcIpal Code the Council cannot move forward wIth this LID for at least six months. Mr. Franell provIded an explanation of how he determined this to be an effective remonstrance and suggested the Council move on to the next agenda item. He also clarified that Ashland Municipal Code B.20.0S0(c) allows for a property owner to remonstrate against the LID, even If they had previously signed an agreement waiving their right to remonstrate against improvements. 2. Public Hearing Regarding Planning Action 2006-00366 . Annexation, Comprehensive Phm and Zoning Map change from Jackson County zoning RR-S (Rural Residential) to City of Ashland zoning M-l (Industrial) and E-l 7)ZtAJc7,. (fS/; Ce. /OC ("'.'0' ",n," ,. http://www.ashland.oLus/ Agendas.asp?Display=Minutes&AMID=263 I &Print=True 7/24/2006 ) ;f./ City of Ashland, Oregon - Agendas And Minutes Page 4 of7 (Employment fOf an .pproxlmately 8.43 acre parcel louted at the southern terminus of Jefferson Avenue, Immediately north of the railroad tracks and west of Interstate 5. Mayor Morrison read aloud the publlc hearing procedure for land use hearings. .e.ubllc Hearlna ODen: 8:40 p.m. Abstentions. Conflicts of Interest. Ex Parte Contact Councilor Jackson declared a site visit and stated she was present at the Planning Commission meeting when this planning action was reviewed. Councilor Hartzell noted severat months ago she had a conservation with former City Administrator Gino Grimaldi regarding a possible OECDD grant. It was clarified the Council previously voted to support the Cit'{'s application on Mr. Bramscher's behalf to receive grant funds from OECDD. Mayor Morrison stated he had visited the current location of Brammo Motor Sports and talked with Mr. Bramscher, however this visit would not affect his ability to remain unbiased. Staff ReDort Interim Community Development Director Bill Molnar explained this is a request for an annexation and zone change for an approximately 8-acre parcel located off Jefferson Avenue. The property is located within the City's Urban Growth Boundary and abuts city limits on three sides. Mr. Molnar noted that the Comprehensive Plan identifies the future zoning of the property as a mix of Industrial (M~l) and Employment (E-l) districts. In April, the Planning Commission reviewed and granted the Site Review and Physical Constraints Permit for the creek on the property. Mr. Molnar explained all city facilities are available, are a logical extension along Jefferson Avenue, and stated Jefferson would be Improved to City street standards. He noted the street width would be reduced where It crosses the creek and riparian area, and rather that culverting the creek, a bottomless crossing deSign would be used. Mr. Molnar stated the Planning Commission found by an 8-to-l vote that the application met the land use approval criteria for annexation and staff recommends the Council approve the request for annexation. Mr. Molnar submitted four additional conditions from staff and recommended they be Included If the Council chooses to approve this request. Mr. Molnar clarified the Applicant considered the proposed changes to the Riparian Ordinance in their design and are proposing a 20 ft. buffer from the creek bank and a bottomless design for the crossing in order to maintain the natural creek bed. Mr. Molnar stated the crossing deSign would withstand a lOO-year flood and noted the Applicant has Identified approximately 30 trees to add to the riparian area. ADDllcant Craig Bramseher/7118 Highway 66/Explained his business is growing rapidly and stated he would like to keep this business and jobs in Ashland. He stated his business provides a high range of jobs and explained he is working with Rogue Community College and has utilized State funds In order to train local residents. He explained his business sales are primarily done over the Internet; however they do have customers who come and visit Ashland. Mr. Bramscher requested Council's approval and stated if he cannot get this approved, he will be forced to move his business out of Ashland and does not want to do this. Gary Caperna/Batzer Design/Explained that he is part of the deSign team for this project and stated the design would alleviate the circulation problems on Jefferson Avenue. He added this project seems like an obvious addition to the City. Mr. Bramsher noted he supports the four additional conditions proposed by staff. Councilor Jackson/Amarotleo m/s to extend public hearing to 9:30 p.m. Those WishinG to Provide Testlmonv Aaron BenJamin/740 Emigrant Creek Road/Stated this is a wonderful opportunity for the City to add new jobs to Ashland and strengthen the City's economic base, but urged the Council to consider the impact this annexation will have on the City's work force housing inventory. Paul Kay/1234 Strawberry Lane/Voiced his support for this request and stated the technical intelligence of the community will be benefited from this project. He stated this would be a wondE~rful asset to the community and commented on the work habits and work environment of this company. Mr. Kay voiced his support for the Brammo proposal and stated he sees no reason not to approve it. Staff ResDonse Mr. Molnar clarified the zoning allows for a housing overlay, however neither the Applicant nor staff are proposing an overlay at this time. /; 5//0(. C'I'<<>,,, c. http://www .ashland.oLus/ Agendas.asp?Display=Minutes&AMID=263I &Print=True 7/2412006 &It -G?l(< liZ, City of Ashland, Oregon - Agendas And Minutes Page 5 00 ADDlicant's Rebuttal Mr. Bramscher stated that the housing Issue Is a concern for him as well and noted he has employees who want to move to Ashland. He noted he had considered addressing this on the El portion of the parcel, however did not want to cause delays tn the application process by requesting a residential overlay. Mr. Bramscher stated this Is something he would consider and stated there are other pieces of land he has considered acquiring for employee housing. He explained the philosophy of the business and noted they are exploring an electric version of their vehicle. He stated this business could bring notoriety to Ashland and noted that GM had recently visited their manufacturing plant. Public Hearing Closed: 9:10 p.m. Councilor Chapman requested a formal way to evaluate the cost/benefit analysis for annexations; however stated in this case It is clear this is a benefit to the City. Councilor Hartzell/Chapman m/s to approve the request for Annexation, Zone Change and withdrawal from Jackson County Rural Fire District 5 of an approximately 8.43-acre parcel located at the southern terminus of Jefferson Avenue, Immediately north of the railroad tracks and west of Interstate 5; with the additional conditions proposed by the staff. Roll Call Vote: Councilor Hardesty, Amarotico, Hartzell, Jackson, Sllblger and Chapman, YES. Motion Passed. PUBLIC FORUM Ambuja Rosen/Commented on a pOSSible tethering ordinance and asked that the City adopt an ordinance of their own. She provided a recap of what she discussed at the previous Council meetings and shared an experience she had with a chained animal at Emigrant lake. She stated that chained dogs are a blight on Ashland's landscape and explained why she Is campaigning for this ordinance. Bill Emerson/90 Fifth Street/Requested he be given time on a future agenda to discuss the Downtown Plaza Area Plan and Items that were not completed. He stated that only a portion of the des,ign was Implemented and many problems the City now faces regarding the Plaza area are a result of this not being completed. Mayor Morrison suggested that Mr. Emerson contact him to discuss his request. Tracy Harding/334 Bridge Street/Commented on the success of the Bike Swap and noted the money raised would be used for bicycle education. She suggested the Ashland Police Department consider having more officers on bicycles and commented on the Walking Wednesday program at Walker Elementary. NEW AND MISCELLANEOUS BUSINESS 1. Interim Police Chief Contract. Councilor Hardesty stated he would have preferred to have been provided with more information. Mayor Morrison commented on the process and explained that a selection committee, which included two councilors, was formed and Interviewed the three candidates for Interim police chief. He stated the City needs to have an interim chief in place while the search for the permanent replacement is conducted. Mayor Morrison explained why Mr. Goodpastor was selected and commented on his experience as a successful chief and the community-policing program he established in Tigard. Councilor Hartzell voiced her concern with the lack of clear direction from the Council on where the Police Department needs to be head~d. She requested strong communication on behalf of the Mayor regarding a plan and a timellne for how to move forward with hiring a permanent police chief and expressed her interest in participating in this process. She also requested that the Mayor not accept Mr. Goodpastor's offer to assist in selecting the permanent replacement. Mayor Morrison clarified that both Councilor Hartzell and Sllbiger were part of the selection committee, and stated this process was done openly. He explained why Mr. Goodpastor was the best fit of the three and requested Councils approval of this apPOintment. He added the City would have an open process involving the community for selecting the permanent replacement. Councilor Jackson/Sllblger m/s to accept the recommendation of the Selection Committee to appoint Ronald Goodpastor as Interim Police Chief. DISCUSSION: Councilor Hartzell briefly commented on her request for open communication as this issue moves forward. Mayor Morrison clarified that candidate resumes are confidential, but are always available for viewing by the Council through the Personnel Department. Roll Call Vote: Councilor Hardesty, AmarotJco, Jackson, SlIbiger and Chapman, YES. Councilor Hartzell, NO. Motion Passed 5-1. Mr. Tuneberg commented on the items remaining on the agenda and the amount of time left In the meeting. 2. Adoption of Findings for Planning Action 2006-00069 - Rear Yard Variance for the Property Located at 758 B Street. Interim Community Development Director Bill Molnar explained this is the adoption of the findings for the Council's denial of a rear yard variance for the property located at 758 B Street, applicant Philip Lang. He noted the Public Hearing was held on April 18, 2006 and additional deliberations on May 2, 2006 where the Council found the application did not meet the approval criteria for the variance. Staff recommends the Council adopt the findings are presented. http://www .ashland.oLus/ Agendas.asp?Display=Minutes&AMID=2631 &Print=True 7/24/2006 City of Ashland, Oregon - Agendas And Minutes Page 6 of? Councilor Amarotico requested he be allowed to abstain from voting on the FIndings, sInce he did not vote on the planning action. Councilor Jackson/Sllblger m/s to allow Councilor Amarotleo to abstain from the yote. Voice Vote: Councilor Jackson, SlIblger and Chapman, YES. Councilor Hardesty, NO. Councilor Hartzell was out of the room. Motion Passed 3-1. Councilor Jackson/Chapman m/s to adopt the Findings for Planning Action 2006-00069. Roll Call Vote: Councilor Hartzell, Jackson, SlIblger and Chapman, YES. Councilor Hardesty, NO. Councilor Amarotleo, Abstained. Hotlon Passed 4-1. ORDINANCES. RESOLUTIONS AND CONTRACTS 1. Reading bV title only of, "An Ordinance Amending the Ashland Municipal Code Relating to Business Licenses Amending Chapter 6.04 Sections 6.04.080, 6.04.090, 6.04.120 and 6.04.130". Administrative Services Director Lee Tuneberg explained this is an update to the ordinance for business licenses. He requested Council's approval and stated this amendment would provide sufficient funds to cover the work that Is being done and would also provide continuing Information on employment statistics. Mr. Tuneberg clarified the City uses an honor system regardinl~ the employee counts listed by businesses. He stated the City does not have enough staff to go out and perform audits, however they are considering utilizing the audit firm to do samplings. He clarified the amendment would help to cover the City's costs of administering the program and stated the inherent purpose of the program is to regulate business within the community. Councilor Hartzell/ Amarotico m/s to approve first reading and move to second reading of ordinance. Roll Call Vote: Councilor Hardesty, Amarotico, Hartzell, Chapman, Silbiger, YES. Councilor Jackson was out of the room. Motion Passed 5-0. 2. Reading by title only of, "A Resolution Authorizing the Amendment of the Fire Protection Plans Review and Inspection Fee Schedule Adopted by Resolution 05-30". City Attorney Mike Franell explained that in reviewing the codes, staff recognized the current ALUa has the partition section in a separate section from subdivisions, and staff has brought forward this resolution to add the review of partition plats as something that a fire review fee can be administered on. Mr. Franell noted a correction that needed to be made to the proposed resolution, and stated it is missing Section 2, which would read "This resolution shall be effective upon Signing by the Mayor." Staffs recommendation is to adopt the resolution as amended. Councilor Hartzell/Jackson m/s to adopt Resolution #2006-09 as amended. Roll Call Vote: Councilor Hardesty, Amarotlco, Hartzell, Jackson, SlIblger and Chapman, YES. Motion Passed 6-0. 3. Authorization to Dispose of Surplus Property In Excess of $10,000. Administrative Services Director Lee Tuneberg noted this item was postponed at the last Council Meeting due to time constraints. He explained the requirement that states if the property has a residual value greater than $10,000, the City Council's authorization is required. Mr. Tuneberg noted the total value of this surplus property is just under that amount and requested Council's approval to dispose of the surplus property. Mr. Tuneberg clarified the items listed as "miscellaneous computer equipment" do not have much value and would require repairs to get them in working order. Several suggestions were made I'egarding the disposal of the computer equipment, including donating it to the Senior Program or hurricane stricken areas, or giving it to a recycling firm in Phoenix. Councilor Jackson/Hartzell m/s to approve the disposal ,of surplus property. Voice Vote: all AYES. Motion Passed. NEW AND MISCELLANEOUS BUSINESS (Cont.) 2. . ALUO 18.68.050 Interpretation. City Attorney Mike Franell explained this issue arose when a proposed project in the downtown area took advantage of a peculiarity in the code regarding setbacks. He explained 18.68.050 provides for a special setback along arterials and divides the arterials into two categories. For the two named arterials (East Main Street between City limits and Uthia Way, and Ashland Street between City limits and Siskiyou Boulevard), there is a setback that is provided from the centerline of the road in which a person cannot build. All the other arterials fall under a second category and the code states front yards for properties abutting all arterial streets shall be no less than 20 ft. with the exception of C-1-D district. Mr. Franell commented on the definition of "front yard" and stated 18.08.420 provides that in the case of an interior lot, the lot line separating the lot from the street other than an alley is the front yard. A corner lot shall have one street tine considered the front rot line and the narrower street frontage shall be the front lot line expect when the Staff Advisor determines topographical or access problems make such a designation Impractical. Mr. Franell explained there Is the provision for the Staff Advisor to make an exception If they determine topographical or access problems exist, however the code does not Indicate whether the "access problem" Is vehicular or pedestrian. He noted the Transportation System Plan Indicates that vehicular access should be on the lesser traveled road where possible. Mr. Franell clarified for Council they are not making an Interpretation speCifically to the parcel mentioned above; the interpretation would be applicable to all properties that fall under this section of the code. He commented that LUBA would likely determine there http://www.ashland.or.us/Agendas.asp?Display=Minutes&AMID=263 I &Print=True 7/24/2006 City of Ashland, Oregon - Agpndas And Minutes Page 7 of? was an Intent for using the term ~front yard" when talking about the non-named arterials as this term Is not used In the named arterials. Mr. Franell stated If the current language does not accomplish the Intent of the Council, they should direct staff to prepare an ordinance amendment that would accomplish the Intent. Comment was made that the yard facing the arterial should be considered the front yard. Mr. FraneH stated this could be, although the natural reading of the ordinance does not lend Itself to this conclusion. Mr. Franell noted if an application came In before changes are made, they would have to Interpret what the ordinance currently means. He also clarified for Council that Option 3 listed under potential motions In the Council Communication would address the issue; however Council would need to clarify whether the interpretation refers to commercial properties, re'sldentiaf properties, or all properties. Councilor Jackson/Hartzell m/s to extend meeting to 10:30 p.m. Colin Swales/461 Allison Street/Shared his concern of an application coming through before this Issue is resolved. He commented on the varying sidewalk widths along lithla Way ,and how this area is substandard. Mr. Swales noted the recommendations contained in the Siegel Report regarding Uthia Way and stated it would be fair to future development projects If this were made clear. Ron Roth/6950 Old 99 S/Stated the real question is what should happen on the north side of Uthfa Way. Mr. Roth questioned why this language does not apply to old buildings (such as thE! Post Office) and why the new Fire Station does not have a 20 ft. setback. He offered his suggestion that Uthia Way should not have a setback. John Fields/845 Oak Street/Commented on the difficulty In answering this issue and stated that piece meat decIsions can create conflict and further complicate the issue. He stated the language IS better being unclear and stated this was an irresolvable decision. He stated the Council could make the language conSistent, but does not believe this would satisfy the 1988 Downtown Plan. Council discussed their options and comment was made voicing support for making an Interpretation so this problem does not arise in the downtown area again. Comment was made noting that modIfying the ordinance would take longer than making an interpretation. Statement was made that following Option 3 would reinforce the Intent of the language until an ordinance change could be made. Councilor Hartzell/ Amarotico m/s that the Council interpret ALUO 18.08.420 Is referring to pedestrian access for all properties when the property Is on a corner lot with one street being an arterial and that consistent with downtown designs standards all corner lots In the downtown overlay area which sit adjacent to an arterial street shall have the front lot line along the arterial street. DISCUSSION: Councilor Hartzell noted that "and" Is included In the motion and feels this effectively separates the two statements. Roll Call Vote: Councilor Hardesty, Amarotico, Hartzell, and SlIblger, YES. Councilor Jackson and Chapman, NO. Motion Passed 4-2. Councilor Hartzell/Hardesty m/s to continue this meetil1lg to Thursday, May 18, 2006 at 6:00 p.m. to discuss the Downtown Plan Update and the Request from Councilor Hartzell to discuss the Proposal for Park Maintenance of School District Playgrounds. DISCUSSION: Councilor Hartzell noted both items are budget related and would like to address them prior to the Budget Committee meeting. Roll Call Vote: Councilor Hardesty, Amarotico, Hartzell, Jackson, SlIblger and Chapman, YES. Motion Passed. 3. Downtown Plan - Phase 1 Council Update. Continued to May 18, 2006 Council Meeting. OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS 1. Request from Councilor Hartzell to discuss proposal for F'ark maintenance of School District Playgrounds. Continued to May 18, 2006 Council Meeting. ADJOURNMENT Meeting was adjourned at 10:30 p.m. April Lucas, Assistant to City Recorder John W. Morrison, Mayor End of Document - Back to Ton http://www.ashland.or.us/Agendas.asp?Display=Minutes&AMID=263l &Print=True 7/2412006 CITY OF ASHLAND July 24, 2006 Craig Bramscher 7118 Highway 66 Ashland, OR 97520 RE: Planning Action #2006-00366 Dear Mr. Bramscher: At its meeting of May 16, 2006, the Ashland City COlIDCil approved your request for an Armexation, Comprehensive Plan and Zoning Map change, for the property located on Jefferson Avenue, Assessor's Map # 39 IE 14 A, Tax Lot 1104. The Findings, Conclusions and Orders document, adopted by the Council on July 19, 2006, is enclosed. Please note the fOllow~irc~ems: I. A fmal map prepared by a registered surveyor must be submitted within one year of the date of preliminary approval; otherwise, approval becomes invalid. 2. A final plan must be submitted within 18 months of the date of preliminary approval; otherwise, approval becomes invalid. @ All of the conditions imposed by the Ashland City Council must be fully met. ~. ) Ashland City Council approval is valid for a period of one year only, after which time a new application ~ would have to be submitted. Please feel free to call me at 488-5305 if you have any questi~ns; "-,:::> ( Interim Planning Direction Enclosure cc; Gary Caperna, Batzer Construction, 190 N. Ross Lane, Medford, OR 97501 Aaron Benjamin, 740 Emigrant Creek Road, Ashland, OR 97520 Paul Kay, 1234 Strawberry Lane, Ashland, OR 97520 DEPT. OF cm.UNITY DEVELOPMENT 20 E. Main Slr8et Ashland, 0Ieg0n 97520 _.ashland.Dr.us Tel: 541-488-5305 Fax: 541-552-2059 TTY: 800-735-2900 r~' BEFORE THE ASHLAND CITY COUNCIL Jackson County, Oregon May 16, 2006 IN THE MA TIER OF PLANNING ACTION #2006-00366, Request for Annexation, Comprehensive Plan and Zoning Map change from Jackson County zoning RR-5 (Rural Residential) to City of Ashland zoning M-I (Industrial) and E-I (Employment) for an approximately 8.43-acre parcel located on Jdferson Ave. The application is to develop a specialty automobile design, research and fabrication and assembly campus in phases. FINDINGS, CONCLUSIONS AND ORDERS APPLICANT: Craig Bramscher --------------------------------------------------------------------------------------------------------- RECITALS: I) Tax lot 1104 of391E 14A is located at the southern terminus ofJefferson Avenue, immediately north or and adjacent to the railroad tracks and west ofInterstate 5. 2) The applicant is requesting Annexation, Comprehensive Plan and Zoning Map change from Jackson County zoning RR-5 (Rural Residential) to City of Ashland zoning M-I (Industrial) and E- I (Employment) for an approximately 8.43-acre parcel. The application is to develop a specialty automobile design, research and fabrication and assembly campus in phases. 3) An annexation may be approved if the proposed request for annexation conforms, or can be made to conform through the imposition of conditions, with the following approval criteria described in 18.106.030- Approval Standards. A. The land is within the City's Urban Growth Boundary. B. The proposed zoning for the annexed area is in conformance with the designation indicated on the Comprehensive Plan Map, and the project, if proposed concurrently with the annexation, is an allowed use within the proposed zoning. C. The land is currently contiguous with the present City limits. D. Adequate City facilities for the provision of water to the site as determined by the Public Works Department; the transport of sewage from the site to the waste water treatment plant as determined by the Public Works Department; the provision of electricity to the site as determined by the Electric Department; urban storm drainage as determined by the Public Works Department can and will be provided to and through the subject property. Unless the City has declared a moratorium based upon a shortage of water, sewer, or electricity, it is recognized that adequate capacity exists system-wide for these facilities. Ashland Council Findings P A 2006-00366 June 20"', 2006 Page I 0[6 E. Adequate transportation can and will be provided to and through the subject property. For the purposes of this section "adequate transportation' for annexations consists of vehicular, bicycle, pedestrian and transit transportation meeting the following standards: 1. For vehicular transportation a 20' wide paved access exists, or can and will be constructed, along the full frontage of the project site to the nearest fully improved collector or arterial street. All streets adjacent to the annexed area shall be improved, at a minimum, 110 a half-street standard with a minimum 20' driving surface. The City may, after assessing the impact of the development, require the full improvement of streets adjacent to the annexed area. All streets located within annexed areas shall be fully improved to city standards. Where future street dedications are indicated on the City's Street Dedication Map or required by the City, provisions shall be made for the dedication and improvement of these streets and included with the application for annexation. 2. For bicycle transportation safe and accessible bicycle facilities exist, or can and will be constructed. Should the annexation be adjacent to an arterial street, bike lanes shall be provided on or adjacent to the arterial street. Likely bicycle destinations from the project site shall be determined and safe and accessible bicycle facilities serving those destinations shall be indicated. 3. For pedestrian transportation safe and accessible pedestrian facilities exist, or can and will be constructed. Full sidewalk improvements shall be provided on one side adjacent to the annexation for all streets adjacent to the proposed annexed area. Sidewalks shall be provided as required by ordinance on all streets within the annexed area. Where the project site is within a quarter of a mile of an existing sidewalk system, the sidewalks from the project site shall be constructed to extend and connect to the existing system. Likely pedestrian destinations from the project site shall be determined and the safe and accessible pedestrian facilities serving those destinations shall be indicated. 4. For transit transportation, should transit service be available to the site, or be likely to be extended to the site in the future based on information from the local public transit provider, provisions shall be made for the construction of adequate transit facilities, such as bus shelters and bus tum-out lanes. All required transportation improvements shall be constructed and installed prior to the issuance of a certificate of occupancy for any new structures on the annexed property. F. For all residential annexations, a plan shall be provided demonstrating that the development of the entire property will ultimately occur at a minimum density of 90% of the base density for the zone, unless reductions in the total number of units is necessary to accommodate significant natural features, topography, access limitations, or similar physical constraints. The owner or owners of the property shall sign an agreement, to be recorded with the county clerk after approval of the annexation, ensuring that future development will occur in accord with the minimum density indicated in the development plan. For purposes of computing maximum density, portions of the annexed area containing undevelopable areas such as wetlands, floodplain corridor lands, or slopes greater than 35%, shall not be included. G. For all annexations with a density or potential density of four residential units or greater and involving residential zoned lands, or commercial, employment or industrial lands with a Residential Overlay (R-Overlay): Ashland Council Findings P A 2006-00366 June 20'h, 2006 Page 2 of 6 1. 35% of the base density to qualifying buyers or renters with incomes at or below 120% of median income; or 2. 25% of the base density to qualifying buyers or renters with incomes at or below '100% of median income; or 3. 20% of the base density to qualifying buyer., or renters with incomes at or below 80% of median income; or 4. 15% of the base density to qualifying buyers or renters with incomes at or below 60% of median income; or 5. Title to a sufficient amount of buildable land for development is transferred to a non-profit (IRC 501 (3)(c)) affordable housing developer or comparable Development Corporation for the purpose of complying with subsection 2 above. The land shall be located within the project and all needed public facilities shall be extended to the area or areas proposed for transfer. Ownership of the land shall be transferred to the affordable housing developer or Development Corporation prior to commencement of the project. The total number of affordable units described in this section G shall be determined by rounding down fractional answers to the nearest whole unit. A deed restriction, or similar legal instrument, shall be used to guarantee compliance with affordable criteria for a period of not less than 60 years. Properties providing affordable units as part of the annexation process shall qualify for a maximum density bonus of 25 percent. H. One or more of the following standards are met: 1. The proposed area for annexation is to be residentially zoned, and there is less than a five-year supply of vacant and redevelopable land in the proposed land use classification within the current city limits. "Redevelopable land" means land zoned for residential use on which development has already occurred but on which, due to present or expected market forces, there exists the likelihood that existing development will be converted to more intensive residential uses during the planning period. The five- year supply shall be determined from vacant and redevelopable land inventories and by the methodology for land need projections from the Housing Element of the Comprehensive Plan; or 2. The proposed lot or lots will be zoned E-1 or C-1 under the Comprehensive Plan, and that the applicant will obtain Site Review approval for an outright permitted use, or special permitted use concurrent with the annexation request; or 3. A current or probable public health hazard exists due to lack of full City sanitary sewer or water services; or 4. Existing development in the proposed annexation has inadequate water or sanitary sewer service; or the service will become inadequate within one year; or 5. The area proposed for annexation has existing City of Ashland water or sanitary sewer service extended, connected, and in use, and a signed "consent to annexation" agreement has been filed and accepted by the City of Ashland; or 6. The lot or lots proposed for annexation are an "island" completely surrounded by lands within the city limits. (ORD 2792,1997; ORD 2895,2003) 4) The Ashland City Council, following proper public notice, held a Public Hearing on May 16,2006, at which time testimony was received and exhibits were presented. The Council approved the application for Annexation subject to conditions pertaining to the appropriate development of the site. Now, therefore, City Council of the City of Ashland finds, concludes and recommends as follows: Ashland Council Findings P A 2006-00366 June 20"', 2006 Page 3 of6 SECTION I. EXHIBITS For the purposes of reference to these Findings, the attached index of exhibits, data, and testimony will be used. Staff Exhibits lettered with an "S" Proponent's Exhibits, lettered with a "P" Opponent's Exhibits, lettered with an "0" Hearing Minutes, Notices, and Miscellaneous Exhibits lettered with an "M" SECTION 2. CONCLUSORY FINDINGS 2.1 The City Council finds that it has received all information necessary to make a decision based on the Staff Report, public hearing testimony and the exhibits received. 2.2 The City Council finds that the proposed Annexation, Comprehensive Plan and Zoning Map change from Jackson County zoning RR-5 (Rural Re:sidential) to City of Ashland zoning M-I (Industrial) and E- I (Employment) for an approximately 8.43-acre parcel meets the approval criteria for an Annexation as described 18.108. The property is contiguous to Ashland's city limits as the site is bounded by Ashland's city limits on its west, east and south sides. The proposed zoning is consistent with the adopted Comprehensive Plan Designations. Specifically, the portion of the property north ofthe railroad tracks and south of the Jefferson Avenue street extension will be included within the M-l, Industrial Zoning District, while the portion of the property north of Jefferson Avenue will be included within the E-l, Employment Zoning District. 2.3 The City Council finds that adequate City facilities for the provision of water to the site as determined by the Public Works Department; the transport of sewage from the site to the waste water treatment plant as determined by the Public Works Department; the provision of electricity to the site as determined by the Electric Department; urban storm drainage as determined by the Public Works Department can and will be provided to and through the subject property. Specifically, the preliminary utility plan identifies finds that provisions have been made to adequately serve the project by public facilities. Such public facilities and utilities have been identified on a site plan and discussed in the application's written findings of fact. Specifically, water, sewer, electric and storm drain utilities are currently available in Jefferson A venue and will be extended in conjunction with the improvements to Jefferson Avenue. Jefferson Avenue will be extended through the property and constructed to City Street Standards, ultimately linking the two existing, improved City Street sections Ashland Council Findings P A 2006-00366 June 20~, 2006 Page 4 of6 abutting the east and west boundaries of the project site. Full street improvements are proposed, including two travel lanes, on-street parking, curb and gutter, storm drains and public sidewalks. Additionally, a bridge or box culvert will be constructed to span the seasonal creek that bisects to property. The final segment of Jefferson Avenue will be constructed to City street standards and extended through the property. This represents the logical routing and completion of the street, ultimately providing a continuous link between its intersections with Washington Street both north and east of the project. The The Council finds that the preliminary bridgt: or box culvert crossing design will handle flows resulting from a I OO-year flood event. Further, the crossing and roadway design will reduce disturbance to the creek and adjacent riparian areas through minimizing the need for large fill slopes normally associated with a standard culvert crossing. The road width at the crossing has been narrowed in order to minimize the overall area of disturbance to the riparian area. The proposed width will comprise two travel lanes and public sidewalks, but curbside, on-street parking will be omitted from this segment of street. 2.4 The City Council finds that a the proposed lot or lots will be zoned E-I or C-I under the Comprehensive Plan, and that the applicant has obtained Site Review approval for an outright permitted use, or special permitted use concurrent with the annexation request. At its meeting of April II, 2006, the Planning Commission granted approval ofa Site Review, Physical Constraints Review Permit, Tree Removal Permit and an Administrative Variance to the Site Design and Use Standards for the construction of the first phase of the project, which includes construction of an industrial building approximately 41 ,000 square feet in size, parking areas and landscape installation SECTION 3. DECISION 3.1 Based on the record of the Public Hearing on this matter, the City Council concludes that the application for Annexation, Comprehensive Plan and Zoning Map change from Jackson County zoning RR-5 (Rural Residential) to City of Ashland zoning M-I (Industrial) and E-I (Employment) for an approximately 8.43- acre parcel is supported by evidence contained within the record. Therefore, based on our overall conclusions, and upon the proposal being subject to each of the following conditions, the City Council approves PlarUling Action #2006-00366 with respect to the request for Annexation, Comprehensive Plan and Zoning Map change from Jackson County zoning RR-5 (Rural Residential) to City of Ashland zoning M-I (Industrial) and E-I (Employment) for an approximately 8.43- acre parcel. Further, if anyone or more of the conditions below are found to be invalid, for any reason whatsoever, then Planning Action #2006-00366 is denied. The following are the conditions and they are attached to the approval: I. That all Planning Commission conditions of approval (PA2006-00366) for Site Review, Physical Constraints Review Permit, Tree Removal Permit and an Administrative Variance to the Site Design and Ashland Council Findings P A 2006-00366 June 20", 2006 Page 5 of6 Use Standards for the construction ofthe first phase of the project apply to this decision unless otherwise modified below. 2. That Talent Irrigation District (TID) facilities be identified on the final civil engineering documents and any changes shall be reviewed by the Talent Irrigation District and approved by the Staff Advisor prior to issuance of a Building Permit.. 3. That the engineered construction drawings for Jefferson Avenue shall comply with City of Ashland Street Standards including street lights, pavement width and the installation of public sidewalks. Engineered construction drawings for the Jefferson Avenue improvements shall be submitted for review and approval by Ashland Planning and Public Works Departments prior to issuance of a building permit. The costs associated with the design and installation of street improvements shall be guaranteed through a bond or other means acceptable to the City of Ashland Legal Department. The proposed bridge or box culvert creek crossing shall be engineered and designed to accommodate a IOO-year flood flow. All street improvements shall be installed prior to issuance of the certificate of occupancy for a building on the property. That all required street improvements and public utility extensions shall be guaranteed through a bond or other means acceptable to the City of Ashland Legal Department prior to adoption of an ordinance annexing tbe property. 4. A boundary survey and a written description of the property boundaries shall be submitted for review and approval prior to completion of the armexation. 5. That the applicant agrees to construct the project in accordance with the approved plan and City ordinances and waives the right to file a cIlaim under Oregon Statewide Measure 37. The signed waiver shall be submitted to the City of Ashland Legal Department for review and approval prior to adoption of a ordinance formally annexing the property. ~ Dated: 7/jtf~~ Ashland Council Findings P A 2006-00366 June 20'", 2006 Page 60f6 CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dcpt.: Approval: First Reading of an Ordinance Amending the Ashland Municipal Code Chapter 2.04, Rules of the City-Council . ... Novcmbcr 6, 2007 Primary Staff Contact: Ann Scltzer ~ AdministratIon E-Mail: seltzera@asliland.or.us Sccondary Contact: Richard Appicello Estimated Time: 10 minutes Question: Docs thc Council wish to adopt an ordinance amending thc Ashland Municipal Code 2.04 Rules of the City Council" Staff Recommendation: Staff recommends adoption of the proposed ordinance. Background: At the City Council meeting on September 25,2007, thc council reviewed the most recent draft of Rules of the City Council and directed staff to prepare the draft as an ordinance except for the three sections that relate to Commissions, Committecs and Boards (sections 2.04'()90, 2.04.100, and 2.04 110 of the attachcd ordinance). Councilor Chapman has prepared a draft of these sections for council review. Staff was directed to include these sections as placcholdcrs in the revised AMC 2.04 until further review of Chapman's draft. The Council Committee on Rules has met ten times over the past twelve months. The committee reviewed the current language and studied council rules ordinances from other Oregon cities. The group identified areas to expand upon and new language to add. The dran ordinance reflects the input and the language agreed upon by the group over the past year. In addition, the council discussed the meaning of the word inf1uence in Section 2.04.080 and thc meaning of coercion. Some have suggested replacing influence with dircct. Attached is a list of synonyms for 'inf1uence' and 'direct' and infonnation on Oregon statute related on coercion. Staff has made a slight change to section 2.04.070 RIGHTS OF CITIZENS to clarify that an item presented by a citizen during public forum can be added to an upcoming meeting agenda at the request of a councilor. Related City Policies: . Article V1I1, City Charter Council Options: . Pass first reading of the ordinance as written. . Identify changes to the ordinance. Page 1 of 2 11 O() 07 COlJl1Ctl Rules communC1Clllon.doc -.. ._~ Potential Motions: . I move adoption of the ordinance amending the Ashland Municipal Code Chapter 2.04, Rules of the City Council. . I move adoption of the ordinance amending Ashland Municipal Code Chapter 2.04, Rules of the City Council with the identified changes. Attachments: . Ordinance No. An Ordinance Amending the Ashland Municipal Code Chapter 2.04, Rules ofthe City Council. . Synonyms for inOuence and direct and Oregon statutes related to Coercion. . Note from Councilor Cate Hartzell, rc: the use of the word inOuencc. ORDINANCE NO. AN ORDINANCE AMENDING THE ASHLAND MUNICIPAL CODE, CHAPTER 2.04, RULES OF THE CITY COUNCIL WHEREAS, Article 8. Section 3 Council Meetings and Rules of the Ashland City Chartcr provides: The Council shall hold a regular meeting in the City at least once each month at a time and place which it designates. Other meetings may be called as the Council deems necessary, with notice given the Mayor and Council members and the public as provided by ordinance. Minutes of any such special meeting shall be presented at the next regular Council meeting. The Council shall adopt rules lar its proceedings. WHEREAS, the City Council has met ten times over the course of one year to amend Ashland Municipal Code 2.04 Rulcs of the City Council WHEREAS, the City Council intends to further amend Sections 2.04'()90, 2.04.0 I 0 and 2.04.020 of the revised Rules ofthe City Council at a future date, and WHEREAS, the City Council intends with this amendment to replace Ashland Municipal Code 2.04 as set forth helow. THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: Annotated to show deletions and additions to the code sections being modified. Deletions are IiRed through and additions are underlined. SECTION 1: Section 2.04, Rules of the City Council, s hereby amended to read as follows: 2.04 Rules of City Council Section 2.04.010 The Municipal Charter of the Citv, Article VIII Section 3, and the Ashland Municipal Code as well as the Oregon Revised Statut~s govem manv mecting requirements and actions of the Council. AUTHORITY These operatinl': policies and procedures are established and adopted under the authoritv l':ranted in thc Ashland City Charter. Article VIII, Section 3. Section 2.04.020 MEETINGS A. Regular Meetinl':s. The regular sessions of the Council are on the first and third Tuesday of each month unless otherwise arranged, beginning at 7:00 p.m. Mcetings are required to end no later than 10:30 p.m. B. Special Meeting. A special meeting may be called either by the Mayor or two members of the Council. Notice of the time and place of such special meeting and the subiects to be acted upon shall bc delivered to all members of the Council at least 36 hours in advance of the time of the meeting, except in the case of an emergency, and the Council may consider and act only upon such matters as contained in the notice. C. Study Sessions. The Mayor or two memhers of the Council may call a study session at any time with 36-hour noticc for the purpose of in form)nl( memhers onhe Council as to City affairs. Study sessions are held so that Council can confer with staff and other experts on items under consideration that may eventually require official actions. Council may not deliberate towards a decision hut can give staff direction to prepare materials for a regular Council meeting, D. Executive Sessions. Allmeetinl(s of the City Council shall he held in open sessions, except meetinl(s that may be closed for those purposes specified in the Orel(on Public Meetinl(s Law (ORS 192.610 to 1 ()2.690). These purposes include, but are not limited to, the employment and dismissal of public employees, the performance evaluation of the City Administrator and City Attorney, labor nel(otiations, real property transaction nel(otiations. and consulting with legal counsel on pending or threatened litigation. If any Councilors do not feel that an item should be in executive session they should state so in the executive session. Notice of executive sessions shall be given as required by State law and such notice must state the specific provision onaw authorizinl( the session. Unless authorized hy the full Council, the Mayor and City Councilors must maintain the confidentiality of the information discussed in executive sessions. Media representatives are allowed to attend Council executive sessions subiect to the understandinl( that information from such mcetinl(s. which is the proper suhiect of an executive session, will not he reported. Councilors and staff should not discuss executive session matters with the press. followinl( adjournment orthe executive session, because to do so may permit the press to report on the matter. At the commencement of each executive session, the presidinl( officer must state on the record that executive session inforn1ation is confIdential and may not be reported. lfit docs not so specify. the proceedings may he reported. 2 E. Notice ofMcctin'(s. Advance notice of at least 36 hours shall be provided for all meetin'(s. Notice shall be sent to a ncwspaper with '(enerallocal circulation and posted prominently on the City's Web site. In the case of an emer'(eney or when a state of emergency has been declared, public notice appropriate to the circumstances shall be provided and reasons justifyin'( the lack of36-hour notice shall be included in the minutes of such meetin'(. F. Ouorum. As provided in Article VIII, Section 4 of the City Charter, the Mayor and not less than three Councilors, or four Councilors, constitute a quorum. A simple majority of the quorum present determines the action on any motion, question, ordinance, or resolution. On questions requirin'( a two-thirds vote of the Council, as provided in the City Charter, there shall be rcquired an affirmative vote of at least four Councilors to exercise any such spccial powers. If the roll call shows no quorum present, as defined by Section 4 of Article VIII oftbe City Charter, the Councilors in attendance may direct the Chief of Police to notify the absent members, except those known to be unavoidably detained, that their presence is required to enable the Council to proceed with business. Should any thenJail soon to appear, the members present shall adjourn to a date fixed by them and all a'(enda items will be continued to the next regular meeting. G. Emergency Meetin'( Procedures and Ouorum. The City Administrator is responsible for implementation of the Emer'(eney Management Plan. When the City Adm!lIlistrator detcrmines that a state of emer'(eney exists, the administrator will make a declaration to that effect and request the Mayor to call a special meeting of the Council in order to ratify the declaration of emergency. The speeialmeetin'( of the Council will occur as soon as possible after the declaration of emergency. A quorum of the Council may not be possible due to emer'(ency circumstances and is not required for the special meeting. Notice of the special meeting can be made in the most expedient manner determined by the Mayor and need not be 36 hours in advance. H. Robert's Rules of Order. Robert's Rules of Order shall be the authority for the government of the Council during its sessions, when not in conflict with the City Charter and these code rules. Failure to strictly follow Robert's Rules of Order shall not be cause to void or otherwise disturb a decision or action or-the Council. The Council will strive to be clear in its proceedings. I. Voting. When a question or motion is put to a vote by the chair, each member present shall vote for or against the motion unless the Council excuses that member from so doing. If thereafter the Mayor or any member calls for a roll call vote, then each member must vote. The Mayor can only vote in the case of a tic, and then is required to vote. .I. Reeonsiderin'( a Vote. 3 A motion to reconsider a vote can be made only once and at the session at which the motion or matter was adopted, or at the (lext re"ular meetin" of the Council, provided that no vote to reconsider shall he made after the ordinance, resolution, or act has heen officially recorded, filed or transmi]tcd or otherwise "one out of the possession of the Council. K. Council Deliheration. It is the duty of the Mayor or presiding officer to ensure that each Council memher has the opportunity to speak. Councilors should ask the Mayor to be recognized. No memher shall speak more than once until every member choosing to speak shall have spoken or waived their ri"ht to do so. 1'19 member shall speak twice on a motion on the floor without leave of the Mayor or presidin" officer. Council memhers speak only for themselves and shall be open, direct and candid. They work to keep discussion moving, and call for a "proeess check" if thc discussion hecomes ho""ed down. Time limits ma\! be set on topics by the Mayor, by the presiding officer, or hy a consensus of the Council. L. City Attorney as Parliamentarian. The City Attorney is desi"nated as parliamentarian for the Council. QuestIons of parliamentary rules may be referred to the City Attorney throu"h the presidin" officer for interpretation. The final mlin" rests with the presidin" officer. Section 2.04.030 AGENDAS The City Administrator is responsible for the preparation of the Council agenda. A. Topics will be added to a Council a"enda based on timeliness of the topic and with consideration of the numher of items already scheduled for the Council. Matters to he considered by the Council shall be placed on an agenda to he prepared hy the City Administrator from the followin,,: I. All items considered hy the Council durin" study sessions, which require official action from the Council. 2. All items which are required by law or policy to be presented to the Council. 3. All other items that the City Administrator, City Attorney or Mayor present to the Council for action. 4. Items placed on the agenda in accordance with para"raphs Band C of this Section. 5. Requests of City Boards, Commissions, and Committees. B. A Councilor may request that an item prior to initial Council discussion, that docs not involve staff time, policy research, or draftin" of an ordinance, be placed on the Council's agenda. The Councilor shall,notify the Citv Administrator no later than noon o[(he Wednesday prior to the Council meeting. The City Administrator shall deternline the order of business of the item. The City Administrator may request that the matter he deferred until a later meetin" if the agenda of a particular meeting is 4 alrcady lengthy. Council members will endeavor to havc subiects and any materials they wish considered submitted prior to Ilnalization of the Council packet. C. A Councilor who desires maior policy research and discussion or drafting of an ordinance should first raise the issue at a meeting under Other Business from Council members prior to more than two hours orany staff time being spent on thc issue. The Councilor may also request that the discussion of this item bc formally placed on the agenda in accordance with paragraph B of this Section. Thc Council should consider items in li~ht of City priorities, includim~ adopted City Council Goals, and workload. The Council must agree to proceed with an issuc or ordinance before staff time is spent preparing the matter for Council action. The Councilor may present information or a position paper or ask for a department report or committee recommendation. Councilors who a~ree that staff time can be spent on a particular item are not bound to support the issue when it comes before the Council for a vote. D. Any topic may be added to an agenda by a maiority vote of the Councilors present. E. Postponin~ A~enda Items. If a Councilor will be absent from an upcoming regular meeting, the Councilor may request during a regular meeting that consideration of an agenda item be postponed to a future re~ular meeting. The request will be honored if the maiority of the Council votes in favor of postponement and the matter is not time-sensitive. If the request to postponc is made outside a regular Council meeting, the Councilor requesting the postponement shall submit a request to the Mayor or City Administrator in writing or by email as early as possible. The request to postpone will be honored unless the maiority (lfthe Council votes not to postponc the item or if thc matter is tinlC-sensitive. F. Council Packets. Written materials, from Councilors, stafrand citizens, which are rclatcd to agenda items to be included in the Council packct, must be submitted to the City Administrator's office no later than 12:()O noon six days in advance of the Council meeting for which it is intended. Matcrials submittcd must include author's name and address. G. Study Session A~enda Preparation. The City Administrator prepares the agenda for the study sessions from: 1. Items requested by the Mayor and members of the Council to be listed on the agenda. 2. Items deemed appropriate by the City Administrator. 3. Business from the Council pertainin,~to committee reports and other business. 4. Items requested by City Commissions, Committees or Boards. 5 Items appearing on the Council study session agenda shall be assigned a time limit and the Mayor shall hold discussion to within the time frame, unless the consensus of the Council is to extend the time limit until an issue or item is discussed and resolved. Section 2.04.040 CONDUCT OF MEETINGS A. Presiding Officer. The Mayor, or in the Mayor's absence, the Chair of the Council, shall preside at the meetings of the City Council. In the absence of these officers at any meeting, the Councilors present shalJ appoint a Chair Pro-Tem and proceed with the meeting. The Chair, except the May()r, may vote on all motions other than appeals from decisions made while acting as presiding officer. The presiding officer shall be responsible for ensuring order and decorum is maintained. Attendees and speakers arc required to strictly abide by the directions of the presiding officer. Behavior or actions that are unreasonably loud or disruptive shall be cause for removal from Council meetings. Failure to abide by the presiding officer's instructions constitutes "disruPtion ofa lawful assembly" as provided in ORS 166.025(1 )rc). Disruptive behavior includes engaging in violent or distracting action, making loud or disruptive noise or using loud or disruptive language, and refusing to obey an order of the presidim( officer. Signs are not permitted and will be considered disruptive. The presiding officer may set time limits on agenda items. Section 2.04.050 ORDER OF BUSINESS At the first meeting in January. after the roll call. the presentation of the Mayor's address shall be first in order. The Mayor or presiding officer may change the order of business on the agenda. The required order of business has been estahlished by ordinance is as follows: A. Roll Call. B. Approval of minutes of the previous meeting. If there arc no corrections or obiections to the minutes, they shall be considered approved: otherwise. to be approved by vote. The minutes as approved shall be signed by the Mayor and City Recorder. C. Special presentations, proclamations and awards. This item on the agenda is used to acknowledge special recognition and awards given to the City or for the Mayor to announce proclamations, which serve to encourage and educate the community. Proclamations shall be made and placed on the agenda at the discretion of the Mayor. Requests for recognition under this agenda item should be submitted in writing to the Mayor. 6 D. Consent agenda. Routine business items may be listed by the City Administrator under this item, whicb shall be acted upon in its entirety, except that the Mayor or any member of the Council may request that any item be moved to the regular agenda under the appropriate section ofbusines~c E. Public hearings shall conclude at 9:00 p.m. and be continued to a futurc date to be set by the Council, unless the Council by a two-thirds vote of those present, extends the hearing(s) for one-halfhour until 9:30 p.m. at which time the Council shall set a date for continuance and shall proceed with the balance of the agenda. Not more than two land-use appeal hearings shall be scheduled for any regular meeting of the Council. The City Administrator may, in the administrator's discretion, schedule additional legislative hearings dependim: on the anticipated length of the Council meeting. Persons wishing to speak are to submit a "speaker rcqucst form" prior to the commencement of the hearing and deliver the form to the City Recorder. The Mavor or presiding offieer is to inform the audience of this requirement to submit the form prior to the commencement of the hearing. No testimony will be accepted on public hearings that have been closed. F. Public forum. Public forum is an opportunity for tbe public to comment on items which are not included on the agenda. The agenda for public forum is 15 minutes, unless a maiority of the Council votes to extend the time. Persons wishing to speak are to submit a "speaker request form" prior to the commencement of the forum and deliver the form to the City Recorder. The Mayor or presiding officer is to infoml the audience on requirements lor submission of the form. Members of the public may speak about any topic during the public forum, unless the topic is indeed on the agenda for the same meeting. I f a member of the public wishes to speak on an agenda item or public he~Lring item they may do so at the time set aside for those topics (see Section E. above). Public forum is not to be used to provide or gather additional testimony or information on a quasi-iudicial matter. Public testimonv will not be accepted on a public hearing where the record has been closed if the matter is still pending. The Mayor will set time limits lor people who ask to speak during public forum. In general the time limits should be set to enable all people who wish to speak to complete their testimony. Time limits shall not be so short as to not allow speakers to address their topic. When possible and feasible, preference will be given to individuals who reside within the Ashland city limits. Persons who do not reside in the City may be placed at the end of the list of those wishing to speakat public forum. G. Unfinished business. 7 H. New business. I. Ordinances, resolutions and contracts. a. Everv ordinance is to be enacted in accordance with Article X of the City Charter. Copies of the ordinance shall be e-mailed to Council members and the Mayor at least fourteen days prior to the meeting. Council membcrs may revicw the ordinance and forward suggestions for changes to the City Attorney for consideration. Minor changes may be incorporated, substantive changes will be considered at the time of first readilll~. Any substantive changes to the ordinance must be verbally noted at first reading. Council members must submit comments to the Citv Attorney no later than 12:00 noon on the Wednesday prior to Council meeting. Titles of lengthy ordinances will be published in the local paper at least seven days in advance of the Council meeting thus allowing the ordinance to be read by title only at the Council meeting. b. Resolutions may be placed on the consent agenda and voted upon. Resolutions do not require a roll-call vote. c. The voting on all ordinances may be by roll-call vote and recorded in the minutes showing those numbers voting for and those voting against. .I. Other business from Council member,~ Section 2.04.060 IDENTIFICA nON OF FISCAL IMPACT OF POLICY DECISIONS A. When the City Council adopts a program or policy, it shall indicate how it expects that program or policy will be funded: e.g., which existing taxes or fees the Council expects to increase and by how much, or which current City programs or department expenditures the Council expects to reduce to fund the new program or policy. However, if the Council cannot reasonably identify a potential funding source, it shall so indicate. B. As used in this Section the ternl "prol"ram or policy with significant revenue implications" includes an ordinance or a resolution in which implementation may entail expenditures in any budget year in excess of one and one-half percent (1.5'%) of the City's annual General Fund budget, and which may require an increase to existing taxes or fees or an imposition of new taxes or fees. C. The provisions of this Section shall not apply to extraordinary expenditures in situations of, or necessitated by, public emergencies. Section 2.04.070 RIGHTS OF CITIZENS 8 Citizens may speak on any item not on the agenda during public forum. Any citizen has the right to present an item to the Cit y Council during public forum. On behalf of the City, any Councilor may request the item be placed on a future agenda.AHy citizen lias the riRht to present an item to, the City Council. On behalf oftlie City, any Councilor may request tlie item be placed on the aRenda. Citizens may speak on any item Rot OR the a"enda durinR public fonlffio Section 2.04.080 CONDUCT WITH CITY EMPLOYEES The City Council will attempt to work with City staff in a spirit ofteamwork and mutual coopcration. A. Councilors may makc inquiries of staIf to increase their understanding of an issue or action. Councilors should limit requests for information from staff to questions that may be answered with minimal research. Requests that require significant staff time or resources (two hours or more) should be directed to the City Administrator and must be approved by the Mayor, City Administrator, City Attorney or by a maiority vote of the City Council.. B. Written inlornlation given by the Mavor, Councilors, City Administrator, City Attorney, or City Staff. including materials requested by individual Councilors and the Mayor, generally will be distributed to all Councilors with a notation indicating who has requested that the information be provided. C. Individual Councilors should respect the separation between policy-making and administration by limiting individual contacts with City employees so as not to influence staff decisions or recommendations, not to interfere with work performance, not to undermine the authority of supervisors, nor to prevent the full Council from having access to relevant infornlation. Notwithstanding this paragraph, nothing shall hamper the Council's ability to evaluate the performance of the City Administrator or the City Attorney. D. Councilors should strive not to criticize any person in a public meeting or in public electronic mail messages. The same expectation applies to City staff in the exercise of other official duties. Nothing should limit a Councilor or staff'person's right to report wrongdoing. E. Councilors with a concern about the performance of a particular staff person should express that concern to the Mayor, City Administrator, City Attorney, or to that employee's department head. Section 2.04.090 COMMISSIONS. COMMITTEES and BOARDS A. Establishing Commissions, Commillees or Boards. B. Council Ad-hoc Committees~ C. Membership Appointments. 9 D. Mayor Membership on Ashland Bud"et Committee. E. Student Membership on Commission and Committees. F. Membership Removal Process. G. Changing or Dissolving a Commission, Committee or Board. Section 2.04.100 OPERATING POLICIES and PROCEDURES COMMISSIONS. COMMITTEES and BOARDS A. Public Meeting Law. B. Robert's Rules of Order. C. Deliberation. D. Agendas and Minutes. E. Absences. F. Quorum. G. Code of Ethics. H. Lobbying. I. Goals. J. Role of Staff. K. Final Decision-MakiQ& L. Number of Meetings. M. Notice. N. Representing the Commission. Committee or Board. O. Budget. P. Expenses. Q. Committees. Section 2.04.110 COUNCIL LIAISONS A. Role and Responsibilities of Council Liaisons. B. Attendance. C. Deliberations. D. Respect. E. Council Information. F. Vacancies. G. Vacancies. 1-1. Reporting to the Council. I. Liaison Appointment Process. J. Removal from a Liaison Assignment. Section 2.04.120 COUNCILOR EXPENSES A. The City will reimburse a Councilor or the Mayor for expenses that arc directly related to City business in accordance with the Citv's reimbursement policy. Councilors are required to submit an annual Statement of Economic Interest to the Government Standards and Practices Board as required by ORS 244.050 et seq. (end). 10 Section 2.04.130 AMENDMENTS and ADDITIONS to OPERATING PROCEDURES and POLICIES A. Suspension of Operating Procedures. Unless otherwise superseded by law, any part of these operating procedures and policies may be temporarily suspended by a maiority vote of those members of the Council present and voting. 2.111.1)10 Presiding Officer [This excerpt comes from the ,'\shland Municipal Code, Title ~ /\dministration, Chapter 1 Rules of City Council] The Mayor, or in the Mayor's absence, the Chair of the Council, shall preside at the meetinbs of the City Council. In the absence of these officers at any session the CmmcilorG present shall appoint a Chair pro tern and proceed with the meetinb' The Chair, e)(cept the Mayor, may 'iote on all motions other than appeals from decisions made while acting as presidinb officers. lOrd. 1511 SS I, 1967) 2.01.020 Quorum As providod in /\rticle VIII, Section 1, of tho City Charter, the Mayor and not less than three (3) Cmmcilors, or four (1) Councilors, constitute a quomm and a simple majority of the Councilors present determines the action on an) motion, question, ordinance, or resolution except, however, that on questions requiriRb a two thirds (2/3) voto of the Council, as provided in the City Charter, there SHall be required a ,ate of WHr (1) Councilors to oxorci,;e auy such special pow em. If the roll call shows RO q,lOrum present, as defined by Section 1 of Article VIII of the Cit) Charter, tho CouRcilom in attendance may direct the Chief of Police to Rotify the absent members, except those known to be Imavoidably detained, that their presence is reqHired to enable tRe Council to proceed v..ith business. Should any thon fail to soon appear tRe members presont sRall adjourn to a date fixed by them. (Ord. 1810 (part), 1')71; Ord. 1511 SS2, 19(7) 2.01.030 Minutes of Proceedings After the readinb of the miRHtes of the preceding meeting by the Cit) Recorder, if there are no corrections or obj ections thereto, they shall be considered approved; otherwise, to be appro' ed by vote. The minutes as apflrOyed shall be sibned by the Mayor and City Recorder. (Ord. 1511 S83, 1%11 2.1)1.010 Order of Business f.. b(cept as provided in subsectioR B hereof, tho order ofbusinoss of the Council shall be: 11 11 call; 'revious meeting; . 1. Ro f ,inutes 01 the p . . nd 'lwards, ',1, , I ",,"' " , C. I i ~::;:; ~'""m""i';:, ',ro~'~:~;;",,,"", o. '~";,~';,: D 'oed fim' "",,i,". , . . aa su j ec . s ef su se H" cm" "'00 'm' <0 <h, Ii ,,,...,,'" .. " "lim"," '" 5 Public hearIngs, sub] to the public hear~ t induded on the a"end ( . '. s that pertam the audIence no ordinance f, business from 6 Public forum er . . I of 15 minlftes), a tota . S' . A almsInes , '. 7 I Tnfims e 11 ous bUSIness, . " . Ee ane I . 8 New and mls . nd eontrac s, . olutlOns a B () Ordinances, res, Councilmem CRr. .. . trom 10. Other bUSIness . n of the Mayor's f the roll call, the present,~tlo . fY a ler . n in J nnua , " fi,,' '"'"'"0 . , 8, An , . '''""Im d". "',"~ " "Ii, I <ho " " , ,1m i "i ;>,e'" '" . "",", I ,,""h, '''y U" <h. ""y" " "y ay be Iste. , 'ef'lt that da C. Routine busine~sl;t~~:C~:d upon in its eJ~ti;el~;"b:\~10ved to the regHlar agen da" ".hlch s a uest that. an) I e ^ "en ,.. '1 may reg , '" I Gouncl " m,"",,, 0 n." . "i". ,"ui '" o. h" .",,,,, . eo fu",,,''', " h f .ml" ,"" "" ''''I . I'" .,d Ii, 'm" '""" , ,m" 'f> ""de ' 9'GO ... ('IAese pre , . shall condude .It ." '''0 thirds yote 0 unci I shall set a D, P .hh, h~,,,, ': "I,,, '". C,,,,", I by.;; 4 "" "0' "" "h, C; Nof '" "" ","" "," y <h, C ,.", , :, h, If h" '" ",," I 9,1 "'" ;;, '''I ""ee nli,"g~ 0 ;"i,g "f<h , . () /Br 0 a '''1 . !lar m ,", ".mm, ,.... '",' .h,1I ,m..' " hoo,I." w, "'y "p. I" "lwd"l, ,1!Ruanc A' II Be sc , alscre 10 , . d,," I" eo,... '""'~' h~,i"g" , ," 'h. Admi,i"""" h ",", C,,,",,I two (2) land us. . ^ dministrator ma),. In the anticipated lengt Council. The Clt),. hearings dependlnt; on . I l1"e 9"L41 old", "",II"" 0 I 'IS I I '>Of , "2 ')I ~ d " Of,,,,, meeting. (Ord. 2(, business can Be change . he Council, the order of "ote of the CouncIl. K ^' oey m"''''g '::"" .,,,,do hy · """"y , . ",d. fo, ,rub f s"ed to a . sf the ag 'h 0>,,,, ,"... "ocib I" m, <he """oc,",," .;;11 doe,,,, '''' ,", The City Administrator ~~ '~~1s;:e consent of the C.~ll~i~~ by any citizen in order to ~;') CC""':~,:":i;,;;~:;~ m',,' h, ~:";;~;, '~i"'m(A) 'I, I noy deadlme b) .. IC , nda. (Ord. 1511 . . luded on tlte age be mc . . ber present shall ,,", ""' "m., by ib, C I",i" "ruh m '::' , fm m c, 'e 'ff g. If . lIs a \ u e I ' I mem C I . or motion IS pu 'ncil excuses t lU , ch member mus Wh"" , ,':":m~", ,", ..m, ""I '''' 'he, ~ I:~" 0 "II "0 II '.e <e, ':;',~:: i" '"' ci ,,' " "ote for or a"m or any membCl C.l. I case of a lte, an ;hereafter the 1\;~~l~4aYOr can only \ ote m t 1e . likeWIse "ote'11 SS5, I '!(7). \ ote. (Ord. 15 12 2 01 OliO Privileges Bf Members _ . . , 'IH Hllea'e ot the ' .... e on the same questloR WI 0 . No member shall speak more tha~~i'~~d interlocHlory debate, nor more than onc~o 'd' ffieer except m mfon I or "'ai"ed thClr nght to presl lAg 0 , h ' 10 speak shall have spo <OR .. . until eyery member c oosmg so, (Ord, 1511, SS6, 1967), 201070 Roll Call Vote , ' . . II 'II "ote and recorded III ' , resolutions shall be by ro ca , , (G a 1511 The "otin); on all ordlR.mees or 'f' nd those yotm); a);U1nst. r, . bers "Otl11); or a the minutes sho'" in); those 11um , SS7, 1967), 2.01.080 f.ppointinl( Committees , , ted b" the Council shull be ' b Sf I la'" to be a13polll J 'b e All committees not required y a e '; I' the Council, or in the Mayor sa senc , I' ' I d b~ the ~1uyor "dth tile consen 0 ""I'" effieer with the consent 0 appOlll e . , b ade b~ the presltil 'b' , ' , , oiBtR1ent Becessary ma) em, "" been f{)rmally announced the) an) app 'I ^ fter the standin); conlllllttces hd. e, G 'I and by a majonty yote IHe Gouncl , . . . l' g el the -ounCI not be chan);ed except at a re);ula,r mce] lll, miso;ions und committees shall be can ^ II1em1s of boan s, com , , bleeember .)fthe members present. .. 1-. " "," "'ith the tem1S eJ(plflng on ' ^ ' G of each year, "ebmnll'b .. e)(teRded to . .13nl 3 76' Ord 2523{.'.) S2, 1 ')8')), 31,1')89, (Ord, 1875,19, , 2.01.081 NBtiee Bf Appointments , , ml'ttees or commlSSlOBS I I d Ie any com , II d No erson shull be uppointed or e ec e _.' 'Recorder has calolSea 10 be pubhs e , est~lished by ordiRance until after the (It) n "'Iliell the appointment or election IS to once at least ten (10) days pnor tolthe ::~It,~ti~n ;~ the City of .^.shlaRd, a BOt lee , ' , e" s13a13er of geRera Clr .. '1-. r II '''ing infonnal1on, be made, III an.. THENT" contaiRlllg tile ,0 0.. entitled "NOTICE OF .A.PPOIN. , a b 'a ointment or election; 1. The position to be fi lie ) 1313 db' the City Recorder; 2 That applieations will be accepte ) 0 be made; and, 3' The date the appointment IS eJlpected t I 'tion can be obtained from the offiee ' "!Sardm" t 1e pOSI 1. That additionallllformutlon re b of the City Reeorder. , or 'lll . of the aforementioned committees No uppointment or eleetioB s7al,:Cbhe a~;~~~n~~l'en~ or eleetioB appe~lrs on th~ agenda for commissions, unless notice 0 S or",lection is to be made. . .ddll1ona , . the meetin); at which the appomtl~e~~r. s and notification to the City Councck>> 'I procedures re);ardiR); applteatlon.. ~.l s;~~~1 be set forth b) Resoluti'l!1 of the Councl . proposed appointments by the}\1..~O~ ')89+. (Ord. 1903, 1976; Ord. 2523(,.) S., 13 2.ll1.082 Student Memberships on Carnmissions and Committees. Seetian 2.01.082 Student Memberships on Commissions and Committees. The Mayor 'I'> ith consent of the COlclHcil may add to the membership of any city commission, two positions f-or student liaisous, whether such commissiou or committee"" as established by ordinance or resolutiou. The studeut liaisons shall be non votinb e)[ officio members of their respective commissions or committees. Once the liaison positions have been added, th~ liaison from the hiSh school shall be a high school student chosen by the /\shland HiSh School Leadership Class and the liaison from the Buiversity shall be a :miversit) .Jtudeut chosen by the /\ssociated Students of Southern Orebon Uni, ersity Student Senate. The requiremeuts of sections 2.05.080 aud 2.01.081 shall not apply to the students chosen umler this section. 2.01.090 Ordinanees and Resolutions b ery ordinance shall be euacted in accord" ith ,A.rticle X of tho ,^.shland City Charter. Evory resolution shall recei. e one readinb pre' ious to the vote on it:; passabe, prO\ ided however, that it may he read by title only ifno Council member preseut at the meetinb requests to have it read in hill. (Ord. 1541 S9, 1967; Ord. 1950 SI, 1978; Ord. 2365,1985; Ord. 2691,19-91+ 2.ll1.ll9S Identifieation af Fiseallmpaet of Paliey Derisions ,A.. /\t such time as the council adopts a new probram or policy with sibnificaut revenue implications, it shall offer clear direction to city staff and to thc budbet committee as to ho'l'> the He\\' prot;ram or policy is to be funded. B. 'Nhen the city couucil adopts such a j:rot;ntm or policy, it shall indicate how it oxpects that probram or policy will be funded; e.s., which existinb ta)(es or foes the council expects to increase and by how n~uch, or 'I'> hich currcnt city probrams or department expenditHres the council expects to reduce to fBnd the ne\'. probram or policy. How over, if the council caunot reasonably idcutify a potential fundiub source, it shall so indicate. C. ,A.S used in this section 2.01.095, the tenn "probram or policy with sibnificaut revenue implications" includes an ordinance or a rcsolBtion in "hich implementation may eutail expenditures in any budbet year in e)(CeS5 of one and one half percent (1.5~<.) of the city's annual General Fund budbct, aud which may require increasins oxistinb taxo:; or fees or imposition of ReW taxes or fees. D. The provisions of this section shall not apply to extraordinary expenditures in situations of, or necessitated by, puhlic cmerbencies. (Ord 2851, added, 11/(J2I1999) 14 , IIts of Citizens . . nstrances, or any "4.lA0 0.,... 'C; P ''''"0,, rom, , 0 0' Pi< "'""', , , , "'"', m,,,,,,, . . ess proposItIons, '''ociety or of);a '. of the Counel """', ", "'"'" ' ","',," , , ^ H .,,,,,,, " hi" """'ill'" , "'ef f" "'" " p"'" "0"0 e ", , ''''Of" , fe,"" , '.P< m , ,,,.,,,, , '" '"mf''', ill'" d",m ';1 'h, Cr., ,"m""" , '<p'''''''' off , By' co iiI (I '''1 1 en 111 . '" ". I, Of m ,,,,,' <f", ,,' , " h",f", '" .,,, '" ", ,," 0" fio" " "H h, '''''''', ,,,' I .""" " ,,. d ,d 'm''''', " fly Om 'p ",,,, ' , Tl, """,,or "P"", I"" "" <h, C""m, I., ",,' ..d p""" 't C h_ ,"my OM" ".. 511 " 0, I "'" bUSiness so ose t 1e . (I fOrd. 1 , matter or . '. for such purp. ' " '11 be allowe . accorded an) citizen "'hieh the citIzen ..I t of lime .. of the amoun 'I Meetings "',110 C,,""'. , d.,;o' ,oc, ' "',,' T,,", , , the first an h daY" appOinte f gs II Be on t e ., , 0,,,, I" M ". '" . ffl" "",,,,ff .", j, " ,h,<II " ,.." "", pd h, , 'we ''- '"0" " '"""',' <h, I.", _ Th, ",,,,,, "'~ ,I,,, ",",m,,, ,m;", IO'~ p'", ",I,,, (0,' 21'9 and e',ery mont 1, UI hall end no later t all tillS for one halfhouL ' t 7 p.m. Meetlnss S nt cKtends the mee " '''"oo pc"~, h ' 'hi,'''"' eo , , fo " ,,, ,,,,", J . " be adJoume. (I to call of ....0". " m'"m, me, , '"dJ"~" , , B ',"",..d ,. , m,d ,,,"'"' ", '" mg' I" ,"""mg , ", M",,,, m., ' I' or a JOU . h evcnt an h time as A' "y mg~,,, "h, ',"00,11",,,' "'"" '",,",'" .:"., ",',ff"" ,ff",' , , " '" .'ff', ''''';, "" '"'y "II " e" P< "'"' p",or ,II" " , d ",moo m,", m, H' J the Mayor, the . a. each Councilor no , d place of such a j 1 haYIllS Hhe (IInc an . desisnate lIpor in advance 0 rimed meetlllS. . (~6l homs I al1 aljOl thirty Sl)( . 'b acted upon a ' "'m' , Cff, '''''''' ,b," "r '.., (2) men 13' ts ' , Mayor or I'.vo . and the su J ec C, ""'" M """:;:"' b, ," I,d ,ff'", 'i J~: ,f "''' h 'p" ", '''~; 'l,,", fI " I"" ' ',POf", '''''<r g fr '" ""h, .", ""' p" ,,""" m,,"b~ "~'" C ",<ref I moy ,. H 'Hen no (I' "'[Itln" . an e C, "" I. ~ ; p" ,h,,1I b, d, If,",,; ,:~ ;, "" " ,,'d ,m" ':,~ . ff H"" 0",' co to be acte . n ad"ance 0 onta1l1ed 111 (36""" , 'H'"'" , 'hfrt, '" I)' ",,"""" "'" " ""y ,., ,," , '"''''d,,""' ., " 'J ,,,,,,hoc of ", C;:::'C'"'dl " '" O,}' D. Stu(l)" Sessions ~hret~~a~~~~~~:\;~~;I~fom1~1~; ~ee:~~:s o~ action taken either ' y time 8 (leclslOns n 19(7) session at an d 'sessions no . ) d 1511, S 11, affairs. At such Stll ~ 'by the COlln8l1. (t r . lIy or IllfOm1a ) forma , , a Vote 'on a~ which the ' 04,120 O""""d",,, I, '''' ." of Om ,OC~' p'" 'd,' "'" '" ' """ fro ",d, '" " ,r", COP,,, , lhn g'" ,^. motion to recor~.~~~e~daO;;~d, or at ~he 1~0)~td::~lt~~~resolution, or act shal , motion or matter '~hall be made afterthld 01511, S 12, 19(7) "ote to reconsIder fthe Council. (Or. ' h osseSSlon 0 out oft e p 15 2.01.130 Condurting a Meetin!; Robert's Rules of Order shall he authority for the go\ernment of the Council durin,; its sessions, \\ hen not in conflict with the City Charter and these code rules. (Ord. 1511 S13, 1967). 2.01.110 Memllersliijl on ,\sliland Budget Committee For the purpose of local hudget lav., the Ma)or is a member of the govemin,; body of thc City of Ashland. (Ord. '501, 1989). SECTION 2. Severability. If any section, provision, clause, scntcnce, or paragraph of this Ordinance or the application thereof to any pcrson or circumstances shall bc held invalid, such invalidity shall not affect the othcr sections, provisions, clauscs or paragraphs of this Ordinancc which can be given effect without the invalid provision or application, and to this end the provisions ofthis Ordinance arc declared to be severable. SECTION 3. Codification. Provisions of this Ordinance shall be incorporated in the Ashland Municipal Code and the word "ordinance" may be changed to "code", "article". "section", or another word, and the sections of this Ordinance may be renumbered, or re-lettered, provided however that Sections 2 thru 3, unincorporated Whereas clauses and boilerplate provisions need not be codified. The foregoing ordinance was first read by title only in accordance with Article X Section 2 (C) of the City Charter on the .__ .__ day of 2007. and duly PASSED and ADOPTED on this _day of_2007. Barbara M. Christensen, City Recorder SIGNED and APPROVED this day of _ 2007. John W. Morrison, Mayor Reviewed as to fonn: 16 Richard Appicello, Interim City Attomey 17 Council Communication Attachment November 6, 2007 At the Council Meeting on September 25,2007, there was discussion about the word 'influencc' in Section 2.04.080 CONDUCT WITH CITY EMPLOYEES C. Individual councilors should respect the separation between policy-making and administration by limiting individual contacts with City employees so as not to influence staff decisions or recommendailions, to interfere with work perfonnance, to undennine the authority of supervisors, or to prevent the full Council from having access to relevant information. Notwithstanding this paragraph, nothing shall hamper the Council's ability to cvaluate the performance of the City Administrator or City Attorney. Staff'was asked to provide a list of synonyms for influence. The American Hcrita~e College Dictionarv Influence: I. A power affecting a person, thing, or course of evcnts, esp. without direct or apparent efforts. 2.a. Powcr to sway or affect based on prestige, wcalth, ability, or position. b. One exercising such power. c. An effect of change produced by such power. 2. To have power over, affect. To cause a change in the character, thought or action of Wcbstcr's New Collegiate Dictionarv 1. To affect or alter by indirect or intangllble means 2. To have an effect on the condition or the development of.. Ro~efs II. The New Thesaurus offers the followin~ svnonvms for inlluencc: Influence noun I. The power or capacity to produce a desired result: effect, effectiveness, effectuality, effectualness, efficaciousness, efficacy, efficiency, potency. 2. The power to produce an effect by indirect means: leverage, sway, weight. Inlimnal: clout. Slang pull. 3. The strong effect exerted by one person or thing on another: force, impact, impression, repercussion Nouns: power, pressure, sway, authority, weight, control Influence veri> 1. To have an impact on in a ccrtain way: dispose, incline, sway Verbs: manipulate, persuade, sway, induce, talk into, win over It was suggested that 'direct' replace 'influence'. The American Heritage College Dictionary Direct I. To manage or conduct the affairs of; rcgulate 2. To have or take chargc of; control 3. To give authoritative instructions to; Webster's Ncw Collegiate Dictionarv Direct 1. To conduct the affairs of; manage, regulate 2. To take charge of with authority; control 3. To move (somcthing or someone) towards a goal; aim; point Rogel's II. The New Thesaurus offers the {()[Iowing svnonvms {()r direct: Direct verh To have charge of (the affairs of others) To control the course of (an activity) To exercise authority or influence over: Verbs: administer, order, manage, operate, control, dominate, rule, command, enjoin bid, charge, *********************************************************************** In addition, there was discussion about the crime of coercion as it relates to public officers. Interim City Attorney, Ricliard Appicello sent council the following: ORS 163.275. Coercion. (I) A person commits the crime of coercion when the person compels or induces another person to cngage in conduct from which the other person has a legal right to abstain, or to abstain from engaging in conduct in which the other person has a legal right to engage, by means of instilling in the other person a fear that, if the other person refrains from the conduct compelled or induced or engages in conduct contrarv to the compulsion or inducement, the actor or another will: (a) Unlawfully cause physical injury to some person; (b) Unlawfully cause damage to property; (c) Engage in conduct constituting a crime; (d) Falsely accuse some person of a crime or cause criminal charges to be instituted against the person; 2 (e) Cause or continue a strike, boycott or other collective action injurious to some person's business, except that such a threat is not deemed coercive when the act or omission compelled is for the benefit ofthe group in whose interest the actor purports to act: (f) Testify falsely or provide false information or withhold testimony or information with respect to another's legal claim or defense; (g) Unlawfullv use or abuse the person's position as a public servant bv performinl! some act within or related to official dutics, or by failinl! or refusinl! to perform an official duty, in such manner as to affect some person adversely. (2) Coercion is a Class C felony. 162.415 Official Misconduct in the first del!rec. (1) ^ person commits the crime of official misconduct in the first degree if with intent to obtain a benefit or to harm another: (a) The public servant knowingly fails to perform a duty imposed upon the public servant by law or one clearly inherent in thc nature of office: or (b) The public servant knowingly performs an act constituting an unauthorized exercise in official duties. (2) Official misconduct in the first degree is a Class A misdemeanor. 162.405 Official misconduct in the second del!ree. (1) A public servant commits the crime of official misconduct in the second degree if the person knowingly violates any statute relating to the office of the person. (2) Official misconduct in the second degree is a Class C misdemeanor. The clear intent of these statutes is to deter public officials from abusing their power, especially using the influence of their official puhlic position to achieve some desired personal or policy end, hy compelling or inducing others to act, or not act, in a certain way (in the case of coercion) or just not doing something you are required to do or doing something you have no actual authority to do, to hann or benefit someone (official misconduct I). As it relates to staff, all staff work for the governing hody, not individual councilors; (cf. some elected officials are individually empowered to perform certain acts - recorder, judge) the Council acts collegially in accordance with puhlic meetings law. Staff of course provides information and advice to Councilors, answers questions to facilitate efficient meetings when the Council's business is perfonned. The real danger is helieving you have powers outside the official puhlic meetings when you arc empowered to act. The policy proposed to be added to the Council rules reads as follows: C. Councilors should respect the separation between policy-making and administration by limiting individual contacts with City employees so as not to 3 influence staff decisions or recommendations, to interfere with work performance, to undermine the authority of supervisors or to prevent the full Council from having access to relevant information. Notwithstanding this paragraph, nothing shall hamper the Council's ability to evaluate the performance of the City Administrator or City Attorney. No change to this language is necessary; it appears to cover the subject well. If I had written this I would have added more severe language like: Individual Councilors shall not intimidate, molest, interfere with, menace, harass, or otherwise com{Jel or induce staff to act in a certainwav u{Jon threat of retaliation or other adverse action or aUem{Jt to intimidate, molest, interfere with, menace, harass, or otherwise com{Jel or induce staff to act in a certain war u{Jon threat of retaliation or other adverse action. This kind of harsh language is probably not necessary. Again, the proposed policy is appropriate and necessary. Aside lrom potential criminal liability, tortuous interference with employment, (including using or involving third parties), contractual interference, defamation and other civil consequences to the City of Ashland or individual councilors could rcsult if the Council does not clarify the paramcters of interaction with staff. I also suggested language for paragraph D. D. Councilors should strive not to criticize any person in a public meeting or in public electronic mail messages. The same expectation of {Jrofessionalism applies to City staff in the exercise of their official duties. 4 Page 1 of 1 Diana Shiplct - For inclusion in packet Date: Subject: "Cate Hartzell" <eate@minel.net> "'Martha Bcnnett'" <bennettm~llashlanel.or.us>, '''Diana Shipkt'" <shi pktd@ashlanel.or.us> 1111/200712:19AM For inclusion in packct From: To: lile:l/C:lllocUlncnts and Scltingslshiplctdll.()cal SctlingslTcmplG W 1 0000 I .IIT'V1 ] I II /2007 Note From Cate Hartzell October 30, 2007 RE: the use of the word "influence" in proposed Council Rulcs My concern: this ordinance does not propose a dellnition for "influence," which makes its enforcement subject to abuse or neglect. As you can see from the information included below, the dellnition of "influence" is broad, so it's not surprising that we see its use in this context differently. Thc impact of the language as presented is to suppress any conversations between departmcnt heads and Councilors outside of a public meeting. The ORS addresses these issues. J suggest we reference ORS dellnitions. ORS 163.275. Coercion. (1) ^ person commits the crime of coercion when the person compels or induces another person to engage in conduct from which the other person has a legal right to abstain, or to abstain Ii-om engaging in conduct in which the other person has a legal right to engage, by means of instilling in thc othcr person a fear that, if the other pcrson rcfrains from thc conduct compclled or induced or engagcs in conduct contrary to the compulsion or induccmcnt, the actor or anothcr will: (a) Unlawfully cause physical injury to some person; (b) Unlawfully causc damage to property; (c) Engage in conduct constituting a crime; (d) Falsely accuse some person ofa crime or cause criminal charges to be instituted against the person; (e) Cause or continue a strike, boycott or other collective action injurious to some person's business, except that such a threat is not deemed coercive when the act or omission compelled is for the benefit of the group in whose interest the actor purports to act; (I) Testify falsely or provide false information or withhold testimony or information with rcspect to another's legal claim or defense; (g) Unlawfully use or abuse the person's position as a public servant by performing some act within or related to official duties, or by failing or rcl'using to perfornl an official duty, in such manner as to affect some person adversely. (2) Coercion is a Class C felony. Attempted coercion would be one level below the crime attempted, in this case a Class A misdemeanor (one year jail & 56250). The other offenses related to public officers include Oflleial Misconduct: 162.415 Official Misconduct in the first degree. (1) A person commits the crime of official misconduct in the first degree i I' with intent to obtain a benellt or to harm another: (a) The public servant knowingly fails to perform a duty imposed upon the public servant by law or one clearly inherent in the nature of office; or (b) The public servant knowingly perfomls an act constituting an unauthorized exercise in official duties. (2) Ofllcial misconduct in the first degree is a Class A misdemeanor. CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dep!.: Approval: Recreational Immunity Resolution November 6, 2007 Primary Staff Contact: Ashland Parks and Recreation E-Mail: Risk Management Secondary Contact: Ashland City Coun Estimated Time: Don Robertson robertsd@ashland.or.us Sharlene Stephens 5 minutes Question: Docs the Ashland City Council wish to fomlally invoke the recreational immunity laws as defined in ORS 105.682" Staff Recommendation: Approve resolution designating the attached list of parks and park properties as recreational areas protected under ORS 105.682, commonly known as recreational immunity laws. Background: Upon annual review of the Parks Department's insurance, it was determined that neither the Ashland Parks and Recreation Commission nor the Ashland City Council has ever formally invoked the recreational immunity laws as defined by ORS 105.682. ORS 105.682. Liahilities of owner of land used hy puhlie for recreational purposes, woodcutting or harvest of special forest products. (1) Except as provided hy subsection (2) of this section, and suhject to the provisions of ORS I 05.()SS, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly pemlits any person to use the land for recreational purposes, woodcutting or the harvest of special forest products. The limitation on liability provided hy this section applies if the principal purpose for entry upon the land is for recreational purposes, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging m activities other than the use of the land for recreational purposes, woodcutting or the harvest of special forest products. (2) This section docs not limit the liahility of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, woodcutting or the harvest of special forest products. The intent ofORS 105.682 is to provide liahility immunity from actions or claims hy Ashland Parks and Recreation facility users who arc using any and all Ashland Parks and Recreation facilities for recreational purposes. This immunity applies to facilities that are properly maintained and are free of charge for puhlic use. Pat~~ 1 or:2 ~4.' CITY OF ASHLAND At their regular meeting on July 23,2007, the Ashland Parks and Recreation Commission recommended approval of the recreational immunity resolution to the Ashland City Council. Related City Policies: None Council Options: I. Approve the resolution 2. Deny the resolution Potential Motions: I move to approve the resolution designating City of Ashland parks and park properties as recreational areas protected under ORS 105.682, commonly known as recreational immunity laws. Attachments 1) Sample Resolution 2) List of Ashland Parks and Park Properties Pa~c.2 of2 ~~, ATTACHMENT A List of Ashland Parks and Park Properties Ashland Community Skate Park N. Main / Scenic Park site Bear Creek Greenway North Mountain Park Bluebird Park Oak Knoll Golf Course Bumson Property Oredeson-Todd Woods Clay Street Park Railroad Park Cottle Property Sherwood Park Dog Park Siskiyou Mountain Park Garden Way Park Southernmost Trail at N. Mountain Park Garfield Park TID Easements in Place Glcnwood Park Triangle Park Granite Street Property Vogel Property Park Site Greenway Trail YMCA Park Hald-Strawberry Park Hersey Street Site / Ashland Community Gardens Hunter Park Lawrence Property Liberty Street Access Lithia Park RESOLUTION NO. A RESOLUTION DESIGNATING THE CITY COUNCIL'S INTENTION TO PERMIT RECREATIONAL USE OF (SEE ATTACHMENT A) PARKS CONSISTENT WITH OTHER AREAS GENERALLY REGARDED AS OUTDOOR RECREATIONAL AREAS UNDER ORS 105.682. WHEREAS, the City Council, in conjunction with the Ashland Parks and Recreation Commission of the City of Ashland, discussed the naming of the parks located within the City of Ashland, and WHEREAS, the City Council, in conjunction with the Ashland Parks and Recreation Commission of the City of Ashland, is designating and pennitting recreational use of parks listed on Attachment A consistent with ORS 105.682, and NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL, IN CONJUNCTION WITH THE ASHLAND PARKS AND RECREATION COMMISSION OF THE CITY OF ASHLAND, THAT the City Council/Ashland Parks and Recreation Commission hereby names these properties and parks and pem1its recreational use of the parks consistent with other areas in the City generally regarded as outdoor recreational areas as specified under ORS 105.682. INTRODUCTED AND ADOPTED this __ day of __ ,2007. CITY OF ASHLAND, OREGON APPROVED AS TO FORM: BY: MAYOR CITY ATTORNEY CHAIR, ASHLAND PARKS AND RECREATION COMMISSION ATTEST: BY: CITY RECORDER PAGE I-RESOLUTION NO. ADOPTED ,2007