HomeMy WebLinkAbout2007-1204 Council Mtg Packet
CITY OF
ASHLAND
ortant: Any citizen may orally address the Council on non-agenda items during the Public Forum. Any
comments to the Council on any item on the Agenda, unless it is the subject of a public hearing and the
blic hearings, there is no absolute right to orally addres ouncil on an agenda item. Time
cer may allow 0 however, public meeting guarantees only public attend
. If you wish to III out the Speaker Reques located near the entrance t
I recognize you an rm you as to the amount oftim to you, if any. The time
on the nature of the under discussion, the number 0 pIe who wish to be heard,
AGENDA FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
December 4, 2007
Civic Center Council Chambers
1175 E. Main Street
izen may submit
ord is closed.
ing, the
bIic
I Chambers.
e dependent to
the agenda.
6:00 p.m. Joint Executive Session with the Parks and Recreation Commission to discuss real
property transactions pursuant to ORS 192.660(2)(e)
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}
1. Study Session of November 19, 2007
2. Executive Session of November 20, 2007
3. Regular Council of November 20, 2007
VI. SPECIAL PRESENTATIONS & AWARDS
None.
VII. CONSENT AGENDA [5 minutes}
1. Does the Council accept the Minutes of Boards, Commissions, and Committees?
2. Does the Council wish to approve a change in ownership for a Liquor License
Application from Toseten Hriche dba Apple Cellar at 2255 Ashland Street?
3. Does the Council wish to approve a Liquor License Application from Connie Morris
dba Bonsai Teriyaki II at 2305 Ashland Street?
4. Should the City Council accept the Comprehensive Annual Financial Report as
recommended by the Ashland Audit Committee?
5. Does the Council approve a second amendment to the existing contract for
engineering services with Marquess and Associates Inc. for an additional $51,520 in
professional services, an increase of 47.6% over the current contract amount of
$108,293.00?
6. Does the Council wish to confirm an appointment by the Mayor for the vacancy on
the Forest Lands Commission for a term ending April 30, 2009?
7. Does the Council wish to consolidate the legal service contracts with Hurrang Long
COUNCIL MIJ:f1NGS ARE BROADCAST LIVE ()N C'HANNU. 9
\/Isn' TILE (TfY OF ASH! AND'S \VEf3 SITE AT WWW.ASIILAND.C>R.US
Gary Rudnick PC and authorize the approval of one contract, exclusive of Mt.
Ashland, with a total not to exceed $175,000?
8. Should the Council approve and authorize the execution of the attached amendment
to Intergovernmental Agreement #90G00091 with the Oregon Building Codes
Division to receive payment for work performed between October 1, 2007 and
November30,2007?
VIII. 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 approve a statement of intent to limit the use of the Glenn Street
Railroad Crossing to bicycles and pedestrians only?
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
1. Does the Council wish to direct staff to correct, change or modify the Ordinance
Declaring the Approval of the Verde Village Development Agreement, including the
attached development agreement, land use findings, or real property exchange
findings?
2. Does the Council wish to adopt, by approving first reading of an ordinance, amending
the Ashland Municipal Code 2.04 Rules of the City Council?
~ Does the Council wish to adopt the Gentle Person Agreement by resolution?
. Does the Council wish to adopt the Public Art Master Plan?
. Should the Council finalize the last step of including within the Ashland City Limits
approximately 8.4-acres of industrial and employment zoned land, by approving
second reading of an ordinance formally annexing the property and withdrawing the
property from Jackson County Fire District NO.5?
XI. NEW AND MISCELLANEOUS BUSINESS
OJ What should the process be for the Mayor and City Council to interview and select a
(} new City Attorney candidate?
2 Does the Council wish to make appointments for the three vacancies on the Budget
Committee for terms ending December 201 O?
/3) Does the Council wish to approve a video (Cable Television) franchise for Ashland
17 Home Net and Ashland TV?
XII. ORDINANCES, RESOLUTIONS AND CONTRACTS
.. 1. Will Council approve the attached resolution to establish a public hearing date of
February 5,2008, to consider the formation of Assessment District No. 88 to improve
both Liberty Street and the alley between Harrison and Morton Street?
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).
VISIT TIlE CITY or: ASIILAND'SWEB SrrE AI' WWW.ASHIAND.OR.US
City Council Study Session
November 19,2007
Page 1 of 4
CITY COUNCIL STUDY SESSION MINUTES
Monday, November 19, 2007 at 5:15 p.m.
Council Chambers, 1175 East Main Street
Mayor Morrison called the meeting to order at
Councilors Hardesty, Navickas, Jackson, Silbiger and Chapman were present. Councilor Hartzell was
absent.
1. Look Ahead Review
City Administrator Martha Bennett reviewed the Look Ahead with the Council and noted several changes and
additions. The meeting for December 3 will be noticed as a Special Meeting rather than a Study Session in
order to hold a Public Hearing for an appeal of System Development Charges (SDC). Councilor Jackson noted
that she will not be in attendance at the December 3 meeting.
Ms. Bennett noted that there had been some flyers distributed in regards to closure of Glenn Street and Laurel
Street. That the flyer was incorrect in stating that council is considering closure of Laurel Street but that the
public hearing is in regards to the railroad crossing at Glenn Street. Mayor encouraged individuals to come
and speak regarding Glenn Street but not in regards to Laurel Street.
Meeting scheduled for December 17 is for an Executive Session rather than a Study Session.
2. Review of regular meeting agenda for November 20, 2007
Public Works Director Paula Brown clarified that the Talent Ashland Phoenix Intertie (TAP) topic is schedule
for council decision in order to move forward with final design. This is meant to move construction along.
Councilor Silbiger noted that there had been questions from the local newspaper in regards to Council Rules.
City Attorney Richard Appicello explained that the newspaper had noticed the city that they did not agree with
the proposed language in regards to how the council conducts themselves following Executive Sessions and
how topics are discussed. Mr. Appicello stated that City Administrator Martha Bennett had submitted new
proposed language but that the local newspaper did not approve of the alternative language. He advised that
this is advisory language and noted that he strongly suggests that councilors not speak to the newspaper on
items discussed during Executive Sessions. He noted specific cases regarding "attorney/client privilege" and
there are criminal statutes associated with speaking on topics discussed during Executive Sessions. Mr.
Appicello suggested language "Councilor and staff should not discuss confidential matters with the press" and
that the language could be made plural in order to accommodate more councilors. Clarified that this provision
is advisory and the proposed language is meant only to remind council of the confidential nature of matters
discussed during Executive Session. He felt that it was okay to leave the language as "may" rather than
changing to "shall."
3. Does the Council wish to adopt the Public Art Master Plan?
It was noted that this item will be moved from the consent agenda to New & Miscellaneous Business on the
council agenda for the November 20 regular meeting.
Public Arts Commission chair Melissa Markell introduced fellow members Dana Bussell, Jennifer Longshore,
David Wilkerson, Annette Pugh, Tomi Douglas and Carissa Moddison as the SOU capstone student, Adrienne
Graham from Leapfrog Training and Facilitation. She also acknowledged Councilor Alice Hardesty, staff
member Ann Seltzer, Mark Malarz, who was the graphic design artist for the plan.
City Council Study Session
November 19,2007
Page 2 of 4
Jennifer Longshore reported that over the years artwork has become a notable landscape of the community
which has been enjoyed by many. She stated that there had been a recommendation that artwork be
incorporated into the Downtown area as early as 1998 but that there has been very little artwork implemented
since that time. She explained that the Friends of Art study group was formed and a recommendation to form
the Public Arts Commission was brought forward with a mission to enhance the cultural and aesthetic quality
of life in Ashland by actively pursuing the placement of public art in public spaces and serving to preserve
public access to the arts. She went on to explain where public art has been placed throughout the community.
She stated that the commission has set criteria and guidelines for selection of public art and drafted its policy
and procedure. She presented the council with the proposed Public Arts Master Plan.
Annette Pugh explained and noted the public outreach process which was designed to reach the most people as
possible.
Carissa Moddison, SOU Capstone Student explained the public input process, which included a questionnaire,
public forums and focus groups. The public forums were facilitated by Adrienne Graham from the Leapfrog
Training and Facilitation which were derived from the questionnaire process. The forums were based on the
types of public art, locations of public art, and funding for public art. The two focus groups were formed and
also facilitated by Leapfrog Training and were based as "invitation only" and were sent to those that had
identified themselves in the questionnaires, public forum and those there were known by the Commissioners as
supportive of the Public Art process. These forums focused more on how Ashland was unique, placement of
artwork in the community and public funding.
Dana Bussell spoke on what the Commission learned from the outreach to the community. She stated that they
had found that there was general support for public art in the community. The types of art supported were
noted as art that adds uniqueness and reflects Ashland's values, different types offunctional pieces and free-
standing structures in mediums. There was general support for changing sign ordinances to allow murals.
High visibility of artwork was noted along with the artwork being accessible and in a variety of places
throughout the community. Funding options suggested included the following, those that are diverse and
stable with at least one reliable source, the City should provide ongoing support for the Public Arts
Commission as well as "seed money" for public art, donations should be encouraged, and the ability to
accumulate money was important in order to finance large projects.
Tomi Douglas spoke on the goals of the Commission which was to create more public art and the goals are a
synthesis of what the citizens communicated to the Commission. These goals included 1 )diverse, reliable and
stable funding for public art through the City of Ashland, 2) Require a component of public art in all
developments over 10,000 sq. ft or 100 ft in length in the detail site review, 3) Collaborate with and encourage
the City Departments, especially Public Works and the Parks Department, to incorporate art into functional
pieces such as benches, sidewalks, etc. 4) See changes to the City of Ashland sign code to allow for murals, 5)
Continue to pursue grants and donations from public and private sources for specific projects as they become
available and are identified, 6) Elevate the awareness of public art and the presence of the Public Art
Commission with other City Commissioners, 7) Continue to expand the collection of public art in Ashland,
8) Develop community-based public art projects which could incorporate neighborhoods and local schools., 9)
Identify "gateway" art projects for the existing locations approved by the city Council in 203 as well as
additional' ; gateway" locations, and 1 0) complete the inventory and location of existing City-owned public art,
and develop a Public Art Guide.
David Wilkerson offered to answer any questions from the council. He noted that the need for stable, reliable
funding is the key issue and pending council approval, the Commission would review strategies and then bring
City Council Study Session
November 19,2007
Page 3 of 4
this back to council for further discussion during the budget process. He stated that there are a lot of options
available and that it was important to find the right mix of funding requirements.
Mr. Wilkerson clarified that the Arts Commission will be having further discussion regarding any necessary
changes to the sign code and possible problems associated with proposed changes. He clarified that the
commission does initiate donations of public art and hopes that in the future, through possible funding, the
commission would have more of an opportunity to solicit donations. At this time, they are moderating these
types of donations. The commissioners stated they do not want to make changes on projects that fall within the
site review process but that these projects meet one of six requirements. The goal would be that there be a
requirement for when a developer has a project that involves public space, that it includes public art. He stated
that most developers are supportive of this concept and does not anticipate any resistance in the community.
Councilor Chapman commented that the Master Plan is important and noted the valuable work done by the
commission. He did note that it felt "incomplete" and that a long-range plan usually begins with current status
in to know where it needs to go. He felt there was some conflict between goals one and seven. He understands
the need for funding but in order to make a case for funding there needs to be definition of what they are going
to do with it or what the plans are.
Mr. Wilkerson explained that the commission has worked on an inventory and that it would become the basis
as a tool for seeking funding and that the Commission is working to complete this. That funding is tied to
goals and acknowledged potential opportunities. He noted that there are issues they need to address before
moving forward and that they have looked at what other cities have done in regards to funding and what the
general accepted amount of funding is to be expected. The approach is to see what was affordable to the city
and what would be acceptable by the citizens. He acknowledged that the proposed plan is different than other
Master Plans the council is used to reviewing.
4. Should the Council accept the Comprehensive Annual Financial Report as recommended by the
Ashland Audit Committee?
Administrative Services and Finance Director Lee Tuneberg presented the staff report and explained that this is
an annual requirement. He noted the auditors Pauly, Rogers and Company, the management letter for council
review and new changes in Governmental Accounting Standards Board Statement 34 (GASBS). He explained
that the council communication included highlights on the positive position city-wide and commented on key
items in the report. These key items included and explained were the following: I) Transmittal letter from
staff, 2) Report of Audit Committee accepting the audit, 3) Auditor's unqualified opinion, 4) Management's
discussion and analysis, 5) Basic Financial Statements, 6) Notes to General Purpose Financial Statements, 7)
Supplemental reports, schedules and statistical tables and 8) Other required auditor comments and disclosures.
Mr. Tuneberg explained that the Parks Department has been presented as a component unit of the city for many
years. He noted that the minutes of the Audit Committee had been provided for council review. He identified
that there are significant changes in governmental agencies for oversight. Because of changes in the private
sector there has been changes in the government sector and noted the difficulty of "bottom-line" budgeting and
the ability to explain properly to the public that there are the proper controls needed for internal controls. He
explained that the management letter addressed the problems associated with reviewing internal controls and
what the understanding ofthese is to both the public and to the elected officials. He stated there needs to be a
better understanding of the relationship and expectations of the city and the parks department as a component
unit. Staff will be asking for direction and clarification from council on this issue.
Mr. Tuneberg commented on issues related to use of programs and the lack of control of these programs. He
noted the need for internal control in the form of a complete, written and approved document.
City Council Study Session
November 19, 2007
Page 4 of 4
Mr. Tuneberg explained that the net assets reported in the report for Mt. Ashland is an amount reported for
investment purposes only. He also explained that there have been new cases that have tested the tort limit
subject to liability, which opened up the possibility for individuals to be sued and resulted in the city
purchasing additional insurance, or the need to purchase additional insurance.
5. Does the Council have questions regarding the status update on the 2007-08 Capital
Improvements Plan (CIP) Projects and see a preview of the FY09 CIP program?
Public Works Director Paula Brown presented the staff report which included a summary, a budget
spreadsheet on projects for fiscal years 2006 -2013 and updated power point presentation. She indicated
that the changes are in transportation and water and in respect to Local Improvement Districts (LID's) due
the city not doing as many as was expected. She noted timeline changes on several projects and the
budgetary changes associated with these changes.
She stated that the city is in overall good shape and that all projects have been started and moving along.
Ms. Brown explained that the goal is to bring back to council in the next few months an updated report.
She encouraged the council to provide feedback on how they would like this presented.
At the request of the council Ms. Brown quickly went over the updated Power Point presentation. The
presentation included the following:
. Capitol Improvement Project (CIPP Development Responsibilities
. Program Structure
. 2008 Adopted Budget
. Fiscal Year 2008 CIP
Transportation/W ater/W astewater/Electric/ AFN/T echnologyF acilities/Parks & Recreation
. Challenges for Fiscal Year 2008
Councilor Navickas requested that council discuss matters scheduled for the upcoming Executive Session.
Mayor Morrison indicated that it was not appropriate to discuss or to take any action during this Study
Session on items scheduled for the Executive Session.
Meeting was adjourned at 7:18 p.m.
Respectfully submitted,
Barbara Christensen
City Recorder
ASHLAND CITY COUNCiL AfEETING
NOVEMBER 20. ]007
PAGE 1 vf 10
MINUTES FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
November 20, 2007
Civic Center Council Chambers
1175 E. Main Street
CALL TO ORDER
Mayor Morrison called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers.
ROLL CALL
Councilors Hardesty, Navickas, Hartzell, Jackson, Silbiger and Chapman were present.
MAYOR'S ANNOUNCEMENT OF BOARD AND COMMISSION VACANCIES
Mayor Morrison announced vacancies on the various commissions and committees and noted anyone who is
interested can apply at the City Recorders Office.
SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?
The minutes of the Special Meeting of October 29,2007, Study Session of November 5,2007, Executive
Session of November 6,2007 and Regular Council Meeting of November 6,2007 were approved as presented.
SPECIAL PRESENTATIONS & AWARDS
The Silver Maple tree located at 122 Helman Street was announced as the 2007 Tree of the Year. Assistant
Planner Amy Anderson provided the annual report on the Tree Commission's activities.
CONSENT AGENDA
1. Does the Council wish to adopt the Public Art Master Plan?
2. Does the Council wish to confirm the Mayor's appointment of Alexandria Amarotico to the
Housing Commission as the Student Liaison?
3. Will Council consent to appoint the Mayor's recommended members to the SDC Committee?
4. Will Council consent to appoint the Mayor's recommended members to the Facilities Master Plan
Ad Hoc Committee?
5. Will Council consent to award the contract for construction of the Water Treatment Plant Process
Improvements to Triad Mechanical, Inc. of Portland, Oregon, for $969,322 which included all
additive alternatives?
6. Will City Council, as the Local Contract Review Board, consent to enter into a public contract with
Owen Equipment for the purchase of a Sewer Vacuum Cleaning Combo Truck at a cost of
$275,308.00?
Mayor Morrison noted Consent Agenda Item #1 has been moved to New & Miscellaneous Business. He also
noted the following corrections to the Consent Agenda: 1) in regards to the Facilities Master Plan Ad Hoc
Committee, he requested Housing Commissioner Carol Voisin be added to the group, and 2) regarding the
SDC Committee, he noted that Steve Hauck is representing the Housing Commission, and Liz Peck is the
citizen member.
Councilor Hartzell/Hardesty m/s to approve Consent Agenda Items as amended. Voice Vote: all AYES.
Motion passed 6-0.
ASHLAND CITY COUNCiL MEETiNG
NOVEMBER 20. :;007
PAGE 2 of 1U
PUBLIC HEARINGS
1. 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?
Mayor Morrison called the Continued Public Hearing to order at 7:16 p.rn.
Ex Parte Contacts
Councilor Hardesty noted her brief contact with Kerry KenCairn during the intermission at the November 6,
2007 Council Meeting. She indicated this would not affect her judgment and stated the contact was limited to a
brief interaction while reviewing a map. Councilor Chapman noted the receipt of an email from Conservation
Commissioner Risa Buck, which has been entered into the record. Mayor Morrison and Councilors Jackson,
Silbiger, Hartzell and Navickas reported no ex parte contact.
Assistant City Attorney Richard Appicello announced a written bias challenge had been submitted by Art
Bullock against Mayor Morrison, Councilor Chapman and Councilor Jackson. Mr. Appicello summarized the
nature of the challenges and Mayor Morrison, Councilor Chapman and Councilor Jackson affirmed that they
have not prejudged the application and are not prejudiced or biased by prior contacts or involvement with the
project, and would make their decision based solely on the application of the relevant criteria and standards to
the facts and evidence in the record of this proceeding.
Comment was made questioning the appropriateness of the letter of support submitted by Parks & Recreation
Commissioner Mike Gardiner.
Those Wishine: to Provide Testimonv - In Favor or Opposed
Andrea Benton/1180 Park StreetNoiced support for the Verde Village project. She stated the project is
well located, close to many services, and an ideal location for solar access. Ms. Benton also commented on
bicycle access and the use of electric bicycles.
Christopher Dymond/625 Marion Street, NE Salemi Announced he works for the Oregon Department of
Energy as their High Performance Home Building Specialist. He commented on building zero energy homes
and noted the legislation, which provides up to $12,000 per home for the builders of projects that qualify. Mr.
Dymond clarified these are tax credits and would match with federal incentives.
Don McCoy/406 S. Riverside Drive, Medford/Stated he is a real estate agent and shared his excitement
about the opportunities of this project. Mr. McCoy stated these properties are all reviewed by third party
certifications, which gives them significant value, and commented that the building materials and supplies
will be extremely energy efficient. He stated this is a significant building project that will be more outstanding
that anything in the immediate area and stated the savings in the long term are significant and long lasting.
Mr. McCoy briefly commented on FSC wood and clarified it is more expensive right now and is not
necessarily the best choice for some projects.
Dan Thorndike/369 Granite StreetNoiced support for the project and stated this is exactly the type of
project Ashland needs. He commented on the distance from Ashland's core and stated the location is not far
from City services. He stated this is a great project; the land exchange makes sense, and recommended
Council's unanimous approval.
John Wheeler/2430 Greenbrook, Medford/Announced he is the Director of Acquisitions and Construction
for R VCDC. Mr. Wheeler stated this is a wonderful opportunity to provide 15 units of affordable housing. He
ASHLAND CITY COUNCIL MEETING
NOVEA1BER 20. ;;007
PAGE 3 vf II)
stated this is a huge thing and they are thankful to be apart of it and thanked the Williams and the City for
considering it.
Art Bullock/Stated this project is a major improvement compared to many developments in the way the
houses are positioned. He commented on solar access and noted this project aligns the houses and roofs to
maximize solar access. Mr. Bullock stated there is an issue regarding the amount of work that is transferred
from the developer to the homeowner and stated this is the weakness of the project. He suggested that in order
to balance out what the developer is being given, there be clear documentation and measurements of what the
actual energy savings will be. He stated it is not possible to specify this in advance, but the City could set
conditions as part of the approval so that these are realized.
Ron Roth/6950 Old Hwy 99S/Stated the proposal to put houses at the former greenhouse site makes
tremendous sense on many levels and strongly urged Council approval of this project. He briefly commented
on potential alternatives and asked the Council to set aside minor concerns about the project and think
progressively.
Rebuttal bv the Applicant
Galin Ohmart(Architect)/Indicated the homes are designed to be 50% better than code, and clarified even if
the homeowner does nothing, their home will be performing 50% better on their energy bills. Mr. Ohmart
commented on good envelope design and passive solar heating and noted use of good appliances. He stated
these would be the best homes seen in Ashland or anywhere in the state. .
Valerie Williams (Applicant)/Stated what has been presented is the most environmentally sensitive
subdivision project in Ashland and possibly in the entire state. She stated that if approved, it will be a model
for the state of Oregon and Ashland will be put on the map for being a leader. Ms. Williams stated this in itself
should be enough for approval, but in addition, Ashland will be getting a multipurpose path, improved access
to the dog park, and 15 affordable units.
Comment was made questioning why the applicant is not required to locate a street adjacent to the riparian
area.
Kerry KenCairn(Landscape Architect)/Stated if there were a road located at the top of Ashland Creek it
would be overkill, and there would be too many roads for the amount of property that is there. She added that
a road located at the top of the riparian zone would not be the best use of that property.
Alex Forrester(Planning Consultant)Stated that when the traffic engineer looked at this project, he
recommended that the road access not be placed next to creek due to potential traffic and runoff problems.
Ms. KenCairn added the reason the current ordinance recommends placing the street at the top ofthe riparian
zone is to keep people from expanding their homes into the riparian zone. She stated the bike path and the
fence solve that problem and therefore the intent of the ordinance is still honored. She added that it is an
environmental benefit to not have a street next to the riparian zone.
Chris Hearn (Attorney)/Clarified that CC&R's are not included at outline plan approval. He stated the
applicant will present the CC&R's to the City when they come back for final plan approval and staffwill have
the opportunity to review and call up any of the restrictions ifthere is concern of them bring out of compliance.
Ms. KenCairn commented on the landscaping and clarified the trees will only go where appropriate to not
interfere with solar access.
ASHLAND CITY COUNCIL /l.1EETING
NOVEMBER 20. 2007
PAGE 4 of IU
Comment was made questioning how long the 50% energy savings will hold. Mr. Ohmart stated that all of the
systems have a life span and like all equipment, they will need to be maintained and eventually replaced.
Mr. Ohmart commented on Solar Performance Standard A and noted that it may be necessary for them to seek
a variance. He added that solar ordinances are designed to protect an individual's right to not have their
neighbor shade their property and that this is not an issue since all ofthe homes will be designed as a group.
Mr. Forrester commented on how the specific units will be placed and explained that the CC&R's will require
that the solar window be maintained. Ms. KenCaim noted the houses are not permitted to get any larger.
Public Hearine Closed - 8: 19 p.m.
ReQuests to Submit Final Written Areument - None.
Mayor Morrison announced deliberations would be moved to Unfinished Business.
2. Does the Council approve a statement of intent to limit the use of the Glenn Street Railroad
Crossing to bicycles and pedestrians only?
City Engineer Jim Olson presented the staff report and provided some history on this project. He noted the
Council Goal to improve at-grade railroad crossings and explained ODOT Rail has indicated in order to for
the City to make improvements at the Hersey/Laurel crossing they must also address the Glenn Street
crossmg.
Mr. Olson stated staffs recommendation is to close the Glenn Street crossing to vehicular traffic because it is
considered an unsafe intersection. He stated there is a sharp curve that limits visibility of approaching
vehicles, there is a significant amount of vegetation, the crossing grades are not standard, and it would be very
difficult to make an approved improvement to the crossing. He explained that ODOT has recommended the
crossing be closed and has offered the incentive of improving Oak Street in return. He added that closing the
crossing could also be used as a bargaining chip for the improvement of adjacent railroad crossings.
Mr. Olson listed the positives and negatives for closing the Glenn Street crossing. Positives included: 1) it
would allowing the City to move forward with the Hersey/Laurel Street crossing, 2) it could provide a credit
for the creation of crossings in the future, 3) the cost of the closure would be much less than a full
improvement, 4) Glenn Street is not an essential emergency provider route, 5) there would be no limitations to
access existing driveways, and 6) the traffic volumes on Glenn Street are the lowest of all of the nine railroad
crossings. Negatives for closing the crossing included: 1) it would require some out of direction travel for
vehicles, 2) it would likely place more demand on the Laurel Street, Helman Street, and Oak Street crossings,
3) it would eliminate the shortest connection from the Quiet Village area to N. Main Street, and 4) ODOT has
the authority to close the crossing regardless of the City's wishes.
Mr. Olson commented that with improvements to the Hersey/Laurel intersection, including having crossing
gates in place, they could possibly change this to a 2-way stop. He explained that increasing the level of
service at the intersection is likely. He clarified Hersey Street has a carrying capacity in excess of 8,000
vehicles per day and the 900 additional trips created by the Glenn Street closure would be insignificant.
Public Works Director Paula Brown added the intersection is the limiting factor on the streets and with full
improvements and reducing it to a 2-way stop, cars will be able to move through quicker and the level of
service will be increased.
Mr. Olson clarified the City did receive funding for the Oak Street project, however he would not expect
funds from the ODOT Rail Division for another project in the near future. Ms. Brown commented on the
different sources of grant funds and stated the City currently has a grant for some of the railroad crossing
ASHLAND CITY COUNCIL A1EETfNG
NOVEMBER 20. :;007
PAGE 5 of fO
improvements and they will continue to apply for transportation and enhancement grants and sidewalk grants.
However, without the approved intersection and crossing improvements at Laurel/Hersey, ODOT Rail will
not sign off and they will have sign off authority on some of the other ODOT grants. She clarified that without
ODOT Rails approval; the City is unable to get the bicycle and pedestrian grants for the sidewalks on Laurel
Street and they and will not get any additional funding for railroad improvements until this happens.
Mr. Olson clarified if the Glenn Street crossing is closed; the City would need to install some type of closure
device on both sides of the street and would need to acquire easements for a turnaround.
Assistant City Attorney Richard Appicello indicated bias challenges had been submitted by Art Bullock. He
explained the challenges appear to be the same as what was submitted for the previous public hearing
regarding the Verde Village project and have been entered into the record. Mayor Morrison, Councilor
Chapman and Councilor Jackson agreed that they have not prejudged this application and are not prejudiced
or biased by prior contacts or involvement with this project, and will make their decision based solely on the
application of the relevant criteria and standards to the facts and evidence in the record of this proceeding.
Public Hearing Open: 8:38 p.m.
Harold Lee/258 Orange A venue/Stated he is not in favor of the closure, as it would affect his properties. Mr.
Lee noted the foster care facilities in the area and expressed concern with safety and the ingress and egress to
the neighborhood. He stated the closure would create a safety concern and questioned if the Traffic Safety
Commission has reviewed this. Mr. Lee shared a personal life threatening emergency experience and stated if
he would not have been able to use the Glenn Street crossing he would not have made it to Ashland
Community Hospital in time.
Lija Appleberry/704 Willow Street/Stated she is against closing the Glenn Street crossing and explained
she avoids the Hersey/Laurel intersection because she was broadsided there once. She stated having more
traffic on Hersey Street is not a good idea and it would not be wise to add more traffic to a street that is already
dangerous.
Sandra Morris/152 Almeda Street/Questioned if the Traffic Safety Commission should look into this
further and questioned the cost of the project. She stated the Laurel Street crossing is not very safe and stated
something needs to be done.
Ron Elterman/355 Glenn Street/Stated closing the Glenn Street crossing is a terrible idea. He stated there
would be an increase in driving, more fuel used, more emissions, and more traffic. He commented that this
would cause more traffic by Helman Elementary and noted the need for individuals to get to the hospital
quickly. Mr. Elterman stated vehicles would use his driveway to turnaround if the Glenn Street crossing is
closed and stated it sounds like ODOT Rail is manipulating the City.
Drew Bailey/455 N. Laurel Street/Stated if only half of the 900 vehicles who use Glenn Street everyday use
Laurel Street, Laurel Street's volume will be increased to over 2,000 vehicle trips per day. He noted the Otis
Street and Verde Village subdivision projects as well as the relocation of the Helman Elementary
administrative offices would also add traffic to the area. Mr. Bailey stated if the City succumbs to ODOT Rail's
insistence of closing the crossing at Glenn Street, he recommends Council's motion include that ODOT make
substantial contributions not only to improving the Hersey/Laurel Street crossing, but also fund or grant the
City funds to make substantial traffic calming measures and sidewalks to Laurel Street.
William Machado/181 Orange AvenueNoiced his opposition to closing the Glenn Street crossing and
stated he believes this is more about money than safety. He questioned the use of a 2-way stop at Laurel and
ASHLAND CITY COUNCIL A1EETING
NOVEMBER ::0. ::007
PAGE 6 of 10
Hersey and stated this is a blind comer and it is not a good idea to increase traffic at this intersection.
Berit Larson/176 Orange AvenueNoiced agreement with the statements made by Mr. Machado.
Ed McCurry/375 Otis Street/Stated he was not aware that the Glenn Street crossing was a problem and
stated the public has been clear that they want the Council to vote this proposal down. He questioned if they
have really considered the effect the closure would have on emergency vehicles and questioned how much
money is it worth to save a life. Mr. McCurry also noted the upcoming projects that will add more homes and
vehicle trips to the area.
Councilor N avickas/Hartzell mls to extend Public Hearing until 9:30 p.m. Voice Vote: all AYES.
Motion passed 6-0.
John Wieczoerek/165 Orange A venue/Stated the closure of the Glenn Street crossing would be inconsistent
with at least two of the City's goals. He noted the Planning objective of connectivity and stated the closure
would cut off the most direct access to not only the hospital and Helman Elementary, but also the neighboring
communities. He stated the other goal is regarding conservation and stated closing Glenn would cause more
traffic and more greenhouse gas pollution. He also noted that as long as you use the stop sign, there are no
sight limitations at that crossing.
Sheryl Langhofer/430 Willow Street/Stated she has never experienced any safety issues at the Glenn Street
crossing and does not see any valid reason to close it. She stated the closure would increase traffic on Helman
Street and would create more traffic and safety issues for the students at Helman Elementary. She stated the
financial incentive offered by ODOT does not constitute the creation of a safety hazard and feels the residents
of this area deserve the convenience of a direct route to their home and the security of knowing emergency
vehicles have direct and rapid access. She stated they also deserve to not have their property value decreased by
the removal of direct access and feels all Ashland residence should oppose this closure as it could create
precedence for other crossings.
Gail Patton/822 Michelle Avenue/Stated the Glenn Street crossing is this neighborhoods only direct route to
head north and stated this crossing is no more dangerous than any other crossing and it may be safer due to the
curve of the street. She stated it sounds as though the railroad is trying to bribe Ashland into closing the
crossing at the expense of all those who live and travel in the area.
Robin Robertson1707 Helman Street/Does not see the logic of increasing the number of residents in Quiet
Village and then closing this access road. She stated the safety of the Laurel/Hersey intersection needs to be
improved and does not believe it can handle an increase in traffic. Ms. Robertson added that the Glenn Street
crossing is much safer than the Laurel crossing.
Bruce Robertson/707 Helman Street/Stated he uses Glenn Street whenever traveling north and stated it is
much more convenient and shorter than going any other way. He stated it does not make sense for the City to
expand to the north and then cut off this access route. Mr. Robertson stated installing a 2-way stop at the
Laurel/Hersey intersection is not practical and would only cause more congestion than what currently exists.
Chris Hald/275 Cambridge Street/Stated the closure would result in increased traffic and noted there are
three different subdivisions going into the area. He stated it is unfair that a large transportation company can
change traffic all over the state because they do not want to spend money for safety. Mr. Hald requested that
Glenn Street be left open, and stated this neighborhood is only going to increase in traffic in the future and the
citizens of northwest Ashland need the ability to exit the neighborhood efficiently.
ASHLAND CITY COUl\'CIL MEETING
NOVEAfBER 20. :;007
PAGE 7 of 1U
John Semple/185 Almeda Drive/Stated it seems strange that the City would inconvenience 900 citizens for
two trains that pass through during off traffic hours. He questioned if there have been any accidents reported at
this crossing and believes this is about money. Mr. Semple questioned spending money to install a turnaround
and shared an emergency situation where he needed to get to the hospital in a hurry. He also noted that there
has not been one person who has spoken in favor of the closure.
Kindler Stout/130 Orange Avenue/Stated the Council made the right decision last time when they decided to
not close the Glenn Street crossing and commented on the Council's connectivity goal. He stated this closure
would force people to drive several blocks out of the way and stated this could increase road rage. He disagreed
with staffs assessment that this is not an emergency route and disagreed that it is difficult to see an oncoming
train. He added that if a 2-way stop were installed at Laurel and Hersey, cars would be backed up several
blocks onto Laurel.
Tom Pike/248 Orange A venue/Spoke in favor of the closing. He stated he has children and commented on
the safety of the children in Quiet Village. Mr. Pike agreed that there needs to be safety measures in this area
due to Helman Elementary. He stated that Orange and Glenn Streets are traveled faster than they should be
and believes the safety of children should take precedence over convenience. He added if the City does decide
to close this crossing, he recommended sidewalks and speed bumps be installed on Laurel.
Lance Bisaccia/302 Cambridge StreetNoiced his opposition to closing Glenn Street and stated this would
be a major inconvenience to the residents in Quiet Village. Mr. Bisaccia disagreed with some of staffs
reasons for the closure and stated the crossing is not located on a steep hill and stated you can see for blocks at
the stop sign. He noted the issues raised regarding emergency vehicle access and stated there are times when
minutes or even seconds can make a big difference. He also questioned why the neighborhood was not better
informed of this proposal and why the Traffic Safety Commission was not involved.
Mayor Morrison announced that the public hearing is required to end at 9:30 p.m. and this hearing would be
continued to the next council meeting.
Councilor Hartzell/Jackson m/s to continue hearing to the December 4,2007 Council Meeting. Voice
Vote: all AYES. Motion passed 6-0.
PUBLIC FORUM - None.
UNFINISHED BUSINESS
1. Continuation of 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?
Advice from Le2al Counsel and Staff
Parks & Recreation Director Don Robertson clarified there is a restriction that requires the property obtained
from the land exchange be used for parks & recreation or open space purposes. He stated the Parks &
Recreation Committee discussed for this area to include the extension of the Bear Creek Greenway trail, but
they did not anticipate that it would be developed beyond that.
Senior Planner Maria Harris clarified the width of the path is addressed in Condition # 13 of the Planning
Commission recommendations.
Councilor Navickas questioned if the pathway could be located in the same location if it were a street. City
ASHLAND CITY COUNCIL A1EETlNG
NOVEMBER 20.2007
PAGE 8 of II)
Administrator Martha Bennett explained it is awkward for staff to answer his question because they have to
deal with the project as it was submitted. Ms. Harris stated his question is difficult to answer because there are
multiple standards that apply to the different aspects. She added that the standard that discusses placing a road
between a natural feature and private yard areas is a street standard, and the intent of this is to provide a public
way, at least visually, to the natural areas, but also to serve as a buffer between private yard areas and
residences and the natural area.
Comment was made questioning what the developer is going to do to make the affordable unit net zero ready.
Ms. Harris indicated it is staff understands that the applicant is going to give the land to R VCDC and it will be
in their hands to pursue the grants to help them incorporate energy conservation measures.
It was questioned which department is responsible for monitoring and enforcing the development agreement.
Mr. Appicello clarified this would be handled by Community Development and Legal. He explained there is a
built in monitoring requirement where a report is submitted by the owner and staff then generates a
compliance report to provide to the Council. He added that State law requires that there be monitoring and
compliance and this is included in Section 17 of the development agreement.
Ms. Bennett clarified the State will do a review appraisal and will determine the accuracy of the dollar figures
in the appraisal. Mr. Robertson clarified Mr. Swales comments regarding the appraisal have been submitted to
the State.
Ms. Harris reminded the Council of the applicant's request for the number of units required to go through the
City's Earth Advantage Program be changed from 48 to 53 (Condition #27).
Council requested clarification on the condition numbers, which appear to be inconsistent. Ms. Harris
recommended the Council's motion be based on the condition numbers listed in the Planning Commission's
recommendation.
Mr. Appicello noted any motion from the Council would be a tentative oral decision and an ordinance would
need to be brought back along with findings for both the land exchange and the development agreement.
Councilor Hartzell/Jackson m/s to extend meeting to 10:30 p.m. Voice Vote: all AYES. Motion passed
6-0.
Council Deliberation and Decision
Councilor Jackson/Chapman m/s to amend Condition #40, listed on page 58, to read: "That the final
plan submittal shall address the usability including Verde Village community access of the open
spaces." DISCUSSION: Councilor Jackson explained her amendment would clarifY the intent of this
condition is not for the entire community of Ashland to have access to the public areas of the development.
Councilor Navickas indicated his preference for the more general language and noted part of the development
agreement is the park land access. Mr. Appicello clarified the development agreement is specific that the
residents of the homeowners associations, not the general public, have access to the projects open space. Ms.
Harris suggested the condition specifY "private open spaces". Motion was withdrawn.
Councilor Jackson/Hartzell m/s to amend Condition #40, listed on page 58, to read: "That the final plan
submittal shall address the usability including community access of the private open spaces." Roll Call
Vote: Councilor Hardesty, Chapman, Silbiger, Jackson, Hartzell and Navickas, YES. Motion passed
6-0.
ASHLAND CITY COUNCIL A1EETfNG
NOVEAfBER 20. :!007
PAGE Y of flJ
Councilor Chapman/Hardesty m/s to amend Condition #26 to indicate that all affordable housing
units be "net zero energy ready". DISCUSSION: Councilor Hartzell questioned who would be responsible
for the costs. Councilor Hardesty suggested the City help subsidize RVCDC if they are unable to obtain their
grant funding. Mr. Appicello clarified Condition #26 is listed on page 7 of 10 of the November 6, 2007
Council Communication and suggested this amendment be repeated in the affordable housing condition in the
development agreement. Councilor Jackson noted the ordinance still needs to come back for first and second
readings and suggested RVCDC could propose better language if they wish. Roll Call Vote: Councilors
Jackson, Chapman, Silbiger and Hardesty, YES. Councilors Navickas and Hartzell, NO. Motion
passed 4-2.
Councilor Hartzell explained her vote was based on the letter received from RVCDC requesting the City not
hold them to additional standards.
Councilor Chapman/Jackson m/s to approve the application, incorporating the conditions of approval
included in the August 28, 2007 Planning Commission recommendation document into the Council
Findings, Orders, and Conclusions with the following modifications: 1) delete Condition #37, 2) add
suggested modification to Condition #43 regarding the Sander Way sidewalks, 3) add suggested
Condition #44 regarding the definition of zero net energy performance, and 4) modify the second
bullet point on Mr. Wanderscheid's memo of November 14, 2007. DISCUSSION: Councilor Navickas
shared his concerns regarding the application of the annexation and street standards criteria. Roll Call Vote:
Councilors Jackson, Hartzell, Chapman, Hardesty and Silbiger, YES. Councilor Navickas, NO.
Motion passed 5-1.
Mr. Appicello indicated staff would bring back an ordinance for first reading at the next Council Meeting.
2. Does the Council wish to adopt an ordinance amending the Ashland Municipal Code 2.04 Rules of
the City Council?
Item delayed due to time constraints.
NEW AND MISCELLANEOUS BUSINESS
1. Should the City Council accept the Comprehensive Annual Financial Report as recommended by
the Ashland Audit Committee?
Item delayed due to time constraints.
2. What are the next steps and the proposed timing for the City to connect to the Talent Ashland
Phoenix (TAP) Intertie pipeline?
Item delayed due to time constraints.
3. Does the Council wish to adopt the Public Art Master Plan?
Item delayed due to time constraints.
ORDINANCES, RESOLUTIONS AND CONTRACTS
1. Should the Council finalize the last step of including within the Ashland City Limits approximately
8.4-acres of industrial and employment zoned land, by approving second reading of an ordinance
formally annexing the property and withdrawing the property from Jackson County Fire District
No.5?
Item delayed due to time constraints.
2. Does the Council wish to adopt the Gentle Person Agreement by resolution?
Item delayed due to time constraints.
ASHLAND CJTY COUI"/CiL 1\1EETlNc
NOVEMBER 20. :;007
PACE I() of J()
3. Will the Council approve the attached resolution to establish a public hearing date of January 15,
2008, to consider the formation of Assessment District No. 88 to improve both Liberty Street and
the alley between Harrison and Morton Street?
Item delayed due to time constraints.
OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS
ADJOURNMENT
Meeting adjourned at 10:30 p.m.
Barbara Christensen, City Recorder
John W. Morrison, Mayor
Bicycle & Pedestrian Commission
October 18th, 2007 Regular Minutes
Roll Call:
Vice Chair Julia Sommer, Secretary Selene Aitken, Jim Olney, Mick Church, and Steve Ryan
Chair David Young (absent), Matthew Seiler (absent), Tom Burnham (absent)
Council Liaison: David Chapman
Staff: Derek Severson, Associate Planner
Steve McLennan, Police Officer
RVTD liaisons: Steve Maluk, TDM Planner
High school liaison: Vacant SOU liaison: Vacant
Call to Order
Vice Chair Sommer called the meeting to order at 5: 17 p.m.
Approval of Minutes - September 2007
Members discussed the Primary Goal chart attached to the minutes, noting that Sommer did not wish to be included
under "Continue to offer bicycle safety education classes..." while Aitken was willing to be added in her place.
Church noted that the question mark next to his name could be removed in the Transportation System Plan update
item. Olney indicated that he was willing to work on the subcommittee for North Main Street.
The minutes of the September 2007 meeting were approved as amended. Voice vote: All AYES. Motion
passed.
Members were directed to follow up with Severson if they wished to make any changes to the chart.
Public Forum
Huelz Gutcheon spoke about the need to allow bicycling on sidewalks in the downtown provided that it was done at
pedestrian speed. He also suggested that signage needed to be changed to be more congenial, and suggested "Please
walk your wheels." It was suggested that he discuss these items with Police Chief Holderness to identify any issues
their implementation might create for the Police Department.
John Fisher-Smith noted that Oak Street serves as the primary connection for bicyclists coming from the downtown
or the railroad district to the Greenway connection at Nevada Street, and suggested that the bicycle facilities on Oak
Street are lacking. He stated that the speed humps in place are ineffective, and that drivers do not drive well when
they perceive themselves to be in the same lane with cyclists. He discussed the psychological role of bike lanes in
easing cyclist and driver discomfort by providing a clear delineation within the travel lane. He noted that the
Oregon Bicyclist's Manual calls for a minimum width of three feet for bike lanes, and suggested that a lane width
marker or fog line rather than a formal bike lane could be provided. Sommer suggested that this item be on the next
agenda, and that follow up with the Traffic Safety Commission might be in order as well.
Subcommittee & Liaison Reports
Severson noted briefly that there had been an announcement of the need for youth liaisons mentioned during the last
televised council meeting; he stated that with two recent pedestrian involved accidents near SOU some pedestrian
enforcement actions would be returning; he presented a map detailing a historic record of accidents in town
involving bicyclists, pedestrian and skateboarders; he noted that pedometers, helmets, and lights are now available
for purchase at cost in the Parks Office; and concluded that volunteers working on the Wheeldon memorial were in
the process of finalizing details of the benches with the Parks Department.
Ryan presented an update on the last Traffic Safety Commission meeting.
Aitken noted attending the lAMP CAC meeting with ODOT in Young's place, and discussed draft Technical Memo
#4 dealing with Exit #14. She stated that the discussion at the meeting had to do with how the Citizens Advisory
2007-/0/8 Bike & Ped minutes
Page 1 of 4
Committee (CAC) and Technical Advisory Committee (TAC) are working together, resulting in the current changes
at Exit #14. It was noted that the current proposal has bikepaths and pedestrian sidewalks on both sides. She added
that Exit # 19 currently is shown with an 8 Yz foot shoulder. Members questioned the design status, whether the
shoulders on Exit #19 were on both sides, and whether the bikepaths and sidewalks on #14 were combined or
separate. Members noted they would email questions and comments to John MacDonald, the ODOT staff person on
the project. Aitken noted that the next meeting was scheduled for December Ith at 5:30 p.m.
Adult Bicycle Safety Education
League of American Bicyclists-certified bicycle safety instructor Bill Heimann noted that most bicycle safety
education programs don't address adults, and he suggested that trained adults can train their children. He
emphasized that an adult bicycle safety education program is needed in Ashland, and pointed out that law
enforcement officers could be trained, and the local judge could be contacted to more stringently enforce laws
relating to bicyclists and impose a diversion program involving bicycle safety education. Heimann stated that there
is presently a one-day league road course that is offered regularly; he noted that this course includes both classroom
and road components, and suggested that all commissioners should attend. He also indicated that it would be
beneficial to contact the University, and suggested that they should require a license, with a bicycle safety education
course requirement, before allowing students to ride on campus.
Sommer questioned the cost of implementing such a program, and who would put it into place. Heimann responded
that instructors could be trained through the League program. He emphasized that he wasn't looking for a part-time
job himself, but stated that he would be willing to help establish a program.
Aitken, Chapman, Church, Maluk and MacLennan indicated that they would be willing to discuss this further as a
subcommittee.
MacLennan noted that the judge was actively enforcing laws relating to cyclists, and added that he thought she
would be willing to utilize an educational diversion program if one were available.
BT A Request for Support for Bicycle Safety Education Proarams
Severson provided background on the request. He noted that the request had just been received, and he had not had
time to do sufficient research. He expressed concern that fully funding the total amount requested could deplete the
available Bike Swap funds, making it impossible to adequately promote the Bike Swap and impacting the ability of
the Swap to replenish those funds next year. He recommended delaying consideration of the request for one month
to allow him to contact BT A in order to discuss the request, and to contact the Recreation Superintendent in the
Parks Department to get a feeling for how much needed to be kept in the Bike Swap fund as a reserve to cover
operating expenses.
There was discussion of whether the BTA would be willing to subsidize classes if the full request could not be
funded. Dubois suggested that in his experience, the BTA has recognized that Ashland has a long history of
supporting the program and he thought they would do what they could for Ashland. Severson noted that the amount
of the request represented a subsidy already, as other communities trying to establish programs are being asked to
fund the full program cost and Ashland is being asked for only about one-half of the total cost.
Heimann noted that it seemed like the amount of the request has increased significantly over the years, and he
suggested that it seemed like it had reached a stage where it would be more appropriately directed to go through the
budget process. He noted that he was on the Budget Committee.
Maluk noted that they have used TDM funds to support programs in other communities regionally, and suggested
that he would look into whether any funding might be available to help the BT A program in Ashland.
Kat Smith, bicycle safety instructor with the BT A, discussed the nature of the programs offered and invited
volunteers to assist in the classes. She stated that she would email members to make them aware of the next
opportunity to help.
Ryan suggested that he would like to see the full cost of the program broken down, along with long range
projections.
2007-1018 Bike & Ped ill/illites
Page 2 of 4
There was general consensus to delay consideration of this request until next month to allow staff time to do some
follow up research on the request.
North Main
Eric Dittmer, who noted that he was an SOU professor who commutes by bike on North Main, explained that he had
been talking to ODOT about putting a fog line on North Main Street from Schofield into town as far as practical,
and stated that he was requesting support for this request. He explained that ODOT had been initially willing to
further explore the idea, provided that they had concerns that local cycling advocacy groups would take issue with
the painting of a fog line that did not equate to providing a standard-width bike lane. Chapman discussed the issues
involved and the history of North Main, and there was general consensus that Ryan would begin a draft letter of
support for Dittmer's request.
It was suggested that Dittmer might also approach Siskiyou Velo for similar support, and it was noted that both Bill
Heimann and Bicycle & Pedestrian Commissioner Tom Burnham were good contacts at the Velo.
Severson noted that the discussion Dittmer had with ODOT and the recent consultant presentation on arterial streets
had both raised the issue of further bicycle and pedestrian improvements. One item raised as a public question and
discussed by the arterial streets consultants touched on reducing North Main Street to two lanes with a shared center
turn lane, and using the additional available width to accommodate bike lanes and sidewalks. He clarified that the
consultants had emphasized that at 19,000 average daily trips, North Main was close to the boundary where this was
feasible, and added that they had suggested that the Council would need to determine if the additional congestion
resulting from a reduction in lanes would be a worthy trade-off for providing needed bicycle and pedestrian
facilities. He noted that this would likely only be accomplished through a jurisdictional exchange with ODOT, as
had been done with Siskiyou Boulevard, wherein ODOT would redesign and improve the facility and then turn it
over to the city to maintain. Sommer noted that something similar had been done in Berkeley on Marin Street,
where a successful "bicycle boulevard" was created.
Sommer/Olney m/s to recommend that staff look into the options of a jurisdictional exchange on North Main
Street to provide bike lanes and sidewalks for improved access and bicycle and pedestrian safety on North
Main Street. Discussion: It was noted that the Commission was in favor of the concept of a two-lane
arrangement with a shared middle turn lane. Discussion: Aitken noted that she would want some assurance
that such changes would not create a problem for emergency vehicles trying to reach the hospital. Voice vote:
All AYES. Motion passed.
Transportation Commission
Severson noted that a motion had been passed at the Council meeting on Tuesday night to create a standing Ad Hoc
Transportation Commission with the Bicycle & Pedestrian and Traffic Safety Commissions as elements. He
suggested that this would move forward the discussion and shift its focus from whether to combine commissions to
how to combine commissions. He suggested members begin thinking of issues they feel are important to address in
a combined commission, such as how to preserve the advocacy focus of the commission or how to maintain a strong
bicycle and pedestrian focus on the new commission.
Chapman clarified that his intent in making the motion wasn't necessarily to combine Commissions, and might
instead result in a third commission. He indicated that at this point, staff would be working to bring back
recommendations on how to implement the motion. Severson suggested that with staffing issues, he felt it likely
that any recommendations would include combining commissions for the potential gain in staffing efficiency. He
indicated that he would keep the Commission posted as this item moves forward.
Car Free Dav & Car Free livina - 2007 & Bevond...
Tracy Harding presented the Commission with $136.69 that had been generated from T-Shirt sales at the event, and
asked that it be added to the Bike Swap fund to support bicycle safety education. She indicated that her involvement
in this event rose out of her tenure on the Commission. She suggested that after having the same event in the same
place for three years, and with her term on the Commission over, she felt it was time for the Commission to take the
reins of the event and let it reinvent itself according to the vision and energy of the current membership.
2007-/0/8 Bike & Ped minllles
Page 3 of 4
Maluk spoke to the value of the event, and noted the importance of maintaining the momentum that had been
established. Sommer suggested that Car Free Day be a discussion item on the January agenda so the Commissioners
could determine how future observances of Car Free Day would be handled.
Holidav Schedules
Severson asked whether the November 15th and December 20th meeting dates fit everyone's schedule. Olney noted
that he would be absent from the December 20th meeting, and other members indicated that they would check their
schedules and make Severson aware of any conflicts.
New Business
None.
Aaenda Items for Next Month
On-going goal discussion, Oak Street bikelanes/foglines; BTA Request, North Main fog line letter and follow-up;
Transportation Commissions; Glennview Street shared facility request
Adiournment
The meeting was adjourned at 7:00 p.m.
Upcomina Meetinas:
Regular Meeting - November 15th, 2007 at 5:15 p.m.
2007-/0/8 Bike & Ped minlltes
Page 4 of 4
CITY OF
ASHLAND
ASHLAND HISTORIC COMMISSION
Regular Meeting Minutes
October 3, 2007
Community Development/Engineering Services Building - 51 Winburn Way - Siskiyou Room
Historic Commissioners Present: Dale Shostrom, Terry Skibby, Henry Baker, Jim Watkins, Allison
Renwick, Keith Swink, Alex Krach
Absent Commission Members: Sam Whitford, Tom Giordano
Council Liaison: Eric Navickas - Absent
Hiah School Liaison: None Appointed
SOU Liaison: None Appointed
Staff Present: Planner, Angela Barry; Clerk, Billie Boswell
CALL TO ORDER - REGULAR MEETING
At 7:00 pm, Chairman Dale Shostrom called the Historic Commission meeting to order.
APPROVAL OF MINUTES
Mr. Watkins made a motion to approve the September 5, 2007 minutes and it was seconded by Ms. Renwick.
Approval was unanimous.
PUBLIC FORUM: No speakers
PUBLIC HEARING
A. Planning Action 2007-01400
542 A Street
Request for a Site Review Approval, Administrative Variance to the Site Design Standards to eliminate
the required landscape buffer between property lines, a Variance to reduce the required number of off-
street parking spaces as allowed for renovation of historic buildings, a Variance to use more than 50%
of the provided off street parking spaces as compact spaces and a Variance to provide the required
disabled parking space on street to allow for the operation of a coffee house/wine bar.
Applicant: David Gremmels/Carlos Delgado
Chairman Shostrom read the description of the proposed project and asked if there were conflicts of interest or
exparte contacts. There were none.
Ms. Barry stated the subject property received a historic special assessment designation in 2000 from SHPO.
She explained that the applicants planned to demo the existing shed and rebuild a smaller one. The new shed
would have lap siding and a tin roof to match the original building. Approval is also needed from SHPO. The
variance would be to reduce the required parking spaces from six spaces to three with two being compact and
only one regular space. The handicap space would be provided on the street.
There were no further questions of staff.
Carlos Delgado, the architect, described the design details and showed color chips of the proposed paint. Mr.
Watkins asked about signage. Mr. Delgado said he would like a painted sign on front fa<;ade. Mr. Skibby asked
about column details, but Mr. Delgado said there were none.
There being no one else in the audience wishing to speak, Chairman Shostrom closed the public meeting.
Ashland Historic Commission Minutes
11/29/2007
CITY OF
ASHLAND
With a motion by Mr. Skibby and a second by Mr. Swink, the Historic Commission unanimously recommended
approval.
NEW BUSINESS
A. Pre-Application for 165 Lithia Way
Jerome White, Mark Knox, Evan Archerd and Russ Dale reviewed with the Commissioners their plan for a
mixed-use building to be built on two lots in the 7-lot subdivision on Lithia Way. They are designing a plaza
area to meet the 20 foot setback requirement and provide a public space. They provided site plans but no
building elevations were completed yet. They had not yet determined what landscape elements would be
included in the public space but could include raised planters, small trees and seating. Chairman Shostrom
asked about parking. It was explained that there would be 12 parking spaces in an underground parking lot
plus the outdoor parking spaces approved with the land partition. Mr. White said there will not be an indented
entry fa9ade into the building but the entry would be delineated by an awning or canopy. Mr. Skibby asked
about the use of the third story. Mr. Archerd said it would be residential but, at this time, they are unsure of
how many units. Ms. Renwick asked if the building would include affordable housing. Mr. Archerd said it
would not because there are less than 10 units. When asked by the applicants about the building design, the
Commissioners wanted it to be compatible with the downtown buildings. Tudor, Mission or Victorian styles
would not be desirable.
OLD BUSINESS
A. Review Board -
October 4
October 11
October 18
October 25
November 15
November 8
B. PROJECT ASSIGNMENTS FOR PLANNING ACTIONS - Mr. Swink said that 520 Fairview had been
completed and can be removed from the list. Mr. Skibby agreed to oversee 542 A Street. Staff was asked to
determine the status of 11 First Street and 125 Sherman Street.
P A #2004-138
PL#2005-01226
PL#2005-01674
PL#2005-02105
PL#2005-01307
P A#2006-00453
Pl\#2006 00875
P A#2006-00612
PA#2006-01999
P A#2007 -00398
PA#2007-00798
P A#2007 -00579
PA#2007-01400
Swink
Shostrom
Skibb
Giordano/Saker
Shostrom
Swink
Swffik
Shostrom/Giordano
Krach
Whitford
Watkins
Saker
Skibb
Ashland Historic Commission Minutes
11/29/2007
2
CITY OF
ASHLAND
C. Ashland School District - Chairman Shostrom said he did not attend the last meeting because the discussion
was regarding all interiors. There was some discussion regarding a brick wainscoting around the base to set it
off and there were some minor ramp and step changes.
D. Ashland Library - Mr. Skibby announced the library levy had passed and the library would reopen by
November 1 st.
E. Ethics Ordinance - Mr. Swink stated the City Council passed the revised Ethics Ordinance 4-3, which
eliminated the exclusion of development professionals from presenting their projects before other Boards and
Commissions upon which they are not serving.
F. Lithia Sprinqs National Reqister Nomination - No Report
G. Sinqle Familv Residential Desiqn Standards - No report
H. Co-Sponsorship with Conservation Commission for Fall Workshop - No report
ANNOUNCEMENTS
The next Historic Commission meeting will be on November 7,2007 at 7:00 pm in the Siskiyou Room.
ADJOURNMENT
It was the unanimous decision of the Commission to adjourn the meeting at 8:30 p.rn.
Ashland Historic Commission Minutes
11/29/2007
3
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Approval:
Liquor License Application
k/'December 4, 2007~ Primary Contact: Barbara Christensen
V . ~ity Record~er email: christeb@ashland.or.us
Martha Benne Secondary Contact:
Estimated Time: Consent
Question:
Does the Council wish to approve a change in ownership for a Liquor License Application from
Toseten Hriche dba Apple Cellar at 2255 Ashland Street?
Staff Recommendation:
Endorse the application with the following:
The city has determined that the location of this business complies with the city's land use requirements
and that the applicant has a business license and has registered as a restaurant, if applicable. The city
council recommends that the OLCC proceed with processing of this application.
Background:
Application for liquor license is for a change in ownership.
The City has determined that the license application review by the city is set forth in AMC
Chapter 6.32 which requires that a determination be made to determine if the applicant complies
with the city's land use, business license and restaurant registration requirements (AMC Chapter
6.32).
In May 1999, the council decided it would make the above recommendation on all liquor license
applications.
Council Options:
Approve or disapprove Liquor License application.
Potential Motions:
Motion to approve Liquor License application.
Attachments:
None
r4.1
CITY OF
ASHLAND
Council Communication
Liquor License Application
Meeting Date: r December 4, 2007~
Department: City Reco~:~^
Approval: Martha Bj,' "
Primary Contact: Barbara Christensen
email: christeb@ashland.oLus
Secondary Contact:
Estimated Time: Consent
Question:
Does the Council wish to approve a Liquor License Application from Connie Morris dba Bonsai
Teriyaki II at 2305 Ashland Street.
Staff Recommendation:
Endorse the application with the following:
The city has determined that the location of this business complies with the city's land use requirements
and that the applicant has a business license and has registered as a restaurant, if applicable. The city
council recommends that the OLCC proceed with processing ofthis application.
Background:
Application for liquor license is for new license.
The City has determined that the license application review by the city is set forth in AMC
Chapter 6.32 which requires that a determination be made to determine ifthe applicant complies
with the city's land use, business license and restaurant registration requirements (AMC Chapter
6.32).
In May 1999, the council decided it would make the above recommendation on all liquor license
applications.
Council Options:
Approve or disapprove Liquor License application.
Potential Motions:
Motion to approve Liquor License application.
Attachments:
None
r~'
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
FY 2006-2007 Comprehensive Annual Financial Report
November 20, 2007 Primary Staff Contact: Lee Tuneberg #~.
Admin. Services E-Mail: tuneberl@ashland.or.us
Secondary Contact:
Estimated Time:
Martha Benne
15 minutes
Question:
Should the City Council accept the Comprehensive Annual Financial Report as recommended by the
Ashland Audit Committee?
Staff Recommendation:
The Audit Committee recommends acceptance of the Comprehensive Annual Financial Report for FY
2006-2007 and staff concurs.
Background:
The Audit Committee has met with staff and Pauly, Rogers and Company, P.C. to review and accept
the annual audit for the fiscal year ended June 30, 2007. The committee's report can be found in the
annual financial report on page xv and the auditor opinion on page 3.
The Comprehensive Annual Financial Report (CAFR) is prepared annually as part of the state-required
audit by an independent, certified and municipally licensed auditor. In Ashland, the auditor reports to
the Audit Committee established by the Council. The committee receives the auditor opinion,
management letter and annual financial reports (including the Parks Commission Component Unit
Financial Report) prepared by staff. When satisfied with the reports and related information, the
committee forwards the report to Council with a recommendation to accept.
The auditor gave an unqualified opinion again this year and found three reportable conditions to
include in a management letter for fiscal year 2006-2007. The three conditions that the auditors noted
are included in the attachment titled "Management Report."
The Administrative Services Department's responses to the Management Report comments are
attached as well. The issues raised are being acted upon at this time and our goal is to clear the
comments in this fiscal year.
New requirements for financial reporting and government auditing are imposed each year. The City
has complied with implementing Governmental Accounting Standards Board Statement 34 (GASBS),
which required changes in the financial reporting model, in FY 2002-2003 and FY 2003-2004 with
fixed assets fully included the second year. The City implemented GASBS 44 in FY 2004-2005 to
include more financial and economic trending information in the Statistical Section of the report and
Parks did in FY 2005-2006. Work on GASBS 45 relating to enhanced disclosure on future liabilities
for post retirement benefits has been in process for months with compliance on schedule by next year.
Page J of3
CC CAFR 11-20-07 final.doc
~~,
CITY OF
ASHLAND
revenue streams with the cost of services will be difficult in funds reliant upon taxes (General, Street
and Parks funds) and funds that include capital improvements funded through rates, fees, taxes and
borrowing (Street and all enterprise funds). However, funds with ending fund balances beyond targets
will be able to offset future costs like the Telecommunications Fund and Central Services Fund.
Changes in Ending Fund Balances (Adopted and Actual) for all funds can be viewed on pages 106-
107. Other key places to look within the document are:
Pages
1 - Vll
xv
3- 4
. 5 - 16
19 - 29
33 - 60
65 - 135
136 - 148
Information
Transmittal letter from staff
Report of Audit Committee accepting the audit
Auditor's unqualified opinion
Management's Discussion & Analysis
Basic Financial Statements
Notes to General Purpose Financial Statements
Supplementary reports, schedules and statistical tables
Other required auditor comments and disclosures
Related City Policies:
City of Ashland Financial Management Policies, Budget Document Appendix
Council Options:
Council may accept the Committee's report and the annual report as presented, recommend
modifications as discussed or defer acceptance (takes no action) awaiting further information or
clarification.
Potential Motions:
A. Council moves to accept the Audit Committee Report and the Comprehensive Annual Financial
Report for the fiscal year ended June 30, 2007 as presented.
B. Council moves to accept the Audit Committee Report and the Comprehensive Annual Financial
Report for the fiscal year ended June 30, 2007 as modified by discussion.
C. Council takes no action pending further information or clarification.
Attachments:
FY 2006-2007 Comprehensive Annual Financial Report
City of Ashland 2006-2007 Management Report
Staff letter to Audit Committee dated 10/29/2007 Responding to the Management Report
Audit Committee meeting draft minutes 10/29/2007
Page 3 of3
CC CAFR 11-20-07 finaL doc
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AUDIT COMMITTEE MEETING
OCTOBER 29, 2007 PAGE 2 OF 7
require a report where one might not have been required in the past. Statement of Auditing
Standards No. 112, Communicating internal Control Related Matters in an Audit, is a new
requirement this year and has "lowered the bar" for items to require an auditor comment. This
had occurred with the Parks audit.
Allen identified the #1 issue in the report is the requirements of SAS 112 and explained the
impact key elements will have on future audits. Of primary concern is Parks or any agency
having a written and adopted internal controls policies and procedures manual that is followed
by staff. There is no such document for the Parks & Recreation Commission. The auditor
recommends that one be developed and adopted including the points specified in the report as
a minimum.
Allen reviewed the points in the management report. The Committee and auditor discussed
that this is a significant issue for all agencies due to increased requirements coming from the
private sector causing changes in the government sector. Committee discussed that internal
controls are not limited to cash handling and includes access to records and information in
computer systems and safeguarding other assets. Compliance with this comment will required
significant work in FY 2007-2008 but will transition to an annual process of updating or
maintaining what is established, adjusting for new processes, guidelines and requirements.
Allen addressed comments #2 through #5 that are specific to Parks & Recreation. #2 is a
recommendation to have the software that tracks Parks activities interfaced with the general
ledger system for better accounting control. #3 is a recommendation that Parks keeps in
storage daily cash receipts for 5 years to provide for auditable records. # 4 is a
recommendation that Parks consider using only one cash register at the golf course to provide
better controls and remove the need to move money between two registers to recognize
transactions between the Golf Pro and Parks activities. #5 is a recommendation to have Parks
management review and initial all bank deposits as a control and to reduce potential for errors.
The committee asked clarifying questions about integrating the software for better control and
information, past practices on cash receipts, how costly a register at the golf course will be and
management review of deposits.
Allen then reviewed new standards that will be required in the coming year that auditors must
consider and report upon. SAS #114 supersedes #61 regarding Communications with Audit
Committees such as used in Ashland. The Committee discussed at great length the points
included under SAS #114 and whether they apply to the Parks & Recreation Commission
audit. Allen explained the needed clarification of communication requirements between those
responsible for governance of the government entity and the auditor, whether or not a
committee is used.
Allen pointed out that the report identifies as 9 key issue for the Board of Ashland Parks &
Recreation to determine who is responsible for oversight of the financial audit and what, if
anything, is delegated to the Audit Committee used by the City. This issue must be discussed
and decided by the Board before next year's audit begins.
AUDIT COMMITTEE MEETING
OCTOBER 29, 2007 PAGE 4 OF 7
Allen said the City needs to develop a document of its internal controls procedures and
policies, train on them and follow them as part of SAS 112 compliance. The supporting issues
are the same as what was discussed under Parks' need for SAS 112 compliance.
Allen reported the City had only two Management Report comments this year as compared to
three in FY 2005-2006. This would indicate improvement since it was easier this year to get a
comment due to SAS 112 and 61 requirements causing Comment #1. Allen explained that
most cities are having the same issues with SAS 112 because they are new and require
additional work by staff.
Allen said Comment #2 relates to the need for written internal control procedures over the
internally developed utility billing system in addition to written general controls for all computers
and systems city-wide.
Allen then reviewed the three comments from the prior year. Comment #1 (timely
reconciliation of general ledger accounts) and Comment #3 (computer system cannot generate
a receivables report across funds) have been resolved. Comment #2 is still outstanding. The
auditor recommends that fixed assets should be done through the City's Eden software
package and not on an Excel spreadsheet. This would provide more accounting controls and
be less prone to errors. Staff did not get this change during the year so the comment will be
carried forward.
Tuneberg explained that the Accounting group did great work this year but had to make some
choices. Staff only had time to work on account reconciliations so converting fixed assets from
Excel to Eden had to wait. That is being worked on to clear the issue for the next audit.
Allen said Ashland will need to review and document Council's expectations for the Committee
and for the City Administrator including communications to and from the auditor as part of SAS
114. An important issue to be addressed is the City RecorderITreasurer's role on the
Committee. This position is a voting member on the Committee and also handles cash like a
staff position. The City Recorder also does all city investing and manages the city bank
accounts. Council will need to address these issues before the beginning of next year's audit.
Allen identified that someone may need to be responsible for the internal controls manual and
to do internal auditing on it to ensure compliance. This would need to be identified as part of
Council reviewing its expectations.
Christensen said that the City RecorderlTreasurer position already has some responsibilities
for doing internal auditing and that a review and clarification is welcome.
Allen reviewed SAS 114, SAS 61 and the coming risk assessment suite of statements (SAS
104 -111) that the City will need to address.
AUDIT COMMITTEE MEETING
OCTOBER 29, 2007 PAGE 6 OF 7
updated for the Consumer Price Index per the agreement. Nutter wanted to know if the
Contingent Liability amount should be higher if there is a potential for additional cost. Staff
explained that the amount is calculated based upon the existing agreement between the US
Forest Service, Mt Ashland Association (MAA) and the City, that the real amount would only be
determined when and if the ski operations ceased and the City's share would be based upon
what restoration work the US Forest Service required at that time and if MAA assets were
insufficient to pay for the cost of the required work. Tuneberg said that it is better to use the
methodology and amounts agreed to by all three parties in the contingent liability note rather
than to speculate what it might be.
Nutter asked about the Uherhausen court cases that challenge the legality of the school local
levy option in Eugene and whether the City or Parks have a liability and should there be
amount identified in the contingent liability note. Bennett explained that no local person has
challenged Ashland's Youth activity Levy to date and it sunsets within the year. She also
pointed out that the APRC and School has an agreement that allows the Parks to retain
sufficient monies to pay for related Parks costs to resolve the issues raised in the Uherhausen
case.
Allen said that the case at this time does not meet the requirements for a contingent liability
note.
Public Input
Tom Gaffey asked about what he had heard regarding Parks operation and cash
management. He wanted to know who was in charge of the Golf course and said he didn't like
how it's not being run like a business. Levine pointed out the Parks is responsible for it and it
is a service not a business. Gaffey asked why there were no Parks Commissioners in
attendance and staff explained that this is a City committee and much of the earlier discussion
was in regard to whether there was any delegation of authority to this committee by the Parks
Commission. Tuneberg said the CUFR will be presented to the Commission and he could
provide his input to them at one of their meetings.
Committee Discussion
Question and Answer
Nutter asked for more information on the earlier bond rating question. He wanted to know if
the rating on page 15 is an appropriate rating and a good indicator of the City's financial
condition? Tuneberg responded that the assigned rating on page 15 is higher because the
City bought insurance to get the best interest rating we could. The investors often want to
know what the underlying rating (without insurance) to evaluate the financial condition of the
agency selling the bonds. Tuneberg said the A2 underlying rating is good for our agency and
size but cautioned that a rating is based upon conditions at the time of the sale and can
CITY OF ASHLAND
ASHLAND, OREGON
2006-2007
MANAGEMENT REPORT
o Controls over expenditures to ensure that there are no fraudulent checks or checks written in error -
Who tracks the check sequence, who reviews the canceled checks back from the bank, who has
custody of checks, and who is authorized to approve disbursements?
o Detailed explanation of the controls over cash accounts, including how many people it takes to
open/close an account, controls over wire transfers, and review of bank reconciliations.
o Controls over cash receipting - How do you ensure that receipts are always given, and that all receipts
are recorded in the general ledger. How often are deposits taken to the bank.
o What internal controls and monitoring is used for reviewing and ensuring that the financial statements
are accurate and are in conformance with GAAP (the control procedure here would be sending staff to
training on new pronouncements, etc.)
o Any internal audit functions, antifraud programs, etc.
o Monitoring of internal controls by management and the governing body to ensure that controls are
functioning properly and are evaluated when systems, the environment, and employees change.
o Other areas that could be discussed - capital asset accounting, employee dishonesty insurance, physical
security of documents, payroll processing/timesheets, and any other applicable financial areas.
o Because of a limited number of available personnel, it is not always possible to adequately segregate
certain incompatible duties so that no one employee has access to both physical assets and the related
accounting records or to all phases of a transaction. Consequently, the possibility exists that
unintentional or intentional errors or irregularities could exist and not be promptly detected. We
recommend that the City address their segregation of duties issue in their internal control policies and
procedures.
2. We noted that the Information Technology (IT) department does not have written internal control
procedures that documents their internal controls over their internally developed utility billing system. We
also noted that there was no written internal control procedures that details the general controls over all
computers and systems City-wide. We recommend that the City develop written internal control procedures
for these areas.
The following are our recommendations for the previous year. The comments are repeated from our report to
management for the year ended June 30, 2006, for perspective.
1. We noted that not all major balance sheet accounts were reconciled on a periodic basis. We recommend
that all major balance sheet accounts be reconciled on a monthly basis.
2. In order to get fixed asset information into a format that is needed for the financial report, the City must
export their fixed asset register out of Eden and into Excel. The City then manipulates the data within Excel.
Excel is not made for fixed asset accounting and is prone to errors. We recommend that the City work with
Eden to enhance their fixed asset accounting system, in order to make it easy to work with and in the needed
formats for financial reporting.
3. We noted that the utility billing system cannot produce a report that breaks out the utility receivables
by fund. This report would be a useful reconciliation tool for the City. We recommend that the City
address this report writing issue.
A material weakness is a significant deficiency, or a combination of significant deficiencies, that results in more
than a remote likelihood that a material misstatement of the financial statements will not be prevented or detected
by the entity's internal control. We did not identify any significant deficiencies that are considered to be material
weaknesses:
SAS No. 104-111- The Risk Assessment Suite
The Auditing Standards Board has issued eight additional new statements related to risk assessment,
effective for audits of financial statements for periods beginning on or after December 15, 2006. This
"SAS Suite's" primary objective is to enhance auditors' application of the risk assessment model in
practice, and will require additional auditor and staff time in future years.
This communication is intended solely for the information and use of management, the Council, and others within
the organization, and is not intended to be and should not be used by anyone other than these specified parties.
PAULY, ROGERS AND CO., P.c.
c. Detailed explanation of the controls over cash accounts, including how many
people it takes to open/close an account, controls over wire transfers, and
review of bank reconciliations.
d. Controls over cash receipting - How do you ensure that receipts are always
given, and that all receipts are recorded in the general ledger. How often are
deposits taken to the bank.
e. What internal controls and monitoring is used for reviewing and ensuring that
the financial statements are accurate and are in conformance with GAAP (the
control procedure here would be sending staff to training on new
pronouncements, etc.)
f. Any internal audit functions, antifraud programs, etc.
g. Monitoring of internal controls by management and the governing body to
ensure that controls are functioning properly and are evaluated when systems,
the environment, and employees change.
h. Other areas that could be discussed - capital asset accounting, employee
dishonesty insurance, physical security of documents, payroll
processing/timesheets, and any other applicable financial areas.
i. Because of a limited number of available personnel, it is not always possible to
adequately segregate certain incompatible duties so that no one employee has
access to both physical assets and the related accounting records or to all
phases of a transaction. Consequently, the possibility exists that unintentional
or intentional errors or irregularities could exist and not be promptly
detected. We recommend that the City address their segregation of duties
issue in their internal control policies and procedures.
Response: Staff agrees with the Auditor's assessment however the reader must note that
there are things being done within many of the "bulleted" areas but they are insufficient in
practice or documentation to clear this comment. I do not believe there is one document that
addresses all of the issues to the detail level identified within SAS No.112. The key here is
understanding and acceptance by those responsible for governance. This is an ideal time for
the City to update, combine and augment the financial management policies included in the
budget document and the cash and investment policies administered through the City
Recorder/Treasurer's office for review and acceptance by City Council. This process should
address each of the points included in the auditor comment, incorporating anything that is in
existence or has already been accomplished so that the written requirement is met. This
document must then be trained upon and used to ensure it remains current and can be
validated routinely by Council.
2. We (the Auditors) noted that the Information Technology (IT) department does not have
written internal control procedures that documents their internal controls over their
internally developed utility billing system. We also noted that there was no written internal
control procedures that details the general controls over all computers and systems City-
wide. We recommend that the City develop written internal control procedures for these
areas.
Response: Staff agrees with the Auditor's assessment. Prior Technology Plans and
software documentation require updating and revision and the Technology Department is
working on them. Updates are in process and should be complete in FY 2007-2008. The
points identified in this comment will be addressed as part of the new documentation.
ii
Response: Staff agrees that a review and validation by Council of the roles, responsibilities
and expected communications between the mentioned groups or positions will be beneficial
to all and provide compliance to this new requirement.
SAS No. 104-111 - The Risk Assessment Suite
The Auditing Standards Board has issued eight additional new statements related to
risk assessment, effective for audits of financial statements for periods beginning on
or after December 15, 2006. This "SAS Suite's" primary ohjective is to enhance
auditors' application of the risk assessment model in practice, and will require
additional auditor and staff time in future years.
Response: Staff looks forward to working with the auditor on these relatively new
requirements.
In summary, I hope these responses are helpful in understanding the work being done by the
Administrative Services Department to meet or exceed City expectations and legal requirements.
It should be understood that increased requirements such as those presented and discussed above
will have a financial impact (staffing, workload and training) to ensure compliance.
Sincerely,
Lee Tuneberg
CIty of Ashland
Administrative Services & Finance Director
IV
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Approval of Contract Amendment for Engineering Services in Excess of 35%
For the Street 1m rovement Pro'ect No, 2005-34
December 4,2007 Primary Staff Contact: James Olson, 488-5347
Public Works / Engi eenng E-Mail: olsonj@ashland.or.us
Finance Secondary Contact: Pieter Smeenk, 488-5347
Martha Benne Estimated Time: Consent Agenda
f\
Question:
Does Council approve a second amendment to the existing contract for engineering services with
Marquess and Associates Inc. for an additional $51,520 in professional services, an increase of 47.6%
over the current contract amount of $1 08,293 .OO? The additional funds to finance the design and
development of the following projects:
1. 'B' Street Waterline Replacement - Oak Street to Fifth Street
2. Hersey Street Sidewalk Reconstruction - Oak Street to Ann Street
3. Hersey Street Storm Drain Bypass
Staff Recommendation:
Staff recommends approval of Contract Amendment No.2 with Marquess and Associates, Inc. in the
amount of $51 ,520.00. Each of these projects are included within the current budget.
Background:
The City currently has a flexible engineering services contract with three local engineering firms
including Marquess & Associates, Inc. (MAl), Thornton Engineering, Inc. (TEl) and Hardey
Engineering and Associates, Inc. (HEA). The contracts were issued in response to a request for
proposal to establish a pool of pre-approved and well qualified engineers willing and able to develop a
variety of small scale projects without further proposing. Engineers were selected from this short list
based upon their current work load, project expertise and cost. This process saves the City from going
through a lengthy (over 30 days) proposal process for each and every engineering project that the City
puts forth. MAl was selected for these three projects as they are currently working on similar projects
in the area.
Proiects
1. 'B' Street Waterline Replacement
MAl currently has a contract with the City to design the reconstruction of 'B' Street between Oak
Street and Fifth Street. A recent review of the waterline in this section of the street indicates that it
is prone to leaks, is undersized and should be replaced concurrently with the planned street
construction. Engineering costs for this work is $9,940.00.
2. Hersey Street Sidewalk
The 5' wide sidewalk located on the north side of Hersey Street between Oak Street and Ann Street
is no longer ADA compliant. There are approximately 26 trees planted within the sidewalk in three
foot square planters that effectively reduce the usable sidewalk width to only two feet. In addition,
Page I of2
05-34 CC to Increase Eng Serv Contract II 07.doc
G:'pub-wrkseng\dept-admin'ENGINEER' PROJECT.2005\05-34 CC to Increase Eng Serv Contract II 07.doc
!'A~
CITY OF
ASHLAND
root growth has caused numerous sidewalk upheavals resulting in vertical displacements of several
inches in some locations. Under this proposal, unhealthy trees would be removed, the sidewalk
repaired and additional easements would be acquired to allow the walk to be widened around the
trees to be saved. New trees would be planted where possible. Engineering cost for this portion of
the project is $21,900.00.
3. Hersey Street Storm Drain Bypass
This project would relieve storm drain capacity within the Clear Creek Drainage Basin by
providing a bypass directing storm drainage to Ashland Creek or to the Ann Street drainage
system. The engineering cost for this portion of the contract is $19,680.00.
Related City Policies:
Under current City of Ashland purchasing and contracting rules, the Council shall review all contracts
in excess of$75,000 and all contract amendments in excess of35% above the current contract amount.
Council Options:
The Council, acting as the Local Contract Review Board, may approve this second amendment to the
current engineering services contract with Marquess and Associates to include design and development
of: 'B' Street Waterline Replacement, Hersey Street Sidewalk Reconstruction and Hersey Street Storm
Drain Bypass~
Or, Council may decline to approve the contract amendment;
Or, Council may choose to limit the number of projects to be included within the amendment by
eliminating one or more of the three projects.
Potential Motions:
Council may move to approve or reject the second amendment to the Engineering Services Contract
with Marquess and Associates, Inc.
Or, Council may move to approve the second amendment to the Engineering Services Contract with
Marquess and Associates, Inc. by eliminating one or more of the projects from the contract.
Attachments:
Vicinity Map
Contract Amendment Form
Page 2 of 2
05-34 CC to Increase Eng Serv Contract II 07.doc
G:pub-wrks\engdept-admin\ENGINEER.PROJECT\2005'()5-34 CC to Increase Eng Serv Contract II 07.doc
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ENGINEERING SERVICES CONTRACT
AMENDMENT NO.2
Engineering services contract made on the date specified below in Recital A between
the City and Engineer as follows:
Recitals:
A. The following information applies to this contract:
CITY: CITY OF ASHLAND ENGINEER Marquess & Associates, Inc.
City Hall Address: 1120 East Jackson Street
20 E. Main St. PO Box 490
Ashland, Oregon 97520 Medford OR 97501
(541) 488-6002 FAX: (541) 488-5311 Teleohone: 541n72-7115 Fax: 779-4079
Date of this agreement: March 10, 2006 B: RFP Date: January 18, 2006
Proposal Date: February 21,2006
~2.3 City Contracting Officer: James H. Olson, Project Manager
~2.4. Project: Street Improvement Project No. 2005-34
~6.1. Engineer's Representative: Rick Swanson P.E.
~8.3. Maximum Contract Amount:$74,460.00 (First Adjustment= $108,293.00)
(Second Adiustment =~$$159,813.00)
B. AMENDMENT NO.2
1. Modification to Section 2.4
a. Add the following project segments to the scope of services
· B Street waterline replacement (Oak Street to Fifth Street section)
· Hersey Street Sidewalk Reconstruction
· Hersey Street Storm Drain Bypass, Phase I and Phase \I
2. Modification to Section 8.3
1. Add cost of B Street Waterline Replacement
(Oak Street to 5th Street)
2. Add cost of Hersey Street Sidewalk Reconstruction
(Oak Street to Ann Street)
3. Add cost of Hersey Street Strom Drain Bypass
Phase I (feasibility Study)
Phase II (design and construction)
Total Contract Amendment
$ 9,940.00
$21,900.00
$ 7,080.00
$12.600.00
$51,520.00
G:\pub-wrks\eng\dept-admin\ENGINEER\PROJECT\2005\05-34 Marquess Contract Amend 2 11 07.doc
1
Original Contract Total = $74,460.00
First Adjusted Contract Total = $108,293.00
Second Adjusted Contract Total = $159,813.00
CONSULTANT
CITY
BY
BY
Finance Director
Fed. 10 #
REVIEWED AS TO CONTENT
BY
City Department Head
Date:
Coding:
(for City use only)
G:\pub-wrks\eng\dept-admin\ENGINEER\PROJECT\2005\05-34 Marquess Contract Amend 2 11 07.doc
2
CITY OF
ASHLAND
Council Communication
Appointment to Forest Lands Commission
Meeting Date:
Department:
Approval:
~ December 4, 2007 ~
l V City Record~~..A~
Martha Ben:/, , 1\
Primary Staff Contact: Barbara Christensen
488-5307 christeb@ashland.or.us
Estimated time: 10 minutes
Question:
Does the Council wish to confirm an appointment by the Mayor for the vacancy on the Forest
Lands Commission for a term ending April 30, 2009?
Statement:
Confirmation by Council on the appointment by the Mayor of Carolyn Breece to the Forest
Lands Commission for a term to expire April 30, 2009.
Background:
This vacancy occurred upon the resignation of Zack Williams whose term would have ended
April 30, 2009.
Vacancy notice was placed on the city web site and three applications were received. These
applications are included for your review.
Council Options:
Choose to approve or not to approve the appointment by the Mayor.
Staff Recommendation:
None
Potential Motions:
Motion to approve appointment of Carolyn Breece to the Forest Lands Commission for a term to
expire April 30, 2009.
Attachments:
Applications received
~~,
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{ I. \"v'}I, 'Hi :[ ind'/ C i.'1)CCfn:
:\L Ht'il:.:' i:, \nn South and I am applying for a positi\.m on the Ashland hm:')t Lund.-.:
i '(,mrn',Si\HL ~ :nduscd is my ilpplica1iun \vith a brief history of '.vhy lthlnl,; ! \.pwlj !': for
this ~)t)~.;ititJn.
yn ,c ,':" '.C'il .,,1.:1 woman, retired and a ''Ii'ldow and have haJ experience Vlorkin,~ 11'
";,n'l' 'ii"; \\i1\1 managing my own f()rcsted property.
, '. '.'"ding my application please feel free to call me for any I'mth.T ,:lariFh:,t!iOli ,1:\'.1
11( :nL);Tlul1l)\l I\;g;ardillg this application.
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a#tt1fU ~aiIL
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CITY Of
AS I-I LAN 0
APPLICATION FOR APPOINTl\'lENT TO
CITY COMMlSSJON/COM1\1JTTEE
P,l_case (~p~,~'r ~)lin1. ans\vers to lhe ~ollo,,~ing questions and s~lhmit to the Clty~e.c -der at
t, It)' l Lw, _U L Malll Street, or em all tJlg,_h:l) !{2,~.sbin!:_d \lr,.t.I_~. Jj you have an) ques ~
I'!<.-:l ;,,' h.'el f'T~ tp contact the City Recorder at 488-5307. Attach additional.' l't5 if@~
IW('1'S~ :n-:, . J'f"p ~[b
Nam" 'Inn SOUl~n ______ ____s};----------~ 6' <''tJ(J? )
.............
.................
LArltk
Requ('sting to serve on: Ashland FonestCommission
(Cornmission/Coml1litte~ )
'\'.:.,1.e.,s! 257 Siskiyou Blvd. #204 for mailing Street address is 10.000 Copeo
i\',~~_hJ
(\:cu'),jtinn Retired Phone: Home54i 890-
I _. ________________.._______________
081:-)
WorkS41 890-
~.~ .~~t () ;I'~
r m<lii: gardengjrlsdream@yahoo
Fax
I. f,dll~a.jon Hackeround
What ~chools have you attended? Oklahoma State University, Central State
Uni\tT~ity_ University ofOklahoma__________________m__________________ __ __
\VI1,I( degrees do you hold?
BA in Education, M.Edu.Psychology
Wh:1! (\dditional training or education have you had that would apply to this position?
! k:\<:~ h.:t'n an organic farmer for over 16 year:'. growing anJ raising trees. shruhs and
\llhel' planh and hnve managed my own ti.>restca property of 5 acres t(i\" \) years.
2. Related EXllerience
\\'hat prior work experience have you had that would help you if you were appc\inkd to
~ h i~ po.;i{iull'?
__ __ _ ___ _As a teacher and counselor, I have worked in group situ<ltions. making
decisions and planning, developing and implementing various projects. I wn familiar ',\, ith
the gronp process. decision making and goal setting etc.
,1 have recently become involved with: The Sustainable Forestry Nehvork and Soda
J'v1ountain Wilderness Council.
------- ... ._~~@>~jj'&"
S It;:> -2 l!9 <{
----- --- -- -- J;.. -- --- IJ la '
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Do you feel it would be advantageous for you to have further training in this field, Sllc1T~~~ ~,'
as attending conferences or seminars? Why? _1 do, because no matter how much you ~~~~""
knO\". you can always learn more. _______. '
r.l'
3. Intcn.'sts
Why arc: you applying for this position? I have lived in Ashland and the surrounding
area "illec ] 996. I recognize its beauty and diversity and its' ability to demonstrate that
luud government can work for the betterment of the land and its people. I feel a need at
Ihis time in my life to make a contribution to the community and its residence. I am also
conclTncd about the need for more sustainable forestry practices. If we can continue to
demonstrate this in Ashland then we can set a precedent for other cites and communities,
I believe that change and positive growth is most effectively met on the locallcvel. I am
proud to he in a city that recognizes the value of its'citizens, property, and forests. 1 want
k, he involved.
4. A\'aiJability
Art' YOll available to attend special meetings, in addition to the regularly scheduled
m'-;l:ting~;'} Do you prefer day or evening meetings? If! am nlerted ahead of time. I
prefer day..______
:'. Ai~ditional Information
!lov. long have you lived in this community?
1990
I have lived here since
Pleuse use the space below to summarize any additional qualifications you bave for this
position
. J9 2007_
Septemhet _.
Dale
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tkK-~---.. Signature
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591 Fairview S1. Apt D
Ashland, OR 97520
September 19, 2007
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City Recorder
20 East Main S1.
Ashland, OR 97520
Dear City Recorder:
I would like to apply for a volunteer position on the Forest Lands Commission. I am a
recent graduate of Northern Arizona University, where I received a Master of Science
degree in Forestry. For my thesis project, I studied the effects of prescribed fire on bark
beetle activity and tree mortality in ponderosa pine forests. My graduate education also
included courses in forest entomology, fire ecology, wildlife-habitat relationships, forest
ecosystem management, and forest health.
I am interested in the Forest Lands Commission because I would like to participate in the
management of Ashland's forests. Though I have a formal education in forestry, I am
eager to learn firsthand how local forests are managed. The management of Ashland's
forests is unique in that community members are very involved and management goals
are diverse (e.g., fire, wildlife, recreation, etc.). The opportunity to be a part of the
management team is exciting. In addition to my interest in management, I would like to
be a part of the commission because of my connection to Oregon forests. As one who has
worked, recreated in, and simply enjoyed Oregon forests for most of my life, I believe I
could be a representative voice for many community members.
Thank you for your consideration. Please contact me if you have any questions. You can
reach me by phone (541) 482-8945, email (carolyn_breece@yahoo.com). or by mail.
Sincerely,
~~ '
~//?~
Carolyn Breece
CITY OF
ASHLAN~ ,/
APPLICATION FOR APPOINTMENT TO ,~@>
CITY COMMISSION/COMMITTEE ~ ~ ~ I
<J )-; )<:> ~
Please type or print answers to the following questions and submit to the City Recofdcr at -2 ,> /1!:::>A
City Hall, 20 E Main Street, or email christeb@ashland.or.us. If you have any questions, "'" ~ ~
please feel free to contact the City Recorder at 488-5307. Attach additional sheets if "" #/
necessary. ' ""
Name C4;.UL Y N &.Ea[ ""
Requesting to serve on: ~es T LAt\.J b S ~;i~~i~.Qommittee)
Address~EW 5'[ Mr D1kHLA-ND
Occupati on ;::;!"~d hi'! J s U (lie ~<Y, K 11",.1\ 6;,1 ~one: Home 51! f /; ff'2 -fJ 9.1f~
(Y/O r of: /-~Rar--ol4 5tlY) Work
Email (larJ~n Ioreec..e @ :rJ'0'4,U~
Fax
1. Education Back2round U
What schools have you attended? ~17l/ of Cet66N ('91~--1?97)
What degrees do you hold? !VOWffj\/ A~ t;aNA UV/l-{;~i T( (20(]/-:u~)
bAC~u.oe. 6F <;0 E;.J(f ,~BIOW 6'1,/ ./lIl/l<;7IT"~ Sclt-Nct: {,\I FirlESrR.'1
What additional training or education have you had that would apply to this position?
2. Related Exnerience
What prior work experience have you had that would help you if you were appointed to
XOSition? , r I I I .L'
have hptn a. ~aS;0Y14L WI{a ere (esearc~ kclvietCzVl'(crv-
1 SptiStJYS- morl oF' cJhid ha~ bein .(;- brnl SUrve.:;S. r dso
~ ~n'ertP- i<lth vt'~M Surve"lS.
, U
Do you f~el it would be advanta~eous for you to have further training in thj,s fJeld, such
as attending conferences or semmars? Why? ye.~, :r. have .wmd JY"i:Vn/r;J 11
~ t'YlaJ '?112/11- of Ylckrost-L IN ~ 6A J t!ov'W use
1 iC~ 7rcoYlI~ fA tn4.i1~;ttfJ1b;/ 01 rY7~ C{Jll;{er.~
. cat wOcd &i~ an) Pa&UJJe U:f Mte ~~! ~ JIIP.~
-W- ~ 1 ~,,!:tLor; furi1w-trdrYLi~ U\ ~)ltuzA' nitlU'r"JJ, ..
N~J'''C~ 1;,.:s/;av.cJ n;e rer'S/-~' ioJi1//td ~ (dVIb/;l,?VS.
3. Interests . ~
Why are you applying for thi,S positiuu? ,I' Ilm 1~1eI1J? ~/~ ___ ~@>
fKplfnce. II\. ~ (g('~ ~fts, (lp,e ieti:ral-Ihnmt~~:. ~ <" <;!?';g,
..............~~ ,
4. Availabilitv
Are you available to attend special meetings, in addition to thjgularly sche?uled .. .
meetings? Do you prefer day or evening meetings? f s/ tUrl dVdiel~1e ~
!liIth) .:f&d rneilJnuS/f!-f'e-f,-..)!,e III #e ~/~J
5. Additional Information
How long have you lived in this community?
/ fJUJL
(j
Please use the space below to summarize any additional qualifications you have for this
position I . '.. '
~ (fkrJen ~ wrK Idl \ OYI !JtrJ: 6eefteJ' tb1.d f1eJ&J/k/
. rei SD #.?. 6-abU~ M tJM'fl I'fl(! .Mftl/.'el'7&L ih ~
Cupg~\ tJJuch are ;dtiJJrtrto /;;t!d /kot5:
~(02q06
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19nature
-'
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CITY OF
ASHLAND
APPLICATION FOR APPOINTMENT TO
CITY COMMISSION/COMMITTEE
Please type or print answers to the following questions and submit to the City Recorder at
City Hall, 20 E Main Street, or email christeb@ashland.or.us. If you have any questions,
please feel free to contact the City Recorder at 488-5307. Attach additional sheets if
necessary.
Name
Chad M. Derosier
Requesting to serve on:
Forest Lands Commission
Address
952 B Street #3, Ashland, OR 97520
Occupation
"The Chai Guy" or Vice President, Heartsong Herbal Brewing Company
Phone: Home 541-210-7321
E-mail: chaiguy@heartsongchai.com
Work 541-488-5614
Fax 541-488-5629
1. Education Background
What schools have you attended?
Keene State College,J996-200J, Dakubetede Environmental Education Program 2000
What degrees do you hold?
BS, Environmental Policy with a Specialization in Geography.
What additional training or education have you had that would apply to this position?
J have attended several environmental conferences on the east and west coasts and
worked for RESTORE: The North Woods, assisting in the creation a national park in
Maine. J attended the Dakubetede Environmental Education Program Ecostery, which
submerged me into a two-month long residential intensive environmental program. We
closely studied forest ecology and natural history in the Littlie Applegate.
2. Related Experience
What prior work experience have you had that would help you if you were appointed to
this position?
J worked at RESTORE: The North Woods, whose goals is to create a 3.2 million-acre
national park and preserve in Maine. J serve on the Board of Directors for the Birch
Creek Arts and Ecology Center located in the Little Applegate, and worked alongside
Chant Thomas ofT.E.L.A. V (Threatened and Endangered: Little Applegate Valley) to
create a wildlands plan. J have conducted field research for the Environmental Research
Institute at the University of Connecticut.
LJU yuu 1\;;\;;1 1l VVUUJU U\;; au V <1.lHal::.\;;VU;) 1VJ yvu LV HaV\;; 1UJ LH\;;J LJaHHlJl::. HJ LlJJ;) Jj\;;JU, .:>Ul;jJ
as attending conferences or seminars? Why?
Yes. I believe that any further education in the area that one works allows for more
comprehensive critical thinking in the decision-making process. Conferences and
seminars allow the individual to fully submerge themselves in the conference material
and keep informed on the latest information available. Networking with other people
working in the same field is advantageous for learning new methods and to learn what
other communities are doing.
3. Interests
Why are you applying for this position?
I am seeking ways to become more involved in my immediate community in a greater
way. I want to serve on the Forest Lands Commission as I have a deep love for the forests
surrounding Ashland and beyond. I want to be a participatory member of my community
in an area that I have a passion for.
4. Availability
Are you available to attend special meetings, in addition to the regularly scheduled
meetings? Do you prefer day or evening meetings?
I am available to attend special meetings in addition to the regularly scheduled meetings.
My job sometimes demand that I am out of town on an irregular basis but I spend most
of my time in Ashland. I prefer evening meetings but I am available for day or evening
meetings.
5. Additional Information
How long have you lived in this community?
I have lived in Ashlandfor almost two years. I have lived in Southern Oregon, Little
Applegate and Jacksonville, for four years. 1 lived in Southern Oregon for a year in
2000-2001.
Please use the space below to summarize any additional qualifications you have for this
position
9/2512007
Date
Chad M. Derosier
Signature
rA'
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Council approval of contracted legal services
December 4, 2007 Primary Staff Contact: Richard Appicello
City Attorney's Office E-Mail: Appicelr@ashland.or.us
Finance Secondary Contact: Lee Tuneberg
Administration/Leg Estimated Time: consent
Question:
(1) Does the City Council wish to consolidate the legal service contracts with Harrang Long Gary
Rudnick PC. and authorize the approval of one contract, exclusive ofMt. Ashland, with a total not to
exceed $175,000.?
(2) Does the Council wish to terminate any of the existing contracts for legal services?
(3) Does the Council wish to alter the practice under the current AMC of retaining outside legal
counsel on an as needed, case by case basis, when the contract for a single legal matter does not exceed
$50,000. [Legal services are exempt from formal competitive selection pursuant to AMC 2.52.050.E.
and personal service contracts on a single legal matter can be administrative~v approved if the
contract does not exceed $50,000.00.]
Staff Recommendation:
(1) Staff recommends Council grant authorization to consolidate Harrang Long Gary Rudnick PC.
contracts, exclusive ofMt. Ashland., with a total not to exceed $175,000.
(2) Staff does not recommend termination of any legal services contracts.
(3) Staff does not recommend a change in use of the existing AMC exemption for legal service
contracts, except that the Legal Department will continue to give the Council the opportunity to
review, consolidate or terminate when all contracts with a firm are estimated to exceed $50,000,
regardless of the number of legal matters.
Background:
The City of Ashland has been experiencing an uncharacteristic surge in litigation and LUBA appeals in
the preceding six months to a year. With the legal department at less than full staff (past seven
months), the City Attorney's office sought informal proposals from several firms known for
performing work for local governments. While proposals were received from three firms, availability
oflegal personnel was limited. The Eugene firm of Harrang Long Gary Rudnick PC ended up with
many of the recent cases based on just timing.. Under City public contract rules, this kind of personal
services contract is exempt from formal competitive selection. (AMC 2.52.050 E.) Each of the several
City personal services contracts executed is for a separate and distinct legal matter (except for a
consolidated appeal in the Nevada Street litigation.). Under AMC 2.50 City staff can approve a
personal services contract up to $50,000 for a single matter or project. Although these legal service
Page 1 of 4
Revised Council Communication 12-4-07 Contracted Service .doc
r.l'
CITY OF
ASHLAND
contracts are not fairly consolidated as one legal matter (they are different cases with different firm
attorneys) it is appropriate to advise the Council of the contracts and expenditures and provide an
opportunity for consolidation or termination, Budget transfers in the future will also likely be
necessary to cover the larger than expected expenditures for unexpected litigation.
A summary of pending cases is set forth on the chart below. Many of the pending cases currently have
low expenditures because the cases have stalled due to filing of technical objections. (e.g. LUBA
record objections have been filed in two cases, delaying the time for filing the petition). While some
costs savings could be realized with early resolution and/or settlement of some cases, the listed "not to
exceed" amounts are realistic estimates.
NAME OF CASE CASE NO. NOT TO EXPENDED TO ATTORNEY
EXCEED DATE
1. Art Bullock v. City of Ashland LUBA 2007-218 $25,000.00 Holding Contract. R. Appicello
[247 Otis Street (Helman Baths) based on budget or
Final Plan Approval] concerns
Record objection filed No expenditure yet Harrang Long
2. Art Bullock v. City of Ashland 07 -3346-Z3 $25,000.00 less than $3,000
(Nevada St LID Final Harrang Long
Assessment) - (New 2007)
City Motion to Dismiss filed and
Atty fees requested
3. Art Bullock v. City of Ashland CA A-131252 $25,000,00 Less than $1000 Harrang Long
Consolidated cases (2 cases) CA A-133660
4. on appeal to Court of Appeals (04-3971-Z3 &
(2004 Nevada St LID cases) 04-3972-E7)
City prevailed in Circuit Court
Appeal stalled due to transcript
objections
Page 2 of 4
Revised Council Communication 12-4-07 Contracted Service .doc
r~'
5. Art Bullock, Judith 07-2167-Z2 $25,000.00 Less than $4000 R. Appicello
Pentkowski, Edward
Pentkowski, and Mary Dutton
v. City of Ashland (Schofield
LID - Circuit Court)
CityResponse on merits filed
Legal fees requested
6. Art Bullock Judith
Pentkowski, Edward
Pentkowski, and Mary Dutton Harrang Long
v. City of Ashland (appeal to
Court of Appeals from Art
Bullock's dismissal for lack of
standing in above case
7. Art Bullock, Phil Lang, and LUBA 2007-113 $25,000.00 Less than $1000 Harrang Long
Colin Swales v. City of
Ashland
Second Record objection filed
8 State of Oregon ex reI Park 06-4463-Z3, None None Richard
St. Apartments, LLC v. City of Appicello
Ashland, Art Bullock and
Phil Lang, Intervenors
Summary Judgment for Park
Street Apts. Attorney Fees
against Intervenor sought by Appeal No. ??? Possible contract
Relator-Developer A137118 for appeal to Court Harrang Long
9.. Appeal to Court of Appeals of Appeals
10. American Buddha v. City of USDC 06-3054-PA $ 7,500.00 Less than $500 Hoffman Hart
Ashland and the Washington and Wagner
Post
City prevailed in US District
Court. Briefs Due Jan/Feb 08
11. Bonnie Brodersen v. City of LUBA 2007-162 $25,000.00 Approximately Harrang Long
Ashland $20,000.
Awaiting LUBA decision
12. N. Mountain Land Co., LLC v. 07 -3695-Z7 $ 5,000.00 Approximately Harrang Long
City of Ashland $ 1,500.00
Settled with appeal hearing
CITY OF
ASHLAND
Page 3 of 4
Revised Council Communication 12-4-07 Contracted Service .doc
~A'
CITY OF
ASHLAND
13. Review of Parks Dept. None $ 525.00 Approximately Mike Franell
Personnel Decision $500.00 (complete)
Completed
14. Consultation on AFN None $ 7,500.00 Less than $1500 Beery, Elsner
complaint
Nelson v. City of Ashland et. (Now
al. Insurance
-
Case now handled by City's Defense)
Insurance Defense
15. Consultation on LID litigation Review $ less $200 Less than $200. Bullivant,
Completed 07 -2167 -Z2 (complete) Houser
16. Mt. Ashland Association v. 07-2744-E2 NOT NOT Harrang Long
City of Ashland INCLUDED INCLUDED
TOTALS Approximately Approximately
$175,000.00 $32,000.00
The Council can expect a formal budget transfer as outside legal costs will likely exceed budgeted
amounts despite savings from two vacant Legal Department staff positions. Currently all expenditures
for outside legal counsel are within budgeted amounts.
Related City Policies:
AMC Chapter 2.52 Personal Services. AMCChapter 2.50 Public Contracting.
Council Options:
(1) Council grant authorization to consolidate Harrang Long Gary Rudnick PC. contracts,
exclusive ofMt. Ashland., with a total not to exceed $175,000.
(2) Council could direct termination of one or more legal services contracts.
Potential Motions:
Move to authorize and approve of one consolidated personal services contract with Harrang Long Gary
Rudnick PC, exclusive ofMt. Ashland, with a total not to exceed $175,000.
Attachments: None
Page 4 of 4
Revised Council Communication 12-4-07 Contracted Service .doc
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CITY OF
ASHLAND
Council Communication
Amendment to Intergovernmental Agreement #90G00091 with Oregon
Building Codes Division
Department:
Secondary Dept.:
Approval:
Community Development
Legal
Martha Bennett, City
Administrator
E-Mail :
Secondary Contact:
Estimated Time:
Mike Broomfield - Building
Official
broom@ashland.or.us
Richard Appicello -
5 minutes
Meeting Date:
December 4,2007
Primary Staff Contact:
Question:
Should the Council approve and authorize the execution of the attached amendment to
Intergovernmental Agreement #90G00091 with the Oregon Building Codes Division to receive
payment for work performed between October 1, 2007 and November 30, 2007.
Staff Recommendation:
Approve the Amendment and authorize the Mayor or his designee (Building Official) to sign an
amendment to the existing contract with the Oregon Building Codes Division.
Background:
On June 19,2007, the Ashland City Council approved two intergovernmental agreements (plan review
and inspection) with the Oregon Building Codes Division allowing performance of work by the
Ashland Building Division in the state jurisdiction (Coquille, Oregon). The new agreements will take
effect for work after December 1, 2007 A previous intergovernmental agreement covers work up to
December 1,2007. Unfortunately that agreement has a not to exceed amount of$10,000 and an
amendment to increase the not to exceed amount is necessary for the State to pay the City for work
performed. . Upon execution ofthe amendment City invoices can be paid..
Related City Policies:
Intergovernmental Agreement Contract (Building Codes Division) #90G00091
Council Options:
Action requested is to receive payment for work performed
Potential Motions:
Consent agenda
Attachments:
Amendment #3 to 90G00091 Intergovernmental Agreement Contract
Page 1 of 1
-RArevisedCouncil Communication - revised IGA 90G00091
rA'
AMENDMENT #3 TO 90G000091
INTERGOVERNMENTAL AGREEMENT CONTRACT
1. This agreement is between the State of Oregon acting by and through its Department of Consumer
and Business Services, Building Codes Division ("Division"), and City of Ashland ("City").
2. The Contract is hereby amended as follows (new language is indicated by underlining and deleted
language is indicated by brackets):
III. FINANCIAL MATTERS
A. The Division agrees to pay the City an amount not to exceed [$10,000.00] $40,000.00, paid at the rate of
$65.00 per hour for electrical, plumbing, and structural/mechanical inspections.
D. All requests for payment shall be submitted to:
Building Codes Division
Attn: [Sarah L. Roth] Dodie A. Wagner
PO Box 14470
Salem, OR 97309-0404
3. Except as expressly amended above, all other terms and conditions of original contract, as
previously amended by amendment # 1 on 5/1/2007 and amendment #2 on 5/2/2007, are still in full
force and effect. Contractor certifies that the representations, warranties and certifications contained in
the original Contract are true and correct as of the effective date of this Amendment and with the same
effect as though made at the time of this Amendment.
Certification: The individual signing on behalf of Contractor hereby certifies and swears under penalty of perjury: (a) the
number shown on this form is Contractor's correct taxpayer identification; (b) Contractor is not subject to backup withholding
because (i) Contractor is exempt from backup withholding, (ii) Contractor has not been notified by the IRS that Contractor is
subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that
Contractor is no longer subject to backup withholding; ( c) slhe is authorized to act on behalf of Contractor, slhe has authority and
knowledge regarding Contractor's payment of taxes, and to the best ofherlhis knowledge, Contractor is not in violation of any
Oregon tax laws (including, without limitation, the following pursuant to OAR 150-305.385(6)-(B): For purposes of this
certification, "Oregon tax laws" means the tax laws names is ORS 305.380 (4), including without limitation the state inheritance
tax, gift tax, personal income tax, withholding tax, corporation income and excise taxes, amusement device tax, timber taxes,
cigarette tax, other tobacco tax., 9-1-1 emergency communications tax, the homeowners and renters property tax relief program
and local taxes administered by the Department of Revenue (Multnomah County Business Income Tax, Lane Transit District
Tax, Tri-Metropolitan Transit District Employer Payroll Tax, and Tri-Metropolitan District Self-Employment Tax; (d)
Contractor is an independent contractor as defined in ORS 670.600; and (e) the supplied Contractor data is true and accurate.
City of Ashland
Title:
Date:
By:
Federal Tax ID#:
AGENCY
Authorized
Signature:
Title: Deputy Administrator Date:
Agency Signature:
Title:
Date:
CITY OF
ASHLAND
Council Communication
Public Hearing Completion and Approval of Intent to
Limit the Glenn Street Railroad Crossing to Bicycles and Pedestrians Only
Meeting Date: December 4,2007 Primary Staff Contact: James Olson, 552-2412
Department: Public Works/ Engineering E-Mail: olsoni@ashland.or.us
Secondary Dept.: Comm Dev, Legal, Fire Secondary Contact: Richard Appicello
Approval: Martha Bennett Estimated Time: 30 minutes
Question:
Does Council approve a statement of intent and request a future resolution to limit the use of the Glenn
Street Railroad Crossing to bicycles and pedestrians only?
Staff Recommendation:
Staff recommends Council direct staff to work with the Oregon Department of Transportation (ODOT)
Rail Division to limit the use of the Glenn Street Railroad Crossing to bicycles and pedestrians only
with the intent to fully improve the Laurel Hersey crossing and allow for "credit" for the future
crossing at 4th Street. Staff will bring back a resolution to close Glenn Street to vehicular traffic.
Background:
Council opened the public hearing on November 20,2007, and heard part of the public testimony. The
remaining testimony and decision will likely be on this December 4, 2007 meeting. The staff report
and council communication for November 20th is attached in its entirety. In addition, based on the
initial public testimony and comments received by staff, staff has developed an addendum to the
original Council Communication which is also attached. The addendum discusses Council Options in
more detail and provides staff s assessment of consequences as a result of Council's potential action.
The issue: The City has approached the ODOT Rail Division for a permit to improve the Hersey /
Laurel Street crossing. This intersection crossing is complex due to the angle of the crossing and that
two busy streets intersect near the center ofthe railroad crossing. ODOT Rail Division has required
that the City simultaneously address the Glenn Street crossing to proceed with the improvement of the
Laurel/Hersey Street rail crossing. The Rail Division recommends that the Glenn Street railroad
crossing be closed to motorized vehicles and maintained only as a bicycle and pedestrian crossing.
Glenn Street is the northern most crossing within the City limits. The crossing is located in a
residential neighborhood with the lowest average daily traffic of all of the City's nine at-grade
crossings. The crossing has passive protection with stop signs, crossbucks, advanced warning signs
and pavement markings, but does not have active crossing arms. The sight distance is poor for both
trains and vehicles; trains have poor sight distance headed south toward the crossing and vehicles
heading west on Orange Street approaching the tracks from Quiet Village make a near 70 degree turn
less than 150 feet prior to the tracks as drivers head toward North Main Street.
Related City Policies:
ODOT has the authority to initiate a rail crossing closure on their own initiative and hold a hearing for
that purpose. The closure may also be initiated by a City Councilor other governing body.
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CC - Glenn St Closure
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CITY OF
ASHLAND
1. Do nothing - Council may elect to remove the Hersey / Laurel crossing improvement project from
the Capital Improvement Project list and allow the Hersey / Laurel crossing as well as the Glenn Street
crossing to function in the same manner as they have in the past - without further improvements.
Likely Consequences: ODOT Rail may allow the City to cancel its application for the
improvement of Hersey / Laurel and allow both crossings to continue to function in their present
condition. This option will negatively impact the City's ability to ever develop the North Ashland
Bikepath and will preclude options for further pedestrian improvements on Laurel Street including the
acquisition of grants to assist in the construction of sidewalks on Laurel Street.
Possible Consequences: Since the Glenn Street crossing does not meet AASHTO minimum
standards, ODOT Rail Division may, on their own initiative, submit the crossing to arbitration before
an administrative judge at which time the City will have an opportunity to present its case before the
judge. The outcome may be that the City will be forced to close or to fully improve the crossing.
2. Keep the Glenn Street crossing in operation and request authority to improve the Hersey / Laurel
crossing - Council may elect to continue with the application for the improvement of the Hersey / Laurel
crossing including construction of four new automated crossing gates and signals for each of the four
intersection legs as well as to continue to use Glenn Street as a viable rail crossing.
Likely Consequences: ODOT Rail will most likely declare an impasse and submit the entire
issue to arbitration before an administrative judge. The judge may order the City to either close Glenn
Street or to fully improve the closing. While this option would impact the City's ability to improve the
Hersey / Laurel crossing, other crossings such as Walker Avenue would not be affected and the City
could still move forward with its plans to improve this crossings. This option would also most likely
eliminate ODOT's fmancial assistance in the Hersey / Laurel improvement.
3. Close Glenn Street crossing: Council may elect to close the Glenn Street crossing and move
forward with the improvement of the Hersey / Laure crossing. This will require a resolution which
could be brought forward at a proceeding meeting. '
Likely Consequences: Plans for the closure of Glenn Street and the improvement of the Hersey
/ Laurel crossing (including all four legs of Hersey and Laurel Streets) would be approved by ODOT
Rail. The City would receive monetary assistance ($100,000) for the improvement of Hersey / Laurel
and would receive a credit for possible future crossing additions.
Possible Consequences: Depending upon ODOT's budgeting ability, the financial assistance
offer may be increased to include the installation of the four crossing gates - a $250,000 benefit in lieu
of the $100,000 offer.
4. Improve both crossings: Council may elect to maintain both crossings and fully improve them to
current AASHTO standards.
Likely consequences: Improvement of the Glenn Street crossing would be expensive and
difficult, but not impossible. The improvement would include reconstruction of street approaches,
installation of automated crossing gates and replacement of the crossing surface at an estimated cost of
$700,000. The Hersey / Laurel crossing improvement would cost approximately $1,000,000.
It is likely that ODOT would approve the application as long as all AASHTO requirements could be
met. The improvement of Glenn Street would also accommodate the future construction of the North
Ashland Bike Path and would also provide for bike and pedestrian crossings. The City could not
expect to receive ODOT Rail financial assistance under this option.
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05-15 CC Glenn 5t Closure Addendum II 07
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Art Bullock, 791 Glendower Street, thanked the Commission for their time looking at neighborhood
safety issues. He attended the recent workshop by David Engwitch who was very emphatic that design
and social setting are critical. The Glenn Street crossing is on e such venture. Please don't decide on
this closure tonight, but let the neighborhood know about the proposal so they can voice opinions. We
understand with council that the permit submission did not include closure of Glenn Street. We first
learned about the railroad improvements a year ago during the Nevada Citizen Group meetings. In the
discussion there was strong opposition to the Glenn Street closure. A survey was conducted and 95%
of people opposed the closure based on safety reasons. If Glenn Street is closed, traffic is diverted to
Laurel Street where it is introduced to the school zone. If the Laurel crossing is also closed then traffic
will be diverted over further to Helman Street and again increasing traffic in another school zone.
There are more people involved in this situation than just OOOT Rail. This is a neighborhood safety
issue. Don't close these crossings based only on an OOOT Rail position on closing 20%, which we
respect, but the neighborhood safety for our kids around schools. The neighborhood needs to see this
and follow up on a neighborhood safety analysis. If you close one or two crossings it is not in the best
interest of the neighborhood. There are 72 lots within the Billings Ranch Subdivision and there
preferred way is a straight route will effect the traffic counts if you add the 22 potential lots from a
proposed Helman development the traffic counts will continue to grow. All these new lots and existing
lots use Glenn and Laurel to access North Main. Look at the future with traffic counts. The opening of
Randy Street to more development which would overwhelm traffic going to Glenn to access North
Main. Bullock would like to do a serious neighborhood safety survey. These decisions could effect the
Laurel Street UD. There should be work with the neighborhood to develop a safety analysis.
Olson said this will be a public hearing and he agrees that he does not see an easy way to close any of
the suggested crossings. This will go to Council for the public hearing and let the public hearing be
advertised. The improvement permits will be held by OOOT Rail until they have heard from Ashland on
their proposal. There will be no new crossings allowed unless we close crossings. Bender commented
that 20% is not an arbitrary number. This is for two trains a day and not a real problem for our
community. There are not an overwhelming number of accidents at the crossings. Mannion feels that
these standards are more reflective of areas of high numbers of trains and high numbers of crossings.
Bullock looked up the data on the closures at the state level and the correlation between accidents to
the number of intersections. The theory is if you decrease the number of crossings then it will
decrease the number of accidents. There is also the funding issue if there are fewer crossings to
maintain then there is more money for the existing crossings.
Massie remembered during the Siskiyou Boulevard Redesign process that the proposal to close Iowa
was not supported, but now it is safer for children and no one seems to remain upset about the
closure. He does not support the closing of Glenn but there are extenuating circumstances. People
walking on the bikepath may be more open to the closing of the crossing if they don't have to deal with
the vehicle traffic. The problem is that without the bikepath, we don't know who will use it and there
is no way to ask a non-exiting group of users how they would feel with the street closure. We need to
communicate to the Ashland population that if they decide to keep the crossings open, there will be a
monetary cost to citizens to fund the maintenance and upkeep of the crossings. There are 20,000
people in Ashland and the cheapest cost of any of the improvements is $690,000. If the money is
coming out of their pockets, they may not immediately support keeping them open. There needs to be
a fact sheet developed explaining all these options to them. They need to be very informed on this
issue. How do you find the walkers who will use the bikepath in the future and ask them how they will
feel if the street is open or closed to vehicular traffic.
Bullock said the public hearing is reluctant to come by. Like to see more than a public hearing and
definitely wants to see more then just a yes or no vote by the council on the closures. There needs to
be a safety analysis to look at the Laurel and Glenn Street crossings. There needs to be information on
what will happen as the population in the neighborhood increases the traffic on Laurel.
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Page 6 of 8
Swales thinks that there is a lot of benefit from closing. Depends on how it is to be done on Laurel
since ODOT Rail suggests only closing a portion of the crossing. It doesn't close the whole street.
Drivers will still be able to go north at the t-intersection of Hersey. The Briscoe School is no longer a
school. Heresy is a collector and the intent is to send traffic to Hersey. At some point Hersey may
have a signal that would help control the traffic. The buildable lands inventory shows areas of
potential development and it is fairly predictable to measure the traffic growth in the area. We need to
look at the philosophy of multi-modal transportation and not focus solely on vehicles. If both crossings
proposed are closed could they be used as pedestrian paths and can they be fitted to accommodate
emergency vehicles. Then there would be a positive effect to make the bike and pedestrians access
better. The advantages for crossing with a stopping gate or flashing light may not be as good as a
closed crossing for pedestrians. There are a lot of questions. We need to be sure children could get to
school by walking instead of using cars. It would be nice to have had a way along the north to connect
to Jackson Road for the Billings Subdivision. Perhaps when the golf course is built, the access road
connecting to North Main via Jackson Road will be constructed. Bender felt that in the far future a light
rail system from Grants Pass to Ashland could be a reality and the right of way of the railroad would be
a valuable asset for the entire valley.
Massie felt that all discussion should have full disclosure to the public. There could be a benefit and
there could be support from the residents on the south side of Glenn to closing the crossing as a traffic
calming measure. We are just assuming that people will be against the closures. We also need to look
at the zoning of the Laurel area, because it may be a commercial or employment industrial area and a
closure could effect the zoning design for traffic. Is there a time frame that we need to respond to
ODOT? Olson needs to respond to continue the processing of the permits for the improvements. We
need to ask for direction from Council on how to proceed with the public involvement, this is a big
issue. Doyle commented that there are very nice crossing treatments on Tolman Creek Road and on
Helman. He is having a struggle supporting these closures. They are planning treatments at other
crossings and if the City has to pay $300,000 to $600,000 per intersection and ODOT Rail didn't have
any retribution to the community then why should we pay the money to have them improved to such
high standards. We need to do a street by street assessment with ODOT Rail and really see what need
there is for this kind of expenditure for a railroad that accommodates two trains a day. Mannion
agreed that for two trains a day, this is a lot of expense. Preslar supported having a study conducted
that considered the implications of closing crossings and how they affect the schools and the. future
traffic flows. Olson said it may be that Council wants a professional traffic impact study. Mannion felt
it would be horrible it this is the first the City heard about this concern. Olson said that a study was
conducted by HDR on the railroad crossing safety last year and that this has been a topic for the
Council goals for some time. Swales asked if OooT Rail would fund the studies and Olson felt that
with their limited budget that would not be possible. The parent ODOT may be able to fund. Doyle
asked if considering something similar to the Water Street railroad bridge could be an option. Olson
said that most of that was done because the area topography was conducive and it would be hard to
duplicate. If the development on Fourth Street continues it may be required to do a grade separation.
Decision:
Massie made a motion to forward the closure proposals from ODOT Rail to the City Council for a public
hearing and that all significant parties that could be notified to the fullest extent possible and talk
about the full fiscal impact of the maintenance and closure options.
Swales seconded the motion. Busse was concerned that the motion did not state a safety issue.
Massie amended the motion to include a study of all safety affects of closing or keeping the crossings
opened.
Doyle commented that each intersection is individual with peculiar problems. We can't just look at the
numbers of vehicles, there needs to be a study that includes more.
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Page 7 of 8
Olson would like to have from Council a direction to have a safety study by a contractor or by ODOT to
recommend how to approach the closures.
Preslar asked why ODOT Rail doesn't look at the hazards at the crossings instead of having a set
arbitrary percentage. Olson felt that the number of closures may be representative of the number of
closures the OooT Rail funding can support. The more that are closed the more money there is for
the remaining crossings. This is a way for them to catch up on their funding potentials.
Motion and amendment passed unanimously.
Colin seconded the amendment to the motion.
5. Ashland Bike and Ped Sign Designs by Keith Massie
Massie has been working on the installation of the Bike and Ped welcome signs. The signs have been
made but ODOT will not allow them in the right of way because of the use of black and white coloring
which signifies a regulatory sign. Massie suggests support in redoing the existing entrance sign and
creating a similar sign for the other side of town. The wording may need to be softened as it is heavy
handed. The Rotary donated the first sign and they may be willing to update the sign. We could also
go to other civic groups to see if they would be willing to donate toward the welcome signs. There
should be consistency between the signs. Massie is going to approach the Rotary and report back.
6. Bike and Pedestrian Issues and Concerns
BTA request for funding of bicycle education in the schools has been postponed. The B&P commission
would like to defer until they could have all schools on board and need to clarify when this would be
paid for before or after class were taught.
Decision:
Massie motion to defer funding until further direction from the B&P Commission. Bender Second the
motion and it passed unanimously.
C. Follow-Up on Previous Actions - No discussion.
D. Development Review:
1. Planning Commission Agenda
2. Hearings Board Agenda
E. Capital Projects Update: No discussion.
F. Other:
1. City Source Message
2. Miscellaneous Communications
3. Bike Helmet Purchase: Massie has not purchased the bike helmets yet for his visits to
the schools. The helmets cost $5.95 each and the police department is no longer going
to be participating in purchasing helmets. Massie will be notifying the principals of the
schools and then distributing free helmets to children who bike to school.
IV. Adjourned 8:53 PM
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Page 8 of 8
CITY OF
ASHLAND
Council Communication
Public Hearing and Approval of Intent to
Limit the Glenn Street Railroad Crossing to Bicycles and Pedestrians Only
Meeting Date: November 20,2007 Primary Staff Contact: Paula Brown, 552-2411
Department: Public Works/ Engineering E-Mail: paula@ashland.or.us
Secondary Dept.: Comm Dev, Legal, Fire Secondary Contact: Jim Olson, 552-2412
Approval: Martha Bennett Estimated Time: 30 minutes
Question:
Does Council approve a statement of intent to limit the use of the Glenn Street Railroad Crossing to
bicycles and pedestrians only?
Staff Recommendation:
Staff recommends Council direct staff to work with ODOT Rail Division on the intent to limit the use
of the Glenn Street Railroad Crossing to bicycles and pedestrians only with the intent to fully improve
the Laurel Hersey crossing and allow for "credit" for the future crossing at 4th Street.
Background:
Council approved the current railroad crossing improvement project on November 1,2005. This
project provides for the replacement of crossing surfaces, construction of bike and pedestrian crossings
and in some instances, the installation of automatic crossing gates. The crossings to be improved in
priority order include:
1. East Main Street
2. Hersey / Laurel Streets
3. Glenn Street
4. Oak Street
5 . Walker Avenue
With the exception of the sidewalk and bikelane relocation, the East Main Street crossing has been
improved. The City has approached the Oregon Department of Transportation (ODOT) Rail Division
for a permit to improve the Hersey / Laurel Street crossing, the next on the priority list. This
intersection crossing is very complex due to the angle of the crossing and the fact that two busy public
streets intersect near the center ofthe railroad crossing. To proceed with the improvement of the
Laurel/Hersey Street rail crossing, ODOT Rail Division has required that the City simultaneously
address the Glenn Street crossing. The Rail Division continues to strongly recommend that the Glenn
Street railroad crossing be closed to motorized vehicles and maintained only as a bicycle and
pedestrian crossing.
Glenn Street is the northern most crossing within the City limits. The crossing is located in a
residential neighborhood with single family detached housing to the east of the tracks and multi-family
apartments and condominiums to the west. North Main Street is 2 blocks to the southeast. Glenn
Street has the lowest average daily traffic of all of the City's nine at-grade crossings. The crossing has
passive protection with stop signs, crossbucks, advanced warning signs and pavement markings, but
does not have active crossing arms. The sight distance is poor for both trains and vehicles; trains have
poor sight distance headed south toward the crossing and vehicles heading west on Orange Street
Page 1 of 13
CC Glenn 5t Closure PH 20Nov07
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CITY OF
ASHLAND
approaching the tracks from the Quiet Village side make a near 70 degree turn less than 150 feet prior
to the tracks as drivers head toward North Main Street. Train speeds are typically 20 mph within City
limits.
Prior discussions with ODOT Rail Division
Following the City's preliminary application to improve this crossing, ODOT Rail Division convened
a "diagnostic review" of the crossings. The review team consisted of three persons from ODOT, three
Central Oregon & Pacific Railroad (CORP) employees and three City staff members. ODOT and
CORP were unanimous in their recommendation that the Glenn Street crossing must be considered
with the Hersey/Laurel crossing and that the Glenn Street crossing be closed to vehicular traffic. It
was further recommended that the south leg of the Laurel Street also be closed. Engineering staff
argued that the request was being made without a good understanding of the traffic demands and
patterns in the area. With the closure of Briscoe School, Laurel Street serves as a "safe route" to
Helman School and it also provides a major connector to the Quiet Village area. Staff expressed the
fact that a crossing closure would not decrease the number of vehicles crossing the tracks, it would
only decrease the points at which they could cross. At the conclusion of the diagnostic review,
engineering staff asserted that the Laurel Street crossing closure was not possible and the Glenn Street
crossing closure was unlikely. Certainly the two crossings closures together would be impossible due
to the negative impact on traffic patterns and emergency response efforts.
Page 2 of 13
CC Glenn St Closure PH 20Nov07
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CITY OF
ASHLAND
In January of 2006, ODOT Rail Division further reiterated their desires to close the Glenn Street
crossing and the south leg of the Laurel Street crossing and offered a financial incentive to do so. In
the attached January 19,2006 letter from Myron Arneson, Senior Crossing Specialist, ODOT outlined
the perceived defects of both crossings and offered the following:
GLENN STREET CLOSURE
If the City were to close Glenn Street to vehicular traffic while maintaining a bicycle and
pedestrian crossing, the Rail Division offered to install automatic crossing gate signals at the
Oak Street crossing. This would replace the old outdated wig-wag signal and is one of the
improvements identified for that crossing. The estimated cost to install automatic crossing
gates on Oak Street was $300.000.00.
LA UREL STREET CLOSURE
The Rail Division also recommended the closure of the south leg of the Laurel Street crossing.
That crossing is currently a standard 4-leg intersection with Laurel Street numing north-south
and Hersey Street running east-west with the railroad crossing at a 50 degree angle through
the center of the intersection. The closure of the south leg of Laurel Street would create a Tee
intersection with Laurel Street southbound traffic being able to access Hersey Street in either
direction but not able to continue south. Northbound Laurel Street traffic would be completely
blocked at Hersey Street. The Rail Division offered to provide $100,000 to assist in the
improvement of this intersection if the Laurel Street south leg connection was eliminated.
This offer was considered by Council on April 4, 2006. The points of consideration at that time
included the following concerns. These items have been updated for the November 20,2007, Public
Hearing to reflect current issues and costs:
A. Financial Impacts
1. In accepting ODOT Rail Divisions offer (April 2006), the City would gain approximately
$400,000 to be used in the improvement of the crossings. The updated estimated costs for
improving the various rail crossings is as follows:
Crossing Improvements 2006 cost Nov 2007 update
a. East Main Street $692,000 $348,000
b. Hersey/Laurel Street $1,400,000 $1,400,000
c. Glenn Street (closure costs) $200,000 $200,000
d. Oak Street $800,000 $800,000
e. Walker A venue $692,000 $692,000
Total $3,784,000 $3,440,000
2. The actual construction cost for crossing improvements would be reduced with the elimination
of crossings. By eliminating Glenn Street, approximately $100,000 would be saved, but
$100,000 would still be needed to construct bike and pedestrian crossings and erect barriers and
other improvements. Approximately $150,000 could be saved from the Hersey / Laurel Street
crossing by eliminating one automatic crossing gate and remain in compliance with the ODOT
order to close one leg of this crossing.
3. Some minor funds could be saved in reduced crossing maintenance. Currently we are
expending less than $2,000 per year per crossing in maintenance requirements.
Page 3 of 13
CC Glenn St Closure PH 20Nov07
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CITY OF
ASHLAND
B. Safety
Whether or not safety would specifically increase by closing a crossing is not known at this time.
Although potential points of impact between trains and vehicles would certainly decrease on Glenn
Street, the traffic volumes would likely increase at adjacent crossings (Laurel/Hersey primarily). Out
of direction travel and detours required to accommodate crossing closures would likely add additional
elements of potential conflict for traffic.
C. Emergency Response
In discussions with the Ashland Fire Department, they indicated that open streets are always a
preference, but they do not see any delay in response with the closure of the Glenn Street crossing.
Laurel Street is a preferred emergency response route, Glenn Street is not. The emergency vehicles
would be coming from the same direction and would divert to Laurel Street for emergencies on Orange
and would still access Glenn Street from North Main. The Fire Department would ensure that the
responders know the access at the street break at Glenn and Orange (which is convenient). Asked
about removable barricades, the response was the same - not likely an issue. If the crossing is
maintained as a pedestrian and bike route, that could be used under very strained circumstances as an
emergency route ifneeded. RVTD has a stop at Glenn Street that would not be impacted. Staff has
not yet contacted the Ashland School District regarding any transportation impacts to their operations.
Other service providers such as Ashland Sanitary could also be impacted by the closures.
D. Neighborhood Impact
Perhaps one of the most significant impacts would be to the local neighborhoods that have historically
used the crossings in their daily trips to and from home. Change is not a welcome fact of life and to
pose an alternative routing may meet with stiff resistance with many citizens. It is expected that many
within the Quiet Village neighborhood may oppose any crossing closure on Laurel or Glenn Street as
these two crossings provide connectivity for the neighborhood and to Helman School.
E. Effects of Two Adjacent Crossing Closures (2006 Discussion)
The impact of one crossing closure (Glenn Street) might be within reason, but when paired with a
second adjacent crossing closure (Hersey / Laurel) the impact becomes much more acute and would be
detrimental to the City's transportation needs.
Council's 2006 Decision
Due to being faced with the impacts of two potential railroad crossing closures, Council rejected
ODOT's offer for financial assistance and elected to proceed with the improvement application
process. Council suggested that the option to close Glenn Street be kept open.
ODOT was notified of the Council's decision, but elected to honor their offer to improve the Oak
Street crossing. A final order for the improvement of Oak Street was recently received. The order
calls for the replacement of the wig-wag with automatic crossing gates and replacement of the crossing
surface with concrete crossing panels. The City's only cost for this improvement would be the
installation of the sidewalk to extend the east side walk over the tracks, paving of the asphalt
approaches on either side of the crossing and two signs.
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CC Glenn St Closure PH 20Nov07
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CITY OF
ASHLAND
Prior Closure Introduction
The possible closure of Glenn Street was first introduced in a comprehensive "Railroad Crossing
Evaluation" performed by HDR, Inc. of Portland as commissioned by the Public Works Department in
2004. In their report, HDR analyzed each of the City's nine at-grade crossings and offered suggestions
for improvements including a possible closure option. Only two crossings were listed as potential
candidates for closure; Wightman Street and Glenn Street.
Railroad crossing closures are important options to consider in light ofODOT's goal to reduce the
number of at-grade crossings statewide due to safety concerns. Crossing closures often become a
bargaining chip when improving a crossing and especially when considering a new crossing such as
the future Fourth Street crossing. Some considerations to be weighed for a Glenn Street closure
include:
Pros:
1. Closure of Glenn Street would allow the City to move forward with the improvement of the
Hersey/ Laurel Street crossing.
2. The closure of the Glenn Street crossing could provide a "credit" for the possible
establishment of the Fourth Street crossing.
3. A conflict point between trains and automobiles would be eliminated at Glenn Street.
4. The cost of closing the crossing to vehicular traffic would be less costly than full crossing
improvements.
5. Glenn Street is not an essential emergency provider route.
6. No driveway or specific property access would be impacted with the Glenn Street closure.
7. The actual traffic volumes on Glenn Street are low with approximately 980 vehicles per day as
compared to Laurel Street at about 1630 vehicles per day, 1650 on Helman and 4500 on Oak.
Cons:
1.
2.
3.
4.
The closure of the crossing would require some out of direction travel for vehicles
The Glenn Street closure would likely place more crossing demand on the Laurel, Helman
and Oak Street crossings.
Although no driveway access would be eliminated, access would be impacted.
The closure of the Glenn Street crossing would eliminate the shortest connection from the
Quiet Village area to the north bound lanes of North Main Street. Traffic would likely travel
on Laurel Street or would divert to Hersey (two blocks north of the Orange/Glenn connection
to North Main).
ODOT may act to close the Glenn Street crossing even without the City's concurrence.
5.
Summary
ODOT has the authority to close a highway at-grade rail crossing. They can do so on their own
initiative (see related policy details). They can also act on the recommendation of the road authority to
close a particular crossing or simply require that if one crossing is to be improved another must be
closed.
With the desire to complete improvements to the Laurel Street / Hersey Street railroad crossing and to
continue to request funding for the Laurel Street sidewalk improvements, the need to comply with
ODOT's desire to close the Glenn Street crossing is evident. At this point the City could request the
Page 5 of 13
CC Glenn St Closure PH 20Nov07
~&,
CITY OF
ASHLAND
crossing remain open for pedestrian and bicycle activities and may be able to gain full improvements
to the Hersey / Laurel crossing without an added burden of closing one leg. If the City initiates the
closure of Glenn Street, the City may also be in a good position to request consideration as a "credit"
for the ultimate desire for the Fourth Street crossing as there are no current street crossing between
Oak and N Mountain. The desire for the Fourth Street crossing will facilitate adequate transportation
movements (bike, pedestrian, and vehicle) within the railroad property.
Related City Policies (see attached for details):
As outlined on the following statutes, ODOT has the authority to initiate a crossing closure on their
own initiative and then hold a hearing for that purpose. The closure may also be initiated by a City
Councilor other governing body.
AMC 13.02.020 Jurisdiction. The City has jurisdiction and exercises regulatory control over all
public rights-of-way within the City under the City Charter and state law.
AMC 13.020.030 Scope of Regulatory Control. The City has jurisdiction and exercises regulatory
control over each public right-of-way whether the city has a fee, easement, or other legal interest in the
right-of-way. The city has jurisdiction and regulatory control over each right-of-way whether the legal
interest in the right-of-way was obtained by grant, dedication, prescription, reservation, condemnation,
annexation, foreclosure, or other means.
Related State Polices (see attached for details):
824.202 Policy; authority vested in state and department.
824.206 Elimination, relocation or alteration of grade crossing; installation or alteration of protective
devices. (1) The Department of Transportation may, upon its own motion or upon application by a
railroad or the public authority in interest, ....
(a) Eliminate a grade crossing by relocation of the highway;
(b) Alter or abolish any grade crossing. . .
824.226 Dangerous grade crossings; notice, hearing; order to install protective devices; apportioning
of cost.
(1) The Department of Transportation on its own motion may.. ..order a hearing ...
(2) If upon such hearing it appears ... that the crossing... is unsafe and dangerous to human life, the
department may order the crossing closed ...
Related Oregon Administrative Rules (OAR) (see attached for details):
Authority for Closure of Crossings and Removal of Tracks at Crossings
(1) Permanent Closure of Roadway at Crossings. ... After such closure has been accomplished, the
roadway cannot be reopened without the authority of the Department. . .
741-120-0050 Permanent Closure and Removal of Grade Crossings
(1) Construction of Barricades. Whenever a grade crossing is closed to use by motor vehicles, a
barricade ... to prevent use of the roadway approach to the crossing. ... The cost of construction shall
be borne by the railroad; maintenance cost shall be borne by the public authority.
Page 6 of 13
CC Glenn St Closure PH 20Nov07
~..,
CITY OF
ASHLAND
Council Options:
It is assumed that Council will hold the public hearing to gain insights into the public concerns with the
potential closure of Glenn Street Railroad crossing allowing access to bicycles and pedestrians only.
Once the hearing is complete, Council has the following options:
1. Direct staff to initiate the process with ODOT Rail Division to limit the use of the Glenn Street
Railroad crossing to bicycles and pedestrians only. Request that staff proceed with written
requests to ODOT Rail Division to allow full improvements to the Laurel/Hersey crossing
without partial closures, and further request ODOT Rail Division to consider the closure of the
Glenn Street railroad crossing be used as a credit for the future railroad crossing of the
extension of Fourth Street.
2. Reject the idea oflimiting the use of the Glenn Street Railroad crossing and makes no motion
to initiate limitations on Glenn Street. This would place the decision to close the rail crossing
at Glenn Street squarely on ODOT Rail Division and allow them to proceed with the closure at
their discretion. The City would likely be responsible for all construction related to the closure.
This option would likely preclude the City from the Fourth Street crossing unless another rail
crossing were to be closed. This option might also preclude full operation and improvements at
the Laurel/Hersey Crossing.
3. Request additional traffic impact and rail analysis be brought to Council prior to any further
discussions on limiting the use of the Glenn Street Railroad crossing.
Potential Motions:
1. Council moves to direct staff to initiate the process through a written request to ODOT Rail
Division to limit the use of the Glenn Street Railroad crossing to bicycles and pedestrians only
and to proceed with ODOT Rail Division in allowing full improvements to the Laurel/Hersey
crossing without partial closures, and further requests that ODOT Rail Division considers the
closure of the Glenn Street railroad crossing be used as a credit for the future railroad crossing
of the extension of Fourth Street.
2. Council directs staff to provide a specific traffic impact and rail analysis be conducted and
brought to Council prior to any further discussions on limiting the use of the Glenn Street
Railroad crossing.
Attachments:
Photos
Vicinity Map
January 19, 2006 letter from ODOT
Related Policy Details
Reference:
Railroad Crossing Evaluation; HDR, Inc. 2004 (available at: www.ashland.or.us; Document Center)
Page 7 of 13
CC Glenn 5t Closure PH 20Nov07
~.l'
CITY OF
ASHLAND
Page 8 of 13
Glenn Street
looking north east
from North Main
Street to the tracks
Glenn Street
looking west from
Orange Street to
the tracks right
where the change
from Orange to
Glenn Street at the
railroad tracks
CC Glenn 5t Closure PH 20Nov07
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CITY OF
ASHLAND
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CC Glenn 5t Closure PH 20Nov07
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CITY OF
ASHLAND
-Oregon
RECElVED
Department of Transportation
Rail Division
555 13'" Street NE, Suite 3
Salem, OR 97301-4179
(503) 986-4321
FAX (503) 986-3183
TrY (503) 986-3416
Theodore R Kuloogoski, Governor
.-.&l.s..ust 30. 2009_____
_m-SH 1 1 7nn6
City 01 Ashland
File Code:
Jim Olson
City of Ashland
20 East Main St
Ashland OR 97520
RX 1222: In the Matter of the Alteration of the Railroad-Highway Grade Crossings
at Laurel & Hersey Streets, Glenn Street and CENTRAL OREGON & PACIFIC RAILROAD
(CORP), Siskiyou Subdivision, In Ashland, Jackson County, Oregon.
An Application has been received from City of Ashland dated July 17. 2006, in the above-cited
matter. Rail Division has prepared the follOwing remarks to the application:
Glenn Street:
· Glenn Street has major safety issues that were not addressed in the application. It has a
very steep approach to the grade crossing. The easterly approach has a -11 %+ slope
which makes it a humped crossing causing the possibility of certain vehicles to hang up
on the tracks. The proposed profile design for the bike! peel path with a 2% grade
approximately 15+ feet from the track will exacerbate this safety issue. There is
considerable concern about the ability of a roadway or potential path user approaching
the crossing to stop for the pedestrians crossing Glenn Street multi-use path. Staff
believes the topography makes it impossible to correct this safety issue.
. It has blind quadrants in the approach to the crossing. Roadway and potential path
users are almost completely blind in their approach to the tracks due to surrounding land
uses.
. Closure of Glenn Street to motor vehicles would make the crossing safer for bicycles
and pedestrians. Limiting modal conflicts at the highway-rail grade crossing Is essential
to improve safety.
On the basis of the above staff objects to the application without the closure of Glenn
Street.
LaureUHersey Streets:
· The intersection of Laurel/Hersey Streets with the railroad is a four-way stop controlled
intersection with the main line of CORP running diagonally through the center of the
intersection from southeast to northwest. Laurel Street runs approximately north-south.
and Hersey Street runs approximately east-west.
· Installation of active crossing waming devices (gates and lights) on all four approaches
to the crossing will require acquisition of private land in the southwest quadrant.
form 735-9203 (3.04)
@
Page 10 of 13
CC Glenn St Closure PH 20Nov07
r~'
CITY OF
ASHLAND
(RX 1222)
August 28. 2006
Page 2 of2
· If the Laurel/Hersey Street intersection was made into a T intersection closing off the
-$outIla~-aur~Street;theint~db&saferf()l'-allmodesof.'
travel. It would also allow the automatic gate signal in the southwest quadrant to be on
railroad property and bring the safety device closer to the tracks.
· The crosswalks in all four quadrants need to be behind the automatic gate signals so
that the automatic gates tips are closer to the tracks ideally within 10ft. of the nearest
rail and extend within one foot of the centerline of the roads or island. Typically the
islands are 50 feet in length to prevent vehicles from running the lowered automatic
gatas.
Staff needs a set of 11x17 plans to scale for our working plans.
Part/es providing comments or documentation are requested to selVe the materials on
ail other parties of record in a tonnal case, and provide proof of service to Rail Division
staff. If you selVe materials regarding this matter, please use a fonn similar to the
enclosed certificate of service.
If you have any questions, call.
".~~
l4ion Arneson Senior Crossing Specialist
(503)986-4095; Fax (503) 986-3183
E-mail myron.l.arneson@odot.state.or.us
Cc: CORP
WG_",il\mIa\lxs1lrs1RX 1222staflllr082806
Page II of 13
CC Glenn St Closure PH 20Nov07
~~,
CITY OF
ASHLAND
Related Policy Details
Related City Policies:
AMC 13.02.020 Jurisdiction. The City has jurisdiction and exercises regulatory control over all public
rights-of-way within the City under the City Charter and state law.
AMC 13.020.030 Scope of Regulatory Control
The City has jurisdiction and exercises regulatory control over each public right-of-way whether the
city has a fee, easement, or other legal interest in the right-of-way. The city has jurisdiction and
regulatory control over each right-of-way whether the legal interest in the right-of-way was obtained
by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure, or other means.
Related State Polices:
824.202 Policy; authority vested in state and department. It is the policy of this state to achieve
uniform and coordinated regulation of railroad-highway crossings and to eliminate crossings at-grade
wherever possible. To these ends, authority to control and regulate the construction, alteration, and
protection of railroad-highway crossings is vested exclusively in the state, and in the Department of
Transportation as provided in ORS 824.200 to 824.256. [Formerly 763.013]
824.206 Elimination, relocation or alteration of grade crossing; installation or alteration of
protective devices. (1) The Department of Transportation may, upon its own motion or upon
application by a railroad or the public authority in interest, subsequent to a hearing, unless a hearing is
not required under ORS 824.214, and upon finding that such action is required by the public safety,
necessity, convenience and general welfare:
(a) Eliminate a grade crossing by relocation of the highway;
(b) Alter or abolish any grade crossing or change the location thereof, or require a separation of
grades at any such crossings;
( c) Alter or change any existing crossing at separated grades; and
(d) Require installation or alteration of protective devices.
(2) The department shall prescribe the time and manner of such alteration, change, installation or
alteration, and the terms and conditions thereof. [Formerly 763.030; 1997 c.249 250,; 1997 c275&16]
824.226 Dangerous grade crossings; notice, hearing; order to install protective devices;
apportioning of cost. (1) The Department of Transportation on its own motion may, or upon
application by the common councilor mayor of any city, or any county judge or county commissioner
or county roadmaster, or by five or more residents and taxpayers in any city, county or road district to
the effect that a public highway and a railroad cross one another in such city, county or road district a
the same level, and that such grade crossing is unsafe and dangerous to travelers over such highway or
railroad, shall, give notice to the railroad company, of the filing of such application, and furnish a copy
of the same to the railroad company, and order a hearing thereon in the manner provided for contested
case hearings under ORS 183.310 to 183.550.
(2) Ifupon such hearing it appears to the satisfaction of the department that the crossing complained of
is unsafe and dangerous to human life, the department may order the crossing closed or order and
direct the railroad or public authority to install and maintain proper protective devices, and establish a
date by which such devices are to be installed and placed into operation. The department shall
Page 12 of 13
CC Glenn 5t Closure PH 20Nov07
~.l'
CITY OF
ASHLAND
apportion the installation and maintenance costs thereof in accordance with ORS 824.242 to 824.246,
and, notwithstanding the provisions ofORS 183.310 to 183.550, shall suspend the effective date ofthe
order until the public authority in interest has consented to the apportionment and has agreed to comply
therewith. [Formerly 763.170; 1997 c.27S&21]
Oregon Administrative Rules (OAR)
Authority for Closure of Crossings and Removal of Tracks at Crossings
(1) Permanent Closure of Roadway at Crossings. Whenever a crossing is permanently closed to motor
vehicle, bicycle or pedestrian traffic, the public authority at the crossing shall notify the Department of
the closure and comply with OAR 741-120-0050. After such closure has been accomplished, the
roadway cannot be reopened without the authority of the Department pursuant to ORS 824.204 or
824.210.
(2) Temporary Closure of Roadway at Crossing by the Railroad. When a railroad desires to close a
railroad-highway crossing temporarily, it shall comply with all reasonable procedures required by the
public authority. At a minimum, the railroad shall provide to the public authority at least 40 hours
advance notification of intent to close the crossing. See Section 8A.OS of the MUTCD.
(3) Discontinuance of Railroad Operations at Crossings. Whenever railroad use of a crossing is to be
discontinued in accordance with federal requirements, the owner of the tract at the crossing and the
railroad operating over such track shall notify the Department of the discontinuance.
(4) Removal of Trackage at Crossings. Whenever one or more tracks is to be removed at a grade
crossing, the railroad operating over such trackage shall file an application to alter the crossing under
ORS 824.206.
Stat. Auth.: ORS 184.616, 184.619,823.011,824.202 and 824.220
Stat. Implemented: ORS 824.206
741-120-0050
Permanent Closure and Removal of Grade Crossings
(1) Construction of Barricades. Whenever a grade crossing is closed to use by motor vehicles, a
barricade or other appropriate obstruction sufficient to prevent use of the roadway approach to the
crossing. Barricade width shall be a minimum of the width of the roadway and shoulders. Barricades
shall be installed and maintained by the public authority. The cost of construction shall be borne by
the railroad; maintenance cost shall be born by the public authority.
(2) Removal of Crossing Surface. Whenever a grade crossing is closed to use by motor vehicles, the
railroad, after installation of required barricades, shall promptly remove all roadway surface material
from the area between the lines drawn perpendicular to the end of ties of each track at the crossing.
(3) Removal of Railroad Tracks. Whenever a grade crossing, or one or more tracks is closed to use by
railroad equipment, the tracks (including rails and ties) shall be removed and the roadway surface
restored by the railroad within twelve months from the time the track is closed to use by railroad
equipment.
(4) Removal of Protective Devices. Whenever a grade crossing is closed to use by motor vehicles or
by railroad equipment, protective devices shall be promptly removed by the party responsible for their
maintenance.
Stat. Auth.: ORS 184.616, 184.619,823.011,824.202 and 824.220
Stat. Implemented: ORS 824.206
Page 13 of 13
CC Glenn St Closure PH 20Nov07
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BY__~--J
,
November 21, 2007
To:
Re.:
Council
Closing RR crossings/creating a crossing at 4th Street
.. ..
THIS IS FOR THE RECORD!
On Monday, November 19th, 2007, I saw the agenda item from Public Works
on closing RR crossings and creating one at 4th street.
I was very concerned. I am a property owner on 4th street. I do not
wish a railroad crossing (to nowhere-or some development scheme to
be dropped on us later) cutting through the RR District or in front
of my property. This will increase traffic and_affect livability
negatively. I doubt that the residents, owners tenants or real
estate brokers, for whom the RR District is a valuable gem in Ashland,
would like such an idea either.
I spoke with Mr. Olson. He reassured me verbally that I had mis~read
or mis-interpreted the agenda item. That there was absolutely no plan
for the forseeable future of cutting a RR crossing across 4th street.
Rather it was a ploy to get State funding, which also involved closing
other RR crossings (as mentioned at the Council meeting on 11/20/07).
However, his remarks at the Council meeting contradict what he told me.
I want it in the record that he represented to me that no action involving
creating a RR crossing on 4th street was contemplated now or in the
forse a e future.
(owner - 109...111-113
Fourth Street)
CITY OF
ASHLAND
Council Communication · Addendum #2
Additional Information Requested by Council Pertaining to the
Intent to Limit the Glenn Street Rail Crossing to Bicycles and Pedestrians Only
Meeting Date: December 4,2007 Primary Staff Contact: James Olson, 488-534117;
Department: Public Works / Engineering E-Mail: olsonj@ashland.or.usV"'"
Secondary Dept.: Comm Dev, Legal, Fire Secondary Contact: Richard Appicello, 552-2091
Approval: Martha Bennett Estimated Time: 30 Minutes
Response to Study Session Questions:
At last night's study session council requested additional information regarding the Glenn Street railroad
crossing issue. The following items are enclosed for your information:
1. Rail Crossing Traffic Volumes
Table 4, Page 27 of the 2004 HDR, Inc. report on Ashland's railroad crossings lists the current
(2003) traffic volumes, projected 2023 traffic volumes, whether a street is classified as a route to
school, life safety route or a transit route, and if there is a pedestrian generator in an area.
2. Vehicle Crash Data - 1998 to 2007
Crash summaries in diagram form for crashs occurring at the following locations:
a. Wimer/North Main Street intersection (34 crashs)
b. Laurel/North Main Street intersection (13 crashs)
c. Skidmore / Manzanita / North Main Street intersection (11 crashs)
d. Van Ness / North Main Street intersection (8 crashs)
e. Glenn Street / North Main Street intersection (6 crashs)
f. Glenn Street (2 crashs / zero at rail crossing)
g. Orange Avenue (2 crashs)
h. Laurel Street (2 crashs / zero at rail crossing)
3. Street Traffic Volumes
Approximate traffic volumes are indicated in a color coded map for streets in the Glenn Street /
Hersey Street / Laurel Street area.
4. CIP listed Transportation Projects
The current CIP plan addresses the following related projects;
a. East Main Street Rail Crossing Improvement - completion FY 07-08
b. Hersey / Laurel (Glenn) Rail Crossing Improvement - design FY 07-08, construction FY
08-09
c. Oak Street Rail Crossing, Construction FY 07-08
d. Laurel Street Sidewalk LID - design FY 07-08, construction FY 08-09
e. Walker Avenue Rail Crossing - construction FY 10-11
f. The Fourth Street crossing is conceptual only and has not been included in the eIP
5. Fire Response Routes
The attached memo from Fire Chief Woodley lists the main emergency response routes within the
City.
Page I of 1
05-15 CC Glenn 5t Closure Addendum 2 12 07.doc
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4.0 GRADE CROSSING RANKING
The existing conditions were evaluated in order to rank the crossings for priority of
improvement planning and eventual implementation. Key factors in this evaluation were:
· What is the current and future average daily traffic (ADT)?
· Is the crossing located on a route to a school?
· Is the crossing ona life safety route typically used by emergency services?
· Is the crossing on an existing or potential future transit route?
· Is the crossing located near a pedestrian generator, such as a civic/municipal facility or
use, school, park, or community-scale retail location?
Those crossings with relatively high current and future AnT and were also on routes to school,
life safety routes, transit routes, and near pedestrian generators received the highest rankings.
Table 4 presents the crossings ranked by priority for planning improvements,
Table 4. Ashland Grade Crossing Ranking
Rank Crossing I 2003 i 2023 Route to Life Safety Existing or Pedestrian
< ADT ,ADT school I Route I Future Transit' Generator
, " Route i
1 .
2
3
4
S
6
6
7
8
9
East Main Stmet ..
Tolman Creek Road
NOrth Mountain Ave.
~ Street
WalkerAventJ6
West Hershey street
North laurel Street
Helman Street
Wightman Street
Glenn Street
,0015
5645
5730
4415
4820
2750.
1665,
1630
1015
985
13000
1??oo
9900
7900
noo
4900
2600
2200
1700
1300
Yes
Yes
Yes
Yes
Yes '
Yes
Yes
Yes
Yes
Yes "
Yes
Y~
Y~
:, Yes
Yes
Yes' "~./',,;CiVicJPar1<ISch
Yes/ ' '.~etaBJPart(
Y~ ' CiviCJPart<
.. Retail
CiviciiSchool
Parlt
Greenway
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Yes
',-
Table 5 presents preliminary, planning-level cost estimates for bringing each crossings in
Ashland into compliance with AASlITO and AREMA standards for actively protected grade
crossings. Recommendations for phasing improvements will be presented in a separate
memorandum.
FROM THE RAILROAD CROSSING EVALUATION
PERFORMED BY HDR,INC., FEB. 2004
Draft Report - August 2003
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CITY OF
ASHLAND
Memo
TO:
FROM:
DEPT:
RE:
DATE:
Jim Olson, Acting Public Works Director
Keith E. Woodley, Fire Chief
Ashland Fire & Rescue
Fire Department Primary Response Routes
December 4, 2007
Listed below are the primary response routes for the fire department. There are two very
important caveats that should be considered in connection with this information, (1) this list
assumes emergency vehicles are responding from their assigned fire station in the city. In
reality, emergency vehicles are out of their assigned quarters on previous emergency calls, or
other work assignments, nearly 50% of the time during daytime hours. When this occurs their
primary response routes will change and, (2) when ambulance response time standards for
life-threatening emergencies were established by Mayor and Council in April 1999, those
standards were based on the existing city street grid. As proposals come forth to terminate
street connections the fire department needs to examine any potential impacts on response
time standards for the community, as was recently performed for the Glenn Street Railroad
crossing closure proposal.
The principal emergency vehicle response corridors (primary routes that will connect us to
secondary streets quickly) are as follows:
Fire Station No.1
Siskiyou Blvd, Lithia Way, N. Main St, Morton St., S. Mountain Ave., Hersey St.
East Main St, Fourth St, N. Mountain Ave., Fordyce St., Wightman St.
Gresham St, Holly St., Terrace St., S. Pioneer St., Oak St., Helman St.
Granite St., Church St., Wimer St.
Fire Station No.2
Ashland St., Normal St., Walker Ave., Siskiyou Blvd., Wightman St., Indiana St.,
N. I S. Mountain Ave., Park St., Beswick Way, Terra Ave., Clay St., Bellview Ave., Faith St.,
Washington St., Tolman Creek Rd., Oak Knoll Drive, Crowson Rd. , East Main St.,
Dead Indian Memorial Rd.
Ashland Fire & Rescue
455 Siskiyou Blvd.
Ashland, Oregon 97520
www.ashland.or.us
Tel: 541-482-2770
Fax: 541-488-5318
TTY: 800-735-2900
~A'
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Ordinance Declaration of approval of Verde Village
December 4, 2007 Primary Staff Contact: Richard Appicello
City Attorney's Offi e E-Mail: Appicelr@ashland.or.us
Planning Secondary Contact: Maria Harris
Martha Berm Estimated Time: 15 minutes
Question:
Does the City Council wish to direct staff to correct, change or modify the Ordinance Declaring the
Approval of the Verde Village Development Agreement, including the attached development
agreement, land use findings or real property exchange findings?
Does the Council wish to conduct and approve the First Reading of the Ordinance and move the matter
to second reading?
Staff Recommendation:
The Council has made a tentative oral decision to approve the Verde Village project, inclusive of a
development agreement, land exchange and associated land use approvals. Staff recommends the
Council review and direct appropriate changes to the approval documents and conduct the first
reading. If changes are substantial, staff recommends the Council postpone first reading by continuing
the reading to a date certain.
Background:
Oregon Statutes require the approval of a Development Agreement by Ordinance. The draft ordinance
is included in the Council packet with (1) Attachment 1- development agreement (2) Attachment 2-
land use findings and (3) Attachment 3 - real property exchange findings.
All the documents will require some minor modifications and corrections as they are reviewed by
Council and by staff. Please send suggested changes to City legal staff in advance of the meeting if
possible so that agreed upon changes and corrections can be read and summarized by staff.
Planning staff has provided some alternatives regarding the condition for Net Zero Energy Ready
affordable housing units which the Council should discuss.
Related City Policies:
Ordinance adoption procedures in Ashland City Charter;
ORS Chapter 94.
Page 1 of2
CC - Verde Ordinance for Dev Agree 120407.doc ordinance
r~'
CITY OF
ASHLAND
Council Options:
(1) Council may direct changes as needed to the approval documents and conduct first reading of
the ordinance.
(2) Council may direct changes to approval documents and delay first reading of the ordinance to a
date certain.
Potential Motions:
[conduct first reading] Move to approve first reading with changes and corrects as noted.
Attachments:
Ordinance declaring approval of the Verde Village Development Agreement with attachments 1,2 and
3.
Page 2 of2
CC - Verde Ordinance for Dev Agree 120407.doc ordinance
r.,
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 Village 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 lined through and additions are underlined.
Section 1. The above recitations are true and hereby incorporated herein by
this reference.
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 File # PA-2006--01663, (including but not limited to
annexation, withdrawal from fire district 5, comprehensive plan map change,
zoning map change, outline plan approval, two 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
materials supporting the Findings of Fact, Conclusions of Law and Order on PA-
2006-01663, 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 S. 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
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
December 18, 2007
IN THE MATTER OF A REAL PROPERTY EXCHANGE )
SUPPORTIVE OF PLANNING ACTION # 2006-01663, A ) FINDINGS OF FACT
EXCHANGE OF APPROXIMATELY 1.54 ACRES OF CITY ) CONCLUSIONS OF LAW
PROPERTY FOR 2.78 ACRES OF PRIVATE PROPERTY ) AND ORDER
PURSUANT TO ORS 271.310 - 271.350 AND PUBLIC HEARING)
PROCEDURES IN ORS 221.725 )
APPLICANT: Greg and Valri Williams )
I. NATURE OF PROCEEDINGS
This matter comes before the City Council for the City of Ashland for a public hearing concerning a real
property exchange pursuant to statutory notice and hearing requirements of ORS 221.725.
On November 6,2007 and November 20,2007, the Ashland City Council, at the City Council Chambers at
1175 East Main Street conducted an advertised public hearing on a proposed real property exchange pursuant to
ORS 271.310 - ORS 271.350.
The public hearing was conducted together with public hearing on an Ordinance declaring the approval of a
proposed Verde Village Development Agreement, and several associated land use actions necessary for the
development of the Verde Village project.
The nature of the land exchange, including appraisal and other evidence of market value were fully disclosed in
the staff report and supporting documents entered into the record at the public hearing.
At such Public Hearing the City Council received written and oral testimony from interested parties on the
question of the land exchange.
Based upon the evidence in the record, the City Council for the City of Ashland makes the following findings of
fact and conclusions of law:
II. FINDINGS OF FACT
1) The Nature of Proceedings set forth above are true and correct and are incorporated herein by this
reference.
2) The City property subject to the real property exchange consists of approximately 1.54 acres of the 10
acre City -owned parcel known as the Ashland Dog Park (TL 20039 IE 04BB). The specific area of exchange
Ordinance Attachment 3- Real Property Exchange Findings
Page 1
is the entrance road and lawn area associated with the entrance to the dog park. The exchange does not impact
the parking lot or actual dog park itself. The exchanged City property will be incorporated into the Verde
Village residential development, located generally at 87 W. Nevada St. and 811 Helman St. (Ashland
Greenhouses). The legal description and drawings of the City property is more fully set forth in the record of
this proceeding and incorporated herein by this reference.
3) The private property subject to the real property exchange consists of approximately 2.78 acres of
property contiguous to the dog park and located along Ashland Creek. The owner of the property is Ashland
Flower Shop and Greenhouses, Inc. (AFSG) (Greg and Valri Williams). This 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 legal description and drawings of the AFSG property (a/k/a/ Williams Property) is more fully set
forth in the record of this proceeding and incorporated herein by this reference. In addition to this real property,
the City will receive as part of a Development Agreement for Verde Village, a new city standard public street
entrance to the dog park and an additional 1300 lineal feet of Bear Creek Greenway Trail. These improvements
are not included in the valuation of this exchange.
4) The approximately 2.78 acres of property received by the City will be used for public open space and
passive recreation, including the greenway trail. The reasons stated for City Council consideration for the
exchange include but are not limited to the added value to the City's Parks and Trails system.
5) The acreage for the land exchange as revised and updated based on an October 2007 survey is set forth
in the revised Verde Village application materials in the record. (Exhibits N-1 and N-2 in Book III-Narrative,
dated stamped October 30,2007). (2.78 acres, up from 2.57 acres) (1.54 acres, up from 1.37 acres)
.EGEND
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Page 2
III. FINDINGS APPLYING APPLICABLE STATUTORY CRITERIA
1) The Council finds and determines that the relevant statutory criteria to find property eligible for a real
property exchange involving City property are found in or referenced in ORS 271.31 O-ORS 271-350 as well as
ORS 221.725.
2) The Council finds that it has received all information necessary to make a decision based on the Staff
Report, public hearing testimony and the exhibits and evidence received.
3) The Council finds and determines that this proposal to exchange real property meets all applicable statutory
minimum criteria for eligibility to exchange real property, as more fully set forth herein. Further the City Council
finds and determines that the proposed disposition of real property in the real property exchange is deemed
"necessary or convenient" to the City, and furthers the public interest as incorporated into and made part ofthe
negotiated Development Agreement for Verde Village, approved by City Ordinance declaring adoption ofthe
Development Agreement. This finding is supported by competent substantial evidence in the whole record as
well as the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, as well as
those submitted by the Applicant, and incorporated herein by this reference.
Minimum Criterion for Eligibility for Real Property Exchange
4) [ORS 271.310], [ORS 271.340] & [ORS 271.350]
ORS 271.310. Transfer or lease of real property owned or controlled by political subdivision;
procedure in case of qualified title.
(1) Except as provided in subsection (2) of this section, whenever any political subdivision
possesses 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 interest in the property to a governmental body or
private individual or corporation. The consideration for the transfer or lease may be cash or real
property, or both.
***
(3) Unless the governing body of a political subdivision determines under subsection (1) of this
section that the public interest may be furthered, real property needed for public use by any
political subdivision owning or controlling the property shall not be sold, exchanged, leased or
conveyed under the authority of ORS 271.300 to 271.360, except that it may be exchanged for
property which is of equal or superior useful value for public use. Any such property not
immediately needed for public use may be leased if, in the discretion of the governing body having
control of the property, it will not be needed for public use within the period of the lease.
ORS 271.340. Property valuation in exchange to be equal.
Ordinance Attachment 3- Real Property Exchange Findings
Page 3
When property is exchanged under the authority of ORS 271.310 to 271.330, the value of the real
property accepted by the political subdivision in exchange for any of its property plus cash, if any,
shall not be less than the value of the property relinquished.
ORS 271.350. Determining valuation of property in exchanges.
The value of the respective properties proposed to be exchanged shall be determined by the
governing body of the political subdivision. The governing body shall cause it to be appraised by
one or more competent and experienced appraisers. The compensation, if any, 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 binding upon them.
The statutory requirements are summarized herein:
In order to sell, conveyor exchange real property, ORS 271.310(1) (3) requires that the Council find either that
the property is "not needed for public use" or "that the public interest may be furthered." ORS 271.310(3) also
requires that unless there is a finding the public interest may be furthered, if the property is needed for public
use, that property may only be exchanged if the property received is of equal or superior useful value for public
use. (also a requirement of Land and Water Conservation). ORS 271.340 clearly established that the monetary
value of real property accepted by the City must not have a monetary value less than the value of the property
relinquished. The valuation must be established by the City pursuant to ORS 271.350 based on appraisal.
Other approvals required:
County, State and Federal approval of the real property exchange is required. Because the City 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. Specifically, City's deed to City's
Parcel (recorded as Doc # 77-13325) reflects that the original conveyance of the City's Property from Jackson
County to City is subject to City's continued utilization of City Property "for public park and recreation
purposes or ... [its maintenance] ... for the benefit of the public as a scenic and open space area. When said
property is no longer so used, the interest of the grantee [City], or its assigns, shall automatically terminate and
the property shall revert to the grantor (Jackson County)."Accordingly, as a condition of the real property
exchange, the Jackson County's Board of County Commissioners must release (by resolution) the reversionary
interest. City can provide County with an identical or similar reversionary interest in the deed to the Williams
Property being provided to City by AFSG pursuant to the exchange and Development Agreement. City and
AFSG have agreed to cooperate in good faith to secure approval from Jackson County for said exchange of
Jackson County's reversionary interest, such that the same reversionary interest in favor of Jackson County will
similarly burden the Williams Property upon transfer of the Williams Property to City pursuant to the real
property exchange; and will no longer burden the City Property being transferred to AFSG pursuant to the real
property exchange. Jackson County's approval of the reversionary interest release or exchange concurrent with
the actual real property transfer is a material term of this approval and Development Agreement. The Federal,
State and County approvals must be addressed as conditions of approval, because the applications cannot be
Ordinance Attachment 3- Real Property Exchange Findings
Page 4
fully processed until the City approves the exchange under ORS 271.310.
Pursuant to ORS 271.310, the City Council finds and determines that the public interest will be furthered by
the exchange of the City Property previously and currently utilized as access to City's Dog Park in exchange for
the Williams Property owned by AFSG. Verde Village Application Materials Exhibit 1, Sub-Exhibit N-1
(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. In contrast, the City Parcel to be exchanged herein
currently serves as a sub-standard access for vehicles, pedestrians, and cyclists 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 the Verde Village Development Agreement, access to City's Dog Park will 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". The 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 also described in Exhibit "1 "[Outline
Plan Narrative] (at page 6) and Sub-Exhibits M and N-1 appended thereto, incorporated herein by this reference.
Because the City Property to be exchanged currently includes access to the City Dog Park, the City cannot find
that the property is not necessary for public use.
Concerning the monetary value of the exchange, the City Council finds and determines that consistent with ORS
271.350, on January 2,2007, the City's Council aftrer considering public comment, authorized AFSG to
proceed with its land use application including City's Property, and concurrently directed its Staff to
commission the necessary appraisal reports, without reviewing or considering the merits of the Verde Village
Project application, in compliance with law. Thereafter, City commissioned appraisals reports to determine the
fair market value of the respective real property proposed for exchange from a qualified licensed appraiser with
experience in similar real estate appraisals under the strenuous "Yellow Book" guidelines required by the
National Parks Service. After considering a number of licensed appraisers, City engaged Candence E.
Robinson, State Certified Appraiser # C000582, Vesta Real Estate Services, Inc., Salem, Oregon. Exhibit 2-44
and Exhibit 3-44.
In June 2007, the City of Ashland received Appraisal Reports reflecting the respective value of the Williams
Property and City's Dog Park Property. See Verde Village application materials Exhibit 2 and Exhibit 3 as
revised. These Appraisal Reports were commissioned by City, with the appraisal cost borne equally by City and
AGFS. Corrections to the appraisals were made after input from interested citizens were taken into account.
The Council finds and determines that appraiser was competent and experienced. The respective Appraisal
Reports, as revised, for the Williams Property and the City Property are included in the record and incorporated
herein by reference. The Appraisal Reports and supporting documents were made available to the public prior
to the public hearings before both the Planning Commission and City Council
Ordinance Attachment 3- Real Property Exchange Findings
Page 5
"" r
The City Council is charged with the determination of the value of the exchanged properties pursuant to ORS
271.350. Based upon the revised appraisal documents, the City Council finds and determines that the City
Property to be conveyed to AFSG in connection with the real property exchange authorized by the Verde
Village Development Agreement is less than the monetary value of the Williams Property to be conveyed to the
City in connection with said real property exchange, as reflected in attached Exhibit 2 and Exhibit 3 in the
record, incorporated herein by reference. Pursuant to ORS 271.310, ORS 271.340, and ORS 271.350, City
finds that the value of the Williams Property to be exchanged is $284,000. City further finds that the value of
the City Property to be exchanged is $ 134,000. City finds that the difference in value between the two parcels
being exchanged is $150,000 in favor of City, based on the analysis and conclusions contained in the Appraisal
Reports commissioned by City, contained in the record and incorporated herein by this reference. AFSG agrees
to "gift" the $150,000 difference in value to City. The proposed use of the property received by the City shall be
parkland, recreation, open space, or similar uses consistent with Jackson County deed restrictions.
Concerning the requirement that the property received have equal or superior useful value for public use (in
terms of FL WCF equal or superior public recreational value), the City's Parks and Recreation Commission
unanimously endorsed the real property exchange, conceptually, on October 24,2006 following review of the
materials and documents presented. The record of the Parks Commission action is included in the record of this
proceeding and incorporated herein by this reference. See. E.g. Verde Village Application Materials Exhibit 1,
Sub-Exhibit M, (Park Commission Endorsement). Subsequently, on June 25,2007, City's Parks and Recreation
Commission again unanimously confirmed their support of the real property exchange, after reviewing revised
materials. See Verde Village Materials Exhibit 1, Sub-Exhibit N-l; Exhibit 2; Exhibit 3, and related submittals.
IV. ORDER
In sum, the City Council finds and determines that the real property exchange is necessary or convenient, 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, including recreational use, and that the monetary value of the real property accepted is not
less that the monetary value of the property relinquished.
Accordingly, based on the above Findings of Fact and Conclusions of Law, and based upon the evidence in the
whole record, the City Council hereby APPROVES as part of the negotiated Verde Village Development
Agreement approved by Ordinance, the real property exchange described herein and in the record of Planning
Action #2006-1663, subject to compliance with the conditions of approval, set forth herein. The following are
the conditions and they are attached to the approval:
· The real property exchange is subject to County, State and Federal approval of the real property
exchange. Receipt of written evidence of such approvals in appropriate legal form triggers the exchange
under the terms and conditions of the Development Agreement. City shall record a document restricting
use of the exchange parcel for recreational use in accordance with County approval of release on the City
property.
.
· The real property exchange is subject to all applicable conditions and requirements of the Development
Agreement and acssociated land use approvals for the Verde Village project.
Ordinance Attachment 3- Real Property Exchange Findings
Page 6
Ashland City Council Approval
Mayor John W. Morrison
Signature authorized and approved by the full Council this _ day of
Approved as to form:
Date:
Interim City Attorney
Ordinance Attachment 3- Real Property Exchange Findings
,20_
Page 7
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 Boundary); 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
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 ~lnQJ~ovember lJL-2QjlZ, 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,
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -2-
WHEREAS, on November 20, 2007, the Citts Council deliberated on the proposed
Development Agreement and tentatively approved the requested agreement, land
exchange and assonated land use actIClr':,
WHEREAS, on December 4, 2007 tJle City'S Council conducted and approved the
First Reading of an Ordinance declannlJ the approval of the Development Agreement, and
associated approvais;and
WHEREAS, on December 19, 2007 the Citts Council conclucted and approved the
Second Reading of an Ordinance approving the Development Agreement, and associated
aoprovals with an pifective date of January J 7 ~)C'I07
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 94.508(2), approving this Development
Agreement pursuant to City's Charter, Citts Land Use Ordinance, and ORS 94.504
through ORS 94.528.
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 #2006-01663], is fully supported Qy 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 hereof 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -3-
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.
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 that 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).
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -4-
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.
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 the 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILlAGE
Page -5-
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
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-1" .
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 900/0 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -6-
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
the Project. When not specifically addressed the
coverage limitations and other requirements of the
following zones shall be met:
R-1-3.5: up to 55% of total lot area
R-1-5: up to 500/0 of total lot area
R-1.7.5: up to 450/0 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -7-
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.
(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)]
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -8-
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
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 OBUGATIONS.
[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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -9-
lots; this Agreement remains in full force and effect as the development approval and
authorization for completed development, including all continuing maintenance obligations.
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -10-
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
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, -pne.hu!)gred and.l!flY.JDQusand dollars, tt50,OOO.OQ
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 (SDC's) 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 RESPONSIBIUTY 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 including 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.
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -11-
13.0 RESPONSIBIUTY FOR COMMON AREAS.
The Ashland Land Use Ordinance requires that common areas, including shared open
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 "CCR"). 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 nDn 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 Council or 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -12-
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 entering upon such Common Areas and maintaining
them for a period of one (1) year. Notice of such hearing shall be sent by certified mail,
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -13-
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.
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 associated 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 the 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -14-
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 the theory of vested rights or equitable
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 orders 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.
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -15-
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)
16. Conveyance of deeds to effectuate land exchange, including acceptance by City of
completed public recreation improvements constructed by Owner, QL-illmrov~
contract and security if conveYQD.~~LtQLlQ~Qnstcuction~Q[npletioll
17. Final Plat Approval Phase I
18. Conveyance of Parcel from Owner to RVCDC or _ other~roved affordable housing
provider 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 approve 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:
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -16-
Sworn Statement, Verification of Federal, State, and Local Permit Compliance.
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. 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -17-
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 referred to the Planning Commission for
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 I 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 a 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 writing 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -18-
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
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 Cit(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 or upon review lli
the Court 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -19-
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.
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -20-
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
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -21-
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:
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 shall 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 approving 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -22-
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 is a final City land use 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 Agreement 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 ENnRE 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 SEVERABIUlY.
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILlAGE
Page -23-
meet to discuss amendments and alternatives to address the deficiency.
26.0 JURISDICTION AND GOVERNING LAW.
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
Jackson 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 Flower 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.
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -24-
515 East Main St.
Ashland, OR 97520
(541) 488-4455 fax
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -25-
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.
29.3 Time of the Essence. lime 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 Agreement, 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."
29.1 CooDeration in the Event of Leaal ChallenGe. 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 Delay. 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
n_:_..__ A_.._.._,.._~ ., _ nrllr. nn_rlUT A~nrr_r"T rnn Ilrnnr IIF.. A~r
name herein and expressly described as the intended beneficiaries of this Agreement.
29.10 Other 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
case of the City, shall require adopting necessary ordinances and resolutions) as may
be reasonably necessary to carry out this Agreement in order to provide and secure to
the other parties the full and complete enjoyment of rights and privileges hereunder.
29.11 Survival of ReDresentations. 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. C'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 D. Williams, as the President and authorized
agent of Ashland Flower Shop and Greenhouses, Inc.
Notary Public for Oregon
My Commission Expires:
"'_:_..__.... A~.._,._...._~ .. ~ nCllCI "'''I&ICIUT A~"CCI&ICIUT' c"'" IIc"nc Inll A~C
Approved as to Form:
Davis, Hearn, Saladoff, Bridges & Visser, P.c.
Christian E. Hearn, OSB 911829
Attorneys for Ashland Flowershop and Greenhouses, Inc.
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 904331
Interim City Attorney
n--t:_____ AU.__I.___6- .. _ nrllr. ~ftA6rarr A~DrrA6rAlT rnD .,rDnr IIF. I A~r
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:
n_:_____ A___"___~ ., n~I'~1 nft_~arr A~ft~~_~AlT ~nft I'~ftn~ IIFII A~~
EXHIBIT A
Verde Village
LEGAL DESCRIPTION
attach legal description of Vente Village
after exchange
EXHIBIT B
Title Company Preliminary Title Report Certification
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 Village", 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.
IN WITNESS WHEREOF, the parties hereto have executed these presents on the
dates indicated below.
OWNER
ASHLAND FLOWER SHOP
AND GREENHOUSES, INC. C'AFSG'1
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 D. 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 911829
Attorneys for Ashland Flowershop and Greenhouses, Inc.
EXHIBIT D
Preliminarv DeveloDment Plan/Plat
(The approved Outline Plan must be reduced to
a legal sized legible document(s) for recording as Exhibit D)
EXHIBIT E
VERDE VILLAGE
Special Conditions
1) Affordable Housing 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, 1JDJ~ss administrati'{~y_~~I:.efldedJ2ill~uant to ExhibitL 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 C;QDy~ytbeP-Jj)J2er!Y_io ar1pther approved provider of
affordable housing. All the affQrdatJ"-e_bouS!!NJmits~haILbe Net Z~~_EDgrgy
R~ady_q~:d irQY!l~t~_~LiIU::..QO..9 itlQll_n 12 ':>eiQx,"
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) Archaeological 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
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) Boundary 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
and assess the association for the maintenance of common areas, including the
association's responsibilities for maintenance of the storm water areas offsite.
The Final PicHi submittal shall adtlre,:') usability, including Verd~ _VWfl~~
community cKceS5, of the QIhiQt!;: Opl~1 spaces. Jsabiilty shall be speOflCaiiy
addressed for the two small open spaces in the town home area (550 sf and 700
5f), one small ()pen space in the cottage area (lf300 sf) and the one small open
space adJacent to the alley 1 31 ( sf ,<_ayout and landscaping of the open
spaces as well as any improvement':; s, as pla'i eqwpn1ent shall be detalied II:
the Final Plan submittals.
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) Endangered 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) Energy Conservation: Earth Advantage Program. A minimum of 53 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) Energy Conservation: Net Zero Energy. A nwmnum of S3 residential units, in
the subdivision, including the cottaqes, duplex.es and smqie family units, shall
meet the application "Net Zero Energy" Performance Standard as outlined in
Exhibit K-3 of the Revised Outline Plan, Book III Narrative revised October 24,
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.
~f'L~ Ze[~ !=_[1!;~ID"'-~erfQHDanc,~_ Stfl r l~laJJtit~_QlJJDDJ;Jtl[t E !',-h i bjL~~ __()f.lbf
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of Energ'i,
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with ll!loJoV(,)ltQiL(P'il~.stem~hat is eitheL3JsYiL's in_size
QIJ2roduc~~-.L_~iJ,whls/Sq,-_Ft./Yr. whichever is les~s. and also
b~JlLQYiQ~QY'/itt:l enQ!JgO.avgjlab1e5QljtbJflctQQ IJ!nshad~cl
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atti~ insLJ1QJIQO for f1QLc~Uin~~
· IhQLttll:'J~~Slve. ~olQI JJQD lt~S__~h_~ul JILeettlJe_5tCiteQf
Qr~lQ!J s_ fIn Om1 V reqvtr:el T}E:~llt;;_lQJ1l1~ QQ~SJ vJ'~iQJQrJ10IlJ~
tax ~I~dit.
Irtf!dditiol, ~UUt}~itffQ[~L<;tbJebollSI! l~; LJnit~_~IJi.~H t)gNelZerQ_EneIgYJ~eagy,
or-
That the 15 affordable residential units in the subdivision (i.e. town homes) shall
be net zero energy ready. Net zero energy ready is defined as a residential unit
being constructed with the appropriate infrastructure (e.q. wiring, conduit. roof
structure) so that a photovoltaic (PV) system can be installed at a later date.
-or-
That the 15 affordable residential units in the subdivision (i.e. town homes) shall
meet the application "Net Zero Energy" Performance Standard as outlined in
Exhibit K- 3 of the Revised Outline Plan, Book III - Narrative revised October 24,
2007, except that the photovoltaic (PV) system is not required to be installed in
the affordable units. Rather than installing the PV system on the affordable
residential units, each affordable unit shall be net zero energy ready. Net zero
energy ready is defined as a residential unit being constructed with the
appropriate infrastructure (e.g. wiring, conduit, roof structure) so that a
photovoltaic (PV) system can be installed at a later date.
13) Intersection Design: 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
prior to signature of the final subdivision survey plat. Executed documents
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 Coverage Comoliance. The Final Plan application shall include revised and
corrected lot coverage calculations in square footage and percentage for each
development area (Le. 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 _19 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 49. 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.
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 Usability. [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. ~Itt;n}~ tlY~IYJ-J:f}eubmtLPJft!LQQQllC_Qtion_rna-'i_~~~h _ Q
Variance to_'iQI~~r setback req~!i~_~f\lsJJt.f!QQll~~lJlts c~n ~1Jbrnit a[chiTI~ctur.Q1 al1Q
engiDeeriog QflimiS supportimL.:tYi~lcLgJJ<;:e.
23) Storm water Continuing 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
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-l, June 8, 2007). Mitigation shall meet the requirements of
Ashland Land Use Ordinance 18.61.084. 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-l, 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.
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) Zoning Compliance. The Final Plan application shall include demonstration that
the buildings in the R-1-3.5 zoning district (cottages and town homes) meet the
required front yard for the R-1-3.5 zoning district.
EXHIBIT F
TIMETABLE OF DEVELOPMENT - OUTUNE 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 from 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
side 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.
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 townhome units).
July 4, 2011. Complete construction of
"subdivision" Infrastructure for Phase I (R-l- 3.5
portion) of the project inclusive infrastructure for
one (1) single family lot, and infrastructure for
twenty-four (24) cottage units
July 4, 2011. Phase I. 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
"subdivisionll Infrastructure for Phase II (R-I-5
portion) 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 G
Agreement for Purchase and Sale: Exchange of Real Prooertv.
1.
Definitions
Exchange Properties, (as used in this section): For purposes of this
Agreement, "Property" shall mean Exhibit A-1 or Exhibit A-2 depending upon who
is the Buyer and who is the Seller.
Exhibit A-I 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-1.
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. Th~dQn~JliQ!l_QmOulJt mil be_~qual tp the__differ~nce
Qetween~~tQQrfti?_ed.Yf!lues o( thJ~.JYVQprQJ)f~!'tle:"
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
thirty (30) 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.
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 lS_ 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 lS_ 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
Property in the Seller's possession or reasonably available to the Seller.
S. Leases. A copy of each tenanfs 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 policy 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 the 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
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 non satisfaction 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 ~1445. 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
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 the 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
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 Sellers
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.
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,
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.
(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
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
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 party.
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
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. "
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 SmNG 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.
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
December 18, 2007
IN THE MATTER OF AN ORDINANCE DECLARING THE APPROVAL OF THE
VERDE VILLAGE DEVELOPMENT AGREEMENT, INCLUDING A REAL
PROPERTY EXCHANGE AND APPROVAL OF PLANNING ACTION #2006-01663,
INCLUDING A REQUEST FOR ANNEXATION OF A TOTAL OF 11.64-ACRE SITE
(IN THREE PARTS) LOCATED AT 87 W. NEVADA ST AND 811 HELMAN STREET
REQUEST FOR A COMPREHENSIVE PLAN MAP AND ZONING MAP CHANGE
JACKSON COUNTY ZONING RR-5 (RURAL RESIDENTIAL) TO R-1 (SINGLE-
FAMILY RESIDENTIAL) AND R-1-3.5 (SUBURBAN RESIDENTIAL).
THE PROPOSAL INCLUDES A REQUEST FOR OUTLINE PLAN APPROVAL
UNDER THE PERFORMANCE STANDARDS OPTIONS CHAPTER 18.88 TO
DEVELOP THE PROPERTY AS A 68-UNIT RESIDENTIAL DEVELOPMENT.
EXCEPTIONS TO THE STREET STANDARDS ARE REQUESTED FOR
NOT LOCATING A STREET ADJACENT TO NATURAL FEATURES AND
TO USE A PRIVATE DRIVE TO ACCESS THE COTT AGES RATHER THAN
THE REQUIRED PUBLIC STREET. A PHYSICAL CONSTRAINTS REVIEW
PERMIT IS REQUESTED TO LOCATE A MULTI-USE PATH IN THE ASHLAND
CREEK RIPARIAN PRESERVATION AREA. A TREE REMOVAL PERMIT IS
REQUESTED TO REMOVE A 25-INCH DIAMETER AT BREAST HEIGHT OAK
TREE. APPLICANT: Greg and Valri Williams
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)FINDINGS OF FACT,
)CONCLUSIONS OF LAW
)AND ORDER
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I. NATURE OF PROCEEDINGS
This matter comes before the City Council for the City of Ashland for a de novo hearing on a request for
an Ordinance declaring the approval of a Development Agreement, land exchange and associated
planning actions as identified in PA #2006-01663.
Now, Therefore, the City Council of the City of Ashland makes the following Findings of Fact,
Conclusions of Law and Order.
II. FINDINGS OF FACT:
1) Tax lots 700, 800 and 900 of39 IE 04BB and tax lots 800 and 1100 of39 IE 04B are located at 87
W. Nevada St. and 811 Helman St. Tax lot 200 of 39 IE 04BB is City of Ashland property and is
commonly referred to as the Dog Park. Tax lots 700 and 800 of 39 IE 04BB are located outside of the
Ashland city limits and are Jackson County zoning Rural Residential (RR-5). Tax lots 800 and 1100 of39
1 E 04B and tax lot 900 of 39 1 E 04BB are partially located in the Ashland city limits. The portions of 39
IE 04B 800 and 1100 and tax lot 900 of 39 IE 04BB in the Ashland city limits are zoned Single Family
Residential (R-I-5) and the portions of the same tax lots outside the Ashland city limits is Jackson County
zoning Rural Residential (RR-5).
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 1
2) The applicant is requesting an Annexation for an 11.64 acre site located at 87 W. Nevada St. and 811
Helman St. The application includes a request for a Comprehensive Plan Map and Zoning Map change
from Jackson County zoning RR-S (Rural Residential) to City of Ashland zoning R-I-3.5 (Suburban
Residential) and R-1 (Single-Family Residential). The application includes a request for Outline Plan
approval for a 68-unit residential development under the Performance Standards Options Chapter 18.88.
The application includes two requests for Exceptions to the Street Standards for not locating a street
adjacent to natural features and to use a private drive to access the cottages rather than the required public
street. A Physical Constraints Review Permit is requested to locate a multi-use path in the Ashland
Creek Riparian Preservation Area. A Tree Removal Permit is requested to remove a 2S-inch diameter at
breast height Oak tree. The application includes a request for a land exchange with the City of Ashland.
Site improvements are outlined on the plans on file at the Department of Community Development.
3) The criteria for an Annexation are described in 18.106.030 as follows:
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.
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, to 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.
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 2
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 turn-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):
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 buyers or renters with incomes at or below
80% of median income; or
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 3
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.
4) The criteria for a Comprehensive Plan Map Change and Zone Change are described in
18.108.060.B as follows:
1. Zone changes, zoning map amendments and comprehensive plan map changes subject to
the Type III procedure as described in subsection A of this section may be approved if in
compliance with the comprehensive plan and the application demonstrates that:
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 4
a. The change implements a public need, other than the provision of affordable
housing, supported by the Comprehensive Plan; or
b. A substantial change in circumstances has occurred since the existing zoning or
Plan designation was proposed, necessitating the need to adjust to the changed
circumstances; or
c. Circumstances relating to the general public welfare exist that require such an
action; or
d. Proposed increases in residential zoning density resulting from a change from one
zoning district to another zoning district, will provide one of the following:
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 buyers 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; or
e. Increases in residential zoning density of four units or greater on commercial,
employment or industrial zoned lands (i.e. Residential Overlay), will not negatively
impact the City of Ashland's commercial and industrial land supply as required in the
Comprehensive Plan, and will provide one of the following:
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 buyers 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
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 5
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 dedication.
Ownership of the land and/or air space 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 sections D or E 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.
Sections D and E do not apply to council initiated actions.
5) The criteria for Outline Plan approval are described in 18.88.030.A.4 as follows:
The Planning Commission shall approve the outline plan when it finds the following criteria
have been met:
a. That the development meets all applicable ordinance requirements of the City of Ashland.
b. That adequate key City facilities can be provided 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.
c. That the 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 included in the open space, common
areas, and unbuildable areas.
d. That the development of the land will not prevent adjacent land from being developed for
the uses shown in the Comprehensive Plan.
e. That there are adequate provisions for the maintenance of open space and common areas,
if required or provided, and that if developments are done in phases that the early phases
have the same or higher ratio of amenities as proposed in the entire project.
f. That the proposed density meets the base and bonus density standards established under
this Chapter.
g. The development complies with the Street Standards.
6) The criteria for an Exception to the Street Standards are described in 18.88.050.F as follows:
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 6
An exception to the Street Standards is not subject to the Variance requirements of section
18.100 and may be granted with respect to the Street Standards in 18.88.050 if all of the
following circumstances are found to exist:
A. There is demonstrable difficulty in meeting the specific requirements of this chapter due
to a unique or unusual aspect of the site or proposed use of the site.
B. The variance will result in equal or superior transportation facilities and connectivity;
C. The variance is the minimum necessary to alleviate the difficulty; and
D. The variance is consistent with the stated Purpose and Intent of the Performance
Standards Options Chapter.
7) The criteria for a Physical Constraints Review Permit are described in 18.62.040.1 as follows:
1. Through the application of the development standards of this chapter, the potential
impacts to the property and nearby areas have been considered, and adverse impacts have
been minimized.
2. That the applicant has considered the potential hazards that the development may create
and implemented measures to mitigate the potential hazards caused by the development.
3. That the applicant has taken all reasonable steps to reduce the adverse impact on the
environment. Irreversible actions shall be considered more seriously than reversible actions.
The Staff Advisor or Planning Commission shall consider the existing development of the
surrounding area, and the maximum permitted development permitted by the Land Use
Ordinance.
8) The criteria for a Tree Removal Permit are described in 18.61.080 as follows:
An applicant for a Tree Removal-Staff Permit shall demonstrate that the following criteria are
satisfied. The Staff Advisor may require an arborist's report to substantiate the criteria for a
permit.
A. Hazard Tree: The Staff Advisor shall issue a tree removal permit for a hazard tree if the
applicant demonstrates that a tree is a hazard and warrants removal.
1. A hazard tree is a tree that is physically damaged to the degree that it is clear that it is likely
to fall and injure persons or property. A hazard tree may also include a tree that is located within
public rights of way and is causing damage to existing public or private facilities or services and
such facilities or services cannot be relocated or the damage alleviated. The applicant must
demonstrate that the condition or location of the tree presents a clear public safety hazard or a
foreseeable danger of property damage to an existing structure and such hazard or danger cannot
reasonably be alleviated by treatment or pruning.
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 7
2. The City may require the applicant to mitigate for the removal of each hazard tree pursuant
to AMC 18.61.084. Such mitigation requirements shall be a condition of approval of the permit.
B. Tree that is Not a Hazard: The City shall issue a tree removal permit for a tree that is not a
hazard if the applicant demonstrates all of the following:
1. The tree is proposed for removal in order to permit the application to be consistent with
other applicable Ashland Land Use Ordinance requirements and standards. (e.g. other applicable
Site Design and Use Standards). The Staff Advisor may require the building footprint of the
development to be staked to allow for accurate verification of the permit application; and
2. Removal of the tree will not have a significant negative impact on erosion, soil stability,
flow of surface waters, protection of adjacent trees, or existing windbreaks; and
3. Removal of the tree will not have a significant negative impact on the tree densities, sizes,
canopies, and species diversity within 200 feet of the subject property.
The City shall grant an exception to this criterion when alternatives to the tree removal have been
considered and no reasonable alternative exists to allow the property to be used as permitted in
the zone. Nothing in this section shall require that the residential density be reduced below the
permitted density allowed by the zone. In making this determination, the City may consider
alternative site plans or placement of structures or alternate landscaping designs that would
lessen the impact on trees, so long as the alternatives continue to comply with other provisions of
the Ashland Land Use Ordinance.
4. The City shall require the applicant to mitigate for the removal of each tree granted approval
pursuant to AMC 18.61.084. Such mitigation requirements shall be.a condition of approval of the
permit.
9) The City Council, following proper public notice, held public hearings on November 6, 2007 and
November 20, 2007 at which time testimony was received and exhibits were presented. The City Council
approved the application subject to conditions pertaining to the appropriate development of the site.
Now, Therefore, the City Council of the City of Ashland makes the following Findings of Fact,
Conclusions of Law and Order.
III. FINDINGS APPLYING APPLICABLE CODE CRITERIA AND MINIMUM STANDARDS
FOR ELIGIBILITY FOR ANNEXATION
3.1 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.
3.2 The City Council finds that the proposal to annex an 11.64 acre site located at 87 W.
Nevada St. and 811 Helman St. meets all applicable criteria for an Annexation. The Commission
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 8
finds that the proposal to change the Ashland Comprehensive Plan Map from a Single-Family
Residential designation to a Suburban Residential designation for the cottage and town home
portion of the development meets all applicable criteria for a Comprehensive Plan change. The
Commission finds the proposal to develop a 68-unit single-family residential subdivision meets all
applicable criteria for an Outline Plan approval described in the Performance Standards Options
Chapter 18.88. The Commission finds and that the proposed location the multi-use path adjacent to
the natural feature rather than a public street, and the proposed use of a private drive to access the
cottages rather than the required public street meet all applicable criteria for Exceptions to the Street
Standards. The Commission finds the request to locate a multi-use path in the Ashland Creek
Riparian Preservation Area meets all applicable criteria for a Physical Constraints Review
Permit. The Commission finds the request to remove a 2S-inch diameter at breast height Oak
tree meets all applicable criteria for a Tree Removal Permit.
3.3 The City Council finds that the proposal to annex 11.64 acres meets all applicable criteria for
an Annexation.
The site is comprised of five parcels and all of the parcels are located in the Ashland Urban Growth
Boundary. In addition, the land is currently contiguous with the present city limits. The west part
of the development is contiguous to the city limits on all sides. The east part of the development is
contiguous to the city limits on the west and south.
The Annexation approval criteria require the proposed zoning for the annexed area to be in
conformance with the designation indicated on the Comprehensive Plan Map. The entire site is
designated as Single-Family Residential on the Ashland Comprehensive Plan Map. The proposal
includes a Comprehensive Plan Map Change for approximately 42 percent of the site, for the
cottage and town home portion of the development, to modify the Single-Family Residential (R-
1) designation in the Ashland Comprehensive Plan Map to the Suburban Residential (R-I-3.S)
designation. The request for the Comprehensive Plan Map Change is discussed in the following
section. Therefore, the ability of the cottage and town home portion of the development to meet
this criterion is dependent on the approval of the Comprehensive Plan Map Change. The
remainder of the site, the single-family portion of the development, would remain in the Single-
Family designation. Therefore, the single-family portion of the development is in conformance
with the Comprehensive Plan Map, and satisfies this Annexation criterion.
The proposed uses included in the Annexation are required to be allowed uses in the zoning
districts. Phase I, or the R-I-3.S portion of the project to the west of Almeda Dr. and Canine
Way includes single-family and multi-family dwellings. Single-family and multi-family
dwellings are permitted uses in the R-I.3.S zoning district. Phase II, or the R-I-S portion of the
project to the east of Almeda Dr. and Canine Way includes single-family dwellings and duplexes.
Single-family dwellings, and duplexes on comer lots are permitted uses in the R-I zoning
district.
Adequate city facilities to provide water to the site, to transport sewage from the site, to carry storm
drainage to and through the site and to provide electricity to the site are included in the preliminary
utility plan and utility power plan. Eight-inch water lines will be installed to serve the development
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 9
with connections to the existing system in Nevada and Almeda streets. Two existing 12-inch and
18-inch sanitary sewer lines run through the property and are retained in Almeda Dr. Eight-inch
lines will be installed in Sander Way, Canine Way and the cottage driveway to serve the
development with connections to the existing lines. Storm drainage is directed to two locations.
The southwesterly area of the project is directed to the City's existing demonstration wetlands
located north of the project using standard underground pipes. The northeasterly are of the project
is directed and treated through a combination of a pipe system and a newly built system of swales
and sediment ponds to Ashland Creek. Electric utilities will run through the site from the existing
system across Nevada St. The utility power plan delineates the location of new lines, equipment
and street lights.
Adequate transportation can and will be provided to and through the subject property. A Traffic
Impact Study was prepared for the project and has been included with the application. The study
projects that the intersection of Helman, Nevada and Almeda, and the intersection of Oak and
Nevada will continue to operate at acceptable levels with build out of the proposed project.
Outside of the Exceptions to the Street Standards requested in the application, the proposed streets
meet the requirements of the Street Standards. The new streets are connected to Nevada Street
which is a Neighborhood Collector. The Nevada St. frontage of the site will be improved with a
parkrow and sidewalk. Sidewalks will be installed on all of the new streets running through the
site. The new intersection of Helman St., Almeda Dr. and Nevada St. will be an important
pedestrian crossing point for residents of the development and for visitors of the Dog Park and Bear
Creek Greenway. Bicycle lanes are not required because none of the adjacent or new streets are
classified arterials. The application findings state that transit service is not planned to the site.
The Annexation approval criteria require that 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. The Oak St. sidewalk system is approximately 450 feet away or less
than 1/1 0 of a mile away from the project boundary. Sidewalks are in place on Oak St. from Nevada
St. to the downtown. As also required by the Annexation approval criteria, the proposal includes
the installation of a city standard parkrow and sidewalk on the Nevada St. frontage of the site. This
will result in a gap in the sidewalk network on the north side of Nevada St. from the project site to
Oak St. The City Council finds installation of the sidewalk on the north side of Nevada St. from
the site to Oak St. is required to meet the Annexation approval criteria.
The "Revisions to Area and Density Tables" submittal dated July 20, 2007 included in the
application includes a table demonstrating that the 90% density is achieved in each housing type
and for the project as a whole.
The application satisfies the annexation affordable housing requirement by providing title to a
sufficient amount of buildable land to a non-profit to develop 25% of the base density to buyers or
renters at or below 100% of median income (base density of 58 units * .25 = 14.5 units). The
application includes 15 affordable housing units in a town home format in the northwest portion of
the site. The project description states that the land will be donated to Rogue Yalley Community
Development Corporation (RYCDC) to develop as 15 affordable units for the range of 80 to 100
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Page 10
percent of median income.
The western portion of the project is an island surrounded by lands within the city limits, and
therefore satisfies Section 18.106.030.H.6 of the Annexation approval standards.
The eastern portion of the project must also meet one of the six standards in Section 18.106.030.H.
Currently, the eastern portion of the project is adjacent to and in the city limits on two sides, to the
south and west. The application states that Phase I of the project will be development of the
western portion of the project and the dedication of the property adjacent to Ashland Creek to the
city for parks purposes. As a result of the land dedication and annexation in Phase I, the eastern
portion of the property will be an island completely surrounded by lands within the city limits, and
therefore also complies with 18.1 06.030.H.6.
3.4 The City Council finds that the request for an Ashland Comprehensive Plan Map change
from a Single-Family Residential designation to a Suburban Residential designation for the cottage
and town home portion of the development meets all applicable criteria for a Comprehensive Plan
Map change.
The application includes a request for a Comprehensive Plan Map Change for approximately
4.35 acres or 42 percent of the site to modify the Single-Family Residential (R-1) designation in
the Ashland Comprehensive Plan Map to the Suburban Residential (R-1-3.5) 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.
The approval criteria for a Comprehensive Plan Map Change require that the proposed change
meet one of five factors and be in compliance with the Comprehensive Plan. The City Council
finds that the change to the Suburban Residential Family designation for Phase I of the project
(i.e. cottages and town homes) enables a minimum of 53 of the 68 units in the development to be
constructed at an energy and water conserving performance standard. Additionally, the
Suburban-Residential designation and subsequent R-1-3.5 zoning allows flexibility with the
housing types and site design that is well-suited for the cottage and town home areas of the
development. The cottage and town homes include attached dwellings that are grouped in
clusters around open space. The flexibility in building placement and site design allows all of the
proposed buildings to be located on an east-west axis for a true South building orientation so that
the optimum solar efficiency is gained for both solar collection devices and for passive solar
gain. Finally, the total number of units in the proposed development is comparable to the site
being developed as a Single-Family Residential development with R-1-5 zoning and the density
bonuses permitted in Chapter 18.88 Performance Standard Options. For example, a project could
be developed under the R-1-5 zoning and used a density bonus for conservation housing and
affordable housing. In this case, the base density of the subject properties developed at a R-1-5
density is 46.67 units (10.37 Ac * 4.5 du/ac = 46.67 units). A 40% density bonus with a 15%
density bonus for conservation housing and a 25% bonus for affordable housing would allow 65
units (46.67 units * 1.40 = 65.34 units). In comparison, the proposed number of units in the
development is 68 units.
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The energy and water conservation housing provided by the development will address a public
need for energy and water conservation in new homes that is supported by the Ashland
Comprehensive Plan. The Ashland Comprehensive Plan includes the following goals and
policies concerning energy and water conservation in Chapter XI: Energy.
The City shall strive, in every appropriate way, to reduce energy consumption within the
community. Water conservation and air quality enhancement should also be promoted.
Programs should emphasize greater efficiency in end use, rather than sacrifices in living
standards. In general, policies that effect change through a combination of economic
incentives and public education shall be considered more appropriate than policies
involving strict legal requirements or mandates. The City shall give due attention to
energy and resource conservation and air quality enhancement in all planning actions
and all city activities.
Policy 3) New Housing
C) New homes and apartments are being built which do not utilize the latest
technological advances in water consuming devices. The City shall use any legal means
to insure that only water conserving equipment be installed in new construction. This
should be done to accommodate growth with lesser incremental water demand and also
to eliminate the need to return to these homes later to retrofit them with water conserving
devices.
D) Passive solar design and sun tempering are very cost effective in new home
construction. They shall be encourage in new housing development and individual
houses.
E) The City shall address overall energy usage of new developments instead of just
looking at houses on an individual bases. Areas to be considered could be transportation
energy, recycling, composting, communal gardens, water usage and solar access
protection.
G) Appliance efficiency shall be encouraged in new housing. This could be done
through existing programs (i.e. Super Good Cents), by codes, by education or by
incentive programs (i.e. density bonuses). Also of these options shall be considered in
trying to achieve this goal.
Policy 8) Future Considerations
B) The future will be quite dynamic and volatile in the energy arena. The City needs to
actively keep abreast of new advances in technology and embrace and encourage ones
which can benefit water conservation. air quality, energy conservation or production.
The City Council finds that the energy and water conservation performance standard as outline in
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Page 12
Exhibit K-3 of Book III: Narrative, July 8,2007, states that the units in the development will be
designed to use 50% less energy than a typical code compliant home. Energy efficiency features
included in the project performance standard are solar orientation, roofs designed for solar hot
water collection systems, passive solar heating, integrated thermal mass, high efficiency heat
source, improved thermal envelope (insulation), heat recovery ventilation, fluorescent or compact
fluorescent lighting, energy efficient appliances, photovoltaic electric systems and night flush
cooling. In addition, the goal of the development is to use approximately 50% less potable water
than a typical code compliant development. Water efficiency features included in the project
performance standard are water efficient toilets, showerheads and faucets, rainwater capture,
water and energy efficient washers, drought resistant plantings and water efficient irrigation.
In regards to transportation facilities and amendments to an acknowledged comprehensive plan,
Oregon Administrative Rule (OAR) 660-012-00060 requires local governments to address
amendments that would "significantly affect an existing or planned transportation facility." The
original proposal was reviewed by the Oregon Department of Transportation (ODOT) in
November 2006 and commented that "ODOT Development Review is generally satisfied no
adverse impacts to state facilities will occur as a result of the proposed land use amendments (see
page 494 of the record). The revised proposal was reviewed by ODOT in October 2007 and they
had no comment (see page 17 of the record).
The City Council finds the proposed Ashland Comprehensive Plan Map change from a Single-
Family Residential designation to a Suburban Residential designation for the cottage and town
home portion of the development will not significantly affect and existing or planned transportation
facility as defined in OAR 660-12-0060(1). As stated earlier, the total number of units in the
proposed development is comparable to the site being developed under the current
Comprehensive Plan designation of Single-Family Residential. Chapter 18.88 Performance
Standards Options permits density bonuses for conservation housing, common open space, major
recreational facilities and affordable housing. Using the density bonus provision, the subject
property could be developed at a density close to the proposed 68 units under the current Single-
Family Residential designation. In this case, the base density of the subject properties developed
at a R-I-5 density is 46.67 units (10.37 Ac * 4.5 du/ac = 46.67 units). A 40% density bonus with
a 15% density bonus for conservation housing and a 25% bonus for affordable housing would
allow 65 units (46.67 units * 1.40 = 65.34 units). As a result, three additional units result from
the Comprehensive Plan Map change from the current Single-Family Residential designation to
the proposed Suburban Residential Designation. Three units generate an average of thirty motor
vehicle trips per day according to the ITE, Trip Generation Model, ih addition. Thirty additional
trips will not significantly affect the surrounding street network including Nevada St., Helman St.
and Oak St.
The following discussion addresses the requirements of OAR 660-12-0060(1) and the OAR text is
in italics.
(1) Where an amendment to afunctional plan, an acknowledged comprehensive plan, or a land
use regulation would significantly affect an existing or planned transportation facility, the local
government shall put in place measures as provided in section (2) of this rule to assure that
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663 Page 13
allowed land uses are consistent with the identified function, capacity, and performance
standards (e.g. level of service, volume to capaci(v ratio, etc.) of the facility. A plan or land use
regulation amendment significantly affects a transportation facility if it would:
(a) Change the functional classification of an existing or planned transportation facility
(exclusive of correction of map errors in an adopted plan);
According to the Traffic Impact Study submitted with the application, the proposed development
will generate 730 trips per day. While the Comprehensive Plan Map change results in a few
more residential units as compared to development of the subject site under the current
Comprehensive Plan Map designation, even considering the total traffic impact from the
proposed development does not change the functional classification of the street network in the
vicinity including Nevada St., Helman St. and Oak St.
The streets most likely to be impacted by motor vehicle traffic generated by the development are
Nevada St., Helman St., Laurel St. and Oak St. Nevada St is identified in a Neighborhood
Collector, and Helman St. and Oak St. are identified as Avenues in the Ashland Transportation
System Plan.
The Transportation Element of the Ashland Comprehensive Plan, the Ashland Transportation
System Plan and the Ashland Street Standards provide street classification guidelines. The
function of a Neighborhood Collector such as Nevada St. is to distribute traffic from Boulevards
or Avenues to neighborhood streets and vice versa, and the average traffic volumes of a
Neighborhood Collector is I ,500 to 5,000 motor vehicle trips per day. The function of an
Avenue such as Helman St. and Oak St. is to provide concentrated pedestrian, bicycle and motor
vehicle access from Boulevards to neighborhoods and neighborhood activity centers and vice
versa, and the average traffic volumes of an A venue is 3,000 to 10,000 motor vehicle trips per
day.
Traffic counts for Nevada St. are approximately 1,400 trips per day (2002), Helman St. are
approximately 1,450 trips per day (2004) and for Oak St. are approximately 3,500 trips per day
(2004). The Traffic Impact Study included in the application projects that approximately 47% of
the peak PM hour traffic will use Helman St., 38% will go west on Nevada towards Oak St. and
15% of the traffic will go east on Nevada. All of the trips generated by the proposed by the
development could be added to Nevada St., Helman St. or Oak St., and all of the streets would be
well within the range of average traffic volumes identified in the Ashland street classification
guidelines. Additionally, Nevada St. will continue to function as a Neighborhood Collector
distributing traffic from the adjacent neighborhoods to the larger Avenue streets in the
neighborhood including Helman St. and Oak St. Helman St. and Oak St. will continue to operate
as Avenue streets taking traffic to the Boulevards in the city limits such as N. Main St., Lithia
Way and E. Main St.
(b) Change standards implementing a fimctional classification system; or
The proposed Comprehensive Plan Map change does not include a modification of the Ashland
street classification guidelines.
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Page 14
(c) As measured at the end of the planning period identified in the adopted transportation system
plan:
(A) Allow land uses or levels of development that would result in (vpes or levels of travel or
access that are inconsistent with the functional classification of an existing or planned
transportation facility;
The Comprehensive Plan Map change results in the addition of a few more residential units as
compared to development of the subject site under the current Comprehensive Plan Map
designation. The approximately 30 additional motor vehicle trips resulting from three additional
units allowed by the Comprehensive Plan Map change will be the type of travel and level of
travel that is consistent with the functional classification of the surrounding street network
including Nevada St., Helman St. and Oak St.
(B) Reduce the performance of an existing or planned transportation facility below the minimum
acceptable performance standard identified in the TSP or comprehensive plan; or
The Ashland Transportation System Plan identifies the minimum acceptable performance
standard for intersections as a LOS D. The Traffic Impact Study included in the application
projects of LOS B for the intersections of Helman St./Almeda Dr.INevada St. and of Nevada St.
and Oak St. in 2010 with build out of the project and incorporating an annual average traffic
growth rate.
(C) Worsen the performance of an existing or planned transportation facility that is otherwise
projected to perform below the minimum acceptable performance standard identified in the TSP
or comprehensive plan.
The Ashland Transportation System Plan does not identify existing or planned transportation
facilities in the vicinity that will have insufficient capacity at the end of the 20-year planning
period of2017.
3.5 The City Council finds the proposal to develop a 68-unit single-family residential
subdivision meets all applicable criteria for an Outline Plan approval described in the Performance
Standards Options Chapter 18.88.
The site is the located at a northernmost section of the Ashland Urban Growth Boundary and
there are no other undeveloped parcels located in the immediate vicinity. Therefore, the
development of the subject site will not prevent adjacent land from being developed for the uses
in the Comprehensive Plan.
Adequate key city facilities and utilities are available and can be provided, and were discussed
previously under the Annexation section. Outside of the Exceptions to the Street Standards
requested in the application, the proposed streets meet the requirements of the Street Standards.
A multi-use path for pedestrians and bicyclists is proposed in the Ashland Creek riparian corridor
connecting Nevada St. to the north end of Canine Way. The proposed multi-use path weaves
above and below the biologically determined riparian zone and the top of the uppermost slope
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Page 15
grade break. A second multi-use path is proposed between units 64 and 65 in the northwest
comer of the project. The path would connect Almeda Dr. directly to the Bear Creek Greenway
path connection. The subject section of Ashland Creek Corridor is identified for open space in
the Long Term Plan on the Parks, Trails and Open Space Program fro 2002-2012. Additionally,
the connection from Almeda Dr. to the Bear Creek Greenway path is also identified as a
proposed greenway connection on the Parks, Trail and Open Space Program for 2002-2012.
A total of 127 off-street parking spaces and 68 on-street parking spaces are required for the
proposed development of 68 units. The proposal meets the parking requirements. There are 114
off-street parking spaces proposed in a combination of garages and surface parking areas. The
remaining required 13 off-street parking spaces are satisfied by 17 on-street spaces which is the
equivalent to 13 off-street parking credits. There are 85 on-street spaces available which results in
the 17 on-street spaces that can be used towards the off-street parking credits.
The proposed density of 68 units meets the base and bonus density standards of the Performance
Standards Options Chapter 18.88. The base density of the property is 58.15 units. The project
qualifies for a density bonus of 22% for the 15 affordable housing units that are provided (15
affordable units/68 units = .22). Therefore the permitted density with the affordable housing
density bonus is 70 units (58.15 units * 1.22 = 70.94 units).
With one exception, the proposed building setbacks meet the requirements of the Performance
Standards Options Chapter 18.88. The front yards of the R-I-5 portion of the development
meet the required 15 feet to the building and 20 feet to garages, and the setbacks along the
perimeter of the development meet the required side and rear yards. The front yards of the R-l-
3.5 portion of the development (cottages and town homes) do not meet the front yard
requirements along Almeda Dr. and Canine Way. Fifteen feet is shown and 20 feet is required
for front yards in the R-I-3.5 zoning district. As a result, a condition has been added that the
buildings delineated in the Final Plan meet the required front yard for the R-I-3.5 zoning district.
The heights of the proposed buildings and minimum width between buildings appear to be met,
and will be verified at the Final Plan and building permit submittals. It is not clear the
application if the proposed units meet the Solar Setback requirements of Chapter 18.68 as is
required in the Performance Standards Options Chapter 18.88.070.E. A condition has been
added requiring the Final Plan application address the Solar Setback requirements.
The entire subdivision is required to provide a minimum of five percent of the lot area in open
space for Outline Plan approval under the Performance Standards Options. A total of 21 ,688
square feet is required in open space, and the proposal includes 25, 230 square feet identified as
common open space areas. With the exception of the four standard single-family lots in the
subdivision, the units also have a private yard space identified for each unit. Since the common
open space provides an additional 3,542 square feet in open space beyond the requirements, the
application meets the open space acreage requirements.
The Outline Plan approval criteria require that there are adequate provisions for the maintenance of
open space and common areas, and that if the development is done in phases that the early phases
have the same or higher ratio of amenities as proposed in the entire project. The application
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Page 16
findings state that the development will be done as three separate entities for the cottages, town
homes and single-family/duplex groups. The proposal is to have a Planned Unit Development for
each of the three groups and provide CC&R's detailing specific maintenance responsibilities for
each community. Phase I will include the development of the cottages and town homes.
Approximately 55% of the open space is included in Phase 1. Therefore, the same or higher ratio
of common open space would occur in the first phase of the project than in Phase II, and the
approval criterion is satisfied.
The City Council finds the significant natural features of the site are the wetland in the northern
portion of the site, two trees located outside of the riparian corridor, the Ashland Creek floodplain
corridor and Ashland Creek riparian corridor. Three of the significant natural features - the
wetland, floodplain corridor and riparian corridor - are located in a separate parcel that is proposed
to be dedicated to the city for parks purposes as part of the land exchange. As a result, the City
Council finds the wetland, floodplain corridor and riparian corridor are included in open space that
is an unbuildable area. The two significant trees are a 19-inch diameter at breast height (dbh)
Oregon Ash (tree 20 on the Tree Survey and Protection Plan, T-1, June 8, 2007) and a 39-inch dbh
California Black Oak (tree 21 on T -1). The two significant trees are located near units 28 and 31.
The City Council finds the trees are included in the common area of the subdivision, and the
common are is unbuildable.
3.6 The City Council finds and that the proposed location of the multi-use path adjacent to the
natural feature rather than a public street, and the proposed use of a private drive to access the
cottages rather than the required public street meet all applicable criteria for an Exception to the
Street Standards.
An Exception to the Street Standards is requested to locate a multi-use path in the Ashland Creek
riparian corridor rather than locating a street adjacent to natural features as is required. The
proposed multi-use path weaves above and below the biologically determined riparian zone and the
uppermost top of the slope grade break.
The Preserving Natural Features of the Street Standards is as follows.
"Streets shall be located in a manner which preserves natural features to the greatest extent
feasible. Whenever possible, street alignments shall follow natural contours and features so
that visual and physical access to the natural feature is possible. Streets shall be situated
between natural features, such as creeks, mature trees, drainages, open spaces and individual
parcels in order to appropriately incorporate such significant neighborhood features."
The City Council finds there are several unusual aspects of the site that make it difficult to locate
a street adjacent to Ashland Creek. First, there are two existing main sanitary sewer lines that
bisect the site (see Exhibit E-E, Preliminary Utility Plan). The application includes a
Geotechnical Investigation (see Appendix D, Geotechnical Investigation) which identifies
"relatively hard bedrock" comprised of sedimentary rock including siltstone, sandstone and
conglomerate at shallow depths throughout the site. As a result, the application identifies the
relocation of the main sanitary sewer lines as impractical. The new main street into the
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Page 17
development from Nevada St., Almeda Dr., is located over the existing main sanitary sewer lines
so the lines can be accessed and do not have to be moved. The second unusual aspect of the site
is the location of Ashland Creek is approximately 200 feet east of the existing intersection of
Helman St. and Nevada St. The project traffic engineer recommended that the main access to the
site be located opposite of the Helman St. and Nevada St. intersection. Locating a secondary
street access to the development from Nevada St. and adjacent to Ashland Creek poses safety
issues in terms of the close proximity to the Helman St., Nevada St. and Almeda Dr. intersection.
The final unusual aspect of the site is the relatively narrow area from the new Almeda Dr. to
Ashland Creek. The City Council agrees the existing sanitary sewer lines, the need to align the
new street with the existing intersection of Nevada and Helman streets and the narrowness of the
area from the new Almeda Dr. to Ashland Creek are significant constraints in the development of
the new street network that create a demonstrable difficulty in meeting the Street Standard on
Preserving Natural Features.
The City Council finds that the multi-use path achieves a similar buffering effect as a street to the
Ashland Creek riparian corridor. The multi-use path will provide visual and physical access to
the riparian corridor. Although the multi-use path is largely located in the riparian corridor, it is
situated at the western edge of the corridor, and will be located between the individual parcels
and the riparian zone. The City Council finds that the multi-use path is an equally valuable
transportation facility as compared to a city street because it provides a connection to the existing
Bear Creek Greenway, thereby increasing the reach of this pedestrian and bicycle off-road
transportation system. The City Council finds that by providing a transportation facility in the
form of a multi-use path that the proposed exception is the minimum variance necessary to
address the site constraints. The City Council finds that Exception to the Street Standards to use
the proposed multi-use path rather than a public street to protect and provide access to the
Ashland Creek riparian corridor uses the natural features of the landscape to the greatest
advantage and will improve the quality of life of the residents of the development as outlined in
the Purpose and Intent of Chapter 18.88 Performance Standards Options.
An Exception to the Street Standards is requested to use a private drive to access the 24 cottages
rather than the required public street. The proposed private drive is a looped system that is
approximately 300 feet in length and is connected at both ends to Almeda Dr. The proposed private
drive is 20 feet in width, includes 26 head-in parking spaces and has a sidewalk system adjacent to
the curb. In contrast, a public street would be required to be 22 feet in width with parkrows and
sidewalks on both sides. Additionally, a 22-feet wide public street would allow parallel parking on
one side of the street.
The City Council finds there is demonstrable difficulty in providing a public street and the
required off-street parking given the geographic layout of the comer of the property that is
proposed for the cottages. A public street does not allow head-in parking adjacent to the street,
and the proposal is to allow 26 head-in parking spaces adjacent to the private drive. In addition,
by consolidating most of the cottage parking adjacent to the private drive, it allows more of the
land area to be used as open space for the cottages rather than to be used for surface parking. In
addition, fewer parallel parking spaces would fit on one side of the public street of the length
proposed compared to the number of spaces that can be achieved with head-in parking.
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Residents and visitors will have no reason to travel on this short drive other than to visit the
cottage development. As a result, motor vehicles, bicyclists and pedestrians traveling through the
development will use Almeda Dr. In terms of sidewalks, pedestrians will have little reason to
travel on the cottage drive unless visiting one of the cottages because Almeda Dr. provides a
more direct route for moving through the neighborhood. The City Council concurs that a private
street is a better fit for the cottage development than a public street because the cottages will
function as a multi-family development with a shared surface parking area that is accessed by a
driveway.
The City Council finds that Exception to the Street Standards to use a private drive to access
the 24 cottages rather than the required public street will provide for more efficient land use as
outlined in the Purpose and Intent of Chapter 18.88 Performance Standards Options.
3.7 The City Council finds the request to locate a multi-use path in the Ashland Creek Riparian
Preservation Area meets all applicable criteria for a Physical Constraints Review Permit with the
attached conditions of approval. 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 determined 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.
The City Council finds that the multi-use path in the Ashland Creek riparian corridor itself is a
benefit to the general community and that there should be a balance ofthe environmental resource
protection issues and the parks and open space issues.
The City Council finds that the multi-use path is located along the upper edge of the riparian
corridor in an effort to minimize adverse impacts to Ashland Creek and in an effort to retain the
general topography of the riparian corridor. The proposed multi-use path, is except for the first
50 feet, is located outside of the 1 DO-year flood plain for Ashland Creek. The section of path in
the flood plain is at grade and will not create a potential flooding hazard.
The City Council finds the applicant has not addressed the reasonable steps necessary to reduce
the adverse impact on the Ashland Creek riparian corridor including the irreversible actions
caused by the construction of the multi-use path in the riparian corridor. A mitigation plan is
required as a condition of approval at the Final Plan application. The mitigation plan requires an
assessment of the Ashland Creek riparian corridor functions, an assessment of the impact of the
path construction on the resource functions and mitigation measures to offset those adverse
impacts.
3.8 The City Council finds the request to remove a 25-inch diameter at breast height Oak tree
. meets all applicable criteria for a Tree Removal Permit.
One of the eight trees identified for removal requires a Tree Removal Permit due to the size of
the tree being 18 inches diameter at breast height or greater. A Tree Removal Permit is requested
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Page 19
to remove a 25-inch diameter at breast height Oak tree (tree 39, Tree Survey and Protection Plan,
T-1, June 8, 2007). The tree is an Oregon White Oak and located between proposed units 33 and
34.
The Oregon White Oak identified for removal is described as stressed because of heavy
infestation of mistletoe and as having numerous dead limbs through the crown. Additionally, the
arborist predicts that the disruption to the root system due to nearby structures would cause
further decline in the tree. The Tree Commission reviewed the proposed tree removal in
November 2006, and recommended approval of the plan.
3.9 The proposal includes a real property exchange with the City of Ashland. The proposal is
to exchange approximately 2.78 acres adjacent to Ashland Creek to the City for parks purposes in
exchange for approximately 1.54 acres of the City Dog Park in the area of the access and to the
south of the existing parking area. The Land Exchange is addressed in separate findings
attached to the Ordinance approving the Development Agreement.
IV. ORDER
In sum, the City Council concludes that the requested Ordinance declaring the approval of a Development
Agreement, and all associated planning actions contained in Planning Action 2006-01663, including the
Development Agreement, Annexation, (in three parts), Comprehensive Plan Map and Zoning Map change from
Jackson County zoning RR-5 (Rural Residential) to City of Ashland zoning R-1-3.5 (Suburban Residential) and R-
1 (Single-Family Residential), request for Outline Plan approval for a 68-unit residential development under the
Performance 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 private drive to access the cottages rather than the required public
street, request for a Physical Constraints Review Permit to locate a multi-use path in the Ashland Creek Riparian
Preservation Area, and request for a Tree Removal Permit to remove a 25-inch diameter at breast height Oak
tree are consistent with or comply with applicable criterion and minimum standards in the City's comprehensive
Plan and applicable land development code, including minimum requirements for annexation eligibility, and are
supported by evidence contained within the whole record
Accordingly, based on the above Findings of Fact and Conclusions of Law, and based upon the evidence in the
whole record, the City Council hereby declares approval of the Development Agreement and APPROVES
Planning Action #2006-01663 subject to strict compliance with the conditions of approval, set forth herein as
well as those requirements conditions and restrictions set forth in the accompanying Verde Village Development
Agreement and Land Exchange Order. Further, if anyone or more of the conditions below are found to be
invalid, for any reason whatsoever, then Planning Action #2006-01663 is denied. The following are the conditions
and they are attached to the approval:
1) That all proposals of the applicant are conditions of approval unless otherwise modified here.
2) That Site Review approval shall be obtained for the cottages, town homes and duplexes prior to
any site work, issuance of an excavation permit or issuance of a building permit.
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 20
3) That the applicants shall execute a document as consistent with ALVa 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 prior to signature of
the final subdivision survey plat. 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.
4) That all easement for sewer, water, electric and streets shall be indicated on the Final Plan
application as required by the City of Ashland.
5) The Final Plan application shall identify the sanitary sewer pressure line easement, and buildings
shall not be located in the easement.
6) That the preliminary engineering for utility improvements shall be submitted with the Final Plan
application. The utility plan shall include the location of connections to all public facilities in
and adjacent to the development, including the locations of water lines and meter sizes, fire
hydrants, sewer mains and services, manholes and clean-outs, storm drainage pipes and catch
basins. Any required private or public utility easements shall be delineated on the utility plan.
7) That the preliminary engineering for storm drainage collection and treatment shall be submitted
with the Final Plan application. The permanent maintenance of on and off site storm water bio-
engineered swales and wetland systems must be addressed through the obligations of the
homeowners' association and approved by the Public Works Department and Building Division.
8) That the applicants shall submit an electric distribution plan with the Final Plan application
including load calculations and locations of all primary and secondary services including
transformers, cabinets, meters and all other necessary equipment. This plan shall be reviewed
and approved by the Electric Department prior to submission of the Final Plan application.
Transformers and cabinets shall be located in areas least visible from streets, while considering
the access needs of the Electric Department.
9) That the required pedestrian-scaled streetlight shall consist of the City of Ashland's residential
streetlight standard, and shall be included in the utility plan and engineered construction
drawings for the street improvements.
10) The preliminary engineering for proposed street improvements shall be provided at Final Plan
application. Street improvements shall be consistent with City of Ashland Street Standards. The
sidewalk improvement on Nevada St. shall be a minimum of six feet in width in accordance with
the Ashland Street Standards.
11) The preliminary engineering for the Final Plan application shall address the treatment of 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.
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 21
12) The Final Plan application shall include revised on-street parking pl<l;cement so that parking spaces
are not counted that are within 20 feet measured along the curb of any comer or intersection of an
alley or street in accordance with 18.92.025.D.
13) The preliminary engineering shall include details for the multi-use path improvements. The
multi-use 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.
14) The preliminary engineering shall address 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. Specifically,
the preliminary engineering shall address bicycle access from the street grade and provide
sufficient turning radius for bicycle navigation.
15) The Final Plan application shall include 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 ofthe 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.
16) That the multi-use paths shall be constructed by the applicants as part of the required subdivision
improvements.
17) That the Final Plan application shall demonstrate that the driveway curb cuts for units 45 and 46
are 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.
18) That the Final Plan application shall delineate 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
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 22
areas. Building envelopes shall be modified accordingly on the Final Plan submittals.
19) That the street names shall be reviewed and approved by Ashland Engineering for compliance
with the City's resolution for street naming prior to submission of the Final Plan application.
20) That a size and species specific landscaping plan for the parkrows, common areas and open
spaces shall be provided at the time of the Final Plan application.
21) That 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.
22) That the Final Plan application shall include 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.
23) The buildings in the R-1-3.5 zoning district (cottages and town homes) shall meet the required
front yard for the R-1-3.5 zoning district in the Final Plan application.
24) The width between buildings requirement of 18.88.070.D shall be met and identified in the Final
Plan application.
25) That 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.
26) That all of the a minimum of 53 residential units in the subdivision, including the cottages,
duplexes and single-familv units. shall meet the application "Net Zero Energy" Performance
Standard as outlined in Exhibit K-3 of the application Revised Outline Plan, Book III - Nan'ative
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 Performance Standard
that is administered by the applicants and verified by the city.
27) That a minimum of 4& 53 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
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 23
Advantage documentation shall be submitted with each building permit application.
28) That the hydrant placement and fire apparatus access requirements shall be met and addressed in
the Final Plan application.
29) That the Final Plan application shall address mitigation for the removal of the 2S-inch dbh Oak
tree (tree 39 on Tree Survey and Protection Plan, T-l, June 8, 2007). Mitigation shall meet the
requirements of Ashland Land Use Ordinance 18.61.084.
30) That 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-l, 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.
31) That a grading plan addressing preliminary finished grade (i.e. existing contours and proposed
contours) and areas of cut and fill shall be submitted with the Final Plan application.
32) That public easements shall be identified on the final survey plat for all multi-use pathways. The
project CC&R's shall 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.
33) That 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
18.06.030.G(S) and in conformance with the approval ofPA 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 SOI(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.
34) That the applicant 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.
35) That 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
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 24
proposed annexation.
36) That the land dedicated to the city for parks purposes adjacent to Ashland Creek shall be annexed
prior to the annexation of the Phase II area of the project (single-family development).
:. 7) 'rhat a parl.:ro"v a minimum of seven feet in width shall be provided bct\veen the curb and
sidev.;alk on both sides of Sander Way in accordance vvith the Ashland Street Standards and in
accordance with 18.88.050. The Sander Way parkrmv and sidewalk desit;n shall be included in
the preliminary street design in the Final Plan application.
37) That the Sander Way sidev'v'alks shall provide public access either by being included in the street
right-of-wav or having a public pedestrian easement as required by the Ashland Engineering
Division. The Final Plan submittals shall be modified accordingty,
38) That 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).
39) That 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.
40) That the Final Plan submittal shall address the usability, including Verde Village community
access, of the private 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.
41) That 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 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 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.
42) That the land being dedicated for affordable housing shall be dedicated to the City of Ashland if
it is not fully developed as affordable housing in accordance with the approval ofPA 2006-01663
within five years of this approval.
43) That all affordable housing units shall be net/ero energy ready.
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 25
-or-
That the 15 affordable residential units in the subdivision (i.e. town homes) shall be net zero
energy ready. Net zero energy readv is defined as a residential unit being constructed with the
appropriate infrastructure (e.g. wiring, conduit, roof structure) so that a photovoItaic (PV) system
can be installed at a later date.
-01'-
That the 15 affordable residential units in the subdivision (i.e. town homes) shall meet the
application "Net Zero Enen.!y" Performance Standard as outlined in Exhibit K-3 of the Revised
Outline Plan, Book 111 - Narrative revised October 24,2007, except that the photovoltaic (PY)
system is not required to be installed in the affordable units. Rather than installing thePY
system on the affordable residential units, each affordable unit shall be net zero energy readv.
Net zero energv ready is defined as a residentialllnit being constructed with the appropriate
infrastructure (e.g. wiring, conduit. roof structure) so that a photovoltaic (PV) system can be
installed at a later date.
44) That "Net Zero Energv" Performance Standard as outlined in Exhibit K-3 of the Revised Outline
Plan, Book lll-Narrative revised October 24,2007 shall be 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 home that would be built to the standards encompassed in the
applicant's Exhibit K shall be provided with a Photovoltaic CPY) system that is
either 3kW's in size or produces 1.5 Kwh's/Sq. Ft.lYr. whichever is less, and also
be provided with enough avai lable south facing unshaded roof space to double the
size of the PV svstem.
. That the homes will meet a minimum requirement ofR-49 attic insulation for flat
ceilings.
. That the passive solar homes shall meet the State of Oregon's minimum
requirements for the passive solar home tax credit.
Ashland City Council Approval
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 26
Mayor John W. Morrison
Date
Signature authorized and approved by the full Council this _ day of
,20_
Approved as to form:
Date:
Ashland City Interim Attorney
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 27
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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 Boundary); 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
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 and November 20, 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,
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -2-
WHEREAS, on November 20, 2007, the CitYs Council deliberated on the proposed
Development Agreement and tentatively approved the requested agreement, land
exchange and associated land use actions,
WHEREAS, on December 4, 2007 the City's Council conducted and approved the
First Reading of an Ordinance declaring the approval of the Development Agreement, and
associated approvals; and
WHEREAS, on December 19, 2007 the CitYs Council conducted and approved the
Second Reading of an Ordinance approving the Development Agreement, and associated
approvals with an effective date of January 17, 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 94.508(2), approving this Development
Agreement pursuant to City's Charter, City's Land Use Ordinance, and ORS 94.504
through ORS 94.528.
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 #2006-01663], is fully supported by 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 hereof 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -3-
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.
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 that 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).
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -4-
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.
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, S, 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, S, 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 the 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -5-
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
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-1" .
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -6-
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
the Project. When not specifically addressed the
coverage limitations and other requirements of the
following zones shall be met:
R-1-3.5: up to 55% of total lot area
R-1-5: up to 50% of total lot area
R-1.7.5: 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -7-
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.
(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.t[ORS 94.504(4)]
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -8-
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
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 OBUGATIONS.
[ORS 94.504(2)(a)]
The duration of this Agreement commences upon Ordinance adoption, execution and
effectiveness and terminates on January _ , 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -9-
lots; this Agreement remains in full force and effect as the development approval and
authorization for completed development, including all continuing maintenance obligations.
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -10-
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
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, -one hundred and fifty thousand dollars, .$150,000.00
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 (SDC's) 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 including 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.
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -11-
13.0 RESPONSIBIUTY FOR COMMON AREAS.
The Ashland Land Use Ordinance requires that common areas, including shared open
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 "CCR"). 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 "D" 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -12-
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 entering upon such Common Areas and maintaining
them for a period of one (1) year. Notice of such hearing shall be sent by certified mail,
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -13-
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.
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 associated 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 the 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -14-
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 the theory of vested rights or equitable
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 orders 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.
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -15-
15. Commencement Deadline January 17, 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)
16. Conveyance of deeds to effectuate land exchange, including acceptance by City of
completed public recreation improvements constructed by Owner, or approved
contract and security if conveyance prior to construction completion.
17. Final Plat Approval Phase I
18. Conveyance of Parcel from Owner to RVCDC or other approved affordable housing
provider 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, mooified or waived unless such mooification, amendment or waiver is
expressly provided for in this Agreement with specific reference to the provisions so
mooified 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 approve 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:
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -16-
Sworn Statement, Verification of Federal, State, and Local Permit Compliance.
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. 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -17-
anniversary date of this Agreement, and likewise thereafter. The Planning and Engineering
Departments shall prepare the CitYs 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 referred to the Planning Commission for
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 a 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 writing 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(B)] 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -18-
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
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 or upon review by
the Court, 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -19-
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.
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)(I)]
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -20-
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
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -21-
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:
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 shall 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 approving 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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -22-
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 is a final City land use 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 Agreement 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 SEVERABIUTY.
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -23-
meet to discuss amendments and alternatives to address the deficiency.
26.0 JURISDICTION AND GOVERNING LAW.
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
JaUs.2on 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 Flower 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 Be. Visser, P.C.
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -24-
515 East Main St.
Ashland, OR 97520
(541) 488-4455 fax
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
Ordinance Attachment 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Page -25-
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.
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 Agreement, 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 Legal ChallenGe. 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 Delay. 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
Ordinanc~ Attachm~nt 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
name herein and expressly described as the intended beneficiaries of this Agreement.
29.10 Other 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
case of the City, shall require adopting necessary ordinances and resolutions) as may
be reasonably necessary to carry out this Agreement in order to provide and secure to
the other parties the full and complete enjoyment of rights and privileges hereunder.
29.11 Survival of ReDresentations. 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 wa;; approved by Ordinance at Second Reading
by the City Council of the City of Ashland, Oregon.)
OWNER
ASHLAND FLOWER SHOP
AND GREENHOUSES, INC. f'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 D. Williams, as the President and authorized
agent of Ashland Flower Shop and Greenhouses, Inc.
Notary Public for Oregon
My Commission Expires:
Ordinance Attachm~nt 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
Approved as to Form:
Davis, Hearn, Saladoff, Bridges & Visser, P.c.
Christian E. Hearn, OSB 911829
Attorneys for Ashland Flowershop and Greenhouses, Inc.
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, aSB 904331
Interim City Attorney
Ordinance Affachment 1. - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
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
~y~~~!~.~i<:>~....~pi.~~~.:.......
Ordinan~ Attach~nt 1 - DEVELOPMENT AGREEMENT FOR VERDE VILLAGE
EXHIBIT A
Verde Village
LEGAL DESCRIPTION
attach legal description of Vente Village
after exchange
EXHIBIT B
Title Company Preliminary Title Report CertifICation
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 Village", 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, except to :Facilitate conveyance
the City contemplatp,j lin this agreem~"nt 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 agendes 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.
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)
) 55
County of Jackson )
The foregoing instrument was acknowledged before me this day of
, 2007, by Gregory D. 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 911829
Attorneys for Ashland Flowershop and Greenhouses, Inc.
EXHIBIT D
Preliminary Development Plan/Plat
(The approved Outline Plan must be reduced to
a legal sized legible document(s) for recording as Exhibit D)
EXHIBIT E
VERDE VILLAGE
Special Conditions
1) Affordable Housing 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, unless administratively extended pursuant to Exhibit F. 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 convey the property to another approved provider of
affordable housing. All the affordable housing units shall be Net Zero Energy
Ready as provided in Condition 12 below.
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) Archaeological 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
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) Boundary 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
and assess the association for the maintenance of common areas, including the
association's responsibilities for maintenance of the storm water areas offsite.
The Final Plan submittal shall address the usability, including Verde Village
community access, of the private 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.
8) Curl::r-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) Endangered 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) Energv Conservation: Earth Advantage Program. A minimum of 53 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) Energy Conservation: Net Zero Energy. -A-lninlmUrlt-fJf 53 residential
units, in the subdivision, including the cottages, duplexes and single family units,
shall meet the application "Net Zero Energy" Performance Standard as outlined
in Exhibit K-3 of the Revised Outline Plan, Book III Narrative revised October 24,
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.
"Net Zero Energy" Performance Standard as outlined in Exhibit K- 3 of the
Revised Outline Plan, Book III-Narrative revised October 24, 2007 shall be be
consistent with the following.
· 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 home that would be built to the standards
encompassed in the applicant's Exhibit K shall be provided
with a Photovoltaic (PV) system that is either 3kW's in size
or oroduces 1.5 Kwh's/Sq. Ft./Yr. whichever is less, and also
be provided with enough available south facing unshaded
roof space to double the size of the PV system.
· That the homes will meet a minimum requirement of R-49
attic insulation for flat ceilings.
· That the passive solar homes shall meet the State of
Oregon's minimum requirements for the passive solar home
tax credit.
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13) Intersection Design: 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
prior to signature of the final subdivision survey plat. Executed documents
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 Coverage 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 49 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 49. 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.
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 Usability. [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 Comoliance: 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. Alternatively, the Final Plan application may seek a
Variance to solar setback requirements, if applicants can submit architectural and
engineering analysis supporting a variance.
23) Storm water Continuing 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
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 18.61.084. 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.
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) Zoning Compliance. The Final Plan application shall include demonstration that
the buildings in the R-1-3.5 zoning district (cottages and town homes) meet the
required front yard for the R-1-3.5 zoning district.
EXHIBIT F
TIMETABLE OF DEVELOPMENT - OUTUNE 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; 7, 2010.
Completion of all infrastructure and vertical construction, except for single family units
on individual platted lots, [4 total exempt from vertical construction deadline] shall occur
no later than January 1], 2015.
Phase
Final Plan and
Site Review Approval
Infrasbucture
Completion
Final Plat and Completion
of Vertical Construction
I
July , i, 2009
July 1 ,2011
January 17, 2013
January 1-:', 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 17, 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 1-', 2011. Complete sidewalk on the north
side of Nevada Street from the eastern project
boundary to the intersection of Nevada and Oak
Street.
July 1', 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.
Phase
II
Final Plan and
Site Review Approval
July 17, 2011
July P, 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 _~? 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 townhome units).
July l? 2011. Complete construction of
"subdivision" Infrastructure for Phase I (R-l- 3.5
portion) of the project inclusive infrastructure for
one (1) single family lot, and infrastructure for
twenty-four (24) cottage units
July 1 ~', 2011. Phase I. Deadline for final
survey to be signed after completion of
subdivision infrastructure and before start of
vertical construction.
July l-;, 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 17, 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 l;' 2013
January P, 2015
July J >, 2013. Complete construction of
"subdivision" Infrastructure for Phase II (R-1-5
portion) 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 I 7, 2013. Phase II. Deadline for final
survey to be signed after completion of
subdivision infrastructure and before start of
vertical construction.
January 17, 2015. Vertical
construction deadline for
twenty-five (25) single
family homes of which 19
are detached and 6 are
attached .
July 1 7, 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 G
Aqreement for Purchase and Sale: Exchanqe of Real ProDertv.
1.
Definitions
Exchange Properties, (as used in this section): For purposes of this
Agreement, "Property" shall mean Exhibit A-1 or Exhibit A-2 depending upon who
is the Buyer and who is the Seller.
Exhibit A-1 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-1.
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. The donation amount will be equal to the difference
between appraised values of the two properties.
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
thirty (30) 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.
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 15 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 15_ 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
Property in the Seller's possession or reasonably available to the Seller.
B. Leases. A copy of each tenanfs 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 policy 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 the 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
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 -1 _, -1 _, 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 g1445. 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
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 the 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
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.
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,
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.
(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
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
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 party.
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
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. "
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 SmNG 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 .
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
December 18, 2007
IN THE MAITER OF AN ORDINANCE DECLARING THE APPROVAL OF THE
VERDE VILLAGE DEVELOPMENT AGREEMENT, INCLUDING A REAL
PROPERTY EXCHANGE AND APPROVAL OF PLANNING ACTION #2006-01663,
INCLUDING A REQUEST FOR ANNEXATION OF A TOTAL OF I 1. 64-ACRE SITE
(IN THREE PARTS) LOCATED AT 87 W. NEVADA ST AND 811 HELMAN STREET
REQUEST FOR A COMPREHENSIVE PLAN MAP AND ZONING MAP CHANGE
JACKSON COUNTY ZONING RR-5 (RURAL RESIDENTIAL) TO R-I (SINGLE-
FAMILY RESIDENTIAL) AND R-I-3.5 (SUBURBAN RESIDENTIAL).
THE PROPOSAL INCLUDES A REQUEST FOR OUTLINE PLAN APPROVAL
UNDER THE PERFORMANCE STANDARDS OPTIONS CHAPTER 18.88 TO
DEVELOP THE PROPERTY AS A 68-UNIT RESIDENTIAL DEVELOPMENT.
EXCEPTIONS TO THE STREET STANDARDS ARE REQUESTED FOR
NOT LOCATING A STREET ADJACENT TO NATURAL FEATURES AND
TO USE A PRlV ATE DRIVE TO ACCESS THE COTTAGES RATHER THAN
THE REQUIRED PUBLIC STREET. A PHYSICAL CONSTRAINTS REVIEW
PERMIT IS REQUESTED TO LOCATE A MULTI-USE PATH IN THE ASHLAND
CREEK RIPARIAN PRESERVATION AREA. A TREE REMOVAL PERMIT IS
REQUESTED TO REMOVE A 25-INCH DIAMETER AT BREAST HEIGHT OAK
TREE. APPLICANT: Greg and VaIri Williams
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)FINDINGS OF FACT,
)CONCLUSIONS OF LAW
)AND ORDER
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I. NATURE OF PROCEEDINGS
This matter comes before the City Council for the City of Ashland for a de novo hearing on a request for
an Ordinance declaring the approval of a Development Agreement, land exchange and associated
planning actions as identified in P A #2006-01663.
Now, Therefore, the City Council of the City of Ashland makes the following Findings of Fact,
Conclusions of Law and Order.
n. FINDINGS OF FACT:
I) Tax lots 700, 800 and 900 of39 IE 04BB and tax lots 800 and 1100 of39 IE 04B are located at 87
W. Nevada S1. and 811 Helman S1. Tax lot 200 of39 IE 04BB is City of AsWand property and is commonly
referred to as the Dog Park. Tax lots 700 and 800 of 39 IE 04BB are located outside of the AsWand city
limits and are Jackson County zoning Rural Residential (RR-5). Tax lots 800 and 1100 of39 IE 04B and tax
lot 900 of 39 IE 04BB are partially located in the AsWand city limits. The portions of 39 IE 04B 800 and
1100 and tax lot 900 of39 IE 04BB in the AsWand city limits are zoned Single Family Residential (R-1-5) and
the portions of the same tax lots outside the AsWand city limits is Jackson County zoning Rural Residential
(RR-5).
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 1
2) The applicant is requesting an Annexation for an 11.64 acre site located at 87 W. Nevada St. and 811
Helman St. The application includes a request for a Comprehensive Plan Map and Zoning Map change from
Jackson County zoning RR-S (Rural Residential) to City of Ashland zoning R-I-3.S (Suburban Residential)
and R-l (Single-Family Residential). The application includes a request for Outline Plan approval for a 68-unit
residential development under the Performance Standards Options Chapter 18.88. The application includes
two requests for Exceptions to the Street Standards for not locating a street adjacent to natural features and to
use a private drive to access the cottages rather than the required public street. A Physical Constraints
Review Permit is requested to locate a multi-use path in the Ashland Creek Riparian Preservation Area.
A Tree Removal Permit is requested to remove a 2S-inch diameter at breast height Oak tree.
The application includes a request for a land exchange with the City of Ashland. Site improvements are
outlined on the plans on file at the Department of Community Development.
3) The criteria for an Annexation are described in 18.106.030 as follows:
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.
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, to 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.
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 2
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. F or 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 turn-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. F or 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):
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 buyers or renters with incomes at or below
80% of median income; or
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 3
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 50 1 (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 redevelop able land in the proposed land use
classification within the current city limits. "Redevelop able 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.
4) The criteria for a Comprehensive Plan Map Change and Zone Change are described in
18.108.060.B as follows:
1. Zone changes, zoning map amendments and comprehensive plan map changes subject to
the Type III procedure as described in subsection A of this section may be approved if in
compliance with the comprehensive plan and the application demonstrates that:
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 4
a. The change implements a public need, other than the provIsIOn of affordable
housing, supported by the Comprehensive Plan; or
b. A substantial change in circumstances has occurred since the existing zoning or
Plan designation was proposed, necessitating the need to adjust to the changed
circumstances; or
c. Circumstances relating to the general public welfare exist that require such an
action; or
d. Proposed increases in residential zoning density resulting from a change from one
zoning district to another zoning district, will provide one of the following:
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 buyers 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; or
e. Increases in residential zoning density of four units or greater on commercial,
employment or industrial zoned lands (i. e. Residential Overlay), will not negatively
impact the City of Ashland's commercial and industrial land supply as required in the
Comprehensive Plan, and will provide one of the following:
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 buyers 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
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 5
above. The land shall be located within the project and all needed public
facilities shall be extended to the area or areas proposed for dedication.
Ownership of the land and/or air space 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 sections D or E 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.
Sections D and E do not apply to council initiated actions.
5) The criteria for Outline Plan approval are described in 18.88.030.A.4 as follows:
The Planning Commission shall approve the outline plan when it finds the following criteria have
been met:
a. That the development meets all applicable ordinance requirements of the City of Ashland.
b. That adequate key City facilities can be provided 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.
c. That the 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 included in the open space, common areas,
and unbuildable areas.
d. That the development of the land will not prevent adjacent land from being developed for
the uses shown in the Comprehensive Plan.
e. That there are adequate provisions for the maintenance of open space and common areas,
if required or provided, and that if developments are done in phases that the early phases
have the same or higher ratio of amenities as proposed in the entire project.
f. That the proposed density meets the base and bonus density standards established under
this Chapter.
g. The development complies with the Street Standards.
6) The criteria for an Exception to the Street Standards are described in 18.88.050.F as follows:
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 6
An exception to the Street Standards is not subject to the Variance requirements of section
18.100 and may be granted with respect to the Street Standards in 18.88.050 if all of the
following circumstances are found to exist:
A. There is demonstrable difficulty in meeting the specific requirements of this chapter due to
a unique or unusual aspect of the site or proposed use of the site.
B. The variance will result in equal or superior transportation facilities and connectivity;
C. The variance is the minimum necessary to alleviate the difficulty; and
D. The variance is consistent with the stated Purpose and Intent of the Performance
Standards Options Chapter.
7) The criteria for a Physical Constraints Review Permit are described in 18.62.040.1 as follows:
1. Through the application of the development standards of this chapter, the potential
impacts to the property and nearby areas have been considered, and adverse impacts have
been minimized.
2. That the applicant has considered the potential hazards that the development may create
and implemented measures to mitigate the potential hazards caused by the development.
3. That the applicant has taken all reasonable steps to reduce the adverse impact on the
environment. Irreversible actions shall be considered more seriously than reversible actions. The
Staff Advisor or Planning Commission shall consider the existing development of the surrounding
area, and the maximum permitted development permitted by the Land Use Ordinance.
8) The criteria for a Tree Removal Permit are described in 18.61.080 as follows:
An applicant for a Tree Removal-Staff Permit shall demonstrate that the following criteria are
satisfied. The Staff Advisor may require an arborist's report to substantiate the criteria for a
permit.
A. Hazard Tree: The Staff Advisor shall issue a tree removal permit for a hazard tree if the
applicant demonstrates that a tree is a hazard and warrants removal.
1. A hazard tree is a tree that is physically damaged to the degree that it is clear that it is likely
to fall and injure persons or property. A hazard tree may also include a tree that is located within
public rights of way and is causing damage to existing public or private facilities or services and
such facilities or services cannot be relocated or the damage alleviated. The applicant must
demonstrate that the condition or location of the tree presents a clear public safety hazard or a
foreseeable danger of property damage to an existing structure and such hazard or danger cannot
reasonably be alleviated by treatment or pruning.
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 7
2. The City may require the applicant to mitigate for the removal of each hazard tree pursuant
to AMC 18.61.084. Such mitigation requirements shall be a condition of approval of the permit.
B. Tree that is Not a Hazard: The City shall issue a tree removal permit for a tree that is not a
hazard if the applicant demonstrates all of the following:
1. The tree is proposed for removal in order to permit the application to be consistent with
other applicable Ashland Land Use Ordinance requirements and standards. (e.g. other applicable
Site Design and Use Standards). The Staff Advisor may require the building footprint of the
development to be staked to allow for accurate verification of the permit application; and
2. Removal ofthe tree will not have a significant negative impact on erosion, soil stability, flow
of surface waters, protection of adjacent trees, or existing windbreaks; and
3. Removal of the tree will not have a significant negative impact on the tree densities, sizes,
canopies, and species diversity within 200 feet of the subject property.
The City shall grant an exception to this criterion when alternatives to the tree removal have been
considered and no reasonable alternative exists to allow the property to be used as permitted in
the zone. Nothing in this section shall require that the residential density be reduced below the
permitted density allowed by the zone. In making this determination, the City may consider
alternative site plans or placement of structures or alternate landscaping designs that would lessen
the impact on trees, so long as the alternatives continue to comply with other provisions of the
Ashland Land Use Ordinance.
4. The City shall require the applicant to mitigate for the removal of each tree granted approval
pursuant to AMC 18.61.084. Such mitigation requirements shall be.a condition of approval ofthe
permit.
9) The City Council, following proper public notice, held public hearings on November 6, 2007 and November
20, 2007 at which time testimony was received and exhibits were presented. The City Council approved the
application subject to conditions pertaining to the appropriate development of the site.
Now, Therefore, the City Council of the City of Ashland makes the foUowing Findings of Fact,
Conclusions of Law and Order.
III. FINDINGS APPLYING APPLICABLE CODE CRITERIA AND MINIMUM STANDARDS
FOR ELIGffiILITY FOR ANNEXA nON
3.1 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.
3.2 The City Council finds that the proposal to annex an 11.64 acre site located at 87 W. Nevada
St. and 811 Helman St. meets all applicable criteria for an Annexation. The ( Hi!!11,-'-h'H-(:1.\ (in,'
finds that the proposal to change the Ashland Comprehensive Plan Map from a Single-Family
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 8
Residential designation to a Suburban Residential designation for the cottage and town home portion
of the development meets all applicable criteria for a Comprehensive Plan change. The I '+tI'ftHv J,"
1. J I, ( '" II; , finds the proposal to develop a 68-unit single-family residential subdivision meets all
applicable criteria for an Outline Plan approval described in the Performance Standards Options
Chapter 18.88. The ( nltHlih~hH! (It \" ".1; 'l.1 finds and that the proposed location the multi-use path
adjacent to the natural feature rather than a public street, and the proposed use of a private drive to
access the cottages rather than the required public street meet all applicable criteria for Exceptions to
the Street Standards. The \ H, H' "t. -';' 'i" finds the request to locate a multi-use path in
the Ashland Creek Riparian Preservation Area meets all applicable criteria for a Physical
Constraints Review Permit. The ( "14+""... ';' {" ( 0' III\. Ii finds the request to remove a 25-inch
diameter at breast height Oak tree meets all applicable criteria for a Tree Removal Permit.
3.3 The City Council finds that the proposal to annex 11.64 acres meets all applicable criteria for an
Annexation.
The site is comprised of five parcels and all of the parcels are located in the Ashland Urban Growth
Boundary. In addition, the land is currently contiguous with the present city limits. The west part of
the development is contiguous to the city limits on all sides. The east part of the development is
contiguous to the city limits on the west and south.
The Annexation approval criteria require the proposed zoning for the annexed area to be in
conformance with the designation indicated on the Comprehensive Plan Map. The entire site is
designated as Single-Family Residential on the Ashland Comprehensive Plan Map. The proposal
includes a Comprehensive Plan Map Change for approximately 42 percent of the site, for the
cottage and town home portion of the development, to modifY the Single-Family Residential (R-
1) designation in the Ashland Comprehensive Plan Map to the Suburban Residential (R-I-3.5)
designation. The request for the Comprehensive Plan Map Change is discussed in the following
section. Therefore, the ability of the cottage and town home portion of the development to meet
this criterion is dependent on the approval of the Comprehensive Plan Map Change. The
remainder of the site, the single-family portion of the development, would remain in the Single-
Family designation. Therefore, the single-family portion of the development is in conformance
with the Comprehensive Plan Map, and satisfies this Annexation criterion.
The proposed uses included in the Annexation are required to be allowed uses in the zoning
districts. Phase I, or the R-I-3.5 portion of the project to the west of Almeda Dr. and Canine
Way includes single-family and multi-family dwellings. Single-family and multi-family dwellings
are permitted uses in the R-1.3.5 zoning district. Phase II, or the R-I-5 portion of the project to
the east of Almeda Dr. and Canine Way includes single-family dwellings and duplexes. Single-
family dwellings, and duplexes on comer lots are permitted uses in the R-l zoning district.
Adequate city facilities to provide water to the site, to transport sewage from the site, to carry storm
drainage to and through the site and to provide electricity to the site are included in the preliminary
utility plan and utility power plan. Eight -inch water lines will be installed to serve the development
with connections to the existing system in Nevada and Almeda streets. Two existing 12-inch and 18-
inch sanitary sewer lines run through the property and are retained in Almeda Dr. Eight-inch lines will
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 9
be installed in Sander Way, Canine Way and the cottage driveway to serve the development with
connections to the existing lines. Storm drainage is directed to two locations. The southwesterly area
of the project is directed to the City's existing demonstration wetlands located north of the project
using standard underground pipes. The northeasterly are of the project is directed and treated through
a combination of a pipe system and a newly built system of swales and sediment ponds to Ashland
Creek. Electric utilities will run through the site from the existing system across Nevada St. The utility
power plan delineates the location of new lines, equipment and street lights.
Adequate transportation can and will be provided to and through the subject property. A Traffic
Impact Study was prepared for the project and has been included with the application. The study
projects that the intersection of Helman, Nevada and Almeda, and the intersection of Oak and Nevada
will continue to operate at acceptable levels with build out of the proposed project.
Outside of the Exceptions to the Street Standards requested in the application, the proposed streets
meet the requirements of the Street Standards. The new streets are connected to Nevada Street which
is a Neighborhood Collector. The Nevada St. frontage of the site will be improved with a parkrow and
sidewalk. Sidewalks will be installed on all of the new streets running through the site. The new
intersection of Helman St., Almeda Dr. and Nevada St. will be an important pedestrian crossing point
for residents of the development and for visitors of the Dog Park and Bear Creek Greenway. Bicycle
lanes are not required because none of the adjacent or new streets are classified arterials. The
application findings state that transit service is not planned to the site.
The Annexation approval criteria require that 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. The Oak St. sidewalk system is approximately 450 feet away or less than 1/1 0
of a mile away from the project boundary. Sidewalks are in place on Oak St. from Nevada St. to the
downtown. As also required by the Annexation approval criteria, the proposal includes the installation
of a city standard parkrow and sidewalk on the Nevada St. frontage of the site. This will result in a gap
in the sidewalk network on the north side of Nevada St. from the project site to Oak St. The City
Council finds installation of the sidewalk on the north side of Nevada St. from the site to Oak St. is
required to meet the Annexation approval criteria.
The "Revisions to Area and Density Tables" submittal dated July 20, 2007 included in the application
includes a table demonstrating that the 90% density is achieved in each housing type and for the project
as a whole.
The application satisfies the annexation affordable housing requirement by providing title to a sufficient
amount of buildable land to a non-profit to develop 25% of the base density to buyers or renters at or
below 100% of median income (base density of 58 units * .25 = 14.5 units). The application includes
15 affordable housing units in a town home format in the northwest portion of the site. The project
description states that the land will be donated to Rogue Valley Community Development Corporation
(R VCDC) to develop as 15 affordable units for the range of 80 to 100 percent of median income.
The western portion of the project is an island surrounded by lands within the city limits, and therefore
satisfies Section 18.106.030.H.6 of the Atmexation approval standards. I: ;' I ; ti,l iin' .
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 10
I! . ~"r: t~ ! ) l ,r '
shall UCClII lilst alld shall he reflected 111 ,Ill (lldinallce ,111111m ill!.! dle ;lI1lle\atlull alld \\Ithdr;l\\al hU1I1
The eastern portion of the project must also meet one of the six standards in Section 18.106.030.H.
Currently, the eastern portion of the project is adjacent to and in the city limits on two sides, to the
south and west. The application states that Phase I of the project will be development of the western
portion of the project and the dedication of the property adjacent to Ashland Creek to the city for parks
purposes. I i~,J ~_r-~CI,~'j!1 Pl!1 (\frlh tqil'_-'\.;!"t'I!' :ll.! d!-l!lr.."..tt!tl!11\fr !t.: \jc\I!\._~ttt:d t. 11\ r~r\\r~e!-1\ ~'II,fl""l:~!!)'
, " l~!"i >' lj!: il-' t ~f I ,.,h1 j~! j t ~ '_~I~,'}. .:" 1 '';..'i j :p: '~';.! fv i IF.''
l11;1.. ~H,nt.~' !I) -,!~ '-.iLdl d,., !'t,. !.,_,tl~ !~'
'J
1!!1!
f !! !'! Ii' . S a result of the land dedication and
annexation
) 1 J... ; : ~ ~ \: \ 1. t r 't.
~. : T \ ~ \ -.... "
. ,j
, ,.
_. ! I
i, .. ,ired ,. \ .Jd,il],j ( I <..\:1, in Phase I, the eastern portion of the property will be an island completely
surrounded by lands within the city limits, and therefore "11'1' I,-,il iljl. il:'1 "1'1',,1'; ,--"II!!:,. '.
authorized by 18,106.030 11.,11 ,'ill 'Ie. : I: II. i also complies with 18.l06.030.H.6. ! i;l. i'dl:
'i!L:~'\~lt:;'11 I,~lt ~'~~j ,oj .in j;1
\\ irhdra\\alll!)1)) the Fire District
Ii ,.! !
: ;') { ~, . , . ; 1 :.... l' .}' j .,
'j';,
3.4 The City Council finds that the request for an Ashland Comprehensive Plan Map change from a
Single-Family Residential designation to a Suburban Residential designation for the cottage and town
home portion of the development meets all applicable criteria for a Comprehensive Plan Map change.
The application includes a request for a Comprehensive Plan Map Change for approximately 4.35
acres or 42 percent of the site to modifY the Single-Family Residential (R-l) 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.
The approval criteria for a Comprehensive Plan Map Change require that the proposed change
meet one of five factors and be in compliance with the Comprehensive Plan. The City Council
finds that the change to the Suburban Residential Family designation for Phase I of the project
(i.e. cottages and town homes) enables a minimum of 53 ofthe 68 units in the development to be
constructed at an energy and water conserving performance standard. Additionally, the
Suburban-Residential designation and subsequent R -1- 3.5 zoning allows flexibility with the
housing types and site design that is well-suited for the cottage and town home areas of the
development. The cottage and town homes include attached dwellings that are grouped in
clusters around open space. The flexibility in building placement and site design allows all of the
proposed buildings to be located on an east-west axis for a true South building orientation so that
the optimum solar efficiency is gained for both solar collection devices and for passive solar gain.
Finally, the total number of units in the proposed development is comparable to the site being
developed as a Single-Family Residential development with R-I-5 zoning and the density bonuses
permitted in Chapter 18.88 Performance Standard Options. For example, a project could be
developed under the R-I-5 zoning and used a density bonus for conservation housing and
affordable housing. In this case, the base density ofthe subject properties developed at a R-I-5
density is 46.67 units (10.37 Ac * 4.5 du/ac = 46.67 units). A 40% density bonus with a 15%
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 11
density bonus for conservation housing and a 25% bonus for affordable housing would allow 65
units (46.67 units * 1.40 = 65.34 units). In comparison, the proposed number of units in the
development is 68 units.
The energy and water conservation housing provided by the development will address a public
need for energy and water conservation in new homes that is supported by the Ashland
Comprehensive Plan. The AsWand Comprehensive Plan includes the following goals and policies
concerning energy and water conservation in Chapter XI: Energy.
The City shall strive, in every appropriate wcry, to reduce energy consumption within the
community. Water conservation and air quality enhancement should also be promoted.
Programs should emphasize greater efficiency in end use, rather than sacrifices in living
standards. In general, policies that effect change through a combination ~f economic
incentives and public education shall be considered more appropriate than policies
involving strict legal requirements or mandates. The City shall give due attention to
energy and resource conservation and air quality enhancement in all planning actions
and all city activities.
Policy 3) New Housing
C) New homes and apartments are being built which do not utilize the latest
technological advances in water consuming devices. The City shall use any legal means
to insure that only water conserving equipment be installed in new construction. This
should be done to accommodate growth with lesser incremental water demand and also
to eliminate the need to return to these homes later to retrofit them with water conserving
devices.
D) Passive solar design and sun tempering are very cost effective in new home
construction. They shall be encourage in new housing development and individual
houses.
E) The City shall address overall energy usage of new developments instead of just
looking at houses on an individual bases. Areas to be considered could be transportation
energy, recycling, composting, communal gardens, water usage and solar access
protection.
G) Appliance efficiency shall be encouraged in new housing. This could be done
through existing programs (i.e. Super Good Cents), by codes, by education or by
incentive programs (i.e. density bonuses). Also of these options shall be considered in
trying to achieve this goal.
Policy 8) Future Considerations
B) The future will be quite dynamic and volatile in the energy arena. The City needs to
actively keep abreast of new advances in technology and embrace and encourage ones
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 12
which can benefit water conservation, air quality, energy conservation or production.
The City Council finds that the energy and water conservation performance standard as outline in
Exhibit K-3 of Book III: Narrative, July 8, 2007, states that the units in the development will be
designed to use 50% less energy than a typical code compliant home. Energy efficiency features
included in the project performance standard are solar orientation, roofs designed for solar hot
water collection systems, passive solar heating, integrated thermal mass, high efficiency heat
source, improved thermal envelope (insulation), heat recovery ventilation, fluorescent or compact
fluorescent lighting, energy efficient appliances, photovoltaic electric systems and night flush
cooling. In addition, the goal of the development is to use approximately 50% less potable water
than a typical code compliant development. Water efficiency features included in the project
performance standard are water efficient toilets, showerheads and faucets, rainwater capture,
water and energy efficient washers, drought resistant plantings and water efficient irrigation.
In regards to transportation facilities and amendments to an acknowledged comprehensive plan,
Oregon Administrative Rule (OAR) 660-012-00060 requires local governments to address
amendments that would "significantly affect an existing or planned transportation facility." The
original proposal was reviewed by the Oregon Department of Transportation (ODOT) in
November 2006 and \:", conullented that "ODOT Development Review is generally satisfied no
adverse impacts to state facilities will occur as a result of the proposed land use amendments (see
page 494 of the record). The revised proposal was reviewed by ODOT in October 2007 and they
had no comment (see page 17 of the record).
The City Council finds the proposed Ashland Comprehensive Plan Map change from a Single-Family
Residential designation to a Suburban Residential designation for the cottage and town home portion
of the development will not significantly affect and existing or plmmed transportation facility as defmed
in OAR 660-12-0060(1). As stated earlier, the total number of units in the proposed development is
comparable to the site being developed under the current Comprehensive Plan designation of
Single-Family Residential. Chapter 18.88 Performance Standards Options permits density
bonuses for conservation housing, common open space, major recreational facilities and
affordable housing. Using the density bonus provision, the subject property could be developed at
a density close to the proposed 68 units under the current Single-Family Residential designation.
In this case, the base density of the subject properties developed at a R-I-5 density is 46.67 units
(10.37 Ac * 4.5 du/ac = 46.67 units). A 40% density bonus with a 15% density bonus for
conservation housing and a 25% bonus for affordable housing would allow 65 units (46.67 units *
1.40 = 65.34 units). As a result, three additional units result from the Comprehensive Plan Map
change from the current Single-Family Residential designation to the proposed Suburban
Residential Designation. Three units generate an average of thirty motor vehicle trips per day
according to the ITE, Trip Generation Model, 7th addition. Thirty additional trips will not
significantly affect the surrounding street network including Nevada St., Helman St. and Oak St.
The following discussion addresses the requirements of OAR 660-12-0060(1) and the OAR text is in
italics.
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 13
(1) Where an amendment to afunctional plan, an acknowledged comprehensive plan, or a land
use regulation would significantly affect an existing or planned transportation facility, the local
government shall put in place measures as provided in section (2) of this rule to assure that
allowed land uses are consistent with the identified function, capacity, and pe,:formance
standards (e.g. level C?f service, volume to capacity ratio, etc.) C?f the facility. A plan or land use
regulation amendment significantly affects a transportation facility if it would:
(a) Change the functional classification of an existing or planned transportation facility
(exclusive of correction of map errors in an adopted plan);
According to the Traffic Impact Study submitted with the application, the proposed development
will generate 730 trips per day. While the Comprehensive Plan Map change results in a few more
residential units as compared to development of the subject site under the current Comprehensive
Plan Map designation, even considering the total traffic impact from the proposed development
does not change the functional classification of the street network in the vicinity including Nevada
St., Helman St. and Oak St.
The streets most likely to be impacted by motor vehicle traffic generated by the development are
Nevada St., Helman St., Lct;+!t:'j~1 and Oak St. Nevada St is identified in a Neighborhood
Collector, and Helman St. and Oak St. are identified as Avenues in the Ashland Transportation
System Plan.
The Transportation Element of the Ashland Comprehensive Plan, the Ashland Transportation
System Plan and the Ashland Street Standards provide street classification guidelines. The
function of a Neighborhood Collector such as Nevada St. is to distribute traffic from Boulevards
or Avenues to neighborhood streets and vice versa, and the average traffic volumes of a
Neighborhood Collector is 1,500 to 5,000 motor vehicle trips per day. The function of an
Avenue such as Helman St. and Oak St. is to provide concentrated pedestrian, bicycle and motor
vehicle access from Boulevards to neighborhoods and neighborhood activity centers and vice
versa, and the average traffic volumes of an Avenue is 3,000 to 10,000 motor vehicle trips per
day.
Traffic counts for Nevada St. are approximately 1,400 trips per day (2002), Helman St. are
approximately 1,450 trips per day (2004) and for Oak St. are approximately 3,500 trips per day
(2004). The Traffic Impact Study included in the application projects that approximately 47% of
the peak PM hour traffic will use Helman St., 38% will go west on Nevada towards Oak St. and
15% of the traffic will go east on Nevada. All of the trips generated by the proposed by the
development could be added to Nevada St., Helman St. or Oak St., and all of the streets would be
well within the range of average traffic volumes identified in the Ashland street classification
guidelines. Additionally, Nevada St. will continue to function as a Neighborhood Collector
distributing traffic from the adjacent neighborhoods to the larger Avenue streets in the
neighborhood including Helman St. and Oak St. Helman St. and Oak St. will continue to operate
as Avenue streets taking traffic to the Boulevards in the city limits such as N. Main St., Lithia
Way and E. Main St.
(b) Change standards implementing afunctional classification system; or
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 14
The proposed Comprehensive Plan Map change does not include a modification of the Ashland
street classification guidelines.
(c) As measured at the end of the planning period identified in the adopted transportation system
plan:
(A) Allow land uses or levels of development that would result in types or levels of travel or
access that are inconsistent with the functional classification of an existing or planned
transportation facility;
The Comprehensive Plan Map change results in the addition of a few more residential units as
compared to development of the subject site under the current Comprehensive Plan Map
designation. The approximately 30 additional motor vehicle trips resulting from three additional
units allowed by the Comprehensive Plan Map change will be the type of travel and level of travel
that is consistent with the functional classification of the surrounding street network including
Nevada St., Helman St. and Oak St.
(B) Reduce the performance of an existing or planned transportationfacility below the minimum
acceptable performance standard identified in the TSP or comprehensive plan; or
The Ashland Transportation System Plan identifies the minimum acceptable performance standard
for intersections as a LOS D. The Traffic Impact Study included in the application projects of
LOS B for the intersections of Helman St./Almeda Dr./Nevada St. and of Nevada St. and Oak St.
in 2010 with build out of the project and incorporating an annual average traffic growth rate.
(C) Worsen the performance of an existing or planned transportation facility that is otherwise
projected to perform below the minimum acceptable performance standard ident!fied in the TSP
or comprehensive plan.
The Ashland Transportation System Plan does not identify existing or planned transportation
facilities in the vicinity that will have insufficient capacity at the end of the 20-year planning period
of2017.
3.5 The City Council finds the proposal to develop a 68-unit single-family residential subdivision
meets all applicable criteria for an Outline Plan approval described in the Performance Standards
Options Chapter 18.88.
The site is the located at a northernmost section of the Ashland Urban Growth Boundary and
there are no other undeveloped parcels located in the immediate vicinity. Therefore, the
development of the subject site will not prevent adjacent land from being developed for the uses in
the Comprehensive Plan.
Adequate key city facilities and utilities are available and can be provided, and were discussed
previously under the Annexation section. Outside of the Exceptions to the Street Standards
requested in the application, the proposed streets meet the requirements of the Street Standards.
A multi-use path for pedestrians and bicyclists is proposed in the Ashland Creek riparian corridor
connecting Nevada St. to the north end of Canine Way. The proposed multi-use path weaves
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663 Page 15
above and below the biologically determined riparian zone and the top of the uppermost slope
grade break. A second multi-use path is proposed between units 64 and 65 in the northwest
corner of the project. The path would connect Almeda Dr. directly to the Bear Creek Greenway
path connection. The subject section of Ashland Creek Corridor is identified for open space in
the Long Term Plan on the Parks, Trails and Open Space Program fro 2002-2012. Additionally,
the connection from Almeda Dr. to the Bear Creek Greenway path is also identified as a proposed
greenway connection on the Parks, Trail and Open Space Program for 2002-2012.
A total of 127 off-street parking spaces and 68 on-street parking spaces are required for the proposed
development of 68 units. The proposal meets the parking requirements. There are 114 off-street
parking spaces proposed in a combination of garages and surface parking areas. The remaining
required 13 off-street parking spaces are satisfied by 17 on-street spaces which is the equivalent to 13
off-street parking credits. There are 85 on-street spaces available which results in the 17 on-street
spaces that can be used towards the off-street parking credits.
The proposed density of 68 units meets the base and bonus density standards of the Performance
Standards Options Chapter 18.88. The base density of the property is 58.15 units. The project
qualifies for a density bonus of 22% for the 15 affordable housing units that are provided (15
affordable units/68 units = .22). Therefore the permitted density with the affordable housing
density bonus is 70 units (58.15 units * 1.22 = 70.94 units).
With one exception, the proposed building setbacks meet the requirements of the Performance
Standards Options Chapter 18.88. The front yards of the R-I-5 portion of the development
meet the required 15 feet to the building and 20 feet to garages, and the setbacks along the
perimeter of the development meet the required side and rear yards. The front yards ofthe R-l-
3.5 portion of the development (cottages and town homes) do not meet the front yard
requirements along Almeda Dr. and Canine Way. Fifteen feet is shown and 20 feet is required for
front yards in the R-I-3.5 zoning district. As a result, a condition has been added that the
buildings delineated in the Final Plan meet the required front yard for the R-I-3.5 zoning district.
The heights of the proposed buildings and minimum width between buildings appear to be met,
and will be verified at the Final Plan and building permit submittals. It is not clear the application
if the proposed units meet the Solar Setback requirements of Chapter 18.68 as is required in the
Performance Standards Options Chapter 18.88.070.E. A condition has been added requiring the
Final Plan application address the Solar Setback requirements.
The entire subdivision is required to provide a minimum of five percent of the lot area in open space for
Outline Plan approval under the Performance Standards Options. A total of21,688 square feet is
required in open space, and the proposal includes 25,230 square feet identified as common open space
areas. With the exception of the four standard single-family lots in the subdivision, the units also have a
private yard space identified for each unit. Since the common open space provides an additional 3,542
square feet in open space beyond the requirements, the application meets the open space acreage
requirements.
The Outline Plan approval criteria require that there are adequate provisions for the maintenance of
open space and common areas, and that if the development is done in phases that the early phases have
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 16
the same or higher ratio of amenities as proposed in the entire project. The application findings state
that the development will be done as three separate entities for the cottages, town homes and single-
family/duplex groups. The proposal is to have a Planned Unit Development for each of the three
groups and provide CC&R's detailing specific maintenance responsibilities for each community. Phase
I will include the development of the cottages and town homes. Approximately 55% of the open space
is included in Phase I. Therefore, the same or higher ratio of common open space would occur in the
first phase of the project than in Phase II, and the approval criterion is satisfied.
The City Council finds the significant natural features of the site are the wetland in the northern portion
of the site, two trees located outside of the riparian corridor, the Ashland Creek floodplain corridor and
Ashland Creek riparian corridor. Three of the significant natural features - the wetland, floodplain
corridor and riparian corridor - are located in a separate parcel that is proposed to be dedicated to the
city for parks purposes as part of the land exchange. As a result, the City Council finds the wetland,
floodplain corridor and riparian corridor are included in open space that is an unbuildable area. The
two significant trees are a 19-inch diameter at breast height (dbh) Oregon Ash (tree 20 on the Tree
Survey and Protection Plan, T -1, June 8, 2007) and a 39-inch dbh California Black Oak (tree 21 on T-
1). The two significant trees are located near units 28 and 31. The City Council finds the trees are
included in the common area of the subdivision., and the common are is unbuildable.
3.6 The City Council finds and that the proposed location of the multi-use path adjacent to the natural
feature rather than a public street, and the proposed use of a private drive to access the cottages rather
than the required public street meet all applicable criteria for an Exception to the Street Standards.
An Exception to the Street Standards is requested to locate a multi-use path in the Ashland Creek
riparian corridor rather than locating a street adjacent to natural features as is required. The proposed
multi-use path weaves above and below the biologically determined riparian zone and the uppermost
top of the slope grade break.
The Preserving Natural Features of the Street Standards is as follows.
"Streets shall be located in a manner which preserves natural features to the greatest extent
feasible. Whenever possible, street alignments shall follow natural contours and features so
that visual and physical access to the natural feature is possible. Streets shall be situated
between natural features, such as creeks, mature trees, drainages, open spaces and individual
parcels in order to appropriately incorporate such significant neighborhood features."
The City Council finds there are several unusual aspects of the site that make it difficult to locate
a street adjacent to Ashland Creek. First, there are two existing main sanitary sewer lines that
bisect the site (see Exhibit E-E, Preliminary Utility Plan). The application includes a Geotechnical
Investigation (see Appendix D, Geotechnical Investigation) which identifies "relatively hard
bedrock" comprised of sedimentary rock including siltstone, sandstone and conglomerate at
shallow depths throughout the site. As a result, the application identifies the relocation of the
main sanitary sewer lines as impractical. The new main street into the development from Nevada
St., Almeda Dr., is located over the existing main sanitary sewer lines so the lines can be accessed
and do not have to be moved. The second unusual aspect of the site is the location of Ashland
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 17
Creek is approximately 200 feet east of the existing intersection of Helman St. and Nevada St.
The project traffic engineer recommended that the main access to the site be located opposite of
the Helman St. and Nevada St. intersection. Locating a secondary street access to the
development from Nevada St. and adjacent to AsWand Creek poses safety issues in terms of the
close proximity to the Helman St., Nevada St. and Almeda Dr. intersection. The final unusual
aspect of the site is the relatively narrow area from the new Almeda Dr. to AsWand Creek. The
City Council agrees the existing sanitary sewer lines, the need to align the new street with the
existing intersection of Nevada and Helman streets and the narrowness of the area from the new
Almeda Dr. to Ashland Creek are significant constraints in the development of the new street
network that create a demonstrable difficulty in meeting the Street Standard on Preserving
Natural Features.
The City Council finds that the multi-use path achieves a similar buffering effect as a street to the
AsWand Creek riparian corridor. The multi-use path will provide visual and physical access to the
riparian corridor. Although the multi-use path is largely located in the riparian corridor, it is
situated at the western edge of the corridor, and will be located between the individual parcels and
the riparian zone. The City Council finds that the multi-use path is an equally valuable
transportation facility as compared to a city street because it provides a connection to the existing
Bear Creek Greenway, thereby increasing the reach ofthis pedestrian and bicycle off-road
transportation system. The City Council finds that by providing a transportation facility in the
form of a multi-use path that the proposed exception is the minimum variance necessary to
address the site constraints. The City Council finds that Exception to the Street Standards to use
the proposed multi-use path rather than a public street to protect and provide access to the
Ashland Creek riparian corridor uses the natural features of the landscape to the greatest
advantage and will improve the quality of life of the residents of the development as outlined in
the Purpose and Intent of Chapter 18.88 Performance Standards Options.
An Exception to the Street Standards is requested to use a private drive to access the 24 cottages
rather than the required public street. The proposed private drive is a looped system that is
approximately 300 feet in length and is connected at both ends to Almeda Dr. The proposed private
drive is 20 feet in width, includes 26 head-in parking spaces and has a sidewalk system adjacent to the
curb. In contrast, a public street would be required to be 22 feet in width with parkrows and sidewalks
on both sides. Additionally, a 22-feet wide public street would allow parallel parking on one side of the
street.
The City Council finds there is demonstrable difficulty in providing a public street and the
required off-street parking given the geographic layout of the corner of the property that is
proposed for the cottages. A public street does not allow head-in parking adjacent to the street,
and the proposal is to allow 26 head-in parking spaces adjacent to the private drive. In addition,
by consolidating most of the cottage parking adjacent to the private drive, it allows more of the
land area to be used as open space for the cottages rather than to be used for surface parking. In
addition, fewer parallel parking spaces would fit on one side of the public street of the length
proposed compared to the number of spaces that can be achieved with head-in parking. Residents
and visitors will have no reason to travel on this short drive other than to visit the cottage
development. As a result, motor vehicles, bicyclists and pedestrians traveling through the
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 18
development will use Almeda Dr. In terms of sidewalks, pedestrians will have little reason to
travel on the cottage drive unless visiting one of the cottages because Almeda Dr. provides a
more direct route for moving through the neighborhood. The City Council concurs that a private
street is a better fit for the cottage development than a public street because the cottages will
function as a multi-family development with a shared surface parking area that is accessed by a
driveway.
The City Council finds that Exception to the Street Standards to use a private drive to access
the 24 cottages rather than the required public street will provide for more efficient land use as
outlined in the Purpose and Intent of Chapter 18.88 Performance Standards Options.
3.7 The City Council finds the request to locate a multi-use path in the Ashland Creek Riparian
Preservation Area meets all applicable criteria for a Physical Constraints Review Permit with the
attached conditions of approval. 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 determined 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.
The City Council finds that the multi-use path in the Ashland Creek riparian corridor itself is a benefit
to the general community and that there should be a balance of the environmental resource protection
issues and the parks and open space issues.
The City Council finds that the multi-use path is located along the upper edge of the riparian
corridor in an effort to minimize adverse impacts to Ashland Creek and in an effort to retain the
general topography of the riparian corridor. The proposed multi-use path, is except for the first
50 feet, is located outside of the 100-year flood plain for Ashland Creek. The section of path in
the flood plain is at grade and will not create a potential flooding hazard.
The City Council finds the applicant has not addressed the reasonable steps necessary to reduce
the adverse impact on the Ashland Creek riparian corridor including the irreversible actions
caused by the construction of the multi-use path in the riparian corridor. A mitigation plan is
required as a condition of approval at the Final Plan application. The mitigation plan requires an
assessment of the Ashland Creek riparian corridor functions, an assessment of the impact of the
path construction on the resource functions and mitigation measures to offset those adverse
impacts.
3.8 The City Council finds the request to remove a 25-inch diameter at breast height Oak tree
meets all applicable criteria for a Tree Removal Permit.
One of the eight trees identified for removal requires a Tree Removal Permit due to the size of the
tree being 18 inches diameter at breast height or greater. A Tree Removal Permit is requested to
remove a 25-inch diameter at breast height Oak tree (tree 39, Tree Survey and Protection Plan, T-
1, June 8,2007). The tree is an Oregon White Oak and located between proposed units 33 and
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 19
34.
The Oregon White Oak identified for removal is described as stressed because of heavy infestation
of mistletoe and as having numerous dead limbs through the crown. Additionally, the arborist
predicts that the disruption to the root system due to nearby structures would cause further
decline in the tree. The Tree Commission reviewed the proposed tree removal in November
2006, and recommended approval of the plan.
3.9 The proposal includes a real property exchange with the City of Ashland. The proposal is
to exchange approximately 2.78 acres adjacent to Ashland Creek to the City for parks purposes in
exchange for approximately 1.54 acres of the City Dog Park in the area ofthe access and to the
south of the existing parking area. The Land Exchange is addressed in separate findings
attached to the Ordinance approving the Development Agreement.
IV. ORDER
In sum, the City Council concludes that the requested Ordinance declaring the approval of a Development
Agreement, and all associated planning actions contained in Planning Action 2006-01663, including the
Development Agreement, Annexation, (in three parts), Comprehensive Plan Map and Zoning Map change from
Jackson County zoning RR-5 (Rural Residential) to City of Ashland zoning R-1-3.5 (Suburban Residential) and R-1
(Single-Family Residential), request for Outline Plan approval for a 68-unit residential development under the
Performance 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 private drive to access the cottages rather than the required public street,
request for a Physical Constraints Review Permit to locate a multi-use path in the Ashland Creek Riparian
Preservation Area, and request for a Tree Removal Permit to remove a 25-inch diameter at breast height Oak
tree are consistent with or comply with applicable criterion and minimum standards in the City's comprehensive Plan
and applicable land development code, including minimum requirements for annexation eligibility, and are supported by
evidence contained within the whole record
Accordingly, based on the above Findings of Fact and Conclusions of Law, and based upon the evidence in the
whole record, the City Council hereby declares approval of the Development Agreement and APPROVES
Planning Action #2006-01663 subject to strict compliance with the conditions of approval, set forth herein as
well as those requirements conditions and restrictions set forth in the accompanying Verde Village Development
Agreement and Land Exchange Order. Further, if anyone or more of the conditions below are found to be invalid,
for any reason whatsoever, then Planning Action #2006-01663 is denied. The following are the conditions and they
are attached to the approval:
1) That all proposals of the applicant are conditions of approval unless otherwise modified here.
2) That Site Review approval shall be obtained for the cottages, town homes and duplexes prior to
any site work, issuance of an excavation permit or issuance of a building permit.
3) That the applicants shall execute a document as consistent with ALVO 18.68.150 agreeing to
participate in their fair share costs associated with a future Local Improvement District for
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 20
improvements to Helman Street and to not remonstrate against such District prior to signature of
the final subdivision survey plat. 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.
4) That all easement for sewer, water, electric and streets shall be indicated on the Final Plan
application as required by the City of Ashland.
5) The Final Plan application shall identifY the sanitary sewer pressure line easement, and buildings shall
not be located in the easement.
6) That the preliminary engineering for utility improvements shall be submitted with the Final Plan
application. The utility plan shall include the location of connections to all public facilities in and
adjacent to the development, including the locations of water lines and meter sizes, fire hydrants,
sewer mains and services, manholes and clean-outs, storm drainage pipes and catch basins. Any
required private or public utility easements shall be delineated on the utility plan.
7) That the preliminary engineering for storm drainage collection and treatment shall be submitted
with the Final Plan application. The permanent maintenance of on and off site storm water bio-
engineered swales and wetland systems must be addressed through the obligations of the
homeowners' association and approved by the Public Works Department and Building Division.
8) That the applicants shall submit an electric distribution plan with the Final Plan application
including load calculations and locations of all primary and secondary services including
transformers, cabinets, meters and all other necessary equipment. This plan shall be reviewed and
approved by the Electric Department prior to submission of the Final Plan application.
Transformers and cabinets shall be located in areas least visible from streets, while considering the
access needs of the Electric Department.
9) That the required pedestrian-scaled streetlight shall consist of the City of Ashland's residential
streetlight standard, and shall be included in the utility plan and engineered construction drawings
for the street improvements.
10) The preliminary engineering for proposed street improvements shall be provided at Final Plan
application. Street improvements shall be consistent with City of Ashland Street Standards. The
sidewalk improvement on Nevada St. shall be a minimum of six feet in width in accordance with
the Ashland Street Standards.
11) The preliminary engineering for the Final Plan application shall address the treatment of 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.
12) The Final Plan application shall include revised on-street parking placement so that parking spaces are
not counted that are within 20 feet measured along the curb of any comer or intersection of an alley or
street in accordance with 18.92.025.D.
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 21
13) The preliminary engineering shall include details for the multi-use path improvements. The multi-
use 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.
14) The preliminary engineering shall address 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. Specifically,
the preliminary engineering shall address bicycle access from the street grade and provide
sufficient turning radius for bicycle navigation.
15) The Final Plan application shall include 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 la-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.
16) That the multi-use paths shall be constructed by the applicants as part of the required subdivision
improvements.
17) That the Final Plan application shall demonstrate that the driveway curb cuts for units 45 and 46
are 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.
18) That the Final Plan application shall delineate 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.
19) That the street names shall be reviewed and approved by Ashland Engineering for compliance
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 22
with the City's resolution for street naming prior to submission of the Final Plan application.
20) That a size and species specific landscaping plan for the parkrows, common areas and open spaces
shall be provided at the time of the Final Plan application.
21) That 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 ofthe various homeowners associations (i.e. cottages, town
homes and single-family residential) to access and use all ofthe 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.
22) That the Final Plan application shall include 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.
23) The buildings in the R-1-3.5 zoning district (cottages and town homes) shall meet the required
front yard for the R-I-3.5 zoning district in the Final Plan application.
24) The width between buildings requirement of 18.88.070.D shall be met and identified in the Final
Plan application.
25) That 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.
26) That Hil ,..j \k :. residential units in the subdivision, lilliudlli.'-' tliL' L\>ttdgt> dUl,k',I':-' dill! ~jIL::k-
:.1,111\ !!IIP shall meet the application "Net Zero Energy" Performance Standard as outlined in
Exhibit K-3 ofthe:tt+f+th:t+ttdi g, \ !,\.j I :U'ilil\.' I'i Book III - '\.drI11]'. to ,j[11,=,,1 J"wc';': 2'" ~
't.. I "I.:.J ( il i> ". ~.; 2 ! -. 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.
27) That a minimum of..j.;,., .~ ~ 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.
28) That the hydrant placement and fire apparatus access requirements shall be met and addressed in
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 23
the Final Plan application.
29) That 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-l, June 8,2007). Mitigation shall meet the
requirements of Ashland Land Use Ordinance 18.61.084.
30) That 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.
31) That a grading plan addressing preliminary finished grade (i.e. existing contours and proposed
contours) and areas of cut and fill shall be submitted with the Final Plan application.
32) That public easements shall be identified on the final survey plat for all multi-use pathways. The
project CC&R's shall 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.
33) That 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 18.06.030.G(5) and in
conformance with the approval ofPA 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.
34) That the applicant 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.
35) That 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.
36) That the land dedicated to the city for parks purposes adjacent to Ashland Creek shall be annexed
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 24
prior to the annexation ofthe Phase II area ofthe project (single-family development).
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38) That a minimum of five feet shall be maintained between the northern pavement edge ofthe 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).
39) That a sidewalk meeting the requirements of the AsWand 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.
40) That the Final Plan submittal shall address the usability, including \ \ !!!;~" conullunity
access, of the, ); i . ,1'- open spaces. Usability shall be specifically addressed for the two small open
spaces in the town home area (550 sfand 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.
41) That adjustments to the width and location of the multi-use path in and adjacent to the AsWand
Creek riparian corridor shall not affect the width or location of the 10-foot wide setback 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 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.
42) That the land being dedicated for affordable housing shall be dedicated to the City of AsWand if it
is not fully developed as affordable housing in accordance with the approval ofPA 2006-01663
within five years of this approval.
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Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 25
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Ashland City Council Approval
Mayor John W. Morrison
Date
Signature authorized and approved by the full Council this _ day of
,20_
Approved as to form:
Date:
AsWand City Interim Attorney
Ordinance Attachment 2: Findings of Fact, Conclusions of Law and Order PA #2006-01663
Page 26
CITY OF
ASHLAND
Council Communication
A Resolution Setting a Public Hearing to Consider the Formation of a
Local Improvement District to Improve Liberty Street as well as the
Aile between Harrison and Morton Streets
Approval:
Estimated Time:
\
James Olson, 488-5347 -
olsonj@ashland.or.us
Barbara Christensen, 488-
5307
15 minutes
Meeting Date:
Department:
Secondary Dept.:
December 4, 2007
PW / Engineering
Legal/City Recorder
Primary Staff Contact:
E-Mail:
Secondary Contact:
Question:
Will Council approve the attached resolution to establish a public hearing date of February 5, 2008, to
consider the formation of Assessment District No. 88 to improve both Liberty Street and the alley
between Harrison and Morton Street?
Staff Recommendation:
Staff recommends approval of the attached resolution setting a public hearing to consider the formation
of an LID to improve Liberty Street and the alley between Harrison and Morton Streets.
Background:
Staff has received petitions calling for the formation of a local improvement district to fund two
projects. The first petition is for the formation of the improvement district for improvements to Liberty
Street, from the present end of improvements southerly to the end of the right of way. The second
petition requests formation of the improvement district for improvements to the alley, south of
Siskiyou bounded by Harrison and Morton Streets.
LID Composition
These two proposed improvement projects are being considered under a single assessment district in an
effort to conserve staff and council time and to provide an economy of scale in the development and
construction of the project. It is proposed that theses two projects be designed, bid and constructed as a
single project. Both projects are being requested by property owners and in both instances petitions
have been submitted from over half of the assessment district.
Allev Improvements
This proposed improvement consists of grading and paving the existing alley surface between Harrison
and Morton Street (south of Siskiyou Boulevard). The pavement would be eleven feet wide and would
be constructed with an inverted crown to control drainage. No curbs or sidewalks would be constructed
on the alley since the right of way is only 16 feet wide. The east side of Harrison Street at the alley
intersection will require extensive reconstruction (see photos). Although the Harrison Street repairs
would be included in the construction contract, they would not be funded through the LID. Since
Harrison Street is already fully improved, the repair work would be financed from street maintenance
momes.
Page 1 of4
Lioerty & Harrison Morton Alley LID PH CT 11 07.ooc
G:\pub-wrks.eng\dept-admin,LlD\Liberty & Hamson Morton Alley LID PH CC II 07.doc
!FA 11
CITY OF
ASHLAND
Prooosed Alley LID Boundary
The alley is located along the rear lot lines of five lots that front on the south side of Siskiyou
Boulevard, between Harrison and Morton Streets. Each ofthese has vehicular access onto the alley
rather than onto Siskiyou. Most of the lots have rear yard garages. Four additional lots front on the
south side of the alley with the center two lots taking sole access from the alley. The eight lots that
would make up the alley assessment district would receive a direct and definable benefit trom the
improvement of the alley. It is proposed that the boundary of the assessment district be configured to
surround these eight lots as shown on the attached map.
Petition
A petition calling for the improvement of the alley was received in early October bearing nine names
and representing five of the nine lots, or 55.6% of the total assessment units. The represented lots
include 658 and 670 Siskiyou Boulevard and 162, 164 and 176 Harrison Streets.
Funding
The estimated improvement costs for the alley, including repair and maintenance work on Harrison
Street are as follows:
Total Construction Cost $
Engineering & Administration Costs $
Total Estimated Project Cost I $
Less Harrison St Repair (total borne by City) $
Less Engineering Cost For Harrison St Repair $
Total LID Project Cost I $
Less City Participation per Resolution 99-09
75% of storm drain cost 0.75 X
20% of street surface cost 0.2 X
50% of engineering cost 0.5 X
60% of sidewalk cost 0.6 X
$ 4,700.00 $
$23,050.00 $
$ 6,000.00 $
$ 300.00 $
Sub Total $
48,580.00
12,000.00
60,580.00
20,530.00
6,000.00
34,050.00
3,525.00
4,610.00
3,000.00
180.00
11,315.00
N umber of Lots in proposed assessment district
Estimated per lot for alley improvement
Assessable Cost $ 22,735.00
9
$ 2,526.11
TOTAL PROJECT COST
Cost to be born by City including Harrison
Cost to be born by Property Owners
$60,580.00
$37,845.00 (60%)
$22,735.00 (40%)
Liberty Street Improvements
Page 2 of 4
Liherty & Harrison Morton Alley LID PH CC 1\ 07.doc
G:\pub-wrks\eng'dept-admimLlDLiberty & Hanison Morton Alley LID PH CC II 07.doc
!'A~
CITY OF
ASHLAND
The improved portion of Liberty Street consists of curb and gutter and paving with a width of 34 feet.
The section of street south of Ashland Street has no sidewalks and ends approximately 290 feet from
the actual southerly end of the right of way. The proposed improvement project would continue the
street at a lesser of 22 feet to the end of the right of way. Sidewalks could be installed on one side of
the street for slightly over half of the total length. The southerly 290 feet of right of way is severely
constrained with multiple mature trees, steep cut and fill slopes and drainage issues. It is recommended
that the southerly 290 feet of street be reduced to an 18 foot width and that sidewalks be eliminated
from this section.
Proposed Libertv Street LID Boundary
This LID is one that, like Plaza A venue, where the formation of on LID has been previously attempted
several times, the last being in 2001. It is proposed that the assessment district be composed of those
lots that have actual frontage on the section of street to be improved as well as those lots which take
sole access from the section of street to be improved. There are sixteen lots with street frontage and
four lots that have sole access from the street including a parcel owned by the City of Ashland. This lot
was recently acquired as parks open space and has trail access along the irrigation ditch and a
maintenance easement through tax lot 100 to Liberty Street. The lot is not further dividable due to the
steep terrain and lack of a viable access. The maintenance easement was granted as maintenance
access, not an ingress and egress easement.
Petition
Petitions calling for the improvement of southerly section of Liberty Street were received on August
ih, August 25t\ and September 10, 2007 bearing names representing 11 of the 21 assessment units, or
52.4% of the total proposed assessment district.
Funding
The estimated improvement cost for Liberty Street is $220,000 including engineering and
administration costs. Following is a breakdown of the estimated development and assessment costs:
Total Construction Cost $
Engineering & Administration Costs $
Total Estimated Project Cost I $
Less City Participation per Resolution 99-09
75% of storm drain cost 0.75 X
20% of street surface cost 0.2 X
50% of engineering cost 0.5 X
60% of sidewalk cost 0.6 X
$ 13,870.00
$ 156,070.00
$ 40,080.00
$ 9,980.00
Sub Total
Assessable Cost
Number of Lots in proposed assessment district
Estimated per lot for Liberty Street improvement
Current LID cap (maximum assessment amount as of April 2007)
Page 3 of4
179,920.00
40,080.00
220,000.00 I
$
$
$
$
$
10,402.50
31,214.00
20,040.00
5,988.00
67,644.50
$ 152,355.50
21
$ 7,255.02
$ 5,251.00
Liberty & Harrison Morton Alley LID PH CC II 07.uoc
G: pub-wrks\eng'dept-admin'LIO\Libelty & Harrison MOlton Alley LID PH CC II 07.doc
!'.t.1I
CITY OF
ASHLAND
Since Resolution 99-09 sets a maximum amount that may be born by the owners any additional cost
must be born by the City. In addition the single lot owned by the City also receives an assessment
which adds to the amount that the City will pay.
Amount to be paid by owners
Amount to be paid by City
a. Participation per Resolution 99-09
b. Amount over the maximum cap
c. Assessment for City owned lot
$ 105,020.00 (47.7%)
TOTAL
$ 67,644.50
$ 42,084.50
$ 5,251.00
$ 114,980.00 (52.3%)
$ 220,000.00 (100%)
Related City Policies:
AMC Chapter 13.20 Local Improvements and Special Assessments
Council Options:
1. Council may approve the attached resolution setting a public hearing to consider the formation
of an LID to improve Liberty Street and the Alley between Harrison and Morton Streets, or;
2. Council may elect to delay the public hearing for the proposed improvement of Liberty Street
and the alley through the LID process, or;
3. Council may elect to approve a revised public hearing to consider only one of the two proposed
improvement projects.
Potential Motions:
1. Council may move to adopt the attached resolution setting a public hearing to consider the
formation of an LID to improve Liberty Street and the alley between Harrison and Morton.
2. Council may move to delay the attached resolution pending further information to be provided
by staff.
3. Council may move to approve a revised resolution to set a public hearing date for only one of
the two projects.
Attachments:
Resolution w/Exhibit A and B
Vicinity Maps
LID Boundary Maps
Petitions
Photographs
Letters
Page 4 of4
Liberty & Harrison Morton Alley LID PH CC II 07.doc
G: pub-wrks'eng'dept-admimLlD\Liberty & Harrison Morton Alley LID PH CC II 07.doc
!'A~
RESOLUTION NO. 07-_
A RESOLUTION SETTING A PUBLIC HEARING WITH INTENT TO FORM A
LOCAL IMPROVEMENT DISTRICT FOR CONSTRUCTION OF
IMPROVEMENTS TO LIBERTY STREET AND THE ALLEY SOUTH OF
SISKIYOU BOULEVARD BOUNDED BY HARRISON AND MORTON
STREETS CONSISTING OF SIDEWALKS, CURBS & GUTTERS, PAVING,
DRAINAGE AND ASSOCIATED IMPROVEMENTS.
THE CITY OF ASHLAND RESOLVES AS FOLLOWS:
SECTION 1. It is the intention of the Council to commence improvements to construct
sidewalks, curbs, gutters, paving, drainage and associated improvements to Liberty and
to construct paving and grading improvements to the alley south of Siskiyou and
bounded by Harrison and Morton Streets.
SECTION 2. The boundary description of the local improvement district is described as
those lots fronting on or having sole access from Liberty and the alley as depicted on
the maps referred to as Attachments Nos. 1 and 2 to Exhibit A.
SECTION 3. The city engineer's estimated cost of these improvements, including
engineering and administration costs, and the proposed allocation of the cost among
each of the property owners specially benefited for Liberty Street is $220,000.00 of
which $110,271.00 will be paid by special assessments on benefited properties and for
the alley south of Siskiyou Boulevard and bounded by Harrison and Morton Streets is
$60,580.00 of which $22,735.00 will be paid by special assessments on benefited
properties. Costs will be allocated based on Resolution 99-09 capped amount of
$5,251.00 per equivalent dwelling unit or potential equivalent dwelling unit for Liberty
Street and on $2,526.11 per equivalent dwelling unit or potential equivalent dwelling unit
for the alley within the assessment areas as depicted on Exhibit A.
SECTION 4. The council will hold a public hearing in the Council Chambers, Ashland
Civic Center, 1175 East Main Street on February 5, 2008, at 7:00 p.m., at which time
and place the owners of the benefited properties may appear or submit written
comments prior to or at the hearing as to why the improvement should not be
constructed or why the benefited properties should not be assessed in the manner
proposed.
SECTION 5. The city recorder is directed to serve notice to the property owners by
publishing a notice of the public hearing once in the Daily Tidings, not less than 30 days
prior to the hearing, and by mailing copies of the notice by first class mail to the owners
of each lot benefited by the proposed improvement as shown on the latest tax and
assessment roll. The notice shall be in the form of Exhibit "A" attached to this
resolution.
PAGE 1-IMPROVEMENT RESOLUTION
SECTION 6 This Resolution takes effect upon signing by the Mayor.
This resolution was read by title only in accordance with Ashland Municipal Code
~2.04.090 and duly PASSED and ADOPTED this
2008.
day of
Barbara Christensen, City Recorder
SIGNED and APPROVED this
day of
,2008.
John W. Morrison, Mayor
PAGE 2-IMPROVEMENT RESOLUTION
EXHIBIT" A"
NOTICE OF PUBLIC HEARING
The City Council of the City of Ashland will meet on February 5,2007 at 7 p.m. in the
Council Chambers, 1175 East Main Street, to hold a public hearing to consider the
formation of a local improvement district as follows:
NATURE OF THE IMPROVEMENT: Sidewalks, curbs, gutters, paving, drainage and
associated improvements to Liberty Street and grading and paving of the alley south of
Siskiyou Boulevard bounded by Harrison and Morton Streets.
BENEFITED:
Those lots fronting on or having access solely from Liberty Street or from the alley south
of Siskiyou Boulevard bounded by Harrison and Morton Streets as depicted on the
attached map referred to as Attachment Nos. 1 and 2.
ESTIMATED COST:
The estimate of the local improvements including engineering and administration costs
is $220,000.00 for Liberty Street of which $110,271.00 will be paid by special
assessments on benefited properties and $60,580.00 for the alley, of which $22,735.00
will be paid by special assessments on benefited properties.
Additional information regarding the proposed improvement or method of assessment
may be obtained at the Engineering Division, 51 Winburn Way, Ashland OR, phone
number 488-5347, weekdays during the hours of 8:00 AM to 4:30 PM.
All affected property owners may appear at the hearing or submit written comments
prior to or at the hearing, as to why the improvements should not be installed or why the
benefited properties should not be assessed in the manner proposed. If two-thirds of
the property owners to be benefited object to the improvement, the improvement will be
suspended for six months.
PAGE 3-IMPROVEMENT RESOLUTION
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PROPOSED
LIBERTY 8T
LOCAL IMPROVEMENT DISTRICT
D Proposed Assessment District Boundary
~ Represented in Petition
391E16AD
Lot 6200
391E16AC
Lot 200
391E16AC
Lot 201
,
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,
CITY OF
ASHLAND
A 1 inch equals 150 feet
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PETITION FOR STREET IMPROVEMENT
LOCATION: LIBERTY STREET - Beginning 185' south of Clarence Lane to the end of right of way.
- RECEIVEDBYTHECITYENGINEER;~ DATE: 9/Io/CJ7
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MA VOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
Liberty Street beginning 185' south of Clarence Lane and extending south to the end of the right of way
be improved with sidewalks, curbs, gutters, paving and drainage control features in accordance with
plans and specifications therefor as shall be adopted by the City of Ashland and the cost of such paving
and improvements be assessed upon the real property benefited thereby and that we are the owners of
the real property fronting (or benefiting) on said street.
Name (Please Print)
Address
Tax Lot
3407
-~;~
/ .
,~;
~q ~ V J eer<::r) OTFZ.
b.14'~7
~o lA~lr1~ S{.
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G:\pub-wrks\eng\dept-admin\LID\Liberty Street Paving Petition.doc
PETITION FOR STREET IMPROVEMENT
LOCATION: LIBERTY STREET - Beginning 185' south of Clarence Lane to the end of right of way.
.RECEIVED BY THE CITY ENGINEERgv DATE: ~I Z~ I t>7
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MAYOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
Liberty Street beginning 185' south of Clarence Lane and extending south to the end of the right of way
be improved with sidewalks, curbs, gutters, paving and drainage control features in accordance with
plans and specifications therefor as shall be adopted by the City of Ashland and the cost of such paving
and improvements be assessed upon the real property benefited thereby and that we are the owners of
the real property fronting (or benefiting) on said street.
Name (Please Print)
Address
Tax Lot
3
L- ftS Efi7Y
'3 100
CJt?
.
G:\pub-wrks\eng\dept-adminILIDILiberty Street Paving Petition. doc
PETITION FOR STREET IMPROVEMENT
LOCATION: LIBERTY STREET - Beginning 185' south of Clarence Lane to the end of right of way.
..JRECEIVED BY THE CITY ENGINEER:?1V DATE: ~/07~1
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MAYOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
Liberty Street beginning 185' south of Clarence Lane and extending south to the end of the right of way
be improved with sidewalks, curbs, gutters, paving and drainage control features in accordance with
plans and specifications therefor as shall be adopted by the City of Ashland and the cost of such paving
and improvements be assessed upon the real property benefited thereby and that we are the owners of
the real property fronting (or benefiting) on said street.
Name (Please Print)
Address
Tax Lot
~~~~
-..J. . iP. qJ7.. ------ --
E,i../2/1fjernH. COKe-/(. 676 J-113&/<:.-7/ SI
~~/<2~&1
34tJ7
100/
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G:\pub-wrks\eng\dept-admin\LlD\Liberty Street Paving Petition.doc
PETITION FOR STREET IMPROVEMENT
LOCATION: LIBERTY STREET - Beginning 185' south of Clarence Lane to the end of right of way.
~RECEIVED BY THE CITY ENGINEER:~ DATE: "(ttJ7! t!J7
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MAYOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
Liberty Street beginning 185' south of Clarence Lane and extending south to the end of the right of way
be improved with sidewalks, curbs, gutters, paving and drainage control features in accordance with
plans and specifications therefor as shall be adopted by the City of Ashland and the cost of such paving
and improvements be assessed upon the real property benefited thereby and that we are the owners of
the real property fronting (or benefiting) on said street.
Name (Please Print)
Address
Tax Lot
ST (:)
~
G:\pub-wrks\eng\dept-admin\LID\Liberty Street Paving Petition.doc
PETITION FOR STREET IMPROVEMENT
LOCATION: LIBERTY STREET - Beginning 185' south of Clarence Lane to the end of right of way.
~RECEIVED BY THE CITY ENGINEER:~ DATE: blo7i~7
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MAYOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
Liberty Street beginning 185' south of Clarence Lane and extending south to the end of the right of way
be improved with sidewalks, curbs, gutters, paving and drainage control features in accordance with
plans and specifications therefor as shall be adopted by the City of Ashland and the cost of such paving
and improvements be assessed upon the real property benefited thereby and that we are the owners of
the real property fronting (or benefiting) on said street.
Name (Please Print)
Address
Tax Lot
7?o(
~\-.
v
G:\pub-wrks\eng\dept-admin\LID\Liberty Street Paving Petition. doc
PETITION FOR STREET IMPROVEMENT
LOCATION: LIBERTY STREET - Beginning 185' south of Clarence Lane to the end of right of way.
JRECEIVED BY THE CITY ENGINEERft> DATE: B L 07/<:) 7
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MAYOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
Liberty Street beginning 185' south of Clarence Lane and extending south to the end of the right of way
be improved with sidewalks, curbs, gutters, paving and drainage control features in accordance with
plans and specifications therefor as shall be adopted by the City of Ashland and the cost of such paving
and improvements be assessed upon the real property benefited thereby and that we are the owners of
the real property fronting (or benefiting) on said street.
Name (Please Print)
Address
Tax Lot
~~
-.J t)&J .14.
,() J ~~...... '71 ~.;;::f
~7
7 2.... 0 c..>
v
G:\pub-WTks\eng\dept-admin\LID\Liberty Street Paving Petition. doc
PETITION FOR STREET IMPROVEMENT
LOCATION: LIBERTY STREET - Beginning 185' south of Clarence Lane to the end of right of way.
~RECEIVED BY THE CITY ENGINEER: 9V DATE: /!J 1()7/ ~7
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MAYOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
Liberty Street beginning 185' south of Clarence Lane and extending south to the end of the right of way
be improved with sidewalks, curbs, gutters, paving and drainage control features in accordance with
plans and specifications therefor as shall be adopted by the City of Ashland and the cost of such paving
and improvements be assessed upon the real property benefited thereby and that we are the owners of
the real property fronting (or benefiting) on said street.
Name (Please Print)
Address
Tax Lot
611
.~
~
G:\pub-wrks\eng\dept-admin\LlD\Liberty Street Paving Petition. doc
PETITION FOR STREET IMPROVEMENT
LOCATION: LIBERTY STREET - Beginning 185' south of Clarence Lane to the end of right of way.
RECEIVED BY THE CITY ENGINEEk{J DATE: ,8((17/,07
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MAYOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
Uberty Street beginning 185' south of Clarence Lane and extending south to the end of the right of way
be improved with sidewalks, curbs, gutters, paving and drainage control features in accordance with
plans and specifications therefor as shall be adopted by the City of Ashland and the cost of such paving
and improvements be assessed upon the real property benefited thereby and that we are the owners
of the real property fronting (or benefiting) on said street.
Name (Please Print)
Address
T ax Lot
- ~c.~ T HAM
~~Y N.~B'R-J-
6K-? ot4..~
~~ Y1~
71tJO
~1
,
G:\pub-wrks\c:ng\dept-admln\LID\Liberty Street Paving Pelition.doc
PETITION FOR STREET IMPROVEMENT
LOCATION: LIBERTY STREET - Beginning 185' south of Clarence Lane to the end of right of way.
RECEIVED BY THE CITY ENGINEERj1 DATE: 8>(0710 7
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MAYOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
Liberty Street beginning 185' south of Clarence Lane and extending south to the end of the right of way
be improved with sidewalks, curbs, gutters, paving and drainage control features in accordance with
plans and specifications therefor as shall be adopted by the City of Ashland and the cost of such paving
and improvements be assessed upon the real property benefited thereby and that we are the owners of
the real property fronting (or benefiting) on said street.
Name (Please Print) Address
1?1 c:. HAT2D L, HAY 7~1 /.-.1 Bl=-{ZTY "BT; .A;SH L-AUP
T ax Lot
34t5 J 3S~1J
G-\pub-wrks\eng\dept-admin\LID\Liberty Street Paving Petition. doc
o~f/1J~
NOTICE TO PETITIONERS: Persons signing this petition must be legal owners of record, or purchasers
in possession under a recorded land sale contract of real property abutting the proposed street
improvement. If title to any parcel of property is in the name of two or more persons, all must sign.
Petitioners should sign using their names as they appear on the records of ownership.
TO THE HONORABLE MAYOR AND COMMON COUNCIL OF THE CITY OF ASHLAND:
We, the undersigned owners of record of real property in the City of Ashland, Jackson County, Oregon,
hereby petition that:
in accordance with plans and specifications therefor as shall be adopted by the City of Ashland and
the cost of such paving and improvements be assessed upon the real property benefitted thereby and
that we are the owners of the real property fronting (or benefitting) on said street.
Name (Please Print)
Address
161.. I~ ,AfL,!-l Sc~ S"l
Tax Lot
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eft( K. W,4, l-LB P. r.J k..
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G:Dawn\Street\Petition for Street Improvement Form.wpd
Liberty Street looking north
Liberty Street looking south from top of hill
G:pub-wrks\eng\dept-adminIENGIN EERIPROJECT'2004'04-21 CC Liberty LID Photos.doc
Liberty Street looking south
Liberty Street looking north
G:'pub-wrks\eng\dept-admin'ENGINEER,PROJECT 2004'04-21 CC Liberty LID Photos.doc
. .'
NEEDED REPAIRS ON HARRISON STREET
NEEDED REPAIRS ON HARRISON STREET
G'\pub-wrkslengldept-admin,ENGINEERIPROJECT\2007\07-25 CC Photos 11 07 doc
ALLEY LOOKING EAST (NOTE GARAGE & VEHICLE ACCESS)
ALLEY AT MORTON STREET
G:pub-wrks\eng\dept-admin\ENGINEER\PROJECT',2007\07-25 CC Photos II 07.doc
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ALLEY LOOKING WEST FROM MORTON STREET
G:\pub-wrks,eng'dept-admin,ENGINEER\PROJECT200T07-25 CC Photos II 07.Joc
CITY OF
ASHLAND
November 20, 2007
Diarmuid McGuire & Pam Marsh
696 Siskiyou Boulevard #1
Ashland OR 97520
RE: IMPROVEMENT OF THE ALLEY BETWEEN HARRISON & MORTON
STREETS
Dear Mr. McGuire & Ms. Marsh:
Thank you for your email of November 17, 2007 regarding the possible improvement of
the alley between Harrison and Morton Streets. I can appreciate the concerns
expressed in your correspondence and they are concerns which are often expressed by
persons who reside on unpaved and unimproved public ways. Many people simply like
the more rural feel of being on an unimproved street or alley and the paving of the street
or alley is not seen as an improvement and may even be viewed as being in the
opposite direction.
However, the City must take a broader view of how the unpaved streets affect the
environment, and the City as a whole. Issues such as air and water quality,
maintenance costs and safety must be considered for not just the adjacent residences
but for the entire City.
With the application of the second phase of the National Pollutant Discharge and
Elimination System (NPDES) permit, the City has entered into a new phase of
stormwater protection. The uncontrolled flowing of storm washed granite silt from
unpaved streets is no longer acceptable. The City is charged with decreasing and
eventually eliminating all such discharges and the push to surface Ashland's nearly 10
miles of unpaved streets will only become more acute in the future.
Our goal is to surface these streets whenever possible and to work with the
neighborhoods to find an equitable and acceptable means of doing so. Although the
City does not generally initiate the process of street improvements we fill the role of
facilitator. We act as mediator between those who want to pave the alley and those
who do not, and try to ensure that all concerns are heard. In response to some of the
objections to the paving which you expressed in your November 1 ih letter, please
consider the following:
Engineering
20 E. Main Street
Ashland, Oregon 97520
www.ashland.or.us
G:\pub-wrks\eng\dept-admin\TRAF\Harrison Morton Alley Paving Concern Ltr 11 07.doc
Tel: 541/488-5347
Fax: 541-/488-6006
TTY: 800/735-2900
-..
r_~
1. Paving of a Street or Alley Automatically Increases Traffic
We have found over years of improving existing streets, that there is no correlation
between the amount of traffic and the surface type. Most streets within an older
established neighborhood have well established traffic patterns which do not change
with paving.
2. One-Way Alleys Carry Less Traffic Than Do Two-Way Alleys
Again, past experience has shown that once the traffic patterns stabilize after the
initial change; traffic volumes change very little from previous conditions.
One definite benefit to maintaining two-way traffic on an alley is that it tends to keep
traffic slower. Since the alley is not wide enough to provide for two lanes of traffic,
those who drive the alley must use caution and anticipate the approach of an on-
coming vehicle.
3. Paving of an Alley Will Create Additional Drainage Problems & Will Increase the
Amount of Runoff
Most of Ashland's unpaved alleys are surfaced with an abundantly available
decomposed granite. This is a fine grained material that compacts very well and
provides good structural support. Unfortunately, the material can become so well
compacted that it can be as impervious to rainfall as is asphalt pavement.
Since most of our alleys are constructed without curbs and gutters, drainage is
controlled by the use of a reverse crown design. This is where the center of the
alley is lower than either edge so that runoff is channeled along the center of the
alley.
4. A Paved Street Or Alley Promotes Faster Traffic Speeds
Again, we have found little or no correlation between speed and street surface.
Much more effective deterrents to traffic speeds are:
· Travel lane width. The narrower the traffic lane, the slower the traffic. It
is anticipated that the maximum width of the Harrison/Morton Street alley
will be 11 feet.
· Appearance of a residential neighborhood. When drivers are aware that
the area they are driving through is residential rather than a highway,
speeds tend to be lower. The appearance of a residential area is
reinforced by the close proximity of trees, shrubs, garages, even
pedestrians walking along the alley. All of our public streets and alleys
are intended to support all modes of transportation and when one mode,
such as pedestrians, give up their right to walk within the alley another
mode of travel such as private vehicles will fill that void. By sharing the
space among vehicles, bikes and pedestrians, traffic speeds are lower.
Engineering
20 E. Main Street
Ashland, Oregon 97520
www.ashland.or.us
G:\pub-wrks\eng\dept-admin\TRAF\Harrison Morton Alley Paving Concern Ltr 11 07.doc
Tel: 541/488-5347
Fax: 541-/488-6006
TTY: 800/735-2900
r~'
5. To Lower Traffic Speeds Is a Simple Matter of Lowering the Posted Speed Limit
Unfortunately, the speed limit specified for traffic in public alleys is set by State
Statute at 15 MPH. We cannot legally set a lower limit.
I would be happy to meet with your entire neighborhood to further address your
concerns and to try to balance the distinct and differing goals among many of the
neighbors. Please feel free to contact me at 488-5347 if you have additional
questions or to schedule a time and place where we can all meet together to work
on this proposal.
Sincerely,
~~tftt2--
/ I
lJ'~ames H. Olson, PLS
City Surveyor/ Project Manager
CC: Paula Brown
Mayor Morrison
Hamid & Julie Ghauam
195 Morton Street
Ken & Carol Baker
684 Siskiyou Boulevard
Engineering
20 E. Main Street
Ashland, Oregon 97520
www.ashland.or.us
G:\pub-wrksleng\dept-admin\TRAF\Harrison Morton Alley Paving Concern Ltr 11 07.doc
Tel: 541/488-5347
Fax: 541-/488-6006
TTY: 800/735-2900
-.11
r_~
DIARMUID
MCGUIRE
696 SISKIYOU BOULEVARD # 1 . ASHLAND. OR . 97520
TEL/FAX (541) 482-4742 . CELL l541) 890-6435
E MAl L [}, ':' t? '~--"J_!(::':~ '::..!'::~9__~_tC_!:
Saturday, November 17, 2007
James H. Olson
City Surveyor / Project :Manager
Ci ty of Ashland Engineering
20 E. Main Street
Ashland, OR 1.)7520
Dear Mr. Olson,
The City of Ashland created an aggravating and potentially dangerous traffic
problem several years ago when it reconfigured access to Siskiyou Boulevard at
the intersections of Sherman, ~lorton and Beach/Morse. Paving the alley
between Morton and Harrison, as proposed in your letter of November 7, 2007,
will make a barely tolerable situation even worse.
Picture the scene we look at from our home on the comer of Morton and
Siskiyou: during busy travel periods each day, vehicles waiting to turn left on
Siskiyou from Morton pile up on Morton (\",chich is very narrow along this block)
waiting for a break in both east-bound and west-bound traffic. Sometimes half a
dozen or more drivers get backed up. Often they become impatient.
Occasionally one will dash out into traffic, barely avoiding oncoming motorists.
By paving the alley, which is relatively close to Siskiyou, the City will create an
attrat.iive bypass for these drivers. Some motorists have already discovered that
they can avoid the ~lorton/Siskiyou intersection by jogging down the alley to
Harrison or Sherman. Pavement will make this option more attractive.
\Ve believe a traffic study will indicate clearly that a paved alley will attract more
traffic and that the speed of that traffic will increase. Additional through-traffic
will create a nuisance for those of us who Ii ve along the alley, not to mention a
hazard for children, pets, bicyclists and pedestrians. (The alley is a popular
walkway and bike path to downtown.)
Paving the alley \vill also exacerbate an existing drainage problem. Over the
years, the (ity has repeatedly added surface material along the alley. In the
process, the elevation of the alley has increased by at least 12-18 inches. An
impervious surface will result in significantly incrertsed runL)ff onto the
prop{'rties on the north side of the alley, which dre below grade. The City's
preliminary cost estimate does not appear to include any "lubstantiJl provision,>
tor mitigating this potentially damaging dfed.
Ci ty of Ashland
Re: Project 1\;0. 2007-25
Proposed improvement of the ~lorton/ Harrison alley
Saturday, November 17, 2007 .
Page 2
\Ve assume that improvement projects like those proposed by the City for our
alley should satisfy certain reasonable criteria:
1. Such projects should benefit all or most of the residents who are affected
and who are required to pay for them.
2. Conversely, such projects should not create negative impacts for any
substantial number of those residents.
Although we sympathize with the neighbors who are concerned about seasonal
dust from the unpaved alley, we believe that this project will do much more
harm than good, even from their viewpoint. All traffic, including the constant
stream of vehicles on Siskiyou Boulevard, creates dust. Although each
individual passing vehicle may raise less dust along a paved alley, the larger
number of vehicles using the alley will offset this reduction. Higher average
speeds will increase the negative effect.
For purposes of further discussion, we propose the following alternatives to the
project as current! y proposed:
1. Leave the alley in its current condition. Consider mitigating the dust
problem by spraying an appropriate non-toxic material on the unpaved
alley during the summer months.
2. If you decide to further consider this project, first conduct a thorough
traffic study. Share the results of this study \-vith affected residents before
taking any further action.
3. If you decide to proceed beyond that point, consider making the alley one-
way \^.'ith access off of Harrison, Post "One way, do not enter" signs at the
Morton Street intersection with the alley. (The alley is too narrow for two-
way traffic in any case.)
4. If you decide to pave the alley, establish and enforce a 5 mph speed limit.
5. If you decide to move ahead with this project, consider leaving the Morton
Street end of the alley unpaved up to the small creek \vhich runs under
the alley about 100 feet from Morton. This measure would make the allev
look le~" attractive to drivers seeking to avoid the Morton/Siskiyou .
intersection.
h. In any event, if you decide to pave the alley, design and install <1n
adequate drainage sy,;tem to protect the residents on the north side (\f the
aUe)'. This drainage mitigatiun should be in..,talled at the expense of the
City to protect reSidents trom damage resulting from a Citv-initiakd
project.
Ci tv of A"hland
Re: Project ~o. 2007-25
Proposed improvement of the Morton/ Harrison alley
Saturday, November 17,2007
Page 3
We believe that the City has not begun to consider the real costs and potential
liabilities of this project. \Ve urge you find some other way to address the
concerns of the several householders who have complained about dust.
Best regards,
\' .,-"""
\ ~ t, \\ 1 I
, \ /i; 'I / \."-- .. ,'~ \
;;..- ./ )\/~ I v ',j --... '4',,",,-
Diarmuid McGuire & Pam Marsh
b96 Siskiyou Boulevard #1, Ashland
Home phone 482-4742, cell 890-6435
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Hamid & Julie Ghavam
195-Morton Street, Ashland
/11o~ne 482-4742
( ,II ~ \ ,;'
h~~ "' l~; <-(
~ ~ Car~l Baker
b84 Siskiyou Boulevard, A.shland
Home phone -l88-3QSq
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CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
First Reading of an Ordinance Amending the Ashland Municipal Code
Chapter 2.04, Rules of the City Council
November 20, 2007 Primary Staff Contact: Ann Seltzer
Admi 'stration E-Mail: seltzera@ashland.or.us
Secondary Contact: Richard Appicello
Estimated Time: 30 minutes
Question:
Does the Council wish to adopt an ordinance amending the Ashland Municipal Code 2.04 Rules of the
City Council?
Staff Recommendation:
Staffrecommends the council discuss the topics raised during previous meetings (see below) and
determine which should be added to the draft ordinance and then approve the first reading of the
ordinance with the identified additions.
Background:
At the November 6 City Council meeting the council approved the addition of new language submitted
by Councilor Hardesty for 2.04.080 Section D. The attached draft ordinance reflects that change.
At the City Council meeting on September 25,2007, the 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, Committees and Boards (sections 2.04.090, 2.04.100, and
2.04.110 of the attached ordinance). Councilor Chapman has prepared a draft ofthese sections for
council review. Staff was directed to include these sections as placeholders 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 draft ordinance reflects the input
and the language agreed upon by the group over the past year.
Previous Discussion Topics
The following topics were raised and discussed during previous meetings. Staff is seeking direction
from the council whether to include these in the ordinance. They are listed below and as margin
comments in the draft ordinance.
1) Adding a sentence to 2.04.030 Agenda Section D (page 5) to read as follows"
"Any topic may be added to an agenda by a majority vote of the Councilors present. Generally these
items should be limited to items of timeliness or emergencies."
Page I of 3
11 20 07 Council Rules communciation .doc
r~'
2) Adding "The Mayor and council members..." to Section D 2.040.080 Conduct with City Employees
(page 9) to read as follows:.
"The Mayor and council members 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 the Mayor, a council member or staff person's right to report
wrongdoing. "
3) Adding "State of the City" to Section 2.04.050 Order of Business (page 6) to read as follows:
"At the first meeting in January, after roll call, the presentation of the Mayor's State of the City
Address shall be first in order."
4) Deleting the second paragraph of Section 2.04.120 Council Expenses (page 10) and replacing it to
read as follows:
"Councilors are required to submit all statements as required by ORS 244."
5) "No member shall speak twice on a motion on the floor...." 2.04.020 Section K.(page 4). This is in
current council rules AMC 2.04.060 and in Chapter 2 Section 4 of Roberts Rules...
Section 2.04.020 Section H Robert's Rules of Order states that Robert's Rules of Order shall be the
authority for 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 of the Council. The council will strive to be clear in its
proceeding.
Leaving 2.04.020 Section K as currently written means that even if Robert's Rules of Order are not
strictly followed, "no member shall speak twice on a motion on the floor" is still required because it is
a separate rule.
Additional Comment
After your previous meeting, Vicki Aldus contacted City Staff to express concern about the language
about confidentiality of matters discussed in Executive Sessions. Ms. Aldus followed up with an e-
mail that is attached to this memo.
She suggests eliminating the following two sentences from 2.04.02, Section D. (bottom of Page 2):
Media representatives are allowed to attend Council executive sessions subject to the
understanding that information from such meetings, which is the proper subject of an executive
session, will not be reported. Councilors and staff should not discuss executive session matters
with the press following adjournment of the executive session, because to do so may permit the
press to report on the matter.
And replacing them with this sentence:
"At his or her discretion, the mayor, councilors or a city staff member may discuss
appropriate details of executive sessions with members of the media."
CITY OF
ASHLAND
If the Council wishes to make a modification to the rules to address this concern, staff suggests that the
Council more formally designate a member of the Councilor staff to provide a summary of executive
session matters to the press. Staff recommends the Council consider the following language:
Media representatives are allowed to attend Council executive sessions subject to the
understanding that information from such meetings, which is the proper subject of an executive
session, will not be reported. Councilors and staff should not discuss executive session matters
with the press following adjournment of the executive session, because to do so may permit the
press to report on the matter. At the conclusion of the Executive Session. the Council may
desienate the Mayor. any Councilor. or a staff person to discuss appropriate details of the
Executive Session that may be reported with members of the media.
Related City Policies:
· Article VIII, City Charter
Council Options:
· Pass first reading of the ordinance as written.
· Identify changes to the ordinance and pass first reading.
Potential Motions:
· I move to approve first reading of an ordinance amending the Ashland Municipal Code Chapter
2.04, Rules of the City Council.
· I move to approve first reading of an 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 of the City Council.
Page 3 of3
II 20 07 Council Rules communciation _doc
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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
Charter provides:
The Councll 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 specwl meeting shall be presented at
the next regular Council meeting. The CouncIl shall adopt rules for lts proceedings.
WHEREAS, the City Council has met ten times over the course of one year to amend
Ashland Municipal Code 2.04 Rules of the City Council
WHEREAS, the City Council intends to further amend Sections 2.04.090, 2.04.010 and
2.04.020 of the revised Rules of the 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 below.
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 tlrrough 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 City, Article VIII Section 3, and the Ashland Municipal
Code as well as the Oregon Revised Statutes govern many meeting requirements and
actions of the Council.
AUTHORITY
These operating policies and procedures are established and adopted under the
authority granted in the Ashland City Charter, Article VIII, Section 3.
Section 2.04.020
MEETINGS
A. Regular Meetings.
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. Meetings are required to end no
later than 10:30 p.rn.
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 be 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 members of the Council may call a study session at any time with
36-hour notIce for the purpose of informing members of the 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 but can give staff direction to prepare materials for a
regular Council meeting.
D. Executive Sessions.
All meetings of the City Council shall be held in open sessions, except meetings that
may be closed for those purposes specified in the Oregon Public Meetings Law (ORS
192.610 to 192.690). These purposes include, but are not limited to, the employment
and dismissal of public employees, the performance evaluation of the City
Admimstrator and City Attorney, labor negotiations, real property transaction
negotiations, 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.
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[Media representatives are allowed to attend Council executive sessions subiect to the
understanding that information from such meetings, which is the proper subiect of an
executive session, will not be reported. Councilors and staff should not discuss
executive session matters with the ress followin ad'ournment of the executive
session, because to do so may permit the press to report on the matter.
At the commencement of each executive session, the presiding officer must state on
the record that executive session information is confidential and may not be reported. '. j....,... tL. ~W
If]t does not so specIfy, the proceedmgs may be reported. .l..4b-ZX:C,.~~1~~--'
2
E. Notice of Meetings.
Advance notice of at least 36 hours shall be provided for all meetings. Notice shall
be sent to a newspaper with genera] local circulation and posted prominently on the
City's Web site. ]n the case of an emergency or when a state of emergency has been
declared, public notice appropriate to the circumstances shall be provided and reasons
iustifying the lack of 36-hour notice shall be included in the minutes of such meeting.
F. Quorum.
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 maiority of
the quorum present determines the action on any motion, question, ordinance, or
resolution. On questions requiring a two-thirds vote of the Council, as provided in
the City Charter, there shall be required an affirmative vote of at least four Councilors
to exercise any such special powers. If the roll call shows no quorum present, as
defined by Section 4 of Article VIII of the 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 then fail soon to appear, the members present
shall adiourn to a date fixed by them and all agenda items will be continued to the
next regular meeting.
G. Emergency Meeting Procedures and Quorum.
The City Administrator is responsible for implementation of the Emergency
Management Plan. When the City Administrator determines that a state of
emergency 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 special meeting 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
emergency 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 Ru]es of Order shall not be cause to void or
otherwise disturb a decision or action of 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
yote 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 yote in the case ofa tie, and then is required to Yote.
J. Reconsidering 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 next regular meeting of the Council, provided
that no vote to reconsider shall be made after the ordinance, resolution, or act has
been officially recorded, filed or transmitted or otherwise gone out of the possession
of the CounciL
K. Council Deliberation.
It is the duty of the Mayor or presiding officer to ensure that each Council member
has the opportunity to speak. Councilors should ask the Mayor to be recognized. No
member shall speak more than once until every member choosing to speak shall have
s ok en or waived their ri ht to do so. Nomemb eaktw:ice on. amotion on
the floot'iWithout lea.veofthe Maoror residi officer:
Council members speak only for themselves and shall be open, direct and candid.
They work to keep discussion moving, and call for a "process check" if the discussion
becomes bogged down. Time limits may be set on topics by the Mayor, by the
presiding officer, or by a consensus of the CounciL
L. City Attorney as Parliamentarian.
The City Attorney is designated as parliamentarian for the Council. QuestIOns of
parliamentary rules may be referred to the City Attorney through the presiding officer
for interpretation. The final ruling rests with the presiding 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 agenda based on timeliness of the topic and with
consideration of the number of items already scheduled for the CounciL Matters to
be considered by the Council shall be placed on an agenda to be prepared by the City
Administrator from the following:
I. All items considered by the Council during 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 paragraphs Band C of this
Section.
S. Requests of City Boards, Commissions, and Committees.
B. A Councilor may request that an item prior to initial Council discussion, that does
not involve staff time, policy research, or drafting of an ordinance, be placed on the
Council's agenda. The Councilor shall notify the City Administrator no later than
noon of the Wednesday prior to the Council meeting. The City Administrator shall
determine the order of business of the item. The City Administrator may request that
the matter be deferred until a later meeting if the agenda of a particular meeting is
Comment [Sl]: Leaving tbis
if council does
berts Rul
.04.020 Section H)
to "no member shall twice..."
because it is an adopted mle.
4
already lengthy. Council members will endeavor to have subiects and any materials
they wish considered submitted prior to finalization 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 of any staff time being spent on the issue. The
Councilor may also request that the discussion of this item be formally placed on the
agenda in accordance with paragraph B of this Section. The Council should consider
items in light of City priorities, including adopted City Council Goals, and workload.
The Council must agree to proceed with an issue 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 agree 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 maioritv vote of the Councilors present.
E. Postponing Agenda 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 regular 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 postpone 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 of the Council votes not to postpone the item or if
the matter is time-sensitive.
F. Council Packets.
Written materials, from Councilors, staff and citizens, which are related to agenda
items to be included in the Council packet, must be submitted to the City
Administrator's office no later than 12:00 noon six days in advance of the Council
meeting for which it is intended. Materials submitted must include author's name and
address.
G. Study Session Agenda 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 pertaining 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 shall appoint a Chair Pro-Tern and proceed with
the meeting. The ChaIr, except the Mayor, 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 ancWlecorum is
maintained. Attendees and speakers are required to strictly abide by the directions of
the presiding officer~ehavior or actions that are umeasonably loud or disruptive
shall be cause for removal from Council meetings. Failure to abide by the presiding
officer's instructions constitutes "disruPtion of a lawful assembly" as provided in
ORS l66.025( 1)( c). 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 presiding officer. Signs are not permitted and will be
considered disruptive.
The presiding officer may set time limits on agenda items.
after the roll call the resentation of the Ma or's
The Mayor or presiding officer may change the order of business on the agenda. The
required order of business has been established by ordinance is as follows:
A. Roll Call.
B. Approval of minutes of the previous meeting. If there are 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, which 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 of business.
E. Public hearings shall conclude at 9:00 p.m. and be continued to a future date to be
set by the Council. unless the Council by a two-thirds vote of those present, extends
the hearing( s) for one-half hour 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 depending on the anticipated length of the Council
meeting.
Persons wishing to speak are to submit a "speaker request form" prior to the
commencement of the hearing and deliver the form to the City Recorder. The Mayor
or presiding officer 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 the pubhc 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 inform the
audience on requirements for 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. If a member of the public wishes
to speak on an agenda item or public hearing 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 testimony 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 for 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 giyen 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 speak at public forum.
G. Unfinished business.
7
H. New business.
1. Ordinances, resolutions and contracts.
a. Every ordinance is to be enacted in accordance with Article X of the City
Charter. Covies of the ordinance shall be e-mailed to Council members and the
Mayor at least fourteen days prior to the meeting. Council members may review
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 reading. Any substantive changes to the ordinance
must be verbally noted at first reading. Council members must submit comments
to the City 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.
J. Other business from Council members.
Section 2.04.060
IDENTIFICATION 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 term "program 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 City Council during public forum. On behalf of
the City, any Councilor may request the item be placed on a future agenda.Any
citizen has the right to present an item to the City Council. On behalf of the City, any
Councilor may request the item be placed on the agenda. Citizens may speak on any
item not on the agenda during public forum.
Section 2.04.080
CONDUCT WITH CITY EMPLOYEES
The City Council will attempt to work with City staff in a spirit of teamwork and
mutual cooperation.
A. Councilors may make inquiries of staff 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 information given by the Mayor, 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 J (.-t-;'"
administration. They shall not pressure or direct City employees in a way that could ~
contravene the will of the Council as a whole or limits the options of the council ~
..llvlc.1"hey must not interfere with work performance, undermine the authority of
supervisors, or 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 the City Attorney.
E. Councilors with a concern about the performance of a particular staff person
should express that concern to the Mayor, City Administrator, City Attorney, QLt,o
that employee's department head.
Section 2.04.090
COMMISSIONS, COMMITTEES and BOARDS
A. Establishing Commissions, Committees or Boards.
B. Council Ad-hoc Committees.
C. Membership Appointments.
9
D. Mayor Membership on Ashland Budget 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
OPERA TING 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-Making.
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.
H. 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 are directly
related to City business in accordance with the City's reimbursement policy.
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
1--- Council present and voting.
j
I
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2.0-uno Presiding Offieer
[This excerpt comes from the .^,shland Municipal Code, Title 2 .^.dministration,
Chapter 1 Rules of City Council]
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 session the
Councilors present shall appoint a Chair pro tern and proceed with the meeting. The
Chair, except the Mayor, may vote on all motions other than appeals from decisions
made while acting as presiding officers. (Ord. 1511 SS I, 1967)
2.01.020 Quorum
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i\S provided in Article VIII, Section 1, of the City Charter, the Mayor and not less
than three (3) Councilors, or four (1) Councilors, constitute a quorum and a simple
majority of the Councilors present determines the action on any motion, question,
ordinance, or resolution except, however, that on questions requiring a hvo thirds
(2/3) vote of the Council, as provided in the City Charter, there shall be required a
vote of four (1) Councilors to exercise any such special powers. If the roll call shO'.vs
no quorum present, as defined by Section 1 of Article VIII of the 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 then fail to soon appear the
members present shall adjourn to a date fixed by them. (Ord. 1810 (part), 1971; Ord.
1511 SS2, 1967)
2.01.030 Minutes of Proeeedings
After the reading of the minutes of the preceding meeting by the City Recorder, if
there are no corrections or objections thereto, they shall be considered approyed;
otherwise, to be approved by vote. The minutes as appro'/ed shall be signed by the
Mayor and City Recorder. (Ord. 1511 SS3, 1967)
2.01.010 Order of Business
A. Except as provided in subsection B hereof, the order of business of the Council
shall be:
11
1. Roll call; .
2. Approval ofminutcs ofthc previous mectmg;
3. Special presentations, proclamatIOns and awards; . .
1 Consent agenda, subject to the limItatIOns of subsectIOn C, .
5: Public hearings, subject to the limitations of subsectIOn D and first readmgs of
ordinances that pertain to the public heanng.. . . El
6. Public forum for business from the audience not mcluded on the agenda (limIte to
a total of 15 minutes);
7. Unfinished business;
8. Nevi and miscellaneous business;
9. Ordinances, resolutions and contracts;
10. Other business from Council members.
B. At the first meeting in January, after the roll call, the presentation of the Mayor's
address shall be first in order.
C. Routine business items may be Iisled by the City /\dillinistrator un~er a "Co~sent
^ da" '''hich shall be acted upon in its entIrety, eJlcept that the Ma) or or an)d
~~:ber ~f:the Council may request that any item be moved to the regular agen a
under the appropriate section of business.
D Public hearings shall conclude at 9:00 P.M. and be continued to a future dat: t~ be
. . e Council unless the Council by a two thirds vote of those present, ex en s
set b) th 't.. 1ft.. 1'1 9'"}{\ P jlA at ,,,t..ich time the CouncIl shall 5et-a
e . t j f; ne t1an-t1our un+ -."'" . d. ..t1
the eanng s or 0 El shall proceed n'ith the balance of the agenda. Not more than
El t fef eenlllluance an - -.. . f I'l
t'~': (2) land use appeal hearings shall be scheduled for any regular meetm~ ~ ~ e
G'I +Il Gity ^ dministrator may III the ,A,dministrator's dIscretIOn, sc e u e
-ouncI-. ~e - ,. , . . e f e G' I
additional legislative hearings depending on the antICIpated lengt 0 t e ouncl
meeting. (Ord. 2611 Sl 1991; 2729 1991)
^ t' of the Council the order of business can be changed or any part
E ,.t any mee mg , f e GI
th'ereofmoved to a future agenda by a majority vote 0 t e ounc).
.t..1 f I'l falien efthe agenda for each
F The City /.dministrator is responslu e or t e prepa . . h
'. , cil meetin and, '.vith the consent of the CounCIl, shall determme t e
~;;d~::~Y wHich .;y m.ll" 'flU" h, P"""le" in W.itiflg h; '.Y "h"~ m ..d" '"
be included on the agenda. (Ord. 1511 81, 1967; Ord. 2523(,.) 81,1989.
2.01.050 Voting
. . Ie' Ie Ghair each member present shall
When a question or motIon IS put to a vo e ) e , b f ding If
inst the same unless the CouncIl excuses that mem er Will so 0 .
:::;,~';.,;'[;:';...)W n' .flY m,ml>" "II, fn:. mil c~" ~i:le;'::':::~: ::::; :n"
likewise vote. The Mayor can only vote m t e case 0 a ,
vote. (Ord. 1511 SS5, 1967).
12
2.01.0tiO PriYileges of Members
No member shall speak more than nvice on the same question without leave of the
presiding officcr, except in informal and interlocutory debate, nor more than once
until every member choosing to speak shall have spoken or waived their right to do
so. (Ord. 1544, 886, 1967).
2.01.070 Roll Call Vote
The voting on all ordinances or resolutions shall be by roll call vote and recorded in
the minutes showing those numbers voting for and those voting against. (Ord. 1544
8S7, ] 967).
2.01.080 ,'\ppointing Committees
,'\11 committees not required by State law to be appointed by the Council shall be
appointed by the Mayor "'lith the consent of the Council, or in the Mayor's absence,
any appointment necessary may be made by the presiding officer, with the consent of
the Council. ,'\fter the standing committees have been formally announced they
cannot be changed except at a regular meeting of the Council and by a majority vote
of the members present. ,'\11 terms of boards, commissions and committees shall be
extended to /\pril 30 of each year, beginning ..vith the terms expiring on December
3], ]989. (Ord. ]875, ]976; Ord. 2523(/\) S2, ]989).
2.01.081 Notice of L'\ppointmcnts
No person shall be appointed or elected to any committees or eommissions
established by ordinance until after the City Recorder has caused to be published
once, at least ten (] 0) days prior to the date on '.vhieh the appointment or election is to
be made, in a newspaper of general circulation in the City of Ashland, a notice
entitled "NOT]CE OF ,'\PPOINTMENT", containing the following information:
]. The position to be filled by appointment or election;
2. That applications will be accepted by the City Recorder;
3. The date the appointment is expected to be made; and,
1. That additional information regarding the position can be obtained from the office
of the City Recorder.
No appointment or election shall be made to any of the aforementioned committees or
commissions, unless notice of such appointment or election appears on the agenda for
the meeting at which the appointment or election is to be made. .^.dditional
procedures regarding application deadlines and notification to the City Council of
proposed appointments by the Mayor shall be set forth by Resolution of the Council.
(Ord. 1903, 1976; Ord. 2523(/.) S3, 1989).
13
2.lH.082 Student Memberships on Commissions and Committees.
Seetion 2.01.082 Student Memberships on Commissions and Committees.
The Mayor with consent of the Council may add to the membership of any city
commission, two positions for student liaisons, whether such commission or
committee was established by ordinance or resolution. The student liaisons shall be
non voting eJ[ officio members of their respective commissions or committees. Once
the liaison positions have been added, the liaison from the high school shall be a high
school student chosen by the /,shland High School Leadership Class and the liaison
from the university shall be a university student chosen by the ,^.ssociated Students of
Southern Oregon University Student Senate. The requirements of sections 2.05.080
and 2.01.081 shall not apply to the students chosen under this section.
2.01.090 Ordinanees and Resolutions
Every ordinance shall be enacted in accord with Article X of the ,^,shland City
Charter. Every resolution shall receive one reading previous to the vote on its
passage, provided however, that it may be read by title only if no Council member
present at the meeting requests to have it read in full. (Ord. 1511 S9, 1967; Ord. 1950
81,1978; Ord. 2365,1985; Ord. 2691,1992).
2.04.095 Identifieation of Fiseal Impaet of Polie)' Deeisions
A. At such time as the council adopts a ne,v program or policy \vith significant
revenue implications, it shall offer clear direction to city staff and to the budget
committee as to how the new program or policy is to be funded.
B. '\Then the city council adopts such a program or policy, it shall indicate how it
expects that program or policy ,viII be funded; e.g., '.vhich existing taxes or fees the
council expects to increase and by hO'.v 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.
C. As used in this section 2.04.095, the term "program or policy "vith significant
revenue implications" includes an ordinance or a resolution in ',vhich 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 increasing
existing taxes or fees or imposition of new taxes or fees.
D. The provisions of this section shall not apply to extraordinary expenditures in
situations of, or necessitated by, public emergencies.
(Ord 2&51, added, 11/02/1999)
14
2.1H.100 Rights of Citizens
,^.Il matters of business, propositions, requests, petitions, remonstrances, or any
question whatsoever which a citizens, or any society or organization of citizens,
severally or by committee, may desire to present for consideration of the Council
shall be reduced to '.vriting and filed with the City /.dministrator for presentation to
the Council. The Council shall accord a hearing to any person in explanation of the
matter or business so filed and presented. Provided, ho\vever, '""hen the floor is
accorded any citizen for such purpose, the Chair may then or later notify the speaker
of the amount of time which the citizen \vill be allowed. (ard. 1511,810,1967)
2.04.110 Couneil Meetings
A. Regular Meetings
The regular sessions of the Council shall be on the first and third Tuesdays of each
and every month, unless otherwise arranged, and shall be held on the days appointed
at 7 p.m. Meetings shall end no later than 10:00 p.m. unless the Council by a two
thirds vote of those present C),tends the meeting for one half hour. (ard. 2729 1991)
B. ;\djourned Meetings
At any regular or adjourned meeting the meeting may be adjourned to a later date by
a majority 'iote of the Council. In the e','ent any regular meeting is adjourned to call of
the Mayor, the Mayor may call an adjourned meeting at such time as the Mayor may
desigFlate upon ha'iing each Councilor notified persoFlally, or in writing, at least
thirty six (36) hours in advance of the time and place of such adjourned meeting. ;\ny
City business may be acted upon at an adjourned meeting.
C. Speeial Meetings
/\ special meeting may be called either by the Mayor or two (2) members of the
Council. Written notice of the time and place of such special meeting and the subjects
to be acted upon shall be deli'.'Cfed in writing to all members of the Council at least
thirty six (36) hours in advance of the time of said meeting, and the Council may
conSider and act only upon such matters as contained in the written notice.
D. Study Sessions The Mayor or two (2) members of the Council may call a study
session at any time for the purpose of informing members of the Council as to City
affairs. /.t such study sessions no decisions may be made or action taken either
formally or informally by the Council. (ard. 1511,81 1,1967)
2.01.120 Reeonsidering a Vote
/\ motion to reconsider a vote can be made only once and at the session at which the
motion or matter Vias adopted, or at the next meeting of the Council, provided that no
vote to reconsider shall be made after the ordinance, resolution, or act shall have gone
out of the possession of the Council. (ard. 1511, S12, 1967)
15
2.01.130 Conducting a Meeting
Robert's Ru]es of Order shall be authority for the government of the Council
during its sessions, when not in conflict '.vith the City Charter and these code rules.
(Ord. ] 511 S 13, ] 967).
2.01.110 Membership on Ash]and Budget Committee
For the purpose onoca] budget law, the Mayor is a member of the governing body of
the City of Ash]and. (Ord. 250], 1989).
SECTION 2. Severability.
If any section, provision, clause, sentence, or paragraph of this Ordmance 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 3. Codification.
Provisions of this Ordinance shall be incorporated in the Ashland Municipa] 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-]ettered, 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 form:
16
Richard Appicello, Interim City Attorney
17
concerns about executive
changes
From:
To:
Date:
Subject:
Martha Bennett
Diana Shiplet
11/14/20079:28:59 AM
Fwd: Daily Tidings concerns about executive session changes
Diana - Please attach to the Council Rules ordinance packet for Tuesday night's Council meeting
Thanks
Martha
>>> Vickie Aldous <vlaldous@yahoo.com> 11/08/072:47 PM >>>
Dear Martha and Ann,
We at the Tidings are very concerned about proposed
changes to executive sessions.
For executive sessions, Oregon Revised Statutes say
"the governing body MAY require that specified
information subject of the executive session be
undisclosed."
The draft Ashland council rules say" Unless
authorized by 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 subject to the understanding that
information from such meetings, which is the proper
subject of an executive session, will not be reported.
Councilors and staff SHOULD NOT discuss executive
session matters with the press following adjournment
of the executive session, because to do so may permit
the press to report on the matter."
The current way we operate is that at the end of some
executive sessions, I ask someone (usually the mayor
or city administrator) to comment about what happened
inside the executive session so I can use it in a
story. They use their discretion and say what they
think is appropriate for print. Sometimes they won't
comment at all.
There are two problems with the city's proposed
changes. 1. The first sentence says the FULL COUNCIL
has to authorize someone to talk. 2. The last sentence
says councilors and staff SHOULD NOT discuss executive
session matters...
The effect at the least is that the full council would
have to say someone can talk to the press, and the
worst effect is they would feel no one should talk at
all.
It seems like a violation of free speech rights to say
the full council has to authorize someone to talk.
Page 1
l6ianaShlpTet - Fwd Daily Tiding~concerns about executive session changes
City staff, the mayor or a councilor should be able to
choose whether to talk to the media. The changes also
go beyond Oregon Revised Statues.
Here's another problem. The council sometimes talks
about an issue in executive session. They can't vote
and make decisions in executive session. So they come
out in open session and vote on the matter they
discussed behind closed doors without saying anything
in public about what it is about. This leaves people
in the audience and watching on television mystified
and suspicious. The media should have the right to ask
for some kind of reportable explanation about what the
vote was about.
PROPOSED LANGUAGE CHANGE FROM THE TIDINGS
Eliminate the two problem sentences. Add: "At his or
her discretion, the mayor, councilors or a city staff
member may discuss appropriate details of executive
sessions with members of the media."
Thank you for your attention to this issue. I hope we
can cooperatively work out something that preserves
the current rights of the media.
- Vickie Aldous
vlaldous@yahoo.com
479-8199
Do You Yahool?
Tired of spam? Yahoo! Mail has the best spam protection around
http://maiLyahoo.com
cc:
Ann Seltzer
.....-
Page 2:
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Resolution Adopting the Gentle Person Agreement
November 20, 2007 Primary Staff Contact: Ann Seltzer
Administration E-Mail: seltzera@ashland.or.us
Secondary Contact: Richard AppicelIo
Estimated Time: 2 minutes
Question:
Does the Council wish to adopt the Gentle Person Agreement by resolution?
Staff Recommendation:
Staff recommends adoption of the resolution.
Background:
During the numerous meetings and discussion of council rules, guidelines not included in the draft
ordinance were saved as the Gentle Person Agreement.
In order to preserve such guidelines it was suggested they be adopted by resolution.
Related City Policies:
. N/A
Council Options:
. Adopt the resolution as written.
· Identify changes and adopt the resolution.
Potential Motions:
· I move to approve the Resolution Adopting the Gentle Person Agreement.
· I move to approve the Resolution Adopting the Gentle Person Agreement with the identified
changes.
Attachments:
· Draft Resolution Adopting the Gentle Person Agreement.
Page I of I
II 2007 Council Rules resolution communcJation.doc
~~,
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Public Art Master Plan
November 20, 2007 Primary Staff Contact:
Administration E-Mail:
Secondary Contact:
Estimated Time:
Ann Seltzer
ann@ashland.or. us
Question:
Does the City Council ish to adopt the Public Art Master Plan?
10 Minutes
Staff Recommendation:
Staff recommends adoption of the Public Art Master Plan.
Background:
In June of 2006, the Citizen's Budget Committee approved the expenditure of $1 0,000 for the purpose
of developing a Public Art Master Plan. In September of2006 the City Council discussed the Public
Art Master Plan and voiced their support of moving the project forward.
The Public Art Commission sought citizen input over a six month period. The Commission conducted
the public involvement process using a variety of tools and extensive public outreach. Once the
Commission completed the public involvement process in May of2007 they began to draft the master
plan and to develop goals based on citizen input.
The Public Art Master Plan includes an overview of public art, the public process, solicitation tools,
goals and implementation strategies and an extensive appendix.
The Master Plan cost less than $10,000 and the Commission hopes to use the remaining funds to repair
the vandalized piece of public art at the comer of Lithia Way and Pioneer Street.
Related City Policies:
N/A
Council Options:
Council may accept this master plan as presented, recommend modifications as discussed or defer
adoption (takes no action) and give direction to the Public Art Commission.
Potential Motions:
This item is on the Consent Agenda and can be approved with other items. If removed from the
Consent Agenda for separate discussion the following motions may be used.
. I move adoption of the Public Art Master Plan.
. I move for refinement of the Plan and ask the Public Arts Commission to consider the
following additional items:
Attachments:
. Public Art Master Plan
Page] of I
cc- Public Art Master Plan I 12007.doc
r:.,
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 20, 2007
Community Deve]opment
A istration
--.-
Primary Staff Contact:
E-Mail:
Secondary Contact:
Estimated Time:
Bill Mo]nar
bill(a;ash]and.or. us
Richard Appicello
] 0 minutes
Question:
Should Council finalize the last step of including within the Ashland City Limits approximately 8.4-
acres of industrial and employment zoned land, by approving the second reading of an ordinance
fonnally annexing the property and withdrawing the property from Jackson County Fire District No.5?
Staff Recommendation:
Staff recommends that the Council approve the ordinance on second reading.
Background:
At the November 6, 2007 meeting, the Council approved first reading of the ordinance fonnally
annexing the Brammo Motorsports property located on Jefferson A venue and withdrawing the
property from Jackson County Fire District No.5, and moved the ordinance to second reading.
At the May 16, 2006 meeting, the Council approved the application for an Annexation of an 8.43-acre
parcel located on Jefferson Avenue. The Council adopted the findings of their decision on June 19th,
2006, which completed the land use ordinance portion of the annexation process. The applicant has
prepared and submitted the required boundary description of the property. The final step for the
Council 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 the applicable goals and policies of the City have been met by this request.
Council Options:
Council can choose to approve the ordinance on second reading.
Potential Motions:
Approve second reading of the ordinance.
Attachments:
Ordinance
Page J of 2
CC Jefferson Bramscher Annex 2nd reading ] 1.20.06 doc
~~,
CITY OF
ASHLAND
Map of Survey & Legal Description - Annexation Area
Irrevocable Consent to Annexation
May 16th, 2007 Council Meeting - Public Hearing Notice, Minutes and Findings
Page 2 of2
CC Jefferson Bramscher Annex 2nd reading ]] .20.06.doc
~..
...~
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 "An 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 ASHLAND 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 "An is declared to be
annexed to the City of Ashland.
SECTION 2. The land described in the attached Exhibit "An 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.
John W. Morrison, Mayor
Approved as to form:
Richard Appicello, Interim City Attorney
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EXHJBlT "A"
LEGAL DESCRJPTJON
BRAMMO MOTORSPORTS ANNEXA TJON TRACT
ASSlSSOR'S MAP NO. 39 1 E 14 A, Tax Lot J] 04
That tract of land described within Instrument No. 2005-032764 pi the Official Rccords of
Jackson County, Oregon, along with that portion of the Central Oregpn & Pacific Railroad right
of way (formerly Southern Pacific Company) as slwwn on Survey No 19703, on file in the office
of the Jackson County Surveyor, said tract lying situate within the Northeast Quarter of Section
14, Township 39 South, Range' East of the Willamene Meridian in Jackson County, Oregon,
more particularly described and bounded as follows, to wit:
Commencing at the northeast comer of the Southwest Quarter of the Northeast Quarter of Sectlon
14, Township 39 South, Range] East, of the Willamene Meridian in Jackson County, Oregon;
thence South 89044 '33" West (Deed Record South 89'45'16" Wesl). along the northerly
boundary of those parcels set forth in Volume 309, Page 375, and Vplume 335, Page 321 of the
Deed Records of said County, 126.28 feet to a 5/8 inch iron pin along the southwesterly right of
way oflnterstale Highway No.5, for the True Point of Beginning: thence continuing South
89044 '33" West, along said described parcel, 3 I J .74 feet (Deed Record South 89' 45'16" West,
311.72 feet) to a 5/8 inch iron pin at the northwest comer thereof; thence South 00002'07" West,
along the west line of said parcels, 692.15 feet (Deed Record South 00'02'16" West, 692.15 feet),
to a 5/8 inch iron pin; thence continuing South 00002'07" West, 66.41 feet to a 5/8 inch iron pin
on the northeasterly line of the J 00 foot wide deeded right of way of the Central Oregon and
Pacific Railroad (formerly Southern Pacific Railroad), as described within Volume J 6, Page 205
of the Deed Records in said County; thence continuing South OOoOTOr West, 135 63 feet to the
southwesterly deed record right of way of said Railroad; thence follOWing said southwesterly
right of way the following courses: 380.24 feet along the arc of a 2814.93 foot radllls curve to the
left, having a delta angle of 07044'22" (Chord bearing North 50024'48" West, 379.95 feet) to a
point of spiral curvature; thence along the arc of a spiral curve to the left (Chord bearing North
54'50'53" West, 90.38 feet), to a point of tangency; thence North 55 ') 1'53" West, 643.09 feet to
the north-south centerline of said Section 14; thence North 00002'32" East, leaving said
southwesterly right of way and along said Section centerline, 182.58 fed to the southwesterly line
of Ashland Business Park Subdivision; thence South 55011 '53" East, along said southwesterly
line, being parallel with and 100.00 feel al right angles to said Railroad centerline, 169.90 feet to
a 5/8 inch iron pin al the most southerly comer thereof; thence along tbe southeasterly lines of
said Subdivision the following courses: North 60002' 16" East. 298.88 feel to a 5/8 inch iron pin
(Deed Record North 60002'33" East, 298.64 feet); thence North 89058'49" East, 159.15 feello a
5/8 inch iron pin (Deed Record East, ] 59.24 feet); thence North 0604] '00" EaSL 42.30 feet 10 a
5/8 inch iron pin (Deed Record North 06050'20" East, 42,30 feel): thence North 89059'37" East,
leaving said southeasterly subdivision line, 623.10 feet to a 5/8 inch iron pin on the southwesterly
line oflnterstate 5 (Deed Record North 89059' 51" East, 622.96 feet) : thence South 26036' 56"
East, 47.56 feet (Deed Record South 2604 J '00" East, 47.61 feet) to the Point of Beginning.
Shawn Kampmann
Professional Land Surveyor
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Ashland, Oregon 97520
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S:\surveys\3.c;S-06\BRAMMO Annex3lion Legal.doc
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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 attached 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 property is initiated by tbe City of Asbland
or otberwise, Owner shaH consent and does consent to the annexation of the
property to tbe City of Ashland. Owner agrees tbis consent to annexation is
irrevocable.
Dated this~ day of ~
,2006.
Signature: ~ ----:,
, Owner
State of Oregon
)
)
)
ss:
County of Jackson
Personally appeared the above named
instrumen
OFFICiAl EAL
(I MELODYRDEKOR;;, I
NOTARY PUBUC - ORe -"
. COMMISSION NO. 372720
MY COMMISSION EXPIRES SEPTEMBER 17. '2C'j7
C R/4'9 :b<4M5.c.~nd acknowledged the foregoing
ed.
(c:\engineer\.doc)
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Planning Department, 51 WinbL. . Way, Ashland, Oregon 97520
541-488-5305 Fax: 541-552-2050 wwwashlandor.us TTY 1-800-735-2900
CITY OF
ASHLAN[
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 A ve. 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 14 A; TAX LOT: 1104.
ASHLAND CITY COUNCIL MEETING: May 16,2006, 7:00 PM, Ashland Civic Center
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<" PLANNING ACTION .2006-00366 i
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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 I;..,it the length of testimony and require that comments be restricted to the applicable criteria. Unless there is a continuance, if a participant so requests
t1 the condusion of the hearing, the record shall remain open for at least seven days after the hearing.
... ...ompliance with the American 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 rneeting. (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.
I~
City of Ashland, Oregon - Agendas And Minutes
Page 3 of7
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/ 1030 Park Streett Stated this project contradicts the Historic Preservation Proclamation presented tonight and
noted the majority of the residents 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 Agulnaga/l024 Park Street/Mayor Morrison read aloud the letter submitted to the Council, which
voiced objections to the LID.
.Wrltten testimony was submitted Into the Dubllc record.
Mayor Morrison noted that written testimony was also received from: Michael & Margaret Gerrard/l060 Park
Streett .Wrltten testimony was submitted Into the public 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 Council to proceed with this project.
Art Bullock/791 Glendower/Submltted 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.
.Wrltten materials were submitted into the Dubllc record.
Thomas Knudsen/1044 Park Streett Mayor Morrison read aloud the letter submitted to the Council, which voiced objections to
the LID.
.Written testimony was submitted Into the public record.
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 excavate if necessary.
Abstentions. Conflicts of Interest. Ex Parte Contact
Councilor Silbiger, Amarotico, 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 Deliberation
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. He 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
13.20.0S0(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 Plan and Zoning Map change
from Jackson County zoning RR-5 (Rural Residential) to City of Ashland zoning M-l (Industrial) and E-l
"7JL-c.ft.e-:C:&: If ~L) ~ b / oC C""C L~ ret
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City of Ashland, Oregon - Agendas And Minutes
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(Employment 'or an approximately 8.43 acre parcel located at the southern terminus of Jefferson Avenue,
immediately north of the railroad tracks and west of Interstate S.
Mayor Morrison read aloud the public hearing procedure for land use hearings.
Public Hearino Open: 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 several 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 City'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 100-year flood and noted the Applicant has identified approximately 30 trees to add
to the riparian area.
ADDlicant
Craig Bramscher/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/ Amarotlco m/s to extend public hearing to 9:30 p.m.
Those Wishinq to Provide Testimony
Aaron Benjamln/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 wonderful 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.
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City of Ashland, Oregon - Agendas And Minutes
Page 5 of7
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 E1 portion of the parcel, however did not want to cause delays in 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, SlIbiger 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 design 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 Pollee Department needs to be
headed. She requested strong communication on behalf of the Mayor regarding a plan and a timellne for how to move forward
with hiring a permanent pollee 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 Sllblger 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, Amarotlco,
Jackson, SlIblger 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.
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Councilor Amarotico requested he be allowed to abstain from voting on the Findings, since he did not vote on the planning action.
Councilor Jackson/Sllbiger m/s to allow Councilor Amarotico to abstain from the vote. Voice Vote: Councilor Jackson,
SlIbiger 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, Silblger and Chapman, YES. Councilor Hardesty, NO. Councilor Amarotico, Abstained. Motion
Passed 4-1.
ORDINANCES. RESOLUTIONS AND CONTRACTS
1. Reading by 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 regarding 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 ALUO 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,
Amarotico, Hartzell, Jackson, Silbiger 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 regarding 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 Lithla 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 line considered the
front lot 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
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Page 7 of7
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. Franell 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, residential 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 Lithia Way and how this area is substandard. Mr. Swales noted the
recommendations contained In the Siegel Report regarding L1thia 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 L1thla 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 L1thla Way should not have a setback.
John Fields/845 Oak Street/Commented on the difficulty in answering this Issue and stated that piece meal 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/ Amarotlco 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 SlIbiger, YES.
Councilor Jackson and Chapman, NO. Motion Passed 4-2.
Councilor Hartzell/ Hardesty m/s to continue this meeting 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, Silbiger
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 Park 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
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7/24/2006
CITY OF
ASHLAND
July 24, 2006
Craig Bramscher
7] ] 8 Highway 66
Ashland, OR 97520
RE: Planning Action #2006-00366
Dear Mr. Bramscher:
At its meeting of May ] 6, 2006, the Ashland City Council approved your request for an Annexation,
Comprehensive Plan and Zoning Map change, for the property located on Jefferson A venue, Assessor's Map # 39
IE ]4 A, Tax Lot] 104.
The Findings, Conclusions and Orders document, adopted by the Council on July 19,2006, is enclosed.
Please note the fOllow~~ems:
1 . A final 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.
Q AJI 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.ifyou have any questions.
Interim Planning Direction
Enclosure
cc: Gary Capema, 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 COMMUNITY DEVELOPMENT
20 E. Main Street
Ashland, Oregon 97520
www.ashland.or.U5
Tel: 541-4M-5305
Fax: 541-552-2059
TTY: 800-735-2900
~~,
BEFORE THE ASHLAND CITY COUNCIL
Jackson County, Oregon
May I 6, 2006
IN THE MA TTER 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 Jefferson 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 I 104 of391E I 4A is located at the southern terminus of Jefferson A venue, 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, rese.
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 inconformance 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 2006-003(
June 20th, 20tJ~
Page J of 6
E. Adequate transportation can and will be provided to and through the subject property. For the purposes of thi:
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, to 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 turn-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 industria/lands with a Residential Overlay (R-Overlay):
\shland Council Findings
PA 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.
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 buyers 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 t'
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] 6,2006, 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 2006-003(
June 20th, 20l
Page 3 of6
SECTION I. EXHIBJTS
For the purposes of reference to these Findings, the attached index of exhibits, data, and testimony wilJ 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. I 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 Residential) to City of Ashland zoning M-] (lndustrial) and E-
] (Employment) for an approximately 8.43-acre parcel meets the approval criteria for an Annexation as
described 18.] 08.
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 of the railroad tracks and south of the
Jefferson Avenue street extension wilJ be included within the M-1, Industrial Zoning District, while the
portion of the property north of Jefferson Avenue will be included within the E-I, 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. ~pecifically, 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
\shland Council Findings
PA 2006-00366
June 20th, 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, stonn 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 A venue 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 bridge 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 overaJJ area of disturbance to the riparian area. The proposed width will comprise two travel lanes
and public sidewalks, but curbside, on-street parking wiJ/ 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 I 1,2006,
the Planning Commission granted approval of a Site Review, Physical Constraints Review Pennit, Tree
Removal Pennit 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 4 1,000 square feet in size, parking areas and landscape instaJJation
SECTION 3. DECISION
3. I 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 overaJJ conclusions, and upon the proposal being subject to each of the foJJowing
conditions, the City Council approves Planning 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 foJJowing are the conditions and they are
attached to the approval:
I. That aJJ Planning Commission conditions of approval (P A2006-00366) for Site Review, Physical
Constraints Review Permit, T fee Removal Pennit and an Administrative Variance to the Site Design and
Ashland Council Findings
PA 2006-0036
June 201h, 2006
Page 50f6
Use Standards for the construction of the 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 A venue 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 the 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 annexation.
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 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
adoption of a ordinance formally annexing the property.
~
Dated:
7;jq~0
-\shland Council Findings
PA 2006-00366
June 20th, 2006
Page 6 of 6
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Selection Process for City Attorney
December 4, 2007 Primary Staff Contact:
Mayor/Administration E-Mail:
Secondary Contact:
Estimated Time:
Martha J. Bennett
bennettm@ashland.or.us
Tina Gray
gra yt@ashland.or.us
Question:
What should the process be for the Mayor and City Council to interview and select a new City
Attorney candidate?
Staff Recommendation:
The process outlined has been recommended by Bobbi Peckham, the professional recruiter hired to
conduct the search for the City Attorney position.
Background:
On July 18, 2007, the City Council selected Bobbi Peckham of Peckham and McKenney to conduct a
search for candidates for the City Attorney position. One of the things we asked Ms. Peckham to do
was to recommend a process for interviewing finalists and selecting a top candidate. We asked her to
review the process from our previous process, to consider input offered by citizens including the
Southern Oregon Coalition, and to ensure that the highest quality candidates reach the final stages of
the process.
Thirteen people applied for the City Attorney position, and Ms. Peckham said she believes that the
City will likely want to interview five or six of the applicants. The dates for the interview process are
December 14 and 15. Given this pool, Ms. Peckham has recommended the following process:
· The Mayor, two City Councilors, the City Administrator, and a member of an advisory board or
Commission (likely the Planning Commission) should interview the five or six semi-final
candidates on Friday, December 14. At this point, Ms. Peckham recommends that the names of
the candidates should remain confidential. This committee would recommend two or three
final candidates that the full Council would interview.
· On Saturday, December 15, the full City Council would interview the final candidates and
select their top choice. While she is aware of the tradition of citizen involvement, Ms.
Peckham recommends against a reception, a television interview, or involving citizens on the
interview panels. Ms. Peckham states that because this is a position that reports directly to the
Council, the most important interview is with the Council as a whole.
Council Options:
I have attached the electronic letter that the Southern Oregon Coalition presented to the City Council
on July 16, 2007, the Mayor's reply dated October 26,2007, and another electronic letter sent by the
Page 1 of2
CC-City Attorney-Process 120407.doc
r.,
CITY OF
AS H LAN D
Coalition on October 31, 2007. There are several specific requests in the letters that the Council can
consider.
Should the Council wish to have more citizen involvement than Ms. Peckham recommends, staff
believes the most logical thing to do would be to add a citizen panel to the December 15, 2007
interview process. The citizen panel could interview the candidates first, provide feedback to the
Council, and then the Council could conduct the final interviews.
Staff does not recommend a formal reception or a television interview, given the small number of
candidates and the problems encountered during the last interview process. These are options the
Council can consider, however.
Potential Motions:
I move that we follow the recommendation ofBobbi Peckham
I move that we follow the recommendation ofBobbi Peckham with the following modifications
I move that we conduct a process that
. (Please list your desired details).
Attachments:
Letters from Southern Oregon Coalition
Letter from Mayor Morrison.
Page 2 of2
CC-City Attorney-Process 120407.doc
rj.'
From: <RTemple1340@aol.com>
To: <ahardesty88@charter.net>, <bennettm@ashland.or.us>, <cate@mind.net>,
<davidchapman@ashlandhome.net>, <ericnavickas@hotmail.com>, <katejackson@opendoor.com>,
<morrisoj@ashland.or.us>, <russcity@mind.net>
Date: Mon, Ju116, 2007 10:31 AM
Subject: City Attorney Selection Process
SOUTHERN OREGON COMMUNITY COALITION
150 Myer Creek Road
Ashland, OR 97520
(541) 482-9868
Re: City Attorney Selection Process
Dear Mayor Morrison and Members of the City Council:
We write to protest that, despite the selection on June 1 st of two
highly qualified finalists for the position of Ashland City Attorney, you
subsequently decided to reopen the search and perhaps hire a search firm.
The undersigned organizations and individuals are linked by a common
interest in such good government issues as transparency, accountability, and
public involvement.
We have worked successfully with the Mayor and City Administrator to increase
the level of openness and community participation in selecting the City's
Police Chief and City Attorney. We were grateful for the Mayor's recent public
tribute to us for those efforts.
We were therefore surprised and dismayed when the process of selecting a
new City Attorney was not carried to completion.
Approximately 25 City officials and community members spent an entire day
interviewing candidates, debriefing the results and identifying two
well-qualified finalists. The two finalists were to return for
follow-up interviews with the Mayor and Council plus a televised
public interview after which viewers could contribute their opinions to
the final decision.
The decision to abort this process thus rendered the effort of a large
number of people a waste of time, and thwarted a promising step forward in
community participation in City government. Making this decision in executive
session, without any explanation to the public, exacerbated matters. These
missteps require corrective actions.
Accordingly, we call upon the Mayor and City Council to:
Morrison~gi'ty!:\t!<?~~~x~e lection ...F> ~<?cess
Page
1. Provide the public an explanation of why the agreed upon procedure
was not carried out to completion.
2. Ensure that there will be full community participation in
the renewed search and selection process.
3. Formalize the process of search, selection, and community
participation into a set of basic procedures that will be
consistently followed in both this instance, and in the future for
all positions that must be confirmed by the City Council.
4. As part of those procedures, provide that:
(a) All candidates who advance to the interview stage of the
selection process agree to allow their identi'ty and qualifications to
be known by the public.
(b) The selection process includes a two to three hour televised
interview of the finalists that is open to the public, incorporates
questions submitted by the public and allows for feedback from the
public to be submitted to the Mayor and Council.
(c) At least half of every interview panel consists of citizens
who are not elected or appointed officials nor employees of the City,
with the exception of panel(s) composed of the Mayor and Council if
desired.
We believe that following the above recommendations is the best
path to restoring public confidence regarding the current hiring
process as well as those that come up in the future, and we offer our
support and assistance to your efforts.
Sincerely,
3
Ralph Temple
ACLU, Southern Oregon Chapter
John Stromberg
Ashland Committee on Policing and Safety
Art Bullock
Ash landConstitution. org
Paul Moss
Ashland Elders
Allen Hallmark
Citizens for Peace and Justice
Venita Varga
Social Action Committee
Rogue Valley Universal Unitarian Fellowship
Steve Ryan
SOU Media Collective
Tom Dimitre<BR><BR><BR>**************************************<BR> Get a sneak
peak of the all-new AOL at http://discover.aol.com/memed/aolcom30tour</HTML>
cc: <valdous@dailytidings.com>, <bplain@dailytidings.com>, <daily@jeffnet.org>,
<editor@siskiyoudaily.com>, <jbarnard@ap.org>, <kobi@kobi5.com>, <ktvl@ktvl.com>,
<lnoble@kobi5.com>, <news@dailytidings.com>, <news@mailtribune.com>,
<news@thedailycourier.com>, <newstips@kdrv.com>. <pfattig@mailtribune.com>.
<sspecht@mailtribune.com>
OFFICE OF THE MAYOR
JOHN W. MORRISON
INCORPORATED 1874
October 26, 2007
Southern Oregon Community Coalition
C/O Ralph Temple
150 Myer Creek Road
Ashland, Oregon 97520
Dear Mr. Temple and members of the coalition:
I am writing in response to your July 16, 2007 letter to the City Council related to the City
Attorney recruitment and expressing your position on the current search and future searches
for senior executives for the City of Ashland. I understand from follow-up discussions with
me and with the City Administrator that you would like a formal written response to your
letter.
Previous Search
You have requested an explanation of why the City Council aborted the previous search when
two candidates had been selected for final interviews. Following the identification of the two
finalists, there was some delay in finding a mutually agreed upon date to hold the finalist
interviews. During that time, it also became apparent that none of the four candidates,
including the finalist, demonstrated all the qualities the Council was looking for. The Council
therefore felt it was necessary to expand the search.
As you know, we have a responsibility to protect the privacy and rights of anyone who applies
for a job with the City of Ashland. I think I speak for the entire Council that we are
disappointed that the process could not be completed and that we are not able to offer a fuller
explanation. I am grateful that several of you were able to assist us with our initial interviews,
and 1 agree that we should have let you know earlier about the Council's decision on this
process.
Next Search
In your letter, you also ask the City to "Ensure that there will be full community participation
in the renewed search and selection process." As I am sure you know, I agree that community
participation is part of selection of any senior staff person for the City. The City solicited
public input in late August about the profile of the "ideal" City Attorney candidate, and we
also asked the City's boards and commissions to share any ideas they might have. We
forwarded all of the comments we received (including a copy of your letters on this topic and
any comments that we had received during the first search) to the recruiter for the new search,
and many of the comments were incorporated into the position profile.
We have also asked Bobbi Peckham to recommend a selection process to the City Council
that will ensure that there is public involvement and that we also will have the best quality
candidates still in the process when final interviews take place. I do not know at this point
what her recommendation will be, but I expect it will be different from previous processes.
CITY HALL
20 EAST MAIN STREET
ASHLAND. OREGON 97520
WW\!'LASHLAND.OR.US
TEL 541-488-6002
FAX: 541-488-5311
TTY: 800-735-2900
Pa
From:
To:
Date:
Subject:
<RTemple1340@aol.com>
<morrisoj@ashland.or.us>, <ben nettm@ashland.or.us>
Wed, Oct 31,2007 12:28 PM
Selection of City Attorney, Etc.
SOUTHERN OREGON COMMUNITY COALITION
150 Myer Creek Road
Ashland, OR 97520
(541 ) 482-9868
October 31, 2007
Dear Mayor Morrison and Martha Bennett:
We would like to meet with you as soon as possible to discuss the
community's role in this next round of a search for a city attorney. We still have
not received a response to our letter of July 16th (see copy, below), despite
promises from Mayor Morrison.
We appreciate the strains that have been placed on you and the Council
over the need to fill this position, and the need to fill the planning director
position which you've just accomplished. We also recognize that these moves
are taking place at a time when the Council has been subjected to much
criticism, some warranted and much unwarranted. As you know, some of the undersigned
have publicly supported your efforts to achieve more efficiency and harmony.
At the same time, we are strongly committed to community participation in
city government in a manner that supports your efforts.
We are disappointed that the hiring of a new planning director was done
without community participation. We are especially concerned that you are now
proceeding with the search for a city attorney without community
participation. The city attorney advises you, city staff, and the City Council on the law,
and is therefore in a critical position to affect the constitutional rights
and civil liberties of the community.
We want to reinforce the bond that has been built between you and our
organizations after working together on a number of successful enterprises,
including most notably the selection of Terry Holderness as Chief of Police.
We continue to believe in the importance of the following objectives:
1) Finalists for Department Head, City Administrator and City
Attorney should understand and accept from the start that their
identities will be made public should they reach the stage at which
they come to Ashland for official interviews.
2) Resumes should be made public at the same time the names of the
interviewees are announced.
3) All finalists should participate in a moderated public interview
session that is carried on community access television, rebroadcast
multiple times, and which provides a means by which viewers can
submit their comments to the Mayor and Council in sufficient time to
influence the final selection.
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4) All interview panels for the finalists should include at least fifty
percent of the interviewers for the panels should be drawn as broadly
as possible from the community.
5) The interview process for City Attorney should reflect the
necessary independence of that position from the Administrative
branch of City government.
We offer these points as a way of framing the conversation and look
forward to meeting with you at a time of mutual convenience.
Best regards,
Ralph Temple
ACLU, Southern Oregon Chapter
John Stromberg
Ashland Committee on Policing and Safety
Art Bullock
AshlandConstitution.org
Paul Moss
Ashland Elders
Allen Hallmark
Citizens for Peace and Justice
Venita Varga
Social Action Committee
Rogue Valley Universal Unitarian Fellowship
Steve Ryan
SOU Media Collective
Pam Vavra
Peace House
Howie Barash
The Bellview Grange
Tom Dimitre
Copy of the letter we sent on July 16, 2007:
July 16, 2007
Re: City Attorney Selection Process
Dear Mayor Morrison and Members of the City Council:
We write to protest that, despite the selection on June 1 st of two
highly qualified finalists for the position of Ashland City Attorney, you
subsequently decided to reopen the search and perhaps hire a search firm.
lIoh6::Ms?'E~~2b:~"~T~~"~r~~9~~iL:~I~:::~-"=:::'~::'::':'"'''m''@~_'''~'''''''''@"__~@'''-'''_'~.~~'''<<~@'=_~''M~~'='
Pa
The undersigned organizations and individuals are linked by a common
interest in such good government issues as transparency, accountability, and
public involvement. We have worked successfully with the Mayor and City
Administrator to increase the level of openness and community participation in selecting
the City's Police Chief and City Attorney. We were grateful for the Mayor's
recent public tribute to us for those efforts.
We were therefore surprised and dismayed when the process of selecting a
new City Attorney was not carried to completion.
Approximately 25 City officials and community members spent an entire day
interviewing candidates, debriefing the results and identifying two well-qual
ified finalists. The two finalists were to return for
follow-up interviews with the Mayor and Council plus a televised public
interview after which viewers could contribute their opinions to
the final decision.
The decision to abort this process thus rendered the effort of a large
number of people a waste of time, and thwarted a promising step forward in
community participation in City government. Making this decision in executive
session, without any explanation to the public, exacerbated matters. These
missteps require corrective actions.
Accordingly, we call upon the Mayor and City Council to:
1, Provide the public an explanation of why the agreed upon procedure
was not carried out to completion.
2. Ensure that there will be full community participation in
the renewed search and selection process.
3. Formalize the process of search, selection, and community
participation into a set of basic procedures that will be
consistently followed in both this instance, and in the future for
all positions that must be confirmed by the City Council.
4, As part of those procedures, provide that:
(a) All candidates who advance to the interview stage of the
selection process agree to allow their identity and qualifications to
be known by the public.
(b) The selection process includes a two to three hour televised
interview of the finalists that is open to the public, incorporates
questions submitted by the public, and allows for feedback from the
public to be submitted to the Mayor and Council.
(c) At least half of every interview panel consists of citizens
who are not elected or appointed officials nor employees of the City,
with the exception of panel(s) composed of the Mayor and Council if
desired.
We believe that following the above recommendations is the best
path to restoring public confidence regarding the current hiring
process as well as those that come up in the future, and we offer our
support and assistance to your efforts.
orrison - Selection of Ci
Sincerely,
Ralph Temple
ACLU, Southern Oregon Chapter
John Stromberg
Ashland Committee on Policing and Safety
Art Bullock
Ash landConstitution. org
Paul Moss
Ashland Elders
Allen Hallmark
Citizens for Peace and Justice
Venita Varga
Social Action Committee
Rogue Valley Universal Unitarian Fellowship
Steve Ryan
SOU Media Collective
Pam Vavra
Peace House
Tom Di m itre< B R > < B R>< B R > ************************************** < B R > See what's
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CITY OF
ASHLAND
Council Communication
Appointment to Budget Committee
Meeting Date:
Department:
Approval:
~ecember 4,20070
City Recor~~~~
Martha Be:;" \
Primary Staff Contact: Barbara Christensen
488-5307 christeb@ashland.or.us
Estimated time: lO minutes
Question:
Does the Council wish to make appointments for the three vacancies on the Budget Committee
for terms ending December 201 O?
Statement:
Appointments by the Mayor and Council on three positions to the Budget Committee for a term
to expire December 31, 2010.
Background:
These vacancies occurred upon the term endings of Marty Levine and Lynn Thompson and the
resignation of James Bond. Proper notice was made in our local newspaper of the vacancies and a
deadline of November 2,2007 was indicated as when applications were due to be submitted to my
office.
The following applications were received for your consideration:
Requested reappointments and applications submitted by deadline
Marty Levine
Lynn Thompson
Applications received by deadline
Greg Lemhouse
Suzanne Frey
Applications received after deadline
Don Laws
Dennis Slattery
Cathy Shaw
Allen Douma
Council Options:
Choose among the eight applications for the three appointments.
Staff Recommendation:
None
Potential Motions:
Motion to appoint for a term to expire December 31, 2010.
Attachments:
Applications received
r.,
MARTIN H. LEVINE
CERTIFffin PUBLIC ACCOUNTANT
American Institute, California Society, and Oregon Society of Certified Public Accountants
October 16, 2007
Ms. Barbara Christensen
City Recorder
City of Ashland
20 East Main Street
AsWand, OR 97520
Jll;@!J:
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8y" 7 2001 ~
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Re: City Budget Committee
Dear Barbara:
In response to your notification of the expiration of my term as member of the Citizen's
Advisory Budget Committee for the city of Ashland, please be advised that I would like to
be considered again to serve as a member of the Committee and, as well, to continue to
serve as the Budget Committee);liaison to the Municipal Audit Committee for the city of
",-
Ashland.
-,
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Martin H. Levine, CPA
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167 East Main Street. Post Office Box 465. Ashland, Oregon 97520-0016
Voice: 541.482.780] . Fax: 54].482.5]0] . Internet: www.mhlcpa.com . e-mail: info@mhlcpa.com
Lynn K. Thompson
125 N. Main Street
Ashland, Oregon 97520
Ikthompson@bryancave.com
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8 y.- 2007 '1//
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October 30, 2007
l
, ,
Ms. Barbara Christensen
City RecorderfTreasurer
City of Ashland
Ashland, Oregon 97520
Re: Citizens Budget Committee
Dear Ms. Christensen:
This letter confirms my interest in being reappointed to the Citizens Budget
Committee. My first three year term expires on December 31, 2007.
I served as Chair of the Committee in 2007, and Vice Chair in 2006. During my
three year term I have participated on both the Social Services and Economic &
Cultural grants subcommittees and have attended several training sessions. The
learning curve associated with this service position is significant, and the City
currently faces a challenging budgeting environment. I would welcome the
opportunity to continue to apply and expand my knowledge of the City's
budgeting process during the coming years.
Thank you for considering me.
CITY OF
ASHLAND
APPLICA TION FOR APPOINTMENT TO
CITY COMMISSION/COMMITTEE
Please type or print answers to the following questions and submit to the City Recorder at
City Hall, 20 E Main Street, or email christeb@ashland.or.us. If you have any questions,
please feel free to contact the City Recorder at 488-5307. Attach additionalt~~~
necessary. ~J1V!lIJ::JiiJ
Name Gree A. Lcmhouse OCT 1 9 2007 I
By.
Requesting to serve on: Citizens Bud2:et Committee (Commission/Committee) . ----------__________
Address 2850 Wed2:ewood Ln
Ashland. OR 97520
Occupation Police Ser2:eant City of Medford Phone: Home 482-2507
Work 941-2438
Email 2:alemhouse{tV.yahoo.com
Fax
1. Education Back2:round
What schools have you attended?
Ore2:on State University
What degrees do you hold?
BA - Sociolo2:V Minor - Political Science
What additional training or education have you had that would apply to this position?
I currently hold a Supervisors Certification from the State of Ore2:on and have
extensive experience in leadin2: individuals to achievin2: 2:oals.
2. Related Experience
What prior work experience have you had that would help you if you were appointed to
this position?
As a supervisor. pr02:ram coordinator and chairman of various committees. I have
direct experience in mana2:in2: and creatin2: effective bud2:ets. In addition. I feel my
experience as a police officer over the past 12 years and a supervisor for the past 5
has 2:iven me the ability to make critical and difficult decisions in a timely manner.
The ability to critically analyze information and make difficult decisions is crucial
for individuals who are responsible for creatin2:. approvin2: and implementin2:
bud2:ets
Do you feel it would be advantageous for you to have further training in this field, such
as attending conferences or seminars? Why? I feel that I have the requisite abilities for
the iob and will be able to learn further by bein2: part of the committee and throu2:h
appropriate preparation.
~~,
3. Interests
Why are you applying for this position? It is very important for me to serve my
community in any way that can brine positive chanee. Currently. our city is
experience a number of fiscal challenees. I feel my dedication. work ethic and
abilities would be a positive addition to the eroup and assist them in addressine:
these issues in a responsible and efficient manner.
4. Availability
Are you available to attend special meetings, in addition to the regularly scheduled
meetings? Do you prefer day or evening meetings? I work the weekends. so I am
available for any meetine times durine the week.
5. Additional Information
How long have you lived in this community? I orieinally moved to Ashland in 1995.
Please use the space below to summarize any additional qualifications you have for this
position
I believe it is the duty of all citizens to be involved in helpine their community in any
way that feel they can. Currently. there is ereat animosity amone the citizenry and
a eeneral mistrust of city eovernment. It is my hope to not only contribute my skills.
experiences and abilities to help the city shepherd a responsible and efficient budeet.
but also to help build a bridee between the city eovernment and the members of the
community. I feel I could do this by communicatine openly with other community
members and educate them about the city's budeet and fiscal responsibilities and
challenees. Thank you for your consideration.
October 20. 2007
Date
Signature
~~,
Ms. Barbara Christensen
Ashland City Recorder
20 East Main
Ashland, OR 97520
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October 12, 2007
Dear Ms. Christensen,
Attached please find my application for the Ashland Citizen's Budget Committee.
I would like the opportunity to serve and make a positive contribution. It also
appears that perhaps my background and professional interests may be well-
suited to the role of this committee.
I thank you for your consideration.
Sincerely,
Suzanne K. Frey
1042 Oak Knoll Drive
Ashland, OR 997520
CITY OF
ASHLAND
APPLICA TION FOR APPOINTMENT TO
CITY COMMISSION/COMMITTEE
Please type or print answers to the following questions and submit to the City Recorder at
City Hall, 20 E Main Street, or email christeb@ashland.or.us. If you have any questions,
please feel free to contact the City Recorder at 488-5307. Attach additional sheets if
necessary.
Name
Suzanne K Frey
Requesting to serve on: Citizens' Budget Committee
( Commission/Committee)
Address
1042 Oak Knoll Drive. Ashland OR 97520
Occupation Behavioral Health Administrator. retired Phone: Home 488-5867
Work
Email
Fax
1. Education Back2:round
What schools have you attended?
University of Oregon. Ohio State University
What degrees do you hold?
M.A. in Psychology
What additional training or education have you had that would apply to this position?
Considerable management training. with emphasis on planning. program goals. program design.
budget construction & monitoring. and program evaluation.
2. Related Experience
What prior work experience have you had that would help you if you were appointed to
this position?
Though my field is behavioral health, most of my work experience has been managerial or
administrative, including the following positions:
· Education Director, State of Nevada Mental Hygiene Division
· Unit Manager, Jackson County Mental Health, Medford, Oregon
· Director of Human Services, San Juan County, Washington
· Executive Director, Mat-Su Recovery Center, Was ilia, Alaska
· Supervisor of Program Certification, State of Alaska, ADA
· Management Consultant for behavioral health programs, State of Alaska
· Administrative Surveyor, for CARF Accreditation Commission.
Do you feel it would be advantageous for you to have further training in this field, such
as attending conferences or seminars? Why?
The more you learn and improve your skills. the more capable you are of doing a better iob. I
would be happy to take advantage of further training relevant to the Budget Committee. if such
became available.
rj.'
3. Interests
Why are you applying for this position?
This fits my background and professional interests. I would hope to be able to make a positive
contribution. If appointed, and after becoming more familiar with the city's budget process, I
may be able to make suggestions that would be helpful to the process.
4. Availability
Are you available to attend special meetings, in addition to the regularly scheduled
meetings? Do you prefer day or evening meetings?
Yes, I can do either.
5. Additional Information
How long have you lived in this community? 14 years (1974-1984 and 2003-present)
Please use the space below to summarize any additional qualifications you have for this
position
· Budgets & Fiscal Management: considerable experience with budget planning,
managing and reporting, familiar with basic financial statements, multi-source funding,
grants, and provided board training on monitoring of financial statements.
· Grants: one of the top behavioral health grant writers and managers in Alaska, chair of
State grant review committees, consultant on grants management & accountability.
· Continuous Quality Improvement: As an administrative surveyor for CARF, I led on-site
surveys for organizations seeking national accreditation, evaluating managerial systems
for best practice standards, and providing consultation for continuous quality
improvement.
· Work background has included a variety of organizations, including state and local
governmental offices and agencies, private for profit, and non-profit organizations.
October 12,2007
Date
Suzanne K. Frey
Signature
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From:
To:
Date:
Subject:
"Don Laws" <donlaws@mind.net>
<christeb@ashland.or.us>
11/2/2007 5:35:55 PM
Budget Committee Application
Dear City Recorder,
I would like to renew by participation in city affairs. I think
I still have much to contribute to the city I love and owe it what I can
give. You know me well. I am experienced, bring considerable institutional
and policy memory with me, a moderate liberal, and have followed city
government avidly since I left the Council in 2004. For more information
and ideas call me at 482-1845 or e-mail meatdonlaws@mind.net.
Thank you for your consideration.
Don Laws
cc:
<donlaws@mind.net>
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CITY OF
ASHLAND
APPLICATION FOR APPOINTMENT TO
CITY COMMISSION/COMMITTEE
Please type or print answers to the following questions and submit to the City Recorder at
City Hall, 20 E Main Street, or email christeb@ashland.or.us. If you have any questions,
please feel free to contact the City Recorder at 488-5307. Attach additional sheets if
necessary .
Name Don Laws
Requesting to serve on: Citizens Budget Committee
(Commission/Committee)
Address: 968 Hillview Dr., Ashland
Occupation_Retired college professor
Home 482-1845
Phone:
Work
Email_donlaws@mind.net
Fax
1. Education Backe:round
What schools have you attended? Ashland High School, Willamette U. U.C.L.A.,
University of Oregon
What degrees do you hold?
Ph.D
What additional training or education have you had that would apply to this position?
_Taught and practiced political science and public administration for more than forty
years. Council and Budget Committee member_for thirty
years
2. Related Experience
What prior work experience have you had that would help you if you were appointed to
this position?
_Management Analyst for State of Oregon
Do you feel it would be advantageous for you to have further training in this field, such
as attending conferences or seminars? Why? Especially when budget law changes.
r4.1
3. Interests
Why are you applying for this position? I would love to be once again able to
contribute to the world's best community
4. Availability
Are you available to attend special meetings, in addition to the regularly scheduled
meetings? Do you prefer day or evening meetings? Yes, either
5. Additional Information
How long have you lived in this community?
present
1949-55 and 1968 to
Please use the space below to summarize any additional qualifications you have for this
position
November 2, 2007
Date
Signature Don Laws via e-mail
rA'
November 6, 2007
Mayor John Morrison
20 E. Main St.
Ashland, OR 97520
Dear Mayor Morrison and City Counselors:
Attached is my application for the Budget Committee. I have given the matter a great
deal of thought and I understand the important charge of the committee. I feel I would
add a positive and knowledgeable voice to the committee.
I ~~~ou for your consideration.
... \
I
Sil)cerel~ '
L----I- / 7
Den;;is 81 ttery, CPA, MBA .
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3. Interests
Why are you applying for this position? _I want to help. 1 think we are at an
important juncture in Ashland and how we deal with the future by way of community
spending issues is vitally important.
4. Availability
Are you available to attend special meetings, in addition to the regularly scheduled
meetings? Do you prefer day or evening meetings? 1 am available for special meeting
with the only real exception being during my class scheduled times. 1 prefer evenings.
5. Additional Information
How long have you lived in this community? Since 1977
Please use the space below to summarize any additional qualifications you have for this
position
./'
,.
/ / /~ !07
, '
Date
CITY OF
ASHLAND
APPLICATION FOR APPOINTMENT TO
CITY COMMISSION/COMMITTEE
Please type or print answers to the following questions and submit to the City Recorder at
City Hall, 20 E Main Street, or email christeb@ashland.oT.us. If you have any questions,
please feel free to contact the City Recorder at 488-5307. Attach additional sheets if
necessary .
Name_Dennis Slattery
Requesting to serve on:
Budget Committee
( Commission/Committee)
1405 Pinecrest Ashland, OR
Address
Occupation_Assistant Professor
Phone: Home 488-0382
Work 552-6491
Email_ slatterd@sou.edu_
Fax
1. Education Backl!round
What schools have you attended?
_Southern Oregon University
What degrees do you hold?
BS Business Adminsitration
Masters of Business Administration
What additional training or education have you had that would apply to this position?
Certified Public Accountant
2. Related Experience
What prior work experience have you had that would help you if you were appointed to
this position?
_I have held a number of positions with organizations over the years. In these
organizations I have been instrumental in building and deciding budgets. These
organizations have spanned the public sector, not-for-profits, and the public sector. I
have over 30 years of management experience and I have been in private practice as a
CPA as well as teaching the subject at SOU.
Do you feel it would be advantageous for you to have further training in this field, such
as attending conferences or seminars? Why? _In the field of budgeting and planning
I think more education is always good. I do as part of the certification process for
accounting take 12 - 20 hours of continuing professional education every year.
12/30/2005 22:28
15414821427
SENATOR BATES
PAGE 01/03
JI};>@~
NOv :zr~~
8 r:........1 J ?001 '1
~~
~~
~~
~~
~~
~~
November 9, 2007
Honorable Mayor Morrison,
Please accept this letter of intent to be appointed to and serve on Ashland's Citizens
Budget Committee.
As you may note on my application, I've had 15 years experience as a fonner budget
committee mcmber/Mayor and would be interested in contributing to the budget process
once more.
Further, it would be nice to serve on the budget committee while you are still in office.
Thank you for your consideration.
~
Cathy Shaw
',j, ,
12/30/2005 22:28
15414821427
SENATOR BATES
PAGE 02/03
CITY OF
ASHLAND
APPLICATION FOR APPOINTMENT TO I
CITY COMMISSION/COMMITTEE ~~@
Please type or print answers to the following questions and submit to the City Recordt1t;t ~{{~
City Halll 20 E Main Street, or email Qb.tisteb@ashJand.or.~. If you have any ques~s, I J ,
please feel free to contact the City Recorder at 488-5307. Attach additional sheefsif.... <'QQI ~
necessary - ........ f//
....
....
....
....
Name Catherine M. Shaw ......
Requesting to serve on: XCitizcns Budget Committee_ (Commission/Committee)
Address 886 Oak Street Ashland
I ~ ~ r : . \', ". ~ ,~] ..
Occupation_Author/Political' CCll'\sultant:..::, ; Phbne:' Home.::.. 4829843
Work
Email_cathyshaw@mind.net
Fax 482 1427
1. Education Back.2:roun~d .
What schools have you attended? _DC Davis
What degrees do you ho,]d? . ---,...BS
~ ' .
What additional training or educati.0n have you had that would apply to this position?
_1.5 years previous experiencetotiAshla11d Budget:Cornmittee_
" , ": . r. . . ; \ . ~ ~'. ., ~ '.~'
2. Related EXDerience
What prior work expedence,ba~e.you had; that would help you if you were appointed to
this position?
Mayor; small-business o~ner, Chief of St!aff to Dr. Alan Bates in Oregon Legislature
"I:. ~;: ~
Do you feel it would be advantageous for you to haye, further training in this field, such
as attending conferences or seminars? Why? --..:.!No;, >' ....
r~'
12/30/2005 22:28
15414821427
SENATOR BATES
PAGE 03/03
3. Interests
Why are you applying for this position?
~..
... ~ jj,
III.~@
Jttoy ~<rfb
sJ: /,J ~
I thought it might be helpful to have a member with previous bndget experience. """'" <'l?l?l 4
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4. Availability
Are you available to attend special meetings, in addition to the regularly scheduled
meetings? Do you prefer day or evening meetings? _Yes, to a point; either.
5. Additional Information
flow long have you lived in this community?
30 years
Please use the space below to summarize any additional qualifications you have for this
position.
'I. I
" I"
;.
_November 9, 2007
Date
~Jr1~
Sigllature ~
CITY OF
ASHLAND
APPLICATION FOR APPOINTMENT TO
CITY COMMISSION/COMMITTEE
Please type or print answers to the following questions and submit to the City ReCOrd;jr
City Hall, 20 E Main Street, or email christeb((i)ashland.or.us. If you have any questions, ~~~ .
please feel free to contact the City Recorder at 488-5307. Attach additional sheets . ~~~.
necessary. NOy ~ ~
Name jt /(oQ.oV \JOl.l,INIt1. S \.......~ ;> lUUI ~
Requesting In serve nn: _8 u. d a e t ({;amffl; ,,; oRlC omm i lice) .........
Address 8'3 (;-i'Q..N\\ bt ~,.. A\.~J "
occupation~~ n ~"tJoJ^1.eN t Phone: Home I{Pr-~f 77
, Work
Email
Fax
.JolKl~ !+O,.otINS }?We.J,J \r:J/~ IliA
\3 &...(J'l\J~:..rd ':k.. Q~~
GJvt~
1. Education Backeround
What schools have you attended?
What degrees do you hold?
Wha~dditional train' ng or education have yo had that w uld apply to this os if n? \
9.~'" ~~~~
t.l-'\<l I"'D'~ J ~ ('o\'ro\j,~ ~J--"u.J""V
2. Related Experience
What prior work experience have you had that would help you if you were appointed to
this POSi~r~tL/LCl k A ~ ~~d /~ f{~ (
Do you feel it would be advantageous for you to have further ~ing in this field, such
as attending conferences or seminars? Why? y € ~ t. re o..."~ M<JA.\ r
AJtAltMW i (C'~ ~ 'ttJ d ~~e(~ J'~
o ~~ \J W[A '- ,r.1I
._~
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",,I, :~
Please consider my appointment to the Ashland Budget Committee. -f/" <~ @ ~
Throughout my professional career have been involved in and responsible for ~ J: 4'Oy -2 > ;&>lb>~
development and management of business start-ups, corporate business units and m~! ?QQ? 1
recently running a multi-billion dollar state Agency (see below). "" ff
",
"..
'..
As a past member of the Ashland Planning Commission (which I had to leave to accept ......
an appointment by the Governor as State Medicaid Director) and as an avid TV viewer of
the Commission, Council and Budget Committee for the last 6 years I have both learned a
lot and increased my desire to serve on the Budget Committee.
Professional Positions
Allen Douma, MD
Oregon State Medicaid Director managed and was responsible for a state agency with a 4
billion dollar budget. 2006-2007
Health Communications and Business Development Consultant, 1999 to present.
Included responsibility, for two years, for a small to mid-sized company's budget.
CEO, COO and Co-founder, Health ResponseAbility Systems Inc., 1993-99, an online
health communications company which, among other things, built the AOL Health
Channel.
Medical Director, Health Benefits Division, The Hartford Insurance Company, 1992-93.
Member of team of four that developed a multi-billion dollar new business within a large
corporation.
Medical Director, Disability Services, The Travelers Insurance Company, 1991-92.
Medical Director and Informed Care Product Manager, The Center for Corporate Health-
a subsidiary of The Travelers Insurance Company, 1989-91. Built and managed a new
business within a large corporation.
Co-founder and Medical Director, Options & Choices (a health communication
company), 1986-89. As member ofthe senior team of a start-up company shared
responsibility for all aspects of success including budget management.
Associate Professor of Continuing Medical Education, The George Washington
University Medical Center, 1983-86. Developed and ran a new business with the Medical
Center.
Medical Editor and New Product Development Manager, The Medical Tribune and
Hospital Tribune (medical professional newspapers), 1982-83.
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Ashland Home Net Cable Television Franchise
December 4, 2007 Primary Staff Contact: Joseph Franell, Dir. ofIT
Information Technolo?y E-Mail: franellj@ashland.or.us
Legal Secondary Contact: Richard Appicello
City Administrat Estimated Time: 15 minutes
Question: Does the Council wish to approve a video (Cable Television) franchise for Ashland Home
Net and Ashland TV?
Staff Recommendation: By motion action, authorize the execution of the franchise with Ashland
Home Net.
Background: During the May 1, 2006, council meeting, the Council voted to discontinue cable TV
services through the Ashland Fiber Network. In an effort to; complete that transition in a timely
manner, maintain competition in the Ashland marketplace, stabilize the AFN internet customer base,
and keep cable TV prices low, the City of Ashland decided to pursue selection of a third party to
provide CATV utilizing the city owned network. During the September 19,2006, Council Meeting,
the City approved a lease of the video headend to Gary Nelson of Ashland Home Net. A subsequent
review of the Ashland Municipal Code revealed that even though Mr. Nelson does not own or manage
any facilities in the public right of way, the Ashland Municipal Code does require him to have a
franchise because of his provision of cable television services within the City limits. As a result, in
accordance with the requirements in AMC, Chapter 16, Mr. Nelson has applied for a franchise and has
paid the appropriate application fee to the City.
Related City Policies: AMC, Chapter 16, Telecommunications
Resolution No. 99-70, A Resolution Adopting Fees for Telecommunication Registration, Applications,
Construction, Franchises, and Other Services Under Ashland Municipal Code Title 16.
Council Options: Authorize or deny the execution of the franchise with Ashland Home Net
Potential Motions: I move that the Council authorize the execution of the franchise with Ashlar1
Home Net.
Attachments: Franchise Agreement, Application for a Franchise, Copy of Check Made in Payment
for Application Fee.
Page 1 of 1
Council Communication AHN Franchise.doc
r.l'
CABLE TELEVISION SYSTEM FRANCHISE AGREEMENT
Cable Services Franchise Agreement ("agreement") dated December _,2007, between the City of
Ashland and Ashland Home Net (AHN), ("Grantee").
Recitals:
A. AHN is a cable service provider in the City of Ashland and has requested a franchise to,
operate and maintain a cable television system within the City of Ashland;
B. City is authorized to grant one or more nonexclusive franchises to construct, operate, and
maintain a cable television system within the city limits; and
C. Grantee is willing to accept this agreement and to abide by the terms and conditions;
City and Grantee agree:
1. Definitions. For the purposes of this agreement, the following terms, phrases, words and their
derivations shall have the meaning set forth below. When not inconsistent with the context, words used in
the present tense include the future, words in the plural include the singular, and words in the singular
include the plural. Words not defined shall be given their common and ordinary meaning. The word "shall"
is always mandatory and not merely directory.
1.1. Access means the availability for noncommercial use by various agencies, institutions,
organizations, groups and individuals in the community, including City and its designees, of the Cable
System to acquire, create, receive, and distribute video, Cable Service, and signals as permitted under
applicable law, including, but not limited to:
1.1.1. Public Access which means Access where organizations, groups or individual
members of the general public, on a nondiscriminatory basis, are the primary users;
1.1.2. Educational Access which means Access where schools and educational
institutions are the primary users of programming and service
1.1.3. Governmental Access which means Access where governmental institutions
are the primary users of programming and service; and
1.1.4. PEG Access which means Public Access, Educational Access, and
Governmental Access, collectively.
1.2. Access Channel means any Channel, or portion of any Channel, designated for non-
commercial Access purposes or otherwise made available to facilitate or transmit Access programming or
service.
1.3. Basic Service means any service tier which includes the retransmission of local television
broadcast signals and PEG Access Channels.
1.4. Cable Acts means the Cable Communications Policy Act of 1984 and the Cable Television
Consumer Protection and Competition Act of 1992 and any amendments, including those contained in the
Telecommunications Act of 1996.
1.5. Cable Operator means any Person or group of Persons, including Grantee, who provide
Cable Service over a Cable System and directly owns a significant interest in such Cable System, or who
otherwise control or are responsible for, through any arrangement, the management and operation of
such a Cable System.
1
1.6. Cable Service means the one-way transmission to Subscribers of video programming or
other programming service and Subscriber interaction, if any, which is required for the selection or use of
such video programming or other programming service.
1.7. Cable System means a facility, consisting of a set of dosed transm ission paths and
associated signal generation, reception, and control equipment that is designed to provide Cable Service
which includes video programming and which is provided to multiple Subscribers within a community, but
such term does not include (1) a facility that serves only to retransmit the television signals of one or more
television broadcast stations; (2) a facility that serves Subscribers without using any public right-of-way;
(3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the
federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a Cable
System (other than for purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in
the transmission of video programming directly to Subscribers, unless the extent of such use is solely to
provide interactive on-demand service; (4) an open video system that complies with federal statutes; or
(5) any facilities of any electric utility used solely for operating its electric utility systems.
1.8. Channel means a portion of the electromagnetic frequency spectrum which is used in a
cable system and which is capable of delivering video signal whether in an analog or digital format. This
definition does not restrict the use of any channel to the transmission of analog video signals.
1.9. Downstream means the transmission from the Headend to remote points on the Cable
System.
1.10. FCC means the Federal Communications Commission.
1.11. Franchise Area means the area within the city limits of Ashland as they now exist or as
they may be amended in the future.
1.12. Gross_Revenues means all revenues of Grantee, in any way derived from the operation of
the Cable System to provide Cable Services in the Agreement Area. Gross Revenues include, by way of
illustration and not limitation, monthly fees charged Subscribers for any Basic, optional, premium, per-
channel, or per-program service; installation, disconnection, reconnection, and change-in-service fees;
leased channel fees; late fees and administrative fees; revenues from rentals or sales of converters or
other equipment; advertising sales revenues; revenues from program guides; and revenues from home
shopping channels. The term "Gross Revenues" encompasses any and all revenue of any kind, form or
nature including franchise fees passed through by Grantee to Subscribers, except that the term does not
include sales taxes imposed by law on Subscribers that the Grantee is obligated to collect. With the
exception of recovered bad debt, "Gross Revenues" shall not include bad debt. Gross Revenues shall not
include: 1. Any taxes, fee or assessment of general applicability collected by the Grantee from
subscribers for pass-through to a government agency, including, the FCC User Fee; and 2. Any PEG or 1-
Net amounts recovered from Subscribers.
1.13. Headend means a facility for signal reception and dissemination on a Cable System,
including cables, antennas, wires, satellite dishes, monitors, switches, modulators, processors and all
other related equipment and facilities.
1.14. Interconnection means the provision by Grantee of technical, engineering, physical, and
all other necessary components to maintain a physical linking of Grantee's Cable System and Cable
Service or any designated Channel or signal pathway with neighboring Cable Systems, so that Cable
Service of technically adequate quality may be sent to, and received from, other systems in accordance
with this agreement.
1.15. Leased Access means the use of Channel capacity designated for commercial use by
Persons unaffiliated with Grantee as defined in Section 612 of the Cable Act.
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1.16. Origination Point means a location where Public, Educational, or Governmental use
programming is delivered to the Grantee for Upstream transmission.
1.17. Person means any individual, natural Person, sole proprietorship, partnership,
association, or corporation, or any other form of entity or organization.
1.18. Public Rights of Way include, but are not limited to, streets, roads, highways, bridges,
alleys, sidewalks, trails, paths, public utility easements, and all other public ways, including the
subsurface under and air space over these areas, excluding parks and parkways, but only to the extent of
City's right, title, interest, or authority to grant a franchise to occupy and use such streets and easements
for a Cable System and only to the extent that sufficient capacity exists for a Cable System. "Public rights
of way" shall also include any easement granted to or owned by City or County and acquired, established,
dedicated, or devoted for public utility purposes.
1.19. Quarterly, or quarter, means the standard calendar periods of January 1 - March 31,
April 1 - June 30, July 1 - September 30, and October 1 - December 31, unless otherwise specified in
this agreement.
1.20. RVTV means Rogue Valley Community Television as administered by the Extended
Campus Program of Southern Oregon University.
1.21. School means any accredited educational institution, public or private, including, but not
limited to, primary and secondary schools, and colleges and universities.
1.22. Street means each of the following which have been dedicated to the public, or which may
be dedicated to the public in the future, and maintained under public authority or by others and located
within the Franchise Area: Streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way and other public ways.
1.23. Subscriber means any Person who elects to subscribe to, for any purpose, Cable Service
provided by Grantee by means of, or in connection with, the Cable System, and whose premises are
physically wired and lawfully activated to receive Cable Service from Grantee's Cable System.
1.23.1. Commercial Subscriber means any Subscriber other than a Residential
Subscriber.
1.23.2. Residential Subscriber means any Person who contracts individually for Cable
Service to a residence, whether that residence is a single family unit or located in a multiple dwelling unit.
1.24. Telecommunications, Telecommunications Facilities and Telecommunications
Services have the same meaning as set forth in Ashland Municipal Code Title 16.
1.25. Upstream means the carrying of a transmission to the Headend from remote points on the
Cable System.
2. Grant of Franchise.
2.1 Grant.
2.1.1. City grants to Grantee in the public interest a nonexclusive and revocable
authorization to make lawful use of the Streets and Public Rights of Way within the Franchise Area to
construct, operate, maintain, reconstruct, and repair a Cable System for the purpose of providing Cable
Services.
2.1.2. This agreement is intended to convey limited rights and interests only as to those
Streets and Public Rights of Way, in which the City has an actual interest. It is not a warranty of title or
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interest in any right-of-way, it does not provide the Grantee any interest in any particular location within
the right-of-way, and it does not confer rights other than as expressly provided in this agreement. This
agreement does not deprive the City of any powers, rights, or privileges it now has, or may acquire in the
future, to use, perform work on, or regulate the use and control of the City's Streets covered by this
agreement, including without limitation, the right to perform work on its roadways, rights-of-way, or
appurtenant drainage facilities, including constructing, altering, paving, widening, grading, or excavating.
2.1.3. This agreement is subject to the general lawful police power of City affecting
matters of local government concern and not merely existing contractual rights of Grantee. Nothing in this
agreement shall be deemed to waive the requirements of the other codes and ordinances of general
applicability enacted, or which may be enacted in the future, by City.
2.1.4. This agreement authorizes Grantee to engage in providing Cable Service, as that
term is defined in 47 U.S.C. Sec. 522(6) as amended. This agreement shall not be interpreted to prevent
the City from imposing lawful additional conditions, including additional compensation conditions for use
of the rights-of-way should Grantee provide service other than Cable Service so long as similar conditions
are also imposed on other similarly situated rights-of-way users. Nothing in this agreement shall be
interpreted to prevent Grantee from challenging the lawfulness or enforceability of any provisions of
applicable law.
2.1.5. Grantee promises and guarantees as a condition of exercising the privileges
granted by this agreement, that any joint venture or partner of the Grantee directly involved in the offering
of Cable Service in the Franchise Area, or directly involved in the management or operation of the Cable
System in the Franchise Area, will also comply with the terms and conditions of this agreement.
2.2. Use of Public Streets and Ways. Subject to City's supervision and control, Grantee may
erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and
along the public Streets, including rights-of-way and public utility easements within the Franchise Area,
such wires, cables, conductors, ducts, conduits, vaults, amplifiers, pedestals, attachments, and other
property and equipment as are necessary and appurtenant to the operation of a Cable System for
the provision of Cable Service within the Franchise Area. Grantee shall comply with all applicable
construction codes, laws, ordinances, regulations and procedures now in effect or enacted in the future,
and must obtain any and all necessary permits from the appropriate agencies of City prior to commencing
any construction activities. Grantee, through this agreement, is granted extensive and valuable rights to
operate its Cable System for profit using City's public rights-of-way and public utility easements within the
Franchise Area in compliance with all applicable City construction codes and procedures. As trustee for
the public, City is entitled to fair compensation to be paid for these valuable rights throughout the term of
this agreement.
2.3. Duration. The term of this agreement and all rights, privileges, obligations, and restrictions
pertaining to this agreement shall be from the effective date of this agreement through June 30,2012,
unless extended or terminated sooner as provided below.
2.4. Effective Date. The effective date of this agreement shall be December 5,2007, unless
Grantee fails to file an unconditional written acceptance of this agreement and post any required bond or
deposit within 45 days from Grantee's written acceptance of this agreement. In either event, this
agreement shall be null and void, and any and all rights of Grantee to own or operate a Cable System
within the Franchise Area under this agreement shall be of no force or effect.
2.5. Franchise Nonexclusive. This agreement shall be nonexclusive, and is subject to all prior
rights, interests, agreements, permits, easements or licenses granted by City to any Person to use any
street, right-of-way, easements not otherwise restricted, or property for any purpose whatsoever,
including the right of City to use same for any purpose it deems fit, including the same or similar purposes
allowed Grantee. City may, at any time, grant authorization to use the public rights-of-way for any
purpose not incompatible with Grantee's authority under this agreement, and for such additional
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Franchises for Cable Systems as City deems appropriate, upon substantially equivalent terms and
conditions to those contained in this agreement as City deems appropriate.
2.6. Grant of Other Franchises.
2.6.1. In the event the City enters into a franchise or other agreement of any kind with
any other Person or entity other than the Grantee to enter into the City's public ways for the purpose of
constructing or operating a Cable System, or providing cable Service to any part of the Service Area in
which the Grantee is actually providing Cable Service under the terms and conditions of this agreement,
or is required to extend Cable Service under the provisions of section 11.2, 11.2, the material provisions
of such other franchise or agreement shall be reasonably comparable to those contained in this
agreement, in order that one operator not be granted an unfair competitive advantage over another.
2.6.2. If City grants a Franchise to a third party for service to an area that Grantee is not
actually serving or required to extend service to, and which has material provisions that are not
reasonably comparable to those contained in this agreement, City shall offer Grantee a franchise to serve
the same area under terms and conditions that are reasonably comparable to those set forth in the
franchise agreement entered into with the third party.
2.7. Police Powers. Grantee's rights under this agreement are subject to the lawful police
powers of City to adopt and enforce ordinances necessary to the safety, health, and welfare of the
general public and Grantee agrees to comply with all applicable laws and ordinances enacted, or enacted
in the future, by City or any other legally-constituted governmental unit having lawful jurisdiction over the
subject matter of the enactment.
2.8. Relations to Other Provisions of Law. This agreement and all rights and privileges granted
under it are subject to, and the Grantee must exercise all rights in accordance with, applicable law as
amended over the Franchise term. This agreement is a contract, subject to the City's exercise of its police
and other regulatory powers and such applicable law. This agreement does not confer rights or
immunities upon the Grantee other than as expressly provided in the agreement. In cases of conflict
between this agreement and any ordinance of general application enacted pursuant to the City's police
power, the ordinance shall govern. Nothing in this agreement, however, shall be interpreted to prevent
Grantee from challenging the lawfulness or enforceability of any provision of applicable law. The
Franchise issued and the Franchise fee paid are not in lieu of any other required permit, authorization,
fee, charge, or tax, unless expressly stated in this agreement.
2.8.1. Without limiting the foregoing, by way of example and not limitation, this agreement
shall not include or be a substitute for:
2.8.1.1. Any other permit or authorization required for the privilege of transacting
and carrying on a business within the City that may be required by the ordinances and laws of the City.
2.8.1.2. Any permit, agreement or authorization required in connection with
operations on or in public streets or property, including by way of example and not limitation, street cut
permits; or
2.8.1.3. Any permits or agreements for occupying any other property of the City
or private entities to which access is not specifically granted by this Agreement including, without
limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or
railroad easements, whether owned by the City or a private entity.
2.8.2. This agreement does not authorize Grantee to provide Telecommunications
Services, or to construct, operate or maintain Telecommunications Facilities. This Agreement is not a bar
to imposition of any conditions on Grantee with respect to Telecommunications, whether-similar, different
or the same as conditions specified herein. This Agreement does not relieve Grantee of its obligations to
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obtain an authorization to provide Telecommunications Services, or to construct, operate or maintain
Telecommunications Facilities, or relieve Grantee of its obligation to comply with any such authorizations.
2.9. Effect of Acceptance. By accepting the agreement the Grantee: (1) acknowledges and
accepts the City's legal right to issue and enforce the agreement; (2) agrees that it will not oppose the
City's intervening or other participation in any proceeding affecting the Cable System; (3) accepts and
agrees to comply with each and every provision of this agreement; and (4) agrees that the agreement
was granted pursuant to processes and procedures consistent with applicable law, and that it will not
raise any claim to the contrary.
2.10. Non-Discriminatory Access to Internet Access System. Grantee shall provide non-
discriminatory access to the Grantee's Internet Access System for internet service providers, whether or
not such providers are affiliated with Grantee. Grantee may limit such access only in terms of requiring
such providers to utilize the network and technological standards developed by Grantee.
3. FRANCHISE FEE AND FINANCIAL CONTROLS.
3.1. Franchise Fees. As compensation for the benefits and privileges granted under this
agreement, and in consideration of permission to use City's Streets, Grantee shall pay as a Franchise fee
to City, throughout the duration of this agreement, an amount equal to five percent of Grantee's Gross
Revenues including the franchise fee itself, derived from the operation of the Cable System to provide
Cable Service in the Franchise Area. Accrual of such Franchise fees shall commence as of the effective
date of this agreement. The Franchise fees are in addition to all other fees, assessments, taxes, or
payments of general applicability that the Grantee may be required to pay under any federal, state, or
local law to the extent not inconsistent with applicable law. This agreement and the Franchise fees are
not in lieu of any other generally applicable required permit, authorization, fee, charge, or tax.
In the event any law or valid rule or regulation applicable to this franchise limits franchise fees
below the five percent of gross revenues, the Grantee agrees to and shall pay the maximum permissible
amount and, if such law or valid rule or regulation is later repealed or amended to allow a higher
permissible amount, then the Grantee shall pay the higher amount up to the maximum allowable by law,
not to exceed five percent during all affected time periods.
3.2. Payments. Grantee's Franchise fee payments to City shall be computed quarterly. Each
quarterly payment shall be due and made available to City no later than 30 days after the last day of the
preceding quarter.
3.3. Acceptance of Payment and Recomputation. No acceptance of any payment shall be
construed as an accord by City that the amount paid is, in fact, the correct amount, nor shall any
acceptance of payments be construed as a release of any claim City may have for further or additional
sums payable or for the performance of any other obligation of Grantee.
3.4. Quarterly Franchise Fee Reports. Each payment shall be accompanied by a written report
to City containing an accurate statement in summarized form, as well as in detail, and in a form approved
by City, of Grantee's Gross Revenues and the computation of the payment amount.
3.5. Annual Franchise Fee Reports. Grantee shall, no later than 180 days after the end of each
calendar year, furnish to City a statement (Audited Gross Receipts Report) stating the total amount of
Gross Revenues and all payments, deductions, and computations for the period covered by the
payments.
3.6. Audits/reviews. On an annual basis, no more frequently than every 12 months, upon 30
days prior written notice, City shall have the right to conduct an independent audit or review of Grantee's
records reasonably related to the administration or enforcement of this agreement, in accordance with
generally accepted accounting principles. For purposes of this section, records reasonably related to the
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administration and enforcement of this agreement include those financial records pertaining to the
number and location of cable customers within City's Urban Growth Boundary. The City may hire an
independent certified public accountant to audit or review the Grantee's financial records, in which case
the Grantee shall provide all necessary records to the certified public accountant. All such records shall
be made available in the local offices of the Grantee. If the audit or review shows that Franchise fees
have been underpaid by 3% or more, Grantee shall reimburse to City the total cost of the audit or review
and the underpayment plus interest, at the rate specified in section 3.7 within 30 days of the City's written
demand for same. Records for audit/review purposes shall include without limitation:
3.6.1. Source documents, which demonstrate the original or beginning amount, and the
final amount shown on any report related to or included in the determination of franchise fees, revenues
or expenses.
3.6.2. Source documents that completely explain any and all calculations related to any
allocation of any amounts involving franchise fees, revenues, or expenses.
3.6.3. Any and all accounting schedules, statements, and any other form of
representation, which relate to, account for, or support or correlate to any accounts involving franchise
fees, revenues or expenses.
3.7. Interest on Late Payments. In the event that a franchise fee payment or other sum is not
received by the City on or before the due date, or is underpaid, the Grantee shall pay in addition to the
payment, or sum due, interest from the due date at a rate equal to the legal interest rate on judgments in
the State of Oregon.
3.8. Alternative Remedies. If any section, subsection, paragraph, term, or provision of this
Franchise agreement or any ordinance, law, or document incorporated by reference is held by a court of
competent jurisdiction to be invalid, unconstitutional, or unenforceable, such holding shall be confined in
its operation to the section, subsection, paragraph, term, or provision directly involved in the controversy
in which such holding shall have been rendered, and shall not in any way affect the validity of any other
section, subsection, paragraph, term, or provision. Under such a circumstance the Grantee shall, upon
the City's request, meet and confer with the City to consider amendments to the Franchise agreement.
The purpose of the amendments shall be to place the parties, as nearly as possible, in the position that
they were in prior to such determination, consistent with applicable law. In the event the parties are
unable to agree to a modification of this agreement within 60 days either party may (1) seek appropriate
legal remedies to amend the agreement, or (2) shorten the agreement to 36 months, at which point either
party may invoke the renewal procedures under 47 U.S.C. Subsection 546. Each party agrees to
participate in up to 16 hours of negotiation during the 60 day period.
3.9. Additional Commitments Not Franchise Fees. No term or condition in this agreement
shall in any way modify or affect Grantee's obligation to pay Franchise fees to City. Although the total
sum of Franchise fee payments and additional commitments set forth elsewhere in this agreement may
total more than 5% of Grantee's Gross Revenues in any 12-month period, Grantee agrees that the
additional commitments are not Franchise fees as defined under any federal law, to the extent not
inconsistent with applicable federal law, nor are they to be offset or credited against any Franchise fee
payments due to City.
3.10. Costs of Publication. Grantee shall pay the reasonable cost of newspaper notices and
publication pertaining to this agreement, and any amendments, including changes in control or transfers
of ownership, as such notice or publication is reasonably required by City or applicable law.
3.11. Tax Liability. Payment of the Franchise fees under this agreement shall not exempt
Grantee from the payment of any generally applicable license, permit fee or other generally applicable
fee, tax or charge on the business, occupation, property or income of Grantee that may be imposed by
City.
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3.12. Payment on Termination. If this agreement terminates for any reason, the Grantee shall
file with the City within 90 calendar days of the date of the termination, a financial statement, certified by
an independent certified public accountant, showing the Gross Revenues received by the Grantee since
the end of the previous fiscal year. The City reserves the right to satisfy any remaining financial
obligations of the Grantee to the City by utilizing the funds available in a Letter of Credit or other security
provided by the Grantee.
4. ADMINISTRATION AND REGULA110N
4.1. Authority. City is vested with the power and right to regulate the exercise of the privileges
permitted by this agreement in the public interest, or to delegate that power and right to the extent
permitted under state and local law, to any agent, in its sole discretion.
4.2. Rates and Charges. All of Grantee's rates and charges related to or regarding Cable
Service shall be subject to regulation by City to the full extent authorized by applicable federal, state and
local laws.
4.3. Rate Discrimination. All of Grantee's rates and charges shall be published and shall be
nondiscriminatory as to all Persons and organizations of similar classes, under similar circumstances and
conditions. Grantee shall apply its rates in accordance with governing law, with similar rates and charges
for all Subscribers receiving similar Cable Service, without regard to race, color, familial, ethnic or national
origin, religion, age, sex, sexual orientation, marital, military or economic status, or physical or mental
disability, or geographic location in the Franchise Area. Grantee shall provide equivalent Cable Service to
all Residential Subscribers at similar rates and to Commercial Subscribers as authorized by applicable
laws. Nothing in this section shall be construed to prohibit:
4.3.1. The temporary reduction or waiving of rates or charges in conjunction with valid
promotional campaigns;
4.3.2. The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens;
4.3.3. Grantee from establishing different and nondiscriminatory rates and charges for
commercial customers, as well as different nondiscriminatory monthly rates for commercial customers as
allowable by federal law and regulations; or
4.3.4. Grantee from establishing different and nondiscriminatory rates and charges for
Residential Subscribers as allowable by federal law and regulations.
4.4 Filing of Rates and Charges. Throughout the term of this agreement, Grantee shall
maintain on file with City a complete schedule of applicable rates and charges for Cable Service provided
under this agreement. Nothing in this subsection shall be construed to require Grantee to file rates and
charges under temporary reductions or waivers of rates and charges in conjunction with promotional
campaigns, and rates for multiple dwelling units.
Grantee shall provide upon request from City a complete schedule of current rates and charges
for any and all Leased Access provided by Grantee. The schedule shall include a description of the price,
terms and conditions established by Grantee for Leased Access.
4.5 Time Limits Strictly Construed. Whenever this agreement sets forth a time for any act to
be performed by Grantee, such time shall be deemed to be of the essence, and any failure of Grantee to
perform within the allotted time may be considered a material violation of this agreement and sufficient
grounds for City to invoke any relevant provision of this agreement. However, in the event that Grantee is
prevented or delayed in the performance of any of its obligations under this agreement by reason of a
force majeure occurrence, such as acts of God (for example, floods, tornadoes, earthquakes or unusually
severe weather conditions), Grantee's performance shall be excused during the force majeure
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occurrence. After such occurrence Grantee shall promptly perform the affected obligations under this
agreement or procure a substitute for performance which is satisfactory to City. Grantee shall not be
excused by mere economic hardship nor by misfeasance or malfeasance of its directors, officers,
employees, or duly authorized agents. Notwithstanding the foregoing, City shall utilize the procedure in
section 13 to resolve any material breach committed by Grantee.
5. INDEMNIFICATION. Grantee shall, at its sole cost and expense, indemnify, hold harmless, and defend
the City and its officers, boards, commissions, duly authorized agents, and employees against any and all
claims, including, but not limited to, third party claims, suits, causes of action, proceedings, and
judgments for damages or equitable relief, to the extent such liability arises out of or through the acts or
omissions of the Grantee arising out of the construction, operation or repair of its Cable System
regardless of whether the act or omission complained of is authorized, allowed, or prohibited by this
agreement, provided, however, the Grantee will not be obligated to indemnify City should City intervene in
any proceeding regarding the grant of this agreement pursuant to section 7. Without limiting in any way
the Grantee's obligation to indemnify the City and its officers, boards, commissions, duly authorized
agents, and employees, as set forth above, this indemnity provision also includes damages and liabilities
such as:
5.1. To persons or property, to the extent such liability arises out of or through the acts or
omissions of the Grantee, its contractors, subcontractors, and their officers, employees, or duly
authorized agents, or to which the Grantee's negligence or fault shall in any way contribute;
5.2. Arising out of any claim for invasion of the right of privacy; for defamation of any Person, firm
or corporation; for the violation or infringement of any copyright, trademark, trade name, service mark, or
patent; for a failure by the Grantee to secure consents from the owners or authorized distributors of
programs to be delivered by the Cable System; or for violation of any other right of any Person, to the
extent such liability arises out of or through the acts or omissions of the Grantee, provided, however, that
Grantee will not be required to indemnify City for any claims arising out of use of PEG Access Channels
by City or RVTV;
5.3. Arising out of Grantee's failure to comply with the provisions of any federal, state or local
statute, ordinance, rule or regulation applicable to the Grantee with respect to any aspect of its business
to which this agreement applies, to the extent such liability arises out of or through the acts or omissions
of the Grantee; and
5.4. Arising from any third party suit, action or litigation, whether brought by a competitor to
Grantee or by any other Person or entity, to the extent such liability arises out of or through the acts or
omissions of the Grantee, whether such Person or entity does or does not have standing to bring such
suit, action or
litigation if such action (1) challenges the authority of the City to issue this agreement to Grantee; or (2)
alleges that, in issuing this agreement to Grantee, the City has acted in a disparate or discriminatory
manner.
5.5. The City shall give the Grantee timely written notice of any claim or of the commencement of
any action, suit or other proceeding covered by the indemnity obligation in this Section. In the event any
such claim arises, the City or any other indemnified party shall tender the defense to the Grantee and the
Grantee shall have the obligation and duty to defend, settle or compromise any claims arising from the
claim, and the City shall cooperate fully. Grantee shall accept or decline the tender within 30 days.
Grantee shall reimburse reasonable attorney fees and costs incurred by the City during the 30 day period
in which the Grantee accepts or declines tender. In the event that the Grantee declines defense of the
claim in violation of section 11, the City may defend such claim and seek recovery from Grantee its
expenses for reasonable attorney fees and disbursements, including expert witness fees, incurred by City
for defense and in seeking such recovery.
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6. CUSTOMER SERVICE. Grantee shall render efficient service, make repairs promptly and interrupt
service only for good cause and for the shortest time possible. Such interruptions, insofar as possible,
shall be preceded by notice to subscribers affected and occur during periods of minimum use.
7. REPORTS AND RECORDS.
7.1. Open Records.
7.1.1. Grantee shall manage all of its operations in accordance with a policy of keeping
its documents and records directly concerning its gross revenues, including customer identification
numbers (e.g. account numbers) and levels of service, open and accessible to City. City shall have
access to, and the right to inspect, any books and records of Grantee. Grantee shall not deny City access
to any of Grantee's records on the basis that Grantee's records are under the control of any parent
corporation, affiliated entity or a third party. City may, in writing, request copies of any such records or
books and Grantee shall provide such copies within ten business days of the transmittal of such request.
If the requested books and records are too voluminous, or for security reasons cannot be copied or
removed, then Grantee may request, in writing within ten business days, that City inspect them at one of
Grantee's local area offices. If any books or records of Grantee are not kept in a local office, Grantee will
provide or otherwise make such documents available for inspection and review at the local office within
ten business days.
7.1.2. Grantee shall at all times maintain and allow City, with reasonable notice, access
and the right to review a full and complete set of plans, records and "as built" maps showing the exact
location of all Cable System equipment installed or in use in the Franchise Area, exclusive of electronics,
Subscriber drops and equipment provided in Subscribers' homes. These maps shall include computer
maps and shall be maintained in a standard format and medium specified by the city, in sufficient detail to
agreed upon by the City and the Grantee. City's review of the plans, records, and as-built maps, shall
occur at the Grantee's local office, or, if the Grantee has no office within the city, then at a location within
the city specified by the City.
7.1.3. The ability for City to obtain records and information from Grantee is critical to the
administration of this agreement Grantee's failure to comply with the requirements of this section may
result in fines as prescribed in section 13.2.
7.2. Confidentiality. Subject to the limits of the Oregon Public Records Law, City agrees to treat
as confidential any books and records that constitute proprietary or confidential information under federal
or state law, to the extent Grantee makes City aware, whether verbally or in wilting, of such confidentiality.
If City believes it must release any such confidential books and records in the course of enforcing this
agreement, or for any other reason, it shall advise Grantee in advance so that Grantee may take
appropriate steps to protect its interests. If City receives a demand from any Person for disclosure of any
information designated by Grantee as confidential, City shall, so far as consistent with applicable law,
advise Grantee and provide Grantee with a copy of any written request by the party demanding access to
such information within a reasonable time. Until otherwise ordered by a court or agency of competent
jurisdiction, City agrees that, to the extent permitted by state and federal law, it shall deny access to any
of Grantee's books and records that are deemed to be confidential as set forth above to any Person.
7.3. Copies of Federal and State Documents. Grantee shall submit to City a list, or copies of
actual documents, of all pleadings, applications, notifications, communications and documents of any
kind, submitted by Grantee or its parent corporations or affiliates to any federal, state or local courts;
regulatory agencies or other government bodies if such documents specifically relate to the operations of
Grantee's Cable System within the Franchise Area. Grantee shall submit such list or documents to City
no later than 30 days after their filing, mailing or publication. Grantee shall not claim confidential,
privileged or proprietary rights to such documents unless under federal, state, or local law such
documents have been determined to be confidential by a court of competent jurisdiction, or by a federal
or state agency. To the extent allowed by law, any such confidential material determined to be exempt
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from public disclosure shall be retained in confidence by City and its duly authorized agents and shall not
be made available for public inspection.
7.4. Inspection of Facilities. City may inspect upon request any of Grantee's facilities and
equipment to confirm performance under this agreement at any time upon at least 24 hours notice, or, in
case of an emergency, upon demand without prior notice.
7.5. False Statements. Any intentional false or misleading statement or representation in any
report required by this agreement may be deemed a material violation of this agreement and may subject
Grantee to all remedies, legal or equitable, which are available to City under this agreement or otherwise.
7.6. Report Expense. All reports and records required under this or any other Section shall be
furnished, without cost, to City.
8. PUBLIC, EDUCATIONAL AND GOVERNMENTAL (PEG) ACCESS.
8.1. General Definitions. With respect to purposes of this section, the following definitions will
apply with respect to PEG use of the Cable System.
8.1.1. "Access Channel" means any Channel, or portion of any Channel, designated for
non-commercial Access purposes or otherwise made available to facilitate or transmit Access
programming or service. Each Access Channel shall be six MHz and must be capable of transmitting a
standard analog video signal. The capacity can be used to transmit non-commercial signals in any format,
and can be used to transmit: audio only, video, or other information (including, by way of example and not
limitation, secondary audio, text, digital information, high-definition signals, and compressed signals.) A
non-standard NTSC use shall be subject to the Grantee's prompt prior review and approval to ensure that
the use will not cause unreasonable technical interference with other Channels. Such uses must be in
furtherance of PEG uses. Additionally, there shall not be commercial use or lease of such PEG capacity
without the express written permission of the Grantee.
8.1.2. "Digital Access Channel", as used in this Section, means a Channel carrying
PEG continuous full-motion video programming in a digital format. Digital Access Channels shall have the
same compression ratio and transmission quality as is used to carry any of the commercial Channels that
deliver programming to the City in a similar format for delivery to each Subscriber.
8.1.3. "Origination Point" means a location, where PEG programming is delivered to the
Grantee for Downstream transmission.
8.2. Management and Control of Access Channels.
8.2.1. City may authorize RVTV to control and manage the use of any and all Access
Facilities provided by Grantee under this agreement, including, without limitation, the operation of Access
Channels. To the extent of such designation by City, as between RVTV and Grantee, RVTV shall have
sole and exclusive responsibility for operating and managing such Access Facilities. The City or its
designee may formulate rules for the operation of the PEG Access Channels, consistent with this
agreement; such rules shall not be designed to control the content of Public Access programming.
Nothing in this section shall prohibit the City from authorizing itself or others to manage or co-manage
PEG Access Channels and facilities.
8.2.2. Grantee shall cooperate with the City and RVTV in the use of the Cable System
and Access facilities for the provision of PEG Access. Grantee shall enter into such operating agreements
with RVTV as may be necessary to facilitate and coordinate the provision of PEG Access, provided that
such operating agreements shall not be inconsistent with the terms of this agreement and shall be subject
to approval by the City.
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8.2.3. Except as provided in this agreement, the City shall allocate Access resources
only to RVTV. The Grantee shall cooperate with the City in such allocations, in such manner as the City
shall direct.
8.2.4. Subject to written authorization from the City, the Grantee shall have the right to
use temporarily any Channel, or portion of any Channel, which is allocated under this section for PEG
uses pursuant to section 611 (d) of the Cable Act.
8.3. Channel Capacity and Use.
8.3.1. Upon the effective date of this agreement, all Access Channels provided for in this
agreement are administered by the City or designee.
8.3.2. Upon the effective date of this agreement, the Grantee shall provide five Access
Channels for distribution of PEG Access programming on the residential Cable System with provisions for
an additional channel for public and government access uses. Such additional channel shall be made
available when all channels granted pursuant to this paragraph are used for access purposes with locally
produced programming 70% of the available broadcast time. The programming of additional channels
required shall be distinct and non-repetitive of the previous channels. A program may be repeated no
more than three times for purposes of the trigger calculation. For purposes of this computation, all time
allocated to character generated or similar programming shall be excluded for the determination of when
such channel is in use and programmed with public and governmental access programming.
8.3.3. The Grantee shall provide connection of all PEG Access Channels required by this
agreement to and from the Grantee's Headend and RVTV's Headends as of the effective date of this
agreement. Grantee agrees to provide reconnection for RVTV's Headend if it is relocated within 12
months of the effective date of this agreement, at no charge to City or to RVTV.
8.3.4. If video programming is delivered in a digital format or the City requests that PEG
Channels be digitized, then, in lieu of the Access Channels provided for in section 8.3.2, there shall be a
maximum of 18 PEG continuous, full-motion video programming Digital Channels ("Digital Access
Channels"). The City shall determine the number of Digital Access Channels to be activated, not to
exceed 18.
8.4. Relocation of Access Channels. Grantee shall provide City with a minimum of 60 days'
notice, and use its best efforts to provide 120 days notice, prior to the time PEG Access Channel
designations are changed. Grantee shall consult with City prior to making a final determination regarding
any changes in PEG Access Channel designations/assignments. Any new Channel designations for the
PEG Access Channels provided pursuant to this agreement shall be in full compliance with FCC signal
quality and proof of performance standards.
8.5. Origination Points.
8.5.1. Additional permanent Origination Points required by the City or RVTV shall be
provided by Grantee within 90 days following receipt of written notice from City at the expense of City or
RVTV.
8.5.2. By mutual agreement by City and Grantee, upon six weeks written notice in
advance of the scheduled cablecast, and provided that an active drop is available at the desired location,
Grantee shall provide additional Origination Points on a short term basis for the live cablecast of Access
Programming. The incremental, out-of-pocket costs to Grantee shall be paid for by City or RVTV.
Grantee shall not be required to facilitate more than one such Origination Points in anyone week period.
8.5.3. There shall be no charge to the City, nor to any other person for the use of the
upstream capacity from the program origination locations described in this section, so long as the
transmissions are designed for rerouting and distribution on any PEG Channels.
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8.6. Access Interconnections.
8.6.1. The Grantee shall maintain for the duration of this agreement any and all existing
Interconnections of Access Channels with contiguous cable systems.
8.6.2. Grantee shall be capable of interconnection of PEG Access Channels in the Cable
System and Cable Systems in Franchise Areas that are geographically adjacent to City, provided that
City has secured the written permission for such Interconnection from the regulatory authority for the
adjacent Franchise Area. The cost of such Interconnections shall be Grantee's so long as Grantee or
Grantee's affiliate owns the adjacent Cable System. If the adjacent Cable System is not owned by
Grantee, the cost for interconnection shall be equally shared by the two Cable Systems.
8.6.3. All Interconnections shall have the capability of transmitting and receiving PEG
programming. All Interconnections shall be accomplished in a manner that permits the transmission of
signals meeting the technical standards of this agreement on all interconnected Channels, consistent with
section 8.10. Installation of all interconnect capacity shall be completed at the Grantee's expense, except
as otherwise provided in this agreement.
8.6.4. The City, or RVTV, shall have the right to control and schedule the operation of all
interconnected Access Channels and capacity. In addition, the City, or RVTV, shall have the right to use,
at its sole discretion and at no cost, any Access Channels and capacity provided under this agreement for
non-commercial purposes, in furtherance of PEG use. However, the requirement to interconnect PEG
programming with adjacent Cable Systems of willing franchise authorities shall not result in an increase in
the number of PEG Channels beyond the number of Access Channels provided for in section 8.3.
8.6.5. The Grantee shall take all necessary steps to ensure that technically adequate
signal quality in compliance with FCC requirements are initially and continuously provided for aft Access
Interconnections and Origination Points.
8.7. Capital Support for Access Costs.
8.7.1 Grantee shall provide $0.75 per month, per Residential Subscriber for capital
support for PEG Access.
The contribution shall be payable by the Grantee to the City after notice has been given
to Grantee's subscribers and contribution has been included on subscribers bills. The Grantee shall make
its best efforts to submit the content of notice to subscribers regarding such changes to the City for review
and comment at least 10 days prior to its printing.
Except for the payment for the fiscal year beginning July 1, 2008, Grantee shall make
such payments annually in advance on or before June 30 of each year for the ensuing fiscal year.
The payment for the fiscal year beginning July 1, 2008, shall be made within 45 days from
Grantee's written acceptance The advance shall be based upon an estimation of the fees for the
ensuing fiscal year. Any difference in the advance fees and the actual fees will be reconciled at
the end of the fiscal year for which the advance was made.
8.8. Access Support Not Franchise Fees.
8.8.1. The Grantee agrees that support for Access shall in no way modify or otherwise
affect the Grantee's obligations to pay franchise fees to the City. The Grantee agrees that although the
sum of Franchise fees and the payments set forth in this section may total more than 5% of the Grantee's
Gross Revenues in any 12 month period, the additional commitments shall not be offset or otherwise
credited in any way against any franchise fee payments under this agreement.
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8.8.2. The City recognizes Franchise fees and certain additional commitments are
external costs as defined under the FCC rate regulations in force at the time of adoption of this
agreement and the Grantee has the right and ability to include franchise fees and certain other
commitments on the bills of cable customers.
8.9. Access Channels on Lowest Available Tier. All Access Channels provided to
Subscribers under this agreement shall be included by the Grantee, without limitation, as a part of the
lowest available tier offered by the Grantee on its Cable System.
8.10. Change in Technology. In the event the Grantee makes any change in the Cable System
and related equipment and Facilities or in the Grantee's signal delivery technology, which directly or
indirectly substantially affects the signal quality or transmission of Access services or programming, the
Grantee shall, at its own expense, take necessary technical steps or provide necessary technical
assistance, including the acquisition of all necessary equipment, and full training of the City's or Access
personnel to ensure that the capabilities of Access services are not diminished or adversely affected by
such change.
8.11. Technical Quality. The Grantee shall maintain all Upstream and Downstream Access
services, Channels and Interconnections at the same level of technical quality and reliability required by
this agreement and all other applicable laws, rules and regulations for Residential Subscriber Channels.
The Grantee shall provide routine maintenance and shall repair and replace all transmission equipment,
including associated cable and equipment in use upon the effective date of this agreement, necessary to
carry a quality signal to and from the City's or RVTV's facilities. City and Grantee agree that the point of
demarcation will be the input RF connection to Grantee's Fiber Optics Laser Transmitter, with Grantee
responsible for repair and maintenance from the point of demarcation to Grantee's headend.
8.12. Promotional Services. The Grantee shall allow the City to include two bill stuffers per
year. The City or RVTV shall be responsible for the cost of printing its bill stuffers, the costs of inserting
the information into Grantee's bills, and for any incremental postage costs. Bill stuffers must conform to
Grantee's mailing requirements. Grantee shall be provided an opportunity to review and approve all PEG
bill stuffers.
8.13. Channel Identification. If requested by the City or RVTV, at City or RVTV costs, the
Grantee will identify the PEG Channels in its printed and electronic programming guides, by the general
type of programming carried on the Channel. Grantee will bill the City or RVTV for the costs of these
listings.
9. GENERAL STREET USE AND CONSTRUCTION.
9.1. Construction.
9.1.1. Subject to applicable laws, regulations and ordinances of City and the provisions
of this agreement, Grantee may perform all construction necessary for the operation of its Cable System.
All construction and maintenance of any and all facilities within Streets incident to Grantee's Cable
System shall, regardless of who performs the construction, be and remain Grantee's responsibility.
Grantee shall apply for, and obtain, all permits necessary for construction or installation of any facilities,
and for excavating and laying any facilities within the Streets. Grantee shall pay, prior to issuance, all
applicable fees of the requisite construction permits.
9.1.2. Prior to beginning any construction, Grantee shall provide City's Department of
Public Works with a construction schedule for work in the Streets. All construction shall be performed in
compliance with this agreement and all applicable City Ordinances and Codes, especially AMC Chapter
16.12 and section 16.12.090. When obtaining a permit, Grantee shall inquire in writing about other
construction currently in progress, planned or proposed, in order to investigate thoroughly all
opportunities for joint trenching or boring. Whenever it is possible and reasonably practicable to joint
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trench or share bores or cuts, Grantee shall work with other providers, grantees, permittees and
franchisees so as to reduce as far as possible the number of Street cuts.
9.1.3. City shall have the right to inspect all construction or installation work performed
within the franchise area as it shall find necessary to ensure compliance with the terms of this agreement
and other pertinent provisions of law.
9.2. Location of Facilities. Within 48 hours after notification of any proposed Street excavation,
Grantee shall, at Grantee's expense:
9.2.1. Mark on the surface all of its underground facilities with in the area of the proposed
excavation;
9.2.2. Notify the excavator of any un-located underground facilities in the area of the
proposed excavation; or
9.2.3. Notify the excavator that Grantee does not have any underground facilities in the
vicinity of the proposed excavation.
9.3. Relocation. City shall have the right to require Grantee to change the location of any part of
Grantee's Cable System within the Streets when the public convenience requires such change, and the
expense shall be paid by Grantee. Should Grantee fail to remove or relocate any such facilities by the
date established by City, City may effect such removal or relocation, and the expense shall be paid by
Grantee, including all costs and expenses incurred by City due to Grantee's delay. If City requires
Grantee to relocate its facilities located within the Streets, City shall make a reasonable effort to provide
Grantee with an alternate location within the Streets.
9.4. Restoration of Streets.
9.4.1. Whenever Grantee disturbs the surface of any Street for any purpose, Grantee
shall promptly restore the Street to at least its prior condition. When any opening is made by Grantee in a
hard surface pavement in any Street, Grantee shall refill within 24 hours the opening and restore the
surface to a condition satisfactory to City.
9.4.2. If Grantee excavates the surface of any Street, Grantee shall be responsible for
restoration in accordance with applicable regulations of the jurisdiction within the area affected by the
excavation. City may, after providing notice to Grantee, refill or repave any opening made by Grantee in
the Street, and the expense shall be paid by Grantee. City may, after providing notice to Grantee, remove
or repair any work done by Grantee that, in the determination of City, is inadequate. The cost, including
the costs of inspection and supervision, shall be paid by Grantee. All excavations made by Grantee in the
Streets shall be properly safeguarded for the prevention of accidents. All of Grantee's work under this
agreement, and this section in particular, shall be done in strict compliance with all rules, regulations and
ordinances of City. Prior to making any Street or right-of-way cuts or openings, Grantee shall provide
written notice to City.
9.5. Maintenance and Workmanship.
9.5.1. Grantee's Cable System shall be constructed and maintained in such manner as
not to interfere with sewers, water pipes, or any other property of City, or with any other pipes, wires,
conduits, pedestals, structures, equipment or other facilities that may have been laid in the Streets by, or
under, City's authority.
9.5.2. Grantee shall provide and use any equipment necessary to control and carry
Grantee's cable television signals so as to prevent injury to City's property or property belonging to any
Person. Grantee, at its own expense, shall repair, change and improve its facilities to keep them in good
repair, and safe and presentable condition.
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9.6. Reservation of City Street Rights. Nothing in this agreement shall prevent City or utilities
owned, maintained or operated by public entities other than City, from constructing sewers; grading,
paving, repairing or altering any Street; repairing or removing water mains; or constructing or establishing
any other public work or improvement. All such work shall be done, insofar as practicable, so as not to
obstruct, injure or prevent the use and operation of Grantee's Cable System. However, if any of Grantee's
Cable System interferes with the construction or repair of any Street or public improvement, including
construction, repair or removal of a sewer or water main, Grantee's Cable System shall be removed or
replaced in the manner City shall direct, and City shall in no event be liable for any damage to any portion
of Grantee's Cable System. Any and all such removal or replacement shall be at the expense of Grantee.
Should Grantee fail to remove, adjust or relocate its facilities by the date established by City's written
notice to Grantee, City may effect such removal, adjustment or relocation, and the expense thereof shall
be paid by Grantee, including all reasonable costs and expenses incurred by City due to Grantee's delay.
9.7. Street Vacation. If any Street or portion of any Street used by Grantee is vacated by City
during the term of this agreement, unless City specifically reserves to Grantee the right to continue its
installation in the vacated Street, Grantee shall, without delay or expense to City, remove its facilities from
such Street, and restore, repair or reconstruct the Street where such removal has occurred, and place the
Street in such condition as may be required by City. In the event of failure, neglect or refusal of
Grantee, after 30 days' notice by City, to restore, repair or reconstruct such Street, City may do such work
or cause it to be done, and the reasonable cost, as found and declared by City, shall be paid by Grantee
within 30 days of receipt of an invoice and documentation, and failure to make such payment shall be
considered a material violation of this agreement.
9.8. Discontinuing Use of Facilities. Whenever Grantee intends to discontinue using any facility
within the Streets, Grantee shall submit for City's approval a complete description of the facility and the
date on which Grantee intends to discontinue using the facility. Grantee may remove the facility or
request that City allow it to remain in place. Notwithstanding Grantee's request that any such facility
remain in place, City may require Grantee to remove the facility from the Street or modify the facility to
protect the public health, welfare, safety, and convenience, or otherwise serve the public interest. City
may require Grantee to perform a combination of modification and removal of the facility. Grantee shall
complete such removal or modification in accordance with a reasonable schedule set by City. Until such
time as Grantee removes or modifies the facility as directed by City, or until the rights to and responsibility
for the facility are accepted by another Person having authority to construct and maintain such facility,
Grantee shall be responsible for all necessary repairs and relocations of the facility, as well as
maintenance of the Street, in the same manner and degree as if the facility were in active use, and
Grantee shall retain all liability for such facility. If Grantee abandons its facilities, City may choose to use
such facilities for any purpose whatsoever including, but not limited to, public, governmental, or
educational purposes.
9.9. Hazardous Substances.
9.9.1. Grantee shall comply with all applicable local, state and federal laws, statutes,
regulations and orders concerning hazardous substances relating to Grantee's Cable System in the
Streets.
9.9.2. Grantee shall maintain and inspect its Cable System located in the Streets. Upon
reasonable notice to Grantee, City may inspect Grantee's facilities in the Streets to determine if any
release of hazardous substances has occurred, or may occur, from or related to Grantee's Cable System.
In removing or modifying Grantee's facilities as provided in this agreement, Grantee shall also remove all
residue of hazardous substances.
9.10. Undergrounding of Cable.
9.10.1. Wiring.
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A. Where all utility lines are installed underground at the time of Cable System
construction, or when such lines are subsequently placed underground, all Cable System lines or wiring
and equipment shall also be placed underground on a nondiscriminatory basis with other utility lines
services at no additional expense to the City or Subscribers, to the extent permitted by law and applicable
safety codes. Cable must be installed underground where: (1) all existing utilities are placed underground,
(2) statute, ordinance, policy, or other regulation requires utilities to be placed underground, or (3) all
overhead utility lines are placed underground.
Related Cable System equipment such as pedestals must be placed in accordance with
applicable Code requirements and underground utility rules as interpreted by each City's appropriate
public works official. In areas where electric or telephone utility wiring is aerial, the Grantee may install
aerial cable, except when a property owner or resident requests underground installation and agrees to
bear the reasonable additional cost in excess of aerial installation.
B. The Grantee shall utilize existing poles and conduit wherever possible.
C. This agreement does not grant, give or convey to the Grantee the right or
privilege to install its facilities in al"lY manner on specific utility poles or equipment of the City or any other
Person without their permission. Copies of agreements for use of poles, conduits or other utility facilities
must be provided upon request by the City upon demonstrated need and subject to protecting Grantee's
proprietary information from disclosure to third parties.
9.10.2. Repair and Restoration of Property.
A. Grantee shall protect public and private property from damage. If damage
occurs the Grantee shall promptly notify the property owner within 24 hours in writing.
B. If public or private property is disturbed or damaged, the Grantee shall restore
the property to its former condition, normal wear and tear excepted. Public right-of-way or other City
property shall be restored, in a manner and within a timeframe approved .by the City's Director of Public
Works or other appropriate designated official. If restoration of public right-of-way or other property of the
City is not satisfactorily performed within a reasonable time, the Director of Public Works or other
appropriate designated official may, after prior notice to the Grantee, or without notice where the
disturbance or damage may create a risk to public health or safety, or cause delay or added expense to a
public project or activity, cause the repairs to be made at the Grantee's expense and recover the cost of
those repairs from the Grantee. Within 30 days of receipt of an itemized list of those costs, including the
costs of labor, materials and equipment, the Grantee shall pay the City. If suit is brought upon Grantee's
failure to pay for repair or restoration, and if judgment in such a suit is entered in favor of the City, then
the Grantee shall pay all of the City's actual costs and expenses resulting from the non-payment,
including penalties, interest from the date the bill was presented, disbursements, attorneys' fees and
litigation-related costs. Private property must be restored promptly, considering the nature of the work that
must be performed and in no event later than 72 hours.
C. Prior to entering onto private property to construct, operate or repair its Cable
System in a manner in which it is assumed that temporary property damage will occur or the work will be
of a duration exceeding four hours, Grantee shall give the Person residing on or using the property
adequate written notice (such as a door hanger which clearly identifies the anticipated construction) that it
intends to work on the property, a description of the work it intends to perform and a name and phone
number the Person can call to protest or seek modification of the work. Work shall be done in a manner
that causes the least interference with the rights and reasonable convenience of property owners,
residents and users. Such notification is not required when Grantee is performing connection,
disconnection and/or repair of its drop system or in times of emergency restorations of its plant.
9.10.3. Movement of Cable System For and By City. The City may remove, replace,
modify or disconnect Grantee's facilities and equipment located in the public right-of-way or on any other
property of the City in the case of fire, disaster, or other emergency, or when a project or activity of the
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City's makes the removal, replacement, modification or disconnection necessary or less expensive for the
City. Except during an emergency, the City shall provide reasonable notice to Grantee prior to taking such
action and shall, when feasible, provide Grantee with the opportunity to perform such action. Reasonable
notice to Grantee includes notice by telephone. Following notice by the City, Grantee shall remove,
replace, modify or disconnect any of its facilities or equipment within any public right-of-way, or on any
other property of the City, except that the City shall provide at least 60 days' written notice of any major
capital improvement project which would require the removal, replacement, modification or disconnection
of Grantee's facilities or equipment. If the Grantee fails to complete this work within the time prescribed
and to the City's satisfaction, the City may cause such work to be done and bill the cost of the work to the
Grantee. Within 30 days of receipt of an itemized list of those costs, the Grantee shall pay the City.
9.10.4. Movement for Other Franchise Holders. If any removal, replacement,
modification or disconnection is required to accommodate the construction, operation or repair of the
facilities or equipment of another Franchise holder, Grantee shall, after at least 30 days' advance written
notice, take action to effect the necessary changes requested by the responsible entity. Those Persons
shall determine how costs associated with the removal or relocation shall be allocated.
9.10.5. Movement for Other Permittees. At the request of any Person holding a valid
permit and upon reasonable advance notice, Grantee shall temporarily raise, lower or remove its wires as
necessary to permit the moving of a building, vehicle, equipment or other item. The permit holder must
pay the expense of such temporary changes, and Grantee may require a reasonable deposit of the
estimated payment in advance.
9.10.6. Tree Trimming. Subject to acquiring prior written permission of the City, the
Grantee shall have the authority to trim trees that overhang a public right-of-way of the City so as to
prevent the branches of such trees from coming in contact with its Cable System, in accordance with
applicable codes and regulations and current, accepted professional tree trimming practices.
9.11. Codes. Grantee shall strictly adhere to all building and zoning codes currently in effect or in
effect in the future. Grantee shall arrange its lines, cables and other appurtenances, on both public and
private property, in such a manner as to not cause unreasonable interference with the use of said public
or private property by any Person. In the event of such interference, City may require the removal or
relocation of Grantee's lines, cables, and other appurtenances, at Grantee's cost, from the property
in question.
9.12. Standards.
9.12.1. All work authorized and required shall be done in a safe, thorough and workerlike
manner. The Grantee must comply with all safety requirements, rules, and practices and employ all
necessary devices as required by applicable law during construction, operation and repair of its Cable
System. By way of illustration and not limitation, the Grantee must comply with the National Electric Code,
National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards.
9.12.2. Grantee shall ensure that individual Cable System drops are properly bonded to
the electrical power ground at the home, and are consistent, in all respects, with the requirements of the
National Electric Code and the National Electrical Safety Code.
10. TEST AND COMPLIANCE PROCEDURES. Upon request, Grantee shall advise City of schedules
and methods for testing the Cable System on a regular basis to determine compliance with the provisions
of applicable FCC technical standards. Representatives of City may witness tests, and written test reports
may be made available to City upon request.
As required by FCC Rules, Grantee shall conduct proof of performance tests and cumulative
leakage index tests designed to demonstrate compliance with FCC requirements. Grantee shall provide
City summary written reports of the results of such tests.
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11. SERVICE EXTENSION, CONSTRUCTION, AND INTERCONNECTION
11.1. Equivalent Service. It is Grantee's general policy that all residential dwelling units in the
Franchise Area have equivalent availability to Cable Service from Grantee's Cable System under
nondiscriminatory rates and reasonable terms and conditions. Grantee shall not arbitrarily refuse to
provide Cable Service to any Person within its Franchise Area.
11.2. Service Availability.
11.2.1. Grantee shall provide Cable Service in new subdivisions upon the earlier of
either of the following occurrences: (A) Within 60 days of the time when foundations have been installed
in 50% percent of the dwelling units in any individual subdivision; or (B) Within 30 days following a
request from a resident. For purposes of this section, a receipt shall be deemed to be made on the
signing of a service agreement, receipt of funds by the Grantee, receipt of a written request by Grantee,
or receipt by Grantee of a verified verbal request.
Grantee shall provide such service: (i) With no line extension charge except as
specifically authorized elsewhere in this agreement; (ii) At a nondiscriminatory installation charge
for a standard installation, consisting of a drop no longer than 25 feet, with additional charges for
non-standard installations computed according to a nondiscriminatory methodology for such
installations, adopted by Grantee and provided in writing to City; and at nondiscriminatory
monthly rates for Residential Subscribers.
11.3. Required Extensions of Service. Whenever the Grantee shall receive a request for
service from at least ten residences within 1320 cable-bearing strand feet (one-quarter cable mile) of its
trunk or distribution cable, it shall extend its Cable System to such Customers at no cost to the Customers
for Cable System extension, other than the usual connection fees for all Customers within 90 days,
provided that such extension is technically feasible, and if it will not adversely affect the operation, of
the Cable System, or as provided under section 2.6.
11.3.1. No Customer shall be refused service arbitrarily. However, for unusual
circumstances, such as a Customer's request to locate a cable drop underground, existence of more than
125 feet of distance from distribution cable to connection of service to Customers, or a density of less
than ten residences per 1320 cable-bearing strand feet of trunk or distribution cable, service may be
made available on the basis of a capital contribution in aid of construction, including cost of material,
labor, and easements. For the purpose of determining the amount of capital contribution in aid of
construction to be borne by the Grantee and Customers in the area in which service may be expanded,
the Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a
fraction whose numerator equals the actual number of residences per 1320 cable-bearing strand feet of
its trunks or distribution cable and whose denominator equals ten residences. Customers who request
such service will bear the remainder of the construction and other costs on a pro rata basis. The Grantee
may require that the payment of the capital contribution in aid of construction borne by such potential
Customers be paid in advance.
11.3.2. Failure to meet these standards shall subject grantee to enforcement actions on
a per Subscriber basis in section 13.
11.3.3. Connection of Public Facilities. Grantee shall, at no cost to City, provide one
outlet of Basic and expanded basic programming to City' public use buildings, as designated by City, and
all libraries and Schools. In addition, Grantee agrees to provide, at no cost, one outlet of Basic and
expanded basic programming to all such future public buildings if the drop line to such building does not
exceed 125 cable feet or if City agrees to pay the incremental cost of such drop line in excess of 125 feet,
including the cost of such excess labor and materials. Outlets of Basic and expanded basic programming
provided in accordance with this subsection may be used to distribute Cable Service throughout such
buildings, provided such distribution can be accomplished without causing Cable System disruption and
19
general technical standards are maintained. Cost for any additional outlets shall be the responsibility of
City.
12. STANDBY POWER. Grantee shall provide standby power generating capacity at the Cable System
Headend capable of providing at least 12 hours of emergency operation. Grantee shall maintain standby
power system supplies, to the node, rated for at least two hours duration. In addition, throughout the term
of this agreement, Grantee shall have a plan in place, along with all resources necessary for
implementing such plan, for dealing with outages of more than two hours. This outage plan and evidence
of requisite implementation resources shall be presented to City no later than 90 days following the
effective date of this agreement.
13. FRANCHISE VIOLATIONS; REVOCATION OF FRANCHISE.
13.1. Procedure For Remedying Franchise Violations.
13.1.1. If City believes that Grantee has failed to perform any obligation under this
agreement or has failed to perform in a timely manner, City shall notify Grantee in writing, stating with
reasonable specificity the nature of the alleged violation.
13.1.2. The City must provide written notice of a violation. Upon receipt of notice, the
Grantee will have a period of 30 days to cure the violation or 30 days to present to the City a reasonable
remedial plan. The City shall, with Grantee's consent, decide whether to accept, reject, or modify the
remedial plan presented by the Grantee. Fines shall be assessed only in the event that either a cure has
not occurred within 30 days or the City rejects the remedial plan. The procedures provided in section 13
shall be utilized to impose any fines. The date of violation will be the date of the event and not the date
Grantee receives notice of the violation provided, however, that if City has actual knowledge of the
violation and fails to give the Grantee the notice, then the date of the violation shall be no earlier than ten
business days before the City gives Grantee the notice of the violation. Grantee shall have 30 calendar
days from the date of receipt of such notice to:
13.1.2.1. Respond to City, contesting City's assertion that a violation has
occurred, and requesting a hearing in accordance with subsection 13.1.5, or
13.1.2.2. Cure the violation, or;
13.1.2.3. Notify City that Grantee cannot cure the violation within the thirty (30)
days, and notify the City in writing of what steps the Grantee shall take to cure the violation including the
Grantee's projected completion date for such cure. In such case, City shall set a hearing date within 30
days of receipt of such response in accordance with section 13.1.3.
13.1.3. In the event that the Grantee notifies the City that it cannot cure the violation
within the 30 day cure period, City shall, within thirty 30 days of City's receipt of such notice, set a
hearing. At the hearing, City shall review and determine whether the Grantee has taken reasonable steps
to cure the vioJation and whether the Grantee's proposed plan and completion date for cure are
reasonable. In the event such plan and completion date are determined by mutual consent to be
reasonable, the same may be approved by the City, who may waive all or part of the fines for such
extended cure period in accordance with the criteria set forth in section 13.1.7.
13.1.4. In the event that the Grantee fails to cure the violation within the 30 day basic
cure period, or within an extended cure period approved by the City pursuant to section 13.1.3, the City
shall set a hearing to determine what fines, if any, shall be applied.
13.1.5. In the event that the Grantee contests the City's assertion that a violation has
occurred, and requests a hearing in accordance with section 13.1.2.1., the City. shall set a hearing within
60 days of the City's receipt of the hearing request to determine whether the violation has occurred, and if
a violation is found, what fines shall be applied.
20
13.1.6. In the case of any hearing pursuant to this section, City shall notify Grantee of
the hearing in writing and at the hearing, Grantee shall be provided an opportunity to be heard, examine
City's witnesses, and to present evidence in its defense. The City may also hear any other person
interested in the subject, and may provide additional hearing procedures as City deems appropriate.
13.1.7. The fines set forth in section 13.2 may be reduced at the discretion of the City,
taking into consideration the nature, circumstances, ~xtent and gravity of the violation as reflected by one
or more of the following factors:
(A) Whether the violation was unintentional;
(8) The nature of the harm which resulted;
(C) Whether there is a history of prior violations of the same or other
requirements;
(0) Whether there is a history of overall compliance, or;
(E) Whether the violation was voluntarily disclosed, admitted or cured.
13.1.8. If, after the hearing, City determines that a violation exists, City may use one or
more of the following remedies:
(A) Order Grantee to correct or remedy the violation within a reasonable time
frame as City shall determine;
(8) Establish the amount of fine set forth in section 13.2, taking into consideration
the criteria provided for in section 13.1.7 of this section as appropriate in City's discretion;
(C) Revoke this agreement, or
(0) Pursue any other legal or equitable remedy available under this agreement or
any applicable law.
13.2. Fines.
13.2.1. Failure to comply with provisions of the agreement may result in Injury to City. It
wilt be difficult to accurately estimate the extent of such injury. Therefore, the financial penalty provisions
of this agreement are intended as a reasonable forecast of compensation to City for the harm caused by
violation of this agreement, including but not limited to administrative expense, legal fees, publication of
notices, and holding of a hearing or hearings as provided in this agreement. The fine for violating any
provision of this agreement shall be $250 per day for every day the violation continues with a cap of
$10,000.
13.2.2. Collection of Fines. The collection of fines by the City shall in no respect affect:
(A) Compensation owed to Subscribers; or
(8) The Grantee's obligation to comply with all of the provisions of this agreement
or applicable law; or
(C) Other remedies available to the City.
13.3. Revocation. In addition to all other rights and powers retained by the City under this
agreement or otherwise, the City reserves the right to forfeit and terminate this agreement and all rights
21
and privileges of the Grantee, in whole or in part, in the event of a material violation of its terms and
conditions. A material violation by the Grantee shall include, but shall not be limited to the following:
13.3.1. Violation of any material provision of this agreement or any other agreement
between City and Grantee, or any material rule, order, regulation, standard or determination of the City or
authorized agent made pursuant to this agreement or other agreement;
13.3.2. Attempt to evade any material provision of this agreement or to practice any
fraud or deceit upon the City or its Subscribers or customers;
13.3.3. Failure to restore service after 48 consecutive hours of interrupted service
system-wide, except when approval of such interruption is obtained from the City;
13.3.4. Material misrepresentation of fact in the application for or negotiation of this
agreement, or
13.4. Relationship of Remedies.
13.4.1. Remedies are Non-exclusive. The remedies provided for in this agreement are
cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of another
remedy, or the exercise of any rights of the City at law or equity provided that the cumulative remedies
may not be disproportionate to the magnitude and severity for the breach for which they are imposed. By
way of example and not limitation, the collection of fines by City shall in no respect affect:
(A) Compensation owed to subscribers; or
(B) Grantee's obligation to comply with the provisions of this agreement or
applicable law.
13.4.2. No Election of Remedies. Without limitation, the recovery of amounts under the
insurance, indemnity or penalty provisions of this agreement shall not be construed as any of the
following: an election of remedies; a limit on the liability of Grantee under the agreement for fines or
otherwise; or an excuse of faithful performance by Grantee.
13.5. Removal.
13.5.1. In the event of termination, expiration or revocation of this agreement, City may
order the removal of the above-ground Cable System facilities and such underground facilities as
required by City in order to achieve reasonable engineering or Street-use purposes, from the Franchise
Area at Grantee's sole expense within a reasonable period of time as determined by City. In removing its
plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that is made by it
and shall leave all Streets, public places and private property in as good a condition as that prevailing
prior to Grantee's removal of its equipment.
13.5.2. If Grantee fails to complete any required removal to the satisfaction of City, City
may cause the work to be done and Grantee shall reimburse City for the reasonable costs incurred within
30 days after receipt of an itemized list of the costs.
13.6. No Recourse Against City. Grantee shall not have any monetary recourse against City or
its officials, boards, commissions, agents or employees for any loss, costs, expenses or damages arising
out of any provision or requirement of this agreement or its enforcement, in accordance with the
provisions of applicable federal, state and local law. The rights of the City under this agreement are in
addition to, and shall not be read to limit, any rights or immunities the City may enjoy under federal, state
or local law.
22
13.7. Non-enforcement by City. Grantee is not relieved of its obligation to comply with any of
the provisions of this agreement by reason of any failure of City to enforce prompt compliance. City's
forbearance or failure to enforce any provision of this agreement shall not serve as a basis to stop any
subsequent enforcement. The failure of the City on one or more occasions to exercise a right or to require
compliance or performance under this agreement or any applicable law shall not be deemed to constitute
a waiver of such right or a waiver of compliance or performance, unless such right has been specifically
waived in writing. Any waiver of a violation is not a waiver of any other violation, whether similar or
different from that waived.
14. ABANDONMENT
14.1. Effect of Abandonment. If the Grantee abandons its System during the agreement term,
or fails to operate its Cable System in accordance with its duty to provide continuous service, the City, at
its option, may operate the Cable System; designate another entity to operate the Cable System
temporarily until the Grantee restores service under conditions acceptable to the City or until the
agreement is revoked and a new Franchise is selected by the City; or obtain an injunction requiring the
Grantee to continue operations. If the City is required to operate or designate another entity to operate-
the Cable System, the Grantee shall reimburse the City or its designee for all reasonable costs, expenses
and damages incurred.
14.2. What Constitutes Abandonment. The City shall be entitled to exercise its options and
obtain any required injunctive relief if:
14.2.1. The Grantee fails to provide Cable Service in accordance with this agreement to
the Franchise Area for 96 consecutive hours, unless the City authorizes a longer interruption of service,
except if such failure to provide service is due to a force majeure occurrence, as described in section 4.5;
or
14.2.2. The Grantee, for any period, willfully and without cause refuses to provide Cable
Service in accordance with this agreement.
15. FRANCHISE RENEWAL AND TRANSFER.
15.1. Renewal.
15.1.1. Any proceedings undertaken by the City that relate to the renewal of Grantee's
agreement shall be governed by and comply with the provisions of the Cable Act (47 USC ~546), unless
the procedures and substantive protections there set forth shall be deemed to be preempted and
superseded by the provisions of any subsequent provision of federal or state law.
15.1.2. In addition to the procedures set forth in the Cable Act, the City agrees to notify
Grantee of the completion of its assessments regarding the identification of future cable-related.
community needs and interests, as well as the past performance of Grantee under the then current
Franchise term.
Notwithstanding anything to the contrary set forth in this agreement, City and Grantee agree that at any
time during the term of the then current agreement, while affording the public adequate notice and
opportunity for comment, City and Grantee may agree to undertake and finalize negotiations regarding
renewal of the then current agreement and the City may grant a renewal. Grantee and City consider the
terms set forth in this section to be consistent with the express provisions of the Cable Act.
15.2. Transfer of Ownership or Control.
15.2.1. The Cable System and this agreement shall not be sold, assigned, transferred,
leased, or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger,
consolidation, nor shall the title, either legal or equitable, or any right, interest, or property pass to or vest
in any Person or entity,- without the prior written consent of the City, which consent shall not be
23
unreasonably withheld. Grantee shall reimburse the City for all direct and indirect fees, costs, and
expenses reasonably incurred by the City in considering a request to transfer or assign the Cable System
or this agreement.
15.2.2. The Grantee shall promptly notify the City of any actual or proposed change in,
or transfer of, or acquisition by any other party of control of the Grantee. The word "control" as used is this
section is not limited to majority stockholders but includes actual working control in whatever manner
exercised. A rebuttable presumption that a transfer of control has occurred shall arise on the acquisition
or accumulation by any Person or group of Persons of 10% of the shares or the general partnership
interest in the Grantee, except that this sentence shall not apply in the case of a transfer to any Person or
group already owning at least a 10% interest of the shares or the general partnership interest in the
Grantee. Every change, transfer or acquisition of control of the Grantee shall make this agreement
subject to cancellation unless and until the City shall have consented.
15.2.3. The parties to the sale or transfer shall make a written request to the City for its
approval of a sale or transfer and furnish all information required by law and the City.
15.2.4. The City shall render a final written decision on the request within 120 days of the
request, provided it has received all requested information. Subject to the foregoing, if the City fails to
render a final decision on the request within 120 days, such request shall be deemed granted unless the
requesting party and the City agree to an extension of time.
15.2.5. Within 30 days of any transfer or sale, if approved or deemed granted by the
City, Grantee shall file with the City a copy of the deed, agreement, lease or other written instrument
evidencing such sale or transfer of ownership or control, certified and sworn to as correct by Grantee and
the transferee.
15.2.6. In reviewing a request for sale or transfer, the City may inquire into the legal,
technical and financial qualifications of the prospective controlling party or transferee, and Grantee shall
assist the City in so inquiring. The City may condition said sale or transfer upon such terms and
conditions as it deems reasonably appropriate, provided, however, any such terms and conditions so
attached shall be related to the legal, technical, and financial qualifications of the prospective controlling
party or transferee and to the resolution of outstanding and unresolved issues of noncompliance with the
terms and conditions of this agreement by Grantee.
15.2.7. The consent or approval of the City to any transfer by the Grantee shall not
constitute a waiver or release of any rights of the City, and any transfer shall, by its terms, be expressly
subordinate to the terms and conditions of this agreement.
15.2.8. Notwithstanding anything to the contrary in this section, the prior approval of the
City shall not be required for any sale, assignment or transfer of the agreement or Cable System for cable
television system usage to an entity controlling, controlled by or under the same common control as
Grantee provided that the proposed assignee or transferee must show financial responsibility as may be
determined necessary by the City and must agree in writing to comply with all provisions of the
agreement.
16. SEVERABILITY. If any section, subsection, paragraph, term or provision of this agreement is
determined to be illegal, invalid or unconstitutional by any court of competent jurisdiction or by any state
or federal regulatory authority having jurisdiction, such determination shall have no effect on the validity of
any other section, subsection, paragraph, term or provision of this agreement, all of which will remain in
full force and effect for the term of the agreement.
17. MISCELLANEOUS PROVISIONS.
17.1. Preferential or Discriminatory Practices Prohibited. Grantee shall not discriminate in
hiring, employment or promotion on the basis of race, color, creed, ethnic or national origin, religion, age,
24
sex, sexual orientation, marital status, or physical or mental disability. Throughout the term of this
agreement, Grantee shall fully comply with all equal employment or nondiscrimination provisions and
requirements of federal, state and local law and, in particular, FCC rules and regulations.
17.2. Dispute Resolution. Should a dispute arise between the parties concerning any aspect of
this agreement which is not resolved by mutual agreement of the parties, and unless either party believes
in good faith that injunctive relief is warranted, the dispute will be submitted to mediated negotiation prior
to any party commencing litigation. In such event, the City and Grantee agree to participate in good faith
in a non-binding mediation process. The mediator shall be selected by mutual agreement of the parties.
In the absence of such mutual agreement, each party shall select a temporary mediator, and those
mediators shall jointly select a permanent mediator.
If the parties are unable to successfully conclude the mediation within 45 days from the date of
the selection of the mediator, either party may terminate further mediation by sending written notice to the
other. After written notice has been received by the other party, either party may pursue whatever legal
remedies exist. All costs associated with mediation shall be borne, equally and separately, by the parties.
17.3. Notices. Throughout the term of the agreement, Grantee shall maintain and file with City a
designated legal or local address for the service of notices by mail. A copy of all notices from City to
Grantee shall be sent, postage prepaid, to such address and such notices shall be effective upon the date
of mailing. At the effective date of this agreement, such addresses shall be:
AHN Television
607 Siskiyou Blvd.
Ashland, Oregon 97520
All notices to be sent by Grantee to City under this agreement shall be sent, postage prepaid, and
such notices shall be effective upon the date of mailing. At the effective date of this agreement, such
address shall be:
City Administrator
City of Ashland
20 East Main Street
Ashland, Oregon 97520
Either party may with 30 days prior written notice to the other party, change the address(es) to which
notice shall be sent pursuant to this section 17 .3.
17.4. Binding Effect. This agreement shall be binding upon the parties, their successors and
assigns.
17.5. Authority to Amend. This agreement may be amended at any time by written agreement
between the parties.
17.6. Governing Law. This agreement shall be governed in all respects by the laws of the State
of Oregon.
17.7. Captions. The captions and headings of this agreement are for convenience and reference
purposes only and shall not affect in any way the meaning or interpretation of any provisions of this
agreement.
17.8. Entire Agreement. This agreement contains the entire agreement between the parties,
supersedes all prior agreements or proposals except as specifically set forth in this agreement, and
cannot be changed orally but only by an instrument in writing executed by the parties.
25
17.9. Construction of Agreement. The provisions of this agreement shall be liberally construed
to promote the public interest.
Agreed to this
day of December, 2007.
Reviewed as to Content:
By:
Title: City Attorney
By:
Title: Director of Information Technoloqy
Ashland Home Net
By:
Title:
City of Ashland
By:
Mayor
Attest:
City Recorder
26
Telecommunications Franchise AQPlication
With the City of Ashland
Any person that desires a telecommunications franchise pursuant to this chapter shall
file an application with the Finance Department which shall include the following
information:
A. The identity of the applicant:
Gary Nelson, President
Ashland Home Net
607 Siskiyou Blvd
Ashland, OR 97520
541-488-9207
B. A description of the telecommunications services that are to be offered or provided by
the applicant over its telecommunications facilities within the city.
Cable TV services:
28 channels of Basic service
66 channels of Expanded Basic service
1 channel of Premium service
C. Preliminary engineering plans, specifications and a network map of the facilities to be
located within the public rights of way in the city, including copies in a computerized
format specified by the city (unless the applicant demonstrates that the format utilized
was developed by the applicant and is proprietary) and all in sufficient detail to identify:
1. The location and route requested for applicants proposed telecommunications
facilities;
We are leasing the Headend directly from AFN and are utilizing
the existing AFN HFC network to deliver video services to
residential and commercial properties within the Ashland city
limits.
2. the specific trees, structures, improvements, facilities and obstructions, if any, that
applicant proposes to temporarily or permanently remove or relocate.
As we are using existing infrastructure we do not require any
changes to the city landscape appearance. We are not
modifying or impacting any trees or structures.
D. If applicant is proposing to install aboveDground facilities, to the extent that the
applicant will be using utility poles, evidence from the Electric Utilities Department or
pole owner that usable space is available for locating the applicant's telecommunications
facilities on existing utility poles along the proposed route; and if usable space is not
available in some or all service areas, an indication of these locations and a "make
ready" schedule for completion.
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
E. If the applicant is proposing an underground installation in existing ducts or conduits
within the public rights of way, provide information in sufficient detail to identify:
1. the excess capacity currently available in such ducts or conduits before installation of
applicant's telecommunications facilities;
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational~
2. the excess capacity, if any, that will exist in such ducts or conduits after installation of
applicant's telecommunications facilities.
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
F. If applicant is proposing an underground installation within new ducts or conduits to be
constructed within the public rights of way:
1. the location proposed for the new ducts or conduits;
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
2. the excess capacity that will exist in such ducts or conduits after
the installation of applicant's telecommunications facilities.
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
G. A preliminary construction schedule and completion date.
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
H. Financial statements prepared in accordance with generally accepted accounting
principles demonstrating the applicant's financial ability to construct, operate, maintain,
relocate and remove the facilities.
We are leasing the Headend directly from AFN and are utilizing
the existing AFN HFC network to deliver video services to
residential and commercial properties within the Ashland city
limits.
1. Information in sufficient detail to establish the applicant's technical qualifications,
experience and expertise regarding the telecommunications facilities and services
described in the application.
We are leasing the Headend directly from AFN and are utilizing
the existi ng AFN H FC network to deliver video services to
residential and commercial properties within the Ashland city
limits.
J. Information to establish that the applicant has obtained all other governmental
approvals and permits to construct and operate the facilities and to offer or provide the
telecommunications services proposed.
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
K. Whether the applicant intends to provide cable service, video dial tone service or
other video programming service, and sufficient information to determine whether such
service is subject to cable franchising.
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
L. An accurate map showing the location of any existing telecommunications facilities in
the city that applicant intends to use or lease.
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
M. A description of the services or facilities that the applicant will offer or make available
to the city and other public, educational and governmental institutions.
We are leasing the Headend directly from AFN and are utilizing
the existing AFN HFC network to deliver video services to
residential and commercial properties within the Ashland city
limits.
N. "As-Builts", after completion of initial construction.
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
O. A description of applicant's access and line extension policies.
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
P. The area or areas of the city the applicant desires to serve and a schedule for
buildDout to the entire franchise area. COrd 2850 S27 1999)
Ashland Home Net will be utilizing existing AFN HFC network
infrastructure and the facilities we are using to deliver video
service is in place and operational.
11/13/07
PAy,
CITY OF ASHLAND
20 EAST MAIN
ASHLAND, OR 97520
Item to be Paid - Description
Ashland ,Home Net
607 SiSkiyol,l ,BlVd
A~hland, OR ,97 520 - 9504
USA
Tele: 541":488,-9207
2978
Check Number: 2978
Check Date: Nov 13, 2007
Check Amount: $250.00
Discount Taken
Amount Paid
'Two Hyndr~ Fifty and ()Q110QlJollars
roTHE
ORDER
OF:
CITY,6p. ASHLAND
2'0: EAST'MAIN
ASBI..ANj) , OR: 97520
I,. .JlR
. ~ -,T m l;I.lll~Il'
250.00
WASHINGTONIIUTUAL8MI(
19-7Q7fli3250
2978
VALID FOR '90 DAYS FROM DATE OF ISSUE
DATE.
AMOUNT
Nov 13, 2007
****'*****$250.00
. ~~__'--~~,___,_~ ----II!
AU1'HOf\JZED SIGNATURE
CITY OF
ASHLAND
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
December 4,2007
In the Matter of the Grant of a
Telecommunications Franchise
To Ashland Home Net (AHN)
pursuant to Chapter 16 of the
Ashland Municipal Code
)
) FINDINGS OF FACT
) CONCLUSIONS OF LAW
) AND ORDER
)
Recitals
Whereas, on November 13, 2007, Ashland Home Net submitted an application for a
telecommunication franchise pursuant to Ashland Municipal Code, Chapter 16.
Whereas, Chapter 16 of the Ashland Municipal Code requires that the City shall issue a
written determination granting or denying an application for a telecommunications
franchise in whole or in part, applying the standards listed below.
Whereas, If the application is denied, the written determination shall also include the
reasons for denial.
Now Therefore the City Council for the City of Ashland finds and determines as
follows:
The above recitations are true and correct and are incorporated herein by this
reference.
Findings of Fact and Conclusions of Law
The standards to be applied by city and the findings relative to each are:
A. The financial and technical ability of the applicant.
Ashland Home Net has been operating video facilities successfully for more than
a year. This criterion is met by the application and supporting documentation.
B. The legal ability of the applicant.
INFORMATION TECHNOLOGY
90 North Mountain Avenue
Ashland, Oregon 97520
www.ashland.or.us
Tel: 541-552-2400
Fax: 541-552-2436
TTY: 800-735-2900
r;.1
CITY OF
ASHLAND
Ashland Home Net has a license to do business in the City of Ashland, continues
to meet all requirements for a video provider as set forth by the FCC, and as such
meets this criterion.
C. The capacity of the public rights of way to accommodate the applicant's
proposed facilities.
The applicant is utilizing the Ashland Fiber Network as part of their lease of the
video facilities and as such does not impact the capacity of the public right of way. This
criterion is met.
D. The capacity of the public rights of way to accommodate additional utility
and telecommunications facilities if the franchise is granted.
Criterion is met in the same manner as in item "C" above.
E. The damage or disruption, if any, of public or private fac.i1ities,
improvements, service, travel or landscaping if the franchise is granted.
Criterion is met in the same manner as in item "C" above.
F. The public interest in minimizing the cost and disruption of construction
within the public rights of way.
Criterion is met in the same manner as in item "C" above.
G. The service that applicant will provide to the community and region.
The applicant's response to the RFP and the executed lease that resulted
include a clear definition and description of the cable television services that are
provided and the method for public input for those services. The executed lease meets
the criterion for this item.
H. The effect, if any, on public health, safety and welfare if the franchise is
granted.
Since the applicant is not using the public right of way, there are no apparent
effects on public health, safety and welfare if the franchise is granted and so the
criterion for this item is met.
I. The availability of alternate routes or locations for the proposed facilities.
Criterion is met in the same manner as in item "C" above.
J. Applicable federal and state telecommunications laws, regulations and
policies.
Ashland Home Net continues to meet all requirements for a video provider as set
forth by federal and state telecommunications laws, regulations and policies, required
as a condition of the lease and as such meets this criterion.
K. Such other factors as may demonstrate that the grant to use the public
rights of way will serve the community interest.
Criterion is met in the same manner as in item "C" above.
INFORMATION TECHNOLOGY
90 North Mountain Avenue
Ashland, Oregon 97520
www.ashland.or.us
Tel: 541-552-2400
Fax: 541-552-2436
TTY: 800-735-2900
~A'
CITY OF
ASHLAND
Order
Based upon the application materials, franchise agreement and the evidence in the
whole record, the City Council finds and determines that the criterion and standards for
approval of a telecommunication franchise pursuant to AMC Chapter 16 are met,
subject to execution of the standard City franchise agreement.
Ashland City Council
Mayor John W. Morrison
Date
Signature authorized and approved by the full Council this _ day of December 2007
Approved as to form:
Interim City Attorney
INFORMATION TECHNOLOGY
90 North Mountain Avenue
Ashland, Oregon 97520
www.ashland.or.us
Tel: 541-552-2400
Fax: 541-552-2436
TTY: 800-735-2900
r~'
The following “Verde Village” documents are kept on file with the
December 4, 2007 Council Packet in the City Records Vault:
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Record for Planning Action #2006-01663
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Outline Plan, Book II - Appendices
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Revised Outline Plan, Book III - Narrative