Agendas and Minutes

City Council (View All)

Regular Meeting

Minutes
Tuesday, July 15, 2008

 

MINUTES FOR THE REGULAR MEETING

ASHLAND CITY COUNCIL

July 15, 2008

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, Silbiger and Chapman were present. Councilor Jackson was absent.

 

MAYOR’S ANNOUNCEMENT OF BOARD AND COMMISSION VACANCIES

Currently there is one vacancy on the Public Arts Commission and three vacancies for the Tree Commission. 

 

SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?

The minutes of the Special Meeting of June 30, 2008, Study Session of June 30, 2008, Executive Session of July 1, 2008 and Regular Council of July 1, 2008 were approved as presented.

 

SPECIAL PRESENTATIONS & AWARDS (None)


CONSENT AGENDA

1.   Does the Council accept the Minutes of Boards, Commissions, and Committees?

2.   Does the Council wish to confirm the Mayor’s appointment of John F. Williams for a term to expire April 30, 2010 to the Forest Lands Commission?

3.   Will the Council approve the Agreement for Services between the City of Ashland and Southern Oregon University for the provision of public television by Rogue Valley Community Television?

4.   Should the City Council accept the Certified Local Government grant of $4,575 from the Oregon State Historic Preservation Office for historic preservation activities?

5.   Does the Council wish to ratify the new Labor Agreement between the City of Ashland and the International Brotherhood of Electrical Workers Local No. 659?

6.   Does the Council wish to authorize the establishment of an HRA VEBA plan for the City of Ashland employees?

7.   Will the Council approve a new contract with Harrang Long, Gary Rudnick P.C. for legal representation through June 2009 on cases previously covered under the consolidated services contract approved December 4, 2007?

8.   Will the Council, acting as the Local Contract Review Board, approve a Sole Source Procurement for the disposal of biosolids from the Wastewater Treatment Plant at the Dry Creek Landfill?

9.   Will the Council approve the appointment of Don Laws to the Mayor’s Downtown Task Force?

 

City Attorney Richard Appicello clarified that consent agenda item #7 should state that the “not to exceed amount” be increased to $85,000.  The Schofield case was appealed last week to the Court of Appeals and has been added to the contract. 

 

Councilor Chapman/Silbiger m/s to approve Consent Agenda. Voice Vote: all AYES.

 

PUBLIC HEARINGS

1.      Should the Council grant a request for Outline Plan approval of a six-lot, five unit Performance Standards subdivision for the property located at 500 Strawberry Lane?

 

City Attorney Richard Appicello summarized the status saying that the Public Hearing and Record is closed and that the next steps were to disclose Exparte Contacts, Deliberate, and then vote.

 

EX PARTE CONTACTS 

Councilor Navickas stated that he had worked in the past on the same project with Mark Knox who was a consultant.  He explained that project was not related to the proposed project being heard by the council and that he could make an unprejudiced decision.

 

COUNCIL DELIBERATION AND DECISION

Councilor Silbiger/Chapman m/s to approve the application for: Outline Plan approval under the Performance Standards Options Chapter 18.88 for a six-lot, five-unit residential subdivision; Physical & Environmental Constraints Review Permit for Development of Hillside Lands; Tree Removal Permit to remove 13 trees six-inches in diameter at breast height (d.b.h.) or larger; and an Exception to Street Standards to allow the applicants to end street improvements at the driveway of Lot 5 rather than extending them to the southern boundary of the project for the property located at 500 Strawberry Ln. in PA 2008-00182 with the conditions of approval attached by the Planning Commission as stated in the Findings and Orders dated April 8, 2008.

 

DISCUSSION: Associate Planner Derek Severson clarified that the Findings were not the exact Findings presented to the Planning Commission but that the conditions were identical numerically and otherwise.  The Findings were slightly modified to better correspond to the order of the criteria in the ordinance and that the conditions are identical now.

 

Councilor Silbiger/Chapman m/s to amend motion to include attachments as noted by staff.

Roll Call Vote: Hardesty, Silbiger, Chapman, Hartzell and Navickas, YES. Motion passed.

 

DISCUSSION on amended motion:

Council Navickas took issue with section 18.08.160 regarding Coverage or Lot Site.  He stated that the property owner combined all the lots in order to say that the overall lot coverage was less than the 20% maximum. He felt that the Chautauqua  Trace project was different then the Strawberry Lane project because that was a high-density housing where lot space was combined to create open public areas.  He said that the Strawberry Lane property owner maintained more property of their own and squeezed down the other properties in order to meet the overall lot coverage allowing them to get up to 28% lot coverage with the proposed buildings. Council Navickas thought the lot lines should change to remove some of the original owner’s property to meet that requirement on a site per site basis and that. Council should work to apply this so each individual site is not overbuilt.  He felt it did not meet the criteria and encouraged Council to vote against the motion and require the applicant to return with a proposal that met each individual site with the 20% maximum lot coverage.

 

Councilor Silbiger felt that the process did meet the criteria. That the open space created was sufficient and met the standards.  He said that having a standard apply to specific places and not to others was not in the ordinance.  If a high-density standard is required, it should be in the law and not decided by Council. 

 

Roll Call Vote: Hartzell, Hardesty, Silbiger and Chapman, YES; Navickas, NO. Motion passed 4-1.

 

Councilor Silbiger/Chapman m/s to adopt the attached Findings. Roll Call Vote: Hardesty, Silbiger, Chapman, YES; Hartzell and Navickas, NO. Motion passed 3-2.

 

PUBLIC FORUM None

 

UNFINISHED BUSINESS

1.   Does the Council wish to approve an order authorizing a lease of real property to the Ashland Gun Club?

Parks Director Don Robertson provided background on the lease process, which began in February 2004 when the Ashland Gun Club approached staff and the Parks Commission on extending the lease.  Since that time, staff has met with members of the Gun Club, the community, neighbors and City Council who directed staff to draft a lease for consideration.  That draft was presented to City Council on June 16, 2008 and then returned to staff for further revisions.

 

Assistant City Attorney Megan Thornton read the modifications to the draft lease from the Council Communication.  Ms. Thornton reviewed additional staff suggestions based on comments from Councilors and Legal Counsel. 

 

The following suggested changes were presented to the council for further discussion and review:

 

1.      Who is responsible for the cost of the environmental clean up and what are the timelines associated with the clean up. 

Section 4.3. Hazardous Substances was amended:  The lessee shall comply with the current version of the Environmental Protection Agencies (EPA’s) Best Management Practices that will apply to the property.  A sentence was added that the Lessee should comply with the terms and timelines of any management plan developed because of the environmental assessment in Section 4.5 and consistent with the EPA’s Best Practices.  In addition, changes were made regarding expiration. That on the expiration or termination of this Agreement, Lessee shall remove all lead from the Property that exceeds permissible levels at its own expense, clarifying that the cost is the Gun Clubs.  That the environmental assessment is for the entire property and that the terms and timelines that come from the management plan once the environmental assessment is completed will be the terms and timelines the Gun Club must abide by for the terms of their lease.

 

2.      The requirements for the environmental assessment should be more clearly defined, and it should be clear that the parties are splitting the costs of the environmental assessment 50/50.

Suggestion that the City hire an Environmental Consultant or an Environmental Professional to run the environmental assessment and the management plan, with the Gun Club’s approval of that person or agency.  Section4.5 of the lease clarifies that the cost of the environmental assessment will be split 50-50 between the Gun Club and the City because the property is 66 acres and the entire property needs to be assessed. The Gun Club lease covers 32 acres.

 

It was explained that the four minimum requirements listed will be required of the Environmental Consultant and may increase. The City will determine the terms of the environmental assessment once the property is assessed.

 

3.      The lease needs to clarify who is responsible for clean up and the cost of clean up.

Section 5.1. Lessor’s Obligations was added stating that the Lessor will assume responsibility for any environmental clean up that is required if the environmental assessment shows that there is contamination that is not the result of the Lessee’s activities.

 

Under section 5.2., Lessee’s Obligations staff added the clause that the removal of lead and lead contamination from the Property that exceeds permissible levels, and payment for such removal.

 

It was explained that the reason the lease states lead removal and lead contaminants was that it is the main contaminant to come from Gun Club usage.  The proposed new lease makes the Gun Club responsible for all lead dating back to previous occupancy, allowing more remediation than the current lease allows.

 

4.      The insurance requirements should be increased.

Liability insurance was changed to $2,000,000, which is the standard.  The Gun Club currently has $2,000,000 of liability insurance where other Gun Clubs in the valley have $1,000,000.

 

5.      Indemnification should survive termination of the lease.

In the event the City sued the Gun Club, they would be indemnifying the City for the cost of the suit.  “Indemnification should survive termination of the lease” was added to protect the City in the future from possible Environmental suits after the lease terminates.

 

A clause was also added to Section 7.2. Indemnification specifying that the indemnification clause shall include attorney’s fee on appeal in case there is an appeal that occurs due to any litigation. 

 

Clarification that in Section 4.3.there is a required bond amount that would satisfy dissolution.

 

6.      The City should be able to receive damages for clean-up costs if the lease is terminated.

In Section 12.2. Damages Clause was modified to add cost of environmental studies, assessments and clean up associated with the remediation of lead on the property.

 

7.      The property should be returned to the City free of all environmental contaminants. Section 12.3 Condition of Property.

A requirement that the property be surrendered at the end of the lease, free from all lead and lead contaminations in excess of permissible levels, at its own expense was added. 

 

8.      The City should specify that attorneys’ fees on appeal are recoverable.  Section 13.2. Attorneys’ Fees.

A clause was added making attorneys’ fees on appeal recoverable.

 

9.      The City should increase the number of months in which it can place notices to lease or sell the property.  Section 13.6. Entry for Inspection.

The numbers of months changed from two to twelve months to re-let or sell the property in case of termination or at the end of the lease.

 

Ms. Thornton clarified that it would be difficult for the Gun Club to begin remediation without the assessment. She explained that a way to initiate that would be to have an earlier deadline on the environmental assessment. City Attorney Richard Appicello stated that the contract, with the Environmental Professional for the assessment and remediation plan, specifies a desired timeframe for reporting to Council as well as schedule a timeframe for the clean up.

 

Staff was directed to include into the lease that the City would pick the Environmental Consultant and that Council will approve the Management Plan, allowing opportunity to review prior to implementation.

 

Ms. Thornton explained that the “current version“ language covers any revisions to the EPA’s Best Management Practices due to science or anything else the EPA undertakes.  The language in the Best Practices document is not mandatory but the lease makes compliance with the Best Practices mandatory in terms of the lease by saying you shall comply and then in addition the Environmental Assessment and Management Plan have to comply with the EPA’s Best Management Practices.  The “most current” was suggested to be added in order to avoid confusion and “the” Management Plan instead of “any” Management Plan. It was also suggested that staff revise the lease to include green and copper bullets in addition to lead.

 

The original term of the lease was 20 years and the extension options allows for additional extension beyond that time-period which is explained in the work table Section 2.3  The Gun Club needs to have a minimum of  10 years on their lease at all times in order to receive Grant Funding and the extension table satisfies this requirement.  Clarification that Section 2.2 Original Terms separated the first 20 years and that Section 2.3 Extension Options explained the method of extension.

 

Ms. Thornton explained the process on how permissible levels were determined.  Federal law sets the baseline, then State law builds on the Federal guidelines and that if the State chooses a stricter guideline they would have to comply with the Oregon statute for a stricter guideline.  

 

PUBLIC TESTIMONY

Harold Lee/258 Orange Avenue/ Explained that he is a member of the Ashland Gun Club and considers this a safety issue and that the city has an obligation to provide a safe environment for those that use fire arms and that the Gun Club does this.  It provides practice field for several agencies in the area.  The concealed weapon holders need a training area and a place to teach gun safety.  He urged Council to adopt a workable lease with the Gun Club and to promote its use that is good for the town and valley.

 

Paul Heiner/11740 Corp Ranch Road/Explained that he is a member of the Ashland Gun Club and that the Club provides a safe environment he can take his children for training on gun safety. He added that he is a bow hunter and frequently uses the bow range at the Club.  He urged Council to adopt something workable for the Gun Club.  He shared his appreciation on the clean up and wants his children to witness how they take care of the land.

 

Sydnee Dreyer/823 Alder Creek, Medford/Attorney on behalf of Catherine DeForest and neighbors/Urged Council not to consider the lease until the Environmental Assessment is complete and questioned the amount of contamination at the site, identification of contaminates and the area of contamination.  She questioned what the remediation cost would be and referenced that other cities have had clean-up costs range between $100,000 and $4.5 million dollars and questioned if the Gun Club would have the money to pay. 

 

She questioned the length of the proposed lease and what would happen if the City were to declare an emergency on this land.  She did not feel that it was fiscally responsible for the City and that it was a violation of the Valdez Principals.  Ms. Dreyer stated that the intent was not to shut the Gun Club down, but the need to require an environmental assessment.  She did feel that there was an urgency to seek a new lease but that it was more important to have all lead removed from the premises.  She did suggest that the City could move forward with the assessment in the current lease and at the end of the lease, grant a one-year extension if the assessment is not complete.  She urged Council not to move forward on the lease at this time and to make a motion to move forward with environmental assessment.

 

SamWhitford/355 Scenic Drive/Explained that he is a member of the Ashland Historic Commission.  He noted that the Commission voted unanimously to postpone the lease until the environmental assessment was done. That the Historic Commission is concerned about the artifacts on the land.  Mr. Whitford voiced his concern regarding the need for clean up on this land and hopes that laws will be passed that the environment comes first.  He urged Council to look after the people and protect the taxpayers and suggested this lease not be renewed until the environmental study is complete.

 

Sydnee Dreyer asked if Council had declared whether they were members of the Gun Club.  City Attorney Richard Appicello clarified that Council is not obligated to declare conflict of interest.  That being a member of a not-for-profit organization does not create a conflict of interest.   

Eliseo Gonzalez-Urien/10911 Corp Ranch Road/Explained that he is a member of the Gun Club and requested that the lease be renewed with the club.  He felt this activity could easily be demonized but when looking at the facts objectively it is no more dangerous than cutting wood with a chain saw.  He stated that it is easy to use scare tactics associated with lead but that there are thousands of gun clubs in the United States with the majority of those undergoing periodic cleaning for contaminants.  Mr. Gonzalez-Urien explained that there are individuals who make a living out of mining lead and recycling lead from Gun Club usage. He suggested getting an opinion from the EPA as they monitor lead removal from Gun Clubs and strongly recommended that more information should be provided regarding the word ‘lead.”

 

Michael LaNier/155 Suncrest, Talent/ Explained that he is a member of the Gun Club and has been working with City Staff for 2 ½ years on this matter resulting in 11 meetings.  He does not think there is a single thing in the draft that places the City in any jeopardy but that would only accrue if the lease were not approved.   Current law shows that if the Gun Club’s lease expires and the Gun Club finds another place to shoot, the City will be responsible for the clean up, as it is not covered in the current lease.   The Gun Club supports the “best management practices” associated with the EPA and in order for participation to happen, the lease must go forward. To delay this process is frustrating to those who worked on the draft.  He noted that the Gun Club had not seen the most recent changes and will need time for review.  Mr. LaNier asked that if the draft is continued to another time, to make it time and date specific.  He concluded that is was odd to have the Gun Club contract open to public comment when most other contracts for the City are negotiated by staff and placed on the Consent Agenda for approval.

 

Section 5.2 was referenced and Mr. LaNier stated that he was not the attorney for the Gun Club and could not address compliance.

 

Mr. LaNier explained that the Gun Club did not believe they were responsible for lead clean up because it was not toxic, but that lead salts are toxic.  He explained that lead does not migrate if it is put into a berm and that under the current lease it would be difficult for the City to enforce the Gun Club to mine the berms.

 

David Morris/1591 Hancock, Medford/Explained that he is currently the Match Director for the Cowboy Action Shooters and has used the Ashland Gun Club for 12 years hosting matches monthly.  They host an annual match that brings people to Ashland and spend at the local businesses.  The Gun Club provides a safe place for competition and that the Cowboy Action Shooters is a family activity.  He strongly urged the Council to sign the lease.

 

Patrick Marcus/813 Leonard/Stated that Ashland is a community blessed by the opportunity to participate in a multitude of outdoor activities and that playing sports and handgun shooting is one of the fastest growing sports.  National participation has increased over 48% in the last 5 years, which confirms there is a demand for this kind of facility.  The Ashland Gun Club has served the community over the past 40 years without incident and has been very responsible as caretakers of the land.  He urged the Council to not postpone but approve the lease.

 

Frank Dressler/1186 Char Way, Medford/Came to the area after 1953 and wants the Gun Club lease approved for many reasons.  He shared that he goes to the range once a week knowing it is a safe environment.

 

Tom Doty/2025 Tolman Creek (representing 400 petitioners)/Explained that he is a Native American storyteller and Cultural Specialist in the area and that his family has lived here for many generations .  He shared that in the past 3 days, 430 people had signed a petition requesting that the City Council delay renewal of the Gun Club lease until the environmental assessment including the impact of the lead on the land, wildlife, and Native American relics and Lithia waters historic sites be completed.  He did not dispute the Gun Clubs right to be at the site but only suggested that it would be premature for Council to approve without first doing the environmental assessment. His interests are in the historical and cultural aspects of the land and noted that the native people consider the area around Lithia Springs to be a sacred site.  The environmental assessment would not only answer questions but could identify possibilities for cultural and historical needs.

 

Chuck Parlier/6801 Irish Lane/Stated that he was the President of the Gun Club. He presented samples, which described lead metal as a non-contaminant and explained that lead salts, iodide and nitrates were poisonous, but most lead compounds were not and were inert.  He explained further that in 1987 they went over the entire area and did not find any historical artifacts.  Mr. Parlier requested that the council approve the lease with the Gun Club.  In response for clarification on what type of ammunition was used, he stated that most ammunition is pure lead, filled lead and copper.

 

Leon Pyle/460 Sunshine Circle/Explained that although this issue may have been worked on for the last two years the public is just now getting to hear it. He understands gun safety and does not believe that this is the issue. He went on to say lead is highly toxic. He read excerpts from the Valdez Principals.

 

Tilson Joseph/840 Cypress Point Loop/Explained that he was a member of the Gun Club and voiced the value of this recreational activity at his age (76) and that this is an enjoyable activity.

 

Bill Longiotti/245 Arnos, Talent/Expressed his disappointment on the misinformation presented during this Public Testimony.  He stated that he was an officer of the Gun Club and that over 65% of the members live in Ashland.  He was concerned about the City doing the environmental assessment rather than the Gun Club and noted the city use of the property, which had created pollutants above the property by the old water plant.  These included an accumulation of street sweepings and selenium that is in the Lithia water. He brought and shared samples of evaporated Lithia water and explained its hardness and that it is impervious to most things.  He explained that this surrounds the level part of the property to within 2 feet below the property. 

 

Mr. Longiotti explained that they had lost the grant, which had been applied for through the State Hunters Licensing program.  He explained that a certain amount of money is put aside for grants to help improve the range and that the Gun Club will not be able to apply for grant monies until June 2009. The Club charges a $35 annual membership fee and works with a budget just over $7,000 a year, which is used to maintain the property.

 

Hal Russell/283 High Street/Explained that he was a member of the Gun Club. He provided Council with two bullets from the Civil War that had been on the ground for 135 years and had not disintegrated.   He explained that the white material on the bullets is lead oxide, which is formed (not easily) when lead lies in the ground.  The coating of the lead oxide is toxic, but lead metal is not. He hoped that Council would approve the new lease, as the Gun Club was a city asset.

 

Cathy DeForest/460 Sunshine Circle/ Stated that she owns property on Emigrant Creek Road.  She displayed a visual representation of the 430 individuals who signed the petition.  Ms. DeForest shared information from a conference at Boise State University regarding the ingestion of spent lead ammunition for wildlife and humans. She mentioned the Oregon Environmental Council and said they are tracking lead content in humans in the State of Oregon.  She is concerned about the lack of discussion on whether the Gun Club considers using non-lead ammunition.  She said the environmental impact study done prior to renewing the lease would not only answer some of the implications but it would also be based on scientific evidence.

 

Carlos Reichenshammer/780 Walker Ave/ Urged the Council to consider the formation of a task force or working group to determine possibilities and ramification of the land being used by the Gun Club and the benefits it could produce for Ashland citizens. He mentioned there were available funds from the State and Federal government to clean up the land and suggested that a task force conduct a 60-day assessment study. 

 

Bob Rasmussen/1530 N Mountain Ave/Stated that he was a past member of the Gun Club and plans to join again.  He shared his family’s use of the Gun Club and that it provides a lot of recreation and is an asset to the community.  He said that it is the responsibility of the Gun Club to include copper jacket bullet removal as well as all lead.  The Gun Club newsletter continually shows a responsible group of safety minded people.  Noted that the bullets are in the berms and contained in one place. He hoped for a resolution that continues to support the Gun Club.

 

Nick Frost/963 Tolman Creek Road/Explained he was a member of the Oregon League of Conservation Voters but was there to speak on his own behalf.   He shared that he grew up using the Gun Club.  He said that currently no one knows the extent of lead contamination nor the cost for clean up.   The lease is not strong enough and that it gives the Gun Club plenty of time to drag its feet.  He asked that prior to signing a long-term lease the City wait for the environmental assessment and make provisions to mitigate any inclusion in the future.  He reminded Council that we live in era of consideration.  We must be considerate of the neighbors and consider the impact of lead close to a stream.   He urged not to proceed until the environmental study was complete, and that clear steps for clean up and prevention of future contamination are included in the contract.  Otherwise, the City leaves itself open for litigation and incurring clean up costs.

 

Steve Ryan/657 C Street/Read a letter from the Jackson County Chapter of the Oregon League of Conservation Voters.  The letter stated that the City has a responsibility to ensure that the land is free from long-term contamination.  A study of lead and other contaminants at the site should occur and once the scope is clear, a clean up program and long-term plan to eliminate future contamination should be developed.  When all parties agree to the terms of the clean up plan, the lease renewal negotiations may proceed in due course.  The Oregon League of Conservation Voters believes that responsible leadership requires looking at long-term environmental impact of decisions.  He asked that the Council table any decision or deliberation on the lease renewal until the conditions on the ground are fully understood and existing contaminants removed. 

 

Peter Thorniley/115 W Rapp Road, Talent/Testified that he has purchased over 500 pounds of lead from the Ashland Gun Club and that it shows the Club has done significant reclamation of lead shot at the range. He believes the Gun Club has behaved responsibly in cleaning up some of the lead and that there are plenty of volunteers interested in additional clean up.   

 

Kevin Nussbaum/5597 S Fork, Little Butte Creek Rd, Eagle Point/He explained that firearms have been a way of passing things down from one generation to another, both appreciation of what belonged to someone else, respect for the firearm, and safety.  He said the Ashland Gun Club gives the community this chance to pass it on to another generation. He said he was not a hunter but a life long vegetarian who enjoyed shooting sports and competes one day a month.  He stated he has learned more about safety from the Cowboy Action Shooter Club than he learned about safety as a 10 year Ski Patrol Volunteer.  People are concerned about safety, passing on n good shooting techniques, camaraderie and urged council to renew the lease.

 

NEW AND MISCELLANEOUS BUSINESS

1.   Does the Council wish to approve a Resolution Clarifying Conditions of Employment for Management and Confidential Employees, repeal Resolution 2007-32, and amend the salary schedule for fiscal year 2008-2009?

Human Resource Manager Tina Gray provided a brief background on the five bargaining groups and staff  recommendation.  She explained that staff recommended a 2% increase for Management and Supervisory staff and 3% for the Confidential employees.  In addition, 1% of employee salary be placed in a HRA-VEBA program which would offset the out-of-pocket expense incurred through reduction in benefits and to increase the Deferred Compensation from $30 to $40 a month.

 

Other changes included eliminating post retirement health benefits for anyone and clarifying alternate work schedule holiday pay language. Finally they calculated salary increases for the Judge and City Recorder to be consistent with charter provisions. Ms. Gray explained in the past,  most of the bargaining units in the management group offered some sort of retirement  health benefit cpompensation This was eliminated from the other bargaining contracts and is now consistent with the management contract. She further explained that the savings associated with the HRA-VERBA was slightly higher and that the City is phasing it in with the healthcare change.

 

Councilor Hartzell/Silbiger m/s to approve Resolution #2008-26. Roll Call Vote: Chapman, Hardesty, Hartzell, Silbiger and Navickas, YES. Motion passed.

 

ORDINANCES, RESOLUTIONS AND CONTRACTS

1.   Should the City Council conduct and approve Second Reading of an Ordinance titled, “An Ordinance amending Chapter 2/25, Street Tree Commission, amending name, membership, quorum, powers and duties, and other requirements”?

City Attorney Richard Appicello read aloud the changes to the ordinance.

 

Councilor Chapman/Silbiger m/s to approve Ordinance #2962 with amendments as noted by staff. Roll Call Vote: Silbiger, Chapman, Hardesty, Navickas and Hartzell, YES. Motion passed.

 

UNFINISHED BUSINESS-continued discussion regarding Gun Club Lease

Assistant Attorney Megan Thornton clarified that there was not a clause for transferring the lease without the City’s approval. City Administrator Martha Bennett referred to Article 10, which states that no part of the property may be signed, mortgaged or subleased.

 

Ms. Thornton explained that a buffer for the greenway would be a simple addition to the lease but that it is difficult to put an easement on the property without knowing where the greenway will go. The flexibility with the proposed lease is that regardless of where the greenway is constructed, the lease requires them to move and allow the construction.  If the Gun Club did not comply, they would fall into default on the lease and lead to termination.  The likelihood is that the greenway construction will be near the road and not close to the range or should not interfere with Gun Club activities.

 

Mr. Robertson explained that the berm material came from the excess soil from Public Works projects, excavations from sewer lines, and water lines.  In the past, the City routinely used the Dry Ice Plant to dispose street sweepings, not into the berms and that now the City dumps only clean fill on the property.  He explained that it would be extremely difficult to determine what, if any contaminants were imported to the berms.  However, he added that it would not be difficult to determine contaminants associated with the Gun Club since it relates to lead and copper, etc. Compounds not associated with bullets could determine whether it is associated with the Gun Club or the City.

 

In regards to grants, agencies have different criteria for grant monies; the goal of the grants is associated with life expectancy and the ability to amortize their investment.

 

Mr. Robertson stated that it his understanding, if the lease is not renewed and the Gun Club ceased operations, they would be responsible for putting the property back to the way they found it.

 

City Attorney Richard Appicello stated that the lease is not clear on this matter and if the City pursued an action against the Gun Club, the City would make certain arguments that the Gun Club had certain responsibilities, even though the officer from the Gun Club does not think the current lease requires them to remove all lead. The lease has the provision to return the land to what it was before and could be arguable that it is the condition it was in 1994. Mr. Appicello clarified that most citations relate to owner responsibility statutes and strict liability for environmental practices.  The City is the owner of the property and is responsible.  During the term of the lease if there is a violation of an environmental law under Section 5 of the lease it triggers Section 12, which gives the Lessee 30 days to repeal.  If they do not initiate a remedy within those 30 days, it goes to Section 13 on Termination.

 

He also clarified that if the environmental assessment shows contamination then remediation will be consistent with the water resources ordinances, including restoration of native plant material.

 

Ms. Thornton explained that any improvements, on or after being destroyed by natural disaster, is that the lease will continue in full force.  Under the current lease, any further additions have to be approved in writing.  She explained that Exhibit A shows the technical property description, and defines the entire area.  Exhibit B is a map that shows all three-tax lots of the area and zone restricted from the Gun Club.  The riparian corridor is outside of the Gun Club lease premises and Exhibit C shows the historic areas excluded from the lease premises.

 

Ms. Thornton felt that the proposed lease is superior to the existing lease as it relates to environmental protection and the City’s responsibility.  The current indemnity clause does not protect the City. The proposed lease indemnity clause covers the City in a direct suit against the Gun Club and a third party suit against the Gun Club.  In addition, it is clear that all lead and lead contamination removal is the responsibility of the Gun Club.  The new lease allows for mediation and lets the City file suit if clean up has not occurred.  She continued to explain that under the current lease there is not a requirement for the environmental assessment or that the Gun Club helps with the cost.  Nor does it cover the management plan or indemnity costs, which would mean that the City may have to cover clean up costs, which makes the new lease more prudent.

 

Mr. Robertson explained that the Gun Club has one modest sized one-room facility that is used for instructional opportunities.  Ms. Thornton explained that there would be a number of land-use regulations through the county planning and permits process, for any approval of structure that is beyond the exempt square footage.

 

Further clarification on the definition of premises included that it excludes one section of the riparian zone, while the other falls within the property area, but is not used by the Gun Club.  The riparian corridor provision was added so that exclusion of that area continues.  The last sentence of Section 4.5 states “including all prohibitions of alterations in the riparian corridor.”  It was explained that mapping the riparian corridor is difficult and could lead to a problem in defining the corridor out of the lease.  The current lease requires the City, not the gun club to manage the riparian corridor as marked on Exhibit D. 

 

Mr. Appicello stated that it is the intention of the lessor/lessee, that grants and other environmental remediation programs in the term of agreement will make posting financial security unnecessary.  The purpose is to facilitate the Gun Club to secure grants to effect the clean up. If it does not occur to the satisfaction of the City, the City has the right in 2019 to tell them to start posting financial security. It has to be in a form acceptable to the City Attorney and an amount that is acceptable to the Public Works Director. Ms. Thornton said the reason this would not occur sooner than 2019, is that the Gun Club is a not-for-profit organization.

 

Council requested that the Gun Club have an opportunity to review the memorandum from the Legal Department and that the Council are allowed further time to evaluation the proposed lease.

 

Councilor Hartzell/Navickas m/s extension until August 5 Council meeting. Voice Vote: all AYES. Motion passed.

 

NEW AND MISCELLANEOUS BUSINESS-continued

2.   Should the Council direct staff to work with Mr. Sandler to examine his development proposal for the City owned Lithia Way parking lot, and provide a Staff analysis back to the Council for consideration?

City Planner Brandon Goldman presented the staff report and provided history from the Council Communication, which included two options for the council to consider. These options were the following:  1) work exclusively with Allan Sandler to fully examine his proposal and come back financial details and 2) to complete the evaluation of incentives and come back to Council to answer the question of potential development over the Lithia Way parking lot or other downtown properties.

 

Allan Sandler asked Council to allot two hours of staff time to review his plan and submit their opinions back to Council. The plan included eight stipulations and was presented to the Council, which was included in the record of the meeting. Mr. Sandler explained that affordability would fall within the confines already established and listed in the Council Packet.  He described the ten units as five two-bedroom and five one-bedroom units all larger spaces than required. 

 

Council considered whether to allow staff time or if a Request for Proposal (RFP) would be more appropriate.

 

Mr. Sandler withdrew his proposal, as there was no clear consensus amongst the council to proceed.

 

OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS

 

ADJOURNMENT

Meeting was adjourned at 10:30 p.m.

 

Barbara Christensen, City Recorder

John W. Morrison, Mayor

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