The following terms and conditions are incorporated into and made part of the Consent Decree.

1. A. Until "Substantial Completion" (which is defined in subparagraph 1B below), the City will agree (1) not to pass a resolution under ORS 199.490 (procedure for minor boundary changes or transfers of territory), except as set forth in ORS 199.490(5)(b) (pertaining to annexations under the Health Hazard Abatement Law), and (2) not to pass a resolution or ordinance under ORS 222.750 (annexation of unincorporated territory surrounded by city), if the resulting annexations would require connections to the City's sewer system before Substantial Completion. Other than annexation under ORS 199.490(5)(b) or ORS 222.840 to 222.915 (Health Hazard Abatement Law), the City will agree to object to any annexation initiative or proposal until Substantial Completion if the annexation would require connection to the City's sewer system before Substantial Completion. The City retains the right to initiate annexation, and to support annexation, under ORS 199.490(5)(b) and ORS 222.840 to 222.915.

B. The City will agree not to initiate or support any annexation as set forth in subparagraph 1A above until the improvement to the Wastewater Treatment Facility ("WWTF") has reached Substantial Completion. "Substantial Completion" means that the DEQ has sent a letter to the City expressing its opinion that the City has completed "the necessary upgrades/expansion to the WWTF and any required work on the collection system" as required by paragraph 11A(10) of the Mutual Agreement and Order ("MAO") entered into between the City of Florence and the Oregon Department of Environmental Quality in April, 1996 (a copy of which is attached as Exhibit 1 hereto).

2. A. The City will agree not to issue a Certificate of Occupancy or Temporary Certificate of Occupancy to the proposed Fred Meyer store to occupy its [proposed development or any other proposed Fred Meyer project within the City of Florence before May 1, 2000. If Substantial Completion of improvements to the WWTF as determined under 1B above does not occur by October 31, 2000, then Fred Meyer will use storage receptacle(s) for human waste until Substantial Completion is achieved. Waste from the storage receptacle(s) may be disposed of at the City WWTF during times when adequate hydraulic and solids treatment capacity exists. During times of inadequate capacity and at all times when daily effluent exceeds 1.4 million gallons per day, waste from the storage receptacle(s) shall be disposed of, if necessary, at a facility with adequate wastewater treatment capacity.

B. The City will agree not to issue a Certificate of Occupancy or Temporary Certificate of Occupancy to the proposed Factory Outlet Mall before Substantial Completion of improvements to the WWTF as determined under 1B above.

C. The City will agree, upon agreement with St. Vincent dePaul, not to issue a Certificate of Occupancy or Temporary Certificate of Occupancy to St. Vincent de Paul to occupy the premises of its multi-unit housing project before December 1, 1999. St. Vincent de Paul will be permitted to seek to occupy the premises on December 1, 1999, because its failure to achieve occupancy by December 31, 1999, could risk the loss of significant sums of federal grant money already approved for the project. OSCC will work with St. Vincent de Paul to try to extend the occupancy date until Substantial Completion of the upgraded/expanded WWTF. If O|SCC and St. Vincent de Paul agree to extend the occupancy date, the City agrees not to issue a Certificate of Occupancy or Temporary Certificate of Occupancy until that date.

3. The City agrees that, if Substantial Completion has not been attained by October 31, 2000, the City will initiate the process for declaring a moratorium as set forth in ORS 197.505-197.540 (or any future version of those statutes or other applicable state law) on further sewer connections from October 31, 2000, until Substantial Completion has occurred. This agreement does not bind the City Council to any particular outcome of that process.

4. A.The City shall provide bypass and overflow warning signs to area establishments where fishing licenses are sold at the request of any such establishment, on the condition that any such establishment agree in writing that bypass and/or overflow warning signs will be removed when no bypass and/or overflow is occurring and that if bypass and/or overflow warning signs are not removed when no bypass and/or overflow is occurring that the City may remove such signs.

B. The City shall agree to post additional warning signs in the form the DEQ has approved in the following locations, as indicated on the map attached as Exhibit 2: (1) the dock in Old Town near the gazebo; (2) the Port of Siuslaw dock and boat ramp; (3) the dock in Old Town near Mo's; (4) the end of the South Jetty Road at the entry to the parking lot (where surfers generally park) upon the City obtaining such permission from the appropriate governmental authority that owns the land; (5) on Rhododendron Drive just north of Wildwinds at a location where wind surfers often enter the river; and (6) on the North Jetty Road above the clamming beds and below the Lane County Park upon the City obtaining such permission from the Oregon Division of State Lands.

C. The City shall obtain, and provide to OSCC's counsel, a letter from KCST by February 15, 1999, stating that KCST shall announce notice of a reportable bypass or overflow during regularly scheduled newscasts (7:00, 8:00 and 9:00 a.m.; 12:00 noon; and 5:00 and 6:00 p.m.) Until 24 hours after the bypass or overflow ends, such announcements to include the amount and type of waste (e.g., raw or partially treated) to the extent such information is available.

D. The City shall notify KCST, the Siuslaw News and the Coos Bay World of a reportable bypass or overflow after the City has notified the Oregon Emergency Response System. The amounts and type of waste (e.g., raw or partially treated) discharged shall be provided to the extent such information is available.

5. The City shall obtain from the Public Works Director, the Plant Supervisor, and all current employees at the WWTF a written certification by no later than 10 days from the date of entry of the Consent Decree that they have read the document prepared by DEQ entitled "Domestic Wastewater Systems - Instructions for Completing Discharge Monitoring Reports, Guidelines for Laboratory Quality Assurance, Operating Access to System Information, and Organizing a Self-Monitoring Program;" that the Public Works Director and the Plant Supervisor have met with the DEQ to discuss that document, as well as the general reporting requirements of the City's NPDES Permit and the MAO; that the Public Works Director and the Plant Supervisor believe they understand the City's reporting obligations; and that the Public Works Director or the Plant Supervisor have discussed the City's reporting obligations with all employees at the WWTF.

6. The City shall, until Substantial Completion has been achieved, have the Public Works Director sign and attach to every DMR submitted to the DEQ and Plaintiff after the effective date of the settlement agreement an affirmation stating that he has conferred with the Plant Supervisor concerning the DMR and that, to the best of the Public Works Director's knowledge and belief, the Plant Supervisor has complied with the following requirements:

(A) reviewed the daily records containing total suspended solids, biochemical oxygen demand, and fecal coliform readings for the reporting month and has ensured that the DMR accurately reflects the readings in those books;

(B) reviewed the treatment plant operator log entries for the reporting month, paying particular attention to those entries concerning bypasses, overflows or spills; and has ensured that each reportable bypass, overflow or spill has been reported to the Oregon Emergency Response System via telephone, that a spill report has been filled out for each reportable event, and that a follow-up letter has been sent to the DEQ within five days of each such event, and that, if it is discovered that a follow-up letter has not been sent within five days of the event, one will be sent immediately; and

(C) noted each reportable bypass, overflow or spill in the DMR.

7. The City shall send copies of its monthly DMRs to Plaintiff's counsel (at the Western Environmental law Center) at the same time they are sent to DEQ until the improvements to the WWTF have achieved Substantial Completion.

8. The City shall send OSCC's counsel copies of its initial written notifications to any government agency (separate from the DMR's) of a reportable bypass or overflow at the same time as the written notification is sent to such government agency until Substantial Completion.

9. A. Until Substantial Completion, the City shall perform testing of water quality in the Siuslaw River, when, in the good faith opinion of the public Works Director or the Plant Supervisor, it is reasonably physically safe for the City employees to do so. The City shall perform tests every other week ("bi-weekly") for fecal coliform using the same sampling and testing methods required in the City's NPDES permit at the following locations:

(1) One mile upstream from the effluent pipe;
(2) Off the city docks in the channel;
(3) A station in the river channel between Ivy Street and the sewage treatment outfall pipe; and
(4) One-half mile upstream from the juncture of the south jetty and the shoreline.

B. The City shall perform daily tests for fecal coliform at the same locations and under the same conditions listed above during and after reportable bypasses or overflows which enter the Siuslaw River. These tests shall commence on the first day of the bypass or overflow event and shall continue to be performed each day for the duration of the bypass or overflow event. Daily testing shall continue each day following the cessation of the bypass or overflow at each testing location until either:

(i) the fifth day following the day on which the bypass or overflow ceased, OR

(ii) the average (arithmetic mean) of the test results from all four test locations is less than 14 colonies per milliliter OR the test results from each test location is less than the most recent test results under paragraph 9.A for each respective test location

D. The City shall send to OSCC's counsel test results by the 15th day of the month following the month of the tests.

E. If the City and OSCC mutually agree that the testing being conducted pursuant to this time 9 is not providing information which is beneficial or useful, then the City and OSCC may mutually agree to alter, vary, modify or eliminate such testing.

10. The City shall complete the following work no later than June 30, 1999:

A. Rebuild a pump at the 40th Street Pump Station;
B. Rebuild two pumps at the 11th Street Pump Station;
C. Rebuild the pump at the 9th Street Pump Station;
D. Install a submersible pump at each of the three pump stations in the Greentrees Subdivision; and
E. Rebuild an aerator at the aeration basin at the WWTF.

12. The City shall allow OSCC to perform "split sampling" two times per year at the WWTF for Fecal Coliform, Biological Oxygen Demand and Total Suspended Solids at the expense of the Cit6y up to a maximum of $800 for four sets of tests until Substantial Completion upon 48 hours' notice from OSCC. These tests will coincide with the City's regularly scheduled t4esting and may occur sooner or later than 48 hours after receiving notice from OSCC.

13. The City shall write a letter to the Siuslaw Middle School commending the school for its interest in testing the water quality of the Siuslaw River and encouraging the school to work with the City, if it is interested in doing so, in future testing.

14. The City shall make stipulated payments in the following amounts to Pacific Rivers Council's Knowles Creek Stream and Salmon Habitat Restoration Project for each violation, and for each day the violation continues after written notice of such violation is receive by the City, of Addendum B of the Consent Decree before Substantial Completion:

A. $250 for each violation of paragraphs 11, 12 and 13;
B. $500 for each violation of paragraphs 3, 4A, 4C and 5;
C. $50 for the first, $150 for the second, and $250 for the third for each violation of paragraphs 7 and 8; and
D. $100 for the first, $250 for the second, and $500 for the third for each violation of paragraphs 4B, 4D, 6, 9 and 10.

The City's failure to comply with items 1,2,3,5,11,12, and 13 shall be deemed "willful" on a showing that the City failed to comply with such items and without any additional showing. The City's failure to comply with any other item shall be deemed "willful" on a showing that the City failed to comply with such item and that the City's failure was without excusable neglect. "Excusable neglect," as used in this section, means "a failure to take the proper steps at the proper time, not in consequence of the City's own carelessness, inattention, or willful disregard, but in consequence of some unexpected or unavoidable hindrance or accident." The City shall have the burden of proving excusable neglect.

15. If any event occurs that is beyond the City's reasonable control, and which causes or may cause a delay, deviation or an inability to perform the requirements of the settlement agreement, the City shall contact OSCC's counsel to discuss extension of the times of performance as appropriate. If the parties are unable to agree, either party may seek the assistance of the court, which shall have the sole discretion to decide the issue. Circumstances or events beyond the City's control include, but are not limited to, acts of nature, unforeseen strikes, work stoppages, fires, explosion, riot, sabotage, or war.

16. For purposes of the Consent Decree the following terms shall have the meanings stated below:

A. "Bypass": diversion of waste streams from any portion of the conveyance system or treatment facility. For purposes only of this Addendum B and the Consent Decree, this definition includes, but is not limited to partially treated wastewater that discharges from or overflows from one or more processes at the WWTF without normal treatment (e.g., a pinflock event from a clarifier).

B. "Overflow": raw sewage which overflows any pump station or point from the collection system to a receiving waterway.
 

C. "Reportable Bypass or Overflow": a bypass of overflow which the City must report under the