HomeMy WebLinkAboutAgenda Packet - 2017-01-03Lake Oswego City Council Meeting
Tuesday, January 3, 2017
CONSENT AGENDA
For Full Council Approval
The consent agenda allows the City Council to consider items that require no discussion.
An item may only be discussed if it is pulled from the consent agenda.
The Council makes one motion covering all items included in the consent agenda .
6.1 Approval of Meeting Minutes
6.1.1 November 15, 2016, Regular Meeting
6.1.2 December 6, 2016, Regular Meeting
Motion: Approve minutes as written
6.2 Resolution 16-54, A Resolution of the City Council of the City of Lake Oswego Authorizing the City
Manager to Sign an Agreement with the Oregon Electric Railway Historical Society for Operating Passenger
Trolley Service, Maintaining the Trolleys, and Maintaining the Track and Right -of-Way on the Willamette
Shore Line
Motion: Move to adopt Resolution 16-54.
CONSENT AGENDA
For Full Council Approval
6.3 Resolution 17-04, A Resolution of the City Council of the City of Lake Oswego Declaring a Public
Necessity to Acquire Real Property Interests and Exercise the Power of Eminent Domain (Boones Ferry Road
Project)
Motion: Move to adopt Resolution 17-04.
6.4 Library Workroom Renovation Budget Approval and Establishment of a Guaranteed Maximum Price.
Motion: Move to authorize the City Manager to sign an amendment to the contract with FORTIS
Construction, Inc. to establish the Guaranteed Maximum Price of $735,951 for the library renovation project .
CONSENT AGENDA
For Councilor’s Approval
7.1 Resolution 16-56, A Resolution of the City Councilors of the City of Lake Oswego Approving
Appointments to the Development Review Commission
Motion: Move to adopt Resolution 16-65.
7.2 Resolution 17-02, A Resolution of the City Councilors of the City of Lake Oswego Approving an
Appointment to the Parks, Recreation and Natural Resources Advisory Board
Motion: Move to adopt Resolution 17-02.
503.635.0215 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.lakeoswego.city
AGENDA
LAKE OSWEGO CITY COUNCIL MEETING
January 3, 2017
6:30 p.m.
Council Chambers, City Hall
Contact: Anne-Marie Simpson, City Recorder
Email: asimpson@lakeoswego.city
Phone: 503-534-4225
The meeting location is accessible to persons with disabilities. To request accommodations, please contact the City Manager’s
Office at 503-635-0215 48 hours before the meeting. Electronic presentations must be delivered to the City Recorder 24 hours
prior to the meeting.
1. OATH OF OFFICE
Reception for newly and re-elected members of Council follows
2. CALL TO ORDER – Estimated to begin at 7:15 p.m.
3. ROLL CALL
4. PLEDGE OF ALLEGIANCE
5. ELECTION OF COUNCIL PRESIDENT
6. CONSENT AGENDA – Full Council Approval
6.1 Approval of Meeting Minutes
6.1.1 November 15, 2016, Regular Meeting
6.1.2 December 6, 2016, Regular Meeting
Motion: Move to approve minutes as written.
6.2 Resolution 16-54, A Resolution of the City Council of the City of Lake Oswego Authorizing
the City Manager to Sign an Agreement with the Oregon Electric Railway Historical Society
for Operating Passenger Trolley Service, Maintaining the Trolleys, and Maintaining the
Track and Right-of-Way on the Willamette Shore Line
Motion: Move to adopt Resolution 16-54.
6.3 Resolution 17-04, A Resolution of the City Council of the City of Lake Oswego Declaring a
Public Necessity to Acquire Real Property Interests and Exercise the Power of Eminent
Domain (Boones Ferry Road Project)
Motion: Move to adopt Resolution 17-04.
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503.635-0215 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.lakeoswego.city
6.4 Library Workroom Renovation Budget Approval and Establishment of a Guaranteed
Maximum Price.
Motion: Move to authorize the City Manager to sign an amendment to the contract with
FORTIS Construction, Inc. to establish the Guaranteed Maximum Price of $735,951 for the
library renovation project.
7. CONSENT AGENDA - Councilor Approval
7.1 Resolution 16-56, A Resolution of the City Councilors of the City of Lake Oswego Approving
Appointments to the Development Review Commission
Motion: Move to adopt Resolution 16-65.
7.2 Resolution 17-02, A Resolution of the City Councilors of the City of Lake Oswego Approving
an Appointment to the Parks, Recreation and Natural Resources Advisory Board
Motion: Move to adopt Resolution 17-02.
8. CITIZEN COMMENT
8.1 Prior Public Comment Follow-Up
9. PUBLIC HEARINGS
9.1 Ordinance 2726, An Ordinance of the City of Lake Oswego Amending the Evergreen R-7.5
Overlay District (LOC 50.05.002) to Prohibit Additional Building Height Allowances and
Make Corrections (LU 16-0042)
Public Hearing Process:
1. Review of hearing procedure by David Powell, City Attorney
2. Staff Report by Sarah Selden, Senior Planner
3. Testimony: the following time limits shall be observed, but may be
changed by the Council: 10 minutes for representatives of recognized
neighborhood associations, homeowner associations, government
agencies, or other incorporated public interest organizations; 5 minutes
per individual
4. Questions of Staff
Motion: Move to enact Ordinance 2726.
9.2 Ordinance 2728, An Ordinance Annexing to the City of Lake Oswego One Parcel Consisting
of 0.25 Acres at 5495 Tree Street; Declaring City of Lake Oswego Zoning Pursuant to LOC
50.01.004.5(a-c); and Removing the Territory from Certain Districts (AN 16-0008)
9.3 Ordinance 2729, An Ordinance Annexing to the City of Lake Oswego One Parcel Consisting
of 0.95 Acres at 4726 Upper Drive; Declaring City of Lake Oswego Zoning Pursuant to LOC
50.01.004.5(a-c); and Removing the Territory from Certain Districts (AN 16-0009)
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503.635-0215 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.lakeoswego.city
9.4 Ordinance 2730, An Ordinance Annexing to the City of Lake Oswego One Parcel Consisting
of 0.34 Acres at 13615 Knaus Road; Declaring City of Lake Oswego Zoning Pursuant to LOC
50.01.004.5(a-c); and Removing the Territory from Certain Districts (AN 16-0010)
9.5 Ordinance 2731, An Ordinance Annexing to the City of Lake Oswego One Parcel Consisting
of 0.6 Acres at 5550 SW Jean Road; Declaring City of Lake Oswego Zoning Pursuant to LOC
50.01.004.5(a-c); and Removing the Territory from Certain Districts (AN 16-0011)
Public Hearing Process:
1. Review of hearing procedure by David Powell, City Attorney
2. Staff Report by Paul Espe, Associate Planner
3. Testimony: the following time limits shall be observed, but may be changed by the
Council: 5 minutes for representatives of recognized neighborhood associations,
homeowner associations, government agencies, or other incorporated public
interest organizations; 3 minutes per individual
4. Questions of Staff
Motion: Move to enact Ordinance 2728.
Motion: Move to enact Ordinance 2729.
Motion: Move to enact Ordinance 2730.
Motion: Move to enact Ordinance 2731.
10. INFORMATION FROM COUNCIL
11. REPORTS OF OFFICERS
12. ADJOURNMENT
503.635-0215 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.lakeoswego.city
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Anne-Marie Simpson, City Recorder
City Manager’s Office
SUBJECT: Approval of Meeting Minutes
DATE: December 23, 2016
SUGGESTED MOTION
Move to approve minutes as written.
ATTACHMENTS
1. November 15, 2016, Regular Meeting
2. December 6, 2016, Regular Meeting
6.1
City Council Regular Meeting Minutes Page 1 of 10
November 15, 2016
CITY COUNCIL REGULAR MEETING
MINUTES
November 15, 2016
1. CALL TO ORDER
Mayor Studebaker called the regular City Council meeting to order at 6:33 p.m. on
November 15, 2016, in the City Council Chambers, 380 A Avenue.
2. ROLL CALL
Present: Mayor Studebaker and Councilors Gustafson, Collins, O'Neill, Manz, Buck
(via phone), and Gudman
Staff Present: Scott Lazenby, City Manager; David Powell, City Attorney; Anne-Marie
Simpson, City Recorder; Erica Rooney, City Engineer; Scot Siegel,
Planning and Building Services Director; Brad Stevens, Assistant Finance
Director; Jordan Wheeler, Deputy City Manager; Wm. Bruce Shepley,
Municipal Court Judge
______________________________________________________________________
3. PLEDGE OF ALLEGIANCE
Mayor Studebaker led the Council in the Pledge of Allegiance.
4. CITIZEN COMMENT
Annette Mattson, Portland General Electric, 121 SW Salmon Street, Portland 97204
Ms. Mattson noted that she was representing PGE in commenting on the topic of the later study
session (Agenda Item 6.2, Utility Facilities in Public Rights of Way). As one of the franchise
utilities in Lake Oswego, PGE wishes to provide input early on if the City decides to proceed with
a right-of-way ordinance, even though the current agreement is in effect until 2023. She
discussed considerations for Council regarding the increased Right of Way Fee shown in the
model ordinance. Noting that most cities served by PGE do have franchise agreements, it is the
strength of the working relationship that is most important, rather than the particular document or
structure. It will be PGE’s goal to maintain the positive relationship with Lake Oswego, whether
or not an ordinance is adopted.
In response to questions from Mayor Studebaker, she provided brief background on various
Clackamas County cities where ordinances had been enacted. She emphasized that PGE’s
ATTACHMENT 1
City Council Regular Meeting Minutes Page 2 of 10
November 15, 2016
ability to work effectively with the cities depended primarily on the people involved, rather than on
the presence of a franchise agreement.
Gary Buford, 415 N State Street
Mr. Buford described his continuing concerns about damage being caused to the sidewalk in
front of his property by street trees with aggressive root systems. As a result, the sidewalk had
been raised by as much as 1½ inches, and he is also concerned about potential impact to a
retaining wall below. As City staff has recommended removal of the trees, but City management
has done nothing to date, he asked how he is to maintain the sidewalk as required by Code.
Charles Ormsby 170 SW Birdshill Road, Portland 97219
Mr. Ormsby expressed his dissatisfaction with the communication and public involvement
process for the Terwilliger Boulevard sewer project. He emphasized public safety concerns,
highlighting the limited neighborhood access at Highway 43 and Breyman Avenue. Constrained
traffic flows on State Street were also an issue. He requested validation of plans for school bus
routes, traffic enforcement, and other aspects of the project. Because of the danger to residents,
he asked that the project be stopped immediately.
For the benefit of those who had not viewed the City Council’s November 1 meeting, Councilor
Gustafson commented that a project briefing had apprised Council of various issues, including
plans that addressed public safety concerns. In a brief exchange, Mr. Ormsby reiterated his
request.
4.1 Prior Public Comment Follow-Up
Mr. Lazenby reported on Staff’s response to concerns expressed by two residents at the prior
meeting regarding safety at the intersection at Bryant and Jean roads. After meeting with these
residents at the site, Staff had confirmed the need for removal of trees and other vegetation, and
the work had been completed. In the long term, the Transportation System Plan (TSP) calls for
a traffic signal at this location. Currently Staff is analyzing the need for this, he reported.
Acknowledging Mr. Buford’s many comments to Council regarding street trees issues, Mr.
Lazenby expressed his willingness to authorize the appropriate tree permit for Mr. Buford. City
Code requires that these trees be removed under the Type II permit process. Prior to the recent
revision of the Tree Code, he noted, Staff had suggested alternatives to make it easier for owners
of commercial properties to remove trees. However, this was not a recommendation of the Tree
Code advisory committee. Although Mr. Buford did present testimony at the public hearing, he
had not spoken about this issue; that would have been the time to advocate for a different process
to deal with street trees, Mr. Lazenby stated.
Mayor Studebaker reported that he and Assistant City Manager Megan Phelan had visited the
site of Mr. Buford’s building. While observing evidence of a problem with the sidewalk, they had
not found it to be as extensive as described.
5. RESOLUTIONS
City Council Regular Meeting Minutes Page 3 of 10
November 15, 2016
5.1 Resolution 16-62, A Resolution of the City Council of the City of Lake Oswego
Appointing Kimberly Graves and Rhett Bernstein as Pro Tem Municipal Judges
Report and Attachment
Judge Shepley explained the purpose of the Resolution, as detailed in the Council Report. He
observed that, with the assistance of the two current pro tem judges, the City had been fortunate
in managing his necessary absences. This recommended increase to the pool of available pro
tem judges was to ensure coverage in the event of unexpected absence, for the reasons outlined
in the Report.
Councilor Gudman moved to adopt Resolution 16-62. Councilor Manz seconded the
motion.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors
Gustafson, Collins, O'Neill, Manz, Buck, and Gudman voting ‘aye’. (7-0)
6. STUDY SESSIONS
6.1 Financial Planning Issues
Noting that Council was not being asked to make decisions on the financial issues at this time,
Mr. Lazenby outlined the process and purposes of the two study sessions. A public hearing
would be held in January on the System Development Charge (SDC) rates, after which Council
would make a final decision on SDCs. Staff requested direction in this study session in order to
prepare materials for the hearing. In the second session, Council would discuss the Master Fees
and Charges, which would be brought to Council for adoption in December. Later in the study
session Council would have the opportunity to comment on items that might guide Staff in
preparations for the 2017-18 budget proposal.
He noted that with recent adoption of the new TSP had come a new list of capital improvements.
These projects had triggered the need to review the transportation SDCs, the means by which
new development pays its share of transportation system improvements. He called on Ms.
Rooney to present the analysis.
6.1.1 Transportation System Development Charge Methodology Report
Report and Attachment
Ms. Rooney noted that these SDCs are one of the funding sources for transportation
improvements identified in the TSP. The SDCs were applicable to improvements that addressed
increased capacity needs related to new development, as differentiated from paving. She
described the report prepared by FCS Group (Council Report, Attachment), which had identified
the maximum rates for projects listed in the new TSP. The importance of utilizing the methodology
and doing the updated review is to identify the maximum defensible rate that could be applied to
development to mitigate for the impact of growth, she indicated.
City Council Regular Meeting Minutes Page 4 of 10
November 15, 2016
Mayor Studebaker requested clarification of capacity enhancement and SDC eligibility for certain
paving projects. Ms. Rooney explained that increased capacity related to added facility for
vehicles, bicycles or pedestrians; these would be eligible for SDC funds, as opposed to paving
and maintenance operations that did not increase the number of vehicles moving through. In
further discussion, Mr. Lazenby discussed aspects of roadway improvements in the Boones Ferry
Road project that are partially attributable to increased capacity, e.g., left-turn controls, and
therefore eligible for SDC funding, based on the percentage shown in the methodology report
(Exhibit 2.1, p 4). In response to questions from Councilor Manz, Ms. Rooney explained how
multi-faceted transportation projects might be done together, but that the SDCs could only be
applied to the aspects that provided new capacity and only in a certain amount.
Council’s attention was drawn to a graph illustrating the comparison of Lake Oswego SDCs per
new single-family dwelling to other cities in the region, based on the existing and draft data in the
report (Exhibit 3.3, p 10). Ms. Rooney indicated that this was available for Council’s consideration
in determining the right methodology for Lake Oswego. The higher Transportation SDC amount
of $14,760, she noted, was the upper limit of the amount that is totally defensible. As noted in
the Staff report, anything between the existing amount ($4,195) and $14,760 would be justifiable.
Staff is requesting direction from Council in order to prepare the proper ordinances, resolutions,
and Code changes that would enable implementation of the desired SDC levels.
In further discussion of Exhibit 3.3, Ms. Rooney noted that remodels do not qualify as a new
single-family dwelling and therefore are not eligible for transportation SDCs; she provided
additional detail on the other categories of land use (Exhibit 3.2, p 10). In comparison to single-
family homes, commercial uses provide the more significant amount of transportation SDC
dollars. She responded to additional questions as Council members explored the other categories
shown in the two tables and potential methodologies that might be adopted by the City. Councilor
Buck requested that Staff provide a comparison with other cities for the three additional
categories listed in Exhibit 3.2.
Mr. Lazenby reminded Council of their past discussions about a desired position for the City in
terms of SDCs for single-family homes as compared to other cities in the metropolitan area.
Council had indicated interest in limiting the net increase of total SDCs for all services, and Parks
SDCs had been identified as one potential opportunity for achieving this. He asked Council to
guide Staff by setting an objective for the City’s position in terms of the other cities. He suggested
that Council consider that a level below 100% might shift the burden of new development to
current residents; this needed to be balanced against concerns about housing affordability.
Councilor Gudman initiated discussion about the flat SDC rate for the past 10 years and the
opportunity to start indexing according to inflation. Going forward, this could be implemented from
a starting point at the current $4,195 or at some higher level up to the $14,760 maximum. This
could be changed at Council discretion in their annual review of fees. Ms. Rooney confirmed
that this had been a recommendation made in the report.
Mayor Studebaker expressed discomfort with making a change from the existing $4,195 to a
$14,760 rate. He suggested doubling this SDC, perhaps to $8,300. In ensuing discussion, he
indicated that from that point it could be indexed to inflation. Councilor Gustafson expressed
City Council Regular Meeting Minutes Page 5 of 10
November 15, 2016
support for a starting point on the higher end, based on the notion that new development should
pay for itself and that impacts on neighborhoods had been clearly identified. Given the Council’s
commitment to transportation improvements, as well as their interest in moderating total SDC cost
for new development, he discussed possibilities presented in the Parks category.
Councilor Collins suggested that a good starting point for considering change to the
methodology would be to determine what the effect on these SDCs would have been had indexing
been done since 2006. Staff indicated that they would follow up with this data.
Councilor Buck conveyed concerns about budgeted Parks projects and other plans put into
place in the community. He asked that any discussions about reallocation of SDC assessments
be deferred until Council has heard from the Parks Board and has a clear understanding of current
needs. This information will be presented to Council in December, he indicated.
Conveying agreement with Councilor Gudman’s suggestion on indexing, Councilor Buck
commented on the limited development of single-family homes and the greater potential on the
commercial side. However, even the maximum SDCs offer only a small fraction of the funding
needed for capacity expansions to the transportation system, he pointed out.
Councilor Gudman initiated further discussion about pass-through effects of SDCs on residents
of new developments of various types, and on cost-of-living challenges. He expressed agreement
with Councilor Collins’ suggestion that, at least for the single-family home, the starting point would
be the rate that would have been applied had indexing been in place over the last 10 years.
Potentially he would be more open to a methodology for commercial uses that would increase the
rate beyond the effect of only indexing.
Councilor Gustafson noted that any costs of development that were not passed on to the new
residents would be borne instead by existing residents, which seems less fair. In continuing
discussion, Ms. Rooney noted that the differing median new-home prices in the region have an
effect when comparing SDCs between cities; Council might consider that in Lake Oswego these
SDCs represent a smaller percentage and lesser impact than in other cities. Councilor Gudman
conveyed his belief that Council should take a thoughtful approach, even where dollar impact may
be relatively minor.
Councilor Manz advocated taking the middle range and indexing from there. She also favored
exploring opportunities for the commercial rates, which provide more SDC money and may have
more impact on projects that are in the works.
Councilor O’Neill inquired about communications with the Home Builders Association (HBA),
and Mr. Lazenby advised that he had kept them apprised of the Council direction to try to limit
the amount of the increase. Through ongoing communications, Staff will invite HBA comments
at the public hearing in January.
Council members next discussed whether the same methodology chosen for single-family new
development or a different approach would be applied to the commercial SDCs. Councilor Buck
asked that the rates for both types of new development be based on estimated needs and how a
change in rate will address that need. Mr. Lazenby described various effects on the TSP project
City Council Regular Meeting Minutes Page 6 of 10
November 15, 2016
list at lower levels of recovery, notably the number of projects that would require other sources of
funding. Council had provided useful feedback that would enable Staff to present options
following the public hearing, he indicated.
Councilor Gudman discussed his preference for applying different methodologies to single-
family residential and commercial development. Mayor Studebaker indicated that this appeared
to be the consensus. Ms. Rooney pointed out that the report had included a discussion of full
versus discount rates that would support such an approach (Section B.3, p 9). Councilor
Gustafson recommended that Council not be overly cautious about applying the maximum rate,
after weighing concerns that may be presented through the public hearing. Council has heard
definite concerns about the streets and needed transportation improvements; these, too, should
be kept in mind.
The study session concluded with Ms. Rooney outlining the timeline for implementation of any
changes to the transportation SDCs, which would follow the January public hearing and would
likely be in the form of an addendum to the updated Master Fees and Charges.
6.1.2 Master Fees & Charges
Report and Attachments
PowerPoint Presentation
Mr. Stevens presented Staff’s updated five-year forecast for each of the utility funds, illustrated
by slides (PowerPoint Presentation, p 3-6). He discussed a slide illustrating the positive impact
on water consumption upon implementation of tiered rates in 2009. As noted in the Staff report
(Council Report, p 1-2), the overall impact of the proposed 2017 utility rates will be $4.41 per
month or a 3% increase; this is the smallest increase seen in some time. At present a 3% increase
is also anticipated for the following year.
Council members offered questions and comments regarding the recommended utility rates, the
fund balance projections, and related background. In continuing discussion, Council members
asked about potential opportunities for projects focused on Sewer and Water funds and different
approaches for Planning-related fees and charges, among other items.
Mr. Lazenby noted that the Master Fees and Charges proposal presented by Mr. Stevens was
based on current policies for cost recovery, indexing, and other factors. Staff also had been
considering long-term issues and is seeking Council direction on several items.
One such item, detailed by Mr. Lazenby, related to complaints received about the City’s tiered
water rate structure, largely in summer months when higher usage triggers higher-volume rates
and increased billing amounts. He indicated that cities more typically will have a fixed rate
reflecting fixed per-customer costs plus a flat volume rate that applies to all usage levels. He
reviewed the background of the City’s experience with the tiered structure, noting that it had been
implemented as a conservation method. He displayed a graph that compared usage under a flat
volume rate to actual usage under the tiered structure and described related pros and cons of the
flat-rate approach. If Council should want to implement this, a phase-in period of five years might
City Council Regular Meeting Minutes Page 7 of 10
November 15, 2016
be recommended so as to ease any impacts, as illustrated in another graph. He reiterated that
the low-volume water user would realize the greatest financial benefit.
In ensuing discussion, Mayor Studebaker and Councilor Manz expressed interest in studying
the idea further. Councilor Gudman disagreed because of financial impacts that would have
adverse effects both for the City and for residents at lower usage levels. Councilor Buck
questioned the benefit of the proposed scenario in terms of incentivizing reduced water use; he
also emphasized the need for a billing component that requires users to share in the cost of the
infrastructure. Mayor Studebaker indicated that the consensus was for Staff to move forward
with additional study.
Another option for Council to consider, Mr. Lazenby advised, was the concept of utility rate shifts,
which he illustrated with a bar graph. This could provide flexibility in timing of rate increases to
align with the need for specific funds, e.g., holding the Sewer rate flat for a period of time but
perhaps making a corresponding increase to the Street fee. The net effect on the average
ratepayer’s billing would be zero, he indicated, while the City would have funds available where it
was needed more during that period.
Council members joined in with comments and questions. Councilor Gudman opposed the idea
because it was not viable over time, for reasons of Council turnover and other factors. Councilor
Buck expressed interest in posing the possibility at the upcoming public hearing, enhanced by a
Street fee increase to address the backlog in that area. After brief additional discussion, Mayor
Studebaker concluded that this question could be brought forward at the hearing.
Mr. Lazenby noted that Staff would also need future direction regarding funding for rehabilitation
of the City Hall exterior; this would be reflected in the next Capital Improvement Plan (CIP) and
budget adoption processes. Although the majority of Council members had seemed to be
comfortable with use of Lake Oswego Redevelopment Agency (LORA) urban renewal funds for
this purpose, additional options would be available. Based on current assumptions for other
planned projects, there would still be East End urban renewal district funds available, even if the
City Hall work was funded from this source. Possibilities included (1) State Street projects to
address needed improvements to city gateways, the Lakeshore Inn/Sundeleaf Plaza/Millennium
Park connection, and much-needed pedestrian/sidewalk improvements; (2) public parking at the
North Anchor site; (3) other infrastructure improvements that had been recommended for the
downtown, as well as up to $2 million in façade improvements. Staff was working on a detailed
expense schedule for closing out the East End district; this would be available to Council in the
spring, he indicated.
In the event Council needed to use other funding sources for the City Hall rehabilitation, streets,
or other work, he discussed several options suggested by Staff: raising utility franchise fees;
raising the property tax rate; reallocating a portion of the tourism tax fund to the general fund;
adding a city gas tax.
As a matter of awareness for Council, he described streets funding options aimed at achieving a
Pavement Condition Index (PCI) of 84. Consideration might be given to issuance of general
obligation bonds or street utility revenue bonds. In discussing potential impacts, he indicated that
City Council Regular Meeting Minutes Page 8 of 10
November 15, 2016
the challenge of reaching the 84 PCI level was not as monumental as it might seem. In presenting
the next CIP, Staff would also be proposing a means of achieving at least a PCI of 70.
Councilor Gudman commented on the importance of identifying, no later than the next budget
cycle, those projects to be done using the remaining East End district LORA funds. This will begin
the process of shutting down the East End district and making dollars available for funding the
City’s PERS increases. With regard to the Police/911 facility and City Hall rehabilitation projects,
all funding should come from the East End district; this way residents will not be asked for
additional money and other projects will not have to be sacrificed. In terms of Street fund options,
the possibility of a successful bond measure is doubtful, given the three bond measures planned
by the School District over the next 10 years.
RECESS
Mayor Studebaker called a recess at 8:53 p.m. The Council reconvened at 9:24 p.m.
6.2 Utility Facilities in Public Rights of Way
Report and Attachment
Mr. Wheeler introduced the topic of the study session, as discussed in the Council Report and
Attachments. He noted that the purpose of the study session was not to make decisions, but (1)
to provide direction to Staff regarding Council’s interest in having a draft ordinance prepared; and
(2) to discuss how the City might regulate wireless facilities in the public right of way.
With an accompanying PowerPoint presentation, Mr. Wheeler began by providing general
background on the City’s public right of way. He showed the current list of utility franchisees
(Council Report, p 2) and noted that there had been a surge in inquiries about franchises in the
past two years, coming from a variety of sources. He provided an overview of the franchise
negotiation process, which is time consuming and results in a variety of agreements with differing
provisions. A number of cities in the region had adopted a model ordinance developed by the
League of Oregon Cities (LOC) as a means of transitioning away from a franchise system. This
could offer opportunities to streamline the process and improve efficiency. It would implement a
licensing process for the utilities that would require them to abide by conditions and standards for
use of the right of way. A license would be issued for a specific term, likely five years, and the
requirements would be added to City code. In reviewing other aspects of the ordinance approach,
he noted that right-of-way fees would be set by resolution, as with Master Fees and Charges.
Consideration now by Council would be timely, as there are current franchise agreements that
will be expiring, one that already has expired, as well as expressions of interest from several
potential users. If Council wished to pursue this approach, Staff would bring a draft ordinance
back; adoption would also require a public hearing.
The second major topic, relating to regulation of wireless facilities in the right of way, involved
bigger policy issues. He discussed the need for standards to apply to the growing number of
companies wishing to install antennas and arrays in the right of way for wireless communication
systems, whether attached to existing utility poles or on new poles. Detailing the growing need
for enhanced capacity, speeds, and services, he highlighted the related challenges of balancing
City Council Regular Meeting Minutes Page 9 of 10
November 15, 2016
community aesthetics and the issues that accompanied these attachments. He displayed slides
illustrating installations made without regulation in place, as well as options that could be provided
under prescribed standards; these could include requirements for appearance or even for
underground placement. Here the key policy issue was achieving the balance between aesthetics
and the community’s desire for service enhancements. He discussed guidance that might be
provided by standards already developed for larger cities, including San Francisco and Portland;
in addition, Staff had done some groundwork in regard to height, appearance, and location of
such equipment in granting the NewPath Network franchise in 2008. In addition to other policy
considerations (Council Report, p 7-8), the City would need to decide whether placement of new
poles would be allowed, as some proposals might specify. Mr. Wheeler concluded by asking
Council members to consider whether or not they wished to proceed in the direction of the right-
of-way ordinance and if they wanted some standards for wireless facilities to be incorporated.
Councilor Manz expressed concern about aerial clutter, indicating that additional poles did not
seem prudent, particularly as there should be a way to capitalize on the many existing utility poles
and street lights. Citing potential savings in staff time and ease of transitions, she expressed
support for the licensing proposition as opposed to franchising.
Councilor Gustafson noted that a right-of-way ordinance makes good sense in terms of staff
time savings and consistency. He discussed the benefits of reviewing regulations enacted by
cities that maintain strong control over aesthetic impacts, agreeing that it was desirable to
minimize the visual intrusiveness of these facilities. Mr. Wheeler indicated that Staff would be
exploring the experience of other cities thoroughly.
Councilor Gudman echoed support for making a change from franchising to the ordinance
approach. He asked about any anticipated change to the amount of franchise fees shown in the
Staff report (Council Report, p 4) if the LOC model ordinance was adopted. In ensuing discussion,
Mr. Lazenby described several revenue-related considerations, but noted that rates are a
separate issue. The management of these facilities would be addressed by the ordinance, but
the fee structure would be set by resolution. Councilor Gudman noted that the model ordinance
for adoption should be revenue neutral with regard to the current revenue from the franchises.
He indicated his view on several policy questions: (1) The City should regulate location and
number of pole attachments that would be permitted. (2) Staff should explore regulations of other
cities on pole attachments and bring a proposal to Council. (3) The City should allow new poles
for wireless facilities in the right of way only when necessary.
The study session concluded with additional suggestions for Council consideration. Mr. Powell
discussed benefits of considering comparative data on Oregon cities available from the LOC,
additional background on Lake Oswego’s experience, and alternatives to the gross-revenues
basis for charging the utilities. Mr. Lazenby recommended a recent article on this topic published
by the American Planning Association. He advised Council that the City had a good team in place
to address the potential transition in terms of staff and experience.
7. INFORMATION FROM COUNCIL
Councilor Gustafson read a statement that he had prepared on behalf of the City Council in
response to recent events in the community and elsewhere in the nation. It reiterated Council’s
City Council Regular Meeting Minutes Page 10 of 10
November 15, 2016
commitment to Lake Oswego being a safe, caring, and respectful community, where hate was
not tolerated and where the Council promised to uphold the anti-discrimination policies of the City
Charter. Council members signed the statement to approve and endorse this expression of
concern for the well-being of citizens.
Councilor Gudman thanked residents for approval of the City Charter amendment in the recent
general election, thus providing a needed update.
Councilor Manz commended the Public Works and Engineering departments for very quick
response to two recent safety concerns raised by citizens.
8. REPORTS OF OFFICERS
No reports were made.
9. ADJOURNMENT
Mayor Studebaker adjourned the meeting at 9:55 p.m.
Respectfully submitted,
Anne-Marie Simpson, City Recorder
APPROVED BY THE CITY COUNCIL:
ON __________________
Kent Studebaker, Mayor
City Council Regular Meeting Minutes Page 1 of 14
December 6, 2016
CITY COUNCIL REGULAR MEETING
MINUTES
December 6, 2016
1. CALL TO ORDER
Mayor Studebaker called the regular City Council meeting to order at 6:32 p.m. on
December 6, 2016, in the City Council Chambers, 380 A Avenue.
2. ROLL CALL
Present: Mayor Studebaker and Councilors Gudman, Gustafson, O'Neill, Manz, and
Buck
Excused: Councilor Collins
Staff Present: Scott Lazenby, City Manager; David Powell, City Attorney; Anne-Marie
Simpson, City Recorder; Leslie Taylor, Communications Manager, Police
Department; Shawn Cross, Finance Director; Debra Andreades, Senior
Planner; Amanda Owings, Traffic Engineer; Sarah Selden, Senior Planner;
Scot Siegel, Planning and Building Services Director
Others Present: John (“Cap”) Hedges
______________________________________________________________________
3. PLEDGE OF ALLEGIANCE
Mayor Studebaker led the Council in the Pledge of Allegiance.
4. PRESENTATION
4.1 Unsung Hero Awards
Report
Mayor Studebaker provided background on the Unsung Hero Awards program (Council Report).
He presented plaques to the 2016 award recipients and described their contributions to the
community, inviting each to comment following the presentations:
ATTACHMENT 2
City Council Regular Meeting Minutes Page 2 of 14
December 6, 2016
Lynn Brokaw, volunteer with the Meals on Wheels Program since 2008 at the Adult
Community Center, actively involved in fundraising events to benefit the program
Jim and Barbara Fisher, over 15 years of leadership with the Friends of the Hallinan
Woods in maintaining and restoring habitat there
Cyriel Godderie, many years dedicated to tutoring and fostering enjoyment of math in
Hallinan Elementary School students year round
Murel Johnson, 15-year volunteer at the Adult Community Center making deliveries
through Meals on Wheels, placement of a “Little Free Library” at her home, various other
efforts to provide help wherever needed in the community
5. CONSENT AGENDA – For Full Council Approval
5.1 Approval of Meeting Minutes
5.1.1 October 4, 2016, Regular Meeting
5.1.2 October 18, 2016, Regular Meeting
5.1.3 November 1, 2016, Regular Meeting
Motion: Move to approve minutes as written.
Report and Attachments
5.2 Declaration of the Vote for the November 2016 General Election
Motion: Move to approve the 2016 Declaration of the Vote.
Report and Attachments
5.3 Contract Amendment to a Personal Service Contract with MWH Americas, Inc. for
the Water Treatment Plant Expansion (WO #206)
Motion: Move to authorize the City Manager to execute an amendment to the current
personal service contract with MWH Americas, Inc. in the amount of $250,000.
Report and Attachment
5.4 Resolution 16-66, A Resolution of the City Council of the City of Lake Oswego
Declaring a Public Necessity to Acquire Real Property Interests and Exercise the
Power of Eminent Domain (Boones Ferry Road Project)
Motion: Move to adopt Resolution 16-66.
Report and Attachments
City Council Regular Meeting Minutes Page 3 of 14
December 6, 2016
END CONSENT AGENDA
Councilor Gudman moved the adoption of the Consent Agenda. Councilor O'Neill
seconded the motion.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors
Gudman, Gustafson, O'Neill, Manz, and Buck voting ‘aye’. (6-0)
Mayor Studebaker announced that no eComments had been received.
6. CONSENT AGENDA – For City Councilors’ Approval
6.1 Resolution 16-65, A Resolution of the City Councilors of the City of Lake Oswego
Approving an Appointment to the Planning Commission
Report and Attachment
Councilor Gudman moved to adopt Resolution 16-65. Councilor Buck seconded the
motion.
A voice vote was held, and the motion passed, with Councilors Gudman, Gustafson,
O'Neill, Manz, and Buck voting ‘aye’. (5-0)
7. CITIZEN COMMENT
Carnie Wilson, 18104 Pilkington Road
Ms. Wilson described background and plans of Love Bites by Carnie, the company that she and
Tiffany Miller have formed. Highlighting the initial product focus on cheesecakes, she discussed
expected activities and production levels at the facility in Lake Oswego.
Tiffany Miller, 18104 Pilkington Road
Ms. Miller noted that Love Bites by Carnie would occupy space at the intersection of Pilkington
and Boones Ferry roads. The facility would include their corporate headquarters and a small
retail space, in addition to the production facility. She and Ms. Wilson distributed cheesecake
samples to the City Council members.
Gary Buford, 415 N State Street
Mr. Buford cited Article 42.08.410 of City code pertaining to maintenance of sidewalks, and
indicated that clarification of the meaning was needed. He questioned the responsibility of owners
of abutting or adjacent properties for problems in the public right of way in relation to street trees
owned by the City.
City Council Regular Meeting Minutes Page 4 of 14
December 6, 2016
Carolyn Devine, 2815 SW Texas Street, Portland 97219
Speaking as Tryon Creek Watershed Council Coordinator, Ms. Devine expressed support for
acceptance of the property donation by the Hedges family, as discussed in the related Staff report,
to be considered by Council later in the meeting (Agenda Item 8.2, Report and Attachments). She
described the challenges of development, including adverse environmental impacts, in
comparison to the benefits of a future park on the site. Council was urged to accept the donation.
7.1 Prior Public Comment Follow-Up
No follow-up on prior Public Comment was presented.
8. COUNCIL BUSINESS
8.1 9-1-1 Phone Equipment and Mapping Replacement Procurement Contract
Report and Attachment
Ms. Taylor noted that approval of the contract will provide this primary system component of the
public safety emergency response system, a foundation for moving the City into the next
generation of technology. It will accommodate seamless delivery of voice, text, video, and
telematics to Lake Oswego’s 9-1-1 center as the State makes the transition to new 9-1-1
infrastructure over the next several years. She outlined the procurement process and timeline,
highlighting the advantages of the coordination with other jurisdictions, as shown in the Staff
report (Council Report, p 2). In concluding, she detailed the funding sources for the 9-1-1 center,
including the State’s reimbursement for this phone equipment procurement.
Mayor Studebaker asked about the expected lifespan of the equipment and the probability of
receiving the State’s reimbursement. Ms. Taylor indicated that a lifespan of between five and 10
years could be expected; no problem with receiving reimbursement was anticipated. She
addressed additional questions, including Councilor Gudman’s inquiry about potential problems
in moving the equipment to the new LOCOM facility. While acknowledging the logistical
challenges, she expressed confidence that the transition will be successful, particularly with the
benefit of cooperative arrangements with other jurisdictions.
Mayor Studebaker moved to authorize the City Manager to sign a Permissive Cooperative
Procurement Contract for 9-1-1 phone equipment. Councilor Manz seconded the motion.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors
Gudman, Gustafson, O'Neill, Manz, and Buck voting ‘aye’. (6-0)
8.2 Proposed Donation of Property at 2820 Poplar Way
Report and Attachments
Supplemental Report
City Council Regular Meeting Minutes Page 5 of 14
December 6, 2016
Mr. Lazenby reviewed the background of Mr. Hedges’ proposal for donation of the property to
the City, as discussed in the Council Report and Attachments. He touched on some of the
conditions included in the Land Donation Agreement (Council Report, Attachment 3). As several
Council members had visited the site, there had been questions related to (1) opportunities for
future connectivity, yet to be established; and (2) the need for removal of invasive plants and other
improvements contemplated in the Agreement, estimated to cost $25,000 by Parks and
Recreation Director Ivan Anderholm. He discussed other improvements that would fulfill the City’s
obligation under the Agreement and noted that Mr. Hedges was available for questions.
Mayor Studebaker expressed doubt that $25,000 would be enough to complete the necessary
work. He indicated that use of the park would be minimal, noting concerns about access.
Councilor Buck conveyed concerns about the short turnaround required to accept the donation,
notably those of Parks Board leadership who had based their recommendation only on limited
information. He concurred with their concern about acquiring another park when resources are
not sufficient for maintaining the City’s current parks. Councilor Manz raised questions of
connectivity and the likelihood that users would be limited to those living in the immediate area.
She suggested the need for the Parks Board to assess the usability of any proposed park.
Councilor O'Neill inquired about the possibility of using the property only as a greenspace. Mr.
Lazenby indicated that the long-term vision was more for a natural open space than for a
developed park at the site.
In response to Councilor O’Neill’s inquiry about consideration of the Columbia Land Trust, Mr.
Hedges provided background on other efforts with the City and with the Nature Conservancy,
leading to the current donation proposal (Council Report, Attachment 2). He described the
interest of the Glenmorrie Neighborhood Association in helping to maintain the property.
Mayor Studebaker asked for clarification of the allowed uses if the City were to accept the
donation. Mr. Powell explained that, as the Agreement is now structured, the land would be
restricted permanently for public use as a park . He indicated that only the types of development
outlined in the Council Report were permitted; actual requirements for development also were
specified, and these allowed the City considerable discretion. However, the City could not later
sell the property for development.
Councilor Gustafson thanked Mr. Hedges for his generous offer and emphasized the rare
opportunity of a property donation. While recognizing the challenges of parks funding, he
suggested that the parcel presents an opportunity for future connectivity that is at least equal to
the value of the natural resources; Council should consider the City’s Metro and Sensitive Lands
obligations. He indicated that he would support acceptance of the donation.
Councilor Gudman favored accepting the offer, for reasons of zero price, opportunity for
connectivity between Highway 43 and Old River Road, and manageable costs of the initial clean-
up and subsequent maintenance.
City Council Regular Meeting Minutes Page 6 of 14
December 6, 2016
Councilor Buck proposed that the Parks Board be provided the opportunity to review the fully-
vetted information before Council makes its decision. He suggested involving the adjacent
property owner, the Sisters of the Holy Names of Jesus and Mary, in the conversation. In further
discussion of the timeline and related considerations, Mr. Hedges indicated that he preferred to
learn the Council decision at this meeting.
Councilor Gustafson moved to authorize the City Manager to accept a donation of property
at 2820 Poplar Way. Councilor Gudman seconded the motion.
Mayor Studebaker reiterated concerns about ongoing responsibility for maintenance and
anticipated low levels of use.
Councilor Gustafson asked about reversion as a possible remedy in the event that the City did
not wish to use the property at some point in the future as specified in the deed. Mr. Powell
discussed litigation as a potential remedy, but noted that there was no provision for forfeiture as
the Agreement is currently written.
Councilor Gudman expressed concurrence with the Mayor’s concern about usage, but felt this
was outweighed by the opportunity for improved connectivity. In related discussion, Councilor
Manz described challenges of accessing the property, notably Highway 43. The likelihood was
that this would become only a pocket park for neighbors; if that was the intention, Council should
make that clear, she stated. Councilor Gustafson indicated that that a key aspect of connectivity
for Lake Oswego is to create as many connections to the riverfront as possible. The familiar
challenges related to Highway 43 should not preclude taking this opportunity to create stronger
connections in the future.
Councilor O'Neill indicated that Council members’ hesitance was mostly related to maintaining
the property. He asked if it would be possible to accept the donation now and later transfer it to
another entity. As currently written, Mr. Powell noted, the agreement and deed did not require
the City to remain as the owner; however, the owner was required to use it only for public use as
a historic nature and meditation park.
Mr. Siegel offered to provide perspective on connectivity. Staff had reviewed the proposal
through three lenses: natural resource, historic resource, and connectivity. They had found
potential in all three areas. He described connection opportunities, including a portion of the
Sisters’ land abutting Mr. Hedges’ property.
Councilor Manz asked for clarification about what the City would be required to do within the first
five years after accepting the donation. Mr. Powell indicated that, in addition to making the
property available to the public as stated in the agreement, the installation of a sign showing the
park’s name and some level of improvements were required within the five years; it was noted
that the City would have a good amount of discretion in choosing those improvements. He
responded to her question about liability, noting that it would be the same as on any other City
open space. As to any parking requirements, he advised that the agreement allowed for some
widening of the right of way, but that this was not an absolute requirement.
City Council Regular Meeting Minutes Page 7 of 14
December 6, 2016
Councilor Gudman suggested that Council keep in mind the scale of the $25,000 figure in
comparison to the overall Parks budget. This is another reason for moving forward with
acceptance of the property donation, he indicated. Brief additional discussion followed.
A roll call vote was held, and the motion failed, with Councilors Gudman and Gustafson
voting ‘aye’. Mayor Studebaker and Councilors O'Neill, Manz, and Buck voted ‘no’. (2-4)
9. PUBLIC HEARINGS
9.1 Resolution 16-55, A Resolution of the City Council of the City of Lake Oswego
Revising Fees and Charges and Updating the Lake Oswego Master Fees and
Charges Schedule
Report and Attachments
Staff Report
Mr. Cross announced that the public hearing was for adoption of the new Master Fees and
Charges, as described in the Council Report and Attachments. He noted that there had been no
changes subsequent to the Council study session on November 15.
Testimony
Mayor Studebaker called for any testimony regarding the Resolution. Hearing no requests to
testify, he closed the hearing.
Councilor Buck spoke about challenges of funding street maintenance, observing that the
current rate for street maintenance fees is not adequate for maintaining the asset. He suggested
that Council undertake comprehensive discussion of this topic, perhaps to consider gradual
incremental increases to the fee.
Mayor Studebaker moved to adopt Resolution 16-55. Councilor Gudman seconded the
motion.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors
Gudman, Gustafson, O'Neill, Manz, and Buck voting ‘aye’. (6-0)
9.2 Ordinance No. 2725, An Ordinance of the Lake Oswego City Council Amending the
Connected Community Chapter of the Comprehensive Plan, the Community
Development Code, and the Transportation System Plan to Ensure Consistency (LU
16-0025).
Report and Attachments
Mr. Powell read the Ordinance title, noting that the hearing pertained to a legislative decision.
He outlined related compliance requirements, and then reviewed the hearing process. He asked
City Council Regular Meeting Minutes Page 8 of 14
December 6, 2016
if any City Councilor needed to make any declaration with relation to conflicts of interest. No
declarations were heard. He then asked if any member of the audience wished to challenge any
City Council member’s right to hear this application. No challenges were heard.
Staff Report
Ms. Andreades advised Council of corrections to dates of the Planning Commission and City
Council reports shown in the Council Findings (Attachment 1 to Ordinance 2725, p 2). She also
noted that correction of a code citation error in both versions of the Community Development
Code (CDC) amendments document (Attachment 4 to Ordinance 2725, p 1) would be reflected
in the final version.
With an accompanying PowerPoint presentation, she reviewed background of the project. Key
elements were: (1) A Transportation System Plan (TSP) update in 2014. This update contained
specific recommendations for amendments to the CDC to ensure implementation of both the
Comprehensive Plan and the TSP. (2) A Staff audit in 2015 to ensure consistency of all three
documents. (3) Implementation of the Southwest Employment Area (SWEA). Included were
street projects to be added to the TSP. (4) Simple and effective procedures to address
development and manage traffic operations. The amendments now before Council are the
product of these elements. She highlighted the process timeline, which had included Planning
Commission work sessions, public review of the Commission’s proposed amendments, and a
public hearing.
Ms. Owings reviewed several amendments set forth in the Ordinance, as they related to the
Comprehensive Plan and TSP. She highlighted the change to the CDC to include a threshold for
requirement of a Traffic Impact Study. The details of the Study itself would be found in the Traffic
Impact Study Guidelines, a separate document outside of any code or master plan.
Mayor Studebaker asked about the requirement for a new Traffic Impact Study after some period
of time. Ms. Owings indicated that new data was generally required after two or three years.
The requirement is based on annual traffic counts, and a trend change would likely trigger the
need for new data.
Ms. Owings concluded by reporting on response to the Public Review Draft, which had been
provided to the consulting community, as well. There had been no comment from the public, but
comments of two traffic engineers and the Planning Commission had been incorporated in the
proposal.
Ms. Andreades displayed the list of applicable approval criteria, which she stated had all been
met for these amendments. Therefore, the Planning Commission recommended approval of LU
16-0025 and enactment of Ordinance 2725.
Testimony
Mayor Studebaker asked if anyone wished to testify in favor of or in opposition to the Ordinance.
Hearing no requests to testify, he closed the hearing.
City Council Regular Meeting Minutes Page 9 of 14
December 6, 2016
Councilor Gudman moved to enact Ordinance 2725. Councilor Manz seconded the motion.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors
Gudman, Gustafson, O'Neill, Manz, and Buck voting ‘aye’. (6-0)
9.3 Ordinance No. 2720, An Ordinance of the City of Lake Oswego Amending the
Community Development Code (LOC Ch. 50) for the Purpose of Adding Food Cart
Pods as a Permitted Use Within the Industrial Park (IP) Zone Additional Use Area
North of Willow Lane, and Establishing Standards (LU 16-0027).
Report and Attachments
Mr. Powell read the Ordinance title, noting that the hearing pertained to a legislative decision.
He outlined related compliance requirements, and then reviewed the hearing process, including
time limits for testimony as shown in the agenda. He asked if any City Councilor wished to make
a declaration with relation to conflicts of interest. No declarations were heard. He then asked if
any member of the audience wished to challenge any City Council member’s right to consider the
application. No challenges were heard.
Staff Report
Ms. Selden introduced her report, with accompanying PowerPoint slides, by reviewing a map of
the limited area of the Industrial Park (IP) Zone to which the proposed Code amendments would
apply. She provided background on the proposal to allow food cart pods (Council Report, p 1-3),
noting that it was based primarily on the desire for an additional amenity for employees and
businesses in the Southwest Employment Area (SWEA). Next she discussed the timeline of the
process, including involvement of the Planning Commission, the SWEA Plan Advisory Committee,
and the City Council.
The proposed amendments would impact several sections of the CDC, as detailed in Attachment
B to the Ordinance. In outlining these, she highlighted several items that had been discussed
extensively by the Planning Commission. These included the recommended definition of a food
cart pod that prescribed a covered seating area.
Moving to use-specific standards, she discussed a graphic (Exhibit D-1, p 6 of 23) that illustrated
requirements for buffering from the residential uses. Allowed accessory uses were described,
along with standards that addressed site design, including those related to cleanliness, sanitation,
ADA compliance, and safety. After providing additional detail on standards related to the covered
seating requirement, she discussed those for landscaping and screening. While the food cart
pods would be subject to the screening and landscaping standards applicable across the city,
additional requirements were considered appropriate for the pods; she discussed these in some
detail. Standards for the food carts themselves were discussed, recommended primarily to
ensure safety, cleanliness, and adequate sanitation.c@pital
City Council Regular Meeting Minutes Page 10 of 14
December 6, 2016
Parking has been the most discussed of all the standards, Ms. Selden noted. As indicated in the
Council Report, this presented difficulty because of the lack of precedent in the region, particularly
in suburban locations. After reviewing various factors considered by the Planning Commission,
she discussed the Commission’s process in reaching the recommendation of 9.9 parking spaces
per 1,000 square feet of gross floor area. She discussed the Commission’s rationale in
determining that the modifiers available for access to public transit and for large development-site
size would not be available for food cart pods. Two other modifications were made by the
Commission: compact-size parking spaces were prohibited and the allowable distance to remote
parking was extended.
She reported that there had been extensive discussion about fire protection and food sanitation
compliance. Clackamas County Public Health would inspect food carts and enforce the Oregon
Food Sanitation Rules. The Lake Oswego Fire Marshal had reviewed the standards and would
have continuing involvement with fire safety.
Finally, Ms. Selden discussed the compliance criteria. She noted that various criteria in the
Comprehensive Plan were applicable, and the Planning Commission had found that the proposal
complied with these Comprehensive Plan policies. The Commission also found that the proposal
complied with the State Transportation Planning Rule criteria for adding a new use to the City,
which would be applicable to any food cart pod. She indicated that, after review and discussion,
the proposal was determined to be in compliance with Metro Title 4.
Staff requested that Council make a tentative decision following the public hearing, with Staff
returning on December 20 with a final version of Ordinance 2720 and findings.
Testimony
Lisa Volpel, 5655 Kenny Street
Ms. Volpel expressed concerns about the potential size of the food cart pod as recommended.
She discussed specific issues with parking requirements and traffic impacts and expressed
opposition to the use of parking modifiers. Noting that she had served on the SWEA Plan Advisory
Committee, she indicated that the proposal did not provide for a food cart pod that was confined
enough to meet the intent of Title 4. She also was troubled by the process, which she stated had
been driven by a developer. Her belief was that food carts should serve the employment area.
The proposal would not accomplish this because it did not call for the right size and location.
Councilor Buck noted that the full planning process had been followed, leading to the action now
before Council. He expressed concern that Ms. Volpel would now testify in opposition, as he had
understood that the Committee supported the proposal. Ms. Volpel indicated that the Committee
had discussed the matter of food carts only in passing. A major concern was that the food cart
pod should be a supporting use; however, the proposal would result in a more commercial/retail
focus for the Industrial Park, she opined.
Dianne Cassidy, 3601 Wren Street
City Council Regular Meeting Minutes Page 11 of 14
December 6, 2016
Ms. Cassidy asked Council members to disregard an email she had sent earlier in the day. She
expressed her belief that most people would drive from outside the area, rather than walk to the
proposed food cart pod; the parking ratio should therefore be closer to 13.3 than to the suggested
9.9. An overall concern is that the purpose of the SWEA Plan is to provide land for light industrial,
office, and supporting retail uses, an environment that primarily offers living-wage jobs. A food
cart pod does not meet the intended purpose of the district, she asserted. She described her
experience as an applicant for the Advisory Committee and as an observer at most Committee
meetings, conveying concerns about the objectives and role of one Committee member. Her
perception was that there had been a lot of attention paid to one person and his interest as a
developer over that of the community.
Councilor Gudman refuted the suggestion that one person could manipulate the process. In
ensuing discussion, Councilor O'Neill clarified that the developer referred to by Ms. Cassidy had
been required to submit a request to the Planning Department. He had complied with the City’s
requirements and received the City’s response, leading eventually to this public hearing on the
food cart pods.
Jim Bolland, 804 5th Street
Mr. Bolland stated that he was representing the Lake Oswego Neighborhood Action Coalition
(LONAC), which had voted unanimously to oppose the CDC amendments allowing food cart pods
as a principal permitted use in the IP Overlay in the SWEA. Reasons cited were: (1) A food-
service use is in conflict with the primary purpose of the SWEA, which is to provide land for
employers to construct buildings for employers offering family-wage jobs. LONAC questioned
that there was a difference between a food cart pod and restaurants. (2) Because of its location,
a food cart pod will necessitate automobile travel by patrons. Related concerns are a resulting
increase in traffic congestion and a conflict with the SWEA purpose of providing family-wage jobs.
The location also has the potential to be visually unattractive at a key entrance to the city. (3)
LONAC determined that the amendments are for the sole benefit of a real estate developer who
owns the site of the proposed food cart pod. LONAC suggested that this would constitute a land
use change for a specific property that should be the subject of a quasi-judicial decision, rather
than being brought forward as a legislative amendment. He noted that the critical consideration
for Council is the purpose of this land; the long-term goal of the SWEA Plan should not be
compromised by a short-term interest.
Mayor Studebaker asked if anyone wished to present testimony in favor of or in opposition to
the Ordinance. Hearing no requests, he closed the hearing.
Questions of Staff
Councilor O'Neill inquired about the parking requirement for the site of the proposed food cart
pod. Ms. Selden provided details, including challenges of this and other potential sites. In
subsequent discussion of parking challenges in the area, she clarified that a restaurant use of
2,000 square feet was permissible in the IP Zone as long as it was located in a building with
another permitted use.
City Council Regular Meeting Minutes Page 12 of 14
December 6, 2016
Councilor Manz asked if anyone else was precluded from requesting a food cart pod use in the
limited IP area, although only one developer had applied. Ms. Selden confirmed that other
applicants were not precluded from doing so. In addressing a second question from Councilor
Manz, she discussed locations of various higher employee uses in the area, noting that larger
warehouse uses were generally situated farther south in the IP.
Councilor Gudman asked Ms. Selden to elaborate on discussion of transportation with respect
to the proposal. She indicated that this included a transition from customers largely accessing
food carts on foot to a mixture of pedestrian/automobile. Feedback received from neighbors
through the SWEA Plan process had conveyed significant interest in destinations such as
restaurants, coffee shops, and bars, which could entail some auto trips from outside the likely
radius for pedestrians, she observed.
In ensuing discussion about benefits of food-cart access in employment areas, Councilor Buck
asked if a better solution could be to allow one or two carts on a day-to-day basis at specific
employer locations. Ms. Selden indicated that this type of use was currently allowed only under
a special-event permit.
Councilor O'Neill commented on the similarity of a food cart pod to a sit-down restaurant use
and questioned the different parking standard in the proposal. Ms. Selden discussed the
background of the Planning Commission’s recommendation for a standard near the midpoint
between the takeout and sit-down restaurant use. Councilors O’Neill and Buck indicated they
had concerns about the fairness of allowing a lesser standard for the food cart pod.
Discussion continued, with Council members pointing out distinctions between the proposed food
cart pod concept and other food-cart settings and configurations. Ms. Selden noted that the
Committee’s discussion of the more polished and coordinated concept related to the pod, as
stated in the SWEA Plan. She and Mr. Siegel provided additional information about drive-through
restaurant uses in response to questions from Councilor Gudman.
Councilor Buck moved to tentatively approve LU 16-0027, with the modification of
increasing the parking requirement to 13.3 spaces per 1,000 square feet of area as defined
in the Council Report, and to direct Staff to return with proposed findings and conclusions,
together with a final version of Ordinance 2720, for adoption on December 20, 2016.
Councilor O'Neill seconded the motion.
Councilor Gudman suggested that, rather than trying to re-write the language at this time,
Council should direct Staff to return at a later date with revised language to reflect this intended
approach.
Councilor Gustafson expressed concern that the amendment went beyond the scope of simply
allowing food carts in the IP area; to him it represented more of a restaurant than a food-cart use.
It seemed to be tailored to use for a specific property owner and did not meet the standard and
vision that had been laid out for this area. Councilor O’Neill pointed out that the proposed use
would be permitted for a different owner on another site, as well. Councilor Gustafson renewed
his concern that the food cart pod as proposed was actually a specialty restaurant.
City Council Regular Meeting Minutes Page 13 of 14
December 6, 2016
Mayor Studebaker summarized the dilemma as a need to balance the desire for food carts in
the employment area and the desire for an approach that is more attractive than a trailer or similar
type of food cart.
Discussion followed about the intent of Councilor Buck’s motion and how best to frame it.
After various suggestions were heard, a roll call vote was held, and the motion failed, with
Mayor Studebaker and Councilors Gudman, Gustafson, O'Neill, Manz, and Buck voting
‘no’. (0-6)
Additional discussion of appropriate Council action followed. This included the need to consider
amendment of the SWEA Plan as a component of the Comprehensive Plan, as suggested by Ms.
Selden and Mr. Powell. Council determined not to vote on the Ordinance at this time.
Councilor Buck moved to direct Staff to return this item to the Planning Commission to
consider two requests: one, to consider amending the Southwest Employment Area Plan,
as part of the Comprehensive Plan, to remove the requirement for food cart pods as
presented today with permanent improvements and other requirements; and two, to return
with a recommendation on some level of food cart allowances in the Southwest
Employment Area Plan that are not as extensive and permanent as presented today. Mayor
Studebaker seconded the motion.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors
Gudman, Gustafson, O'Neill, Manz, and Buck voting ‘aye’. (6-0)
10. INFORMATION FROM COUNCIL
Councilor Manz noted that the annual audit is complete and thanked the Finance Department
for the excellent outcome.
Councilor Buck reported on the National League of Cities Conference he had attended in
November. He highlighted information on art as a focus for downtown revitalization, bike-sharing
opportunities for small cities, summer internship programs for youth, and deliberative community
meetings concepts.
Councilor Gudman reported that the third Metro Leadership Forum had been held on the topic
of transportation. He asked his fellow Council members about the need for a further vote to
finalize the Council-initiated consideration of a municipal fiber network. Mayor Studebaker
indicated that the election result had brought the matter to a close and no further Council action
was required.
11. REPORTS OF OFFICERS
No reports were made.
City Council Regular Meeting Minutes Page 14 of 14
December 6, 2016
12. ADJOURNMENT
Mayor Studebaker adjourned the meeting at 9:47 p.m.
Respectfully submitted,
Anne-Marie Simpson, City Recorder
APPROVED BY THE CITY COUNCIL:
ON __________________
Kent Studebaker, Mayor
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Brant Williams
Redevelopment Director
SUBJECT: Willamette Shore Line Trolley Operations and Maintenance Services Agreement
DATE: December 23, 2016
ACTION
Adopt Resolution 16-54 authorizing the City Manager to sign the 2017 Willamette Shore Line
Trolley Operations and Maintenance Services Agreement with the Oregon Electric Railway
Historical Society.
SUGGESTED MOTION
Move to adopt Resolution 16-54.
INTRODUCTION/BACKGROUND
The City of Lake Oswego is responsible for operating trolley service on the Willamette Shore
Line as well as providing routine maintenance of the track and rail right-of-way. The City does
this on behalf of the Willamette Shore Line Consortium based on the 2003 Maintenance and
Funding Intergovernmental Agreement. The City has previously contracted with the Oregon
Electric Railway Historic Society (OERHS) to provide trolley service, trolley vehicle maintenance
and track maintenance. The current agreement expires December 31, 2016.
DISCUSSION
The Willamette Shore Line Trolley Operations and Maintenance Services Agreement assigns
three responsibilities to OERHS:
1. Provide trolley operations on the rail line;
2. Inspect and maintain vehicles and equipment used for trolley operations and
maintenance of the Shore Line; and
6.2
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503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
3. Inspect and provide routine minor maintenance of the Willamette Shore Line track and
right-of-way.
To fulfill these responsibilities, OERHS is allowed use of the City-owned Trolley Barn and Ticket
Office rent-free.
Trolley Operations
The agreement defines how and when OERHS will provide regular excursion trolley service on
the Line. OERHS will use the two leased Vintage Trolleys to provide service from the southerly
terminus in Lake Oswego to the northerly terminus in Portland at SW Bancroft Street. With the
completion of the Sellwood Bridge project, the entire length of the Shore Line should be open
for trolley operations for the first time in years. 2017 service to Bancroft Street is expected to
begin in May.
OERHS will continue to provide trolley operators at no cost to the City. OERHS will also pay for
all related operating expenses. The agreement does prescribe how fare revenues and expenses
will be allocated. Annual revenues over and above OERHS’s actual and necessary annual
operating costs will be divided equally between OERHS and the City. Should operating costs
exceed revenues, the City will reimburse OERHS for these losses based on expense categories
listed in Exhibit C. The maximum reimbursement amount is $21,500 per year. With the
opening of the entire line to Portland this next year, it’s anticipated that revenues will exceed
expenses and thus, no reimbursement will be required.
Trolley Maintenance
OERHS will maintain the two Vintage Trolleys and the generator that powers the trolleys as
described in the maintenance plan provided in Exhibit E. The City will reimburse OERHS for all
maintenance costs including labor and materials up to $23,000 per year. This is an increase of
$8,000 over the previous agreement primarily due to increases in labor costs resulting from
City-required labor contracting practices.
Willamette Shore Line Maintenance
OERHS will provide all inspections and routine minor maintenance of the Willamette Shore Line
track and right-of-way. Exhibit F of the agreement lists specific routine minor maintenance
activities that will be performed by OERHS. The City will reimburse OERHS for maintenance
costs including labor and materials for all work pre-approved by the City.
The agreement is for five years and will terminate on December 31, 2021
ALTERNATIVES & FISCAL IMPACT
The agreement prescribes City reimbursements to OERHS for expenses incurred for specific
services and amounts. These expenses are covered by the City’s Trolley Fund. Trolley Fund
revenues come from annual dues from three Willamette Shore Line Consortium members:
TriMet, City of Portland, and Lake Oswego. Other revenue sources include OERHS profits from
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503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
trolley operations, leases for private uses along the line, and grants from both TriMet and
Metro. Actual expenditure amounts and spending authority for the Trolley Fund are approved
through the City budget process. If for whatever reason there are insufficient funds in the
Trolley Fund, the City can terminate or renegotiate this agreement.
RECOMMENDATION
Adopt Resolution 16-54 authorizing the City Manager to sign the Willamette Shore Line Trolley
Operations and Maintenance Services Agreement with the Oregon Electric Railway Historical
Society.
ATTACHMENTS
1. Resolution 16-54 with Exhibit 1 – Willamette Shore Line Trolley Operations and
Maintenance Services Agreement
ATTACHMENT 1
Resolution 16-54
Page 1 of 1
RESOLUTION 16-54
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE OSWEGO AUTHORIZING THE CITY
MANAGER TO SIGN AN AGREEMENT WITH THE OREGON ELECTRIC RAILWAY HISTORICAL
SOCIETY FOR OPERATING PASSENGER TROLLEY SERVICE, MAINTAINING THE TROLLEYS, AND
MAINTAINING THE TRACK AND RIGHT-OF-WAY ON THE WILLAMETTE SHORE LINE.
WHEREAS, the City of Lake Oswego on behalf of the Willamette Shore Line Consortium is
responsible for providing trolley service on the Willamette Shore Line and for providing
maintenance of its track and right-of-way; and
WHEREAS, the Oregon Electric Railway Historical Society currently provides many of these
services through an agreement with the City that expires December 31, 2016; and
WHEREAS, the Oregon Electric Railway Historical Society uses experienced volunteer operators to
operate the trolleys; and
WHEREAS, the Oregon Electric Railway Historical Society hires and oversees personnel with
experience maintaining the Vintage Trolleys that will be used for passenger trolley service; and
WHEREAS, Oregon Electric Railway Historical Society hires and oversees personnel experienced
with providing minor maintenance of the track and right-of-way for the Willamette Shore Line;
and
WHEREAS, the services delivered by Oregon Electric Railway Historical Society volunteers provide
significant value to the City and to the Willamette Shore Line Consortium; and
WHEREAS, the City, on behalf of the Consortium, will compensate the Oregon Electric Railway
Historical Society for costs associated with maintaining both the Vintage Trolleys and the
Willamette Shore Line track and right-of-way; and
WHEREAS, the City, on behalf of the Consortium, will reimburse Oregon Electric Railway Historical
Society for any losses incurred by the Society for operating passenger trolley service; and
WHEREAS, both the City and the Oregon Electric Railway Historical Society will benefit by
entering into a new agreement for trolley operations and maintenance, and track and right-of-
way maintenance;
Resolution 16-54
Page 2 of 1
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lake Oswego that:
The City Manager is authorized to sign the Willamette Shore Line Trolley Operations and
Maintenance Services Agreement with the Oregon Electric Railway Historical Society substantially
in the form attached as Exhibit 1. This Resolution shall take effect upon passage.
Considered and enacted at the regular meeting of the City Council of the City of Lake Oswego on
the 3rd day of January, 2017.
AYES:
NOES:
EXCUSED:
ABSTAIN:
___________________________________
Kent Studebaker, Mayor
ATTEST:
___________________________________
Anne-Marie Simpson, City Recorder
APPROVED AS TO FORM:
________________________________
David D. Powell, City Attorney
1 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
WILLAMETTE SHORE LINE TROLLEY OPERATIONS AND
MAINTENANCE SERVICES AGREEMENT
This Agreement is made and entered this ______ day of _________________, 2017, by and between the
CITY OF LAKE OSWEGO, a municipal corporation (Lake Oswego) and OREGON ELECTRIC
RAILWAY HISTORICAL SOCIETY, INC., an Oregon Corporation (Operator):
I. RECITALS
WHEREAS, the Willamette Shore Line Right-of-Way (“Shore Line”) extends between the City of Portland
(“Portland) and Lake Oswego from the south side of SW Bancroft in Portland to 311 N State Street in Lake
Oswego; and
WHEREAS, the Tri-County Metropolitan Transportation District of Oregon (“TriMet”) has title to a portion
of the Shore Line between Milepost 774.00 and Milepost 768.209 and Portland is the grantee of an easement
from Union Pacific Railroad for the remainder of the Shore Line; and
WHEREAS, TriMet and Portland hold their interests in the Shore Line for the benefit of the members of
Willamette Shore Line Consortium (“Consortium”); and
WHEREAS, Lake Oswego, by lease agreement with TriMet and Portland, has been given access to the Shore
Line for the purposes of operating a trolley; and
WHEREAS, Lake Oswego, by agreement of members of the Consortium is charged with maintenance of the
Shore Line; and
WHEREAS, Lake Oswego desires to contract with Operator to operate a trolley service on the Shore Line
for use of the general public, and to maintain portions of the Shore Line for such operations;
NOW, THEREFORE, IT IS AGREED as follows:
II. AGREEMENT
Under the terms and conditions set forth in this Agreement, Operator shall operate a passenger trolley service
for the use of the general public on the Shore Line, maintain the trolleys and other vehicles and equipment
necessary to operate trolley service, and maintain portions of the Shore Line. Operator shall engage in no
other activities with relation to the Shore Line and, except as expressly provided in this Agreement, shall not
permit, authorize, or allow any third parties to have access to the Shore Line for any purpose whatsoever.
A. OPERATOR SERVICES
1. Trolley Operations
a. Trolley Vehicles:
Operator will provide service using Vintage Trolley 514 and Vintage Trolley 513, owned
by Vintage Trolley, Inc. and leased by Lake Oswego for use on the Shore Line. Vintage
EXHIBIT 1
2 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
Trolley 513 and 514 are referred to collectively in this Agreement as the “Trolleys.”
Operator’s use of the Trolleys shall be consistent with all of the requirements of the
December 23, 2012 Vehicle Lease Agreement between Lake Oswego and Vintage Trolley,
Inc., (“Vehicle Lease”), incorporated in this Agreement by this reference. Operator shall
be responsible for maintenance, servicing and cleaning of the Trolleys at Lake Oswego’s
direction and expense. Operator shall use the Trolleys to provide trolley service on the
Shore Line in accordance with this Agreement, and for no other purpose. Operator shall
provide at least one generator and cart, approved in advance by Lake Oswego, to power
the Trolleys.
Any additional trolley equipment or other vehicles may be used on the Shore Line only
upon advance written permission of Lake Oswego, including, without limitation, the use
of any speeders or maintenance vehicles.
b. Operating Schedule:
Operations shall be in general accordance with the Operating Schedules attached as
Exhibit A and incorporated in this Agreement. No operation is permitted after 10:00 p.m.
(except for July 4), or before 7:00 a.m. On July 4, no operation is permitted after 11:00
p.m.
c. Operation Subject to Shore Line Lease:
Lake Oswego’s authority to allow Operator to use the rail line is based on the May 1, 2013
Shore Line Lease between Portland, TriMet and Lake Oswego (“Shore Line Lease”),
incorporated in this Agreement by this reference. Operator agrees that it is subject to all
the terms and conditions of the Shore Line Lease.
Lake Oswego may immediately terminate this Agreement upon the expiration or
termination of the Shore Line Lease, or upon the expiration or termination of Lake
Oswego’s right under the Shore Line Lease to operate the trolley.
Should Lake Oswego exercise its option under paragraph 8 of the Shore Line Lease to
maintain its lease rights as to certain segments of the Shore Line, Operator may at its
option continue to operate on those segments under the same terms and conditions set
out in this Agreement.
d. Use of Name:
The name “Willamette Shore Trolley” (or “WST”) is owned by Lake Oswego, which
retains all rights thereto. Lake Oswego hereby authorizes Operator to use the name
“Willamette Shore Trolley,” and Operator shall use only the name “Willamette Shore
Trolley,” to describe the trolley operations on the Shore Line that are the subject of this
Agreement. Operator shall use this name for no other purpose. Operator’s authority to use
this name shall expire immediately upon the expiration or other termination of this
Agreement.
EXHIBIT 1
3 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
e. Available Portion of Shore Line:
From time to time, portions of the Shore Line will be closed by either Lake Oswego or
TriMet in order to allow for improvements to the Shore Line by the Consortium or by
others. Operator acknowledges that, during these times, the Trolleys shall not be operated
on the closed portions of the Shore Line. Lake Oswego will attempt to provide Operator
with reasonable advance notice of such closures. Promptly following notice and before
closure, or, if no advance notice, at the time of the closure, Operator shall install the
necessary and required protections, including Stop signs and derail devices.
f. Platform/Car Stops/Passing:
Loading platforms have been established at Bancroft Street and at the Lake Oswego
terminus. Any modifications of the platforms by Operator shall be subject to the advance
approval of the Lake Oswego. Operator acknowledges that the locations of the loading
platforms may change due to further development on either end of the Shore Line during
the term of this agreement. Intermediate car stops may be made at locations approved in
advance in writing by Lake Oswego, subject to all other applicable regulatory approvals
and consistent with the terms of the Shore Line Lease.
Operator shall have the authority to use any existing spur within the right-of-way of the
portion(s) of the Shore Line authorized for use under this Agreement.
g. Fares:
Operator shall charge fares for trolley rides as listed on attached Exhibit A, which is
incorporated into this Agreement. Fares may be changed from time to time upon the
advance written approval of Lake Oswego.
h. Division of Net Revenue:
All revenue above Operator’s actual and necessary costs shall be divided 50% to the
Operator and 50% to Lake Oswego. For purposes of this determination, revenues shall
include, without limitation, all fare revenue and revenues from the sale of souvenirs,
mementos, food and beverages associated with the operation of the Trolley. Actual and
necessary costs, for the purposes of this Section A.1 of this Agreement, include only those
expense categories listed in Exhibit C. An annual payment shall be made to Lake Oswego
for each calendar year. These payments will be due within thirty days following the end of
each calendar year, and shall be accompanied by a report and supporting documentation in
a form acceptable to Lake Oswego that details ridership, fares, all other income, and
Operator’s actual and necessary costs, received or incurred in operating trolley service
under this Agreement during the subject calendar year.
EXHIBIT 1
4 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
i. Operating Expenses:
Subject to annual reimbursement for certain net losses as provided in Subsection A.1.k of
this Agreement, all typical operating expenses and costs shall be the sole responsibility of
the Operator. In special circumstances, Operator may incur an operating expense that is
not typical and is not covered under this Agreement. In these cases, Operator may request
that Lake Oswego provide reimbursement of such expenses. Lake Oswego will decide
whether or not to reimburse the Operator using its sole discretion.
j. Annual Reimbursement for Net Losses:
Within thirty days following the end of each calendar year within the term of this
Agreement, Operator shall provide Lake Oswego with a report and supporting
documentation, in a form acceptable to Lake Oswego, detailing for the calendar year
ridership, fares and all other income, together with Operator’s actual and necessary costs
incurred in operating trolley service under this Agreement. This does not include costs for
maintenance performed under Sections A.2 and A. 3 of this Agreement. Actual and
necessary costs, for the purposes of this Section A.1 of this Agreement, include only those
expense categories listed in Exhibit C. If annual actual and necessary costs exceed total
annual revenue, Lake Oswego shall reimburse Operator the difference between annual
total revenues and total annual actual and necessary costs up to a total maximum
reimbursement of $21,500 for any single calendar year.
2. Vehicle and Equipment Inspection and Maintenance
a. Vehicles and Equipment
Exhibit D includes all vehicles and equipment used to operate and maintain the Shore
Line including the owner of each.
b. Trolley Vehicles:
Operator shall regularly inspect and maintain the Trolleys. This shall be done in a manner
that ensures safe and reliable operations of the vehicles, which is generally defined in
Exhibit E – Trolley and Generator Maintenance Program. The level of maintenance shall
guarantee that the Trolleys remain in as good or better condition than when Lake Oswego
received the Trolleys from Vintage Trolley, Inc. Maintenance includes both preventive
maintenance and that necessary to respond to defects and problems that occur during
normal operations.
Operator shall not operate the Trolleys on the Shore Line unless the vehicles are safe for
use, operations and trolley service. Operator shall immediately cease operations and shall
repair and remedy any condition of the Trolleys that could in any way compromise or
reduce the safety of use, operations or trolley service.
EXHIBIT 1
5 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
c. Daily Trolley Vehicle Ground Inspections:
Each day prior to operating the Trolleys, the Operator will perform a ground inspection to
ensure that the Trolleys are in safe working condition for the day’s operations. The form
that shall be used for this daily operating inspection for each Trolley is shown in Exhibit
B. This form may be revised from time to time upon the advance written approval of
Lake Oswego.
d. Generator(s):
Operator shall regularly inspect and maintain the generator(s). This shall be done in a
manner that ensures safe and reliable operations of the generator, which is generally
defined in Exhibit E – Trolley and Generator Maintenance Program. Operator shall not
operate the generator(s) on the Shore Line unless it is safe for use, operations and trolley
service. Operator shall immediately cease operations and shall repair and remedy any
condition of the generator(s) that could in any way compromise or reduce the safety of
use, operations or trolley service.
e. Unimog Rail Truck; Lease to Operator:
Should Lake Oswego become the owner of a Unimog Rail Truck during the term of this
Agreement, Lake Oswego will lease this truck to Operator for the duration of the term of
this Agreement. Operator shall use this truck solely for the purposes of maintaining the
Shore Line and retrieving inoperable Trolleys, and for no other purpose. Operator shall
be responsible for all maintenance and repair of the truck at Operator’s expense, which
shall not be reimbursed by Lake Oswego. Operator shall include the truck among the
vehicles covered by the automobile liability insurance policy required under Section J of
this Agreement.
f. Reimbursement for Inspection and Maintenance of Trolleys and Generator(s):
Lake Oswego shall reimburse Operator for actual inspection and maintenance costs for
the Trolleys and Generator(s). The total reimbursement amount shall not exceed $23,000
per fiscal year, which is July 1 to June 30, or as prorated for part of fiscal years within the
term of the Agreement. This annual amount includes an estimated $19,000 for labor and
$4,000 in materials and supplies. Operator shall be responsible for all costs over and
above $23,000 or the prorated amount.
The purchase of any and all materials, supplies and equipment that are necessary to
perform inspection and maintenance services for the Trolleys and Generator(s) and that
cost over $200.00 shall be approved by Lake Oswego in advance. All contracted hourly
labor rates must also be approved in advance by Lake Oswego. The operator shall submit
invoices to Lake Oswego for all contracted labor, materials, supplies, equipment, other
contractual services and other approved purchases. The invoices shall have
documentation of purchases including receipts, and work performed including hours and
billing rates for individuals performing the work.
EXHIBIT 1
6 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
In special circumstances, Operator may incur a maintenance expense that is not typical
and is not covered under this Agreement. In these cases, Operator may request that Lake
Oswego provide reimbursement of such expenses. Lake Oswego will decide whether or
not to reimburse the Operator using its sole discretion.
g. Other Vehicles and Equipment:
Operator shall regularly inspect and maintain all other vehicles that operate on the Shore
Line, and all equipment necessary to operate and maintain the Shore Line and Trolleys.
Operator shall ensure that all are safe for use, operations and passenger service. Operator
shall be responsible for all costs associated with inspecting and maintaining all other
vehicles and equipment. Equipment and Vehicles owned by Lake Oswego that may be
used in Shore Line operations are listed on Exhibit D, which may be amended by Lake
Oswego from time to time.
3. Shore Line Inspection and Maintenance/Acceptance “AS IS”
a. Inspection:
Operator shall regularly inspect the Shore Line to detect possible problems on or with the
right-of-way, including but not limited to encroachments, dumping, vandalism, trespass,
obstructions, and any other conditions that may affect the safety of operations.
b. Routine Minor Maintenance:
Operator shall provide routine minor maintenance of the Shore Line as approved by Lake
Oswego, including but not limited to the activities listed on attached Exhibit F,
incorporated in this Agreement. Operator shall develop a Work Plan for regularly
scheduled maintenance and present this to Lake Oswego for its review and approval. An
approved Work Plan shall be required for all routine scheduled maintenance, and all such
maintenance shall be performed in accordance with the Work Plan. Operator may perform
minor non-scheduled maintenance on the Shore Line so as to maintain safe operations on
the Shore Line, with advance approval from Lake Oswego. Where the need to perform
minor maintenance is urgent, and it is not practicable under the circumstances to obtain
advance approval from Lake Oswego, the approval of Lake Oswego must be obtained
within 48 hours of performing the maintenance activity.
c. Signage and Signalization:
All signage on the Shore Line and the one railroad signal at Riverwood Drive shall be
maintained by the Operator. The Operator shall perform such maintenance as is required
by the Public Utilities Commission, the Oregon Department of Transportation, and all
applicable state, local and federal laws and regulations.
d. Use of the Shore Line:
Operator shall not use the Shore Line unless the Line is determined by the Operator to be
safe for use, operations and trolley service. Operator shall immediately cease operations
EXHIBIT 1
7 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
and shall repair and remedy any condition of the Shore Line that could in any way
compromise or reduce the safety of use, operations or trolley service. This includes,
without limitation, any missing, improperly maintained, or improperly operating signs and
signals. If the condition cannot be repaired or remedied, the Operator shall immediately
notify Lake Oswego. The Operator shall not begin service until the condition is repaired
or remedied.
e. Maintenance Records:
Operator shall keep records of, and shall provide Lake Oswego with a detailed monthly
report as to all inspections, repairs and remedies undertaken pursuant to this Section 2.
f. Reimbursement for Shore Line Inspection and Maintenance:
Lake Oswego shall reimburse Operator for all scheduled and approved routine minor
maintenance as agreed to by Operator and Lake Oswego. Lake Oswego shall reimburse
Operator for only that work approved by Lake Oswego. Operator shall be reimbursed for
contracted labor, materials and the actually-incurred use of certain privately-owned
personal vehicles and equipment as defined in Exhibit F. All contracted hourly labor rates
and vehicle and equipment rates must be approved in advance by Lake Oswego. Operator
shall be responsible at Operator’s expense for all inspections of the Shore Line including
track inspections.
g. Acceptance of the Shore Line “As Is”:
The Operator accepts the Shore Line in its current condition, AS IS.
4. Safeguards
The Operator shall adhere to the most recently approved System Safety Program Plan, System
Security and Emergency Preparedness Plan, Willamette Shore Trolley Rules and Regulations, and
the Vintage Trolley Operators Plan. Operator shall submit all reports required by the Safety
Program and Security and Emergency Preparedness plans in a timely manner. Operator shall not
conduct trolley operations in the absence of current, approved Safety Program and Security and
Emergency Preparedness plans.
5. Public Complaint Resolution
Operator shall cooperate with Lake Oswego in investigating and resolving any complaints
regarding the operation of the trolley and the maintenance of the Shore Line. Operator shall
provide Lake Oswego with three contact phone numbers to receive complaints and shall provide
24-hour answering for at least one such number.
6. Communications and Cooperation
Operator has designated David Harold as WST Manager, who will be regularly available and
responsible for representing Operator and communicating with Lake Oswego on Operator’s
behalf regarding Operator obligations in this Agreement. Operator will notify Lake Oswego in
writing of any change to the WST Manager. Lake Oswego City Manager or designee and the
EXHIBIT 1
8 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
Operator’s WST Manager shall meet at least quarterly to assess the status of all Operator Services
on the Shore Line and resolve outstanding issues.
7. Special Provisions
Lake Oswego reserves the right to restrict track operations by the Operator because of events or
conditions that Lake Oswego in its sole discretion deems hazardous to persons or property.
The Operator will be allowed to store materials at the Carolina Yard location or other designated
locations approved by Lake Oswego. Stored materials shall be kept in a neat and orderly
fashion, subject to approval by Lake Oswego. Operator shall periodically remove unneeded
materials. Lake Oswego will inspect the Carolina Yard and other designated storage locations at
least annually, and Operator shall promptly correct any identified deficiencies.
Lake Oswego reserves the right to perform those physical improvements it deems necessary to
the right-of-way at its expense and in its sole discretion. Operator shall be given notice of any
such improvements that affect the schedule or operations of the trolley.
B. SHORE LINE CAPITAL IMPROVEMENTS
Any capital improvements to the Shore Line or any alteration or major repair of any of the rail
infrastructure that is necessary for the continued operation of the trolley, is the responsibility of TriMet
at its option and in its discretion. If TriMet determines not to make such expenditures either party may
terminate this Agreement.
C. TROLLEY BARN/TICKET OFFICE
Lake Oswego is the owner of the Trolley Barn and fenced Storage Yard located at 537 North State
Street (“the premises”). During the term of this Agreement, Operator shall have the use of the
premises rent free for the purpose of storing the Trolleys, the Unimog Rail Truck and other vehicles
and equipment to operate on and inspect and maintain the Shore Line, and for the purpose of
performing maintenance of the Trolleys and other vehicles and equipment, and for no other purpose.
Lake Oswego is also the owner of a cement block station at the Lake Oswego terminus of the
Willamette Shore Line. Operator may utilize this station as a ticket booth and for other office and
retail purposes that pertain solely to the Trolleys, trolley operations, and the Willamette Shore Line.
Should Lake Oswego desire to improve the station house or the surrounding property, Operator shall
vacate the station upon written notice from Lake Oswego until Lake Oswego determines that such
improvements have been completed to Lake Oswego’s satisfaction.
The following shall apply with relation to each of the above facilities:
1. Utilities:
Operator shall pay all charges for water, sanitary sewer, surface water management, electricity,
telephone, and all other utilities and services to the premises related to its operations.
EXHIBIT 1
9 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
2. Ordinances and Statutes:
Operator shall comply with all statutes, ordinances and requirements of all municipal, state and
federal authorities now in force, or which may hereafter be in force, pertaining to the use and
occupancy of the premises, including, without limitation, all OSHA requirements.
3. Maintenance, Repairs or Alterations:
Operator shall neither make nor suffer any waste or damage to the premises. Operator shall, at
its own expense and at all times, maintain the premises in good repair and in a clean, safe and
sanitary condition, including all equipment and other personal property on the premises, and
shall, at termination of this Agreement, surrender the premises to Lake Oswego in as good a
condition as received, normal wear and tear excepted. Operator shall not paint or make any
change or alteration in, nor erect or place any structure or sign upon the premises without the
prior written consent of Lake Oswego. Operator shall also clear any plugs in all plumbing or
drains on the facility. If Operator fails to meet its obligations under this paragraph, it shall
reimburse Lake Oswego for any expenses incurred in repairing or maintaining the premises, in
addition to any other remedies Lake Oswego may have pursuant to law or this Agreement.
4. Fire and Security Alarm Systems:
Operator will check fire and security alarm systems weekly and be responsible for advising Lake
Oswego in writing immediately of any malfunction.
5. Entry and Inspection:
Operator shall permit Lake Oswego, or its duly authorized agent, to enter upon the premises at
any time either to view and inspect premises, to make necessary or agreed repairs, decorations,
alterations or improvements, to remove any structure or sign not expressly consented to, or for
any other purpose deemed necessary by Lake Oswego. Lake Oswego will retain keys for the
property. Locks may only be added or changed by Lake Oswego. Operator shall reimburse
Lake Oswego for any locksmith charge necessitated by an unauthorized change of locks.
6. Indemnification/Insurance:
In addition to its indemnity obligations under paragraph I of this Agreement, Operator shall
defend, indemnify, and hold Lake Oswego, its officers, agents and employees harmless against all
liability, loss, or expenses, including attorney’s fees, and against all claims, actions or judgments
based upon or arising out of damage or injury (including death) to persons or property relating in
any way to the use or condition of the premises. Operator shall maintain insurance with a
company authorized to do business in the State of Oregon, and keep on file with Lake Oswego,
policies, binders or certificates evidencing the maintenance of insurance insuring Operator to the
extent of $2,000,000 against legal liability for loss or damage on account of any injuries to
persons or property arising out of the condition or use of the premises.
EXHIBIT 1
10 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
7. Abandoned Property:
Lake Oswego may consider any property left on the premises 30 days after the termination of
this Agreement to be abandoned, and may dispose of such property in any manner allowed by
law. In the event Lake Oswego reasonably believes that such abandoned property has no value,
it may be discarded.
8. Use by Others:
Operator shall not lease, sublease or grant possession or use to any other person or entity
without the advance written approval of Lake Oswego.
9. Hazardous Substances:
a. The term “Hazardous Substances,” as used in this Agreement, shall include, without
limitation, flammable, explosives, radioactive materials, asbestos, polychlorinated
biphenyls (PCBs), chemicals known to cause cancer or reproductive toxicity, pollutants,
contaminants, hazardous waste, toxic substances or related material, petroleum and
petroleum products, and substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental authority.
b. Operator shall not cause or permit to occur, any violation of any federal, state, or local
law, ordinance or regulation now or hereafter enacted, related to environmental conditions
on, under or about the premises, or arising from Operator’s use or occupancy of the
premises, included but not limited to, soil and ground water conditions.
c. With the exception of storage of small quantities of properly-stored and properly-
contained, approved materials ordinarily and reasonably necessary for the maintenance,
repair and operational functions required under this Agreement, Operator shall not cause
or permit to occur the use, generation, release, manufacture, refining, production,
handling, processing, storage or disposal of any hazardous substance on, under, or about
the premises, or the transportation to or from the premises of any hazardous substance.
d. Operator shall, at Operator’s own expense, make all submissions to, provide all
information required by, and comply with all requirements of all governmental authorities
under the laws.
e. Should any governmental authority or any third party demand that a cleanup plan be
prepared and that a cleanup be undertaken because of any deposit, spill, discharge, or
other release of hazardous substances that occurs as a result of Operator’s use or
occupancy of the premises, then Operator shall, at Operator’s own expense, prepare and
submit the required plans and all related bonds and other financial assurances; and
Operator shall carry out all such cleanup plans.
f. Operator’s obligations and liabilities under this Paragraph 8 shall survive the expiration or
termination of this Agreement.
EXHIBIT 1
11 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
D. EFFECTIVE DATE
This Agreement shall be effective as of January 1, 2017 and shall terminate on December 31, 2021.
E. EARLY TERMINATION OF AGREEMENT
1. Lake Oswego and Operator may terminate this Agreement at any time by mutual written
agreement.
2. Lake Oswego, on thirty (30) days’ written notice to the Operator, may terminate this Agreement
for breach of terms of the Agreement by Operator, or other good cause in Lake Oswego’s
determination, including, without limitation, a change in the use or status of the Rail Line as
directed by Lake Oswego, TriMet or the Consortium.
3. In addition to the termination circumstances specified in Section A(1)(d) of this Agreement,
Lake Oswego may immediately terminate this Agreement at any time if:
a. Lake Oswego determines in its sole discretion that the trolley service or other related
activities cannot be operated safely on the Shore Line; or
b. Lake Oswego fails to receive funding, appropriations or other expenditure authority
sufficient, in Lake Oswego’s sole determination in its sole discretion, to meet the
requirements of this Agreement or to enable safe operation of the trolley service and
related activities on the Shore Line.
c. Federal or state laws, regulations or guidelines are modified or interpreted in such a way
that the activities under this Agreement are prohibited or Lake Oswego or the Consortium
are prohibited from making any payments or reimbursements from the planned funding
source.
d. Actions of a court of competent jurisdiction make it impossible or impracticable for Lake
Oswego to perform its obligations under this Agreement.
4. Operator, upon thirty (30) day’s written notice to Lake Oswego, may terminate this Agreement if
Lake Oswego fails to make any payment or reimbursement to Operator as required by the terms
of this Agreement and Lake Oswego fails to cure within thirty (30) business days after receipt of
Operator’s notice, or such longer period of cure as Operator may specify in the notice.
F. LOGOS/TRADE NAMES/SLOGANS
Operator may use logos, trade names and slogans only with the written consent of Lake Oswego.
All logos, trade names and slogans describing or used in any way in promotion of the operation of the
trolley, whether in existence now or developed during the term of this Agreement, and whether
developed by Lake Oswego, Operator or other, shall be owned by Lake Oswego and licensed to
Operator only during the term of this Agreement.
EXHIBIT 1
12 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
G. COMPLIANCE WITH LAWS
The provisions of this Agreement shall be construed in accordance with the provisions of the laws of
the State of Oregon and ordinances of the City of Lake Oswego, Oregon.
The Operator shall comply with all federal, state and local laws and ordinances, applicable to public
contracts, and to the services work to be done under this Agreement
The Operator shall comply with all applicable federal, state, and local laws, rules, and regulations on
nondiscrimination in employment because of race, color, ancestry, national origin, religion, sex, sexual
orientation, marital status, age, medical condition, or disability.
H. OREGON LAW AND FORUM
This Agreement shall be construed according to the laws of the State of Oregon.
Any litigation between Lake Oswego and the Operator rising under this Agreement or out of work
performed under this Agreement shall occur, if in the state courts, in the Circuit Court of Clackamas
County and, if in federal court, the United States District Court for the District of Oregon. The parties
expressly agree that the reasonable attorney fees, costs and disbursements shall be awarded to the
prevailing party including the prevailing party on appeal, if any.
I. INDEMNIFICATION AND HOLD HARMLESS
The Operator shall defend, indemnify, and hold Lake Oswego, its Council, officers, agents and
employees, harmless against all liability, loss or expenses, including attorney’s fees, and against all
claims, actions or judgments based upon or arising out of damage or injury (including death) to persons
or property caused by any act or omission of an act sustained in connection with the performance of
this Agreement or by conditions created thereby, or based upon violation of any statute, ordinance or
by conditions created thereby, or based upon violation of any statute, ordinance or regulation. The
Operator will not be responsible for any liability resulting solely from negligent acts of Lake Oswego,
its agents and/or employees.
J. INSURANCE
The Operator shall obtain, prior to the commencement of any activities under this Agreement and shall
maintain in full force and effect for the term of this Agreement, at the Operator’s expense,
comprehensive general liability insurance , for bodily injury, death and property damage, and
automobile liability insurance covering owned, hired, and non-owned vehicles, together with workers
compensation coverage, as specified and in the amounts listed below in subsections (1) and (2) or
within the limits of pubic liability contained in ORS 30.260 to 30.300 as the same may be amended
from time to time, whichever is greater, together with workers compensation coverage as specified in
subsection (3). Except for workers compensation insurance, the policies shall include an
endorsement naming Lake Oswego, Portland, TriMet, the Consortium and Union Pacific Railroad as
an additional insureds. Each policy must be primary, not contributory and shall provide that no actions
on the part of the insured shall affect the coverage afforded to the policy, and providing that Lake
Oswego will receive 30 days advance written notice of cancellation or material modification of the
insurance contract.
EXHIBIT 1
13 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
1. Railroad commercial general liability insurance, with coverage limits not less than $2 million per
occurrence, bodily injury, death and property damage and $3 million general aggregate.
2. Commercial auto liability insurance for all motor vehicles, whether owned, non-owned, leased,
or hired, with coverage not less than $1 million per person, and $1 million per accident.
3. Oregon statutory worker’s compensation insurance and employer’s liability coverage, with waiver
of subrogation endorsement, including broad form all states protection, if applicable, voluntary
compensation and Federal endorsement, with employer’s liability coverage of not less than $1
million for bodily injury for each accident, $1 million for bodily injury by disease for each
employee and $1 million for bodily injury by disease.
The Operator will not perform any work or activities under this contract until Lake Oswego has
received copies of the required insurance policies or acceptable evidence that the required insurance is
in force.
K. SUBCONTRACTORS AND ASSIGNMENT
No subcontract shall be made by the Operator with any other party for furnishing any of the work or
services provided for herein, including without limitation labor contracts or contracts with temporary
services agencies, without obtaining the prior written consent of Lake Oswego, which Lake Oswego
may withhold without cause. In addition to any other provisions Lake Oswego may require, Operator
shall include in any permitted subcontract under this Agreement a requirement that the subcontractor
be bound by the following sections of this Agreement as if the subcontractor were the Operator:
Independent Contractor Status; Other Contractors; Hours of Labor; Ownership of Work;
Indemnification and Hold Harmless; Attorney Fees; Compliance with Laws. The City’s consent to any
subcontract shall not relieve Operator of any of its duties or obligations under this Agreement.
This agreement is not assignable by the Operator, either whole or in part, unless Operator has obtained
the prior written consent of the City.
City and Operator are the only parties to this Agreement and are the only parties entitled to enforce its
terms. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide
any enforceable benefit or right, whether directly, indirectly or otherwise, to third persons.
L. HOURS OF LABOR
For any employees of Operator covered or subject to Oregon employment laws, the Operator shall pay
employees for overtime work performed under the Agreement in accordance with ORS 653.010 to
653.261 and the Fair Labor Standards Act of 1938 (29 USC 201 et seq.).
M. INDEPENDENT CONTRACTOR STATUS
The Operator agrees and certifies that:
1. The Operator is engaged as an independent contractor. Although Lake Oswego reserves the
right (i) to determine (and modify) the delivery schedule for the services to be performed and (ii)
to evaluate the quality of the completed performance, Lake Oswego cannot and will not control
the means or manner of Operator's performance, nor provide any tools or equipment for the
EXHIBIT 1
14 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
performance of the Work, except as provided elsewhere in this Contract. Operator is
responsible for determining the appropriate means and manner of performing the services.
2. Although this Agreement does not call for compensation to the Operator, in the event there
should be any compensation, Operator shall be responsible for all federal or state taxes
applicable to such compensation or payments paid to Operator under this Agreement and,
unless Operator is subject to backup withholding, Lake Oswego will not withhold from such
compensation or payments any amount(s) to cover Operator’s federal or state tax obligations.
3. The Operator will not, on account of any payments made under this contract, be eligible for any
benefit from federal social security, workers' compensation, unemployment insurance, or the
Public Employees Retirement System, except as a self-employed individual;
4. The Operator is not currently an employee of the federal government or the State of Oregon;
5. The Operator is not a contributing member of the Public Employees Retirement System; and
6. The Operator is not an "officer," "employee," or "agent" of the City, as those terms are used in
ORS 30.265.
N. NOTICE
Any notice provided for under this Agreement shall be sufficient in writing and delivered personally to
the address listed below, or if deposited in the United States Postal Service, postage prepaid, certified
mail, return receipt requested, addressed as follows, or to such address as the receiving party hereafter
shall specify in writing.
If to Lake Oswego:
Lake Oswego City Manager
City of Lake Oswego
PO Box 369
Lake Oswego, Oregon 97034
If to the Operator:
WST Manager, OERHS
3995 Brooklake Road NE
Brooks, Oregon 97303
O. SEVERABILITY
If any provision of this Agreement is found to be illegal or unenforceable, this Agreement,
nevertheless, shall remain in full force and effect and the illegal or unenforceable provision shall be
stricken.
EXHIBIT 1
15 – 2017 TROLLEY OPERATIONS AND MAINTENANCE SERVICES AGREEMENT
P. AMENDMENTS
Except as otherwise provided in this Agreement between Lake Oswego and the Operator may amend
this Agreement at any time only by written amendment approved by Lake Oswego City Council and
executed by Lake Oswego City Manager and by the Operator.
Q. INTEGRATION
This Agreement contains the entire Agreement between Lake Oswego and the Operator and
supersedes all prior written or oral discussions or Agreements.
R. NON-WAIVER
Lake Oswego and the Operator shall not be deemed to have waived any breach of this Agreement by
the other party except as an express waiver in writing. An express written waiver as to one breach shall
not be deemed a waiver of any other breach not expressly identified, even though the other breach may
be of the same nature as that waived.
S. PAYMENTS
The Operator shall timely pay any suppliers, lessor, contractors and subcontractors providing its
services, materials and equipment for carrying out its obligations under this Agreement. The Operator
shall not take any action in a manner that causes Lake Oswego or any materials that the Operator
provides hereunder to be subject to any claim or lien of any person without Lake Oswego’s prior
written consent.
T. CONSTRUCTION OF THE AGREEMENT
The parties acknowledge that they have been represented by legal counsel of their own choice
throughout all the negotiations and have cooperated in the drafting and preparation of this Agreement.
Hence, in any construction to be made of this Agreement, the same shall not be strictly construed
against either Lake Oswego or Operator.
OREGON ELECTRIC RAILWAY CITY OF LAKE OSWEGO,
HISTORICAL SOCIETY, INC., an a municipal corporation of the State of Oregon
Oregon Corporation
_____________________________________ _____________________________________
John Nagy, Chair Scott Lazenby, City Manager
APPROVED AS TO FORM:
_____________________________________
David Powell, City Attorney
EXHIBIT 1
EXHIBIT A
Trolley Operating Schedule
Typical Months of Operation
Late May through Mid-October
Typical Days of Operation
Friday, Saturday and Sunday
Typical Hours of Operation
10:00 a.m. to 4:00 p.m.
Months, days and hours of operation may vary given the time
of year, weather conditions, and ridership demand. Charters
can be scheduled throughout the year. July 4th Fireworks and
December Christmas Ships runs will be scheduled in the
evenings for these events.
No operation is permitted after 10:00 p.m. (except for July 4), or
before 7:00 a.m. On July 4, no operation is permitted after 11:00 p.m.
Trolley Fare Schedule
Fares cannot be changed without approval from Lake Oswego.
Round-Trip Fares
Adult: $12.00
Seniors (at least 55 years old): $10.00
Children ages 3-12 round trip: $5.00
Children ages 2 and under: Free
One-Way Fares
Adult: $8.00
Seniors: $6.00
Children ages 3-12 round trip: $3.00
Children ages 2 and under: Free
Charters
Typical 2-hour charter: $350.00
Each additional hour: $100.00
With bar installed: $50.00
Excursion charter (less than 2 hours): $10.00 per person with a $150 minimum
Special Holiday Runs
July 4th Fireworks run: $20.00 per person
December Christmas Ships runs: $25.00 per person
EXHIBIT 1
EXHIBIT B
11-13-2016 Page 1
WST Daily Ground Inspection Vintage Trolley
Dave Rowe – Cell: 503-803-6422 for assistance
FILL OUT VOLUNTEER LOG ~ Weekday, date, travel time and mileage
CHECK WST EQUIPMENT AND LINE REPORT REGISTER ~ for any previous outstanding entries.
ACQUIRE Radio, Speedometer, and pouch containing VT key/reverser handle/brake handle.
Stow empty pouch in the Trolley cab north end equipment locker.
VERIFY you have your issued DOOR/TRACK SWITCH KEY
PLACE magnetic markers on MAINLINE locations you intend to operate~ Name Tags and Equipment
EXTERIOR GROUND INSPECTION & STARTING UP THE TROLLEY
CHECK for a blue flag on Generator Key or for any persons working on the Trolley.
CHECK for fluid leaks under the Generator car. ‘Notify maintenance immediately if any detected’
CHECK that the generator fuel level is more than 1/4tank ‘Maintenance should refuel weekly’
CHECK that both clip pins are installed and in place on generator to trolley coupler draw bar
CHECK that the high voltage lead connectors & the 120 volt AC connector are correctly locked.
COMPLETE a general walk-around inspection of trolley and generator.
CHECK that the WST barn door is fully open.
TURN the trolley battery C/B ON (located under seat #1) ‘make sure to reinstall seat bottom’
CHECK and VERIFY voltmeter in Trolley overhead cab panel is reading above 30 volts DC.
TURN ON the Barn Overhead Exhaust Fans ‘circuit breakers are located on North wall of Barn’
CHECK and VERIFY that the Power Generator Red master breaker is OFF
CONFIRM that the generator panel switches are in the marked positions
CLOSE the Power Generator battery knife switch. ’switch will be horizontal when closed’
START the Power generator with key switch. ‘If the generator fails to start, turn switch to the “OFF”
position before attempting to start again’
CHECK that the AC volts are at 208 volts and around 1800 RPM
CHECK the diesel engine gages are normal ‘voltmeter, oil pressure, and engine temperature gages’
TURN the Power Generator headlight or tail-light ON for appropriate direction of travel. ‘Leaving the
barn would be south’
TURN the Power Generator Red master breaker ON
CLOSE the generator door
CHECK that the VT air compressor is running by observing the spinning fly wheel.
Visually inspect the following being mindful of safety while working above the open pit
CHECK trolley knife switch door is closed and locked.
CHECK that the Tread brakes shoes are touching wheels ‘generally happens above 20 PSI’
VISUALLY check Track brakes.
CHECK that all 4 Shaft brake levers are pushed in
CONFIRM that both sanding tubes are in place
CHECK the doors on Inverter and High Voltage compartment are securely locked and closed.
The windshield wiper motor will leak until air pressure gets above 50 PSI
EXHIBIT 1
EXHIBIT B
11-13-2016 Page 2
INTERIOR TROLLEY INSPECTION
Trailing Cab/CAB A (closest to generator):
CONFIRM voltage meter is around 37 volts.
CLOSE both entrance doors.
VERIFY mushroom button is up.
VERIFY air pressure gage reads 80 – 93 PSI on system pressure and approximately 68 PSI on brake
pressure
VERIFY parking brake light is glowing red
VERIFY fire extinguisher is secure and shows green on gage
SET heater switches to desired setting (A cab only). ‘only if needed’
OPERATIONALLY test wiper, whistle, gong and passenger overhead bell
Passenger Compartment:
SET windows for weather conditions. The Four clerestory windows open by pressing the bottom frame.
ARRANGE seat backs to passenger load. ‘Make sure to move seat-back from the center of seat’
CHECK ceiling lights are on and all lit
CHECK for cleanliness and any damage
Lead Cab/CAB B (south end of trolley):
BEGIN the Lead Cab inspection the same as the Trailing Cab inspection.
INSERT brake handle, reverser handle and VT key (double thick ridges will be on left side of key).
TURN VT key clockwise and observe parking brake light will go dark.
The trolley is now ready to take a point of power
DEPRESS controller handle to deactivate the dead man feature (handle must remain held down during
operation)
RELEASE air brakes by rotating air brake handle clockwise
LISTEN for air release sound to stop before taking a point of power.
UPON exiting barn – Install Pit warning cable on south end of pit/Turn Overhead Exhaust Fans OFF/
Close and lock barn door
Returning to Barn after Operation
OPEN WST barn door Turn ON Overhead Exhaust Fans circuit breaker and remove pit warning cable
OPERATE VT into barn and stop when left rear wheel of generator is inside yellow painted square.
TURN the VT key OFF and remove reverser handle and brake handle. ‘Put all three items in Trolley
pouch’
TURN the trolley battery C/B OFF (located under seat #1) Leave seat open to expose battery C/B
TURN the Power Generator Red master breaker OFF
TURN the Power generator with key switch OFF
TURN the headlight/tail-light to OFF
OPEN generator battery knife switch ’switch will be vertical when open’
TURN the Barn Overhead Exhaust Fans circuit breaker OFF
RETURN the Radio to charger and Speedometer plug in if necessary
RETURN pouch containing VT key, reverser handle, and brake handle to its assigned space on the
cabinet shelf.
Fill out departure time in the Volunteer Hours log and place magnetic markers back to proper spots.
If any defects or problems were found during the run, fill out the WST Equipment and Line Report
Register. When entries are made notify Dave Rowe and/or Jan Zweerts and/or Rod Cox. Close Barn
overhead door by lowering chain slowly. When leaving Barn reset the Alarm system.
EXHIBIT 1
EXHIBIT C
Annual Trolley Operating Expense
Categories and Typical Expenses
Liability insurance $14,000
Drug tests $1,100
Advertising $1,400
Printing $100
Credit card transaction fees $700
Power $1,200
Water $700
Postage $200
Phone $2,200
Depot supplies $400
Fuel $1,000
Garbage $500
Total $21,500
EXHIBIT 1
EXHIBIT D
Equipment Used for the Willamette Shore Line and Trolley
Vehicle/Equipment Owner
1 Vintage Trolley 513 Vintage Trolley Inc. leased to Lake Oswego
1 Vintage Trolley 514 Vintage Trolley Inc. leased to Lake Oswego
1 20-foot shipping container for storage Lake Oswego
1 40-foot shipping container for storage Lake Oswego
1 Unimog rail truck Lake Oswego leased to Operator
1 Perkins 75 KW generator on rail car Operator
1 MT 14 Fairmount speeder Operator – reimbursable at $____per hour
1 Rail flat car (black wheel) Operator – reimbursable at $____per hour
1 Flume locomotive #71 PGE loaned to Operator
3 Rail flat cars (red wheel) Rod Cox – reimbursable at $____per hour
Other Smaller Equipment and Tools Owner
1 Hedge shears (16” electric) Operator
1 Stihl chainsaw (24” gas) Operator
1 Chain saw (gas w 10’ extension) Operator
1 4 KW portable generator Dave Rowe
1 2 KW portable generator Dave Rowe
1 Portable staircase (10’) Dave Rowe
1 Chain saw (14” electric) Dave Rowe
1 Hedge shears (16” electric w 10’ extension) Dave Rowe
1 Hedge shears (16” electric) Dave Rowe
1 Stanley 12’ extended hand clipper Dave Rowe
1 Toro leaf blower (electric) Dave Rowe
1 Portland electric chain saw (9’ extension) Dave Rowe
2 Stihl leaf blowers (gas) Craig Sharpe
1 Rail push car (collapsible) Rod Cox
1 Rail saw Rod Cox
2 1”air impact wrenches Rod Cox
1 Air operated grinder Rod Cox
3 Air spike drivers Rod Cox
3 Air pavement breakers Rod Cox
2 Rail puller/expanders Rod Cox
8 Air tampers Rod Cox
200 1” air hoses Rod Cox
1 Rail drill Rod Cox
1 Hydraulic rail bender Rod Cox
1 Portable derail Rod Cox
1 Rolling track gage Rod Cox
Numerous hand track tools Rod Cox
Signal test equipment and tools Rod Cox
Miscellaneous air track tools Rod Cox
Hand tools (shovels, picks, forks, etc) Rod Cox
EXHIBIT 1
EXHIBIT E
Trolley and Generator Maintenance Program
Weekly Trolley operational readiness and safety inspection (Exhibit E-1) : 1 to 2 hours per
inspection
Quarterly Trolley preventative maintenance inspection (Exhibit E-2): 4 to 10 hours per
inspection
Annual Trolley preventative maintenance inspection (Exhibit E-3): 25 to 30 hours per
inspection
Annual Generator preventative maintenance inspection (Exhibit E-4): 8 to 12 hours per
inspection
Repairs and upkeep: materials and labor as needed
EXHIBIT 1
EXHIBIT E-1
DATE:EMPLOYEE:
Trolley Number
Hours on Generator Miles on Odometer
Generator Inspection:
Breather catch bucket Clean Perkins engine air filter
Coolant level Axle Brushes Draw bar
Oil Level Clean fan side of Radiator with Air Wheels
Lights RPM meter at 1800 RPM HV wires
Trolley Inspection:A End B End
Both Knife Switches in "NORMAL" and door secure
Brake Shoes are not touching wheels with no air pressure
Deploy People Catcher, it should not touch rail then retract with pedal
Inspect Trucks, all shaft brakes set, clean wheel and track brakes if dirty.
Clean and/or replace MG exhaust screen and intake screens on MG ends.
Under seat Circuit Breakers in normal position & Truck switch in "A"
Check Emergency Low Air Switch is safety wired to "OFF"
Sand Boxes are more than 1/2 full
Equipment Lockers (Manuals, 2 flashlights, 2 vests, fuzees &1 first-aid kit).
Interior : Seats are clean, blow air to clean floor, windows clean
Fire Extenguishers in green
Verify hidden keys are in Hide-A-Key boxes
Warning Bell and cab chime
Battery above 30 VDC when switched on.
Start Generator
Air System pressure (92-95 PSI Max and 78-80 Min.)
Brake System pressure ( 68 - 70 PSI)
Doors fully locked and check all four door switches to apply brakes
Horns
Windshield Wiper
Check south headlight, marker lights, overhead lights and ceiling lights
Propulsion and Brake Test
Apply Emergency Mushroom when stopped on ballast track & check for sand
Refuel Generator and fill out refueling log
Check Equipment & Line Report Register verify Radio and Speedometer are on charger
Comments:
WST Weekly Trolley Operational Readiness Inspection
EXHIBIT 1
EXHIBIT E-2
WST Vintage Trolley Quarterly PM Inspection
V T MAINTENANCE 3 month P.M. CHECKLIST EMPLOYEE SIGNATURE
UNDER CAR INSPECTION ITEMS
ITEM DESCRIPTION A-END B-END Gen.
VT 106 Check Gearbox Oil Level
VT 107 Check Journal Box Oil Level
VT 110 Warning Bell
VT 111 Horn
VT 112 Inspect Trip Gate
VT 114 Coupler and Draw Bar
VT 117 Check Truck Appurtenances
VT 118 Sanding System
VT 130 Parking (Shaft) Brake
VT 140 Service (Tread) Brakes
VT 145 Track Brake Assemblies
VT 170 Traction Motors
VT 190 Knife Switch Box
VT 195 Resistor Grids
VT 205 HV Contactor Box
VT 220 Motor-Generator Set
CARBODY AND ROOFTOP
ITEM DESCRIPTION A-END B-END GEN
VT 250 Carbody
VT 270 Roof
INTERIOR
ITEM DESCRIPTION A-END B-END GEN
VT 300 External Door Inspection
VT 320 Windows and Glass Inspection
VT 340 Master “K” Controller
VT 355 Interior
VT 360 Battery Compartment
POWER ON CHECKS
ITEM DESCRIPTION A-END B-END GEN
VT 410 Air System Operation
VT 411 Check voltage on input to Line Switch (Use “AUX” only)
DEFECTS Repaired
By Initials
Deferred
By intials
CAR # Truck mileage
Date WST/VT
3 month
PM
Generator hours
EXHIBIT 1
EXHIBIT E-3
WST Vintage Trolley Annual PM Inspection
WST/VT annual inspection form 5-22-2015 Page1 Trolley #___________ Date Started_______________________
V T MAINTENANCE P.M. CHECKLIST EMPLOYEE SIGNATURE
UNDER CAR INSPECTION ITEMS
ITEM DESCRIPTION A-END B-END Gen.
VT 105 Change Gearbox and Journal Box Oil
VT 106 Check Gearbox Oil Level
VT 107 Check Journal Box Oil Level
VT 110 Warning Bell
VT 111 Horn
VT 112 Inspect Trip Gate
VT 114 Coupler and Draw Bar
VT 115 Draw Bar Lubrication
VT 117 Check Truck Appurtenances
VT 118 Sanding System
VT 130 Parking (Shaft) Brake
VT 135 Lubricate Parking Brake Linkage
VT 140 Service (Tread) Brakes
VT 145 Track Brake Assemblies
VT 150 Inspect and Lubricate Swing Linkage
VT 160 King Pin Inspection and Lubrication
VT 170 Inspect Traction Motors
VT 180 Lubricate Traction Motor Bearings
VT 190 Knife Switch Box
VT 195 Resistor Grids
VT 205 HV Contactor Box
VT 207 MG Contractor Box
VT 210 Reverser Box
VT 211 Reverser Box Lubrication
VT 220 Motor-Generator Set
VT 230 Motor-Generator Set (Extensive)
VT 235 Air System (Three Year inspection)
CARBODY AND ROOFTOP
ITEM DESCRIPTION A-END B-END GEN
VT 250 Carbody
VT 270 Roof Equipment
EXHIBIT 1
EXHIBIT E-3
WST Vintage Trolley Annual PM Inspection
WST/VT annual inspection form 5-22-2015 Page2
INTERIOR
ITEM DESCRIPTION A-END B-END GEN
VT 300 External Door Inspection
VT 305 External Door Lubrication
VT 320 Windows and Glass Inspection
VT 340 Master “K” Controller
VT345 Master “K” Controller Lubrication
VT 350 PA and Intercom
VT 355 Interior
VT 356 Interior (extensive)
VT 360 Battery Compartment
POWER ON CHECKS
ITEM DESCRIPTION A-END B-END GEN
VT 370 Sandbox Heaters
VT 375 Interior Car Heaters
VT 400 MG Contactor Box
VT 410 Air System Operation
DEFECTS Initial Deferred
CAR # Truck mileage
Date Finished WST/VT
PM Generator hours
EXHIBIT 1
EXHIBIT E-4
WST Perkins Generator Annual PM Inspection
WST Power generator Annual PM inspection form 11-13-2016
Perkins Generator P.M. CHECKLIST
ITEM DESCRIPTION Checked
Gen 100 Check wheels and axles
Gen 101 Grease axle bearings and suspension
Gen 106 Inspect draw bar and HV wire suspension
Gen 108 Inspect Generator body parts and doors
Gen 111 Inspect Exhaust system
Gen 112 Radiator inspection and cleaning
Gen 113 Change radiator coolant
Gen 116 Battery
Gen 117 Engine oil and filter change
Gen 118 Fuel filter change
Gen 119 Engine operation
Gen 120 Change engine and oil filter
Gen 121 Engine Oil Filter
Gen 122 Front mounted mirror
Gen 123 Headlight and marker lights
Gen 124 Control panel
Gen 125 120 VAC Outlets G
Gen 127 600 VDC Outlets
Gen 128 Fuel tank inspection
Gen 129 Generator power ON test
Date Employee
signature
Generator hours
EXHIBIT 1
EXHIBIT F
Routine Minor Maintenance of Way Activities*
Cut and clear brush and trees
Clear and maintain ditches, culverts and catch basins
Repair rail joints
Grind rail joints
Replace and tamp ties
Rework ballast
Replace ties
Replace bolts
Repair switches
Replace joint bars
Gage and level track
Perform quarterly preventative maintenance and repair of the Riverwood Road crossing signal
Inspect track and right of way (non-reimbursable expense per Section A.3 of the Agreement)
Repair fences
Repair walkway planks at Lake Oswego terminus
Repair benches at both the Lake Oswego and Portland terminuses
Remove leaves and debris from track way, trestle and bridges
Other minor maintenance of way activities as approved by Lake Oswego
* Note that Operator shall no longer spray for brush or weeds. This must be done by a
certified person and shall be managed by Lake Oswego.
EXHIBIT 1
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: David Powell
City Attorney
SUBJECT: Declaring a Public Necessity to Acquire Real Property Interests and Exercise the
Power of Eminent Domain for the Boones Ferry Road Improvements Project
DATE: December 23, 2016
ACTION
Adopt Resolution 17-04 declaring the public necessity to acquire real property interests on
fifteen properties for the Boones Ferry Road Improvements Project and authorize eminent
domain proceedings if necessary. On October 4, 2016, the City Council approved Resolution 16-
40, declaring a public necessity to acquire similar interests on 15 properties and on December
6, 2016, City Council approved Resolution 16-66 declaring a public necessity to acquire similar
interests on eight additional properties. Attached Resolution 17-04 is the third set of
acquisitions for this project.
SUGGESTED MOTION
Move to adopt Resolution 17-04.
INTRODUCTION/BACKGROUND
The Boones Ferry Road Improvements Project began final design work and is now working on
the right-of-way acquisition phase. This will entail notifying affected property owners that the
City will be acquiring right-of-way and easements as well as addressing impacts such as the loss
of parking, relocation of signs, etc. Appraisals will then be done followed by formal offers to
each of the property owners based on these appraisals. The City has hired the right-of-way
acquisition firm, Universal Field Services, to conduct this process. Prior to initiating this
property acquisition process, State law requires that the City must adopt a resolution
authorizing acquisition and condemnation.
6.3
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503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
DISCUSSION
Most of the Boones Ferry Project will be constructed within the existing public right of way.
However, due to the roadway being widened, the City will need to acquire right of way,
permanent easements, and temporary construction easements along the length of the project.
As stated in the attached memorandum from Project Engineer Stacy Bluhm, project staff
throughout the preliminary design process have taken concerted steps to minimize impacts to
properties and the amount of right of way and easements needed while fulfilling essential
project goals.
As part of the property acquisition process, efforts will be made to negotiate voluntary
agreements with property owners. Nevertheless, it is possible that circumstances could arise
requiring the City to use its condemnation authority to ensure that the project stays on
schedule and that the public pays a fair price for an easement or property interest.
The initial steps for property acquisition include obtaining an appraisal to determine the
amount of fair compensation, followed by offers to property owners. Having a resolution in
place that authorizes condemnation where necessary, helps to ensure that the appraisal and
negotiation phases of the process will qualify as required steps under Oregon condemnation
law in the event that negotiations are unsuccessful.
The attached Resolution 17-04 accomplishes the following:
Declares that the acquisition of property for the Boones Ferry Project is necessary and
serves a public purpose;
Declares that the Project improvements have been planned, designed, located, and will
be constructed in a manner that will be most compatible with the greatest public good
and the least private injury;
Authorizes negotiations for the acquisition of property interests for certain properties
within the Project; and
Authorizes eminent domain proceedings in the event that property agreements are not
reached.
This Resolution addresses the acquisition of right-of-way and easements for 15 properties
within the Project area. Acquisitions for additional properties will be addressed in one or more
subsequent resolutions.
RECOMMENDATION
Adopt Resolution 17-04, declaring the intent and necessity to acquire real property interests for
the Boones Ferry Road Project and authorizing eminent domain proceedings if necessary.
Page 3
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
ATTACHMENTS
1. Memorandum from Project Engineer Stacy Bluhm
2. Resolution 17-04 including Attachment 1 – Legal Descriptions and Maps Depicting Right
of Way, Permanent Easement & Temporary Construction Easement Needs for the
Boones Ferry Road Project
TO: Kent Studebaker, Mayor
Members of the City Council
CC: David Powell, City Attorney
Brant Williams, Redevelopment Director
FROM: Stacy Bluhm, Project Engineer
Engineering
SUBJECT: Boones Ferry Road Property Acquisitions
DATE: December 23, 2016
As stated in Resolution 17-04, the Boones Ferry Road Project public improvements are to be
planned, designed, located, and constructed in a manner that will be most compatible with the
greatest public good and the least private injury. The purpose of this memorandum is to
confirm that our design team has been working diligently to ensure that we are building the
necessary street and utility improvements while minimizing impacts to the adjacent properties.
We continue to refine our design to be certain that we will construct high quality public
improvements while ensuring that we are meeting the needs of the adjacent properties and
minimizing impacts to those properties as best we can.
ATTACHMENT 1
Resolution 17-04 Page 1 of 2
RESOLUTION 17-04
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE OSWEGO DECLARING A PUBLIC NECESSITY
TO ACQUIRE REAL PROPERTY INTERESTS AND EXERCISE THE POWER OF EMINENT DOMAIN (BOONES
FERRY ROAD PROJECT)
WHEREAS, City of Lake Oswego may exercise the power of eminent domain pursuant to The Lake
Oswego Charter of 1964, as amended and the law of the State of Oregon generally, when the exercise
of such power is deemed necessary by the City’s governing body to accomplish public purposes for
which City has responsibility;
WHEREAS, City has the responsibility of providing safe transportation routes for commerce,
convenience and to adequately serve the traveling public;
WHEREAS, the project or projects known as either BOONES FERRY ROAD or BOONES FERRY RD:
OAKRIDGE RD/REESE RD - MADRONA ST (ODOT Key No 18809) are within the recited City responsibility
and have been planned in accordance with appropriate engineering standards for the construction,
maintenance or improvement of said transportation infrastructure such that property damage is
minimized, transportation promoted, and travel safeguarded; and
WHEREAS, to accomplish the project or projects set forth above it is necessary to acquire the interests
in the property described in “Attachment 1,” attached to this resolution and by this reference
incorporated herein; now, therefore
BE IT HEREBY RESOLVED by City of Lake Oswego Council:
Section 1. The foregoing statements of authority and need are, in fact, the case. The project or
projects for which the property is required and is being acquired are necessary in the public interest and
will serve a necessary public purpose, and the same have been planned, designed, located, and will be
constructed in a manner which will be most compatible with the greatest public good and the least
private injury;
Section 2. The power of eminent domain is hereby exercised with respect to each of the interests in
property described in Attachment 1. Each is acquired subject to payment of just compensation and
subject to procedural requirements of Oregon law;
Section 3. The City’s staff and the City’s legal counsel are authorized and requested to attempt to agree
with the owner and other persons in interest as to the compensation to be paid for each acquisition,
and, in the event that no satisfactory agreement can be reached, to commence and prosecute such
condemnation proceedings as may be necessary to finally determine just compensation or any other
issue appropriate to be determined by a court in connection with the acquisition. This authorization is
not intended to expand the jurisdiction of any court to decide matters determined above or
determinable by the City Council.
Section 4. City expressly reserves its jurisdiction to determine the necessity or propriety of any
acquisition, its quantity, quality, or locality, and to change or abandon any acquisition.
Section 5. Effective Date. This Resolution shall take effect upon passage.
ATTACHMENT 2
Resolution 17-04 Page 2 of 2
Adopted at the regular meeting of the City Council of the City of Lake Oswego on the 3rd day of January,
2017.
AYES:
NOES:
EXCUSED:
ABSTAIN:
___________________________________
Kent Studebaker, Mayor
ATTEST:
___________________________________
Anne-Marie Simpson, City Recorder
APPROVED AS TO FORM:
________________________________
David Powell, City Attorney
RESOLUTION 17-04
Attachment 1
Legal Descriptions and Maps Depicting Right of Way, Permanent
Easement & Temporary Construction Easement Needs for the
Boones Ferry Road Project
Legal Descriptions and Maps are included for the following fifteen properties:
1. 15480 Boones Ferry Rd (File No. 14)
2. 15540 Boones Ferry Rd (File No. 15)
3. 15780 Boones Ferry Rd (File No. 19)
4. 16044 Boones Ferry Rd (File No. 35)
5. 16120 Boones Ferry Rd (File No. 37)
6. 16455 Boones Ferry Rd (File No. 47)
7. 16463 Boones Ferry Rd (File No. 48)
8. 16555 Boones Ferry Rd (File No. 50)
9. 4803 Madrona St (File No. 49)
10. 16210 Bryant Rd (File No. 40)
11. 16250 Bryant Rd (File No. A4)
12. 16320 Bryant Rd (File No. A5)
13. 15969 Reese Rd (File No. A6)
14. 15979 Reese Rd (File No. A7)
15. 16032 Reese Rd (File No. A8)
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EXHIBIT “A”
Boones Ferry Rd Lake Oswego Work Order No.: 183
(Oakridge Rd/Reese Rd - Madrona St) File No.: 050
December 23, 2016 Assessors Map: 2 1 E 07DD
Parcel 1 Tax Lot No.: 1700
PARCEL 1 (RIGHT-OF-WAY DEDICATION)
A parcel of land lying in the Southeast quarter of Section 7, Township 2 South, Range 1
East of the Willamette Meridian, Clackamas County, Oregon, and being a portion of that
tract of land conveyed to KW One, LLC, an Oregon limited liability company by Warranty
Deed recorded November 12, 2009 in Document No. 2009-078610, Clackamas County
Official Records, said parcel also being all that portion lying Southeasterly of the line
delineated by following the below noted stations and offsets, Northwesterly of the
centerline of Boones Ferry Road, as said centerline is described below.
BOONES FERRY ROAD CENTERLINE
A road centerline situated in the Southeast one-quarter of Section 7, and in the Southwest
one-quarter of Section 8, and the Northwest one-quarter of Section 8, all within Township
2 South, Range 1 East of the Willamette Meridian in the City of Lake Oswego, Clackamas
County, Oregon, being more particularly described as follows:
Beginning at Boones Ferry Road Centerline Station 10+00 per Record of Survey number
2013-083 as recorded in the Clackamas County Survey Records. Thence from said point of
beginning North 47°36’13” East, a distance of 167.89 feet to Station 11+67.89 at a point of
curvature; Thence along the arc of a 5729.58 foot radius curve to the right, through a
central angle of 03°06’00” (the long chord bears North 49°09’13” East, 309.96 feet)
310.00 feet to Station 14+77.89 at a point of tangency; Thence North 50°42’13” East,
637.07 feet to Station 21+14.96 at a point of curvature; Thence along the arc of a 5729.58
foot radius curve to the left, through a central angle of 02°36’00” (the long chord bears
North 49°24’13” East, 259.98 feet) 260.00 feet to Station 23+74.96 at a point of tangency;
Thence North 48°06’13” East, 85.00 feet to Station 24+59.95 at a point of curvature;
Thence along the arc of a 1145.91 foot radius curve to the right, through a central angle of
10°31’00” (the long chord bears North 53°21’43” East, 210.04 feet) 210.33 feet to Station
26+70.29 at a point of tangency; Thence North 58°37’13” East, 768.60 feet to Station
34+38.88 at a point of curvature; Thence along the arc of a 716.20 foot radius curve to the
left, through a central angle of 15°25’30” (the long chord bears North 50°54’28” East,
192.23 feet) 192.81 feet to Station 36+31.70 at a point of tangency; Thence North
43°11’43” East, 516.51 feet to Station 41+48.21 at a point of curvature; Thence along the
arc of a 954.93 foot radius curve to the left, through a central angle of 12°42’30” (the long
chord bears North 36°50’28” East, 211.37 feet) 211.81 feet to Station 43+60.02 at a point
of tangency; Thence North 30°29’13” East, 279.39 feet to Station 46+39.41 at a point of
curvature; Thence along the arc of a 716.20 foot radius curve to the
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left, through a central angle of 18°22’30” (the long chord bears North 21°17’58” East,
228.71 feet) 229.69 feet to Station 48+69.10 at a point of tangency; Thence North
12°06’43” East 511.40 feet to Station 53+80.49 at a point of curvature; Thence along the
arc of a 1432.39 foot radius curve to the right, through a central angle of 11°20’33” (the
long chord bears North 17°46’59” East, 283.10 feet) 283.56 feet to Station 56+64.05 at a
point of compound curvature; Thence along the arc of a 3819.72 foot radius curve to the
right, through a central angle of 07°34’57” (the long chord bears North 27°14’44” East,
505.13) 505.50 feet to Station 61+69.55 at a point of tangency; Thence North 31°02’12”
East 104.47 feet to Station 62+74.03 at the point of termination.
Centerline stationing and Basis of Bearings are determined by holding a station of
10+00.00 at a 3/4” iron pipe at the Centerline of Boones Ferry Road as per survey number
2013-083, Clackamas County Survey Records.
Offset Distances Northwesterly of
Station to Station Boones Ferry Road Centerline
15+50.85 to 15+52.22 45.09 feet to an arc with a 10.00 foot radius, concave
Northwesterly, with a central angle of 08°23’25”, the long
chord of which bears North 30°16’22” East, a chord length
of 1.46 feet, and an arc distance of 1.46 feet, to 45.60 feet
15+52.22 to 15+68.05 45.60 feet to an arc with a 40.00 foot radius, concave
Westerly, with a central angle of 29°42’25”, the long chord
of which bears North 11°13’27” East, a chord length of
20.51 feet, and an arc distance of 20.74 feet, to 58.64 feet
15+68.05 to 15+69.04 58.64 feet to an arc with a 10.00 foot radius, concave
Westerly, with a central angle of 11°22’57”, the long chord
of which bears North 09°19’13” West, a chord length of 1.98
feet, and an arc distance of 1.99 feet, to 60.36 feet
Excepting therefrom, all that portion of said parcel lying within the existing right-of-way
of Boones Ferry Road and Madrona Street..
The parcel of land to which this description applies contains 93 square feet, more or less.
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EXHIBIT “A”
Boones Ferry Rd Lake Oswego Work Order No.: 183
(Oakridge Rd/Reese Rd - Madrona St) File No.: 050
December 23, 2016 Assessors Map: 2 1 E 07DD
Parcel 1 Tax Lot No.: 1700
PARCEL 1 (TEMPORARY CONSTRUCTION EASEMENT)
A parcel of land lying in the Southeast quarter of Section 7, Township 2 South, Range 1
East of the Willamette Meridian, Clackamas County, Oregon, and being a portion of that
tract of land conveyed to KW One, LLC, an Oregon limited liability company by Warranty
Deed recorded November 12, 2009 in Document No. 2009-078610, Clackamas County
Official Records, said parcel also being all that portion lying Southeasterly of the line
delineated by following the below noted stations and offsets, Northwesterly of the
centerline of Boones Ferry Road, as said centerline is described below.
BOONES FERRY ROAD CENTERLINE
A road centerline situated in the Southeast one-quarter of Section 7, and in the Southwest
one-quarter of Section 8, and the Northwest one-quarter of Section 8, all within Township
2 South, Range 1 East of the Willamette Meridian in the City of Lake Oswego, Clackamas
County, Oregon, being more particularly described as follows:
Beginning at Boones Ferry Road Centerline Station 10+00 per Record of Survey number
2013-083 as recorded in the Clackamas County Survey Records. Thence from said point of
beginning North 47°36’13” East, a distance of 167.89 feet to Station 11+67.89 at a point of
curvature; Thence along the arc of a 5729.58 foot radius curve to the right, through a
central angle of 03°06’00” (the long chord bears North 49°09’13” East, 309.96 feet)
310.00 feet to Station 14+77.89 at a point of tangency; Thence North 50°42’13” East,
637.07 feet to Station 21+14.96 at a point of curvature; Thence along the arc of a 5729.58
foot radius curve to the left, through a central angle of 02°36’00” (the long chord bears
North 49°24’13” East, 259.98 feet) 260.00 feet to Station 23+74.96 at a point of tangency;
Thence North 48°06’13” East, 85.00 feet to Station 24+59.95 at a point of curvature;
Thence along the arc of a 1145.91 foot radius curve to the right, through a central angle of
10°31’00” (the long chord bears North 53°21’43” East, 210.04 feet) 210.33 feet to Station
26+70.29 at a point of tangency; Thence North 58°37’13” East, 768.60 feet to Station
34+38.88 at a point of curvature; Thence along the arc of a 716.20 foot radius curve to the
left, through a central angle of 15°25’30” (the long chord bears North 50°54’28” East,
192.23 feet) 192.81 feet to Station 36+31.70 a t a point of tangency; Thence North
43°11’43” East, 516.51 feet to Station 41+48.21 at a point of curvature; Thence along the
arc of a 954.93 foot radius curve to the left, through a central angle of 12°42’30” (the long
chord bears North 36°50’28” East, 211.37 feet) 211.81 feet to Station 43+60.02 at a point
of tangency; Thence North 30°29’13” East, 279.39 feet to Station 46+39.41 at a point of
curvature; Thence along the arc of a 716.20 foot radius curve to the
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left, through a central angle of 18°22’30” (the long chord bears North 21°17’58” East,
228.71 feet) 229.69 feet to Station 48+69.10 at a point of tangency; Thence North
12°06’43” East 511.40 feet to Station 53+80.49 at a point of curvature; Thence along the
arc of a 1432.39 foot radius curve to the right, through a central angle of 11°20’33” (the
long chord bears North 17°46’59” East, 283.10 feet) 283.56 feet to Station 56+64.05 at a
point of compound curvature; Thence along the arc of a 3819.72 foot radius curve to the
right, through a central angle of 07°34’57” (the long chord bears North 27°14’44” East,
505.13) 505.50 feet to Station 61+69.55 at a point of tangency; Thence North 31°02’12”
East 104.47 feet to Station 62+74.03 at the point of termination.
Centerline stationing and Basis of Bearings are determined by holding a station of
10+00.00 at a 3/4” iron pipe at the Centerline of Boones Ferry Road as per survey number
2013-083, Clackamas County Survey Records.
Offset Distances Northwesterly of
Station to Station Boones Ferry Road Centerline
15+34.63 to 15+57.70 49.07 feet along a straight line to 49.10 feet
15+57.70 to 15+67.08 49.10 feet along a straight line to 58.33 feet
15+67.08 to 15+73.00 70.09 parallel with the centerline
Excepting therefrom, all that portion of said parcel l ying within the existing right-of-way
of Boones Ferry Road and Madrona Street.
The parcel of land to which this description applies contains 121 square feet, more or less.
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Melissa Kelly, Library Manager
Library Department
SUBJECT: Establish the Guaranteed Maximum Price for the Library Workroom Renovation
with FORTIS Construction, Inc.
DATE: December 23, 2016
ACTION
Authorize the City Manager to sign an amendment to the existing contract with FORTIS
Construction, Inc. to establish the Guaranteed Maximum Price (GMP) of $735,951 for the
library renovation project.
INTRODUCTION/BACKGROUND
The City of Lake Oswego’s current Library facility is aged and no longer adequately sized for the
needs of the population. Library materials, services and staff have outgrown the space. In the
years since the current facility was constructed in 1983, the library’s annual circulation of
materials has increased four-fold, from approximately 300,000 items to over 1.2 million items
per year. The staff workroom is particularly undersized, as well as inefficiently designed, to
accommodate modern library workflows and staff workspaces. The main public service point
located in the lobby adjacent to the workroom is also outdated, and prohibitive to providing the
type of services that library users expect in the 21st century, such as state-of-the-art self-checkout
terminals and self-pickup of holds. The City desires to remodel the Library’s staff workroom and
adjacent main service point in order to improve public services, staff efficiency, and safety and
ergonomic conditions.
Proposed facility improvements include demolition and removal of failing Gyp-Crete floors in
workroom and lobby areas; pouring new reinforced floors; demolition, removal and
reconfiguration of existing interior walls to create new workspaces; addition of electrical outlets
and data drops; HVAC system and LED lighting improvements; and the installation of an
automated materials handler (“AMH”) with conveyance systems from exterior book returns.
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503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
Specific to public service enhancements in the lobby space, proposed improvements include
radio frequency identification (“RFID”) enabled self-checkout terminals, self-pickup hold shelves,
and a smaller, flexible service desk to allow circulation staff to interact with library users in a
more personalized, service-oriented way.
The following timeline provides an outline of what has been accomplished to date:
October 2014: City issued a Public Notice soliciting Statements of Interest from
architectural firms in order to create a Qualification Based Selection (QBS) list for
future library projects
April 2015: City entered into a contract with Hennebery Eddy Architects to perform
preliminary design work investigating a possible renovation of the library workroom
February 2016: City received cost estimates for the preferred conceptual design of a
library workroom renovation project and found it was within budget to move forward
June 2016: City entered into a contract with Day CPM Services to oversee project
management as the owner’s representative
July 2016: Council approved the Construction Manager/General Contractor (CM/GC)
alternative bidding method to hire a contractor for the library renovation project
July 2016: The City issued a Request for Proposals (RFP) for CM/GC contractors
August 2016: City entered into a contract with Hennebery Eddy Architects for full
design work
September 2016: Council approved a CM/GC contract with FORTIS Construction, Inc.
with a projected project cost of $700K
November 2016: Project team finalized architectural & engineering design and
submitted permit package to City Planning department
December 2016: Building permit was approved
December 2016: Library staff relocated staff functions & public services within the
scope of work to prepare for Facilities to perform soft demolition at the end of
December and FORTIS to mobilize construction work crews in early January
DISCUSSION
What is a GMP?
The CM/GC method of contracting allows the City to provide cost containment through a
Guaranteed Maximum Price (GMP) to be negotiated prior to construction. The GMP allows for
a greater certainty of costs than in the traditional design-bid-build method by establishing lump
sums prior to construction and establishing an overall cost ceiling for the CM/GC group to
deliver the entire scope of the construction project. The GMP ultimately shifts risk from the
City to the Contractor. With a GMP, only the City can cause a change order by adding
something to the project, and change orders will come from a contingency that will be part of
the GMP. If the actual cost of the construction work is higher than the GMP, the contractor
must bear the additional cost. If the cost is lower than the GMP, the savings go to the City.
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503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
ALTERNATIVES & FISCAL IMPACT
When the LINCC library district was formed in the November 2008 general election, each LINCC
library received $1 million for capital improvements from Clackamas County. Additional funds
have also been set aside over the years for a library capital improvement project. There is
enough money allocated in the FY 2016-17 budget to cover the entirety of the library
renovation project including soft costs. At the present project schedule, it is estimated that the
library renovation will be completed in April/May 2017.
RECOMMENDATION
Staff recommends that the City Council authorize the City Manager to sign an amendment to
the existing contract with FORTIS Construction, Inc. to establish the Guaranteed Maximum Price
(GMP) of $735,951 for the library renovation project.
ATTACHMENTS
1. Original Contract
2. GMP amendment with attachments A-D
CITY OF LAKE OSWEGO
LIBRARY WORKROOM RENOVATION
CM/GC CONTRACT
Construction Manager/General Contractor)
THE CONTRACT IS BETWEEN:
OWNER:
City of Lake Oswego
Attn: Lake Oswego Library
706 4"' Street
Lake Oswego, OR 97034
And
CONSTRUCTION MANAGER/
GENERAL CONTRACTOR
referred to in the Standard General
Conditions For Public Improvement
Contracts as Contractor and referred to
herein as "the CM/GC"):
Fortis Construction Inc.
1705 SW Taylor Street, Suite 200
Portland, OR 97205
The Project is: City of Lake Oswego Library Workroom Renovation
The Architect/Engineering Firm: Hennebery Eddy Architects
The Owner's Authorized Representative is:
Day CPM
12745 SW Beaverdam Rd. Ste. #120
Beaverton, OR 97005
The Owner's Target GMP Range is: 700,000
ATTACHMENT 1
CM/GC CONTRACT
TABLE OF CONTENTS
ARTICLE PAGE
1 Definitions p. 1
2 Contract Documents P. 3
3 Work of The Contract p. 4
4 Relationship and Role of the Parties p. 10
5 Date of Commencement; Substantial and Final Completion p. 11
6 Fees, Contract Sum and GMP p. 13
7 Changes in the Work p. 17
8 Cost of the Work (To Be Reimbursed) p. 19
9 Costs Excluded From Cost of Work (Not To Be Reimbursed) p. 23
10 Discounts,Rebates and Refunds p. 23
11 Subcontracts and other Contracts p. 24
12 Accounting Records p. 27
13 Progress Payments p. 28
14 Final Payment p. 29
15 Termination or Suspension p. 30
16 Representations and Warranties p. 31
17 Miscellaneous p. 32
Exhibit A State of Oregon General Conditions Modified p. 33
Exhibit B Form of GMP Amendment p. 34
Exhibit C Cost for General Conditions Work p. 37
Exhibit D LO Library Renovation Master Schedule
Exhibit E CM/GC's Rate Schedule
The Owner and CM/GC agree as set forth below:
ARTICLE 1
DEFINITIONS
Except as expressly defined or modified below or elsewhere in this agreement("CM/GC
Contract"), all capitalized terms shall have the meanings set forth in Section A of Part IV of the
State of Oregon Standard General Conditions for Public Improvement Contracts, January 1,
2012, attached as Exhibit A hereto (the "General Conditions"). The terms below are expressly
defined as follows:
1. 1 Affiliate. Affiliate shall mean any subsidiary of CM/GC, and any other entity in which
CM/GC has a financial interest or which has a financial interest in CM/GC (including
without limitation parent companies, related businesses under the same holding company,
or any other business controlled by,under common control with, or which controls
CM/GC).
1.2 Allowances. Allowances shall mean the allowance amounts shown in the GMP
Supporting Documents, together with such further allowances as may be developed by
the parties as the Project progresses.
1.3 Amendment. Amendment shall mean a written modification of the Contract(including
without limitation any agreed change to the GMP), identified as an Amendment, and
executed by CM/GC and ,the Owner.
1.4 Business Days. Business Days shall mean every day except Saturday, Sunday, and legal
holidays recognized for employees of the City of Lake Oswego, OR.
1.5 Change Order. Change Order shall mean a written modification under Section D.1 of
the General Conditions, identified as a Change Order and executed by the Owner's
Authorized Representative, CM/GC, where applicable, and, where required, approved in
writing by the owner.
1.6 CM/GC Field Work. CM/GC Field Work shall mean customary portions of the Work
of a minor nature and not feasibly part of the subcontracted work due to: exclusions by
the Subcontractor not resolved through the process described in Article 11.3.3,
undeveloped design owing to deviations in Work performed or materials delivered by
Subcontractors or suppliers that do not represent defective or nonconforming work, a
breach or failure to perform by the Subcontractor or supplier, complexity of
coordination of the Work, and other similar reasons typically providing cause for"pick-
up"or GC Work under industry standards;provided, however, that(1)the CM/GC has
reasonably determined that doing such portion of the Work itself is in the best interests
of Owner, (ii) such Work is identified as CM/GC Field Work in
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Lake Oswego Library Workroom Renovation CM/GC Contract
monthly billings and(iii) CM/GC receives prior approval of Owner's Authorized
Representative as to the scope of each CM/GC Field Work.
1.7 CM Services. CM Services shall have the meaning given in Article 3. 3 below.
1.8 Construction Documents. Construction Documents shall have the meaning given in the
City of Lake Oswego Professional Services Agreement with the Architect/Engineer for
this Project: Drawings and Specifications setting forth in detail the quality levels of
material and systems and other requirements for the construction of the Work, Shop
Drawings, Product Data, Samples, and other similar submittals.
1.9 Construction Phase. The Construction Phase shall mean the period commencing on the
Owner's execution of a GMP Amendment or Early Work Amendment, together with the
earlier of(i) issuance by Owner of a Notice to Proceed with any on-site construction or
ii) execution of a subcontract or issuance of a purchase order for materials or equipment
required for the Work.
1.10 Construction Phase Services. Construction Phase Services shall mean all of the Work
other than the Preconstruction Phase Services.
1.11 Contract Documents. Contract Documents shall have the meaning given in Section A
of the General Conditions, as supplemented by Article 2.1 below.
1.12 Design Development Documents. Design Development Documents shall have the
meaning given in the City of Lake Oswego Professional Services Agreement with the
Architect/Engineer for this Project.
1.13 Early Work. Early Work shall mean Construction Phase Services authorized by
Amendment that the parties agree should be performed in advance of establishment of the
GMP. Permissible Early Work shall be limited to: early procurement of materials and
supplies; early release of bid or proposal packages for site development and related
activities; and any other advance work related to critical components of the Project for
which performance prior to establishment of the GMP will materially affect the critical
path schedule of the Project.
1.14 Early Work Amendment. Early Work Amendment shall mean an Amendment to the
Contract executed by and between the parties to authorize Early Work.
1.15 Cost for General Conditions Work. Cost for General Conditions Work or GC Work
shall mean that sum identified in Article 8. 8 and/or Exhibit C.
1.16 General Conditions Work. General Conditions Work("GC Work") shall mean(i)that
portion of the Work required to support construction operations that is not included
within overhead or general expense but is called out as GC Work in Exhibit C, and
ii) any other specific categories of Work approved in writing by the Owner's Authorized
Representative as forming a part of the GC Work.
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Lake Oswego Library Workroom Renovation CM/GC Contract
1.17 Guaranteed Maximum Price (GMP). GMP shall mean the Guaranteed Maximum
Price of the Contract, as stated in dollars within the GMP Amendment, as determined in
accordance with Article 6, and as it may be adjusted from time to time pursuant to the
provisions of the Contract.
1.18 GMP Amendment. GMP Amendment shall mean an Amendment to the Contract,
issued in the form of Exhibit B and executed by and between the parties, to establish the
GMP and identify the GMP Supporting Documents for Construction Phase Services.
1.19 GMP Supporting Documents. GMP Supporting Documents shall mean the documents
referenced in the GMP Amendment as the basis for establishing the GMP. The GMP
Supporting Documents shall expressly identify the Plans and Specifications, assumptions,
qualifications, exclusions, conditions, allowances, unit prices, and alternates that form the
basis for the GMP.
1.20 Preconstruction Phase. The Preconstruction Phase shall mean the period commencing
on the date of this CM/GC Contract and ending upon commencement of the Construction
Phase; provided that if the Owner and CM/GC agree, the Construction Phase may
commence before the Preconstruction Phase is completed, in which case both phases
shall proceed concurrently, subject to the terms and conditions of the Contract
Documents.
1.21 Preconstruction Phase Services. Preconstruction Phase Services shall mean all
services described in Article 3.1, and any similar services described in the Request for
Proposals, including such similar services as are described in the CM/GC's RFP proposal
to the extent they are accepted by Owner,but excluding any Early Work. Early Work
shall be considered part of Construction Phase Services.
1.22 Schematic Design Documents. Schematic Design Documents shall have the meaning
given in the City of Lake Oswego Professional Services Agreement with the Architect/
Engineer for this Project: drawings and other documents, such as a site plan and
preliminary building plans, sections, and elevations,models,perspective sketches, or
digital modeling.
1.23 Scope Change. Scope Change shall mean only( i) changed site conditions not reasonably
inferable from information available to CM/GC at the time of execution of the GMP
Amendment, and(ii) significant Work modifications (including additions, substitutions,
and deletions), application of Allowances, and selection of alternates, all as approved by
the Owner under the Contract beyond that identified or inferable from the GMP
Supporting Documents (but in the case of Allowance items,the GMP will increase only
if the cost to Owner of the Allowance items exceeds the total amount of the Allowances).
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Lake Oswego Library Workroom Renovation CM/GC Contract
ARTICLE 2
CONTRACT DOCUMENTS
2.1 Contract Documents. For valuable consideration as stated below, Owner and the
CM/GC agree to the terms of the contract that are set forth in the Contract Documents.
For purposes of this Project, the Contract Document identified as "Public Improvement
Contract" in the General Conditions shall mean this CM/GC Contract. The CM/GC
Contract shall include all exhibits attached hereto,which by this reference are
incorporated herein.
2.2 Effective Date. The Contract(hereafter the "Contract") shall become effective on the
first date on which every party has signed this CM/GC Contract and Owner has received
all necessary approvals.
2.3 The Contract; Order of Precedence. This CM/GC Contract, together with the other
Contract Documents, form the entire agreement between the parties. Except as expressly
otherwise provided herein, the order of precedence of the Contract Documents is
established in Section A.3 of the City's General Conditions for Public Improvement
Projects, if there are inconsistent or conflicting terms among the Contract Documents.
ARTICLE
WORK OF THE CONTRACT
3.1 Preconstruction Phase Services. The CM/GC agrees to provide all of the
Preconstruction Phase Services typical of a CM/GC contractor, including without
limitation the services described below, on an ongoing basis in support of, and in
conformance with, the time frames described in the Request for Proposals (Appendix D).
Commencement of the Construction Phase shall not excuse CM/GC from completion of
the Preconstruction Phase Services, if such services have not been fully performed at
commencement of the Construction Phase. Preconstruction Phase Services shall include
CM Services performed during the Preconstruction Phase.
3.1. 1 The CM/GC shall provide a preliminary evaluation of the Owner's program and budget
requirements, each in terms of the other.
3.1.2 The CM/GC shall provide the following services relating to design and preconstruction
tasks:
a) The CM/GC shall consult with, advise, assist, and provide recommendations to
the Owner, Owner's Authorized Representative, and the Architect / Engineer
design team") on all aspects of the planning and design of the Work.
b) The CM/GC shall jointly schedule and attend regular meetings with the Architect
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Lake Oswego Library Workroom Renovation CM/GC Contract
Engineer and Owner's Authorized Representative. The CM/GC shall consult
with the Owner and Architect/Engineer and Owner's Authorized Representative
regarding site use and improvements, and the selection of materials,building
systems and equipment.
c) The CM/GC shall provide recommendations on construction feasibility; actions
designed to minimize adverse effects of labor or material shortages; time
requirements for procurement, installation and construction completion; and
factors related to construction cost including estimates of alternative designs or
materials,preliminary budgets and possible economies.
d) The CM/GC shall review in-progress design documents, including the documents
generally described in the industry as Schematic Development Documents,
Design Development Documents, and Construction Documents and provide input
and advice on construction feasibility, alternative materials, and availability.
CM/GC shall review these completed Schematic Development Documents,
Design Development Documents, and Construction Documents and timely
suggest modifications to improve completeness and clarity.
3.1.3 The CM/GC shall provide the following services related to the Project schedule:
a) The CM/GC shall prepare, and periodically update, a preliminary Project schedule
for the Architect/Engineer's and Owner's Authorized Representative's review
and the Owner's Authorized Representative's approval.
b) The CM/GC shall coordinate and integrate the preliminary Project schedule with
the services and activities of the Owner, Architect/Engineer, and CM/GC. As
design proceeds, CM/GC shall update the preliminary Project schedule to
indicate proposed activity sequences and durations,milestone dates for receipt
and approval of pertinent information, submittal of a GMP proposal,preparation
and processing of shop drawings and samples, delivery of materials or
equipment requiring long-lead time procurement, and Owner's occupancy
requirements showing portions of the Project having occupancy priority,
provided that the date(s) of Substantial Completion shall not be modified without
Owner's prior written approval. If preliminary Project schedule updates indicate
that previously approved schedules may not be met,the CM/GC shall make
appropriate recommendations to the Owner's Authorized Representative and
Architect/Engineer.
3.1.4 The CM/GC shall make recommendations to Architect/Engineer and Owner's
Authorized Representative regarding the phased issuance of Plans and
Specifications to facilitate phased construction of the Work, if such phased
construction is appropriate for the Project, taking into consideration such factors as
economics, time of performance, availability of labor and materials, and provisions
for temporary facilities.
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Lake Oswego Library Workroom Renovation CM/GC Contract
3.1.5 The CM/GC shall provide the following services relating to cost estimating:
a) The CM/GC shall prepare, for the review of the Architect/Engineer and Owner's
Authorized Representative and approval of the Owner, a preliminary cost estimate
utilizing area, volume or similar conceptual estimating techniques.
b) When Schematic Design Documents have been prepared by the Architect/
Engineer and approved by the Owner, the CM/GC shall prepare for the review
of the Architect/Engineer and Owner's Authorized Representative and
approval of the Owner, a more detailed estimate with supporting data. During
the preparation of the Design Development Documents, the CM/GC shall update
and refine this estimate at appropriate intervals agreed to by the Owner,
Architect/Engineer and Owner's Authorized Representative and CM/GC.
c) When Design Development Documents have been prepared by the Architect/
Engineer and approved by the Owner, the CM/GC shall prepare a detailed
estimate with supporting data for review by the Architect/Engineer and
Owner's Authorized Representative and approval by the Owner. During the
preparation of the Construction Documents, the CM/GC shall update and refine
this estimate at appropriate intervals agreed to by the Owner, Architect/
Engineer and Owner's Authorized Representative and CM/GC.
d) If any estimate submitted to the Owner exceeds previously approved estimates or
the Owner's budget, the CM/GC shall make appropriate recommendations to the
Architect/Engineer and Owner's Authorized Representative.
e) CM/GC shall notify the Owner and the design team immediately if any
construction cost estimate appears to be exceeding the construction budget.
f) The CM/GC otherwise shall work with the Architect/Engineer and Owner
to develop a GMP within the Target GMP Range and within Owner's
schedule.
3.1.6 The CM/GC shall perform the following services relating to Subcontractors and
suppliers:
a) The CM/GC shall seek to develop Subcontractor and supplier interest in the
Project, consistent with the needs of the CM/GC in the Construction Phase
Work and consistent with applicable legal requirements, and shall furnish to the
Owner's Authorized Representative and Architect/Engineer for their
information a list of possible Subcontractors and suppliers, including suppliers
who may furnish materials or equipment fabricated to a special design, from
whom competitive bids, quotes, or proposals (collectively, "Offers") will be
requested for each principal portion of the Work. Submission of such list is for
information and discussion purposes only and not for prequalification. The
receipt of such list shall not require the Owner, Owner's Authorized
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Lake Oswego Library Workroom Renovation CM/GC Contract
Representative or Architect/Engineer to investigate the qualifications of
proposed Subcontractors and suppliers, nor shall it waive the right of the Owner
or Architect/Engineer later to object to or reject any proposed Subcontractor,
supplier, or method of procurement.
b) The CM/GC shall provide input to the Owner and the design team regarding
current construction market bidding climate, status of key subcontract markets,
and other local economic conditions. CM/GC shall determine the division of
work to facilitate bidding and award of trade contracts, considering such factors
as bidding climate, improving or accelerating construction completion,
minimizing trade jurisdictional disputes, and related issues. CM/GC shall advise
Owner on subcontracting opportunities for minority/women/ESB firms.
3.1.7 The CM/GC shall recommend to the Owner's Authorized Representative and Architect/
Engineer a schedule for procurement of long-lead time items which will constitute part
of the Work as required to meet the Project schedule,which shall be procured by the
CM/GC upon execution of either a GMP Amendment or Early Work Amendment
covering such procurement, and approval of such schedule by the Owner's Authorized
Representative. The CM/GC shall expedite the delivery of long-lead time items.
3.1.8 The CM/GC shall work with the Owner in identifying critical elements of the Work that
may require special procurement processes, such as prequalification of offerors or
alternative contracting methods.
3.1.9 The CM/GC shall Work with the Owner and the design team to maximize cost-effective
energy efficiency in the Project, including without limitation providing estimating and
value engineering support to the Owner's analysis and application for energy related
incentive programs offered by local utilities.
3.1.10 The CM/GC shall work with the Owner and the design team to facilitate incorporation
of works of art from the Project's 1.5% for Art program into the design and
construction of the building. Owner's cost of the art objects is not included in the Cost
of the Work or the GMP, but CM/GC's costs relating to facilitating changes to
accommodate the handling and installation of the art are part of the Cost of the Work
and are included in the GMP.
3.2 Construction Phase Services.
3.2.1 Upon execution of an Early Work Amendment or GMP Amendment,the CM/GC shall
provide Construction Phase Services as provided in the Contract Documents, including
without limitation providing and paying for all materials, tools, equipment, labor and
professional and non-professional services, and performing all other acts and supplying
all other things necessary to fully and properly perform and complete the Work, as
required by the Contract Documents, to furnish to Owner a complete, fully functional
Project, capable of being legally occupied and fully used for its intended purposes upon
completion of the Contract(or, as to an Early Work Amendment,to furnish such Work as
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Lake Oswego Library Workroom Renovation CM/GC Contract
is described in the Early Work Amendment). Construction Phase Services shall include
CM Services performed during the Construction Phase.
3.2.2 Notwithstanding any other references to Construction Phase Services in this CM/GC
Contract,the Contract shall include Preconstruction Phase Services only unless (i)the
parties execute a GMP Amendment or(ii)the parties execute an Early Work
Amendment, defined below.
3.2.3 The parties may execute one or more Early Work Amendments identifying specific
Construction Phase Services that must be performed in advance of establishment of the
GMP, without exceeding a not-to-exceed budget, a maximum not-to-exceed price, or a
fixed price ("Early Work Price")to be stated in such Amendment,with such Amendment
including all necessary State of Oregon approvals where required. If the Early Work
Price is a not-to-exceed budget, then CM/GC shall be obligated to perform the Early
Work only to the extent that the Cost of Work therefor,together with the CM/GC Fee,
does not exceed the Early Work Price; however if CM/CG performs Early Work with a
maximum not-to-exceed price or fixed price, and incurs cost in excess of that maximum
not-to-exceed price or fixed price, respectively, the CM/GC shall complete the Early
Work and pay such excess cost without reimbursement. If one or more Early Work
Amendments are executed, the CM/GC shall diligently continue to work toward
development of a GMP Amendment acceptable to Owner, which shall incorporate the
Early Work Amendments. If Owner thereafter terminates the Contract prior to execution
of a GMP Amendment, the provisions of Section J.5 of the City of Lake Oswego General
Conditions for Public Improvement Projects shall apply.
3.2.4 Prior to commencement of the Construction Phase, and in any event not later than mutual
execution of the GMP Amendment, CM/GC shall provide to Owner a full performance
bond,payment security bond, and public works bond, as required by Section G of the
General Conditions in the amount of the GMP. If an Early Work Amendment is
executed, CM/GC shall provide such bond in the amount of the Early Work Price under
the Early Work Amendment. CM/GC shall provide to Owner additional or replacement
bonds at the time of execution of any subsequent Early Work Amendment or GMP
Amendment, in each case prior to execution of the Amendment and the supplying of any
labor or materials for the prosecution of the Work covered by the Amendment, and in
each case in a sufficient amount so that the total bonded sum equals or exceeds the total
Early Work Price or the GMP, as the case may be. In the event of a Scope Change that
increases the GMP, CM/GC shall provide to Owner an additional or supplemental bond
in the amount of such increase prior to performance of the additional Work.
3.3 Construction Management(CM) Services. Throughout the Preconstruction Phase and
Construction Phase of the Project, the CM/GC shall provide CM Services, generally
consisting of coordinating and managing the building process as an independent
contractor, in cooperation with the Owner, Owner's Authorized Representative, Architect .
Engineer and other designated Project consultants (the "Construction Principals"). CM
Services shall include,but are not limited to:
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Lake Oswego Library Workroom Renovation CM/GC Contract
3. 3.1 Providing all Preconstruction Phase Services described above;
3.3.2 Developing and delivering schedules,preparing construction estimates,performing
constructability review, analyzing alternative designs, studying labor conditions,
coordinating and communicating the activities of the Construction Principals throughout
the Construction Phase to all Construction Principals;
3.3.3 Continuously monitoring the Project schedule and recommending adjustments to ensure
completion of the Project in the most expeditious manner possible;
3.3.4 Working with the Owner, Owner's Authorized Representative, and the Architect/
Engineer to analyze the design, participate in decisions regarding construction
materials, methods, systems,phasing, and costs, and suggest modifications to achieve
the goals of providing the Owner with the highest quality Project within the budget,
GMP and schedule;
3.3.5 Providing Value Engineering ("VE") services ongoing through the Project. CM/GC shall
develop cost proposals, in the form of additions to or deductions from the GMP,
including detailed documentation to support such adjustments and shall submit such
proposals to Owner for its approval. CM/GC shall actively participate in a formal VE
study anticipated to be held at the end of the Design Development phase. CM/GC
acknowledges that VE services are intended to improve the value received by Owner
with respect to cost reduction or life cycle of the Project;
3.3.6 Holding and conducting periodic meetings with the Owner and the Architect/
Engineer to coordinate,update and ensure progress of the Work;
3.3.7 Submitting monthly written report(s) to the Owner's Authorized Representative. Each
report shall include,but shall not be limited to,Project updates including( i) actual costs
and progress for the reporting period as compared to the estimate of costs;
ii) explanations of significant variations; (iii)work completed; (iv) work in progress;
v) changes in the work; and (vi) other information as determined to be appropriate by the
Owner. Oral or written updates shall be provided to the Owner as deemed appropriate by
the CM/GC or as requested by the Owner;
3.3.8 Maintaining a daily log containing a record of weather, Subcontractors working on the
site, number of workers, Work accomplished, problems encountered, safety violations
and incidents of personal injury and property damage, and other similar relevant data as
the Owner may reasonably require. The log shall be available to the Owner and Architect
Engineer on request;
3.3.9 Developing and implementing a system of cost control for the Work acceptable to
Owner's Authorized Representative, including regular monitoring of actual costs for
activities in progress and estimates for uncompleted tasks and proposed changes. The
CM/GC shall identify variances between actual and estimated costs and report the
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Lake Oswego Library Workroom Renovation CM/GC Contract
variances to the Owner and Architect/Engineer at regular intervals;
3.3.10 Cooperating with any and all consultants hired by Owner;
3.3.11 At Owner's request, cooperating and performing warranty and inspection Work for the
Project through the expiration date of the applicable warranty period;
3.3.12 Assisting Owner with start-up of the Project. Such start-up may occur in phases due to
phased occupancy;
3.3.13 Incorporating commissioning and inspection agents' activities into the Project schedule
and coordinating Subcontractors required to participate in the commissioning and
inspection process;
3.3.14 Performing all other obligations and providing all other services set forth in the Contract
Documents; and performing all other acts and supplying all other things necessary to
fully and properly perform and complete the Work as required by the Contract.
ARTICLE 4
RELATIONSHIP AND ROLES OF THE PARTIES
4.1 Independent Contractor. The CM/GC is an independent contractor and not an officer,
employee, or agent of Owner as those terms are used in ORS 30.265.
4.2 Performance of Work. The CM/CG covenants with Owner to cooperate with the
Architect/Engineer and Owner's Authorized Representative and utilize the CM/GC's
professional skill, efforts and judgment in furthering the interests of Owner; to furnish
efficient business administration and supervision; to furnish at all times an adequate
supply of workers and materials; and to perform the Work in conformance with the
terms and conditions of the Contract Documents and in an expeditious and economical
manner consistent with the interests of Owner.
4.3 Project Team. Owner has a separate contract with the Architect/Engineer related to
the Project. Both the CM/GC and the Architect/Engineer shall be given direction by
Owner through Owner's Authorized Representative. The CM/GC agrees to support
Owner's efforts to create a collaborative and cooperative relationship among the
CM/GC, Architect/Engineer, other Project consultants, and Owner's Authorized
Representative.
4.4 Forms and Procedures. The Owner has developed or may develop procedures and
forms for the administration and tracking of the Contract. The CM/GC agrees to abide by
those procedures and use those forms.
4.5 CM/GC's Project Staff. The CM/GC's Project staff shall consist of the following
minimum personnel positions:
4.5.1 Project Manager and Assistant Project Manager/Project Engineer: Mike Woods_
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Lake Oswego Library Workroom Renovation CM/GC Contract
shall be the CM/GC's Project Manager and TBD shall be CM/GC's Assistant Project
Manager/Project Engineer and one or both will supervise and coordinate all Construction
Phase and Preconstruction Phase Services of CM/GC and participate in all meetings
throughout the Project term unless otherwise directed by Owner. CM/GC represents that
each of the Project Manager and Assistant Project Manager have authority to execute
Change Orders and Contract Amendments on behalf of CM/GC.
4.5.2 Job Superintendent: If Construction Phase Services are requested and accepted by
Owner, Gary Reininger shall be the CM/GC's on-site job superintendent throughout
the Project term.
4.6 Key Persons. The CM/GC's personnel identified in Article 4.5, and any other personnel
identified by name in CM/GC's Proposal, shall be considered Key Persons and shall not
be replaced during the Project without the written permission of Owner,which shall not
be unreasonably withheld. If the CM/GC intends to substitute personnel (and the
replaced and replacing personnel remain under the employ of the CM/GC), a request
must be given to Owner at least 30 Days (or such shorter period as permitted by Owner)
prior to the intended time of substitution. When replacements have been approved by
Owner, and if the timing of a replacement is within the control of the CM/GC, the
CM/GC shall provide a transition period of at least 10 Business Days during which the
original and replacement personnel shall be working on the Project concurrently. Once a
replacement for any of these staff members is authorized, further replacement shall not
occur without the written permission of Owner.
ARTICLE 5
DATE OF COMMENCEMENT; SUBSTANTIAL AND FINAL COMPLETION
5.1 Notice to Proceed. If Construction Phase Services are added to the Contract as set forth
in Article 3.2,then a notice to proceed will be issued by Owner to begin the designated or
full Construction Phase Services ("Notice to Proceed"). It is anticipated that the Notice to
Proceed will be issued on or about November 30, 2016. A separate Notice to Proceed
shall be issued for any and every Early Work Amendment.
5.2 Completion of Project. The CM/GC shall achieve Substantial Completion of the entire
Work not later than: March 15, 2017 and shall achieve Final Completion not later than_
April 15, 2017,
5.3 Time is of the Essence. All time limits stated in the Contract Documents are of the
essence.
5.4 Time Extensions. Notwithstanding provisions for Contract time extensions in Section
D.2 of the General Conditions, Owner and CM/GC agree that timely completion of the
Work is essential to the success of the Project, and that approval for time extension shall
be granted only as a last resort. CM/GC agrees to make every effort to recover "lost"
time.
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Lake Oswego Library Workroom Renovation CM/GC Contract
5.5 Liquidated Damages. The CM/GC acknowledges that the Owner will sustain
damages as a result of the CM/GC's failure to substantially complete the Project in
accordance with the Contract Documents. These damages may include, but are not
limited to delays in completion,use of the Project, and costs associated with Contract
administration and use of temporary facilities. The CM/GC and the Owner
acknowledge that the actual amount of damages would be difficult to determine
accurately and agree that that the following liquidated damages figure represents a
reasonable estimate of such damages and is not a penalty:
5.5.1 Liquidated Damages shall be:
5.5.1.1 Substantial Completion: $500 for each day that Substantial Completion
exceeds the required date of Substantial Completion.
5.5.1.2 Final Completion: $1,500 for each day that Final Completion exceeds the
required date of Final Completion.
5.5.2 The CM/GC agrees to pay to the Owner the liquidated damage sums set forth above for
each day of delay or any fraction thereof and further agrees that Owner may deduct such
sums from payments the Owner otherwise owes to CM/GC under the Contract. If such
deduction does not result in payment to Owner of the assessed liquidated damages in full,
CM/GC shall promptly pay any and all remaining sums due to the Owner upon demand.
ARTICLE 6
FEES, CONTRACT SUM AND GMP
6.1 Fees; Contract Sum; GMP. Owner shall pay CM/GC the Preconstruction Fee described
in Article 6.2. In addition, for each Early Work Amendment executed by CM/GC and
Owner,Owner shall pay CM/GC, as payment for the Early Work, an amount equal to the
sum of the CM/GC Fee attributable to the Early Work, and the actual cost of all Early
Work completed and accepted by Owner,but not exceeding the Early Work Price.
If a GMP Amendment is executed, Owner shall pay CM/GC, as payment for the Work,
the"Contract Sum"which shall equal the sum of the Preconstruction Fee, the CM/GC
Fee, the actual cost of the Work including any Early Work,but not exceeding the GMP.
The GMP shall be determined in accordance with the formula set forth below and as
described in Article 6.3. The "Cost of the Work" is defined in Article 8. Costs in excess
of the GMP shall be paid by the CM/GC without reimbursement by Owner. Changes to
the GMP shall only be authorized by Amendment or Change Order that includes any
necessary City of Lake Oswego approvals.
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Lake Oswego Library Workroom Renovation CM/GC Contract
Preconstruction Fee + CM/GC Fee* + Estimated Cost of the Work(Est COW)=GMP**
Cost Reimbursement 5_0%of Est.COW Includes CM/GC's Contingency and the
16,072 Maximum Per RFP Response Cost for GC Work
CM/GC Fee includes a fixed percentage of 1.2%Insurance( excludes builders risk), .7%Bond and 3.1%Fee
for a total fixed CMJGC Fee=5%
Formula assumes no Early Work is performed.
6.2 Preconstruction Fee. The Preconstruction Fee shall be payable to CM/GC on the basis
provided in the CM/GC's Rate Schedule (Exhibit E),up to a maximum sum of$16,072,
which shall cover constructability review,value engineering, cost estimating,
development of GMP, and all other Preconstruction Phase Services, as described in
Article 3. If CM/GC's fees for provision of Preconstruction Phase Services exceed the
maximum Preconstruction Fee, CM/GC shall pay such additional cost without
reimbursement. CM/GC shall not be entitled to any CM/GC Fee upon the
Preconstruction Fee. Owner shall pay the Preconstruction Fee on a cost-reimbursement
basis with each application for payment during the Preconstruction Phase. If the total
actual Preconstruction Fee is less than the maximum Preconstruction Fee used for initial
calculation of the GMP as provided above, the GMP shall be reduced by the difference;
provided that Owner may direct instead that any unapplied portion of the maximum
Preconstruction Fee be applied to Construction Phase Services, in which case the GMP
shall not be reduced by the portion so applied.
Except to the extent the parties may expressly agree to the contrary in the GMP
Amendment,no Preconstruction Fee or other fee, compensation or reimbursement shall
be payable to CM/GC with respect to Preconstruction Services performed after execution
of the GMP Amendment.
6.3 Establishment of CM/GC Fee; Adjustments to CM/GC Fee.
6.3.1 The "CM/GC Fee" shall be a percentage of the cost of the work to be identified in the
GMP Amendment, and shall be calculated as 5.0% of the Estimated Cost of the Work at
the time of establishment of the GMP. In making such calculation,the Estimated Cost of
the Work shall exclude the Preconstruction Fee,the CM/GC Fee itself, Performance and
Payment Bond, Public Works Bond,Liability Insurance premium, and any other cost or
charge which this CM/GC Contract states is not to be included in calculating the CM/GC
Fee, but shall include Allowances, selected alternates, Cost for General Contractor Work,
and reasonable CM/GC contingencies as designated in the GMP Supporting Documents.
The CM/GC Fee is inclusive of profit, overhead, liability insurance,performance and
payment bond and all other indirect or non-reimbursable costs. Owner shall pay the
CM/GC Fee ratably based upon the Cost of the Work with each application for payment
during the Construction Phase. Owner shall pay the Bonding Fee (0.7% of the Estimated
Cost of Work)upon the first application for payment during the Construction Phase, and
adjusted if needed in the Final Payment. In the case of Early Work,the CM/CG Fee shall
be the above percentage multiplied by the actual Cost of the Early Work, until such time
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Lake Oswego Library Workroom Renovation CM/GC Contract
as a GMP Amendment is executed,at which time such CM/GC Fee payments shall be
credited against the CM/GC Fee fixed therein.
6.3.2 Notwithstanding any provision of Section D.1.3 of the General Conditions to the
contrary, and unless the parties agree in writing to the contrary, any Amendment or
Change Order that increases or decreases the GMP shall adjust the CM/GC Fee then in
effect by the multiplying the percentage shown in Article 6.3.1 by the change in the
Estimated Cost of the Work reflected in such approved Amendment or Change Order. In
addition, if the Contract is terminated for any reason prior to full completion of the Work
including, without limitation, termination during or following performance of Early
Work),the CM/GC Fee shall be limited to the total CM/GC Fee multiplied by the
percentage of Work completed and accepted at the time of termination. The CM/GC Fee
shall not be subject to adjustment for any other reason, including,without limitation,
schedule extensions or adjustments, schedule reductions,Project delays, unanticipated
costs, or unforeseen conditions.
6.4 Determination of GMP.
6.4.1 CM/GC shall deliver to Owner a proposed GMP and GMP Supporting Documents at a
time designated by Owner during the Preconstruction Phase. If any actual subcontract
Offers are available at the time the GMP is being established, CM/GC shall use those
subcontract Offers in establishing the GMP.
6.4.2 As the Plans and Specifications may not be developed to the stage of biddable design
documents at the time the GMP proposal is prepared, the CM/GC shall provide in the
GMP for further development of the Plans and Specifications by the Architect/Engineer
that is consistent with the Contract Documents and reasonably inferable therefrom. Such
further development does not include such things as changes in scope, systems,kinds and
quality of materials,finishes or equipment, all of which, if required, shall be incorporated
by Change Order or Amendment with a corresponding GMP adjustment.
6.4.3 The CM/GC shall include with its GMP proposal a written statement of its basis (the
GMP Supporting Documents"), which shall include:
a) A list of the Plans and Specifications, including all addenda thereto and the
conditions of the Contract, which were used in preparation of the GMP proposal.
b) A list of allowances and a statement of their basis.
c) A list of the clarifications and assumptions made by the CM/GC in the
preparation of the GMP proposal to supplement the information contained in the Plans
and Specifications.
d) The proposed GMP, including a statement of the estimated cost organized by
trade categories, allowances, contingency, and other items and the associated fees that
comprise the GMP.
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Lake Oswego Library Workroom Renovation CM/GC Contract
e) The Dates of Substantial and Final Completion upon which the proposed GMP is
based, and a schedule of the Construction Documents issuance dates upon which the
dates of Substantial and Final Completion are based.
6.4.4 The CM/GC shall meet with the Owner and Architect/Engineer to review the GMP
proposal and the written statement of its basis. If the Owner or Architect/Engineer
discovers any inconsistencies or inaccuracies in the information presented, they shall
promptly notify the CM/GC,who shall make appropriate adjustments to the GMP
proposal, its basis or both.
6.4.5 Prior to the Owner's acceptance of the CM/GC's GMP proposal and issuance of a Notice
to Proceed, the CM/GC shall not incur any cost to be reimbursed as part of the Cost of
the Work, except as specifically provided in an Early Work Amendment.
6.4.6 The Owner shall authorize and cause the Architect/Engineer to revise the Plans and
Specifications to the extent necessary to reflect the agreed-upon assumptions and
clarifications contained in the GMP Amendment. Such revised Plans and Specifications
shall be furnished to the CM/GC in accordance with schedules agreed to by the Owner,
Architect/Engineer and CM/GC. The CM/GC shall promptly notify the Architect/
Engineer and Owner if such revised Plans and Specifications are inconsistent with the
agreed-upon assumptions and clarifications.
6.4.7 The GMP shall include in the Estimated Cost of the Work only those taxes which are
enacted at the time the GMP is established.
6.4.8 The Estimated Cost of the Work shall include the CM/GC's GMP contingency, a sum
established by the CM/GC for the CM/GC's use, with owner representative review
and approval, to cover additional development of Plans and Specifications and
unanticipated costs and unforeseen conditions which are properly reimbursable as
Cost of the Work but which are not the basis for a Change Order. (See General
Conditions Section D.1. 1 for cloud based management of the GMP Contingency
tracking mechanism to be managed by CM/GC.)
6.4.9 The CM/GC shall work with the Architect/Engineer and Owner to identify and confirm
components and systems not specifically shown but required for a complete, fully
functional Project. Owner will direct the Architect/Engineer to complete the final
Construction Documents in accordance with the Project scope agreed upon by all parties
at the time the GMP is established.
6.4.10 Notwithstanding the level of detail represented in the GMP Supporting Documents,the
CM/GC shall represent and warrant, at the time that it submits the GMP, that the GMP
includes the entire cost of all components and systems required for a complete, fully
functional facility.
6.4.11 In developing the GMP, the CM/GC shall include and identify such contingencies within
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Lake Oswego Library Workroom Renovation CM/GC Contract
the GMP as may be necessary to pay for unanticipated costs and unforeseen conditions
that are required for a complete, fully functional facility.
6.5 Failure to Furnish an Acceptable GMP. If the CM/GC does not furnish a GMP
acceptable to Owner within Owner's Target GMP Range, or if Owner determines at any
time in its sole discretion that the parties may fail to reach a timely agreement on a GMP
acceptable to Owner, Owner may terminate this Contract without liability, and the
CM/GC shall not receive additional compensation beyond the Preconstruction Fee under
the Contract and sums due under any Early Work Amendment. Termination under this
provision shall proceed under Section J.5 of the General Conditions as a termination for
Owner's convenience. CM/GC further agrees that Owner shall not be liable for any
damages whether actual, consequential or otherwise for termination of the Contract under
this provision.
6.6 Acceptance of GMP. Upon acceptance of the GMP by Owner, the parties shall execute
a GMP Amendment.
6.7 Owner Savings. If the sum of the Preconstruction Fee,plus the CM/GC Fee,plus the
actual and final Cost of the Work(the Contract Sum as defined in Article 6.1), is less
than the GMP, the savings shall accrue to the Owner.
6.8 Allowance Work.
6.8.1 CM/GC shall not perform any Allowance Work without prior execution by Owner of a
Change Order approving the Specifications for the Allowance Work and the price
thereof.
6.8.2 Owner shall be entitled to apply any Allowance line items that are not been fully
expended to other line item Allowances that have been fully expended,without any
resulting increase in the GMP.
6.8.3 If the total Cost of the Allowance Work exceeds the total Allowances within the GMP,
CM/GC shall not perform any Allowance Work in excess of such amount until either(i)
the parties agree that the additional Allowance work will be performed within the then-
current GMP or (ii) a GMP Amendment is executed to increase the GMP by the excess
cost of the Allowance work.
6.8.4 The Contract Sum shall not include any Allowance items not identified in the GMP
Amendment or the GMP Supporting Documents until such allowance item is reduced to a
fixed price by Change Order or Amendment.
6.8.5 If at the Final Completion of the Project, any portion of the Allowance funds remains
unexpended, the GMP shall be reduced by a corresponding amount via a Change Order
or Amendment.
6.9 Reallocating Projected Cost Underruns after Bid (Offer) Buyout. As soon as possible
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Lake Oswego Library Workroom Renovation CM/GC Contract
after the awarding of the Work to the primary Subcontractors, CM/GC shall review
projected costs and provide the Owner with a buy-out status report showing any projected
cost underruns,reconciling accepted Offers and other reasonably anticipated costs, to the
cost estimate used by CM/GC to establish the GMP. CM/GC shall include with its report
any underlying documentation requested by Owner used to develop or support such
report. CM/GC shall also consider the reduced risk associated with known
subcontracting costs, and the impact that reduced risk has on the amount of the CM/GC's
Contingency. The parties shall negotiate in good faith to execute a Change Order
transferring an appropriate portion of any projected cost underruns to an Owner-
controlled contingency fund to be held within the GMP to pay for additional costs arising
from(a) any Owner-directed or approved change to the Work, (b) schedule changes that
would otherwise entitle CM/GC to an increase in the GMP, (c) Allowance items after
exhaustion of all Allowances, (d) selection by Owner of more expensive alternates than
those used for calculation of the GMP, (e) Owner selection of substitutions that increase
the Cost of the Work, or(f) any other costs which otherwise would entitle CM/GC to an
increase in the GMP. Any transfer of projected cost underruns from CM/GC's
contingency to the Owner-controlled contingency fund will not affect CM/GC's
obligation to furnish Owner with a complete, fully functional facility within the GMP
without use of the funds transferred to the Owner-controlled contingency fund unless
such funds are released by Owner for the purposes set forth in(a) through(f) of this
Article 6.9. Any transfer of funds to the Owner-controlled contingency fund will not
reduce the CM/GC Fee, nor will any subsequent release and use of funds from the
Owner-controlled contingency fund for the purposes set forth in(a)through (f) of this
Article 6.9 increase the CM/GC Fee.
ARTICLE 7
CHANGES IN THE WORK
7.1 Price Adjustments. Adjustments to the Estimated Cost of the Work required by changes
in the Work shall be determined by any of the methods listed in Section D of the General
Conditions,unless the adjustment is based upon fixed pricing or unit pricing:
7.1.1 The overhead and profit markup for the CM/GC shall be limited to the CM/GC Fee
adjustment, if any,permitted under Article 6.3.2 of this CM/GC Contract;
1.1.2 The increase or decrease in the Estimated Cost of the Work, other than for subcontract
work, shall be calculated pursuant to Articles 8 and 9 of this CM/GC Contract,instead of
being based on CM/GC's Direct Costs as defined in the General Conditions; and
7.1.3 In calculating adjustments to subcontracts,unless the parties agree otherwise, the change
shall be limited to the Subcontractor's Direct Costs plus the supplemental mark-up
provided in Section D of the General Conditions, and shall not be modified by Articles
8 and 9 of this CM/GC Contract.
7.2 Adjustments to GMP. Adjustments to the GMP after execution of the GMP
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Lake Oswego Library Workroom Renovation CM/GC Contract
Amendment may be made only(i) in the event of Scope Changes or(ii)as otherwise
expressly provided in this CM/GC Contract, and then only in accordance with the
following procedure:
7.2.1 CM/GC shall review subsequent iterations of the Plans and Specifications as they are
prepared to determine whether, in the opinion of CM/GC,they result in a Scope Change
so that it can be determined if an adjustment to the GMP is warranted.
7.2.2 Changes to the GMP shall be initiated by written notice by one party to the other("GMP
Change Request"). CM/GC shall deliver any such GMP Change Request to Architect/
Engineer and Owner's Authorized Representative promptly after becoming aware of
any Scope Change if, in CM/GC's opinion, it constitutes grounds for adjustment of the
GMP. Any GMP Change Request shall include a proposal as to the appropriate GMP
adjustment with respect to the Scope Change at issue.
7.2.3 CM/GC shall submit its GMP Change Requests as soon as possible, and CM/GC shall not
be entitled to claim a GMP increase unless CM/GC submitted a GMP Change Request to
Owner's Authorized Representative and to Architect/Engineer within the earlier of(a) 30
Days after CM/GC has received the information constituting the basis for the claim, or(b)
as to Work not yet bid or proposed,prior to submission of solicitations for such Work
and as to Work already solicited, prior to commencement of the portion of the Work for
which CM/GC intends to claim a Scope Change; and in any event,prior to CM/GC's
signing of a Change Order for the Scope Change.
7.2.4 Owner may, at any time, submit a GMP Change Request requesting a reduction of the
GMP, which shall include Owner's basis for such request,which may include, for
example,reduction of the CM/GC's Contingency after further development of the Plans
and Specifications that form the basis for the original GMP Amendment, and/or
unused Allowances.
7.2.5 CM/GC shall work with Architect/Engineer to reconcile all differences in its GMP
Change Request with Architect/Engineer within seven(7) calendar days from the date
of submission of the GMP Change Request. "Reconciled" means that the CM/GC and
Architect/Engineer have verified that their assumptions about the various categories are
the same,and that they have identified the reason for differences in the GMP Change
Request and the Architect/Engineer's position. CM/GC shall submit the Reconciled
GMP Change Request to Owner, which submission shall be a condition to any CM/GC
claim for a GMP increase.
7.2.6 If the Reconciled GMP Change Request is not acceptable to Owner, CM/GC agrees to
work with the Owner and the Architect/Engineer to provide a GMP Change Request
that is acceptable to Owner.
7.2.7 CM/GC agrees to make all records, calculations, drawings and similar items relating to
GMP Change Request available to Owner and to allow Architect/Engineer and Owner
access and opportunity to view such documents at CM/GC's offices. Upon Owner's
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Lake Oswego Library Workroom Renovation CM/GC Contract
reasonable notice, CM/GC shall deliver two copies of such documents to Owner's
Representative and Architect/Engineer at any regular meeting or at the Site.
7.2.8 GMP increases, if any, shall not exceed the increased Cost of the Work arising from the
Scope Change (whether based on agreed fixed pricing, or the estimated Cost of the Work
increase based on cost-reimbursable pricing), reconciled in accordance with the above
provisions, as arising from the incident justifying the GMP increase,plus or minus the
CM/GC Fee applicable to such change in the Cost of the Work.
7.2.9 Except as provided in this Article 7.2, adjustments to the GMP shall be reconciled in
accordance with Section D of the General Conditions.
7.3 Execution by Owner. Architect/Engineer and the Owner's Authorized Representative
have no authority to execute Change Orders or Amendments on behalf of Owner, and
only duly authorized personnel of Owner may do so.
ARTICLE 8
COST OF THE WORK
To Be Reimbursed)
8.1 Cost of the Work. The term "Cost of the Work" shall mean the following costs. The
Cost of the Work shall include only those items necessarily and reasonably incurred by
CM/GC in the proper performance of the Work and specifically identified in this
Article 8, and only to the extent that they are directly related to the Project.
8.2 Labor Costs.
8.2.1 Wages of construction workers directly employed by the CM/GC to perform the
construction of the Work at the site or at off-site workshops or performing
Work, at the fixed rates set forth on Exhibit E, and including such welfare or
other benefits, if any, as may be payable with respect thereto.
Labor exclusively for this project by the Contractor's supervisory and
administrative personnel when stationed at the site and labor for Contractor's
project management,preconstruction services, form design, foundation
engineering, manpower planning,purchasing, estimating, and data processing,
whether performed at the site or in the Contractor's offices, all at the fixed rates
set forth on Exhibit E to this Agreement.
8.3 Subcontract Costs.
8.3.1 CM/GC's actual payment to Subcontractors pursuant to CM/GC's contract with such
Subcontractor for the Work on the Project. No amount paid by or payable to any such
Subcontractor other than the fixed or cost reimbursement price of its subcontract shall be
included in the Cost of the Work, unless otherwise approved in writing by Owner.
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Lake Oswego Library Workroom Renovation CM/GC Contract
8.4 Costs of Materials and Equipment Incorporated in the Work or Stored On Site.
8.4.1 Costs, including transportation, of materials and equipment incorporated or to be
incorporated in the completed Work.
8.4.2 Costs of materials in excess of those actually installed,but required to provide reasonable
allowance for waste and for spoilage. Unused excess materials, if any, shall be delivered
to Owner at the completion of the Work or, at Owner's option, shall be sold by the
CM/GC. Any sale shall be commercially reasonable and CM/GC shall provide
accounting for such a sale within fifteen(15) days of the transaction. Net amounts
realized, if any, from such sales shall be credited to Owner as a deduction from the Cost
of the Work.
8.5 Costs of Miscellaneous Equipment and Other Items; Equipment Rental Charges.
8.5.1 Costs, including transportation, installation, maintenance, dismantling and removal, of
materials, supplies, temporary facilities, machinery, equipment, and hand tools not
customarily owned by the construction workers,which are provided by the CM/GC at the
site and fully consumed in the performance of the Work; and cost less salvage value on
such items if not fully consumed, whether sold to others or retained by the CM/GC;
provided that Owner at Owner's option may require that CM/GC deliver to Owner(at no
charge) at the end of the Project any of such items procured for this Project. Cost for
items previously used by the CM/GC shall mean fair market value. CM/GC shall charge
no additional administrative or other mark-up for purchased items. The CM/GC shall
document all small tools purchased for the Project via invoices in monthly billing, and
shall document the disposition of small tools which have an individual price that exceeds
100. A copy of such disposition log shall accompany the payment application whenever
these items are included in the application. In no case shall a tools cumulative billing to
the project exceed 50% of fair market purchase price of the same new tool.
8.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not
customarily owned by the construction workers, which are provided by the CM/GC at the
site, whether rented from the CM/GC or others, and costs of transportation, installation,
minor repairs and replacements, dismantling and removal thereof. Rates and quantities of
equipment rented shall be according to industry standards, shall not exceed 100% of the
rental rates published from time to time in the Rental Rate Blue Book for Construction
Equipment,prepared by Machinery Information Division of Primedia Information
Incorporated in effect at the time of rental, shall not exceed acquisition costs, and for
individual items exceeding$100, will be subject to Owner's prior approval. CM/GC shall
deliver to Owner a list of published rates from time to time at Owner's request. For all
items rented or leased, the CM/GC shall charge Owner only the rental charge incurred by
CM/GC with no additional administrative or other mark-up. CM/GC shall make efforts
and use its best skills and judgment to procure equipment in the most expeditious and
economical manner consistent with the interest of the Owner. Efforts shall include, but
not be limited to,providing Owner with a rent/buy analysis so that Owner may elect for
CM/GC to procure the item in lieu of rental if the facility at issue is expected to be rented
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Lake Oswego Library Workroom Renovation CM/GC Contract
for six months or longer. Such rent/buy analysis shall include, where available, a leasing
rate commensurate with the expected term of rental of the facility at issue.
8.5.3 Costs of removal of debris from the site.
8. 6 Other Costs.
8.6.1 Deductible for builders alUrisk insurance as required by Section G of the City of Lake
Oswego General Conditions for Public Improvement Projects.
8.6.2 Sales, use or similar excise taxes imposed by a governmental authority which are directly
related to the Work and for which the CM/GC is liable.
8.6.3 Fees and assessments for the building permit and for other permits, licenses and
inspections for which the CM/GC is required by the Contract Documents to pay.
8.6.4 CM/GC deposits lost for causes other than the CM/GC's fault or negligence.
8.6.5 Other costs incurred in the performance of the Work if and to the extent approved in
advance in writing by Owner.
8.7 Costs to Prevent Damage or Injury in Emergencies. The Cost of the Work shall also
include costs which are incurred by the CM/GC in taking action to prevent threatened
damage, injury or loss in case of an emergency affecting the safety of persons and
property.
8.8 Cost For General Conditions Work. CM/GC shall be paid a sum of$_49,338.25_for all
services as stated in Exhibit C as payment for the GC Work, including all labor, materials,
and direct and indirect costs thereof. To the extent any General Conditions Work is
listed in Exhibit C and also otherwise described above in this Article 8, CM/GC's
compensation for the same is included in the Cost for GC Work and shall not otherwise
be charged as Cost of the Work. The Cost for General Conditions Work, less 5%
retainage thereon, shall be paid in equal installments monthly over the number of months
of the scheduled Construction Phase, commencing with the first progress billing after
commencement of the scheduled Construction Phase.
ARTICLE 9
COSTS EXCLUDED FROM COST OF WORK
Not To Be Reimbursed)
9.1 Costs Excluded from Cost of Work. The following shall not be included in the Cost
of the Work:
9.1.1 Salaries and other compensation of the CM/GC's personnel stationed at the CM/GC's
principal office or offices other than the site office except as allowed under Articles 8.2.2
and 8.2.3.
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Lake Oswego Library Workroom Renovation CM/GC Contract
9.1.2 Expenses of the CM/GC's principal office and offices other than the site office.
9.1.3 Any overhead and general expenses, except as may be expressly included in Article 8.
9.1.4 CM/GC's capital expenses, including interest on the CM/GC's capital employed for the
Work.
9.1.5 Rental cost of machinery and equipment, except as provided in Article 8.5.2
9.1.6 Any cost associated with the Project not specifically and expressly described in Article 8.
9.1.7 Costs due to the fault or negligence of the CM/GC, Subcontractors, suppliers, anyone
directly or indirectly employed by any of them, or for whose acts any of them may be
liable.
9.1.8 The cost of correction of any repair work, nonconforming or defective work, or
warranty work.
9.1.9 Merit, safety, or other incentive payments, bonuses or awards, or any expenses in
connection therewith, except as provided in Article 8.
9.1.10 Fines and penalties.
9.1.11 Except for Early Work, the cost of Preconstruction Phase Services.
9.1.12 The Cost of the Work for GC Work in excess of the Proposed Cost for General Conditions
Work.
9.1.13 Any costs in excess of the GMP.
9.1.14 Premiums for Subcontractor bonds unless authorized by Owner
ARTICLE 10
DISCOUNTS, REBATES AND REFUNDS
10.1 Discounts, Rebates and Refunds. Cash discounts obtained on payments made by the
CM/GC shall accrue to Owner. Trade discounts, rebates, refunds and net amounts
received from sales of surplus materials and equipment shall accrue to Owner, and the
CM/GC shall make provisions so that they can be secured.
10.2 Amounts Credited to Owner. Amounts which accrue to Owner in accordance with the
provisions of Article 10.1 shall be credited to Owner as a deduction from the Cost of the
Work.
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Lake Oswego Library Workroom Renovation CM/GC Contract
ARTICLE 11
SUBCONTRACTS AND OTHER CONTRACTS
11.1 General Subcontracting Requirements.
11.1.1 Other than Work performed pursuant to Articles 11.4 or 11. 5 of this CM/GC Contract,
CM/GC shall subcontract the Work to Subcontractors other than the CM/GC and its
Affiliates.
11.1.2 The CM/GC shall comply with Oregon Administrative Rules("OAR") 137-046-0200,
and 137-046.0210in all respects for the solicitation of Minority, Women and Emerging
Small Business Enterprises. Compliance shall include pass-through requirements for
Subcontractor demonstrations of good faith efforts for all subcontract Offer packages, for
which set goals shall not be utilized.
11.1.3 The CM/GC shall report to Owner on the results of the good faith efforts of compliance
required in Article 11.1.2 following award of all subcontracts. The CM/GC shall also
submit quarterly reports to Owner listing Work contracted to date with Minority, Women
and Emerging Small Business Enterprises.
11.2 CM/GC's Obligations under Subcontracts.
11.2.1 No use of a Subcontractor or supplier shall relieve the CM/GC of any of its obligations or
liabilities under the Contract. Except as may expressly otherwise be provided in the
Contract, the CM/GC shall be fully responsible and liable for the acts or omissions of all
Subcontractors and suppliers including persons directly or indirectly employed by them.
The CM/GC shall have sole responsibility for managing and coordinating the operations
of its Subcontractors and suppliers, including the settlement of disputes with or between
the CM/GC and any such Subcontractor or supplier.
11.2.2 The CM/GC shall include in each subcontract and require each Subcontractor to include
in any lower tier subcontract, all provisions necessary to make all of the provisions of the
Contract Documents, including the General Conditions, fully effective as applied to
Subcontractors. CM/GC shall indemnify Owner for any additional cost based on a
subcontractor claim which results from the failure of CM/GC to incorporate the
provisions of this CM/GC Contract in each subcontract. The CM/GC shall provide all
necessary Plans, Specifications, and instructions to its suppliers and Subcontractors to
enable them to properly perform their work.
11. 2.3 Retainage from Subcontractors. Except with the Owner's prior approval,payments to
Subcontractors shall be subject to retainage of no more than 5%. The Owner and the
CM/GC shall agree upon a mutually acceptable procedure for review and approval of
payments and retainage for Subcontractors.
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Lake Oswego Library Workroom Renovation CM/GC Contract
11.3 Subcontractor Selection.
11.3.1 Unless otherwise provided under this Article 11, the selection of all Subcontractors and
suppliers shall be made by competitive Offers in a manner that will not encourage
favoritism or substantially diminish competition. While not subject to the competitive
procurement requirements of ORS Chapter 279C,the process shall conform to the
following procedures, in general compliance with the open and competitive nature of
public procurement, taking into account industry subcontracting practices.
11.3. 2 CM/GC shall submit to Owner's Authorized Representative its proposed procurement
documents for review and comment before they are issued for solicitation. CM/GC shall
consider and respond to all Owner comments regarding any proposed Offer packages. As
Offers are received, CM/GC shall submit to the Owner an Offer comparison in a mutually
agreeable form together with any specific back-up documentation requested by Owner.
The competitive process used to award subcontracts by the CM/GC may be monitored by
the Owner's Authorized Representative; provided that such monitoring shall not excuse
CM/GC from compliance with the subcontracting requirements of this CM/GC Contract.
CM/GC shall cooperate in all respects with Owner's monitoring. The Owner's
Authorized Representative shall be advised in advance of and be given the opportunity to
be present at Offer openings, and CM/GC shall provide him or her with a summary or
abstract of all Offers in form acceptable to the Owner's Authorized Representative, and
copies of particular Offers if requested,prior to CM/GC's selection of Offerors. Prior to
opening Offers,the CM/GC agrees to disclose in writing to Owner any financial interest
it has in any such Subcontractor, supplier or other contracting party whenever such
Subcontractor, supplier or contracting party intends to compete on any Project work,
directly or indirectly, including whether such party is an Affiliate of CM/GC.
113.3 The following minimum requirements apply to the Subcontract solicitation process:
a) Solicitations will be advertised at least 10 Days prior to opening in the Daily
Journal of Commerce and at least one other newspaper specifically targeted to
reach the Minority, Women and Emerging Small Business audience. CM/GC also
agrees to advertise in the Lake Oswego Review, in order to allow for local
participation in the solicitation process. The solicitation shall also be posted on
the City's public contracting solicitation webpage.
b) Unless specific other prior arrangement has been made with Owner, all Offers
will be written, and submitted to a specific location at a specific time or in
accordance with the electronic solicitation instruction. CM/GC shall time-stamp
all Offers as received. Subcontractors must be qualified to perform the Work for
this Project by being appropriately registered with the State of Oregon
Construction Contractors Board.
c) If fewer than three (3) Offers are submitted in response to any solicitation
inclusive of any Offer submitted by CM/GC), prior written approval by Owner
shall be required to accept an Offer.
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Lake Oswego Library Workroom Renovation CM/GC Contract
d) CM/GC may develop and implement a prequalification process for particular
solicitations, followed by selection of successful Offers among those Offerors that
CM/GC determines meet the prequalification standards, with Owner's prior
written approval of such prequalification process.
e) CM/GC shall comply, and require Subcontractor compliance with, State of
Oregon Bureau of Labor&Industries prevailing wage rates as specified in the
RFP.
0 Owner may at its sole discretion, require CM/GC to re-solicit for Offers based on
the same or modified documents.
g) CM/GC shall review all Offers and shall work with Offerors to clarify Offers,
reduce exclusions,verify scope and quantities, and seek to minimize work
subsequently awarded via the Change Order process.
h) The CM/GC will document any and all discussions, questions and answers,
modifications and responses to from any Offeror and ensure that the same are
distributed to all Offerors, and Owner shall be entitled to inspect such
documentation on request.
i) CM/GC shall determine the lowest Offer for each solicitation that meets
CM/GC's reasonable performance standards for the components of the Work at
issue; provided that if CM/GC determines it is unable to execute a suitable
subcontract with such Offeror, CM/GC may,with Owner's prior approval,
execute a subcontract with the second-lowest Offeror pursuant to Article 11.3.4
below.
11.3.4 Under special circumstances and only with prior written authorization by Owner, Work
may be subcontracted on other than a low price basis, including without limitation,
through competitive negotiation. As a condition to its authorization, Owner may
require CM/GC's agreement to establish and implement qualification and performance
criteria for Offerors, including a scoring system within requests for proposals.
Examples include: where there are single fabricators of materials; special packaging
requirements for Subcontractor work; design-build work or, where an alternative
contracting method can be demonstrated to clearly benefit Owner.
11.3.5 CM/GC shall notify Owner in writing in advance before award of any proposed
Subcontract,which notice shall include summaries in a form acceptable to Owner of all
Offers received for the Subcontract at issue. Owner reserves the right to disapprove any
proposed Subcontractors, suppliers and Subcontract or supply contract awards,based on
legal standards of responsibility. Owner shall not unreasonably disapprove any proposed
Subcontractor or supplier and increased costs due to Owner's disapproval shall be cause
for an increase in the GMP.
25
Lake Oswego Library Workroom Renovation CM/GC Contract
11. 3.6 CM/GC's subcontracting records that are not in the possession of the Owner shall not
be considered public records; provided, however, that Owner and other agencies of
the State shall retain the right to audit and monitor the subcontracting process in
order to protect the Owner's interests.
11.4 CM/GC Field Work.
11.4.1 The CM/GC or its Affiliate may provide CM/GC Field Work required to complete the
Project with its own forces,without the necessity of subcontracting such work.
11.4.2 Except as provided in Article 11.4.1, any other portion of the Work proposed to be
performed by CM/GC or any Affiliate, including without limitation provision of any
materials, equipment, or supplies, shall be subject to the provisions of Article 11.5.
11.5 Subcontracting by CM/GC.
11.5.1 Except to the extent otherwise approved in advance in writing by Owner's Authorized
Representative, the CM/GC or its Affiliates may submit an Offer in accordance with
Article 11.3 to do Work with its own forces, provided at least 50% of the labor by such
work unit is performed by employees of the CM/GC or such Affiliate.
11. 5.2 For those items for which the CM/GC or any of its subsidiaries intends to submit an
Offer, such intent must be publicly announced with the solicitation for Offers required by
Article 11.3.1, and Owner notified in writing. All Offers for this work shall be delivered
to Owner and publicly opened by Owner at an announced time, date, and place.
11.6 Protests. CM/GC, acting as an independent contractor, shall include in the competitive
process to award all subcontracts, a protest process for Subcontractors and suppliers that
are competing Offerors, which process shall be subject to approval by Owner. CM/GC
shall be solely responsible for resolving the procurement protests of Subcontractors and
suppliers. CM/GC shall indemnify,defend,protect and hold harmless Owner from and
against any such procurement protests and resulting claims or litigation. CM/GC shall
act as an independent contractor, and not an agent of Owner, in connection with any
procurement protest. The provisions of this Article 11 are solely for the benefit of
Owner, and do not grant any rights or remedies (including third party beneficiary rights)
to any Offeror or other protester, in connection with any procurement protest or claim.
ARTICLE 12
ACCOUNTING RECORDS
12.1 Accounting; Audit Access. The CM/GC shall keep full and detailed accounts and
exercise such controls as may be necessary for proper financial management under the
Contract; the accounting and control systems shall be satisfactory to Owner. Owner and
Owner's representatives, and auditors, shall be afforded reasonable and regular access to
the CM/GC's records,books, correspondence, instructions, drawings, receipts,
subcontracts, purchase orders, vouchers, memoranda and other data relating to the
26
Lake Oswego Library Workroom Renovation CM/GC Contract
Contract, and the CM/GC shall preserve these for a period of three years after final
payment, or for such longer period as may be required by law.
12.2 Periodic and Final Audits. Owner may, at its discretion, perform periodic audits of the
Cost of the Work and any other reimbursable costs associated with the Project. Owner
intends to conduct a final audit of reimbursable costs prior to the Contract closeout. The
CM/GC shall cooperate fully with Owner in the performance of such audits. Disputes
over audit findings or conclusions shall be subject to the process set forth in Article 14.4.
ARTICLE 11
PROGRESS PAYMENTS
13.1 Integration with the City of Lake Oswego General Conditions for Public Improvement
Projects. The requirements of this Article 13 and Article 14 are in addition to, and not in
lieu of, the requirements of Section E of the City of Lake Oswego General Conditions for
Public Improvement Projects. In the event of conflict between the provisions of Articles
13 and 14 and Section E, the provision more favorable to Owner shall control. Without
limitation, the provisions of Articles 13. 3 and 13.4 shall control over the corresponding
provisions of Section E.2.5 of the General Conditions.
13.2 Progress Payments. Based upon applications for payment submitted pursuant to
Section E of the City of Lake Oswego General Conditions for Public Improvement
Projects, Owner shall make progress payments on account of the Preconstruction Fee,
Cost of the Work, and associated CM/GC Fee, less 5%retainage, to the CM/GC as
provided below and elsewhere in the Contract Documents. A progress payment shall
not be considered acceptance or approval of any Work or waiver of any defects
therein.
13.3 Percentage of Completion. Applications for payment shall show the percentage of
completion of each portion of the Work as of the end of the period covered by the
application for payment. The percentage of completion shall be the lesser of(i) the
percentage of that portion of the Work which has actually been completed; or(ii) the
percentage obtained by dividing(a) the expense that has actually been incurred by the
CM/GC on account of that portion of the Work for which the CM/GC has made or
intends to make actual payment prior to the next application for payment by(b) the
share of the GMP allocated to that portion of the Work in the Schedule of Values.
13. 4 Calculation of Payment. Subject to other provisions of the Contract Documents, the
amount of each progress payment shall be computed as follows:
a) Take that portion of the GMP properly allocable to completed Work as
determined by multiplying the percentage of completion of each portion of the
Work under the Schedule of Values by the share of the GMP allocated to that
portion of the Work in the Schedule of Values. Pending final determination of
cost to the Owner of changes in the Work, amounts not in dispute shall be
included;
27
Lake Oswego Library Workroom Renovation CM/GC Contract
Ih
b) Add that portion of the GMP properly allocable to materials and equipment
delivered and suitably stored and otherwise in compliance with Section E.2.3 of
the General Conditions;
c) Add the CM/GC's Fee. The portion of the CM/GC's Fee payable shall be an
amount that bears the same ratio to CM/GC Fee as sum of the amounts in the two
preceding Clauses bears to the estimated probable Cost of the Work described in
Article 6.1.2,but in no event causing total CM/GC Fee payments to exceed the
total CM/GC Fee;
d) Subtract the aggregate of previous payments made by and retained by the Owner;
e) Subtract the shortfall, if any, indicated by the documentation required to
substantiate prior applications for payment, or resulting from errors subsequently
discovered by the Owner in such documentation;
f) Subtract any amounts for which the Owner's Authorized Representative has
withheld or denied payment as provided in the Contract Documents; and
g) Subtract 5%retainage on the entire progress payment.
13.5 Payment Disputes . If Owner's Authorized Representative declines to approve any duly
submitted payment request by CM/GC, the CM/GC shall be entitled to demand a review by the
Owner's Project Manager or designee of the disputed amount. Such demand shall be made by the
CM/GC within 30 Days after the CM/GC's receipt of a copy of the rejection of the application for
payment; failure to demand additional review within this 30-Day period shall result in the
substantiated amount reported by Owner's accountants becoming binding on the CM/GC. In addition,
If Owner performs a subsequent audit of the Cost of the Work and determines any item therein to
have been unsubstantiated or that CM/GC was otherwise overpaid, CM/GC shall have 30 Days after
delivery of request for reimbursement by Owner to demand additional review by Owner's highest
contracting authority; failure to make such demand within this 30 Day period shall result in the
requested reimbursement becoming unconditionally due and payable by CM/GC. If CM/GC timely
submits a protest to the Owner's Project Manager or designee, CM/GC's Claim shall be subject to the
claims review process in Section D.3 of the General Conditions. Pending a fmal resolution, Owner
shall pay the CM/GC the amount of the application for payment approved by the Owner's Authorized
Representative.
13.6 Effect of Payment. Neither approval of an application for payment, a progress payment,
release of retainage, final payment, or partial or entire use or occupancy of the Project by the Owner
shall constitute acceptance.
ARTICLE 14
FINAL PAYMENT
14.1 Final Payment Accounting. CM/GC shall submit to Owner a final detailed accounting
of the Cost of the Work together with CM/GC's final application for payment.
28
Lake Oswego Library Workroom Renovation CM/GC Contract
14.2 Calculation of Final Payment. The amount of the final payment shall be calculated as
follows:
14.2.1 Take the sum of the CM/GC Fee,plus the Preconstruction Fee,plus the actual Cost of the
Work substantiated by the CM/GC's final accounting. Said sum shall not exceed the
GMP.
14.2.2 Subtract amounts, if any, for which the Owner's Authorized Representative withholds, in
whole or in part, approval of payment.
14.2.3 Subtract the aggregate of previous payments made by Owner to CM/GC. If the aggregate
of previous payments made by Owner exceeds the amount due the CM/GC,the CM/GC
shall reimburse the difference to Owner within 30 Days with interest at the rate
applicable to Owner payments under the City of Lake Oswego General Conditions for
Public Improvement Projects.
14.3 Final Payment Review. Owner or its accountants will review and report in writing on
the CM/GC's final accounting within 30 Days after delivery of the final accounting by the
CM/GC. Based upon such Cost of the Work as Owner or Owner's accountants report to
be substantiated by the CM/GC's final accounting, and provided the other conditions of
the Contract have been met, the Owner's Authorized Representative will,within 10 Days
after receipt of the written report of Owner's accountants, either issue to Owner an
approval of CM/GC's final application for payment with a copy to the CM/GC or notify
the CM/GC and Owner in writing of the Owner's Authorized Representative's reasons for
withholding approval of any part of the application for payment, which disapproval shall
include Owner's Authorized Representative's estimate of the amount that is due the
CM/GC under the application for payment.
14.4 Final Payment Dispute. If Owner's accountants report the Cost of the Work as
substantiated by the CM/GC's final accounting to be less than claimed by the CM/GC,the
CM/GC shall be entitled to demand a review by the Owner's Project Manager of the
disputed amount. Such demand shall be made by the CM/GC within 30 Days after the
CM/GC's receipt of a copy of the rejection of the application for payment; failure to
demand additional review within this 30-Day period shall result in the substantiated
amount reported by Owner's accountants becoming binding on the CM/GC. In addition,
If Owner performs a subsequent audit of the Cost of the Work and determines any item
therein to have been unsubstantiated or that CM/GC was otherwise overpaid, CM/GC
shall have 30 Days after delivery of request for reimbursement by Owner to demand
additional review by Owner's Project Manager; failure to make such demand within this
30 Day period shall result in the requested reimbursement becoming unconditionally due
and payable by CM/GC. If CM/GC timely submits a protest to the Owner's Project
Manager or designee, CM/GC's Claim shall be subject to the claims review process in
Section D.3 of the General Conditions. Pending a final resolution, Owner shall pay the
CM/GC the amount of the application for payment approved by the Owner's Authorized
Representative.
14.5 Effect of Payment. Neither approval of an application for release of retainage and final
29
Lake Oswego Library Workroom Renovation CM/GC Contract
payment, or partial or entire use or occupancy of the Project by the Owner shall constitute
acceptance of work not conforming to the Contract Documents, or waiver of the right to
assert overpayment.
ARTICLE 15
TERMINATION OR SUSPENSION
15.1 Owner's Right to Terminate Prior to Execution of GMP Amendment. Prior to
execution by both parties of the GMP Amendment, the Owner may terminate the
Contract at any time without cause. Upon such termination,the amount to be paid to the
CM/GC shall not exceed the Preconstruction Fee payable to the date of termination,
together with amounts payable for Early Work if an Early Work Amendment has been
executed. If Owner terminates for convenience during the Preconstruction Phase, Owner
shall be entitled to copies of, and shall have the right to use, all work product of CM/GC
and its Subcontractors performed to the date of termination, and CM/GC shall deliver
copies of the same to Owner on request.
15.2 Owner's Termination for Convenience after GMP Amendment. After the GMP
Amendment is executed by both parties, the Contract may be terminated by Owner
without penalty for convenience pursuant to Section J.5 of the General Conditions in
which case CM/GC shall be entitled to payment of the amount stated in Article 15.1,
together with the actual Cost of the Work completed,plus the CM/GC's Fee prorated
based on the actual Cost of the Work completed prior to the date of termination, but in
any event not in excess of the GMP.
15.3 Owner's Termination for Cause. In the event of termination of this Agreement by
Owner for cause pursuant to Section J.4 of the General Conditions,the amount, if any,
to be paid to the CM/GC after application of the General Conditions and Owner's
rights at law shall not exceed the amount the CM/GC would be entitled to receive
under Article 15.2.
15.4 CM/GC Termination for Cause. CM/GC acknowledges that disputes regarding
payments and Change Orders may occur as part of the CM/GC process, and that Owner's
declining to pay disputed amounts shall not be grounds for suspension of the Work or
termination for cause by CM/GC. If CM/GC terminates the Contract for Owner's
material breach,the amount to be paid to CM/GC shall not exceed the amount CM/GC
would have been entitled to receive under Article 13 above through termination and
demobilization from the Project, with the CM/GC Fee prorated based on the actual Cost
of the Work through the date of termination.
15.5 Assignment of Subcontracts. Each subcontract and supply contract for any portion of
the Work is hereby irrevocably assigned by the CM/GC to the Owner, provided that such
assignment is effective only after termination of the Contract by the Owner, and only for
those subcontracts and supply contracts which the Owner accepts by notifying the
Subcontractor/supplier and CM/GC in writing. For those subcontracts and supply
contracts accepted by Owner, if the Work has been suspended for more than 30 Days, the
Subcontractor's/supplier's compensation shall be equitably adjusted for increases in cost
30
Lake Oswego Library Workroom Renovation CM/GC Contract
yl
resulting from the suspension. CM/GC shall include a provision in each subcontract and
supply agreement whereby the Subcontractor/supplier acknowledges Owner's rights
under this Article 15. 5. With respect to any subcontracts/supply contracts that are not
accepted by Owner, the provisions of Section J.6.1 of the General Conditions shall apply.
ARTICLE 16
REPRESENTATIONS,WARRANTIES AND CERTIFICATIONS
16.1 Representations and Warranties. CM/GC represents and warrants to Owner as of the
effective date of the Contract:
16.1. 1 it is qualified to do business as a licensed general contractor under the laws of the State of
Oregon, and has all requisite corporate power and corporate authority to carry on its
business as now being conducted;
16.1.2 it has full corporate power and corporate authority to enter into and perform the Contract
and to consummate the transactions contemplated hereby; CM/GC has duly and validly
executed and delivered this CM/GC Contract to Owner and that the Contract constitutes
the legal, valid and binding obligation of CM/GC, enforceable against CM/GC in
accordance with its terms, except as enforceability may be limited or affected by
applicable bankruptcy, insolvency,reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity(regardless of
whether enforceability is considered in a proceeding in equity or at law);
16.1.3 CM/GC's execution and delivery of this CM/GC Contract and the consummation of the
transactions contemplated hereby will not conflict with or result in a material breach of
any terms or provisions of, or constitute a material default under, (i) CM/GC's Articles of
Incorporation or Bylaws; (ii) any note,bond, mortgage, indenture, license, lease, contract,
commitment, agreement or other instrument or obligation to which CM/GC is a party or
by which CM/GC may be bound; or(iii) any statute, order,writ, injunction, decree, rule
or regulation applicable to CM/GC;
16.1.4 no material consent, approval, authorization, declaration or other order of, or registration
or filing with, any court or regulatory authority or any third person is required for the
valid execution, delivery and performance of the Contract by CM/GC or its
consummation of the transactions contemplated hereby;
16.1.5 there is no action,proceeding, suit, investigation or inquiry pending that questions the
validity of the Contract or that would prevent or hinder the consummation of the
transactions contemplated hereby; and
16.1.6 the CM/GC's Project Manager and Assistant Project Manager identified in Article 4 are
duly appointed representatives and each has the authority to bind the CM/GC to any and
all duties, obligations and liabilities under the Contract Documents and any Amendments
thereto.
16.2 Tax Compliance Certification. The individual signing on behalf of CM/GC hereby certifies
and swears under penalty of perjury that s/he is authorized to act on behalf of CM/GC, she/he has
authority and knowledge regarding CM/GC's payment of taxes, and to the best of her/his
knowledge, CM/GC is not in violation of any Oregon tax laws. For purposes of this certification,
31
Lake Oswego Library Workroom Renovation CM/GC Contract
Oregon tax laws" are those tax laws listed in ORS 305.380(4), namely ORS Chapters 118, 314,
316, 317, 318, 320, 321 and 323 and Sections 10 to 20, Chapter 533, Oregon Laws 1981, as
amended by Chapter 16, Oregon Laws 1982 (first special session); the elderly rental assistance
program under ORS 310. 630 to 310.706; and any local taxes administered by the Oregon
Department of Revenue under ORS 305.620.
ARTICLE 17
MISCELLANEOUS
17.1 Headings. The headings used in this CM/GC Contract are solely for convenience of
reference, are not part of the Contract and are not to be considered in construing or
interpreting the Contract.
17.2 Merger. The Contract Documents constitute the entire contract between the parties. No
waiver, consent, modification or change of terms of the Contract shall bind either party
unless in writing and signed by both parties. Such waiver, consent, modification or
change, if made, shall be effective only in the specific instance and for the specific
purpose given. There are no understandings, agreements, or representations, oral or
written, not specified herein regarding the Contract. CM/GC, by signature of its
representative, hereby acknowledges that it has read the Contract, understands it and
agrees to be bound by its terms and conditions.
17.3 Exemption from Competitive Bidding. The parties acknowledge that the Contract has
been awarded under an exemption from competitive bidding requirements pursuant to ORS
279C.335, as authorized by the City of Lake Oswego City Council.
THIS CM/GC CONTRACT is executed in four original copies of which one is to be delivered
to the CM/GC, and the remainder to Owner.
CM/GC:
Name of Firm: Fortis Construction Inc.
Address: 1705 SW Taylor St. Suite 200, Portland, OR 97205
CM/GC's Federal Tax I.D. #: 412096320
Construction Contractor's Board Registration No.: 155766
Signature of Authorifted Representative of CM/GC
Title 27- c
Date 9/F/! .,
OWNER: Y OF L KE OSWEGO Approved as to form:
Digitally signed by Evan Boone
r 7
r ON cn= Evan Boone,o=Cey of Lake
Osweemail ,ou= CAO,7 email=eboone@cl oswego.or us,c= US
Signature of City of Lake Oswego Representative Date:2016,09,0709.51:24-07'00'
Title: City Manager . Evan P. Boone, Deputy City Attorney
Date fi / ci / l
32
Lake Oswego Library Workroom Renovation CM/GC Contract
lExhibit A
CITY OF LAKE OSWEGO ft;s
GENERAL CONDITIONS rr
FOR
PUBLIC IMPROVEMENT
CONTRACTS0
Adopted by City of Lake Osweao from the State
of Oreaon for use on the:
Lake Osweao Library Workroom 41.
Renovation
e _ e _ A • l • - _ , i _ e e , - • 11111 . _
January 1, 2012 Edition - . - _ e . _ • _ ' e, e
Changes to the General Conditions (including any additions, deletions or substitutions) should only be
made by Supplemental General Conditions, unless the General Conditions are specifically modified in the
Public Improvement Agreement (which has a higher order of precedence under Section A.3 of the
General Conditions). The text of these General Conditions should not otherwise be altered.
0 . I . . . E. THE LEGAL SUFFICIENCY AND APPROVAL
REQUIREMENTE OF ORS 291.047 ARE STILL APPLICABLE FOR INDIVIDUAL
1
STATE OF OREGON
GENERAL CONDITIONS FOR PUBLIC IMPROVEMENT CONTRACTS
JANUARY 1,2012, • - - - - e
TABLE OF SECTIONS
SECTION A SECTION E
GENERAL PROVISIONS PAYMENTS
A.1 DEFINITION OF TERMS El SCHEDULE OF VALUES
A.2 SCOPE OF WORK E.2 APPLICATIONS FOR PAYMENT
A.3 INTERPRETATION OF CONTRACT E.3 PAYROLL CERTIFICATION REQUIREMENT
DOCUMENTS E.4 DUAL PAYMENT SOURCES
A.4 EXAMINATION OF PLANS,SPECIFICATIONS, E.5 RETAINAGE
AND SITE E.6 FINAL PAYMENT
A.5 INDEPENDENT CONTRACTOR STATUS
A.6 RETIREMENT SYSTEM STATUS AND TAXES
SECTION F
A.7 GOVERNMENT EMPLOYMENT STATUS
JOB SITE CONDITIONS
SECTION B F.1 USE OF PREMISES
ADMINISTRATION OF THE CONTRACT F.2 PROTECTION OF WORKERS,PROPERTY
AND THE PUBLIC
B.1 OWNER'S ADMINISTRATION OF THE F.3 CUTTING AND PATCHING
CONTRACT F.4 CLEANING UP
B.2 CONTRACTOR'S MEANS AND METHODS F.5 ENVIRONMENTALCONTAMINATION
B.3 MATERIALS AND WORKMANSHIP F.6 ENVIRONMENTAL CLEAN-UP
B.4 PERMITS F.7 FORCE MAJEURE
B.5 COMPLIANCE WITH GOVERNMENT LAWS AND
REGULATIONS
SECTION GB.6 SUPERINTENDENCE
INDEMNITY.BONDING AND INSURANCE
5.7 INSPECTION
B. 8 SEVERABILITY G.1 RESPONSIBILITY FOR DAMAGES/INDEMNITY
B. 9 ACCESS TO RECORDS G.2 PERFORMANCE AND PAYMENT SECURITY;
B.10 WAIVER PUBLIC WORKS BOND
B.11 SUBCONTRACTS AND ASSIGNMENT G.3 INSURANCE
B.12 SUCCESSORS IN INTEREST
B.13 OWNER'S RIGHT TO DO WORK
B.14 OTHER CONTRACTS SECTION H
B.15 GOVERNING LAW SCHEDULE OF WORK
B.16 LITIGATION
B.17 ALLOWANCES H.1 CONTRACT PERIOD
B.18 SUBMITTALS,SHOP DRAWINGS,PRODUCT H.2 SCHEDULE
DATA AND SAMPLES H.3 PARTIAL OCCUPANCY OR USE
B.19 SUBSTITUTIONS
B.20 USE OF PLANS AND SPECIFICATIONS
B.21 FUNDS AVAILABLE AND AUTHORIZED SECTION I
B.22 NO THIRD PARTY BENEFICIARIES CORRECTION OF WORK
1.1 CORRECTIONS OF WORK BEFORE FINAL
SECTION C PAYMENT
WAGES AND LABOR 1.2 WARRANTY WORK
C.1 MINIMUM WAGES RATES ON PUBLIC WORKS
C.2 PAYROLL CERTIFICATION;ADDITIONAL SECTION J
RETAINAGE;FEE REQUIREMENTS SUSPENSION AND/OR TERMINATION OF THE WORK
C.3 PROMPT PAYMENT AND CONTRACT
CONDITIONS J.1 OWNER'S RIGHT TO SUSPEND THE WORK
C.4 PAYMENT FOR MEDICAL CARE J.2 CONTRACTOR'S RESPONSIBILITIES
C.5 HOURS OF LABOR J.3 COMPENSATION FOR SUSPENSION
J.4 OWNER'S RIGHT TO TERMINATE CONTRACT
J.5 TERMINATION FOR CONVENIENCE
SECTION D J.6 ACTION UPON TERMINATION
CHANGES IN THE WORK
D.1 CHANGES IN THE WORK
D.2 DELAYS
D.3 CLAIMS REVIEW PROCESS
2
SECTION K
CONTRACT CLOSE-OUT
K.1 RECORD DRAWINGS
K.2 OPERATION AND MAINTENANCE MANUALS
K.3 AFFIDAVIT/RELEASE OF LIENS AND CLAIMS
K.4 COMPLETION NOTICES
K.5 TRAINING
K. 6 EXTRA MATERIALS
K.7 ENVIRONMENTAL CLEAN-UP
K.8 CERTIFICATE OF OCCUPANCY
K. 9 OTHER CONTRACTOR RESPONSIBILITIES
K.10 SURVIVAL
SECTION L
LEGAL RELATIONS AND RESPONSIBILITY TO
THE PUBLIC
L.1 LAWS TO BE OBSERVED
L. 2 FEDERAL AGENCIES
L. 3 STATE AGENCIES
L.4 LOCAL AGENCIES
3
STATE OF OREGON
GENERAL CONDITIONS FOR PUBLIC
IMPROVEMENT CONTRACTS
General Conditions")
SECTION A
GENERAL PROVISIONS
Contract for the Work contemplated.
DAYS, are calendar days, including weekdays, weekends
A.1 DEFINITION OF TERMS and holidays,unless otherwise specified.
In the Contract Documents the following terms DIRECT COSTS. means, unless otherwise provided in the
shall be as defined below:Contract Documents, the cost of materials, including
sales tax, cost of delivery; cost of labor, including social
ARCHITECT/ENGINEER, means the Person security, old age and unemployment insurance, and fringe
appointed by the Owner to make drawings and benefits required by agreement or custom; worker's
specifications and, to provide contract administration compensation insurance; project specific insurance
of the Work contemplated by the Contract to the including, without limitation, Builder's Risk Insurance and
extent provided herein or by supplemental instruction Builder's Risk Installation Floater); bond premiums, rental
of Owner (under which Owner may delegate cost of equipment,and machinery required for execution of
responsibilities of the Owner's Authorized the work; and the additional costs of field personnel directly
Representative to the Architect/Engineer), in attributable to the Work.
accordance with ORS Chapter 671 (Architects) or
ORS Chapter 672 (Engineers)and administrative rules FINAL COMPLETION. means the final completion of all
adopted thereunder. requirements under the Contract, including Contract
Closeout as described in Section K but excluding Warranty
CHANGE ORDER, means a written order issued by Work as described in Section 1.2, and the final payment and
the Owner's Authorized Representative to the release of all retainage,if any,released.
Contractor requiring a change in the Work within the
general scope of the Contract Documents, issued FORCE MAJEURE, means an act, event or occurrence
under the changes provisions of Section D.1 caused by fire. riot, war, acts of God, nature, sovereign, or
including Owner's written change directives as well public enemy, strikes, freight embargoes or any other act,
as changes reflected in a writing executed by the event or occurrence that is beyond the control of the party to
parties to this Contract and, if applicable, establishing this Contract who is asserting Force Majeure.
a Contract Price or Contract Time adjustment for
the changed Work. NOTICE TO PROCEED, means the official written notice
from the Owner stating that the Contractor is to proceed with
CLAIM, means a demand by Contractor pursuant to the Work defined in the Contract Documents.
Section Notwithstanding the Notice to Proceed, Contractor shall not
D.3 for review of the denial of Contractor's initial be authorized to proceed with the Work until all initial
request for an adjustment of Contract terms, Contract requirements, including the Contract, performance
payment of money, extension of•Contract Time or bond and payment bond, and certificates of insurance, have
other relief, submitted in accordance with the been fully executed and submitted to Owner in a suitable
requirements and within the time limits established form.
for review of Claims in these General Conditions.
OFFER, means a bid in connection with an invitation to bid
CONTRACT, means the written agreement between and a proposal in connection with a request for proposals.
the Owner and the Contractor comprised of the
Contract Documents which describe the Work to be OFFEROR, means a bidder in connection with an
done and the obligations between the parties. invitation to bid and a proposer in connection with a request
for proposals.
CONTRACT DOCUMENTS. means the Solicitation
Document and addenda thereto, the State of Oregon OVERHEAD, means those items which may be included in
Public Improvement Agreement Form, General the Contractor's markup (general and administrative
Conditions, Supplemental General Conditions, if any, expense and profit) and that shall not be charged as Direct
the accepted Offer, Plans,Specifications,amendments Cost of the Work, including without limitation such
and Change Orders. Overhead expenses as wages or salary of personnel above
the level of foreman (i.e., superintendents and project
CONTRACT PERIOD, as set forth in the Contract managers), expenses of Contractor's offices at the job site
Documents, means the total period of time e.g. job trailer) including expenses of personnel staffing
beginning with the issuance of the Notice to Proceed the job site office, and Commercial •General Liability
and concluding upon Final Completion. Insurance and Automobile Liability Insurance.
CONTRACT PRICE. means the total of the awarded OWNER, means the State of Oregon acting by and through
Offer amount, as increased or decreased by the price the governmental entity identified in the Solicitation
of approved alternates and Change Orders. Document.
CONTRACT TIME, means any incremental period OWNER'S AUTHORIZED REPRESENTATIVE, means
of time allowed under the Contract to complete any those individuals or_eniity„identified in writing by the Owner
portion of the Work as reflected in the project to act on behalf of the Owner for this project. Owner may
schedule. elect, by written notice to Contractor, to delegate certain
duties of the Owner's Authorized Representative to more
CONTRACTOR, means the Person awarded the
4
than one party, including without limitation, to an General Conditions. Supplemental General Conditions
Architect/Engineer. However, nothing in these General may be included in the Solicitation Document or may be a
Conditions is intended to abrogate the separate separate attachment to the Contract.
design professional responsibilities of Architects
under ORS Chapter 671 or of Engineers under WORK, means the furnishing of all materials, equipment,
ORS Chapter 672. labor, transportation, services and incidentals necessary to
successfully complete any individual item or the entire
PERSON, means an entity doing business as a Contract and the carrying out of duties and obligations
sole proprietorship, a partnership, a joint venture, a imposed by the Contract Documents.
corporation, a limited liability company or
partnership, or any other entity possessing the legal A.2 SCOPE OF WORK
capacity to contract.
The Work contemplated under this
PLANS, means the drawings which show the location, Contract includes all labor,materials,transportation,
type, dimensions, and details of the Work to be equipment and services for, and incidental to, the
done under the Contract. completion of all construction work in connection with the
project described in the Contract Documents. The
PUNCHLIST, means the list of Work yet to be Contractor shall perform all Work necessary so that the
completed or deficiencies which need to be corrected project can be legally occupied and fully used for the
in order to achieve Final Completion of the Contract. intended use as set forth in the Contract Documents.
RECORD DOCUMENT. means the as-built Plans, A.3 INTERPRETATION OF CONTRACT DOCUMENTS
Specifications, testing and inspection records, product
data, samples, manufacturer and distributor/supplier A.3.1 Unless otherwise specifically defined in the
warranties evidencing transfer to Owner, operational Contract Documents, words which have well-
and maintenance manuals, shop drawings, Change known technical meanings or construction industry
Orders, correspondence, certificate(s) of occupancy, meanings are used in the Contract Documents in
and other documents listed in Subsection B.9.1 of accordance with such recognized meanings.
these General Conditions, recording all Services Contract Documents are intended to be
performed.complementary. Whatever is called for in one, is
interpreted to be called for in all. However, in the
SOLICITATION DOCUMENT, means an invitation to event of conflicts or discrepancies among the
bid or request for proposal or request for quotes. Contract Documents, interpretations will be based
on the following descending order of precedence:
SPECIFICATION, means any description of the
physical or functional characteristics of the Work, or 1. Contract amendments and Change Orders,with
of the nature of a supply, service or construction those of later date having precedence over
item. Specifications may include a description of any those of an earlier date;
requirement for inspecting, testing or preparing a
supply, service or construction item for delivery and 2= =The Supplemental General Conditions;_
the quantities or qualities of materials to be
fumished under the Contract. Specifications generally 23. The accented Offer
will state the results or products to be obtained
and may, on occasion, describe the method and 3-4_,,The State of Oregon Public Improvement
manner of doing the work to be performed.Agreement Form;
Specifications may be incorporated by reference
and/or may be attached to the Contract. 4, 5. The General Conditions
SUBCONTRACTOR, means a Person having a 56=_The Plans and Specifications
direct contract with the Contractor, or another
Subcontractor, to perform one or more items of the 6 Z=The Solicitation Document and any
Work. addenda thereto;
SUBSTANTIAL COMPLETION. means the date The accepted Offcr.
when the Owner accepts in writing the construction,
A.3. 2 In the case of an inconsistency between Plans andalterationorrepairof the improvement to real
or anydesignated Specifications or within either document not clarifiedpropertygportionthereofashaving
reached that state of completion when it may be by addendum, the better quality or greater quantity
used or occupied for its intended purpose. of Work shall be provided in accordance with the
Substantial Completion of facilities with operating
Owner or Owners Authorized Representative's
systems occurs only after thirty (30) continuous interpretation in writing.
Days of successful, trouble-free operation of the
A.3.3 If the Contractor finds discrepancies in, or
operating systems as provided in Section K.4.2.
omissions from the Contract Documents, or if the
SUBSTITUTIONS, means items that in function, Contractor is in doubt as to their meaning, the
performance, reliability, quality, and general Contractor shall at once notify the Owner or
configuration are the same or better than the Owner's Authorized Representative. Matters
product(s) specified. Approval of any substitute item concerning performance under, and interpretation
shall be solely determined by the Owner's Authorized of requirements of, the Contract Documents will be
Representative. The decision of the Owner's decided by the Owner's Authorized Representative,
Authorized Representative is final. who may delegate that duty in some instances to
the Architect/Engineer. Responses to Contractor's
SUPPLEMENTAL GENERAL CONDITIONS. means requests for interpretation of Contract Documents
those will be made in writing by Owner's Authorized
conditions that remove from, add to, or modify these Representative ( or the Architect/Engineer) within
5
any time limits agreed upon or otherwise Owner's Authorizcd Representative ( or
with reasonable promptness. Architect/Engineer) in response to the Contractor's
Interpretations and decisions of the Owner's notices or requests for information, the Contractor
Authorized Representative or must submit a written request to the Owner's
Architect/Engineer) will be consistent with Authorized Representative, setting forth the nature
the intent of and reasonably inferable from and specific extent of the request, including all time
the Contract Documents. Contractor shall not and cost impacts against the Contract as soon as
proceed without direction in writing from the possible, but no later than thirty (30) Days after
Owner's Authorized Representative (or receipt by Contractor of the clarifications or
Architect/Engineer). instructions issued. If the Owner's °-
T— ^
weed
Representative denies Contractor's request for
A.3.4 References to standard specifications, additional compensation, additional Contract Time,
manuals, codes of any technical society, or other relief that Contractor believes results from
organization or association, to the laws or the clarifications or instructions, the Contractor may
regulations of any governmental authority, proceed to file a Claim under Section D.3, Claims
whether such reference be specific or by Review Process. If the Contractor fails to perform
implication, shall mean the latest standard the obligations of Sections A.4.1 to A.4.3, the
specification, manual, code, laws or Contractor shall pay such costs and damages to the
regulations in effect in the jurisdiction where Owner as would have been avoided if the Contractor
the project is occurring on the first published had performed such obligations.
date of the Solicitation Document, except as
may be otherwise specifically stated. A.5 INDEPENDENT CONTRACTOR STATUS
A.4 EXAMINATION OF PLANS,SPECIFICATIONS. The service or services to be performed under this
AND SITE Contract are those of an independent contractor as defined
in ORS 670.600. Contractor represents and warrants that it
A.4.1 It is understood that the Contractor, before is not an officer,employee or agent of the Owner.
submitting an Offer, has made a careful
examination of the Contract Documents; has
become fully informed as to the quality and
quantity of materials and the character of A6 RETIREMENT SYSTEM STATUS AND TAXES
the Work required;_has–participated n the
preconstruction nhaca anri nrharwica Contractor represents and warrants that it is not a
performed as a CM/GC in collaboration with the contributing member of the Public Employees' Retirement
Owner. Owner's Authorized Rep eae_oiattY_. System and will be responsible for any federal or state taxes
and Architect/Engineer; and has made a applicable to payment received under this Contract.
careful examination of the location and Contractor will not be eligible for any benefits from these
conditions of the Work and the sources of Contract payments of federal Social Security, employment
supply for materials. The Owner will in no insurance, workers' compensation or the Public Employees'
case be responsible for any loss or for any Retirement System, except as a self-employed individual.
unanticipated costs that may be suffered by Unless the Contractor is subject to backup withholding,
the Contractor as a result of the Contractor's Owner will not withhold from such payments any amount(s)
failure to acquire full information in advance to cover Contractor's federal or state tax obligations.
in regard to all conditions pertaining to the
A.7 GOVERNMENT EMPLOYMENT STATUSWork. No oral agreement or conversation
with any officer, agent, or personnel of the A.7.1 If this payment is to be charged against federalOwner, or with the Architect/Engineer either
before or after the execution of this Contract,
not currently employed by the Federal Government.shall affect or modify any of the terms or
obligations herein contained.
A.4. 2 Should the Plans or Specifications fail to
A 7 2AJ 1 Contractor represents and warrants thatparticularly describe the materials, kind of
goods, or details of construction of any
Contractor is not an employee of the State of
aspect of the Work, Contractor shall have the Oregon for purposes of performing Work under this
duty to make inquiry of the Owner and
Contract.
Architect/Engineer as to what is required prior
to performance of the Work. Absent SECTION B
Specifications to the contrary, the materials ADMINISTRATION OF THE CONTRACT
or processes that would normally be used to
produce first quality finished Work shall be B.1 OWNER'S ADMINISTRATION OF THE CONTRACT
considered a part of the Contract
requirements. 6.1.1 The Owner's Authorized Representative will provide
administration of the Contract as described in the
A.4.3 Any design errors or omissions noted by the Contract Documents (1) during construction (2) untilContractorshallbereportedpromptlytothefinalpaymentisdueand (3) during the one-year
Owner's Authorized Representative, including period for correction of Work. The Owner's
without limitation, any nonconformity with Authorized Representative will act on behalf of the
applicable laws, statutes, ordinances, building Owner to the extent provided in the Contract
codes, rules and regulations. Documents, unless modified in writing in accordance
with other provisions of the Contract. In performing
A.4.4 If the Contractor believes that additional cost these tasks, the Owner 's Authorized
or Contract Time is involved because of Representative may rely on the Owner's_Authorize.d
clarifications or instructions issued by the Reoresenta e—ArchitecUEngineer or other
6
consultants to perform some or all of these construction and to mitigate any adverse impacts to
tasks. the project, including those caused by authorized
changes, which may affect cost,schedule,or quality.
B.1.2 The Owner's Authorized Representative will
visit the site at intervals appropriate to the B.2.3 The Contractor is responsible for the actions of all its
stage of the Contractor's operations (1) to personnel, laborers, suppliers, and Subcontractors
become generally familiar with and to keep on the project. The Contractor shall enforce strict
the Owner informed about the progress and discipline and good order among Contractor's
quality of the portion of the Work employees and other persons carrying out the Work.
completed, (2) to endeavor to guard the The Contractor shall not permit employment of
Owner against defects and deficiencies in persons who are unfit or unskilled for the tasks
the Work, and (3) to determine in general if assigned to them.
Work is being performed in a manner
B. 3 MATERIALS AND WORKMANSHIPindicatingthat the Work, when fully
completed, will be in accordance with the
Contract Documents.The Owner's Authorized B.3.1 The intent of the Contract Documents is to
Representative will not make exhaustive or provide for the construction and completion in
continuous on-site inspections to check the every detail of the Work described. All Work shall
quality or quantity of the Work. The be performed in a professional manner and unless
Owner's Authorized Representative will the means or methods of performing a task are
neither have control over or charge of, nor specified elsewhere in the Contract Documents,
be responsible for the construction means, Contractor shall employ methods that are
methods, techniques, sequences or generally accepted and used by the industry, in
procedures, or for the safety precautions accordance with industry standards.
and programs in connection with the Work.
B.3. 2 The Contractor is responsible to perform the Work as
B.1.3 Except as otherwise provided in the Contract required by the Contract Documents. Defective
Documents or when direct communications Work shall be corrected at the Contractor's expense.
have been specifically authorized, the Owner
and Contractor shall endeavor to communicate B.3. 3 Work done and materials fumished shall be subject
with each other through the Owner's to inspection and/or observation and testing by the
Authorized Representative or designee about Owner's Authorized Representative to determine if
matters arising out of or relating to the they conform to the Contract Documents. Inspection
Contract. Communications by and with the of the Work by the Owners Authorized
Architect/Engineer's consultants shall be Representative does not relieve the Contractor of
through the Architect/Engineer. responsibility for the Work in accordance with the
Communications by and with Subcontractors Contract Documents.
and material suppliers shall be through the
6,3.4 Contractor shall furnish adequate facilities, asContractor. Communications by and with
required, for the Owner's Authorized Representativeseparatecontractorsshallbethroughthe
to have safe access to the Work including withoutOwner's Authorized Representative.
limitation walkways, railings, ladders, tunnels, and
6.1.4 Based upon the Architect/Engineer's platforms. Producers, suppliers, and fabricators shall
evaluations of the Contractors Application for also provide proper facilities and access to their
Payment, or unless otherwise stipulated by facilities.
the Owner's Authorized Representative, the
Architect/Engineer will review and certify the B.3.5 The Contractor shall furnish Samples of materials for
amounts due the Contractor and will issue testing by the Owner's Authorized Representative
Certificates for Payment in such amounts. and include the cost of the Samples in the Contract
Price.
B.2 CONTRACTOR'S MEANS AND
METHODS: MITIGATION OF B.4 PERMITS
IMPACTS
Contractor shall obtain and pay for all necessary
B.2.1 The Contractor shall supervise and direct the permits and licenses, except for those specifically excluded
Work, using the Contractor's best skill and
in the Supplemental General Conditions,for the construction
attention. The Contractor shall be solely of the Work,for temporary obstructions,enclosures,opening
responsible for and have control over
of streets for pipes,walls,utilities,environmental Work,etc.,
construction means, methods, techniques, as required for the project. Contractor shall be responsible
sequences and procedures and for for all violations of the law, in connection with the
coordinating all portions of the Work under construction or caused by obstructing streets,sidewalks or
the Contract, unless the Contract Documents
otherwise. Contractor shall give all requisite notices
give other specific instructions concerning to public authorities. The Contractor shall pay all royalties
these matters. If the Contract Documents give
and license fees. The Contractor shall defend all suits qr
specific instructions concerning construction claims for infringement of any patent or other proprietary
means, methods, techniques, sequences or
rights and save harmless and blameless from loss,on
reaccount thereof, the State of OrcgonCi LLake_proceduf, the Contaator shall evaluate the
Oswego, and its departments, divisions, members andjobsitesafetythereoffand, except as stated
below, shall be fully and solely responsible for employees.
the jobsite safety of such means, methods, B.5 COMPLIANCE WITH GOVERNMENT LAWS AND
techniques,sequences or procedures. REGULATIONS
B.2. 2 The Contractor is responsible to protect and B.5.1 Contractor shall comply with all federal, state andmaintain the Work during the course of
7
local laws, codes, regulations and breach of Contract and constitute grounds for
ordinances applicable to the Work and the Contract termination. Damages or costs resulting
Contract. Failure to comply with such from such noncompliance shall be the responsibility
requirements shall constitute a breach of of Contractor.
Contract and shall be grounds for Contract
termination. Without limiting the generality of B.6 SUPERINTENDENCE
the foregoing, Contractor expressly agrees to
comply with the following as applicable: i) Contractor shall keep on the site, during the progress of
Title VI and VII of Civil Rights Act of 1964, the Work, a competent superintendent and any necessary
as amended; (ii) Section assistants who shall be satisfactory to the Owner and who
503 and 504 of the Rehabilitation Act of shall represent the Contractor on the site. Directions given
1973, as amended; (Hi) the Health to the superintendent by the Owner's Authorized
Insurance Portability and Accountability Act Representative shall be confirmed In writing to the
of 1996; (iv) the Americans with Disabilities Contractor.
Act of 1990, as amended; (v) ORS
Chapter 659A; as amended (vi) all B. 7 INSPECTION
regulations and administrative rules
established pursuant to the foregoing laws; B.7.1 Owner and Owner's Authorized Representative shall
and (vii) all other applicable requirements of have access to the Work at all times.
federal and state civil rights and rehabilitation
statutes, rules and regulations. Owner's B. 7.2 Inspection of the Work will be made by the Owner
performance under the Contract is an.d the Owner's Authorized Representative at its
conditioned upon Contractor's compliance discretion. The Owner's Authorized Representative
with the provisions of ORS 279C.505, will have authority to reject Work that does not
279C.510, 279C.515, 279C.520, and conform to the Contract Documents. Any Work
279C.530, which are incorporated by found to be not in conformance with the Contract
reference herein. Contractor shall comply Documents, in the discretion of the Owners
with all applicable requirements of federal Authorized Representative, shall be removed and
and state civil rights and rehabilitation replaced at the Contractor's expense. Contractor
statutes,rules and regulations;and shall make or obtain at the appropriate time all
tests, inspections and approvals of portions of the
a) Contractor shall not discriminate against Work required by the Contract Documents or by
Disadvantaged, Minority, Women or laws, ordinances, rules, regulations or orders of
Emerging Small Business enterprises, as public authorities having jurisdiction. Unless
those terms are defined in ORS 200.005, otherwise provided, the Contractor shall make
or a business enterprise that is owned or arrangements for such tests, inspections and
controlled by or that employs a disabled approvals with an independent testing laboratory or
veteran, as that term is defined in ORS entity acceptable to the Owner, or with the
408.225, in the awarding of appropriate public authority, and shall bear all related
subcontracts.costs of tests, inspections and approvals. Tests or
inspections conducted pursuant to the Contract
b) Contractor shall maintain, in current and Documents shall be made promptly to avoid
valid form, all licenses and certificates unreasonable delay in the Work. The Contractor
required by law, regulation, or this shall give the Owner's Authorized Representative
Contract when performing the Work. timely notice of when and where tests and
inspections are to be made so that the Owner's
B.5.2 Unless contrary to federal law, Contractor Authorized Representative may be present for such
shall certify that it shall not accept a bid procedures. Required certificates of testing,
from Subcontractors to perform Work as inspection or approval shall, unless otherwise
described in ORS required by the Contract Documents, be secured by
701.005 under this Contract unless such the Contractor and promptly delivered to the Owner's
Subcontractors are registered with the Authorized Representative.
Construction Contractors Board in accordance
with ORS 701.035 to 701.055 at the time B.7.3 As required by the Contract Documents, Work done
they submit their bids to the Contractor. or material used without inspection or testing by the
Owner ' . •. may be
B.5.3 Unless contrary to federal law, Contractor ordered removed at the Contractor's expense.
shall certify that each landscape contractor,
as defined in ORS 671.520(2), performing B.7.4 If directed to do so any time before the Work is
Work under this Contract holds a valid accepted, the Contractor shall uncover portions of
landscape contractor's license issued pursuant the completed Work for inspection. After inspection,
to ORS 671.560. the Contractor shall restore such portions of Work to
the standard required by the Contract. If the Work
B. 5.4 The following notice is applicable to uncovered is unacceptable or was done without
Contractors who perform excavation Work.sufficient notice to the Owner's Authorized
ATTENTION: Oregon law requires you to Representative, the uncovering and restoration shall
follow rules adopted by the Oregon Utility be done at the Contractor's expense. If the Work
Notification Center. Those rules are set forth uncovered is acceptable and was done with sufficient
in OAR 952-001-0010 through OAR 952-001- notice to the Owner's Authorized Representative, the
0090. You may obtain copies of the rules uncovering and restoration will be paid for as a
by calling the center at(503)232-1987. Change Order.
B.5.5 Failure to comply with any or all of the B.7.5 If any testing or inspection reveals failure of the
requirements of B.5.1 through B.5.5 shall be a portions of the Work to comply with requirements
8
established by the Contract Documents, all B.11 SUBCONTRACTS AND ASSIGNMENT
costs made necessary by such failure,
including those of repeated procedures and B.11.1 Contractor shall require each Subcontractor, to the
compensation for Ownet,-„_the Owner's extent of the Work to be performed by the
Authorized Representative's and Subcontractor, to be bound by the terms and
Architect/Engineer's services and expenses, conditions of these General Conditions, and to
shall be at the Contractor's expense. assume toward the Contractor all of the obligations
and responsibilities which the Contractor assumes
B.7.6 When the United States government toward the Owner thereunder, unless (1) the same
participates in the cost of the Work, or the are clearly inapplicable to the subcontract at issue
because of legal requirements or industry practices,
or private organizations, or if any portion of or (2) specific exceptions are requested by
the—Werk is being performed for a third Contractor and approved in writing by Owner.
Where appropriate, Contractor shall require each
facilities, reproeentativsc s those Subcontractor to enter into similar agreements with
organizations have the right to inspect the sub-subcontractors at any level.
Work affecting their interests or property.
Their right to inspect shall not make them a B.11.2 At Owner's request, Contractor shall submit to
gyp +"^–C^^'r_ cr.'s! c.".z!! ^ c' interfere Owner prior to their execution either Contractor's
with the rights of the parties of the form of subcontract, or the subcontract to be
Contract. Instructions or orders of such executed with any particular Subcontractor. If Owner
parties shall be transmitted to the disapproves such form, Contractor shall not execute
1.: •- e . •- ' •_ _ _ the form until the matters disapproved are resolved
Representative. to Owner's satisfaction. Owner's review, comment
upon or approval of any such form shall not relieve
B.8 SEVERABILITY Contractor of its obligations under this Agreement or
be deemed a waiver of such obligations of
If any provision of this Contract is declared by a Contractor.
court to be illegal or in conflict with any law, the
validity of the remaining terms and provisions shall 8.11.3 Contractor shall not assign, sell, or transfer its rights,
not be affected and the rights and obligations of the or delegate its responsibilities under this Contract, in
parties shall be construed and enforced as if the whole or in part, without the prior written approval of
Contract did not contain the particular provision the Owner. No such written approval shall relieve
held to be invalid. Contractor of any obligations of this Contract, and
B.9 ACCESS TO RECORDS any transferee shall be considered the agent of the
Contractor and bound to perform in accordance with
B.9.1 Contractor shall keep, at all times on the the Contract Documents. Contractor shall remain
Work site, one record copy of the complete
liable as between the original parties to the
Contract Documents, including the Plans, Contract as if no assignment had occurred.
Specifications, Change Orders and addenda, B.12 SUCCESSORS IN INTEREST
in good order and marked currently to record
field changes and selections made during The provisions of this Contract shall be binding uponconstruction, and one record copy of Shop and shall accrue to the benefit of the parties to the
Drawings, Product Data, Samples and similar Contract and their respective permitted successors
submittals, and shall at all times give the and assigns.
Owner's Authorized Representative access
thereto. B.13 OWNER'S RIGHT TO DO WORK
B.9.2 Contractor shall retain and the Owner and its Owner reserves the right to perform other or
duly authorized representatives shall have additional work at or near the project site with other forces
access to, for a period not less than ten (10) than those of the Contractor. If such work takes place
years, all Record Documents, financial and within or next to the project site, Contractor will
accounting records, and other books, coordinate work with the other contractors or forces,
documents, papers and records of Contractor cooperate with all other contractors or forces, carry out
which are pertinent to the Contract including the Work in a way that will minimize interference and
records pertaining to Overhead and indirect delay for all forces involved, place and dispose of
costs, for the purpose of making audit, materials being used so as not to interfere with the
examination, excerpts and transcripts. If for operations of another, and join the Work with the work of
any reason, any part of the Contract is the others in an acceptable manner and perform it in proper
involved in litigation, Contractor shall retain all sequence to that of the others. The Owners ^ +, zed
such records until all litigation is resolved. Representative will resolve any disagreements that mayTheOwnerand/or its agents shall continue to arise between or among Contractor and the otherbeprovidedfullaccesstotherecordsduringcontractorsoverthemethodororderof doing all worklitigation. including the Work). In case of unavoidable interference,
B.10 WAIVER the Owner's Authorized Representative will establish work
priority ( including the Work) which generally will be in
Failure of the Owner to enforce any provision
the sequence that the contracts were awarded.
of this Contract shall not constitute a waiver or B.14 OTHER CONTRACTS
relinquishment by the Owner of the right to such
performance in the future nor of the right to enforce In all cases and at any time,the Owner has the right to
any other provision of this Contract.execute other contracts related to or unrelated to the Work of
this Contract. The Contractor of this Contract will fully
9
cooperate with any and all other contractors proceedings based on the claim.dispute or other
without additional cost to the Owner in the matter in question,manner described in section B.13.
B.15 GOVERNING LAW B.16.3 The foregoinj agreement to arbitrate and other
This Contract shall be governed by and agreements to arbitrate with an additio_al nerson_or
construed in accordance with the laws of the State of entity duly consented to by narties of his A erit
Oregon without regard to principles of conflict of laws. shall be specifically enforceable_in accordance with
applicable law in any court haying jurisdiction thereof.B.16 Lon GATIONARBITRATION
Any Claim betwec._, n.. :r c , `ontractor B,16,4. The award rendered by the arbitrator(s)shall
that arises from or relates to this Contract and be final,and judgement may be entered upon it in
that is not resolved through the Claims Review accordance with applicable.law in any court having
jurisdiction thereof,
conducted solely and exclusively within the
Circuit Court of Clackamas County for the B.17 ATTORNEY FEES
State of Oregon; provided, however, if a
Claim must be brought in a federal forum, The parties to this Contract expressly waive and
L L_brought any rights either has to recover attorney fees andthenit,.hal„ b. brought and conducted solely costs and, expert fees and costs incurred in connection with
and exclu i 'al v.-it-hi::the United States District any and all disputes or claims of any kind arising out of the
Court for the District of Oregon. In no event Project, including,without limitation,any rights to recover
shall this section be construe' a::'a'.:'^:' such fees and costs granted by any federal or state statute,
rregulation,or rule,including,but not limited to lientheStateofOregc.on a-- ,,....Cr
v
defense or statutes. This waiver and release applies to any and all
b: ::"u:.'::•„ claims of any kind,regardless of legal or equitable theory,
governmental b=unity, immunity based on the and applies to fees and costs incurred before,during and
Eleventh Amendment to the Constitution of after any mediation,arbitration, or court proceeding. This
paragraph shall not be interpreted to prohibit recovery oftheUnitedStatesorotherwise, from any claim attorney fees as indemnity damages as described in the
or from the jurisdiction of any court.indemnification section of this Contract.
CONTRACTOR. l Y EXECUTION OF THIS
CONTRACT HEREBY CONSENTS TO THE Ifapplicable law prevents either party's or both parties'full
IN PERSONA".! n m'o'ICTION OF THE waiver of attorney fees as provided in this section,then this
O•'--••--V1iE section shall be inapplicable,only as to that action covered
COURT' nEFEI'E CED:";Tlll SE^TION by the applicable law,and the prevailing party in any
B;}(7 dispute shall be awarded their reasonable attorney fees
13 16,1 The narties have selected arbitration as and costs and expert fees and costs incurred pre-trial,
during trial or arbitration,upon any appeal,petition forthemethodforbindingdisputeresolutioninthisreviewanduponanybankruptcy,insolvency or collection.
A,greement_Any claim,dispute or other matter
in qua.ti'" ^i±r'out of or related to this B.18 ALLOWANCES
Agree ent subject to,but not resolved by,
B.18.1 The Contractor shall include in the Contract Price all
p ediation shall be sub_ect t. . bitration,which allowances stated in the Contract Documents. Items
unless the parties mutually agree otherwiset,covered by allowances shall be supplied for such
shall be administered by the Oregon Mediation amounts and by such persons or entities as the
Service.with its construction mediation. Owner may direct.
procedures in effect on the date of the_ B.18.2 Unless otherwise provided in the Contract
agreement. A demand for arbitration shall be Documents:
made in writing,delivered to the other party tp_
a) when finally reconciled, allowances shall coverthisAgreement.and filed with the person or
the cost to the Contractor of materials and
e t'ty admin' tering the arbitration equipment delivered at the site and all required
taxes,less applicable trade discounts;
B.16,2 A demand for arbitration shall be made
no earlier than concurrent) .ith the filin• of a b) Contractor's costs for unloading and handling at
the site, labor, installation costs, Overhead,
Lequest furmediation _.in no event shall it be profit and other expenses contemplated for
made after the date when the institution o_f legal_stated allowance amounts shall be included in
or equitable_proceedings based on the claim, the Contract Price but not in the allowances;
disputer other matter in que. on would be c) whenever costs are more than or less than
harred by the applicableatute of limitations_ allowances, the Contract Price shall be adjusted
For statute of limitations purposes receipt of a accordingly by Change Order. The amount of
the Change Order shall reflect (i) the differencewrittendtrnandforarbitrationbythepersonof
between actual costs and the allowances under
entice administering the arbitration shall. Section B.17.2(a) and (2) changes in
constitute the institution of legal or equitable Contractor's costs under Section B.17.2( b).
10
d) Unless Owner requests otherwise, Contract Documents. The Architect/Engineer's
Contractor shall provide to Owner a approval of a specific item shall not indicate
proposed fixed price for any allowance approval of an assembly of which the item is a
work prior to its performance. component. Informational submittals upon which
the Architect/Engineer is not expected to take
responsive action may be so identified in the
B.19 SUBMITTALS.SHOP DRAWINGS.PRODUCT Contract Documents. Submittals which are not
DATA AND SAMPLES required by the Contract Documents may be
retumed by the Architect/Engineer without action.
B.19.1 The Contractor shall prepare and keep
current, for the Architect's/Engineer's B.19.3 The Contractor shall review for compliance with
approval (or for the approval of Owner's the Contract Documents, approve and submit to
Authorized Representative if approval the Architect/Engineer Shop Drawings, Product
Data, Samples and similar submittals requiredArshitestiEngiaeer), a schedule and list of by the Contract Documents with reasonable
submittals which is coordinated with the promptness and in such sequence as to cause
Contractor's construction schedule and allows no delay in the Work or in the activities of the
the Architect/Engineer reasonable time to Owner or of separate contractors. Submittals
review submittals. Owner._vit _the Owner's which are not marked as reviewed for
Authorized Representative's assistance compliance with the Contract Documents and
reserves the right to finally approve the approved by the Contractor may be retumed by
schedule and list of submittals. Submittals the Architect/Engineerwithoutaction.
include, without limitation, Shop Drawings,
Product Data, and Samples which are B. 19.4 By approving and submitting Shop
described below: Drawings, Product Data,Samples and similar
submittals,the Contractor represents that the
a) Shop Drawings are drawings, diagrams, Contractor has determined and
schedules and other data specially verified materials, field
prepared for the Work by the measurements and field construction criteria
Contractor or a Subcontractor related thereto, or will do so, and has
including any sub- checked and coordinated the information
subcontractor), manufacturer, supplier contained within such submittals with the
or distributor to illustrate some portion requirements of the Work and of the Contract
of the Work. Documents.
b) Product Data are illustrations, B.19. 5 The Contractor shall perform no portion of the
standard schedules, performance Work for which the Contract Documents require
charts, instructions, brochures, submittal and review of Shop Drawings, Product
diagrams and other information Data, Samples or similar submittals until the
furnished by the Contractor to respective submittal has been approved by the
illustrate materials or equipment for Architect/Engineer.
some portion of the Work.
B.19.6 The Work shall be in accordance with approved
c) Samples are physical examples which submittals except that the Contractor shall not
illustrate materials, equipment or be relieved of responsibility for deviations from
workmanship and establish standards requirements of the Contract Documents by the
by which the Work will be judged. Architect/Engineer's review or approval of Shop
Drawings, Product Data, Samples or similar
B.19.2 Shop Drawings, Product Data, Samples submittals unless the Contractor has specifically
and similar submittals are not Contract informed the Architect/Engineer in writing of such
deviation at the time of submittal and (i) theDocuments. The purpose of their submittal
is to demonstrate for those portions of the Architect/Engineer has given written approval to
Work for which submittals are required the specific deviation as a minor change in the
by the Contract Documents the way by Work,or
which the Contractor proposes to conform ii) a Change Order has been executed by
to the information given and the design Owner authorizing the deviation. The Contractor
concept expressed in the Contract shall not be relieved of responsibility for errors or
Documents. Review of submittals by the omissions in Shop Drawings, Product Data,
Architect/Engineer is not conducted for the Samples or similar submittals by the
purpose of determining the accuracy and Architect/Engineer's review or approval thereof.
completeness of other details such as
B.19.7 In the event that Owner elects not to have thedimensionsandquantities, or for
substantiating instructions for installation or obligations and duties described under this
performance of equipment or systems, or Section B.18 performed by the Architect/Engineer;
for approval of safety precautions or, or in the event no Architect/Engineer is employed
unless otherwise specifically stated by by Owner on the project, all obligations and duties
the Architect/Engineer, of any construction assigned to the Architect/Engineer hereunder shall
means, methods, techniques, sequences be performed by the Owner's Authorized
or procedures, all of which remain the Representative.
responsibility of the Contractor as B.20 SUBSTITUTIONSyLt1ContractDocuments. The
Architect/Engineer's review of the
The Contractor may make Substitutions only with theContractor's submittals shall not relieve consent of the Owner, after evaluation by the Owner'stheContractor of its obligations under the
11
Authorized Representative and 4rchitecLLEngllr ,eer, ORS 279C.800 through 279C.870. Documents
and only in accordance with a Change Order. establishing those conditions, as determined by the
Substitutions shall be subject to the requirements of Commissioner of the Bureau of Labor and Industries
the bid documents. By making requests for BOLI), are included as attachments to or are
Substitutions, the Contractor represents that the incorporated by reference in the Contract Documents.
Contractor has personally investigated the proposed Contractor shall pay workers at not less than the
substitute product; represents that the Contractor will specified minimum hourly rate of wage, and shall include
provide the same warranty for the Substitution that that requirement in all subcontracts.
the Contractor would for the product originally
specified unless approved otherwise; certifies that C. 2 PAYROLL CERTIFICATION;
the cost data presented is complete and includes all ADDITIONAL RETAINAGE;FEE
related costs under this Contract including redesign REQUIREMENTS
costs, and waives all claims for additional costs
related to the Substitution which subsequently C.2.1 In accordance with ORS 279C.845, the Contractor
become apparent; and will coordinate the installation and every Subcontractor shall submit written
of the accepted Substitution, making such changes certified statements to the Owner's Authorized
as may be required for the Work to be completed in all Representative, on the form prescribed by the
respects. Commissioner of the Bureau of Labor and
Industries, certifying the hourly rate of wage paid
B.21 USE OF PLANS AND SPECIFICATIONS each worker which the Contractor or the
Subcontractor has employed on the project and
Plans, Specifications and related Contract further certifying that no worker employed on the
Documents furnished to Contractor by Owner project has been paid less than the prevailing rate
or Owner's Architect/Engineer of wage or less than the minimum hourly rate of
shall be used solely for the performance of the wage specified in the Contract, which certificate
Work under this Contract.Contractor and its and statement shall be verified by the oath of the
Subcontractors and suppliers are authorized to use Contractor or the Subcontractor that the Contractor
and reproduce applicable portions of such or Subcontractor has read the certified statement,
documents appropriate to the execution of that the Contractor or Subcontractor knows the
the Work, but shall not claim any ownership or other contents of the certified statement and that to the
interest in them beyond the scope of this Contract, Contractor's or Subcontractor's best knowledge
and no such interest shall attach. Unless and belief the certified statement is true. The
otherwise indicated,all common law,statutory and other certified statements shall set out accurately and
reserved rights, in addition to copyrights, are completely the payroll records for the prior week
retained by Owner. including the name and address of each worker,
the worker's correct classification, rate of pay,
B.22 FUNDS AVAILABLE AND AUTHORIZED daily and weekly number of hours worked,
deductions made and actual wages paid. Certified
Owner reasonably believes at the time of statements for each week during which the
entering into this Contract that sufficient funds are Contractor or Subcontractor has employed a
available and authorized for expenditure to finance worker on the project shall be submitted once a
the cost of this Contract within the Owner's month, by the fifth business day of the following
appropriation or limitation. Contractor understands month.
and agrees that, to the extent that sufficient funds
are not available and authorized for expenditure The Contractor and Subcontractors shall preserve
to finance the cost of this Contract, Owner's payment the certified statements for a period of ten (10)
of amounts under this Contract attributable to years from the date of completion of the Contract.
Services performed after the last day of the current
biennium is contingent on Owner receiving from the C.2.2 Pursuant to ORS 279C.845(7),the Owner shall
Oregon Legislative A,scmblyCity._ Council retain 25 percent of any amount earned by the
appropriations, limitations or other expenditure Contractor on this public works project until the
authority sufficient to allow Owner, in the exercise of Contractor has filed the certified statements
its reasonable administrative discretion, to continue to required by section
make payments under this Contract. C.2.1. The Owner shall pay to the Contractor
the amount retained under this subsection within 14
B.23 NO THIRD PARTY BENEFICIARIES days after the Contractor files the required certified
statements, regardless of whether a
Owner and Contractor are the only parties to Subcontractor has failed to file certified statements.
this Contract and are the only parties entitled to
enforce its terms. Nothing in this Contract gives, is C.2.3 Pursuant to ORS 279C.845(8), the Contractor
intended to give, or shall be construed to give or shall retain 25 percent of any amount earned by a
provide any benefit or right, whether directly, first-tier Subcontractor on this public works
indirectly, or otherwise, to third persons unless such project until the first-tier Subcontractor has filed
third persons are individually identified by name with the Owner the certified statements required
herein and expressly described as intended by C.2.1. Before paying any amount retained
beneficiaries of the terms of this Contract.under this subsection, the Contractor shall verify
that the first-tier Subcontractor has filed the
SECTION C certified statement, Within 14 days after the first-
WAGES AND LABOR tier Subcontractor files the required certified
statement the Contractor shall pay the first-tier
C.1 MINIMUM WAGE RATES ON PUBLIC WORKS Subcontractor any amount retained under this
subsection.
Contractor shall comply fully with the
provisions of C.2.4 In accordance with statutory requirements, and
12
administrative rules promulgated by the Subject Employee' only if that employee will be
Commissioner of the Bureau of Labor and working on the project job site.
Industries, the fee required by ORS
279C.825(1) will be paid by Owner to the b) Contractor shall require each
Commissioner. Subcontractor providing labor for the project to:
1) Demonstrate to the Contractor that it has
C.3 PROMPT PAYMENT AND CONTRACT a Qualifying Employee Drug TestingCONDITIONSProgramfortheSubcontractor's Subject
Employees, and represent and warrant toC.3.1 Pursuant to ORS 279C.505 and as a
the Contractor that the QualifyingconditiontoOwner's performance hereunder, Employee Drug Testing Program is intheContractorshall:
place at the time of subcontract
C.3.1. 1 Make payment promptly, as due, to all
execution and will continue in full force
persons supplying to Contractor labor and effect for the duration of the
or materials for the prosecution of the
subcontract,or
Work provided for in this Contract. 2) Require that the Subcontractor's Subject
C.3.1.2 Pay all contributions or amounts due the Employees participate in the Contractor s
State Industrial Accident Fund from Qualifying Employee Drug Testing
such Contractor or Subcontractor Program for the duration of the
incurred in the performance of the
subcontract.
Contract.
C.3.2 Pursuant to ORS 279C.515, and as a condition
C.3.1.3 Not permit any lien or claim to be filed or
to Owners performance hereunder, Contractor
prosecuted against the Owner on
agrees:
account of any labor or material C.3.2.1 If Contractor fails, neglects or refuses to payfumished. Contractor will not assign promptly a person's claim for labor or
any claims that Contractor has services that the person provides to the
against Owner, or assign any sums Contractor or a Subcontractor in connectionduebyOwner, to Subcontractors,
with the project as such claim becomes due,
suppliers, or manufacturers, and will not the proper officer that represents the Owner
make any agreement or act in any way may pay the amount of the claim and chargetogiveSubcontractorsaclaimortheamountofthepayment against funds due
standing to make a claim against the
or to become due Contractor under thisOwner.
Contract. Paying a claim in this manner shall
C.3.1.4 Pay to the Department of Revenue all not relieve the Contractor or the Contractor's
sums withheld from employees pursuant surety from obligation with respect to an
to unpaid claim.
ORS 316.167. C.3.2.2 If the Contractor or a first-tier Subcontractor
C.3.1.5 Demonstrate that an employee drug fails, neglects or refuses to pay a person
testing program is in place as follows: that provides labor or materials in connection
with the public contract for a public
a) Contractor represents and warrants improvement within thirty (30) Days after
that Contractor has in place at the time receiving payment from Owner or a contractor,
of the execution of this Contract, and the contractor or first-tier Subcontractor owes
shall maintain during the term of this the person the amount due plus interest
Contract, a Qualifying Employee Drug charges that begin at the end of the 10
Testing Program for its employees that Day period within which payment is due
includes, at a minimum,the following: under ORS 279C.580(3) and that end upon
final payment, unless payment is subject to
1) A written employee drug testing a good faith dispute as defined in ORS
policy, 279C.580. The rate of interest on the
amount due is nine percent per annum. The
2) Required drug testing for all new amount of interest may not be waived.
Subject Employees or, C.3.2.3 If the Contractor or a Subcontractor fails,alternatively, required testing of all
Subject Employees every 12 neglects or refuses to pay a person that
months on a random selection
provides labor or materials in connection
with the Contract, the person may file abasis,and
complaint with the Construction Contractors
3) Required testing of a Subject Board, unless payment is subject to a good
Employee when the Contractor faith dispute as defined in ORS 279C.580.
has reasonable cause to believe Every contract related to this Contract must
the Subject Employee is under the contain a similar clause.
influence of drugs. C.3.3 Pursuant to ORS 279C.580, Contractor shall
include in each subcontract for property or
A drug testing program that meets the above services the Contractor enters into with a first-tier
requirements will be deemed a "Qualifying Subcontractor, including a material supplier, for
Employee Drug Testing Program." For the the purpose of performing a construction contract:
purposes of this section, an employee is a
a) A payment clause that obligates the
13
Contractor to pay the first-tier such clauses in their subcontracts and supply
Subcontractor for satisfactory contracts.
performance under the subcontract
within ten C.3. 4 All employers, including Contractor, that employ10)Days out of amounts the Owner subject workers who work under this contract in the
pays to the Contractor under the State of Oregon shall comply with ORS 656.017
Contract; and provide the required Workers' Compensation
coverage, unless such employers are exempt underb) A clause that requires the Contractor ORS 656.126. Contractor shall ensure that each of
to provide the first-tier Subcontractor its Subcontractors complies with these requirements.
with a standard form that the first-tier
Subcontractor may use as an C.4 PAYMENT FOR MEDICAL CARE
application for payment or as another
method by which the Subcontractor Pursuant to ORS 279C.530, and as a condition to
may claim a payment due from the Owner's performance hereunder, Contractor shall promptly,
Contractor; as due, make payment to any person, partnership,
c) A clause that requires the Contractor, association or corporation furnishing medical, surgical, and
except as otherwise provided in this hospital care or other needed care and attention, incident to
paragraph, to use the same form and sickness or injury, to the employees of such Contractor,
regular administrative procedures for all sums of which the Contractor agrees to pay for such
processing payments during the entire services and all moneys and sums which the Contractor
term of the subcontract. The Contractor has collected or deducted from the wages of personnel
may change the form or the regular pursuant to any law, contract or agreement for the
administrative procedures the Contractor purpose of providing or paying for such services.
uses for processing payments if the
Contractor: C.5 HOURS OF LABOR
1) Notifies the Subcontractor in writing at As a condition to Owner's performance hereunder,
least Contractor shall comply with ORS 279C.520, as
45 days before the date on amended from time to time and incorporated herein by this
which the Contractor makes the reference:
change;and
Pursuant to ORS 279C.520 and as a condition to
2) Includes with the written notice a Owner's performance hereunder, no person shall be
copy of the new or changed form employed to perform Work under this Contract for more
or a description of the new or than ten(10) hours in any one day or forty (40) hours in
changed procedure. any one week, except in cases of necessity,emergency or
where public policy absolutely requires it. In such
d) An interest penalty clause that obligates instances, Contractor shall pay the employee at least time
the Contractor, if the Contractor does and a half pay:
not pay the first-tier Subcontractor within
thirty (30) Days after receiving payment a) For all overtime in excess of eight(8) hours
from Owner, to pay the first-tier a day or forty(40) hours in any one week
Subcontractor an interest penalty on when the work week is five consecutive
amounts due in each payment the Days,
Contractor does not make in accordance Monday through Friday;or
with the payment clause included in the
subcontract under paragraph (a) of this b) For all overtime in excess of ten (10) hours
subsection. Contractor or first-tier a day or forty (40) hours in any one week
Subcontractor is not obligated to pay an when the work week is four consecutive
interest penalty if the only reason that Days,
the Contractor or first-tier Subcontractor Monday through Friday;and
did not make payment when payment
c) For all Work performed on Saturday and onwasdueisthat the Contractor or first-tier
any legal holiday specified in ORSSubcontractordidnotreceivepaymentanyle
279C.540.from Owner or Contractor when
payment was due. The interest penalty This section C.5 will not apply to Contractor's Workappliestotheperiodthatbeginsonthe
under this Contract if Contractor is currently a party to adayaftertherequiredpaymentdateand
collective bargaining agreement with any labor organization.that ends on the date on which the
amount due is paid; and is computed at This Section C.5 shall not excuse Contractor fromtheratespecifiedinORS279C.515(2). completion of the Work within the time required under
e) A clause which requires each of •
this Contract.
Contractor's Subcontractors to include,
in each of their contracts with lower-tier SECTION D
Subcontractors or suppliers, provisions to CHANGES IN THE
the effect that the first- tier WORK
Subcontractor shall pay its lower-tier
Subcontractors and suppliers in D.1 CHANGES IN WORK
accordance with the provisions of
paragraphs (a) through D.1.1 Contractor shall utilize owncr owner-provided
d) above and requiring each of their Construction Change Issues Log (CCI Log) via
Subcontractors and suppliers to include smartsheet.com to manage all changes to the GMP
14
contingency with owner authorization. The for Change Order Work. In fixed pricing the basis of
terms of this Contract shall not be waived, payments or total price shall be agreed upon in writing
altered, modified, supplemented or between the parties to the Contract,and shall be
amended in any manner whatsoever established before the Work is done whenever
without prior written approval of the feasible. The mark-ups set forth in D.1.3(c)shall
Owner's Authorized Representative, and be utilized by the parties as a guide in establishing
then only in a manner consistent with the fixed pricing,and will not be exceeded by Owner
Change Order provisions of this Section without adequate justification. Cost and price data
D.1 and after any necessary approvals relating to Change Orders shall be supplied by
required by public contracting laws have Contractor to Owner upon request, but Owner shall
been obtained. Otherwise, a formal be under no obligation to make such requests.
c) In the event that unit pricingand fixed ricin are notcontractamendmentisrequired, which utilized,then Chane Ordr Work shall be performed
shall not be effective until its execution by on a cost reimbursement basis for Direct Costs.Such
Work shall be compensated on the basis of the actual,the parties to this Contract and all reasonable and allowable cost of labor,equipment,
approvals required by public contracting andmaterial furnished on the Work performed. In
addition the followingmarkups shall be added to thelawshavebeenobtained. Contracior's or Subcntractor's Direct Costs as full
compensation for profit, Overhead and other indirect
costs for Work directly performed with the Contractor'sD.1.2 It is mutually agreed that changes in Plans, or Subcontractor's own forces:
quantities, or details of construction are inherent in
the nature of construction and may be necessary or On Labor 1-510%
desirable during the course of construction. Within the On Equipment 10%
general scope of- this Contract, the Owners On Materials 10%
may at any time, without
When Change Order Work under D.1(c)is invoiced bynoticetothesuretiesandwithoutimpairingthe
an authorized Subcontractor at any level, each ascendingContract, require changes consistent with this tier Subcontractor or Contractor will be allowed a 5%Section D.1. All Change Order Work shall be
supplemental mark-up on each piece of subcontract WorkexecutedundertheconditionsoftheContract
covered by such Change Order. Payments made to theDocuments. Such changes may include, but are not Contractor shall be complete compensation for Overhead,limited to:
profit, and all costs that were incurred by the Contractor or
a) Modification of specifications and by other forces Furnished by the Contractor, including
design. Subcontractors, for Change Order Work. Owner may
b) Increases or decreases in quantities. establish a maximum cost for Change Order Work under
c) Increases or decreases to the this Section D.1.3(c), which shall not be exceeded for
amount of Work. reimbursement without additional written authorization
d) Addition or elimination of any Work from Owner. Contractor shall not be required to complete
item. such Change Order Work without additional authorization.
e) Change in the duration of the D.1.4. Any necessary adjustment of Contract Time that may be
project(f) Acceleration or required as a result of a Change Order must be agreed upon
delay in performance of by the parties before the start of the Change Order Work
Work. unless Owner's—Authorized Representative authorizes
f) Deductive changes Contractor to start the Work before agreement on Contract
Time adjustment.Contractor shall submit any request for
additional compensation (and additional Contract Time if
Deductive changes are those that reduce the scope of Contractor was authorized to start Work before an
the Work, and shall be made by mutual agreement adjustment of Contract Time was approved)as soon as
whenever feasible, as determined by Owner. In cases possible but no later than thirty(30) Days after receipt of the
of suspension or partial termination under Section J, Change Order. If Contractor's request for additional
Owner reserves the right to unilaterally impose a compensation or adjustment of Contract Time is not made
deductive change and to self perform such Work, for within the thirty (30) day time limit, Contractor's requests
which the provisions of B.13 (Owner's Right to Do pertaining to that Change Order are barred. The thirty(30)day
Work)shall then apply. time limit for making requests shall not be extended for any
reason, including without limitation Contractor's claimed
Adjustments in compensation shall be made under inability to determine the amount of additional compensation or
the provisions of D.1.3, in which costs for deductive adjustment of Contract Time,unless an extension is granted in
changes shall be based upon a Direct Costs writing by Owner. If the Owner's Authorized
adjustment together with the related percentage Representative denies Contractor's request for additional
markup specified for profit, Overhead and other compensation or adjustment of Contract Time,Contractor may
indirect costs,unless otherwise agreed to by Owner. proceed to file a Claim under Section D.3, Claims Review
Process. No other reimbursement, compensation,or
D 1.3 The Owner and Contractor agree that Change payment will be made,except as provided in Section 0.1.5 for
Order impact claims.
Work shall be administered and compensated
D.1.5. If any Change Order Work under Section D.1.3 causesaccordingto the following: an increase or decrease in the Contractor's cost of, or thea) Unit pricing may be utilized at the
Contract Time required for the performance of,any other partOwner's option when unit prices or solicitation
of the Work under this Contract, the Contractor must submitalternateswereprovidedthatestablished
a written request to the Owner's Authorized Representative,the cost for additional Work,and a binding setting forth the nature and specific extent of the request,obligation exists under the Contract on the
including all time and cost impacts against the Contract as soonpartiescoveringthetermsandconditionsofthe
asossible,but no later than thirtyadditionalWork. P 30)Days after receipt of
b) If the Owner elects not to utilize unit pricing, the Change Order by Contractor.
or in the event that unit pricing is not available
The thirty (30) daytime limit applies to claims oforappropriate, fixed pricing may be used pp
Subcontractors,suppliers,or manufacturers that may be
15
affected by the Change Order and that request
additional compensation or an extension of Contract D.2 DELAYS
Time to perform; Contractor has responsibility for
contacting its Subcontractors,suppliers,or D.2.1 Delays in construction include "Avoidable Delays",
manufacturers within the thirty (30) day time limit, which are defined in Section D.2.1.1, and
and including their requests with Contractor's Unavoidable Delays", which are defined in
requests. If the request involves Work to be Section D.2.1.2. The effect of Avoidable Delays is
completed by Subcontractors, or materials to be described in Section D.2. 2 and the effect of
furnished by suppliers or manufacturers, such Unavoidable Delays is described in Section D.2. 3.
requests shall be submitted to the Contractor in
writing with full analysis and justification for the D.2.1.1 Avoidable Delays include any delays other
compensation and additional Contract Time requested. than unavoidable Delays, and include
The Contractor will analyze and evaluate the merits delays that otherwise would be considered
of the requests submitted by Subcontractors, Unavoidable Delays but that:
suppliers, and manufacturers to Contractor prior to
including those requests and Contractor's analysis a) Could have been avoided by the
and evaluation of those requests with Contractor's exercise of care, prudence, foresight,
requests for additional compensation or Contract and diligence on the part of the
Time that Contractor submits to the Owner's Contractor or its Subcontractors,
Authorized Representative. Failure of
b) Affect only a portion of the WorkSubcontractors, suppliers, manufacturers or others
and do not necessarily prevent ortosubmittheirrequeststoContractor for inclusion
delay the prosecution of other partswithContractor's requests submitted to Owner's
of the Work nor the completion ofAuthorizedRepresentativewithinthetimeperiod
the whole Work within the Contractandbythemeansdescribedinthissectionshall
Time.constitute a waiver of these Subcontractor claims.
The Owner's Authorized Representative and the
c) Do not impact activities on theOwnerwillnotconsiderdirectrequestsorclaims
accepted critical path schedule.from Subcontractors, suppliers, manufacturers or
others not a party to this Contract.The consideration d) Are associated with the reasonable
of such requests and claims under this section does interference of other contractorsnotgiveanyperson, not a party to the Contract the
employed by the Owner that do notrighttobringaclaimagainsttheStateof
necessarily prevent the completionOregonyLakeOsweao, whether in this claims of the whole Work within the Contractprocess, in litigation, or in any dispute resolution Time.
process.
D.2.1.2 Unavoidable Delays include delays
other than Avoidable Delays that are:
If the Owner's Authorized Representative
denies the Contractor's request for additional a) Caused by any actions of the
compensation or an extension of Contract Owner, Owner's Authorized
Time, the Contractor may proceed to file a Representative, or any other
Claim under Section D.3, Claims Review employee or agent of the Owner, or
Process. by separate contractor employed by
the Owner.
D.1.6 No request or Claim by the Contractor for
additional costs or an extension of Contract b) Caused by any site conditions
Time shall be allowed if made after which differ materially from what
receipt of final payment application under was represented in the Contract
this Contract. Contractor agrees to submit its Documents or from conditions that
final payment application within ninety(90) would normally be expected to
days after Substantial Completion, unless exist and be inherent to the
written extension is granted by Owner. construction activities defined in the
Contractor shall not delay final payment Contract Documents. The Contractor
application for any reason, including without limitation nonpqhaihtnofyStbiLicddtNget'irsektst ItfftA, manufacturers or others n
not obtained written extension by Owner, all Representative immediately of
requests or Claims for additional costs or differing site conditions before the
an extension of Contract Time shall be area has been disturbed. The
waived. Owner's Authorizcd Representative
will investigate the area and make a
D.1.7 It is understood that changes in the Work determination as to whether or not
are inherent in construction of this type. The the conditions differ materially from
number of changes, the scope of those either the conditions stated in the
changes, and the effect they have on the Contract Documents or those which
progress of the original Work could reasonably be expected in
cannot be defined at this time. The execution of this particular
Contractor is notified that numerous changes Contract. If Contractor and the
may be required and that there will be no Owner's Authorized
compensation made to the contractor directly Representative agree that a
related to the number of changes. Each differing site condition exists, any
change will be evaluated for extension of additional compensation or additional
contract time and increase or decrease in Contract Time will be determined
compensation based on its own merit.based on the process set forth in
16
Section D.1.5 for Change Unavoidable Delays described in Section
Order Work.If the Owner's D.2.1.2( a)and(b).
Authorized—Representative
disagrees that a differing b) Contractor may be entitled to additional
site condition exists and Contract Time for Unavoidable Delays
denies Contractor's request described in Section 0.2.1.2(c)and(d).
for additional compensation
or Contract Time, In the event of any requests for additional
Contractor may proceed to file compensation or additional Contract Time, or both,
a Claim under Section D.3, as applicable, arising under this Section D.2. 3 for
Claims Review Process. Unavoidable Delays, other than requests for
c) Caused by Force Majeure additional compensation or additional Contract Time
acts, events or occurrences for differing site conditions for which a review
that could not have been process is established under Section D.2.1.2 ( b),
avoided by the exercise of Contractor shall submit a written notification of the
care, prudence, foresight, delay to the Owner's Authorized Representative
and diligence on the part of the within two(2)Days of the occurrence of the cause of
Contractor or its the delay. This written notification shall state the
Subcontractors. cause of the potential delay, the project components
impacted by the delay, and the anticipated additionald) Caused by adverse weather Contract Time or the additional compensation, or
conditions. Any adverse weather both, as applicable, resulting from the delay. Within
conditions must be substantiated by seven(7)Days after the cause of the delay has beendocumentaryevidencethatweathermitigated, or in no case more than thirty (30) Daysconditionswereabnormalfortheaftertheinitialwrittennotification, the Contractor
specific time period claimed, could shall submit to the Owner's Authorized
not have been anticipated by the Representative, a complete and detailed request for
Contractor, and adversely impacted additional compensation or additional Contract Time,
the project in a manner that could or both,as applicable,resulting from the delay.
not be avoided by rescheduling the If the Owner's - _ enies
Work or by implementing measures Contractor's request for additional compensation or
to protect against the weather so that adjustment of Contract Time, the Contractor maytheWorkcouldproceed. A rain, proceed to file a Claim under Section D.3, Claims
windstorm, high water, or other Review Process.
natural phenomenon for the specific
locality of the Work, which might If Contractor does not timely submit the notices
reasonably have been anticipated required under this Section D.2., then unless
from the previous 10-year historical otherwise prohibited by law, Contractor's Claim
records of the general locality of the shall be barred.
Work, shall not be construed as
abnormal. The parties agree that D.3 CLAIMS REVIEW PROCESS
rainfall greater than the following
levels cannot be reasonably D.3.1 All Contractor Claims shall be referred to the
anticipated:Owner's Authorized Representative for review.
Contractor's Claims, including Claims for
i) Daily rainfall equal to, or greater additional compensation or additional Contract
than, Time, shall be submitted in writing by Contractor
0.50 inch during a month when the to the Owner's Authorized Representative within
monthly rainfall exceeds the normal five (5) Days after a denial of Contractor's initial
monthly average by twenty-five request for an adjustment of Contract terms,
percent(25%)or more. payment of money, extension of Contract Time or
other relief, provided that such initial request has
ii) daily rainfall equal to, or greater been submitted in accordance with the
than, requirements and within the time limits
0.75 inch at any time. established in these General Conditions. Within
thirty (30) Days after the initial Claim, ContractorTheOfficeoftheEnvironmentalData
shall submit to the Owner's Authorized
Service of the National Oceanic and Representative, a complete and detailedAtmosphericAdministrationoftheU.S. description of the Claim (the "Detailed Notice")
Department of Commerce nearest the that includes all information required by SectionprojectsiteshallbeconsideredtheofficialD.3.2. Unless the Claim is made in accordance
agency of record for weather information. with these time requirements,it shall be waived.
D.2.2 Except as otherwise provided in ORS D. 3.2 The Detailed Notice of the Claim shall be279C.315, Contractor shall not be entitled submitted in writing by Contractor and shalltoadditionalcompensationoradditionalincludeadetailed, factual statement of the basis of
Contract Time for Avoidable Delays. the Claim, pertinent dates, Contract provisions
D.2.3 In the event of Unavoidable Delays, based
which support or allow the Claim, reference to or
on principles of equitable adjustment, copies of any documents which support the Claim,
Contractor may be entitled to the following:
the dollar value of the Claim, and the Contract
Time extension requested for the Claim. If the
a) Contractor may be entitled to Claim involves Work to be completed by
additional compensation or additional Subcontractors, the Contractor will analyze and
Contract Time, or both, for evaluate the merits of the Subcontractor claim prior
17
to forwarding it and that analysis and pending such stays or extensions, including the
evaluation to the Owner's Authorized filing of an answer, as may be necessary to
Representative.The Owner's facilitate the mediation process. Further,in the
Authorized Representative and the Owner event settlements are reached on any issues through
will not consider direct claims from mediation, the parties agree to promptly.execute_
Subcontractors, suppliers, manufacturers, and submit the appropriate motions and orders
or others not a party to this Contract. documenting the settlement to the Court for its
Contractor agrees that it will make no dflingsettlement agree-ment to the
agreement, covenant, or assignment, nor arbitrator.if necessary to enter an arbitration award.
will it commit any other act that will permit
or assist any Subcontractor, supplier, Q.36D.3.5 The mediator shall be an individual
manufacturer, or other to directly or mutually acceptable to both parties, but in the
indirectly make a claim against Owner. absence of agreement each party shall select a
temporary mediator and the temporary mediators
D.3.3 The Owner'o shall jointly select the permanent mediator. Each
will review all Claims and take one or more party shall pay its own costs for the time and effort
of the following preliminary actions within involved in mediation. The cost of the mediator shall
ten (10) Days of receipt of the Detailed be split equally between the two parties. Both parties
Notice of a Claim: (1) request additional agree to exercise their best effort in good faith to
supporting information from the Contractor; resolve all disputes in mediation. Participation in
2) inform the Contractor and Owner in mediation is a mandatory requirement of both the
writing of the time required for adequate Owner and the Contractor. The schedule, time and
review and response; (3) reject the Claim place for mediation will be mutually acceptable, or,
in whole or in part and identify the failing mutual agreement, shall be as established
reasons for rejection; (4) based on by the mediator. The parties agree to comply with
principles of equitable adjustment, Owner's administrative rules governing the
recommend approval of all or part of the confidentiality of mediation, if any, and shall
Claim; or (5) propose an alternate execute all necessary documents to give effect to
resolution.such confidentiality rules. In any event, the parties
shall not subpoena the mediator or otherwise require
0.3.1 The Owner's Authorized Representative's the mediator to produce records, notes or work
decision shall be final and tc;r,cling cr. t:e product, or to testify in any future proceedings as to
Contractor unless appealed by written information disclosed or representations made in the
notice to the Owner within fifteen course of mediation, except to the extent disclosure is
5` Day: cf -ecoipt of the decision. Tho required by law.
Contractor -must presont written
documentation supporting the Claim within 3.3.73.3 6 Owner may at any time and at its
fifteen (15) Days of the notice of appeal. discretion issue a construction change directive
After receiving the appeal documentation, adding to, modifying or reducing the scope of
Work. Contractor and Owner shall negotiate the
need for any additional compensation or additional
after receiving the appeal documents. Contract Time related to the change, subject to the
procedures for submitting requests or Claims for
D.3.5D.3.a The decision of the Owner shall additional compensation or additional Contract
be final and binding unless the Contractor Time established in this Section D. Unless
delivers to the Owner its requests for otherwise directed by Owners—Aut prize'
mediation, which shall be a non-binding Representative, Contractor shall proceed with the
process, within fifteen (15) Days of the Work while any request or Claim is pending,
date of the Owner's decision. The including but not limited to, a request or Claim
mediation process will be considered to for additional compensation or additional Contract
have commenced as of the date the Time resulting from Work under a Change Order or
Contractor delivers the request. Both parties construction change directive. Regardless of the
acknowledge and agree that participation in review period or the final decision of the Owner's
mediation is a prerequisite to Authorized Representative, the Contractor shall
commencement of litigation arbitration of continue to diligently pursue the Work as identified in
any disputes relating to the Contract. Both the Contract Documents. In no case is the
parties further agree to exercise their best Contractor justified or allowed to cease Work
efforts in good faith to resolve all disputes without a written stop work order from the Owner
within sixty
60) Days of the commencement of the
ESECTIONmediation through the mediation process setPACE
forth herein.
In the event that a lawsuit demand for E.1 SCHEDULE OF VALUES
Arbitron must be filed within this sixty(60)
day period in order to preserve a eau -seThe Contractor shall submit, at least ten (10) Days
aetienclai.ro, the parties agree that prior to submission of its first application for progress
notwithstanding the filing,they shall proceed payment, a schedule of values ("Schedule of Values")for
diligently with the mediation to its conclusion the contracted Work. This schedule will provide a
prior to actively prosecuting the breakdown of values for the contracted Work and will be
lawsuitarhitration, and aoreeloointly the basis for progress payments. The breakdown will
Instruct the arbitrator to set the demonstrate reasonable, identifiable, and measurable
h.e_dslL.for arbitration as_cha' ^kcomponents of the Work. Unless objected to by the
from the C^_! '^ ".'^". !.".e lawsuit is Owner's Authorized Representative, this schedule shall
18
be used as the basis for reviewing Contractor's the Contractor, may elect to make payments to
applications for payment. If objected to by
Owner' •- _ . - _ - - . Contractor
shall revise the schedule of values and resubmit
the same for approval of Owner's Authorized
Representative. EFT/ACH payments.
E. 2 APPLICATIONS FOR PAYMENT
E.2.2 Contractor shall submit to the Owner's Authorized
E.2.1 Owner shall make progress payments Representative, an application for each payment
on the Contract monthly as Work and, if required, receipts or other vouchers showing
progresses. Payments shall be based payments for materials and labor, including
upon estimates of Work completed and payments to Subcontractors. Contractor shall
the Schedule of Values. All payments shall include, in its application for payment, a schedule of
be approved by the Owner's Authorized the percentages of the various parts of the Work
Representative. A progress payment completed, based on the Schedule of Values which
shall not be considered acceptance or shall aggregate to the payment application total, and
approval of any Work or waiver of any shall include, on the face of each copy thereof, a
defects therein. Owner shall pay to certificate in substantially the following form:
Contractor interest on the progress
payment, not including retainage, due I, the undersigned, hereby certify that the above
the Contractor. The interest shall bill is true and correct, and the payment therefore,
commence thirty (30) Days after the has not been received.
receipt of invoice ("application for
payment") from the Contractor or Signed:
fifteen (15) Days after the payment is
approved by the Owner's Authorized
Reprecentative, whichever is the earlier E.2.3 Generally, applications for payment will be accepted
date. The rate of interest shall equal only for materials that have been installed. Under
three times the discount rate on 90-day special conditions, applications for payment for
commercial paper in effect at the Federal stored materials will be accepted at Owner's sole
Reserve Bank in the Federal Reserve discretion. Such a payment, if made, will be subject
district that includes Oregon on the date to the following conditions:
that is thirty (30) Days after receipt of
the application for payment from the a) The request for stored material shall be
Contract or fifteen (15) Days after the submitted at least thirty (30) Days in advance of
payment is approved by the Owner, the application for payment on which it appears.
whichever is the earlier date, but the rate Applications for payment shall be entertained
of interest shall not exceed thirty for major equipment, components or
30) percent. Notwithstanding the foregoing, expenditures only.
in instances when an application for
b) The Contractorshall submit applications forpaymentisfilledoutincorrectly, or when
a ment sthethereisanydefectorimproprietyinanypYg quantity and cost of the
submitted application or when there is a
material stored.
good faith dispute, Owner shall so notify
the Contractor within fifteen (15) Days c) The material shall be stored in a bonded
stating the reason or reasons the warehouse and Owner's Authorized
application for payment is defective or
Representative shall be granted the right to
improper or the reasons for the dispute. A access the material for the purpose of removal
defective or improper application for or inspection at any time during the Contract
payment, if corrected by the Contractor Period.
within seven (7) Days of being notified by d) The Contractor shall name the Owner as co-the Owner, shall not cause a payment to insured on the insurance policy covering the fullbemadelaterthanspecifiedinthissection
value of the property while in the care andunlessinterestisalsopaid. Accrual of custody of the Contractor until it is installed. Ainterestwillbepostponedwhen
certificate noting this coverage shall be issuedpaymentontheprincipalisdelayedtotheOwner.
because of disagreement between the
Owner and the Contractor.
e) Payments shall be made for materials only.
Owner reserves the right, instead of The submitted amount of the application for
requiring the Contractor to correct or payment shall be reduced by the cost of
resubmit a defective or improper application transportation and for the cost of an inspector
for payment, to reject the defective or to check the delivery at out of town storage
improper portion of the application for sites. The cost of said inspection shall be
payment and pay the remainder of the borne solely by the Contractor.
application for payment that is correct and
f) Within sixty (60) Days of the application forproper.
payment, the Contractor shall submit
The contractor shall submit the EFT agreement evidence of payment covering the material
Ihtto://tinvurl,com/Lp-F.FT1 to the City's Finance stored.
Department_ Payment.shall be_te_ndered_ when
due by EFT within 30 days from the date of receipt g) Payment for stored materials shall in no
of the invoice. Owner, upon written notice to way indicate acceptance of the materials
19
or waive any rights under this changes in the Work can be included in
Contract for the rejection of the Work application for payment until the Contract
or materials not in conformance with Price has been adjusted by Change Order;
the Contract Documents.
h) All required documentation must be b) Add that portion of the Contract Price
submitted with the respective properly allocable to materials and equipment
application for payment. delivered and suitably stored at the site for
subsequent incorporation in the completed
E.2.4 The Owner reserves the right to withhold all construction (or, if approved in advance by
or part of a payment, or may nullify in the Owner pursuant to Section E.2.3, suitably
whole or part any payment previously stored off the site at a location agreed upon
made,to such extent as may be necessary in writing), less retainage as provided in
in the Owner's opinion to protect the Section E.5;
Owner from loss because of:
c) Subtract the aggregate of previous payments
a) Work that is defective and not made by the Owner;and
remedied, or that has been d) Subtract any amounts for which the Owner'sdemonstratedoridentifiedasfailingtoAuthorizedRepresentativehaswithheldor
conform with the Contract Documents, nullified payment as provided in the Contract
b) third party claims filed or evidence
Documents.
reasonably indicating that such claims E.2.6 Contractor's applications for
will likelybe filed unless
securitypp
payment may not
include requests for payment for portions of the Work
acceptable to the Owner is provided for which the Contractor does not intend to pay to abytheContractor; Subcontractor or material supplier.
c) failure of the Contractor to make E.2.7 The Contractor warrants to Owner that title to all
payments properly to Subcontractors Work covered by an application for payment will pass
or for labor, materials or equipment to the Owner no later than the time of payment. The
in which case Owner may issue Contractor further warrants that upon submittal of an
checks made payable jointly to application for payment all Work for which payments
Owner and such unpaid persons are received from the Owner shall be free and clear
under this provision, or directly to of liens, claims, security interests or encumbrancesSubcontractorsandsuppliersatanyinfavorof the Contractor, Subcontractors, material
level under Section C.3.2.1);
suppliers, or other persons or entities making a claim
by reason of having provided labor, materials andd) reasonable evidence that the Work equipment relating to the Work.cannot be completed for the unpaid
balance of the Contract Price; E.2.8 If Contractor disputes any determination by Owner's
Authorized Representative with regard to anye) damage to the Owner or another application for payment, Contractor nevertheless
contractor;
shall continue to prosecute expeditiously the Work.
f) reasonable evidence that the Work No payment made hereunder shall be or be
will not be completed within the construed to be final acceptance or approval of that
Contract Time required by the portion of the Work to which such partial payment
Contract, and that the unpaid balance relates or shall relieve Contractor of any of its
obligations hereunder.would not be adequate to cover
actual or liquidated damages for the E.3 PAYROLL CERTIFICATION REQUIREMENT
anticipated delay;
Payroll certification is required before payments are
g) failure to carry out the Work in made on the Contract. Refer to Section C.2 for this
accordance with the Contract information.
Documents;or
h) assessment of liquidated damages, E.4 DUAL OAYMENT SOURCES
when withholding is made for offset
purposes. Contractor shall not be compensated for Work
E.2. 5 Subject to the provisions of the Contract
Documents, the amount of each progress
payment shall be computed as follows: E.5 RETAINAGE
a) Take that portion of the Contract Price E.5.1 Retainage shall be withheld and released in
properly allocable to completed Work accordance with ORS 279C.550 to 279C.580:
as determined by multiplying the
percentage completion of each
E.5.1. 1 Owner may reserve as retainage from anyportionoftheWorkby the share of
the total Contract Price allocated to
progress paymentamount not to exceed
five percentttheofpayment. As Work
that portion of the Work in the progresses, Owner may reduce the amount ofScheduleofValues, less retainage as
the retainage and may eliminate retainage onprovidedinSectionE.S. Pending final
any remainingrc monthly ContractorkpaymentsrthdeterminationofcosttotheOwnerof
after 50 percent of the Work under the
changes in the Work, no amounts for Contract is completed if, in the Owner's
20
opinion, such Work is progressing c) that the Contractor be allowed, with the approval
satisfactorily. Elimination or reduction of the Owner, to deposit a surety bond for the
of retainage shall be allowed only upon benefit of Owner, in a form acceptable to Owner,
written application by the Contractor, in lieu of all or a portion of funds retained, or to
which application shall include written be retained. Such bond and any proceeds
approval of Contractor's surety; except therefrom shall be made subject to all claims
that when the Work is 97-1/2 percent and liens in the manner and priority as set forth
completed the Owner may, at its for retainage under ORS 279C.550 to ORS
discretion and without application by the 279C.625.
Contractor, reduce the retained amount
to 100 percent of the value of the Work Where the Owner has accepted the Contractor's election
remaining to be done. Upon receipt of of any of the options above, Owner may recover from
written application by the Contractor, Contractor any additional costs incurred through such
Owner shall respond in writing within a election by reducing Contractor's final payment. Where
reasonable time. the Owner has agreed to Contractor's request to
deposit a surety bond under option (c), Contractor shall
E.5.1.2 In accordance with the provisions of accept like bonds from Subcontractors and suppliers on
ORS 279C.560 and any applicable the project from which Contractor has required retainage.
administrative rules, unless the Owner
finds in writing that accepting a bond, E.5.1.3 The retainage held by Owner shall be included in
security or other instrument described and paid to the Contractor as part of the final
in options (a) or (c) below poses an payment of the Contract Price. The Owner shall
extraordinary risk that is not typically pay to Contractor interest at the rate of one and
associated with the bond, security or one-half percent per month on the final payment
instrument, the Owner will approve the due Contractor, interest to commence thirty(30)
Contractor's written request: Days after the Work under the Contract has
been completed and accepted and to run until
a) to be paid amounts which would the date Contractor shall notify Owner in writing
otherwise have been retained from when the Contractor considers the Work
complete and Owner shall, within fifteen (15)
progress payments where Contractor has Days after receiving the written notice, eitherdepositedacceptablebonds, securities or accept the Work or notify the Contractor of
other instruments of equal value with Work yet to be performed on the Contract. If
Owner or in a custodial account or other Owner does not within the time allowed notify
mutually-agreed account satisfactory to the Contractor of Work yet to be performed to
Owner, with an approved bank or trust fulfill contractual obligations, the interest provided
company to be held in lieu of the cash by this subsection shall commence to run thirty
retainage for the benefit of Owner. 30) Days after the end of the 15-Day period.
Interest or earnings on the bonds,
securities or other instruments shall
E.5.1.4 In accordance with the provisions of ORSaccruetotheContractor. The Contractor
279C.560, if the Owner accepts bonds,shall execute and provide such
securities or other instruments deposited asdocumentationandinstructionsrespectingprovidedinparagraphs(a)and(c)of subsectionthebonds, securities and other
E.5.1.2,the Owner shall reduce the moneys heldinstrumentsas the Owner may require to
protect its interests. To be permissible as retainage in an amount equal to the value of
the bonds, securities and other the bonds, securities and other instruments and
instruments must be of a character pay the amount of the reduction to the Contractor
approved by the Director of the Oregon in accordance with ORS 279C.570.
Department of Administrative Services, E.5.1.5 Contractor agrees that if Contractor elects toincludingbutnotlimitedto:
reserve a retainage from any progress payment
i) Bills, certificates, notes or bonds of due to any Subcontractor or supplier, such
retainage shall not exceed five percent of thetheUnitedStates.
payment, and such retainage withheld fromii) Other obligations of the United
Subcontractors and suppliers shall be subject toStatesoragenciesoftheUnitedStates.
the same terms and conditions stated iniii) Obligations of a corporation wholly Subsection E.5 as apply to Owner's retainageownedbythefederalgovernment.
from any progress payment due to Contractor.iv) Indebtedness of the Federal
Provided, however, if in accordance with theNationalMortgageAssociation.
provisions of ORS 279C.560 the Contractor hasv) General obligation bonds of the State
deposited bonds, securities or other instrumentsofOregonorapoliticalsubdivisionofthe
or has elected to have the Owner depositStateofOregon.
accumulated retainage in an interest-bearingvi) Irrevocable letters of credit issued
account, the Contractor shall comply with thebyaninsuredinstitution, as defined in
provisions of ORS 701.435 respecting theORS706.008.
deposit of bonds, securities or other instruments
b) that retainage be deposited in an acceptable,submit to the Owner a recommendation
interest bearing account, established as to acceptance of the completed Work and the
through the State Treasurer for state final estimate of the amount due the Contractor.If
agencies, in a bank, savings bank, trust the Work is not acceptable,Owner will notify
company or savings association for the Contractor within fifteen(15)Days of Contractor's
benefit of Owner, with interest from such request for final payment. Upon approval of this
account accruing to the Contractor;or final estimate by the Owner and compliance by the
Contractor with provisions in Section K.3
21
AFFIDAVIT/RELEASE OF LIENS AND the Work, and if
CLAIMS,and other provisions as may be
SECTION F—JOBSITEapplicable, the Owner shall pay to the
CONDITIONSContractorallmoniesdueunderthe
provisions of these Contract Documents.F.1 USE OF PREMISES
Neither final payment nor any remaining
retained percentage shall become due until Contractor shall confine equipment, storage of
the Contractor submits to the Owner's materials and operation of Work to the limits indicated
Authorized Representative(1)a notarized by Contract Documents, law, ordinances, permits or
affidavit/release of liens and claims in a form directions of the Owner's Authorized Representative.
satisfactory to Owner that states that Contractor shall follow the Owner's Authorized
payrolls,bills for materials and Representative's instructions regarding use of premises, if
equipment,and other indebtedness any.
connected with the Work for which the
Owner or the Owner's property might be F.2 PROTECTION OF WORKERS.PROPERTY,AND
responsible or encumbered(less amounts THE PUBLIC
withheld by Owner)have been paid or F.2.1 Contractor shall maintain continuous and
otherwise satisfied, (2) a certificate adequate protection of all of the Work from
evidencing that insurance required by the damage, and shall protect the Owner's a nstContractDocumentstoremaininforceafterOwner's Authorized Representative, workers andfinalpaymentiscurrentlyineffectandpropertyfrominjuryor loss arising in connectionwillnotbecanceledorallowedtoexpirewiththisContract. Contractor shall
until at least thirty(30)Days'prior written
remedy acceptably to the Owner, any damage,notice has been given to the Owner,(3) a
written statement that the Contractor knows injury, or loss, except such as may be directly due
of no substantial reason that the insurance to errors in the Contract Documents or caused by
will not be renewable to cover the period authorized representatives or personnel of the
required by the Contract Documents,(4) Owner. Contractor shall adequately protect
consent of surety,if any,to final payment adjacent property as provided by law and the
and(5),if required by the Owner,other data Contract Documents.
establishing payment or satisfaction of
F.2.2 Contractor shall take all necessary precautions forobligations,such as receipts,releases and the safety of all personnel on the job site, and shallwaiversofliens,claims,security interests or comply with the Contract Documents and allencumbrancesarisingoutoftheContract,
applicable provisions of federal, state and municipaltotheextentandinsuchformasmaybe
safety laws and building codes to prevent accidentsdesignatedbytheOwner.If a Subcontractor or injury to persons on, about or adjacent to therefusestofurnishareleaseorwaiver
premises where the Work is being performed.required by the Owner,the Contractor may Contractor shall erect and properly maintain at allfurnishabondsatisfactorytotheOwnertotimes, as required by the conditions and progress ofindemnifytheOwneragainstsuchlien.If
the Work, all necessary safeguards for protection ofsuchlienremains unsatisfied after payments
workers and the public against any hazards createdaremade,the Contractor shall refund to the by construction. Contractor shall designate aOwnerallmoneythattheOwnermaybe
responsible employee or associate on the Work site,compelled to pay in discharging such lien,
whose duty shall be the prevention of accidents. Theincludingallcostsandreasonableattorneys'
name and position of the person designated shall befees. Acceptance of final payment by the
reported to the Owner's Authorized Representative.Contractor, a Subcontractor or material The Owner's Authorized Representative has nosuppliershallconstituteawaiverofclaims
responsibility for Work site safety. Work site safety isbythatpayeeexceptthosepreviouslymadetheresponsibilityoftheContractor.in writing and identified by that payee as
unsettled at the time of final application for F.2. 3 Contractor shall not enter upon private property
payment.by Subcontractors and suppliers without first obtaining permission from the property
and the sharing of interest earnings with owner or its duly authorized representative.
Subcontractors and suppliers.Contractor shall be responsible for the preservation
of all public and private property along and adjacent
E.5.2 As provided in subsections C.2.2 and C.2.3, to the Work contemplated under the Contract and
additional retainage in the amount of 25% of shall use every precaution necessary to prevent
amounts earned shall be withheld and damage thereto. In the event the Contractor
released in accordance with ORS damages any property,the Contractor shall at once
279C.845(7) when the Contractor fails to notify the property owner and make, or arrange to
file certified statements as required by make, full restitution. Contractor shall immediately
section C.2.1. and in writing, report to the Owner's Authorized
Representative, all pertinent facts relating to suchE.6 FINAL PAYMENT property damage and the ultimate disposition of the
claim for damage.
E.6.1 Upon completion of all the Work under this F.2. 4 Contractor is responsible for protection of adjacentContract, the Contractor shall notify the
work areas including impacts brought about byOwner's Authorized Representative, in
activities, equipment, labor, utilities, and materials on
writing, that Contractor has completed the site.
Contractor's part of the Contract and shall
request final payment. Upon receipt of such F.2.5 Contractor shall at all times direct its activities in
notice the Own e ad the _Owner's such a manner as to minimize adverse effects on the
Authorized Representative will inspect environment. Handling of all materials will be
conducted so no release will occur that may pollute
22
or become hazardous. proper regulatory agencies in a manner that
F.2.6 In an emergency affecting the safety of life or complies with applicable federal, state, and
of the Work or of adjoining property, the local laws and regulations. Cleanup shall be at
Contractor, without special instruction or no cost to the Owner and be performed by
authorization from the Owner's Authorized properly qualified personnel.
Representative, shall act reasonably to F.5.1.2 Contractor shall obtain the Owner's written
prevent threatened loss or injury, and shall
consent prior to bringing onto the Work site anysoact, without appeal, if instructed by the i) environmentalOwner's Authorized Representative. Any pollutantsterials, or
the(
ihazardous
or
compensation claimed by the Contractor on
substances or materials, as same or
reasonably similar terms are used in anyaccountofemergencyworkshallbeapplicable federal, state, or local statutes, rulesdeterminedinaccordancewith
or ordinances. Notwithstanding such writtenSectionD.
consent from the Owner, the Contractor, at all
F.3 CUTTING AND PATCHING times,shall:
F.3.1 Contractor shall be responsible for a) properly handle, use and dispose of all
coordinating all cutting, fitting, or patching of environmental pollutants and hazardous
the Work to make its several parts come
substances or materials brought onto the Worktogetherproperlyandfittoreceiveorbesite, in accordance with all applicable federal,
received by work of other contractors or state,or local statutes,rules, or ordinances;
Subcontractors shown upon, or reasonably
implied by,the Contract Documents. b) be responsible for any and all spills,
releases, discharges, or leaks of (or from)
F.3.2 Contractor shall be responsible for environmental pollutants or hazardous
restoring all cut, fitted, or patched substances or materials which Contractor has
surfaces to an original condition; provided, brought onto the Work site;and
however, that if a different condition is
specified in the Contract Documents, then c) promptly clean up, without cost to the Owner,Contractor shall be responsible for restoring such spills, releases, discharges, or leaks to the
such surfaces to the condition specified in Owner's satisfaction and in compliance with all
the Contract Documents. applicable federal, state, or local statutes, rules
F.4 CLEANING UP
or ordinances.
From time to time as may be ordered by F.5.2 Contractor shall report all reportable quantity
the Owner the Contractor shall,at its own
releases to applicable federal, state, and local
regulatory and emergency response agencies.expense,clean up and
Reportable quantities are found in 40 CFR Part 302,
remove all refuse and unused materials of any kind Table 302.4 for hazardous substances and in OAR
resulting from the Work. If Contractor fails to do so
340-142-0050 for all products addressed therein.
within twenty-four hours after notification by the
Upon discovery, regardless of quantity, ContractorOwnertheworkmaybedonebyothersandthe
must telephonically report all releases to the Owner.cost charged to the Contractor and deducted from A written follow-up report shall be submitted topaymentduetheContractor.
Owner within 48 hours of the telephonic report. Such
written report shall contain,as a minimum:
F.5 ENVIRONMENTALCONTAMINATION
F.5.1 Contractor will be held responsible for and
a) Description of items released ( identity, quantity,
P manifest no., and all other documentation
shall indemnify, defend (with counsel of required by law.)
Owner's choice) and hold harmless Owner
from and against any costs, expenses, b) Whether amount of items released is EPA/DEQ
damages, claims, and causes of action, reportable,and,if so,when it was reported.
including attorney fees), or any of them,
resulting from all spills, releases, c) Exact time and location of release, including a
discharges, leaks and disposal of description of the area involved.
environmental pollution, including storage,
transportation, and handling during the d) Containment procedures initiated.
performance of the Contract which occur as
a result of, or are contributed by, the e) Summary of communications about the release
negligence or actions of Contractor or its Contractor has had with members of the press
personnel, agents, or Subcontractors or any or State officials other than Owner.
failure to perform in accordance with the
Contract Documents (except to the extent f) Description of cleanup procedures employed or
otherwise void under ORS 30.140). Nothing to be employed at the site, including disposal
in this section F.5.1 shall limit Contractor's location of spill residue.
responsibility for obtaining insurance
g) Personnel injuries, if any, resulting from, orcoveragesrequiredunderSectionG.3 of
aggravated by,the release.these General Conditions, and Contractor
shall take no action that would void or impair F.6 ENVIRONMENTAL CLEAN-UP
such coverages
F.6.1 Unless disposition of environmental pollution isF.5.1. 1 Contractor agrees to promptly dispose
specifically a part of this Contract, or was caused byofsuchspills, releases, discharge or the Contractor (reference F.5 EnvironmentalleakstothesatisfactionofOwnerand
Contamination), Contractor shall immediately notify
23
Owner of any hazardous substance(s) which damage, injury, loss, expense, inconvenience or
Contractor discovers or encounters during delay described in this Section G.1.2, ( b) any
performance of the Work required by this accident or occurrence which happens or is alleged
Contract. "Hazardous substance(s)" means to have happened in or about the project site or any
any hazardous, toxic and radioactive materials place where the Work is being performed, or in the
and those substances defined as "hazardous vicinity of either, at any time prior to the time the
substances," "hazardous materials," Work is fully completed in all respects, (c) any failure
hazardous wastes," "toxic substances," or of the Contractor to observe or perform any duty or
other similar designations in any federal, state, obligation under the Contract Documents which is to
or local law, regulation, or ordinance, be observed or performed by the Contractor, or any
including without limitation asbestos, breach of any agreement, representation or warranty
polychlorinated biphenyl (PCB), or petroleum, of the Contractor contained in the Contract Documents
and any substances, materials or wastes or in any subcontract,
regulated in 40 CFR, Part 261 and defined as d)the negligent acts or omissions of the Contractor, a
hazardous in 40 CFR S 261.3. In addition Subcontractor or anyone directly or indirectlytonotifyingOwnerofanyhazardousemployedbythemoranyoneofthem or anyone for
substance(s) discovered or encountered, whose acts they may be liable, regardless of whether
Contractor shall immediately cease working in or not such claim, damage, loss or expense is caused
any particular area of the project where a in part by a party indemnified hereunder(except to the
hazardous substance(s) has been discovered extent otherwise void under ORS 30.140), and (e) any
or encountered if continued work in such area lien filed upon the project or bond claim in connection
would present a risk or danger to the health with the Work. Such obligation shall not be construed
or wellbeing of Contractor's or any to negate, abridge, or reduce other rights or
Subcontractor's work force. obligations of indemnity which would otherwise exist
as to a party or person described in this Section G.1.2.
F.6.2 Upon being notified by Contractor of the
presence of hazardous substance(s) on the G.1.3 In claims against any person or entity indemnified
project site, Owner shall arrange for the under this Section G.1.2 by an employee of the
proper disposition of such hazardous Contractor, a Subcontractor, anyone directly or
substance(s). indirectly employed by them or anyone for whose acts
they may be liable, the indemnification obligation
F.7 FORCE MAJEURE under Section G.1.2 shall not be limited by a limitation
A party to this Contract shall not be held on amount or type of damages, compensation or
responsible for delay or default due to Force benefits payable by or for the Contractor or a
Majeure acts, events or occurrences unless they Subcontractor under workers' compensation acts,
could have been avoided by the exercise of disability benefit acts or other employee benefit acts.
reasonable care, prudence, foresight, and diligence G.2 PERFORMANCE AND PAYMENT SECURITY;
by that party. The Owner may terminate this PUBLIC WORKS BOND
Contract upon written notice after determining that
delay or default caused by Force Majeure acts, G.2.1 When the Contract Price is $100,000 or more (or
events or occurrences will reasonably prevent 50,000 or more in the case of Contracts for highways,
successful performance of the Contract. bridges and other transportation projects) the
Contractor shall furnish and maintain, a performance
bond in a sum equal to the Contract Price, and a
SECTION G separate payment bond also in a sum equal to theINDEMNITY,BONDING,AND Contract Price. The bonds may be required if theINSURANCEContractPriceislessthantheabovethresholds, if
G.1 RESPONSIBILITY FOR DAMAGES/INDEMNITY required by the Contract Documents. This obligation
must be in effect at all times during the Contract
G.1.1 Contractor shall be responsible for all
Period and shall remain in full force and effect until the
damage to expiration of any statutes of limitation or reposegproperty, injury to persons, and
applicable to claims against contractor arising out ofloss, expense, inconvenience, and delay that this Contract.
may be caused by, or result from, the
carrying out of the Work to be done under G. 2.2 Bond forms furnished by the Owner and notarized by
this Contract, or from any act, omission or awarded Contractor's surety company authorized to do
neglect of the Contractor, its Subcontractors, business in Oregon are the only acceptable forms of
personnel,or agents. performance and payment security, unless otherwise
specified in the Contract Documents.
G.1.2 To the fullest extent permitted by law,
G.2.3 Before execution of the Contract Contractor shall fileContractorshallindemnify, defend (with
with the Construction Contractors Board, and maintaincounselapprovedbyOwner) and hold
in full force and effect, the separate public works bondharmlesstheOwner, Owner's Authorized
required by Oregon Laws 2005, Chapter 360, andRepresentative,
OAR 839-025-0015, unless otherwise exempt underArchitect/E
those provisions. The Contractor shall also include inngineer, Architect/Engineer's consultants, and
every subcontract a provision requiring thetheirrespectiveofficers, directors, agents,
Subcontractor to have a public works bond filed withemployees, partners, members, stockholders
the Construction Contractors Board before startingandaffiliatedcompanies (collectively Work, unless otherwise exempt, and shall verify thatIndemnitees") from and against all liabilities,
the Subcontractor has filed a public works bond beforedamages, losses, claims, expenses (including permitting the Subcontractor to start Work.reasonable attorney fees), demands and
actions of any nature whatsoever which arise G. 3 INSURANCE
out of, result from or are related to, (a) any
24
G.3.1 Primary Coverage: Insurance carried by and made payable to the Owner for the insureds,
Contractor under this Contract shall be the as their interests may appear. The Contractor
primary coverage and non-contributory with any shall pay Subcontractors their just shares of
other insurance and self- insurance, and the insurance proceeds received by the Contractor,
Owner's insurance is excess and solely for and by appropriate agreements, written where
damages or losses for which the Owner is legally required for validity, shall require
responsible. The coverages indicated are Subcontractors to make payments to their Sub-
minimums unless otherwise specified in the subcontractors in similar manner. The Owner shall
Contract Documents. have power to adjust and settle a loss with
insurers.
G.3.2 Workers' Compensation: All employers,
including Contractor, that employ subject G.3.4 Liability Insurance:
workers who work under this contract in the
State of Oregon shall comply with ORS G.3.4..1 Commercial General Liability: Contractor shall
656.017 and provide the required Workers' obtain, at Contractor's expense, and keep in effect
Compensation coverage, unless such during the term of this Contract, Commercial General
employers are exempt under ORS 656.126. Liability Insurance covering bodily injury and property
This shall include Employer's Liability Insurance damage in a form and with coverages that are
with coverage limits of not less than satisfactory to owner. This insurance shall include
1,000,000 for each accident. Contractors who personal injury liability,products and completed
perform the Work without the assistance or operations,and contractual liability coverage for the
labor of any employee need not obtain such indemnity provided under this Contract(to the extent
coverage if the Contractor certifies so in contractual liability coverage for the indemnity is
writing. Contractor shall ensure that each of its and shall be issued on
Subcontractors complies with these an occurrence basis. The_policy shall be eadQrsed to
requirements. The Contractor shall require extend tho rnmr,i ted operations for three years after
proof of such Workers' Compensation by Final Completion of the Work Tho limit per
receiving and keeping on file a certificate of occurrence shall not beless.than$2 million__Ea_cti
insurance from each Subcontractor or anyone annual aggregate limit shall not he less than$3
else directly employed by either the Contractor or million when annlirahl_
its Subcontractors.
G. 3.3 Builder's Risk Insurance:
G.3.3.1 Builder's Risk: During the term of this
Contract, for new construction the F em-ee •
Contractor shall obtain, and keep in effect c^^908
Builder's Risk insurance on an all risk form,
including earthquake and flood, for an July 1,2012 to June 30,2n12: °' ono ng8
amount equal to the full amount of the July 1,2013 to June 30,2011: m^nn04=
Contract unless waived by the Owner_t.,pon July 1,2014 to June 30,2015: $2,000,000
o_btaininq_b '. ' . . .. -.! - - .
which event the rnntractor's anticioated determined by the State Court edministrater- ,. ant
pLemi • • ..s- .. .• , .. - ., tze to Oregon Laws 2009,chapter 67, section 3 (Senate
deducted from the Contract Araeunt). Any t3ill-3a}
deductible shall not exceed $50,000 for
each loss, except the earthquake and flood Per Occurrence Limit for multiple claimants:
deductible shall not exceed 2 percent of From commencement of the Contract term to June 30,
each loss or $50,000, whichever is more. 2'8888
The policy will include as loss payees the July 1,2011 to June 30,2012: $3,400,000
Owner, the Contractor and its July 1,2012 to June 30,2013: $3,600,000
2.013 to I..._..7A 2C11:Subcontractors as their interests may Jun::: • W3,-914&9•90
appear. July 1,2014 to June 30,2015: $4,000,000
July 1, 2015 and thcreaft •- -_ . _ -• _ _ _
G.3.3.2 Builder's Risk Installation Floater: For other
than new construction the Contractor shall e ' := - e t e, -- _ , _ _ _ -
obtain and keep in effect during the term of Bill 311).
this Contract, a Builder's Risk Installation
Floater for coverage of the Contractor's P-repeirty-laae
labor, materials and equipment to be used
for completion of the Work performed e._.
under this Contract. The minimum amount
of coverage to be carried shall be equal to January 1,2011: $100,100.
the full amount of the Contract. This From January 1, 2010, and ever year thereat'.•
insurance shall include as loss payees the the adjusted limitation as determined by the
State of Oregon, the Owner, the Contractor State Court Administrator pursuant to Oregon
and its Subcontractors as their interests Laws 2000, chapter 67, section 5 (Senate Bill
may appear. 314)
G.3.3.3 Such insurance shall be maintained until
Owner has occupied the facility.
January 1,2011 : $500,600.
G.3. 3.4 A loss insured under the Builder's Risk From January 1, 2010, and every year thereafter
insurance shall be adjusted by the Owner the adjusted limitation as determined by the
25
State Court Administrator pursuant to 0.3.1.22 Property Damage:
Oregon Laws 2009, chapter 67, section 0.3.1.23
5 (Senate Bill 0.3. 4.21 Per Occurrence Limit for any single claimant:
314)- From commencement of the Contract
term to January 1,2011: $100,100
G3.4.2Automobile Liability:Contractor shall obtain, G.3.1.25 From January 1, 2010, and every year
at Contractor's expense, and keep in effect thereafter the adjusted limitation as
during the term of this Contract, Automobile determined by the State Court
Liability Insurance covering owned, non- Administrator pursuant to Oregon Laws
owned and/or hired vehicles, as applicable. 2009, chapter 67, section 5 (Senate Bill
The coverage may be written in combination G.3.1.26 311).
with the Commercial General Liability G.3.1.27
Insurance.The combined single limit Der G.3.1.28 Per ossorrcnce Lim fo,,,,ultipleclaimants:
occurrence shall not he less than$1 mi'lion or 3.1.20 -
the equivalent_
V v V
G.3.4.30 From Janus:; 1, 2010, and every year
CI 3 4 3 Pnlli Minn I lability:The Cnntrartnr shall nrnviriE thereafter the adjusted limitation as
Pollution I lability policy in the amount of determined Sate Court
1.090900 million single oraooregate limits Ad • •
s involving bodily
t71-urc_Rreoer y damage including1oss_of.tse,ll
rlPaniin rnsts ramariietinn riicnncal nr nthar G.3.1.32 311).
handling of pollutants, including coats and
exiieuses incurr_esii investigation,_ C.3.4.10.3.4.4 "Tail" Coverage: If any of the required
rlefansca nr sattlamant of claims ancinn ni it of liability insurance is arranged on a "claims made"
the Contractor's nnerations related to this_basis, "tail" coverage will be required at the
prole.st completion of this Contract for a duration of 24
G.3.1.2 Contractor shall provide proof of months or the maximum time period available in the
insurance of not Icss than the marketplace if less than 24 months. Contractor will
amounts listed in the following be responsible for furnishing certification of "tail"
schedules: coverage as described or continuous "claims
0.3.1.3 made" liability coverage for 24 months following
0.3.1. 1 Bodily Injury/Death: Final Completion. Continuous "claims made"
G.3.1.5 coverage will be acceptable in lieu of "tail"
0.3.4.6 Per Occurrence Limit feeany inele coverage, provided its retroactive date is on or
Glairnant: before the effective date of this Contract. This will
G.3.1.7 From commencement of the Contract be a condition of the final acceptance of Work or
term June 30, 2011:$1,600,000 services and related warranty (if any).
0.3.1.8 July 1, 2011 to June 30, 2012:
1 OO,OOO r.2 E::=s__, - - - • - -- •-
G.3.1.• _e, e at contractors expense, exce'clumbrella liability
14300,000 coverage in the amount of $5,000,000 per
6-3,442 2212 to June 30, 2011: occurrence and $5,000, 000 aggregate. Coverage
1,900,000 e
statute of repose in the State of Oregon.
2,000,089
12.'2.1.12 ' ' 1, 2015 and thereafter the G- fG.3.5 Additional Insured: The liability
insurance coverage, except Professional Liability if
the State Court Administrator included, required for performance of this Contract
shall include Owner, Ar_chitectLFngineer. Owner's
chapter 67, section 3 (Senate Bill Authorized_Repr.esentative_and_theLre.speecliye_its
311). departments, divisions, officers, and employees,
O.3.1.13 as Additional Insureds but only with respect to the
Contractor's activities to be performed under this
eiai
antst Contract._Additional insured coyeLage shall be for
e•• e-••• -••-- - both on-aoina oDeratinnc via IG(1 Fnrm f r; 7919 nr
Contract term to June 30, 2011: its ecuivalent and ps ducts—and_ completed
3,200,000 operations via.1S0.Form CG 7037 or its.eauiyalent.
0.3.1.16 July 1, 2011 to June 30, 2012:
3,4907000
G.3.1.17 July 1, 2012 to June 30, 2013:
2.Tfa90,000
O.3.1.18 July 1, 2013 to June 30, 2011:
3-809,000
0.3.1.19 July 1, 2011 to June 30, 2015:
1,000,000 the State of Oregon, its departments, divisions,
0.3.1.20 July 1, 2015 and then after the officers and employees as Named Insureds with not
e• .. .
el . a -.' e
the State Court Administrator policy must be kept in effect for 12 months following
pursuant to Oregon Laws 2009, Final Completion. As evidence of coverage,
chapter 67, section 3 (Senate Bill Contractor shall furnish the actual policy to Owner
311). prior to execution of the Contract.
0.3. 21
0.3.70.3.6 Certificate(s) of Insurance: As evidence
26
of the insurance coverage required by this contained in the Contract Documents. The Owner
Contract, the Contractor shall furnish shall have the right to accelerate the completion date
certificate(s) of insurance to the Owner of the Work, which may require the use of overtime.
prior to execution of the Contract. The Such accelerated Work schedule shall be an
certificate(s) will specify all of the parties acceleration in performance of Work under Section
who are Additional Insureds or Loss Payees. D.1.2 (f) and shall be subject to the Change Order
Insurance coverage required under this process of Section D.1.
Contract shall be obtained from insurance
companies or entities acceptable to the H.1.3 The Owner shall not waive any rights under the
Owner that are allowed to provide such Contract by permitting the Contractor to continue or
insurance under Oregon law. Eligible complete in whole or in part the Work after the date
insurers include admitted insurers that described in Section H.1.2 above.
have been issued a certificate of authority
from tha Oregon Department of Consumer H.2 SCHEDULE
and Business Services authorizing them to
do an insurance business in the state of H.2.1 Contractor shall provide, by or before the pre-
Oregon, and certain non-admitted surplus
construction conference, a detailed schedule for
lines insurers that satisfy the requirements
review and acceptance by the Owner. The
of applicable Oregon law and are approved
submitted schedule must illustrate Work by
by the Owner. The Contractor shall be significant project components, significant labor
financially responsible for all deductibles, trades, long lead items, broken down by building
self-insured retentions and/or self- insurance and/or floor where applicable. Each schedule item
included hereunder. Any deductible, self-
shall account for no greater than 5 % of the monetary
insured retention and/or self-insurance in value of the project or 5 % of the available Contract
excess of $50,000 shall be approved by Time. Schedules with activitiesoof less than one day
the Owner in writing prior execution of the or valued at less than 1% of the Contract will be
Contract and is subject to Owner's approval.
considered too detailed and will not be accepted.
The Contractor shall immediately notify the Schedules lacking adequate detail, or unreasonably
Owner's Authorized Representative in detailed, will be rejected. Included within the
writing of any change in insurance coverage.
schedule are the following: Notice to Proceed,
Substantial Completion, and Final Completion.
Schedules will be updated monthly and submitted
G3.8 Waiver of Subrogation. All of Contractor's and
subcontractors'
with the monthly payment application. Acceptance of
liability insurance policies,with the Schedule by the Owner does not constitute
the exception of workers'compensation,shall
contain a waiver of subrogation against
agreement by the Owner, as to the Contractor's
sequencing, means, methods, or allocated Contract
Owner.Time. Any positive difference between the
G.?.8 _Additional Requirements for General Contractor's scheduled completion and the Contract
Liability Policy. The policy shall be endorsed completion date is float owned by the Owner. Owner
to be primary and non-contributory with any reserves the right to negotiate the float if it is deemed
insurance maintained by Owner, its directors, to be in Owner's best interest to do so. In no case
officers, employees and agents. Products and shall the Contractor make a request for additional
Completed Operations Insurance shall be compensation for delays if the Work is completed
carried for the duration applicable for the_10 within the Contract Time but after Contractor's
year statute of repose in the State of Oregon.
scheduled completion.
ei .r of abrogation endorsement via ISO
form CG 2404 or its equivalent shall be H.3 PARTIAL OCCUPANCY OR USE
provided
There can be no exclusions for subsidence, H.3.1 The Owner may occupy or use any completed or
collapse, explosion,underground property partially completed portion of the Work at any
damage, mold,fungus,water intrusion or stage, provided such occupancy or use is
water damage. consented to by public authorities having
There can be no cross-suite exclusion, jurisdiction over the Work. Such partial occupancy or
Montrose language or exclusion limiting use may commence whether or not the portion is
coverage to damages which first begin to substantially complete, provided the Owner and
occur within the policy period. Contractor have reasonably accepted in writing the
The limits of coverage shall not be eroded or responsibilities assigned to each of them for
wasted by defense costs. payments, retainage, if any, security, insurance or
self-insurance, maintenance, heat, utilities, and
SECTION H damage to the Work, and have agreed in writing
SCHEDULE OF WORK concerning the period for correction of the Work
and commencement of warranties required by the
H.1 CONTRACT PERIOD Contract Documents with respect to such portion
of the Work. Approval by the Contractor to partial
H.1. 1 Time is of the essence on this Contract. occupancy or use shall not be unreasonably
The Contractor shall at all times carry on the withheld. Immediately prior to such partial
Work diligently, without delay and punctually occupancy or use, the Owner and Contractor shall
fulfill all requirements herein. Contractor shall jointly inspect the area to be occupied or portion of
commence Work on the site within fifteen (15) the Work to be used in order to determine and
Days of Notice to Proceed, unless directed record the condition of the Work. Partial occupancy
otherwise.or use of a portion or portions of the Work shall
H.1.2 Unless specifically extended by Change
not constitute acceptance of Work not complying
with the requirements of the Contract Documents.
Order, all Work shall be complete by the date
27
SECTION I Work has been accepted in writing by the Owner
CORRECTION Authorized Representative.
OF WORK
1.2. 3 The one-year period for correction of Work shall be
1.1 CORRECTION OF WORK BEFORE FINAL extended with respect to portions of Work oerformed
PAYMENT after Substantial Completion by the period of time
between Substantial Completion and the actual
The Contractor warrants to the Owner that performance of the Work, and shall be extended by
materials and equipment furnished under the corrective Work performed by the ContractorContractwillbeofgoodqualityandnewunlesspursuanttothisSection, as to the Work corrected.
otherwise required or permitted by the Contract The Contractor shall remove from the site portions of
Documents, that the Work will be free from the Work which are not in accordance with the
defects, and that the Work will conform to the requirements of the Contract Documents and are
requirements of the Contract Documents. Work neither corrected by the Contractor nor accepted byfailingtoconformtotheserequirementsshallbetheOwner.
deemed defective. Contractor shall promptly
remove from the premises and replace all defective 1.2.4 Nothing contained in this Section 1.2 shall be
materials and equipment as determined by the construed to establish a period of limitation with
Owner's Authorized Representative, whether respect to other obligations which the Contractor
incorporated in the Work or not. Removal and might have under the Contract Documents.
replacement shall be without loss or expense to Establishment of the period for correction of Work as
the Owner, and Contractor shall bear the cost of described in this Section 1.2 relates only to the
repairing all Work destroyed or damaged by such specific obligation of the Contractor to correct the
removal or replacement. Contractor shall be Work, and has no relationship to the time within
allowed a period of no longer than thirty (30)Days which the obligation to comply with the Contract
after Substantial Completion for completion of Documents may be sought to be enforced, nor to the
defective (punch list) work, unless otherwise time within which proceedings may be commenced
agreed. At the end of that period, or earlier if to establish the Contractor's liability with respect to
requested by the Contractor,Owner shall arrange the Contractor's obligations other than specifically to
for inspection of the Work by the correct the Work.
Architect/Engineer. Should the Work not be
complete, and all corrections made, the costs 1.2.5 If the Owner prefers to accept Work which is not in
for all subsequent re-inspections shall be borne by accordance with the requirements of the Contract
the Contractor. If Contractor fails to complete the Documents, the Owner may do so instead of
punch list work within the above time period, requiring its removal and correction, in which case
Owner may perform such work and Contractor the Contract Price will be reduced as appropriate and
shall reimburse Owner all costs of the same within equitable. Such adjustment shall be effected
ten (10) days after demand without affecting whether or not final payment has been made.
Contractor's obligations.
SECTION J
1.2 WARRANTY WORK SUSPENSION AND/OR TERMINATION OF THE WORK
Neither the final certificate of payment nor any
provision of the Contract Documents shall relieve the J.1 OWNER'S RIGHT TO SUSPEND THE WORK
Contractor from responsibility for defective Work and,
unless a longer period is specified, Contractor shall J.1. 1 The Owner and/or the Owner's Authorized
correct all defects that appear in the Work within a Representative has the authority to suspend
period of one year from the date of issuance of the portions or all of the Work due to the following
written notice of Substantial Completion by the Owner causes:
except for latent defects which will be remedied by the
Contractor at any time they become apparent. a) Failure of the Contractor to correct
unsafe conditions;
The Owner shall give Contractor notice of defects b) Failure of the Contractor to carry out
with reasonable promptness. Contractor shall perform any provision of the Contract;
such warranty work within a reasonable time after c) Failure of the Contractor to carry out orders;Owner's demand. If Contractor fails to complete the
warranty work within such period as Owner d) Conditions, in the opinion of the Owner's
determines reasonable, or at any time in the event of Authorized Representative, which are
warranty work consisting of emergency repairs, unsuitable for performing the Work;
Owner may perform such work and Contractor e) Time required to investigate differing
shall reimburse Owner all costs of the same within site conditions;
ten (10) Days after demand without affecting f) Any reason considered to be in the
Contractor;sobligations. public interest.
1.2.1 This provision does not negate guarantees J.1.2 The Owner shall notify Contractor and the
or warranties for periods longer than one year Contractor's Surety in writing of the effective
including without limitation such guarantees date and time of the suspension and Owner
or warranties required by other sections of the shall notify Contractor and Contractor's surety in
Contract_ writing to resume Work.
Documents for specific installations,
J.2 CONTRACTOR'S RESPONSIBILITIESmaterials, processes, equipment or fixtures.
J.2.1 During the period of the suspension, Contractor1.2.2 In addition to Contractor's warranty,
manufacturer's warranties shall pass to the is responsible to continue maintenance at the
Owner and shall not take effect until affected project just as if the Work were in progress. This
28
includes, but is not limited to, protection of instructions of the Owner or its Authorized
completed Work, maintenance of access, Representative;or
protection of stored materials, temporary
facilities,and clean-up. f) If Contractor is otherwise in material breach
of any part of the Contract.
J.2.2 When the Work is recommenced after the
suspension, the Contractor shall replace J.4.2 At any time that any of the above occurs, Owner
or renew any Work damaged during the may exercise all rights and remedies available to
suspension, remove any materials or Owner at law or in equity, and in addition, Owner
facilities used as part of temporary may take possession of the premises and of all
maintenance, and complete the project in materials and appliances and finish the Work by
every respect as though its prosecution whatever method it may deem expedient. In such
had been continuous and without case, the Contractor shall not be entitled to
suspension.receive further payment until the Work is
completed. If the Owner's cost of finishing the
J.3 COMPENSATION FOR SUSPENSION Work exceeds the unpaid balance of the Contract
Price, Contractor shall pay the difference to the
J.3.1 Depending on the reason for suspension of Owner.
the Work, the Contractor or the Owner may
be due compensation by the other party. J.5 TERMINATION FOR CONVENIENCE
If the suspension was required due to acts
or omissions of Contractor, the Owner may J.5.1 Owner may terminate the Contract in whole or in
assess the Contractor actual costs of the part whenever Owner determines that termination
suspension in terms of administration, of the Contract is in the best interest of the public.
remedial work by the Owner's forces or
another contractor to correct the problem J. 5.2 The Owner will provide the Contractor with seven
associated with the suspension, rent of J53.l 5 2 _(7) Days' prior written notice of a
temporary facilities, and other actual termination for public convenience. After such
costs related to the suspension. If the notice, the Contractor shall provide the Owner with
suspension was caused by acts or immediate and peaceful possession of the
omissions of the Owner, the Contractor premises and materials located on and off the
shall be due compensation which shall be premises for which the Contractor received
defined using Section D, Changes in progress payment under Section E. Compensation
Work. If the suspension was required for Work terminated by the Owner under this
through no fault of the Contractor or the provision will be according to Section E. In no
Owner,neither party owes the other for the circumstance shall Contractor be entitled to lost
impact. profits for Work not performed due to termination.
J.4 OWNER'S RIGHT TO TERMINATE CONTRACT J.6 ACTION UPON TERMINATION
J.4.1 The Owner may, without prejudice to any J.6.1 Upon receiving a notice of termination, and except
other right or remedy, and after giving as directed otherwise by the Owner, Contractor
Contractor seven (7) Days'written notice shall immediately cease placing further subcontracts
and an opportunity to cure, terminate the or orders for materials, services, or facilities. In
Contract in whole or in part under the addition, Contractor shall terminate all subcontracts
following conditions:or orders to the extent they relate to the Work
terminated and, with the prior written approval of
a) If Contractor should voluntarily or the Owner, settle all outstanding liabilities and
involuntarily, seek protection under termination settlement proposals arising from the
the United States Bankruptcy Code termination of subcontracts and orders.
and Contractor as debtor-in-
possession or the Trustee for the J.6.2 As directed by the Owner, Contractor shall upon
estate fails to termination transfer title and deliver to the Owner
assume the Contract within a reasonable all Record Documents, information, and other
time; property that, if the Contract had been completed,
would have been required to be furnished to
b) If Contractor should make a general the Owner.
assignment for the benefit of
Contractor's creditors; SECTION K
c) If a receiver should be appointed on
CONTRACT CLOSE
account of Contractor's insolvency; OUT
d) If Contractor should repeatedly refuse K.1 RECORD DOCUMENTS
or fail to supply an adequate number
of skilled workers or proper materials
As a condition of final payment (refer also to
to carry on the Work as required by section E.6), Contractor shall comply with the following:
the Contract Documents, or otherwise
Contractor shall provide to Owner's Authorized
fail to perform the Work in a timely
Representative, Record Documents of the entire project.
manner;
Record Documents shall depict the project as constructed
and shall reflect each and every change, modification,
e) If Contractor should repeatedly fail to and deletion made during the construction. Record
make prompt payment to Subcontractors Documents are part of the Work and shall be provided
or for material or labor, or should prior to the Owner's issuance of final payment. Record
disregard laws, ordinances or the Documents include all modifications to the Contract
29
Documents unless otherwise directed.Media shall be completion that has provided a minimum of
electronic in addition to a cloud based storage for thirty (30) continuous Days of
owner future use and access such as smartsheet.successful, trouble-free operation, which period
K.2 OPERATION AND MAINTENANCE MANUALS shall begin after all performance and acceptance
testing has been successfully demonstrated to the
As part of the Work, Contractor shall submit Owner's Authorized Representative. All equipment
two completed operation and maintenance manuals contained in the Work, plus all other components
O & M Manuals") for review by the Owner's necessary to enable the Owner to operate the
Authorized Representative prior to submission of facility in the manner that was intended, shall be
any pay request for more than 75% of the Work. complete on the Substantial Completion date.
No payments beyond 75% will be made by the The Contractor may request that a punch list be
Owner until the 0 & M Manuals have been prepared by the Owner's Authorized
received. All O& M and closeout duties Representative with submission of the request for
shall be via cloud based media such the Substantial Completion notice.
as smartsheet.com or other web
basPc mPrtia acceptable to owner in K.5 TRAINING
electronic formatting in addition to As part of the Work, and prior to submission of the
h a rd copies. The 0 & M Manuals shall request for final payment, the Contractor shall schedule with
contain a complete set of all submittals, all the Owner's Authorized Representative, training sessions for
product data as required by the specifications, all equipment and systems, as required in the individual
training information, phone list of consultants, specifications sections. Contractor shall schedule training
manufacturers, installer and suppliers, sessions at least two weeks in advance of the date of
manufacturer's printed data, record and shop training to allow Owner personnel adequate notice. Training by
drawings, schematic diagrams of systems, video shall be conducted by contractor at owner's request as
appropriate equipment indices, warranties and part of contract duties.
bonds. The Owner's Authorized Representative The 0 & M Manual shall be used as a basis for
shall review and retum one 0 & M Manual for any training. Training shall be a formal session, held after the
modifications or additions required. Prior to equipment and/or system is completely installed and
submission of its final pay request, Contractor operational in its normal operating environment. All training
shall deliver three (3) complete and approved sets shall be videotaped and recorded and provided by cloud based
of 0 & M Manuals to the Owner's Authorized accessible electronic means acceptable to the owner.
Representative.
K.6 EXTRAMATERIALS
K.3 mrr!Lamy i irrtcI.cMoE OF LIENS AND CLAIMS
As part of the Work, Contractor shall provide spare
As a condition of final payment, the parts, extra maintenance materials, and other materials or
Contractor shall submit to the Owner's Authorized products in the quantities specified in the specifications, prior
Representative a notarized affidavit/release of liens to final payment. Delivery point for extra materials shall be
and claims form, in a form satisfactory to Owner, designated by the Owner's Authorized Representative.
which states that all Subcontractors and suppliers
have been paid in full, all disputes with property K.7 ENVIRONMENTAL CLEAN-UP
owners have been resolved, all obligations on the As part of the Final Completion notice, or as a separate
project have been satisfied,all monetary claims and written notice submitted with or before the notice of Final
indebtedness have been paid, and that, to the Completion, the Contractor shall notify the Owner that all
best of the Contractor's knowledge, there are no environmental pollution clean-up performed as a part of this
claims of any kind outstanding against the project. Contract has been disposed of in accordance with all
The Contractor shall indemnify, defend (with applicable rules, regulations, laws, and statutes of all
counsel of Owner's choice) and hold harmless the agencies having jurisdiction over such environmental
Owner from all claims for labor and materials pollution. The notice shall reaffirm the indemnification given
finished under this Contract. The Contractor shall under Section F.5.1 above.
furnish complete and valid releases or waivers,
satisfactory to the Owner, of all liens arising out K.8 CERTIFICATE OF OCCUPANCY
of or filed in connection with the Work.The Contractor shall not be granted Final Completion or
K.4 COMPLETION NOTICES receive final payment if the Owner has not received an
unconditioned certificate of occupancy from the appropriate
K.4.1 Contractor shall provide Owner notice of state and/or local building officials, unless failure to obtain an
both Substantial and Final Completion, unconditional certificate of occupancy is due to the fault or
The certificate of Substantial Completion neglect of Owner.
shall state the date of Substantial
Completion, the responsibilities of the K.9 OTHER CONTRACTOR RESPONSIBILITIES
Owner and Contractor for security, The Contractor shall be responsible for returning to the
maintenance, heat, utilities, damage to Owner all items issued during construction such as keys,
the Work and insurance, and the time security passes, site admittance badges, and all other
within which the Contractor shall finish all pertinent items. The Contractor shall be responsible for
items on the punchlist accompanying the notifying the appropriate utility companies to transfer utility
Certificate. Both completion notices must charges from the Contractor to the Owner. The utility
be signed by the Contractor and the transfer date shall not be before Substantial Completion and
Owner to be valid. The Owner shall may not be until Final Completion, if the Owner does not
provide the final signature on the notices. take beneficial use of the facility and the Contractor's forces
The notices shall take effect on the date continue with the Work.
they are signed by the Owner.
K.4.2 Substantial Completion of a facility with
K.10 SURVIVAL
operating systems (e.g., mechanical, All warranty and indemnification provisions of this
electrical, HVAC) shall be that degree of Contract, and all of Contractor's other obligations under this
30
Contract that are not fully performed by the time of Mine Safety and Health Administration
Final Completion or termination, shall survive Final
Completion or any termination of the Contract Occupation Safety and Health Administration
Transportation,Department of
SECTION L Federal Highway Administration
LEGAL RELATIONS& Water Resources Council
RESPONSIBILITIES
L.3 STATE AGENCIES
L.1 LAWS TO BE OBSERVED
Administrative Services,Department of
In compliance with ORS 279C.525, Sections
L.2 through L.4 contain lists of federal, state and Agriculture,Department of Soil and Water
local agencies of which the Owner has knowledge
that have enacted ordinances or regulations relating Conservation Commission
to environmental pollution and the preservation of
natural resources that may affect the performance of Columbia River Gorge Commission Energy,
the Contract:
L.2 FEDERAL Department of Environmental Quality,Department
AGENCIES of Fish and Wildlife, Department of Forestry,
Agriculture,Department of Geology and Mineral Industries,
Department of Department of Human Resources,Department of
Forest Service Consumer and Business Services, Department of Land
Soil Conservation
Conservation and Development Commission Parks and
Service Coast
Recreation,Department of State Lands,Division of Water
Guard
Defense,
Resources
Department of
L.4 LOCAL AGENCIES
Army Corps of
City Councils
Engineers
Energy,
County Courts
Department of County Commissioner,Board of
Federal Energy Regulatory Commission Design Commissions
Environmental Protection Agency Historical Preservation Commission
Health and Human Services,Department of Planning Commissions
Housing and Urban Development,
Department of Solar Energy and Energy
Conservation Bank Interior,Department of
Bureau of Land
Management Bureau
of Indian Affairs
Bureau of Mines
Bureau of
Reclamation
Geological Survey
Minerals Management Service
U.S.Fish and Wildlife
Service Labor,
Department of
31
rol FORTIS 1705 SW Taylor Street 6
Suite 200 P>503+459-4478
CONSTRUCTION INC.
Portland,OR 97205 ccb#155766
EXHIBIT'E
CONTRACTOR'S FIXED RATES
for the Contract between
Fortis Construction.Inc.
Project Name: Lake Oswego Library Renovation August 30, 2016
Address: 706 4th Street, Lake Oswego, OR
Fortis Job No: TBD
1. Fixed Labor Rates-Rates are Valid thru Dec 31, 2016
Classification Rates Overtime Rates Double Time Rates
Principal 165.00
Project Executive 132.00
Senior Estimator 115.00
Estimator 98.00
MEP Estimator 112.00
Sr. Project Manager 115.00
Project Manager 102.00
Sr. Project Engineer 75.00
Project Engineer 75.00
MEP Manager 112.00
Sr. Superintendent 115.00
Superintendent 102.00
Assistant Superintendent 75.00
Safety Professional 93. 00
BIM Coordinator 82.00
Project Accountant 63. 00
Field Office Coordinator 58.00
IT 85.00
Carpenter Foreman 72.88 96.90 120.91
Carpenter Journeyman 64.75 86.68 108.60
Drywall Foreman 74.84 99.06 123.29
Drywall Journeyman 65.43 87.45 109.47
Labor Foreman 63. 08 83.53 103.98
Labor Journeyman 58.11 77.30 96.50
The rates defined herein are fixed as stipulated rates by this agreement of the Owner and the Contractor and shall, when multiplied by actual units
used,constitute the cost of the work as used in this Agreement for each labor classification listed.
Contractor's Fixed Rates are subject to increase on an annual basis on the anniversary date of the rates as shown above. Any such rate change shall
be accomplished by Change Order to the Contract by agreement of Owner and Contractor.
End of Exhibit"B"
Exhibit D 1
LO Library Renovation Master Schedule DAY CPM
r ., i L .:
Task Name Q2 Q3 Q4 Q1
Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar
1 ,l-JJ Full Project Duration Starting from DD Design
2 _ I IiPreconstruction i
3 I-i Hazmat Report I I I If
I I I I I
i
4 I Authorize PBS (or other) via reciprocal agreement
51 Test and provide report i 411111501
6 l I Alternative Method of Contracting Process (CM/GC)Ji
i7PublicHearingCityofLOPublicContractReviewBoardforAlternativetI
Method I
8 I-I CM/GC Selection Process 41
ii9CM/GC Proposal Process Ii
101 Review of Proposals & Shortlist
i1 i I
11 CM/GC Interviews I I I
121 CM/GC Tentative Award 7
I I 4, .
131 CM/GC Contract Negotiations I i
14 1 City of LO Public Review Board Approval of CM/GC I
15
16 i-I Design
I I 1-I
I-- I
17 Execute Hennebery Eddy (HE) Contract I I
18 Design Development Phase I - _•
19 Design Development
20 Owner Review and Comment
r--
21 1 Construction Document Phase I t,;
22 . Receive Owner Comments on DD Documents I t
23 Development of 90% Construction Documents for CM/GC
I
24 1 Development of Pricing Set of 50% CDs for CM/GC
25 Owner& CM/GC Review& Comment
I
2611
Finalize 90% Construction Documents I I t
27 Submit Permit to City for Approval I I i
28 ; City Permit Review and Approval 1 1 1 1
Exported on July 21, 2016 12:09:43 PM PDT Page 1 of 2
Task Name Q2 Q3 Q4 Q1
Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar
29 i-i CM/GC Preconstruction Services I L.)II d } I I
30 CM/GC to Estimate 50% Construction Documents I I I T }
It I
31 CM/GC to Develop Project Schedule It'_
32 CM/GC to Provide Constructability Review I I
33 CM/GC to Provide 90% CD Estimate & Constructability Review I I
I
34 CM/GC to Provide GMP I I j t35CityofLOBoardApprovalofGMPjjI
36 1—I Construction I I-I
I I d
37 Procure Long Lead Items -Lights, Flooring, Casework, Etc. I I
38 Receive Permit
39 Vacate Area of Remodel I I
7
j I
40 Demolition I I j li
41 TI Build I I I I 1
Exported on July 21, 2016 12:09:43 PM PDT Page 2 of 2
1
EXHIBIT B
CITY OF LAKE OSWEGO
GMP AMENDMENT TO CONTRACT
THIS AMENDMENT IS BETWEEN:
OWNER:
City of Lake Oswego
Lake Oswego Library
706 4th Street
Lake Oswego, OR 97034
And
FORTIS CONSTRUCTION INC.
CONSTRUCTION MANAGER/
GENERAL CONTRACTOR
(referred to in the Standard General
Conditions For Public Improvement
Contracts as Contractor and referred to
herein as "the CM/GC"):
The Project is: City of Lake Oswego Library Workroom Renovation
Date of Original CM/GC Contract:
Date of this Amendment: Jan, 1 2016
ATTACHMENT 2
34
The Owner and CM/GC hereby amend the Contract as set forth below. Capitalized terms used
but not defined herein shall have the meanings given in the Contract Documents. Except as
amended hereby, the Contract remains in full force and effect.
1. GMP. The parties agree that the GMP for the Project is $735,951.00 , consisting
of the Preconstruction Fee, the Estimated Cost of the Work and the CM/GC Fee (stated as
a fixed dollar lump sum amount), as follows:
Preconstruction Fee: $ 13,417.00
Estimated Cost of Work (Est. COW): $ 688,128.00
CM/GC Fee/Liab. Insurance/P&P Bond
(5 % of Est. COW): $34,406.00
GMP (Total of above categories): $ 735,951.00
For purposes of determining the GMP, the Estimated Cost of the Work includes the CM/GC’s
Contingency, the Cost for GC Work, and the costs of all components and systems required for a
complete, fully functional facility.
2. Basis of GMP. The GMP is based on the GMP Supporting Documents attached as
Attachments A-D (16 pages) including the Allowances, assumptions, exclusions, unit prices,
and alternates designated therein.
3. Plans and Specifications. The Plans and Specifications for the Project are as listed in
the GMP Supporting Documents. CM/GC shall perform Construction Phase Services in
accordance with the Plans and Specifications and the other Contract Documents.
4. Substantial Completion Date. Notwithstanding any provision in the GMP Supporting
Documents to the contrary, the required date for Substantial Completion is: [Select one of the
following (insert new date if different Substantial Completion date has been agreed upon): the
date stated in the Contract/March 28th , 2017_ .]
5. Tax Compliance Certification. The individual signing on behalf of CM/GC hereby
certifies and swears under penalty of perjury that s/he is authorized to act on behalf of CM/GC,
s/he has authority and knowledge regarding CM/GC’s payment of taxes, and to the best of
her/his knowledge, CM/GC is not in violation of any Oregon tax laws. For purposes of this
certification, "Oregon tax laws" are those tax laws listed in ORS 305.380(4), namely ORS
Chapters 118, 314, 316, 317, 318, 320, 321 and 323 and Sections 10 to 20, Chapter 533, Oregon
Laws 1981, as amended by Chapter 16, Oregon Laws 1982 (first special session); the elderly
rental assistance program under ORS 310.630 to 310.706; and any local taxes administered by
the Oregon Department of Revenue under ORS 305.620.
THIS AMENDMENT is executed in four original copies of which one is to be delivered to the
CM/GC, and the remainder to Owner.
35
CM/GC:
Name of Firm: Fortis Construction, Inc.
Address: 1705 SW Taylor St. Suite 200 Portland, OR 97205
CM/GC's Federal Tax I.D. #:
Construction Contractor's Board Registration No.: 155766
Signature of Authorized Representative of CM/GC
Title Date
OWNER:
CITY OF LAKE OSWEGO
Signature of City of Lake Oswego Representative
Title Date
Attachment A Plans, Specifications, Supplementary Conditions of the Contract, on which the
Guaranteed Maximum Price is based, pages 1 through 4 dated
12/28/16 .
Attachment B Allowance items, pages 1 through 1 dated 12/28/16 .
Attachment C Assumptions and clarifications made in preparing the Guaranteed Maximum
Price, pages 1 through 9 , dated 12/28/16 .
Attachment D Completion schedule, pages 1 through 2 , dated 12/28/16
.
.
36
1705 SW TAYLOR STREET P> 503+459+4477
SUITE 200 F> 503+459+4478
PORTLAND OR 97205 CCB# 155766
1. DRAWINGS ISSUED (as prepared by Hennebery Eddy Architects)
DWG TITLE DATE REV
CS Cover Sheet 12/2/2016 1
S001 Drawing Index & List of Abbreviations 11/18/2016 0
S901 Details 11/18/2016 0
AG00 General Notes 11/18/2016 0
AG01 Code Analysis 11/18/2016 0
AG02 Code Plan 11/18/2016 0
A001 Demolition Plan - First Floor 12/2/2016 1
A002 Demolition Plan - Second Floor 11/18/2016 0
A003 Demolition Elevations 11/18/2016 0
A004 Demolition Reflected Ceiling Plan First Floor 12/2/2016 1
A201 Floor Plan - First Floor 12/2/2016 1
A301 Floor Plan - Second Floor 12/2/2016 1
A401 Roof Plan - Mechanical Area 11/18/2016 0
A501 Finish Plan - First Floor 12/2/2016 1
A503 Furniture Plan - First Floor 11/18/2016 0
A504 Detailed Plan - Restroom 11/18/2016 0
A601 Reflected Ceiling Plan - First Floor 12/2/2016 1
A701 Interior Elevations 12/2/2016 1
A702 Interior Elevations 12/2/2016 1
A703 Interior Elevations 12/2/2016 1
A902 Partition Details 11/18/2016 0
A903 Partition Details 11/18/2016 0
A904 Interior Details 12/2/2016 1
A905 Ceiling Details 12/2/2016 1
A906 Ceiling Details 11/18/2016 0
A907 Casework Details 11/18/2016 0
A908 Casework Details 11/18/2016 0
A910 Door Schedule & Details 11/18/2016 0
A920 Room Finish Schedule & Floor Transition Details 12/2/2016 1
M000 Symbols List and General Notes - Mechanical 11/18/2016 0
MD001 First Floor Demolition Floor Plan - HVAC 12/2/2016 1
M201 First Floor Plan - HVAC 12/2/2016 1
Lake Oswego Library
List of Drawings and Specifications
This Attachment is attached and incorporated into the above referenced Subcontract Agreement between the parties,
as the parties desire to amend said document. In the event of any conflict, inconsistency or ambiguity between the
terms and provisions of this Attachment and those of the above referenced Subcontract Agreement between the
parties, this Attachment shall govern.
Entry Lobby and Workroom Renovation
Bid Package #1
December 5, 2016
Attachment 1
Attachment A - Contract Documents
12/28/16
Attachment 1 - List of Drawings Specifications Page 2
DWG TITLE DATE REV
M202 Second Floor Plan - HVAC 11/18/2016 0
M203 Roof Plan - HVAC 11/18/2016 0
M501 Schedules Mechanical 12/2/2016 1
M601 Details - Mechanical 12/2/2016 1
P000 Symbols List and General Notes - Plumbing 11/18/2016 0
PD201 First Floor Demolition Floor Plan - Plumbing 12/2/2016 1
P201 First Floor Plan - Plumbing 12/2/2016 1
P501 Schedules Plumbing 12/2/2016 1
E000 Symbols List and General Notes - Electrical 12/2/2016 1
ED001 First Floor Demolition Plan - Electrical 12/2/2016 1
ED002 First Floor Demolition - Power 12/2/2016 1
E201 First Floor Plan - Power 12/2/2016 1
E202 Second Floor - Power Plan 11/18/2016 0
E203 Roof Plan - Power 11/18/2016 0
E301 First Floor Plan - Lighting 12/2/2016 1
E501 One Line Diagram 12/2/2016 0
E601 Schedule - Electrical 12/2/2016 0
E701 Details - Electrical 12/2/2016 1
2. SPECIFICATIONS ISSUED (as prepared by Hennebery Eddy Architects)
SPECS TITLE DATE REV
00 01 10 Table of Contents 11/18/2016 0
01 10 01 General Division 1 11/18/2016 0
01 23 00 Alternates 11/18/2016 0
01 32 33 Photographic Documentation 11/18/2016 0
01 45 60 Seismic Bracing Requirements 11/18/2016 0
01 64 03 Substitution Request Form 11/18/2016 0
02 41 00 Demolition 11/18/2016 0
03 54 00 Cast Underlayment 11/18/2016 0
05 50 00 Metal Fabrications 11/18/2016 0
06 10 00 Rough Carpentry 11/18/2016 0
06 20 00 Finish Carpentry 11/18/2016 0
06 41 00 Architectural Wood Casework 11/18/2016 0
06 64 10 Fiberglass Reinforced Panels 11/18/2016 0
07 21 00 Thermal Insulation 11/18/2016 0
07 46 23 Wood Siding 11/18/2016 0
07 51 00 Built-Up Bituminous Roofing 11/18/2016 0
07 62 00 Sheet Metal Flashing and Trim 11/18/2016 0
07 84 00 Firestopping 11/18/2016 0
07 90 05 Joint Sealers 11/18/2016 0
08 11 13 Hollow Metal Doors and Frames 11/18/2016 0
08 14 16 Flush Wood Doors 11/18/2016 0
08 43 13 Aluminum Framed Storefronts 11/18/2016 0
08 71 01 Door Hardware 11/18/2016 0
08 80 00 Glazing 11/18/2016 0
09 00 00 Interior Finish Materials Schedule 11/18/2016 0
09 21 16 Gypsum Board Assemblies 11/18/2016 0
09 51 00 Acoustical Ceilings 11/18/2016 0
09 65 00 Resilient Flooring 11/18/2016 0
09 68 13 Tile Carpeting 11/18/2016 0
09 90 00 Painting and Coating 11/18/2016 0
Attachment A - Contract Documents
Attachment 1 - List of Drawings Specifications Page 3
DWG TITLE DATE REV
10 11 01 Visual Display Boards 11/18/2016 0
10 26 01 Wall and Corner Guards 11/18/2016 0
10 28 00 Toilet, Bath, and Laundry Accessories 11/18/2016 0
12 36 00 Countertops 11/18/2016 0
21 00 00 Fire Suppression Basic Requirements 11/18/2016 0
21 05 00 Common Work Results for Fire Suppression 11/18/2016 0
21 13 00 Fire Suppression Sprinkler Systems 11/18/2016 0
22 00 00 Plumbing Basic Requirements 11/18/2016 0
22 05 19 Plumbing Devices 11/18/2016 0
22 05 23 General Duty Valves for Plumbing Piping 11/18/2016 0
22 05 29 Hangers and Supports for Plumbing Piping and Equipment 11/18/2016 0
22 05 53 Identification for Plumbing Piping and Equipment 11/18/2016 0
22 07 00 Plumbing Insulation 11/18/2016 0
22 10 00 Plumbing Piping 11/18/2016 0
22 40 00 Plumbing Fixtures 11/18/2016 0
23 00 00
Heating, Ventiliating, and Air Conditioning (HVAC) Basic
Requirements 11/18/2016 0
23 05 29 Hangers and Supports for Piping, Ductwork, and Equipment 11/18/2016 0
23 05 48 Vibration and Seismic Controls for HVAC Equipment 11/18/2016 0
23 05 53 Identification for HVAC Piping, Ductwork, and Equipment 11/18/2016 0
23 05 93 Testing, Adjusting, and Balancing for HVAC 11/18/2016 0
23 07 00 HVAC Insulation 11/18/2016 0
23 21 13 HVAC Piping 11/18/2016 0
23 31 00 HVAC Ducts and Ceilings 11/18/2016 0
23 33 00 Air Duct Accessories 11/18/2016 0
23 34 00 HVAC Fans 11/18/2016 0
23 37 00 Air Outlets and Inlets 11/18/2016 0
23 40 00 HVAC Air Cleaning Devices 11/18/2016 0
23 81 26 Small Split System and Unitary HVAC Equipment 11/18/2016 0
23 81 43 Air Source Heat Pumps 11/18/2016 0
26 00 00 Electrical Basic Requirements 11/18/2016 0
26 05 09 Equipment Wiring 11/18/2016 0
26 05 19 Low Voltage Electrical Power Conductors and Cables 11/18/2016 0
26 05 26 Grounding and Bonding for Electrical Systems 11/18/2016 0
26 05 29 Hangers and Supports for Electrical Systems and Equipment 11/18/2016 0
26 05 33 Raceways 11/18/2016 0
26 05 34 Boxes 11/18/2016 0
26 05 53 Identification for Electrical Systems 11/18/2016 0
26 09 25 Digital Lighting Controls 11/18/2016 0
26 27 26 Wiring Divices 11/18/2016 0
26 28 00 Overcurrent Protective Devices 11/18/2016 0
26 28 16 Enclosed Switches and Circuit Breakers 11/18/2016 0
26 33 23 Central Battery Equipment 11/18/2016 0
26 51 00 Lighting 11/18/2016 0
27 00 00 Communications Basic Requirements 11/18/2016 0
27 05 28 Pathways for Communications Systems 11/18/2016 0
28 00 01 Electronic Safety Basic Requirements 11/18/2016 0
28 31 00 Fire Detection and Alarm 11/18/2016 0
Attachment A - Contract Documents
Attachment 1 - List of Drawings Specifications Page 4
DWG TITLE DATE REV
3. OTHER DOCUMENTS
ITEM TITLE DATE REV
1 Addendum #1 Outline 12/2/2016 1
Attachment A - Contract Documents
Page 1 of 1
Lake Oswego Library Renovation
Attachment B – Allowance Items
December 28, 2016
Allowances are considered to be an allotted sum of money included for a particular system or scope of
work for which sufficient detail is not available to determine a definitive cost. These Allowances are
included to project a final cost to include labor, materials, equipment, and any subcontractor costs. A
reasonable estimate for an assumed scope and quality is included as a placeholder only. If Contractor’s
actual costs of the work associated with listed allowances are more than or less than the allowance
amount, the GMP shall be adjusted accordingly by change order in accordance with the terms of the
Construction contract. Only the following Allowances’ have been included in the GMP.
The following allowances are contained within the GMP:
1. Furnish / install White ColorCore countertops in all instances where contract documents specify
finish type SS-1. Allowance = $6,000
2. Furnish / install hollow metal frames in all instances where contract documents specify
aluminum interior storefront system. Allowance = $4,000.
Estimate No: 5 Rev. 1
Prepared For:
As prepared by
LO Library Workroom Renovation
Lake Oswego/OR
Contact: Mike Woods
Phone: 503-522-3981
mike.woods@fortisconstruction.com
City of Lake Oswego
GMP Estimate
December 28, 2016
Attachment C - Assumptions and Clarifications
12/28/16
PROJECT:
LOCATION: DURATION:
ARCHITECT: JOB NO:
OWNER: DATE:
AREA SUMMARY:
1st Floor 3726 GSF
Total Construction Area 3,726 GSF
Description Total $/GSF
Current Estimate:
Projected Construction Cost 735,950$ 197.52$ (from Systems Summary Cost)
Other Project Costs: By Others
Design
Design Fees By Owner
Permit/Inspection Fees
Plan Check Fees By Owner
Building Permit Fee By Owner
Fire Life Safety Fee (40% of Permit Fee) By Owner
City Business Tax (5% of Permit Fee)By Owner
City Housing Tax (1% of Value)By Owner
Special Code Req'd Inspections By Owner
System Development Fees
SDC Fees By Owner
Furnishings and Equipment
Systems Furniture By Owner
Relocate Existing Furniture By Owner
Exterior Building Signage By Owner
AMH Machine By Owner
RFID System By Owner
Office Furniture + Metal Shelving By Owner
Telecom/Data
Phone & Active Equipment By Owner
Security System By Owner
Voice/Data Cabling / System By Owner
Owner's Reserve @ 0%-$
Other Project Cost -$
Total Project Cost 735,950$ 197.52$
Alternates No.Allowances (Incl in budget)
-$ 1. Hollow Metal Interior Storefront 4,000$
-$ 2. ColorCore Countertops 6,000$
-$
-$
-$
Total Alternates -$ Total Allowances 10,000$
GMP Estimate
EXECUTIVE COST SUMMARY
LO Library Workroom Renovation
Based on drawings dated 11/18/16
LO Library Workroom Renovation
Lake Oswego/OR
Hennebery Eddy Architects
City of Lake Oswego
3 Months
LO Library Workroom
EST. No: 5 Rev. 1
16098
December 28, 2016
BUILDING
Attachment C - Assumptions and Clarifications
12/28/16
PROJECT:
LOCATION: DURATION:3 Months
ARCHITECT: JOB NO:16098
OWNER: DATE:December 28, 2016
AREA SUMMARY:
See Executive Summary for Detail 3,726 GSF
Total New Construction Area 3,726 GSF
Description Total $/GSF
Current Estimate:
1 DEMOLITION 23,805 $6.39
2 SITEWORK 0 $0.00
3 FOUNDATIONS 0 $0.00
4 SUBSTRUCTURE 0 $0.00
5 SUPERSTRUCTURE 36,250 $9.73
6 EXTERIOR SKIN 0 $0.00
7 ROOFING 6,200 $1.66
8 INTERIOR CONSTRUCTION 220,004 $59.05
CASEWORK 71,240 $19.12
INSULATION 0 $0.00
DOORS/FRAME/HARDWARE 17,609 $4.73
GLAZING 11,754 $3.15
WALLS/CEILING 79,478 $21.33
FLOORING 21,352 $5.73
PAINTING 11,623 $3.12
WINDOW COVERINGS 0 $0.00
MISC. SPECIALTIES/OTHERS 6,948 $1.86
9 CONVEYING 0 $0.00
10 SPECIAL CONSTRUCTION 0 $0.00
11 PLUMBING 28,373 $7.61
12 FIRE PROTECTION 9,193 $2.47
13 MECHANICAL 78,816 $21.15
14 ELECTRICAL 111,005 $29.79
15 JOBSITE MANAGEMENT 148,015 $39.72
16 SITE REQUIREMENTS 0 $0.00
SUBTOTAL 661,661 $177.58
Margins & Adjustment
Preconstruction 13,417 $3.60
CM / GC Fee 5.0%34,406 $9.23 5.0%
Design Contingency 0.0%0 $0.00 3.0%
Const. Contingency 4.0%26,466 $7.10 4.0%
TOTAL CURRENT ESTIMATE 735,950 $197.52
* Executive summary has project total cost
Hennebery Eddy Architects
SYSTEMS COST SUMMARY
LO Library Workroom Renovation
GMP Estimate
LO Library Workroom Renovation
Lake Oswego/OR
City of Lake Oswego
Building
EST. No: 5 Rev. 1
LO Library Workroom Renovation
Attachment C - Assumptions and Clarifications
12/28/16
COST OF WORK BREAKDOWNLO Library Workroom RenovationGMP Estimate Estimate No. 5 Rev. 1ELECTRICAL, 15.08%Design Contingency, 0.00%ROOFING, 0.84%CASEWORK, 9.68%Const. Contingency, 3.60%GLAZING, 1.60%MISC. SPECIALTIES/OTHERS, …DEMOLITION, 3.23%WALLS/CEILING, 10.80%FLOORING, 2.90%PLUMBING, 3.86%MECHANICAL, 10.71%Preconstruction , 1.82%DOORS/FRAME/HARDWARE, 2.39%PAINTING, 1.58%FIRE PROTECTION, 1.25%SUPERSTRUCTURE, 4.93%CM / GC Fee, 4.68%EXTERIOR SKIN, 0.00%Other, 10.85%Attachment C - Assumptions and Clarifications12/28/16
1. Project Understanding
a.This budget was generated from the following documents:
i. See Attachment A.
b.Project budget is based upon all work completed during regular work hours (starting at 6am) and a one-week library
shutdown occuring for demolition / replacement of gypsum flooring in lobby and staff workroom.
2. Allowance
a. Allowances are considered to be an allotted sum of money included for a particular system or scope of work for which
sufficient detail is not available to determine a definitive cost. These Allowances are included to project a final cost to
include labor, materials, equipment, and any subcontractor costs. A reasonable estimate for an assumed scope and
quality is included as a placeholder only. If Contractor’s actual costs of the work associated with listed allowances are
more than or less than the allowance amount, the GMP shall be adjusted accordingly by change order in accordance
with the terms of the Construction contract. Only the following Allowances’ have been included in the GMP.
i. Furnish / install White ColorCore countertops in all instances where contract documents specify finish type SS-1.
Allowance = $6,000
ii. Furnish / install hollow metal frames in all instances where contract documents specify aluminum interior storefront
system. Allowance = $4,000
3. Contingency
a. Design Contingency is included due to the time limitations and absence of design work. Fortis is currently carrying this
contingency at zero percent (0%).
b.Construction Contingency is included for items that have not been identified as a trade specific scope under the
contract documents and may require further clarification or coordination. Fortis is currently carrying this contingency at
four percent (4%). The Construction Contingency can be committed by Fortis Construction, Inc without authorization
from the Owner in order to cover cost anticipated but not committed on the current construction documents. These
costs may include "scope busts" (i.e. coordination issues between trades), missed scope during the subcontractor
bidding process and inefficiencies created by such items as relocation, mishaps, etc. Construction Contingency does
not account for design revisions or design development. Fortis will maintain a Construction Contingency log though the
duration of the project.
4. Schedule
a. Preliminary estimated construction schedule is 13 weeks from start of work on site.
b. The schedule has been arranged to account for long lead items. We have adjusted our start date to provide the most
cost efficient approach.
5. BOE
a. Demolition
Assumes FFE removal, including security gate demolition, is by Owner
Demolition of gypcrete flooring in library lobby and staff workroom included.
b.Interiors
c.Special Construction
Assumes AMH machine, self checkout RFID, staging carts, chairs, desks, and all remaining FFE is to be OFOI
d. Fire Sprinkler System
Assumes relocation of drops only - no mainline relocation included.
d.Electrical & Low Voltage
Assumes new doors will not require card reader access
BASIS OF ESTIMATE
LO Library Workroom Renovation
GMP Estimate Estimate No. 5 Rev. 1
Attachment C - Assumptions and Clarifications
12/28/16
BASIS OF ESTIMATE
LO Library Workroom Renovation
GMP Estimate Estimate No. 5 Rev. 1
Rough-in for LV data cabling is included.
6. Exclusions
a. Architectural, structural, landscape, civil, food service, mechanical, plumbing or electrical design fees.
b. Building permit intake or plan review fees
c. SDC's, TIF's or other jurisdictional fees
d. Utility connection or service extension fees
e. Hazardous material surveys and associated remediation
f. Geotechnical surveys
g. 3rd party code inspections or observations
h. Appliances, furniture or fixtures
i. Active electronics
j. Voice/data cabling
k. CCTV or CATV systems
l. Commissioning agent services
m. Utility fees - temporary and permanent
n.Utility connection fees (i.e. Domestic Water, Sanitary Sewer, Storm Drain, Fire Water, Electrical).
o.Consumption costs for power & water.
p.Security hardware, cabling, and rough-in
q.Automated Materials Handling Maching
r.RFID Self Checkout Kiosks
s.Adjustable Metal Shelving - furnish and installation excluded.
7. Unit Cost
a. n/a
Attachment C - Assumptions and Clarifications
12/28/16
Job No:16098
Estimate No:5 Rev 1
3,726
Date:12/28/16
sf
Location:
Design:
Owner:
Project:
Project Size:
Lake Oswego Library
Lake Oswego
HEA
Lake Oswego Library
GMP Estimate
Estimate 5 Rev 1
Lake Oswego Library Renovation
Group Phase Phase Quantity Unit Price Amount Subtotal
01 DEMOLITION
Interior Demolition
BP 1.01 - Demolition ls1 $23,805$23,805.00 Pacific Northwest
Environmental
$23,805Interior Demolition
$23,80501 DEMOLITION
05 SUPERSTRUCTURE
Gypsum Flooring
BP 1.02 - Replace Gyp Flooring sf3,726 $36,250$9.73 Ultra Quiet Floors
$36,250Gypsum Flooring
$36,25005 SUPERSTRUCTURE
07 ROOFING
Roofing / Flashing Patch
BP 1.07 - Roofing / Flashing ls1 $6,200$6,200.00 McDonald Wetle
$6,200Roofing / Flashing Patch
$6,20007 ROOFING
08 INTERIOR CONSTRUCTION
Architectural Woodwork
BP 1.05 - Architectural Woodwork ls1 $71,240$71,240.00 JS Perrott
$71,240Architectural Woodwork
Doors, Frames & Hardware
BP 1.09 Doors Frames Hardware ls1 $17,609$17,609.01 JS Perrott
$17,609Doors, Frames & Hardware
Glazing
BP 1.10 - Glazing ls1 $11,754$11,754.00 Culver Glass
$11,754Glazing
Drywall, Framing, Ceilings
BP 1.11 - Drywall, Framing, Ceiligns ls1 $79,478$79,478.00 Harlen's Drywall
$79,478Drywall, Framing, Ceilings
Flooring
BP 1.13 - Flooring ls1 $21,352$21,352.00 Rubensteins
$21,352Flooring
Report Date: Wednesday, December 28, 2016Page 1 of 3Fortis Construction, Inc.
Attachment C - Assumptions and Clarifications
12/28/16
Job No:16098
Estimate No:5 Rev 1
3,726
Date:12/28/16
sf
Location:
Design:
Owner:
Project:
Project Size:
Lake Oswego Library
Lake Oswego
HEA
Lake Oswego Library
GMP Estimate
Estimate 5 Rev 1
Lake Oswego Library Renovation
Group Phase Phase Quantity Unit Price Amount Subtotal
08 INTERIOR CONSTRUCTION
Latex Painting
BP 1.14 - Interior Painting ls1 $11,623$11,623.00 Hunt Painting
$11,623Latex Painting
Toilet Accessories
BP1.15 - Toilet Accessories ls1 $1,045$1,045.00 BMS
$1,045Toilet Accessories
Lockers
Double Tier, 36", Steel lkr6 $0$0.00 By Owner
$0Lockers
Fire Ext. Cabinets
BP 1.16 - Semi-Recessed Cabinets ls1 $371$371.00 BMS
$371Fire Ext. Cabinets
Final Cleanup
BP 1.22 - Final Clean ls1 $5,532$5,532.00 2C Building Services
$5,532Final Cleanup
$220,00408 INTERIOR CONSTRUCTION
10 SPECIAL CONSTRUCTION
Library Systems
AMH Machine (OFOI)lf0 $0$0.00 By Owner
Chairs (OFOI)lf0 $0$0.00 By Owner
Desks (OFOI)lf0 $0$0.00 By Owner
Office Furniture (OFOI)lf0 $0$0.00 By Owner
RFID Self Checkout Kiosks (OFOI)lf0 $0$0.00 By Owner
Staging Carts (OFOI)lf0 $0$0.00 By Owner
$0Library Systems
$010 SPECIAL CONSTRUCTION
11 PLUMBING/PROCESS PIPING
Plumbing
BP 1.19 - Plumbing ea1 $28,373$28,373.00 Alliant Systems
$28,373Plumbing
$28,37311 PLUMBING/PROCESS PIPING
12 FIRE PROTECTION
Report Date: Wednesday, December 28, 2016Page 2 of 3Fortis Construction, Inc.
Attachment C - Assumptions and Clarifications
12/28/16
Job No:16098
Estimate No:5 Rev 1
3,726
Date:12/28/16
sf
Location:
Design:
Owner:
Project:
Project Size:
Lake Oswego Library
Lake Oswego
HEA
Lake Oswego Library
GMP Estimate
Estimate 5 Rev 1
Lake Oswego Library Renovation
Group Phase Phase Quantity Unit Price Amount Subtotal
12 FIRE PROTECTION
T.I Fire Sprinklers
BP 1.18 - Fire Protection ls1 $9,193$9,193.00 Western States Fire
Protection
$9,193T.I Fire Sprinklers
$9,19312 FIRE PROTECTION
13 MECHANICAL
HVAC System
BP 1.20 - HVAC ls1 $78,816$78,816.00 Apollo Sheet Metal
$78,816HVAC System
$78,81613 MECHANICAL
14 ELECTRICAL
Electrical System
BP 1.21 - Electrical ls1 $111,005$111,005.00 Mill Plain Electric
$111,005Electrical System
$111,00514 ELECTRICAL
15 JOBSITE MANAGEMENT
Management
Fortis General Conditions Fee mo3 $148,015$49,338.25 Per RFP Response
(49338.25/mo)
$148,015Management
$148,01515 JOBSITE MANAGEMENT
$661,661SUBTOTAL
Construction Contingency $26,466
Fee $34,406
Preconstruction $13,417
$735,951TOTAL CURRENT ESTIMATE
Report Date: Wednesday, December 28, 2016Page 3 of 3Fortis Construction, Inc.
Attachment C - Assumptions and Clarifications
12/28/16
ID Task NameDuration StartFinish1PROJECT MILESONES70 daysFri 12/30/16Mon 4/10/172Construction Start0 daysFri 12/30/16Fri 12/30/163Library Closure5 daysMon 1/16/17Fri 1/20/174Entry Lobby Complete0 daysFri 3/10/17Fri 3/10/175Begin AMH Install0 daysFri 3/24/17Fri 3/24/176Staff Workroom Complete0 daysMon 3/27/17Mon 3/27/177Owner FFE Installation0 daysThu 3/30/17Thu 3/30/178Final Completion0 daysMon 4/10/17Mon 4/10/179PRECONSTRUCTION164 daysMon 7/11/16Mon 3/6/1710Design94 daysMon 7/11/16Fri 11/18/1611Design Development51 daysMon 7/11/16Tue 9/20/161250% DD Drawings40 daysMon 7/11/16Fri 9/2/1613Owner Review of 50% DD Set5 daysTue 9/6/16Mon 9/12/1614100% DD Drawings4 daysTue 9/13/16Fri 9/16/1615LO Approval of 100% DD Drawings2 daysMon 9/19/16Tue 9/20/1616Construction Documents43 daysWed 9/21/16Fri 11/18/161750% CD Drawings16 daysWed 9/21/16Wed 10/12/161895% CD Drawings15 daysThu 10/13/16Wed 11/2/1619Owner / GC Review of 95% CD Set5 daysThu 11/3/16Wed 11/9/1620100% CD Drawings / Permit Drawings7 daysThu 11/10/16Fri 11/18/1621Permitting20 daysFri 11/18/16Tue 12/20/1622Submit Building Permit0 daysFri 11/18/16Fri 11/18/1623Building Permit Review20 daysMon 11/21/16Tue 12/20/1624Budget / Buyout70 daysMon 9/19/16Thu 12/29/1625100% DD Estimate10 daysMon 9/19/16Fri 9/30/1626100% DD Constructability Review10 daysMon 9/19/16Fri 9/30/162750% CD Estimate10 daysThu 10/13/16Wed 10/26/162850% CD Constructability Review10 daysThu 10/13/16Wed 10/26/1629Bidding Buyout / GMP Establishment20 daysMon 11/21/16Tue 12/20/1630Owner Approval of GMP5 daysWed 12/21/16Thu 12/29/1631Procurement45 daysFri 12/30/16Mon 3/6/1732Lighting45 daysFri 12/30/16Mon 3/6/1733Flooring45 daysFri 12/30/16Mon 3/6/1734Casework35 daysFri 12/30/16Fri 2/17/1735Automatic Materials Handler (OFOI)10 daysFri 12/30/16Fri 1/13/1736RFID Self-Checkout Terminals (OFOI)10 daysFri 12/30/16Fri 1/13/1737CONSTRUCTION62 daysFri 12/30/16Wed 3/29/1738Mobilization2 daysFri 12/30/16Tue 1/3/1739MEP Safe-Off / Temp Protection3 daysWed 1/4/17Fri 1/6/1740Staff Workroom55 daysMon 1/9/17Mon 3/27/1741Soft Demolition5 daysMon 1/9/17Fri 1/13/1742Gyp Floor Demo (Library Closed)3 daysMon 1/16/17Wed 1/18/1743Pour New Gyp Flooring (Library Closed)2 daysThu 1/19/17Fri 1/20/1712/30Construction Start1/16Library Closure3/10Entry Lobby Complete3/24Begin AMH Install3/27Staff Workroom Complete3/30Owner FFE Installation4/10Final Completion7/1150% DD Drawings9/6Owner Review of 50% DD Set9/13100% DD Drawings9/19LO Approval of 100% DD Drawings9/2150% CD Drawings10/1395% CD Drawings11/3Owner / GC Review of 95% CD Set11/10100% CD Drawings / Permit Drawings11/18Submit Building Permit11/21Building Permit Review9/19100% DD Estimate9/19100% DD Constructability Review10/1350% CD Estimate10/1350% CD Constructability Review11/21Bidding Buyout / GMP Establishment12/21Owner Approval of GMP12/30Lighting12/30Flooring12/30Casework12/30Automatic Materials Handler (OFOI)12/30RFID Self-Checkout Terminals (OFOI)12/30Mobilization1/4MEP Safe-Off / Temp Protection1/9Soft Demolition1/16Gyp Floor Demo (Library Closed)1/19Pour New Gyp Flooring (Library Closed)262925811141720232629147101316192225283136912151821242730369121518212427302581114172023262925811141720232629147101316192225283136912151821242725811141720232629147101316192225281471013July 2016August 2016September 2016October 2016November 2016December 2016January 2017February 2017March 2017April 2017May 2017TaskSplitMilestoneSummaryProject SummaryDeadlineCriticalCritical SplitProgressLake Oswego Library RenovationGMP Schedule12/22/16Page 1Project: LO Library Concept SchedDate: Thu 12/22/16Attachment D - GMP Construction Schedule12/28/16
ID Task NameDuration StartFinish44OH MEP Rough-In10 daysMon 1/23/17Fri 2/3/1745Wall Framing7 daysMon 1/30/17Tue 2/7/1746MEP Wall Rough-In7 daysMon 2/6/17Tue 2/14/1747Drywall5 daysWed 2/15/17Wed 2/22/1748Finish Walls6 daysWed 2/22/17Wed 3/1/1749Paint3 daysThu 3/2/17Mon 3/6/1750Install Ceiling Grid5 daysFri 3/3/17Thu 3/9/1751Install Light Fixtures5 daysFri 3/10/17Thu 3/16/1752Install Glazing5 daysFri 3/10/17Thu 3/16/1753Install Casework5 daysTue 3/7/17Mon 3/13/1754Install Flooring5 daysFri 3/17/17Thu 3/23/1755Install Doors + Hardware2 daysFri 3/24/17Mon 3/27/1756Entry Lobby54 daysMon 1/9/17Fri 3/24/1757Soft Demolition5 daysMon 1/9/17Fri 1/13/1758Gyp Floor Demo (Library Closed)3 daysMon 1/16/17Wed 1/18/1759Pour New Concrete Flooring (Library Closed)2 daysThu 1/19/17Fri 1/20/1760Wall Framing4 daysMon 1/23/17Thu 1/26/1761MEP Wall Rough-In3 daysFri 1/27/17Tue 1/31/1762Drywall2 daysWed 2/1/17Thu 2/2/1763Install Glazing2 daysFri 2/3/17Mon 2/6/1764Finish Walls / Paint6 daysTue 2/7/17Tue 2/14/1765Install Casework5 daysTue 2/21/17Mon 2/27/1766Install Flooring4 daysTue 3/7/17Fri 3/10/1767Install Service Desk10 daysMon 3/13/17Fri 3/24/1768Bathroom / Janitor's Closet35 daysMon 1/30/17Mon 3/20/1769Wall Framing3 daysMon 1/30/17Wed 2/1/1770MEP Rough-In10 daysThu 2/2/17Wed 2/15/1771Drywall4 daysThu 2/16/17Wed 2/22/1772Finish Walls / Paint7 daysThu 2/23/17Fri 3/3/1773Wall / Floor Tile6 daysMon 3/6/17Mon 3/13/1774Finishes5 daysTue 3/14/17Mon 3/20/1775GC Completion Activities2 daysTue 3/28/17Wed 3/29/1776Final Clean1 dayTue 3/28/17Tue 3/28/1777Punchlist Review + Final Inspections2 daysTue 3/28/17Wed 3/29/1778Substantial Completion0 daysTue 3/28/17Tue 3/28/1779POST CONSTRUCTION9 daysWed 3/29/17Mon 4/10/1780Punch List Corrections5 daysWed 3/29/17Tue 4/4/1781Library Completion Activities8 daysThu 3/30/17Mon 4/10/1782FFE Install5 daysThu 3/30/17Wed 4/5/1783Library Move-In3 daysThu 4/6/17Mon 4/10/1784Final Completion0 daysMon 4/10/17Mon 4/10/171/23OH MEP Rough-In1/30Wall Framing2/6MEP Wall Rough-In2/15Drywall2/22Finish Walls3/2Paint3/3Install Ceiling Grid3/10Install Light Fixtures3/10Install Glazing3/7Install Casework3/17Install Flooring3/24Install Doors + Hardware1/9Soft Demolition1/16Gyp Floor Demo (Library Closed)1/19Pour New Concrete Flooring (Library Closed)1/23Wall Framing1/27MEP Wall Rough-In2/1Drywall2/3Install Glazing2/7Finish Walls / Paint2/21Install Casework3/7Install Flooring3/13Install Service Desk1/30Wall Framing2/2MEP Rough-In2/16Drywall2/23Finish Walls / Paint3/6Wall / Floor Tile3/14Finishes3/28GC Completion Activities3/28Final Clean3/28Punchlist Review + Final Inspections3/28Substantial Completion3/29Punch List Corrections3/30FFE Install4/6Library Move-In4/10Final Completion262925811141720232629147101316192225283136912151821242730369121518212427302581114172023262925811141720232629147101316192225283136912151821242725811141720232629147101316192225281471013July 2016August 2016September 2016October 2016November 2016December 2016January 2017February 2017March 2017April 2017May 2017TaskSplitMilestoneSummaryProject SummaryDeadlineCriticalCritical SplitProgressLake Oswego Library RenovationGMP Schedule12/22/16Page 2Project: LO Library Concept SchedDate: Thu 12/22/16Attachment D - GMP Construction Schedule12/28/16
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Corinne Strauser, Deputy City Recorder
SUBJECT: Resolution 16-56, Development Review Commission Appointments
DATE: December 20, 2016
ACTION
Adopt Resolution 16-56, approving appointments to the Development Review Commission.
SUGGESTED MOTION
Adopt Resolution 16-56.
BACKGROUND
The City Council Interview Committee consisting of Councilor Jon Gustafson, Councilor Skip
O’Neill, Vice-Chair David Poulson, met on November 17, 2016 and December 19, 2016, to
interview candidates for the Development Review Commission.
It was the consensus of the Interview Committee to recommend that Brent Ahrend be
reappointed to the Development Review Commission for term expiring November 30, 2019,
Nader Taheri be appointed to Development Review Commission for term expiring November
30, 2019 and Nick Shur be appointed as an alternate should there be a vacancy on the
Commission before November 30, 2017, provided that the appointment to a particular vacancy
would not be inconsistent with the occupational requirements of LOC 12.51.030 (2). Mayor
Kent Studebaker concurred with the recommendations of the Interview Committee and has
made the appointments.
RECOMMENDATION
Adopt Resolution 16-56.
7.1
Page 2
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
ATTACHMENTS
1. Resolution 16-56
RESOLUTION 16-56
A RESOLUTION OF THE CITY COUNCILORS OF THE CITY OF LAKE OSWEGO APPROVING
APPOINTMENTS TO THE DEVELOPMENT REVIEW COMMISSION
WHEREAS, a City Council Interview Committee consisting of Councilor Jon Gustafson,
Councilor Skip O’Neill and DRC Vice-Chair David Poulson met on November 17, 2016 and
December 19, 2016, to interview candidates for the Development Review Commission;
and
WHEREAS, it was the consensus of the Interview Committee to recommend that Brent
Ahrend be reappointed to a full term ending November 30, 2019, and Nader Taheri be
appointed to a full term ending November 30, 2019, and that Nick Shur be appointed as
an alternate should there be a vacancy on the Commission before November 30, 2017;
WHEREAS, the Mayor has made the appointments recommended by the Interview
Committee;
NOW THEREFORE, BE IT RESOLVED, that The City Councilors of the City of Lake Oswego
approve the Mayor’s reappointment of Brent Ahrend and the appointment of Nader
Taheri for terms expiring November 30, 2019, and the appointment of Nick Shur as an
alternate should there be a vacancy on the Commission before November 30, 2017,
provided that the appointment to a particular vacancy would not be inconsistent with
the occupational requirements of LOC 12.51.030 (2).
This resolution shall take effect upon passage.
Considered and enacted by the City Councilors of the City of Lake Oswego at a regular
meeting held on the 3rd day of January, 2017.
AYES:
NOES:
ABSTAIN:
EXCUSED:
______________________________
Kent Studebaker, Mayor
ATTEST:
______________________________
Anne-Marie Simpson, City Recorder
APPROVED AS TO FORM:
____________________________
David Powell, City Attorney
ATTACHMENT 1
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Dina Balogh, Administrative Assistant
SUBJECT: Resolution 17-02-Parks, Recreation & Natural Resources Advisory Board
Appointment
DATE: December 16, 2016
ACTION
Adopt Resolution 17-02, approving an appointment to the Parks, Recreation & Natural
Resources Advisory Board.
SUGGESTED MOTION
Adopt Resolution 17-02.
BACKGROUND
On July 19, 2016, the City Councilors of the City of Lake Oswego adopted Resolution 16-43
approving the Mayor’s appointment of Tom Widden and Charles Aubin as first and second
alternates, respectively, on the Parks, Recreation & Natural Resources Advisory Board, to serve
in the event there are vacancies on the board. On December 13, 2016, board member Ryan
Hubbard resigned. Since first alternate Tom Widden was appointed to fill an earlier vacancy, it
is recommended that the City Councilors approve the Mayor’s appointment of second alternate
Charles Aubin to serve the remainder of Ryan Hubbard’s term ending on April 30, 2018.
RECOMMENDATION
Adopt Resolution 17-02.
ATTACHMENTS
1. Resolution 17-02
7.2
RESOLUTION 17-02
A RESOLUTION OF THE CITY COUNCILORS OF THE CITY OF LAKE OSWEGO APPROVING
AN APPOINTMENT TO THE PARKS, RECREATION AND NATURAL RESOURCES ADVISORY
BOARD
WHEREAS, on July 19, 2016, the City Councilors adopted Resolution 16-43 approving the
appointment of Tom Widden and Charles Aubin as first and second alternates,
respectively, to the Parks, Recreation & Natural Resources Advisory Board should there
be vacancies on the board through April 30, 2017; and
WHEREAS, on November 1, 2016 the City Councilors approved the appointment of first
alternate Tom Widden to fill a vacancy on the Board that resulted from an October 24,
2016 resignation; and
WHEREAS, Parks, Recreation & Natural Resources Advisory Board member Ryan
Hubbard resigned on December 16, 2016; and
WHEREAS, the Mayor has appointed second alternate Charles Aubin to fill the
remainder of Ryan Hubbard’s term on the board, subject to the approval of the City
Councilors;
NOW THEREFORE, BE IT RESOLVED, that the City Councilors of the City of Lake Oswego
approve the appointment of Charles Aubin to the Parks, Recreation & Natural Resources
Advisory Board to fill the remainder of Ryan Hubbard’s term ending on April 30, 2018.
This resolution shall take effect upon passage.
Considered and adopted by the City Councilors of the City of Lake Oswego at a regular
meeting held on the 3rd day of January, 2017.
AYES:
NOES:
ABSTAIN:
EXCUSED:
______________________________
Kent Studebaker, Mayor
ATTEST:
______________________________
Anne-Marie Simpson, City Recorder
APPROVED AS TO FORM:
____________________________
David Powell, City Attorney
ATTACHMENT 1
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Sarah Selden, Senior Planner
SUBJECT: Public Hearing for Ordinance 2726 – Amendments to the Evergreen R-7.5
Overlay District to Prohibit Additional Building Height Allowances (LU 16-0042)
DATE: December 20, 2016 DATE OF MEETING: January 3, 2017
ACTION
Conduct a public hearing on Ordinance 2726 to consider the Planning Commission’s
recommendation on amendments to the Evergreen R-7.5 Overlay District code to prohibit
additional building height allowances. The amendment was requested by the Evergreen
Neighborhood Association to help implement the residential character objectives of the
Evergreen Neighborhood Plan.
SUGGESTED MOTION
Move to approve LU 16-0042 and enact Ordinance 2726, including the findings and conclusions
in Exhibit A-1.1.
BACKGROUND/DISCUSSION
The Planning Commission held a public hearing on October 10, 2016 to consider amendments
to the Evergreen R-7.5 Overlay District code. The Evergreen Neighborhood Association provided
testimony in support; there was no testimony in opposition. The Commission adopted their
Findings, Conclusion and Order on November 14, 2016 (Exhibit B-1), recommending approval
by the Council.
For background information and an explanation of the proposal, please refer to the staff report
prepared for the Planning Commission hearing (Exhibit D-1). The recommended code
amendments can be found as Exhibit A-1.1, Attachment 2 and minutes from the Commission’s
hearing can be found as Exhibit C-1.
9.1
Page 2
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
ALTERNATIVES & FISCAL IMPACT
The proposed ordinance recommended by the Commission does not have a fiscal impact to the
City, because the amendments affect structure design but do not impact buildable floor area or
use of residential lots in the overlay district.
RECOMMENDATION
Based on the information presented in this report, staff recommends that the Council approve
LU 16-0042, and enact Ordinance 2726 (Exhibit A-1.1), which includes findings and conclusions.
EXHIBITS
A. Draft Ordinances
A-1.1 Draft Ordinance 2726, dated 12/20/16
Attachment 1: City Council Findings
Attachment 2: Proposed Code Amendments, 11/14/16
B. Findings, Conclusion and Order
B-1 Approved Planning Commission Findings, Conclusion and Order, 11/14/16
(Please note that Attachments referenced in the Findings are not included. Refer to
the final version of Attachments of Proposed Ordinance 2726 [Exhibit A-1.1]).
C. Minutes
C-1 Planning Commission Minutes – Public Hearing, 10/10/16
D. Staff Reports
D-1 Planning Commission Staff Report, 09/26/16
E. Graphics/Plans (no current exhibits)
F. Written Materials
F-1 Evergreen Neighborhood Plan Excerpt, adopted 2005
F-2 LOC 50.04.001.1.g Height – Additional Standards (excerpt from existing code)
F-3 Structure Height and Neighborhood Character Examples
Page 3
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
G. Letters
G-1 E-Mail from Francine Fitzpatrick, 10/06/16
G-2 E-Mail from Diana Boom, 10/07/16
G-3 E-Mail from Bill Cornett, 10/08/16
G-4 E-Mail from Don and Linda Nash, 10/08/16
G-5 E-Mail from Carol Radich, 10/09/16
BACKGROUND MATERIAL AND REFERENCES
Staff reports and public meeting materials that were prepared for these code amendments can
be found by visiting the project web page for LU 16-0042.
Use the link below to visit the City’s “Project” page. In the “Search” box enter LU 16-0042 then
press “Submit”:
http://www.ci.oswego.or.us/projects
Ordinance 2726 EXHIBIT A1.1/PAGE 1 OF 2
EXHIBIT A-1.1
LU 16-0042
ORDINANCE2726
AN ORDINANCE OF THE CITY OF LAKE OSWEGO AMENDING THE EVERGREEN R 7.5 OVERLAY
DISTRICT (LOC 50.05.002)TO PROHIBIT ADDITIONAL BUILDING HEIGHT ALLOWANCES AND
MAKE CORRECTIONS;AND ADOPTING FINDINGS (LU 16 0042).
WHEREAS,notice of the public hearing for consideration of this Ordinance was duly given in the
manner required by law;and
WHEREAS,a public hearing before the Planning Commission was held on October 10,2016,at
which the staff report,testimony,and evidence were received and considered;and
WHEREAS,the Planning Commission has recommended that LU 16 0042 be approved by the
City Council;and
WHEREAS,a public hearing on LU 16 0042 was held before the City Council of the City of Lake
Oswego on January 3,2017,at which the staff report,testimony,and evidence were received
and considered;and
WHEREAS,the Council finds that the Evergreen R 7.5 Overlay District code should be amended
to further implement the policy direction in the adopted Evergreen Neighborhood Plan;and
WHEREAS,the Council finds that the Evergreen Neighborhood Plan calls for working to ensure
that residential development occurs in a way that is compatible with the unique character of
the Evergreen neighborhood,consisting primarily of ranch,Cape Cod,and craftsman/bungalow
style homes that rarely exceed 1 1/2 stories or between 20 26 feet in height;and
WHEREAS,the Council finds that prohibiting additional height allowances for new construction
in the Evergreen R 7.5 Overlay District will help to make new development compatible with this
unique character;and
WHEREAS,the Council finds that the local street side yard setback requirement in the
Evergreen R 7.5 Overlay District code (LOC 50.05.002.4.b)was later adopted into the R 7.5 zone
citywide and is no longer needed in the overlay code.
The City of Lake Oswego ordains as follows:
Section 1.The City Council hereby adopts the Findings and Conclusions (LU 16 0042),attached
as Attachment A.
Section 2.The Lake Oswego Code is hereby amended by adding the new text shown in double
underlined type and deleting text shown in strikethrough type in Attachment B,dated
____________,2016.
Ordinance 2726 EXHIBIT A1.1/PAGE 2 OF 2
Section 3.Severability.The provisions of this ordinance are severable.If any portion of this
ordinance is for any reason held to be invalid,such decision shall not affect the validity of the
remaining portions of this ordinance.
Enacted at the meeting of the Lake Oswego City Council of the City of Lake Oswego held on the
_________day of ______________,2017.
AYES:
NOES:
ABSENT:
ABSTAIN:
EXCUSED:
___________________________________
Kent Studebaker,Mayor
Dated:____________________
ATTEST:
____________________________________
Anne Marie Simpson,City Recorder
APPROVED AS TO FORM:
____________________________________
David Powell
City Attorney
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Page 1 – FINDINGS & CONCLUSIONS (LU 16-0042)
DAVID D. POWELL
LAKE OSWEGO CITY ATTORNEY’S OFFICE
PO BOX 369 / 380 A AVENUE
LAKE OSWEGO, OREGON 97034
503.635.0225 / 503.699.7453 (F)
BEFORE THE CITY COUNCIL
OF THE CITY OF LAKE OSWEGO
A REQUEST FOR LEGISLATIVE TEXT
AMENDMENTS TO THE EVERGREEN R-7.5
OVERLAY DISTRICT CODE, LOC 50.05.002
LU 16-0042
CITY OF LAKE OSWEGO
FINDINGS & CONCLUSIONS
NATURE OF PROCEEDINGS
This matter came before the Lake Oswego City Council on the recommendation of the
Planning Commission for legislative amendments to the to the Evergreen R-7.5 Overlay District
code (LOC 50.05.002) to disallow the additional building height allowances of LOC
50.04.001.1.g.ii in the overlay district. This code amendment was requested by the Evergreen
Neighborhood Association and is intended to help implement the residential character
objectives of the Evergreen Neighborhood Plan.
HEARINGS
The Planning Commission held a public hearing and considered this application on
October 10, 2016. The Commission adopted its Findings, Conclusions and Oder recommending
approval of LU 16-0042 on November 14, 2016.
The City Council held a public hearing and considered the Planning Commission’s
recommendation on January 3, 2017.
CRITERIA AND STANDARDS
A. Any Applicable State Law
Oregon Revised Statute 197.307: Approval Standards for Certain Housing in
Urban Growth Areas
ATTACHMENT 1
(Ordinance 2726)
LU 16-0042
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Page 2 – FINDINGS & CONCLUSIONS (LU 16-0042)
DAVID D. POWELL
LAKE OSWEGO CITY ATTORNEY’S OFFICE
PO BOX 369 / 380 A AVENUE
LAKE OSWEGO, OREGON 97034
503.635.0225 / 503.699.7453 (F)
B. City of Lake Oswego Comprehensive Plan
Land Use Planning Goal:
Development (Community Development Code)
Policy A-1.b
Policy A-1.d
Design Standards and Guidelines
Policy C-1.a
Policy C-3
Policy C-5
Land Use Administration
Policy D-1
Policy D-3
Policy D-4
Community Culture Goal:
Civic Engagement
Policy 1
Policy 2
Inspiring Spaces and Places Goal:
Goal 1
Policy 1.a
Policy 7
C. City of Lake Oswego Community Development Code
LOC 50.07.003.3.c. Published Notice for Legislative Hearing
LOC 50.07.003.16a Legislative Decisions Defined
LOC 50.07.003.16b Criteria for Legislative Decision
LOC 50.07.003.16c Required Notice to DLCD
LOC 50.07.003.16.d.iii Planning Commission Recommendation Required
LOC 50.07.003.16.e City Council Review and Decision
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Page 3 – FINDINGS & CONCLUSIONS (LU 16-0042)
DAVID D. POWELL
LAKE OSWEGO CITY ATTORNEY’S OFFICE
PO BOX 369 / 380 A AVENUE
LAKE OSWEGO, OREGON 97034
503.635.0225 / 503.699.7453 (F)
FINDINGS AND REASONS
The City Council incorporates the staff report dated September 29, 2016, and the
Council Report dated December 20, 2016, with all exhibits, together with the Findings,
Conclusions & Order of the Planning Commission, as support for its decision.
CONCLUSION
The City Council concludes that LU 16-0042, as recommended by the Planning
Commission, complies with all applicable criteria and should be approved. The Council also
concludes that proposed Ordinance 2726, which implements LU 16-0042, should be enacted.
LU 16-0042 ATTACHMENT 2/PAGE 1 OF 3
Draft Code Amendments
November 14, 2016 (Planning Commission)
NOTE: New text is shown in double underline, and deleted text is shown in strikethrough.
50.05.002 EVERGREEN R-7.5 OVERLAY DISTRICT
1.PURPOSE
The purpose of the overlay is to ensure that residential development occurs in a way that is compatible
with the unique character of the Evergreen Neighborhood by assuring greater consistency in style and
scale between buildings.
2. APPLICABILITY
This section applies to all land within the Evergreen Overlay District, as shown on Figure 50.05.002-A:
Evergreen R-7.5 Overlay Boundaries.
Figure 50.05.002-A: Evergreen R-7.5 Overlay Boundaries
ATTACHMENT 2
LU 16-0042
LU 16-0042 ATTACHMENT 2/PAGE 2 OF 3
3. RELATIONSHIP TO OTHER DEVELOPMENT STANDARDS
To the extent that any requirement of this section imposes a regulation relating to the same matter as the
use, dimensional, or development regulations in the LOC, this section shall prevail.
4. DIMENSIONS AND DEVELOPMENT STANDARDS
a. Accessory Structure Roof Pitch
Roof pitch on new accessory structures exceeding 100 sq. ft. in size shall match the roof pitch of the
primary structure. Boathouses are exempt from this requirement.
b. Yard Setbacks
The side yard setback adjacent to a street for portions of any structure that exceed 16 ft. in height shall be
25 ft. on arterial and collectors and 15 ft. on local streets.
c. Front Setback Plane
i. Application
The front profile of a structure shall fit behind a plane that starts at the front yard setback
line and extends upward to 16 ft. in height, then slopes toward the rear of the lot at a slope
of 6:12, up to the maximum allowed height at the peak, as illustrated in Figure 50.05.002-B:
Front Setback Plane.
Figure 50.05.002-B: Front Setback Plane
LU 16-0042 ATTACHMENT 2/PAGE 3 OF 3
ii. Exceptions
(1) Any individual roof form may penetrate the front setback plane if it is less than
one-third of the total structure width at 16 ft. in height.
(2) Two or more separate and distinct roof forms, such as dormers, may project into
the front setback plane if they are less than one-half of the total structure width at 16
ft. in height.
d. Height – Additional Standards
The additional height allowed in the R-7.5 zone pursuant to LOC 50.04.001.1.g.ii is not permitted in
the Evergreen R-7.5 Overlay District.
APPROVED: 11/14/2016
LU 16-0042 EXHIBIT B-1/PAGE 1 OF 3
BEFORE THE PLANNING COMMISSION 1
OF THE 2
CITY OF LAKE OSWEGO 3
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A REQUEST FOR AMENDMENTS TO ) LU 16-0042 - 1906 6
EVERGREEN R-7.5 OVERLAY DISTRICT ) (CITY OF LAKE OSWEGO) 7
CODE, LOC 50.05.002 ) 8
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NATURE OF APPLICATION 10
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Legislative text amendment to the Evergreen R-7.5 Overlay District code (LOC 12
50.05.002) to disallow the additional building height allowances of LOC 50.04.001.1.g.ii 13
in the overlay district. This code amendment is requested by the Evergreen 14
Neighborhood Association and is intended to help implement the residential character 15
objectives of the Evergreen Neighborhood Plan. 16
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HEARINGS 18
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The Planning Commission held a public hearing and considered this application at its 20
meeting on October 10, 2016. 21
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CRITERIA AND STANDARDS 23
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A. Any Applicable State Law 25
Oregon Revised Statute 197.307: Approval Standards for Certain Housing in 26
Urban Growth Areas 27
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B. City of Lake Oswego Comprehensive Plan 29
Land Use Planning Goal: 30
Development (Community Development Code) 31
Policy A-1.b 32
Policy A-1.d 33
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Design Standards and Guidelines 35
Policy C-1.a 36
Policy C-3 37
Policy C-5 38
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Land Use Administration 40
Policy D-1 41
Policy D-3 42
Policy D-4 43
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EXHIBIT B-1
LU 16-0042
APPROVED: 11/14/2016
LU 16-0042 EXHIBIT B-1/PAGE 2 OF 3
Community Culture Goal: 1
Civic Engagement 2
Policy 1 3
Policy 2 4
5
Inspiring Spaces and Places Goal: 6
Goal 1 7
Policy 1.a 8
Policy 7 9
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C. City of Lake Oswego Community Development Code 11
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LOC 50.07.003.3.c. Published Notice for Legislative Hearing 13
LOC 50.07.003.16a Legislative Decisions Defined 14
LOC 50.07.003.16b Criteria for Legislative Decision 15
LOC 50.07.003.16c Required Notice to DLCD 16
LOC 50.07.003.16.d.iii Planning Commission Recommendation Required 17
LOC 50.07.003.16.e City Council Review and Decision 18
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CONCLUSION 20
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The Planning Commission concludes that LU 16-0042 is in compliance with all 22
applicable criteria. 23
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FINDINGS AND REASONS 25
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The Planning Commission incorporates the staff report, dated September 29, 2016, on 27
LU 16-0042 (with all exhibits attached thereto) as support for its decision. 28
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ORDER 30
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IT IS ORDERED BY THE PLANNING COMMISSION of the City of Lake Oswego that: 32
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1. The Planning Commission recommends that proposed Ordinance 2726, with 34
Attachment B (11/14/16) [LU 16-0042] be approved by the City Council. 35
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I CERTIFY THAT THIS ORDER was presented to and APPROVED by the Planning 37
Commission of the City of Lake Oswego. 38
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DATED this 14th day of November 2016. 41
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John LaMotte /s/ 44
John LaMotte, Chair 45
Planning Commission 46
APPROVED: 11/14/2016
LU 16-0042 EXHIBIT B-1/PAGE 3 OF 3
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ATTEST: 3
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PRELIMINARY DECISION - October 10, 2016 5
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AYES: Arthur, A. Brockman, Heape, LaMotte, Ward 7
NOES: None 8
ABSTAIN: None 9
EXCUSED: E. Brockman, Gaar 10
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ADOPTION OF FINDINGS AND ORDER - November 14, 2016 12
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AYES: Arthur, E. Brockman, Gaar, Heape, LaMotte, Ward 14
NOES: 15
ABSTAIN: 16
EXCUSED: A. Brockman 17
APPROVED: 12/12/2016
City of Lake Oswego Planning Commission
Minutes of October 10, 2016 EXHIBIT C-1/PAGE 1 OF 4
CITY OF LAKE OSWEGO
Planning Commission Minutes
October 10, 2016
1. CALL TO ORDER
Chair John LaMotte called the meeting to order at 6:30 p.m. in the Council Chamber of City
Hall, 380 A Avenue, Lake Oswego, Oregon.
2. ROLL CALL
Members present were Chair John LaMotte, Vice Chair Robert Heape, and Commissioners
Randy Arthur, Adrianne Brockman, and Bill Ward. Ed Brockman and William Gaar were
excused.
Staff present were Sarah Selden, Senior Planner; Leslie Hamilton, Senior Planner; Evan
Boone, Deputy City Attorney; and Iris McCaleb, Administrative Support.
Also present was Paden Prichard, representing Evergreen Neighborhood Association.
3. COUNCIL UPDATE
None.
4. CITIZEN COMMENT – Regarding issues not on the agenda
Vice Chair Heape noted he was able to pull Secretary of State information regarding
homeowners associations in Lake Oswego and would share the information with Mr. Siegel.
5. COMMISSION FOR CITIZEN INVOLVEMENT
Chair LaMotte announced ongoing recruitments for City boards and commissions.
6. MINUTES
6.1 Commissioner Ward moved to approve the Minutes of June 27, 2016, as amended. Vice
Chair Heape seconded the motion and it passed 5:0.
7. FINDINGS, CONCLUSIONS AND ORDER
7.1 Transportation Systems Plan Implementation (LU 16-0025)
On September 26, 2016, the Planning Commission made a preliminary recommendation that
the City Council approve the proposed amendments. Staff coordinators were Debra
Andreades, Senior Planner and Amanda Owings, Traffic Engineer.
Commissioner Arthur moved to approve the Findings, Conclusions and Order for LU 16-0025
as written. Vice Chair Heape seconded the motion and it passed 4:0:1. Commissioner A.
Brockman abstained.
EXHIBIT C-1
LU 16-0042
APPROVED: 12/12/2016
City of Lake Oswego Planning Commission
Minutes of October 10, 2016 EXHIBIT C-1/PAGE 2 OF 4
8. PUBLIC HEARING
8.1 Evergreen R-7.5 Overlay Code Revisions (LU 16-0042)
A request from the City of Lake Oswego for the Evergreen Neighborhood Association to
amend the text of the Evergreen R-7.5 Overlay District code (LOC 50.05.002) to disallow the
additional building height allowances of LOC 50.04.001.g.ii in the overlay district. Staff
coordinator was Sarah Selden, Senior Planner.
Chair LaMotte opened the hearing. Mr. Boone outlined the applicable criteria and procedures.
At time of declarations no conflicts of interest were reported.
Staff Report
Ms. Selden introduced Paden Prichard with the Evergreen Neighborhood Association, and
provided a brief presentation of proposed amendments including background information.
Ms. Selden shared information about Evergreen’s Residential Design Objectives included in
the Neighborhood Plan:
1940s-1950s ranch, Cape Cod, craftsman elements
Moderately pitched hipped and gable roofs predominant
Natural materials
She then provided additional information regarding the Plan’s implementation, noting that the
R-7.5 Overlay District was adopted by the City Council in 2008. She indicated that the
purpose of the overlay district was to implement the policy direction of the Plan in relation to
height and massing of homes, with the goal of limiting homes to 1½ stories as seen from the
street.
Mr. Prichard provided details about height, floor area ratio (FAR), and lot coverage of newly
built homes that did and did not use the additional permitted roof height allowance currently in
the Code. He added they had spoken with two local architects to clarify that the proposal to
remove the additional roof height would not impact living space or home design that was in
keeping with the Neighborhood Plan’s design objectives.
Ms. Selden shared the proposed Code amendments, as follows:
The additional height allowed in the R-7.5 zone pursuant to LOC 50.04.001.1.g.ii would
not be permitted in the Evergreen R-7.5 Overlay District.
Deletion of now redundant street side yard setback requirement (housekeeping
amendment).
She noted that the Residential Infill Design (RID) process would remain available as an option
to the standards. She explained that the neighborhood association conducted a survey last
spring and held several neighborhood meetings, with positive feedback. The City also sent
out legal notice to all affected property owners. She pointed out the written testimony
received, all of which was in support of the proposed amendment.
Questions of Staff
In response to a question about the availability of the RID process as an option, Mr. Prichard
stated it was his understanding that the RID process was not used for a hardship variance,
rather it was used when a design can be shown to be compatible. Ms. Selden clarified why
the street side yard setback of 15 feet was proposed for removal from the overlay, noting this
standard was now included in the base zone standards.
APPROVED: 12/12/2016
City of Lake Oswego Planning Commission
Minutes of October 10, 2016 EXHIBIT C-1/PAGE 3 OF 4
Citizen Comment
Darryl Boom, 557 Evergreen Road, Lake Oswego, 97034, encouraged the Commission to
recommend adoption of the ordinance to the City Council.
Chair LaMotte closed public testimony.
Deliberation and Preliminary Recommendation
Commissioner Ward moved to approve LU 16-0042 (Ordinance 2726) and recommend
adoption to the City Council. Commissioner A. Brockman seconded the motion and it passed
5:0. The vote on the findings, conclusions and order was scheduled for November 14, 2016.
9. WORK SESSION
9.1 Annual Community Development Code Amendments – Work Session #2 (LU 16-0030)
Reviewed draft code maintenance and policy amendments related to Pre-Application
Conference Exemptions; Downtown Redevelopment Design District (DRDD) Design Variance
Criteria; Accessory Structure Setbacks; R-2/DRDD Design Standards; DRDD Courtyards;
Lake Grove Village Center Parking; Fence Standards, and others. Proposed amendments
also correct cross references and clarify existing standards (LOC Chapters 50.01-50.11). Staff
coordinator was Leslie Hamilton, Senior Planner.
KEY AMENDMENTS – MAINTENANCE:
Pre-Application Conference Exemptions
Action Items:
Further refine the list of allowed exemptions.
Better describe criteria of minor modifications and minor variances and include
nuisance and odor.
Long Wall Planes – Zero Lot Dwellings
Ms. Hamilton noted this standard applied to narrow lots, which she defined. She added that
for a duplex, the lot was not considered narrow and the design standard did not apply. The
proposal was to treat zero lot line dwellings, which looked the same as duplexes, in the same
manner as a duplex in regard to the Long Wall Plane standard.
Ms. Hamilton next reviewed the following Key Amendments – Policy:
Accessory Structure Setback – Standardization
Action Items:
Do additional research about noise buffers that could be required.
Also address this issue with noise rating standards, to be revisited as a larger policy
discussion.
DRDD/Courtyards
Action Items:
Provide examples to help the Commission better understand whether or not a
courtyard should be required or what size of development would trigger a requirement.
APPROVED: 12/12/2016
City of Lake Oswego Planning Commission
Minutes of October 10, 2016 EXHIBIT C-1/PAGE 4 OF 4
Fence/Wall Height Exceptions
Action Items:
There was concern someone could build a 6-foot fence all the way around their
property if the setback was 10 feet; would like to explore design standards that would
allow views, openings or restrictions at the front of the house.
Appeal Fee Waiver Documentation
Action Items:
For cases where an appeal was not supported by the city recognized neighborhood
association or there was no neighborhood association, a provision should be added
stating that the appeal fee would be waived when a petition was submitted by a group
of individuals within a certain distance of the project. A designated number of
signatures on the petition would be required.
Remaining Proposed Amendments
Action Items:
Topic 14. DRDD and LGVCO – Rain Protection Standards. The Commission would
like to discuss further.
Topic 18. LGVCO – Mitigation Trees. Commissioners were concerned about the
potential cost to commercial developers as opposed to residential development. More
information comparing the commercial versus residential mitigation requirements and
costs was requested.
Topic 26. Site Access; Corner Lots. The Commission would like to discuss further.
Topic 32. Open Space. The Commission would like to discuss further.
Topic 36. Similar Use Determination Process. The Commission would like to discuss
further.
Topic 43. Height – Building. The Commission would like to discuss further.
Citizen Comment
None.
10. SCHEDULE REVIEW
There were no updates to the schedule.
11. OTHER BUSINESS – PLANNING COMMISSION
None.
12. ADJOURNMENT
There being no other business Chair LaMotte adjourned the meeting at 9:25 p.m.
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 1 OF 13
STAFF REPORT
CITY OF LAKE OSWEGO
PLANNING AND BUILDING SERVICES DEPARTMENT
I. APPLICANT'S REQUEST
The City of Lake Oswego is making this application for the Evergreen Neighborhood
Association to amend the text of Evergreen R-7.5 Overlay District code (LOC 50.05.002) to
disallow the additional building height allowances of LOC 50.04.001.1.g.ii in the overlay
district.
Ordinance 2726, which would enact these changes, is attached as Exhibit A-1.
II. APPLICABLE REGULATIONS
A. Any Applicable State Law
Oregon Revised Statute 197.307: Approval Standards for Certain Housing in Urban
Growth Areas
B. City of Lake Oswego Comprehensive Plan
Land Use Planning Goal:
Development (Community Development Code)
Policy A-1.b
Policy A-1.d
APPLICANT
City of Lake Oswego on behalf of Evergreen
Neighborhood Association
FILE NO.
LU 16-0042
LOCATION
Evergreen R-7.5 Overlay District
STAFF
Sarah Selden, Senior Planner
DATE OF REPORT
September 29, 2016
PLANNING COMMISSION HEARING DATE
October 10, 2016
EXHIBIT D-1
LU 16-0042
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 2 OF 13
Design Standards and Guidelines
Policy C-1.a
Policy C-3
Policy C-5
Land Use Administration
Policy D-1
Policy D-3
Policy D-4
Community Culture Goal:
Civic Engagement
Policy 1
Policy 2
Inspiring Spaces and Places Goal:
Goal 1
Policy 1.a
Policy 7
C. City of Lake Oswego Community Development Code
LOC 50.07.003.3.c. Published Notice for Legislative Hearing
LOC 50.07.003.16a Legislative Decisions Defined
LOC 50.07.003.16b Criteria for Legislative Decision
LOC 50.07.003.16c Required Notice to DLCD
LOC 50.07.003.16.d.iii Planning Commission Recommendation Required
LOC 50.07.003.16.e City Council Review and Decision
III. BACKGROUND AND DISCUSSION
Introduction/ Background
Neighborhood Plan and Overlay
In 2005, the City Council adopted the Evergreen Neighborhood Plan as a component of the
Comprehensive Plan. The neighborhood plan (‘Plan’) articulates the neighborhood’s vision
for Evergreen, and provides a set of goals, policies and action items intended to help
implement this vision.
The Plan states that ‘The neighborhood’s primary goal is the preservation of the single-
family detached residential character and the unique aesthetic of the existing
neighborhood’ (Evergreen Neighborhood Plan, page 10). The Plan describes this single-
family character and unique aesthetic in a statement of Existing Conditions, which notes
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 3 OF 13
the prominence of single-story ranch, Cape Cod, and Craftsman/Bungalow style homes that
rarely exceed 1 ½ stories or between 20-26 feet in height. The desired single-family
residential character is further supported by the Evergreen Neighborhood Design
Objectives, which note the prominence of moderately pitched hipped and gable roofs (see
Exhibit F-1).
To help ensure that future single family development is consistent with this architectural
character, the Plan called for the development of a zoning overlay district with additional
building design requirements for the Evergreen R-7.5 zone. In 2008, following additional
analysis and outreach, the Evergreen R-7.5 Overlay District was adopted by City Council.
The overlay district’s key provision is a front setback plane standard, illustrated on page
two of the overlay code (Attachment 2 to Ordinance 2726). This standard modifies the
setback plane regulation in the R-7.5 base zone by lowering the front profile of the setback
plane from 20 ft. to 16 ft. in height for the Evergreen R-7.5 zone. Limiting the height of a
home beyond 16 feet to the roofline of the house is intended to limit the bulk of the
building and minimize the perceived building height from the street.
The Evergreen Neighborhood Association feels that the overlay has been effective in
maintaining greater compatibility between existing and new development, and there is
continued neighborhood support for implementing this concept. In the eight years since
the overlay was adopted, the neighborhood also observed that some new homes are
constructed at a scale that is less compatible with the neighborhood, and sought a way to
address this issue.
Proposal Development and Public Involvement
In the fall of 2014, the Evergreen Neighborhood Association applied to the City for
neighborhood planning assistance to have their overlay revised. The request was approved,
and as directed by the Planning Commission staff worked with the neighborhood
association to identify their specific concerns with the current overlay, develop code
concepts, conduct public outreach, and refine a code amendment proposal for public
hearing.
The neighborhood association’s initial concept was to clarify the definition of 1 ½ stories to
ensure the upper story living space was between the ceiling of the first story and the
roofline, with sloping ceilings. Staff began working with the neighborhood association in
spring 2015 to clarify the issue and identify code amendment options. This work included a
walking tour to look at new homes, an analysis of house dimensions and architectural
features, and meetings with the board and planning subcommittee members.
After considering a range of approaches, in the spring of 2016 the neighborhood
association brought forward a proposal to limit building height in new construction. They
sought neighborhood input first though a neighborhood survey that asked residents to rate
the importance of the idea to ‘Limit the roof height of new homes.’ Of the 99 surveys
returned, 80% rated this item as ‘Very Important’ or ‘Important.’ The neighborhood
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 4 OF 13
association then brought a more detailed proposal to the general membership in May,
which would limit the 6 ft. of additional height, currently allowed for roof form projections,
to a range of 0-3 ft., based on the size of the lot. While there was support for this idea from
the 40 residents at the meeting, additional feedback from staff, including clarification of
current code requirements, led to the revised proposal outlined in the Discussion below.
The neighborhood association held another meeting on September 7, 2016, which was
noticed through a neighborhood-wide mailing. At this meeting, the board presented the
revised proposal to prohibit the additional six-foot height allowance for roof forms and
architectural features that project above the maximum base height standard, which is
currently allowed in all low-density residential zones. A motion was made to support the
proposed code change, which passed unanimously by the 25 residents in attendance.
Discussion
The following summarizes the proposed amendments in Ordinance 2726. Please see
Attachment 2 to Ordinance 2726 (henceforth referred to as “Attachment 2”) for the
proposed amendments.
Existing Height Regulations
The Community Development Code sets a maximum base height for structures in low-
density residential zones, with additional height allowances permitted under two
provisions (see Exhibit F-2 for code excerpt). Height may be increased by one foot for every
five additional feet in yard setback on all sides, beyond the minimum setback requirements
(LOC 50.04.001.1.g.i). Planning staff have not reviewed any residential building permits in
recent years that have used this provision, and for this reason it was not addressed by the
Evergreen Neighborhood Association and is not included in this proposal. Height may also
be increased for limited roof forms and architectural features that project above the
maximum base height, a provision that does get used in new residential construction. Roof
forms may extend up to six feet higher than the base height when specific building
dimensional standards are met (LOC 50.04.001.1.g.ii).
This second provision was added to the code in 2002 as part of the first round of Infill
amendments (Ord. 2333) as an incentive to break large roof forms into smaller more
complex ones. Concurrently, this package of amendments changed the way height was
measured to provide a consistent methodology citywide. Previously in most Lake Oswego
neighborhoods, including Evergreen, height was measured to the mid-point of the roof,
whereas now height is measured to the peak or highest point of a roof.
The R-7.5 zone has a base height standard of 28 ft. for flat lots, and permits an absolute
height of up to 34 ft. with roof projections. While the majority of lots in the Evergreen R-
7.5 Overlay would be considered flat, some elevation change occurs, particularly south of
Ellis Avenue and Berwick Road, which may result in a ‘Lot with Sloping Topography’
(elevation change of up to 10 ft. within the building footprint). Such lots have a maximum
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 5 OF 13
base height of 32 ft., and allow an absolute height of up to 38 ft. including permitted roof
projections.
The Code also limits lot coverage based on the absolute height of the primary structure
(including any projections), with any dwelling over 25 ft. in height limited to 25% lot
coverage. The neighborhood has observed that new homes built on smaller lots are more
often maximizing their lot coverage at 33-35% in order to achieve ground floor building
area. The code permits this amount of lot coverage only when the primary structure is
shorter (e.g. 22 ft. height limit for 35% coverage). Larger lots, however, can achieve a
desired ground floor area with a smaller percentage of lot coverage, which permits greater
structure height (homes 25 ft. and taller are limited to 25% lot coverage).
Proposed Amendments
The Evergreen Neighborhood Association proposes prohibiting the additional six ft. height
allowance for roof form projections in the Evergreen R-7.5 Overlay District, which are
currently allowed pursuant to LOC 50.04.001.1.g.ii (Exhibit F-2). The draft code
amendments in Attachment 2 add a new provision to the Evergreen Overlay District code
prohibiting the additional height allowed in all low-density residential zone, per
50.04.001.1.g.ii described above. A cross-reference to the overlay provision would be
added as an editor’s note to the end of LOC 50.04.001.1.g Height – Additional Standards.
Last, a code cleanup amendment is proposed to delete from the Evergreen Overlay a street
side setback requirement that is no longer different from the R-7.5 base zone standard.
Analysis
Staff and Evergreen neighbors evaluated building plans of new homes constructed since
2008 (adoption of Evergreen R-7.5 Overlay District) considered their height, roof form and
setback plane projections, along with building appearance at the street. This analysis
demonstrated that new homes built within the maximum base height (28 ft. typically) were
generally seen by neighbors as compatible with Evergreen’s residential character and built
in scale with surrounding homes. In contrast, two homes stood out to residents as taller
than typical homes in the neighborhood and less compatible with the existing and desired
ranch- and cottage-like character of Evergreen. These homes, shown in Exhibit F-3, are the
only new dwellings that have been built in Evergreen with additional height for roof form
projections.
With the majority of new Evergreen homes built without the additional height allowance,
the neighborhood asserts that the additional height is not necessary in achieving a well-
designed home that meets the needs of Evergreen residents. Homes built without
additional height projections demonstrate that a variety of architectural styles can be
achieved within the maximum base height, ranging from Neocolonial and Tudor to
contemporary. These architectural styles, which are typical to Evergreen and described in
the neighborhood plan, feature simple roof forms, often with moderately pitched roofs.
This contrasts with the complex roof forms that the additional height exception was
intended to encourage.
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 6 OF 13
This limitation may impact the roof design of a home by necessitating a lower pitched roof
or roof forms, but would not impact the buildable floor area. When asked what functional
value of a home would be lost by the proposed limitation, two local architects/designers
responded that the roof form projections served primarily to provide opportunities for
additional design flexibility and diversity.
With the above code change an applicant could still pursue a design variance through the
Residential Infill Design (RID) review process to receive an exception to the maximum base
height within the overlay. The RID approval criteria appear to be well suited to addressing
the neighborhood association’s concerns. They focus on design compatibility and scale
within the context of a neighborhood, and include consideration of: setbacks, setback
plane, and garage openings; distance and visibility from adjoining properties; preservation
of existing trees and other features of perceived value to adjoining properties; topography;
perceived building height, form, proportion, massing and orientation relative to adjoining
properties; treatment of elevations exposed to adjoining properties; perceived sight lines
to and from windows, decks and outdoor living spaces; fencing or screening; and
landscaping. The Neighborhood Design Objectives from the Evergreen Neighborhood Plan,
which note the prominence of moderately pitched hipped and gabled roofs, would also
serve as criteria for RID approval.
IV. NOTICE OF APPLICATION
A. Newspaper Notice
On October 6, 2016, public notice of the proposed CDC text amendments and
Planning Commission public hearing was published in the Lake Oswego Review.
B. ORS 227.186 (Measure 56) Notice
The City followed the procedures required by ORS 227.186 (Ballot Measure 56) for
notification of the owners of property potentially affected by the changes. The
notice was mailed to all property owners within the Evergreen R-7.5 Overlay District
on September 20, 2016.
C. DLCD Notice
Pursuant to LOC 50.07.003.16.c and ORS 197.610, staff provided notice of the
proposed CDC text amendments to the Oregon Department of Land Conservation
and Development (DLCD).
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 7 OF 13
D. Metro Notice
Pursuant to Metro Code 3.07.810 and .820, staff provided notice of the proposed
CDC text amendments to Metro not less than 35 days prior to the hearing date.
V. COMPLIANCE WITH APPROVAL CRITERIA
Legislative amendments to the CDC shall comply with the following criteria:
B. Any Applicable State Law
Oregon Revised Statute 197.307: Approval Standards for Certain Housing in Urban
Growth Areas
Findings: This statute requires that jurisdictions provide a clear and objective
approval path for “needed housing.” The proposed CDC amendment, which
applies to the development of single-family housing, maintains existing clear
and objective language for single-family dwellings while prohibiting the
additional height allowance for certain roof forms in the Evergreen
neighborhood. The code amendments also maintain the existing Residential
Infill Design (RID) Review variance procedure for granting additional building
height and varying other dimensional standards, consistent with the two-
track approach (clear and objective path and design review path) that is
authorized by the statute.
Conclusion: The proposed amendments are consistent with State statute.
C. Applicable Provisions of the City of Lake Oswego Comprehensive Plan
Staff finds that the following Comprehensive Plan Policies are applicable to this
proposal:
Land Use Planning
Compliance with Lake Oswego Comprehensive Plan, Development (Community
Development Code) Goal, Policies A-1.b and A-1.d.
Policy A.1.b: Maintain land use regulations and standards to: *** (b) promote
compatibility between development and existing and desired neighborhood
character.
Findings: The proposed CDC amendments promote compatibility of new
single-family development by limiting structure heights to be more similar to
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 8 OF 13
the existing and desired 1 1/2 story scale that is predominant in the
neighborhood.
Conclusion: The proposed amendments are consistent with this policy.
Policy A-1.d: Provide for the implementation of adopted neighborhood plans.
Findings: The Evergreen Neighborhood Plan includes a policy stating “Work
to ensure that development occurs in a way that is compatible with the
unique character of the Evergreen neighborhood” (Land Use: Residential,
Policy 1). The proposed CDC amendment helps to implement this policy,
based on the unique 1 1/2 story ranch and cottage architecture described in
the Plan as a defining neighborhood characteristic.
Conclusion: The proposed amendments are consistent with this policy.
Land Use Planning
Compliance with Lake Oswego Comprehensive Plan, Design Standards and
Guidelines, Policies C-1.a and C-5.
Policy C-1. Enact and maintain regulations and standards which require:
a. New development to enhance the existing built environment in terms
of size, scale, bulk, color, materials and architectural design;
Findings: In the Evergreen R-7.5 Overlay District, additional allowed
structure height for roof form projections and architectural features has not
served to enhance the built environment compared to structures built
without additional height projections. Rather, the additional height has
detracted from the consistent low heights in the neighborhood, which
contribute to its unique character. The proposed CDC amendments are
intended to ensure that new development enhances the neighborhood by
being built at a scale that is compatible with and complements surrounding
development.
Conclusion: The proposed amendments are consistent with this policy.
Policy C-5. Adopt and maintain clear and objective standards for needed housing,
pursuant to state law.
Finding/Conclusion: The proposed amendments are consistent with this
policy. See above response to Section B, Applicable State Law.
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 9 OF 13
Land Use Planning
Compliance with Lake Oswego Comprehensive Plan, Land Use Administration,
Policy D-1.
Policy D-1. Coordinate the development and amendment of City plans and actions
related to land use with other affected agencies, including county, state, Metro,
federal agencies and special districts.
Findings: Metro and the DLCD were notified of the proposed text
amendment at least 35 days prior to the first Planning Commission hearing,
as required by Metro Code and State law.
Conclusion: The proposal is consistent with this policy.
Policy D-3. A Neighborhood Association may request, or a group of citizens may
submit a petition requesting, that the City Council initiate a process to prepare a
Neighborhood Plan and implementing measures, without fee.
Findings: The Evergreen Neighborhood Association requested that the City
assist in preparing amendments to the Evergreen R-7.5 Overlay District
code. This request was approved by the Planning Commission during their
review of requests for neighborhood planning assistance, and affirmed by
the City Council in their 2015 review of Planning Commission goals.
Conclusion: The proposal is consistent with this policy.
Policy D-4. Develop specific Neighborhood Plans and implementing measures as a
means to enhance neighborhood livability and achieve desired neighborhood
character. Adopt specific Neighborhood Plans upon finding that the proposed
changes are in the public’s interest and consistent with the Comprehensive Plan. If
appropriate, implementation may be accomplished through creation of a new
zoning district or a new overlay zone.
Findings: The Evergreen Neighborhood Plan was adopted in 2005, and the
Evergreen R-7.5 Overlay District in 2008 to help implement the residential
land use policies in the plan. The proposed CDC amendment further
implements the neighborhood plan by addressing another aspect of the 1
1/2 story neighborhood scale, the overall building height. The CDC
amendment is consistent with the purpose of the overlay district code “…to
ensure that residential development occurs in a way that is compatible with
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 10 OF 13
the unique character of the Evergreen Neighborhood by assuring greater
consistency in style and scale between buildings.”
Conclusion: The proposal is consistent with this policy.
Community Culture
Compliance with Lake Oswego Comprehensive Plan, Civic Engagement Goal,
Policies 1-2.
Policy 1: Provide citizen involvement opportunities appropriate to the scale of a
given planning effort, ****.
Policy 2: Ensure that information related to land use planning and decision-making
is readily accessible to the public and easy to understand.
Findings: The Evergreen Neighborhood Association held two neighborhood
meetings at which proposals were discussed and votes were taken. The
neighborhood association also sought neighborhood feedback on the
concept of limiting height through a survey mailed to all Evergreen
residents. The Planning Commission held a work session on September 12,
2016 to receive input on the proposed code changes from staff,
representatives of the Evergreen Neighborhood Association, and the general
public. A citywide notice required by ORS 227.186 (Ballot Measure 56) was
sent with information about the proposed changes, and a notice of public
hearing was sent to all Lake Oswego Neighborhood Association chairs, along
with local and regional organizations, including LONAC, the Lake Oswego
Chamber of Commerce, and Metropolitan Homebuilders Association, and
affected public agencies.
Conclusion: The proposal is consistent with these policies.
Inspiring Spaces and Places
Compliance with Lake Oswego Comprehensive Plan, Inspiring Spaces and Places,
Goal 1, Policy 1.a and Policy 7.
Policy 1: Adopt implementation measures and guidelines that ensure:
a. New development in residential areas complements the existing built
environment in terms of size, scale, bulk, height, and setbacks.
Findings/Conclusion: The proposal is consistent with this policy, which is
similar to Land Use Policy C-1. See response to Policy C-1, above.
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 11 OF 13
Policy 7: Enhance the unique character of Lake Oswego’s neighborhoods and
commercial districts as the City grows and changes by adopting plans,
codes, guidelines and other implementation measures.
Findings: The neighborhood plan provides the policy basis to review how
well the neighborhood’s goals are being met, and to determine if code
refinements are needed over time to respond to evolving neighborhood
conditions. The proposed CDC amendments to the Evergreen Overlay
respond to observations about new development in the Evergreen
neighborhood; they are intended to helping to shape this change in a way
that continues to enhance the neighborhood.
Conclusion: The proposal is consistent with this policy.
C. Lake Oswego Community Development Code Procedural Requirements
LOC 50.07.003.3.c. Published Notice for Legislative Hearing
LOC 50.07.003.16a Legislative Decisions Defined
LOC 50.07.003.16b Criteria for Legislative Decision
LOC 50.07.003.16c Required Notice to DLCD
LOC 50.07.003.16.d.iii Planning Commission Recommendation Required
LOC 50.07.003.16.e City Council Review and Decision
Findings:
The Community Development Code 50.07.003.16.a defines “legislative
decisions” to include amendments to the CDC and to Comprehensive Plan
policies. Public hearings by the Planning Commission for recommendations
to the City Council for “legislative decisions” are required to have at least 10
days prior published notice, per LOC 50.07.003.16.d.iii and 50.07.003.3.c.
Notice is defined as being published in a newspaper of general circulation in
the City of Lake Oswego at least ten days in advance of the hearing, and
mailed at least ten days in advance to the Commission for Citizen
Involvement and to all recognized neighborhood associations. The notice
shall include:
i. The time, date, and place of the public hearing;
ii. A brief description of the proposed legislative amendment; and
iii. A phone number for obtaining additional information.
Notice of the public hearing was posted at City Hall, the Adult Community
Center, the Library, and Palisades building on September 30, 2016. The
hearing notice was published in the Lake Oswego Review newspaper on
September 29, 2016. Legislative notice was mailed per LOC requirements on
September 20, 2016.
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 12 OF 13
The criteria for a legislative decision are addressed in Sections A and B,
above. The City notified DLCD and Metro of the proposed action 35 days
before the initial evidentiary hearings.
Conclusion:
The CDC procedural requirements for the proposed amendments, including
public notice requirements for the public hearing, are met per the applicable
CDC criteria.
VI. CONCLUSION / RECOMMENDATION
The proposed amendments are in compliance with applicable City Comprehensive Plan
policies, state laws, and statewide planning goals. The amendments respond to public input
and incorporate changes requested by the Planning Commission during its public work
sessions on the proposal.
Based on the information presented in this report, staff recommends that the Commission
recommend adoption of Ordinance 2726 (including all attachments) to the City Council.
EXHIBITS
This staff report and all exhibits referenced below are part of the record and can be found by
visiting the land use webpage for case file LU 16-0042. A link is provided at the end of this report.
A. Draft Ordinances
A-1 Draft Ordinance 2726, dated 09/29/16
Attachment 1 – Reserved for City Council Findings (not included)
Attachment 2 – Proposed Draft Code Amendments, 09/29/16
B. Findings, Conclusion and Order (no current exhibits)
C. Minutes (no current exhibits)
D. Staff Reports (no current exhibits)
E. Graphics/Plans (no current exhibits)
F. Written Materials
F-1 Evergreen Neighborhood Plan Excerpt, adopted 2005
F-2 LOC 50.04.001.1.g Height – Additional Standards (excerpt from existing code)
F-3 Structure Height and Neighborhood Character Examples
Planning Commission Public Hearing
October 10, 2016
LU 16-0042 EXHIBIT D-1/PAGE 13 OF 13
G. Letters (no current exhibits)
BACKGROUND MATERIAL AND REFERENCES
Staff reports and public meeting materials that were prepared for these code amendments can be
found by visiting the project web page for LU 16-0042.
Use the link below to visit the City’s “Project” page. In the “Search” box enter LU 16-0042 then
press “Submit”:
http://www.ci.oswego.or.us/projects
LAND USE: RESIDENTIAL 9 EVERGREEN NEIGHBORHOOD PLANLAND USE: RESIDENTIAL
Existing Conditions
Single-family Residential
The single-family detached residential area of Evergreen Neighborhood consists
primarily of single-story, ranch style1 houses. Other architectural styles prominent
in that area of the neighborhood include Cape Cod2 and Craftsman/Bungalow3 styles.
Most houses are modest in scale (less than 2,500 square feet) and characterized by the
use of natural building materials, window and door openings emphasized with trim,
and gable and hip roof forms. Few detached homes in the neighborhood exceed 1 1/2
stories4 or between 20-26 feet in height. The area is designated and zoned R-7.5 in the
City’s Comprehensive Plan and Zone Map. That zone sets a minimum lot size of 7,500
square feet. The styles of dwellings coupled with large, old trees create the atmosphere
of a small, safe, quiet, rural village. The maintenance of this atmosphere preserves
residential quality of life as well as property values. Commercial and public interests are
served by maintaining the beauty of the neighborhood environment.
Attached and Multi-family Residential
There are currently 39 townhouses between Third Street, Evergreen Road, Second Street
and A Avenue. There are 15 row-house style condominiums facing Fourth Street. There
are 18 condominiums and 5 lofts facing Lakewood Bay. All of these properties have
their own garages that are located behind or under the buildings and are therefore not
seen from the street. All are architecturally compatible with their surroundings such as
the Lake View Village development. In addition, there are two apartment complexes
facing Evergreen and Third Street containing 68 apartments. The two apartment
complexes have off street parking woven between the buildings for the use of their
residents. These high-density structures have attractive landscaping between the street
and the buildings. None of the buildings exceed three stories in height. Area residents
are able to walk to the many amenities available in this area.
1Ranch Style: Ranch style homes are usually built from natural materials (wood fl oors and wood
or brick exteriors). Ranch homes lack much decorative detailing on the exterior aside from
shutters or roof supports. Windows are large (usually double hung or picture windows) and
often include sliding doors to a patio or deck.
2Cape Cod: Cape Cod style homes usually have two levels of living area featuring a steep roof
slope and dormers. The design is generally symmetrical and does not feature much overhang
or other ornamentation. The area of the second fl oor is usually 40-75% the area of the ground
fl oor.
3Craftsman/Bungalow: Craftsman or Bungalow style homes typically have 1 or 1.5 stories and
a low, pitched roof. They often have porches on the front with decorative square columns.
Decorative stained glass windows are also popular on these homes.
41 ½ Stories: A residence with two levels of living area featuring a steep roof slope and dormers.
The area of the second fl oor is smaller in area than the ground fl oor.
ADOPTED 2005
LU 16-0042 EXHIBIT F-1/PAGE 1 OF 8
10 LAND USE: RESIDENTIAL EVERGREEN NEIGHBORHOOD PLANIn addition to the buildings noted above there are several small rental units in an area
bounded by Evergreen and A Avenue and Fifth Street and Sixth Street. These include
three duplexes, a four unit building and a six unit building. Duplexes and fourplexes
are not currently allowed by the City’s Community Development Code. There are some
legal, non-conforming uses in the neighborhood that could not be rebuilt without a
variance.
Neighborhood Goals
The neighborhood’s primary goal is the preservation of the single-family, detached,
residential character and the unique aesthetic of the existing neighborhood. In order to
maintain the integrity of this character, new buildings, single-family and multifamily,
should blend with the architectural styles and scale of existing structures on the same
block face as the proposed development and on the block face across the street.
Additionally, good transitions should remain between different densities of housing
development and commercial. The neighborhood is very concerned about encroachment
of commercial or higher density housing (R-0, R-2, R-3, R-5, EC) into the single-family
area of the neighborhood, defi ned by what is currently zoned R-7.5 as shown in the map
at the end of this chapter.
Consensus among neighbors is that the preservation of existing single-family dwellings
is important to maintaining the character of the neighborhood. Experience has shown
that newer homes are typically larger than the houses they replace. Therefore, the
Evergreen neighborhood would like the Community Development Code to encourage
remodels, where appropriate, instead of tearing down existing homes. Houses with
non-conforming status can encounter a very diffi cult time attempting to remodel. It is
the hope that opportunities can be identifi ed in the future to make remodeling an existing
home easier.
The neighborhood would like to protect the existing greenscape in the neighborhood
through preservation of existing trees and landscaping, by requiring tree planting with
new development and through regular updates to the City’s tree removal and tree
protection policies city-wide. Evergreen would like the City to enact a requirement that
all development in the Evergreen neighborhood including single-family dwellings plant
street trees to:
a. Produce a continuous tree canopy over the street,
b. Reduce the apparent scale or size of the street, and
c. Enhance the beauty of the neighborhood.
Existing City Codes and Background
There are many ways in which the existing Community Development Code supports the
neighborhood’s goals.
Maintain and enhance the appearance and character of the
residential areas of the Evergreen neighborhood.
ADOPTED 2005
LU 16-0042 EXHIBIT F-1/PAGE 2 OF 8
LAND USE: RESIDENTIAL 11 EVERGREEN NEIGHBORHOOD PLANThe Residential Infi ll Design additions to the Community Development Code in 2003
introduced the concept of a front setback plane into residential zones in the City. This
regulatory control helps to reduce the perceived size of new structures at the street. The
Evergreen neighborhood supports the inclusion of this regulation, and others such as
lot coverage, yard setbacks and height restrictions which diminish the perceived size of
homes built in the neighborhood that are signifi cantly larger than existing
single-family, detached structures. Since the Infi ll Design additions have only been in
effect for a few years there is not strong evidence for how they are affecting the
Evergreen neighborhood. The neighborhood supports ongoing observation and
continued improvement to these standards to make sure they have their intended effect.
Current City codes require that when a development creates a public or private street, or
a parking lot, lights used to illuminate parking lots and pathways shall not produce
annoying or disabling glare at normal viewing angles. Effort, however, is required to
make sure these codes are enforced after development is complete. The neighborhood
wishes to work with the City to assure compliance with all existing regulations to
diminish light trespass.
Another concern for Evergreen neighbors has been the visual impact of residential
garages and parking facilities in the neighborhood. The 2003 Community Development
Code Infi ll Code Amendments addresses garages in the R-7.5 zone in Article 50.08.055,
requiring that they be directed away from the street, or set back from the front of the
house (subject to certain exceptions and exemptions).
The City’s Tree Code (LOC Chapter 55) seeks to preserve trees in the neighborhood that
are greater than 5” DBH (diameter at breast height). The neighborhood supports regular
assessments of the tree code by a committee or commission of Lake Oswego residents to
assure that it is indeed protecting the City’s existing trees to the greatest extent possible.
The current code (LOC 50.69) is intended to insure that proposed conditional uses are as
compatible as practical with surrounding uses. One of the three requirements for
approval of a conditional use is, “[t]he functional characteristics of the proposed use are
such that it can be made to be reasonably compatible with uses in its vicinity.”
However, there have been confl icts in the past between conditional uses in the Evergreen
neighborhood and surrounding residential neighbors. Confl icts have included: unwanted
light trespass and glare from building and parking lots into the residential area, noise
levels that are higher than desired in a residential area, a lack of compatibility in design
and size between residential and conditional uses and a lack of barriers which might
visually or audibly buffer these impacts. A concern exists that the expansion of existing
conditional use facilities or the approval of new conditional uses will exacerbate these
problems.
At the time an application is reviewed, LOC 50.69 provides a way for the hearing body,
or the City Manager, in the case of a minor modifi cation, to impose conditions to
assure compatibility of the proposed use with other uses in the vicinity. These
conditions include, but are not limited to:
ADOPTED 2005
LU 16-0042 EXHIBIT F-1/PAGE 3 OF 8
12 LAND USE: RESIDENTIAL EVERGREEN NEIGHBORHOOD PLAN a. Limiting the manner in which the use is conducted, by restricting
the time an activity may take place and by minimizing such
environmental effects as noise, vibration, air pollution, glare and
odor.
b. Limiting the location and intensity of outdoor lighting, requiring its
shielding, or both.
c. Limiting the height, size or location of a building or other structure.
d. Designating the size, number, location and design of vehicle access
points.
e. Designating the size, location, screening, drainage, surfacing or other
improvement of a parking area or truck loading area.
f. Requiring berming, screening or landscaping and designating standards
for its installation and maintenance.
The Lake Oswego Comprehensive Plan addresses zone changes in residential
neighborhoods in Goal 2, Land Use Planning. Section 1, Policy 5 directs the City to,
“maintain residential neighborhoods at existing zone and plan density designations,”
except where certain criteria can be met. The full text of this section of the
Comprehensive Plan, at the time this document was produced, is provided as
Appendix 1.
Policies
1) Work to ensure that development occurs in a way that is compatible with the unique
character of the Evergreen neighborhood.
2) Preserve the existing fabric of the neighborhood by developing incentives to remodel
existing homes, where feasible, instead of tearing down and rebuilding single-family,
detached residential properties.
Action Items
City Responsibility:
1) To promote compatibility between non-compliant development reviewed through
Residential Infi ll Design (RID) review process, create Evergreen Neighborhood
Design Objectives to serve as a guide for Residential Infi ll Design (RID) review
applications.
2) Recommend improvements to the Infi ll Standards as needed.
3) Together with the Evergreen Neighborhood Association, prepare for Planning
Commission review, a recommended Overlay Zone for the R 7-5 area of the
Evergreen Neighborhood to specify the following requirements:
a. To assure more consistency between buildings, accessory structures in the
detached, single-family area of the Evergreen neighborhood, including
garages, should have the same roof pitch as the primary structure.
b. To limit new home construction to 1 ½ stories in height, the front setback
plane requirement shall extend upward 16 feet (instead of 20 feet) before
sloping back at a 6:12 pitch.
c. Encourage the rehabilitation of existing structures with respect to setbacks
for homes built prior to 1950.
ADOPTED 2005
LU 16-0042 EXHIBIT F-1/PAGE 4 OF 8
LAND USE: RESIDENTIAL 13 EVERGREEN NEIGHBORHOOD PLAN4) Prepare for Planning Commission review, a City-wide amendment to the Community
Development Code requiring:
a. Two (2) street trees for every 50 feet of street frontage as a condition of
approval for a new structure in the residential zones of the City. Existing
street trees can be counted in order to comply with this requirement, as long
as the type, location and viability of the existing trees are suffi cient to provide
a full streetscape of trees. Waivers to this requirement shall be allowed for
situations where street trees are not appropriate.
Neighborhood Responsibility:
1) Through the neighborhood association, fi nalize the Neighborhood Design
Objectives. Involve members in regular updates when needed.
2) Organize a neighborhood subcommittee to promote planting and conservation of
trees, green spaces, and other vegetation that are appropriate for the neighborhood
and region. Plantings are an attractive means of providing buffers between
commercial or public-use and residential areas.
3) Through the Evergreen Neighborhood Association and with cooperation from
the City, provide information to neighbors and property owners about the 2003
Residential Infi ll Design additions to the Community Development Code, and
engage residents in ongoing monitoring of the regulations in LOC 50.08, the
Community Development Code standards for the R-7.5 zone.
4) Two Evergreen Neighborhood Association delegates will monitor new development
and attend pre-application meetings, where possible, with homeowners, developers,
and/or city representatives for the purpose of reviewing minor and major
development permit application requests.
4) Inform and educate members of the Evergreen Neighborhood Association about the
Comprehensive Plan policy to maintain residential neighborhoods at existing density
designations and the exceptions or criteria for allowing such a change (Goal 2 Land
Use Planning, Section 1, Policy 5).
1 1/2 Story Concept:
2nd fl oor is smaller in size than the 1st fl oor and
set back from the front of the structure.
ADOPTED 2005
LU 16-0042 EXHIBIT F-1/PAGE 5 OF 8
14 LAND USE: RESIDENTIAL EVERGREEN NEIGHBORHOOD PLANADOPTED 2005
LU 16-0042 EXHIBIT F-1/PAGE 6 OF 8
NEIGHBORHOOD DESIGN OBJECTIVES 15 EVERGREEN NEIGHBORHOOD PLAN EVERGREEN NEIGHBORHOOD
DESIGN OBJECTIVES
The following are an attempt to define the single-family, residential design character of
the Evergreen neighborhood. Developed by members of the Evergreen Neighborhood
Association in 2005, they provide general guidance, without legal obligation, for
new, detached, single-family home construction in the neighborhood. The goal is new
development that is compatible with existing homes in the community.
The Lake Oswego Community Development Code provides for the consideration
of neighborhood design objectives or guidelines when applying the criteria for
compatibility during the review of an application for Residential Infill Design Review
(LOC 50.72.020). That is the only official application of these guidelines upon new
development in the Evergreen neighborhood. Residential Infill Design Review is a
voluntary process. However, these guidelines may be consulted when questions arise
about compatibility generally in the neighborhood and can be a resource for property
owners considering new development.
The Evergreen neighborhood is characterized by a diversity of small, cottage-like homes
on large lots. Natural materials are often used including natural wood siding, masonry
and brick, low stone walls and wood fences, arbors and gates. Lush landscaping
including mature trees adds to the visual appeal of Evergreen homes, linking them to
their surroundings and adding natural color and texture. Moderately pitched hipped and
gable roofs are prominent. A few common styles in the neighborhood include the 1940’s
and 1950’s Ranch-style home, the one story Neocolonial or Cape Cod and rehabilitations
with Craftsman design elements.
Cottage-like appearance
(use of natural materials)
Craftsman elements
(use of natural materials)
ADOPTED 2005
LU 16-0042 EXHIBIT F-1/PAGE 7 OF 8
16 EVERGREEN NEIGHBORHOOD DESIGN OBJECTIVESEVERGREEN NEIGHBORHOOD PLANCottage-like appearance (use of
natural materials)
Craftsman elements (use of
natural materials)
Neocolonial (Cape Cod)
1940’s Ranch-style home
Neocolonial (Cape Cod)
1940’s Ranch-style home
1950’s Ranch-style home 1950’s Ranch-style home
ADOPTED 2005
LU 16-0042 EXHIBIT F-1/PAGE 8 OF 8
LU 16-0042 EXHIBIT F-2/PAGE 1 OF 1
50.04.001 DIMENSIONAL TABLE
1. RESIDENTIAL LOW DENSITY ZONES
***
g. Height – Additional Standards
A greater height than otherwise permitted is allowed for:
i. Single-Family Dwellings
Base building height may be increased by one ft. for every five additional ft. in yard setback on all
sides, beyond the minimum code standards provided in Table 50.04.001-1 above.
ii. Any Structure
Roof forms or architectural features (such as cupolas or dormers) of any structure provided that
these roof forms or features:
(1) Do not extend more than six ft. above the maximum specified base height;
(2) Do not, in total, exceed one-third of the width of the building or buildings as measured on
any elevation drawing for an individual roof form or projection or do not exceed one-half of the
width of the building for two or more separate roof forms or projections; and
(3) Do not, in total, cover more than 20% of the roof area on which they are located as
viewed from directly above for an individual roof form or projection or 30% for multiple roof
forms or projections. Examples of permitted exceptions are illustrated in Figure 50.04.001-B:
Height Exceptions.
Figure 50.04.001-B: Height Exceptions
EXHIBIT F-2
LU 16-0042
LU 16-0042 EXHIBITF-3/PAGE 1 OF 5
Structure Height and Neighborhood Character Examples
Homes with Additional Height for Roof Form Projections
220 5th Street
2.5 ft. additional height, projection of one roof feature less than 1/3 of structure width
EXHIBIT F-3
LU 16-0042
LU 16-0042 EXHIBITF-3/PAGE 2 OF 5
768 Berwick Road
3.5 ft. additional height
Projection of three roof features less than 1/2 of structure width
Additional Height
Projection
Max. Base
Height
LU 16-0042 EXHIBITF-3/PAGE 3 OF 5
Homes without Additional Height for Roof Form Projections
Below are examples of homes that comply with the Evergreen R-7.5 Overlay District standards,
and are built at a scale that the neighborhood association feels is compatible with the single-
family residential character of the neighborhood.
163 Berwick Road
Height: 24.5
Street Context
LU 16-0042 EXHIBITF-3/PAGE 4 OF 5
824 Evergreen Road
Height: 23 ft.
329 10th Street
Height: 27.5 ft.
LU 16-0042 EXHIBITF-3/PAGE 5 OF 5
148 5th Street
Height: 21.89 ft.
McCaleb, Iris
From:Francine Fitzpatrick <fitzpatrickfr@yahoo.com>
Sent:Thursday, October 06, 2016 12:39 PM
To:McCaleb, Iris
Cc:Ina Hammon
Subject:Evergreen R-7.5 Overlay Revisions
Regarding the proposed amendment for additional height allowances in the Evergreen neighborhood, we need
to keep things on a reasonable scale. Increasing roof heights would definitely be beneficial to developers, but
not to the people who live here.
Thank you.
Francine Fitzpatrick
832 Berwick Court
Lake Oswego, OR 97034
Sent from Yahoo Mail for iPad
LU 16-0042 EXHIBIT G-1/PAGE 1 OF 1
McCaleb, Iris
From:Diana Boom <diana@dboom.net>
Sent:Friday, October 07, 2016 2:35 PM
To:Planning Commission
Cc:Selden, Sarah; Diana
Subject:LU 16-0042 EVERGREEN OVERLAY
As you know,Paden Prichard and I participated in your 'Overlay'study session on Sept 12.A week later I fell and broke
my shoulder and have not yet recovered enough to resume 'normal'activities.If I were able I'd be at the hearing to tell
you of the support in our neighborhood for this addition to Evergreen's overlay.We believe it will be a simple solution
to neighbors'concerns about excessive building heights,yet not significantly infringe a builder's plans for a well
designed house.
I hope we can count on your support.Thank you.
LU 16-0042 EXHIBIT G-2/PAGE 1 OF 1
McCaleb, Iris
From:bill cornett <wtc827@gmail.com>
Sent:Saturday, October 08, 2016 10:55 AM
To:McCaleb, Iris
I ask that the guidelines reflect low-rise, small footprint priorities.
Thank you, Bill Cornett
LU 16-0042 EXHIIBIT G-3/PAGE 1 OF 1
McCaleb, Iris
From:Don & Linda Nash <ldnash@comcast.net>
Sent:Saturday, October 08, 2016 8:48 PM
To:Planning Commission
Cc:'Sarah Selden'
Subject:Evergreen R-7.5 Overlay Code Revisions (LU 16-0042)
My name is Don Nash.I live at 725 Lake Forest Drive.I am a member of the Board of Directors of EVNA.
I strongly concur that this revision to the Evergreen overlay is a simple solution to what can be a confusing problem of
excessive building height.This solution has the support of our neighbor association members.I strongly recommend
your approval of this revision.
Don Nash
C)503819 3363
LU 16-0042 EXHIBIT G-4/PAGE 1 OF 1
McCaleb, Iris
From:Carol <caradich@hotmail.com>
Sent:Sunday, October 09, 2016 3:51 PM
To:Planning Commission
Subject:ENA overlay
To the Planning Commission
I am writing in support of the proposed change to the Evergreen Neighborhood Association overlay code.I am
unfortunately out of town so unable to testify in person,but as a long time ENA board member I can assure you that we
have worked for sometime to find a way to ensure that new or remodeled homes are compatible with our
neighborhood character.
In our neighborhood survey earlier this year,retaining neighborhood character was cited,second only to traffic,as a
major concern.And limiting height was specifically noted as important or very important by a majority of respondents
Sarah Seldon and Paden Prichard have both been very helpful in helping to determine clear and objective code language
that would help limit the perceived size of new homes without imposing unfair limitations on new development.I hope
you will support their efforts and vote to approve this new code.
Regards
Carol Radich
Sent from my iPad
LU 16-0042 EXHIBIT G-5/PAGE 1 OF 1
EVERGREEN R-7.5 OVERLAY
REVISIONS (Ord. 2726)
P L A N N I N G A N D
B U I L D I N G S E R V I C E S
C i t y C o u n c i l P u b l i c H e a r i n g
J a n u a r y 3 , 2 0 1 7
BACKGROUND
Infill I Amendments (2003):
Height methodology change & allowances
made for roof forms/architectural features
(break up mass)
Evergreen Neighborhood Plan Adopted 2005
Preservation of single-family residential
character
Neighborhood character analysis: majority of
homes not more than 1 ½ stories / 26 ft. tall
RESIDENTIAL
DESIGN
OBJECTIVES
1940s-1950s ranch, Cape
Cod, craftsman elements
Moderately pitched
hipped and gable roofs
Natural materials
PLAN IMPLEMENTATION:
R-7.5 OVERLAY DISTRICT (2008)
OVERLAY RESULTS:
NEW CONSTRUCTION 2008-2016
24.5 ft. height
OVERLAY RESULTS:
NEW CONSTRUCTION 2008-2016
23 ft. height
OVERLAY RESULTS:
NEW CONSTRUCTION 2008-2016
27.5 ft. height
OVERLAY RESULTS:
NEW CONSTRUCTION 2008-2016
28 ft. height
OVERLAY RESULTS:
NEW CONSTRUCTION 2008-2016
22 ft. height
Max. Base Height
Addtl. Roof Height
OVERLAY RESULTS:
NEW CONSTRUCTION 2008-2016
2.5 ft. additional roof height
STREET CONTEXT
Max. Base Height
Addtl. Roof Height
OVERLAY RESULTS:
NEW CONSTRUCTION 2008-2016
3.5 ft. additional roof height
FRONT ELEVATION
Additional Height
Projection
STREET CONTEXT
ADDITIONAL PERMITTED HEIGHT
6 ft. or less of additional
height allowed for roof
forms or architectural
features
2+ forms ≤ 1/2
building width
1 form ≤ 1/3
building width
≤ 6 ft.
additional
height
Roof Area Limitations
PROPOSED CODE AMENDMENTS
The additional height allowed in the R-7.5
zone pursuant to LOC 50.04.001.1.g.ii is not
permitted in the Evergreen R-7.5 Overlay
District.
Deletion of now redundant street side yard
setback requirement
IMPACT OF AMENDMENT
•Additional height up to 6 ft. not likely to add
living space
•Impact is to design flexibility, not to loss of
functional space
•RID process available to seek exception for
compatible design
PUBLIC INVOLVEMENT
Spring 2016 survey question: ‘Limit the roof
height of new homes.’
–80% rated as very important or important
May and September neighborhood meetings
Measure 56 notice to property owners
DECISION-MAKING CRITERIA
Land Use Policies:
–Promote compatibility with existing and desired
neighborhood character
–Implement neighborhood plans
–Enhance built environment (size, scale, bulk) and
unique neighborhood character
Community Culture –Civic Engagement,
Inspiring Spaces & Places
CONCLUSION
Comprehensive Plan policies and CDC
procedural criteria are met
Planning Commission held public hearing
on Oct. 10, and recommended adoption
with no changes
Recommend adoption of Ord. 2726 with
Findings
From:Francine Fitzpatrick
To:Simpson, Anne-Marie
Cc:Ina Hammon; Bill Cornett
Subject:Ordinance 2726
Date:Thursday, December 22, 2016 4:25:22 PM
Hello Anne-Marie,
In reference to Ordinance No. 2726 for the Evergreen District, proposing to prohibit building
height allowances and make corrections, I agree with this proposal. The scale of buildings
here give our neighborhood its charm.
We really don't want to see oversized developments. Bigger isn't always better.
Thank you,
Francine Fitzpatrick
832 Berwick Court
Sent from Yahoo Mail for iPad
From:Diana Boom
To:Simpson, Anne-Marie; Simpson, Anne-Marie
Cc:Carol Radich; Paden & Norma Prichard
Subject:LOCC 1/3 agenda comment
Date:Saturday, December 31, 2016 7:45:25 AM
Hi Anne-Marie,
I commented on the city's site (Speak Up), but didn't get a confirmation that it had been received.
So here's my comment for Council's Jan 3 meeting - Agenda item 9.1 - Evergreen Overlay.
I support these changes to the Evergreen Neighborhood Overlay. When this came before Planning
Comm. it received unanimous support and praise by individual members during deliberations. These
changes will address neighbors' concerns about excessive building heights, yet not significantly
infringe a builder's plans for a well-designed house.
Diana Boom
557 Evergreen Rd
PO Box 328, 97034
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Paul Espe, Associate Planner
SUBJECT: Ordinance 2728 – Annexing Property at 5495 Tree Street
(Tax Lot 5000, Tax Map 21E18DB); AN 16-0008
DATE: December 14, 2016 Date of Meeting: January 3, 2017
ACTION
Enact Ordinance 2728 (Exhibit A-1), annexing Tax Lot
5000 (Tax Map 21E18DB) at 5495 Tree St.
SUGGESTED MOTION
Move to enact Ordinance 2728 .
INTRODUCTION/BACKGROUND
The proposed annexation is owner-initiated and will
result in the addition of approximately 0.25 acres of
residential land to the City. This Council report describes
the reasons for the annexation and provides basic
background information. The criteria for approving
annexations and the findings in support of this
annexation are included in Attachment B of Exhibit A-1.
Owner/Applicant: Brian Winters, Hillbrook Properties LLC.
Location/Size: The subject property consists of 0.25 acres (10,890 square feet) and is located on the
northeast corner of Tree Street and Pilkington Road.
Existing Land Use: Tax Lot 5000 is occupied by a single-family dwelling which take s direct access to Tree
Street .
Neighborhood: The property is located within the Rosewood Neighborhood.
Purpose of Annexation: The property owner initiated the annexation to connect to City sewer service.
DISCUSSION
Plan and Zone Designation: The subject property is currently under Clackamas County’s jurisdiction and
zoned Low Density Residential R-10. It is designated R-7.5, Low Density Residential on the City of Lake
Oswego Comprehensive Plan Map and will be zoned R-7.5 upon annexation.
9.2
Page 2
Development Potential: This is a 0.25 acre parcel occupied by a single family dwelling. The lot is not large
enough to divide.
Sensitive Lands: There are no Sensitive Lands designated on the property.
Sewer and Water Service: Sanitary sewer service is available from a City of Lake Oswego eight-inch
collection line in Pilkington Road. The existing septic tank on the property will need to be decommissioned
per DEQ standards.
Water is available from a Rivergrove Water District line in Tree Street. The closest fire hydrant is located
approximately 50 feet north of the site at the west side of Pilkington Road. The property will continue to
receive water from the Rivergrove Water District after annexation.
Surface Water Management: Currently, the territory is under the jurisdiction of the Surface Water
Management Agency of Clackamas County (SWMACC). Upon annexation, the territory will be withdrawn
from SWMACC and will be subject to the City’s storm water management regulations. Any new
development will be subject to these provisions, which ensure that new development does not have an
adverse effect on adjoining properties and does not overburden the City stormwater system.
Service Districts: Upon annexation, the property will, by operation of ORS 222.520, be withdrawn from the
Lake Grove Fire District #57, the Clackamas County Enhanced Sheriff’s Patrol District and the Surface Water
Management Agency of Clackamas County (SWMAC), but will remain in the Rivergrove Water District and
the Lake Grove Park District.
Transportation: Tree Street is a two-way local street and is currently under the jurisdiction of Clackamas
County. Tri Met Line 36, which runs along Jean Road and connects to the Tualatin Transit Center, provides
the closest bus service to the subject properties.
ALTERNATIVES & FISCAL IMPACT
The draft findings provided in Attachment B of Exhibit A-1 conclude that the proposed annexation complies
with all applicable State statutes and Metro code requirements. This annexation is for one parcel of
approximately 0.25 acres. The estimated assessed value of the residential property is 191,449. The
estimated tax revenue after the parcel is annexed is $495.00.
RECOMMENDATION
Staff recommends approval of AN 16-0008.
EXHIBITS
A-1 Ordinance 2728
Attachment A: Map
Attachment B: Criteria Findings Conclusion and Effective Date
Ordinance 2728, AN 16-0008
(Tax Map 21E18DB,
Tax Lot 5000) EXHIBIT A-1/PAGE 1
ORDINANCE 2728
AN ORDINANCE ANNEXING TO THE CITY OF LAKE OSWEGO ONE PARCEL CONSISTING OF 0.25
ACRES AT 5495 TREE STREET; DECLARING CITY OF LAKE OSWEGO ZONING PURSUANT TO LOC
50.01.004.5(a-c); AND REMOVING THE TERRITORY FROM CERTAIN DISTRICTS (AN 16-0008).
WHEREAS, annexation to the City of Lake Oswego of the territory shown in the map in
Attachment “A” and described below, would constitute a contiguous boundary change under
ORS 222.111, initiated by petition from the sole property owner as outlined in ORS 222.111(2);
and,
WHEREAS, the City has received consent for the proposed annexation from the sole property
owner and not less than 50 percent of the electors residing in the territory as outlined in ORS
222.125.
WHEREAS, the City has received consent for the proposed annexation from more than half the
owners of land in the territory, who own more than half of the land in the territory and more
than half of the assessed value of the land in the territory, as required by ORS 222.170; and,
WHEREAS, the part of the territory that lies within the Lake Grove Fire District #57 will, by
operation of ORS 222.520, be withdrawn from that district immediately upon approval of the
annexation; and,
WHEREAS, the part of the territory that lies within the Clackamas County Enhanced Sheriff’s
Patrol District will, by operation of ORS 222.520, be withdrawn from the district upon approval
of the annexation; and,
WHEREAS, the part of the territory that lies within the Surface Water Management Agency of
Clackamas County will by operation of ORS 222.250 be withdrawn from that agency
immediately upon approval of the annexation; and,
WHEREAS, LOC 50.01.004.5 specifies that, where the Comprehensive Plan Map requires a
specific Zoning Map designation to be placed on the territory annexed to the City, such a zoning
designation shall automatically be imposed on the territory as of the effective date of the
annexation; and,
WHEREAS, this annexation is consistent with the Urbanization Chapter of the City of Lake
Oswego’s acknowledged Comprehensive Plan, Oregon Revised Statutes 222.111(2), 222.125
and 222.170 for boundary changes, and Metro Code Sections 3.09.050).
Now, therefore, the City of Lake Oswego ordains as follows:
A tract of land located in the Southeast quarter of Section 18, Township 2 South, Range 1 East,
Willamette Meridian, Clackamas County, Oregon, more particularly described as follows:
Lot 1, Block 1, Pine Tree Addition, Plat No. 1121 of the Clackamas County Survey Records.
EXHIBIT A-1
AN 16-0008
Ordinance 2728, AN 16-0008
(Tax Map 21E18DB,
Tax Lot 5000) EXHIBIT A-1/PAGE 2
The annexed territory is depicted on Attachment A.
Section 2. The annexed area lies within the following districts and shall be retained within
these districts upon the effective date of annexation:
Lake Grove Park District
Rivergrove Water District
Section 3. The annexed area lies within the following districts and shall be withdrawn from
these districts upon the effective date of annexation:
Lake Grove Fire District #57
Clackamas County Enhanced Sheriff’s Patrol District
Surface Water Management Agency of Clackamas County
Section 4. In accordance with LOC 50.01.004.5, the City zoning designation of R-7.5 shall be
applied to the subject property on the effective date of annexation.
Section 5. The City Council hereby adopts the findings of fact and conclusions set forth in
Attachment B in support of this annexation ordinance.
Section 6. Effective Dates:
a.Effective Date of Decision to Annex. Pursuant to Metro Code 3.09.050(f), the
effective date of this annexation decision shall be immediately upon adoption, unless a
governmental entity that qualifies as a “necessary party” under Metro Code 3.09.020(j) has
contested this annexation, in which event this annexation decision shall be effective on the 10th
day following the mailing of this ordinance by the City Recorder to Metro and to all necessary
parties who appeared in this proceeding.
b.Effective Date of Annexation Ordinance. Pursuant to Lake Oswego City Charter,
Section 34, this ordinance shall be effective on the 30th day after its enactment.
c.Effective Date of Annexation. Following the filing of the annexation records with
the Secretary of State as required by ORS 222.177, this annexation shall be effective upon the
later of either:
1.the 30th day following the date of adoption of this ordinance; or
2.the date of filing of the annexation records with the Secretary of State.
Provided, however, that pursuant to ORS 222.040(2), if the effective date of the annexation as
established above is a date that is within 90 days of a biennial primary or general election or
after the deadline for filing notice of election before any other election held by any city, district
or other municipal corporation involved in the area to be annexed, then the effective date of
the annexation shall be delayed until, and the annexation shall become effective on, the day
after the election.
Section 7. Mailing Copies of this Ordinance; Metro Notice
Ordinance 2728, AN 16-0008
(Tax Map 21E18DB,
Tax Lot 5000) EXHIBIT A-1/PAGE 3
Within 30 days following the date of adoption:
a.The City Recorder shall mail a copy of this ordinance to all persons and
governmental entities that appeared at the public hearing and requested a copy of the
ordinance following adoption.
b.The City Recorder shall mail a copy of this ordinance together with the applicable
mapping and notice fee charged by Metro pursuant to Metro Code 3.09.110, to the Metro Data
Resource Center, 600 NE Grand Ave., Portland, OR 97232.
Read by title only and enacted at the regular meeting of the City Council of the City of Lake
Oswego held on _______________day of _________________, 2016.
AYES:
NOES:
ABSTAIN:
EXCUSED:
________________________________
Kent Studebaker, Mayor
________________________________
Dated
ATTEST:
______________________________________
Anne-Marie Simpson, City Recorder
APPROVED AS TO FORM:
____________________________________
David Powell, City Attorney
562518275
18113
18123
181151811718119
18179
18125
53655397546354955498546654385368539218108
18094
18000
17924
17898
17872 17839
17879 17874
17840
1
8
0
2
3
1
8
0
1
71802118019
543117924
17902
18200
53325352543254675456545054815429533353055602555655465536552618175
1
8
1
0
6
18104
18020
18042
18064
18086
17985
17997
18009 550155135525550255245546556855901809818096
553318147 TamaraAveSW Kenny StPilkingtonRdBraeden CtRachel Ln
PilkingtonRdKoderra Ave
SW Kenny St Kenny S tJenifers WaySW Tree St
0 100 200 300Feet ³Lake OswegoCity Limits SubjectProperty
Annexation to the City of Lake OswegoAN16-0008/Ordinance 2728
11/22/2016
R-7.5
Attachment A
Map and Lot #21E18DB TL 5000City of Lake Oswego:COMPREHENSIVE PLAN = R-7.5, ResidentialZONING = R-7.5, Residential
Clackamas County:ZONING = R-10, Residential
R-7.5 TL 5000
Ordinance 2728 (AN 16-0008) ATTACHMENT B/Page 1
ATTACHMENT B
Criteria, Findings, Conclusion, and Effective Date
APPLICABLE CRITERIA:
A. Oregon Revised Statutes (ORS), Boundary Changes; Mergers and Consolidations.
1.ORS 222.111(2) - Annexation of Contiguous Territory, Authority and Procedure for
Annexation, Generally.
2.ORS 222.125 - Annexation by consent of all owners of land and the majority of electors.
3.ORS 222.170 - Annexation by consent of more than half of the owners of land in the territory
to be annexed, who also own more than half of the land in the territory, and of land
representing more than half of the assessed value of the territory.
B. Metro Code.
1. 3.09.040(a)(1-4) Minimum Requirements for Petitions.
2.3.09.045 (D-E) Expedited Decisions (criteria incorporated for non-expedited decisions by MC
3.09.050(D))
3.3.09.050 (A-D) Hearing and Decision Requirements for Decisions other than Expedited Land
Decisions.
C. Comprehensive Plan - Urbanization Chapter
1.Policy A-3: “The Urban Services Boundary (as depicted on the Comprehensive Plan Map) is
the area within which the City shall be the eventual provider of the full range of urban
services.”
2.Policy C-3: “Ensure that annexation of new territory or expansion of Lake Oswego’s Urban
Services Boundary does not detract from the City’s ability to provide services to existing City
Residents.”
3.Policy C-4: “Prior to the annexation of non-island properties, ensure urban services are
available and adequate to serve the property or will be made available in a timely manner
by the City or a developer commensurate with the scale of the proposed development.”
FINDINGS:
A. Oregon Revised Statutes (ORS), Boundary Changes; Mergers and Consolidations.
1.ORS 222.111(2) Annexation of Contiguous Territory, Authority and Procedure for Annexation,
Generally.
ORS 222.111(2) provides that a proposal for annexation of territory to a City may be initiated by the
legislative body of the City, on its own motion, or by a petition to the legislative body of the City by owners
of real property in the territory to be annexed. The sole owner of the property has petitioned the City for
this annexation. The proposed annexation complies with this statute.
Ordinance 2728 (AN 16-0008) ATTACHMENT B/Page 2
2. ORS 222.125 - Annexation by consent of all owners of land and the majority of electors.
ORS 222.125 states that an election need not be held on the question of annexation within the area
proposed to be annexed if all of the owners of land in the territory and not less than 50 percent of the
electors, if any, residing in the territory consent in writing to the annexation. The property owner has
consented to the annexation. The property is vacant and there are no registered voters on the property.
The proposed annexation complies with this statute.
3. ORS 222.170 - Annexation by consent of more than half of the owners of land in the territory to
be annexed, who also own more than half of the land in the territory, and of land representing
more than half of the assessed value of the territory.
ORS 222.170 states that an election need not be held on the question of annexation within the territory
proposed to be annexed if more than half of the owners of land in that territory consent in writing to the
annexation. These owners must also own more than half of the land in the territory to be annexed and
more than half of the assessed value of all of the land in the territory. The sole owner of the property has
consented to the annexation on the annexation petition (on file). The proposed annexation complies with
this statute.
B. Metro Code
1. 3.09.040 - Minimum Requirements for Petitions.
(A) A petition for a boundary change must contain the following information:
1) The jurisdiction of the reviewing entity to act on the petition;
2) A map and a legal description of the affected territory in the form prescribed by the
reviewing entity;
3) For minor boundary changes, the names and mailing addresses of all persons
owning property and all electors within the affected territory as shown in the
records of the tax assessor and county clerk; and,
4) For boundary changes under ORS 198.855 (3), 198.857, 222.125 or 222.170,
statements of consent to the annexation signed by the requisite number of owners
or electors.
The above information was submitted as required by Metro Code. The property owner has signed
the application and petition. A map and legal description in the form required by the City have been
included in the application materials and are on file. The sole owner has consented to the
annexation on the annexation petition, meeting the consent requirements of ORS 222.125 and
222.170. The annexation petition complies with the Metro code requirements.
2. 3.09.050 - Hearing and Decision Requirements for Decisions Other Than Expedited Decisions.
(B) Not later than 15 days prior to the date set for a boundary change decision, the approving
entity shall make available to the public a report that addresses the criteria identified in
subsection (D) and includes the following information:
(1) The extent to which urban services are available to serve the affected territory
including any extra-territorial extensions of service.
The property is located within the Urban Growth Boundary and the City’s Urban Services
Boundary. Metro Code section 3.09.020 defines urban services as including sanitary sewers,
water, fire protection, parks, open space, recreation, streets, roads and mass transit.
Ordinance 2728 (AN 16-0008) ATTACHMENT B/Page 3
Water: Water is available from a Rivergrove Water District line in Tree Street. The closest
fire hydrant is located approximately 50 feet west of the site on the west side of Pilkington
Road. The Rivergrove Water District will continue to provide water service to this property
after annexation.
The City of Lake Oswego entered into an agreement with the Rivergrove Water District on
February 8, 1984 for water services. The agreement stipulates that the District will continue
to serve parcels upon annexation if it is capable of delivering a minimum flow of 1500
gallons per minute with a 20 psi residual pressure during periods of peak domestic demand.
The District is currently able to meet these demands. If upon development or partitioning,
this level of service is not provided, then City water may need to be provided.
Sewer: Sanitary sewer service is available from a City of Lake Oswego eight-inch collection
line located in Pilkington Road. The subject property will need to connect to City sewer and
the existing septic tank will need to be decommissioned per DEQ standards upon
annexation.
The Engineering staff notes that the City normally requires the sanitary line to be extended
to the upstream property line upon connection to the sewer. In this case, the sewer
extension to the east property line of the site will not be required, because the City
Wastewater Master Plan shows a future public main extension coming from the east end of
Tree Street and terminating near the east side of this site. Accordingly, this site will be
allowed to connect to the existing public main located in Pilkington Road without being
required to construct the extension in Tree Street.
Surface Water Management: Upon annexation, the territory will be withdrawn from Surface
Water Management Agency of Clackamas County (SWMACC) and will be subject to the City’s
storm water management regulations. Any new development will be subject to these
provisions, which ensure that new development does not have an adverse effect on
adjoining properties and does not overburden the City stormwater system.
Fire Protection: Lake Grove Fire District #57 provides fire protection services to the subject
property by agreement with the City of Lake Oswego. Upon annexation, the property will be
withdrawn from this fire district and served directly by the City. The Jean Road Fire Station,
located northeast of the site, would be able to respond to emergencies under the eight
minute goal established in the Comprehensive Plan.
Police: Upon annexation, the subject property will be withdrawn from the Clackamas
County Enhanced Sheriff’s Patrol District and served by the City of Lake Oswego. The Lake
Oswego Police Department reviewed the proposal and indicated that it does not have any
concerns with serving this property upon annexation.
Parks and Open Space: The City has 537 acres of park and open space lands, or 14.6 acres
per 1,000 population. The parks nearest to this property are Canal Acres/Bryant Woods
Natural Park and Pilkington Park. Canal Acres park is 31 acres and located on the north and
south sides of Childs Road. Because this is a natural park, there are no amenities for
organized recreation activities. Pilkington Park is located south of the site. It is a 3.7 acre
neighborhood park and provides drop-in play fields, a walking path and a picnic table. The
City’s park system will not be overburdened by any additional population annexed to the
City with this application.
Ordinance 2728 (AN 16-0008) ATTACHMENT B/Page 4
Lake Grove Park District: The Lake Grove Swim Park, managed by the Lake Oswego School
District, and funded by the Lake Grove Park District, is located at 3800 Lakeview Boulevard.
The swim park is approximately 1.3 acres in size with restroom, play and swim facilities. This
property will remain within the Lake Grove Park District following annexation.
Transportation - Streets and Mass Transit: Tree Street is a two-way local street and is
currently under the jurisdiction of Clackamas County (County Road #21421). Pilkington
Road is an uncurbed road designated as a Major Collector in the City’s Comprehensive Plan
and is under the jurisdiction of the City of Lake Oswego. Tri Met Line 36, which runs along
Jean Road and connects to the Tualatin Transit Center, provides the closest bus service to the
subject property.
(2) Whether the proposed boundary change will result in the withdrawal of the
affected territory from the legal boundary of any necessary party.
ORS 222.520 authorizes the City to withdraw the property from the Lake Grove Fire District
#57, the Clackamas County Enhanced Sheriff’s Patrol District and the Surface Water
Management Agency of Clackamas County. Upon approval of the annexation, the ordinance
will withdraw this property from these service districts.
(3) The proposed effective date of the boundary change.
The proposed effective date of the decision is outlined in the final section of this report.
(D) To approve a boundary change, the reviewing entity shall apply the criteria and consider the
factors set forth in subsections D and E of section 3.09.045 (Expedited Decisions).
3.09.045 (D) - To approve a boundary change through the expedited process the City shall:
1. Find that the change is consistent with expressly applicable provisions in:
a. Any applicable urban service agreement adopted pursuant to ORS 195.065
The City has entered into - ORS 195.065 agreements with: 1) Lake Oswego School District;
and, 2) Lake Grove Fire District. The intergovernmental agreement with the Rivergrove
Water District is not discussed in this section because it was entered into before the
adoption of ORS 195.065, and consequently does not include all of the provisions necessary
to be considered an “urban service agreement” under that statute.
Lake Oswego School District: The City and the Lake Oswego School District entered into an
ORS 195.065 urban service agreement for park services in July, 2003. The School District
operates the Lake Grove Swim Park located at 3800 Lakeview Boulevard. The agreement
states that the annexation of property by the City within the Lake Grove Park District (which
funds the swim park) shall not cause the withdrawal of the property from the district.
Lake Grove Fire District #57: The City and District entered into an ORS 195.065 urban service
agreement for fire protection in July, 2003. The agreement states that upon annexation of
property within the district by the City, the annexed property shall be withdrawn from the
District and the City shall provide fire protection services.
b. Any applicable annexation plan adopted pursuant to ORS 195.205.
There are no applicable annexation plans adopted pursuant to ORS 195.205 relating to the
affected territory.
Ordinance 2728 (AN 16-0008) ATTACHMENT B/Page 5
c. Any applicable cooperative planning agreement adopted pursuant to ORS
195.020(2) between the affected entity and a necessary party.
There are no ORS 195.020(2) cooperative agreements (which relate to special districts)
between the city and a necessary party.
d. Any applicable public facility plan adopted pursuant to a state wide planning goal
on public facilities and services
As previously discussed under Section 3, the City Wastewater Master Plan shows a future
public main extension extending from the east end of Tree Street and terminating near the
east side of the property. Accordingly, this property will be allowed to connect to the
existing public main located in Pilkington Road without being required to construct the
sewer extension in Tree Street.
e. Any applicable comprehensive plan policies
Comprehensive Plan Map: The subject property is currently designated R-10, Low Density
Residential on Clackamas County’s Comprehensive Plan and Zoning Maps. This property is
designated as Low Density Residential R-7.5 on the City’s Comprehensive Plan Map. Upon
annexation, a City zoning designation of R-7.5 will be applied to this parcel.
The City and County have coordinated their comprehensive plans within the Dual Interest
Area outlined in the City/County Urban Growth Management Agreement (dated February 4,
1992 and updated November 18, 1997), hence the City/County designations have been
determined to be compatible. Therefore, this annexation is compatible with the City’s
Comprehensive Plan Map.
Comprehensive Plan Policies: The updated Lake Oswego Comprehensive Plan contains the
following relevant language in the Urbanization chapter, Policy A-3: “The Urban Services
Boundary (as depicted on the Comprehensive Plan Map) is the area within which the City
shall be the eventual provider of the full range of urban services.” The proposed annexation
and the withdrawal of the property from the identified districts are consistent with this
policy.
Policy C-3 states: “Ensure that annexation of new territory or expansion of Lake Oswego’s
Urban Services Boundary does not detract from the City’s ability to provide services to
existing City residents.”
The approval of this annexation will result in the addition of 0.25 acres to be served by the
City. As stated in Section 2(b)(1), the addition of this territory will not detract from the City’s
ability to provide police and fire protection to existing City Residents. Annexation of this
property will not affect the City’s ability to provide parks and recreation services. Public
facilities, such as sewer and water are also found to be adequate to serve this site.
Comprehensive Plan Policy C-4 states: “Prior to the annexation of non-island properties,
ensure urban services are available and adequate to serve the properties or will be made
available in a timely manner by the City or a developer commensurate with the scale of the
proposed development.”
Community Development Code Section 50.06.008.3 requires that all development be
provided with the following utility services: sanitary sewer, water, sidewalks, pedestrian and
bicycle paths, traffic control signs and devices, street lights, streets, and TV cable. These
utilities are now in place or can be put in place to serve this property.
Ordinance 2728 (AN 16-0008) ATTACHMENT B/Page 6
In the event that future development occurs, an applicant for development is obligated to
construct all necessary public facilities to serve their development.
As noted above, police and fire services are available upon annexation. The amount of
protection provided will be similar to protection provided to other City residents because
the property proposed to be annexed is not isolated from other areas of the City.
Urban Growth Management Agreement: General Urbanization Policy 4.A.4 of the Clackamas
County Comprehensive Plan calls for the establishment of Urban Growth Management Areas
and Urban Growth Management Agreements to clarify planning responsibilities between
the County and cities for areas of mutual interest. Policy 4.A.5 directs the County to
establish agreements with cities and service districts to clarify service and infrastructure
responsibilities for areas of mutual interest. Similarly, the Lake Oswego Comprehensive
Plan, Urbanization Chapter, Policy D-3, calls for entering into and maintaining an Urban
Growth Management Agreement (UGMA) with Clackamas County for lands within the Urban
Services Boundary. In furtherance of these policies, the City and County have entered into
an Urban Growth Management Agreement that stipulates a mutual interest in coordinated
land use planning, compatible comprehensive plans and provision of urban services and
facilities. This agreement ensures coordination and consistency between the City and
County comprehensive plans and outlines responsibilities in providing services and
managing growth within the Dual Interest Area. Subsections 6 and 7, provided below, are
applicable to annexations.
“6. City and County Notice and Coordination:
The City shall provide notification to the County, and an opportunity to participate,
review and comment, at least 35 days prior to the first public hearing on all proposed
public facilities plans, legislative changes to the City Comprehensive Plan, or quasi-
judicial land use actions adjacent to, or in close proximity to unincorporated areas.
The City shall provide notice to the County of private or City initiated annexation
requests within five days of the filing of an application…”
The Urban Growth Management Agreement specifies that the City notify the County of an
annexation request within five days of when it is submitted to the Boundary Commission.
There is no longer a Boundary Commission for the Portland Metropolitan area.
Staff relies on the notice requirements of Metro Code 3.09.030, which requires notice 20
days prior to the scheduled hearing for an annexation for all necessary parties (other
governmental entities), unless a shorter time is agreed upon. The County is a necessary
party under the Metro Code definition and has been notified.
“7. City Annexations
A. The City may undertake annexations in the manner provided for by law within
the Dual Interest Area. The City annexation proposals shall include adjacent road
right-of-way to property proposed for annexation. The County shall not oppose such
annexations.
B. Upon annexation, the City shall assume jurisdiction of the County roads and
local access roads pursuant to a separate road transfer agreement between the City
and county.”
The City is undertaking this annexation in the manner provided for in the applicable ORS and
Metro Code for the territories that lie within the Dual Interest Area. This annexation will be
Ordinance 2728 (AN 16-0008) ATTACHMENT B/Page 7
consistent with the City and County comprehensive plans which have been coordinated in
the Dual Interest Area within the regional Urban Growth Boundary (UGB).
f. Any applicable concept plan
Consistency of the proposed boundary change with urban planning agreements is
mentioned under D(1)(c)above.
2. Consider whether the boundary change would
a. Promote the timely orderly and economic provision of public facilities and services
b. Affect the quality and quantity of urban services
c. Eliminate or avoid unnecessary duplication of facilities or services
Due to the proximity of the property to existing City services, this annexation will promote
the timely, orderly and economical extension of public facilities and services. The subject
property can readily be served with urban services and facilities. If and when additional
development occurs in the area, provision of public facilities and services will occur
consistent with the City’s adopted public facility master plans, ensuring that it does not
adversely affect the quality or quantity of urban services and avoiding unnecessary
duplication of facilities or services. Therefore, this boundary change will is consistent with
criteria 2.a through 2.c.
(E) A city may not annex territory that lies outside the UGB except it may annex a lot or parcel
that lies partially within and partially outside the UGB.
The property to be annexed is located entirely within the City’s Urban Growth Boundary (UGB).
CONCLUSION:
Based on the criteria and findings set forth above, the City Council concludes that AN 16-0008
complies with all applicable criteria and the annexation should be approved.
EFFECTIVE DATE:
A. Effective Date of Annexation Ordinance. Pursuant to Lake Oswego City Charter, Section 34,
the ordinance shall be effective on the 30th day after its enactment.
B. Effective Date of Annexation. Following the filing of the annexation records with the
Secretary of State as required by ORS 222.177, this annexation shall be effective upon the later of:
1. the 30th day following the date of adoption of this ordinance; or
2. the date of filing of the annexation records with the Secretary of State;
provided however that pursuant to ORS 222.040(2), if the effective date of the annexation as
established above is a date that is within 90 days of a biennial primary or general election or after
the deadline for filing notice of election before any other election held by any City, district or other
municipal corporation involved in the area to be annexed, then the effective date of the annexation
shall be delayed until, and the annexation shall become effective on, the day after the election.
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Paul Espe, Associate Planner
SUBJECT: Ordinance 2729 – Annexing Property at 4726 Upper Drive
(Tax Lot 5100, Tax Map 21E 07DD); AN 16-0009
DATE: December 14, 2016 Date of Meeting: January 3, 2017
ACTION
Enact Ordinance 2729 (Exhibit A-1), annexing Tax Lot 5100
(Tax Map 21E07DD) at 4726 Upper Drive.
SUGGESTED MOTION
Move to enact Ordinance 2729.
INTRODUCTION/BACKGROUND
The proposed annexation is owner-initiated and will result
in the addition of approximately 0.95 acres of residential
land to the City. This Council report describes the reasons
for the annexation and provides basic background
information. The criteria for approving annexations and
the findings in support of this annexation are included in
Attachment B of Exhibit A-1.
Owner/Applicant: Barbara Springer and Rob Mathews/Palouse Properties
Location/Size: The subject property totals 0.95 acres (41,382 square feet). It is located on the south side of
Upper Drive, 550 feet west of the intersection of Upper Drive and Bryant Road.
Existing Land Use: Tax Lot 5100 is occupied by a single-family dwelling and detached garage which takes
direct access to Upper Drive.
Neighborhood: The property is located within the Lake Gro ve Neighborhood.
Purpose of Annexation: The property owner and applicant initiated the annexation to connect to City
sewer service and develop the property. The applicant recently applied for preapplication conference for a
two lot partition.
DISCUSSION
Plan and Zone Designation: The subject property is currently under Clackamas County’s jurisdiction and
zoned Low Density Residential R-8.5. This area is designated R-7.5, Low Density Residential on the City of
Lake Oswego Comprehensive Plan Map and will be zoned R-7.5 upon annexation.
9.3
Page 2
Development Potential: The 0.95 acres of residential property consists of one tax lot from the Bryant Acres
Plat. This parcel could potentially be divided into four lots.
Sensitive Lands: There are no Sensitive Lands designated on the property.
Sewer and Water Service: Sanitary sewer service is available from a City of Lake Oswego eight-inch
collection line in Upper Drive directly north of the site and an eight-inch main located east of the site’s
southern boundary. The existing septic tank will need to be decommissioned per DEQ standards. Water is
available from a Lake Grove Water District (LGWD) main located in Upper Drive along the site frontage. The
property will continue as an LGWD customer after annexation. The closest fire hydrant is located on the
north side of Upper Drive, directly across the street.
Surface Water Management: Currently, the territory is under the jurisdiction of the Surface Water
Management Agency of Clackamas County (SWMACC). Upon annexation, the territory will be withdrawn
from SWMACC and will be subject to the City’s storm water management regulations. Any new
development will be subject to these provisions, which ensure that new development does not have an
adverse effect on adjoining properties and does not overburden the City stormwater system.
Service Districts: Upon annexation, the property will, by operation of ORS 222.520, be withdrawn from the
Lake Grove Fire District #57, the Clackamas County Enhanced Sheriff’s Patrol District and the Surface Water
Management Agency of Clackamas County (SWMAC), but will remain in the Lake Grove Water District as a
Water District customer and the Lake Grove Park District.
Transportation: Upper Drive is a two-way uncurbed local street. The portion of Upper Drive fronting the
property has been annexed to the City and is under the City’s maintenance jurisdiction. This roadway is
designated as a Neighborhood Collector in the City’s Comprehensive Plan.
The closest bus stop is located at the intersection of Upper Drive and Boones Ferry Road. The area is
served by Tri -Met bus Line 37, which currently operates along Boones Ferry Road to the north, and Line 36,
which operates along Lakeview Blvd and Jean Way to the southwest. Line 37 provides service between
downtown Lake Oswego and Tualatin, and Line 36 provides service between downtown Portland and
Tualatin via downtown Lake Oswego and South Shore Blvd.
Sidewalks: There are no sidewalks along Upper Drive between Bryant and Boones Ferry Roads. An existing
asphalt pathway is located along the south side of Upper Drive east of the intersection of Bryant Road.
ALTERNATIVES & FISCAL IMPACT
The draft findings provided in Attachment B of Exhibit A-1 conclude that the proposed annexation complies
with all applicable State statutes and Metro code requirements. This annexation is for one parcel of
approximately 0.95 acres. The estimated assessed value of the residential property is $256,622. The
Estimated tax revenue after the parcel is annexed is $664.00.
RECOMMENDATION
Staff recommends approval of AN 16-0009.
EXHIBITS
A-1 Ordinance 2729
Attachment A: Map
Attachment B: Criteria Findings Conclusion and Effective Date
Ordinance 2729, AN 16-0009
(Tax Map 21E07DD,
Tax Lot 5100) EXHIBIT A-1/PAGE 1
ORDINANCE 2729
AN ORDINANCE ANNEXING TO THE CITY OF LAKE OSWEGO ONE PARCEL CONSISTING OF 0.95
ACRES AT 4726 UPPER DRIVE; DECLARING CITY OF LAKE OSWEGO ZONING PURSUANT TO LOC
50.01.004.5(a-c); AND REMOVING THE TERRITORY FROM CERTAIN DISTRICTS (AN 16-0009).
WHEREAS, annexation to the City of Lake Oswego of the territory shown in the map in
Attachment “A” and described below, would constitute a contiguous boundary change under
ORS 222.111, initiated by petition from the property owners as outlined in ORS 222.111(2); and,
WHEREAS, the City has received consent for the proposed annexation from all of the property
owners and not less than 50 percent of the electors residing in the territory as outlined in ORS
222.125.
WHEREAS, the City has received consent for the proposed annexation from more than half the
owners of land in the territory, who own more than half of the land in the territory and more
than half of the assessed value of the land in the territory, as required by ORS 222.170; and,
WHEREAS, the part of the territory that lies within the Lake Grove Fire District #57 will, by
operation of ORS 222.520, be withdrawn from that district immediately upon approval of the
annexation; and,
WHEREAS, the part of the territory that lies within the Clackamas County Enhanced Sheriff’s
Patrol District will, by operation of ORS 222.520, be withdrawn from the district upon approval
of the annexation; and,
WHEREAS, the part of the territory that lies within the Surface Water Management Agency of
Clackamas County will by operation of ORS 222.250 be withdrawn from that agency
immediately upon approval of the annexation; and,
WHEREAS, LOC 50.01.004.5 specifies that, where the Comprehensive Plan Map requires a
specific Zoning Map designation to be placed on the territory annexed to the City, such a zoning
designation shall automatically be imposed on the territory as of the effective date of the
annexation; and,
WHEREAS, this annexation is consistent with the Urbanization Chapter of the City of Lake
Oswego’s acknowledged Comprehensive Plan, Oregon Revised Statutes 222.111(2), 222.125
and 222.170 for boundary changes, and Metro Code Sections 3.09.050).
EXHIBIT A-1
AN 16-0009
Ordinance 2729, AN 16-0009
(Tax Map 21E07DD,
Tax Lot 5100) EXHIBIT A-1/PAGE 2
Now, therefore, the City of Lake Oswego ordains as follows:
Section 1. The real property described as follows is hereby annexed to the City of Lake
Oswego:
A tract of land located in the Southeast quarter of Section 7, Township 2 South, Range 1 East of
the Willamette Meridian in the City of Lake Oswego, Clackamas County, Oregon, more
particularly described as follows:
Lot 27, Map of Bryant Acres, Plat No. 383 of the Clackamas County Survey Records.
The annexed territory is depicted on Attachment A.
Section 2. The annexed area lies within the following districts and shall be retained within
these districts upon the effective date of annexation:
Lake Grove Park District
Section 3. The annexed area lies within the following districts and shall be withdrawn from
these districts upon the effective date of annexation:
Lake Grove Fire District #57
Clackamas County Enhanced Sheriff’s Patrol District
Surface Water Management Agency of Clackamas County
Section 4. In accordance with LOC 50.01.004.5, the City zoning designation of R-7.5 shall be
applied to the subject property on the effective date of annexation.
Section 5. The City Council hereby adopts the findings of fact and conclusions set forth in
Attachment B in support of this annexation ordinance.
Section 6. Effective Dates:
a.Effective Date of Decision to Annex. Pursuant to Metro Code 3.09.050(f), the
effective date of this annexation decision shall be immediately upon adoption, unless a
governmental entity that qualifies as a “necessary party” under Metro Code 3.09.020(j) has
contested this annexation, in which event this annexation decision shall be effective on the 10th
day following the mailing of this ordinance by the City Recorder to Metro and to all necessary
parties who appeared in this proceeding.
b.Effective Date of Annexation Ordinance. Pursuant to Lake Oswego City Charter,
Section 34, this ordinance shall be effective on the 30th day after its enactment.
c.Effective Date of Annexation. Following the filing of the annexation records with
the Secretary of State as required by ORS 222.177, this annexation shall be effective upon the
later of either:
1.the 30th day following the date of adoption of this ordinance; or
Ordinance 2729, AN 16-0009
(Tax Map 21E07DD,
Tax Lot 5100) EXHIBIT A-1/PAGE 3
2.the date of filing of the annexation records with the Secretary of State.
Provided, however, that pursuant to ORS 222.040(2), if the effective date of the annexation as
established above is a date that is within 90 days of a biennial primary or general election or
after the deadline for filing notice of election before any other election held by any city, district
or other municipal corporation involved in the area to be annexed, then the effective date of
the annexation shall be delayed until, and the annexation shall become effective on, the day
after the election.
Section 7. Mailing Copies of this Ordinance; Metro Notice
Within 30 days following the date of adoption:
a.The City Recorder shall mail a copy of this ordinance to all persons and
governmental entities that appeared at the public hearing and requested a copy of the
ordinance following adoption.
b.The City Recorder shall mail a copy of this ordinance together with the applicable
mapping and notice fee charged by Metro pursuant to Metro Code 3.09.110, to the Metro Data
Resource Center, 600 NE Grand Ave., Portland, OR 97232.
Read by title only and enacted at the regular meeting of the City Council of the City of Lake
Oswego held on _______________day of _________________, 2016.
AYES:
NOES:
ABSTAIN:
EXCUSED:
________________________________
Kent Studebaker, Mayor
________________________________
Dated
ATTEST:
______________________________________
Anne-Marie Simpson, City Recorder
APPROVED AS TO FORM:
____________________________________
David Powell, City Attorney
169481694616842
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S W U p p e r D rBryant Rd0 100 200 300 400Feet ³Lake OswegoCity Limits SubjectProperty
Annexation to the City of Lake OswegoAN16-0009/Ordinance 2729
11/22/2016
NC
Attachment A
Map and Lot #21E0 7DD TL 5100City of Lake Oswe go:COMPREHENSIVE PLAN = R-7.5 , ResidentialZONING = R-7.5, Resid ential
Clacka ma s County:ZONING = R-8.5, Resid ential
R-7.5TL 5100R-5
R-0
Ordinance 2729 (AN 16-0009) ATTACHMENT B/Page 1
ATTACHMENT B
Criteria, Findings, Conclusion, and Effective Date
APPLICABLE CRITERIA:
A. Oregon Revised Statutes (ORS), Boundary Changes; Mergers and Consolidations.
1.ORS 222.111(2) - Annexation of Contiguous Territory, Authority and Procedure for
Annexation, Generally.
2.ORS 222.125 - Annexation by consent of all owners of land and the majority of electors.
3.ORS 222.170 - Annexation by consent of more than half of the owners of land in the territory
to be annexed, who also own more than half of the land in the territory, and of land
representing more than half of the assessed value of the territory.
B. Metro Code.
1. 3.09.040(a)(1-4) Minimum Requirements for Petitions.
2.3.09.045 (D-E) Expedited Decisions (criteria incorporated for non-expedited decisions by MC
3.09.050(D))
3.3.09.050 (A-D) Hearing and Decision Requirements for Decisions other than Expedited Land
Decisions.
C. Comprehensive Plan - Urbanization Chapter
1.Policy A-3: “The Urban Services Boundary (as depicted on the Comprehensive Plan Map) is
the area within which the City shall be the eventual provider of the full range of urban
services.”
2.Policy C-3: “Ensure that annexation of new territory or expansion of Lake Oswego’s Urban
Services Boundary does not detract from the City’s ability to provide services to existing City
Residents.”
3.Policy C-4: “Prior to the annexation of non-island properties, ensure urban services are
available and adequate to serve the property or will be made available in a timely manner
by the City or a developer commensurate with the scale of the proposed development.”
FINDINGS:
A. Oregon Revised Statutes (ORS), Boundary Changes; Mergers and Consolidations.
1.ORS 222.111(2) Annexation of Contiguous Territory, Authority and Procedure for Annexation,
Generally.
ORS 222.111(2) provides that a proposal for annexation of territory to a City may be initiated by the
legislative body of the City, on its own motion, or by a petition to the legislative body of the City by owners
of real property in the territory to be annexed. The sole owner of the property at Upper Drive has
petitioned the City for this annexation. The proposed annexation complies with this statute.
Ordinance 2729 (AN 16-0009) ATTACHMENT B/Page 2
2. ORS 222.125 - Annexation by consent of all owners of land and the majority of electors.
ORS 222.125 states that an election need not be held on the question of annexation within the area
proposed to be annexed if all of the owners of land in the territory and not less than 50 percent of the
electors, if any, residing in the territory consent in writing to the annexation. The sole property owner, who
is also a registered voter, has signed the annexation application. The proposed annexation complies with
this statute.
3. ORS 222.170 - Annexation by consent of more than half of the owners of land in the territory to
be annexed, who also own more than half of the land in the territory, and of land representing
more than half of the assessed value of the territory.
ORS 222.170 states that an election need not be held on the question of annexation within the territory
proposed to be annexed if more than half of the owners of land in that territory consent in writing to the
annexation. These owners must also own more than half of the land in the territory to be annexed and
more than half of the assessed value of all of the land in the territory. The sole owner of the property at
4726 Upper Drive consented to the annexation on the annexation petition (on file). The proposed
annexation complies with this statute.
B. Metro Code
1. 3.09.040 - Minimum Requirements for Petitions.
(A) A petition for a boundary change must contain the following information:
1) The jurisdiction of the reviewing entity to act on the petition;
2) A map and a legal description of the affected territory in the form prescribed by the
reviewing entity;
3) For minor boundary changes, the names and mailing addresses of all persons
owning property and all electors within the affected territory as shown in the
records of the tax assessor and county clerk; and,
4) For boundary changes under ORS 198.855 (3), 198.857, 222.125 or 222.170,
statements of consent to the annexation signed by the requisite number of owners
or electors.
The above information was submitted as required by Metro Code. The property owner signed the
application and petition. A map and legal description in the form required by the City have been
included in the application materials and are on file. The property owner who is one in the same as
the elector has consented to the annexation on the annexation petition, meeting the consent
requirements of ORS 222.125 and 222.170. The annexation petition complies with the Metro code
requirements.
2. 3.09.050 - Hearing and Decision Requirements for Decisions Other Than Expedited Decisions.
(B) Not later than 15 days prior to the date set for a boundary change decision, the approving
entity shall make available to the public a report that addresses the criteria identified in
subsection (D) and includes the following information:
(1) The extent to which urban services are available to serve the affected territory
including any extra-territorial extensions of service.
The property is located within the Urban Growth Boundary and the City’s Urban Services
Boundary. Metro Code section 3.09.020 defines urban services as including sanitary sewers,
water, fire protection, parks, open space, recreation, streets, roads and mass transit.
Ordinance 2729 (AN 16-0009) ATTACHMENT B/Page 3
Water: Water service is available from Lake Grove Water District main located in Upper Drive
along the site frontage. The property will continue to be a Lake Grove Water District
customer after annexation. The closest fire hydrant is located along the north side of Upper
Drive across the street from the site. Individual private water services shall be provided to
each parcel.
Sewer: Sanitary Sewer service is available from a City of Lake Oswego eight-inch collection
line located in a public easement along the southern property line. An additional eight-inch
collection line located along the property frontage has one existing sewer lateral stubbed to
the property. The existing septic tank will need to be decommissioned per DEQ standards.
Surface Water Management: The territory will be withdrawn from Surface Water
Management Agency of Clackamas County (SWMACC) and will be subject to the City’s storm
water management regulations. Any new development will be subject to these provisions,
which ensure that new development does not have an adverse effect on adjoining
properties and does not overburden the City stormwater system.
Fire Protection: Lake Grove Fire District #57 provides fire protection services to the subject
property by agreement with the City of Lake Oswego. Upon annexation, the property will be
withdrawn from this fire district and served directly by the City. The Jean Road Fire Station,
located south of the site, would be able to respond to emergencies under the eight minute
goal established in the Comprehensive Plan.
Police: Upon annexation, the subject property will be withdrawn from the Clackamas
County Enhanced Sheriff’s Patrol District and will be served by the City of Lake Oswego. The
Lake Oswego Police Department reviewed the proposal and indicated that it does not have
any concerns with serving this property upon annexation.
Parks and Open Space: The City has 537 acres of park and open space lands, or 14.6 acres
per 1,000 population. The parks nearest to this property are Waluga Park East, Waluga Park
West and Lamont Springs Natural Area. Waluga Park East and West are located north of the
subject property. These two parks consist of 53 acres of active and natural passive areas.
West Waluga Park includes two lighted baseball fields, a playground, picnic shelters, lights
and restrooms. Lamont Springs, located southeast of the site is a natural park with no
amenities for organized recreational activities. The City’s park system will not be
overburdened by any additional population annexed to the City with this application.
Lake Grove Park District: The Lake Grove Swim Park, managed by the Lake Oswego School
District, and funded by the Lake Grove Park District, is located at 3800 Lakeview Boulevard.
The swim park is approximately 1.3 acres in size with restroom, play and swim facilities. This
property will remain within the Lake Grove Park District following annexation.
Transportation - Streets and Mass Transit: Upper Drive is a two way uncurbed local street.
The portion of Upper Drive abutting the property is under the jurisdiction of the City of Lake
Oswego. The closest bus stop is located at the intersection of Upper Drive and Boones Ferry
Road. The area is served by Tri-Met bus Line 37, which currently operates along Boones
Ferry Road to the north, and Line 36, which operates along Lakeview Blvd and Jean Way to
the southwest. Line 37 provides service between downtown Lake Oswego and Tualatin, and
Line 36 provides service between downtown Portland and Tualatin via downtown Lake
Oswego and South Shore Blvd.
Ordinance 2729 (AN 16-0009) ATTACHMENT B/Page 4
(2) Whether the proposed boundary change will result in the withdrawal of the
affected territory from the legal boundary of any necessary party.
ORS 222.520 authorizes the City to withdraw the property from the Lake Grove Fire District
#57, the Clackamas County Enhanced Sheriff’s Patrol District and the Surface Water
Management Agency of Clackamas County. Upon a pproval of the annexation, the ordinance
will withdraw the property from these service districts.
(3) The proposed effective date of the boundary change.
The proposed effective date of the decision is outlined in the final section of this report.
(D) To approve a boundary change, the reviewing entity shall apply the criteria and consider the
factors set forth in subsections D and E of section 3.09.045 (Expedited Decisions).
3.09.045 (D) - To approve a boundary change through the expedited process the City shall:
1. Find that the change is consistent with expressly applicable provisions in:
a. Any applicable urban service agreement adopted pursuant to ORS 195.065
The City has entered into - ORS 195.065 agreements with: 1) Lake Oswego School District;
and, 2) Lake Grove Fire District.
Lake Oswego School District: The City and the Lake Oswego School District entered into an
ORS 195.065 urban service agreement for park services in July, 2003. The School District
operates the Lake Grove Swim Park located at 3800 Lakeview Boulevard. The agreement
states that the annexation of property by the City within the Lake Grove Park District (which
funds the swim park) shall not cause the withdrawal of the property from the district.
Lake Grove Fire District #57: The City and District entered into an ORS 195.065 urban service
agreement for fire protection in July, 2003. The agreement states that upon annexation of
property within the district by the City, the annexed property shall be withdrawn from the
District and the City shall provide fire protection services.
b. Any applicable annexation plan adopted pursuant to ORS 195.205.
There are no applicable annexation plans adopted pursuant to ORS 195.205 relating to the
affected territory.
c. Any applicable cooperative planning agreement adopted pursuant to ORS
195.020(2) between the affected entity and a necessary party.
There are no ORS 195.020(2) cooperative agreements (which relate to special districts)
between the city and a necessary party.
d. Any applicable public facility plan adopted pursuant to a state wide planning goal
on public facilities and services
The sanitary system in this area has been constructed and follows the 2003 City of Lake
Oswego Wastewater Master Plan. Sanitary Sewer service is available from a City of Lake
Oswego eight-inch collection line located in a public easement along the southern portion of
the site. An additional eight-inch collection line, located along the property frontage has
one existing sewer lateral stubbed to the property.
Ordinance 2729 (AN 16-0009) ATTACHMENT B/Page 5
e. Any applicable comprehensive plan policies
Comprehensive Plan Map: The subject property is currently designated R-8.5, Low Density
Residential on Clackamas County’s Comprehensive Plan and Zoning Maps. The property is
also designated as Low Density Residential R-7.5 on the City’s Comprehensive Plan Map.
Upon annexation, a City zoning designation of R-7.5 will be applied to this parcel.
The City and County have coordinated their comprehensive plans within the Dual Interest
Area outlined in the City/County Urban Growth Management Agreement (dated February 4,
1992 and updated November 18, 1997), hence the City/County designations have been
determined to be compatible. Therefore, this annexation is compatible with the City’s
Comprehensive Plan Map.
Comprehensive Plan Policies: The updated Lake Oswego Comprehensive Plan contains the
following relevant language in the Urbanization chapter, Policy A-3: “The Urban Services
Boundary (as depicted on the Comprehensive Plan Map) is the area within which the City
shall be the eventual provider of the full range of urban services.” The proposed annexation
and the withdrawal of the property from the identified districts is consistent with this policy.
Policy C-3 states: “Ensure that annexation of new territory or expansion of Lake Oswego’s
Urban Services Boundary does not detract from the City’s ability to provide services to
existing City residents.”
The approval of this annexation will result in the addition of 0.95 acres to be served by the
City. As stated in Section 2(b)(1), the addition of this territory will not detract from the City’s
ability to provide police and fire protection to existing City Residents. Annexation of this
property will not affect the City’s ability to provide parks and recreation services. Public
facilities, such as sewer and water are also found to be adequate to serve this site.
Comprehensive Plan Policy C-4 states: “Prior to the annexation of non-island properties,
ensure urban services are available and adequate to serve the properties or will be made
available in a timely manner by the City or a developer commensurate with the scale of the
proposed development.”
Community Development Code Section 50.06.008.3 requires that all development be
provided with the following utility services: sanitary sewer, water, sidewalks, pedestrian and
bicycle paths, traffic control signs and devices, street lights, streets, and TV cable. These
utilities are now in place or can be put in place to serve this property.
In the event that future development occurs, an applicant for development is obligated to
construct all necessary public facilities to serve their development.
As noted above, police and fire services are available upon annexation. The amount of
protection provided will be similar to protection provided to other City residents because
the property proposed to be annexed is not isolated from other areas of the City.
Urban Growth Management Agreement: General Urbanization Policy 4.A.4 of the Clackamas
County Comprehensive Plan calls for the establishment of Urban Growth Management Areas
and Urban Growth Management Agreements to clarify planning responsibilities between
the County and cities for areas of mutual interest. Policy 4.A.5 directs the County to
establish agreements with cities and service districts to clarify service and infrastructure
responsibilities for areas of mutual interest. Similarly, the Lake Oswego Comprehensive
Plan, Urbanization Chapter, Policy D-3, calls for entering into and maintaining an Urban
Growth Management Agreement (UGMA) with Clackamas County for lands within the Urban
Ordinance 2729 (AN 16-0009) ATTACHMENT B/Page 6
Services Boundary. In furtherance of these policies, the City and County have entered into
an Urban Growth Management Agreement that stipulates a mutual interest in coordinated
land use planning, compatible comprehensive plans and provision of urban services and
facilities. This agreement ensures coordination and consistency between the City and
County comprehensive plans and outlines responsibilities in providing services and
managing growth within the Dual Interest Area. Subsections 6 and 7, provided below, are
applicable to annexations.
“6. City and County Notice and Coordination:
The City shall provide notification to the County, and an opportunity to participate,
review and comment, at least 35 days prior to the first public hearing on all proposed
public facilities plans, legislative changes to the City Comprehensive Plan, or quasi-
judicial land use actions adjacent to, or in close proximity to unincorporated areas.
The City shall provide notice to the County of private or City initiated annexation
requests within five days of the filing of an application…”
The Urban Growth Management Agreement specifies that the City notify the County of an
annexation request within five days of when it is submitted to the Boundary Commission.
There is no longer a Boundary Commission for the Portland Metropolitan area.
Staff relies on the notice requirements of Metro Code 3.09.030, which requires notice 20
days prior to the scheduled hearing for an annexation for all necessary parties (other
governmental entities), unless a shorter time is agreed upon. The County is a necessary
party under the Metro Code definition and has been notified.
“7. City Annexations
A. The City may undertake annexations in the manner provided for by law within
the Dual Interest Area. The City annexation proposals shall include adjacent road
right-of-way to property proposed for annexation. The County shall not oppose such
annexations.
B. Upon annexation, the City shall assume jurisdiction of the County roads and
local access roads pursuant to a separate road transfer agreement between the City
and county.”
The City is undertaking this annexation in the manner provided for in the applicable ORS and
Metro Code for the territories that lie within the Dual Interest Area. This annexation will be
consistent with the City and County comprehensive plans which have been coordinated in
the Dual Interest Area within the regional Urban Growth Boundary (UGB).
f. Any applicable concept plan
Consistency of the proposed boundary change with urban planning agreements is
mentioned under D(1)(c)above.
2. Consider whether the boundary change would
a. Promote the timely orderly and economic provision of public facilities and services
b. Affect the quality and quantity of urban services
c. Eliminate or avoid unnecessary duplication of facilities or services
Due to the proximity of the property to existing City services, this annexation will promote
the timely, orderly and economical extension of public facilities and services. The subject
property can readily be served with urban services and facilities. If and when additional
development occurs in the area, provision of public facilities and services will occur
Ordinance 2729 (AN 16-0009) ATTACHMENT B/Page 7
consistent with the City’s adopted public facility master plans, ensuring that it does not
adversely affect the quality or quantity of urban services and avoiding unnecessary
duplication of facilities or services. Therefore, this boundary change will is consistent with
criteria 2.a through 2.c.
(E) A city may not annex territory that lies outside the UGB except it may annex a lot or parcel
that lies partially within and partially outside the UGB.
The property to be annexed is located entirely within the City’s Urban Growth Boundary (UGB).
CONCLUSION:
Based on the criteria and findings set forth above, the City Council concludes that AN 16-0009
complies with all applicable criteria and the annexation should be approved.
EFFECTIVE DATE:
A. Effective Date of Annexation Ordinance. Pursuant to Lake Oswego City Charter, Section 34,
the ordinance shall be effective on the 30th day after its enactment.
B. Effective Date of Annexation. Following the filing of the annexation records with the
Secretary of State as required by ORS 222.177, this annexation shall be effective upon the later of:
1. the 30th day following the date of adoption of this ordinance; or
2. the date of filing of the annexation records with the Secretary of State;
provided however that pursuant to ORS 222.040(2), if the effective date of the annexation as
established above is a date that is within 90 days of a biennial primary or general election or after
the deadline for filing notice of election before any other election held by any City, district or other
municipal corporation involved in the area to be annexed, then the effective date of the annexation
shall be delayed until, and the annexation shall become effective on, the day after the election.
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Paul Espe, Associate Planner
SUBJECT: Ordinance 2730 – Annexing Property at 13615 Knaus Road
(Tax Lot , 1000, Tax Map 21E04BD); AN 16-0010
DATE: December 14, 2016 Date of Meeting: January 3, 2017
ACTION
Enact Ordinance 2730 (Exhibit A-1), annexing Tax Lot
1000 (Tax Map 21E04BD) at 13615 Knaus Road.
SUGGESTED MOTION
Move to enact Ordinance 2730.
INTRODUCTION/BACKGROUND
The proposed annexation is owner-initiated and will
result in the addition of approximately 0.34 acres of
residential land to the City. This Council report
describes the reasons for the annexation and provides
basic background information. The criteria for
approving annexations and the findings in support of
this annexation are included in Attachment B of Exhibit
A-1.
Owner/Applicant: Charles Duck
Location/Size: The subject property totals 0.34 acres (14,810 square feet). It is located on the west side of
Knaus Road, 335 feet south of the intersection of Knaus Road and Leslie Lane.
Existing Land Use: Tax Lot 1000 is occupied by a single-family dwelling that accesses Knaus Road from a
common driveway.
Neighborhood: The property is located within the Forest Highlands Neighborhood.
Purpose of Annexation: The property owner initiated the annexation to connect to City sewer service.
DISCUSSION
Plan and Zone Designation: The subject property is currently under Clackamas County’s jurisdiction and
zoned Low Density Residential R-20. This area is designated R-7.5, Low Density Residential on the City of
Lake Oswego Comprehensive Plan Map and will be zoned R-7.5 upon annexation.
9.4
Page 2
Development Potential: The 0.34 acre residential property cannot be further divided.
Sensitive Lands: There are no Sensitive Lands designated on the property.
Sewer and Water Service: Sanitary sewer service is available from a City of Lake Oswego eight-inch
collection line in Knaus Road and the common driveway abutting the north property line. The existing
septic tank on the property will need to be decommissioned per DEQ standards.
The Engineering staff notes that this property is located within the boundary of a sewer Zone of Benefit
(ZOB), where the applicant of the ZOB previously extended the public sewer main along the private access
ro ad (north of the site) from Knaus Road. This line was extended to serve 13599 Knaus Road located at the
west end of the access. The developer of 13599 Knaus Road formed a ZOB because the sewer extension
can also serve adjacent properties along this driveway. “Latecomer” connections to the qualifying sewer
would be obligated to pay a “unit connection charge” as a condition of being permitted to connect to this
sewer.
Water is available from a City water main line located in the common driveway abutting the north property
line. The closest fire hydrant is located on the north side of the common driveway at the northwest corner
of the site and along the west side of Knaus Road.
Surface Water Management: Any new development will be subject to the City storm water provisions,
which ensure that new development does not have an adverse effect on adjoining properties and does not
overburden the City stormwater system.
Service Districts: Upon annexation, the property will, by operation of ORS 222.520, be withdrawn from the
Lake Grove Fire District #57, and the Clackamas County Enhanced Sheriff’s Patrol District, but will remain in
the Lake Grove Park District.
Transportation: Knaus Road is classified in the Comprehensive Plan as a Neighborhood Collector. The right
of way along this property is under the jurisdiction and permitting authority of the City of Lake Oswego.
The nearest mass transit service is Tri-Met bus line 78, which operates between downtown Lake Oswego
and the Tigard and Beaverton Transit Centers. Service can be accessed at the intersection of Knaus Road
and Country Club Road.
ALTERNATIVES & FISCAL IMPACT
The draft findings provided in Attachment B of Exhibit A-1 conclude that the proposed annexation complies
with all applicable State statutes and Metro code requirements. This annexation is for one parcel of
approximately 0.34 acres. The estimated assessed value of the residential property is $258,303. The
estimated tax revenue after the parcel is annexed is $667.00
RECOMMENDATION
Staff recommends approval of AN 16-0010.
EXHIBITS
A-1 Ordinance 2730
Attachment A: Map
Attachment B: Criteria Findings Conclusion and Effective Date
Ordinance 2730, AN 16-0010
(Tax Map 21E04BD,
Tax Lot 1000) EXHIBIT A-1/PAGE 1
ORDINANCE 2730
AN ORDINANCE ANNEXING TO THE CITY OF LAKE OSWEGO ONE PARCEL CONSISTING OF 0.34
ACRES AT 13615 KNAUS ROAD; DECLARING CITY OF LAKE OSWEGO ZONING PURSUANT TO
LOC 50.01.004.5(a-c); AND REMOVING THE TERRITORY FROM CERTAIN DISTRICTS (AN 16-
0010).
WHEREAS, annexation to the City of Lake Oswego of the territory shown in the map in
Attachment “A” and described below, would constitute a contiguous boundary change under
ORS 222.111, initiated by petition from the property owner as outlined in ORS 222.111(2); and,
WHEREAS, the City has received consent for the proposed annexation from all of the property
owners and not less than 50 percent of the electors residing in the territory as outlined in ORS
222.125.
WHEREAS, the City has received consent for the proposed annexation from more than half the
owners of land in the territory, who own more than half of the land in the territory and more
than half of the assessed value of the land in the territory, as required by ORS 222.170; and,
WHEREAS, the part of the territory that lies within the Lake Grove Fire District #57 will, by
operation of ORS 222.520, be withdrawn from that district immediately upon approval of the
annexation; and,
WHEREAS, the part of the territory that lies within the Clackamas County Enhanced Sheriff’s
Patrol District will, by operation of ORS 222.520, be withdrawn from the district upon approval
of the annexation; and,
WHEREAS, LOC 50.01.004.5 specifies that, where the Comprehensive Plan Map requires a
specific Zoning Map designation to be placed on the territory annexed to the City, such a zoning
designation shall automatically be imposed on the territory as of the effective date of the
annexation; and,
WHEREAS, this annexation is consistent with the Urbanization Chapter of the City of Lake
Oswego’s acknowledged Comprehensive Plan, Oregon Revised Statutes 222.111(2), 222.125
and 222.170 for boundary changes, and Metro Code Sections 3.09.050).
Now, therefore, the City of Lake Oswego ordains as follows:
Section 1. The real property described as follows is hereby annexed to the City of Lake
Oswego:
A tract of land located in the Northwest quarter of Section 4, Township 2 South, Range
1 East of the Willamette Meridian, City of Lake Oswego, Clackamas County, Oregon, more
particularly described as follows:
Beginning at an iron pipe in the westerly right-of-way line of Knaus Road, said iron pipe
bears West, 40.00 feet and North 00°00'30" West, 417.50 feet from the Center of Section
EXHIBIT A-1
AN 16-0010
Ordinance 2730, AN 16-0010
(Tax Map 21E04BD,
Tax Lot 1000) EXHIBIT A-1/PAGE 2
4, of said Township and Range;
Thence leaving said westerly right-of-way, West, 160.00 feet;
Thence North 0°00'30" West, 94.30 feet;
Thence East, 140.00 feet to a point of curvature;
Thence southeasterly along a curve to the right having a radius of 20.00 feet through a
central angle of 89°59'30", a distance of 31.41 feet to a point of tangency on the westerly
right-of-way of Knaus Road;
Thence along said right-of-way South 0°00'30" East, 74.30 feet to the point of beginning.
The annexed territory is depicted on Attachment A.
Section 2. The annexed area lies within the following districts and shall be retained within
these districts upon the effective date of annexation:
Lake Grove Park District
Section 3. The annexed area lies within the following districts and shall be withdrawn from
these districts upon the effective date of annexation:
Lake Grove Fire District #57
Clackamas County Enhanced Sheriff’s Patrol District
Section 4. In accordance with LOC 50.01.004.5, the City zoning designation of R-7.5 shall be
applied to the subject property on the effective date of annexation.
Section 5. The City Council hereby adopts the findings of fact and conclusions set forth in
Attachment B in support of this annexation ordinance.
Section 6. Effective Dates:
a.Effective Date of Decision to Annex. Pursuant to Metro Code 3.09.050(f), the
effective date of this annexation decision shall be immediately upon adoption, unless a
governmental entity that qualifies as a “necessary party” under Metro Code 3.09.020(j) has
contested this annexation, in which event this annexation decision shall be effective on the 10th
day following the mailing of this ordinance by the City Recorder to Metro and to all necessary
parties who appeared in this proceeding.
b.Effective Date of Annexation Ordinance. Pursuant to Lake Oswego City Charter,
Section 34, this ordinance shall be effective on the 30th day after its enactment.
c.Effective Date of Annexation. Following the filing of the annexation records with
the Secretary of State as required by ORS 222.177, this annexation shall be effective upon the
later of either:
1.the 30th day following the date of adoption of this ordinance; or
Ordinance 2730, AN 16-0010
(Tax Map 21E04BD,
Tax Lot 1000) EXHIBIT A-1/PAGE 3
2.the date of filing of the annexation records with the Secretary of State.
Provided, however, that pursuant to ORS 222.040(2), if the effective date of the annexation as
established above is a date that is within 90 days of a biennial primary or general election or
after the deadline for filing notice of election before any other election held by any city, district
or other municipal corporation involved in the area to be annexed, then the effective date of
the annexation shall be delayed until, and the annexation shall become effective on, the day
after the election.
Section 7. Mailing Copies of this Ordinance; Metro Notice
Within 30 days following the date of adoption:
a.The City Recorder shall mail a copy of this ordinance to all persons and
governmental entities that appeared at the public hearing and requested a copy of the
ordinance following adoption.
b.The City Recorder shall mail a copy of this ordinance together with the applicable
mapping and notice fee charged by Metro pursuant to Metro Code 3.09.110, to the Metro Data
Resource Center, 600 NE Grand Ave., Portland, OR 97232.
Read by title only and enacted at the regular meeting of the City Council of the City of Lake
Oswego held on _______________day of _________________, 2016.
AYES:
NOES:
ABSTAIN:
EXCUSED:
________________________________
Kent Studebaker, Mayor
________________________________
Dated
ATTEST:
______________________________________
Anne-Marie Simpson, City Recorder
APPROVED AS TO FORM:
____________________________________
David Powell, City Attorney
13455
1378013701
13781
13741
13699
13501
13611 13615
1358513595
13680
13612
13520
13440
13360
13300
13700
13744133481611
162213777
1
3
7
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5
13705
Country Commons
KnausRdKnaus RdSW Knaus RdLeslie LnLeslie Ct0 90 180 270Feet ³Lake OswegoCity Limits SubjectProperty
Annexation to the City of Lake OswegoAN16-0010/Ordinance 2730
11/22/2016
R-10
Attachment A
Map and Lot #21E0 4BD TL 10 00City of Lake Oswe go:COMPREHENSIVE PLAN = R-7.5 , ResidentialZONING = R-7.5, Resid ential
Clacka ma s County:ZONING = R-20 , Residential
R-7.5
TL 1000
Ordinance 2730 (AN 16-0010) ATTACHMENT B/Page 1
ATTACHMENT B
Criteria, Findings, Conclusion, and Effective Date
APPLICABLE CRITERIA:
A. Oregon Revised Statutes (ORS), Boundary Changes; Mergers and Consolidations.
1.ORS 222.111(2) - Annexation of Contiguous Territory, Authority and Procedure for
Annexation, Generally.
2.ORS 222.125 - Annexation by consent of all owners of land and the majority of electors.
3.ORS 222.170 - Annexation by consent of more than half of the owners of land in the territory
to be annexed, who also own more than half of the land in the territory, and of land
representing more than half of the assessed value of the territory.
B. Metro Code.
1. 3.09.040(a)(1-4) Minimum Requirements for Petitions.
2.3.09.045 (D-E) Expedited Decisions (criteria incorporated for non-expedited decisions by MC
3.09.050(D))
3.3.09.050 (A-D) Hearing and Decision Requirements for Decisions other than Expedited Land
Decisions.
C. Comprehensive Plan - Urbanization Chapter
1.Policy A-3: “The Urban Services Boundary (as depicted on the Comprehensive Plan Map) is
the area within which the City shall be the eventual provider of the full range of urban
services.”
2.Policy C-3: “Ensure that annexation of new territory or expansion of Lake Oswego’s Urban
Services Boundary does not detract from the City’s ability to provide services to existing City
Residents.”
3.Policy C-4: “Prior to the annexation of non-island properties, ensure urban services are
available and adequate to serve the property or will be made available in a timely manner
by the City or a developer commensurate with the scale of the proposed development.”
FINDINGS:
A. Oregon Revised Statutes (ORS), Boundary Changes; Mergers and Consolidations.
1.ORS 222.111(2) Annexation of Contiguous Territory, Authority and Procedure for Annexation,
Generally.
ORS 222.111(2) provides that a proposal for annexation of territory to a City may be initiated by the
legislative body of the City, on its own motion, or by a petition to the legislative body of the City by owners
of real property in the territory to be annexed. The sole owner of the property at Knaus Road has
petitioned the City for this annexation. The proposed annexation complies with this statute.
Ordinance 2730 (AN 16-0010) ATTACHMENT B/Page 2
2. ORS 222.125 - Annexation by consent of all owners of land and the majority of electors.
ORS 222.125 states that an election need not be held on the question of annexation within the area
proposed to be annexed if all of the owners of land in the territory and not less than 50 percent of the
electors, if any, residing in the territory consent in writing to the annexation. The sole property owner who
is one and the same as the registered voter has signed the annexation application and petition. The
proposed annexation complies with this statute.
3. ORS 222.170 - Annexation by consent of more than half of the owners of land in the territory to
be annexed, who also own more than half of the land in the territory, and of land representing
more than half of the assessed value of the territory.
ORS 222.170 states that an election need not be held on the question of annexation within the territory
proposed to be annexed if more than half of the owners of land in that territory consent in writing to the
annexation. These owners must also own more than half of the land in the territory to be annexed and
more than half of the assessed value of all of the land in the territory. The owner of the property at 13615
Knaus Road has consented to the annexation on the annexation petition (on file). The proposed annexation
complies with this statute.
B. Metro Code
1. 3.09.040 - Minimum Requirements for Petitions.
(A) A petition for a boundary change must contain the following information:
1) The jurisdiction of the reviewing entity to act on the petition;
2) A map and a legal description of the affected territory in the form prescribed by the
reviewing entity;
3) For minor boundary changes, the names and mailing addresses of all persons
owning property and all electors within the affected territory as shown in the
records of the tax assessor and county clerk; and,
4) For boundary changes under ORS 198.855 (3), 198.857, 222.125 or 222.170,
statements of consent to the annexation signed by the requisite number of owners
or electors.
The above information was submitted as required by Metro Code. The property owner has signed
the application and petition. A map and legal description in the form required by the City have been
included in the application materials and are on file. The property owner who is one in the same as
the elector has consented to the annexation on the annexation petition, meeting the consent
requirements of ORS 222.125 and 222.170. The annexation petition complies with the Metro code
requirements.
2. 3.09.050 - Hearing and Decision Requirements for Decisions Other Than Expedited Decisions.
(B) Not later than 15 days prior to the date set for a boundary change decision, the approving
entity shall make available to the public a report that addresses the criteria identified in
subsection (D) and includes the following information:
(1) The extent to which urban services are available to serve the affected territory
including any extra-territorial extensions of service.
The property is located within the Urban Growth Boundary and the City’s Urban Services
Boundary. Metro Code section 3.09.020 defines urban services as including sanitary sewers,
water, fire protection, parks, open space, recreation, streets, roads and mass transit.
Ordinance 2730 (AN 16-0010) ATTACHMENT B/Page 3
Water: Water is available from a City water main line located in the common driveway
abutting the north property line. The closest fire hydrant is located on the north side of the
common driveway at the northwest corner of the site and along the west side of Knaus
Road.
Sewer: Sanitary sewer service is available from a City of Lake Oswego eight-inch collection
line in Knaus Road and the common driveway abutting the north property line. The existing
septic tank on the property will need to be decommissioned per DEQ standards.
The Engineering staff notes that this property is located within the boundary of a sewer
Zone of Benefit (ZOB), where the applicant of the ZOB previously extended the public sewer
main along the private access road (north of the site) from Knaus Road. This line was
extended to serve 13599 Knaus Road located at the west end of the access. The developer
of 13599 Knaus Road formed a ZOB because the sewer extension can also serve adjacent
properties along this driveway. “Latecomer” connections to the qualifying sewer would be
obligated to pay a “unit connection charge” as a condition of being permitted to connect to
this sewer.
Surface Water Management: Upon annexation, the territory will be subject to the City’s
onsite storm water management regulations. Any new development will be subject to these
provisions, which ensure that new development does not have an adverse effect on
adjoining properties and does not overburden the City stormwater system.
Fire Protection: Lake Grove Fire District #57 provides fire protection services to the subject
property by agreement with the City of Lake Oswego. Upon annexation, the property will be
withdrawn from this fire district and served directly by the City. The Main Fire Station,
located southeast of the site, would be able to respond to emergencies under the eight
minute goal established in the Comprehensive Plan.
Police: Upon annexation, the subject property will be withdrawn from the Clackamas
County Enhanced Sheriff’s Patrol District and will be served by the City of Lake Oswego. The
Lake Oswego Police Department reviewed the proposal and indicated that it does not have
any concerns with serving this property upon annexation.
Parks and Open Space: The City has 537 acres of park and open space lands, or 14.6 acres
per 1,000 population. The nearest parks to this property are Woodmont Natural Park and
Springbrook Park. Woodmont Natural Park is 6.8 acres and located on the corner of Knaus
Road and Atwater Lane. Woodmont Park is a natural park that has no amenities for
organized recreation activities; however, the Parks Department expects to begin a master
plan process for the property in the near future. Springbrook Park is 52 acres and contains
the Lake Oswego Indoor Tennis Center. The City’s park system will not be overburdened by
any additional population annexed to the City with this application.
Lake Grove Park District: The Lake Grove Swim Park, managed by the Lake Oswego School
District, and funded by the Lake Grove Park District, is located at 3800 Lakeview Boulevard.
The swim park is approximately 1.3 acres in size with restroom, play and swim facilities. This
property will remain within the Lake Grove Park District following annexation.
Transportation - Streets and Mass Transit: Knaus Road is classified in the Comprehensive
Plan as a Neighborhood Collector. The right of way along this property is under the
jurisdiction and permitting authority of the City of Lake Oswego. The nearest mass transit
Ordinance 2730 (AN 16-0010) ATTACHMENT B/Page 4
service is Tri-Met bus line 78, which operates between Tualatin and downtown Lake Oswego.
Service can be accessed at Country Club Road.
(2) Whether the proposed boundary change will result in the withdrawal of the
affected territory from the legal boundary of any necessary party.
ORS 222.520 authorizes the City to withdraw the property from the Lake Grove Fire District
#57, and the Clackamas County Enhanced Sheriff’s Patrol District. Upon approval of the
annexation, the ordinance will withdraw the property from these service districts.
(3) The proposed effective date of the boundary change.
The proposed effective date of the decision is outlined in the final section of this report.
(D) To approve a boundary change, the reviewing entity shall apply the criteria and consider the
factors set forth in subsections D and E of section 3.09.045 (Expedited Decisions).
3.09.045 (D) - To approve a boundary change through the expedited process the City shall:
1. Find that the change is consistent with expressly applicable provisions in:
a. Any applicable urban service agreement adopted pursuant to ORS 195.065
The City has entered into - ORS 195.065 agreements with: 1) Lake Oswego School District;
and, 2) Lake Grove Fire District.
Lake Oswego School District: The City and the Lake Oswego School District entered into an
ORS 195.065 urban service agreement for park services in July, 2003. The School District
operates the Lake Grove Swim Park located at 3800 Lakeview Boulevard. The agreement
states that the annexation of property by the City within the Lake Grove Park District (which
funds the swim park) shall not cause the withdrawal of this property from the district.
Lake Grove Fire District #57: The City and District entered into an ORS 195.065 urban service
agreement for fire protection in July, 2003. The agreement states that upon annexation of
property within the district by the City, the annexed property shall be withdrawn from the
District and the City shall provide fire protection services.
b. Any applicable annexation plan adopted pursuant to ORS 195.205.
There are no applicable annexation plans adopted pursuant to ORS 195.205 relating to the
affected territory.
c. Any applicable cooperative planning agreement adopted pursuant to ORS
195.020(2) between the affected entity and a necessary party.
There are no ORS 195.020(2) cooperative agreements (which relate to special districts)
between the city and a necessary party.
d. Any applicable public facility plan adopted pursuant to a state wide planning goal
on public facilities and services
The sanitary system in this area has been constructed and follows the 2003 City of Lake
Oswego Wastewater Master Plan. Sanitary Sewer service is available from a City of Lake
Oswego eight-inch collection line located in in Knaus Road and the common driveway
abutting the north property line.
Ordinance 2730 (AN 16-0010) ATTACHMENT B/Page 5
e. Any applicable comprehensive plan policies
Comprehensive Plan Map: The subject property is currently designated R-20, Low Density
Residential on Clackamas County’s Comprehensive Plan and Zoning Maps. The property is
designated as Low Density Residential R-7.5 on the City’s Comprehensive Plan Map. Upon
annexation, a City zoning designation of R-7.5 will be applied to this parcel.
The City and County have coordinated their comprehensive plans within the Dual Interest
Area outlined in the City/County Urban Growth Management Agreement (dated February 4,
1992 and updated November 18, 1997), hence the City/County designations have been
determined to be compatible. Therefore, this annexation is compatible with the City’s
Comprehensive Plan Map.
Comprehensive Plan Policies: The updated Lake Oswego Comprehensive Plan contains the
following relevant language in the Urbanization chapter, Policy A-3: “The Urban Services
Boundary (as depicted on the Comprehensive Plan Map) is the area within which the City
shall be the eventual provider of the full range of urban services.” The proposed annexation
and the withdrawal of the property from the identified districts is consistent with this policy.
Policy C-3 states: “Ensure that annexation of new territory or expansion of Lake Oswego’s
Urban Services Boundary does not detract from the City’s ability to provide services to
existing City residents.”
The approval of this annexation will result in the addition of 0.34 acres to be served by the
City. As stated in Section 2(b)(1), the addition of this territory will not detract from the City’s
ability to provide police and fire protection to existing City Residents. Annexation of this
property will not affect the City’s ability to provide parks and recreation services. Public
facilities, such as sewer and water are also found to be adequate to serve this site.
Comprehensive Plan Policy C-4 states: “Prior to the annexation of non-island properties,
ensure urban services are available and adequate to serve the property or will be made
available in a timely manner by the City or a developer commensurate with the scale of the
proposed development.”
Community Development Code Section 50.06.008.3 requires that all development be
provided with the following utility services: sanitary sewer, water, sidewalks, pedestrian and
bicycle paths, traffic control signs and devices, street lights, streets, and TV cable. These
utilities are now in place or can be put in place to serve this property.
In the event that future development occurs, an applicant for development is obligated to
construct all necessary public facilities to serve their development.
As noted above, police and fire services are available upon annexation. The amount of
protection provided will be similar to protection provided to other City residents because
the property proposed to be annexed is not isolated from other areas of the City.
Urban Growth Management Agreement: General Urbanization Policy 4.A.4 of the Clackamas
County Comprehensive Plan calls for the establishment of Urban Growth Management Areas
and Urban Growth Management Agreements to clarify planning responsibilities between
the County and cities for areas of mutual interest. Policy 4.A.5 directs the County to
establish agreements with cities and service districts to clarify service and infrastructure
responsibilities for areas of mutual interest. Similarly, the Lake Oswego Comprehensive
Plan, Urbanization Chapter, Policy D-3, calls for entering into and maintaining an Urban
Ordinance 2730 (AN 16-0010) ATTACHMENT B/Page 6
Growth Management Agreement (UGMA) with Clackamas County for lands within the Urban
Services Boundary. In furtherance of these policies, the City and County have entered into
an Urban Growth Management Agreement that stipulates a mutual interest in coordinated
land use planning, compatible comprehensive plans and provision of urban services and
facilities. This agreement ensures coordination and consistency between the City and
County comprehensive plans and outlines responsibilities in providing services and
managing growth within the Dual Interest Area. Subsections 6 and 7, provided below, are
applicable to annexations.
“6. City and County Notice and Coordination:
The City shall provide notification to the County, and an opportunity to participate,
review and comment, at least 35 days prior to the first public hearing on all proposed
public facilities plans, legislative changes to the City Comprehensive Plan, or quasi-
judicial land use actions adjacent to, or in close proximity to unincorporated areas.
The City shall provide notice to the County of private or City initiated annexation
requests within five days of the filing of an application…”
The Urban Growth Management Agreement specifies that the City notify the County of an
annexation request within five days of when it is submitted to the Boundary Commission.
There is no longer a Boundary Commission for the Portland Metropolitan area.
Staff relies on the notice requirements of Metro Code 3.09.030, which requires notice 20
days prior to the scheduled hearing for an annexation for all necessary parties (other
governmental entities), unless a shorter time is agreed upon. The County is a necessary
party under the Metro Code definition and has been notified.
“7. City Annexations
A. The City may undertake annexations in the manner provided for by law within
the Dual Interest Area. The City annexation proposals shall include adjacent road
right-of-way to property proposed for annexation. The County shall not oppose such
annexations.
B. Upon annexation, the City shall assume jurisdiction of the County roads and
local access roads pursuant to a separate road transfer agreement between the City
and county.”
The City is undertaking this annexation in the manner provided for in the applicable ORS and
Metro Code for the territories that lie within the Dual Interest Area. This annexation will be
consistent with the City and County comprehensive plans which have been coordinated in
the Dual Interest Area within the regional Urban Growth Boundary (UGB).
f. Any applicable concept plan
Consistency of the proposed boundary change with urban planning agreements is
mentioned under D(1)(c)above.
2. Consider whether the boundary change would
a. Promote the timely orderly and economic provision of public facilities and services
b. Affect the quality and quantity of urban services
c. Eliminate or avoid unnecessary duplication of facilities or services
Due to the proximity of the property to existing City services, this annexation will promote
the timely, orderly and economical extension of public facilities and services. The subject
property can readily be served with urban services and facilities. If and when additional
Ordinance 2730 (AN 16-0010) ATTACHMENT B/Page 7
development occurs in the area, provision of public facilities and services will occur
consistent with the City’s adopted public facility master plans, ensuring that it does not
adversely affect the quality or quantity of urban services and avoiding unnecessary
duplication of facilities or services. Therefore, this boundary change will is consistent with
criteria 2.a through 2.c.
(E) A city may not annex territory that lies outside the UGB except it may annex a lot or parcel
that lies partially within and partially outside the UGB.
The property to be annexed is located entirely within the City’s Urban Growth Boundary (UGB).
CONCLUSION:
Based on the criteria and findings set forth above, the City Council concludes that AN 16-0010
complies with all applicable criteria and the annexation should be approved.
EFFECTIVE DATE:
A. Effective Date of Annexation Ordinance. Pursuant to Lake Oswego City Charter, Section 34,
the ordinance shall be effective on the 30th day after its enactment.
B. Effective Date of Annexation. Following the filing of the annexation records with the
Secretary of State as required by ORS 222.177, this annexation shall be effective upon the later of:
1. the 30th day following the date of adoption of this ordinance; or
2. the date of filing of the annexation records with the Secretary of State;
provided however that pursuant to ORS 222.040(2), if the effective date of the annexation as
established above is a date that is within 90 days of a biennial primary or general election or after
the deadline for filing notice of election before any other election held by any City, district or other
municipal corporation involved in the area to be annexed, then the effective date of the annexation
shall be delayed until, and the annexation shall become effective on, the day after the election.
TO: Kent Studebaker, Mayor
Members of the City Council
FROM: Paul Espe, Associate Planner
SUBJECT: Ordinance 2731 – Annexing Property at 5550 Jean Road
(Tax Lot , 100, Tax Map 21E 18CA); AN 16-0011
DATE: December 14, 2016 Date of Meeting: January 3, 2017
ACTION
Enact Ordinance 27 31 (Exhibit A-1), annexing Tax Lot 100
(Tax Map 21E18CA) at 5550 Jean Road.
SUGGESTED MOTION
Move to enact Ordinance 2731.
INTRODUCTION/BACKGROUND
The proposed annexation is owner-initiated and will result
in the addition of approximately 0.5 acres of residential
land to the City. This Council report describes the reasons
for the annexation and provides basic background
information. The criteria for approving annexations and
the findings in support of this annexation are included in
Attachment B of Exhibit A-1.
Owner/Applicant: Jay Hinrichs
Location/Size: The subject property totals 0.5 acres (21,780 square feet). It is located on the south side of
Jean Road on the southwest corner of Pilkington and Jean Roads.
Existing Land Use: Tax Lot 100 is occupied by a single-family dwelling and several accessory buildings which
take direct access to Jean Road.
Neighborhood: The property is located within the Rosewood Neighborhood.
Purpose of Annexation: The property owner initiated the annexation to connect to City sewer service and
develop the property.
DISCUSSION
Plan and Zone Designation: The subject property is currently under Clackamas County’s jurisdiction and
zoned Low Density Residential R-10. This area is designated R-7.5, Low Density Residential on the City of
Lake Oswego Comprehensive Plan Map and will be zoned R-7.5 upon annexation.
9.5
Page 2
Development Potential: The residential property consists of one parcel of 0.5 acres that could be divided
into two lots.
Sensitive Lands: There are no Sensitive Lands designated on the property.
Sewer and Water Service: Sanitary sewer service is available from an eight-inch City of Lake Oswego
sanitary line located in Pilkington Road along East property line. Upon connection to the sewer, the septic
system will need to be decommissioned per DEQ standards.
The Engineering staff also notes that this property is located within the boundary of a sewer Zone of
Benefit (ZOB), where the applicant of the ZOB previously extended the public sewer main from Jean Road
along Pilkington Road in order to serve their subdivision development south of this property. The
developer filed for the formation of a Zone of Benefit (ZOB), since the sewer extension could serve
adjacent properties along the new sewer extension. The ZOB will require “latecomer” sewer connections
to be obligated to pay a “unit connection charge” as a condition of being permitted to connect to the
sewer.
Water is available from a six inch Rivergrove Water District line in Pilkington Road. The closest fire hydrant
is located at the northeast corner of the site. The property will continue to receive water from the
Rivergrove Water District after annexation.
Surface Water Management: Currently, the territory is under the jurisdiction of the Surface Water
Management Agency of Clackamas County (SWMACC). Upon annexation, the territory will be withdrawn
from SWMACC and will be subject to the City’s storm water management regulations. Any new
development will be subject to these provisions, which ensure that new development does not have an
adverse effect on adjoining properties and does not overburden the City stormwater system.
Service Districts: Upon annexation, the property will, by operation of ORS 222.520, be withdrawn from the
Lake Grove Fire District #57, the Clackamas County Enhanced Sheriff’s Patrol District and the Surface Water
Management Agency of Clackamas County (SWMAC), but will remain in the Rivergrove Water and the Lake
Grove Park Districts.
Transportation: Jean and Pilkington Roads are both classified as major collectors in the City’s functional
street classification system, and the rights-of-way along this property is under the maintenance jurisdiction
and permitting authority of the City of Lake Oswego. Tri Met Line 36, which runs along Jean Road and
connects to the Tualatin Transit Center, provides the closest bus service to the subject property.
ALTERNATIVES & FISCAL IMPACT
The draft findings provided in Attachment B of Exhibit A-1 conclude that the proposed annexation complies
with all applicable State statutes and Metro code requirements. This annexation is for one parcel of
approximately 0.5 acres. The estimated assessed value of the residential property is 181,862. The
estimated tax revenue after the parcel is annexed is $470.00.
RECOMMENDATION
Staff recommends approval of AN 16-0011.
EXHIBITS
A-1 Ordinance 2731
Attachment A: Map
Attachment B: Criteria Findings Conclusion and Effective Date
Ordinance 2731, AN 16-0011
(Tax Map 21E18CA,
Tax Lot 100) EXHIBIT A-1/PAGE 1
ORDINANCE 2731
AN ORDINANCE ANNEXING TO THE CITY OF LAKE OSWEGO ONE PARCEL CONSISTING OF 0.5
ACRES AT 5550 SW JEAN ROAD; DECLARING CITY OF LAKE OSWEGO ZONING PURSUANT TO
LOC 50.01.004.5(a-c); AND REMOVING THE TERRITORY FROM CERTAIN DISTRICTS (AN 16-
0011).
WHEREAS, annexation to the City of Lake Oswego of the territory shown in the map in
Attachment “A” and described below, would constitute a contiguous boundary change under
ORS 222.111, initiated by petition from the property owners as outlined in ORS 222.111(2); and,
WHEREAS, the City has received consent for the proposed annexation from all of the property
owners and not less than 50 percent of the electors residing in the territory as outlined in ORS
222.125.
WHEREAS, the City has received consent for the proposed annexation from more than half the
owners of land in the territory, who own more than half of the land in the territory and more
than half of the assessed value of the land in the territory, as required by ORS 222.170; and,
WHEREAS, the part of the territory that lies within the Lake Grove Fire District #57 will, by
operation of ORS 222.520, be withdrawn from that district immediately upon approval of the
annexation; and,
WHEREAS, the part of the territory that lies within the Clackamas County Enhanced Sheriff’s
Patrol District will, by operation of ORS 222.520, be withdrawn from the district upon approval
of the annexation; and,
WHEREAS, the part of the territory that lies within the Surface Water Management Agency of
Clackamas County will by operation of ORS 222.250 be withdrawn from that agency
immediately upon approval of the annexation; and,
WHEREAS, LOC 50.01.004.5 specifies that, where the Comprehensive Plan Map requires a
specific Zoning Map designation to be placed on the territory annexed to the City, such a zoning
designation shall automatically be imposed on the territory as of the effective date of the
annexation; and,
WHEREAS, this annexation is consistent with the Urbanization Chapter of the City of Lake
Oswego’s acknowledged Comprehensive Plan, Oregon Revised Statutes 222.111(2), 222.125
and 222.170 for boundary changes, and Metro Code Sections 3.09.050).
EXHIBIT A-1
AN 16-0011
Ordinance 2731, AN 16-0011
(Tax Map 21E18CA,
Tax Lot 100) EXHIBIT A-1/PAGE 2
Now, therefore, the City of Lake Oswego ordains as follows:
Section 1. The real property described as follows is hereby annexed to the City of Lake
Oswego:
A tract of land located in the Southwest quarter of Section 18, Township 2 South, Range 1
East, Willamette Meridian, Clackamas County, City of Lake Oswego, Oregon, said tract being
a portion of Lots 13 and 14, Replat of a Portion of Rosewood (Plat No. 502), being that land
conveyed by Statutory Warranty Deed recorded in Document No. 2016-069318, deed
records of Clackamas County, particularly described as follows:
Beginning at an iron pipe located at the northeast corner of said Lot 13;
Thence North 88°59’ West along the north line of said Lot 13, a distance of 155.00 feet to an
iron pipe;
Thence South, parallel with the east line of said Lots 13 and 14, a distance of 209.86 feet
more or less (210.00 feet by prior deed record, said Document No. 2016-069318), to an iron
pipe in the south line of said Lot 14;
Thence South 88°56’ East along the said south line, a distance of 155.00 feet to an iron pipe
at the southeast corner of said Lot 14;
Thence North along the east line of said Lots 13 and 14, a distance of 210.00 feet to the point
of beginning.
Excepting therefrom a tract of land located in the Southwest quarter of Section 18, Township 2
South, Range 1 East, Willamette Meridian, Clackamas County, City of Lake Oswego, Oregon,
being a portion of Lot 14, Replat of a Portion of Rosewood (Plat No. 502), more particularly
described as follows:
Beginning at an iron pipe in the westerly right of way line of Pilkington Road at the Southeast
corner of said Lot 14;
Thence North along said westerly right-of-way, 64.52 feet to an iron pipe;
Thence leaving said westerly right of way North 88'56' West, parallel with the southerly line
of said Lot 14, 155.00 feet;
Thence South, 64.52 feet to the southerly boundary of said Lot 14;
Thence South 88'56' East along said southerly boundary, 155.00 feet to the point of
beginning.
The annexed territory is depicted on Attachment A.
Section 2. The annexed area lies within the following districts and shall be retained within
these districts upon the effective date of annexation:
Lake Grove Park District
Rivergrove Water District
Ordinance 2731, AN 16-0011
(Tax Map 21E18CA,
Tax Lot 100) EXHIBIT A-1/PAGE 3
Section 3. The annexed area lies within the following districts and shall be withdrawn from
these districts upon the effective date of annexation:
Lake Grove Fire District #57
Clackamas County Enhanced Sheriff’s Patrol District
Surface Water Management Agency of Clackamas County
Section 4. In accordance with LOC 50.01.004.5, the City zoning designation of R-7.5 shall be
applied to the subject property on the effective date of annexation.
Section 5. The City Council hereby adopts the findings of fact and conclusions set forth in
Attachment B in support of this annexation ordinance.
Section 6. Effective Dates:
a.Effective Date of Decision to Annex. Pursuant to Metro Code 3.09.050(f), the
effective date of this annexation decision shall be immediately upon adoption, unless a
governmental entity that qualifies as a “necessary party” under Metro Code 3.09.020(j) has
contested this annexation, in which event this annexation decision shall be effective on the 10th
day following the mailing of this ordinance by the City Recorder to Metro and to all necessary
parties who appeared in this proceeding.
b.Effective Date of Annexation Ordinance. Pursuant to Lake Oswego City Charter,
Section 34, this ordinance shall be effective on the 30th day after its enactment.
c.Effective Date of Annexation. Following the filing of the annexation records with
the Secretary of State as required by ORS 222.177, this annexation shall be effective upon the
later of either:
1.the 30th day following the date of adoption of this ordinance; or
2.the date of filing of the annexation records with the Secretary of State.
Provided, however, that pursuant to ORS 222.040(2), if the effective date of the annexation as
established above is a date that is within 90 days of a biennial primary or general election or
after the deadline for filing notice of election before any other election held by any city, district
or other municipal corporation involved in the area to be annexed, then the effective date of
the annexation shall be delayed until, and the annexation shall become effective on, the day
after the election.
Section 7. Mailing Copies of this Ordinance; Metro Notice
Within 30 days following the date of adoption:
a.The City Recorder shall mail a copy of this ordinance to all persons and
governmental entities that appeared at the public hearing and requested a copy of the
ordinance following adoption.
Ordinance 2731, AN 16-0011
(Tax Map 21E18CA,
Tax Lot 100) EXHIBIT A-1/PAGE 4
b.The City Recorder shall mail a copy of this ordinance together with the applicable
mapping and notice fee charged by Metro pursuant to Metro Code 3.09.110, to the Metro Data
Resource Center, 600 NE Grand Ave., Portland, OR 97232.
Read by title only and enacted at the regular meeting of the City Council of the City of Lake
Oswego held on _______________day of _________________, 2016.
AYES:
NOES:
ABSTAIN:
EXCUSED:
________________________________
Kent Studebaker, Mayor
________________________________
Dated
ATTEST:
______________________________________
Anne-Marie Simpson, City Recorder
APPROVED AS TO FORM:
____________________________________
David Powell, City Attorney
535017 19
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C
B
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1814 7 TamaraAvePilkingtonRdSW Pilkington RdBraeden CtPilkington RdRachel Ln
Jean Rd
Koderra AveJenifers WayLakeviewBlvdJean Rd
0 120 240 360Feet ³Lake OswegoCity Limits SubjectPropertyTL 100Annexation to the City of Lake OswegoAN16-0011/Ordinance 2731
11/23/2016
Attachment A
Map and Lot #21E1 8CA TL 100City of Lake Oswe go:COMPREHENSIVE PLAN = R-7.5 , ResidentialZONING = R-7.5, Resid ential
Clacka ma s County:ZONING = R-10 , Residential
Ordinance 2731 (AN 16-0011) ATTACHMENT B/Page 1
ATTACHMENT B
Criteria, Findings, Conclusion, and Effective Date
APPLICABLE CRITERIA:
A. Oregon Revised Statutes (ORS), Boundary Changes; Mergers and Consolidations.
1.ORS 222.111(2) - Annexation of Contiguous Territory, Authority and Procedure for
Annexation, Generally.
2.ORS 222.125 - Annexation by consent of all owners of land and the majority of electors.
3.ORS 222.170 - Annexation by consent of more than half of the owners of land in the territory
to be annexed, who also own more than half of the land in the territory, and of land
representing more than half of the assessed value of the territory.
B. Metro Code.
1. 3.09.040(a)(1-4) Minimum Requirements for Petitions.
2.3.09.045 (D-E) Expedited Decisions (criteria incorporated for non-expedited decisions by MC
3.09.050(D))
3.3.09.050 (A-D) Hearing and Decision Requirements for Decisions other than Expedited Land
Decisions.
C. Comprehensive Plan - Urbanization Chapter
1.Policy A-3: “The Urban Services Boundary (as depicted on the Comprehensive Plan Map) is
the area within which the City shall be the eventual provider of the full range of urban
services.”
2.Policy C-3: “Ensure that annexation of new territory or expansion of Lake Oswego’s Urban
Services Boundary does not detract from the City’s ability to provide services to existing City
Residents.”
3.Policy C-4: “Prior to the annexation of non-island properties, ensure urban services are
available and adequate to serve the property or will be made available in a timely manner
by the City or a developer commensurate with the scale of the proposed development.”
FINDINGS:
A. Oregon Revised Statutes (ORS), Boundary Changes; Mergers and Consolidations.
1.ORS 222.111(2) Annexation of Contiguous Territory, Authority and Procedure for Annexation,
Generally.
ORS 222.111(2) provides that a proposal for annexation of territory to a City may be initiated by the
legislative body of the City, on its own motion, or by a petition to the legislative body of the City by owners
of real property in the territory to be annexed. The sole owner of the property at Jean Road has petitioned
the City for this annexation. The proposed annexation complies with this statute.
Ordinance 2731 (AN 16-0011) ATTACHMENT B/Page 2
2.ORS 222.125 - Annexation by consent of all owners of land and the majority of electors.
ORS 222.125 states that an election need not be held on the question of annexation within the area
proposed to be annexed if all of the owners of land in the territory and not less than 50 percent of the
electors, if any, residing in the territory consent in writing to the annexation. The sole property owner who
is also a registered voter has signed the annexation application. The proposed annexation complies with
this statute.
3.ORS 222.170 - Annexation by consent of more than half of the owners of land in the territory to
be annexed, who also own more than half of the land in the territory, and of land representing
more than half of the assessed value of the territory.
ORS 222.170 states that an election need not be held on the question of annexation within the territory
proposed to be annexed if more than half of the owners of land in that territory consent in writing to the
annexation. These owners must also own more than half of the land in the territory to be annexed and
more than half of the assessed value of all of the land in the territory. The sole property owner of 5550
Jean Road has consented to the annexation on the annexation petition (on file). The proposed annexation
complies with this statute.
B. Metro Code
1. 3.09.040 - Minimum Requirements for Petitions.
(A) A petition for a boundary change must contain the following information:
1)The jurisdiction of the reviewing entity to act on the petition;
2)A map and a legal description of the affected territory in the form prescribed by the
reviewing entity;
3)For minor boundary changes, the names and mailing addresses of all persons
owning property and all electors within the affected territory as shown in the
records of the tax assessor and county clerk; and,
4)For boundary changes under ORS 198.855 (3), 198.857, 222.125 or 222.170,
statements of consent to the annexation signed by the requisite number of owners
or electors.
The above information was submitted as required by Metro Code. The property owner has signed
the application and petition. A map and legal description in the form required by the City have been
included in the application materials and are on file. The property owner who is one in the same as
the elector has consented to the annexation on the annexation petition, meeting the consent
requirements of ORS 222.125 and 222.170. The annexation petition complies with the Metro code
requirements.
2. 3.09.050 - Hearing and Decision Requirements for Decisions Other Than Expedited Decisions.
(B) Not later than 15 days prior to the date set for a boundary change decision, the approving
entity shall make available to the public a report that addresses the criteria identified in
subsection (D) and includes the following information:
(1) The extent to which urban services are available to serve the affected territory
including any extra-territorial extensions of service.
The property is located within the Urban Growth Boundary and the City’s Urban Services
Boundary. Metro Code section 3.09.020 defines urban services as including sanitary sewers,
water, fire protection, parks, open space, recreation, streets, roads and mass transit.
Ordinance 2731 (AN 16-0011) ATTACHMENT B/Page 3
Water: Water is available from a six inch Rivergrove Water District line in Pilkington Road.
The closest fire hydrant is located at the northeast corner of the site. The property will
continue to receive water from the Rivergrove Water District after annexation.
The City of Lake Oswego entered into an agreement with the Rivergrove Water District on
February 8, 1984 for water services. The agreement stipulates that the District will continue
to serve parcels upon annexation if it is capable of delivering a minimum flow of 1500
gallons per minute with a 20 psi residual pressure during periods of peak domestic demand.
The District is currently able to meet these demands. If upon development or partitioning,
this level of service is not provided, then City water may need to be provided.
Sewer: Sanitary sewer service is available from an eight-inch City of Lake Oswego sanitary
line located in Pilkington Road along the East property line. Upon connection to the sewer,
the septic system will need to be decommissioned per DEQ standards.
The Engineering staff also notes that this property is located within the boundary of a sewer
Zone of Benefit (ZOB), where the applicant of the ZOB previously extended the public sewer
main from Jean Road along Pilkington Road in order to serve their subdivision development
south of this property. The developer filed for the formation of a Zone of Benefit (ZOB),
since the sewer extension could serve adjacent properties along the new sewer extension.
The ZOB will require “latecomer” sewer connections to be obligated to pay a “unit
connection charge” as a condition of being permitted to connect.
Surface Water Management: Upon annexation, the territory will be withdrawn from Surface
Water Management Agency of Clackamas County (SWMACC) and will be subject to the City’s
storm water management regulations. Any new development will be subject to these
provisions, which ensure that new development does not have an adverse effect on
adjoining properties and does not overburden the City stormwater system.
Fire Protection: Lake Grove Fire District #57 provides fire protection services to the subject
property by agreement with the City of Lake Oswego. Upon annexation, the property will be
withdrawn from this fire district and served directly by the City. The Jean Road Fire Station,
located east of the site, would be able to respond to emergencies under the eight minute
goal established in the Comprehensive Plan.
Police: Upon annexation, the subject property will be withdrawn from the Clackamas
County Enhanced Sheriff’s Patrol District and will be served by the City of Lake Oswego. The
Lake Oswego Police Department reviewed the proposal and indicated that it does not have
any concerns with serving this property upon annexation.
Parks and Open Space: The City has 537 acres of park and open space lands, or 14.6 acres
per 1,000 population. The parks nearest to this property are Canal Acres/Bryant Woods
Natural Park and Pilkington Park. Canal Acres park is 31 acres and located on the north and
south sides of Childs Road. Because this is a natural park, there are no amenities for
organized recreation activities. Pilkington Park is located south of the site; it is a 3.7 acre
neighborhood park and provides drop-in play fields, a walking path and a picnic table. The
City’s park system will not be overburdened by any additional population annexed to the
City with this application.
Lake Grove Park District: The Lake Grove Swim Park, managed by the Lake Oswego School
District, and funded by the Lake Grove Park District, is located at 3800 Lakeview Boulevard.
Ordinance 2731 (AN 16-0011) ATTACHMENT B/Page 4
The swim park is approximately 1.3 acres in size with restroom, play and swim facilities. This
property will remain within the Lake Grove Park District following annexation.
Transportation - Streets and Mass Transit: Jean and Pilkington Roads are both classified as
major collectors in the City’s functional street classification system, and the rights-of-way
along this property are under the maintenance jurisdiction and permitting authority of the
City of Lake Oswego. Tri Met Line 36, which runs along Jean Road and connects to the
Tualatin Transit Center, provides the closest bus service to the subject property.
(2) Whether the proposed boundary change will result in the withdrawal of the
affected territory from the legal boundary of any necessary party.
ORS 222.520 authorizes the City to withdraw the property from the Lake Grove Fire District
#57, the Clackamas County Enhanced Sheriff’s Patrol District and the Surface Water
Management Agency of Clackamas County. Upon approval of the annexation, the ordinance
will withdraw the property from these service districts.
(3) The proposed effective date of the boundary change.
The proposed effective date of the decision is outlined in the final section of this report.
(D) To approve a boundary change, the reviewing entity shall apply the criteria and consider the
factors set forth in subsections D and E of section 3.09.045 (Expedited Decisions).
3.09.045 (D) - To approve a boundary change through the expedited process the City shall:
1.Find that the change is consistent with expressly applicable provisions in:
a.Any applicable urban service agreement adopted pursuant to ORS 195.065
The City has entered into - ORS 195.065 agreements with: 1) Lake Oswego School District;
and, 2) Lake Grove Fire District; and, The intergovernmental agreement with the Rivergrove
Water District is not discussed in this section because it was entered into before the
adoption of ORS 195.065, and consequently does not include all of the provisions necessary
to be considered an “urban service agreement” under that statute.
Lake Oswego School District: The City and the Lake Oswego School District entered into an
ORS 195.065 urban service agreement for park services in July, 2003. The School District
operates the Lake Grove Swim Park located at 3800 Lakeview Boulevard. The agreement
states that the annexation of property by the City within the Lake Grove Park District (which
funds the swim park) shall not cause the withdrawal of this property from the district.
Lake Grove Fire District #57: The City and District entered into an ORS 195.065 urban service
agreement for fire protection in July, 2003. The agreement states that upon annexation of
property within the district by the City, the annexed property shall be withdrawn from the
District and the City shall provide fire protection services.
b.Any applicable annexation plan adopted pursuant to ORS 195.205.
There are no applicable annexation plans adopted pursuant to ORS 195.205 relating to the
affected territory.
Ordinance 2731 (AN 16-0011) ATTACHMENT B/Page 5
c. Any applicable cooperative planning agreement adopted pursuant to ORS
195.020(2) between the affected entity and a necessary party.
There are no ORS 195.020(2) cooperative agreements (which relate to special districts)
between the city and a necessary party.
d. Any applicable public facility plan adopted pursuant to a state wide planning goal
on public facilities and services
The sanitary sewer system is already in place on Jean and Pilkington Roads. The subject
property will need to connect to City sewer and the existing septic tank will need to be
decommissioned per DEQ standards upon annexation.
e. Any applicable comprehensive plan policies
Comprehensive Plan Map: The subject property is currently designated R-10, Low Density
Residential on Clackamas County’s Comprehensive Plan and Zoning Maps. The property is
also designated as Low Density Residential R-7.5 on the City’s Comprehensive Plan Map.
Upon annexation, a City zoning designation of R-7.5 will be applied to this parcel.
The City and County have coordinated their comprehensive plans within the Dual Interest
Area outlined in the City/County Urban Growth Management Agreement (dated February 4,
1992 and updated November 18, 1997), hence the City/County designations have been
determined to be compatible. Therefore, this annexation is compatible with the City’s
Comprehensive Plan Map.
Comprehensive Plan Policies: The updated Lake Oswego Comprehensive Plan contains the
following relevant language in the Urbanization chapter, Policy A-3: “The Urban Services
Boundary (as depicted on the Comprehensive Plan Map) is the area within which the City
shall be the eventual provider of the full range of urban services.” The proposed annexation
and the withdrawal of the property from the identified districts are consistent with this
policy.
Policy C-3 states: “Ensure that annexation of new territory or expansion of Lake Oswego’s
Urban Services Boundary does not detract from the City’s ability to provide services to
existing City residents.”
The approval of this annexation will result in the addition of 0.5 acres to be served by the
City. As stated in Section 2(b)(1), the addition of this territory will not detract from the City’s
ability to provide police and fire protection to existing City residents. Annexation of this
property will not affect the City’s ability to provide parks and recreation services. Public
facilities, such as sewer and water are also found to be adequate to serve this site.
Comprehensive Plan Policy C-4 states: “Prior to the annexation of non-island properties,
ensure urban services are available and adequate to serve the properties or will be made
available in a timely manner by the City or a developer commensurate with the scale of the
proposed development.”
Community Development Code Section 50.06.008.3 requires that all development be
provided with the following utility services: sanitary sewer, water, sidewalks, pedestrian and
bicycle paths, traffic control signs and devices, street lights, streets, and TV cable. These
utilities are now in place or can be put in place to serve this property.
In the event that future development occurs, an applicant for development is obligated to
construct all necessary public facilities to serve their development.
Ordinance 2731 (AN 16-0011) ATTACHMENT B/Page 6
As noted above, police and fire services are available upon annexation. The amount of
protection provided will be similar to protection provided to other City residents because
the property proposed to be annexed is not isolated from other areas of the City.
Urban Growth Management Agreement: General Urbanization Policy 4.A.4 of the Clackamas
County Comprehensive Plan calls for the establishment of Urban Growth Management Areas
and Urban Growth Management Agreements to clarify planning responsibilities between
the County and cities for areas of mutual interest. Policy 4.A.5 directs the County to
establish agreements with cities and service districts to clarify service and infrastructure
responsibilities for areas of mutual interest. Similarly, the Lake Oswego Comprehensive
Plan, Urbanization Chapter, Policy D-3, calls for entering into and maintaining an Urban
Growth Management Agreement (UGMA) with Clackamas County for lands within the Urban
Services Boundary. In furtherance of these policies, the City and County have entered into an
Urban Growth Management Agreement that stipulates a mutual interest in coordinated land
use planning, compatible comprehensive plans and provision of urban services and facilities.
This agreement ensures coordination and consistency between the City and County
comprehensive plans and outlines responsibilities in providing services and managing
growt h within the Dual Interest Area. Subsections 6 and 7, provided below, are applicable to
annexations.
“6. City and County Notice and Coordination:
The City shall provide notification to the County, and an opportunity to participate,
review and comment, at least 35 days prior to the first public hearing on all proposed
public facilities plans, legislative changes to the City Comprehensive Plan, or quasi-
judicial land use actions adjacent to, or in close proximity to unincorporated areas.
The City shall provide notice to the County of private or City initiated annexation
requests within five days of the filing of an application…”
The Urban Growth Management Agreement specifies that the City notify the County of an
annexation request within five days of when it is submitted to the Boundary Commission.
There is no longer a Boundary Commission for the Portland Metropolitan area.
Staff relies on the notice requirements of Metro Code 3.09.030, which requires notice 20
days prior to the scheduled hearing for an annexation for all necessary parties (other
governmental entities), unless a shorter time is agreed upon. The County is a necessary
party under the Metro Code definition and has been notified.
“7. City Annexations
A. The City may undertake annexations in the manner provided for by law within
the Dual Interest Area. The City annexation proposals shall include adjacent road
right-of-way to property proposed for annexation. The County shall not oppose such
annexations.
B. Upon annexation, the City shall assume jurisdiction of the County roads and
local access roads pursuant to a separate road transfer agreement between the City
and county.”
The City is undertaking this annexation in the manner provided for in the applicable ORS and
Metro Code for the territories that lie within the Dual Interest Area. This annexation will be
consistent with the City and County comprehensive plans which have been coordinated in
the Dual Interest Area within the regional Urban Growth Boundary (UGB).
f. Any applicable concept plan
Ordinance 2731 (AN 16-0011) ATTACHMENT B/Page 7
Consistency of the proposed boundary change with urban planning agreements is
mentioned under D(1)(c)above.
2. Consider whether the boundary change would
a. Promote the timely orderly and economic provision of public facilities and services
b. Affect the quality and quantity of urban services
c. Eliminate or avoid unnecessary duplication of facilities or services
Due to the proximity of the property to existing City services, this annexation will promote
the timely, orderly and economical extension of public facilities and services. The subject
property can readily be served with urban services and facilities. If and when additional
development occurs in the area, provision of public facilities and services will occur
consistent with the City’s adopted public facility master plans, ensuring that it does not
adversely affect the quality or quantity of urban services and avoiding unnecessary
duplication of facilities or services. Therefore, this boundary change will is consistent with
criteria 2.a through 2.c.
(E) A city may not annex territory that lies outside the UGB except it may annex a lot or parcel
that lies partially within and partially outside the UGB.
The property to be annexed is located entirely within the City’s Urban Growth Boundary (UGB).
CONCLUSION:
Based on the criteria and findings set forth above, the City Council concludes that AN 16-0011
complies with all applicable criteria and the annexation should be approved.
EFFECTIVE DATE:
A. Effective Date of Annexation Ordinance. Pursuant to Lake Oswego City Charter, Section 34,
the ordinance shall be effective on the 30th day after its enactment.
B. Effective Date of Annexation. Following the filing of the annexation records with the
Secretary of State as required by ORS 222.177, this annexation shall be effective upon the later of:
1. the 30th day following the date of adoption of this ordinance; or
2. the date of filing of the annexation records with the Secretary of State;
provided however that pursuant to ORS 222.040(2), if the effective date of the annexation as
established above is a date that is within 90 days of a biennial primary or general election or after
the deadline for filing notice of election before any other election held by any City, district or other
municipal corporation involved in the area to be annexed, then the effective date of the annexation
shall be delayed until, and the annexation shall become effective on, the day after the election.
Annexation Request
AN 16-0008: 5495 Tree St.
AN 16-0009: 4726 Upper Dr.
AN 16-0010: 13615 Knaus Rd.
AN 16-0011: 5550 Jean Rd.
City Council Public Hearing
January 3, 2017
Zoning Map
5495 Tree Street (AN 16-0008)
Subject
Annexation
Zoning Map
4726 Upper Drive (AN 16-0009)
Subject
Annexation
Zoning Map
13615 Knaus Rd (AN 16-0010)
Subject
Annexation Leslie Lane
KnausRoad
Zoning Map
5550 Jean Road (AN 16-0011)
Subject
Annexation
Jean Road
Pilkington Rd.
Annexation Criteria
Metro Code 3.09.040-.050 –Procedures
and Urban Service Availability
ORS 222.111 (2) –Authority and
procedure.
ORS 222.125 & 222.170 –Consent of
registered electors and owners.
Action Upon Annexation
5495 Tree Street, 5550 Jean Road and
4726 Upper Drive will be withdrawn
from:
•Lake Grove Fire District # 57
•Clackamas County Enhanced
Sheriff’s Patrol District
•Surface Water Management Agency
of Clackamas County
Action Upon Annexation
13615 Knaus Road will be withdrawn
from:
•Lake Grove Fire District # 57
•Clackamas County Enhanced
Sheriff’s Patrol District
Tax Revenue and Assessed
Value
Address Assessed Value Revenue
5495 Tree Street $191,449 $495,00
4726 Upper Drive $256,622 $664,00
13615 Knaus Road $258,303 $667,00
5550 Jean Road $181,862 $470,00
Conclusion &
Recommendation
•The proposed annexations meet State
statutes and Metro code requirements.
•Public facilities and service can be
provided in a timely, orderly, and efficient
manner.
•Staff recommends approval of the
proposed annexations