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HomeMy WebLinkAboutAgenda Packet - 2009-09-152009 City Council Jack Hoffman, Mayor Donna Jordan, Council President Roger Hennagin Kristin Johnson Mary Olson Sally Moncrieff Bill Tierney CITY COUNCIL REGULAR MEETING AGENDA Tuesday, September 15, 2009 6:00 p.m. Council Chambers City Hall 380 A Avenue Also published on-line: http://www.ci.oswego.or.us Contact: Robyn Christie, City Recorder E -Mail: rchristie@ci.oswego.or.us Phone: 503-675-3984 The meeting location is accessible to persons with disabilities. To request accommodations, please contact Public Affairs at 503-635-0236, 48 hours before the meeting. Page # 1. CALL TO ORDER 2. ROLL CALL 3. EXECUTIVE SESSION Closed Session under authority of ORS 192.660 (2) (h) to consult with attorney regarding legal rights and duties of a public body with regard to current litigation or litigation likely to be filed 4. RETURN TO OPEN SESSION (approximately 6:30 p.m.) 5. PRESENTATIONS 5.1 Neighbors Helping Neighbors 5.2 Local Meals on Wheels/New Seasons Fundraiser Kick -Off 5.3 Blue Star Memorial Marker Program 6. CONSENT AGENDA ♦ 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 City Council makes one motion covering all items included in the consent agenda. City Council Regular Meeting Agenda 1 September 15, 2009 6.1 REPORTS 6.1.1 Resignation of Meagan Lawler from the 50+ Advisory Board 1 Action: Accept Resignation 6.2 RESOLUTIONS 6.2.1 Resolution 09-57, authorizing contract with Arts Council 3 Action: Adopt Resolution 09-57 6.3 MINUTES 6.3.1 July 14, 2009, special meeting 61 6.3.2 July 20, 2009, special meeting 77 Action: Approve minutes as written END CONSENT AGENDA 7. ITEMS REMOVED FROM THE CONSENT AGENDA 8. CITIZEN COMMENT The purpose of citizen comment is to allow citizens to present information or raise an issue regarding items not on the agenda or regarding agenda items that do not include a public hearing. A time limit of five minutes per citizen shall apply. 9. REPORTS 9.1 The Intertwine Alliance, Metro Council President David Bragdon 9.2 Report on Water Audits by Councilors Hennagin and Moncrieff with follow-up by Kevin McCaleb, Water Conservation Specialist and Guy Graham, Public Works Director 10. INFORMATION FROM COUNCIL This agenda item provides an opportunity for individual Councilors to provide information to the Council on matters not otherwise on the agenda. Each Councilor will be given five minutes. 10.1 Councilor Information 10.2 Reports of Council Committees, Organizational Committees, and Intergovernmental Committees City Council Regular Meeting Agenda 2 September 15, 2009 11. REPORTS OF OFFICERS 11.1 City Manager 11.1.1 Review of Council Schedule 11.2 City Attorney 12. ADJOURNMENT CABLE VIEWERS: the Regular City Council meeting is shown live on Channel 28, at 5:30 p.m. The meeting will be rebroadcast at the following times on Channel 28: Wednesday 7:30 p.m. Thursday 7:00 a.m. Friday 2:30 a.m. Saturday 12:00 p.m. Sunday 4:00 p.m. Monday 11:00 P.M. New: Watch Council meetings live wherever you are via live streaming video at mms://www.ci.oswego.or.us/live. City Council Regular Meeting Agenda 3 September 15, 2009 CITY COUNCIL / LORA TENTATIVE SCHEDULE DATE MEETING Monday, Study Session 6:30 _m_ WEB Willamette Room September 21 • Sensitive Lands Forum Tuesday, Study Session, 6:30 am. Council Chambers September 22 • Metro Update — Councilor Carlotta Collette • Hamlet Presentation • Street Maintenance Fee/Pathways September • Vancouver, BC 24-27 Tuesday, Study Session 6:30 p.m. Council Chambers September 29 • Water System Development Charges Methodology • System Development Charge Overview • WEB Refinance October 1-3 League of Oregon Cities Conference Monday, Study Session, 3:00 p.m. October 5 • Foothills/Streetcar Tour Tuesday, Regular Meeting, 6:30 p.m. Council Chambers October 6 • LOIS Update • Quarterly Financial Update — 2009/2010 Budget • Watershed Hero Award to Palisades Girl Scout Troop 40447 • Fire Safety Week Proclamation • IGA with the Bureau of Environmental Services for Tryon Creek Public Hearing • Supplemental Budget Friday, • LOIS Launch, 11:45 a.m. — 1:00 p.m. October 9 Monday, Study Session, 6:00 p.m. location tbd October 12 Joint Meeting with Advisory Boards Tuesday, Study Session, 6:30 p.m. Council. Chambers October 13 • Public Safety Practices/Accreditation Process • Review of Infrastructure Master Plans • Wastewater Utility Rate Analysis Thursday, • Tour Luscher Farm and Stafford area, 5-7 p.m. October 15 Tuesday, Regular Meeting 630 p.m. Council Chambers October 20 Public Hearing Monday, Study Session 6:00 p.m. location tbd October 26 Joint Meeting with Advisory Boards Tuesday, Study Session, 6:30 p.m. Council Chambers October 27 • Annexation Approach • Clean Streams BOLD ITEMS — New issues added to schedule Items known as of 9/10/09 CITY COUNCIL / LORA TENTATIVE SCHEDULE DATE MEETING October 28- Railvolution Conference November 1 Tuesday, Regular Meeting, 6:30 p.m. Council Chambers November 3 . LOIS Update • Photo Contest Winners • Assign Program manager for Tigard/LO Water project Public Hearing Monday, Cancelled November 9 Tuesday, Cancelled November 10 Tuesday, Regular Meeting, 6:30 p.m. Council Chambers November 17 . First Addition Alley Clean -Up Final Report Public Hearing • Clean Streams Wednesday, Study Session, 6:00 p.m. location tbd November 18 • City Design -- Gordon Price, Simon Fraser University Tuesday, Study Session, 6:30 p.m. Council Chambers November 24 • Preparation for Goal Setting Tuesday, Regular Meeting, 6:30 p.m. Council Chambers December 1 • LOIS Update • Unsung Hero Awards Public Hearing • Master Fees and Charges Update Monday, Study Session, 6:00 p.m. location tbd December 7 Joint Meeting Tuesday, Study Session, 6:30 p.m. Council Chambers December 8 • Follow-up to Goal Setting Preparation Monday, Study Session, 6:00 p.m. location tbd December 14 Joint Meeting Tuesday, Regular Meeting, 6:30 p.m. Council Chambers December 15 • Sustainability Update Public Hearin Tuesday, Study Session, 6:30 p.m. Council Chambers December 22 • BOLD ITEMS — New issues added to schedule Items known as of 9/10/09 CITY COUNCIL / LORA TENTATIVE SCHEDULE To Be Scheduled • Lake Grove Forum (DKS presentation) • Downtown Forum • Refer Congregate Care Housing Ord. to Planning Commission • IGA with Portland for Tryon Creek Restoration • Union contracts • Review Draft Economic Development Strategy • Streetcar Update (Doug Oblitz — may be combined with tour) • First and B Project • Joint meeting with the School Board • Joint meeting with the Planning Commission and DRC • Joint meeting with the Lake Corporation Board • Meeting with Boards and Commissions • Emergency response Plan • Report on Intergovernmental Relations Program • Implementation of Matrix report (Spring 2010) • Attainable Housing (Councilor Hennagin and Paul Lyons) • HRAB Work Session re Iron Industry Heritage Trail Plan (11/3 or 11/17) — request by HRAB - Schedule on a Monday — Joint meeting with Boards & Commissions • Preservation=Sustainability PowerPoint Presentation — Marylou Colver (Jack H and Jonna P Request) - Schedule on a Monday — Joint meeting with Boards & Commissions • Foothills Redevelopment Agreement • Real Estate Overview Seminar (Bruce Wood/Will Denecke) (removed from 10/19) • Master Fees and Charges Update (study session) Tours • New Urbanism BOLD ITEMS — New issues added to schedule Items known as of 9/10/09 6.1 CITY OF LAKE OSWEGO 9-15-09 TO: Jack D. Hoffman, Mayor Members of the City Council Alex D. McIntyre, City Manager FROM: Robyn Christie, City Recorder SUBJECT: Resignation of Meagan Lawler from the 50+ Advisory Board DATE: May 27, 2009 ACTION Approve the resignation of Meagan bawler from the 50+ Advisory Board. Sustainability has been considered as part of this recommendation.W Review e-0 by: y Alex McIntyre City Manager `,�j O� IAK.E OSWFe 0 CITY OF LAKE OSWEGO -- COUNCIL REPORT OREGON TO: Jack D. Hoffman, Mayor Members of the City Council Alex D. McIntyre, City Manager FROM: Kim Gilmer, Parks & Recreation Director 6.2 9-15-09 SUBJECT: Resolution 09-57 Arts Council of Lake Oswego Contractual Agreement DATE: August 25, 2009 ACTION The Parks & Recreation Director requests the City Council adopt Resolution 09-57, authorizing the Mayor to sign a contract with the Arts Council of Lake Oswego to administer the City's public art program and provide specified arts programs. INTRODUCTION/BACKGROUND The Arts Council of Lake Oswego has been under contract with the City of Lake Oswego to administer the City's public art program and provide specified arts programs since June of 2003. The contractual agreement for FY 08-09 to provide these services expired June 30, 2009. A new contract must be executed to continue the services for FY 09-10. DISCUSSION A budget of $105,000 was authorized by the City Council for FY09-10 for Arts Council of Lake Oswego to administer and implement the City's public art program and coordinate certain City arts programs. The approved a budget includes the following activities_ • Coordination of the Gallery Without Walls outdoor art exhibit. • Organize and host a Visual Chronicle exhibit at the Festival of the Arts, and purchase one work from the show for the City's public art collection. • Conduct a People's Choice art selection for the City's public art collection. 3 Council Report 08/25/09 Page 2 • Organize and host a Playwright competition. • Host an unveiling ceremony for art purchased through the People's Choice award, as well as a kick off celebration for the Gallery Without Walls program. Manage, develop, and maintain the City's public art program and public art collection. In addition to the activities outlined above, the contract terms also include the following: • Administer duties under the Agreement according to the requirements of the City's Public Arts Guidelines (attached as an exhibit to the contract). • Oversee the Public Art Committee according to the Public Art Guidelines in managing, developing, and maintaining the City's art collection as follows: o Maintenance of the City's Public Art Collection, including cataloguing, periodic review, maintenance and placement, website updates. o Acquisition of art on behalf of the City, upon prior approval by the City, and subject to availability of City funds. o Deaccessioning of art. o Acceptance of public art donations and memorials. o Loans of works from the Public Art Collection. • Provide regular financial and program reports to the City as follows: o Quarterly - - Foundation Balance Sheet. - Foundation Profit and Loss by Class. - Narrative description of services performed for the City for the quarter. - Accounting of any expenditure of Percent for Art Program funds, demonstrating compliance with Chapter 18 of the Lake Oswego Code and Section 5 of the Public Art Guidelines. o Annually - - Form 990 In August 2009, the Arts Council was paid a portion of the FY09-10 budget allocation via an amendment to the FY08-09 contract. This amount totaled $37,000 which allowed the Arts Council to install the Gallery Without Walls exhibit. The remaining balance of $68,000 is to be paid out between September 1, 2009 and June 30, 2010 according to the payment requirements stipulated in the FY09-10 contract (Exhibit A). 4 Council Report 08/25/09 Page 3 ALTERNATIVES & FISCAL IMPACT Option 1 Adopt Resolution 09-57, authorizing the Mayor to sign a contract with the Arts Council of Lake Oswego to administer the City's public art program and provide specified arts programs. Option Do not adopt Resolution 09-57. RECOMMENDATION Staff recommends that City Council approve option 1, adopting Resolution 09-57, authorizing the Mayor to sign a contract with the Arts Council of Lake Oswego. ATTACHMENTS 1. Resolution 09-57 2, Exhibit A, Arts Council of Lake Oswego Contractual Agreement 3. Public Art Guidelines Sustainability has been considered as part of this recommendation. Reviewed by: Department Director Finance Director City At r ej AlexMWIntyre,Cityer 5 RESOLUTION 09-57 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE OSWEGO AUTHORIZING THE MAYOR TO SIGN A CONTRACT WITH THE ARTS COUNCIL OF LAKE OSWEGO TO ADMINISTER THE CITY'S PUBLIC ART PROGRAM AND PROVIDE SPECIFIED ARTS PROGRAMS. WHEREAS the City has contracted previously with the Lake Oswego Foundation for the Arts to administer the City's arts programs including, without limitation, the public art collection, the Percent for Art Program, the Gallery Without Walls Exhibit and other arts -related activities; and WHEREAS the previous contract with the Arts Council expired on June 30, 2009; and WHEREAS the City Council finds that it is appropriate to enter into a contract with the Arts Council for the administration of the City's arts programs for fiscal year 2009-2010; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lake Oswego that: Section 1. The Mayor is authorized to sign the Agreement for Administration of City Arts Programs with the Arts Council of Lake Oswego for fiscal year 2009-2010, in the form attached as Exhibit A. Section 2. Effective Date. 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 15th day of September, 2009. AYES: NOES: EXCUSED: ABSTAIN: Jack Hoffman, Mayor ATTEST: Robyn Christie, City Recorder APPROVED AS TO FORM: David Powell, City Attorney Page 1 of 1 - Resolution 09-57 7 AGREEMENT FOR ADMINISTRATION OF CITY ARTS PROGRAMS THIS AGREEMENT is entered into between THE CITY OF LAKE OSWEGO, OREGON, a municipal corporation, ("the City"), and LAKE OSWEGO FOUNDATION OF THE ARTS, an Oregon nonprofit corporation, doing business as the "Arts Council of Lake Oswego" ("the Foundation"). RECITALS WHEREAS the City maintains a public art collection, administers a program whereby 1.5% of the cost of certain public capital projects is dedicated to the acquisition of art, has established an Arts Downtown Exhibit, and engages in other activities related to promotion and preservation the arts in Lake Oswego; and WHEREAS many of the City's activities relating to the promotion and preservation of the arts have previously been undertaken by the Lake Oswego Arts Commission; and WHEREAS the City Council and the Arts Commission determined that the public interest would best be served if these activities were to be administered through an agreement with a private, nonprofit entity; and WHEREAS, in anticipation of this Agreement, the City Council has amended the City Code to repeal those ordinances relating to the Lake Oswego Arts Commission, and has amended the City's Public Arts Guidelines to allow for an independent entity to perform many activities under the Guidelines on behalf of the City; and WHEREAS the City Council has determined that the Foundation is capable of implementing the City's arts programs consistent with the requirements of the Public Art Guidelines, and in a manner that is in the best interests of the residents of the City of Lake Oswego; AGREEMENT 1. Administration of; Arts Programs. For the duration of this Agreement, the Foundation shall be responsible for the administration and implementation of the City's Arts Programs as provided in this Agreement. 2. Compliance with Public Arts Guidelines. In performing its duties under this Agreement, the Foundation shall at all times comply with all requirements of the City's Public Arts Guidelines, as they now exist, or as they may be later amended by the Lake Oswego City Council. A copy of the Public Arts Guidelines, in their current form, is attached as Exhibit "A," and is incorporated in this Agreement by this reference. Page 1 — Agreement for Administration of City Arts Programs, FY09-10 9 3. Public Art Committee. The Foundation shall establish and oversee a Public Art Committee in accordance with the provisions of Section 2 of the Public Art Guidelines. The Public Art Committee shall consist of seven members and shall be a committee of the Foundation, not of the City. Members of the Public Art Committee shall be appointed by a Special Selection Committee consisting of two representatives of the Lake Oswego City Council and two representatives of the Foundation. The City Council shall select the Public Art Committee chair from among the seven members chosen by the Special Selection Committee. The functions of the Public Art Committee shall be as provided in the Public Arts Guidelines. Although the Public Art Committee shall be a committee of the Foundation, all meetings of the Public Art Committee shall comply with the requirements for meetings of a "governing body of a public body" under the Oregon Public Meetings Law (ORS 192.610 et. seq.), and committee members shall refrain from actions constituting conflicts of interest, as provided in the Public Art Guidelines. 4. Services to be Performed. The Foundation shall perform the following services, in accordance with the requirements of the Public Arts Guidelines: a. Maintenance of the City's Public Art Collection, including cataloguing, periodic review, maintenance and placement, website updates; b. Acquisition of art on behalf of the City, upon prior approval by the City, and subject to availability of City funds; C. Deaccessioning of art; d. Acceptance of public art donations and memorials; e. Loans of works from the Public Art Collection; f. Administration of the City's Percent for Art Program under Chapter 18 of the Lake Oswego Code. g. Administration of the City's biennial Gallery without Walls Exhibit, including the "people's choice" special annual purchase of a work from the Exhibit. h. In addition to the foregoing services and the specific projects required under paragraph 5 of this agreement, the City shall endeavor, in its discretion, to provide the Foundation opportunities to administer other City -sponsored activities that may occur relating to the promotion and preservation of public art such as public art exhibits, invitationals, artist events and educational seminars/events. The City's objective is for the Foundation to be the primary administrator of public art activities within the City. When the City offers such an additional opportunity to the Foundation, the offer shall be in writing and shall clearly describe the scope of the activity. Nothing in this subparagraph shall be construed to Page 2 — Agreement for Administration of City Arts Programs, FY09-10 10 preclude the City's Department of Parks and Recreation from continuing to offer cultural arts programming and events, or to require that the administration of such programming and events be offered to the Foundation. 5. Additional Specific Projects. In addition to activities under the services generally described in paragraph 4, above, the Foundation shall implement and successfully complete specific projects as outlined in Exhibit B: 6. Compensation. Subject to appropriation of fiends, and subject to timely receipt of invoices, the City agrees to pay, and the Foundation agrees to accept, as full payment for the Foundation's services under this Agreement, a sum not to exceed sixty eight thousand dollars ($68,000.00) for the services and related costs from September 1, 2009 through June 30, 2010. This amount shall be paid in three installments, at the end of each of the last three quarters of fiscal year 2009-2010, subject to the City's timely receipt of itemized invoices submitted by the Foundation. Payment shall be made within 10 days following receipt from the Foundation of the itemized invoice for the invoiced period. 7. Reporting. The Foundation shall provide regular financial and program reports to the City according to the following: Submit to the City at the end of each quarter: • Foundation Balance Sheet • Foundation Profit and Loss by Class • Narrative description of services performed for the City for the quarter • Accounting of any expenditure of Percent for Art Program funds, demonstrating compliance with Chapter 18 of the Lake Oswego Code and Section 5 of the Public Art Guidelines. Submit to the City on June 30, 2010: • Form 990 • Narrative description of services performed for the City for the year. 8. Services Provided by the City. For the duration of this Agreement, the City shall provide the Foundation with the following, which shall be used by the Foundation exclusively for activities under this Agreement and activities of direct benefit to the arts in the City of Lake Oswego: a. Office. Office space including access to two desks, and the use of a computer, telephone and fax machine. b. _ Computer Support. Reasonable assistance from the City's Information Technology Department for general troubleshooting relating to the computer provided under 8.a, above. Page 3 — Agreement for Administration of City Arts Programs, FY09-10 11 C. Set up and placement Assistance. Reasonable assistance from the City Maintenance Department for event set up relating to activities under this Agreement. d. Marketing and Promotion of Events. Reasonable print services and public relations assistance related to activities under this agreement. Cite Liaison. The City shall provide a staff liaison to facilitate communication between the City and the Foundation. 9. Duration of Agreement. This Agreement shall be effective on the date that it has been signed by both parties, and shall remain in effect until June 30, 2010, unless terminated earlier as provided herein. 10. Termination of Agreement. 10.1 Termination by Mutual Consent. This Agreement may be terminated at any time by mutual written consent of the parties. 10.2. Termination upon Notice. Either party may, at its sole discretion, terminate this Agreement upon 180 days written notice to the other Party. 10.3 Cites Right to Terminate For Cause. The City may terminate this Agreement, in whole or in part, immediately upon notice to the Foundation, or at such later date as the City may establish in such notice, upon the occurrence of any of the following events; a. The City fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for the Foundation's services; b. Federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the services under this Agreement are prohibited or the City is prohibited from paying for such services from the planned funding source; C. The Foundation no longer has non-profit status, is no longer qualified to receive deductible contributions under Section 501(c)(3) of the Internal Revenue Code or no longer holds any license or certificate that is required to perform the services under this Agreement; or d. The Foundation commits any material breach or default of any covenant, warranty, obligation under this Agreement, fails to perform the services and other obligations under this Agreement within the time specified herein or any extension thereof, or so fails to pursue those services and obligations as to endanger the Foundation's performance under this Page 4 --- Agreement for Administration of City Arts Programs, FY09-10 12 Agreement in accordance with its terms, and such breach, default or failure is not cured within 5 business days after delivery of notice by the City, or such longer period as the City may specify in such notice. 10.4 Foundation's Right to Terminate for Cause, The Foundation may terminate this Agreement upon 30 days' written notice to the City if City fails to pay the Foundation pursuant to the terms of this Agreement and City fails to cure within 30 business days after receipt of such notice from the Foundation, or such longer period of cure as the Foundation may specify in such notice. 10.5 Remedies. a. In the event of termination pursuant to sections 10.2, 10.3(a), 10.3(b), or 10.4, the Foundation's sole remedy shall be a claim for the sum designated for accomplishing the services multiplied by the percentage of services completed and accepted by the City, less previous amounts paid and any claim(s) that City has against the Foundation. If previous amounts paid to the Foundation exceed the amount due to the Foundation under this subsection, the Foundation shall pay any excess to the City upon demand. b. In the event of termination pursuant to sections 10.3(c) or 10.3(d) the City shall have any remedy available to it in law or equity. If it is determined for any reason that the Foundation was not in default under sections 10.3(c) or 10.3(d), the rights and obligations of the parties shall be the same as if the Agreement was terminated pursuant to section 10.2. 10.6. Foundation's Tender Upon Termination. Upon receiving a notice of termination of this Contract, the Foundation shall immediately cease all activities under this Agreement, unless the City expressly directs otherwise in such notice of termination. Upon termination of this Agreement, the Foundation shall deliver to the City all documents, information, works -in -progress and other property that are the subject of this Agreement. Upon the City's request, the Foundation shall surrender to anyone the City designates all documents, objects or other tangible things needed to complete the projects, services and activities that are the subject of this Agreement 11. Insurance. The Foundation shall obtain prior to the commencement of the contract, and shall maintain in full force and effect for the term of this Agreement, at the Foundation's expense, a comprehensive general liability policy and automobile liability insurance policy for the protection of the Foundation and the City, its officers, agents, and employees. If the insurance policy is issued on a "claims made" basis, then the Foundation shall continue to obtain and maintain coverage for not less than three years following the completion of the contract. The policy shall be issued by a company authorized to do business in the State of Oregon, protecting the Foundation or anyone directly or indirectly employed by the Foundation against liability for the loss or damage Page 5 — Agreement for Administration of City Arts Programs, FY09-10 13 of personal and bodily injury, contractual liability, death and property damage, and any other losses or damages above mentioned with limits not less than (a) $1,000,000 per occurrence and $2,000,000 in the aggregate for comprehensive general or commercial general liability insurance policies, and (b) $1,000,000 per occurrence -combined single limit or $1,000,000 bodily injury and $1,000,000 property damage for automobile liability insurance policies; or (c) the limit of public liability contained in ORS 30.260 to 30.300 for any policy, whichever is greater. The Foundation shall not undertake any acts that shall affect the coverage afforded by the above policy. The insurance company shall provide the City with a certificate of insurance and an endorsement thereto naming the City as an additional insured and will provide the City 30 days written notice of cancellation or material modification of the insurance contract. The obligation to provide notice to the City shall be in substantially the following language: "Should any of the above described policies be cancelled before the expiration date thereof, the issuing company will mail 30 days written notice to the certificate holder named"; it is not sufficient for the insurance carrier to merely "endeavor" to give notice or for the certificate to absolve the insurance carrier from obligation or liability in the event of the insurance carrier's failure to mail such notice. The Foundation shall not perform any activities under this Agreement until the City has received copies of applicable insurance policies or acceptable evidence that appropriate insurance as provided above is in force. 12. Changes. This Agreement, including all attachments and exhibits annexed hereto, shall not be subject to modification or amendment except in writing, executed by both. parties. 13. Independent Contractor Status. The Foundation agrees and certifies that: a. The Foundation is engaged as an independent Contractor. Although the City 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, City cannot and will not control the means or manner of the Foundation's performance, nor provide any tools or equipment for the performance of the Work, except as provided elsewhere in this Agreement. The Foundation is responsible for determining the appropriate means and inanner of performing the Work. b. The Foundation shall be responsible for all federal or state taxes applicable to compensation or payments paid to the Foundation under this Contract and, unless the Foundation is subject to backup withholding, City will not withhold from such compensation or payments any amount(s) to cover the Foundation's federal or state tax obligations. The Foundation will not, on account of any payments made under this Page b — Agreement for Administration of City Arts Programs, FY09-10 14 Agreement, be eligible for any benefit from federal social security, workers' compensation, unemployment insurance, or the Public Employee's Retirement System, except as a self-employed individual; d. The Foundation is not currently an employee of the federal government or the State of Oregon; e. The Foundation is not a contributing member of the Public Employee's Retirement System; and The Foundation is not an "officer," "employee," or "agent" of the City, as those terms are used in ORS 30.265. 14. Subcontracts and Assignment. No subcontract shall be made by the Foundation with any other party for furnishing any of the services, projects and activities that are the subject of this Agreement without obtaining the prior written consent of the City, which City may withhold without cause. This Agreement is not assignable by the Foundation, either whole or in part, unless the Foundation has obtained the prior written consent of the City. The City and the Foundation 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. 15. Payment of Laborers and Drug Certification, The Foundation shall, to the extent as may be required by Oregon law: a. Make payment promptly, as due, to all persons supplying to the Foundation labor or material for the prosecution of the services, projects and activities provided for this Agreement; b. Pay all contributions or amounts due the Industrial Accident Fund by the Foundation or subcontractors, if permitted, incurred in the performance of this Agreement; C. Not permit any lien or claim to be filed or prosecuted against the City on account of any labor or material furnished; and d. Pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167; and C. Demonstrate that an employee drug testing program is in place during the term of this Agreement. If the Foundation fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to it by any person in connection with this Agreement as such claim becomes due, the City may pay such claim to the person furnishing the labor Page 7 — Agreement for Administration of City Arts Programs, FYO9-10 1s or services and charge the amount of the payment against funds due or to become due the Foundation by reason of such contract. The payment of a claim in this manner shall not relieve the Foundation from obligation with respect to any unpaid claims. 16. Hours of Labor. For those employees of the Foundation covered or subject to Oregon employment laws: a. Persons employed under this Agreement shall receive at least time and a half pay for work performed on the legal holidays specified in ORS 279.334(1)(a)(C)(11) to (vii) and for all overtime worked in excess of 40 hours in any one week, except for individuals who are excluded under ORS 653.010 to 653.261 or under 29 USC 201 to 209 from receiving overtime. b. Except as provided above, no person shall be employed for more than ten hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency or where the City absolutely requires it, and in such cases, except in cases of contracts for personal services as defined in ORS 279.051, the laborer shall be paid at .least time and a half pay: for all overtime in excess of eight hours a day or 40 hours in any one week when the work week is five consecutive days, Monday through Friday; or ii for all overtime in excess of ten hours a day or 40 hours in any one week when the work week is four consecutive days, Monday through Friday; or iii for work performed on Saturday and on any legal holidays specified in ORS 279.334. For those employees of the Foundation that are covered or subject to Oregon employment laws, the Foundation must, pursuant to ORS 279.316(1)(b), give notice to employees who perform work on this Agreement, either at the time of hire or before commencement of work on the Agreement, or by posting a notice in a location frequented by employees, of the number of hours per day and days per week that the employees may be required to work. 17. Time Limitations on Claims for Overtime. To the extent any of the Foundation's employees are covered by the Oregon employment laws, such covered worker employed by the Foundation shall be foreclosed from the right to collect for any overtime under this Agreement unless a claim for payment is filed with the Foundation within 90 days from the completion of the contract, provided the Foundation has: a. Caused a circular clearly printed in blackface pica type and Page 8 — Agreement for Administration of City Arts Programs, FY09-10 16 containing a copy of this section to be posted in a prominent place alongside the door of the timekeeper's office or in a similar place which is readily available and freely visible to any or all workers employed on the work, and b. Maintained such circular continuously posted from the inception to the completion of the Agreement on which workers are or have been employed. 18. Representations and. Warranties. The Foundation represents and warrants to City that: a. The Foundation has the power and authority to enter into and perform this Agreement, b. This Agreement, when executed and delivered, shall be a valid and binding obligation of the Foundation enforceable in accordance with its terms, and this Agreement was duly approved and executed pursuant to authority of the governing body of the Foundation, The Foundation will accomplish the services using a standard of performance and care that is currently accepted by others engaged in similar activities in the Portland metropolitan area, d. The Foundation shall, at all times during the term of this Agreement, be qualified, professionally competent, and duly licensed to perform the services, and shall be a non-profit corporation eligible to receive deductible donations pursuant to Section 501(c)(3) of the Internal Revenue Code. The Foundation has no present interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services under this Agreement, and that in the performance of this Agreement no person having any such interest shall be employed. f. The Foundation covenants that the Foundation has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the Foundation's services. The Foundation further covenants that in the performance of this Agreement no person having any such interest shall be employed. g. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided. Page 9 — Agreement for Administration of City Arts Programs, FY09-10 17 19. Records. The Foundation shall have access to the books, documents, papers and records of the City as necessary for the Foundation's performance under this Agreement. The Foundation shall not disclose all or any part of such records to any other person, firm, corporation, association or other entity except as reasonably necessary to carry out this Agreement, without the consent of the City. The Foundation agrees that the City and its authorized representatives shall have access to the books, documents, papers and records of the Foundation which are pertinent to this Agreement for the purpose of making audits, examinations, excerpts and transcripts. The Foundation shall maintain all fiscal records relating to this Agreement in accordance with generally accepted accounting principles. In addition, the Foundation shall maintain any other records pertinent to this Agreement in such a manner as to clearly document the Foundations performance. The Foundation acknowledges and agrees that the City's duly authorized representatives shall have access to such fiscal records and other books, documents, papers, plans and writings of the Foundation that are pertinent to this Agreement to perform examinations and audits and make excerpts and transcripts. The Foundation shall retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of three (3) years, or such longer period as may be required by applicable law, following final payment and termination of this Agreement, or until the conclusion of any audit; controversy or litigation arising out of or related to this Agreement, whichever date is later. The Foundation shall submit to the City Council an annual report for the Public Art Trust Fund and Foundation identifying program accomplishments, and revenues and expenses. 20. Indemnity and Hold Harmless. The Foundation shall defend, indemnify, and hold the City, 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 caused by any act or omission of an act sustained in any way in connection with the performance of this Agreement or by conditions created thereby, or based upon violation of any statute, ordinance or regulation. This contractual indemnity provision does not abrogate common law or statutory liability and indemnification to the City, but is in addition to such common law or statutory provisions. 21. Compliance with Laws. The Foundation shall comply with all federal, state and local laws and ordinances, applicable to this Agreement and the activities, services and projects and other work to be done under this Agreement The Foundation 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, gender identity, marital status, age, medical condition, or disability. Page 10 — Agreement for Administration of City Arts Programs, FY09-10 18 THE CITY OF LAKE OSWEGO Jack Hoffman, Mayor Date: LAKE OSWEGO FOUNDATION OF THE ARTS Donald J. Caldwell, Chair of the Board Date: Page I 1 — Agreement for Administration of City Arts Programs, FY09-10 19 EXHIBIT A —CITY OF LAKE OSWEGO PUBLIC ART GUIDELINES Use 5/10/07 revised guidelines Page 12 — Agreement for Administration of City Arts Programs, FY09-10 20 EXHIBIT B - SPECIFIC PROJECTS FOR FY 09-10 The Foundation shall implement and successfully complete the following specific projects during FY 09-10: A. Gallery Without Walls — outdoor sculpture installation. Manage the exhibit installed in August 2009 in the downtown redevelopment area for temporary display during FY 09-10. B. Arts Chronicle Exhibits. Administer and host the annual Arts Chronicle invitational exhibit during Lake Oswego Festival of the Arts in 2010. The exhibit shall be for at least three consecutive days, and shall include works by at least 30 artists. C. Playwright Contests. Administer and host a playwright contest in the spring of 2010 which shall culminate in a public reading of the winning play. D. Art Purchases. People's Choice Awards. Upon the request of the City, and subject to availability of City funds, administer the public voting processes, selection and purchase of a work of art from the Gallery Without Walls Exhibit, for a price not to exceed $10,000, to be sited in downtown Lake Oswego in the spring of 2010 following installation of the Gallery Without Walls Exhibit sculptures pursuant to paragraph A, Exhibit B. Unveiling Ceremonies. Administer and host an unveiling ceremony for the People's Choice award selected in spring, 2010. Page 13 — Agreement for Administration of City Arts Programs, FY09-10 21 22 CITY OF LAKE OSWEGO PUBLIC ART GUIDELINES Section 1, INTRODUCTION/DEFINITIONS Section 2. PUBLIC ART COMMITTEE Section 3. MAINTENANCE OF COLLECTION Section 4. ACQUISITION OF ARTWORK Section 5. PERCENT FOR ART PROGRAM Section 6. DEACCESSIONING WORKS OF ART Section 7. DONATIONS & MEMORIALS POLICY Section 8. LOANS FROM THE COLLECTION Section 9. GALLERY WITHOUT WALLS PROGRAM Section 10. EXHIBIT A — Ordinance 2078 Percent for Arts Program Page 1 - Public Art Guidelines, Exhibit A to Resolution No 07-44 t Revised July 10, 2007 23 I. INTRODUCTION The art collection of Lake Oswego represents a cultural, recreational and educational resource that is held in trust for the public. The art collection is significant to Lake Oswego's quality of life and complements the City's mission of enhancing the lives of its citizens. The guidelines contained in this document define how the collection shall be maintained and developed. The City has contracted with the Lake Oswego Arts Foundation (FOUNDATION), to maintain and develop the City's public art collection. Under these circumstances, the City shall require the FOUNDATION to comply with these guidelines. 1.1 Definitions General Definitions "Accession:" To accept a work of art into the city's permanent art collection. "Advisor:" A professional asked by the Public Art Committee to provide advice on some aspect of a project. "Architect/Engineer:" The person or firm designing the improvement project to which the L5 % funding applies. Where architect/engineer is a firm, the term architect/engineer shall mean the principal. of that firm in charge of designing the improvement project to which the 1.5 % funding applies. "Artist:" A practitioner in the arts, generally recognized by critics and peers as a professional of serious intent and recognized ability who produces works of art and is not a member of the project architectural firm. "Call For Artists" An open competition where any artist is invited to submit works of art or delineated proposals for consideration. Proposals are reviewed and an artist is selected for the project. "Capital Improvement Program (CIP):" The City's program for advance planning of capital improvements. "City Project:" Any capital project in an amount over $25,000 paid for wholly or in part by the City of .Lake Oswego to purchase, construct, rehabilitate or remodel any building, decorative or commemorative structure, park, parking facility or any portion thereof within the limits of the City of Lake Oswego. "Project" does not include street, pathway or utility construction, emergency work, minor alterations ordinary repair or maintenance necessary to preserve a facility. "Consultant:" A paid professional in the arts field of regional, national or international status, hired by a selection committee or Public Art Committee to share his/her expertise. Page 2 -- Public Art Guidelines, Exhibit A to Resolution No 07-44 Revised July 10, 2007 24 "Deaceessioning: " Relinquishing title to a work of public art. "Eligible Funds:" A source of funds for projects from which art is not precluded as an object of expenditure. "FOUNDATION:" The Lake Oswego Foundation of the Arts, an Oregon nonprofit corporation with which the City has contracted to administer City arts programs. "Participating Department:" The department that sponsors a City project subject to the 1.5 Percent for Art Program. "1.5 Percent for Art Program" - The Program established to set aside a percentage of the total cost of eligible City projects for public art as per the Percentfor Art Ordinance No. 2075. "Permanent Art Collection:" All works of art owned by the City of Lake Oswego, either site specific or part of a portable collection, which may rotate through public buildings. "Pre -Qualified List:" A list of artists deemed appropriate for 1.5 Percent for Arts projects by satisfying criteria outlined by the Public Art Committee. The list may be created and updated by the Public Art Committee and may be used as a starting point for "invitation only" competitions, as well as a tool for generating ideas for a project. "Public Art:" All forms of original works of art accessible to the public and/or public employees including: 1. Painting of all media, including both portable and permanently fixed works, such as murals; 2. Sculpture which may be in the round, bas-relief, high -relief, mobile, fountain, kinetic, electronic and others, in any material or combination of materials; 3. Other visual media including, but not limited to prints, drawings, stained glass, calligraphy, glass works, mosaics, photography, film, clay, fiber/textiles, wood, metals, plastics or other materials or combination of materials, or crafts or artifacts; 4. Works of a wide range of materials, disciplines and media which are of specific duration, including performance events, and which are documented for public accessibility after the life of the piece has ended; 5. Art works that possesses functional as well as aesthetic qualities. Page 3 - Public Art Guidelines, Exhibit A to Resolution No 07-44 3 Revised July 10, 2007 25 "Public Art Committee:" The committee appointed to maintain and develop the City's public art collection, and to provide oversight for the 1.5 Percent for Art process. The Public Art Committee develops policies and goals for the selection, placement and maintenance of works of art acquired through the 1.5 Percent for Art Program. The committee has approval authority within the artist selection process, evaluates and/or causes to be evaluated by others the public art collection, recommends uses for Public Art Trust Fund monies, considers projects by private developers and citizens which would result in a piece or pieces of public art, and responds to any other public art initiatives. The committee shall consist of seven (7) members. "Public Art Trust Fund:" A City fund or account into which all 1.5 Percent for Art monies shall be deposited. Monetary contributions designated specifically for the purchase and maintenance of public art, and proceeds from the deaccessioning of public art, shall also be deposited into the Public Art Trust Fund. Funds within the Public Art Trust Fund shall be solely utilized for the purpose outlined in the Percent for Art Ordinance No. 2075. "Total cost:" The entire amount of the City's contribution towards the price for construction of a project. "Total Cost" does not include costs for design and engineering, administration, fees and permits, building demolition, relocation of tenants, contingency funds, change order costs, environmental testing or indirect costs, such as interest during construction, advertising and legal fees. Page 4 - Public Art Guidelines, Exhibit A to Resolution No 07-44 4 Revised July 10, 2007 26 HINNFW�r # 3'0 2.1 Role of the Public Art Committee The Public Art Committee shall maintain the public art collection, and review and recommend all proposed accessions to and deaccessions from the art collection of Lake Oswego. Specific duties include: 1. Maintenance of city art collection — Maintain a current listing of all holdings in the collection, conduct an annual review, and see that necessary repairs are performed. 2. Development of a list of potential or desired sites for future accessions. For each site, the list shall specify the goals for, and conditions on, the type of art to be placed there. 3. Development of the collection by acquiring artwork through various means of acquisition. This may include using funds from the 1.5 Percent for Art program or other city funds to purchase or commission works of art; and accepting donations of art or funds to purchase art from individuals or organizations. 4. Removing works of art from the collection that do not meet the goals of the collection or are damaged beyond repair. 5. Recommending uses for Public Art Trust Fund monies generated through the 1.5 Percent for Art Program. 6. Considering projects by private developers and citizens that would result in a piece or pieces of public art, and responding to any other public art initiatives. If the Public Art Committee is chosen through a special selection committee pursuant to Section 2.2, the Public Art Committee shall be a committee of the FOUNDATION, rather than a committee of the City of Lake Oswego. 2.2 Membership The Public Art Committee shall be composed of seven members. Five members must reside within the city limits of the City of Lake Oswego, and two members within the City's Urban Services Boundary as established in the Lake Oswego Comprehensive Plan. Three of the members shall be artists. Page 5 - Public Art Guidelines, Exhibit A to Resolution No 07-44 5 Revised July 10, 2007 27 The members of the Public Art Committee shall be selected by a majority vote of an appointment committee. The appointment committee shall consist of two members of the City Council and two representatives of the FOUNDATION. The City Councit shall select the chair of the Public Art Committee from among the seven members appointed by the appointment committee. Initially, and thereafter upon the annual expiration of terms for the Public Art Committee, the appointment committee, in addition to selecting members for new terms, shall also appoint up to three qualified alternates to fill any membership position that becomes vacant before the expiration of its term during the following year. Upon filling a vacancy in a membership position with one of the alternates, the appointment committee may appoint an additional alternate to serve for the balance of the year preceding the next annual expiration of membership terms for the Public Art Committee. Public Art Committee members shall be selected on the basis of their knowledge of and familiarity with the arts and their understanding of the needs of the Lake Oswego community. 2.3 Recruitment Members for the Public Art Committee shall be recruited through public advertisement in the City's monthly newsletter, on the City's website, and through personal invitation. The FOUNDATION shall be responsible for initiating the recruitment process' upon approval by the City. 2.4 Term Members of the Public Art Committee shall serve a term of three years. After serving a term, members are eligible to serve again after a one year absence from the committee. Initial terms shall be staggered so that terms do not expire for all members at the same time. Should there be difficulty in filling positions, as determined by the FOUNDATION, members may be allowed to serve another consecutive 3 year term without a one year absence from the committee. 2.5 Meetings The Public Art Committee shall meet as necessary to accomplish its business. Public notice shall be given in advance of all meetings. Meetings shall be conducted in accordance with the requirements of Oregon Public Meetings Law. The Public Art Committee shall forward copies of the minutes of each meeting to the City Council. Page 6 - Public Art Guidelines, Exhibit A to Resolution No 07-44 6 Revised July 10, 2007 28 2.6 Conflict of Interest During their tenure, members of the Public Art Committee shall refrain from activities that represent a conflict of interest. A member must not undertake any action or any decision or recommendation as a committee member, the effect of which would be to the private pecuniary benefit or detriment of the person or the person's relative or any business with which the person or a relative of the person is associated. Members of the Public Art Committee, and consultants and appraisers that the committee may engage, must have no financial interest in any art piece under consideration by the committee, even if the financial. interest is limited to an artist spouse or relative. No committee member shall have any interest in any art consultant or art appraisal firm engaged by the Public Art Committee. Any member of the Public Art Committee must also declare a conflict of interest and refrain from participating if a person with whom he or she shares a household or whom he or she professionally represents has a matter before the Committee. No members of the Project Architectural firm may submit for the project being designed by that firm. During the time they serve on the Public Art Committee, artists may not contribute their own pieces, even without cost. Members of the Public Art Committee shall follow the requirements of Oregon Revised Statutes Chapter 244 relating to ethics for public officials and shall also follow the Oregon State Guidelines for Public Officials published by the Secretary of State's Office, Page 7 - Public Art Guidelines, Exhibit A to Resolution No 07-44 7 Revised July 10, 2007 29 3. MAINTENANCE OF THE PUBLIC ART COLLECTION 3.1 Cataloguing the Collection The Public Art Committee shall ensure that there is a current listing of all holdings in the City of Lake Oswego Public Art Collection, including all pertinent information such as title, artist, medium, accession date, placement and other information. In addition, the Public Art Committee shall, where appropriate, create catalogs describing the collection and make them available to the public. 3.2 Periodic Review The Public Art Committee shall annually review all holdings in the art collection. During this review, the committee shall inventory the collection, examine the condition of each piece to determine any restoration or preservation needs, and examine the display or storage conditions of each piece. The review periodically estimates the value of each piece for insurance coverage and the City's fixed asset inventory. In addition, the Public Art Committee shall update the current listing of all holdings in the art collection catalogue and submit the updated list to City staff. 3.3 Maintenance of Collection The Public Art Committee shall perform, perform., the repairs, cleaning, labeling, etc. art collection. or obtain the services of a professional to that may be necessary to maintain the public Should repairs to outdoor sculpture be necessary, the committee shall notify the appropriate City staff member. The committee shall coordinate cleaning and repairs with the City's Parks Maintenance staff. City departments shall notify the appropriate City staff member immediately if a work of art is either damaged or stolen, or if the participating department plans to move to another location or in any way disrupt the work of art. 3.4 Maintenance Instructions When the city purchases a new work of art, the artist shall be required to submit a maintenance plan and instructions to be kept on file by city maintenance staff. These instructions shall outline cleaning methods and materials for the artwork as well as a timeline and plan for regular maintenance of the work. The instructions shall be kept on file at the Parks Maintenance office. Page 8 - Public Art Guidelines, Exhibit A to Resolution No 07-44 Revised July 10, 2007 30 3.5 Placement of Works of Art While it is the intent that site specific works will remain in the site for which they were created, a piece may be moved if circumstances dictate. A reasonable effort shall be made to notify the artist in advance of the move. Page 9 - Public Art Guidelines, Exhibit A to Resolution No 07-44 9 Revised July 10, 2007 31 4. ACQUISITION OF ARTWORK 4.1 Background The City public art collection includes works that were in the City's possession prior to 1992, works commissioned through the 1.5 Percent for Art Program (adopted in 1993), works purchased with funds other than from the 1.5 Percent for Art Program trust, and gifts of art to the City. Artworks are acquired by the City of Lake Oswego through a thorough review process based on their innate quality and value to the collection as a whole. The Public Art Committee shall have the responsibility for developing the City's art collection. 4.2 Art Selection Criteria The value of every work of art is in the eye, ear and soul of each individual viewing it. A single work of art can engender a wide range of responses in the population viewing it. Because of this, art selection is, in part, a subjective process. Members of the Public Art Committee must, at all times, remember that they represent the public. On the other hand, the members of the committee are selected because they possess expertise in art. They should understand these issues and strive to maintain a balance in their selection of art works. Making their selections without this balance can result in public art that is, on the one hand, bland or trite, or, on the other hand, too esoteric to be appreciated by any but art connoisseurs. The following sections define criteria, both mandatory and desired, to be considered during the accession process. 1. Required Conditions All pieces of art selected for inclusion in the collection of the City of Lake Oswego must meet all of the following criteria. A. Clear Title The artwork must be able to be transferred to the City of Lake Oswego with clear title. Purchased art shall be by a formal bill of sale from the owner(s) or artist(s). Contributed art must be accompanied by an appropriate deed of gift. B. Restrictions Artwork accessioned by the City of Lake Oswego must not have attendant restrictions. The City will attempt to acknowledge artists and donors in the display of artwork, but shall be under no obligation to do so. C. Reflects Community Values Page 1.0 - Public Art Guidelines, Exhibit A to Resolution No 07-44 10 Revised July 10, 2007 32 While recognizing the First Amendment freedom of artists to express themselves in any way they choose, the City of Lake Oswego reserves the right to .not select pieces if they do not reflect the values of the community. This does not mean a piece should be rejected simply because it might be controversial. One of the purposes of art is to show people a new way of looking at their environment, to share an artist's sometimes iconoclastic vision. Art can legitimately be intrusive, abrasive or unpopular. Failure to recognize this purpose for art can lead to an art collection that is simply "pretty" or "nice" without being ennobling or educational. D. Original Works and Authentication Only original works of art shall be accessioned for the collection. Fakes, unauthorized copies or reproductions are not acceptable. In cases where the authenticity of a piece could reasonably be questioned, it must be authenticated before accession. E. Suitability All art pieces must be suitable for display in a public setting. Sculpture must be able to be secured to prevent accidents. Pieces executed in fragile media must be able to be protected while displayed. F. Maintenance and Security The City of Lake Oswego can only accept artwork that the Public Art Committee and the City staff believe can, within the financial confines of the foreseeable future, be adequately and safely displayed, maintained and reasonably secured. 2. Desired Attributes The criteria listed below describe the desired attributes of all art in the collection. Selected pieces should meet most, if not all, of these attributes to a high degree. A. Artistic Excellence Art selected for the collection should represent the skill and competence of the originator, and should be an example of artistic excellence. The definition of artistic excellence changes over time, but the collection should always be representative of the best examples available. B. Variety of Media, Styles and Techniques Within the guidelines above for suitability of form for a public setting, art selected for the collection should broaden the range of media and techniques represented in the collection. C. Represents Artists of Varying Acclaim Page 1 l - Public Art Guidelines, Exhibit A to Resolution No 07-44 > > Revised July 10, 2007 33 Some art collections strive for excellence by selecting only works from recognized "name" artists. The collection of the City of Lake Oswego should strive to represent works from a wide range of artists of varied public status. Art should be chosen solely on the basis of its intrinsic merit. A piece from a well-known artist should not be presumed to have more artistic merit than a piece from a relatively unknown artist. D. Value Because an aspect of the value of an art piece is the response of each individual to that art, value is difficult to assign. However, the price of any proposed piece of art should represent a responsible investment for the City collection. When a piece of art has a price of more than $5000, the Public Art Committee must consult with an art consulting or appraisal firm to authenticate and verify the market value of the piece. E. Selected for Specific Site Major art pieces should be selected as part of a process that takes into account the final display site for the piece. This should be considered in terms of how well the piece fits an intended space and the environment. This not only requires consideration of the size and environmental harmony of a piece, but also how well it fits into the use patterns of the area in which it will be placed. 4.3 Methods of Accession There are several ways that a work of art may be accessioned. The selection criteria listed in Section 4.2 apply to all works, regardless of the particular accession method used to bring a piece to the City collection. When funds become available to accession art, the Public Art Committee may use one of three processes, open competition, artist invitation and direct purchase. In addition, artwork may be added to the collection through a direct contribution of art or funds to purchase or commission a work of art. The choice of accession method shall be determined by the Public Art Committee with final approval by the FOUNDATION. 1. Open Competition In open competition, any artist is invited to submit pieces or delineated proposals for consideration. A "Call To Artists" is advertised within a designated region (local, regional, national, etc.) inviting all artists within the region to submit a proposal. The competition may be held for a single piece, a single site, or a number of sites or pieces. The Public Art Committee evaluates the contender and selects the piece or proposal that best fits the criteria and the needs of the site(s). The Public Art Committee may decide that no entry fits the criteria or is suitable. For competitions held to populate several sites, this means that one or more sites Page 12 - Public Art Guidelines, Exhibit A to Resolution No 07-44 12 Revised July 10, 2007 34 may go unfilled. The Public Art Committee may choose to leave the site unfilled, and add that site to the list of potential future accessions. 2. Direct Purchase The Public Art Committee may choose to purchase a piece of existing art, from a gallery or dealer, from a private individual or from the artist directly. 3. Artist Invitation The Public Art Committee may choose to invite one or more artists to submit proposals to create a piece for a specific site. The committee should work closely with the selected artist from the beginning of the project, making clear the criteria in the policy. The artist should be asked to submit proposal sketches or models for approval before beginning the final work, with opportunities to periodically view the work during different stages of completion to insure the criteria are being met. 4. Donations At times civic -minded citizens may wish to contribute to the art collection. They may do so by directly contributing funds to purchase a work of art, commissioning a work of art and then donating it to the City, and directly contributing a piece of art to the collection. See Section 7, Donations and Memorials for a more detailed explanation of how donations are reviewed and accepted. 4.4 Process for Accessioning Artwork The Public Art Committee shall oversee the development of goals and process for the selection, placement and maintenance of works of art. Upon notification that the FOUNDATION would like to initiate a public art project, the Public Art Committee shall define the parameters of the services and purchase. In doing so, the Public Art Committee shall confirm the available budget, identify a site for the work(s) of art, identify the goals of the project, and form a selection committee, if appropriate, to choose the artist and/or artwork, and determine the most appropriate accession method in each circumstance, depending upon the project funding source. The Public Art Committee shall also determine whether the project falls within the scope of the 1.5 Percent for Art Program. If it does, the specific guidelines contained in Section 5, Percent for Art Program, must be followed. In initiating any public art project, the Public Art Committee shall: 1. Identify the funding source and determine whether or not the project falls under the 1.5% Percent for Art Program Guidelines. If so, the committee shall follow the process outlined in Section 5, Percent for Art Program. Page 13 - Public Art Guidelines, Exhibit A to Resolution No 07-44 13 Revised July 10, 2007 35 2. Confirm the total project budget available for purchase of services and/or artwork, including installation costs. 3. Identify a site for the final location of art or the project where an artist may be included on the design team. If the committee is considering a site in the public right of way, all appropriate departments must be consulted through the staff liaison before the site is finalized. Likewise if any elements of the project fall under the jurisdiction of another department, that department must be consulted early in the selection process. 4. Identify the goals for the art project, which shall include whether the project warrants including an artist on the design team or whether a purchase or commission of art is more appropriate. The committee shall also establish at what stage of the project the artist will become involved in the process and shall coordinate funding accordingly (refer to Section 5.8, Dedication of Funds, as a guideline for non -1.5 Percent for Art projects). Options for consideration include: Design Team Options: A. Hiring an artist to collaborate with the project architect only during the early planning phases of the project as a consultant. B. hiring an artist to collaborate with the project architect during the early planning stages and to make artworks with project materials. The artwork shall be incorporated into the design of the project and shall fall within the project's materials budget. The contractor shall be responsible for fabrication, and the artist shall provide oversight during fabrication and installation.. C. Hiring an artist to collaborate with the project architect early in design phase, and giving the artist a budget to create independent artworks that the artist will later place at a predetermined location(s) at the project site. D. Hiring an artist to collaborate with the project architect early in the design, and then allowing the artist to apply, along with other artists, for design and construction of art for the project as part of an open competition. Direct Purchase or Commission Decide whether to purchase an existing work of art or commission a work of art. Donations Decide whether or not to accept a donation of art. Page 14 - Public Art Guidelines, Exhibit A to Resolution No 07-44 14 Revised July 10, 2007 36 5. Determine which acquisition method, according to Section 4.3, Methods of Accession, is most appropriate based upon the project goals. b. Establish a selection process that addresses the project goals and determine membership on an artist/art selection committee. The committee shall keep in mind the City's goals of maintaining artistic integrity and encouraging public involvement, as needed, in each selection process. 7. Select an artist and/or art purchase/commission through a majority vote. 8. Obtain approval of acquisition method, and selection process from the FOUNDATION. 4.5 Artist Selection Criteria Artists will be selected on the basis of their qualifications as demonstrated by past work, appropriateness of the proposal to the particular project, and its probability of successful completion as determined by the Public Art Committee. In selecting artists and works of art, the Public Art Committee shall select those artists and works of art of the highest aesthetic quality, and those that fulfill the purpose of the City's art selection criteria as set forth in Section 4.2. In all cases, consideration will be given to materials, construction, durability (long or short term, depending on the intended life of the piece), maintenance, public access and safety. The Public Art Committee may choose to utilize a "Pre -qualified list" of public artists in lieu of open competition in order to simplify the selection process. 4.6 Artist Contracts The FOUNDATION shall enter into a contractual agreement any time an artist is hired to perform services for the City, such as participating on a design team or selling or creating a work of art. The contract should define the scope of work for artist services and payment procedure for the purchase or commissioning of a work of art. The contract shall require the artist to do the following: 1. Produce a work of art for a guaranteed maximum cost, including all installation costs. 2. Maintain public liability and property damage insurance as well as workers compensation insurance. If the artist does not routinely carry this insurance in the amount specified by the contract, a fee for one-time purchase of coverage should be included in the total proposal. 3. Submit the following items before final payment is authorized: Page 15 - Public Art Guidelines, Exhibit A to Resolution No 07-44 15 Revised July 10, 2007 37 A. Submit to the city a completed catalogue form that describes the work of art (materials, size, weight, artist biography, address, contact information). B. Two color slides and a black and white negative of the competed work of art. C. A public art conservation and maintenance program giving detailed instructions for cleaning and maintaining the artwork. This report will include, but not be limited to, frequency of cleaning, method and materials used, and any other recommendations for maintaining artwork. Report shall also provide detailed description of all materials and processes used, to fabricate art, and names and addresses of material suppliers, fabrication and installation process of artwork Page 16 - Public Art Guidelines, Exhibit A to Resolution No 07-44 16 Revised July 10, 2007 38 51. _ Background In November of 1993, the Lake Oswego City Council adopted Ordinance 2062, which dedicates 1.5 % of the total costs of all City capital projects to the selection, acquisition, dedication, siting, maintenance, administration, de -accessioning, community education and registration of Public Art, 5.2 Program Goals Art acquired through the 1.5 Percent for Art Program should meet the criteria and desired goals listed in Section 4.2, Art Selection Criteria. In addition, it is the program's intent to: 1. Encourage early collaboration between artists and architects. 2. Ensure that City departments, Commissions, and Advisory Boards play an active role in the selection of art purchased through the 1.5 Percent for Art Program. 3. Preserve art objects and maintain artifacts displaced through City capital projects. 5.3 Administration of the 1.5 Percent for Art Program The Public Art Committee shall administer the 1.5 Percent for Art Program under the auspices of the FOUNDATION. 5.4 Qualifying Proiects Article 18.04 of the City Code specifies which city capital projects are eligible for the 1.5 Percent for Art .Program. A copy of the Percent for Art ordinance is contained in Exhibit A Percent For Art Ordnance. Generally, if funding is not legally restricted for particular uses, a city project qualifies for the 1.5 Percent for Art Program and must dedicate 1.5% of its total cost to purchasing and maintaining public art. Responsibility of Participating Department Following the adoption of the Capital Improvement Program (CIP) by the City Council, each department with qualifying capital projects shall produce a summary sheet of projects that qualify for funding under the Percent for Arts Ordinance. The summary sheet shall include the project name and approximate dollar amount available for arts funding. The actual dollar amount shall be confirmed by staff from the participating department upon encumbering funds for construction of the project and shall be reported to the City Manager. Page 17 - Public Art Guidelines, Exhibit A to Resolution No 07-44 17 Revised July 1. 0, 2007 39 5.5 Application of 1.5 Percent for Art Funds: Inclusions Funds may be spent as follows: I% for Purchase of Art 1% of the total construction cost of eligible city projects shall be used for costs associated with the acquisition of public art, including, but not limited to, the design, purchase and siting of public art. Such funds may be spent as follows: 1. Artist's fee for serving on a design team with the project architect. 2. The work of art itself, including but not limited to: a. Artist's design fee and operating costs. b. Any permits related to the completion of the work or art, including but not limited to building permits, permits with the Department of Transportation, etc. C. Labor and materials required for production of work of art. d. Travel related to the project. C. Transporting the work to the site and installation costs. 3. Frames, mats, mounting, anchorages, containments, pedestals, or materials necessary for the installation, location, or security of the work of art. 4. Slides and documentation of the work in progress as well as the required 2 slides of the completed work. 5. Insurance as required by the artist's contract. 6. Contingency of 5% to 8% of the 1% set aside at the beginning of each project (any unused contingency funds will go into the Public Art Trust). .5% for Maintenance and Administration .5% of the total construction cost of eligible City projects shall be used for costs associated with administration of the public art program, including, but not limited to costs of selection, conservation and maintenance of the collection, community education, deaccessioning and registration of public art. Funds may be spent as follows: 1. The selection process, excluding the cost of producing a prospectus. Page 18 - Public Art Guidelines, Exhibit A to Resolution No 07-44 18 Revised July 10, 2007 40 2. Community education related to the project. 3. Registration of Public Art. 4. Maintenance of Public Art. 5. Dedications and publicity. 6. Expenses for special advisors or consultants to the Public Art Committee. 5.6 Application of 1.5 Percent for Art Funds: Exclusions 1.5 Percent for Art funds may not be spent for: 1. Reproductions, by mechanical or other means, of original works of art. 2. Decorative, ornamental, or functional elements that are designed by the architect or consultants engaged by the architect, or elements generally considered to be components of a landscape architectural design, designed by a landscape architect as opposed to an artist commissioned for this purpose. 3. "Art objects" which are mass-produced of standard design, such as playground sculpture or fountains. 4. Directional or other functional elements, such as super graphics, signs, color - coding, traps, etc. except where a recognized artist is employed. 5. Architect's fee. Page 19 - Public Art Guidelines, Exhibit A to Resolution No 07-44 19 Revised July 10, 2007 41 5.7 Dedication of Funds The Lake Oswego Public Art Trust Fund is established within the City of Lake Oswego Treasury (see attached Ordinance 2078, item "Public Art Trust Fund''). Funds shall be deposited into the Public Art Trust Fund by the City official or employee acting on behalf of the participating department at the time that budgeted funds are encumbered for construction of the project. When the artist or artist team is hired at the same time as the project architect or engineer, 1.5 % of the estimated construction budget (from the CIP Document) shall be borrowed from monies existing in the Public Art Trust (or other sources available to the Arts Commission) at the point at which the artist or artist team is hired. When actual funds are encumbered for the construction portion of the project, the Public Art Trust Fund shall be reimbursed to the extent possible with eligible monies obtained from the actual construction budget. Funds shall be deposited in separate accounts within the Public Art Trust Fund if separate accounting is requested by the City Manager or required by law. Monetary contributions made other than through the 1.5% Percent for Art Program shall be deposited in the Public Art Trust Fund and may be dedicated for a specific program or work of art, subject to acceptance by the City Council. 5.8 Disbursement of Funds Disbursement of funds from the Public Art Trust Fund shall be made only after approval by the FOUNDATION and authorization by the City Manager or the Manager's designee. Disbursements shall be made according to Ordinance 2078 and these guidelines. The city's Finance Department shall prepare an annual financial report to the participating departments, the City Council, and the FOUNDATION on the disbursement of money from the Public Art Trust Fund. All payments to an artist shall be made according to the payment procedure outlined in the contractual agreement with the artist. 5.9 Artist Contract The FOUNDATION shall enter into a contractual agreement with an artist for any artist services in accordance with Section 4.6, Artist Contracts, 5.10 Public Art Committee Procedures and Responsibility The process for initiating and completing a 1.5% Percent for Art project is very similar to projects funded with other funding sources. The Public Art Committee shall oversee the Page 20 T Public Art Guidelines, Exhibit A to Resolution No 07-44 20 Revised July 10, 2007 42 process by defining the parameters and implementing a selection process as listed in Section 4.4, Process for- Accessioning Artwork. However, there are requirements specific to the 1.5% Percent for Art process which are outlined below. Upon notification that the FOUNDATION would like to initiate a 1.5 Percent for Art project, the Public Art Committee shall: 1. Confirm the available budget and timing of when the 1.5 Percent for Art funds will be available. Timing of funds will dictate when projects can be initiated. 2. identify a site for the work(s) of art. 3. Identify the goals of the project, including those goals outlined by the participating department and any artist's prerequisites. The committee must also establish whether the project warrants including an artist on the design team or whether a purchase or commission of art is more appropriate. The committee must also establish at what stage of the project the artist will become involved in the process and coordinate funding accordingly. If it is decided that an artist should be involved from the conceptual stages of the project, the procedure described in Section 5.7, Dedication of Funds, should be used. 4. Convene a Selection Committee. 5.10.1 Selection Committee Membership The Selection Committee shall consist of seven (7) members appointed by the Public Art Committee and approved by the FOUNDATION. The Selection Committee serves for the duration of one project. The Selection Committee shall consist of the following members: 1. Four members of the Public Art Committee, one of whom shall serve as chair. 2. A neighborhood or business representative where the project will be located. 3. A City staff representative from the department with the qualifying project. 4. An architect or engineer from the capital project's design team (where applicable). Public Art Committee members serving on a public art Selection Committee are limited to serving two consecutive selection processes. 5.10.2 Term of Office Selection Committee members shall serve through the duration of the project. Expiration of a person's term on the Public Art Committee shall not terminate that person's membership on a Selection Committee Page 21 - Public Art Guidelines, Exhibit A to Resolution No 07-44 21 Revised July 10, 2007 43 5.10.3 Selection Committee Responsibilities The Selection Committee shall work within the project parameters established by the Public Art Committee including overall budget, project location, and goals. The Selection Committee shall be responsible for identifying a selection process, reviewing artist proposals, and recommending a final selection. The Selection Committee shall do the following: 1. Choose a method for selecting an artist by one of the three options outlined in Section 4.3, Methods of Accession, which include open competition, invitation, or direct purchase. 2. Based upon the established budget, develop a realistic project scope, and determine if the budget is sufficient to warrant advertising for artists locally, regionally, nationally or internationally. 3. Prepare and oversee the writing, printing and distribution of the project prospectus. 4. Select works of art that are technically feasible to produce and display. In the case of selecting an artist to serve on a design team, the committee must determine whether the artist has the necessary experience desired to make a positive contribution to the project. 5. Reserve the option of making no selection. If no proposal is accepted, the Selection Committee may reopen the competition or propose another method of selection. 6. Approve all artists/art selections by a majority vote and present the recommendations to the Public Art Committee for approval. 7. Present the final piece to the City for acceptance into the public art collection. 8. Hold all Selection Committee meetings in accordance with the Oregon Public Meetings law. Meeting announcements shall be sent to local media. 5.11 Artist Selection Criteria The criteria used in evaluating and choosing artists for 1.5 Percent for Art projects is outlined in Section 4.5 Artist Selection Criteria. 5.12 Approval Process The following approvals are required in administering the 1.5 Percent for Art Program: Page 22 - Public Art Guidelines, Exhibit A to Resolution No 07-44 22 Revised July 10, 2007 44 Stage 1 - The FOUNDATION must approve of the Public Art Committee's initial project parameters (budget, site, project goals) and Selection Committee membership before any further steps may be taken. Stage 2 - The Public Art Committee must approve of the Selection Committee's process for selecting artists and/or artwork prior to any public advertising of the project or notification of artists. Stage 3 - The Public Art Committee must approve of the Selection Committee's list of finalists prior to the Selection Committee making a final selection. Stage 4 - The Public Art Committee must approve of the Selection Committee's final choice for artist and/or artwork prior to notifying the artist of the selection. Stage S — The Public Art Committee must approve of the final artwork and/or services upon completion of the artwork or services rendered, prior to final payment to the artist. Once accepted, the artwork is accessioned into the public art collection. Page 23 - Public Art Guidelines, Exhibit A to Resolution No 07-44 23 Revised July 10, 2007 45 6. DEACCESSIONINV WORKS OF ART 6.1 Background The decision to remove a piece from the collection is as important as the decision to accession it originally. The world of art is constantly growing, and something that was revolutionary or revealing in the past may become trite or too -well explored. On the other hand, the world of art is also affected by fashion. The Public Art Committee must be aware of the distinction between out of date and out of style. The deaccession process should not result in the loss of classic work, even if it represents an earlier period. Deaccession of pieces from the collection shall be based principally on issues of artistic merit or if the artwork has been irreparably damaged. No piece from the art collection shall be sold primarily for monetary gain with the intention to use the funds for purposes other than art collection. 6.2 Deaccession Policy Deaccessioning is a procedure for the withdrawal of an artwork from the public collection. Deaccessioning should be considered only after ten years have elapsed from the date of installation of permanent works and acceptance in the case of portable works or under special circumstances (e.g., the piece has been damaged beyond repair). Deaccessioning will be considered only after a careful and impartial evaluation of the artwork within the context of the collection as a whole. At the beginning of the process, the Public Art Committee will make reasonable effort to notify any living artist whose work is being considered for deaccessioning. 6.3 Eligible Artworks All artworks owned by the City of Lake Oswego, whether acquired through the 1.5 Percent for Art Program, donation, or any other method, are eligible for deaccessioning. In the case of donated artworks, all legal documents relating to the donation will be reviewed prior to beginning the process. 6.4 Deaccessioning Procedure A Deaccessioning Subcommittee of the Public Art Committee shall be appointed by the Public Art Committee. This subcommittee will consist of no more than five arts professionals or experts, including five (5) members of the Public Art Committee, and an art appraiser or consultant if necessary. If the value of the artwork is less than $5,000, the Public Art Committee may informally appraise the artwork. However, if there is any doubt as to the value of the piece the Public Art Committee must secure the services of an appraiser or consultant. Page 24 - Public Art Guidelines, Exhibit A to Resolution No 07-44 24 Revised July 10, 2007 46 6.5 Criteria for Deaccessioning The Public Art Committee may consider the deaccessioning of artwork for one or more of the following reasons: 1. A work is not, or is only rarely, on display because of lack of a suitable site. 2. The condition or security of the artwork cannot be reasonably guaranteed. 3. The artwork has been damaged or has deteriorated and repair is impractical or unfeasible. 4. The artwork endangers public safety. 5. In the case of site specific artwork, the artwork is destroyed by severely altering its relationship to the site. 6. The artwork has been determined to be significantly incompatible or inferior in the context of the collection. 7. The City wishes to replace the artwork with work of more significance by the same artist. 8. The artwork requires excessive maintenance or has faults of design or workmanship. 9. There has been sustained and overwhelming public objection to the artwork. 6.6 Sequence of Action, 1. The Deaccessioning Subcommittee appointed by the Public Art Committee shall determine whether an artwork meets one of the criteria listed in Section 6.5 above. 2. A representative from the appointed Deaccessioning Subcommittee shall submit a report to City staff which includes the opinion of the City Attorney on any restrictions that may apply to the specific work. 3. The Public Art Committee shall review the report. The Deaccessioning Committee may seek additional information regarding the work from the artists, art galleries, curators, appraisers or other professionals prior to making a recommendation to the full Board. 4. The Public Art Committee shall send a recommendation for action to the FOUNDATION for approval. 5. Upon approval of its recommendation, the Public Art Committee shall consider the following actions: A. Sale or Trade Page 25 - Public Art Guidelines, Exhibit A to Resolution No 07-44 25 Revised July 10, 2007 47 i. Artist will be given first option to purchase or trade artwork. ii. Sale may be through auction, gallery resale or direct bidding by individuals, in compliance with City law and policies governing surplus property. iii. Trade may be through artist, gallery, museum or other institutions for one or more artwork(s) of comparable value by the same artist. iv. No works of art shall be sold or traded to members or staff of the City, the FOUNDATION or Public Art Committee, consistent with the conflict of interest policies in these guidelines. V, Proceeds from the sale of a work of art shall be returned to the Public Art Trust Fund departmental account. Funds from the sale of gifts shall go into the Public Art Trust Fund for future artworks projects. Any pre-existing contractual agreements with the artist regarding resale shall be honored. K Destruction of work deteriorated or damaged beyond repair and deemed to be of negligible value. C. If the Public Art Committee is unable to dispose of the artwork in a manner outlined above, the work shall be donated to a non-profit organization or otherwise disposed of as the FOUNDATION sees fit. Page 26 - Public Art Guidelines, Exhibit A to Resolution No 07-44 26 Revised July 10, 2007 48 7.1 Background In addition to City financial support, the public art collection may grow through the generous gifts of private citizens. A consistent and fair process for considering public art gifts and memorials shall be followed. The art selection criteria listed in Section 4.2 will be applied when considering public art gifts. Anyone wishing to sponsor a gift of artwork to the City should contact the Public Art Committee at the earliest possible time for a consultation on the review and acceptance process for donated artworks. The Public Art Committee will review potential donations and make a recommendation to the FOUNDATION. If the proposed gift is to be a memorial and the site requested is in a park, it must also go through a review process with the Parks and Recreation Department. 7.2 Types of Donations 1. Existing Works of Art A. Portable - works of a scale appropriate for rotation through public spaces belonging to the City of Lake Oswego. The specific placement of portable works may not be stipulated as a condition of the gift. B. Non -Portable - works of a scale larger than would be appropriate for the portable collection and would require a semi-permanent or permanent site. 2. Commissioned Works of Art A. Works of art which are commissioned gifts to the City and which usually require a specific site. 7.3 Review Criteria 1. Artistic Excellence - Accepted works of art shall be of exceptional quality and enduring value as judged by the Public Art Committee and, the FOUNDATION . 2. Appropriateness to the City's Public Art Collection - Proposed gifts will be reviewed in relationship to existing goals for the public art collection, such as diversity of media, artists represented, styles, and geographic representation. 3. Appropriateness to Site - Page 27 - Public Art Guidelines, Exhibit A to Resolution No 07-44 27 Revised July 10, 2007 49 Relationship of the artwork to the site shall be considered in respect to its social, cultural, historical and physical context. 4. Maintenance Provisions - Maintenance concerns are a primary consideration Adequate provision must be made for future needs. Donors must provide the Public Art Committee with detailed maintenance instructions for the work(s) of art, copies of which shall be forwarded to city staff. Funds for future maintenance shall be deposited into the Public Art Trust Fund. 5. Adherence to Existing Master Plans - All works of art should adhere to the master plans of existing jurisdictions including but not limited to the Parks and Recreation Department, and Lake Oswego Redevelopment Agency. The Public Art Committee will help to advise the sponsor of existing master plans. 7.4 Review Process EXISTING WORKS: PORTABLE OR NON-PORTABLE 1. Initial Contact - Sponsor should send photographs of work(s) of art to City with written materials, including name of the artist, his/her bio or resume, medium, size, date of execution and estimated value of the piece. This material shall be forwarded to the Public Art Committee for a recommendation. 2. Review by Public Art Committee - The Public Art Committee will review the photographs and will ask to see the actual work of art if it wants to consider the gift further. If the Public Art Committee recommends acceptance of the work of art, it will also make a recommendation for future maintenance provisions. 3. Installation Readiness - In order to receive final acceptance, works of art should be professionally appraised and ready for installation. This means that two-dimensional works must be archivally framed and three-dimensional works must have a pedestal or appropriate hanging or mounting apparatus. 4. Acceptance - The FOUNDATION will review the recommendation of the Public Art Committee and will determine whether to accept or deny the proposed donation and its installation and maintenance provisions. 7.5 Commissioned Works of Art Page 28 - Public Art Guidelines, Exhibit A to Resolution No 07-44 28 Revised July 10, 2007 50 1. Initial Contact - Representatives of the FOUNDATION will meet with the sponsor to discuss the commission. If no artist has been selected, staff will advise the sponsor about artist selection options, such as the use of an artist selection committee or an art consultant. The art consultant and advisory committees can provide expert assistance on selection procedures, technical and budgetary concerns and on the uses, appropriateness, quality and variety of art options. Selection Process - Commissioned works must go through a two -phased process: first "in concept" and second when the design has been decided. Sponsors of gifts are requested not to select specific designs prior to the approval "in concept". If a site has been recommended and is under the jurisdiction of any other City department, such as the Parks and Recreation Department, that department must be contacted at the start and the project will also be reviewed by that department. 2. Review "in concept" by Public Art Committee - The sponsor must submit a written proposal to the FOUNDATION including the process for selection of an artist(s) and the general concept behind the project. The Public Art Committee will review the proposal and make a recommendation for acceptance or denial. 3. Review of Design by Public Art Committee - If the project is approved "in concept" the sponsor will proceed to select an artist(s) as outlined above. When a site and a specific design have been chosen, a model and/or scale drawings of the design and maintenance provisions must be presented to Public Art Committee, who will review the materials and make a recommendation to the FOUNDATION'. 4. Review of Design - A. The FOUNDATION will review the recommendation of the Public Art Committee and approve or deny the design of the work of art and the provisions for future maintenance. B. Note: .If, in the development and execution of the project, the concept or aesthetic of the work is substantially changed, the concept and design must be re -approved before the work will be considered for final acceptance. S. Review and Final Acceptance of Completed Work - Both the Public Art Committee and the FOUNDATION will review the completed work of art and approve or deny its acceptance. 7.6 Bequests for Commissioning a Work of Art Page 29 - Public Art Guidelines, Exhibit A to Resolution No 07-44 29 Revised July 10, 2007 51 Bequests for commissioning a work of art should go through the process outlined above and must include financial provisions for the administration of the commission as well as the future maintenance of the work of art as determined by the Public Art Committee and the FOUNDATION. 7.7 _ _Bequests to the Public Art Trust Fund Bequests to the Public Art'frust Fund can vary in scope from general gifts of unspecified use to gifts of a specified scope. For example, the sponsor could stipulate that the bequest be used to purchase portable works by Native American artists. Page 30 - Public Art Guidelines, Exhibit A to Resolution No 07-44 30 Revised July 10, 2007 52 8. LOANS FROM THE COLLECTION 8.1 Policy When loans are made from the collection, it is the responsibility of the borrowing gallery or institution to cover all expenses of packing, shipping and insurance. The borrowing gallery or institution shall submit proof of insurance coverage for the value of the piece. Page 31 - Public Art Guidelines, Exhibit A to Resolution No 07-44 31 Revised July 10, 2007 53 9. GALLERY WITHOUT WALLS EXHIBIT 9.1 Program Mission Lake Oswego's Gallery Without Walls' mission is to integrate art into the daily lives of local residents and visitors. Gallery Without Walls is an outdoor walking tour featuring sculpture from regionally and internationally acclaimed artists. Sculpture is exhibited on a rotating basis with all pieces available for purchase. 9.2 Gallery Without Walls Committee The Gallery Without Walls Selection Committee shall be composed of seven members, which include one from FOUNDATION's Board of Directors, a minimum of one artist who participated in a previous Gallery Without Walls exhibit, and citizen members. All members, with the exception of the participating artist(s), must reside within the City of Lake Oswego Urban Service Boundary as established in the Lake Oswego Comprehensive Plan, 9.2.1 Process for Selecting Committee Members The members of the Gallery Without Walls Selection Committee shall be recruited and appointed by the Board of Directors of the FOUNDATION by the method outlined in section 2.3. The FOUNDATION's Board of Directors shall select a Chair from among the seven members. The Gallery Without Walls Selection Committee members shall be selected on the basis of their knowledge of and familiarity with the arts and their understanding of the needs of the Lake Oswego community. Each member may serve a maximum of two two-year terms, with no renewal of term. Initial terms shall be staggered so that terms do not expire for all members at the same time. It is advisable to have a minimum of two alternates selected to fill any position that becomes vacant before the expiration of terms. Public notice shall be given in advance of all meetings. Meetings shall be conducted in accordance with the requirements of Oregon Public Meetings Law. 9.2.2 Conflict of Interest No member of the Selection Committee may submit an art proposal for the project. Members of the Selection Committee must follow the Conflict of Interest requirements set forth in section 2.6 above. 9.3 Process for Selecting Artwork for Gallery Without Walls 9.3.1 Artist Solicitation Page 32 - Public Art Guidelines, Exhibit A to Resolution No 07-44 32 Revised July 10, 2007 54 The FOUNDATION shall prepare a "Call For Artists" inviting sculptors to submit portfolios for the Gallery Without Walls exhibit. The Gallery Without Walls Selection Committee shall hold meetings as needed to review each submittal and shall select no less than 15 sculptures for the exhibit. 9.3.2 Artist Application Requirements Artist applications shall include the following: A current resume that includes day/evening/cell phone, fax, email, internet and mailing address. Color prints or CD: Color prints (minimum 5x7) or a CD of examples of sculptor's work need to be included in the portfolio. Pictures and/or CD's will be returned upon request. Proposals for non -existing work: If the work is non -existing, artists are required to submit a details illustration for each entry. Indicate size, color, exterior finish, material and finished composition. Artist's Statement: A statement in 25 words or less that describes an artist's work (inspiration, personal statement) particular to each entry and suitable for publication. 9.3.3 Sculpture Selection Criteria The following criteria shall be used in determining sculptures to include in the exhibit: The sculpture must be a free standing sculpture of high artistic quality. The Selection Committee will "jury" twice; once for general quality of the sculptors' work and secondly on the submitted piece. The sculpture must be a life size work of human scale, and not impede either walking or driving traffic. Each sculpture needs to be able to withstand the elements and normal wear and tear experienced by public art in an outdoor setting and be able to withstand possible pedestrian contact. 9.3.4 Exhibit Parameters Sculptures are to be on loan to the City for a two-year exhibition period. If a sculpture is removed or sold within that two-year timeframe, it is the artist's responsibility to replace the piece with another of the same quality and scale. Page 33 - Public Art Guidelines, Exhibit A to Resolution No 07-44 33 Revised July 10, 2007 55 An honorarium of $750 is provided each artist following installation of their sculpture. All sculptures in the rotating art exhibit must be for sale. The proposed sculpture can be an existing piece, already completed by the sculptor, or a piece specifically made for the exhibit. Each sculptor shall be required to enter into a contract with the City. The FOUNDATION shall coordinate the development of each contract with the City Attorney. If sculptures are to be sited on private property, an agreement must be executed between the City and the owner of the property permitting the installation. The agreement shall be prepared by the FOUNDATION and approved by the City Attorney. During the exhibition period, the City shall maintain insurance, in an amount, and subject to terms, approved by the City Attorney, to cover damages incurred to the sculpture. Contracts shall provide that the artists are responsible for delivering the sculptures to the sites, installing the pieces, and removing the pieces from the sites at the end of the exhibition period. The FOUNDATION may reject work that when completed differs from the original proposal, or does not meet standards of durability. All sites must be approved by the Director of the Park & Recreation Department, the City Manager, the Director of Redevelopment, and City Engineer if on City property or in a public right of way. The City's Maintenance Department may assist with the installation of sculptures, subject to availability and resources. The FOUNDATION, after coordinating with and obtaining the approval of the City, shall install a concrete foundation or reasonable place for installing each sculpture.. The Selection Committee shall ensure that no sculpture is accepted, and that no installation occurs, that would create a safety hazard to persons or property. If needed by the artist, the FOUNDATION shall provide a crane and/or forklift for installation, provided that installation occurs within the installation schedule set forth by the FOUNDATION. All installations must adhere to Americans with Disabilities Act standards, including, but not limited to, right-of-way clearance standards. Page 34 - Public Art Guidelines, Exhibit A to Resolution No 07-44 34 Revised July 10, 2007 56 9.4 Process for Annual Purchase of Artwork from the Gallery Without Walls Exhibit. 9.4.1 Purpose The City Council will annually consider wether an appropriation of funds is to be provided for a purchase of a work of art from the Gallery Without Walls exhibit. Funds may come from the Percent for Art Trust Fund or another identified city source. The process for the annual selection of a work of art from the Gallery Without Walls exhibit shall be administered according to the Percent for Art Guidelines of Section 5, above. In addition, the selection process will be expanded beyond that defined in the Percent for Art Guidelines, by including greater public involvement in selecting the artwork in order to build a sense of citywide concern and ownership of the Gallery Without Walls program. 9.4.2 Operational Procedures Initiation of selection process: In administering the selection process for purchasing artwork from the Gallery Without Walls exhibit, the FOUNDATION shall: Inform the Public Art Committee of the available funding and timeframe within which to select a work of art. Direct the Public Art Committee to form a selection committee to oversee the selection process. The selection committee shall be composed of: i. A representative appointed by the City Council, who will serve as chair of the selection committee. ii. A LORA representative. iii. A project engineer or architect. iv. Two artists. V. A citizen representing community and/or business interests. Approve the Public Art Committee's selection of membership for the selection committee. 9.4.3 The Selection Process The Public Art Committee shall convene the selection committee and define the committee's objectives, which shall include: i. Identifying downtown site(s) for the purchased artwork; Page 35 - Public Art Guidelines, Exhibit A to Resolution No 07-44 35 Revised July 10, 2007 57 ii, Creating a list of up to five sculptures for consideration as possible purchases; and iii. Establishing a process for the public to indicate its preference from among the sculptures on the list. 9.4.4 The Selection Committee process shall proceed as follows: Upon notification of the objectives, the selection committee will review the current Gallery Without Walls sculptures and establish a list of up to five sculptures from which a public process will select one. Downtown site(s) will be identified that will accommodate the selected works. The criteria for establishing the list of selected works and site(s) are to be developed by the selection committee. Following the creation of the selection list and site identification, the committee shall develop a process allowing the public at large to indicate their preference for the final purchase piece. This process may include methods such as opinion surveys in the City's monthly newsletter or the Lake Oswego Review, online voting on the City's website, etc. The committee shall notify the Public Art Committee of the selection made through the public process. 9.4.5 Final approval of selected artwork The Public Art Committee shall present the selection made through the public process to the FOUNDATION for approval. Upon approval, payment shall be made to the artist and arrangements made for relocation of the art to its final location, if necessary, following the Gallery Without Walls exhibition period. 9.4.6 Clarification of Poliev The procedure in this Section 9 is to be used for a single annual purchase of art from the Gallery Without Walls Exhibit (subject to appropriation of funds). Nothing in the procedure shall preclude additional purchases by the city of art from the Gallery Without Walls Exhibit through other processes. Page 36 - Public Art Guidelines, Exhibit A to Resolution No 07-44 36 Revised July 10, 2007 58 TO: Jack D. Hoffman, Mayor Members of the City Council Alex D. McIntyre, City Manager FROM: Robyn Christie, City Recorder SUBJECT: Approval of Minutes DATE: September 9, 2009 ACTION Approve minutes as written. ATTACHMENTS • July 14, 2009, special meeting • July 20, 2009, special meeting Sustainability has been considered as part of this recommendation. Revod by: Allax D IeIntyre Ci Manager 6.3 9-15-09 59 60 �Qf EPRE OS� CITY COUNCIL SPECIAL MEETING MINUTES July 14, 2009 bR-F / Mayor Jack Hoffman called the special City Council meeting to order at 6:03 p.m. on July 14, 2009, in the City Council Chambers, 380 A Avenue. Present: Mayor Hoffman, Councilors Jordan, Hennagin, Moncrieff, Olson, Tierney, and Johnson (6:20). Staff Present:Alex McIntyre, City Manager; David Powell, City Attorney; Robyn Christie, City Recorder; Joel Komarek, LOIS Project Director; Guy Graham, Public Works Director; Brant Williams, Director of Economic and Capital Projects 3. EXECUTIVE SESSION 3.1 Closed Session under authority of ORS 192.660 (2) (d) to conduct deliberations with persons designated to carry on labor negotiations Mayor Hoffman recessed the meeting at 6:04 p.m. to Executive Session pursuant to ORS 192.660 (2) (d) to conduct deliberations with persons designated to carry on labor negotiations. Mr. Powell reviewed the Executive Session parameters. 4. RETURN TO OPEN SESSION Mayor Hoffman reconvened the open session at 6:35 p.m. 5. STUDY SESSION 5.1 Water Systems Development Charges Update Mr. Komarek introduced John Ghilarducci from FCS Group, Redmond, Washington, He explained that following the Council's 2008 goal to update all the utility enterprise funds system development charges (SDCs), staff chose to work on the water SDC first because it had the most recently updated master plan. He indicated that they needed to work from a recent master plan in order to determine the available capacity in the system for the reimbursement fee portion of the SDC, and to identify the capital improvements needed to accommodate growth for the improvement fee portion. He reported that staff's update of the water SDCs had been on a parallel path with the development of the Tigard partnership. When staff finished the SDC analysis before the partnership negotiations, they decided to put the SDCs update on hold. Once the City completed those negotiations in August 2008, staff hired FCS Group to complete the SDCs update work, He indicated that the base documents used in the recently completed technical analysis were the 2001 Water Master Plan Capital Improvements Plan and the 2007 Capital Plan developed as part of the Lake Oswego/Tigard partnership project, He explained that staff needed to hear from Council tonight whether to proceed with the methodology. If so, there were public noticing requirements, including preparing a draft report for public review by interested parties, such as the Homebuiiders' Association. Mr. Ghilarducci gave a PowerPoint presentation. He explained that the SDC statute in Oregon law (ORC 223.297-314) gave a good framework for working on SDCs, including calculation methodology, factors for consideration, and allowed expenditures. He pointed out that SDCs were one-time charges paid at the time of development; they were not the ongoing rates. SDCs were City Council Special Meeting Minutes July 14, 2009 Page 1 of 15 61 solely for capital improvements; they were not for operation expenses. Already developed properties did not pay SDCs upon redevelopment, unless the redevelopment increased demands on the system. SDCs included an existing buy -in component and a future growth component. SDCs represented a share of the system capacity, as opposed to the meter serving an individual building. He explained how they calculated the reimbursement fee (existing buy -in on unused capacity in the system), and the improvement fee (share in the costs of future growth). He indicated that the share of system capacity needed to serve each unit of growth (the SDC) existed in both the existing system and the future system. He indicated to Councilor Tierney that the timeframe for the future growth was unspecified. He said that they tried to stretch it out as far out as possible in order to get as comprehensive a project list as possible so that no one got a free ride. He concurred that doing so ran the risk of not building some capital projects either on schedule or at all. He said that the law required a jurisdiction to give a developer a paper SDC credit (for future SDCs) if he constructed a project on the SDC project list and oversized it in order to provide system capacity beyond what he/she needed for his/her project. He reviewed key assumptions in the analysis. These included the build out demand forecast from the Joint Water Supply System analysis, project costs in 2009 dollars, and not including the financing or interest costs for projects likely to be debt financed. He indicated to Councilor Hennagin that they did not include those costs because they had no certainty about the amount of debt that the City would issue and the associated costs. Essentially, since ratepayers paid those costs, if they included them in the SDC, they would be double - charging for those costs. He said that they did a calculation on the hypothetical interest for comparison purposes; it added about $3,000 to the charge. He noted that they calculated the charges per meter equivalent, using a 3/4 by 3/4 -inch meter size as the standard. He explained to Councilor Hennagin that they used the meter size as a surrogate for maximum water flow. They based the factors they used on the maximum continuous flow through the meter sizes. Mayor Hoffman pointed out that the City assessed the SDC at the time staff pulled the building permits, which was before they knew if the applicant would be a high volume or low volume user. Mr. Ghilarducci mentioned another approach of using fixture units. However, that required knowing the number of fixtures in each bathroom, which determined meter size anyway. He confirmed to Councilor Hennagin that every house on a 3/4 by 3/4 -inch meter paid the same SDC for water, regardless of whether it had one bathroom or five bathrooms. He discussed the recommendations from a Metro report, Promoting Vibrant Communities with SDCs, which they incorporated into the methodology. He mentioned the recommendation to do full cost recovery, which they addressed through the meter size approach and varying the charge by the meter size. He noted the recommendation to provide discounts, or SDC relief, only when there was a cost -based technical reason to do so, such as a developer doing something that reduced his/her potential water demand, as opposed to providing discounts for policy -based reasons. He confirmed to Councilor Moncrieff that it was not a uniform SDC, but rather varied by the size of the meter, Mayor Hoffman indicated that Metro was now suggesting that jurisdictions could have policies to give SDC discounts for developments that would use less water, such as a fourplex or an eightplex with less yard area than a single-family house. He mentioned another policy issue for discussion: transporting the wastewater. Mr. Ghilarducci commented that one reason, from a philosophic standpoint, that they did not delve too far into that policy direction was that the intent behind the SDC was developers City Council Special Meeting Minutes Page 2 of 15 July 14, 2009 62 purchasing a share capacity. Therefore, they were interested in the maximum that they could get through the meter, regardless of the development type. Those developments that used less water would pay less in their water rates. He noted that developments with structural elements that reduced water demand could install a smaller meter and pay a lower charge based on that smaller meter and lower estimated usage. He discussed the fee calculation methodology. He noted the projected build out of almost 6,500 meter equivalents. He mentioned that the current system had roughly 10% in unused capacity (a cost basis of $6.1 million out of a $62 million system). The calculation yielded a reimbursement fee of $947 per meter equivalent. He discussed that the improvement fee calculation. He noted that $32.7 million out of the $78 million worth of projects on the project list were for increasing capacity to accommodate growth. The calculation yielded an improvement fee of $5,041. He discussed the administrative cost recovery factor in the Oregon SDC statute, which allowed the City to recoup its costs for administering the program. He indicated that the total SDC came to $6,404 per meter equivalent. He presented the schedule for applying the SDC based on meter sizes. He reviewed the factors that they included in both the reimbursement fee and improvement fee cost bases. He confirmed to Councilor Jordan that the SDC calculation used only the cost portion allocated to Lake Oswego out of the Tigard partnership projects. He reviewed for Councilor Olson how they estimated the 6,500 meter equivalents at build out, using data from the Corolla Report. He confirmed that they used the 6,490 number as the divider in both fee calculations He explained to Councilor Hennagin that the reason why they did not use 100% of the allocated cost for the Tigard partnership projects in the calculation was because the 10% unused capacity was a weighted average. Some system components had more capacity than other system components. Since the costs for improving the system components that had more than 10% unused capacity would not be related to growth, and not eligible for SDCs, they used a weighted average. Mr. Komarek explained to the Council that Lake Oswego's share of the Tigard partnership projects came to $65 million. However, staff could use only $31 million of that cost allocation in the SDC calculations because of existing deficiencies in Lake Oswego's system. He indicated to Mayor Hoffman that even if Lake Oswego had zero growth, it would still have to improve its system because it was an aging system. He clarified that the $65 million was for both the existing 15,000 meter equivalents and the estimated 6,500 new meter equivalents. He indicated to the Mayor that the existing ratepayers received an improved water system with operating components with a longer operating horizon. Councilor Johnson described the situation as obtaining an improved water system that would last longer, and have interconnectedness with Tigard. She pointed out that if conservation measures succeeded in reducing the amount of water used by Lake Oswego residents, then the City could sell that excess water to Tigard and lower Lake Oswego's water rates. She also mentioned providing for emergencies and increasing capacity. Mayor Hoffman indicated to Mr. Ghilarducci that he was thinking of the philosophical debate surrounding growth being the impetus to build projects to address system deficiencies, which the community would otherwise simply live with and not build the improvements. Mr. Ghilarducci explained that state law tightened up recently to clarify that jurisdictions could only include project costs in SDCs that would benefit future users; portions of projects that would benefit the existing customer could not be in the improvement fee. He indicated that portions of these projects would serve existing users, and therefore, they could not allocate 100% of those project costs to growth. City Council Special Meeting Minutes Page 3 of 15 July 14, 2009 63 Councilor Tierney commented that he saw an issue of semantics with the way the report listed projects and how he understood it. The water partnership projects were not merely capacity improvement projects for the future; they also would improve the existing system to correct existing deficiencies. Councilor Moncrieff commented that the Tigard water partnership not only increased system capacity but it also built redundancy into the system in case of pipes breaking under Hwy 43 in a seismic event. She pointed out that they needed to replace this old infrastructure in the same way as they needed to replace the sewer and roads. Therefore, it made sense that new development would not bear the full burden of building new infrastructure. Councilor Jordan observed that as the Tigard water project moved forward, the community would ask the same questions as the Council members. She spoke of staff identifying how the water partnership projects would benefit the local citizenry, as well as where the additional capacity would go. She referenced the staff comment that redevelopment would not have to pay SDCs unless it increased demand on the system. She noted that the City would only know of the increased demand if the redevelopment increased the meter size. Mr. Komarek explained that the SDC chart showed a 5/8 by 3/4 -inch meter paying the same SDC as a 3/4 by 3/4 inch meter because the 3/4 -inch meter was what in to the house. If a redeveloped home needed a 1 -inch meter instead of a 3/4 -inch meter, then the developer paid an incremental SDC, which, in that case, would be the difference between the 3/4 -inch and the 1 -inch meter. If the developer made no change in the meter size, then he/she paid no SDC. Councilor Jordan asked if the City ever changed the meter size. Mr. Komarek indicated that the City replaced old meters that did not register properly, but not the meter size. Mr. Komarek indicated to Councilor Hennagin that there were many 1 -inch meters in service at single-family residential homes. Councilor Olson referenced Councilor Tierney and Hennagin's comments. She recalled hearing at the City Council discussions of the Tigard water agreement that the City needed many of the improvements listed for the joint water project anyway because of age or capacity. The partnership was actually a way to decrease the City's costs to make the improvements, as well as to provide additional capacity. Mr. Ghilarducci reviewed the alternatives and area SDC comparables. He noted that some cities were phasing in SDCs over time or simply not adopting the full charge. He reviewed the key recommendations. He explained that SDC law required a 90 -day notice in advance of a public hearing to adopt a new SDC and new SDC methodology; the SDC report had to be available for the last 60 days of that period. Upon Council direction, staff would start this clock. He recommended modifying the code to allow indexing the fee to a construction cost inflator on an annual basis in order to keep pace with inflation. He proposed refining the SDC credit language to limit the cash reimbursement portion of the SDC credit; otherwise, the City had no money with which to build the projects. Instead, of giving a cash reimbursement up front to the developer for SDC credit earned for oversizing a project on the list, staff would apply the SDC credit only to SDCs charged as the development built out. He gave an illustrative example. The City required a developer to build a $1 million pump station as a condition of development, which would provide more capacity than the development needed. The City then issued an SDC credit of $500,000 to the developer. As the developer built out the development, the City would apply the credit to the SDCs charged for the rest of the development. Potentially the developer might not use all the credit. The City could make that remaining credit available for the developer's future developments or, it could cash reimburse the remainder. He indicated to Mayor Hoffman that SDC credits could be transferable, but if they were too transferable, then the City might never get any cash in the door. City Council Special Meeting Minutes Page 4 of 15 July 14, 2009 64 He indicated to Councilor Olson that other jurisdictions used a wide variety of methods to handle SDC credits. He explained that their recommendation exceeded the minimum credit required by SDC law. He emphasized that the City did not have to pay out cash for the credits. Therefore, they were recommending limiting the cash reimbursement. Councilor Olson asked if the City wanted to encourage development, why the staff was recommending this change in this economy. Mr. Ghilarducci explained that they were trying to strike a balance between offering cash reimbursement and protecting the City's SDC fund balance. He indicated that the City needed cash in order to build these projects in its preferred priority order, as opposed to building them at the whim of a developer. Mr. Komarek indicated to Councilor Olson that the City was not generating much SDC revenue. Councilor Johnson asked, considering the realistic types of development likely to occur in Lake Oswego, if the City could expect developers to build these large dollar projects. Mr. Komarek said no. He indicated that City SDC credits would range in the tens of thousands of dollars or smaller, and not in the hundreds of thousands of dollars. Councilor Hennagin asked how frequently the City has given cash reimbursements to developers. Mr. Komarek said that staff used to budget an amount annually out of SDC funds for up front cash reimbursements for oversizing. Mr. Komarek confirmed to Councilor Moncrieff that if a developer did not want to oversize a pipe, and only installed one to serve his/her development, then the City had to come back in later and put in a larger pipe. He indicated that that was the City usually made oversizing a condition of development. He indicated to Mayor Hoffman that the City typically used zones of benefit in situations where a developer extended a City sewer line over undeveloped developable land in order to reach his/her development. Those coming later to the developable land after it developed and connecting to that sewer line reimbursed the developer. Mr. Komarek indicated to Councilor Hennagin that there were several alternatives identified in the report for Council to consider. He noted that the Council could decide not to charge the full amount, and set a lower specific amount. He said that as long as the Council did not change the methodology, it was free to do whatever it wanted to in setting a fee. Mr. McIntyre observed that if the Council felt comfortable tonight giving staff direction, it could do so, or it could study the issue more. He indicated that once the Council gave the go ahead, staff would start the 90 -day notification clock, Mr. Komarek noted that they could hold additional study sessions within those 90 days. Mayor Hoffman commented that he had difficulty making a decision based on a PowerPoint presentation. He indicated that he had not received the material far enough in advance, and that he would like to know more about the issue. He mentioned that other jurisdictions in the region were adopting full cost SDCs, but not without a lot of discussion. Councilor Johnson spoke in support of waiting a few more months to start the 90 -day clock until after the summer and the already expected rate increases. She noted that the City was sending out a lot of information already regarding water, water conservation, and the water agreement. She indicated that she did not want to muddle everything together. Mr. Ghilarducci indicated to Councilor Olson that the next steps led to incorporating the SDCs into the December Master Fee resolution. He reviewed the next steps, including meeting with the Homebuilders' Association during the 90 -day clock to review the methodology. He commented that while the Homebuilders have generally supported the methodology in the past, they also usually asked for implementation relief. Mayor Hoffman commented that typically the City vetted an SDC methodology with the Homebuilders' Association so that the public hearing became pro forma. He spoke of looking City Council Special Meeting Minutes Page 5 of 15 July 14, 2009 65 beyond the normal way of doing things, and investigating a creative methodology for calculating the SDC. He referenced the report's comments regarding policy versus technical, noting that this SDC methodology was technical, the Council has not discussed the policy side. He asked for more discussion and finding out what other jurisdictions were doing. He commented that they could get creative on transportation, but he did not know how creative they could get on drinking water. Councilor Hennagin commented that while he too would like to hear other possible methodologies, he saw no reason not to start the clock tonight and hold the discussions while the clock was running. Councilor Olson pointed out that the Council would not be meeting for 30 days of those 90 days. Councilor Jordan indicated that she too would be willing to look at something new and creative for water SDCs, but she did not think that the methodology was the biggest factor. She discussed her concern about the best way to phase the SDC in, given the current economy and when things might turn around. She suggested a three-step process to phase in the SDC. She spoke of moving into the recovery with less impact than the full SDC all at once would have. She questioned whether there would be many SDCs assessed in Lake Oswego, given that there were more opportunities to redevelop existing properties than there were to build new subdivisions. She spoke to staying on top of SDCs in order to avoid the huge jumps, including incorporating a construction index fee increase into the SDC. However, she would not do even that until three or four years from now when the economy improved. She pointed out that they wanted to encourage development in Lake Oswego, and not have developers going some place else because SDCs were so high in Lake Oswego. Mr. Komarek mentioned that the City already used an index but it has not codified it. He indicated that staff has used only the index to increase the fee because they have not done the studies that would support an increase beyond the index. Councilor Johnson clarified that she wanted to hold off on the discussion. She had not been speaking to when the City would implement the fees. Councilor Tierney indicated his support for holding off on making a decision until he felt better educated on the subject. He asked for a copy of the report and/or the PowerPoint presentation. He asked for direction on where Council members could find information and discussions on the policy implications. He held that the burden fell on those using the system - if the City builds the system for someone's use, then that someone needed to ante up. He indicated that he did not know what the unintended consequences might be. He suggested setting a date specific for the next discussion, with Council members doing their homework in getting their questions together. Mayor Hoffman asked Ms. Christie to fist the League of Oregon City's publications on SDCs in the next Digest. Councilor Jordan recalled that Metro also published a document on SDCs. Councilor Olson concurred with Councilor Jordan regarding the phasing in and better timing. She agreed with Councilor Tierney on wanting more information on the Water Master Plan, its capital improvements, and information referenced in the Corolla Report, which she believed she had at home already. She indicated that if the Council could get this all done in 90 days, she was fine with triggering the clock. Councilor Moncrieff said that while she was comfortable with the methodology as presented, she supported holding off on the discussion in order to avoid confusion with the rate increase. She commented that the most important discussion that the Council would have would be how to phase in the new SDCs. City Council Special Meeting Minutes Page 6 of 15 July 14, 2009 66 Mr. Powell pointed out that if the Council triggered the clock on this methodology, and then changed the methodology, then it would need to trigger a new 90 -day clock. Mr. Ghilarducci concurred. Mr. McIntyre pointed out that triggering the 90 -day clock did not mean that the Council had to adopt the methodology in 90 days. He observed that as the end of the year drew near, and the Council considered other fee adjustments, the merits of the SDC increases, even based on a sound methodology, might get lost in the rush. He speculated that having some fees ready to go in advance of the Master Fees and Charges Schedule adoption in early December might make that process go somewhat easier. Mr. Komarek indicated to Councilor Hennagin that the technical analysis staff used for this methodology was essentially the same technical analysis used by CH2M Hill in 1992. He described how any technically based methodology would be virtually the same. Mr. Ghilarducci reiterated that Oregon SDC law specifically stated what jurisdictions had to consider in calculating SDCs. He mentioned that various lawsuits have clarified that law. He commented that there were other methods available besides a capacity -based approach, but those usually resulted in a lower SDC. Councilor Tierney emphasized that the policy issue was that any improvements made by the City needed to be paid for by someone, either by ratepayers, SDCs, or a combination of the two. Councilor Hennagin expressed his reluctance to change a methodology that the City has used for almost 20 years. He spoke of possibly initiating it on a step-by-step basis. Mayor Hoffman stated his concern about the methodology, and about doing things the old way. He read an excerpt from p. 31 of the document provided to Council at the meeting. This discussed green issues of sustainability with respect to SDCs, specifically unbundling an SDC into multiple components; it used a water SDC as an example. He questioned why they could not think outside of the box. Councilor Jordan argued that granting SDC credits to a developer, who demonstrated that the green technology he/she used in his/her development meant that he/she would not need to increase the size of the pipe, did not change the overall methodology for calculating general SDC charges. Mayor Hoffman held that it did. He indicated that it would have been helpful if staff had considered sustainability as part of the methodology, and either analyzed it or rejected it. He concurred that the proposed methodology has worked for the City for the past 20 years. He mentioned that it has passed muster with the Homebuilders Association, Mr. Komarek commented that something the City has not yet done in its Code was to offer incentives to developers to use green, sustainable elements, such as giving SDC credits for using high -efficiency toilets or incorporating low -use irrigation. He mentioned that the system suggested by the Mayor sounded like a nightmare to administer. He indicated to Councilor Tierney that while the City had to expand the system because there would not be zero growth in demand, incorporating green technologies into the water system pushed way off into the future the next increment of supply. Councilor Tierney commented that he found the staff estimates optimistic. Councilor Johnson moved to start the 90 -day clock on the methodology. Councilor Moncrieff seconded the motion. No action as taken on the motion. Councilor Johnson commented that she would not be ready in 90 days to have a public hearing, but she wanted to get the process going. She observed that if the Mayor wanted a new methodology, they could then restart the clock. Councilor Tierney questioned why they should start the clock if the Council was thinking of changing the methodology. Councilor Hennagin pointed out that allowing credits was not changing the methodology. City Council Special Meeting Minutes Page 7 of 15 July 14, 2009 67 Councilor Tierney argued for waiting 30 to 60 days to start the 90 -day clock in order to allow those Council members who wanted to gather more information and ask more questions to do so. He reiterated his suggestion to put a date specific on making a decision, but not to make the decision tonight. Councilor Jordan commented that starting the clock brought the Homebuilders Association into the process; that organization might have suggestions or timely information that the Council could consider if the process took longer than 90 days. Mayor Hoffman noted that the City was not likely to see much building for the next 24 to 36 months. He asked why staff brought the SDC forward now. Mr. Komarek indicated that revising the SDCs was a Council goal, and that the analysis clearly showed that the ratepayers were subsidizing development. He clarified to the Mayor that the City was seeing some development at this time. Councilor Moncrieff spoke to the importance of doing the planning now in order to have the SDCs ready when development did start back up. Councilor Jordan spoke of looking at the projects list in order to see what some tradeoffs might be that would reduce the timeline for doing those projects. Mayor Hoffman indicated that he was okay with Councilor Johnson's motion. He asked staff to contact Dorothy Atwood of the Sustainability Action Board and Metro regarding this matter. Councilor Hennagin discussed his concern that part of Mr. Komarek's memo seemed counterintuitive to him. He noted that Mr. Komarek said that staff selected the water SDC to do first because it had the most recently updated master plan He indicated that he would have thought that they would have gone to the oldest plan first in order to bring it up to current standards. He questioned whether the City could have saved on consultant fees if staff had waited until after the Council signed the Tigard agreement to bring in the consultant to work on the water fees. Mr. Komarek indicated that it had been a timing issue. Staff had anticipated that the negotiations with Tigard would end around the same time as the study, and they did not. He explained that the SDC methodology needed the more recent information on system capacity and future growth needs gained through an updated master plan. Staff had that information only for the recently updated water and surface water master plan; they decided to move ahead with the water SDCs. Mayor Hoffman referenced p.21 in the report, which listed model approaches to impact -based SDC assessments. He noted that other jurisdictions varied residential fees by a variety of factors, including lot size, lot density, and location. He suggested looking at factoring in those considerations as a way of encouraging development in Foothills, the downtown, or areas closer to West Linn. He reiterated the need to include sustainability considerations in the methodology. The Council discussed what to do next. Several Council members suggested discussing methodologies in September. The Mayor mentioned that he wanted staff to come back with a different methodology. Councilor Johnson agreed with waiting if they were going to discuss methodology again. Mr. Komarek noted that the broader policy discussion that Council was talking about was beyond the scope of the consultant's work. Councilor Jordan commented that the Council could put this methodology in place and still have a longer-term discussion of methodology for the next update. She said that she was not willing to change the methodology simply because other cities did things differently. Councilor Moncrieff commented that she was not happy that current ratepayers subsidized development, as the SDCs should pay for development. She spoke of updating the SDCs in a timely manner. City Council Special Meeting Minutes Page 8 of 15 July 14, 2009 68 Mayor Hoffman noted that the Council could enact the SDCs in March or April, instead of in December. He acknowledged staff's point that the City collected less money from development with a later enactment date. Councilor Olson observed that even with taking the extra time that she and Councilor Tierney wanted to gather more information, the Council still might get the SDCs done by December. She concurred with Mayor Hoffman that they did not have to start the 90 -day clock. Councilor Jordan summarized the discussion as two Councilors wanted a more in-depth understanding of the proposed methodology, and the Mayor wanted to consider other types of methodologies. Councilor Tierney reiterated that he thought it incumbent upon the Council members to do their homework and to make a decision. He supported setting a date specific for making the decision. He clarified that he was not asking for additional expenditure of budget money but simply more time to consider the points raised during the discussion and additional information on SDCs. Mr. McIntyre suggested that the Council revisit the topic in September and discuss triggering the 90 -day clock at that time. Staff would put all the requested information together over the next two months and get it to the Council. If the Council decided to go with a new methodology, staff would return in the spring. 5.2 Street Vacations — Overview of statutes, past practices and policies Mr. Graham gave a PowerPoint presentation discussing the basics of street vacations. He explained that in a street vacation, the governing body gave up the public's interest to the use of the right-of-way (ORS 271.080 to 180). They occurred only for those areas that the City did not need today or anticipated not needing in the future. Typically, the adjacent property owners split the vacation area 50/50. He presented several examples of past street vacations in Lake Oswego, illustrating narrowing a right-of-way, adjusting the right-of-way to accommodate a small building encroachment from 100 years ago, and vacating to enhance redevelopment opportunities. He mentioned additional reasons of safety and topography. He reviewed other considerations that made vacations attractive, including lower City maintenance costs, reduced liability risk, and returning untaxable public property to taxable private property status. Councilor Tierney asked how the City handled sewer easements and aerial utilities. Mr. Graham indicated that the City might vacate a right-of-way with overhead utilities or a sewer line as a public street but retain an access easement to allow the utility company and/or City crews to maintain the lines and equipment. Mr. Powell discussed the policy aspects of street vacations. He recalled the Chandler Street vacation from a couple of years ago, which created great controversy. It turned out that returning that square footage to the adjacent property owners made their lots large enough for partitions, which could increase the neighborhood density. He pointed out that it was not appropriate to keep a right-of-way for the purpose of limiting development, as the intent of public right-of-way was for future transportation and utility purposes. He indicated that the City Manager at the time had urged adopting a stricter street vacation policy to require stronger justifications for street vacations. The City Manager's reasons included that the City did not really know whether it would not need the right-of-way in the future and the high cost of re -acquiring right-of-way. He commented that the considerations mentioned by Mr. Graham remained true, but there were different policy nuances for each Council and City Administration to consider philosophically. He noted the sentence in the memo that described street vacations as a failsafe for the Council, since they were in the public interest. He pointed out that there could be circumstances not previously City Council Special Meeting Minutes Page 9 of 15 July 14, 2009 69 thought of where it did not make sense for the City to keep a right-of-way, and therefore, it should vacate that right-of-way. Mr. Graham reassured the Council that Public Works carefully evaluated all street vacation requests against the master plans and future facilities; staff would not give up any right-of-way that the City would need one day. Mayor Hoffman recessed the meeting for a break at 8:18 p.m. He reconvened the meeting at 8:25 p.m. 5.3 Planning Process for Foothills Redevelopment Mayor Hoffman referenced two reports: Lake Oswego Foothills Design District (2002) and Foothills District Refinement Plan (June 2005, ODOT/TGM grant). He mentioned that the chip plant left in 2002 and the City then acquired Foothills Park. He stated his opinion that the time was appropriate to move forward now on the Foothills project, given the lull in construction and the significant amount of time needed to do the planning. He spoke of the streetcar supporting the project, the opportunity to continue the downtown's connection to the river, and a redeveloped tax base. He discussed the importance of a public/private partnership in this redevelopment project, noting that currently the property owners were motivated to do something. He stated that he was not interested in paying for pians that sat on shelves, but rather for something that benefited the City. He explained that this agenda item was for discussing a framework plan, which was a master plan as opposed to a vision plan. He indicated that a framework plan went beyond a master plan in that it provided for financing, discussed infrastructure, SDCs, and land use decisions, and guided the City Councils and landowners (present and future), and the community process. He observed that it was a complicated project and process that has been going on for nine years now. Mr. Williams introduced Dike Dame, Christie White, and Matt Brown from Williams, Dame & White, who represented most of the Foothills industrial property owners. He noted that Foothills was a 2009 Council goal, which included consideration of an agreement with the Foothills property owners to formalize responsibilities and funding for the development of a framework plan and an urban renewal plan for Foothills. He concurred with the Mayor that there was substantial potential for redevelopment in Foothills. He mentioned that while the conversation over the past several years has focused on the 17 acres of light industrial area next to the 13 -acre BES plant, this pian would look at the broader 120 -acre area of Foothills He indicated on a map the composition of the 120 -acre area, which included the Oswego Pointe development and the Albertson's shopping center. He noted that they would not include the owner -occupied units of the Oswego Pointe condominiums in the redevelopment discussion. He presented the 13 significant opportunities available to the City with the Foothills area that he had identified (pp. 14-15). These included economic benefits (redevelopment value of half a billion dollars plus), providing new housing for new residents and increasing the variety of housing types for existing residents, and generating a larger critical mass to support downtown and State Street businesses. He mentioned minimizing the need for existing neighborhoods and the Stafford Basin to accommodate growth by accommodating that growth in the Foothills area. The City could have more productive conversations with Metro and more say in the development of the Stafford Basin area. He spoke of supporting the streetcar extension to Lake Oswego, providing jobs, and providing retail opportunities to support the Foothills development and to complement existing downtown businesses. He mentioned adding parks and multi -use trails for increased connectivity between the parks in the area, enhancing bike and pedestrian access to the future North-South Greenway trail connecting Portland to Oregon City, and improving the character and operation of State Street. City Council Special Meeting Minutes Page 10 of 15 July 14, 2009 70 He spoke of looking at reconfiguring the Tyron Creek Wastewater Treatment Plant to minimize the impacts to potential residents and to upgrade the facilities for longer-term sustainability. He concurred with the Mayor that the timing was right to plan and to look at the future development of Foothills now. He acknowledged the work down in the past by the City and the property owners. He noted that any plans for the properties were on hold until the City and the property owners figured out jointly what could be done with the area. Mr. Dame mentioned that his partner was Homer Williams. He indicated that Williams & Dame Development developed neighborhoods, and not simply buildings. He recalled that during the development of the South Waterfront, his mantra had been "No OHSU, no tram, no deal." He explained that he saw the streetcar and Foothills in the same way; without the streetcar, nothing would happen in Foothills. He agreed that the time to plan the Foothills neighborhood was now because the streetcar would come. He mentioned hearing the Secretary of Transportation speak of considering density as a criterion for spending government money to expand mass transit; with Foothills, they had an opportunity to create density. He reviewed his credentials and 40 plus years of experience in the development business. He mentioned public/private partnership projects on which he has worked, including the Portland South Waterfront, the Portland Pearl District, and the West Bend Traffic Consortium. He spoke of their work in building new high-rise condominiums in downtown Los Angeles and introducing the City of Los Angeles to the concept of street landscaping. He acknowledged that the company worked to make a profit, but indicated that they approached these projects from the standpoint of what was the public benefit, as these were not one-sided transactions. He spoke of making the agreement fair to both sides. Ms. White reviewed her credentials and experience as a land use attorney for 14 years. She indicated that she has worked with Williams & Dame for over 10 years in setting up strategic partnerships and planning processes from Los Angeles to Washington, D.C. She mentioned working on projects such as Portland's five -block Brewery Block project, the expansion of the University of Portland down to the waterfront, and representing OHSU in the master planning of Markham Hill and their strategic decision to move down to the South Waterfront. Mr. Brown reviewed his credentials and experience as a landscape architect interested in urban planning and design issues. He indicated that he has sat on every side of the table in these kinds of partnerships, having served as a consultant to the City of Portland and working with Brant Williams for a number of years, and having worked in the private development realm. He noted his early work in small cities in the southeastern United States and later work in Portland (Capital Highway, Hawthorne Blvd., South Waterfront). He indicated that their core responsibilities have focused on various aspects of the development project, from managing the public process and engaging the community to become invested in the project outcome, to managing and directing the consultant team, to developing partnerships fair to both sides and clear on what was needed to make the deal work. He spoke of two lessons he has learned: it takes a lot of time to get things done, and it was important to build community support for the plans, given their lengthy nature. He gave a Power Point presentation, starting with a photo of Luscher Park, which indicated to him the investment and quality of work that the City of Lake Oswego has already made in its community. He described the various elements they considered in developing the Pearl District, noting that the key was the partnership in the public planning process that moved the project forward. He reviewed their work at South Waterfront, in which they built a neighborhood instead of simply a series of vertical buildings in the area. He discussed their work in Los Angeles in building a neighborhood and creating the pedestrian streetscape necessary to humanize the development, while also adding in sustainable elements. City Council Special Meeting Minutes Page 11 of 15 July 14, 2009 71 He spoke of these as examples of the creativity and other elements needed at the table to build successful projects. He referenced the booklet the company put together to illustrate planning concepts and principles that they thought would be important in moving development forward in Foothills. He emphasized the importance of connections to this project, connections to Portland, to downtown Lake Oswego, and to nearby parks and neighborhoods. He noted that the City already had many infrastructure pieces in place, such as downtown redevelopment and Foothills Park, which they could build off of. He discussed what needed to happen to make Foothills successful. These included streetcar, downtown, and neighborhood connections, authenticity in maintaining the community's values within the environmental context of the development area, high quality design, open spaces, sustainable design that took advantage of the grade change, housing diversity, a complementary mix of uses, and streetscape creating a sense of place in the neighborhood. He spoke of the importance of public engagement in achieving the best product possible. COUNCIL QUESTIONS Councilor Tierney asked what the team did not like about Foothills. Ms. White discussed the challenges with the site. These included the district's location within the floodplain and the impact of the wastewater treatment facility and its location on the marketability of the district. Mr. Brown mentioned additional challenges of transportation access, infrastructure, and topography. He said that none of these challenges were insurmountable. Councilor Johnson asked if the team has considered `ecodistricts.' Mr. Brown indicated that while he was not familiar with that specific term, they intended to apply for a LEED ND designation for the neighborhood. He described the elements of the sustainable approach that they would take to achieve that designation, including looking at the total life cycle costs of infrastructure. Ms. White clarified that LEED ND was LEED certification for an entire neighborhood development, and not simply the buildings within the development. At Councilor Hennagin's request, Mr. Williams reviewed the staff's objectives for the evening (p.16). He asked the Council for direction to formalize an agreement between the City and Williams, Dame & White to move forward on the framework plan. He referenced the team's discussion of the challenges and elements that needed addressing in order to move forward with this project. He discussed the list he provided of what they needed to include in the framework plan (p. 15), including development type, scale and design, and integration of the streetcar. Councilor Hennagin discussed his concern regarding the suggested district boundaries in light of his extensive involvement for 22 years with bringing the streetcar to Lake Oswego. He indicated that a main concern during the discussions of the streetcar alignment has been the need for park and ride parking wherever the streetcar station ended up in the downtown. He identified an extra half block, not included within the boundaries as drawn, which earlier discussions had viewed as an appropriate location for a parking structure. He pointed out that given the grade change at that location, they could build a multilevel parking structure with the streetcar coming in underground to a basement station in the parking structure. He spoke of considering including this area within the planning area. He confirmed that the half block was on Leonard Street and would butt up against the commercial area up on the hill. Mr. Williams continued his review of the comprehensive list of the elements needed in the framework plan (p.15). He noted that each element was significant. He commented that the costs associated with moving forward with this work were directly related to the amount of work that needed to be done. He discussed the process, mentioning his past experience in working with Mr. Brown. He commented that Mr. Brown had done excellent work on other projects in involving the community and considering it through all aspects of the project. He pointed out that the public engagement structure would include a citizens advisory committee for the framework plan and an oversight City Council Special Meeting Minutes Page 12 of 15 July 14, 2009 72 committee of City officials and community representatives to insure that the plan met the City's visions and goals and to monitor the financial aspects. He spoke of a staff project advisory group to insure that the plan covered all the various different technical aspects. He spoke of making sure that the completed project worked for the City in the long-term. He noted that most of the City's Boards and Commissions would also be interested in weighing in on the project. He spoke of the importance of a strong public/private partnership working together and going down the same path in order to achieve the project. He commented that a partnership was the City's best opportunity to make something work in Foothills. He mentioned negotiating a partnership agreement, once the Council gave the go ahead, and returning to Council for review and approval in September. He indicated that the agreement would have many `off ramps,' providing for the flexibility to go in alternate directions, should fatal flaws or too great of costs show up. In addition, the agreement would have milestones. He discussed funding and financing. He observed that the City would most likely need an urban renewal district to implement some of the necessary significant public improvements. He spoke of other funding sources, such as system development charges and local improvement districts. He indicated that staff would look into developing an urban renewal plan, and return to Council to discuss what that process would look like. He said that estimated costs at this time were in the $1.2 million to $1.5 million to do the framework plan and implementation aspects of the urban renewal plan. He indicated that the framework plan involved mostly technical consultants' work. He noted the Williams, Dame & White fees for project management and its expertise in making the development happen. He indicated that staff would return to Council with a funding strategy. He speculated that the City would pay for all the technical expertise elements, while the property owners would fund the majority of the Williams, Dame & White fee, He mentioned the possibility of the City advancing the property owners the money to pay the consultant fee, which the property owners would reimburse after the framework plan got underway. Mr. Williams indicated to Councilor Jordan that he expected the framework plan to take twelve months, followed by six months for the implementation strategies associated with the plan. Councilor Hennagin asked about including attainable housing in the development. Ms. White indicated that they would study the community and its needs in order to reflect the community's demographics in the development. She commented that considering attainable housing was the socially right thing to do. In addition, selling in multiple markets simultaneously was an economically strong position. She spoke of seeing a good market in Lake Oswego for those wanting to downsize and age in place and for young families not able to afford other housing in Lake Oswego. At Councilor Tierney's request, Mr. Dame discussed the property owners' role and position in the partnership. He commented that he found it interesting that six property owners in the area had stuck together for the past five years and recently formed a LLC, in which each had a capital account on a percentage basis of the total. He said that this partnership group went through a selection process and picked Williams, Dame & White as the LLC managers and representatives to the City. Mr. Brown indicated to Councilor Olson that while they did not have any specific ideas about preliminary estimates on the density in Foothills, they have been discussing some questions. These included what was the appropriate density to generate the kind of activity desired in the area, and how to take advantage of the topography. He observed that this was probably the best place in Lake Oswego to build a building above three or four stories with the least amount of impact. City Council Special Meeting Minutes Page 13 of 15 July 14, 2009 73 He mentioned that some parts of the district might have a six -story average, which could be 80 to 100 units per acre. However, the density would depend on how the planning process proceeded and the community input. He indicated that he did not see that as the average over the entire 120 acres, as some areas would be denser than other areas. He mentioned already hearing loud and clear from the Old Town neighborhood that the residents wanted the character of their neighborhood respected with a stepping down of the development to meet the scale of the neighborhood as it met the edge of the neighborhood. Mayor Hoffman pointed out that the LLC represented the 17 acres. However, given that Oswego Pointe might not redevelop for 40 years, the framework plan would stretch out for a long time. He mentioned the expectation that the density would gradually increase depending on the market. Councilor Jordan asked what was the appropriate ratio for retail space versus commercial (office and service) and residential. She noted that they were discussing adding density to help support the downtown, while also discussing adding more commercial opportunities; the questions became how much residential density did they need to support the retail, and how did they find the balance. She expressed her hope that the staff's report would include a rationale for why planners liked to say retail on the first floor and residential above. She commented that they could not build everything like that or they would end up with many empty storefronts. Mr. Dame concurred. He pointed out that on the 40,000 square feet of a typical block in the Pearl District, 120 units and 8,000 to 10,000 square feet of retail were built. He commented that doing something similar in Lake Oswego would not make economic sense because of the cost of building the parking. He said that parking drove the financing for projects. He explained that they started figuring out whether a building worked by first figuring out the parking, and then designing the building from the inside out. He mentioned that he thought the Foothills area would see the lower end of density estimates. Councilor Hennagin asked whether one of the major property owners in the Foothills area not joining the LLC would create a problem. Mr. Dame recalled that the major property owners in the urban renewal district at South Waterfront did not join either, and so they built around those properties. He indicated that the reality of the marketplace was that some people would join, some would not, and some would be latecomers who benefited from the efforts of the early starters. Councilor Tierney moved to direct staff to negotiate and develop a draft agreement with Williams, Dame & White for conducting the framework plan process for the redevelopment of the Foothills area, and for developing a process for determining how an urban renewal district could be used to finance the needed improvements in the district. Councilor Johnson seconded the motion. A voice vote was taken, and the motionap ssed with Mayor Hoffman, Councilors Jordan, Hennagin, Moncrieff, Olson, Tierney, and Johnson voting `aye.' [7-0] 5.4 Upcoming Agenda Items • Sensitive Lands Study Session Mr. Powell indicated that he reviewed the tapes of the Council's last meeting on the Sensitive Lands issue in order to verify the specific questions that the Council wanted answered within the context of whether the City should submit the compliance report to Metro. He mentioned hearing concerns about whether sending the compliance report to Metro would render the work of the Second Look Committee potentially worthless, and whether Metro would grant the City an extension on the filing deadline or what sanctions it might impose if the City did not file the report. He noted the questions surrounding how Title 3 fit within Title 13, the language talking about voluntary, incentive -based, education -based programs versus mandatory regulations, and the backsliding issue of making changes to the existing Code. City Council Special Meeting Minutes Page 14 of 15 July 14, 2009 74 He indicated that he would take a more general approach to answering those questions, rather than examining every provision in all the related documents. Staff could do that if the Council so desired, but it would be a big project. He spoke of providing the Council with a framework for deciding on the scope of a second look at the ordinance. Councilor Moncrieff confirmed that she wanted to hear whether Metro would allow the Council to make changes to the provisions in the existing City code, if the City submitted the compliance report. Councilor Olson concurred with Mr. Powell's identification of the questions that the Council wanted answered. She highly recommended that Council members read Titles 3 and 13 before the Monday study session. Mr. Powell indicated that he could attach those documents to his report. Mayor Hoffman encouraged Council members to read the preface in the Comprehensive Plan notebook (pp.1-6) and Goal 5, He commented that he found the preface's discussion of how the different goals tied into each other most interesting. He mentioned that he would provide an index to the 1300 page report, as promised. He indicated that while he anticipated high public attendance at the study session, he wanted to focus on Mr. Powell's report and keep the meeting to two hours. • Calendar Councilor Olson questioned whether staff could close this fiscal year's first quarter books by October 6. Mr. McIntyre indicated that staff would present the end of the year financial review on September 1. He said that if October 6 did not work for the quarterly review, then they would reschedule the item. Councilor Olson asked if staff would notify the Budget Committee members of these meeting dates. Mr. McIntyre mentioned the budget debrief meeting not yet scheduled for September. He explained that they would discuss what went well in the budget process, what they could improve, and how to communicate with the Budget Committee. 6. ADJOURNMENT Mayor Hoffman adjourned the meeting at 9:34 p.m. Respectfully submitted, ~ L Robyn C ristie City Recorder APPROVED BY THE CITY COUNCIL: ON Jack D. Hoffman, Mayor City Council Special Meeting Minutes Page 15 of 15 July 14, 2009 75 76 CITY COUNCIL SPECIAL MEETING j M MINUTES \' July 20, 2009 OREGO* Mayor Jack Hoffman called the special City Council meeting to order at 8:08 a.m. on July 20, 2009, in the City Council Chambers, 380 A Avenue. Present: Mayor Hoffman, Councilors Jordan, Moncrieff, Olson, and Tierney. Councilors Hennagin and Johnson were excused. Staff Present: Alex McIntyre, City Manager; David Powell, City Attorney; Robyn Christie, City Recorder; Denise Frisbee, Planning & Building Director; Jonna Papaefthimiou, Environmental Planner 3. STUDY SESSION 3.1 Sensitive Lands Follow -Up Discussion Mayor Hoffman reviewed the history of natural resources protection in Lake Oswego. He began with the Comprehensive Plan, first developed with a community -wide effort in the 1970s, and later revised in 1994. He described the Comprehensive Plan as the community's vision and constitution for growth. He mentioned the natural resources protection ordinance adopted in 1997, He explained that the purpose of today's study session was for the Council to hear from the City Attorney about the regulatory framework of natural resource protection laws within the context of state, regional, and local laws and ordinances. He mentioned the City Attorney's five page report, and the CD with 1400 pages of Metro information and science reports on the region -wide natural resource protections. The City had the CD available for free to those who requested it. He indicated that he would not take public comment at this study session, as there was a community roundtable on natural resource protection in Lake Oswego coming up in August, at which citizens could voice their concerns. Mr. Powell indicated that his report (pp. 1-8) addressed the questions raised by the Council regarding how the laws and regulatory structure of natural resource protections affected Lake Oswego. He clarified that he would not address specific questions about resources and property Locations on the map, as he was not a natural resources planner. He mentioned the typographical error on p.5, third paragraph, of his memo, which should read, "Title 13 requires the City...," and not "Title 3." He reviewed the background of natural resource protection law in Oregon, noting that it all went back to State law (pp. 1-2). He indicated that the State gave the Land Conservation and Development Commission the authority to adopt goals, policies, and administrative rules for land use planning, and to require cities and counties to adopt ordinances to comply. He discussed the requirements of Statewide Planning Goal 5, Natural Resources, which predated the Metro regulations (p.2). He indicated that Lake Oswego Comprehensive Plan Goal 5 addressed the state requirements, which the City met with the adoption of its current Sensitive Lands Ordinance in 1997. He explained that also in 1997, Metro adopted its Functional Plan for region -wide resource protection regulations, including Title 3 and its water quality of flood management area map. He indicated that Lake Oswego staff believed that the City's Sensitive Lands Map, as it applied to water resources, substantially complied with the Title 3 map, and that its Sensitive Lands Ordinance substantially complied with the Title 3 requirements. He reviewed the basic provisions in Title 3 (p.3) relating to development. City Council Special Meeting Minutes July 20, 2009 Page 1 of 10 77 He noted that the main difference between the Metro Title 3 standards and the Lake Oswego Sensitive Lands Ordinance was narrower riparian corridor buffers in Lake Oswego. These mostly resulted from Lake Oswego measuring from a different point than Metro. He explained that Metro Title 13 (adopted in 2007) was the region -wide regulations for complying with Statewide Planning Goal 5 requirements for wildlife habitat protections along riparian corridors and wetlands, but it did not include the uplands habitat areas located within the current Urban Growth Boundary (UGB). However, wherever Metro did not regulate, the City had to look back to the Statewide Planning Goal 5 for regulations. He indicated that Lake Oswego's Goal 5 program equivalent was its resource conservation zones, which protected environmentally significant tree groves. He discussed the City's options for complying with Metro Title 13 (p.4). He said that staff believed that the City's existing standards met Option 3 in demonstrating that the City has implemented an alternative approach that would achieve the Title 13 goals. Mayor Hoffman indicated to an audience member that he was not taking audience questions, as this was a study session for the Council to hear from its staff and attorney. Councilor Tierney noted that the question asked -- what did the City have to comply with -- was the same question raised by the Council at the earlier meeting. Mr. Powell commented that this regulatory framework was very complicated. Mr. Powell reviewed the requirements of Title 13 regarding the habitat conservation areas as they related to development. He commented that whether Title 13 was more restrictive than the Lake Oswego regulations depended on the particular property and the resource involved. He indicated that if he were asked whether the City could comply with Title 13 and adopt less stringent disturbance requirements than those required by the Metro Code, his answer would be probably, but the City would still need to meet substantially the Title 13 objectives and intent. He reiterated that Lake Oswego staff suggested that the City's Sensitive Lands Ordinance met the alternative approach option. He noted the language in Title 13 suggesting that jurisdictions could use an incentive -based, voluntary, education, acquisition, and restoration program; however, the language was not clear. He indicated that as the Council's lawyer, he could read the language in a way that would allow a package of non -regulatory options, but the more difficult question was the practicality of non - regulatory options alone achieving the goals. He indicated that he read Metro's staff reports as assuming that jurisdictions would authorize a combination of regulatory and non -regulatory options. He mentioned the compliance deadlines for Title 3 (January 31, 2000) and for Title 13 (January 2009). He noted that Metro could extend those deadlines. He discussed the `anti -backsliding' provision of Title 13. He indicated that the provision said that if a city adopted a Goal 5 program to protect the upland resources within the UGB (that were not protected under Title 13), then it could not repeal or change that ordinance in a way that would allow more than minor additional development within the protected areas. He reviewed the Council's questions raised at the last meeting in response to staff's suggestion that the City submit a compliance report to Metro for Titles 3 and 13. 1) Would submitting the compliance report prevent the Council from later adjusting the City's sensitive lands regulations? (p.6) Mr. Powell said no. He pointed out that there was no formal requirement for a compliance report, although there was a requirement that the City demonstrate compliance. He emphasized that there was nothing in demonstrating compliance with Metro Titles 3 and 13 now that would prevent future adjustments, provided that the Council followed the main legal requirements. He pointed out that the lock -in in the code text was the backsliding provision. City Council Special Meeting Minutes Page 2 of 10 July 20, 2009 78 2) Would Metro allow the City to delay further demonstrating compliance while exploring additional adjustments? (pp.5-7) Mr. Powell commented that he could not speak for the Metro Council or staff. He pointed out that the City was beyond the deadlines now. He mentioned his understanding that staff has heard encouraging words from Metro staff about recommending a deadline extension through December, should the City request one. He recalled that historically, Metro tended to accommodate jurisdictions as long as it felt that the jurisdiction was making progress. He pointed out that the City virtually complied with Titles 3 and 13 anyway; it just wanted more time to examine other options. 3) Will a public hearing be required before the City submits the compliance report or demonstrates compliance? (p.7) Mr. Powell said yes. He mentioned the code amendments adopted by Council that staff had suggested would result in a package of regulations that complied with Titles 3 and 13. He noted one argument, that the City has already changed its code to comply, and therefore it need do nothing else. However, staff felt that a public hearing provided an opportunity to explain how a combination of City regulations, and not only the Sensitive Lands Ordinance, worked to bring the City into compliance with Title 13. He pointed out that holding a public hearing that discussed the net effect of the City's regulations would create a record of the Council's efforts to comply with Metro's Titles 3 and 13. He indicated that they would need this, should the Metro Council make a determination of non-compliance and the City appealed that finding to the Land Use Board of Appeals (LUBA). Councilor Tierney asked for clarification on the process of compliance. Mr. Powell reviewed the three options available to the City. The City could simply adopt appropriate code amendments, notify Metro that it has done so, and end the process. If instead the Council opted to suggest that the City's package of existing regulations complied, then the City needed to demonstrate how it complied. There was a process whereby Metro could review that demonstration. The last option of adopting non -regulatory options involved a required periodic report on how those options were working. He recommended that the Council follow the demonstration process for Titles 3 and 13 in order to create a good record. Mayor Hoffman mentioned that he thought that Title 13 said that irrespective of whether the Council sent in the report, all land use decision had to be consistent with Title 13. Mr. Powell explained that Title 8 of the Metro Functional Plan had a provision stating that within two years of acknowledging Metro's Title 13 program, all cities and counties would make decisions consistent with the program. However, the language was not clear on how to apply that provision in light of extended deadlines. Mr. Powell reiterated that the City could make a good case that its regulations were already in compliance; its only `non-compliance' was not yet demonstrating that it was in compliance. 4) Can the City's Sensitive Lands regulations be changed? (p.7) Mr. Powell said yes, although any changes still had to comply with Goal 5 and Metro Titles 3 and 13. He commented that it would be a tremendous task to evaluate whether each Lake Oswego regulation was more protective or less protective than Metro regulations because the application depended so heavily on the circumstances of the individual properties, such as configuration and amount of natural resource coverage on the lot, Mayor Hoffman noted the sentence in Mr. Powell's memo that said that any changes must also be consistent with the policies of Goal 5 and the Lake Oswego Comprehensive Plan. Mr. Powell explained that the Lake Oswego Comprehensive Plan had its own Goal 5 that contained the City's policies for protecting water, wildlife, vegetation, etc. He said that if the Council explored a City Council Special Meeting Minutes Page 3 of 10 July 20, 2009 79 package that significantly reduced the regulatory side, then he would encourage the members to check the Comprehensive Plan to see if a reduction would violate the Plan. Mr. Powell discussed the backsliding provision. He explained that basically it meant that the City should not change its own Goal 5 program in any way that would allow more development, even if the changes would still substantially comply with the Metro and State requirements. He commented that he thought that one could make a strong argument that the City should be able to adjust its uplands Goal 5 program, as long as it complied with Goal 5. He pointed out that making adjustments was easier said than done because doing so would involve redoing the Goal 5 inventory analysis and ESEE analysis. He commented that he did not know whether Metro would be receptive to that idea. He indicated that he would not suggest exploring it that much, unless the City decided that it did want to adjust its uplands Goal 5 program. 5) Can the City's sensitive lands protections be voluntary and incentive -based rather than regulatory? (pp.7-8) Mr. Powell said that the Metro language was not written clearly, and that one reading of it did suggest that a non -regulatory package could be sufficient. However, the language accompanying it said that the program had to result in a certainty of habitat protections comparable to the Metro Model Code or the substantial compliance with Title 13 code language. He said that no city to date has attempted to demonstrate to Metro that a completely non - regulatory program would qualify under Title 13. He mentioned a Tualatin Valley jurisdiction in Washington County that had been doing its own Goal 5 related program at the same time that Metro was looking at Title 13. Since Clean Water Services, which served the jurisdiction, had its own Title 3 -type regulations already in place, the jurisdiction made a proposal that included those regulations and an incentive/acquisition-based educational -centered program for the Title 13 measures. Metro found the entire package appropriate. He commented that the jurisdiction committed around $90 million over 10 years to the program, as Metro made it clear that such educational programs had to be stable, well -funded, and demonstrate a comparable level of protection. He observed that the practicalities of a non -regulatory program package that met Title 13 went beyond a lawyer's scope. However, he thought that it would be a challenging thing to do and involve a significant commitment of resources to demonstrate compliance. Still, it was possible. He mentioned that a combination of regulatory and non -regulatory provisions was a model worth looking at if the Council was interested. He reiterated that there were many opportunities for adjustments, but making substantial adjustments entailed a major project. He reviewed the maps distributed to the Council earlier. He indicated that one showed the wildlife habitat areas mapped under Lake Oswego's Goal 5 regulation versus the Metro Title 13 uplands wildlife habitat areas. He noted that since Metro did not require compliance with Title 13 within the UGB, the map was academic. He explained that the next map showed the difference between Metro Title 13 riparian corridors and Title 3 riparian corridors. He overlaid this map on the riparian areas protected by Lake Oswego's plan, noting that they tracked closely to the combination of the Title 3 and 13 water resources. COUNCIL QUESTIONS Mr. Powell indicated to Councilor Jordan that citizens were involved in the 1997 Comprehensive Plan amendment process to adopt Goal 5. He confirmed that citizens were involved in deciding how to protect the identified areas. He mentioned that Goal 1 required public involvement at every stage of a Comprehensive Plan amendment process, including public hearings at the Planning Commission and the City Council. City Council Special Meeting Minutes Page 4 of 10 July 20, 2009 80 Councilor Moncrieff referenced LOC 50.16.020, the criteria for designating property within an overlay district. She asked if the City's criteria caused it to designate more area than Metro required. She observed that the map seemed to show that Metro identified more resource conservation and resource protection areas than the City did. She asked if updating the code and clarifying the designation would cause the City Code to take in everything identified on the Metro maps. Mr. Powell said not necessarily, although it depended on the changes made. He indicated that if the Council decided that the balancing decisions made upon the initial inventory and ESEE analysis needed revision, that finding could result in changes. He commented that if the Council wanted to change to the Metro Model Ordinance for either mapping or regulations, it would end up with a net wider riparian boundary. He observed that Ms. Papaefthimiou could answer the question better with respect to Metro's side. He indicated to the Councilor that the City was not designating more property than Metro required it to map. He commented that the map of Metro upland areas, as it existed today, which it would have regulated had it decided to apply the regulations within the UGB, was more extensive than what Lake Oswego has protected under its resource conservation program. He said that Metro only regulated uplands habitat outside the UGB; it left the upland areas within the UGB to the individual cities to regulate. Councilor Olson mentioned to the audience that Mr. Powell's report was available at the City website as part of the Council packet. She addressed the five questions addressed by Mr. Powell. She referenced the question of whether to submit the Sensitive Lands Code and amendments passed by the Council (minus herself). She noted that the Mayor asked why not submit it. She recalled the Council's discussion last week on water SDCs, in which the Mayor had been one of the Council members asking why they should move forward if the Council was thinking of changing the methodology or wanted further discussion. She held that the same logic applied here. She commented that it did not hurt anything not to submit it. She strongly recommended that the Council not do so. She referenced Mr. Powell's point that the Council has not had a public hearing on the staff decision to use an alternative approach to bring the City into compliance, which was a key issue that has only recently come to her attention. She spoke of staff using a wider operational methodology that went beyond the code amendments in doing less here and more there. She argued that the Council and the public needed to hear the whole package. She indicated that she did not know why the City has not been in compliance with Title 3 for 10 years. She said that she did not know why Mr. Powell chose not to address the portion of Title 3 relating the flood plain management. She wondered whether the Council needed to address it at some point, and suggested further discussion. She mentioned hearing, in conversations with Metro staff, that Lake Oswego was not the only city late in complying with Titles 3 and 13; granting extensions was not a big deal. She referenced the question of whether the City's land use regulations could be changed. She discussed her concern about the backsliding provision. She mentioned the original map and ordinance of 1997, and the uplands wildlife habitat conservation program that staff has proposed using as the `big ticket item' to get the City into compliance and out of complying with other sections of Title 3 and 13. She questioned whether, in 1997, the City notified all property owners of those properties that it mapped or designated at that time. She held that the public involvement had been minimal. She noted that there were people today who still did not know that the City had mapped their properties in 1997. She argued that the lack of notification alone was sufficient reason to adjust the backsliding provision. City Council Special Meeting Minutes Page 5 of 10 July 20, 2009 81 She referenced the question of whether the sensitive lands protections could be voluntary and on an incentive basis. She concurred with Mr. Powell that a 100% voluntary, incentive -based program would be difficult. She noted that the intent section of Metro's Title 13 stated that it would achieve its purpose using a comprehensive approach that included voluntary, incentive -based, educational, and regulatory elements. She observed that Lake Oswego used only regulatory elements. She argued that they needed a combination of the best practices. She commented that the extensive sensitive lands materials from the City and Metro could be synthesized into a few key points and policy questions. She indicated that it was not an issue of whether they should protect resources or whether resources added property value, but rather how the City wanted to implement its protections, and what resources the City wanted to protect or not protect, and why. She mentioned that Metro's intent was that Title 13 would apply only to new development. She pointed out that many of the properties proposed for mapping were existing houses in long- established subdivisions with existing landscaping and hardscaping. She questioned why the City would want to impose these regulations on properties like that when Metro intended applying Title 13 only to new development. She distributed a summary that Ms. Papaefthimiou had done for the Council earlier comparing what the City did to what Metro did. She commented that the City did a lot more than Metro required. She noted the detailed requirements in the City Code for fences, driveways, lighting, and other elements, which Metro addressed only through broad minimizing and mitigating standards. She referenced Mr. Powell's comment regarding Lake Oswego's narrower buffer and need for stronger regulations in other areas to meet compliance. She referenced Ms. Papaefthimiou's report stating that the City applied protections to tree groves adjacent to streams, which Metro did not require for Title 3. She noted that while the City's stream buffers appeared to be 40% smaller than Metro's minimums, there was not really that much difference between the buffers because they each measured from a different point. She noted the flexibility Metro allowed in its titles that the City was not using. She referenced the question of whether the recent code revisions passed by Council amounted to new City policies. She spoke of reviewing the revisions in the context of the next Comprehensive Plan update. She argued that many of the housekeeping changes were policy issues, some of which were controversial. She mentioned the staff suggestion that these changes would clarify current staff code interpretation and incorporate current staff practices. She argued that these were Council policy level discussions, and that the Council should discuss whether it agreed with the staff interpretations and current staff practices. She commented that the Council also has not given policy direction on how the City should comply with Metro, yet staff has concluded that the City should comply using an alternative approach of protecting upland tree groves and individual trees more strongly than other cities. She asked why there was.a rush to comply now, given that the City has not complied for so many years. She indicated that she also wanted to know more about how the City would comply with the flood management and water quality provisions in Title 3. She referenced the June 5 staff report discussing the idea of establishing a watershed council for the lake, which would help promote voluntary and community-based actions and education. She held that that was exactly what the City should be doing on a wider basis. She mentioned the exemption of boats and docks from the 10 -foot setback requirement, and wondered why the lake was getting a pass on these code regulations. She asked why the City did not show more leadership by maintaining its open spaces. She pointed out that the public open spaces looked terrible and were filled with non-native invasive City Council Special Meeting Minutes Page 6 of 10 July 20, 2009 82 species. She argued that the City's natural areas should serve as examples of preservation and restoration to inspire voluntary action among the citizens. Councilor Tierney noted that Title 13 addressed high, moderate, and low areas. He asked if the Lake Oswego did something similar, and if there were differences in terms of what Lake Oswego did relative to those categories. Mr. Powell indicated that the City Code categorized resources into Class 1 or Class 2 with differing levels of regulations for each class. He commented that it was difficult to say how that netted out, given that any assessment had to be on a property -by -property basis. Councilor Tierney referenced the discussion in Title 13 about urban development value (p.54), which he had found confusing with respect to its implementation. Mayor Hoffman explained that the Metro and all the cities went through ESEE analyses in an attempt to balance natural resources (Goal 5) against economic development (Goal 9) and urbanization (Goal 14). He indicated that the jurisdictions developed a matrix in which high value economic development trumped wildlife habitat. He cited the example of the Port of Portland along the Willamette River. Mr. Powell indicated that the way he read it was that if the use of an area has changed to a higher development value category since the time when Metro did its mapping, then, a city could adjust those designations up. Councilor Tierney commented that he has heard some issues raised by the community. He asked whether a property owner could place things without foundations, such as swing sets, trampolines, or dog runs, in a resource protection area. He asked whether the City was more restrictive than Metro, less restrictive, or equal. Ms. Papaefthimiou indicated that the City Code went into great detail about how to regulate different kinds of development. She said that things without foundations, such as swing sets and trampolines, were similar to lawn chairs and that citizens could place them in a habitat protection area. Since dog runs usually involved fences, they could not go in that area. Ms. Papaefthimiou said that the Metro Code followed the 'avoid, minimize, mitigate' standard, and did not specifically regulate such things." She indicated that her reading of the Metro Code was that Metro wanted all development on a lot located in the allowed 'disturbance area' (everything disturbed from the natural condition) and outside of the habitat area. However, if the lot was so small or covered by the habitat preservation area to the extent that a property owner had no other place to locate development, then he/she could put some type of development on 5,000 to 6,000 square feet of the habitat area. Councilor Tierney commented that he read the language on p. 44 of the report to mean that if a property owner had a dog run, or such, those things were allowed as long as they were things for which the City did not require a permit. He mentioned hearing it said in the community that a property owner with an RC designation could not maintain his/her own property. He commented that he did not read the Metro code as that restrictive, nor did he think that the Lake Oswego code was that restrictive. Ms. Papaefthimiou defined `maintenance' as keeping something, such as landscaping or a structure, in the condition that it was already in. She indicated that the Lake Oswego Code universally allowed maintenance, except in situations of illegal construction without a building permit. She commented that she did not think that the Metro Code would prohibit maintenance in that sense either. She indicated that making changes was no longer maintenance. She explained that in order to know if the Code allowed any given changes, she needed to know more about what kind of changes were proposed. Councilor Tierney asked what a property owner had to do to make well-intentioned and positive changes in a protected area. Ms. Papaefthimiou recalled that many of the recent housekeeping changes simplified the process for property owners to maintain their existing structures, and to do City Council Special Meeting Minutes Page 7 of 10 July 20, 2009 83 landscape improvements, such as removing invasive plants or planting native plants, without any type of review by the City. She indicated that her reading found that in keeping with the Metro Code also, Councilor Tierney asked whether Lake Oswego had a hardship provision similar to the one in the Metro Code (p.50) regarding property rights in a situation where a property owner could not develop his/her property because it was completely within a Resource Protection (RP) designation. Ms. Papaefthimiou indicated that the Lake Oswego Code made it easier to make modifications to an RP area than the Metro Code did. She discussed how buffer averaging worked, which the Lake Oswego Code allowed outright for anyone doing that type of development. She said that their code also had a hardship provision to reduce the buffer if the property owner could demonstrate a hardship. Mr. Powell said that both codes allowed building a single-family home. He explained that there could not be a lot that was so encumbered that the property owner could not build reasonable development on it. He discussed the methodology that Lake Oswego staff used to determine the footprint of a house in a sensitive lands area that was otherwise off limits. Councilor Tierney commented that he thought that the Council was enacting and modifying these regulations, not simply to have regulations, but rather to protect areas for wildlife. He asked if things have improved, stayed the same, or gotten worse in the 12 years that the City's ordinance has been in place. He encouraged keeping in mind the question of whether the Council's actions really accomplished the ultimate goal, as opposed to merely adopting regulations and putting in a bureaucracy. Mayor Hoffman asked if the City has done performance measures in the last 12 years. Ms. Papaefthimiou indicated that Metro was attempting to do some of that work. She commented that Lake Oswego's program stood up well to the performance measures given in Metro's recent State of the Watersheds Report. Mayor Hoffman referenced Councilor Olson's comment that Lake Oswego buffers were smaller than Metro's buffers because the jurisdictions measured them differently. He noted that the width of buffers in Lake Oswego depended on whether the resource was Class 1 or Class 2. He reviewed how Lake Oswego measured stream corridor buffers in contrast to Metro's method. He commented that it appeared that Metro still came out ahead. Councilor Olson reiterated that Metro applied the 200 -foot buffer for steep banks to new development, She reiterated that she still has not heard an answer to her question of why the City wanted to impose these regulations on well-established subdivisions, an action that made no sense to her. Mayor Hoffman raised the issue of next steps. Ms. Frisbee indicated that the Council's options included starting all over again and developing an alternative code that did not have some of the sticky points of the current code. Another option was to adopt Metro's Model Code for both Titles 3 and 13, as many other jurisdictions in the area have done. She discussed the option proposed by staff to take a second look at the Code. She mentioned assembling a group of citizens with a focus on technical strengths to serve as a working group to evaluate the Lake Oswego Code against Titles 3 and 13, and to see if there were areas where they could make recommendations for adding flexibilities to the Lake Oswego Code to address the sticky issues. She commented that she thought the Council's discussion pointing towards holding off on the compliance report made sense. Staff could submit the compliance report after they developed something that made the Code sit more easily with the Council and community. Mayor Hoffman commented that he saw starting all over again as a possibility when they did the Comprehensive Plan update next year. He argued that since the Comprehensive Plan tied City Council Special Meeting Minutes Page 8 of 10 July 20, 2009 84 everything together, they could not do a wholesale re -look at natural resources protection without also looking at the zoning code and its purpose and the relationship to economic development. He held that it was appropriate for the community to consider the question of natural resource protection as part of the Comprehensive Plan/visioning update. That way it became a community- wide decision about what the community wanted to do and how the citizens defined their community. He indicated that he did not support adopting the Model Code. He supported Ms. Frisbee's idea of a technical working group helping staff and the Council tackle the thorny issues. He spoke of getting through this part and then looking at what the community wanted to be in the next 20 years through the Comprehensive Plan/Periodic Review process. He pointed out that starting all over again would cost between $50,000 to $100,000 in staff and consultant time, which the Council did not have in the budget. He suggested discussing the issue at the Council's July goal setting retreat, and as part of the Council's 2010/2011 goal discussions. Councilor Moncrieff supported the staff recommendation to hold off on the compliance report until after the City went through the Second Look Work Group. She asked staff to look at LOC 50.16.020 in particular, the criteria for designating property within an overlay district. She asked for further information on what constituted an intermittent stream. Mayor Hoffman commented that the answers to Council members' specific questions were available both at Metro and in the City's archives. Councilor Jordan concurred that they needed to set aside the compliance part at this time, since they were not at a point where the Council would come to agreement at a public hearing. She argued that community visioning was not going to solve the issue of how regulations affected an individual property. She pointed out that every part of the City's Development Code affected private property rights. She cited the First Addition Neighborhood Plan provision requiring that all garages be built on alleys as an example of taking away a personal property right. She commented that they needed to have a general standard or basic regulation in place respecting the preservation of wildlife habitat or natural resources for those citizens who did not want to follow the regulations, for whatever reason. She spoke of balancing the regulations for individual properties. She referenced Councilor Olson's question of why the City was doing something now on these established properties. She commented that it was likely because the property sat in an area that would affect people downstream. She observed that they had to start somewhere, although that did not mean suddenly not allowing property owners to enhance their properties as they chose. She spoke of having a compromise system in the City that allowed flexibility to develop a sensitive lands lot, similar to the flexibility found in the Code for building on non -sensitive lands lots. She indicated that she would like to see the technical committee develop a flexible process that allowed a property owner either to follow the established guidelines or to develop a custom plan that met or exceeded the City standards. She commented that the City's intent was to achieve a certain standard, but it did not know all the ways to do that. Councilor Tierney commented that staff has set forth admirable goals, including public engagement. He noted the confusion over whether the Second Look Committee would be technical or more comprehensive. He observed that 70 plus people showing up to an 8 a.m. Monday morning meeting indicated a passion in the community respecting this issue. He spoke to the City addressing those concerns. He indicated that his conversations found that most individuals, when asked, agreed that it was a goal of this community to preserve and protect wildlife and natural resources. He observed that the challenge was in the details. He spoke to understanding the perspective of those citizens most interested in those details and what their issues were. He mentioned the importance of having a City Council Special Meeting Minutes Page 9 of 10 July 20, 2009 85 formal process to engage primarily the community most interested in this issue, so that the Council understood those concerns and tried to balance them. He described the technical committee as corollary to that in that it would deal with the specifics of the science and the legalities of compliance. He agreed with Mayor Hoffman that adopting the Model Code could have unintended consequences. He commented that while they could start all over again, he was not certain that they would end up in a different position. He supported working through this process as a way to reach a clear understanding of what was required and an appreciation for why those requirements existed. He mentioned the balancing of individual rights against the community, as property owners without a sensitive lands designation did not bear the burdens placed on property owners with sensitive lands designations. He commented that he thought that the City could do much more on an incentive, voluntary basis, including education. He described regulation as the backstop. Councilor Olson concurred with Councilor Jordan's comments about the need for more flexibility and discretion. She noted Metro's suggestion of using two tracks: a right down the code track for approval, and a discretionary track that looked at the property. She observed that Lake Oswego only had the code track. She referenced Councilor Jordan's example of First Addition. She pointed out that First Addition homeowners moved into the neighborhood knowing that their garages had to be on the alley; the City did not tell any First Addition resident that he/she had to move his/her garage physically if he/she had an existing house. She explained that that was her concern with mapping already established properties. She concurred with Councilor Tierney that these regulations did put a burden on some people. She commented that she was not certain that she understood why the City protected some resources and not others. 4. ADJOURNMENT Mayor Hoffman adjourned the meeting at 9:46 a.m. Respectfully submitted, Robyn &ristie City Recorder APPROVED BY THE CITY COUNCIL: ON Jack D. Hoffman, Mayor City Council Special Meeting Minutes Page 10 of 10 July 20, 2009 86