CITY COUNCIL Agenda
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us
Wednesday, July 14, 2021 520 E. Cascade Avenue, Sisters, OR 97759
5:30 P.M. WORKSHOP 1. Review Bryant, Lovlien & Jarvis Professional Services Agreement-Misley 2. Charter Review Discussion-Misley 3. Discuss Proposed Changes to Municipal Code & Development Code Relating to Public Trees-Bertagna, Mardell 4. Discussion of Habitat for Humanity Affordable Housing Grant Application-Misley 5. Other Business-Staff/Council
6:30 P.M. CITY COUNCIL REGULAR MEETING I CALL TO ORDER/PLEDGE OF ALLEGIANCE
II ROLL CALL
III APPROVAL OF AGENDA
IV VISITOR COMMUNICATION
V CONSENT AGENDA All matters listed within the Consent Agenda have been distributed to each member of the Sisters City Council for reading and study, are routine and will be enacted by one motion of the Council with no separate discussions. If separate discussion is desired, that item may be removed from the Consent Agenda and placed on the Regular Agenda by request.
A. Minutes 1. June 09, 2021-Regular 2. June 09, 2021-Workshop
B. Bills to Approve. 1. July 09, 2021- Accounts Payable
C. Approve Transit Services Agreement #33559 between the Oregon Department of Transportation and the City of Sisters for Public Transportation Services and Authorize the City Manager to Execute the Agreement.
This agenda is also available via the Internet at www.ci.sisters.or.us
July 14, 2021 Page 2
D. Approve an Agreement for Oregon Enterprise Zone Extended Abatement for Nosler, Inc.
E. Approve an Agreement for On-Call Electrical Services with Smith Rock Electric, LLC and Authorize the City Manager to Execute the Agreement.
F. OLCC Liquor License Application Approval 1. Funky Fauna Artisan Ales, LLC-Brewery Public House
VI COUNCIL BUSINESS A. Public Hearing and Consideration of Ordinance No. 514: AN ORDINANCE OF CITY OF SISTERS AMENDING ORDINANCE NO. 381, WHICH ORDINANCE GRANTED HIGH COUNTRY ENTERPRISES, LLC A FRANCHISE TO PROVIDE CERTAIN SOLID WASTE MANAGEMENT SERVICES WITHIN CITY OF SISTERS, TO ADJUST INCLUDE ADDITIONAL PROCEDURES FOR THE FRANCHISEE TO REQUEST A RATE INCREASE- Misley
VII OTHER BUSINESS A. Sheriff Update- Lt. Davis B. Staff Comments
VIII MAYOR/COUNCILOR BUSINESS
IX ADJOURN
Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be considered at the above referenced meeting; however, the agenda does not limit the ability of the Council to consider or discuss additional subjects. This meeting is subject to cancellation without notice.
This meeting is open to the public and interested citizens are invited to attend. This is an open meeting under Oregon Revised Statutes, not a community forum; audience participation is at the discretion of the Council. The meeting may be audio taped. The meeting location is accessible to persons with disabilities. A request for an interpreter for the hearing impaired or for other accommodations for persons with disabilities should be made to the City Recorder at least forty-eighty (48) hours in advance of the meeting.
Executive Sessions are not open to the public; however, members of the press are invited to attend. The City of Sisters is an Equal Opportunity Provider
CITY COUNCIL
Agenda Item Summary
Meeting Date: July 14, 2021 Staff: Misley, Green Type: Workshop Dept: CMO Subject: Extension to BLJ Personal Services Agreement (PSA)
Action Requested: Review changes in the BLJ extension.
Summary Points: Bryant, Lovelien and Jarvis, P.C. were brought on as city attorneys in August of 2016 for a three-year term with an optional two-year extension. The current extension expires on August 3, 2021. During the past five-years of the agreement, the billing rates have not been adjusted.
The second extension to the PSA will extend the term of the original agreement for three additional years. Billing rates for shareholders will go from $195 to $225 per hour and associates will go from $150 to $195 per hour.
Financial Impact: Updated billing rates. ______Attachments: • 2016 PSA • 2019 First Extension • 2020 Draft Second Extension
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (this "Agreement")is entered into on September 8, 2016, but made effective for all purposes as of August 4,2016(the "Effective Date"), between the City of Sisters, an Oregon municipal corporation ("City"), whose address is 520 East Cascade Avenue,PO Box 39, Sisters, Oregon 97759,and Bryant, Loviien & Jarvis, P.C., an Oregon professional corporation ("Attorney"), whose address is 591SW Mill View W/ay, Bend, Oregon 97702.
RECITALS:
A. City desires to retain an Oregon law firm with training, skills, knowledge, and expertise in municipal law. City has determined that Attorney has the training, skills, knowledge, and expertise desired, and is qualified and capable of performing the Services(as defined below).
8. City and Attorney are entering into this Agreement to establish the terms and conditions under which Attorney will perform the Services.
AGREEMENT:
NOW,THEREFORE, in consideration of the mutual covenants and obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. PROFESSIONAL SERVICES
1.1 Professional Services. Subject to the terms and conditions contained in this Agreement, Attorney will perform those legal services described in Schedule 1.1 (and any other necessary or appropriate legal services customarily provided by Attorney in connection with its performance of those legal services described in Schedule l.H (collectively, the "Services"). Attorney will(a) consult with and advise City on ail matters concerning the Services reasonably requested by City,(b) devote such time and attention to the performance of the Services as Attorney and City deem necessary or appropriate, and (c) perform the Services to the best of Attorney's ability.
1.2 Gtv Obligations, in addition to any other City obligation under this Agreement, City will assist Attorney with Attorne/s performance of the Services by performing the following:(a) City will designate a representative(s) with authority to review and approve all Services performed by Attorney; (b) City will furnish Attorney with information regarding Cil/s requirements for the Services, including, without limitation. City's objectives, schedules, constraints, and criteria;(c) City will render its own decisions in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Services; and (d) City will furnish Attorney with ail information, documentation, and materials Attorney requires to perform the Services. City represents and warrants that City has sufficient funds available and authorized, or that will be authorized, to pay all costs incurred by City under this Agreement.
2. COMPENSATION
2.1 Compensation. Attorney will submit monthly invoices to City concerning the Services performed by Attorney during the immediately preceding month (each, an "invoice"). Each invoice will contain the following information:(a) a general description of the Services performed by Attorney (and
1- PROFESSIONAL SERVICES AGREEMENT (}6564001-C07Z8a82;l) by whom);(b) the number of hours (or fraction thereof) each person spent to perform the Services;(c) the applicable hourly billing rate(s); and (d)a summary of the expenses incurred by Attorney. City will pay the amount due under each Invoice within thirty(30) days after Cit/s receipt of the applicable Invoice. Attorney will review any City meeting agenda requested by City without charge to the extent such review does not exceed thirty (30) minutes in duration.
2.2 Billing Rates. Attorney will perform the Services at the following hourly rates: (a)shareholders will bill City at the rate of $195.00 per hour;(b) associates will bill City at the rate of $150.00 per hour; and (c) legal assistants will bill City at the rate of $75.00 per hour. Attorney will charge the aforementioned billing rates for travel time and to attend council and staff meetings. Attorney will review meeting agendas and related materials at no charge for the first 30 minutes of review. If this Agreement is extended for the two-year extension term described in Section 5.1, City and Attorney will review this Agreement to determine whether changes or modifications to Attorney's hourly billing rates are necessary or appropriate.
2.3 No Benefits and Reimbursement. City will not provide any benefits to Attorney, and Attorney will be solely responsible for obtaining Attorney's own benefits, including, without limitation, insurance, medical reimbursement, and retirement plans. 5ubject to the terms and conditions contained in this Agreement, City will reimburse Attorney for all expenses incurred by Attorney related to Attorne/s performance of the Services, including, without limitation, expenses related to travel, copies, long distance charges, mileage, messenger services, printing, and supplies.
2.4 Conditions Precedent. Notwithstanding anything contained in this Agreement to the contrary, City's performance of its obligations under this Agreement is conditioned on Attorney's performance of its obligations under this Agreement, including, without limitation, those Attorney obligations described under Section 4.4.
3. RELATIONSHIP
31 Independent Contractor. Attorney will be an independent contractor of City. Attorney will be free from direction and control over the means and manner of performing the Services, subject only to the right of City to specify the desired results. 3.2 Taxes. City will not withhold any taxes from any payments made to Attorney, and Attorney will be solely responsible for paying all taxes arising out of or resulting from Attorne/s performance of the Services, including, without limitation, income,social security, workers' compensation, and employment insurance taxes.
3.3 Licenses. Attorney will be solely responsible for obtaining any and all licenses, approvals, and certificates necessary or appropriate to perform the Services.
4. ATTORNEY COVENANTS
In addition to any other covenant made by Attomey under this Agreement, Attorney covenants to City as follows:
4-1 Qualitv of Services. Attorney will perform t he Services to t he best of Attorne/s abillty, diligently, in good faith. In a professional manner, and in accordance with this Agreement. Attorney will
2- PROFESSIONAL SERViaS AGREEMENT (16$6400I^XI728382:1) make all decisions called for promptly and without unreasonable delay. All materials and documents prepared by Attorney will be complete, unambiguous, and in compliance with all applicable federal, state, and local laws, regulations, and ordinances.
4.2 Insurance. Unless the parties mutually agree otherwise in writing, during the term of this Agreement, Attorney will obtain and maintain, in addition to any other insurance Attorney Is required to obtain under this Agreement, the following minimum levels of insurance:(a) general liability insurance for any and all losses or claims arising out of or related to Attorney's performance of this Agreement (including, without limitation, damages as a result of death or bodily injury to any persons or destruction or damage to any property) with limits of not less than $1,000,000 per occurrence, $1,000,000 in the aggregate;(b) automobile liability insurance with limits of not less than $500,000 combined single limit or split limits of $250,000 per person,$500,000 per occurrence, and $250,000 property damage (automobile insurance will be obtained for any motor vehicle driven during the course of providing the Services); and (c) professional liability Insurance with limits of not less than $5,000,000; provided, however. Attorney may reduce the aforementioned professional liability Insurance limits to an amount not less than $3,000,000 if Attorney determines that such reduction is necessary or appropriate after obtaining City's prior written consent. Attorney's general liability insurance policy will list City and City's officers, agents, and employees as additional insured(s).
4.3 Workers' Compensation Insurance. Attorney will have workers' compensation insurance in form and amount sufficient to satisfy the requirements of applicable Oregon law.
4.4 Compliance With Laws. Attorney will comply with all applicable federal, state, and local laws, regulations, and ordinances. Including, without limitation, those applicable to Attorney and/or this Agreement under QR5 279B.220,279B.225,279B.230, and 279B.23S, which statutes are Incorporated herein by reference. Attorney will obtain and maintain any and all licenses, permits, registrations, and other governmental authorizations required to conduct Attorney's business and perform the Services. Attorney will perform the Services in accordance with the applicable rules of professional conduct.
5. TERMINATION
5.1 Term and Termination. The term of this Agreement will commence on the Effective Date and will continue for a period of three years thereafter, unless sooner terminated or extended in accordance with this Agreement. Upon the expiration of the initial three-year term of this Agreement, this Agreement may be extended for one additional term of two years by the parties' mutual written agreement. This Agreement may be terminated at any time by the mutual written consent of City and Attorney. Either party may terminate this Agreement for convenience and without cause by giving the other party ninety (90) days' prior written notice.
5.2 Remedies. If a party fails to perform any of its terms, covenants, conditions, and/or obligations under this Agreement,the non-defaulting party may, in addition to any other remedy provided to the non-defaulting party under this Agreement, pursue any and all remedies available to the non- defaulting party at law or in equity. All available remedies are cumulative and may be exercised singularly or concurrently.
5.3 Consequences of Termination. Upon termination of this Agreement,(a) Attorney will cease further performance of the $ervices (except that Attorney may perform such Services and Incur such reimbursable expenses as are necessary or appropriate to preserve that portion of the Services that have
3- PROfESSIONAL SERVICES AGREEMENT (16564001 00728382:1) been completed or are in progress and to achieve an orderly termination and transition), and (b) City will pay Attorney for all Services performed by Attorney and will reimburse Attorney for all reimbursable expenses (including, without limitation, costs incurred by Attorney for organizing and carrying out the termination and transition process).
6. INDEMNIFICATION
6-1 Citv Indemnification. Citywilldefend, indemnify, and hold Attorney, and each present and future employee,officer, shareholder, agent, and authorized representative of Attorney, harmless for, from, and against any and all claims, actions, proceedings, damages, liabilities, injuries, losses, and expenses of every kind, whether known or unknown, including, without limitation, reasonable attorney's fees, resulting from or arising out of, whether directly or indirectly, the following:(a) damage to person or property caused by City and/or Cit/s agents, officers, employees, contractors, or authorized representatives;(b) the negligent acts, errors, or omissions of City and/or City's agents, officers, employees, contractors, or authorized representatives;(c) City's violation of any law, governmental regulation, and/or order; and/or(d) City's breach and/or failure to perform any City obligation under this Agreement. City's indemnification obligation provided in this Section 6.1 will survive the termination of this Agreement.
6.2 Attornev Indemnification. Attorney will defend, indemnify, and hold City, and each present and future employee, officer, agent, and authorized representative of City, harmless for, from, and against any and all claims, actions, proceedings, damages, liabilities, injuries, losses, and expenses of every kind, whether known or unknown,including, without limitation, reasonable attorney's fees, resulting from or arising out of, whether directly or indirectly, the following:(a) damage to person or property caused by Attorney and/or Attorney's agents, officers, employees, shareholders, contractors, or representatives; (b)the negligent acts, errors, or omissions of Attorney and/or Attorney's agents, officers, employees, shareholders, contractors, or representatives;(c) Attorney's violation of any law, governmental regulation or order; and/or(d) Attorney's breach and/or failure to perform any Attorney obligation under this Agreement. Attorney's indemnification obligation provided in this Section 6.2 will survive the termination of this Agreement.
7. MISCELLANEOUS
7.1 Severabilitv. The parties agree that each provision contained in this Agreement will be treated as a separate and independent provision and that the unenforceability of any one provision will in no way impair the enforceability of any other provision contained herein.
7.2 Notices. Any notice required under this Agreement must be in writing. Any notice will be deemed given when personally delivered or delivered by facsimile transmission (with electronic confirmation of delivery), or will be deemed given three business days following delivery of the notice by U.S. mail, certified, postage prepaid, by the applicable party to the address of the other party first shown above (or any other address that a party may designate by notice to the other party), unless that day is a Saturday, Sunday, or legal holiday, in which event it will be deemed delivered on the next following business day.
7.3 Waiver and Entire Agreement. No provision ofthis Agreement may be modified, waived, or discharged unless such modification, waiver, or discharge is agreed to in writing by City and Attorney. No waiver of either party at any time of the breach of, or lack of compliance with, any conditions or provisions of this Agreement will be deemed a waiver of other provisions or conditions hereof. This Agreement
4- PROFESSIONAL SERVICES AGREEMENT (1SS64001-007Z838Z;1) contains the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and contains ait of the terms and conditions of the parties' agreement and supersedes any other oral or written negotiations, discussions, representations, or agreements.
7.4 Assignment and Binding Effect. I\teither party may assign or deiegate any of the party's rights or obligations under this Agreement to any person without the prior written consent of the other party. Subject to the immediately preceding sentence, this Agreement wiil be binding on the parties and their respective heirs, personal representatives, successors, and permitted assigns, and will inure to their benefit.
7.5 Governing Law: Venue. This Agreement wiii be governed by and construed in accordance with the laws of the State of Oregon, and venue for any action concerning this Agreement wiii lie in Oeschutes County, Oregon.
7.6 Additionai Provisions. Attachments, and Amendments. All exhibits, schedules, instruments, and other documents referenced in this Agreement are part of this Agreement. All capitalized terms contained in such exhibits, schedules, instruments, and documents not otherwise defined therein wiil have the respective meanings assigned to them in this Agreement. This Agreement may be amended only by a written agreement signed by each party.
7.7 Attorney's Fees. If litigation or arbitration is instituted to enforce or determine the parties' rights or duties arising out of the terms of this Agreement, the prevailing party wiil recover from the losing party reasonable attorney's fees incurred in such proceeding to the extent permitted by the judge or arbitrator, in arbitration, at trial, on appeal, or in any bankruptcy proceedings.
7.8 interpretation and Signatures. Ail pronouns contained herein and any variations thereof will be deemed to refer to the masculine, feminine, or neutral, singular or plural, as the identity of the parties may require. The singular includes the plural and the plural includes the singular. The word "or" is not exclusive. The words "include," "includes," and "including" are not limiting. For purposes of this Agreement,the term "person" means any natural person, corporation, limited liability company, partnership,joint venture,firm, association, trust, unincorporated organization, government or governmental agency or political subdivision, or any other entity. This Agreement may be signed in counterparts. A fax or email transmission of a signature page will be considered an original signature page. At the request of a party, the other party will confirm a fax or email transmitted signature page by delivering an original signature page to the requesting party.
7.9 Legal Representation. Attorney does not represent City in connection with this Agreement. City has thoroughly reviewed this Agreement with legal counsel of its choosing or has knowingly waived the right to do so. The rule of construction that a written instrument is construed against the party preparing or drafting such written instrument will specifically not be applicable to the interpretation of this Agreement, and any documents executed and delivered pursuant to, or in connection with, this Agreement.
[end of agreement - signature page immediately follows]
S - PROfESSIONAI SERVICES AGREEMENT (16564001-C0728382;1) IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed and effective as of the Effective Date.
CITY; ATTORNEY; City of Sisters, Bryant, Lovlien & Jarvis, P.C., an Oregon municipal corporation an Oreggn professional corporation
By; Richard L. Allen Its; Interim City Manager President
S - PROFESSIONAL SERVICES AGREEMENT {16564001-007J8383;S| Schedule 1.1 Description of Services
Attorney will perform the following Services for and on behalf of City:
1. Services - General. Attorney will provide City legal advice upon request. Jeremy M. Green will be designated and appointed City Attorney.
2. Services - Specific Duties and Responsibilities. As legal counsel for City, Attorney will perform the following Services:
(a) Attend (in person or via teleconference) regular City Council meetings (including City Council work sessions) and any other meetings if and when requested by City (including, without limitation, land use public hearings, neighborhood meetings, land purchase/sale meetings, etc.).
(b) Provide appropriate oral or written legal advice and opinions required or requested by City. Legal advice and opinions may be requested by City or originated and proposed to City by Attorney.
(c) Review and prepare findings, decisions, documents, motions, resolutions, ordinances, contracts, leases, purchase agreements, and other legal documents consistent with existing laws, statutes, administrative rules, and regulations.
(d) Advise and assist City in matters involving municipal law, Oregon budget law, elections, special elections, and state laws governing public leasing, purchasing and contracting, code development and enforcement, intergovernmental agreements, federal civil rights and related state and federal issues, and employment matters.
(e) Represent City in litigation where appropriate and assist and cooperate with special counsel as necessary. It is understood by the parties that Attorney will assist in identifying those areas where special counsel may be required and to assist City in the selection of special counsel.
(f) Provide such other legal assistance and advice as City may request from time to time.
schedule 11 -DESCRIPTION OF SERVICES (16564001-00728382,1)
SECOND EXTENSION TO PROFESSIONAL SERVICES AGREEMENT
This Second Extension to Professional Services Agreement (this “Second Extension”) is entered into and made effective for all purposes on July __, 2021 (the “Effective Date”) between City of Sisters (“City”), an Oregon municipal corporation, whose address is 520 East Cascade Avenue, PO Box 39, Sisters, Oregon 97759, and Bryant, Lovlien & Jarvis, P.C. (“Attorney”), an Oregon professional corporation, whose address is 591 SW Mill View Way, Bend, Oregon 97702.
RECITAL:
City and Attorney are parties to a certain Professional Services Agreement dated effective August 4, 2016 (the “Original Agreement”), pursuant to which Attorney agreed to provide certain Services for and on behalf of City. Pursuant to the terms of the Original Agreement and a certain First Extension to Professional Services Agreement dated effective July 24, 2019 (the “First Extension”), the term of the Agreement will expire on August 3, 2021. City and Attorney desire to enter into this Second Extension to, among other things, further extend the term of the Agreement. For purposes of this Second Extension, the term “Agreement” means the Original Agreement and First Extension.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises contained herein and the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Extended Term. City and Attorney extend the term of the Agreement for one additional term of three years, commencing on August 4, 2021 and ending on August 3, 2024 (the “Extended Term”), unless sooner extended or terminated as provided in the Agreement. The Extended Term will be on the same terms and conditions contained in the Agreement, provided that effective July 1, 2021 (a) shareholders will bill at the rate of $225.00 per hour, (b) associates will bill at the rate of $195.00 per hour, and (c) Attorney may continue to provide certain Services (e.g., audit letters and legal opinions) at a fixed fee. City and Attorney will annually review the Agreement to determine whether changes or modifications to Attorney’s hourly billing rates are necessary or appropriate.
2. Miscellaneous. City and Attorney affirm and reaffirm to each other each of the representations, warranties, covenants, and agreements set forth in the Agreement, except as modified and supplemented by this Second Extension, with the same force and effect as if each were separately stated in, and made part of, this Second Extension. This Second Extension is hereby made part of the Agreement. The provisions of the Agreement that are not amended and/or modified by this Second Extension remain unchanged and in full force and effect. All capitalized terms contained in this Second Extension that are not otherwise defined in this Second Extension have the meanings assigned to them in the Agreement.
[end of agreement – the signature page immediately follows]
1 – SECOND EXTENSION TO PROFESSIONAL SERVICES AGREEMENT {16564001-01351642;1} IN WITNESS WHEREOF, the undersigned have caused this Second Extension to be executed and made effective for all purposes as of the Effective Date.
CITY: ATTORNEY: City of Sisters, Bryant, Lovlien & Jarvis, P.C., an Oregon municipal corporation an Oregon professional corporation
______By: Michael Preedin, Mayor By: Jeremy M. Green, Vice President
2 – SECOND EXTENSION TO PROFESSIONAL SERVICES AGREEMENT {16564001-01351642;1}
CITY COUNCIL
Agenda Item Summary
Meeting Date: July 14, 2021 Staff: Misley, Prosser, Type: Workshop Dept: CMO Subject: Charter Review
Action Requested: Direction on whether Council would like staff to pursue amendments to the City Charter.
Summary Points: A municipal charter is the basic document that defines the organization, powers, functions and essential procedures of the city government. It is comparable to the Constitution of the United States or a state’s constitution. The charter is the most important legal document of any city. The City of Sisters original Charter was established in 1948 and was updated in 1967 and 2003.
In the spring staff, in conjunction with Oregon’s Kitchen Table, applied for a substantial grant from the Oregon Community Foundation to design and implement a charter review process. Unfortunately, the City was not awarded the grant funds. Staff than re-assessed how the Charter could be amended to reflect changes that are surgical in nature and could be updated without the formation of a Charter review committee. Potential amendments include:
2003 Charter Potential Amendments Section 3 3.2 The City shall include all territory encompassed by its Annexation only boundaries as they now exist or hereafter are modified by allowed by a vote; a majority of voters. Unless mandated by State law, any consider removing. annexation delayed or otherwise, to the City of Sisters may only be approved by a prior majority vote among the electorate. (Ballot Measure 9-40, 1996).
3.3 Unless mandated by State law, any future extension or Expansion of City expansion of city services beyond the city limits, except Services requires a for emergency services, shall require prior approval by a vote of the majority vote among the electorate. (Ballot Measure 9- electorate; consider 41, 1997). removing
Section RULES. The council shall, by ordinance, prescribe rules to Council rules set by 13 govern its meetings and proceedings. ordinance-revise to read resolution
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us
CITY COUNCIL
Agenda Item Summary
24.6j (6) The manager shall: (j) Shall serve as the City Recorder. Remove the The recorder shall serve ex officio as clerk of the council condition that the unless excused by the council, keep an accurate record of City Manager serve its proceedings, function as the custodian of public as City Recorder. records, and sign all orders on the treasury. In the Remove the recorder's absence from a council meeting, the mayor condition that the shall appoint a clerk of the council pro tem who, while Mayor appoints a acting in that capacity, shall have all the authority and recorder in case of duties of the recorder. the absence of the recorder at a Council meeting. Section The City of Sisters may waive system development Remove or Change 42.3 charges for affordable housing provided by non-profit from the current 50- organizations. In exchange for a waiver, the housing shall year period of be affordable for a period of fifty (50) years. Violation of required affordability this agreement shall require full payment of system to a shorter period. development charges.
Changes to the Charter must be voted on by the citizens of Sisters. There is no cost to the city if the vote is held at a Primary or General Election, (ORS 254.046); that would be May or November of even-numbered years only: May or November 2022.
Financial Impact: Legal Fees ______Attachments: • 2003 City Charter
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us Preamble We, the people of Sisters, Oregon, in order to avail ourselves of self-determination in municipal affairs to the fullest extent now or hereafter possible under the constitutions and laws of the United States and the state of Oregon, through this charter confer upon the city the following powers, subject it to the following restrictions, prescribe for it the following procedures and governmental structure, and repeal all previous charter provisions of the city.
CITY OF SISTERS CHARTER
To provide for the government of the City of Sisters, Deschutes County, Oregon; and to repeal all charter provisions of the City enacted prior to the time that this Charter takes effect.
Be it enacted by the people of the City of Sisters, Deschutes County, Oregon:
CHA PTER I NAME AND BOUNDARIES
Secti on 1. TITLE OF ENACTMENT. This charter may be r ef er r ed to as the 2003 Sisters Charter.
Section 2. NAME OF CITY. The city of Sisters, Deschutes County, Oregon, shall continue to be a municipal corporation with the name, " City of Sisters" .
Secti on 3. BOUNDARIES.
(1) The city includes all territory within its boundaries as they now exist or hereafter are modified pursuant to state law. The custodian of the city's records shall keep an accurate, current description of the boundaries and make a copy of it available for public inspection during regular city office hours.
(2) The City shall include all territory encompassed by its boundaries as they now exist or her eaf ter ar e modi f i ed by a maj or i ty of voter s. Unl ess mandated by State l aw, any annexati on delayed or other wi se, to the Ci ty of Si ster s may onl y be appr oved by a pr i or maj or i ty vote among the el ector ate. (Bal l ot M easur e 9-40, 1996).
(3) Unl ess mandated by State l aw, any f utur e extensi on or expansion of city services beyond the city limits, except for emergency services, shall require prior approval by a majority vote among the el ector ate. (Bal l ot M easur e 9-41, 1997).
CHA PTER I I POWERS
Secti on 4. POWERS OF THE CITY. The city shall have all powers which the constitutions, statutes, and common law of the United States and of this state expressly or by implication grant or allow
Adopted 2003 City of Sisters Charter Page 1 of 9 municipalities as fully as though this charter specifically enumerated each of those powers.
Secti on 5. CONSTRUCTION OF CHARTER. In this charter, no specification of a power is exclusive or restricts authority that the city would have if the power were not specified. The char ter shal l be liberally construed so that the city may exercise fully all its powers possible under this charter and under United States and Oregon law. All powers are continuing unless a specific grant of power clearly indicates the contrary.
CHAPTER III FORM OF GOVERNMENT
Section 6. DISTRIBUTION OF POWERS. Except as thi s char ter provides otherwise and as the Oregon Constitution reserves municipal legislative power to the voters of the city, al l power s of the ci ty are vested in the council.
Section 7. COUNCIL. The council shall be composed of five councilors el ected f r om the ci ty at l ar ge.
Secti on 8. COUNCILORS. The term of office of a councilor in office when thi s char ter i s adopted is the term of office for which the councilor has been elected before adoption of the charter (or is elected at the time of the adoption.) At each gener al el ecti on af ter the adoption, thr ee councilors shall be elected. Of the three, the two receiving the two highest numbers of votes shall each hold office for four years, and the one receiving the next highest number of votes shall hold office f or two year s. A t each subsequent biennial general election, three councilors shal l be el ected. Of the thr ee, the two r ecei vi ng the two highest numbers of votes shall each hold office for four years, and the one receiving the next highest number of votes shall hold office for two years.
Section 9. MAYOR. The term of office of the mayor in office when this charter is adopted continues until the beginning of the first odd- numbered year after that time. At the first meeting of the Council in each odd-numbered year beginning with the first odd-numbered year after the adoption of this Charter, Council shall elect one of its members to serve as mayor for a term of two years.
Section 10. TERMS OF OFFICE. The term of office of an elective officer who is elected at a general election begins at the first council meeting of the year immediately after the election and continues until the successor to the office assumes the office.
Section 11. APPOINTIVE OFFICES. A majority of the council may: (1) Create, abolish, or combine appointive city offices, and (2) Fill such offices by appointment and vacate them by removal.
Section 12. QUA L I FI CA TI ONS OF OFFI CERS. No per son shal l be el i gi bl e f or an el ecti ve office of the city unless he or she resides in the city limits and is a qualified elector within the meaning of the state constitution and has resided in the city during the twelve months immediately preceding the election. The council shall be final judge of the qualifications and election of its own member s, subj ect, however, to review by a court of competent jurisdiction.
CHAPTER IV COUNCIL
Adopted 2003 City of Sisters Charter Page 2 of 9
Section 13. RULES. The council shall, by ordinance, prescribe rules to govern its meetings and proceedings.
Section 14. MEETINGS. The council shall meet in the city regularly at least once a month at a time and place designated by council rules, and may meet at other times in accordance with the rules.
Section 15. QUORUM. A majority of the council constitutes a quorum for its business, but a smal l er number may meet and compel the attendance of absent member s i n a manner pr ovi ded by or di nance.
Section 16. RECORD OF PROCEEDINGS. A record of council proceedings shall be kept and authenticated in a manner prescribed by the council.
Secti on 17. PROCEEDINGS TO BE PUBL IC. No action by the council shall have legal effect unless the motion for the action and the vote by which it is disposed of take place at proceedings open to the public.
Section 18. MAYOR'S FUNCTIONS AT COUNCIL MEETINGS. (1) When present at council meetings the mayor shall: (a) Preside over deliberations of the council, (b) Preserve order, (c) Enforce council rules, and (d) Determine the order of business under the rules. (2) Notwithstanding subsection (1) of this section, the mayor may temporarily cease to chair a council meeting and delegate the functions described in subsection (1) to another council member. (3) The Mayor is a voting member of the council.
Section 19. COUNCIL PRESIDENT. (1) At its first meeting after this charter takes effect and at its first meeting of each odd-numbered year, the council shall appoint a president from its councilors. (2) The president shall function as mayor when the mayor is: (a) Absent from a council meeting, or (b) Unable to function as mayor.
Section 20. V OTE REQUI RED. Except as thi s char ter prescribes other wi se, the express concur r ence of a maj or i ty of the council member s pr esent and constituting a quorum is necessar y to deci de affirmatively a question before the council.
Section 21. VACANCIES: OCCURRENCES. The office of a member of the council becomes vacant: (1) Upon the incumbent's: (a) Death, (b) Adjudicated incompetence, (c) Recall from the office, or (d) Conviction of a felony (2) Upon declaration by the council of the vacancy in case of the incumbent's:
Adopted 2003 City of Sisters Charter Page 3 of 9 (a) Failure, following election or appointment to the office, to qualify for the office within ten days after the time for his or her term of office to begin, (b) Absence from the city for 30 days without the council's consent or from all meetings of the council within a 60 day period; (c) Ceasing to reside in the city, (d) Ceasing to be a qualified elector under state law, or (e) Resignation from the office.
Section 22. VACANCIES: FILLING. A vacancy in the council shall be filled by appointment by a majority of the council. The appointee's term of office begins at the time of his or her qualifying for the office after the appointment and until expiration of the term of the predecessor who has left the office vacant. During a council member's inability to serve on the council during a member's absence from the city, a majority of the other council members may by appointment fill the vacancy pro tem.
CHA PTER V POWERS AND DUTIES OF OFFICERS
Section 23. MAYOR. The mayor shall appoint, with council approval: (1) Members of committees established by council rules, and (2) Other persons required by the council to be so appointed. (3) The mayor, or in his or her absence or inability to act, the council president, shall sign all ordinances and resolutions; and all other official documents, including but not limited to contracts and deeds, unless the council has specifically authorized other city personnel to sign such official documents.
Section 24. CITY MANAGER. (1) The city manager is the administrative head of the city government. (2) A majority of the council shall appoint and may remove the manager. The appointment shall be without regard to political considerations and solely on the basis of administrative qualifications. (3) The manager need not reside in the city or the state when appointed, but promptly thereafter shall reside within the Sisters School District boundaries during tenure of office. (4) Upon accepting the appointment, the manager shall furnish the city a bond in an amount and with a surety approved by the council. The city shall pay the bond premium. (5) The manager shall be appointed for a definite or indefinite term and may be removed by the council at its pleasure. Within six consecutive months after a vacancy occurs in the office, the council shall fill the vacancy by appointment. (6) The manager shall: (a) Attend all council meetings unless excused by the council or mayor, (b) Keep the council advised of the affairs and needs of the city, (c) See that the provisions of all ordinances are administered to the satisfaction of the council, (d) See that all terms of franchises, leases, contracts, permits, and privileges granted by the city are fulfilled, (e) Appoint, supervise, control, discipline and remove city personnel, except appointees of the mayor or council, (f) Organize and reorganize the departmental structure of city government,
Adopted 2003 City of Sisters Charter Page 4 of 9 (g) Prepare and transmit to the council an annual city budget, (h) Supervise operation of all city-owned public utilities and property, and (i) Perform other duties as the council prescribes consistent with this charter. (j) Shall serve as the City Recorder. The recorder shall serve ex officio as clerk of the council unless excused by the council, keep an accurate record of its proceedings, function as the custodian of public records, and sign all orders on the treasury. In the recorder's absence from a council meeting, the mayor shall appoint a clerk of the council pro tem who, while acting in that capacity, shall have all the authority and duties of the recorder. (7) The manager may not control: (a) The council (b) The municipal judge in the judge's judicial functions; or, (c) Except as the council authorizes, appointive personnel of the city whom the manager does not appoint. (8) The manager and other personnel whom the council designates may sit with the council but may not vote on questions before it. The manager may take part in all council discussions. (9) When the manager is absent from the city or disabled from acting as manager, or when the office of manager becomes vacant, the council shall appoint a manager pro tem who has the powers and duties of manager, except that the manager pro tem may appoint or remove personnel only with approval of the council. No person may be manager pro tem more than six consecutive months. (10) No council member may directly or indirectly, by suggestion or otherwise, threaten or coerce the manager or a candidate for the office of manager in the appointment, discipline, or removal of personnel or in decisions regarding city property or contracts. A violator of this prohibition may be removed from office by a court of competent jurisdiction. In council meeting, members of the council may discuss with, or suggest to, the manager anything pertinent to city affairs.
Section 25. MUNICIPAL COURT AND JUDGE. (1) The council may create the office of municipal judge and fill it by appointment. The judge shall hold court within the city at a place and time specified by the judge. (2) Except as this charter or city ordinance prescribes to the contrary, proceedings of the court shall conform to general laws of this state governing justices of the peace and justice courts. (3) All area within the city and to the extent provided by state law, area outside the city is within the territorial jurisdiction of the court. (4) The municipal court has original jurisdiction over every offense that an ordinance of the city makes punishable or as otherwise punishable under state law. (5) The municipal judge may render and enforce judgments, impose sanctions on persons and property with the court's jurisdiction, issue process for the arrest of any person accused of an offense against the ordinances of the city, to commit any such person to jail or admit that person to bail pending trial, to issue subpoenas, to compel witnesses to appear and testify in court on the trial of any matter before the court, to compel obedience to such subpoenas, to issue and process documents necessary to carry into effect the judgments of the court, to punish witnesses and others for contempt of court, to perform all other judicial functions prescribed by ordinance. The council may authorize the municipal judge to appoint municipal judges pro tem for terms of office set by the judge or the council. (6) Notwithstanding this section, the council may transfer some or all of the functions of the municipal court to an appropriate state, county, or justice court. (7) The council shall establish, and may adjust, the compensation of the municipal judge.
Adopted 2003 City of Sisters Charter Page 5 of 9
CHAPTER VI ELECTIONS
Section 26. REGUL A R EL ECTI ONS. Regul ar ci ty el ecti ons shal l be hel d at the same ti mes and pl aces as bi enni al gener al state el ecti ons, i n accor dance wi th appl i cabl e state el ecti on l aws.
Section 27. NOTICE OF REGULAR ELECTIONS. The recorder shall post the notice of election filed with the county in three conspicuous places in the city. The notice shall state the officers to be elected, the ballot title of each measure to be voted upon, and the time and place of the el ecti on.
Secti on 28. SPECIAL ELECTIONS. The council shall provide the time, manner, and means for holding any special election provided that special elections shall be conducted in accordance with the general election laws of the state. The r ecor der shal l provide notice of each special election in the same manner as regular elections.
Section 29. REGULATION OF ELECTIONS. Except as this charter provides otherwise and as the council provides otherwise by ordinances relating to elections, the gener al l aws of the state shal l appl y to the conduct of all city elections, recounts of the returns therefrom, and contests thereof.
Secti on 30. CANVASS OF RETURNS. In all elections held in conjunction with state and county el ecti ons, the state l aws governing the filing of returns by the county clerk shall apply. Not later than ten days af ter the el ecti on, the counci l shal l meet and canvass the r etur ns at the first regular meeting after receipt of the election results. The r esul ts of al l el ecti ons shall be made a matter of record in the journal of the proceedings of the council. The journal shall contain a statement of the total number of votes cast at each election, the votes cast for each person elected to office, the office to which he or she has been el ected, and a r ef er ence to each measur e enacted or appr oved. I mmedi atel y af ter the canvass i s compl eted, the r ecor der shal l make and si gn a cer ti f i cate of el ecti on of each per son el ected and del i ver the cer ti f i cate to him within one day after the canvass. A cer ti f i cate so made and del i ver ed shal l be pr i ma f aci e evi dence of the truth of the statements contained in it.
Section 31. TIE VOTES. In the event of a tie vote for candidates for an elective office, the successf ul candi date shal l be determined by a public drawing of lots in a manner prescribed by the council.
Section 32. OATH OF OFFICE. Before entering into the duties of his or her office, each officer shall take an oath or shall affirm that he or she will support the constitutions and l aws of the Uni ted States and of the state of Oregon and that he or she will faithfully perform the duties of his or her office.
Section 33. NOMINATIONS. A qualified elector who shall have resided in the city during the 12 months immediately preceding the election may be nominated for an elective city position. Nomination shall be by petition specifying the position sought in a form prescribed by the council. Such petition shall be signed by not fewer than 10 electors. No elector shall sign more than one petition for each vacant position. If he does so, his signature shall be valid only on the first sufficient petition filed for the position. The nomination petition shall be assembled, circulated and filed with the recorder in accordance with county election procedures The r ecor der shal l make a r ecor d of the exact ti me at whi ch each peti ti on i s filed and shal l take and pr eser ve the name and addr ess of the per son by whom i t i s f i l ed. I f the peti ti on i s
Adopted 2003 City of Sisters Charter Page 6 of 9 not signed by the required number of qualified electors, the recorder shall notify the candidate and the person who filed the petition within five days after the filing. If the petition is insufficient in any other particular, the recorder shall return it immediately to the person who filed it, certifying in writing wherein the petition is insufficient. Such deficient petition may be amended and filed again as a new petition, or a substitute petition for the same candidate may be filed within the regular time for filing nomination petitions. The recorder shall notify an eligible person of his nomination, and such person shall file with the recorder his written acceptance of nomination, in such form as the council may require, within five days of notification of nomination. Upon receipt of such acceptance of nomination, the recorder shall cause the nominee' s name to be printed on the ballots. The petition of nomination for a successful candidate at an election shall be preserved in the office of the recorder until the term of office for which the candi date i s el ected expi r es.
CHAPTER VIII ORDINANCES
Section 34. ORDAINING CL A U SE. T he ordaining cl ause of an ordinance shall be, "The City of Si ster s or dai ns as f ol l ows: " .
Section 35. ADOPTION BY COUNCIL
(1) Except as subsection (2) of this section allows adoption at a single meeting and subsection (3) of this section allows reading by title only, an ordinance shal l be fully and distinctly read before being adopted by the council.
(2) Except as subsection (3) of this section allows reading by title only, the council may adopt an ordinance at a single meeting by the unanimous vote of all council members present, provided the ordinance is read first in full and then by title.
(3) A reading of an ordinance may be by title only if: (a) No council member present at the meeting requests to have the ordinance read in full, or (b) At least one week before the reading: (i) A copy of the ordinance is provided for each council member. (ii) A copy of the ordinance is available for public inspection in the office of the custodian of city records. (iii) Written notice is posted that the ordinance is available for public inspection. (iv) An ordinance read by title only has no legal effect if it differs substantially from its terms as it was filed prior to the reading unless each section so differing is read fully and distinctly in open council meeting before the council adopts the ordinance. (v) Upon the adoption of an ordinance, the ayes and nays of the council members shall be entered in the record of council proceedings. (vi) After adoption of an ordinance, the custodian of city records shall endorse it with its date of adoption and the endorser's name and title of office.
Section 36. EFFECTIVE DATE. An ordinance takes effect 30 days after adoption by the council or on a later day as the ordinance prescribes. An ordinance adopted to meet an emergency may take effect as soon as adopted.
Adopted 2003 City of Sisters Charter Page 7 of 9 CHA PTER I X PUBLIC IMPROVEMENTS
Section 37. CONDEMNATION. Any necessity of taking property for the city by condemnation shall be determined by the council and declared by a resolution of the council describing the property and stating the uses to which it shall be devoted.
Section 38. IMPROVEMENTS. (1) The procedure for making, altering, vacating, or abandoning a public improvement shall be governed by general ordinance or, to the extent not so governed, by the appl i cabl e state l aw. Proposed action on a public improvement that is not declared by two-thirds of the council present to be needed at once because of an emergency shall be suspended for six months upon a remonstrance by owners of land to be specially assessed for the improvement. The number of owners necessary to suspend the action shall be prescribed by general ordinance. A second such remonstrance suspends the action only with the consent of the council. (2) In this section " owner" means the record holder of legal title or, as to land being purchased under a land sale contract that is recorded or verified in writing by the record holder of legal title, the purchaser.
Section 39. SPECI A L A SSESSM EN T . T he pr ocedur e f or fixing, levying, and collecting special assessments against real property for public improvements or other public ser vi ces shal l be gover ned by general ordinance.
Section 40. BIDS. Contracting procedures for public improvements shall comply with the general laws of the state for public improvement contracts.
CHA PTER X M I SCEL L A N EOU S PROV I SI ON S
Section 41. TORTS. In no event shall the city be liable for damages for an injury to person, a damage to property, or a death, caused by a defect or a dangerous condition in a public thoroughfare, site, or facility, unless the city has had actual notice prior to the injury, damage, or death that the defect or condition existed and has had a reasonable time thereafter in which to repair or remove it. In no case shall more than $500 be recovered as damages for an injury, damage, or death resulting from such a defect or dangerous place. No action shall be maintained against the city for damages growing out of such injury, damage, or death unless the claimant first gives written notice to the council within 30 days after the injury, damage or death is sustained, stating specifically the time when, the place where, and the ci r cumstances under which it was sustained, and that he will claim damages ther ef or of the city in an amount which is specified. But in no event shall the action be started until 30 days have elapsed after the presentation of this notice to the council.
Secti on 42. SYSTEM DEVELOPMENT CHARGES.
(1) The purpose of this charter provision is to insure that new development bear the full cost of existing and future capital improvements affected by the development.
(2) The City of Sisters shall impose system development charges upon new development associated with public capital improvements, including connections to such improvements, to the extent allowed by State law and subject to any limitations provided by federal and state constitutions and the laws of the State of Or egon. System devel opment char ges shal l i ncl ude r ei mbur sement f ees to the Ci ty of
Adopted 2003 City of Sisters Charter Page 8 of 9 Sisters for the costs of increased usage of existing capital improvements by new developments. System development charges shall also include improvement fees for an equitable share of projected capital improvements required to increase the capacity of improvements associated with new developments. Applicants for new development permits shall pay system development charges determined in accordance wi th a methodology designed to allocate to new development the full cost of existing and proposed capital i mpr ovements to the extent associ ated wi th the new devel opment. Payment of system devel opment char ges may be deferred at the discretion of the city to no later than issuance of a certificate of occupancy. The system development charges and the methodology for their determination shall be periodically updated to reflect amendments to the City of Sisters capital improvement plan and other relevant factors.
(3) The City of Sisters may waive system development charges for affordable housing provided by non-pr of i t or gani zati ons. I n exchange f or a wai ver , the housi ng shal l be af f or dabl e f or a period of fifty (50) years. Violation of this agreement shall require full payment of system development char ges.
(4) As used in this provision, all definitions of terms shall be as defined by the laws of the State of Oregon, and, in addition, " development" means: The first establishment of a use involving the construction or the placing of structure upon a parcel of land that was not occupied by any structure prior to that event; or any construction, alteration or change of occupancy which increases the usage of any capital improvement or which creates additional demand upon existing capital improvements.
(5) If any part of this charter provision violates the Constitution of the United States, or the Constitution of Oregon, or the laws of either, it alone will be invali date, and the remainder of this charter provision shal l r emai n i n f or ce.
(6) The City of Sisters shall implement this charter provision within 180 days of its passage. (Bal l ot M easur e 9-62, 1998).
Section 43. DEBTS. The city's indebtedness may not exceed debt limits imposed by state law. A city officer or employee who creates or officially approves indebtedness in excess of this limitation is jointly and severally liable for the excess. A charter amendment is not required to authorize city indebtedness.
Section 44. CONTINUATION OF ORDINANCES. Insofar as consistent with this charter, and until amended or repealed; all ordinances in force when the charter takes effect retain the effect they have at that time.
Section 45. REPEAL. All charter provisions adopted before this charter takes effect are hereby repealed
Section 46. SEVERABILITY. The terms of this charter are severable. If a part of the charter is held invalid; that invalidity does not affect another part of the charter, except as the logical relation between the two parts requires.
Section 47. TIME OF EFFECT. This charter takes effect November 5, 2003.
Adopted 2003 City of Sisters Charter Page 9 of 9
CITY COUNCIL
Agenda Item Summary
Meeting Date: July 14, 2021 Staff: Bertagna/Mard ell Type: Workshop Dept: Public Works Subject: Proposed amendments to the Sisters Municipal Code
Action Requested: Provide direction to staff to move ahead to a Public Hearing with the proposed amendments with any necessary edits.
Summary Points: • The City of Sisters has been a Tree City under the Arbor Day Foundation for 14 consecutive years beginning in 2007. As part of the Arbor Day Foundation’s requirements, the City established an advisory Urban Forestry Board (UFB) to assist in management of the urban forest.
• The role of the City’s Urban Forestry program is to oversee the City’s annual urban forestry work plan and provide input on management of public trees which are those on city land or those in the public rights of way. The UFB advises the city on requests to remove, replace, prune or plant public trees.
• In recent years, the City’s Public Works Department has provided oversight to the Urban Forestry Board and the City’s management of public trees. Public Works staff has intimate knowledge of city property and public rights of way and handles all other coordination for matters involving this type of property.
• The Urban Forestry section is currently codified through the Sisters Development Code and is written to be administered by the Community Development Director. In coordination with the Community Development Department, staff is proposing to delete this section (3.2.700) from the Sisters Development Code and replace the language in its entirety to Municipal Code Section 4.05. In this approach management will shift from the Community Development Director to the Public Works Director. The benefit of shifting the language out of the development code to the municipal code, is that tree removal on public property and public rights of way will become enforceable both during and outside of land use applications and proceedings and provide greater clarity to staff and members of the public. The change will not impact the City’s ability to comply with the Arbor Day foundation’s Tree City requirements. Sections 3.2.500 – relating to review of existing trees on private property during development, and 3.2.600 – street trees associated with development, will remain unchanged and located in the Sisters Development Code.
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us
CITY COUNCIL
Agenda Item Summary
• A public hearing on the proposed development code amendments was held before the Planning Commission on May 6, 2021. No public testimony was received. The Planning Commission voted to recommend approval of the development code amendments to City Council.
• The UFB worked on the proposed code language and added language to the Heritage tree section to make it more robust as well as included specific wildfire resiliency wording to assist with our forest management. The UFB also recommended the code changes to City Council at their June 14th, 2021, meeting.
Financial Impact: Staff time with Legal expenditures anticipated in the FY 20/21 and FY 21/22 budgets. ______Attachments: SMC Chapter 4.05 amendments Draft Ordinance amending SMC Chapter 4.05
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us EXHIBIT A – PROPOSED DEVELOPMENT CODE AMENDMENTS CITY OF SISTERS DEVELOPMENT CODE 3.2.700 URBAN FORESTRY
New text shown in blue underline Removed text shown in red strikethrough
Chapter 4.05
REGULATION OF CITY PARKS AND PUBLIC PROPERTY
Sections: 4.05.010 Definitions. 4.05.020 Rules and regulations. 4.05.030 Exclusions. 4.05.040 Urban Forestry Board. 4.05.050 Heritage Trees. 4.05.0460 Penalties. 4.05.070 Appeals.
4.05.010 Definitions. As used in this chapter, the following shall mean:
Camping. For the purpose of this chapter, “camping” shall be defined as any tent, trailer, or recreational vehicle parked on public property or public right-of-way for the expressed intention of spending the night.
“Health officer” means the Deschutes County sanitarian.
“Heritage Tree(s)” means a tree that because of its age, size, type, historical association and/or horticultural value, is of special importance to the city, meets the criteria established in SMC 4.05.050(2) and has been included in an inventory contained within the Urban Forest Management Plan.
“Public property” means property owned by or under the control of the city of Sisters City of Sisters including, without limitation, all property leased by the City, all public utility easements, all easements to the benefit of the City, and all rights-of-way owned and/or managed by the City.
“Public tree” means any tree located on public property.
“Public Works Director” means the City’s director of public works or designee including, without limitation, a contract City Forester. [Ord. 266A § 1, 1994; Ord. 266 § 1, 1994. Code 2002 § 4.01.010].
{16564005-01322212;5} 4.05.020 Rules and regulations. The following rules and regulations shall govern and control the permitted use of all city parks and public property for use by the public unless otherwise specifically allowed in a valid public event permit:
(1) No fire shall be built, lighted or maintained within a city park or upon public property except in a camp stove, barbecue unit, or fireplace provided, maintained or designated for that purpose; excepting, however, that gasoline, alcohol, or oil camp stoves may be used in established campsites or picnic areas. No fire shall be left unattended, and all fires shall be extinguished by the user before leaving the park or public property.
(2) No person shall erect signs, markers or inscriptions of any type in a city park or public property of the city without permission of the city of Sisters.
(3) No person, while in a city park or upon public property, may operate a concession, either fixed or mobile, or engage in the business of soliciting, selling or peddling any liquids or eatables for human consumption, or hawk, peddle, or vend any goods, wares or merchandise, without permission of the city of Sisters.
(4) No dogs or pets shall be allowed in a city park or upon public property unless said animals are confined in a vehicle or kept on a leash. No animals, with the exception of seeing-eye dogs, shall be allowed in any buildings, except in specifically designated areas.
(5) No bottles, cans, ashes, waste, paper, garbage or other rubbish shall be left in a city park or upon public property except in receptacles designated for that purpose.
(6) Automobiles, trailers, or other vehicles shall be parked in designated parking areas only.
(7) No person shall set up or use a public address system in a city park or upon public property unless approved by city of Sisters. No person shall operate or use any noise producing machine, vehicle, device or instrument in such a manner that it disturbs other people in the area.
(8) No person shall ride, drive, lead or keep a horse or other animal in a city park or upon public property except upon such roads, trails or area designated for that purpose. This section shall not apply to highways, streets, roads and alleys located within the city.
(9) No person shall ride, drive or operate any motorcycle, motor bike, or motor scooter in a city park or upon public property except upon such roads, trails or areas designated for that purpose. This section shall not apply to the lawful use of highways, streets, roads or alleys located within the city.
{16564005-01322212;5} (10) Fireworks and Firearms. No person shall use, discharge, or possess fireworks within city parks or public property unless authorized pursuant to ORS Chapter 480. No person, other than a peace officer, may fire or discharge a crossbow or gun, including spring- or air-actuated pellet gun, or a weapon that propels a projectile by use of gunpowder or other explosive, jet, or rocket propulsion in a public park. The provisions of this section shall not be construed to prohibit firing or discharging a weapon by any person in defense or protection of his property, person, or family.
(11) Fee Area. Where camping fees are required, fees must be paid within 30 minutes of first using the site, facility, equipment, or service furnished. Fees charged for the overnight parking of recreational vehicles must include the transient room tax, if any, which is charged by the city under the transient room tax ordinance.
(12) The city of Sisters is not responsible for any loss or damage to personal property.
(13) Overnight camping and/or overnight RV parking is allowed only in areas designated for that purpose.
(14) No person shall stay more than 14 days maximum in any 60-day period in any designated camping space or designated RV parking space.
(15) All parks and public places shall be open to the public between the hours of 5:00 a.m. and 11:00 p.m., except for designated camping and RV parking areas, and except where a public event permit provides for different hours of operation.
(16) Unless otherwise provided in a public event permit, no person shall possess or consume any intoxicating liquor in a public park or on public property, except any person or persons may possess or consume alcohol in a designated campsite or designated RV overnight parking space, and except any person or persons may possess or consume alcohol within city parks or on public property provided they first obtain a private use permit from the city. No person shall use, possess, or manufacture controlled substances within city parks or public property pursuant to ORS 475 et seq.
(17) Unless otherwise allowed in this chapter, no person shall operate a motor vehicle within the confines of any city park without obtaining a permit to do so or unless that person is operating the motor vehicle within the confines of the park under the direction and control of an authorized city employee. To include any damages incurred from the operation of such vehicles within the confines of the city park shall be the liability of the permittee or operator.
{16564005-01322212;5} (18) Park equipment, such as picnic tables, etc., may be removed from a park temporarily under the direction and control of an authorized city employee. [Ord. 266C §§ 1, 2, 1995; Ord. 266B §§ 1, 2, 1994; Ord. 266A § 2, 1994; Ord. 266 § 2, 1994. Code 2002 § 4.01.020].
4.05.030 Exclusions. This chapter shall not apply to any activity of a municipal or governmental agency. [Ord. 266B § 3, 1994; Ord. 266A § 3, 1994; Ord. 266 § 3, 1994. Code 2002 § 4.01.030].
4.05.040. Urban Forestry
1. Purpose. The purpose of this Section 4.05.040 is to: a. Promote a diverse, healthy and sustainable urban forest; b. Enhance the livability of the City of Sisters and maintain the City’s unique character; c. Promote public health and safety; and d. Provide for the general welfare of Sisters’ citizens; by effectively managing, maintaining, conserving and enhancing public trees within the City of Sisters; by providing ongoing education on proper tree planting, maintenance, removal and protection techniques; and promoting the benefits of trees and the City’s urban forest.
2. Intent. It is the intent of the City to promote: a. The effective management of the urban forest resource; b. The planting, maintenance, restoration and survival of desirable trees within the City; c. The protection of community residents from personal injury and property damage; and, d. The protection of the City from property damage caused or threatened by the improper planting, maintenance, or removal of public trees.
3. Applicability and Jurisdiction a. The provisions of this Section 4.05.040 shall apply to all public trees. b. The City of Sisters has jurisdiction of all public trees and may regulate the protection, planting, maintaining, removing and replacing of such trees. c. The Public Works Director is authorized to: i. Supervise the urban forestry program ii. Implement and enforce the provisions of this Section 4.05.040. iii. With assistance from the Urban Forestry Board, develop and periodically update an Urban Forest Management Plan. iv. Implement the approved Urban Forest Management Plan. v. Develop and update standards for planting, protection, maintenance and removal of public trees. vi. Implement and enforce code provisions concerning public trees. vii. Be the staff liaison to the Urban Forestry Board.
4. Urban Forestry Board
The Urban Forestry Board shall function as an advisory body to the City Council with respect to this Section 4.05.040 and urban forestry matters generally. The Urban Forestry Board will also have those duties and powers assigned to it under this Chapter 4.05, the Siters Municipal Code, or otherwise by resolution of the City Council.
{16564005-01322212;5}
5. Removal, Pruning, Planting, or Attachment of Seasonal Holiday Lights to Non Heritage Public Trees a. Written Authorization. Prior written authorization from the Public Works Director is required for the removal, pruning, and/or planting of public trees or the attachment of seasonal holiday lights to any public tree; provided, however, removal, pruning, and/or attachment of seasonal holiday lights to any Heritage Tree is subject to the provisions of SMC 4.05.050. i. Request for written authorization shall be made at least 3 business days before the intended activity on the form prescribed by the Public Works Director and subject to applicable fees established by resolution of the City Council from time to time. ii. The Public Works Director must base any written authorization on the standards, goals, and objectives set forth in this Section 4.05.040 and the Urban Forestry Standards and Specifications. iii. Work done under such written authorization shall be performed in accordance with the provisions of this Section 4.05.040 and the Urban Forestry Standards and Specifications, unless otherwise authorized by the Public Works Director. iv. No such written authorization shall be valid for a period greater than 90 days after the date of issuance. v. The Public Works Director may impose conditions of approval of any written authorization, including, without limitation, a provision requiring the replacement of any public tree(s) removed with tree(s) appropriate to the site conditions, as determined by the Public Works Director. vi. Notwithstanding anything herein to the contrary, if the Public Works Director determines that a public tree is hazardous, the Public Works Director may authorize immediate emergency removal or pruning of such public tree. Work shall be done in accordance with the Urban Forestry Standards and Specifications, unless otherwise authorized by the Public Works Director. For purposes of this SMC Chapter 4.05, a tree is “hazardous” if it is dead or diseased, or poses a threat or hazard to safety, property, and/or the health of other trees including, without limitation, by presenting a risk of wildfire. b. Work Standards and Specifications. i. Activities on or near trees located on public property shall be performed in accordance with the provisions of this Section 4.05.040 and the Urban Forestry Standards and Specifications. ii. The Public Works Director shall develop specifications and standards for activities affecting public trees called the “Urban Forestry Standards and Specifications”, and may further include provisions for planting, maintenance, protection, and removal of trees within the City of Sisters Public Works Construction Standards. 1. The Urban Forestry Standards and Specifications shall include a Tree Selection Guide; a list of tree species, varieties and cultivars thereof, approved for planting as well as those prohibited from planting on public property. Tree species, varieties and cultivars thereof, not included in the Tree Selection Guide as approved for planting may be considered and approved by the Public Works Director for planting. Approval shall be based upon the suitability and appropriateness, including drought- tolerance, of the tree species, variety or cultivar for the planting site. 2. The Public Works Director shall maintain and update these standards and specifications, as necessary. The initial Urban Forestry Standards and
{16564005-01322212;5} Specifications and subsequent amendments are subject to the approval of the City Council by resolution following a recommendation from the Urban Forestry Board. iii. The City recognizes the American National Standards Institute A-300 Standards for Tree Care Operations, most recent version, as the appropriate standard for tree care. ANSI A300 Standards shall apply to any person or entity repairing, maintaining, or preserving public trees. The City shall incorporate by reference the most recent version of the ANSI A300 within the Urban Forestry Standards and Specifications and maintain the most recent version of the ANSI A300 for public review. iv. Public trees with trunk, branches and/or roots located 15 feet or less from any excavation, grading, demolition or construction site, include the erection, repair, alteration, or removal of any buildings, structures, street, utilities or landscaping, shall require protection from harm and injury, as determined by the Public Works Director. Protection measures shall be conducted in accordance with the Urban Forestry Standards and Specifications. c. Activities Prohibited. i. Unless specifically authorized in writing by the Public Works Director, no person shall top a public tree. Authorization by the Public Works Director to top a public tree shall be based upon the Public Work Director’s determination that topping is necessary to alleviate a dangerous condition, including electric service interruptions, which pose an imminent threat to the public or property. ii. Unless specifically authorized in writing by the Public Works Director, no person shall attach or keep attached any ropes, wires, nails, chains, or other device whatsoever to public trees, except that which is within the Urban Forestry Standards and Specifications as approved for tree support or protection. 1. Seasonal holiday lights attached to public trees in accordance with the Urban Forestry Standards and Specifications is permissible for a period not to exceed 90 days, unless otherwise approved by the Public Works Director. iii. No person shall damage any public tree; allow any gaseous liquid or solid substance which is harmful to trees to come in contact with them; cut or carve, attach advertising posters or other contrivance; or set fire or permit any fire to burn when such fire or the heat thereof will injure any portion of any public tree. d. Requirements of City Personnel. i. City personnel on official business shall notify the Public Works Director of all activities affecting public trees. ii. City personnel on official business shall conduct all activities in accordance with the provisions of this Section 4.05.040 and the Urban Forestry Standards and Specifications. Except that City personnel on official business are exempt from the written authorization requirement of Section 4.05.040(5)(a). e. Requirements of Public Utility Companies. i. Public utility companies and their affiliates shall notify the Public Works Director in advance of all activities affecting public trees within the city limits. ii. Public utility companies holding a current franchise agreement, or similar arrangement, with the City are exempt from the written authorization requirement of Section 4.05.040(5)(a) to the extent the provisions of the applicable franchise conflict with Section 4.05.040(5)(a).
{16564005-01322212;5} iii. All activities shall be conducted in accordance with the Urban Forestry Standards and Specifications unless otherwise specified in the provisions of the current franchise agreement.
4.05.050 Heritage Trees
1. Purpose and generally.
a. The purpose of this SMC 4.05.050 is to provide for the protection of trees holding special significance within the City of Sisters. The preservation of mature, native trees within the City is a preferred alternative to removal and re-planting. Mature trees reduce air and water pollution, provide summer shade and wind breaks, and require less water than establishing new landscaping plants.
b. The City finds that the ponderosa pine has a historical role in the City and dominates the landscape within the city limits. The City will prioritize ponderosa pines that meet the guidelines and criteria of this section to be considered as candidates for the Heritage Tree designation.
2. Designation.
a. The Public Works Director, Urban Forestry Board, City Council, or any individual or group of individuals interested in identifying and preserving heritage trees may nominate any public tree for “heritage” status. Nominations will be made on the form prescribed by the Public Works Director and subject to applicable fees.
b. Subject to the provisions contained in this SMC 4.05.050, the Urban Forestry Board will review all nominations and may recommend to the City Council that any nominated tree be designated as a Heritage Tree.
c. The Urban Forestry Board will consider the following criteria in determining whether to recommend a ponderosa pine tree for the Heritage Tree designation: (a) the tree age should be approximately 200 years or more in age; and (b) the tree size should be approximately thirty inches (30”) DBH or greater and/or more than eighty-five feet (85’) feet tall.
d. For trees other than ponderosa pines, the Urban Forestry Board will consider each tree on a case-by-case basis and will consider, among such other criteria and characteristics the Urban Forestry Board deems necessary and appropriate, the occurrence (rarity) of the tree species in the City, its distribution throughout the City, its historical significance, and whether the species has a low population in the City.
e. Upon receiving a recommendation from the Urban Forestry Board, the City Council may designate a tree as a Heritage Tree if it finds (a) that the tree meets the criteria in this section and (b) the tree’s health, aerial space, and open ground area for the root system have been certified as sufficient by a certified arborist.
f. The City will maintain an inventory of all Heritage Trees as part of its Urban Forest Management Plan.
3. Private trees.
A tree on private property may only be designated as a Heritage Tree if nominated by the applicable property owner or by a third party with the prior written consent of the applicable property owner. The nomination or consent of a property owner will bind all successors, heirs, and assigns. When a tree located on private property is designated as a Heritage Tree, the owner will record an instrument acceptable to the City noting that such tree(s) is subject to the regulations of this SMC 4.05.050.
{16564005-01322212;5} 4. Protection standards.
Except as expressly provided otherwise in SMC 4.05.050(5), it is unlawful for any person to remove, prune, injure, and/or otherwise tamper with any Heritage Tree without the prior written approval of the Urban Forestry Board. The Public Works Director will be responsible for and maintain all Heritage Trees located on public property. Heritage trees on private property are the responsibility of and will be maintained by the property owner.
5. Heritage Tree removal and pruning.
a. No person will remove, prune, injure, and/or otherwise tamper with a Heritage Tree unless the Urban Forestry Board determines that that either (i) the tree is hazardous or (ii) removal of the tree is necessary for completion of a public project including, without limitation, street, water, sewer, stormwater, public building, or park projects. Prior to taking any proscribed action against any Heritage Tree, the applicant will provide a report to the Urban Forestry Board from a certified arborist or other qualified professional to determine whether the subject tree is hazardous or likely to interfere with construction of the public project. Such report must identify any possible treatment to avoid pruning or removal. For purposes of this SMC Chapter 4.05, a tree is “hazardous” if it is dead or diseased, or poses a threat or hazard to safety, property, and/or the health of other trees including, without limitation, by presenting a risk of wildfire.
b. Upon receiving a request to remove a Heritage Tree, the Urban Forestry Board will hold a public hearing to determine whether pruning, removal, or other action is in the City’s best interest.
c. Notwithstanding anything herein to the contrary, in an emergency, as determined by the Public Works Director, the Public Works Director may authorize the pruning, removal, or other action affecting a Heritage Tree without the authorization of the Urban Forest Board.
d. Notwithstanding anything herein to the contrary, in an emergency, and only after reasonable efforts to obtain the authorization of the Public Works Director, a property owner may prune. Remove, or take other action affect a Heritage Tree on private property without authorization by the Urban Forestry Board or Public Works Director, but only as necessary to abate an immediate danger. Any additional work will be performed subject to the requirements of this Section.
6. Removal of designation.
The Urban Forestry Board may recommend to City Council whether the Heritage Tree designation should be removed from a tree. The City Council may remove the designation if it finds that the designation is no longer necessary or appropriate, the tree is hazardous, and/or the tree no longer meets the criteria as a Heritage Tree under SMC 4.05.050(2).
4.05.0460 Penalties. Any person who violates or fails to comply with any provision of this chapter, not including 4.05.040, or who, having obtained a permit hereunder, willfully fails to comply with the terms and conditions thereunder, or who shall counsel, aid, or abet such violation or failure to comply, shall be cited into Sisters municipal court, and upon conviction shall be imprisoned for not more than 30 days, by a fine of not more than $1,000, or by both. Each separate day that a person violates the provisions of this chapter shall be considered a separate offense. [Ord. 266A § 4, 1994; Ord. 266 § 4, 1994. Code 2002 § 4.01.040].
Each violation of this Chapter 4.05 and each separate day that a violation persists is a separate offense. Except as otherwise provided in Section 4.05.040, each offence is punishable by a fine of no less than $200, but no more than $1,000. Nothing herein shall preclude City from concurrently or consecutively seeking any other remedy available at law or equity nor preclude a separate civil action for damage to or wrongful use of public property.
{16564005-01322212;5} In addition to any other penalty, remedy, or cause of action available to City, if the injury, mutilation, or death of a public tree or Heritage Tree is caused by a violation of this Chapter, the cost of repair or replacement of such tree, of similar size, shall be borne by the party in violation. If repair or replacement is not feasible, the violator will pay a fine in the amount of the replacement value, which replacement value shall be determined by the City in accordance with the latest edition of Guide for Plant Appraisal, authored by the Council of Tree and Landscape Appraisers.
4.05.0470 Appeals.
Any written decision related to Section 4.05.040 by the Public Works Director may be appealed to and heard by the Urban Forestry Board. To be effective, an appeal shall be filed within fourteen (14) days after the date of the written decision of the Public Works Director on the form prescribed by the Public Works Director along with payment of applicable fees. The appeal shall be in writing and shall be filed with the Public Works Director. The appeal shall clearly specify the bases for the appeal. The Urban Forestry Board shall conduct a hearing on the appeal and render its decision in writing. Any written decision of the Urban Forestry Board may be appealed to the City Council. To be effective, an appeal to the City Council must be filed with the City Recorder on the form prescribed by the City Recorder within fourteen (14) days after the date of the written decision of the Urban Forestry Board along with payment of applicable fees. After a hearing, the City Council shall render its decision, which shall be final. The appeal must be in writing and shall clearly specify the bases for the appeal.
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ORDINANCE NO. _____
AN ORDINANCE OF CITY OF SISTERS AMENDING SISTERS MUNICIPAL CODE CHAPTER 4.05 TO RELOCATE PROVISIONS CONCERNING THE URBAN FORESTRY BOARD AND PUBLIC TREES FROM THE SISTERS DEVELOPMENT CODE, UPDATE SUCH PROVISIONS, AND ADD PROTECTIONS FOR HERITAGE TREES.
WHEREAS, City formed the Urban Forestry Board to serve as an advisory body to the City Council on matters concerning the City’s urban forest and specifically the management of trees owned or controlled by City (“Public Trees”); and
WHEREAS, provisions governing the Urban Forestry Board and management of Public Trees were incorporated into the Sisters Development Code (“SDC”) Section 3.2.700; and
WHEREAS, SDC 3.2.700 does not pertain to development and thus does not fit within the SDC; and
WHEREAS, SDC 3.2.700 is outdated and in need of updates; and
WHEREAS, City also desires to establish special provisions for trees of special importance to City because of their age, size, type, historical association and/or horticultural value; and
WHEREAS, City staff proposed amendments to relocate SDC 3.2.700 into Sisters Municipal Code (“SMC”) Chapter 4.05, update SDC 3.2.700, and create provisions for “heritage trees”; and
WHEREAS, City staff presented the proposed amendments to the Urban Forestry Board and the Urban Forestry Board recommended that the City Council adopt the amendments; and
WHEREAS, after conducting a public hearing on ______, receiving all evidence and public testimony, and fully deliberating the matter, the City Council voted to adopt this Ordinance No. ______(this “Ordinance”).
NOW, THEREFORE, the City of Sisters ordains as follows:
1. Findings. The above-stated findings and those contained in the staff report presented at the ______, 2021 public hearing before the City Council are hereby adopted.
2. Amendment. The amendments to SMC Chapter 4.05 contained in the attached Exhibit A (the “Amendments”) are hereby adopted. City staff and/or its designee may renumber, format, and make other edits necessary to codify the Amendments into the SMC.
3. Effect of Amendments. Those provisions of the SMC not affected by this Ordinance remain in full force and effect. This Ordinance does not relieve any person of any obligations that may have accrued under the SMC or SDC 3.2.700 as it existed prior to the effective date of this Ordinance. City may continue the enforcement, prosecution, conviction, and/or punishment of any person who has or will violate the provisions of SMC or SDC 3.2.700 as it exists prior to the effective date of this Ordinance.
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4. Miscellaneous. All pronouns contained in this Ordinance and any variations thereof will be deemed to refer to the masculine, feminine, or neutral, singular or plural, as the identity of the parties may require. The singular includes the plural and the plural includes the singular. The word “or” is not exclusive. The words “include,” “includes,” and “including” are not limiting. Any reference to a particular law, statute, rule, regulation, code, or ordinance includes the law, statute, rule, regulation, code, or ordinance as now in force and hereafter amended. If any section, subsection, sentence, clause, and/or portion of this Ordinance is for any reason held invalid, unenforceable, and/or unconstitutional, such invalid, unenforceable, and/or unconstitutional section, subsection, sentence, clause, and/or portion will (a) yield to a construction permitting enforcement to the maximum extent permitted by applicable law, and (b) not affect the validity, enforceability, and/or constitutionality of the remaining portion of this Ordinance. This Ordinance may be corrected by order of the council to cure editorial and/or clerical errors.
This Ordinance was PASSED and ADOPTED by the Sisters City Council by a vote of ___ for and __ against and APPROVED by the mayor on this ___ day of ______, 2021.
______Michael Preedin, Mayor
ATTEST:
______Kerry Prosser, City Recorder
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CITY COUNCIL
Agenda Item Summary
Meeting Date: July 14, 2021 Staff: N. Mardell Type: Workshop Dept: CDD
Subject: Workshop on City File No: TA 21-01, Amendments to the Sisters Development Code pertaining to public trees and the City’s Urban Forestry Board.
Action Requested: Hold public hearing to gather testimony on City planning file TA 21-02. ______Summary Points: Staff, in coordination with the Public Works Department, is proposing a text amendment to remove section 3.2.700 of the Sisters Development Code and replace this content in section 4.05 of the Sisters Municipal Code. This section pertains to management of the City’s public trees and oversight of the Urban Forestry Board. The benefit of shifting the language out of the development code to the municipal code, is that tree removal on public property and public rights of way will become enforceable both during and outside of land use applications and proceedings and provide greater clarity to staff and members of the public.
The Public Works Director is presenting the Municipal Code amendments separately as they require two different hearing processes.
Financial Impact: N/A ______Attachments: Staff Report for TA 21-01 Draft Ordinance
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us
STAFF REPORT Community Development Department
File #: TA 21-01
Applicant: City of Sisters
Request: Proposed amendments to the Development Code: • Chapter 3.2.700 Urban Forestry
Applicable Criteria, Standards, and Procedures: Sisters Development Code (SDC) Chapter 4.1 – Types of Applications and Review Procedures; Chapter 4.7 – Land Use District Map and Text Amendments; Oregon Statewide Land Use Goals; and City of Sisters Urban Area Comprehensive Plan.
City Staff: Nicole Mardell, Principal Planner
Planning Commission Hearing Date: May 6, 2021 5:30 pm, Virtual Hearing Via Zoom City Council Workshop Date: July 14, 2021 5:30 pm, City Hall
I. BACKGROUND The City of Sisters has been a Tree City under the Arbor Day Foundation for 14 years, beginning in 2007. As part of the Arbor Day Foundation’s requirements, the City established an advisory Urban Forestry Board to assist in management of the urban forest. The role of the City’s Urban Forestry program is to oversee the City’s annual urban forestry work plan and provide input on management of public trees, those on city land or those in the public rights of way. The Urban Forestry Board advises the city on applications to remove, replace, or plant public trees.
In recent years, the City’s Public Works Department has provided oversight to the Urban Forestry Board and the City’s management of public trees. Staff, namely the Public Works Director, has intimate knowledge of city property and public rights of way and handles all other coordination for matters involving this type of property.
The Urban Forestry section is currently codified through the Sisters Development Code and is written to be administered by the Community Development Director. In coordination with the Public Works Director, staff is proposing to delete this section (3.2.700) from the Sisters Development Code and replace the language in its entirety to Municipal Code Section 4.05. In this approach, the language will remain almost entirely the same, although management will shift from the Community Development Director to the Public Works Director. The benefit of shifting the language out of the development code to the municipal code, is that tree removal on public property and public rights of way will become enforceable both during and outside of land use applications and proceedings and provide greater clarity to staff and members of the public. The change will not impact the City’s ability to comply with the Arbor Day foundation’s Tree City requirements. Sections 3.2.500 – relating to review of existing trees on private property during development, and 3.2.600 – street trees associated with development, will remain unchanged and located in the Sisters Development Code.
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II. PLANNING COMMISSION RECOMMENDATION The Sisters Planning Commission held a public hearing on May 6, 2021. No public testimony was received. The Commission voted in favor of recommending approval of the proposal to City Council. Five members voted in favor, two members were absent.
III. REQUEST AND AMENDMENT SUMMARY Staff requests the City Council review the proposed text amendments, conduct a public hearing, and vote on the proposed text amendment.
SUMMARY OF PROPOSED TEXT AMENDMENTS New text is shown below in bold, deleted text is shown in strikeout.
DEVELOPMENT CODE: 3.2.100 Purpose 3.2.200 Landscape Requirements 3.2.300 Screening, Fences, and Walls 3.2.400 Nonconforming 3.2.500 Existing Trees 3.2.600 Street Trees …. 3.2.700 Urban Forestry A. Purpose. The purpose of the Urban Forestry section is to: 1. Promote a diverse, healthy and sustainable urban forest; 2. Enhance the livability of the City of Sisters and maintain the City’s unique character; 3. Promote public health and safety; and 4. Provide for the general welfare of Sisters’ citizens; by effectively managing, maintaining, conserving and enhancing the City of Sisters’ existing and future trees located on city property or public rights-of-way; by providing ongoing education on proper tree planting, maintenance, removal and protection techniques and the benefits of trees and of Sisters’ urban forest. This ordinance further implements the policies and goals of the City of Sisters Comprehensive Plan.
B. Intent. It is the intent of the City by this section to promote: 1. The effective management of the urban forest resource; 2. The planting, maintenance, restoration and survival of desirable trees within the City; 3. The protection of community residents from personal injury and property damage; and, 4. The protection of the City from property damage caused or threatened by the improper planting, maintenance, or removal of trees located in and upon public areas and rights-of-way within the City.
C. Applicability and Jurisdiction 1. The provisions of this ordinance shall apply to trees located now and hereafter on city property and public rights-of-way. 2. The City of Sisters shall have jurisdiction of all trees located now and hereafter on city property and public rights-of-way and shall have the authority to regulate the protection, planting, maintaining, removing and replacing of such trees. a. The Community Development Director or designee is authorized to: 1. Supervise the urban forestry program and implement the provisions of this ordinance.
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2. With assistance from the City Urban Forestry Board, develop an Urban Forest Management Plan within three (3) years of the adoption of this ordinance and, thereafter, periodically update the Plan. 3. Implement the approved Urban Forest Management Plan. 4. Develop and update code provisions establishing standards for planting, protection, maintenance and removal of public and private trees. 5. Review development applications to insure compliance with Sisters’ City Code provisions concerning street trees and other trees located on city property or public rights-of-way. 6. Implement and enforce code provisions concerning both public and private trees. 7. Be the city staff liaison to the City Urban Forestry Board.
D. Urban Forestry Board
The Urban Forestry Board shall function as an advisory body to the City with respect to this ordinance and urban forestry matters generally.
E. Removal, Major Pruning, Planting, or Attachment of Seasonal Holiday Lights to Public Trees 1. Requires City Authorization. Written authorization by the Community Development Director or designee is required for the removal, major pruning, or planting of public trees or the attachment of seasonal holiday lights to public trees. a. Request for written authorization shall be made at least 3 working days before the intended activity. b. The Community Development Director or designee shall base their written authorization on the standards, goals, and objectives set forth in this section and the Urban Forestry Standards and Specifications. c. Work done under such written authorization shall be performed in accordance with the provisions of this section and the Urban Forestry Standards and Specification, unless otherwise authorized by the Community Development Director or designee. d. No such written authorization shall be valid for a period greater than 90 days after the date of issuance. e. The written authorization to remove trees may include a provision requiring the replacement of the tree(s) removed with tree(s) appropriate to the site conditions, as determined by the Community Development Director or designee. f. If the Community Development Director or designee determines that a tree is hazardous, he/she may authorize immediate emergency removal or pruning of such tree. Work shall be done in accordance with the urban Forestry Standards and Specifications, unless otherwise authorized by the Community Development Director or designee.
2. Work Standards and Specifications. a. Activities on and near trees located on city property and public rights-of-way shall be performed in accordance with the provisions of this ordinance and the Urban Forestry Standards and Specifications. b. The Community Development Director or designee shall develop specifications and standards for activities affecting trees located on city property and public rights-of-way, called Urban Forestry Standards and Specifications, including planting, maintenance, protection and removal of trees within the City of Sisters Public Works Construction Standards.
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i. The Urban Forestry Standards and Specifications shall include a Tree Selection Guide; a list of tree species, varieties and cultivars thereof, approved for planting as well as those prohibited from planting on city property and public rights-of-way. Tree species, varieties and cultivars thereof, not included in the Tree Selection Guide as approved for planting may be considered and approved by the Community Development Director or designee for planting. Approval shall be based upon the suitability and appropriateness, including drought-tolerance, of the tree species, variety or cultivar for the planting site. ii. The Community Development Director or designee shall maintain and update as necessary these standards and specifications. The initial standards and specifications and subsequent updates are subject to the approval of the City Council. c. The City recognizes the American National Standards Institute A-300 Standards for Tree Care Operations, most recent version, as the appropriate standard for tree care. ANSI A300 Standards shall apply to any person or entity repairing, maintaining, or preserving trees on city property or on public rights-of-way. The City shall incorporate by reference the most recent version of the ANSI A300 within the Urban Forestry Standards and Specifications and maintain the most recent version of the ANSI A300 for public review. d. Trees located on city property and public rights-of-way with trunk, branches and/or roots located 15 feet or less from any excavation, grading, demolition or construction site, include the erection, repair, alteration, or removal of any buildings, structures, street, utilities or landscaping, shall require protection from harm and injury, as determined by the Community Development Director or designee. Protection measures shall be conducted in accordance with the Urban Forestry Standards and Specifications.
3. Activities Prohibited. Unless specifically authorized in writing by the Community Development Director or designee: a. No person shall top a tree located on city property or on public rights-of-way. Authorization by the Community Development Director or designee to top a tree shall be based upon their determination that topping is necessary to alleviate a dangerous condition, including electric service interruptions, which pose an imminent threat to the public or property. b. No person shall attach or keep attached to any trees located on city property or on public rights-of-way any ropes, wires, nails, chains, or other device whatsoever, except that which is within the Urban Forestry Standards and Specifications as approved for tree support or protection. i. Seasonal holiday lights attached in accordance with the Urban Forestry Standards and Specifications is permissible for a period not to exceed 90 days, unless otherwise approved by the Community Development Director or designee. c. No person shall damage any public tree; allow any gaseous liquid or solid substance which is harmful to trees to come in contact with them; cut or carve, attach advertising posters or other contrivance; or set fire or permit any fire to burn when such fire or the heat thereof will injure any portion of any public tree. d. No person shall major prune, plant, remove or attach seasonal holiday lights to a public tree without authorization from the Community Development Director or designee.
4. Requirements of City Personnel. a. City personnel on official business shall notify the Community Development Director or designee of all activities affecting public trees.
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b. City personnel on official business are exempt from the written authorization requirement of this section. c. City personnel on official business shall conduct all activities in accordance with the provisions of this section and the Urban Forestry Standards and Specifications.
5. Requirements of Public Utility Companies. a. Public utility companies and their affiliates shall notify the Community Development Director or designee of all activities affecting public trees within city limits. b. Public utility companies holding a current franchise agreement with the City are exempt from the written authorization requirement of this section. c. All activities shall be conducted in accordance with the provisions of the current franchise agreement.
F. Penalties. If, as the result of the violation of the provisions of this ordinance, the injury, mutilation, or death of a tree located on city property or the public right-of-way is caused, the cost of repair or replacement of such tree, of similar size, shall be borne by the party in violation. The replacement value of trees shall be determined by the city in accordance with the latest edition of Guide for Plant Appraisal, authored by the Council of Tree and Landscape Appraisers.
G. Appeals. Any action related to this code section by the Community Development Director or designee may be appealed to and heard by the City Urban Forestry Board. To be effective, an appeal shall be filed within fourteen (14) working days after the decision of the Community Development Director or designee. The appeal shall be in writing and shall be filed with the City Recorder for placement on the City Urban Forestry Board’s agenda. The appeal shall clearly specify the reasons for which a hearing is requested. After a hearing, the City Urban Forestry Board shall render its decision, which shall be final unless appealed to the Planning Commission. To be effective, an appeal to the Planning Commission must be in writing, state the reasons for the appeal, and must be filed with the City Recorder within fourteen (14) working days after notice of the decision of the City Urban Forestry Board is mailed to the applicant. After a hearing, the Planning Commission shall render its decision, which shall be final unless appealed to the City Council. To be effective, an appeal to the City Council must be in writing, state the reasons for the appeal, and must be filed with the City Recorder within fourteen (14) working days after notice of the decision of the Planning Commission is mailed to the applicant. The decision of the City Council shall be final.
IV. CONCLUSIONARY FINDINGS Sisters Development Code (SDC) Chapter 4, Table 4.1.200 lists a code amendment as a Type IV decision, regulated by Chapter 4.7 (Land Use District Map and Text Amendments). Section 4.7.200 states that legislative amendments are policy decisions made by the City Council and shall be reviewed using the Type IV procedure found in SDC Section 4.1.600 and shall conform to SDC section 4.7.600 Transportation Planning Rule compliance (if applicable). Pursuant to the SDC Section 4.1.600, the City may approve, approve with modifications, approve with conditions, deny the proposed change or recommend an alternative to the code text amendment based on the criteria in SDC 4.1.600.E. Decision-Making Considerations. The following are staff’s conclusionary findings for each of the applicable criteria:
CHAPTER 4.7 – LAND USE DISTRICT MAP AND TEXT AMENDMENTS
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4.7.100 Purpose The purpose of this Chapter is to provide standards and procedures for legislative and quasi-judicial amendments to this Code and the Land Use District map. These amendments will be referred to as “map and text amendments.” Amendments may be necessary from time to time to reflect changing community conditions, needs and desires, to correct mistakes, or to address changes in the law.
Staff Finding: Staff finds that this provision is advisory.
4.7.200 Legislative Amendments Legislative amendments are policy decisions made by City Council. They are reviewed using the Type IV procedure in Chapter 4.1, Section 600 and shall conform to Section 4.7.600, as applicable.
Staff Finding: The proposal is for legislative changes to the Development Code through a text amendment application. Accordingly, it must be reviewed using the Type IV procedure in Chapter 4.1.600 and is required to conform to Section 4.7.600 (as applicable). Discussion regarding Chapter 4.1.600 is reviewed below.
CHAPTER 4.1 – TYPES OF APPLICATION AND REVIEW PROCEDURES 4.1.100 Purpose The purpose of this chapter is to establish standard decision-making procedures that will enable the City, the applicant, and the public to reasonably review applications and participate in the local decision- making process in a timely and effective way.
Staff Finding: Staff finds that this provision is advisory.
4.1.200 Description of Permit/Decision-Making Procedures All land use and development permit applications, except building permits, shall be decided by using the procedures contained in this Chapter. General provisions for all permits are contained in Section 4.1.700. Specific procedures for certain types of permits are contained in Section 4.1.200 through 4.1.600. The procedure “type” assigned to each permit governs the decision-making process for that permit. There are four types of permit/decision-making procedures: Type I, II, III, and IV. These procedures are described in subsections A-D below. In addition, Table 4.1.200 lists all of the City’s land use and development applications and their required permit procedure(s). D. Type IV Procedure (Legislative). Type IV procedures apply to legislative matters. Legislative matters involve the creation, revision, or large-scale implementation of public policy (e.g., adoption of land use regulations, zone changes, and comprehensive plan amendments which apply to entire districts). Type IV matters are considered initially by the Planning Commission with final decisions made by the City Council and appeals possible to the Oregon Land Use Board of Appeals.
Staff Finding: Staff is proposing an amendment to the Sisters Development Code pertaining to management of public trees. The amendments propose a revision to adopted land use regulations, therefore requiring compliance with Type IV procedure.
E. Notice of all Type III and IV hearings will be sent to public agencies and local jurisdictions (including those providing transportation facilities and services) that may be affected by the proposed action. Affected jurisdictions could include ODOT, the Department of Environmental Quality, the Oregon Department of Aviation, and neighboring jurisdictions.
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Staff Finding: Staff has sent notice to agencies and jurisdictions that may be affected by the proposed amendments. No comments have been received to date.
4.1.600 Type IV Procedure (Legislative) A. Application requirements. See 4.1.700. B. Notice of Hearing. 1. Required hearings. A minimum of two hearings, one before the Planning Commission and one before the City Council, are required for all Type IV applications, except annexations where only a hearing by the City Council is required. 2. Notification requirements. Notice of public hearings for the request shall be given by the Community Development Director or designee in the following manner: … Staff Finding: Staff provided notice in accordance with 4.1.600(B) at least 14 days prior to the public hearing before the Planning Commission. A second hearing is required and will be held by City Council, notice will again be posted in compliance with this section. … E. Decision-Making Considerations. The recommendation by the Planning Commission and the decision by the City Council shall be based on consideration of the following factors: 1. Approval of the request is consistent with the Statewide Planning Goals;
Staff Finding: Staff has outlined review of compliance with the Statewide Planning Goals below.
Goal 1 – Citizen Involvement. Staff Finding: During the text amendment process, public notice of the proposal will be provided through posted notice through the Nugget newspaper and posted on the City’s website. The City will hold public hearings before the Planning Commission and City Council. These opportunities for public involvement satisfy Goal 1. This criterion is met.
Goal 2 – Land Use Planning. Staff Finding: Staff is following the prescribed procedure for a text amendment to ensure adequate review of the proposed text amendment. The purpose of the text amendment is to remove management of public trees from the development code and replace it in its entirety in the Municipal Code. Staff finds Goal 2 is met.
Goals 3 and 4, Agricultural and Forest Lands Staff Finding: These Goals are not applicable as the proposed text amendments will not have any known impact on either Agricultural or Forest Lands.
Goal 5 – Natural Resources, Scenic and Historic Areas, and Open Spaces. Staff Finding: The proposed text amendments relate to the management of the City’s public trees, both those on city property and those in the public right of way. Trees are an asset to the City’s natural resources and scenic areas, although not specifically listed in a Goal 5 inventory. Staff believes the protection of significant trees in the public rights of way is in compliance with the intent of Goal 5. The changes proposed by staff are to remove language pertaining to removal of trees from the development code, and replace it in its entirety in the municipal code.
In its current location in the development code, the authority of the Urban Forestry Board and City to enforce requirements surrounding public trees are technically only triggered by a development
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application. This has presented a significant loophole and presents challenges and a lack of clarity to enforcing the requirements surrounding public trees. The proposed amendments will allow for greater protection and enforcement for removal, damage, or major pruning of public trees. By removing the code language in 3.2.700 from the development code and replacing it in the municipal code, staff is better able to enforce removal and damage to significant public trees outside of the development process.
Goal 6 – Air, Water and Land Resources Quality. Staff Finding: The proposed text amendments relate to the management of the City’s public trees, both those on city property and those in the public right of way. Trees are an asset to the City’s natural ecosystem and plays a role in maintain clear air and water quality. The changes proposed by staff are to remove language pertaining to removal of trees from the development code, and replace it in its entirety in the municipal code.
In its current location in the development code, the authority of the Urban Forestry Board and City to enforce requirements surrounding public trees are technically only triggered by a development application. This has presented a significant loophole and presents challenges and a lack of clarity to enforcing the requirements surrounding public trees. The proposed amendments will allow for greater protection and enforcement for removal, damage, or major pruning of public trees. By removing the code language in 3.2.700 from the development code and replacing it in the municipal code, staff is better able to enforce removal and damage to significant public trees outside of the development process. This process will ensure greater consistency for removal of trees and reduce unnecessary removal of trees, reducing impacts to air and water quality.
Goal 7 – Areas Subject to Natural Hazards. Staff Finding: The proposed text amendments are providing additional clarity to current management of public trees. Review of trees on areas subject to natural hazards will remain unchanged. Staff does not foresee any impact to Goal 7.
Goal 8 – Recreational Needs. Staff Finding: The proposed text amendments are providing additional clarity to current management of public trees. Review of trees on areas subject to natural hazards will remain unchanged. Staff does not foresee any impact to Goal 7.
Goal 9 – Economic Development. Staff Finding: The proposed text amendments are providing additional clarity to current management of public trees. Staff is not proposing changes at this time to private tree management. Staff finds there will be no financial impact to businesses or property owners as part of these amendments. The proposed amendments are tangentially related to the streetscape in the city’s commercial and industrial areas. Maintaining significant trees in the public rights of ways in these areas could contribute to beautification of these areas that promote a walkable and vibrant environment in support of tourism and businesses.
Goal 10 – Housing. Staff Finding: The proposed text amendments are providing additional clarity to current management of public trees. Staff is not proposing any changes to management of private trees at this time. Staff does not foresee any impact to Goal 10.
Goal 11 – Public Facilities and Services Staff Finding: The proposed text amendments relate to the management of the City’s public trees, both those on city property and those in the public right of way. The current code language surrounding
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management of public trees is found in the development code, which has presented a lack of clarity and enforcement for removal, significant pruning, or damage to public trees. The proposed text amendment will remove and replace this text in its entirety in the Sisters Municipal Code. The amendments will allow for more streamlined and clear management of public trees in city limits.
Goal 12 – Transportation Staff Finding: The proposed text amendments are providing additional clarity to current management of public trees. Staff is not proposing any changes to management of private trees at this time. Staff does not foresee any impact to Goal 12.
Goal 13 – Energy Conservation Staff Finding: The proposed text amendments are providing additional clarity to current management of public trees. Staff is not proposing any changes to management of private trees at this time. Staff does not foresee any impact to Goal 13.
Goal 14 – Urbanization Staff Finding: The proposed text amendments are providing additional clarity to current management of public trees in city limits, exclusively. Staff does not foresee any impact to Goal 14.
Goals 15 through 19. Staff Finding: Goals 15, 16, 17, 18 and 19 are not applicable because they only pertain to areas outside of Central Oregon.
2. Approval of the request is consistent with the Comprehensive Plan; and
Staff Finding: The Comprehensive Plan contains Goals and Policies for land use and development within the City. In turn, the Development Code implements the Goals and Policies of the Comprehensive Plan. Any amendments to the Development Code must be consistent with applicable Goals and Policies of the Comprehensive Plan. Findings specific to applicable Goals and Policies are provided below:
Sisters Comprehensive Plan Goal 1: Citizen Involvement 1.4 POLICIES 1. The City of Sisters shall seek out and encourage public participation in all aspects of the City planning process. Tasks – a. Planning Commission and City Council meetings shall be held on a regularly scheduled basis. b. Planning Commission and City Council meeting agendas shall be publicized in a manner that makes this information widely available. d. The City shall use a variety of methods to achieve citizen involvement.
Staff Findings: The proposed amendments will be reviewed through Planning Commission and City Council meetings, which are open to the public with opportunities for public involvement. The amendment proposal has followed the noticing requirements in Chapter 4.1, including publishing of notice in the Sisters Nugget newspaper. Staff finds that the proposed text amendment application (TA 21- 01) complies with all relevant policies provided within Goal 1 of the Comprehensive Plan.
Sisters Comprehensive Plan Goal 2: Land Use Planning 2.4 POLICIES
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1. The City of Sisters shall develop land use codes and ordinances that are based on an adequate factual basis as well as applicable local, state, and federal regulations. Tasks – a. Codes and ordinances shall spell out responsibilities for administering and enforcing land use policies. b. The City of Sisters Development Code shall be used to facilitate the development process and to implement the land use goals outlined in this Plan.
Staff Findings: The Sisters Development Code currently contains clear and objective provisions that regulate removal of trees on public property. Unfortunately, in implementing this code, staff has found that there are several loopholes related to removal or damage to public trees that has occurred outside of the development process.
In order to streamline these amendments and ensure that pruning, removal, or damage to public trees is regulated both during and outside of the land use review process, staff is proposing to remove the current language from Section 3.2.700 of the Development Code and replace it in its entirety in the Municipal Code. The remaining sections in the Development Code pertaining to private tree removal and planting of street trees will remain as is.
Staff finds that the proposed text amendment provides clarity on public tree management items, and complies with all relevant policies provided within Goal 2 of the Comprehensive Plan.
Sisters Comprehensive Plan Goal 6: Air, Water, Land Resources Quality 6.4 POLICIES 1. The City of Sisters shall ensure the protection and wise use of our natural resources. Tasks – a. The City shall ensure vegetation is and remains and integral part of Sisters. Subtasks 1. The City shall encourage the protection of mature trees throughout the community. Native landscaping should be encouraged in all new developments. Mature trees, particularly Pinus Ponderosa (Ponderosa Pine) should be protected in new developments and mitigation measures for cut trees shall be established. A standard shall be developed and added to the City’s Development code in Chapter 3.2, Landscaping, Street Trees, Fences and Walls to reflect protection requirements. 2. Efforts should be made to establish a tree-planting plan for the City.
Staff Findings: The Sisters Development Code currently contains several provisions related to the protection of vegetation and mature trees throughout the community. Staff, in implementing the current code, has found that a significant loophole exists in regard to protection of public trees that are removed, damaged, or pruned outside of the development process. Due to its current location in the development code, staff has had several instances of public trees being removed by property owners without prior approval, and has had difficult enforcing the regulations or issuing fines or fees where needed. Staff finds that by removing section 3.2.700 Urban Forestry from the Sisters Development Code, and replacing it in its entirety in the Municipal Code, will afford better protections for public trees. By placing this text in the municipal code, public trees can be protected both during and outside of the development review process. The current text, which will remain in its entirety, protects mature trees, and also outlines guidelines for urban forestry management. These elements
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will remain unchanged. Additionally, the development code regulations surrounding protection of mature trees on private property in section 3.2.500 which also remain unchanged.
Staff finds the proposed amendments will provide clarity and streamlining to the current code language and will continue to meet the intent of Chapter 6 within the Sisters Development Code. 3. The property and affected area is presently provided with adequate public facilities, services and transportation networks to support the use, or such facilities, services and transportation networks are planned to be provided concurrently with the development of the property. The applicant must demonstrate that the property and affected area shall be served with adequate public facilities, services and transportation networks to support maximum anticipated levels and densities of use allowed by the District without adversely impacting current levels of service provided to existing users; or applicant’s proposal to provide concurrently with the development of the property such facilities, services and transportation networks needed to support maximum anticipated level and density of use allowed by the District without adversely impacting current levels of service provided to existing users.
Staff Finding: The proposal is not for a specific property; it is a proposed change that would be applied citywide. This provision does not apply.
4. Compliance with 4.7.600, Transportation Planning Rule (TPR) Compliance
Staff Finding: The proposal is not for a specific property; it is a proposed change that would be applied citywide. This provision does not apply.
V. PUBLIC COMMENTS From the time of the formal initiation of this staff report to the time of publication of this staff report, no written public comments have been received.
VI. EXHIBITS Exhibit A – 3.2.700 Urban Forestry Proposed Amendments
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ORDINANCE NO. _____
AN ORDINANCE APPROVING PLANNING FILE NO. TA 21-01, AMENDMENTS TO THE SISTERS DEVELOPMENT CODE PERTAINING TO SECTION 3.2.700 URBAN FORESTRY.
WHEREAS, the City of Sisters (“Applicant”) sought approval of a legislative amendment to the text of the Sisters Development Code (the “Code”) under Planning File No. TA 21-01 (the “Application”);
WHEREAS, on May 6, 2021, a public hearing on the Application was held before the Sisters Planning Commission (“Planning Commission”), testimony was accepted, and the Planning Commission voted to close the hearing and deliberate the matter;
WHEREAS, the Planning Commission, after reviewing the record and fully deliberating the matter, voted to recommended that the Sisters City Council (“City Council”) approve the Application;
WHEREAS, the Code requires a second hearing before the City Council for legislative text amendments;
WHEREAS, after due notice, a public hearing was held before the City Council on ______with deliberations conducted on ______; and
WHEREAS, the City Council, after reviewing the record and fully deliberating the matter, voted to approve the Application.
NOW, THEREFORE, THE CITY OF SISTERS ORDAINS AS FOLLOWS:
1. Findings. The findings contained in the recitals and those found in the staff report attached hereto as Exhibit A are hereby adopted in support of the land use decision made by this Ordinance No. 509 (this “Ordinance”).
2. Approval. The Application is hereby approved.
3. Text Amendments. The amendments to the Code contained in the attached Exhibit B are hereby adopted. Those provisions of the Code that are not amended or modified by this Ordinance remain unchanged and in full force and effect. This Ordinance does not relieve any person of any obligations that may have accrued under SMC Chapter 5.50 prior to the effective date of this Ordinance. City may continue the enforcement, prosecution, conviction, and/or punishment of any person who has or will violate SMC Chapter 5.50 prior to the effective date of this Ordinance.
4. Authorization. The City Manager, or designee, is authorized to execute any documents and to take such actions as are necessary to further the purposes and objectives of this Ordinance including, without limitation, integrating the adopted text amendments into the Code.
5. Miscellaneous. All pronouns contained in this Ordinance and any variations thereof will be deemed to refer to the masculine, feminine, or neutral, singular or plural, as the identity of the parties may require. The singular includes the plural and the plural includes the singular. The word “or” is not exclusive. The words “include,” “includes,” and “including” are not limiting. Any reference to a particular law, statute, rule, regulation, code, or ordinance includes the law, statute, rule, regulation, code, or ordinance as now in
1 – ORDINANCE NO. ______
force and hereafter amended. If any section, subsection, sentence, clause, and/or portion of this Ordinance is for any reason held invalid, unenforceable, and/or unconstitutional, such invalid, unenforceable, and/or unconstitutional section, subsection, sentence, clause, and/or portion will (a) yield to a construction permitting enforcement to the maximum extent permitted by applicable law, and (b) not affect the validity, enforceability, and/or constitutionality of the remaining portion of this Ordinance. This Ordinance may be corrected by order of the City Council to cure editorial and/or clerical errors.
This Ordinance was PASSED and ADOPTED by the Sisters City Council by a vote of ___ for and __ against and APPROVED by the mayor on this ___ day of ______, 2021.
______Michael Preedin, Mayor
ATTEST:
______Kerry Prosser, City Recorder
2 – ORDINANCE NO. ______
CITY COUNCIL
Agenda Item Summary
Meeting Date: July 14, 2021 Staff: Misley/Woodford Type: Workshop Dept: CDD/CMO Subject: Affordable Housing Grant
Action Requested: Continuation of discussion of the application submitted by Sisters Habitat for Humanity.
Summary Points: • The City established an Affordable Housing Grant program in 2019 to help address the cities affordable housing problem and to collaborate with agencies and private developers to provide permanent, new affordable housing opportunities. • The grant program is funded primarily through a percentage of the transient room tax. As of this spring, the fund amount is $136,093 (which consists of $92,790 of TRT, $50,000 from funds required of McKenzie Meadows Village, and $6,627 from a Habitat SDC grant) • Each year, the city puts out a notice to solicit requests for use of the grant money, due by March 1st of each year. • Sisters Habitat for Humanity was the only applicant to submit a request. They have requested $50,000 to aid in infrastructure development to support four (4) affordable housing units on lots they own in the Village Green Subdivision (which was recently approved by the Planning Commission to replat 6 lots into 10 lots). • The homes will be built with volunteer labor and will target families making 60% or less than the Average Median Income for Deschutes County ($45,900 or less per year). • There are minimum requirements applicants must meet to qualify for the funds and it is in the City’s sole discretion to determine how much should be granted. • In the past, Habitat has been awarded affordable housing grant funds to help pay for System Development Charges (SDC’s). The current SDC’s for a single family are $11,600, broken down by type: o Water: $ 3,507.00 o Sewer: $ 4,585.00 o Parks: $ 1,193.00 o Transportation: $ 2,315.00
Financial Impact: TBD depending on amount of grant approved. ______Attachments: Ordinance No. 495 Establishing the Affordable Housing Grant Program Sisters Habitat for Humanity Application
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us
City Council June 2, 2021 City of Sisters PO Box 39 Sisters, OR 97759
Re: Sisters Habitat for Humanity Affordable Housing Program Grant
Mayor Preedin and City Councilors,
I am writing you to express Housing Works’ strong support of Sisters Habitat for Humanity’s (“SHH”) application for $50,000 in Affordable Housing Program Grant funds. SHH is one of the most prolific Habitat for Humanity affiliates in Oregon, building more affordable homes per capita than nearly any other affiliate in the State. Housing Works, being a prolific affordable housing developer in our own right, fully understands the difficulty of making below market rate projects financially feasible. We understand that the costs of needed and desired public infrastructure, even sidewalks, curbs, gutters and landscaping can put the costs of building homes for lower income families out of reach. But we also agree that these improvements need to be constructed. That is why we encourage the City Council to support SHH’s Affordable Housing Program request.
Housing Works has sought local financial support for many of our affordable housing communities including a generous grant from the City of Sisters to help us close the financing gap for the Ponderosa Heights Apartments down the street from SHH’s new project. The City’s award of Affordable Housing Funds will support the costs of the City’s quality streets improvements which will benefit the entire Village Meadows neighborhood. We are convinced that SHH’s grant request in precisely the type of efficient expenditure which advances housing affordability in Sisters and we hope you agree.
Thank you for your consideration.
Yours truly,
David Brandt Executive Director
1.
REGULAR MEETING MINUTES SISTERS CITY COUNCIL 520 E. CASCADE AVENUE JUNE 09, 2021
MEMBERS PRESENT: STAFF PRESENT: Michael Preedin Mayor Cory Misley City Manager Nancy Connolly Council President Paul Bertagna PW Director Andrea Blum Councilor Joe O’Neill Finance Director Jennifer Letz Councilor Scott Woodford CDD Director Gary Ross Councilor Kerry Prosser City Recorder
I CALL TO ORDER/PLEDGE OF ALLEGIANCE The meeting was called to order by Mayor Preedin at 6:33 pm.
II ROLL CALL Recorder Prosser took roll call, and a quorum was established.
III APPROVAL OF AGENDA Mayor Preedin amended the agenda to include an additional page of Accounts Payable in the Consent Agenda and add the Discussion and Appointment of a Member of the City Council to the Regional Solutions Advisory Committee to Other Business.
Councilor Blum made a motion to approve the amended agenda. Council President Connolly seconded the motion. The motion carried 5-0.
IV HISTORIC MINUTE Councilor Blum read the Jubilee Minute.
V VISITOR COMMUNICATION-None
VI CONSENT AGENDA A. Minutes 1. May 17, 2021-Budget 2. May 26, 2021-Regular 3. May 26, 2021-Workshop
B. Bills to Approve. 1. June 4, 2021- Accounts Payable 2. June 7, 2021- Accounts Payable 3. Pre-approve June 18, 2021- Accounts Payable
C. Approve Resolution No. 2021-08: A RESOLUTION EXTENDING THE CITY OF SISTERS WORKERS COMPENSATION COVERAGE TO VOLUNTEERS OF THE CITY OF SISTERS.
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D. Approve Resolution No. 2021-09: A RESOLUTION DECLARING THE MUNICIPAL SERVICES PROVIDED BY THE CITY OF SISTERS.
E. Approve Resolution No. 2021-10: A RESOLUTION AMENDING THE PAY PLAN CLASSIFICATION FOR THE CITY OF SISTERS
F. Approve an Agreement between the City of Sisters and Allied Waste Transfer Services of Oregon, LLC, dba Republic Services of Oregon for the Sisters Recycle Center Operating Agreement and Authorize the City Manager to Execute the Agreement.
G. Accept the Public Improvements for Clear Pine Phase IV.
H. Approve the Cancelation of the June 23, 2021, City Council Meeting.
Council President Connolly made a motion to approve the Consent Agenda as amended. Councilor Blum seconded the motion. The motion carried 5-0.
VII COUNCIL BUSINESS A. Public Hearing and Consideration of Resolution No. 2021-11: A RESOLUTION ADOPTING THE FISCAL YEAR 2021/22 BUDGET, APPROPRIATING FUNDS, APPROVING A TAX LEVY AND DIRECTING STAFF TO FILE THE BUDGET WITH THE COUNTY CLERK. Mayor Preedin opened the public hearing.
Director O'Neill reviewed the total adopted budget was $21,649,585.
Mayor Preedin asked for public comment; there was none. Mayor Preedin closed the public hearing.
Council President Connolly made a motion to approve and adopt Resolution 2021-11. Councilor Blum seconded the motion. The motion carried 5-0.
B. Public Hearing and Consideration of Resolution No. 2021-12 A RESOLUTION DECLARING THE CITY’S ELECTION TO RECEIVE STATE REVENUES. Mayor Preedin opened the public hearing.
Director O'Neill noted this public hearing was an opportunity to comment on state shared revenue.
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Mayor Preedin asked for public comment; there was none. Mayor Preedin closed the public hearing.
Council President Connolly made a motion to approve and adopt Resolution 2021-12. Councilor Ross seconded the motion. The motion carried 5-0.
C. Public Hearing and Consideration of Resolution No. 2021-13: A RESOLUTION OF THE CITY OF SISTERS ADOPTING CHANGES TO THE MASTER FEE SCHEDULE. Mayor Preedin opened the public hearing.
Director O'Neill reviewed the updates to the master fee schedule; franchise, water, wastewater, refuse, and system development charge rates.
Mayor Preedin asked for public comment; there was none. Mayor Preedin closed the public hearing.
Council President Connolly asked when the last system development charge study was done and when we would do it again. Director Bertagna replied it was last updated in 2018. City Manager Misley noted transportation System Development Charges were recently updated, and water and wastewater would be updated this year. Director Bertagna said this update was straightforward because we had changed our methodology during the previous study.
Councilor Letz asked what goes into the Engineering New Record (ENR) construction cost index. Director O'Neill said the ENR included the material costs. This was a standard index and had been approved by ordinance in the previous System Development Charge study.
Council President Connolly made a motion to approve and adopt Resolution 2021-13. Councilor Blum seconded the motion. The motion carried 5-0.
D. Public Hearing and Consideration of Resolution No. 2021-14: A RESOLUTION OF THE CITY OF SISTERS ADOPTING A SUPPLEMENTAL BUDGET AND ESTABLISHING APPROPRIATIONS WITHIN THE FY 2020/21 BUDGET. Mayor Preedin opened the public hearing.
Director O'Neill explained there were two items in the supplemental budget. They had estimated the Transient Lodging Tax (TLT) would be lower last year due to the pandemic. Actual TLT revenues were estimated to almost double the budgeted expectations, so an additional $113,000 was needed to satisfy the agreement with the Sisters Chamber of
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Commerce. Director O'Neill noted because there was a significant increase in both residential and commercial development, we needed an additional $40,000 to procure more water meters.
Mayor Preedin asked for public comment; there was none. Mayor Preedin closed the public hearing.
Councilor Ross made a motion to approve and adopt Resolution 2021-14. Councilor Blum seconded the motion. The motion carried 5-0.
E. Discussion and Consideration of a Motion to Approve an Agreement between the City of Sisters and the Sisters Area Chamber of Commerce to Provide Tourism-Related Services for FY 2021/22 and Authorize the City Manager to Execute the Agreement. City Manager Misley said this agreement had been discussed at a previous workshop. They noted the primary adjustment was a change in funding from $250,000 to $200,000. A portion of the restricted TLT funds would be used for the Destination Management Initiative and a portion for the new Parks/Events position.
Council President Connolly thanked staff for their diligence on this process; we were trying to be more accountable for the TLT and form a plan for the future.
Council President Connolly made a motion to approve an agreement between the City of Sisters and the Sisters Area Chamber of Commerce to provide Tourism-Related Services for FY 2021/22 and authorize the City Manager to execute the agreement. Councilor Blum seconded the motion. The motion carried 5-0.
VIII OTHER BUSINESS A. Staff Comments Public Works-Director Bertagna • The street overlay project would begin this week unless there was a rain delay. • Staff had been working with Deschutes County Sheriff Office (DCSO) on implementing the parking ordinance and cleaning up the right-of-way. Staff would continue to work on these issues.
City Manager’s Office- City Manager Misley/Recorder Prosser • Behind the scenes work continued on the Destination Management Initiative. • Staff had begun to review the Charter for potential revisions. • The historic mural was dedicated last week. • City Manager Misley would be speaking at the June Rotary meeting.
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• The Vision Implementation Team would be meeting to discuss the strategy for the new year. • City Manager Misley would be taking a diversity, equity, and inclusion training at the end of June.
Councilor Blum asked about the Sisters Quilt Show. City Manager Misley said they were still working through the process with DCSO on coordination, but Cascade Ave would not be closed this year.
Councilor Letz asked for an update on the roundabout and East Portal. City Manager Misley reviewed they would be meeting with the Oregon Department of Transportation (ODOT) next week to discuss potential funding options for the roundabout. Staff would be meeting with the US Forest Service and ODOT to talk about the offer submittal for the East Portal at the end of the month. He would update the Council in July.
Councilor Ross asked if the East Portal was zoned open space, did the US Forest Service have the ability to change the zoning. City Manager Misley replied the federal government had some supremacy clause that said federal law generally took precedence over state laws. ODOT and the City had sent a letter to the Forest Service asking them to take the property off the market while we were in purchase negotiations.
B. Discussion and Appointment of a Member of the City Council to the Regional Solutions Advisory Committee. Mayor Preedin reviewed the Regional Solutions Advisory Committee was a broad group of Central Oregon leaders led by Annette Liebe from the Governor’s office. They had been on the committee for the past two years, and said we needed to appoint a Councilor to a new two-year term. City Manager Misley explained Annette Liebe had reached out and asked if Sisters would like anyone on the committee. If we put a name forward, the Executive Committee would make the appointment.
Council discussed the appointment.
Mayor Preedin appointed Councilor Letz to a two-year term on the Regional Solutions Advisory Committee.
IX MAYOR/COUNCILOR BUSINESS Councilor Ross explained he would be out of town for the majority of July and could join meetings by phone if needed.
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Councilor Letz noted the Central Oregon Intergovernmental Council (COIC) board did not have a quorum for their budget meeting and it was rescheduled.
Councilor Blum had attended the dedication of the historic mural.
X ADJOURN: 7:28 pm.
______Kerry Prosser, City Recorder Michael Preedin, Mayor
Regular Meeting Minutes 06/09/21 Page 6 of 6 WORKSHOP MEETING MINUTES SISTERS CITY COUNCIL 520 E. CASCADE AVENUE JUNE 09, 2021
MEMBERS PRESENT: STAFF PRESENT: Michael Preedin Mayor Cory Misley City Manager Nancy Connolly Council President Paul Bertagna PW Director Andrea Blum Councilor Joe O’Neill Finance Director Jennifer Letz Councilor Scott Woodford CDD Director Gary Ross Councilor Kerry Prosser City Recorder Lt. Chad Davis DCSO GUESTS: Sharlene Weed Executive Director, Sisters Habitat for Humanity
Mayor Preedin called the workshop to order at 5:30 pm.
1. Discuss Law Enforcement Strategic Plan Lt. Davis reviewed the draft law enforcement Strategic Plan. Training would be addressed more thoroughly in the final draft, and City Manager Misley would be incorporating an introduction into the plan.
Mayor Preedin thought it was a great start; it was not too wordy, and they appreciated the nod to training.
Councilor Ross said it was a good starting point and liked that photo of the deputies were included in the plan.
Councilor Letz was looking forward to a culture of community building and thought the bike patrols were great. They said continuing to build relationships with business owners was important.
City Manager Misley outlined this document was 80-85% complete and subject to any other comments; they would bring this plan back to Council for approval on July 14th. They noted this was an organic document that could be amended as needed.
Council President Connolly asked how we could address the issue of trucks using Jake braking when they were entering town. Lt. Davis responded signage could be a possible solution to prevent the braking.
Lt. Davis reviewed: • They would be participating in the National Night Out event on August 3rd; there would be more details to come on the location. • Body cameras were fully implemented, and the new vehicle would have a car camera.
Workshop Meeting Minutes 06/09/21 Page 1 of 3 WORKSHOP MEETING MINUTES SISTERS CITY COUNCIL 520 E. CASCADE AVENUE JUNE 09, 2021
• Bike patrols would start on the weekends, and they would add in days as schedules allowed. • The Quilt Show (July 10th) would be the first City-Wide event in 2021.
2. Discussion of Affordable Housing Grant Application Director Woodford reviewed the City established an Affordable Housing Grant program in 2019 to help address the affordable housing problem. The grant program was funded primarily through a percentage of the transient room tax. Sisters Habitat for Humanity was the only applicant to submit a request this year. They have requested $50,000 to aid in infrastructure development to support four affordable housing units on lots they own in the Village Meadow subdivision. Director Woodford said Sharlene Weed, Executive Director of Sisters Habitat for Humanity (SHH), was present to answer any questions for the Council.
Councilor Ross asked if it would be more impactful for SHH to receive the $50,000 now or grant funds for System Development Charge’s on these four homes later. Executive Director Weed replied the infrastructure investment was more important. They noted SHH had received a $900,000 award from the State to help fund construction costs on the nine units left at Village Meadow. Executive Director Weed pledged SHH would not come back and ask the Council for System Development Charge on these homes if they received the full amount ($50,000) tonight.
Councilor Letz said although the $50,000 was a large request, it was a reasonable ask after the past year with the pandemic, lack of available housing, and the increase in construction costs. They were confident we were not setting a precedent for future applicants by awarding such a large amount this year. In the future, Councilor Letz would like Council to be more targeted about how this fund was used.
Councilor Blum reviewed that she had never been in favor of waiving system development charges. This grant program set aside funding for these types of projects without affecting system development charges. As this fund increased, they hoped we could do a project the community needed, but first, we needed to sort out the basics of what we wanted to do with these funds.
Council President Connolly asked how much SHH had set aside for the infrastructure on this project. Executive Director Weed replied they had not budgeted for the improvements on Brooks Camp Road as it was not normal for them. Council President Connolly asked what the current value of the lots were, and Executive Director Weed said SHH bought the lots for $33,000 in 2010 and one recently appraised at $93,000. Council President Connolly asked if SHH did not receive the funds, what would they do, and Executive Director Weed replied they did not know. Council President Connolly said we needed to take a look at what we did with these funds and what the end result would be.
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Mayor Preedin noted there had been concern that the change to the lot size and potential parking issues would change the neighborhood. Executive Director Weed empathized with the homeowners, but there was a need to house families. They said current homeowners would have input on the project's design, and there would be an additional 15 parking spaces developed on Brooks Camp Rd.
Councilor Ross said Council needed to define how the funds should be used and have a serious discussion on how to fund affordable housing.
City Manager Misley reviewed staff would work on the grant agreement and bring it back to Council for review at the July 14th meeting.
3. Other Business Community Development- Director Woodford • The final Comprehensive Plan survey was live, and the link was available on the Comprehensive Plan website. • Tabling exercises would continue at the Farmers Market this week. • The final Comprehensive Plan committee meetings were at the end of the month. • Public Hearings for the adoption of the Comprehensive Plan would begin in August. • The Associate Planner position was open for applications; they hoped to have a person on board by August.
Council discussed small lot size, efficiency measures, and how the community would respond to the changes around growth.
Finance-Director O'Neill • Workman’s Compensation costs would be decreasing significantly with the move to SAIF. • Staff was assessing alternatives for cybersecurity coverage as the current deductible was $250,000. • Business licenses letters had gone out with the historical rates.
Council discussed cybersecurity and the potential for cyber-attacks on the City.
The meeting adjourned at 6:26 pm.
______Kerry Prosser, City Recorder Michael Preedin, Mayor
Workshop Meeting Minutes 06/09/21 Page 3 of 3
CITY COUNCIL
Agenda Item Summary
Meeting Date: July 14, 2021 Staff: J. O’Neill
Type: Regular Meeting Dept.: Finance
Subject: ODOT Transit Services Agreement for Cascades East Transit Program
Action Requested: Discussion and consideration of a Motion to Approve Transit Services Agreement #33559 between the Oregon Department of Transportation (ODOT) and the City of Sisters for Public Transportation Services.
Background:
Currently, COIC acts as the contractor to provide the CET services to the region and administers the 5310 grant funds from ODOT associated with the services. The 5310 Grant program is administered for the City of Sisters by Central Oregon Intergovernmental Council (COIC) and is used to fund the Cascade East Transit Program. The Agreement will be effective July 1, 2021, thru June 30, 2023. Matching funds for the City will be $7,103 over the next two fiscal years. Payment to COIC for CET program services will be $69,165, State reimbursement in grant funds will be $62,062.
Financial Impact: $3,551.50 per year for the next two fiscal years. These funds have been included in the FY 2021/2022 budget. ______Attachments: ODOT Transportation Services Agreement #33559
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us Misc. Contracts and Agreements Agreement No. 35168 Operating 5310
PUBLIC TRANSPORTATION DIVISION OREGON DEPARTMENT OF TRANSPORTATION
This Agreement is made and entered into by and between the State of Oregon, acting by and through its Department of Transportation, Public Transportation Division, hereinafter referred to as "State," and City of Sisters, hereinafter referred to as "Recipient," and collectively referred to as the "Parties."
AGREEMENT 1. Effective Date. This Agreement shall become effective on the later of July 1, 2021 or the date when this Agreement is fully executed and approved as required by applicable law. Unless otherwise terminated or extended, Grant Funds under this Agreement shall be available for Project Costs incurred on or before June 30, 2023 (the "Expiration Date"). No Grant Funds are available for any expenditures after the Expiration Date. State's obligation to disburse Grant Funds under this Agreement shall end as provided in Section 10 of this Agreement. 2. Agreement Documents. This Agreement consists of this document and the following documents, all of which are attached hereto and incorporated herein by reference:
Exhibit A: Project Description and Budget
Exhibit B: Financial Information
Exhibit C: Subagreement Insurance Requirements and Recipient Insurance Requirements
Exhibit D: Summary of Federal Requirements, incorporating by reference Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements ("Certifications and Assurances") and Federal Transit Administration Master Agreement
Exhibit E: Information required by 2 CFR 200.331(a), may be accessed at https://www.oregon.gov/odot/RPTD/Pages/index.aspx, Oregon Public Transit Information System (OPTIS), as the information becomes available
In the event of a conflict between two or more of the documents comprising this Agreement, the language in the document with the highest precedence shall control. The precedence of each of the documents comprising this Agreement is as follows, listed from highest precedence to lowest precedence: Exhibit D; Exhibit E; this Agreement without Exhibits; Exhibit A; Exhibit B; Exhibit C. 3. Project Cost; Grant Funds; Match. The total project cost is estimated at $69,165.00. In accordance with the terms and conditions of this Agreement, State shall provide Recipient an amount not to exceed $62,062.00 (the "Grant Funds") for eligible costs described in Section 6.a. hereof. Recipient shall provide matching funds for all Project Costs as described in Exhibit A. Recipient will be responsible for all Project Costs not covered by the Grant Funds. 4. Project. The Grant Funds shall be used solely for the project described in Exhibit A (the "Project") and shall not be used for any other purpose. No Grant Funds will be disbursed for any changes to the Project unless such changes are approved by State by amendment pursuant to Section 11.a hereof. 5. Progress Reports. Recipient shall submit quarterly progress reports to State no later than 45 days after the close of each quarterly reporting period. Reporting periods are July through September, October through December, January through March, and April through June. Reports must be in a format acceptable to State and must be entered into the Oregon Public Transit Information System (OPTIS), which may be accessed at https://www.oregon.gov/ odot/RPTD/Pages/index.aspx. If Recipient is unable to access OPTIS, reports must be sent to [email protected]. Reports shall include a statement of revenues and expenditures for each quarter, including documentation of local match contributions and expenditures. State reserves the right to request such additional information as may be
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necessary to comply with federal or state reporting requirements. 6. Disbursement and Recovery of Grant Funds. a. Disbursement Generally. State shall reimburse eligible costs incurred in carrying out the Project, up to the Grant Funds amount provided in Section 3. Reimbursements shall be made by State within 30 days of State's approval of a request for reimbursement from Recipient using a format that is acceptable to State. Requests for reimbursement must be entered into OPTIS or sent to [email protected]. Eligible costs are the reasonable and necessary costs incurred by Recipient, or under a subagreement described in Section 9 of this Agreement, in performance of the Project and that are not excluded from reimbursement by State, either by this Agreement or by exclusion as a result of financial review or audit. b. Conditions Precedent to Disbursement. State's obligation to disburse Grant Funds to Recipient is subject to satisfaction, with respect to each disbursement, of each of the following conditions precedent: i. State has received funding, appropriations, limitations, allotments or other expenditure authority sufficient to allow State, in the exercise of its reasonable administrative discretion, to make the disbursement. ii. Recipient is in compliance with the terms of this Agreement including, without limitation, Exhibit D and the requirements incorporated by reference in Exhibit D. iii. Recipient's representations and warranties set forth in Section 7 hereof are true and correct on the date of disbursement with the same effect as though made on the date of disbursement. iv. Recipient has provided to State a request for reimbursement using a format that is acceptable to and approved by State. Recipient must submit its final request for reimbursement following completion of the Project and no later than 60 days after the Expiration Date. Failure to submit the final request for reimbursement within 60 days after the Expiration Date could result in non-payment. c. Recovery of Grant Funds. i. Recovery of Misexpended Funds or Nonexpended Funds. Any Grant Funds disbursed to Recipient under this Agreement that are either (i) disbursed but unexpended as of the Expiration Date ("Unexpended Funds") or (ii) expended in violation or contravention of one or more of the provisions of this Agreement ("Misexpended Funds") must be returned to State. Recipient shall return all Misexpended Funds to State no later than 15 days after State's written demand. Recipient shall return all Unexpended Funds to State within 15 days after the earlier of expiration or termination of this Agreement. ii. Recovery of Funds upon Termination. If this Agreement is terminated under either Section 10(a)(i) or Section 10(a)(v) below, Recipient shall return to State all funds disbursed to Recipient within 15 days after State's written demand for the same. 7. Representations and Warranties of Recipient. Recipient represents and warrants to State as follows: a. Organization and Authority. Recipient is duly organized and validly existing under the laws of the State of Oregon and is eligible to receive the Grant Funds. Recipient has full power, authority, and legal right to make this Agreement and to incur and perform its obligations hereunder, and the making and performance by Recipient of this Agreement (1) have been duly authorized by all necessary action of Recipient and (2) do not and will not violate any provision of any applicable law, rule, regulation, or order of any court, regulatory commission, board, or other administrative agency or any provision of Recipient's Articles of Incorporation or Bylaws, if applicable, (3) do not and will not result in the breach of, or constitute a default or require any consent under any other agreement or instrument to which Recipient is a party or by which Recipient or any of its properties may be bound or affected. No authorization, consent, license, approval of, filing or registration with or notification to any governmental body or regulatory or supervisory authority is required for the execution, delivery or performance by Recipient
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of this Agreement. b. Binding Obligation. This Agreement has been duly executed and delivered by Recipient and constitutes a legal, valid and binding obligation of Recipient, enforceable in accordance with its terms subject to the laws of bankruptcy, insolvency, or other similar laws affecting the enforcement of creditors' rights generally. c. No Solicitation. Recipient's officers, employees, and agents shall neither solicit nor accept gratuities, favors, or any item of monetary value from contractors, potential contractors, or parties to subagreements, except as permitted by applicable law. No member or delegate to the Congress of the United States or State of Oregon employee shall be admitted to any share or part of this Agreement or any benefit arising therefrom. d. No Debarment. Neither Recipient nor its principals is presently debarred, suspended, or voluntarily excluded from this federally-assisted transaction, or proposed for debarment, declared ineligible or voluntarily excluded from participating in this Agreement by any state or federal agency. Recipient agrees to notify State immediately if it is debarred, suspended or otherwise excluded from this federally-assisted transaction for any reason or if circumstances change that may affect this status, including without limitation upon any relevant indictments or convictions of crimes.
The warranties set in this section are in addition to, and not in lieu of, any other warranties set forth in this Agreement or implied by law. 8. Records Maintenance and Access; Audit. a. Records, Access to Records and Facilities. Recipient shall make and retain proper and complete books of record and account and maintain all fiscal records related to this Agreement and the Project in accordance with all applicable generally accepted accounting principles, generally accepted governmental auditing standards and state minimum standards for audits of municipal corporations. Recipient shall require that each of its subrecipients and subcontractors complies with these requirements. State, the Secretary of State of the State of Oregon (Secretary), the United States Department of Transportation (USDOT), the Federal Transit Administration (FTA) and their duly authorized representatives shall have access to the books, documents, papers and records of Recipient that are directly related to this Agreement, the funds provided hereunder, or the Project for the purpose of making audits and examinations. In addition, State, the Secretary, USDOT, FTA and their duly authorized representatives may make and retain excerpts, copies, and transcriptions of the foregoing books, documents, papers, and records. Recipient shall permit authorized representatives of State, the Secretary, USDOT and FTA to perform site reviews of the Project, and to inspect all vehicles, real property, facilities and equipment purchased by Recipient as part of the Project, and any transportation services rendered by Recipient. b. Retention of Records. Recipient shall retain and keep accessible all books, documents, papers, and records that are directly related to this Agreement, including, without limitation, records relating to capital assets funded by this Agreement, the Grant Funds or the Project for a minimum of six (6) years, or such longer period as may be required by other provisions of this Agreement or applicable law, following the Expiration Date. If there are unresolved audit questions at the end of the six-year period, Recipient shall retain the records until the questions are resolved. c. Expenditure Records. Recipient shall document the expenditure of all Grant Funds disbursed by State under this Agreement. Recipient shall create and maintain all expenditure records in accordance with generally accepted accounting principles and in sufficient detail to permit State to verify how the Grant Funds were expended. d. Audit Requirements. i. Recipients receiving federal funds in excess of $750,000 are subject to audit conducted in accordance with the provisions of 2 CFR part 200, subpart F. Recipient, if subject to this requirement, shall at Recipient's own expense submit to State, Public Transportation Division, 555 13th Street NE, Suite 3, Salem, Oregon, 97301-4179 or to [email protected], a copy of, or electronic link to, its annual audit subject to this requirement covering the funds expended under this Agreement and shall submit or cause to be submitted, the annual audit
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of any subrecipient(s), contractor(s), or subcontractor(s) of Recipient responsible for the financial management of funds received under this Agreement. ii. Recipient shall indemnify, save, protect and hold harmless State from the cost of any audits or special investigations performed by the Secretary with respect to the funds expended under this Agreement. Recipient acknowledges and agrees that any audit costs incurred by Recipient as a result of allegations of fraud, waste or abuse are ineligible for reimbursement under this or any other agreement between Recipient and State. This Section 8 shall survive any expiration or termination of this Agreement. 9. Recipient Subagreements and Procurements a. Subagreements. Recipient may enter into agreements with sub-recipients, contractors or subcontractors (collectively, "subagreements") for performance of the Project. i. All subagreements must be in writing executed by Recipient and must incorporate and pass through all of the applicable requirements of this Agreement to the other party or parties to the subagreement(s). Use of a subagreement does not relieve Recipient of its responsibilities under this Agreement. ii. Recipient shall require all of its contractors performing work under this Agreement to name State as a third-party beneficiary of Recipient's subagreement with the contractor and to name State as an additional or "dual" obligee on contractors' payment and performance bonds. iii. Recipient shall provide State with a copy of any signed subagreement, as well as any other purchasing or contracting documentation, upon request by State. This paragraph 9.a.iii. shall survive expiration or termination of this Agreement. iv. Recipient must report to State any material breach of a term or condition of a subagreement within ten (10) days of Recipient discovering the breach. b. Recipient shall review the Best Practices Procurement Manual, a technical assistance manual prepared by the FTA, available on the FTA website: www.fta.dot.gov/ grants/13054_6037.html c. Subagreement indemnity; insurance
i. Recipient's subagreement(s) shall require the other party to such subagreements(s) that is not a unit of local government as defined in ORS 190.003, if any, to indemnify, defend, save and hold harmless State and its officers, employees and agents from and against any and all claims, actions, liabilities, damages, losses, or expenses, including attorneys' fees, arising from a tort, as now or hereafter defined in ORS 30.260, caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of the other party to Recipient's subagreement or any of such party's officers, agents, employees or subcontractors ("Claims"). It is the specific intention of the Parties that the State shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the State, be indemnified by the other party to Recipient's subagreement(s) from and against any and all Claims. ii. Any such indemnification shall also provide that neither Recipient's subrecipient(s), contractor(s) nor subcontractor(s) (collectively "Subrecipients"), nor any attorney engaged by Recipient's Subrecipient(s), shall defend any claim in the name of the State or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney General. The State may, at any time at its election, assume its own defense and settlement in the event that it determines that Recipient's Subrecipient is prohibited from defending State or that Recipient's Subrecipient is not adequately defending State's interests, or that an important governmental principle is at issue or that it is in the best interests of State to do so. State reserves all rights to
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pursue claims it may have against Recipient's Subrecipient if State elects to assume its own defense. iii. Recipient shall require the other party, or parties, to each of its subagreements that are not units of local government as defined in ORS 190.003 to obtain and maintain insurance requirements provided in Exhibit C to this Agreement. Recipient may specify insurance requirements of its contractor(s) above the minimum insurance requirements specified in Exhibit C. Recipient shall verify its contractor(s) meet the insurance requirements in Exhibit C. d. Procurements. Recipient shall make purchases of any equipment, materials, or services for the Project under procedures that comply with Oregon law, as applicable, including all applicable provisions of the Oregon Public Contracting Code and rules, and in conformance to FTA Circular 4220.1F, Third Party Contracting Requirements including: i. All applicable clauses required by federal statute, executive orders and their implementing regulations are included in each competitive procurement; ii. All procurement transactions are conducted in a manner providing full and open competition; iii. Procurements exclude the use of statutorily or administratively imposed in-state or geographic preference in the evaluation of bids or proposals (with exception of locally controlled licensing requirements); iv. Construction, architectural and engineering procurements are based on Brooks Act procedures unless the procurement is subject to ORS 279C.100 to 279C.125. e. Additional requirements i. Recipient shall comply with 49 CFR sections 37.77(c) and 37.105 regarding "Certification of Equivalent Service" when purchasing vehicles under this Agreement. If non-accessible vehicles, as defined by the Americans with Disabilities Act, are being purchased for use by a public entity in demand responsive service for the general public, Recipient will certify to State at the time of applying for a project that, when viewed in its entirety, the demand responsive service offered to persons with disabilities, including persons who use wheelchairs, meets the standard of equivalent service. ii. Recipient shall comply with 49 CFR 663 regarding pre-award and post-delivery reviews. Every Recipient purchasing rolling stock or facilities under this Agreement must certify to State that a pre-award and post-delivery review has been conducted in accordance with ODOT requirements. This review ensures compliance to bid specifications including, but not limited to, FTA requirements, State requirements, and Federal Motor Carrier Safety Standards, as applicable to the type of project. Each Recipient's certification must include assurance that required documents have been received from manufacturers or vendors of products, or from both, and that Recipient possesses such documents. Acceptable certification forms are available from State. Recipient must provide certification forms to State when reimbursement is requested for vehicles. For facilities projects, Recipient must provide pre-award certifications to State at time of first payment, and post-delivery certifications upon completion of the post-delivery review, and in no event later than with Recipient's request for final payment. iii. Recipient shall comply with 49 CFR 604 in the provision of any charter service provided with vehicles, facilities, or equipment acquired with FTA assistance under this Agreement. iv. Recipient shall submit an annual vehicle inspection report to State for any vehicle purchased under this Agreement. Vehicle inspections shall be conducted by a vehicle maintenance technician certified by a nationally recognized organization in the field of vehicle service and maintenance. Reports covering required areas of inspection shall be submitted on forms provided by State. v. All drivers of vehicles purchased with FTA funds under this Agreement must complete a standard defensive driving course before operating an FTA-funded vehicle, and are advised to complete a standard defensive driving course before
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operating a State-funded vehicle. vi. Recipient shall maintain all vehicles, equipment, and facilities purchased under this Agreement in good condition per manufacturer’s recommendations. Recipients are required to develop preventive maintenance plans for all rolling stock and facilities and to provide the plans to State upon request. vii. Recipient shall be the owner of the property for facility construction projects and of vehicles purchased under this Agreement. Such ownership shall be recorded on real property deeds for facility construction projects and on vehicle titles. If Recipient contracts the operation of vehicles to a third party, then the third party may be shown as the owner or lessee with Recipient listed as the second security interest holder or lessor. In all cases, Oregon Department of Transportation, Public Transportation Division shall be shown as the first security interest holder on vehicle titles. If Recipient fails to show Oregon Department of Transportation, Public Transportation Division as the first security interest holder, Recipient shall pay any expenses to re-submit the necessary documents to Oregon Department of Transportation, Driver and Motor Vehicle Services (DMV). If a vehicle is damaged or destroyed at any time when Recipient fails to show Oregon Department of Transportation, Public Transportation Division, as the first security interest holder, Recipient shall be liable to State for any damage in an amount in the same manner as if Oregon Department of Transportation, Public Transportation Division, were shown as the first security interest holder. viii. Recipient shall bear the cost of insuring assets purchased under this Agreement. ix. Recipient shall file a restrictive covenant with the property deed for all construction projects and purchases of real estate, with the exception of passenger shelters, amenities, and right-of-way infrastructure improvements. The restrictive covenant will limit the use of the building and property to the stated purpose specified in the statement of work associated with this Agreement. x. Recipient shall complete all purchases, including installation, and all construction of capital assets funded under this Agreement prior to the Expiration Date of this Agreement. If local circumstances prevent purchase, installation, or construction by the specified date, Recipient will notify State in writing of the circumstances regarding the delay. Such notification must be received at least forty-five (45) days prior to the expiration of the Agreement. Agreement amendment for time will be considered in extenuating circumstances. f. Conflict of Interest. Recipient's public officials shall comply with Oregon's government ethics laws, ORS 244.010 et seq., as those laws may be subsequently amended. 10. Termination a. Termination by State. State may terminate this Agreement effective upon delivery of written notice of termination to Recipient, or at such later date as may be established by State in such written notice, if: i. Recipient fails to perform the Project within the time specified herein or any extension thereof or commencement, continuation or timely completion of the Project by Recipient is, for any reason, rendered improbable, impossible, or illegal; or ii. State fails to receive funding, appropriations, limitations or other expenditure authority sufficient to allow State, in the exercise of its reasonable administrative discretion, to continue to make payments for performance of this Agreement; or iii. Federal or state laws, rules, regulations or guidelines are modified or interpreted in such a way that the Project is no longer allowable or no longer eligible for funding under this Agreement; or iv. The Project would not produce results commensurate with the further expenditure of funds; or v. Recipient takes any action pertaining to this Agreement without the approval of State and which under the provisions of this Agreement would have required the
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approval of State. b. Termination by Recipient. Recipient may terminate this Agreement effective upon delivery of written notice of termination to State, or at such later date as may be established by Recipient in such written notice, if: i. The requisite local funding to continue the Project becomes unavailable to Recipient; or ii. Federal or state laws, rules, regulations or guidelines are modified or interpreted in such a way that the Project is no longer allowable or no longer eligible for funding under this Agreement. c. Termination by Either Party. Either Party may terminate this Agreement upon at least ten days' notice to the other Party and failure of the other Party to cure within the period provided in the notice, if the other Party fails to comply with any of the terms of this Agreement. 11. General Provisions a. Amendments. This Agreement may be amended or extended only by a written instrument signed by both Parties and approved as required by applicable law. b. Contribution. i. If any third party makes any claim or brings any action, suit or proceeding alleging a tort as now or hereafter defined in ORS 30.260 ("Third Party Claim") against State or Recipient with respect to which the other Party may have liability, the notified Party must promptly notify the other Party in writing of the Third Party Claim and deliver to the other Party a copy of the claim, process, and all legal pleadings with respect to the Third Party Claim. Each Party is entitled to participate in the defense of a Third Party Claim, and to defend a Third Party Claim with counsel of its own choosing. Receipt by a Party of the notice and copies required in this paragraph and meaningful opportunity for the Party to participate in the investigation, defense and settlement of the Third Party Claim with counsel of its own choosing are conditions precedent to that Party's liability with respect to the Third Party Claim. ii. Except as otherwise provided in Paragraph 11.c below, with respect to a Third Party Claim for which State is jointly liable with Recipient (or would be if joined in the Third Party Claim ), State shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Recipient in such proportion as is appropriate to reflect the relative fault of the State on the one hand and of the Recipient on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of State on the one hand and of Recipient on the other hand shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. State's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if State had sole liability in the proceeding. iii. Except as otherwise provided in Paragraph 11.c below, with respect to a Third Party Claim for which Recipient is jointly liable with State (or would be if joined in the Third Party Claim), Recipient shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by State in such proportion as is appropriate to reflect the relative fault of Recipient on the one hand and of State on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of Recipient on the one hand and of State on the other hand shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines
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or settlement amounts. Recipient's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if it had sole liability in the proceeding. c. Indemnification. i. Subject to any limitations imposed by State law and the Oregon Constitution, Recipient agrees to the following contract-related indemnification for all projects authorized under this Agreement: ii. Where Recipient contracts for services or performs project management for a project, Recipient shall accept all responsibility, defend lawsuits, indemnify, and hold State harmless, for all contract-related claims and suits. This includes but is not limited to all contract claims or suits brought by any contractor, whether arising out of the contractor's work, Recipient's supervision of any individual project or contract, or Recipient's failure to comply with the terms of this Agreement.
Sections 11.b and 11.c shall survive termination of this Agreement. d. Insurance. Recipient shall meet the insurance requirements within Exhibit C. e. Dispute Resolution. The Parties shall attempt in good faith to resolve any dispute arising out of this Agreement. In addition, the Parties may agree to utilize a jointly selected mediator or arbitrator (for non-binding arbitration) to resolve the dispute short of litigation. f. Responsibility for Grant Funds. Any recipient of Grant Funds, pursuant to this Agreement with State, shall assume sole liability for that recipient's breach of the conditions of this Agreement, and shall, upon recipient's breach of conditions that requires State to return funds to the FTA, hold harmless and indemnify State for an amount equal to the funds received under this Agreement; or if legal limitations apply to the indemnification ability of the recipient of Grant Funds, the indemnification amount shall be the maximum amount of funds available for expenditure, including any available contingency funds or other available non-appropriated funds, up to the amount received under this Agreement. g. Duplicate Payment. Recipient is not entitled to compensation or any other form of duplicate, overlapping or multiple payments for the same work performed under this Agreement from any agency of the State of Oregon or the United States of America or any other party, organization or individual. h. No Third Party Beneficiaries. State and Recipient 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 benefit or right, whether directly or indirectly, to a third person unless such a third person is individually identified by name herein and expressly described as an intended beneficiary of the terms of this Agreement.
Recipient acknowledges and agrees that the Federal Government, absent express written consent by the Federal Government, is not a party to this Agreement and shall not be subject to any obligations or liabilities to the Recipient, contractor or any other party (whether or not a party to the Agreement) pertaining to any matter resulting from the this Agreement. i. Notices. Except as otherwise expressly provided in this Agreement, any communications between the Parties hereto or notices to be given hereunder shall be given in writing by personal delivery, facsimile, email, or mailing the same, postage prepaid, to Recipient Contact or State Contact at the address or number set forth on the signature page of this Agreement, or to such other addresses or numbers as either Party may hereafter indicate pursuant to this subsection. Any communication or notice personally delivered shall be deemed to be given when actually delivered. Any communication or notice delivered by facsimile shall be deemed to be given when receipt of the transmission is generated by the transmitting machine, and to be effective against State, such facsimile transmission must be confirmed by telephone notice to State Contact. Any communication by email shall be deemed to be given when the
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recipient of the email acknowledges receipt of the email. Any communication or notice mailed shall be deemed to be given when received. j. Governing Law, Consent to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively, "Claim") between State (or any other agency or department of the State of Oregon) and Recipient that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within the Circuit Court of Marion County in the State of Oregon. In no event shall this section be construed as a waiver by the State of Oregon of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise, from any Claim or from the jurisdiction of any court. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURT, WAIVES ANY OBJECTION TO VENUE, AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM. k. Compliance with Law. Recipient shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Agreement or to the implementation of the Project, as applicable to Recipient, including without limitation as described in Exhibit D. Without limiting the generality of the foregoing, Recipient expressly agrees to comply with (i) Title VI of Civil Rights Act of 1964; (ii) Title V and Section 504 of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142; (iv) all regulations and administrative rules established pursuant to the foregoing laws; and (v) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. l. Insurance; Workers' Compensation. All employers, including Recipient, that employ subject workers who provide services in the State of Oregon shall comply with ORS 656.017 and provide the required Workers' Compensation coverage, unless such employers are exempt under ORS 656.126. Employer's liability insurance with coverage limits of not less than $500,000 must be included. Recipient shall ensure that each of its subrecipient(s), contractor(s), and subcontractor(s) complies with these requirements. m. Independent Contractor. Recipient shall perform the Project as an independent contractor and not as an agent or employee of State. Recipient has no right or authority to incur or create any obligation for or legally bind State in any way. State cannot and will not control the means or manner by which Recipient performs the Project, except as specifically set forth in this Agreement. Recipient is responsible for determining the appropriate means and manner of performing the Project. Recipient acknowledges and agrees that Recipient is not an "officer", "employee", or "agent" of State, as those terms are used in ORS 30.265, and shall not make representations to third parties to the contrary. n. Severability. If any term or provision of this Agreement is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if this Agreement did not contain the particular term or provision held to be invalid. o. Counterparts. This Agreement may be executed in two or more counterparts (by facsimile or otherwise), each of which is an original and all of which together are deemed one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. p. Integration and Waiver. This Agreement, including all Exhibits, constitutes the entire agreement between the Parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. The delay or failure of either Party to enforce any provision of this Agreement shall not constitute a waiver by that Party of that or any other provision. Recipient, by the signature below of its authorized representative, hereby acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. q. Survival. The following provisions survive termination of this Agreement: Sections 6.c.,
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8 and 11.
Page 10 of 22 City of Sisters/State of Oregon Agreement No. 35168
The Parties, by execution of this Agreement, hereby acknowledge that each Party has read this Agreement, understands it, and agrees to be bound by its terms and conditions.
The Oregon Transportation Commission on October 20, 2010, approved Delegation Order Number OTC-01, which authorizes the Director of the Oregon Department of Transportation to administer programs related to public transit.
On March 1, 2012, the Director approved Delegation Order Number DIR-04, which delegates the authority to approve this Agreement to the Public Transportation Division Administrator.
SIGNATURE PAGE TO FOLLOW
Page 11 of 22 City of Sisters/State of Oregon Agreement No. 35168
City of Sisters, by and through its State of Oregon, by and through its Department of Transportation
By By Karyn Criswell (Legally designated representative) Public Transportation Division Administrator
Name Date (printed)
Date APPROVAL RECOMMENDED
By By Theresa Conley
Name Date 06/07/2021 (printed)
Date APPROVED AS TO LEGAL SUFFICIENCY (For funding over $150,000)
APPROVED AS TO LEGAL SUFFICIENCY N/A (If required in local process)
By Recipient's Legal Counsel
Date
Recipient Contact: Joseph ONeill
PO Box 39 Sisters, OR 97759 1 (541) 323-5222 [email protected]
State Contact: Theresa Conley 555 13TH ST NE Salem, OR 97301 1 (541) 388-6250 [email protected]
Signed Agreement Return Address: [email protected]
Page 12 of 22 City of Sisters/State of Oregon Agreement No. 35168
EXHIBIT A Project Description and Budget
Project Description/Statement of Work
Project Title: 5310 City of Sisters 35168 Purchased Service Item #1: Contracted Service (5310 only)
Total Grant Amount Local Match Match Type(s) $69,165.00 $62,062.00 $7,103.00 Local
Sub Total $69,165.00 $62,062.00 $7,103.00
Grand Total $69,165.00 $62,062.00 $7,103.00
1. PROJECT DESCRIPTION
This Agreement provides funding to purchase accessible public transportation services for seniors, individuals with disabilities, and the general public in and around the City of Sisters in Deschutes County, Oregon. This includes, but is not limited to, demand responsive services in the City of Sisters and surrounding areas and Community Connector services between Sisters and Bend with connections to Redmond, Prineville, Madras and La Pine. Services may include demand response, deviated fixed route, or other service types determined to meet the scope of this grant and the needs of the community.
The services provided should be consistent with the adopted Coordinated Public Transit Human Services Transportation Plan (Coordinated Plan) and Transit Master Plan.
Services will be provided under an existing purchased service procurement and resulting contract with Central Oregon Intergovernmental Council dba Cascades East Transit in the City of Bend in Deschutes County, Oregon.
This project also supports the administrative costs required to manage the service contract.
2. PROJECT DELIVERABLES, TASKS and PERFORMANCE MEASURES
The contracted service will be provided by a contractor(s) or pass-through subrecipient(s) selected by Recipient, and will be designed to benefit seniors and individuals with disabilities, and may also be made available to the general public.
The service, schedule, days, hours, and service type route will be designed to meet the needs of seniors and individuals with disabilities as determined by Recipient in consultation with the operator of service, the affected community members, and stakeholders identified by Recipient.
Services will be provided in accordance with the locally adopted Coordinated Plan. Recipient and contractor or pass-through subrecipient will coordinate the delivery of transportation services with other public and private transportation providers to enhance regional services and to avoid duplication of services. Coordinated service may be made available to a variety of potential users, including the general public.
Recipient may amend the service design at any time in accordance with local demand, funding issues, changes in the Coordinated Plan, or other situations that require service to be changed. Recipient will inform State if there is a change in the service funded by this Agreement.
Recipient will market the services.
Recipient will oversee and monitor the services and performance of the contractor or pass- through subrecipient.
The following performance measure will be used to evaluate the effectiveness of the projects over the grant period.
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Rides: 15,080 Unduplicated Riders: 121
Ridership is defined as the actual or estimated one-way passenger trips provided to seniors and individuals with disabilities. A passenger trip is a unit of service counted each time a passenger enters a vehicle, is transported, then exits the vehicle. Each unique destination constitutes a passenger trip.
For purposes of this Agreement, Unduplicated Passenger or Client Count (UPC) is defined as the actual or estimated number of individuals served who are a) all passengers or other project clients; and b) seniors and individuals with disabilities, who are provided mobility services developed by this project. Individuals served can include transit passengers and/or persons served through mobility training. Recipient will track and report the UPC. Methodology for identifying the UPC is at the discretion of the Recipient, and shall be documented in writing and provided with the quarterly progress report
3. PROJECT ACCOUNTING, MATCHING FUNDING and SPENDING PLAN
This Agreement covers contracted public transportation provision, as defined under the 49 USC Section 5310 program, as described in Circular 9070.1G, Section III-14-e.
Generally accepted accounting principles and the Recipient's accounting system determine those costs that are to be accounted for as gross operating expenses. Recipient may not count the same costs twice if they have multiple agreements for which these costs may be eligible. The service provider may use capital equipment funded under USDOT- or State-source agreements when performing services rendered through a contract or subagreement funded by this Agreement. Depreciation of capital equipment funded from USDOT- or State-source grants is not an eligible expense.
Sources of funding that may be used as Recipient's matching funds for this Agreement include local funds; Statewide Transportation Improvement Formula Funds; Special Transportation Formula Funds; service contract revenue, advertisement and other earned income; cash donations; and verifiable in-kind contributions integral to the project budget. In-kind contributions claimed as matching funding must be reported to State. Recipient may not use passenger fares as matching funding.
Project recipient will subtract revenue from fares, tickets and passes whether pre-paid or post- paid, from the gross operating expense of the service. Administrative expenses incurred by the contractor or pass-through subrecipient are reimbursable as operating expenses. State's obligation to reimburse Project costs is contingent upon Recipient first paying or otherwise contributing its minimum match amount set forth in this Exhibit A.
Recipient may not use assets acquired under this Agreement to compete unfairly with the private sector.
4. REPORTING AND INVOICING REQUIREMENTS
Recipient will request reimbursement for covered expenses incurred during each period as prescribed by State. Copies of invoices must be submitted for all vendor charges. In-house charges must be documented showing time specifically associated with the project.
Recipient will provide evidence of purchased or contracted service through standard invoicing including an itemization of expenses. Recipient shall submit invoices or comparable documentation when requesting reimbursement for services purchased from a second party.
Invoices must: i. Be legible ii. Match the amount requested for reimbursement iii. Include a description of the service (hours, rate, and quantity) iv. Include date(s) of the service v. Include the agency providing the service
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If the service provider also performs preventive maintenance, dispatching, and/or other services, these costs should be itemized separately on the same invoice unless these activities are included in the same hourly or other rate established by the contract between the service provider and vendor. Recipient shall report quarterly performance achievements using the narrative section of the Agency Periodic Report, and include anticipated performance achievements for the upcoming quarter.
Photographs of public transit, and related operations, are encouraged to memorialize the achievement of project deliverables.
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EXHIBIT B FINANCIAL INFORMATION
The information below will assist auditors to prepare a report in compliance with the requirements of 2 CFR part 200, subpart F.
This Agreement is financed by the funding source indicated below:
Federal Program Federal Funding Agency CFDA Number Total Federal Funding 49 U.S.C. 5310 U.S. Department of Transportation 20.513 (5310) $62,062.00 Federal Transit Administration 915 Second Avenue, Suite 3142 Seattle, WA 98174
Administered By Public Transportation Division 555 13TH ST NE Salem, OR 97301
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EXHIBIT C
Insurance Requirements
Subagreement Insurance Requirements
GENERAL.
Recipient shall require in its first tier subagreements with entities that are not units of local government as defined in ORS 190.003, if any, to: i) obtain insurance specified under TYPES AND AMOUNTS and meeting the requirements under ADDITIONAL INSURED, "TAIL" COVERAGE, NOTICE OF CANCELLATION OR CHANGE, and CERTIFICATES OF INSURANCE before performance under the subagreement commences, and ii) maintain the insurance in full force throughout the duration of the subagreement. The insurance must be provided by insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to State. Recipient shall not authorize work to begin under subagreements until the insurance is in full force. Thereafter, Recipient shall monitor continued compliance with the insurance requirements on an annual or more frequent basis. Recipient shall incorporate appropriate provisions in the subagreement permitting it to enforce compliance with the insurance requirements and shall take all reasonable steps to enforce such compliance. In no event shall Recipient permit work under a subagreement when Recipient is aware that the contractor is not in compliance with the insurance requirements. As used in this section, "first tier" means a subagreement in which the Recipient is a Party.
TYPES AND AMOUNTS.
WORKERS COMPENSATION. All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and shall provide Workers' Compensation Insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). The coverage shall include Employer's Liability Insurance with limits not less than $500,000 each accident. Contractor shall require compliance with these requirements in each of its subcontractor contracts.
COMMERCIAL GENERAL LIABILITY. Commercial General Liability Insurance shall be issued on an occurrence basis covering bodily injury and property damage and shall include personal and advertising injury liability, products and completed operations, and contractual liability coverage. When work to be performed includes operations or activity within 50 feet of any railroad property, bridge, trestle, track, roadbed, tunnel, underpass or crossing, the Contractor shall provide the Contractual Liability - Railroads CG 24 17 endorsement, or equivalent, on the Commercial General Liability policy. Amounts below are a minimum requirement as determined by State:
Coverage shall be written on an occurrence basis in an amount of not less than $1,000,000 per occurrence.
Annual aggregate limit shall not be less than $2,000,000.
AUTOMOBILE LIABILITY. Automobile Liability Insurance covering Contractor's business-related automobile use covering all owned, non-owned, or hired vehicles for bodily injury and property. Amount below is a minimum requirement as determined by State:
Coverage shall be written with a combined single limit of not less than $1,000,000.
This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability).
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EXCESS/UMBRELLA LIABILITY. A combination of primary and Excess/Umbrella Liability Insurance may be used to meet the required limits of insurance.
ADDITIONAL INSURED. The liability insurance coverages, except Professional Liability or Workers' Compensation/ Employer's Liability, if included, must include the "State of Oregon, the Oregon Transportation Commission and the Department of Transportation, and their respective officers, members, agents and employees" as an endorsed Additional Insured but only with respect to the contractor's activities to be performed under the Subagreement. Coverage shall be primary and non-contributory with any other insurance and self-insurance.
Additional Insured Endorsements on the Commercial General Liability shall be written on ISO Form CG 20 10 07 04, or equivalent, with respect to liability arising out of ongoing operations and ISO Form CG 20 37 07 04, or equivalent, with respect to liability arising out of completed operations. Additional Insured Endorsements shall be submitted with the Certificate(s) of Insurance and must be acceptable to the Recipient.
"TAIL" COVERAGE. If any of the required insurance policies is on a "claims made" basis, such as professional liability insurance or pollution liability insurance, the contractor shall maintain either "tail" coverage or continuous "claims made" liability coverage, provided the effective date of the continuous "claims made" coverage is on or before the effective date of the Subagreement, for a minimum of twenty-four (24) months following the later of : (i) the contractor's completion and Recipient's acceptance of all Services required under the Subagreement or, (ii) the expiration of all warranty periods provided under the Subagreement. Notwithstanding the foregoing twenty-four (24) month requirement, if the contractor elects to maintain "tail" coverage and if the maximum time period "tail" coverage reasonably available in the marketplace is less than the twenty-four (24) month period described above, then the contractor may request and State may grant approval of the maximum "tail " coverage period reasonably available in the marketplace. If State approval is granted, the contractor shall maintain "tail" coverage for the maximum time period that "tail" coverage is reasonably available in the marketplace.
NOTICE OF CANCELLATION OR CHANGE. The contractor or its insurer must provide thirty (30) days' written notice to Recipient before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s). The Recipient shall immediately notify State of any change in insurance coverage.
CERTIFICATE(S) OF INSURANCE. Recipient shall obtain from the contractor a certificate(s) of insurance for all required insurance before the contractor performs under the Subcontract. The certificate(s) or an attached endorsement must specify: i) all entities and individuals who are endorsed on the policy as Additional Insured and ii) for insurance on a "claims made" basis, the extended reporting period applicable to "tail" or continuous "claims made" coverage.
Recipient Insurance Requirements
GENERAL.
Recipient shall: i) obtain at the Recipient's expense the insurance specified under TYPES AND AMOUNTS and meeting the requirements under ADDITIONAL INSURED, "TAIL" COVERAGE, NOTICE OF CANCELLATION OR CHANGE, and CERTIFICATES OF INSURANCE before performance under this Agreement commences, and ii) maintain the insurance in full force and at its own expense throughout the duration of this Agreement. Recipient shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to State. Coverage shall be primary and non-contributory with any other insurance and self-insurance with the exception of Professional Liability and Workers' Compensation. Recipient shall pay for all deductibles, self-insurance retention and self-insurance, if any.
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INSURANCE REQUIREMENT REVIEW. Recipient agrees to periodic review of insurance requirements by State under this Agreement and to provide updated requirements as mutually agreed upon by Recipient and State.
TYPES AND AMOUNTS.
WORKERS COMPENSATION. All employers, including Recipient, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and shall provide Workers' Compensation Insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). The coverage shall include Employers liability insurance with coverage limits of not less than $500,000 must be included.
COMMERCIAL GENERAL LIABILITY. Commercial General Liability Insurance shall be issued on an occurrence basis covering bodily injury, death, and property damage and shall include personal and advertising injury liability, products and completed operations and contractual liability coverage. When work to be performed includes operations or activity within 50 feet of any railroad property, bridge, trestle, track, roadbed, tunnel, underpass or crossing, the Contractor shall provide the Contractual Liability - Railroads CG 24 17 endorsement, or equivalent, on the Commercial General Liability policy. Commercial General Liability Insurance shall not be less than the following amounts as determined by State:
Coverage shall be written on an occurrence basis in an amount of not less than $1,000,000 per occurrence.
Annual aggregate limit shall not be less than $2,000,000.
AUTOMOBILE LIABILITY. Automobile Liability Insurance covering business-related automobile use on all owned, non-owned or hired vehicles for bodily injury and property. Automobile Liability Insurance shall not be less than the following amount as determined by State:
Coverage shall be written with a combined single limit of not less than $1,000,000.
This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability).
EXCESS/UMBRELLA LIABILITY. A combination of primary and Excess/Umbrella Liability Insurance may be used to meet the required limits of insurance.
ADDITIONAL INSURED. The liability insurance coverages, except Professional Liability or Workers' Compensation/ Employer's Liability, if included, must include the "State of Oregon, the Oregon Transportation Commission and the Department of Transportation, and their respective officers, members, agents and employees" as an endorsed Additional Insured but only with respect to the Recipient's activities to be performed under this Agreement. Coverage shall be primary and non-contributory with any other insurance and self-insurance.
Additional Insured Endorsements on the Commercial General Liability shall be written on ISO Form CG 20 10 07 04, or equivalent, with respect to liability arising out of ongoing operations and ISO Form CG 20 37 07 04, or equivalent, with respect to liability arising out of completed operations. Additional Insured Endorsements shall be submitted with the Certificate(s) of Insurance and must be acceptable to the Recipient.
"TAIL" COVERAGE. If any of the required insurance policies is on a "claims made" basis, such as professional liability insurance, Recipient shall maintain either "tail" coverage or continuous "claims made" liability
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coverage, provided the effective date of the continuous "claims made" coverage is on or before the effective date of this Agreement, for a minimum of 24 months following the later of: (i) Recipient's completion and State's acceptance of all Services required under this Agreement or, (ii) the expiration of all warranty periods provided under this Agreement. Notwithstanding the foregoing 24-month requirement, if Recipient elects to maintain "tail" coverage and if the maximum time period "tail" coverage reasonably available in the marketplace is less than the 24-month period described above, then Recipient may request and State may grant approval of the maximum "tail" coverage period reasonably available in the marketplace. If State approval is granted, Recipient shall maintain "tail" coverage for the maximum time period that "tail" coverage is reasonably available in the marketplace.
NOTICE OF CANCELLATION OR CHANGE. Recipient or its insurer must provide 30 days' written notice to State before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).
CERTIFICATE(S) OF INSURANCE. State shall obtain from Recipient a certificate(s) of insurance for all required insurance before the effective date of this Agreement. The certificate(s) or an attached endorsement must specify: i) all entities and individuals who are endorsed on the policy as Additional Insured and ii) for insurance on a "claims made" basis, the extended reporting period applicable to "tail" or continuous "claims made" coverage.
STATE ACCEPTANCE. All insurance providers are subject to State acceptance. If requested by State, Recipient shall provide complete copies of insurance policies, endorsements, self-insurance documents and related insurance documents to State's representatives responsible for verification of the insurance coverages required under this Exhibit C.
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EXHIBIT D
Summary of Federal Requirements and Incorporating by Reference Annual List of Certifications and Assurances for FTA Grants and Cooperative Agreements ("Certifications and Assurances") and Federal Transit Administration Master Agreement ("Master Agreement")
Recipient and Recipient's subrecipient(s), contractor(s), or subcontractor(s), at any tier, if any, must comply with all applicable federal requirements contained in the Certifications and Assurances available at www.transit.dot.gov. The Certifications and Assurances, including as they may be changed during the term of this Agreement, are by this reference incorporated herein.
Recipient further agrees to comply with all applicable requirements included in the Master Agreement that is signed and attested to by State. This Master Agreement is incorporated by reference and made part of this Agreement. Said Master Agreement is available upon request from State by calling (503) 986-3300, or at www.transit.dot.gov. Without limiting the foregoing, the following is a summary of some requirements applicable to transactions covered by this Agreement and the funds described in Exhibit A:
1. Recipient shall comply with Title VI of the Civil Rights Act of 1964 (78 State 252, 42 U.S.C. § 2000d) and the regulations of the United States Department of Transportation (49 CFR 21, Subtitle A). Recipient shall exclude no person on the grounds of race, religion, color, sex, age, national origin, or disability from the benefits of aid received under this Agreement. Recipient will report to State on at least an annual basis the following information: any active lawsuits or complaints, including dates, summary of allegation, status of lawsuit or complaint including whether the Parties entered into a consent decree. 2. Recipient shall comply with FTA regulations in Title 49 CFR 27 Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance which implements the Rehabilitation Act of 1973, as amended, the Americans with Disabilities Act of 1990, 49 CFR 37, and 49 CFR 38. 3. Recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any USDOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR Part 26. Recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of USDOT- assisted contracts. Recipient's DBE program, if applicable, as required by 49 CFR part 26 and as approved by USDOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to State of its failure to carry out its approved program, the Department may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.). 4. Recipient must include the following language in each subagreement Recipient signs with a subcontractor or subrecipient:
The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The contractor, subrecipient, or subcontractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of USDOT-assisted contracts. Failure by the contractor, subrecipient, or subcontractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as Recipient deems appropriate. 5. Recipient and contractors receiving in excess of $100,000 in federal funds, other than Indian tribes, must certify to State that they have not and will not use federal funds to pay for influencing or attempting to influence an officer or employee of any federal department or Agency, a member of Congress, or an employee of a member of Congress in connection with obtaining any federal grant, cooperative agreement or any other federal award. If non-federal
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funds have been used to support lobbying activities in connection with the Project, Recipient shall complete Standard Form LLL, Disclosure Form to Report Lobbying and submit the form to State at the end of each calendar quarter in which there occurs an event that requires disclosure. Restrictions on lobbying do not apply to influencing policy decisions. Examples of prohibited activities include seeking support for a particular application or bid and seeking a congressional earmark.
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CITY COUNCIL
Agenda Item Summary
Meeting Date: July 14, 2021, Staff: Misley
Type: Regular Meeting-Consent Agenda Dept: CMO
Subject: Five-Year Enterprise Zone Abatement-Nosler
Action Requested: This action requests City Council approve an Enterprise Zone Extended Abatement Agreement (for a total of five years) for Nosler, Inc. for qualifying property tax abatement based on capital investment, new job creation and wages.
Summary Points: All employment lands in the City of Redmond are part of a State enabled economic development designation known as the Enterprise Zone (E-Zone). This program allows qualifying businesses and investments to receive a 100% abatement of property taxes associated with the assessed value of new qualifying capital improvements. Companies in this program, pay taxes on the value of the land and any capital investments that are not eligible for the abatement.
There are three primary types of State Enterprise Zone Programs: • Three-Year Program (granted by right for eligible applicants); • Four- or Five-Year Program (known as the Extended program) where years four and five are approved by the Zone Sponsor(s) (City/County); • Seven to 15-year Program (known as the Long-Term Rural program) and approved by Zone Sponsor(s).
The duration of the abatement is linked to the number of jobs created and wage level. The three-year abatement does not have an average wage requirement. However, the Extended and Long-Term Rural programs require wages that are certified at or above 150% of Deschutes County average annual compensation (currently $71,393). The three-year program also does not require approval by the City/County where the company is located. They are approved administratively and do not require City Council action.
Compensation under the criteria includes salary, overtime, medical and retirement benefits. Not all jobs created need to exceed the 150 percent average annual compensation criteria, but rather an average of the overall compensation for all net new jobs needs to exceed the 150 percent average annual compensation criteria.
Extended abatements are done through agreements by the E-Zone sponsor(s) which extend the tax abatement for either one or two years beyond the standard three-year abatement. Extended abatements need to be approved by the sponsor(s) of the E-Zone.
It is the prerogative of the sponsor agency whether or not the approval is made by the governing body or administratively. The Greater Redmond Area E-Zone has three co-sponsors: The City of Redmond; Deschutes County; and the City of Sisters. The City of Sisters policy is that the Redmond City Council approves all extended E-Zone agreements.
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us
CITY COUNCIL
Agenda Item Summary
• Since 2016, Nosler, Inc has been operating its casing manufacturing facility in Redmond. Nosler's holdings in Redmond include a 60-acre parcel which they purchased in 2015. • The bullet manufacturing business has been in Bend since 1958. • The company has experienced tremendous growth over the past few years and has outgrown its Bend facility. With product demand exceeding expectations they have determined a new state of the art 80,000 square foot facility is needed and they plan on relocating the entire company to Redmond. • Nosler is well known in the industry for producing ammunition and handloading components and specializing in high performance hollow point and soft point hunting bullets. The current company also includes subsidiaries Nosler Custom and Nosler Reloading. Nosler also produces products for military and law enforcement agencies.
In April 2021, Nosler submitted an application to the Zone Manager, requesting an extended abatement.
The investment will include construction of a new building and new equipment. Total project cost is estimated at $13.5million, which includes equipment eligible for exemption, if approved for 5 years. Of the $13.5 million, approximately $12 million is capital construction and $1.5 million is capital equipment. This does not include the nearly $7 million in transferred property presently on the County tax roll and not eligible for the tax exemption.
The firm will relocate 103 jobs to Redmond and will create at least 14 additional jobs by the first year of the exemption (estimated to be 2023). The application and wage documentation have been certified above 150% by Redmond City Manager Keith Witcosky and Enterprise Zone Manager, Jon Stark.
This E-Zone agreement allows for two additional years, from the Standard Program (the Three-Year program) and was approved unanimously by the Redmond City Council on June 8th, 2021.
Fiscal Impact: No impact for the City of Sisters. This action will extend the property tax abatement for the qualified project by two years, impacting the City of Redmond’s property tax collections. The City of Redmond’s apportionment of the abatement is estimated to be $35,457/year.
______Attachments: Abatement Agreement
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us Greater Redmond Area Enterprise Zone Extended Abatement
WRITTEN AGREEMENT WITH THE GREATER REDMOND AREA ENTERPRISE ZONE SPONSORS TO EXTEND PROPERTY TAX EXEMPTION TO [FOUR/FIVE] CONSECUTIVE YEARS IN TOTAL FOR CAPITAL INVESTMENT BY Nosler, Inc.]
The sponsors of the Greater Redmond Area Enterprise Zone comprising the governing bodies of [the City of Redmond, Sisters and Deschutes County] (hereinafter the “Zone Sponsor") and Nosler Inc. (hereinafter the “Firm") do hereby enter into an agreement pursuant to ORS 285C.160 for extending the period of time in which the Firm will receive a property tax exemption on its [proposed] investment[s] in qualified property in the Greater Redmond Area Enterprise Zone contingent on certain special requirements.
The Zone Sponsor and the Firm jointly acknowledge: That subject to the Firm’s timely submission of an application for authorization, the satisfaction of applicable requirements under ORS 285C.050 to 285C.250 (the “Statute”), and the Zone Sponsor’s approval thereof, the Firm is eligible for three years of property tax exemption on its qualified property. So long as the Firm elects to continue to receive this property tax exemption and continues to qualify, then this agreement shall have no effect on this three-year exemption. Nothing in this agreement shall be construed as a waiver of the qualification requirements of the Statute. If the Firm loses its qualified status for any reason set forth in the Statute, then this agreement becomes null and void.
The Zone Sponsor extends The Firm's property tax exemption an additional two years on all property that initially qualifies in the Greater Redmond Area Enterprise after the initial assessment year beginning on January 1, 2023 and, thus, sets a total period of exemption of five consecutive years during which statutory requirements for the standard three-year enterprise zone exemption must also be continuously satisfied.
CONFIRMATION OF STATUTORY PROVISIONS
In order to receive the additional two years of enterprise zone exemption granted herein, the Firm agrees under 285C.160(3)(a)(A) that for each year of the entire exemption period, including the first three years and the additional one or two years, all of the Firm's new employees will receive an average rate of compensation equal to or greater than 150 percent of the county average annual wage, as determined at the time the enterprise zone tax exemption is authorized in accordance with the specific definitions and guidelines in Oregon Administrative Rules (OAR), Chapter 123, Division 674 (123-674-0600), the “Compensation standard” . Only “Affected Employees” are counted. Affected Employees means persons, positions or jobs under ORS 285C.050(13) that satisfy the following criteria: (a) included as “employment of the firm” in accordance with OAR 123-674-0200; and (b) new jobs filled for the first time: (A) after the date of Application under ORS 285C.140(1), even if an individual filling the job is already employed by the eligible business firm in another position that is refilled within the zone; and (B) on or before December 31 at the end of the initial exemption year, and located within the current boundaries of the Greater Redmond Area Enterprise Zone.
Only full-time, year-round and non-temporary employees engaged a majority of their time in the Firm's eligible operations consistent with ORS 285C.135 including but not limited to persons who perform eligible activities as described in OAR 123-674-1100 or 123-674-1200(3) or (4) and OAR 123-674-0200 are counted, regardless of whether such employees are leased, contracted for or otherwise obtained through an external agency or are employed directly by the Firm.
LOCAL ADDITIONAL REQUIREMENTS
The Zone Sponsor does not request any requirement of The Firm and relinquishes all rights to make the additional [one/two] years of property tax exemption granted herein contingent on additional requirements that might otherwise be reasonably requested under ORS 285C.160(a)(B).]
ACCEPTING FOR THE CO-SPONSORS OF THE GREATER REDMOND AREA ENTERPRISE ZONE:
Signature: Date: George Endicott, Mayor, City of Redmond
Signature: Date: Tony DeBone, Board Chair, Deschutes County
Signature: Date: , Michael Preedin, Mayor, City of Sisters
ACCEPTING FOR THE FIRM:
Signature: Date: Representative Signature
Printed Name / Title
Address
City, State, Zip
Phone / Fax
CITY COUNCIL
Agenda Item Summary
Meeting Date: July 14, 2021 Staff: P. Bertagna Type: Regular Meeting Dept: Public Works Subject: On-Call Electrical Services Agreement
Action Requested: By Motion through the Consent Agenda, approve the On-Call Electrical Services Agreement with Smith Rock Electric LLC.
Summary Points:
• The City desires to contract with an Electrical Contractor licensed in the State of Oregon to perform on-call electrical services on behalf of the City. • Our previous Lead Electrician that represented Curt’s Electric who we were in contract with, left the company which resulted in Curt’s Electric having to void the contract. • Staff issued a Request for Proposals and received (2) proposals. Smith Rock Electric was the preferred selection because of their references, staffing plan, response time and their rates were lower than the other proposer as well. • In FY20/21 the city spent $22,547.96 on electrical services that included (2) large capital projects. We anticipate spending approximately $15,000 in FY21/22. • This is a (2) year contract with a (2) year option to renew.
Financial Impact:
______Attachments:
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us ON-CALL ELECTRICAL SERVICES AGREEMENT
This On-Call Electrical Services Agreement (this “Agreement”) is dated July 14, 2021, but made effective for all purposes as of the Effective Date (as defined below), between City of Sisters (“City”), an Oregon municipal corporation, whose address is 520 East Cascade Avenue, Sisters, Oregon 97759, and Smith Rock Electric, LLC (“Contractor”), an Oregon limited liability company, whose address is 1PO Box 2270, Terrebonne, Oregon 97760.
RECITALS:
A. Contractor is engaged in the business of providing licensed electrical services on a contract basis. Contractor is licensed by the Oregon Construction Contractor Board under License No.: 209255. Contractor’s telephone number is 541-604-9732.
B. City desires to contract with Contractor to perform certain electrical services for and on behalf of City. Subject to the terms and conditions contained in this Agreement, Contractor will perform the Services (as defined below) for and on behalf of City.
AGREEMENT:
NOW, THEREFORE, in consideration of the parties’ mutual obligations contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Contractor Services.
1.1 Services; Standards. Subject to the terms and conditions contained in this Agreement, Contractor will perform the following electrical services for and on behalf of City (collectively, the “Services”): (a) those electrical services identified in the attached Schedule 1.1; (b) any other necessary or appropriate services customarily provided by Contractor in connection with its performance of those services identified in Schedule 1.1; and (c) such other electrical services requested by City from time to time. Contractor will (w) consult with and advise City on all matters concerning the Services reasonably requested by City, (x) communicate all matters and information concerning the Services to the city manager (or his or her designee) and report directly to the city manager, (y) devote such time and attention to the performance of the Services as City deems necessary or appropriate, and (z) perform the Services to the best of Contractor’s ability. Contractor acknowledges and agrees that City may cause or direct other persons or contractors to provide services for and on behalf of City that are the same or similar to the Services provided by Contractor under this Agreement.
1.2 On-Call Process. Subject to the terms and conditions contained in this Agreement, Contractor will perform those Services requested by City from time to time. Upon City’s identification of any requested Services, City will provide Contractor written notice (the “Request for Services”) containing a general description of the requested Services and a schedule for completion of the Services. Contractor will provide the requested Services in accordance with and subject to this Agreement and the applicable Request for Services. Contractor will not perform any Services in excess of $250.00 except as authorized by City in an applicable Request for Services.
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1.3 Condition Precedent. Notwithstanding anything contained in this Agreement to the contrary, City’s performance of its obligations under this Agreement is conditioned on Contractor’s performance of its obligations under this Agreement, including, without limitation, those Contractor obligations identified under Section 4.4.
2. Compensation.
2.1 Compensation. Subject to the terms and conditions contained in this Agreement, in consideration of Contractor’s timely performance of the Services in accordance with this Agreement, City will pay Contractor at the rate of $90.00 per hour for licensed electricians and $70.00 per hour for apprentices. Contractor will submit monthly invoices to City concerning the Services performed by Contractor during the immediately preceding month (each an “Invoice”). Each Invoice will contain the following information: (a) a summary of the Services performed by Contractor (and by whom); (b) the number of hours (or fraction thereof) each person spent to perform the Services; (c) the applicable fee(s) for performing the Services; and (d) all other information reasonably requested by City. City will pay the amount due under each Invoice within thirty (30) days after City has reviewed and approved the Invoice. No compensation will be paid by City for any portion of the Services not performed. City’s payment will be accepted by Contractor as full compensation for performing the Services.
2.1 No Benefits; No Reimbursement. City will not provide any benefits to Contractor, and Contractor will be solely responsible for obtaining Contractor’s own benefits, including, without limitation, insurance, medical reimbursement, and retirement plans. Expenses incurred by Contractor in connection with the performance of the Services will not be reimbursed by City.
3. Relationship.
3.1 Independent Contractor. Contractor is an independent contractor of City. Contractor is not an employee of City. Contractor will be free from direction and control over the means and manner of performing the Services, subject only to the right of City to specify the desired results. This Agreement does not create an agency relationship between City and Contractor and does not establish a joint venture or partnership between City and Contractor. Contractor does not have the authority to bind City or represent to any person that Contractor is an agent of City. Contractor has the authority to hire other persons to assist Contractor in performing the Services (and has the authority to fire such persons).
3.2 Taxes; Licenses. City will not withhold any taxes from any payments made to Contractor, and Contractor will be solely responsible for paying all taxes arising out of or resulting from Contractor’s performance of the Services, including, without limitation, income, social security, workers’ compensation, and employment insurance taxes. Contractor will be solely responsible for obtaining all licenses, approvals, and certificates necessary or appropriate to perform the Services.
4. Representations; Warranties; Covenants.
In addition to any other Contractor representation, warranty, and/or covenant made in this Agreement, Contractor represents, warrants, and covenants to City as follows:
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4.1 Authority; Binding Obligation; Conflicts. Contractor is duly organized, validly existing, and in good standing under applicable Oregon law. Contractor has full power and authority to sign and deliver this Agreement and to perform all Contractor’s obligations under this Agreement. This Agreement is the legal, valid, and binding obligation of Contractor, enforceable against Contractor in accordance with its terms. The signing and delivery of this Agreement by Contractor and the performance by Contractor of all Contractor’s obligations under this Agreement will not (a) breach any agreement to which Contractor is a party, or give any person the right to accelerate any obligation of Contractor, (b) violate any law, judgment, or order to which Contractor is subject, or (c) require the consent, authorization, or approval of any person, including, without limitation, any governmental body.
4.2 Quality of Services. Contractor will perform the Services to the best of Contractor’s ability, diligently, in good faith, in a professional manner, free from errors and/or deficiencies, and consistent with the terms and conditions contained in this Agreement. The Services will be performed in accordance with the Laws (as defined below). Contractor will be solely responsible for the Services. Contractor will make all decisions called for promptly and without unreasonable delay. All materials and documents prepared by Contractor will be accurate, complete, unambiguous, prepared properly, and in compliance with the Laws.
4.3 Insurance. During the term of this Agreement, Contractor will obtain and maintain, in addition to any other insurance required under this Agreement, the following minimum levels of insurance: (a) general liability insurance for all losses or claims arising out of or related to Contractor’s performance of its obligations under this Agreement (including, without limitation, damages as a result of death or injury to any person or destruction or damage to any property) with limits of no less than $1,000,000 per occurrence, $2,000,000 in the aggregate; (b) comprehensive automobile liability insurance for all owned, non-owned, and hired vehicles that are or may be used by Contractor in connection with Contractor’s performance of the Services with limits of no less than $1,000,000 per occurrence, $2,000,000 in the aggregate; (c) errors and omissions insurance with limits of no less than $1,000,000 per occurrence, $2,000,000 in the aggregate; and (d) workers’ compensation insurance in form and amount sufficient to satisfy the requirements of applicable Oregon law. Each liability insurance policy required under this Agreement will be in form and content satisfactory to City, will list City (and City’s Representatives (as defined below)) as an additional insured(s), and will contain a severability of interest clause; the workers’ compensation insurance will contain a waiver of subrogation in favor of City. The insurance Contractor is required to obtain under this Agreement may not be cancelled without ten (10) days’ prior written notice to City. Contractor’s insurance will be primary and any insurance carried by City will be excess and noncontributing. Contractor will furnish City with appropriate documentation evidencing the insurance coverage (and provisions) and endorsements Contractor is required to obtain under this Agreement upon Contractor’s execution of this Agreement and at any other time requested by City. If Contractor fails to maintain insurance as required under this Agreement, City will have the option, but not the obligation, to obtain such coverage with costs to be reimbursed by Contractor immediately upon City’s demand.
4.4 Compliance With Laws. Contractor will comply and perform the Services in accordance with the Laws. Without otherwise limiting the generality of the immediately preceding sentence, Contractor will comply with each obligation applicable to Contractor and/or this Agreement under ORS 279B.220, 279B.225, 279B.230, and 279B.235, which statutes are incorporated herein by reference. Prior to the Effective Date, Contractor obtained all licenses, approvals, and/or certificates necessary or appropriate to perform the Services, including, without limitation, a business license from City, and an
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unexpired certificate issued by the Oregon Department of Administrative Services under ORS 279A.167. Without otherwise limiting the generality of the immediately preceding sentence, before performing any Services, Contractor will obtain all applicable building permits and/or approvals necessary to complete such Services. City will pay all building permit inspection fees in connection with the Services. During the term of this Agreement, Contractor will maintain proper licensure with the Oregon Construction Contractors Board and maintain proper insurance and bonding as required under this Agreement and the Laws. Notwithstanding anything contained in this Agreement to the contrary, Contractor will use only licensed and bonded contractors familiar with the Laws and of good reputation to complete the Services. For purposes of this Agreement, the term “Law(s)” means all applicable federal, state, and local laws, regulations, restrictions, orders, codes, rules, and/or ordinances related to or concerning, whether directly or indirectly, Contractor, this Agreement, and/or the Services, including, without limitation, all applicable building laws and/or codes, all City ordinances, resolutions, policies, regulations, orders, restrictions, and guidelines, all as now in force and/or which may hereafter be amended, modified, enacted, or promulgated.
4.5 Indemnification. To the fullest extent permitted by the Laws, Contractor will defend, indemnify, and hold City, and each present and future City officer, employee, agent, and representative (collectively, “City’s Representatives”), harmless for, from, and against all claims, actions, proceedings, damages, liabilities, injuries, losses, and expenses of every kind, whether known or unknown, including, without limitation, attorney fees and costs, resulting from or arising out of the following: (a) damage, injury, and/or death to person or property caused directly or indirectly by Contractor (and/or Contractor’s officers, members, managers, employees, agents, representatives, and/or contractors); (b) Contractor’s failure to pay any tax arising out of or resulting from performance of the Services; and/or (c) Contractor’s breach and/or failure to perform any Contractor representation, warranty, covenant, and/or obligation contained in this Agreement. Contractor’s indemnification obligations provided in this Section 4.5 will survive the termination of this Agreement.
4.6 Assignment of Studies and Reports. Contractor will assign all studies, reports, data, documents, and/or materials of any kind produced under this Agreement to City upon the earlier of City’s request or the termination of this Agreement. All copies of the materials provided to City will become the property of City who may use them without Contractor’s permission for any proper purpose relating to the Services, including, without limitation, additions to or completion of the Services. Contractor will defend all suits or claims for infringement of patent, trademark, and/or copyright for which Contractor is responsible (including, without limitation, any claims which may be brought against City), and Contractor will be liable to City for all losses arising therefrom, including costs, expenses, and attorney fees.
4.7 Records. Contractor will maintain complete and accurate records concerning all Services performed, the number of hours each person spent to perform the Services, and all documents produced under this Agreement for a period of five years after the termination of this Agreement. Contractor’s records will be maintained in accordance with sound accounting practices. Contractor’s records concerning the Services, including, without limitation, Contractor’s time and billing records, will be made available to City for inspection, copying, and/or audit immediately upon City’s request.
4.8 Non-Discrimination; ADA. Contractor will not discriminate on the grounds of race, color, creed, national origin, sex, marital status, age, and/or disability in Contractor’s performance of the Services. Contractor agrees to comply with Title VI of the Civil Rights Act of 1964, with Section V of the
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Rehabilitation Act of 1973, and with all applicable requirements of federal and state civil rights and rehabilitation statues, rules and regulations. Contractor will comply with the Americans with Disabilities Act of 1990 (Pub L No. 101-336) (the “ADA”), ORS 659.425, and all regulations and administrative rules established pursuant to those laws. Contractor will comply with ADA in its employment and nondiscrimination practices, and that it will perform its contractual obligations consistent with ADA federal requirements/regulations, state disability and accessibility law and requirements, and applicable regulation and administrative rules established pursuant to those laws.
4.9 General Duties.
4.9.1 Notwithstanding anything contained in this Agreement to the contrary, Contractor will perform (or cause to be performed) the following at Contractor’s cost and expense: (a) furnish all labor, materials, equipment, tools, supplies, and/or services necessary or appropriate to complete the Services; (b) complete the Services in a good workmanlike manner, free of all defects and deficiencies; (c) obtain and maintain all licenses, inspections, and permits required by any private and/or public authority in connection with the Services; (d) comply with and give all notices required under the Laws; (e) properly manage and dispose of all waste, garbage, and debris, including, without limitation, sediment, paint, cement wash, asphalt, motor oil, and grease, in accordance with the Laws; (f) be responsible to City for the acts and omissions of Contractor, each Contractor Representative, and all other persons performing the Services; and (h) timely and properly pay Contractor’s employees for their services subject to and in accordance with the Laws.
4.9.2 Contractor will daily and remove all waste, garbage, and debris from any City property. Contractor will maintain City property in a safe, clean, and orderly condition, free from accumulation of waste, garbage, and debris. Upon completion of any Services, Contractor will remove from the worksite all waste, garbage, debris, tools, equipment, and surplus materials. If City determines that Contractor has failed to perform its obligations under this Section 4.9.2, City will have the option, but not the obligation, to perform Contractor’s obligations under this Section 4.9.2 at Contractor’s cost and expense. Contractor will reimburse City for all costs and expenses incurred by City to perform Contractor’s obligations under this Section 4.9.2 immediately upon City’s demand. Notwithstanding anything contained in this Agreement to the contrary, all worksites will be left in a condition satisfactory to City. All Contractor clean-up obligations under this Agreement are part of the Services.
4.9.3 Contractor will, at Contractor’s cost and expense, restore any worksite to the same condition to which the worksite existed immediately prior to performing the Services. If Contractor fails to timely restore any property to the same condition to which the worksite existed immediately prior to the Services, City may cause the restoration to be made at Contractor’s cost and expense. Contractor will reimburse City for all costs and expenses incurred by City to restore the worksite immediately on City’s demand.
5. Term; Termination.
5.1 Term of Agreement. Subject to the terms and conditions contained in this Agreement, the term of this Agreement commenced on the Effective Date and will remain in full force and effect until June 30, 2023 (the “Initial Term”), unless sooner terminated or extended as provided in this Agreement. Upon the expiration of the Initial Term, this Agreement may be extended for one additional period of two years by the parties’ mutual written agreement.
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5.2 Termination by Mutual Agreement or City’s Prior Notice. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated (a) at any time by the mutual written agreement of City and Contractor, and/or (b) by City for convenience and without cause by giving Contractor thirty (30) days’ prior written notice of such termination.
5.3 Immediate Termination. Notwithstanding anything contained in this Agreement to the contrary, City may terminate this Agreement immediately upon notice to Contractor upon the happening of any of the following events: (a) Contractor engages in any form of dishonesty or conduct involving moral turpitude related to Contractor’s independent contractor relationship with City or that otherwise reflects adversely on the reputation or operations of City; (b) Contractor fails to comply with any applicable law related to Contractor’s independent contractor relationship with City; (c) continuous or repeated problems occur in connection with the performance of the Services; and/or (d) Contractor breaches and/or otherwise fails to perform any Contractor representation, warranty, covenant, and/or obligation contained in this Agreement. The determination as to whether any of the aforementioned events have occurred will be made by City in City’s sole discretion.
5.4 Consequences of Termination. Upon termination of this Agreement, City will not be obligated to reimburse or pay Contractor for any continuing contractual commitments to others or for penalties or damages arising from the cancellation of such contractual commitments. Within a reasonable period of time after termination of this Agreement (but in no event later than five days after termination), Contractor will deliver to City all materials and documentation, including raw or tabulated data and work in progress, related to or concerning the Services. Termination of this Agreement by City will not constitute a waiver or termination of any rights, claims, and/or causes of action City may have against Contractor.
5.5 Remedies. If a party breaches or otherwise fails to perform any of its representations, warranties, covenants, and/or obligations under this Agreement, the non-defaulting party may, in addition to any other remedy provided to the non-defaulting party under this Agreement, pursue all remedies available to the non-defaulting party at law or in equity. All available remedies are cumulative and may be exercised singularly or concurrently.
6. Miscellaneous.
6.1 Severability; Assignment; Binding Effect. Each provision contained in this Agreement will be treated as a separate and independent provision. The unenforceability of any one provision will in no way impair the enforceability of any other provision contained herein. Any reading of a provision causing unenforceability will yield to a construction permitting enforcement to the maximum extent permitted by applicable law. Contractor will not assign this Agreement to any person without City’s prior written consent. Subject to the immediately preceding sentence, this Agreement will be binding on the parties and their respective heirs, personal representatives, successors, and permitted assigns, and will inure to their benefit. This Agreement may be amended only by a written agreement signed by each party.
6.2 Attorney Fees; Dispute Resolution. If any arbitration or litigation is instituted to interpret, enforce, and/rescind this Agreement, including, without limitation, any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover with
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respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorney fees and other fees, costs, and expenses of every kind, including, without limitation, costs and disbursements specified in ORCP 68 A(2), incurred in connection with the arbitration, the litigation, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court. If any claim, dispute, or controversy arising out of or related to this Agreement occurs (a “Dispute”), City and Contractor will exert their best efforts to seek a fair and prompt negotiated resolution of the Dispute and will meet at least once to discuss and seek a resolution of the Dispute. If the Dispute is not resolved by negotiated resolution, either party may initiate a suit, action, arbitration, or other proceeding to interpret, enforce, and/or rescind this Agreement.
6.3 Governing Law; Venue. This Agreement is governed by the laws of the State of Oregon, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this Agreement. Any action or proceeding arising out of this Agreement will be litigated in courts located in Deschutes County, Oregon. Each party consents and submits to the jurisdiction of any local, state, or federal court located in Deschutes County, Oregon.
6.4 Attachments; Further Assurances; Notices. Any exhibits, schedules, instruments, documents, and other attachments referenced in this Agreement are part of this Agreement. The parties will sign other documents and take other actions reasonably necessary to further effect and evidence this Agreement. Time is of the essence with respect to Contractor’s performance of its obligations under this Agreement. All notices or other communications required or permitted by this Agreement must be in writing, must be delivered to the parties at the addresses set forth above, or any other address that a party may designate by notice to the other party, and are considered delivered upon actual receipt if delivered personally, by fax or email transmission (with electronic confirmation of delivery), or by a nationally recognized overnight delivery service, or at the end of the third business day after the date of deposit if deposited in the United States mail, postage pre-paid, certified, return receipt requested.
6.5 Waiver; Entire Agreement. No provision of this Agreement may be modified, waived, or discharged unless such waiver, modification, or discharge is agreed to in writing by City and Contractor. No waiver of either party at any time of the breach of, or lack of compliance with, any conditions or provisions of this Agreement will be deemed a waiver of other provisions or conditions hereof. This Agreement contains the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and contains all the terms and conditions of the parties’ agreement and supersedes any other oral or written negotiations, discussions, representations, or agreements. Contractor has not relied on any promises, statements, representations, or warranties except as set forth expressly in this Agreement.
6.6 Person; Interpretation; Execution. For purposes of this Agreement, the term “person” means any natural person, corporation, limited liability company, partnership, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision, or any other entity. All pronouns contained herein and any variations thereof will be deemed to refer to the masculine, feminine, or neutral, singular or plural, as the identity of the parties may require. The singular includes the plural and the plural includes the singular. The word “or” is not exclusive. The words “include,” “includes,” and “including” are not limiting. The titles, captions, or headings of the sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. The parties may execute this
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Agreement in separate counterparts, each of which when executed and delivered will be an original, but all of which together will constitute one and the same instrument. Facsimile or email transmission of any signed original document will be the same as delivery of an original. At the request of either party, the parties will confirm facsimile or email transmitted signatures by signing and delivering an original document. This Agreement will be deemed binding and effective for all purposes as of the date this Agreement is fully executed by the parties (the “Effective Date”).
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed and effective for all purposes as of the Effective Date.
CITY: CONTRACTOR: City of Sisters, Smith Rock Electric, LLC, an Oregon municipal corporation an Oregon limited liability company
By: Cory Misley By: Smith Rock Electric, LLC Its: City Manager Its: Sam McVay, Member
Dated: ______Dated: ______
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Schedule 1.1 Services
In addition to all other Services identified under this Agreement, Contractor will perform the following Services for and on behalf of City:
1. On-call electrical services for all City-owned buildings, facilities, streetlights, and infrastructures sites. Contractor will provide electrical repairs, upgrades, installations, and replacements for components of City facilities and infrastructure on an as-needed basis during the term of this Agreement.
2. Except in cases of emergency, Contractor will be available to provide any Services pursuant to a Request for Services within twenty-four (24) hours of notification from City. For non-emergency Services requested by City other than pursuant to a Request for Services, Contractor will perform such Services not more than 72 hours after notification from City. In the event of an emergency, Contractor will be physically on-site to perform the Services within one hour of notification from City.
3. Such general electrical repairs and/or temporary electrical repairs requested by City from time to time.
SCHEDULE 1.1 – SERVICES {16564200-01353020;1}
CITY COUNCIL
Agenda Item Summary
Meeting Date: July 14, 2021 Staff: Misley Type: Regular & Public Hearing Dept: CMO Subject: Ordinance No. 514: An Ordinance of the City of Sisters amending Ordinance 381, which Ordinance granted High Country Enterprises, LLC a franchise to provide certain solid waste management services within City of Sisters, to adjust included additional procedures for the franchise to request a rate increase.
Action Requested: Public hearing and consideration of approval by City Council.
Summary Points:
On May 26, 2021, City Council adopted Ordinance No. 513 adjusting the franchise fee paid by Republic Services from 5% to 7%. Included in that Ordinance was some new language concerning the future process and timeline for adjusting of franchise fees. This language was not vetted accordingly with Republic Services, and they have requested that it be revised. Overall, the original, new, and revised language is not substantial to the successful implementation of the agreement and partnership between the City and Republic Services.
Financial Impact: N/A ______Attachments: • Ordinance No. 514
520 E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 | ph.: (541) 549-6022 | www.ci.sisters.or.us
ORDINANCE NO. 514
AN ORDINANCE OF CITY OF SISTERS AMENDING ORDINANCE NO. 381, WHICH ORDINANCE GRANTED HIGH COUNTRY ENTERPRISES, LLC A FRANCHISE TO PROVIDE CERTAIN SOLID WASTE MANAGEMENT SERVICES WITHIN CITY OF SISTERS, TO ADJUST INCLUDE ADDITIONAL PROCEDURES FOR THE FRANCHISEE TO REQUEST A RATE INCREASE.
WHEREAS, City of Sisters (“City”), an Oregon municipal corporation, granted High Country Enterprises, LLC (“Company”), an Oregon limited liability company, the right, privilege, and franchise to provide solid waste management services in City pursuant to the terms of that certain Solid Waste Franchise Agreement dated September 26, 2008, as amended by the Solid Waste Franchise Agreement dated June 26, 2014, established under City Ordinance No. 381 (collectively, the “Original Franchise”); and
WHEREAS, on or about April 5, 2019, (a) Company transferred and assigned Company’s rights and interests under the Original Franchise to Allied Waste Transfer Services of Oregon, LLC (“Franchisee”), an Oregon limited liability company d/b/a Republic Services of Oregon, (b) Franchisee assumed all Company’s obligations under the Original Franchise (collectively, the “Transaction”), and (c) City consented to the Transaction subject to and in accordance with that certain Consent to Assignment Agreement dated March 27, 2019 between City, Company, and Franchisee; and
WHEREAS, on or about May 26, 2021, the Sisters City Council (the “Council”) adopted Ordinance No. 513 pursuant to which City increased the franchise fee payable under the Original Franchise from 5% to 7% of Franchisee’s gross revenues; and
WHEREAS, Franchisee has requested that City amend the Franchise Agreement (as defined below) to provide a process pursuant to which Franchisee may submit an application for a rate adjustment if City adjusts the franchise fee pursuant to Section 2E of the Franchise Agreement; and
WHEREAS, subject to and in accordance with this Ordinance No. 514 (this “Ordinance”), Franchisee and City desire to amend the Original Franchise to revise Section 3(A)(3) to clarify Franchisee’s right to request a customer rate increase if City increases the franchise fee under Section 2E.
NOW, THEREFORE, the City of Sisters ordains as follows:
1. Findings; Terms. The above-stated findings contained in this Ordinance are hereby adopted. Except as provided under this Ordinance, capitalized terms contained in this Ordinance and not otherwise defined herein have the meanings assigned to such terms under the Original Franchise. For purposes of this Ordinance, the term “Franchise Agreement” means, collectively, the Original Franchise (as amended) and this Ordinance.
2. Amendment No. 2. Subject to the terms and conditions contained in this Ordinance, effective July 1, 2021, Section 3A(3) of the Original Franchise is amended to read in its entirety as follows:
“(3) Except as expressly provided otherwise in this Section 3A(3), the franchisee shall provide sixty (60) days prior written notice of a proposed rate change with accompanying justification of
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proposed rate changes. Unless a governmental unit has raised franchisee’s cost of providing service and/or there has been a substantial increase in franchisee’s cost to provide services in the City not covered in the immediately preceding adjustment, rate adjustments may be made in accordance with the following:
(a) For an annual rate adjustment, the franchisee will file an application with the City on or before May 1. Unless there is good cause shown and recorded in council meeting minutes, the Council will act upon any rate adjustment by June 30, and the adjustment will take effect on July 1.
(b) Upon receipt of the City’s notice of an increase or decrease to the franchise fee pursuant to and in accordance with Section 2E, the franchisee may apply in writing for a rate adjustment (with accompanying justification of proposed rate changes) notwithstanding the rate adjustment deadlines and/or schedule under Section 3A(3)(a), above. The Council will process an application under this Section 3(A)(3)(b) within sixty (60) days after receipt of the application.”
3. Miscellaneous. This Ordinance is hereby made part of the Original Franchise. The provisions of the Original Franchise that are not amended by this Ordinance remain unchanged and in full force and effect. City’s adoption of this Ordinance will not be construed as an actual or implied waiver and/or release of any condition or obligation contained in the Franchise Agreement. Franchisee affirms and reaffirms all Franchisee’s obligations arising out of and/or under the Franchise Agreement. All pronouns contained in this Ordinance and any variations thereof will be deemed to refer to the masculine, feminine, or neutral, singular or plural, as the identity of the parties may require. The singular includes the plural and the plural includes the singular. The word “or” is not exclusive. The words “include,” “includes,” and “including” are not limiting. Any reference to a particular law, statute, rule, regulation, code, or ordinance includes the law, statute, rule, regulation, code, or ordinance as now in force and hereafter amended. The provisions of this Ordinance are hereby declared severable. If any section, subsection, sentence, clause, and/or portion of this Ordinance is for any reason held invalid, unenforceable, and/or unconstitutional, such invalid, unenforceable, and/or unconstitutional section, subsection, sentence, clause, and/or portion will (a) yield to a construction permitting enforcement to the maximum extent permitted by applicable law, and (b) not affect the validity, enforceability, and/or constitutionality of the remaining portion of this Ordinance. This Ordinance may be corrected by order of the Council to cure editorial and/or clerical errors.
4. Franchisee Acceptance. Within thirty (30) days after City’ s passage of this Ordinance, Franchisee will file with City the written acceptance attached hereto as Exhibit A (the “Acceptance”). If Franchisee fails to timely file the Acceptance with City, this Ordinance will be deemed null, void, and repealed by City in all respects without further act by City.
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This Ordinance was PASSED and ADOPTED by the Sisters City Council by a vote of ___ for and __ against and APPROVED by the mayor on this 14th day of July, 2021.
______Michael Preedin, Mayor
ATTEST:
______Kerry Prosser, City Recorder
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Exhibit A Acceptance
Accepted By: Allied Waste Transfer Services of Oregon, LLC, an Oregon limited liability company d/b/a Republic Services of Oregon
______By: ______Its: ______
Date: ______
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