2014 Lake Oswego City Council Regular Meeting
Tuesday, December 16, 2014 CONSENT AGENDA
The consent agenda allows the City Council to consider items that require no discussion. An item may only be discussed if it is pulled from the consent agenda. The Council makes one motion covering all items included in the consent agenda.
3.1 APPROVAL OF MEETING MINUTES
3.1.1 November 4, 2014, Regular Meeting
Action: Approve minutes as written
3.2 COUNCIL BUSINESS
3.2.1 Intergovernmental Agreement with TriMet to Construct the Willamette Shore Line Trestle Maintenance Project
Action: Authorize the City Manager to sign an Intergovernmental Agreement with TriMet to fund the Willamette Shore Line Trestle Maintenance Project, substantially in the form presented.
ITEMS REMOVED FROM THE CONSENT AGENDA AGENDA
CITY COUNCIL REGULAR MEETING Tuesday, December 16, 2014 6:00 p.m. Council Chambers, City Hall
AGENDA REVISED 12/12/14 Contact: Catherine Schneider, City Recorder Email: [email protected] Phone: 503-635-0215
Also published on the internet at: www.ci.oswego.or.us. The meeting location is accessible to persons with disabilities. To request accommodations, please contact the City Manager’s Office at 503-635-0215, 48 hours before the meeting.
1. CALL TO ORDER AND ROLL CALL
2. PRESENTATIONS 2.1 Recognition and Farewell to Outgoing Councilors Donna Jordan and Lauren Hughes 2.2 Unsung Hero Awards 3. CONSENT AGENDA The consent agenda allows the City Council to consider items that require no discussion. An item may only be discussed if it is pulled from the consent agenda. The City Council makes one motion covering all items included in the consent agenda.
3.1 APPROVAL OF MEETING MINUTES
3.1.1 November 4, 2014, Regular Meeting
Motion: Approve minutes as written.
3.2 COUNCIL BUSINESS
3.2.1 Intergovernmental Agreement with TriMet to Construct the Willamette Shore Line Trestle Maintenance Project
Motion: Authorize the City Manager to sign an Intergovernmental Agreement with TriMet to fund the Willamette Shore Line Trestle Maintenance Project, substantially in the form presented.
503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 2
4. ITEMS REMOVED FROM THE CONSENT AGENDA
5. CITIZEN COMMENT (15 minutes) The purpose of citizen comment is to allow citizens to present information or raise an issue regarding items not on the agenda or regarding agenda items that do not include a public hearing. A time limit of three minutes per individual shall apply.
5.1 PRIOR PUBLIC COMMENT FOLLOW-UP
6. ORDERS 6.1 Adopt Findings, Conclusions and Order for AN 14-0004, petition to annex property at 14061 Goodall Road
Motion: Move to adopt the Findings, Conclusions and Order for AN 14- 0004 as presented.
7. ORDINANCES 7.1 Sensitive Lands 2014 Code Amendments (LU 14-0053/Ordinance 2658)
Ordinance 2658, an Ordinance of the City Council of the City of Lake Oswego amending LOC Sections 50.05.010 and 50.07.004 to clarify and streamline sensitive lands regulations with regard to utilities, fences, landscaping, lighting, map corrections, and delineation of resource conservation (RC) and resource protection (RP) districts. (LU 14-0053).
Motion: Move to enact Ordinance 2658.
8. COUNCIL BUSINESS 8.1 LOTWP – Award of a Public Improvement Contract for Construction of the Finished Water Pipeline Schedule 6 Project: Work Order 207
Motion: Move to award a public improvement contract to Landis & Landis Construction, LLC in the amount of $2,616,879.00 for construction of the Finished Water Pipeline Schedule 6 Project: Work Order 207.
503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 3
8.2 Block 137 Project Development Agreement Closing Documents
Motion: Move to authorize the City Manager to sign the Sublease of Public Parking and Parking Facility Maintenance and Operation Agreement and the Public Access Pedestrian Easement for the Block 137 Project, substantially in the form presented, by December 31, 2015, provided that the City Manager is satisfied that all relevant contingencies have been met under the Block 137 Development Agreement between LORA and Evergreen Group LLC.
8.3 Agreement with Cushman & Wakefield for Disposition Services for Selling the West End Building Property
Motion: Move to authorize the City Manager to sign an agreement with Cushman & Wakefield to provide disposition services for selling the West End Building property substantially in the form presented.
9. PUBLIC HEARINGS 9.1 Continued from the October 7, 2014 Council meeting:
Resolution 14-34, a resolution relating to classification of small duplexes for purposes of Parks, Surface Water Management, and Transportation System Development Charges; and amending the 2014 Master Fees and Charges Schedule.
Motion: Move to continue to the February 3, 2015 Council meeting.
10. INFORMATION FROM COUNCIL This agenda item provides an opportunity for individual Councilors to provide information to the Council on matters not otherwise on the agenda. Each Councilor will be given five minutes.
10.1 Councilor Information
10.2 Reports of Council Committees, Organizational Committees, and Intergovernmental Committees
11. REPORTS OF OFFICERS
11.1 City Manager
11.2 City Attorney
12. ADJOURNMENT
503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
TO: Kent Studebaker, Mayor Members of the City Council
FROM: Catherine Schneider, City Recorder City Manager’s Office
SUBJECT: Approval of Meeting Minutes
DATE: December 11, 2014
ACTION
Review and approve minutes.
ATTACHMENTS
1. November 4, 2014, Regular Meeting
503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
CITY COUNCIL REGULAR MEETING MINUTES November 4, 2014
1. CALL TO ORDER AND ROLL CALL
Mayor Studebaker called the regular City Council meeting to order at 5:31 p.m. on November 4, 2014, in the City Council Chambers, 380 A Avenue.
Present: Mayor Studebaker and Councilors Jordan, Gudman, Bowerman, Gustafson, Hughes, and O'Neill
Staff Present: David Powell, City Attorney; Scott Lazenby, City Manager; Catherine Schneider, City Recorder; Leslie Hamilton, Senior Planner
Others Present: Roy Rasera; Andrew Stamp, attorney at law; Christine Wynne ______
2. EXECUTIVE SESSION, under authority of ORS 192.660(2) to (e) conduct deliberations with persons designated to negotiate real property transactions; and, (f) consider records that are exempt by law from public inspection.
The Council recessed for executive session from 5:33 – 5:54 p.m. under authority as indicated above.
3. RETURN TO OPEN SESSION
The Council reconvened in open session at 5:57 p.m. Mayor Studebaker led the Council in the Pledge of Allegiance.
Mayor Studebaker moved to authorize the City Manager to sign an amendment to the purchase agreement for the West End Building, extending the closing date to December 1, provided that a nonrefundable deposit of $200,000 is received by November 18 and that that $200,000 is added to the total purchase price. Councilor Jordan seconded the motion.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors Jordan, Gudman, Bowerman, Gustafson, Hughes, and O'Neill voting ‘aye’. (7-0)
4. CONSENT AGENDA
4.1 APPROVAL OF MEETING MINUTES
City Council Regular Meeting Minutes Page 1 of 9 November 4, 2014
4.1.1 September 22, 2014, Special Meeting
4.1.2 September 23, 2014, Special Meeting
4.1.3 September 24, 2014, Special Meeting
4.1.4 October 7, 2014, Regular Meeting
Motion: Approve minutes as written.
4.2 RESOLUTIONS
4.2.1 Resolution 14-64, a Resolution of the City Council of the City of Lake Oswego Amending the Lake Oswego Council Rules of Procedure to Add a Procedure for Filling Council Vacancies
Motion: Adopt Resolution 14-64.
END CONSENT AGENDA
Mayor Studebaker indicated that he was removing Item 4.2.1 from the Consent Agenda.
Councilor Gudman moved the adoption of the Consent Agenda. Councilor Hughes observed that this included the correction to the September 22 minutes (Page 2, fourth paragraph, ninth sentence), as communicated earlier via email to all Council members. Councilor Jordan seconded the motion.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors Jordan, Gudman, Bowerman, Gustafson, Hughes, and O'Neill voting ‘aye’. (7-0)
5. ITEMS REMOVED FROM THE CONSENT AGENDA
Councilor Bowerman asked about the plan for Item 4.2.1, and Mayor Studebaker indicated that it would be postponed to the next Council meeting.
6. CITIZEN COMMENT
Carole Ockert, 910 Cumberland Road
Speaking as chair of the First Addition Neighborhood/Forest Hills Neighborhood Association, Ms. Ockert explained that her purpose was to bring to Council’s attention concerns about two building permits that would violate both the Code and the prescribed Code process for a variance. After detailing the issues related to front yard setbacks for the properties, she indicated that the neighborhood association believes Staff is acting outside the established Code provisions. She reviewed the background of her efforts to obtain a legal justification for this from the City Attorney’s office, noting that she had just learned that the building permits had now been issued. She invited the members of Council to call her and learn about her experiences with City Hall over the last year.
City Council Regular Meeting Minutes Page 2 of 9 November 4, 2014
Mr. Powell described his knowledge of the matter, referring to meetings with Staff and to other communications with Ms. Ockert. After a short discussion, Mayor Studebaker expressed thanks to Ms. Ockert for bringing the issue to Council’s attention and indicated that consideration would be given to it very quickly.
Rick Cook, Stafford Hamlet Board
Mr. Cook explained that his purpose was to provide an update on the advisory vote to Clackamas County on designations for the Hamlet, as documented in the packet of materials distributed to Council. He reported that an election for the Hamlet board of directors was scheduled for November 22.
Thane Eddington, 715 Rosemont Road, West Linn
Mr. Eddington described difficulties posed by the remand in terms of the Hamlet’s development of a community vision process. This is their board’s main task and is key to representing the Hamlet’s wishes and working with the County and the neighboring cities, he explained. Referring Council members to the data, he highlighted details of the voting process and results, and then responded to questions. Councilor Hughes asked how the County had responded with regard to the vote. Mr. Cook expressed his belief that the County would look hard at the Hamlet’s wishes.
Darryl Boom, 557 Evergreen Road
Mr. Boom spoke in support of Ms. Ockert's testimony. He expressed concern about situations where neighborhood plans are seemingly ignored or are not regarded with as much attention as he would like.
7. ORDERS
7.1 Enactment of Ordinance 2643, including Findings and Conclusions Ordinance 2643, an Ordinance of the Lake Oswego City Council Amending Chapter 50 (Community Development Code) for the Purpose of Clarifying, Correcting and Updating Various Provisions; and Adopting Findings (LU 14-0014A).
Mr. Powell summarized the Ordinance title and reviewed the background of Council’s tentative decision to approve the Planning Commission’s recommendations, with several changes outlined in the Council Report. After reviewing these points (p 1-2 of Council Report), he explained that Ordinance 2643 implements the tentative decision, and Staff recommends that Council enact the Ordinance.
Councilor Jordan made a statement regarding the Code language "may” versus “shall", discussed in the Council Report (p 1, first bullet). She indicated that the Code language needs to be objective. She expressed her belief that this language should be interpreted to mean that the discretion lies with the developer/builder, and not with Council, the Planning Commission or the Development Review Commission.
City Council Regular Meeting Minutes Page 3 of 9 November 4, 2014
Councilor Hughes explained that she was suggesting a change to language in the Findings and Conclusions (Council Report, Exhibit 1, p 3) pertaining to parking modifiers so that it would be more consistent with Council’s discussion and concern. Councilor Hughes moved to amend the sentence beginning halfway through on Line 1 to read: However, the Council does find that, to be consistent with recent revisions to the text of the Comprehensive Plan, LOC 50.05.004.9 should be revised to remove “but not excessive” so that it is clear that the goal is adequate parking. Councilor Bowerman seconded the motion.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors Jordan, Gudman, Bowerman, Gustafson, Hughes, and O'Neill voting ‘aye’. (7-0)
Councilor Gudman moved to adopt Ordinance 2643 as amended. Councilor Jordan seconded the motion.
Councilor Bowerman asked about responsibility for reorganizing the parking task force. Mr. Powell explained that the related reference in the Findings simply documents Council’s awareness that the task force is proceeding and that proposed changes to parking requirements and parking modifiers were therefore being deferred (Council Report, Exhibit 1, p 2, first bullet). Mr. Lazenby provided details affirming that Staff is involved with the reorganized task force.
A voice vote was held, and the motion passed, with Mayor Studebaker and Councilors Jordan, Gudman, Bowerman, Gustafson, Hughes, and O'Neill voting ‘aye’. (7-0)
8. FINANCE STUDY SESSION
This item was set over to the next Council meeting.
8.1 2015 Master Fees and Charges
9. APPEAL HEARINGS
9.1 Appeal of LU 13-0063 / AP 14-09 - A decision by the Development Review Commission approving, with conditions, two minor variances to the Fence Code to construct a variable height retaining wall, and the removal of eight trees (1899 Woodland Terrace).
Mayor Studebaker summarized the subject of the appeal. Mr. Powell explained the parameters for the hearing, and then asked if any Council member needed to make any declarations with relation to ex parte contacts, bias or conflicts of interest. Mayor Studebaker reported that he had driven by the property, but had had no other contacts nor information. Mr. Powell then asked if any member of the audience or any eligible person wished to challenge any Council member’s right to hear the appeal; no challenge was heard. Referring to the hearings process outlined in the agenda, he outlined the format and requirements for testimony.
City Council Regular Meeting Minutes Page 4 of 9 November 4, 2014
STAFF REPORT
Ms. Hamilton provided background on the Development Review Commission (DRC) decision to approve LU 13-0063 and on the applicant’s request for two minor variances, as described in the Council Report. With supporting PowerPoint slides, she reviewed the applicable Code standards, background of the variance requests of the applicant, Roy Rasera, the location and related conditions of his property, and the agreement of Mr. Rasera and his neighbor, Christine Wynne, to construct a retaining wall to contain the slope. She reviewed the two minor variance criteria pertaining to the development and indicated that the first criterion was met. However, Staff found that the second criterion (variance will not be detrimental to public health or safety, or materially injurious to properties and improvements within 300 feet of the property) was not met; three conditions were therefore imposed in relation to the fence setback, fence height, and landscaping (Council Report, Exhibit D2).
Ms. Hamilton then reviewed each of the six points made in the applicant's appeal, along with the related DRC findings (Council Report, p 2-5).
QUESTIONS OF STAFF
Ms. Hamilton addressed Council members’ questions about the site and about the Code requirement for setback pertaining to a retaining wall/fence combination. Councilor Bowerman asked if there was also a Code requirement for the planted material that Staff had prescribed, and Ms. Hamilton indicated that there was not, but that this was intended to mitigate the visual impacts. Discussion followed about this aspect of the variance request with respect to Code, the conditions imposed, consideration of precedent for mitigation, and the importance of having a clear and objective standard.
Mr. Powell clarified Council’s role in considering the need for such additions as the vegetation in terms of bringing the application into compliance with the “not materially injurious” standard.
TESTIMONY OF APPLICANT/APPELLANT
Introducing himself as a land use attorney representing the applicant/appellant was Andrew Stamp, 4248 Galewood Street. Mr. Stamp explained that the problem of slope stability dates back to excavation in the 1960s on the property now owned by Ms. Wynne. Narrating a PowerPoint presentation with many photos, he described the subsequent erosion and efforts to address them, and cited Oregon law that he believes is pertinent. Referring to the mediation agreement with Ms. Wynne, he described details of the proposed solution for construction of a retaining wall and unexpected difficulties in receiving her cooperation. He then reviewed other reasons for refuting the DRC decision, including (1) the finding related to the GeoGrid technology; (2) insufficiency of the four-foot fence height in terms of safety; and (3) challenges related to maintaining a three-foot strip of land between the fence and retaining wall. Mr. Stamp concluded by showing several slides of the view of the Wynne property from the applicant’s property; Mr. Rasera indicated that part of the reason he is requesting a six-foot fence is to screen this view, as the previous fence had done.
In response to questions about fill and fence height from Mayor Studebaker and Councilor Jordan, Mr. Rasera explained his desire for the six-foot fence on top of the retaining wall. He suggested
City Council Regular Meeting Minutes Page 5 of 9 November 4, 2014
that the solution to Ms. Wynne’s concern about visual impact was positioning of the replanted trees such that they would block her view of other houses. Councilor Hughes requested more information about the state of the hillside. Mr. Rasera responded, indicating that it is not a question but a certainty that his house will slide down onto Ms. Wynne’s property at some point. Questions and answers followed about other siting and fence-height scenarios.
TESTIMONY IN OPPOSITION
Ms. Wynne testified that there were several points to refute in the applicant/appellant’s testimony, and described issues related to location of the property line, construction standard of the applicant’s house, and position of the previous fence in relation to the proposed new wall. Mr. Powell reported that an objection had been raised by the applicant to the effect that Ms. Wynne’s testimony included new evidence that was not in the record, relative to comments the mediator may have made to her. Ms. Wynne responded that comments in the applicant’s presentation about her responsibility for providing lateral support also were not in the record. She continued by describing the fence and ivy that had been removed, her objections to the removal, and subsequent effects of rain on the dirt left behind. Mr. Powell indicated that the applicant was also objecting to the description of these effects as they represented new evidence.
Ms. Wynne emphasized that she was not opposed to construction of a retaining wall, and provided background details about the mediation agreement being necessary to resolve issues of access to her property. She explained that she objected to the request for variances to Code proposed by Mr. Rasera, and she wanted to retain her rights. She indicated that she was in favor of the conditions of approval as proposed by the City.
Councilor Hughes asked Ms. Wynne for further information about her understanding regarding the wall in terms of the mediation agreement. In ensuing discussion, Ms. Wynne acknowledged that she knew there would be a wall and recognized its value, despite concerns about removal of the trees and the visual impacts on her property. She reiterated that she supported the Planning Department/DRC solution, with its conditions, and not the terraced situation that would encroach on her backyard.
Councilor Bowerman asked Ms. Wynne if she would find additional base plantings on her side of the wall to be an acceptable mitigation. Ms. Wynne indicated that it might be helpful, but was not as good as the Planning Department’s solution.
Councilor Hughes asked Ms. Wynne to explain how the visual impact of the applicant’s proposal was different than that of the former six-foot fence. Ms. Wynne described the siting of the proposed wall/fence as being much closer to her. Councilor Hughes and Ms. Wynne engaged in further discussion about background of the mediation agreement and Code considerations.
Mayor Studebaker asked if anyone else wished to testify. No requests were heard.
APPLICANT/APPELLANT’S REBUTTAL
Mr. Stamp refuted Ms. Wynne’s testimony indicating that the existing slope is all on the applicant’s property and displayed a topographic map. He stated that she had agreed in the mediation agreement to the exact location of the wall. After citing other portions of the mediation agreement,
City Council Regular Meeting Minutes Page 6 of 9 November 4, 2014
he stated that, contrary to her testimony, Ms. Wynne had specifically agreed not to oppose the variance necessary for the applicant’s plan. He indicated that it was clear she did not understand the nature of the mediation agreement and now wanted to renege on it. He indicated this to be unacceptable, and that it is clear the variance request should be granted.
Mr. Rasera indicated that he wished to make note of minor corrections. He discussed some matters of confusion about property line location that were resolved by the survey he had had done. Subsequent issues related to a danger tree necessitated his removal of the existing fence, and Ms. Wynne had refused to remove the ivy on her side of the line, he indicated. He concluded by expressing his approval for the idea of the screening, such as with arbor vitae.
Councilor Gudman asked if the Planning Department recommendation was consistent with the mediation agreement. Mr. Rasera answered that it was not. Mr. Stamp stated that the DRC’s decision was consistent with Staff.
Mayor Studebaker closed the public hearing. He then initiated a Council discussion about proposed height of the fence/retaining wall and the matter of a setback of three feet.
Councilor Gustafson expressed his belief that the landscaping at the top of the wall was a critical component to breaking up the height. Code is clear, he indicated, in prescribing the avoidance of tall wall/fence combinations. A short discussion followed about alternate approaches to the setback and maintenance concerns. Councilor Gustafson described conditions under which he might endorse a higher fence, but definitely not one of six feet. Councilor Jordan indicated that she concurred, largely, and described a combination of fence height, buffer, and vegetation that might be acceptable to her.
Councilor Hughes discussed the need for the wall, the challenges of this very steep hillside, and her understanding that the applicant would want a higher fence. She indicated that she finds the conditions related to the step-back and planting of three-foot vegetation to be random; they are not prescribed by Code, and she would prefer to have the mediation agreement honored.
Councilor O’Neill pointed out that it appeared that a significant portion of the wall/fence would probably meet Code, and a step-back could be stipulated only for the portion not meeting Code.
Councilor Bowerman endorsed Councilor Hughes’ observations, emphasizing that the height of the fence would be roughly the same as it was before and noting the benefit of placing taller plants at the base of the wall. Councilor Bowerman moved to reverse the Development Review Commission’s decision, to support the mediation agreement and approve the applicant’s request for the two variances.
Mayor Studebaker asked if Councilor Bowerman was willing to accept an amendment to limit the height of the fence on top of the wall to four feet, rather than six feet. In brief discussion, Councilor Bowerman indicated that the six-foot height made a lot of sense.
Councilor Hughes seconded the motion as presented.
Mr. Powell clarified that the motion is, to not require a setback and allow a six-foot fence, as originally proposed by the applicant.
City Council Regular Meeting Minutes Page 7 of 9 November 4, 2014
Councilor Gustafson expressed his concern that Council’s role is to interpret the Code, and the solutions developed in a mediation agreement should have no bearing on that interpretation. After outlining the basis of his objection to approval of the variances without any mitigation, he stated that he could not support the motion.
Councilor Gudman initiated a discussion about the need to provide specificity as to a setback or plantings. No modification to the motion was proposed. Councilor Hughes observed that she understood Councilor Gustafson’s position, but that Council had an extreme situation to resolve.
A roll call vote was held, and the motion passed, with Mayor Studebaker and Councilors Gudman, Bowerman, and Hughes voting ‘aye’. Councilors Jordan, Gustafson, and O'Neill voted ‘no’. (4-3)
Mr. Powell explained that this is a tentative decision of the Council, and that it will become final upon adoption of findings and an order on December 2, 2014.
10. PLANNING STUDY SESSIONS
10.1 Ordinance 2648, Annual Community Development Code (CDC) Amendments (LU 14-0014B)
This item was postponed.
10.2 Ordinance 2644, Proposed Nonconforming & Variance Code Amendments (LU 14- 0018) -- THIS ITEM HAS BEEN POSTPONED TO A FUTURE COUNCIL MEETING.
City Manager - Upcoming Council Schedule
Mr. Lazenby acknowledged the appointed members of the Budget Committee and thanked them for coming to the meeting. He asked if the Council would be open to scheduling a special meeting on November 25. Councilors Gudman and Jordan and Mayor Studebaker indicated they would be out of town.
11. INFORMATION FROM COUNCIL
11.1 Councilor Information
Councilor Gudman announced openings on three of the boards and commissions: on the DRC, three openings for full terms and one for a partial term of one year; on the Library Advisory Board, three openings for full terms; and on the Historic Resources Advisory Board, two openings for full terms and one for a partial term.
11.2 Reports of Council Committees, Organizational Committees, and Intergovernmental Committees
City Council Regular Meeting Minutes Page 8 of 9 November 4, 2014
12. REPORTS OF OFFICERS
12.2 City Attorney
No report was made.
13. ADJOURNMENT
Mayor Studebaker adjourned the meeting at 8:04 p.m.
APPROVED BY THE CITY COUNCIL: Respectfully submitted, ON ______
Catherine Schneider, City Recorder Kent Studebaker, Mayor
City Council Regular Meeting Minutes Page 9 of 9 November 4, 2014
TO: Kent Studebaker, Mayor Members of the City Council
FROM: Brant Williams, Redevelopment Director
SUBJECT: Intergovernmental Agreement with TriMet to Construct the Willamette Shore Line Trestle Maintenance Project
DATE: December 11, 2014
ACTION
Authorize the City Manager to sign an Intergovernmental Agreement with TriMet to fund the Willamette Shore Line Trestle Maintenance Project.
BACKGROUND/DISCUSSION
The City of Lake Oswego and TriMet are members of the Willamette Shore Line (WSL) Consortium. Based on agreements between the Consortium members, both the City and TriMet have responsibilities for operating, maintaining and improving the WSL to retain it as a functioning rail line. The City also maintains the Trolley Fund that is comprised of Consortium funds used to pay for such activities.
There are five trestles along the WSL, three of which are in need of significant repair. Until this work is done, the Vintage Trolley is prohibited from crossing them. For the Vintage Trolley to operate to the Sellwood Bridge, both the Long and Short trestles need to be fixed. The Consortium has agreed that this work is a high priority. Last year, the City contracted with OBEC Consulting Engineers to evaluate the trestles and design a project to make them safe for the Vintage Trolleys. TriMet is now prepared to manage the construction work. Besides repairing the Long and Short trestles, the proposed project will also include some minor maintenance of the Stampher Trestle. TriMet will need funds from the City’s Trolley Fund to perform this work. The Intergovernmental Agreement (IGA) will authorize the transfer of up to $500,000 to TriMet to pay for this project (see Attachment 1).
ALTERNATIVES & FISCAL IMPACT
The WSL Trestle Maintenance Project is estimated to cost $455,000, which includes $260,000
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 2
for the Long Trestle, $145,000 for the Short Trestle, and $50,000 for repairs to the Stampher Trestle. TriMet will provide construction management services at no expense to the Consortium or to the Trolley Fund.
The 2014/15 Trolley Fund has approximately $324,000 remaining for Rail Line Maintenance and a contingency of $267,000. After the first of the year, the Finance Division will process the necessary budget adjustments to allow the City to pay TriMet in full under this IGA.
Funding this project will result in being able to operate the Vintage Trolley up to the Sellwood Bridge starting next summer and will minimize further deterioration of the three trestles.
RECOMMENDATION
Staff recommends the City Council authorize the City Manager to sign the Intergovernmental Agreement with TriMet to fund the Willamette Shore Line Trestle Maintenance Project, substantially in the form attached.
ATTACHMENT
1. Intergovernmental Agreement Related to the Willamette Shore Line (WSL) For Revenue For Use In Funding Construction of the WSL Trestle Maintenance Project
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us ATTACHMENT 1
INTERGOVERNMENTAL AGREEMENT RELATED TO THE WILLAMETTE SHORE LINE (WSL) FOR REVENUE FOR USE IN FUNDING CONSTRUCTION OF THE WSL TRESTLE MAINTENANCE PROJECT
THIS INTERGOVERNMENTAL AGREEMENT (“IGA”) is by and between the TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON (“TriMet”) and THE CITY OF LAKE OSWEGO (“Lake Oswego”). TriMet and Lake Oswego may each be singularly referred to as a Party or both may collectively be referred to as “Parties”.
RECITALS
1. TriMet and Lake Oswego are both members of the Willamette Shore Line Consortium (“Consortium”), a collection of governmental bodies that also includes the City of Portland, Metro, and the Oregon Department of Transportation. The Consortium manages the Willamette Shore Line right of way between Portland and Lake Oswego, and the agreement between Consortium members (“Consortium IGA”) specifies the roles of each party regarding such management.
2. The Consortium has determined that the Stampher, Long, Short and Jones trestles located on the Willamette Shore Line are in need of maintenance.
3. Under the November 1994 Intergovernmental Agreement for the Management of the Willamette Shore Line Right-of-Way as supplemented by the 2003 Intergovernmental Agreement Regarding Maintenance and Funding for the Willamette Shore Line Right-of- Way, (the “Maintenance and Funding Agreement”) the Consortium has designated Lake Oswego as the party responsible for operations and maintenance of the right-of-way as called for in the work programs and budgets adopted by the Consortium under the Maintenance and Funding Agreement, and has designated TriMet as the party responsible for capital improvement projects.
4. To the extent of the programs and budgets adopted by the Consortium, TriMet and Lake Oswego agree to share responsibilities for this capital trestle maintenance project (the “Project”) in accordance with the terms of this IGA.
NOW THEREFORE, it is agreed by and between the parties hereto as follows:
TERMS OF AGREEMENT
1. Project Scope.
1.1. Due to the necessity to manage the budget, the Project will be broken down into work packages. The estimate for Package 1 is described in Exhibit A, which is attached to this IGA and incorporated by reference. Package 1 includes work on the Stampher, Long and Short trestles, and the scope of work for Package 1 is attached hereto as Exhibit B and incorporated by this reference herein (“Work”). The Parties agree that TriMet’s preliminary cost estimate for Package 1 is $454,786.37. However, given the age of the
1 ATTACHMENT 1
trestles, the difficulty in projecting working conditions along the right of way, and other currently unforeseen reasons, the budget to perform this Work (the “Package 1 Budget”) is $500,000.
1.2. In the event that the Parties elect to perform work under future work packages, including work on the Jones trestle, this IGA may be amended to add such work.
1.3. TriMet and Lake Oswego agree to cooperate in order to perform all Work necessary to complete Package 1 within the Package 1 Budget.
2. TriMet Obligations:
2.1 TriMet staff shall perform the construction management, develop and maintain a Package 1 schedule, obtain necessary permits and approvals (if any), procure a construction contractor, coordinate Lake Oswego’s provision of design services during construction, and oversee the completion and turnover of Package 1 to the Consortium (“TriMet Staff Services”). The level and nature of TriMet Staff Services shall be at TriMet’s sole discretion. TriMet Staff Services will be an in-kind contribution to the Package 1 project, and will not be separately billed to Lake Oswego. The actual costs of permits are not included in TriMet Staff Services.
2.2 TriMet will develop and maintain a Package 1 schedule. Lake Oswego has indicated a desired start date for revenue operations of May 1, 2015. TriMet will make a good faith effort to develop and maintain a schedule that meets the desired start date, but shall not be liable in any way if it fails to do so.
2.3 TriMet will invoice Lake Oswego for all costs due under this IGA, including the amount paid or owed to its construction contractor, and actual permit costs (“Direct Project Costs”). The invoices will contain relevant cost information and reasonable supporting documentation.
3. Lake Oswego Obligations:
As limited by, and to the extent of funding within, the Package 1 Budget and the related budget adopted by the Consortium:
3.1 Lake Oswego will be responsible for and provide all Package 1 design engineering (including design services during construction). The final design provided by Lake Oswego is attached hereto as Exhibit B.
3.2 Upon request from TriMet, Lake Oswego shall provide and pay for local permitting support and construction field inspection services in order to track general Project progress as necessary, to provide prompt response to direction during construction, and to provide incidental assistance including facilitating permitting and construction, including access and notifications.
2 ATTACHMENT 1
3.3 Lake Oswego agrees to delegate all responsibility and authority for the management of permitting, design services during construction, and construction for the Project to TriMet.
3.4 Lake Oswego shall pay all Direct Project Costs and shall pay all invoices from TriMet within 30 days of receipt.
4. Cost Overruns.
4.1. Other than the TriMet Staff Services, Lake Oswego shall have all funding and payment obligations under this IGA to the extent of the Package 1 Budget and the related Consortium budget. If, during the course of the Package 1 project, either Party has reason to believe that the cost, or projected cost, to complete Package 1 exceeds, or is reasonably likely to exceed, the Package 1 Budget set out in this IGA, that Party shall provide notice to the other Party and the Parties shall confer within 5 calendar days of the receipt of such notice to attempt to reach an acceptable resolution. Any increase in the Package 1 Budget can only be done through a written amendment to this IGA.
4.2. If an acceptable resolution is not reached in a timely fashion, or if Lake Oswego determines that no additional funding is available for Package 1 project, the Parties may cease work immediately, will have no further obligations under this IGA and either Party may, at its sole discretion, terminate this IGA. In such event, and to the extent of the Package 1 Budget and the related Consortium budget, Lake Oswego shall be responsible for all payments to TriMet and all costs owed by TriMet to third parties, including TriMet’s construction contractor for Work on the Package 1 project incurred prior to the date of termination.
4.3. In no event shall TriMet be responsible for payment of any costs other than TriMet Staff Services.
5. Funding Sources
5.1 Lake Oswego’s funding source may be, at its sole discretion, any of the following or a combination of the following: 5.1.1 Funds provided by the Consortium; or 5.1.2 Other unidentified sources
6. TriMet shall direct all invoices:
Will Weber City of Lake Oswego P.O. Box 369 Lake Oswego, OR 97034 Phone: 503-635-0284 Email: [email protected]
7. Each Party has designated the following as its Project Manager for purposes of managing
3 ATTACHMENT 1
this IGA:
Sean Batty Brant Williams TriMet Lake Oswego
1800 SW First Ave, Suite 300 380 A Avenue Portland, OR 97201 P.O. Box 369 Phone: (503) 962-2138 Lake Oswego, OR 97034 Fax: (503) 962-2281 Phone : (503) 635-6138 Email: [email protected] Email : [email protected]
Either Party may designate a different Project Manager by giving written notification to the other party as provided in this paragraph. Written notification may be by letter or email.
Both Parties agree that the designated Project Manager shall be the single point of contact for all matters related to this IGA a Party provides written notice of delegation to another person in advance.
8. Relationship of the Parties. Each of the Parties hereto shall be deemed an independent contractor for purposes of this IGA. No representative, agent, employee or contractor of one Party shall be deemed to be an employee, agent or contractor of the other Party for any purpose, except to the extent specifically provided herein. Nothing herein is intended, nor shall it be construed, to create between the Parties any relationship of principal and agent, partnership, joint venture or any similar relationship, and each Party hereby specifically disclaims any such relationship.
9. No Third-Party Beneficiary. Except as set forth herein, this IGA is between the Parties and creates no Third-Party Beneficiaries. Nothing in this IGA gives or shall be construed to give or provide any benefit, direct, indirect or otherwise to Third-Parties unless Third- Persons are expressly described as intended to be beneficiaries of its terms.
10. Compliance with Laws. The Parties shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the work under this IGA. If a Party is not in compliance with any law, regulation, executive order or ordinance, it shall take immediate steps to gain compliance upon notification.
11. Effective and Termination Dates. This IGA shall be effective on the date the last required signature is obtained, and shall remain in effect until the completion of all obligations created by this IGA, unless the Parties agree in writing to extend it.
11.1 Early Termination of IGA.
11.1.1 The Parties, by mutual written agreement, may terminate this IGA at any time.
11.1.2 Either of the Parties may terminate this IGA in the event of a material breach of the IGA by the other. Prior to such termination, however, the Party
4 ATTACHMENT 1
seeking the termination shall give the other Party written notice of the breach and of the Party’s intent to terminate. If the breaching Party has not cured the breach within 30 days of the notice or, if the breach is one that cannot be cured within 30 days, has not taken good faith efforts to cure the breach, then the Party giving the notice may terminate the IGA at any time thereafter by giving a written notice of termination.
11.1.3 Either Party may terminate the IGA in accordance with paragraph 4.2, above, by providing written notice.
12. Remedies. The remedies provided under this IGA shall not be exclusive. The Parties also shall be entitled to any other equitable and legal remedies that are available.
13. Oregon Law, Dispute Resolution and Forum. This IGA shall be construed according to the laws of the State of Oregon without resort to any jurisdiction’s conflict of laws principles. TriMet and Lake Oswego shall negotiate in good faith to resolve any dispute arising out of this IGA. If the Parties are unable to resolve any dispute within 10 calendar days, the Parties are free to pursue any legal remedies that may be available. Any litigation between Lake Oswego and TriMet arising under this IGA or out of Work performed under this IGA shall occur, if in the state courts, in the Multnomah County Circuit Court, and if in the federal courts, in the United States District Court for the District of Oregon located in Portland, Oregon.
14. Assignment. Neither TriMet nor Lake Oswego shall assign this IGA, in whole or in part, or any right or obligation hereunder, without the prior written approval of the other Party. This restriction on assignments does not restrict TriMet from contracting with third parties for work under this IGA.
15. Severability/Survivability. If any provision of this IGA is found to be illegal or unenforceable, this IGA nevertheless shall remain in full force and effect and the provision shall be stricken. All provisions concerning indemnity survive the termination of this IGA for any cause.
16. Interpretation of IGA. This IGA shall not be construed for or against any Party by reason of the authorship or alleged authorship of any provision. The Section headings contained in this IGA are for ease of reference only and shall not be used in constructing or interpreting this IGA.
17. Entire IGA; Modification; Waiver. This IGA including any exhibits or other attachments constitute the entire IGA between the Parties on the subject matter hereof and supersedes all prior or contemporaneous written or oral understandings, representations or communications of every kind. There are no understandings, IGAs, or representations, oral or written, not specified herein regarding this IGA. No course of dealing between the parties and no usage of trade will be relevant to supplement any term used in this IGA. No waiver, consent, modification or change of terms of this IGA shall bind either Party unless in writing and signed by both Parties. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given.
5 ATTACHMENT 1
18. Inspection of Records. Each of the Parties shall have the right to inspect, at any reasonable time, such records in the possession, custody or control of the other Party as it deems necessary for review of the other Parties’ obligations and its rights under this IGA. The cost of such inspection shall be borne by the inspecting Party.
19. Indemnification. Within the limits of the Oregon Constitution and the Oregon Tort Claims Act, codified at ORS 30.260 through 30.300, each of the Parties shall hold harmless, indemnify and defend the other and its directors, officers, employees and agents from and against all claims, demands, penalties, and causes of action of any kind or character relating to or arising from this IGA (including the cost of defense thereof, including attorney fees) in favor of any person on account of personal injury, death, damage to property, or violation of law, which arises out of, or results from, the negligent acts or omissions of the indemnitor, its officers, employees, or agents.
IN WITNESS WHEREOF, the parties hereto have executed this Intergovernmental Agreement effective the date hereinafter written.
TRI-MET METROPOLITAN TRANSPORTATION DISTRICT OF OREGON
By_____ Daniel W. Blocher, P.E. Executive Director, TriMet Capital Projects Division
Date
APPROVED AS TO FORM:
______TriMet Legal Department
CITY OF LAKE OSWEGO
By______Scott Lazenby, City Manager
Date ______
APPROVED AS TO FORM:
______Lake Oswego City Attorney
6 ATTACHMENT 1 ATTACHMENT 1 ATTACHMENT 1 ATTACHMENT 1 ATTACHMENT 1 ATTACHMENT 1 ATTACHMENT 1
TO: Kent Studebaker, Mayor Members of the City Council
FROM: David Powell, City Attorney
SUBJECT: Ordinance 2658, Sensitive Lands 2014 Code Amendments (LU 14‐0053)
DATE: December 10, 2014
ACTION
Enact Ordinance 2658, adopting Sensitive Lands Code Amendments for 2014.
INTRODUCTION/BACKGROUND
On December 2, 2014, following a public hearing, the City Council tentatively approved, with certain modifications, the Planning Commission’s recommendation for amendments to the Sensitive Lands Program. Attached Ordinance 2658 finalizes this tentative decision and adopts findings.
DISCUSSION
Attached Ordinance 2658 makes several adjustments to the Planning Commission’s recommendation in LU 14‐0053:
Language requiring that plants used for landscaping within RC and RP districts “not require the use of fertilizers, pesticides, or other added chemical or organic materials that can impact water quality” has been removed from LOC 50.05.010.5.c.8 (Code Fix #4) and LOC 50.05.010.6.c.1.a (Code Fix #5)
Changing the language proposed for LOC 50.07.004.8.b. (Code Fix #7) relating to legislative map amendments and referring to more than “a small number of lots” to instead refer to “a small number of identified properties” to be consistent with the language in the current definition of a “legislative decision” under LOC 50.07.003.16.a. The findings also note that, in a limited number of circumstances, the City may need to
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 2
also apply the remaining factors identified in case law1 to determine whether a process should be legislative as opposed to quasi‐judicial.
Changing the language proposed for LOC 50.07.004.d.i.1 (Code Fix #8) to exclude non‐ native trees from RC District delineations.
The findings incorporated in Ordinance 2658 clarify that the Map Corrections process under LOC 50.07.005.8.b (Code Fix #7) is intended to be used only to remove or alter the size or location of existing RP/RC Districts as designated or delineated on a particular property. The findings state that this corrections process is not to be used to designate new RP/RC Districts or to add properties to existing districts. Instead, the provisions of existing LOC 50.07.004.08.a. will continue to be used for those purposes.
RECOMMENDATION
It is recommended that the City Council enact Ordinance 2658.
ATTACHMENTS
1. Ordinance 2658 2. Findings and Conclusions (Exhibit 1 to the Ordinance) 3. Code text (Exhibit 2 to the Ordinance)
1 See Strawberry Hill 4 Wheelers v. Benton Co. Bd. Of Comm., 287 Or 591, 601 P.2d 769 (1979)
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us ORDINANCE NO. 2658
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE OSWEGO AMENDING LOC SECTIONS 50.05.010 AND 50.07.004 TO CLARIFY AND STREAMLINE SENSITIVE LANDS REGULATIONS WITH REGARD TO UTILITIES, FENCES, LANDSCAPING, LIGHTING, MAP CORRECTIONS, AND DELINEATION OF RESOURCE CONSERVATION (RC) AND RESOURCE PROTECTION (RP) DISTRICTS. (LU 14‐0053).
WHEREAS, the City has initiated a request to amend LOC 50.05.010 and 50.07.004, which implement the City’s Sensitive Lands Protection Program (Goal 5); and
WHEREAS, the proposed amendment clarifies and streamlines the Sensitive Lands regulations with regard to utilities, fences, landscaping, lighting, map corrections, and delineation of Resource Conservation (RC) and Resource Protection (RP) districts; and
WHEREAS, notice of the public hearings relating to consideration of this Ordinance was duly given in the manner required by law; and
WHEREAS, public hearings were held before the Lake Oswego Planning Commission on November 10, 2014, at which the staff report, testimony, and evidence were received and considered; and
WHEREAS, a public hearing was held before the City Council of the City of Lake Oswego on December 2, 2014, at which the staff report, testimony, and evidence were received and considered;
The City of Lake Oswego ordains as follows:
Section 1. The City Council hereby adopts the Findings and Conclusions attached as Exhibit 1.
Section 2. The Lake Oswego Code, Chapter 50 (Community Development Code) is hereby amended by deleting the text shown by strikethrough type and adding new text shown in double underlined type, attached as Exhibit 2. (Sections or subsections within LOC Chapter 50 that are omitted, and not marked for deletion or addition, are neither amended nor deleted by this Ordinance.)
Section 3. Severability. The provisions of this ordinance are severable. If any portion of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance.
Ordinance No. 2658 Page 1 of 2 Enacted at the regular meeting of the City Council of the City of Lake Oswego held on the 16th day of December, 2014.
AYES:
NOES:
ABSTAIN:
EXCUSED:
______Kent Studebaker, Mayor
Dated: ______
ATTEST:
______Catherine Schneider, City Recorder
APPROVED AS TO FORM:
______David Powell, City Attorney
Ordinance No. 2658 Page 2 of 2
1 BEFORE THE CITY COUNCIL
2 OF THE CITY OF LAKE OSWEGO
3 A REQUEST FOR AMENDMENTS TO LOC LU 14‐0053‐1860 50.05.010 AND 50.07.004 CITY OF LAKE OSWEGO 4 FINDINGS, CONCLUSIONS & ORDER 5 6 NATURE OF PROCEEDINGS
7 This matter came before the Lake Oswego City Council on the recommendation of the
8 Planning Commission to amend LOC sections 50.05.010 and 50.07.004 to clarify and streamline
9 Sensitive Lands regulations with regard to utilities, fences, landscaping, lighting, map
10 corrections and delineation of Resource Conservation (RC) and Resource Protection (RP)
11 Districts.
12 HEARINGS
13 The Planning Commission held a public hearing and considered this application at its
14 meeting of November 10, 2014. The City Council held a public hearing to consider the Planning
15 Commission’s recommendation on December 2, 2014.
16 CRITERIA AND STANDARDS
17 A. City of Lake Oswego Comprehensive Plan:
18 Civic Engagement Policy 1 19 Land Use Planning Policies A‐1 and A‐2 20 Policy B‐6 Policies D‐1 and D‐6 21 Open Spaces and Natural Areas (Goal 5) Section 1, Policies 1, 2, 3, 4, 5 and 6 22 Section 2, Policies 1, 2, 3, 6 and 14 Section 3, Policies 23 Section 4, Policies 1, 4 and 5 Air, Water and Land Resources Quality (Goal 6) 24 Section 1, Policy 3
25 B. Metro Urban Growth Management Functional Plan:
26 Title 13: Nature in Neighborhoods
Page 1 – FINDINGS, CONCLUSIONS & ORDER (LU 14‐0053‐1860)
DAVID D. POWELL LAKE OSWEGO CITY ATTORNEY’S OFFICE PO BOX 369 / 380 A AVENUE LAKE OSWEGO, OREGON 97034 503.635.0225 / 503.699.7453 (F)
1 C. Oregon Statewide Planning Goals:
2 Goal 1: Citizen Involvement Goal 2: Land Use Planning 3 Goal 5: Natural Resources, Scenic and Historic Areas and Open Spaces Goal 6: Air, Water and Land Resources Only 4 D. Lake Oswego Community Development Code: 5 LOC 50.07.003.16.a Legislative Decision Defined 6 LOC 50.07.003.16.b Criteria for a Legislative Decision LOC 50.07.003.16.c Required Notice to DLCD 7 LOC 50.07.003.16.d.iii Planning Commission Recommendation Required LOC 50.07.003.16.e City Council Review and Decision 8 FINDINGS AND REASONS 9 The City Council incorporates the staff report dated October 30, 2014, with all exhibits, 10 the November 18, 2014 staff Council Report with all exhibits, and the Findings and Conclusions 11 of the Planning Commission (except where modified by the Council’s supplemental findings) as 12 support for its decision, supplemented by the further findings and conclusions below. If there is 13 any inconsistency between the supplementary matter and the incorporated material, the 14 supplementary matter controls. 15 Following are the supplemental findings and conclusions of this Council: 16 1. The City Council finds that the proposed amendments to LOC 50.05.010.5.c.8 (Code Fix 17 #4) and LOC 50.05.010.6.c.1.a (Code Fix #5), should be modified to remove the 18 requirement that plants used for landscaping within RC and RP districts “not require the 19 use of fertilizers, pesticides, or other added chemical or organic materials that can 20 impact water quality.” The Council finds that provision is redundant with other 21 provisions of 50.05.010.5.c.8 and LOC 50.05.010.6.c.1.a, which require that plants used 22 for landscaping within RC and RP districts “Be well‐suited to local soils and growing 23 conditions” and “not be dependent upon long‐term irrigation, which can increase 24 erosion and sedimentation”. 25 2. The City Council received testimony on LOC 50.07.004.8.b Map Corrections (Code Fix #7) 26
Page 2 – FINDINGS, CONCLUSIONS & ORDER (LU 14‐0053‐1860)
DAVID D. POWELL LAKE OSWEGO CITY ATTORNEY’S OFFICE PO BOX 369 / 380 A AVENUE LAKE OSWEGO, OREGON 97034 503.635.0225 / 503.699.7453 (F)
1 questioning the meaning of “more than a small number of lots”, in regards to legislative
2 map amendments. Under LOC 50.07.003.16.a, “A ‘legislative decision’ is an amendment
3 to the policies, procedures, standards, criteria or map designations of the
4 Comprehensive Plan, and this Community Development Code, unless such amendment
5 applies to a small number of identified properties only or is required to effect a
6 particular development permit application.” [emphasis added] Therefore, the Council
7 finds that the phrase “small number of lots” should be replaced with “small number of
8 identified properties”. The City Council notes that, in a very limited number of cases, it
9 may be necessary for the City to apply the additional factors outlined in case law when
10 deciding if legislative procedures apply. See Strawberry Hill 4 Wheelers v. Benton Co. Bd.
11 of Comm., 287 Or 591, 601 P2d 769 (1979).
12 3. The City Council finds LOC 50.07.004.8.b “Map Corrections” (Code Fix #7) is not to be
13 used to designate new RC / RP districts, or to add properties to existing RC / RP districts.
14 The new text is a modification of the previous section titled “Removing an Overlay
15 District Designation,” and addresses instances where there is an “error in the existence
16 or location of an RC or RP district” by establishing a “map correction” process – meaning
17 removing or altering the size or location of an existing district as designated or
18 delineated on a particular property. This modified text does not create an additional
19 process for adding new RC / RP districts or extending existing districts onto additional
20 properties. As before, LOC 50.07.004.08.a is to be used to designate a new RC / RP
21 district, or to add properties to existing RC / RP districts.
22 4. The City Council finds that the Planning Commission’s recommendation regarding LOC
23 50.07.004.d.i.1 (Code Fix #8) should be modified to exclude non‐native trees from RC
24 district delineations: “Tree canopy from invasive tree species and non‐native tree
25 species, per the City’s Plant List, shall not be included in the measurement of contiguous
26 tree canopy.” Based on testimony from Metro, the Council finds this change does not
Page 3 – FINDINGS, CONCLUSIONS & ORDER (LU 14‐0053‐1860)
DAVID D. POWELL LAKE OSWEGO CITY ATTORNEY’S OFFICE PO BOX 369 / 380 A AVENUE LAKE OSWEGO, OREGON 97034 503.635.0225 / 503.699.7453 (F)
1 conflict with the Metro Functional Plan (Title 13).
2 5. The City Council received testimony from a property owner regarding LOC 3 50.07.004.d.i.3 (Code Fix #9). The testimony questioned whether the amended code
4 requires wider stream protection areas. The Council finds the amendment limits the
5 maximum width of a stream protection area, potentially reducing protection areas on a
6 small number of properties containing steep or variable slopes. It also modifies the
7 method of determining an edge of a stream, consistent with Oregon Administrative
8 Rule, while maintaining compliance with the Metro Functional Plan (Title 3).
9 CONCLUSION
10 The City Council concludes that, as modified to be consistent with these findings, LU 14‐
11 0053 complies with all applicable criteria and should be approved. The Council also concludes
12 that LU 14‐0053 should be implemented by enacting proposed Ordinance 2658 as modified to
13 be consistent with these findings.
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Page 4 – FINDINGS, CONCLUSIONS & ORDER (LU 14‐0053‐1860)
DAVID D. POWELL LAKE OSWEGO CITY ATTORNEY’S OFFICE PO BOX 369 / 380 A AVENUE LAKE OSWEGO, OREGON 97034 503.635.0225 / 503.699.7453 (F) ORDINANCE NO. 2658/EXHIBIT 2 LU 14‐0053 SENSITIVE LANDS 2014 CODE AMENDMENTS
LOC 50.05.010 is hereby amended as follows (new text shown in bold, double‐underlined type; deleted text shown in strikethrough type):
50.05.010 Sensitive Lands Overlay Districts
// 2. Applicability This section applies to all lands designated as RP or RC on the Sensitive Lands Map and Atlas. // b. Exceptions – General The provisions in this section shall not apply to: i. A resource located within the boundaries of a partition, subdivision, planned development, or lot line adjustment, approved prior to August 21, 1997, if: (1) The resource was identified and protected pursuant to regulations in effect at the time of approval; and (2) The proposed development is in compliance with the conditions protecting the resource imposed at the time of approval. Any modification of the prior approved partition, subdivision, or planned development that would impact or modify any protection measures imposed at the time of original approval shall be subject to the standards and criteria of this section. ii. Resource restoration required as a result of violation of this section or pursuant to settlement of a potential enforcement action by the City Manager, subject to City Manager approval of the restoration plan and procedures. iii. Routine maintenance and repair of existing legal development, including nonconforming structures and landscaping. (See also, specific exception for normal or emergency replacement of utility, below.)
c. Exceptions – Specific The provisions of LOC 50.05.010, except for the construction standards in LOC 50.05.010.4.d, shall not apply to: i. Replacement or vertical expansion of an existing structure within the footprint of that structure. ii. Normal or emergency replacement of a utility that is not closer to a protected water feature than the pre‐existing utility. Normal replacement of a
Ordinance 2658 – Exhibit 2/Page 1 of 13 utility for purposes of this subsection means the replacement is within the same general location or alignment as the pre‐existing utility. Replacement of utilities that are within the stream channel or wetland must consider alternative locations; where no practicable alternative location exists, replacement shall occur as described above, subject to the mitigation requirements of LOC 50.05.010.4.e through 50.05.010.4.g. Temporarily disturbed areas must be restored to their original grades and soil permeability, and revegetated with plants identified on the Plant List, pursuant to LOC 50.05.010.4.g. iii. Alteration, expansion, or replacement of an existing primary dwelling unit where the footprint of the new intrusion is not more than 700 sq. ft. in the RP or RC district and is not closer to a protected water feature than the pre‐existing structure. iiiiv. Development that meets all of the following criteria: (1) Is not located within a wetland or below the top of the bank or stream; (2) Does not require a grading permit; and (3) The cumulative total of all development under this subsection 2.c.iii does not exceed 200 sq. ft. iv. Fences that are meet the following criteria: (1) The fence is not located within a wetland or a stream channel; and. (2) If the fence is below the top of the bank of a stream, at least a two‐ft. section of every 100‐ft. segment or portion thereof is: (a) Not less than 12 in. above the ground; and (b) Not more than four ft. tall, measured from the ground.
vi. Other development that does not remove any native vegetation or create new permanent structures within the RP or RC district. d. Exceptions for Wetlands, Stream Corridors and Tree Groves Outside of RP or RC District Wetlands, stream corridors, and tree groves that are not contained within an RP or RC district shall not be subject to the regulations of this section. However, an application for development that impacts a stream corridor or wetland may still be subject to state or federal wetland or stream regulations. Notice of such applications will be sent to the Division of State Lands (DSL) or the Army Corps of Engineers. //
Ordinance 2658 – Exhibit 2/Page 2 of 13 5. Standards Applicable to RC Districts // c. RC District Development Standards // iii. Development Standards If the proposed types of development are permitted within the RC district, the development activity, use or activity shall comply with the following standards, and the construction standards set forth in LOC 50.05.010.4.d: // (6) Utilities Unless exempted by LOC 50.05.010.2.c.ii (normal or emergency replacement of a utility), Public public or private utilities shall not be placed in or through the RC protection area unless tunneling under a resource where tree roots can be avoided and the functions and values of a resource will be maintained, or there is no other practicable alternative. If allowed to be located within an RC protection area, the applicant shall restore and revegetate the disturbed area with plants identified on the Plant List and mitigation shall be required pursuant to LOC 50.05.010.4.e through 50.05.010.4.g. When applying Step 1 (avoidance) of the mitigation process: (a) Sanitary sewer, water, power, gas, telecommunications, cable and storm drain lines shall be maintained in public rights‐of‐way and routed around significant resources rather than through a resource wherever possible; (b) Drainage patterns shall not be altered in the resource area, or if altered, shall be designed and maintained so as not to adversely impact the functions and values of the resource.
//
(8) Landscaping (a) Plants used for landscaping within a protection area shall: (i) Be adapted well‐suited to local soils and growing conditions; and (ii) Not be dependent on long‐term irrigation, which can increase erosion and sedimentation (irrigation necessary for initial
Ordinance 2658 – Exhibit 2/Page 3 of 13 establishment of the plants is not considered long‐term irrigation).; and (iii) Provide food or cover for wildlife.
(b) The City shall maintain a Plant List on file in the Planning Division listing species that comply with this subsection. If a plant is listed in the applicable section of the Plant List for resource landscaping, it shall be presumed to comply with subsection 5.c.iii(7) of this section, Resource Enhancement Projects. The Plant List is not intended to be an exclusive listing of allowable landscaping materials, but shall be used as a guideline and may be updated by the City Manager from time to time as new plants in compliance with this section are discovered or become available. An applicant may utilize a plant not on the Plant List as long as it complies with the criteria in this section.
(c) Removal of vegetation identified on the Plant List as appropriate for resource landscaping is not permitted from a protection area, except as otherwise allowed by this section.
(d) New landscaping shall not include any invasive plants on the City’s Plant List.
//
6. Standards Applicable to RP Districts
// c. RP District Development Standards // ii. Except as provided in LOC 50.05.010.6.d, Exceptions Where the RP District Prohibits All Reasonable Development Opportunities, all development listed in subsection c.i of this section is subject to environmental review and shall comply with the following standards: (1) Specific Development Standards (a) Landscaping The delineated RP district shall maintain the natural function and character of the resource area, which provides food and shelter for native wildlife. Landscaping within these areas shall therefore comply with the following criteria: (i) Plants: Plants used for landscaping within the RP district shall:
Ordinance 2658 – Exhibit 2/Page 4 of 13 (A) Be adapted well‐suited to local soils and growing conditions; and (B) Not be dependent on long‐term irrigation, which can increase erosion and sedimentation (irrigation necessary for initial establishment of the plants is not considered long‐term irrigation).; and (C) Provide food or cover for wildlife.
(ii) The City shall maintain a Plant List listing species that comply with the criteria in this section. If a plant is listed on the Plant List as appropriate for resource landscaping, it shall be presumed to comply with this section. The Plant List is not intended to be an exclusive listing of allowable landscaping materials, but shall be used as a guideline and may be updated by the City Manager from time to time as new plants in compliance with this section are discovered or become available. An applicant may utilize a plant not on the Plant List as long as it complies with the criteria in this section.
(iii) Removal of vegetation identified on the Plant List as appropriate for resource landscaping is not permitted from an RP district except as otherwise allowed in this section.
(iv) New landscaping within the RP district shall not include any invasive plants include plants on the City’s Plant List.
//
(e) Structures, Parking Areas, Pathways, and Driveways, and Lighting (i) Construction Setbacks (A) Except as provided in subsection 6.c.ii(1)(d) of this section, structures, parking areas, active use recreation facilities, hard surfaced pathways, streets and driveways shall be set back at least ten ft. from an RP district to prevent construction impacts to the RP district. (B) In addition to complying with other applicable standards, accessory structures, patios, decks, and similar outdoor facilities, and lighting shall be set back three ft. from an RP district.
Ordinance 2658 – Exhibit 2/Page 5 of 13 (C) Passive use recreation facilities, such as soft surface trails and pedestrian bridges, may be located within the RP district. Any disturbed land area shall be restored with plants as described on the Plant List. (D) Exterior lights other than low‐voltage landscape lights with power less than 15 volts and on circuits limited to 25 amps are not allowed within the RP district; any exterior lighting outside of the RP district shall be hooded and positioned so that light does not shine directly into the RP district.
LOC 50.07.004 is hereby amended as follows (new text shown in bold, double‐underlined type; deleted text shown in strikethrough type):
50.07.004 Additional Submittal Requirements 8. Sensitive Lands Overlay Districts // b. Map Corrections A map correction may be initiated by the City Manager or the owner of any lot containing an RC or RP district. i. Within 45 days of receiving a property owner request regarding a possible error in the existence or location of an RC or RP district, the City Manager shall advise the affected property owner(s) in writing of the applicable procedure to process the request. ii. Where the map correction is initiated by the City Manager, the City Manager shall notify the property owner(s) in writing of the proposed corrective action. iii. Based on information provided by the property owner, as applicable, and such maps, aerial photographs, prior resource delineations, and studies or reports prepared by qualified professionals, etc., the City Manager shall select the applicable review procedure, which shall be: (a) Ministerial Development Decision, for corrections to scrivener’s errors. The Sensitive Lands Atlas shall be updated with each correction and the updates shall be reported to the Planning Commission and City Council not less than annually; (b) Minor Development Decision, for map corrections other than scrivener’s errors; or
Ordinance 2658 – Exhibit 2/Page 6 of 13 (c) Legislative Decision, for map corrections affecting more than a small number of identified properties. iv. The reviewing authority shall approve a map correction, including the removal or re‐delineation of a resource, as applicable, where the applicant demonstrates one of the following is met: (a) That the inventoried resource no longer exists because it was lawfully filled, culverted, logged, or developed; (b) The boundaries of the resource have changed since adoption of the resource inventory; (c) There was a mistake in the analysis used in the designation of the resource and it does not meet the criteria for designation under LOC 50.07.004.8.a, and a re‐application of the ESEE analysis demonstrates that the designation is no longer justified; (d) There was a mistake in the location, size, or configuration of the designation, including instances where no portion of the resource is on the subject lot; or (e) The Tree Grove is an Isolated Tree Grove not located on public open space, on a private designated open space tract, or on property brought into the Urban Growth Boundary after July 10, 2012, and removing the RC District complies with Metro Code Section 3.07.1330 (A) (2). v. A map correction shall not be approved as a result of damage caused by the property owner, another party, or other than natural causes.
b. Removing an Overlay District Designation i. In order to remove an overlay District designation the review body shall find that one of the following criteria is met: (1) As a result of natural occurrences or evolution the resource has been degraded to the extent that the subject property no longer meets the criteria for designation found in LOC 50.07.004.8.a.iv and (v), above, and a re‐application of the ESEE analysis demonstrates that the designation is no longer justified; or (2) There was a mistake in the analysis of quality or quantity in the original designation of the resource and a re‐application of the ESEE analysis demonstrates that the designation no longer meets the criteria; or
Ordinance 2658 – Exhibit 2/Page 7 of 13 (3) There was a mistake in the location of the original designation of the resource, such that no portion of the resource was on the subject property; or (4) The Tree Grove is an Isolated Tree Grove not located on public open space, on a private designated open space tract, or on property brought into the Urban Growth Boundary after July 10, 2012, and removing the RC District complies with Metro Code Section 3.07.1330 (A) (2). ii. An overlay district designation shall not be removed as a result of damage caused by the property owner, another party, or other than natural causes. iii. A removal application pursuant to subsection b.i(1), or b.i(2), above, shall be processed in the same manners as a designation application pursuant to LOC 50.07.008.a. iv. An Overlay District Designation may be removed pursuant to b.i(3), above, by a delineation on the subject site in accordance with LOC 50.07.004.8.d and a finding that there is not now nor was there any resource located upon the site at the time of designation.
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50.007.004 d. Delineation of Streams, Wetlands, and Tree Groves i. Preparation/Criteria Except as provided in subsection 8.d.iv of this section, an applicant for a development subject to environmental review shall first delineate the stream, wetland, or tree grove. A delineation is a more precise, site specific determination of the location of the tree grove or water resource prepared by a qualified professional. The delineation shall include a map showing the delineated boundary to plus or minus two ft. The delineation map shall also show the protected riparian area if required for the particular resource. Resource boundaries shall be delineated as follows: (1) Tree Groves The RC district shall be delineated as follows: The boundary of a tree grove shall be measured at the outer edge of a contiguous tree canopy based on aerial photos and/or visual field observations, but shall not include any tree canopy that is within a wetland or below the top bank of a stream; and. Tree canopy from invasive tree species and non‐native tree species, per the City’s Plant List, shall not be included in the measurement of contiguous tree canopy, and the delineated boundary
Ordinance 2658 – Exhibit 2/Page 8 of 13 shall not increase the size of the RC district by more than 15 percent from what is designated on the Sensitive Lands Atlas.
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(3) Stream Corridors A stream corridor boundary shall be measured or delineated based on topographic maps, hydrology maps, and/or field observations, pursuant to Figure 50.07.004‐A: Wetland and Stream Corridor Measurement; provided that the protected riparian area shall not extend more than 200 feet from the edge of the ordinary high water line of the stream corridor. The ordinary high water line is defined according to Oregon Administrative Rule (OAR) 141‐085‐0510.
Ordinance 2658 – Exhibit 2/Page 9 of 13
TO: Kent Studebaker, Mayor Members of the City Council
FROM: Joel B. Komarek, P.E., Project Director LO-Tigard Water Partnership
SUBJECT: LOTWP – Award of a Public Improvement Contract for Construction of the Finished Water Pipeline Schedule 6 Project: Work Order 207
DATE: December 5, 2014
ACTION
Move to award a public improvement contract to Landis & Landis Construction, LLC in the amount of $2,616,879.00 for construction of the Finished Water Pipeline Schedule 6 Project: Work Order 207.
INTRODUCTION/BACKGROUND
Pursuant to Oregon Revised Statutes (ORS) Chapter 279C and Section 103 of Lake Oswego Public Contracting Rules (LOPCR), the City conducted and completed a price-based competitive procurement of a construction contractor to construct the Finished Water Pipeline Schedule 6 Project. Because the contract amount exceeds $500,000, this contract must be awarded by the City Council.
On October 16, 2014, construction bid documents were made available to interested contractors and on December 4, 2014, bids were received and opened for the project. The bidders and amounts bid for the Finished Water Pipeline Schedule 6 Project are shown below:
Bidder Name Bid Amount Kerr Contractors of Oregon Inc. $2,209,956.00 Landis & Landis Construction, LLC $2,616,879.00 K&E Excavating, Inc. $2,634,408.00 James W Fowler Co. $2,736,106.00 Moore Excavation, Inc. $2,784,380.00 Pacific Excavation, Inc. $2,868,139.00 Emery & Sons Construction, Inc. $2,983,295.00
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 2
Bidder Name Bid Amount
Program Budget Estimate(1) $3,945,580 (1)Program cost placeholder contained in the current Program amount of $254 M.
DISCUSSION
The Project Management Team (PMT) evaluated each bid and determined that two of the bids were not “responsive”. The low bidder, Kerr Contractors of Oregon Inc. (“Kerr”) and also Pacific Excavation, Inc. (“Pacific”) failed to submit their statutorily required First-Tier Subcontractor disclosures by the appointed time/date. All other bids were determined to be “responsive” and “responsible.”
Non-Responsive Bids ORS 279C.370 requires that any bidder must also disclose within two hours of bid opening any subcontractor who proposes to furnish labor, materials, or services to the bidder. As noted, Kerr and Pacific failed to submit their First-Tier Subcontractor disclosures within the statutory two hour time frame. A public agency is statutorily prohibited from awarding a contract for public improvements to any bidder who fails to furnish the required subcontractor disclosure form. ORS 279C.370(3)(“The contracting agency shall consider the bid of any contractor that does not submit a subcontractor disclosure to the contracting agency to be a nonresponsive bid and may not award the contract to the contractor.”) Notice of Intent to Award With the above determination made, the LOTWP Project Director issued the required Notice of Intent to Award to all bidders on December 5, 2014. This notice must be issued not less than 10 days prior to award of the Contract. Within 7 days from the notice, any bidder other than the apparent low responsive bidder may file a protest with the contracting agency if that bidder believes they would be adversely affected by award to the lowest responsive, responsible bidder.
ALTERNATIVES & FISCAL IMPACT
Therefore, according to State law and City public contracting procedures, the City must either: 1. Award a public improvement contract to Landis & Landis Construction, LLC in the amount of $2,616,879.00 for construction of the Finished Water Pipeline Schedule 6 Project; or 2. Make findings that good cause exists and the public’s interest is protected if all bids are rejected and a new bidding process undertaken.
It is the opinion of the Project Director that no good cause exists for findings that: 1. The solicitation process was flawed or violated public contracting laws or rules;
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 3
2. Landis & Landis Construction, LLC is not a responsive and responsible bidder as defined by statute; or 3. The public’s interests would be best served by rejecting all bids and rebidding the project.
RECOMMENDATION
It is recommended that the Lake Oswego City Council award a public improvement contract for construction of the Finished Water Pipeline Schedule 6 Project to Landis & Landis Construction, LLC in the amount of $2,616,879.00.
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
TO: Kent Studebaker, Mayor Members of the City Council
FROM: Brant Williams, Redevelopment Director
SUBJECT: Block 137 Project Development Agreement Closing Documents
DATE: December 11, 2014
ACTION
Authorize the City Manager to sign the Sublease of Public Parking and Parking Facility Maintenance and Operation Agreement and the Public Access Pedestrian Easement for the Block 137 Project by December 31, 2015.
INTRODUCTION/BACKGROUND
The Block 137 Project Development Agreement requires the City and Evergreen Group LLC to sign three documents by the time Evergreen Group closes on its construction financing for redeveloping Block 137. The three documents include the parking lease for the portion of the parking facility that includes 135 public parking spaces, a parking management agreement that governs the day‐to‐day operation and maintenance of the public parking garage, and a pedestrian easement that ensures public access to the pedestrian way between First and Second streets. The Development Agreement requires that these documents be signed by December 31, 2015, which is the same completion date for closing on construction financing.
The parking lease and the parking management documents have been combined into one agreement called the Sublease of Public Parking and Parking Facility Maintenance and Operation Agreement, which is found in Attachment 1. Attachment 2 contains the Public Access Pedestrian Easement. Both of these agreements have been reviewed and approved by the LORA Board at its November 18, 2014 meeting. The documents before City Council are essentially the same as those approved by the Board other than corrections to typographical errors and certain non‐substantive changes for clarification purposes. For the Public Access Pedestrian Easement, both Exhibit B – Legal Description of Easement Area and Exhibit D – Depiction of Location of Public Art will be added upon completion of the final design of the project.
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 2
DISCUSSION
Key terms for both documents are described below:
Sublease of Public Parking and Parking Facility Maintenance and Operation Agreement The City will sublease 135 public parking spaces in the parking facility from Evergreen Group LLC, including use of all accesses and driveways. The term of the sublease is 75 years with two 10‐year renewal periods. Rent will be one dollar. Evergreen Group will be responsible for all maintenance and operations of the public parking garage including all associated costs. If Evergreen Group does not fulfill its maintenance and operations responsibilities, the City can assume these duties and shall be reimbursed by Evergreen Group for its costs. The hours of operation will be 7:00 a.m. to 11:00 p.m., Sunday through Thursday and legal holidays, and 7:00 a.m. to midnight, Fridays and Saturdays. The City will provide enforcement of the time limitations for the public parking spaces, similar to the parking garage at Lake View Village. Evergreen Group will be responsible for towing. The 135 public parking spaces will include forty eight spaces that the retail component owner or lessee can use for specified uses, days and times. This includes twenty eight spaces for use by retail tenants, patrons and employees between the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday. It also includes twenty 3‐hour parking spaces for use by retail patrons only between 8:00 a.m. to 5:00 p.m., Monday through Friday. For all other times, these forty eight spaces will be 3‐hour parking for the general public. The different types of parking spaces will be laid out in the parking garage according to the diagram in Exhibit B of the agreement. Any future changes to parking spaces, parking hour limits and hours of operations for the garage will be mutually agreed by the City and Evergreen Group. Parking will be free. However, if paid parking becomes the norm in downtown, the City and Evergreen Group will mutually establish a parking fee for the public parking spaces. The revenues and expenses associated with the paid parking will be divided equally between the two parties. The garage will be tax exempt; however, should it ever become taxable, Evergreen Group can charge a reasonable fee for parking to recoup this cost. All obligations of Evergreen Group will remain with the successor‐in‐interest to the agreement.
Public Access Pedestrian Easement – The public shall have the right to use the easement area for pedestrian access between First and Second streets.
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 3
– The hours the easement will be open for public use will be, at a minimum, the hours the public parking garage is open. – Evergreen Group shall be responsible for all construction and maintenance of the easement area including all associated costs. – The City will be responsible for regulating sidewalk cafes and sidewalk displays – Evergreen Group will be permitted to close the easement area for up to two times a year for private events or activities. – The City is permitted to install public art in the easement area – The easement will run with the land binding on all future owners of Block 137.
RECOMMENDATION
Staff recommends that the City Council authorize the City Manager to sign the Sublease of Public Parking and Parking Facility Maintenance and Operation Agreement and the Public Access Pedestrian Easement for the Block 137 Project, substantially in the form presented, by December 31, 2015, provided that the City Manager is satisfied that all relevant contingencies have been met under the Block 137 Development Agreement between LORA and Evergreen Group LLC.
ATTACHMENTS
1. Sublease of Public Parking and Parking Facility Maintenance and Operation Agreement 2. Public Access Pedestrian Easement
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us ATTACHMENT 1
SUBLEASE OF PUBLIC PARKING AND PARKING FACILITY MAINTENANCE AND OPERATION AGREEMENT (Block 137)
PARTIES: CITY OF LAKE OSWEGO, an Oregon municipal corporation (“Sublessee” or “City”)
AND: EVERGREEN GROUP LLC, an Oregon limited liability company (“Sublessor” or “Manager”)
EFFECTIVE DATE: ______, 2015
RECITALS
A. The Lake Oswego Redevelopment Agency (“LORA”) and Evergreen entered into a Block 137 Project Development Agreement, dated August 13, 2013, as amended by that First Amendment to Block 137 Project Development Agreement dated December 5, 2013, Second Amendment to Block 137 Project Development Agreement dated February 6, 2014, Third Amendment to Block 137 Project Development Agreement dated April 10, 2014, Fourth Amendment to Block 137 Project Development Agreement dated June 9, 2014, Fifth Amendment to Block 137 Project Development Agreement dated September 15, 2014, and Sixth Amendment to Block 137 Project Development Agreement dated ______, 2014 (as may be further amended, the “DA” or “Development Agreement”). Any capitalized terms used in this Agreement shall have the meanings set forth in the Development Agreement, unless otherwise defined herein.
B. Sublessor is the ground lessee of the real property upon which the Premises (defined in Section 1.4 below) are located pursuant to that certain Ground Lease dated as of ______, 201__, as amended, between Sublessor as lessee (“Ground Lessee”) and Wizer Properties LLC, an Oregon limited liability company (“Wizer” or “Ground Lessor”) as ground lessor (the “Ground Lease”). Sublessor has provided a copy of the Ground Lease to Sublessee, and Sublessee acknowledges receipt of a copy of the Ground Lease.
C. Pursuant to the Development Agreement, Block 137 will be redeveloped into a mixed-use project (the “Project”) including, but not limited to, a housing component (the “Housing Component”), a retail component (the “Retail Component”), an office component (the “Office Component”), and a structured parking garage (the “Parking Component”). The Parking Component is depicted on Exhibit A. The Parking Component shall provide a total of approximately 430 passenger vehicle parking spaces and 218 bicycle parking spaces. Sublessor will construct and initially own the Parking Component as the Ground Lessee. The terms and conditions for the development and construction of the Parking Component are set forth in the Development Agreement.
D. Pursuant to the Development Agreement, at least 135 parking spaces in the Parking Component will be made available for use by the general public. The primary purpose of the Public Parking (defined in Section 1.4 below) is to encourage a vibrant downtown and strong retail environment. The parties believe that the Public Parking will and should
{00329066;11} Page 1 - Evergreen/City Parking Sublease and Parking Management Agreement ATTACHMENT 1 encourage the general public to support retailers, restaurants and otherwise conduct business at the Project, Lakeview Village and in the downtown Lake Oswego core.
E. Pursuant to the Development Agreement, Sublessor is required to sublease the Public Parking to the City and to enter into a parking management agreement to govern the day-to-day operation of the Public Parking. The parties therefore enter into this Sublease of Public Parking and Parking Facility Maintenance and Operation Agreement in fulfillment of that obligation (the “Agreement”). The sublease terms and provisions set forth in this Agreement may be referred to herein as the “Sublease” and the management terms and provisions may be referred to herein as the “Management Agreement.” The Sublease and Management Agreement are collectively referred to herein as the “Agreement.”
F. Sublessor intends to submit its leasehold estate in the Ground Lease and the Project to condominium ownership under the Oregon Condominium Act (the “Act”) to create one or more new condominiums comprising the Project (the “Condominium”). The condominium will be subject to this Sublease, which will be prior in interest to the condominium regime. The Condominium declaration for the Project (the “Condominium Declaration”) and Condominium plat (“Plat”) will designate the Parking Component as a portion of one or more condominium units, including a retail condominium unit, which retail unit will be comprised of the Retail Component and the Public Parking (the “Retail Unit”). The Condominium Declaration will provide that the owner of the Retail Unit (the “Retail Unit Owner”) will succeed to certain of the Sublessor’s rights and will assume certain of the Sublessor’s obligations under this Sublease with respect of the Public Parking Garage. The parties intend and acknowledge, however, that certain Sublessor rights and obligations shall pass to the owners association of the Condominium (the “Association”) in accordance with the Act and the terms of the Declaration.
AGREEMENT
IN CONSIDERATION OF the promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Sublessor and Sublessee covenant and agree as follows:
1. Basic terms of sublease.
1.1 Commencement Date: This Agreement shall be effective on the date of Closing.
1.2 Sublessee: City of Lake Oswego, Oregon, an Oregon municipal corporation
Address for Notice: 380 A Avenue Lake Oswego, OR 97034 Attn: City Manager
With a copy to: City Attorney 380 A Avenue Lake Oswego, OR 97034
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1.3 Sublessor: Evergreen Group LLC an Oregon limited liability company
Address For Notices: 3330 N.W. Yeon, Suite 210 Portland, OR 97210 Attn: Patrick Kessi
With a copy to: Radler White Parks and Alexander LLP 111 S.W. Columbia St. Suite 1100 Portland, OR 97201 Attn: Dina Alexander
1.4 Sublease space: An area located on Level P-1 of the parking garage to be constructed as part of the Project and comprised of 135 parking spaces and associated drive aisles and walkways located therein (the “Premises,” the “Public Parking Garage” or the “Public Parking”), as generally depicted on the site plan attached as Exhibit B-1 hereto, together with the nonexclusive right to use certain driveways, walkways, stairwells and elevators in the Project as described in Section 21 below.
1.5 Area of premises: Approximately 50,000 square feet within the Parking Component as depicted on Exhibit B-1 and including 135 parking spaces (the “Public Spaces”).
1.6 Sublessee’s permitted uses of premises: Public parking of motor vehicles and bicycles and vehicular, bicycle and pedestrian ingress to and egress from the Public Parking Garage and for no other purpose whatsoever without the prior written consent of Sublessor which consent may be withheld in Sublessor’s sole and absolute discretion.
1.7 Possession date: Upon substantial completion of the Premises and issuance by the City of Lake Oswego of a temporary certificate of occupancy for the Retail Component, as more particularly described in Section 3 below.
1.8 Rent: Sublessee will pay One Dollar ($1.00) to Sublessor as rent on or before the Closing Date.
1.9 Term of sublease and management agreement: Beginning on the Commencement Date and continuing through the last day of the month that is seventy-five (75) years after the Commencement Date, with two (2), ten (10) year renewal terms (the “Sublease Term”). The Management Agreement shall terminate upon expiration of the Sublease Term or the earlier termination of this Agreement.
2. Sublease of Premises. Sublessor hereby grants to Sublessee the right to occupy, use and possess, and Sublessee hereby accepts from Sublessor the Premises, subject to the terms and conditions of this Agreement. Sublessor’s right to sublease the Premises to Sublessee is subject to the Ground Lease. Subject to Section 15.3 below, Sublessor and Sublessee acknowledge and agree that the rights created by this Agreement derive from the rights granted to Sublessor under the Ground Lease.
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3. Delivery of Possession. Upon the City’s issuance of a temporary certificate of occupancy for the Retail Component, Sublessor shall tender possession of the Premises to Sublessee (the “Possession Date”). The Premises shall be improved in accordance with the final construction drawings derived from plans approved by LORA pursuant to the Development Agreement, and approved by the City’s regulatory process.
4. Renewal Terms. Sublessee shall have the right to extend the initial Sublease Term for two (2) renewal terms of ten (10) years each, and the renewal terms shall commence on the day following expiration of the preceding term.
4.1 The Sublease Term shall be renewed automatically unless Sublessee delivers to Sublessor a written notice terminating the Sublease on or before the date that is six (6) months prior to the expiration of the then-current Sublease Term. The terms and conditions of this Sublease for the renewal terms shall be identical to the original Sublease Term, except that Sublessee will no longer have any ability to renew this Sublease pursuant to any renewal right that has previously been exercised.
4.2 Sublessee shall have no obligation to pay rent during the renewal term(s).
4.3 If Sublessee timely exercises its then-applicable right to terminate the Sublease Term, then this Agreement shall automatically terminate upon the expiration of the then-applicable Sublease Term, and Sublessee shall have no further rights under this Agreement.
5. Use. Sublessee shall use the Premises for public parking of motor vehicles and bicycles and vehicular, bicycle and pedestrian ingress to and egress from the Public Parking; all in accordance with the terms of this Agreement. In connection with its use of the Premises, Sublessee, at its expense, shall promptly comply with all laws, ordinances, rules, decisions and regulations of any public body or court with jurisdiction over the Premises (collectively, “Laws”) applicable to Sublessee’s use of the Premises and shall not obstruct, or interfere with the rights of other tenants, occupants or users of the Parking Component or Project. Sublessee shall create no nuisance nor commit any waste in, on or about the Premises.
6. Construction of Public Parking. Sublessor shall construct the Public Parking in accordance with the entitlements and permits obtained from the City through the City’s regulatory processes.
7. Maintenance and Repair. During the term of this Agreement and subject to Section 15 below, Sublessor shall be responsible at its own expense for, and shall have the right to enter or cause another to enter the Premises to, perform the following:
7.1 General. Sublessor shall maintain and repair or cause to be maintained and repaired the Public Parking Garage in good, clean, first-class condition, including but not limited to the structure, roof, exterior walls, doors, exterior windows, and common areas, including the elevator, and the electrical, mechanical, plumbing, heating and air conditioning systems, facilities and components to the extent the same are a part of or serve the Public Parking Garage.
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7.2 Repair. Sublessor shall (a) repair or cause to be repaired all damage to the Public Parking Garage caused or resulting from the negligence, abuse, misuse, or willful conduct of the Sublessor, or its employees, contractors or agents, and (b) rebuild, reconstruct or replace or cause to be rebuilt, reconstructed or replaced any destroyed, dysfunctional or obsolete part of the Public Parking Garage or its systems to the extent necessary to maintain the Public Parking Garage in the condition described in Section 7.1 above.
7.3 Specific Maintenance Activities. Maintenance of the Public Parking Garage shall include but not be limited to:
7.3.1 Periodically repainting painted surfaces and re-striping parking spaces as needed due to wear and tear.
7.3.2 Replacing light bulbs and repairing light fixtures.
7.3.3 Cleaning the Public Parking Garage and all equipment and materials used by the Sublessor in its operations under this Agreement and keeping the Public Parking Garage clean and free from rubbish, trash, refuse, debris, dust, and dirt. It shall be Sublessor’s sole responsibility to supply and furnish or cause to be supplied and furnished, at no expense to the City, all janitorial and custodial service and equipment necessary to maintain the Public Parking Garage in the aforementioned condition. All floors comprising the Public Parking Garage will be washed down every twelve (12) months or more frequently if warranted to keep the Public Parking Garage in the condition required by Section 7.1 above.
7.3.4 Providing for the adequate sanitary handling and disposal of all trash, garbage and other refuse resulting from the use of the Public Parking Garage. Sublessor shall provide and use suitable covered metal receptacles for all garbage, trash¸ and other refuse on or in connection with the Public Parking Garage. Sublessor shall not allow the piling of boxes, cartons or other similar items in an unsightly or unsafe manner in any location in the Public Parking Garage. Sublessor shall remove promptly any broken glass, bottles, cans, spilled food stuffs, and any other material that may create a hazard upon the surface of any parking area within the Public Parking Garage. Notwithstanding anything to the contrary in this Agreement, mechanical systems and storage units may be located in the Public Parking Garage.
7.3.5 Removing snow and ice that unduly interferes with (a) the safe movement and parking of cars, (b) entrances to and exits from the Public Parking Garage, or (c) the safe movement of pedestrians to and from the Public Parking Garage.
7.3.6 Promptly removing graffiti from the Public Parking Garage and restoring the surface to its condition prior to the application of the graffiti, to the extent reasonably practical.
7.4 Interference with City Use.
7.4.1 Sublessor shall have the right to erect scaffolding and other apparatus necessary for the purpose of maintaining or making repairs or alterations to the Public Parking or the building or buildings of which the Public Parking Garage is a part (whether one or more buildings for purposes of this Agreement, the “Building”), limit or eliminate access to portions of the Public Parking Garage, or perform work in the Public Parking Garage, which work may create noise, dust or leave debris in the Public Parking
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Garage. The City hereby agrees that Sublessor shall have no responsibility or for any reason be liable to the City for any direct or indirect injury to or interference with the City’s use of the Public Parking Garage, nor shall the City be entitled to any compensation or damages from Sublessor for any inconvenience or annoyance occasioned by such maintenance, repair or alteration work, except to the extent that the injury or interference results from the negligent or intentionally tortious acts or omissions of Sublessor, its agents or employees. Notwithstanding the foregoing, Sublessor shall make commercially reasonable efforts to undertake all repairs and maintenance in a manner that minimizes any interference with City’s use of the Public Parking Garage.
7.4.2 Sublessor shall have the right, in Sublessor's sole discretion, from time to time, to make changes to the size, shape, location, number and extent of, or to upgrade all or any of the improvements comprising the Project (hereinafter referred to as “Changes”) including, but not limited to, the Public Parking and the Premises, and including interior and exterior, common areas, elevators, escalators, restrooms, HVAC, electrical systems, communication systems, fire protection and detection systems, light fixtures, plumbing systems, security systems, parking control systems, driveways, entrances, parking spaces, parking areas and landscaped areas provided such changes do not result in a decrease in the number of parking spaces allocated to Sublessee under this Agreement, decrease the square footage of the Premises, or materially and adversely impact the use and operation of the Public Parking Garage. Notwithstanding the foregoing, changes in the size, type and location of the Public Parking require the mutual consent of both parties, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that the Sublessee acknowledges and agrees that during design development, preparation of construction documents and construction of the Project, Sublessor may make changes to the Public Parking Garage as necessary to address constructability issues so long as such changes do not result in a decrease in the size or number, or change in the location of, the parking spaces in the Public Parking Garage as shown on Exhibit B-2. If the City’s consent to one or more changes to the Public Parking Garage is required under this Section 7.4.2, such consent may be granted and this Agreement and exhibits hereto may be amended by the Executive Director of LORA and Sublessor. In connection with the Changes and in connection with any repair and maintenance to be performed by Sublessor, Sublessor may, among other things, erect scaffolding or other necessary structures at the Project, limit or eliminate access to portions of the Project, including portions of the Premises, or perform work in the Building, which work may create noise, dust, dirt or leave debris in the Building or the Premises. Sublessee hereby agrees that such Changes and Sublessor's actions in connection with such Changes shall in no way constitute a constructive eviction of Sublessee. Sublessor shall have no responsibility or for any reason be liable to Sublessee for any direct or indirect injury to or interference with Sublessee's use of the Premises arising from the Changes, nor shall Sublessee be entitled to any compensation or damages from Sublessor for any inconvenience or annoyance occasioned by such Changes or Sublessor’s actions in connection with such Changes.
7.5 Inspections.
7.5.1 Daily Inspections by Manager. Manager shall cause inspections to be made of the Public Parking Garage at least once each weekday, excluding Legal Holidays, and as reasonably necessary each Saturday and Sunday, to ensure that daily operations are in material compliance with this Agreement. Manager shall keep written reports of any significant, recurring problems impacting the daily operation of the Public Parking. Such
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written reports shall be kept by Manager for at least sixty (60) days and shall be available to the City for inspection and review during business hours following reasonable written notice to the Manager.
7.5.2 City’s Right to Inspect and Make Repairs. The City shall have the right at such times as may be reasonable under the circumstances and with as little interruption to the operations of the Public Parking as is reasonably practicable, to:
a. Inspect the Public Parking at reasonable intervals during regular business hours (or at any time in case of emergency) to determine whether the Sublessor has complied and is complying with the terms and conditions of this Agreement in all material respects;
b. Perform maintenance and make repairs and replacements in any case where the Sublessor is obligated to do so under this Agreement and where the Sublessor has failed, after reasonable notice and a reasonable opportunity to cure in accordance with Section 16.2.1, to do so; and
c. Perform maintenance and make repairs and replacements in any case where the City reasonably determines that it is necessary or desirable to do so in order to preserve the structural safety of the Public Parking Garage or to correct any condition likely to cause injury or damage to persons or property but only after reasonable notice and a reasonable opportunity to cure is provided to Sublessor.
Sublessor shall reimburse the City for costs reasonably incurred by the City under Sections 7.5.2.b and 7.5.2.c above within thirty (30) days of demand therefor. Any and all such maintenance, repairs and replacements made by or at the direction of the City shall be performed in a good and workmanlike manner, in compliance with all applicable Laws, and in a manner to minimize interference with the use of the Public Parking Garage. The City shall not allow any liens to attach to the Public Parking Garage or any real property associated with the Project as a result of any such work. Any and all costs the City incurs and that the Sublessor shall reimburse shall not exceed the costs customarily incurred for non-attended parking facilities in the Portland metropolitan area.
8. Alterations.
8.1 Sublessee shall not make any alterations, additions, or improvements to the structural components of the Premises, to the mechanical, electrical and plumbing systems in the Parking Component, or to any common areas or elements of the Project without the Sublessor’s prior written consent, which consent may be withheld in Sublessor’s sole and absolute discretion. For all other alterations, additions or improvements to the Premises, Sublessee shall seek the prior written consent of the Sublessor, which consent shall not be unreasonably withheld, conditioned or delayed. In seeking consent, Sublessee shall provide Sublessor with a reasonably detailed explanation of the request, along with proposed plans as reasonably appropriate.
8.2 Should Sublessor consent to Sublessee’s alteration of the Premises (each, an “Approved Alteration”), Sublessee shall contract with a licensed contractor for the construction of the Approved Alteration, shall secure all appropriate governmental approvals and permits, shall complete the Approved Alteration with due diligence in compliance with all Laws and the plans and specifications, if any, and shall pay all costs and expenses associated
{00329066;11} Page 7 - Evergreen/City Parking Sublease and Parking Management Agreement ATTACHMENT 1 with such Approved Alteration. An Approved Alteration shall be performed in a manner which will not unreasonably interfere with the quiet enjoyment of other occupants and users of the Public Parking, the Parking Component, or the Project.
8.3 An Approved Alteration shall at once become part of the Premises except for removable machinery and movable trade fixtures. An Approved Alteration shall comply with all applicable Laws. No party shall allow any lien to attach to all or any portion of the Premises or any real property that is a part of the Project as a result of an Alteration or for any other reason.
8.4 Sublessor may perform alterations to or change the configuration of the Premises and Sublessee acknowledges and agrees that the owner of the Building or the Association may perform alterations to or change the configuration of the Project, Building, the Parking Component and other common areas provided such changes do not result in a decrease in the number of parking spaces allocated to Sublessee under this Agreement, decrease the square footage of the Premises, or materially and adversely impact the use and operation of the Public Parking Garage. Notwithstanding the foregoing, changes in the size, type and location of the Public Parking require the mutual consent of both parties, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Sublessee acknowledges and agrees that during design development, preparation of construction documents and construction of the Project, Sublessor may make changes to the Public Parking Garage as necessary to address constructability issues so long as such changes do not result in a decrease in the size or number, or change in the location of, the parking spaces in the Public Parking Garage as shown on Exhibit B-2. If the City’s consent to one or more changes to the Public Parking Garage is required under this Section 8.4, such consent may be granted and this Agreement and exhibits hereto may be amended by the Executive Director of LORA and Sublessor. Sublessor shall provide written notice to Sublessee of alterations or changes to be made in accordance with this Section 8.4.
9. Impositions.
9.1 “Impositions” means all real property taxes, and special and general assessments, and all other charges of general application which shall accrue during the Sublease Term and are assessed, levied, charged, confirmed or imposed by Law against the Premises or its operations, or which accrue during the Sublease Term and become a lien on or against the Premises or any portion thereof to the extent imposed by any authority having the power to tax any legal or equitable interest of Sublessor in the Project or Premises.
9.2 Sublessee shall have no obligation to pay Impositions. Given Sublessee’s status as a public entity, the Premises is exempt from real property taxation under current Laws. The rent payable by the Sublessee has been established to reflect the savings below market rent resulting from the exemption from taxation. However, if the Premises becomes taxable during the Sublease Term, Sublessee shall have no obligation to pay such real property taxes. If the Premises becomes taxable, for any reason other than having exclusive office parking in the Project, then the Sublessor may charge a reasonable amount for parking in the Premises in order to cover the Impositions attributable to the Premises, provided that such parking charges apply during all hours that the Public Parking Garage is open and are applied equitably among all users of the Public Parking Garage and the parking for the Office Component.
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9.3 Sublessor shall pay any and all Impositions with respect to the Premises when due and prior to the date on which any fine, penalty, interest, or cost may be added to such Imposition or imposed by law for its nonpayment. Sublessor may pay Impositions in installments if permitted by applicable Laws.
9.4 Nothing in this Section 9 shall in any way relieve Sublessor of its obligation to pay, at its own cost and expense, any and all taxes, assessments, levies, fees, or other Impositions payable with respect to Sublessor’s income, assets, or business operations.
10. Indemnity.
10.1 During construction of the Premises, Sublessor will indemnify, defend (at Sublessee’s request) and hold harmless Sublessee, from and against all claims, costs, expenses, losses, damages and liabilities whatsoever arising from or in connection with the death of, or injury, loss or damage whatsoever caused to, any person or to the property of any person during the process of the construction work or the performance of Sublessor’s other construction obligations under the Development Agreement, except to the extent caused by the acts or omissions of Sublessee or its employees, agents, contractors, subcontractors, licensees or invitees. The indemnity set forth in this Section 10.1 shall survive the issuance of the temporary certificate of occupancy for the Parking Component and any termination of the Development Agreement for a period of two (2) years.
10.2 After Sublessee takes possession of the Premises, subject to the Oregon Tort Claims Act (ORS 30.260-300) and to the extent caused by Sublessee, its agents or contractors, Sublessee shall indemnify, defend (at Sublessor’s request) and hold harmless Sublessor and its members, managers, managing agents and employees from and against any claims, costs, expenses, losses, liabilities and damages (a) arising from Sublessee’s breach or violation of any term of this Agreement, and (b) occurring in, on, or about the Public Parking Garage, the Project or any portion thereof and arising out of the use of the Public Parking Garage, the Project or any portion thereof by Sublessee, its agents or contractors, as opposed to use by the public.
10.3 After Sublessee takes possession of the Premises, Sublessor shall indemnify, defend (at Sublessee’s request), and hold harmless Sublessee and its managing agents and employees from any claim, liability, damage, or loss occurring in, on, or about the Project including the Public Parking Garage, and any cost or expense in connection therewith (including attorney fees), arising out of the following, to the extent caused by Sublessor, its agents or contractors: (a) any damage to any person or property occurring in, on or about the Project; (b) use and management by Sublessor or its agents or contractors of the Public Parking Garage, the Project or both; and (c) Sublessor’s breach or violation of any term of this Agreement. Sublessor’s indemnity expressly excludes any claim, liability, damage, or loss for which Sublessee has an indemnity obligation under this Agreement.
11. Insurance.
11.1 Sublessor’s Insurance.
11.1.1 Before Possession Date. Prior to the Possession Date, Sublessor shall maintain or cause to be maintained a primary comprehensive general liability insurance policy from commencement of construction through issuance of a temporary certificate of occupancy for the Premises. The policy shall include a combined single limit of $5,000,000
{00329066;11} Page 9 - Evergreen/City Parking Sublease and Parking Management Agreement ATTACHMENT 1 and provide coverage for bodily injury or property damage as well as contractual liability for Sublessor’s activities under this Sublease, which may be part of a Builder’s Risk policy. The policy shall name Sublessee as a additional insured.
11.1.2 After Possession Date. Following the Possession Date and subject to Section 21.2 below, Sublessor shall maintain or cause to be maintained in full force and effect the following insurance policies and coverages:
a. Garage Operator’s Liability Insurance; Fire and Casualty Insurance. A garage operator’s public liability insurance policy, including auto and personal injury, with a combined single limit coverage of not less than $2,000,000 for bodily injury, death or property damages and a deductible of not more than $10,000.00 per occurrence. Fire and casualty insurance shall be maintained on the Parking Component with extended coverage in an amount equal to 100% of the replacement costs of the Parking Component, with earthquake coverage as the sole exclusion to casualty coverage, unless other exclusions are approved by the City. Should the garage operator determine that other insurance coverage exclusions are necessary because (a) the coverage can no longer be obtained or (b) the coverage is not available at commercially reasonable rates and is not typically carried by owner of similar projects, the operator shall make a written request to the City to approve the exclusion of such coverage. The request shall include information from an insurance broker or insurer indicating the coverage is not available or providing the cost of such coverage. The City shall not unreasonably withhold, condition or delay its approval of such exclusion.
b. Flood Insurance. If the Project is located in an area designated by the director of the Federal Emergency Management Agency as a flood hazard area, flood insurance in the maximum amount available, issued under the National Flood Insurance Program or other underwriter acceptable to the City.
c. Theft, Vandalism and Malicious Mischief. A theft, vandalism and malicious mischief insurance policy in an amount not less than $50,000, covering vehicles parked or stored in the Public Parking.
d. Workers Compensation Insurance. Workers Compensation Insurance in the amounts and form required by the State Workers Compensation Act.
11.2 Policy Requirements. Except for Workers Compensation Insurance and for the fire insurance policy, which shall name the City and Sublessor as their interests may appear, all insurance policies specified above shall contain an endorsement naming the City as an additional insured. Each policy shall contain an endorsement entitling the City to thirty (30) days prior written notice of any material change, non-renewal, or cancellation. All policies shall be placed with companies licensed to do business in the State of Oregon and with an insurance rating of not less than B+ as established by Best’s Rating Guide or an equivalent rating issued by such other publication of a similar nature as shall be in current. A copy of the policies or certificates thereof reasonably satisfactory to the City will be delivered to the City prior to the Possession Date. A copy of renewal or replacement policies, or certificates thereof, and any additional endorsements or other policy changes consistent with this Agreement, will be delivered to the City prior to their respective effective dates. All policies shall be written as primary policies not contributing with or in excess of any coverage that the City may carry and shall have loss payable clauses in favor of and satisfactory to the City.
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11.3 Sublessee’s Insurance. Following the Possession Date and through the expiration or earlier termination of the Sublease Term, Sublessee shall maintain in full force and effect the following insurance policies and coverages: (a) general liability insurance covering property damage and bodily injury with limits of at least $1,500,000.00 per occurrence and $3,000,00.00 in the aggregate; (b) automobile liability insurance with a combined single limit of at least $1,000,000.00; and (c) worker’s compensation insurance in the amounts and form required by the State Workers Compensation Act. Sublessee shall be responsible for insuring its personal property and trade fixtures located on the Premises, if any, and any Alteration it has made or makes to the Premises, if any.
11.4 Waiver of Subrogation. Neither Sublessor, or Sublessee, shall be liable to the other for any loss or damage caused by water damage, sprinkler leakage, or any of the risks that are covered by property insurance or could be covered by a customary broad form of property insurance policy, or for any business interruption, and there shall be no subrogated claim by one party’s insurance carrier against the other party arising out of any such loss.
12. Management of Public Parking.
12.1 General. The parties agree that mutual cooperation is necessary to accomplish optimal joint use of the Public Parking in accordance with the Development Agreement and this Agreement. This Agreement will be implemented and interpreted to maximize the public use of the Public Parking as well as the financial success of the Retail Component and the Housing Component. To this end, the City Manager or his appointee (the “City Representative”), and a representative of Sublessor with authority to bind Sublessor (the “Manager Representative”) shall meet as necessary to discuss the detailed criteria and procedures for use, maintenance and operation of the Public Parking and office parking and to resolve any problems arising out of the joint use of the Public Parking. As of the Effective Date, the Manager Representative is Patrick Kessi, and the City Representative is the City Manager. Any successor-in-interest to Sublessor shall inform the City in writing of the name and contact information for the Manager Representative within ten (10) Business Days of succeeding to the Sublessor’s interest under this Agreement. The City may designate a different City Representative by written notice delivered to Sublessor in accordance with Section 23 below.
12.2 Manager. As used in this Agreement, the term “Manager” refers to the Sublessor and any successor-in-interest to the Sublessor, acting in its capacity as the then- owner of the Retail Component, which includes the Premises. The City hereby engages Manager, as the initial owner of the Retail Component, and its successor owner(s) of the Retail Component, to manage and operate the Public Parking. Manager agrees and covenants to provide such services in accordance with the terms and conditions of this Agreement. The period of engagement shall commence on the Effective Date and terminate upon the expiration or earlier termination of this Agreement.
12.3 No Management Fee. The City will not pay a management fee for the services provided by Manager under this Agreement.
12.4 Use of Public Spaces. With the exception of the time periods for exclusive use for Tenant Spaces as described in Section 12.6, all of the Public Spaces shall be three (3) hour parking spaces for use by the general public and made available on a first- come, first-served basis.
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12.5 Changes to Public Parking Spaces. The Manager Representative and the City Representative may mutually agree to increase or decrease the three (3) hour time limit and to alter the Public Spaces including the number, size, type, location and hours of operation of the Public Parking spaces.
12.6 License of Tenant Spaces. The City hereby grants to Sublessor an irrevocable license for the exclusive use of up to forty-eight (48) Public Spaces (the “Tenant Spaces”) for specified uses, days and times. These Tenant Spaces include the exclusive use of up to twenty-eight (28) spaces for the benefit of the tenants, patrons and employees of the Retail Component. Manager shall be entitled to the exclusive use of these spaces between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday. The Tenant Spaces also include the exclusive use of up to twenty (20), three (3) hour, parking spaces for the sole benefit of patrons of the Retail Component between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday. During all other days and times, these 48 Tenant Spaces shall function as Public Spaces and be available to the general public as described in Section 12.4. The Tenant Spaces will be located as shown on Exhibit B-2.
12.7 Adjustment to Number of Tenant Spaces. If the Manager Representative or the City Representative notifies the other party in writing (the “Initial Notice”) that such party has a reasonable basis to believe that the number of Tenant Spaces should be adjusted, then, within ten (10) Business Days of receipt of the Initial Notice, the City Representative and the Manager Representative shall meet to discuss any proposed adjustment. In order to make a commercially reasonable determination whether any adjustment to the number of Tenant Spaces is warranted, which determination shall be made in light of the objectives stated in Recital D above, the parties will discuss the issue in good faith over not less than a thirty (30) day period from the date of the first meeting and will have at least two (2) but not more than four (4) meetings if such meetings are requested by either party. Any Initial Notice may be given by each party no more frequently than once in any calendar year. Notwithstanding anything to the contrary set forth in this Section 12 or in this Sublease, the City will not require more retail parking than that required and approved through the City’s regulatory processes, and this requirement may be fulfilled from the 135 Public Spaces.
12.8 Parking Charges. Parking in the Public Parking Garage shall be free to all users; however, if paid parking becomes the norm in the downtown Lake Oswego area, the City Representative and the Manager Representative may mutually establish a parking fee, the proceeds of which, after deduction of all expenses and taxes, including reasonable reserves (as determined by Sublessor) shall be divided equally between Sublessor and Sublessee.
12.9 Quality of Service. Manager shall operate the Public Parking Garage in a professional manner and shall at all times during the term comply with the following requirements:
12.9.1 Administrator. Manager may appoint a qualified administrator (“Parking Administrator”) to oversee the operation of the Public Parking Garage; provided, however, that if such administrator is a third party (e.g., Manager wants to hire a third party parking management company to operate the Public Parking Garage) such third party must be a professional manager or management company with experience running public parking garages in the Portland metropolitan area.
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12.9.2 Personnel. Manager acknowledges the high level of importance the City places on the public interest served by the Public Parking Garage. Manager shall provide sufficient personnel to operate the Public Parking Garage in a professional manner, and Manager’s personnel shall at all times conduct themselves in a professional manner.
12.9.3 Hours of Operation. At a minimum, the Public Parking Garage will be open during the following hours:
7:00 a.m. to 11:00 p.m. Sunday through Thursday and Legal Holidays
7:00 a.m. to Midnight Fridays and Saturdays
12.10 Security. Manager shall provide security for the Public Parking Garage by keeping the Public Parking Garage well-lit and installing security cameras throughout the Public Parking Garage. The Public Parking Garage shall be closed, but need not be physically secured, outside of normal hours of operation. The City shall have access to the Premises twenty-four (24) hours a day, seven (7) days a week, and shall be issued equipment (e.g., keys, cards or key fobs) if and as necessary to obtain such access.
12.11 Prohibition on Unrelated Activities.
12.11.1 Neither the City nor the Manager shall engage in or permit any of its employees, agents or contractors to engage in any activity at the Public Parking other than specified or permitted under this Agreement without the prior written approval of the other party, which approval may be withheld in such party’s sole and absolute discretion.
12.11.2 The Public Spaces shall be used for parking operable passenger motor vehicles and may not be used for parking trailers or recreational vehicles or for other purposes. No vehicles shall be parked in the Public Spaces overnight or remain in the Public Parking Garage after hours; provided that any vehicle which is temporarily disabled or which cannot be moved due to inclement weather may be left in the Public Parking Garage for a reasonable period necessary to allow safe removal, with twenty-four (24) hours presumed to be reasonable. Canvassing, soliciting, peddling, and distributing of handbills or other written material in, on or about any portion of the Project is prohibited, unless such prohibition is contrary to applicable Laws. A violation of this Section 12.11.2 by the public will not be deemed an Event of Default by Sublessee.
12.12 Records; Inspection and Audit Rights.
12.12.1 If and during any time that the public is charged for parking in the Public Parking Garage, the Manager shall keep and maintain in accordance with sound accounting principles consistently applied complete, accurate and customary records and books of account relating to the charges collected for the Public Parking Garage.
12.12.2 Upon not less than three (3) Business Days prior notice, the City shall be entitled during regular business hours, through its duly authorized agents, attorneys or accountants, to inspect or audit and make copies of any and all financial records and books of account and supporting data of Manager that reasonably bear on the charges collected for
{00329066;11} Page 13 - Evergreen/City Parking Sublease and Parking Management Agreement ATTACHMENT 1 the Public Parking. Upon reasonable prior written request, such records will be made available at the offices of the Manager Representative.
12.13 Towing Responsibility; Enforcement of Parking Hours. The City has authorized and the parties hereby agree that the Manager will be responsible for the removal of abandoned vehicles, vehicles obstructing the use or operation of the Public Parking Garage, and vehicles parked in violation of the restrictions posted in the Public Parking, including but not limited to time limit and reserved parking restrictions. Towing shall be accomplished by a licensed towing company that is either used by the City or located in close proximity to Lake Oswego and vehicles shall be towed to a location accessible to the vehicle owner twenty-four (24) hours a day, seven (7) days per week. The Manager is responsible to adhere to all Laws applicable to the towing of vehicles. Except as set forth in this Section 12.13, and subject to the City’s adoption of an ordinance or resolution authorizing enforcement, the City shall be responsible, at its cost and expense, for enforcement of time limitations and other rules and regulations applicable to parking in the Public Parking Garage by ticketing vehicles parked in excess of parking hour limitations and by other notifications of parking violations left on vehicles parked in the Public Parking Garage in violation of other rules and regulations.
12.14 Compliance with Laws and Rules and Regulations. During the term of this Agreement, the Manager and the City shall observe and obey the following:
12.14.1 All applicable rules, regulations, orders and restrictions now in force or hereafter adopted by the City with respect to operations of the Public Parking Garage; provided, however, that the Manager’s rights under this Agreement shall not be materially diminished and the Manager’s obligations under this Agreement shall not be materially increased; and
12.14.2 All applicable Laws of the federal, state or local government authorities and agencies lawfully exercising authority at or over the Public Parking Garage or Manager’s or the City’s use or operation under this Agreement, as applicable.
12.15 Signs. The Manager Representative will design, install and maintain or will cause to be designed, installed or maintained (a) signs indicating the availability of the Public Parking to the public, (b) directional signage to assist vehicular and pedestrian traffic with ingress to and egress from the Public Parking Garage, and (c) signage indicating time limits, reserved spaces and other special use provisions applicable in the Public Parking Garage and office parking. Signage in the Public Parking Garage (including signage for office parking) shall be designed, mounted and maintained in a manner that is uniform. The Manager Representative and City Representative shall mutually agree on the design and the mounting of all signs in the Public Parking Garage (including signage for office parking) prior to signs being installed, and the City Representative will provide language to the Manager Representative to be included in the signs to ensure that the City can enforce the parking regulations. Signage will direct those coming to the Project to visit residents from the Public Parking Garage to the visitor parking to be constructed as part of the Residential Component and away from the Public Parking.
13. Eminent Domain.
13.1 Condemnation of Premises. If any portion of the Premises is taken by a government entity exercising the power of eminent domain, or sold to a government entity by
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Sublessor under the exercise of said power (the final judicial order that permits the taking is herein referred to as “Condemnation”), this Sublease shall terminate as to the part so taken as of the date the condemning authority takes possession of the condemned portion of the Premises (the “Condemnation Date”). If so much of the Premises is taken that, in Sublessee’s reasonable business judgment, the Premises are no longer reasonably suitable for Sublessee’s operations, Sublessee may terminate this Sublease. If the entire Premises are condemned, then this Sublease shall automatically terminate as of the Condemnation Date. The party who receives the condemnor's notice of intention to take (the “Condemnation Notice”) shall immediately give a copy of such notice to the other party.
13.2 Condemnation of the Building or Project. If a condemnation of any portion of the Building or Project (even though the Premises are not physically affected) renders the Building or Project unsuitable for use as a building with a Parking Component in either party's reasonable business judgment, then either Sublessor or Sublessee may terminate this Sublease by giving the other at least thirty (30) days written notice.
13.3 Restoration. If this Sublease is not terminated, (a) it shall remain in full force and effect as to the portion of the Premises remaining, and (b) Sublessor shall use the condemnation award to restore the Premises, the Building and the Project as soon as reasonably possible to a complete unit of the same quality, character and utility for Sublessee's purposes existing prior to the condemnation. Notwithstanding anything contained herein to the contrary, if (x) the restoration of the Premises and/or the Building is not commenced within thirty (30) days of Sublessor’s receipt of the condemnation award or is not completed within one hundred eighty (180) days from the Condemnation Date, then Sublessee may terminate this Sublease at any time before Sublessor completes the restoration, and (y) the condemnation award is not sufficient to cover the full cost of restoration, Sublessor shall have no obligation to restore the same.
13.4 Award. Sublessor and Sublessee may each pursue any condemnation award to which it is entitled under applicable Laws. Sublessee shall share in any award or payment for the condemnation on a pro-rata basis based on a fraction, the numerator of which is the square footage of the Premises taken and the denominator which is the total square footage materially impacted by the condemnation (or deed in lieu), or a transfer in lieu of condemnation, as their interests may appear immediately prior to the date possession is taken by the condemning authority.
13.5 Ground Lease. All terms of this Section 13 are subject to the Ground Lessor’s rights and obligations under the Ground Lease.
14. Assignment and Subletting.
14.1 Except with the express prior written consent of the Sublessor, which consent may be withheld in Sublessor’s sole and absolute discretion, Sublessee shall not sublet the Premises or any portion thereof, or assign the Sublease or any portion thereof; provided, however, that Sublessee, without the need for Sublessor’s consent (but with prior notice to Sublessor), may assign this Sublease to a City agency or body, or to an entity, association or alliance created by the Sublessee specifically to manage parking garages owned or leased by the Sublessee.
14.2 Except as set forth in Section 12.9.1 above, Manager shall not assign or transfer this Agreement, in whole or in part, or subcontract or permit any other person or
{00329066;11} Page 15 - Evergreen/City Parking Sublease and Parking Management Agreement ATTACHMENT 1 persons to assume or carry out any of Manager’s obligations or assert the Manager’s rights under this Agreement without the prior written consent of the City which may be given or withheld in the City’s sole discretion; provided however, that neither a transfer resulting from the sale or other transfer of the Retail Component nor an assignment or transfer to, or the hiring of, a professional parking management company shall require the City’s consent.
15. Compliance with Ground Lease; Effect of Termination of Ground Lease
15.1 The Agreement is subject to all the terms and conditions of the Ground Lease to the extent such terms and conditions apply to the Premises. Sublessee shall not commit nor permit to be committed on the Premises any act or omission that would violate any term or condition of the Ground Lease. Sublessee shall not take any action or fail to take any action that will constitute a breach or default under the Ground Lease as its terms are applicable to the Premises.
15.2 Except for Sublessor’s obligations expressly set out in this Agreement, Sublessor has no obligation for the obligations of the Ground Lessor under the Ground Lease except that Sublessor agrees to make commercially reasonable efforts to enforce any material term of the Ground Lease against the Ground Lessor if the Ground Lessor fails to perform any such obligation under the Ground Lease. Sublessor covenants and agrees that during the Sublease Term, Sublessor shall fully perform all its material obligations under the Ground Lease and shall keep and maintain the Ground Lease in full force and effect, and shall not exercise any option to terminate the Ground Lease or fail to renew the term of the Ground Lease; provided, however, that notwithstanding the foregoing or any other term or provision of this Agreement, it shall not be a breach or default under this Agreement by Sublessor if the Ground Lease is terminated as a result of a Ground Lessor default.
15.3 If Sublessor exercises its option to purchase the Property pursuant to the Ground Lease, this Agreement will continue as a direct lease of the Premises, with the Sublessor as lessor, and the Sublessee as lessee. All references to the Ground Lease shall thereafter have no effect in this Sublease. If and after Sublessor exercises its option to purchase the Property, either the Sublessor or the Sublessee may prepare a restatement of this Sublease (“Restatement”) to evidence the operation of this subparagraph 15.3. If the Restatement is consistent with this Sublease as reasonably determined by each party, the parties shall execute the Restatement. Notwithstanding the other terms of this subparagraph, the parties’ failure to execute the Restatement shall not affect the rights or obligations of the parties under this Sublease.
16. Default.
16.1 Any of the following shall constitute an “Event of Default” by Sublessee under this Agreement:
16.1.1 Sublessee’s breach of Section 14 above.
16.1.2 Sublessee’s failure to comply with any other term or condition of this Agreement within thirty (30) days following written notice from Sublessor specifying the noncompliance; provided, however, that if such noncompliance cannot reasonably be cured within the thirty (30) day period, this provision shall be satisfied if Sublessee commences correction within such period and thereafter proceeds in good faith and with reasonable diligence to complete correction as soon as possible.
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16.1.3 If Sublessee commences a voluntary case under the federal bankruptcy laws or under any other federal or state law relating to insolvency or debtor’s relief; an involuntary bankruptcy is commenced against Sublessee by any person and is not dismissed within sixty (60) days; a decree or order for relief is entered against Sublessee in an involuntary case under the federal bankruptcy laws or under any other applicable federal or state Law relating to insolvency or debtor’s relief; there is appointed, or Sublessee consents to the appointment of, a receiver, trustee, or custodian of any of Sublessee’s assets or the assets of its general partner; or Sublessee makes a general assignment for the benefit of creditors.
16.2 Any of the following shall constitute an “Event of Default” by Sublessor under this Agreement:
16.2.1 Sublessor’s failure to comply with any term or condition of this Agreement within thirty (30) days following written notice from Sublessee specifying the noncompliance; provided, however, that if such noncompliance cannot reasonably be cured within the thirty (30) day period, this provision shall be satisfied if Sublessor commences correction within such period and thereafter proceeds in good faith and with reasonable diligence to complete correction as soon as possible.
16.2.2 If Sublessor commences a voluntary case under the federal bankruptcy laws or under any other federal or state law relating to insolvency or debtor’s relief; an involuntary bankruptcy is commenced against Sublessor by any person and is not dismissed within sixty (60) days; a decree or order for relief is entered against Sublessor in an involuntary case under the federal bankruptcy laws or under any other applicable federal or state Law relating to insolvency or debtor’s relief; there is appointed, or Sublessor consents to the appointment of, a receiver, trustee, or custodian of any of Sublessor’s assets or the assets of its general partner; or Sublessor makes a general assignment for the benefit of creditors.
17. Remedies.
17.1 Upon occurrence of an Event of Default as described in Section 16.1, Sublessor shall have the right to the following remedies, which are intended to be cumulative and in addition to any other remedies provided under applicable Law or under this Agreement:
17.1.1 Sublessor may at its option terminate this Agreement, and retake possession of the Premises without prejudice to its right to damages for Sublessee’s breach. In addition, Sublessor may exercise all of its rights and remedies under applicable Law.
17.1.2 Sublessor shall have an obligation to use commercially reasonable efforts to mitigate any damages caused by any breach or default by Sublessee.
17.2 Upon occurrence of an Event of Default as described in Section 16.2, Sublessee shall have the right to any remedies provided under applicable Law or under this Agreement, including, but not limited to, the right to compel Sublessor’s specific performance of this Agreement and the right to claim damages. Notwithstanding the foregoing, the City may terminate Manager’s operation and maintenance responsibilities associated with the Public Parking Garage upon an Event of Default related to the obligations
{00329066;11} Page 17 - Evergreen/City Parking Sublease and Parking Management Agreement ATTACHMENT 1 described in Sections 7 and 12 above. A termination of Manager’s operation and maintenance responsibilities and rights under this Agreement because of an Event of Default by Manager shall not prejudice any other remedy for breach of contract, damages or otherwise that the City has under this Agreement or applicable Laws and shall not result in a termination of the Sublease. In lieu of termination of the Manager, the City may require that Manager appoint a third party parking administrator with the authority to act on behalf of the Manager in fulfilling Manager’s obligations under this Agreement.
18. Damage or Destruction.
18.1 Sublessor’s Notice Obligation. If all or any material part of the Premises is destroyed or damaged in whole or in part by fire or other casualty of any kind, Sublessor shall give notice to the Sublessee immediately following such occurrence.
18.2 Insured Loss
18.2.1 If the Premises is destroyed or damaged in whole or in part by fire or other casualty and the cause of the damage is an insured event under the policy required pursuant to Section 11.1, then Sublessor shall promptly repair, alter, restore, replace, and rebuild (collectively “Restore”) the damaged portion of the Premises (and the Project, to the extent Restoring portions of the Project other than the Premises is required for Sublessee’s continued use of the Premises) to at least the functionally equivalent condition existing immediately prior to such occurrence (such repairs, alterations, restoration, replacements, and rebuilding are collectively referred to herein as “Restoration,” and the acts of such repairing, altering, restoring, replacing, and rebuilding are collectively referred to herein as “Restoring”).
18.2.2 The cost of Restoration shall be paid out of net insurance proceeds recovered by the Sublessor on account of such loss, using all the net insurance proceeds for Restoration. The amount of any deductible shall be paid by Sublessor.
18.2.3 If the insurance proceeds exceed the cost of Restoration, the excess shall be paid to Sublessor.
18.3 Uninsured Loss
18.3.1 If all or any part of the Premises is destroyed or damaged due to a cause which is not an insured event under the policies required pursuant to Section 11 then the Sublessor shall, within ninety (90) days of the loss, obtain one or more estimates of the cost of Restoring the damage (the “Damage Estimate”). If the Damage Estimate is $100,000.00 or less, the Sublessor shall fund the amount of the Damage Estimate, and Sublessor shall Restore the Premises. If the Damage Estimate exceeds $100,000.00 the Sublessor shall have sixty (60) days from the date of the Damage Estimate to give Sublessee written notice electing, in its sole discretion, whether or not to Restore the Premises at its sole cost and expense. If the Sublessor elects not to Restore, and the Damage Estimate exceeds $100,000.00, then, within sixty (60) days from the date it receives Sublessor’s notice of election not to Restore, Sublessee may elect in writing to:
18.3.2 Fund the Restoration, with a contribution of $100,000.00 from the Sublessor for Restoration costs;
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18.3.3 Continue Sublessee’s use of the Premises pursuant to this Agreement to the extent practicable without Restoration; or
18.3.4 Terminate this Agreement.
18.3.5 If the Sublessor or Sublessee elects to Restore then, this Agreement shall remain in force and effect but shall be suspended during the period of Restoration (except for the provisions applicable to Restoration), and Sublessor shall promptly Restore the Premises using funds to be provided by the Party electing to Restore. Upon Restoration, this Agreement will be automatically reactivated and continue for the balance of the Term.
18.4 Damage During Final Two Years. If any damage or destruction occurs to the Premises during the last two (2) years of the Sublease Term (whether the initial term or any extension term) and the cost to repair the damage exceeds One Hundred Thousand Dollars ($100,000.00), either Sublessor or Sublessee may terminate this Sublease upon giving the other party thirty (30) days written notice; provided, however, that if Sublessor notifies Sublessee that it wishes to terminate this Sublease, then Sublessee may, if it has not already done so, exercise its right to extend the term of this Sublease under Section 4 whereupon Sublessor’s election to terminate shall be null and void.
18.5 Sublessor's Right to Terminate. If the Building, Project or both is substantially damaged and Sublessor decides to demolish the Building, Project or both and not to replace the demolished improvement or improvements with a similar improvement or improvements, then Sublessor may terminate this Sublease within thirty (30) days after the date of such damage if it also terminates the leases of all other commercial and residential tenants in the Building.
18.6 No Termination. Except to the extent expressly provided in this Section 18, this Agreement shall not terminate by reason of damage to or total, substantial, or partial destruction of the Premises, for or due to any reason or cause whatsoever.
18.7 Ground Lease. All terms of this Section 18 are subject to the Ground Lessor’s rights and obligations under the Ground Lease.
19. Surrender; Holdover. On the expiration or early termination of this Agreement, Sublessee shall deliver all keys, access cards and/or key fobs to Sublessor and surrender the Premises swept, and free of debris and in the same condition as at the Possession Date, subject only to reasonable wear from ordinary use and Alterations permitted by the terms of this Agreement. If Sublessee fails to vacate the Premises when required, Sublessor may elect either (a) to treat Sublessee as a month-to-month tenant of the Premises, subject to the provisions of this Agreement except that any rights regarding extension of the term shall no longer apply and that Sublessor may charge and Sublessee shall be obligated to pay fair market rental value for the Premises commencing as of the date of such holdover, or (b) to pursue an action for forcible entry and unlawful detainer to the extent allowed by applicable Law. Manager shall have no management obligations under this Agreement during any period in which Sublessee is holding over in the Premises.
20. Sublessor Access. Sublessor shall have the right to inspect the Premises at any time to determine Sublessee’s compliance with this Agreement, to show the Premises to prospective purchasers or lenders, to allow performance of necessary services, maintenance,
{00329066;11} Page 19 - Evergreen/City Parking Sublease and Parking Management Agreement ATTACHMENT 1 and repairs or alterations to the Building or the Premises as allowed by other terms and provisions in this Agreement, or to post notices of non-responsibility. Such entry shall be at such times and in such manner as to minimize interference with the reasonable business use of the Premises by Sublessee. Sublessor may at any time during the last one hundred fifty (150) days of the Sublease Term, place in, on or about the Premises a professionally prepared “For Lease” sign.”
21. Sublessee’s Use of Common Areas; Association.
21.1 Sublessee shall have the non-exclusive right to use any and all appurtenances and easements benefiting the Premises and shall have the right of access to such portions of the Building and Project as are necessary to give Sublessee ingress to and egress from the Premises, including in, over and across walkways, stairwells, drive aisles and elevators, as delineated and attached to this Agreement as Exhibit C. Sublessee shall not allow any permanent or temporary obstruction of such access points to be constructed or placed in, on, written or about the Premises, Building, Project or any portion thereof.
21.2 Upon recordation of the Condominium Declaration and Plat, certain rights and obligations of the Sublessor under this Sublease shall be effectively assigned to and assumed by the Association pursuant to the Declaration to the extent they are not expressly assigned to the Retail Unit Owner in the Condominium Declaration. Specifically, the Association shall succeed to the following rights and obligations of Sublessor under this Sublease: (a) the Sublessor rights and obligations under Sections 13 and 18, to the extent any casualty affects the common elements of the Condominium; (b) the obligation to obtain and maintain certain insurance policies covering the common elements located within or comprising the Public Parking Garage, as such policies are required in Section 11 of this Sublease; (c) the obligation to maintain, repair, clean, and replace common elements of the Condominium (including but not limited to shared building systems, the Building’s windows, façade, roof, and elevators, as well as the Project grounds, landscaping and driveways) and any other common elements, to the extent that such responsibilities are not expressly assigned to the Retail Unit Owner pursuant to the terms of the Condominium Declaration; (d) the obligation to provide certain services for the remainder of the Project besides the Public Parking Garage, such as trash removal; and (e) any other obligations and rights necessary for the operation of the Condominium or the unit owners’ and Sublessee’s enjoyment of the Condominium to the extent expressly provided in this Sublease or as may be required under the Condominium Declaration and the Act, as the same may be amended or revised. The Association shall not be responsible for: (x) maintaining, repairing or replacing any part of the Retail Unit; (y) the management, inspection, or cleaning of the Public Parking Garage; or (z) providing security or otherwise operating the Public Parking Garage. The Association shall not have the authority to amend or assign the Sublease.
22. Non-Disturbance and Attornment.
22.1 If Sublessor loses its possessory right to the Building during the Sublease Term, Sublessor shall promptly provide Sublessee with written notice thereof.
22.2 If Sublessor’s interest in the Building is sold or otherwise transferred by Sublessor or any successor, Sublessee shall attorn to the purchaser or transferee and recognize it as the Sublessor under this Agreement, provided the purchaser or transferee assumes all obligations under this Agreement thereafter accruing.
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23. Notices. All notices given under this Agreement shall be in writing and shall be delivered, with all applicable postage or delivery charges prepaid, by personal delivery or messenger, by overnight courier service, or by certified United States Mail, return receipt requested, and addressed as follows: City: City of Lake Oswego 380 A Avenue Lake Oswego, OR 97034 Attn: City Manager
With a copy to: City of Lake Oswego 380 A Avenue Lake Oswego, OR 97034 Attn: City Attorney
Sublessor: Evergreen Group LLC 3330 N.W. Yeon, Suite 210 Portland, OR 97210 Attn: Patrick Kessi
With a copy to: Radler White Parks & Alexander LLP 111 SW Columbia St., Suite 1100 Portland, OR 97201 Attn: Dina Alexander
Notices shall be deemed received by the addressee upon the earlier of actual delivery or refusal of a party to accept delivery thereof; provided that notices sent by email shall deemed given on the date received if and only if delivered prior to 5:00 p.m. Pacific Time and if simultaneously sent by another means allowed hereunder. The addresses to which notices are to be delivered may be changed by giving notice of such change in address in accordance with this notice provision. Notices may be given by counsel to a party.
24. Governing Law; Venue; Jurisdiction. This Agreement shall be governed and construed according to the laws of the State of Oregon, without regard to its choice of law provisions. Any action or suit to enforce or construe any provision of this Agreement by either party shall be brought in the Circuit Court of the State of Oregon for Clackamas County or the Federal District Court located in Multnomah County, Oregon. The Circuit Court of the State of Oregon for Clackamas County or the Federal District Court located in Multnomah County shall have exclusive jurisdiction over all lawsuits brought by any party against any other party with respect to the subject matter of this Agreement, and each party hereby irrevocably consents to such exclusive jurisdiction and waives any and all objections it might otherwise have with respect thereto.
25. No Benefit to Third Parties. The City and Sublessor are the only parties to this Agreement and are the only parties entitled to enforce its terms. There are no third-party beneficiaries of this Agreement; provided that the tenants and other occupants of the Retail Component are express third-party beneficiaries of Section 12.6 above.
26. Time is of the Essence. Subject to the notice and cure periods set forth in Section 16, time is of the essence in the performance of and adherence to each and every provision of this Agreement.
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27. Non-waiver. Waiver by any party of strict performance of any provision of this Agreement shall not be deemed a waiver of or prejudice a party’s right to require strict performance of the same or any other provision in the future. A claimed waiver must be in writing and signed by the party granting a waiver. A waiver of one provision of this Agreement shall be a waiver of only that provision. A waiver of a provision in one instance shall be a waiver only for that instance, unless the waiver explicitly waives that provision for all instances.
28. Non-waiver of Government Rights. Subject to the terms and conditions of this Agreement, by making this Agreement, the City is specifically not obligating itself, or any other agency with respect to any police power or regulatory actions relating to development or operation of the Project, including, but not limited to, rezoning, variances, environmental clearances or any other governmental approvals which are or may be required. Notwithstanding the foregoing, the City agrees that it will not require more parking for the Retail Component than that required and approved through the City’s regulatory processes and that the Public Spaces shall count toward fulfillment of the City’s retail parking requirements.
29. Calculation of Time. Unless referred to as Business Days, all periods of time shall include Saturdays, Sundays, and Legal Holidays. However, if the last day of any period falls on a Saturday, Sunday, or Legal Holiday, then the period shall be extended to include the next day which is not a Saturday, Sunday, or Legal Holiday. “Business Days” shall mean Monday through Friday except Legal Holidays. “Legal Holidays” means any holiday observed by the State of Oregon.
30. Subordination and Attornment. This Agreement shall be subject to and subordinate to any mortgages, deeds of trust, ground lease, easements or land sale contracts (hereafter collectively referred to as “encumbrances”) now existing against the Building, including, but not limited to the Ground Lease, provided that Sublessor shall promptly obtain from Ground Lessor and any current or future lender on the Property a nondisturbance agreement in favor of Sublessee in commercially reasonable form reasonably acceptable to Sublessee. Sublessee shall execute such documents as may reasonably be requested by Sublessor or the holder of an encumbrance to evidence this subordination.
31. Estoppels. Either party, within ten (10) Business Days after notice from the other (but not more than twice in any rolling twelve (12) month period), will execute, acknowledge, and deliver to the other party a certificate certifying: (a) whether this Agreement has been modified and is in full force and effect (and, if modified, stating the nature of such modification and certifying that this Sublease, as so modified, is in full force and effect); (b) whether there are any modifications or alleged breaches by the other party (and, if there are modifications or alleged breaches, stating the nature of such modifications or breaches); and (c) any other facts that may reasonably be requested. Failure to deliver the certificate within the specified time shall be conclusive upon the party of whom the certificate was requested that this Agreement is in full force and effect and has not been modified except as may be represented by the party requesting the certificate. If requested by the holder of any encumbrance, Sublessee will agree to give such holder or Sublessor notice of and an opportunity to cure any default by Sublessor under this Sublease Lease.
32. Only Sublessor/Sublessee Relationship. Nothing contained in this Sublease shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent, partnership, joint venturer or any association between
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Sublessor and Sublessee. Sublessor and Sublessee expressly agree that neither the method of computation of rent nor any act of the parties hereto shall be deemed to create any relationship between Sublessor and Sublessee other than the relationship of Sublessor and Sublessee.
33. Prohibited Persons and Transactions. Sublessee represents and warrants to Sublessor that Sublessee is currently in compliance with and shall at all times during the Sublease Term (including any extension thereof) remain in compliance with the regulations of the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) and any statute, executive order (including Executive Order 13224, dated September 24, 2001 and entitled “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”), or other governmental action relating thereto.
34. Brokers. Sublessor and Sublessee each represent to the other that they have not dealt, directly or indirectly, in connection with the leasing of the Premises, with any broker or person entitled to claim a commission or leasing fees. Sublessor and Sublessee each shall indemnify and hold each other harmless from any loss, liability, damage, or expense (including without limitation reasonable attorneys' fees) arising from any claim for a commission or leasing fee arising out of this transaction made by a broker or person with whom such party has dealt.
35. Attorneys’ Fees. If a suit, action, or other proceeding of any nature whatsoever (including any proceeding under the U. S. Bankruptcy Code) is instituted in connection with any controversy arising out of this Agreement or to interpret or enforce any rights or obligations hereunder, the prevailing or non-defaulting party shall be entitled to recover its attorney, paralegal, accountant, and other expert fees and all other fees, costs, and expenses actually incurred and reasonably necessary, as determined by the court at trial or on any appeal or review, in addition to all other amounts provided by law. If either party is represented by in-house legal counsel, attorneys’ fees as described in this section shall include the value of the services provided by in-house counsel, which shall be calculated by applying an hourly rate commensurate with prevailing market rates charged by attorneys in private practice in the Portland, Oregon metropolitan area for such services.
36. Force Majeure. If either party shall be delayed or hindered in or prevented from the performance of any covenant, agreement, work, service, or other act required under this Sublease to be performed by such party (a “Required Act”), and such delay or hindrance is due to causes reasonably beyond its control such as riots, insurrections, martial law, civil commotion, war, fire, flood, earthquake, or other casualty or acts of God, then the performance of such Required Act shall be excused for the period of delay, and the time period for performance of the Required Act shall be extended by the same number of days in the period of delay.
37. Discrimination. Sublessor for itself and its successor and assigns, agrees that in performing its obligations under this Agreement, it will not discriminate against any employee or applicant for employment because of race, color, religion, age, gender, sexual orientation, disability or national origin.
38. Equal Employment Opportunity. Sublessor must comply with all applicable provisions of federal or state statutes and regulations and City ordinances concerning equal employment opportunities for persons engaged in the Project.
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39. Interpretation of Agreement. This Agreement is the result of arm’s-length negotiations among the parties and shall not be construed against any party by reason of its preparation of this Agreement.
40. Capacity to Execute; Mutual Representations. The parties each warrant and represent to the other that this Agreement constitutes a legal, valid, and binding obligation of that party. Without limiting the generality of the foregoing, each party represents that its governing authority and, in the case of the City, its City Council, has authorized the execution, delivery, and performance of this Agreement by it. The individuals executing this Agreement warrant that they have full authority to execute this Agreement on behalf of the entity for whom they purport to be acting. Each party represents to the other that neither the execution and delivery of the Agreement, nor the consummation of the transactions contemplated hereby will: violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, government agency, or court to which it is subject or any provision of its charter or bylaws; or conflict with, result in a breach of, or constitute a default under any other agreement to which it is a party or by which it is bound. No party needs to give any notice to, make any filing with, or obtain the consent of any other entity or person to consummate the transaction contemplated by this Agreement.
41. Waiver of Jury Trial. With respect to any litigation arising out of or in connection with this Sublease, Sublessor and Sublessee hereby expressly waive the right to a trial by jury.
42. Complete Agreement. This Agreement and the Exhibits constitute the entire agreement of the parties and supersede all prior written and oral agreements and representations with respect to the matters covered herein, and there are no implied covenants or other agreements between the parties except as expressly set forth in this Agreement. Neither Sublessor nor Sublessee is relying on any representation or warranty, whether express or implied, other than those expressly set forth herein.
43. Captions. The titles to the sections of this Agreement are descriptive only and are not intended to change or influence the meaning of any section or to be part of this Agreement.
44. Consent. Except where otherwise expressly provided in this Agreement, neither party may unreasonably withhold, condition, or delay its consent whenever that party’s consent is required under this Agreement.
45. Successors. Subject to Section 14 above, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
46. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by Law.
47. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and when taken together shall constitute one and the same instrument.
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48. Future Assurances. Each of the parties shall promptly execute and deliver such additional documents and shall do such acts that are reasonably necessary, in connection with the performance of their respective obligations under this Agreement so as to carry out the express intent of this Agreement.
49. Exhibits and Attachments. The exhibits to this Agreement are an integral part hereof and are fully incorporated into the body of this Agreement as if fully set forth herein.
50. Amendments. This Agreement may be modified only by a writing signed by the parties.
51. Recording of Memorandum of Agreement. The parties agree to execute, deliver and record at Closing a Memorandum of this Agreement in the form attached as Exhibit D.
52. Exhibits. The following Exhibits are attached hereto and incorporated as a part of this Agreement: Exhibit A - Depiction of Parking Component Exhibit B-1 - Depiction of Premises Exhibit B-2 Depiction of Tenant Spaces Exhibit C - Depiction of Common Areas/Elements Exhibit D - Memorandum of Sublease Agreement
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IN WITNESS WHEREOF, the duly authorized representatives of the parties have executed this Agreement as of the day and year first written above.
SUBLESSOR: Evergreen Group LLC, an Oregon limited liability company
By: W&K Evergreen LLC Its: Manager
By: PHK Enterprises LLC Its: Co-Manager
By: Patrick Kessi, Member
SUBLESSEE: City of Lake Oswego, Oregon, an Oregon municipal corporation
By: Scott Lazenby, City Manager
Approved as to form: City Attorney
By: David Powell
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EXHIBIT A Depiction of Parking Component
{00329066;11} Exhibit A ATTACHMENT 1
EXHIBIT A Depiction of Parking Component
{00329066;11} Exhibit A ATTACHMENT 1
EXHIBIT B-1 Depiction of Premises
{00329066;11} Exhibit B ATTACHMENT 1
EXHIBIT B-2 Depiction of Tenant Spaces
{00329066;11} Exhibit B ATTACHMENT 1
EXHIBIT C Depiction of Common Areas/Elements
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EXHIBIT D Memorandum of Sublease Agreement
AFTER RECORDING RETURN TO:
Radler White Parks & Alexander LLP 111 SW Columbia Street, Suite 1100 Portland, OR 97201 Attn: Dina E. Alexander
UNTIL A CHANGE IS REQUESTED, SEND ALL TAX STATEMENTS TO:
No Change.
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
MEMORANDUM OF SUBLEASE OF PUBLIC PARKING AND PARKING FACILITY MAINTENANCE AND OPERATION AGREEMENT (BLOCK 137)
Sublessor: Evergreen Group LLC Sublessee: City of Lake Oswego 3330 NW Yeon, Suite 210 380 A Avenue Portland, OR 97210 Lake Oswego, OR 97034
Sublessor is the ground lessee of the real property described on the attached Exhibit A (the “Property”). Pursuant to a Sublease of Public Parking and Parking Facility Maintenance and Operation Agreement (Block 137) of even date herewith (the “Sublease”), Sublessor leases a portion of the Property to Sublessee for public parking. The Sublease has an initial term of seventy-five (75) years. Sublessee has the right, at its option, to extend the initial term of the Sublease for two (2) renewal terms of ten (10) years each.
This Memorandum is entered into by and between Sublessor and Sublessee and shall be recorded in the official records of Clackamas County, Oregon for the purpose of giving notice of the Sublease. In the event that there is any conflict between the provisions of this Memorandum and the Sublease, the provisions of the Sublease shall control.
[Signature Page(s) Follow]
{00329066;11} Exhibit D
ATTACHMENT 1
This Memorandum is executed as of ______2014.
SUBLESSOR: EVERGREEN GROUP LLC, an Oregon limited liability company
By: W&K Evergreen LLC, an Oregon limited liability company Its: Manager
By: PHK Enterprises LLC, an Oregon limited liability company Its: Member
By: Patrick Kessi, Member
STATE OF OREGON ) ) ss. County of )
The foregoing instrument was acknowledged before me on ______, 20__, by Patrick Kessi, the member of PHK Enterprises LLC, the member of W&K Evergreen LLC, the manager of Evergreen Group LLC, an Oregon limited liability company, on behalf of said limited liability company.
Notary Public for Oregon My commission expires:
[Signatures Continued on Following Page]
{00329066;11} Exhibit D
ATTACHMENT 1
SUBLESSEE: CITY OF LAKE OSWEGO, OREGON, an Oregon municipal corporation
By: Printed Name: Title:
Approved as to form: City Attorney
By: Printed Name:
STATE OF OREGON ) ) ss. County of ) The foregoing instrument was acknowledged before me on ______, 20__, by ______as ______of the City of Lake Oswego, Oregon, an Oregon municipal corporation, on behalf of said municipal corporation.
Notary Public for Oregon My commission expires:
{00329066;11} Exhibit D
ATTACHMENT 1
EXHIBIT A
Property Legal Description
All of Block 137, Extension of the Oregon Iron & Steel Company’s First Addition to Lake Oswego, recorded as Plat No. 93, in the County of Clackamas and State of Oregon.
TOGETHER WITH all of that certain unnamed alleyway now vacated running Northerly and Southerly through said Block.
{00329066;11} Exhibit D
ATTACHMENT 2
AFTER RECORDING, RETURN TO:
Radler White Parks & Alexander LLP 111 SW Columbia Street, Suite 1100 Portland, OR 97201 Attn: Dina Alexander
PUBLIC ACCESS PEDESTRIAN EASEMENT
THIS PUBLIC ACCESS PEDESTRIAN EASEMENT (this “Agreement”) is granted and made this ______day of ______, 2015, by and between EVERGREEN GROUP LLC, an Oregon limited liability company, or its assignee (“Grantor”), and the CITY OF LAKE OSWEGO, a municipal corporation of the State of Oregon (“Grantee”).
RECITALS
A. Pursuant to that certain Ground Lease and Option Agreement dated ______, between Grantor, as ground lessee, and Wizer Properties, LLC, as ground lessor, Grantor is the ground lessee of that tract of real property located in the City of Lake Oswego, Oregon (“City”), more particularly described on the attached Exhibit A (“Block 137”). Developer wishes to construct a significant mixed-use project on Block 137. The development to occur on Block 137 is referred to in this Agreement as the “Project.”
B. Grantor and Grantee are parties to that certain Block 137 Project Development Agreement dated August 13, 2013, as amended by that First Amendment to Block 137 Project Development Agreement dated December 5, 2013, Second Amendment to Block 137 Project Development Agreement dated February 6, 2014, Third Amendment to Block 137 Project Development Agreement dated April 10, 2014, Fourth Amendment to Block 137 Project Development Agreement dated June 9, 2014, Fifth Amendment to Block 137 Project Development Agreement dated September 15, 2014, and Sixth Amendment to Block 137 Project Development Agreement dated ______, 2014 (collectively, the “Development Agreement”), which memorializes the parties’ understandings of their respective roles and commitments in the development of the Project.
C. Pursuant to the Development Agreement, but subject to the terms hereof, Grantor seeks to execute this Agreement to grant to the public a pedestrian access easement over and across the portion of Block 137 more particularly described on Exhibit B attached hereto (the “Easement Area”). The Easement Area is depicted on Exhibit C attached hereto.
D. Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Development Agreement.
AGREEMENT
1. Grant of Easement. Grantor hereby grants to Grantee a perpetual non-exclusive easement over the Easement Area (the “Easement”) for the sole purpose of providing the public
{00199519;9} 1
ATTACHMENT 2 non-vehicular access and use of the Easement Area on the terms and conditions set forth herein and subject to all prior encumbrances of record.
2. Scope and Restrictions.
2.1. The Easement Area is not a traditional public forum and it is not Grantor’s intent to open or create a public forum in the Easement Area covered by this Agreement.
2.2. Grantee and the public shall have the right to use the Easement Area solely for pedestrian access. The terms of public use of the Easement Area will be as required by rules of use established by the Grantee (“Rules”), provided that such Rules will at a minimum exclude the following activities in the Easement Area unless approved in writing by the Grantor (which may be withheld in Grantor’s sole and absolute discretion): (a) driving any motorized vehicle in or through the Easement Area except vehicles in use for installation, maintenance or repair of the Easement Area or Public Art; (b) parking any motorized or non-motorized vehicles in the Easement Area, except vehicles in use for installation, maintenance or repair of the Easement Area or Public Art; (c) bicycling (or similar modes of transportation) in or through the Easement Area; (d) skating, rollerblading, or skateboarding (or similar activities) on or through the Easement Area; (e) disposing, dumping, or otherwise storing any materials, refuse, garbage or other waste on or under the Easement Area, other than in containers placed in the Easement Area for such purpose; (f) using any firearms, alcohol or illegal substances within the Easement Area; (g) consuming alcohol in the Easement Area except by restaurants with outdoor seating areas located in the Easement Area operating in compliance with all applicable laws; or (h) engaging in any commercial activities except for Sidewalk Cafes and Displays allowed under applicable law. Without limiting the generality of the preceding sentence, and except as required by applicable law, and except for placement of Public Art pursuant to Section 7 below, no temporary or permanent structures or improvements of any kind (including, without limitation, toilets, picnic tables or trash receptacles) shall be placed in, on or about the Easement Area without the prior written consent of Grantor, which consent may be withheld in Grantor’s sole and absolute discretion. Nothing contained herein shall be deemed to grant Grantee or the public any right of access to any area on Block 137 outside of the Easement Area. Notwithstanding anything to the contrary in this Section 2.2, Grantor’s prior written consent shall not be required for access to the Easement Area by emergency vehicles.
2.3. The public shall have access to the Easement Area during, at a minimum, the hours the Public Parking is open to the public. Grantor and Grantee may agree to other hours of access each exercising its sole discretion.
2.4. Grantee shall have the sole right to authorize and to issue permits allowing businesses abutting the Easement Area to place tables, chairs or other forms of seating in the Easement Area for customers to consume food or beverages prepared or sold by the business (“Sidewalk Cafes”), or to place in the Easement Area displays of merchandise or other items sold by the business (“Sidewalk Displays”). Grantee may, by rule or ordinance, establish and amend standards and criteria for operating Sidewalk Cafes or Displays, and for issuing, denying or revoking permits.
3. Reservation of Rights to Use Easement Area. Grantor retains the right to use the Easement Area for all purposes that do not conflict with Grantee’s use thereof as provided by this Agreement. Without limiting the generality of the foregoing, Grantor reserves the right: (a) to install the initial sidewalks, pavement, landscaping and similar or related improvements on the surface of the Easement Area, in compliance with applicable laws and, after installation
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ATTACHMENT 2 of the initial improvements in the Easement Area, to repair, maintain, alter or replace such improvements; provided, that Grantor shall provide to Grantee prior notice of any material alterations to be made to the Easement Area; (b) to all subsurface areas of the Easement Area and all air spaces above the Easement Area; and (c) to allow utility lines to be installed under, through, and within the Easement Area and for such lines to be repaired, maintained, altered or replaced. Grantee shall not damage or cause interference with the operation of any improvements or facilities now existing or in the future installed by or at the direction of Grantor. Grantee shall have no claim for interference with its rights hereunder arising from any temporary interference or temporary closure of the Easement Area necessary to conduct the activities described in this Section 3 and in Sections 5 and 6 below, or activities required by law.
4. Signage; Security.
4.1. Grantor shall provide any and all required signage (or signage reasonably desired by Grantor) to regulate the public use of the Easement Area consistent with the Rules and other limitations in this Agreement. All such signage shall be subject to Grantee’s prior written review and approval, which review and approval shall be limited to ensuring consistency with the Rules and the terms of this Agreement. Grantee does not waive any regulatory jurisdiction over content, design or placement of the signage.
4.2. Grantor reserves the right (but shall have no obligation whatsoever) to provide security services within the Easement Area, including, without limitation, enforcement of the terms and provisions of this Agreement and the Rules, as Grantee promulgates from time to time in accordance with Section 2.2 above regarding the use of the Easement Area. If there is any conflict between the Rules and the terms of this Agreement, the terms of this Agreement shall control. Grantee shall inform Grantor of any Rules proposed for the Easement Area at least twenty (20) days in advance of their proposed application. Grantee reserves its police power and shall enforce the Rules in compliance with applicable law and in a manner consistent with the City’s enforcement of laws, rules and regulations in public plazas and public parks.
5. Closures.
5.1. Compliance with Laws and Safety. Public use of the Easement Area shall be in strict compliance with all applicable laws and the Rules. Grantor reserves the right to close the Easement Area to public use or to exclude or remove members of the public from the Easement Area: (a) during hours when the Easement Area is not open to the public; (b) if Grantor determines, in its sole discretion, that an emergency situation exists, for the duration of the emergency; and (c) during a reasonable period necessary for Grantor to complete any construction, repair, alterations or maintenance of or within the Easement Area. Grantor and Grantee agree to work together cooperatively and in good faith to efficiently and effectively resolve any and all recurring problems within the Easement Area.
5.2. Special Events. In addition to Grantor’s rights set forth in Section 5.1, above, Grantor may temporarily close the Easement Area for private events or activities that will be held on the Easement Area. Closure under this Section 5.2 will occur no more frequently than two (2) times during any calendar year and for a period of not more than six (6) hours for each event. Grantor shall give the Grantee written notice of a proposed special event closure at least ten (10) days before the closure. Grantor shall indemnify, defend (with counsel selected by Grantee and reasonably acceptable to Grantor) and hold Grantee and its successors and assigns, and their respective directors, officers, employees and agents,
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ATTACHMENT 2 harmless from and against all actual or threatened claims, demands, losses, damages, liabilities, liens, fines, penalties, charges, administrative and judicial proceedings and orders, or judgments to the extent directly or indirectly arising out of, or resulting from, the use of the Easement Area by Grantor (and its officers, agents and employees) for private events or activities allowed under this Section 5.2.
6. Maintenance, Repair and Replacement. Grantor shall be responsible, without cost or liability to the Grantee, for all maintenance, repair or replacement of improvements placed in, on or about the Easement Area, except the Public Art, which shall be maintained, repaired and replaced by the City at no cost to Grantor. Notwithstanding anything to the contrary set forth in this Agreement, the City, at no cost to Grantor, shall be responsible to repair any and all damage to the Easement Area or the Project caused by the installation, repair, maintenance or replacement of the Public Art.
7. Public Art. Grantor hereby grants to Grantee a license to install, maintain, repair and replace objects of art (as defined by the Grantee) in the Easement Area (“Public Art”). During installation or maintenance and repair or replacement of the Public Art (each a “Public Art Activity” and together, “Public Art Activities”), Grantee may require the Easement Area to be temporarily closed to all users. The Public Art will be installed in the locations shown on Exhibit D. Grantor and Grantee may agree to alter the location of the Public Art, each exercising its reasonable discretion in consideration of the other uses in the Easement Area, but if the parties do not agree to alternate locations, Grantee may maintain the Public Art in the locations shown on Exhibit D. The Public Art content shall be chosen by the Grantee in Grantee’s sole discretion. Not less than sixty (60) days before the proposed Public Art Activity, Grantee shall give Grantor written notice, including the dates, scope and location of the Public Art Activity and notifying the Grantor of the time during which the Easement Area will be temporarily closed for such Public Art Activity. Grantor shall have no claim for interference with its rights hereunder arising from any interference or temporary closure of Easement Area in connection with the Public Art Activities. Grantor does not own and shall have no obligations or responsibilities related to the Public Art.
8. Liens. Grantee shall not permit any claim, lien or other encumbrance arising from Grantee’s use of the Easement Area to accrue against or attach to the Easement Area or the interest of Grantor (or the fee owner) in adjacent lands.
9. Indemnity. Subject to the Oregon Constitution and Oregon Tort Claims Act, Grantee shall indemnify, defend (with counsel selected by Grantor and reasonably acceptable to Grantee), and hold Grantor and its successors and assigns, and their respective directors, officers, employees and agents, harmless from and against all actual or threatened claims, demands, losses, damages, liabilities, liens, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, enforcement actions of any kind, and all costs and expenses (including attorneys’ fees) to the extent directly or indirectly arising out of, or resulting from the acts or omissions of Grantee’s officers, employee and agents pursuant to this Easement. In no event shall Grantee be obligated to indemnify Grantor from any claim, demand, loss, damage, liability, lien, fine, penalty, charge, administrative and judicial proceeding and order, judgment, enforcement action of any kind to the extent arising from the acts or omissions of Grantor or its respective officers, agents, or employees.
10. Insurance. Grantor acknowledges the Grantee is insured through a member-owner mutual risk pool administered by a trust formed by the League of Oregon Cities and the Association of Oregon Counties. Upon execution of this Easement, the Grantee shall provide
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ATTACHMENT 2
Grantor with a certificate of insurance for liability to persons and for property damage with coverage limits of at least Two Million Dollars ($2,000,000.00) per occurrence and Five Million Dollars ($5,000,000.00) in the aggregate. Such insurance shall be maintained throughout the term of this Agreement.
11. Default. A party’s failure to comply with any term or condition of this Agreement within thirty (30) days following written notice from the other party specifying the noncompliance shall constitute a default hereunder; provided, however, that if such noncompliance cannot reasonably be cured within the thirty (30) day period, this provision shall be satisfied if the defaulting party commences cure within such period and thereafter proceeds in good faith and with reasonable diligence to complete the cure as soon as possible.
12. Runs with the Land. This Agreement shall run with Block 137 and shall be binding on the current and all future owners of Block 137, their heirs, successors and assigns, and all persons and parties claiming through Grantor.
13. Intended Beneficiaries. This Agreement is intended to benefit Block 137 and is also intended to benefit the Grantee by assuring that the Easement Area is available for pedestrian access by the public, consistent with the Development Agreement (but subject to the terms and conditions hereof).
14. Amendment. This Agreement may be amended in writing upon mutual agreement of Grantor and Grantee.
15. Recordation. Grantor shall record this Agreement in the real property of Clackamas County, Oregon.
16. Partial Invalidity. If any provision of this Agreement or the application thereof to any person or circumstance shall to any extent be held invalid, then the remainder of this Agreement or the application of such provision to persons or circumstances other than those as to which it is held invalid shall not be affected thereby, and each provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
17. Integration. This Agreement constitutes the complete agreement of the parties with respect to the subject matter of this Agreement, and supersedes and replaces all prior oral and written agreements.
18. Notices. All notices given under this Agreement shall be in writing and shall be delivered, with all applicable postage or delivery charges prepaid, by personal delivery or messenger, by overnight courier service, or by deposit in the United States Mail, as certified mail, return receipt requested, and addressed as follows:
Grantee: City of Lake Oswego 380 A Avenue Lake Oswego, OR 97034 Attn: City Manager
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ATTACHMENT 2
With a copy to: City of Lake Oswego 380 A Avenue Lake Oswego, OR 97034 Attn: City Attorney
Grantor: Evergreen Group LLC 3330 N.W. Yeon, Suite 210 Portland, OR 97210 Attn: Patrick Kessi
With a copy to: Radler White Parks & Alexander LLP 111 SW Columbia St., Suite 1100 Portland, OR 97201 Attn: Dina Alexander
Notices shall be deemed received by the addressee upon the earlier of actual delivery or refusal of a party to accept delivery thereof; provided that notices sent by email shall be deemed given on the date received if and only if delivered prior to 5:00 p.m. Pacific Time and if simultaneously sent by another means allowed hereunder. The addresses to which notices are to be delivered may be changed by giving notice of such change in address in accordance with this notice provision. Notices may be given by counsel to a party on behalf of such party.
19. No Dedication. Nothing contained herein shall be deemed to be a gift or dedication of any portion of the Easement Area to or for the general public.
20. Counterparts. This Agreement may be executed in counterparts, which when taken together shall constitute one original.
[Remainder of page intentionally left blank. Signature pages follow.]
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ATTACHMENT 2
IN WITNESS WHEREOF, Grantor has executed this Agreement on the date stated above.
GRANTOR: EVERGREEN GROUP LLC, an Oregon limited liability company
By: W&K Evergreen LLC, its Manager
By: PHK Enterprises LLC, its Co-Manager
By:______Patrick Kessi, Member
STATE OF OREGON ) )ss. County of ______)
The foregoing instrument was acknowledged before me on this ___ day of ______, 2015, by Patrick Kessi, as member of PHK Enterprises LLC, as the co-manager of W&K Evergreen LLC, as the manager of EVERGREEN GROUP LLC, an Oregon limited liability company, on behalf of the limited liability company.
Notary Public for Oregon Printed Name: My Commission Expires:
[Seal or Stamp]
[Remainder of page intentionally left blank. Grantee’s signature page follows.]
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ATTACHMENT 2
GRANTEE: CITY OF LAKE OSWEGO, a municipal corporation of the State of Oregon
By: Printed Name: Scott Lazenby Title: City Manager
APPROVED AS TO FORM:
City Attorney
By: Printed Name: David Powell Title: City Attorney
STATE OF OREGON ) ) ss County of ______)
The foregoing instrument was acknowledged before me on this ___ day of ______, 2015, by ______, as ______of the CITY OF LAKE OSWEGO, a municipal corporation of the State of Oregon.
Notary Public for Oregon Printed Name: My Commission Expires:
[Seal or Stamp]
[Remainder of page intentionally left blank. Exhibits follow.]
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As fee owner of the land underlying the Project, the undersigned hereby acknowledges and consents to the Agreement, including the Public Access Pedestrian Easement, and the recording of the Agreement and the easement as an encumbrance on Block 137.
WIZER PROPERTIES LLC, an Oregon limited liability company
By:
Printed Name:
Title:
STATE OF OREGON ) )ss. COUNTY OF )
The foregoing instrument was acknowledged before me this _____ day of ______, 2015, by ______, as ______of WIZER PROPERTIES LLC, an Oregon limited liability company, on behalf of the limited liability company.
Notary Public for Oregon Printed Name: My Commission Expires:
[Seal or stamp]
[Remainder of page intentionally left blank. Exhibits follow.]
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EXHIBIT A Legal Description of Block 137
All of Block 137, Extension of the Oregon Iron & Steel Company’s First Addition to Lake Oswego, recorded as Plat No. 93, in the County of Clackamas and State of Oregon,
TOGETHER WITH all of that certain unnamed alleyway now vacated running Northerly and Southerly through said Block.
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EXHIBIT B Legal Description of Easement Area
[To be Attached Prior to Execution]
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EXHIBIT C Depiction of Easement Area
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EXHIBIT D Depiction of Location of Public Art
[To be Attached Prior to Execution]
{00199519;9}
TO: Kent Studebaker, Mayor Members of the City Council
FROM: Brant Williams, Redevelopment Director
SUBJECT: Agreement with Cushman & Wakefield for Disposition Services for Selling the West End Building Property
DATE: December 11, 2014
ACTION
Authorize the City Manager to sign an agreement with Cushman & Wakefield to provide disposition services for selling the West End Building property.
BACKGROUND/ DISCUSSION
A goal of the City Council is to sell the West End Building. Over the past couple years, two prospective buyers have approached the City to purchase the property. Purchase and sale agreements were signed, but in both cases, the buyers were unable to perform. The City Council has directed staff to hire a professional real estate firm to market the property to a broad range of potential buyers with the intention of selling the property sometime this next year.
A request for proposals to perform disposition services for the WEB was sent to major commercial real estate firms in the Portland area. Eleven firms submitted proposals. An evaluation and selection committee comprised of City staff and a local real estate professional narrowed down the list to three firms to interview. The three firms being CBRE, Newmark Grubb Knight Frank, and Cushman & Wakefield. While all are highly qualified national firms, the selection committee unanimously selected Cushman & Wakefield based on their local experience, the expertise of the team, and their approach for marketing the property. Cushman & Wakefield expects to market the property over the next couple months, ask prospective buyers to submit bids for the property, then work with the City to narrow down the list to one preferred buyer to negotiate a final purchase and sale agreement. The goal is to close on or before June 30, 2015.
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 2
The agreement with Cushman & Wakefield to perform disposition services for the WEB is found in Attachment 1. Key terms of the agreement are: The City will pay Cushman & Wakefield a commission of 1.5% upon closing If the buyer of the property is represented by another realtor, the City will pay Cushman & Wakefield a commission of 2.25%, which will be shared with the other realtor. A partial commission exclusion clause is included should the City decide to sell the property to The Great Tomorrow or any other entity controlled by Nick Bunick. The specific terms of this partial exclusion include paying no commission to Cushman & Wakefield should the City sell the property to The Great Tomorrow on or before January 15, 2015. Should this happen, the City will reimburse Cushman & Wakefield for any out‐ of‐pocket marketing expenses. Should the City sell to The Great Tomorrow from January 16, 2015 to April 15, 2015, the City will pay Cushman & Wakefield one‐half the commission or 0.75%. If the City sells to The Great Tomorrow after April 15, 2015, Cushman & Wakefield will receive the full commission of 1.5%.
RECOMMENDATION
Staff recommends that the City Council authorize the City Manager to sign an agreement with Cushman & Wakefield to provide disposition services for selling the West End Building property.
ATTACHMENT
1. Personal Services Contract with Cushman & Wakefield of Oregon for Disposition Services for the West End Building Property Located at 4101 Kruse Way
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
CITY OF LAKE OSWEGO Personal Service Contract
Disposition Services for the West End Building Property Located at 4101 Kruse Way
Contractor: Cushman & Wakefield of Oregon, Inc. Date of December 17, 2014 Contract: Mailing 200 S.W. Market Street Date of June 30, 2015 Address: Suite 200 Completion: Portland, OR 97201-5730
WITNESSETH:
Contractor and the City of Lake Oswego, a municipal corporation, mutually covenant and agree to and with each other as follows:
1. SCOPE OF WORK AND CONTRACT DOCUMENTS. The Contractor shall perform the work as outlined in this Contract. The contract documents shall consist of, and any conflicts shall be resolved in the following priority:
A. This Contract; B. The City of Lake Oswego Standard Public Contract Provisions, which are attached and hereby incorporated by reference; C. The exhibit to this Contract in the following order of priority: Exhibit A: Exclusive Listing Agreement – Sale Transaction
This contract shall supersede any prior representation or contract, written or oral.
2. DURATION OF CONTRACT. This Contract shall become effective on the date this Contract has been signed by every party hereto. Contractor acknowledges that no work has been or will be performed for the project under this Contract until this Contract is fully executed and effective. Contractor shall complete performance of this contract on or before the Date of Completion stated above.
3. PAYMENT.
A. Amount of Payment. Contractor shall be compensated for all goods, materials, expenses, and services according to the “Schedule of Commissions for Sale” as stated in Exhibit A.
B. Manner of Payment. Payment shall be due to the Contractor as stated in attached Exhibit A.
Page 1 – Personal Service Contract
C. Taxpayer Identification Report. No payment shall be due to the Contractor until the Contractor has submitted to the City’s Finance Department IRS Form W-9 Request for Taxpayer Identification and Certification (http://www.irs.gov/pub/irs-pdf/fw9.pdf).
4. TIME IS OF THE ESSENCE. Contractor agrees that time is of the essence under this Contract.
5. TERMINATION.
A. Parties' Right to Terminate. This Contract may be terminated at any time by mutual written consent of the parties.
B. City’s Right to Terminate. City may, at its sole discretion, terminate this Contract, in whole or in part, immediately upon notice to Contractor.
C. Contractor’s Remedies upon Termination for Convenience. In the event of termination of this Contract by the City for reasons other than Contractor’s material breach or default of any covenant, warranty, obligation or agreement under this Contract, or failure to perform the work under this Contract, Contractor's sole remedy shall be a claim for any amounts that would be due under the terms of Section 5 of Exhibit A, “Commission,” if the Contract had expired at the end of its term, subject to Contractor’s obligations under that section.
D. Contractor's Tender upon Termination. Upon receiving a notice of termination of this Contract, Contractor shall immediately cease all activities under this Contract, unless Public Contracting Officer expressly directs otherwise in such notice of termination.
Upon termination of this Contract, Contractor shall deliver to Public Contracting Officer all documents, information, works-in-progress and other property that are or would be deliverables had the Contract been completed. Upon Public Contracting Officer's request, Contractor shall surrender to anyone Public Contracting Officer designates, all documents, research or objects or other tangible things needed to complete the work.
6. INSURANCE. The Contractor will not perform any work under this contract until the City has received copies of applicable insurance policies or acceptable evidence that the insurance indicated as required in subsection D below is in force.
A. Scope of Insurance. The Contractor shall obtain prior to the commencement of the Contract, and shall maintain in full force and effect for the term of this contract, at the Contractor's expense, the policies indicated below in subsection D for the protection of the Contractor. The Contractor shall not undertake any acts that shall affect the coverage afforded by the above policy. If the insurance policy is issued on a “claims made” basis, then the Contractor shall continue to obtain and maintain coverage for not less than three years following the completion of the contract.
Page 2 – Personal Service Contract
If no automobile liability insurance policy is required in subsection D, Contractor expressly acknowledges and agrees that City is not providing any automobile insurance to Contractor and that as to the City and any third parties, Contractor bears sole liability for claims, damages, injury (including death) and losses, arising out of or resulting from Contractor's operation of Contractor's automobile or any other automobile, whether or not such use is related to Contractor's work under this contract, and Contractor shall make no claim against the City for any claim, damage, injury, or loss resulting thereby.
B. Coverage Amount. The policies shall be issued by a company authorized to do business in the State of Oregon, protecting the Contractor or subcontractor or anyone directly or indirectly employed by either of them against liability for the loss or damage of personal and bodily injury, contractual liability, death and property damage, and any other losses or damages above mentioned with limits not less than as stated in subsection D below or the limit of public liability contained in ORS 30.260 to 30.300 for any policy, whichever is greater.
C. Certificate of Insurance / Additional Insured Endorsement. The Contractor shall cause the insurance company to provide the City with: (i) a certificate of insurance and, (ii) if an additional insured endorsement is indicated as required in subsection D below, an endorsement thereto naming the City, its officers, agents, and employees as an additional primary insured for those policies indicated above. The Contractor shall provide the City written notice of cancellation or material modification of the insurance contract for not less than the following notice for the purposes stated: 30 days prior notice for reasons other than non-payment; 10 days prior notice for non-payment.
The Contractor shall further cause a certificate of insurance to be issued every 6 months by the Contractor’s insurance company or companies during the term of the Work, to assure that the required insurance is maintained.
D. Insurance Policy Requirements.
Required? Type of Insurance Minimum Coverage City named as Additional Insured Yes Comprehensive general $1,500,000 per occurrence and Yes or commercial general $3,000,000 in the aggregate liability No Protection and $2 million per accident Yes Indemnity US L&H $2 million per person per accident Yes Automobile liability $1,500,000 per occurrence-combined Yes single limit or $1,500,000 bodily injury and $1,000,000 property damage Yes Professional liability $2,000,000 per claim No
Page 3 – Personal Service Contract
Required? Type of Insurance Minimum Coverage City named as Additional Insured Yes Workers Compensation Statutory Coverage No Employer’s Liability $1 million per person per accident Or ______[______] Contractor Contractor warrants and represents contractor No (if Initial if Exempt from does not employ any persons that would require initialed) Worker Comp Coverage contractor to provide workers compensation insurance benefits. * The amounts may be achieved by a combination of base coverage and umbrella coverage.
CUSHMAN & WAKEFIELD OF OREGON, INC. CITY OF LAKE OSWEGO, an Oregon Municipal Corporation
By:______Name: Susan M. Iggulden ______Title: Director Scott Lazenby, City Manager
Date: ______Date: ______Public Contracting Officer Check one: 380 A Avenue ___ Sole Proprietor PO Box 369 ___ Partnership Lake Oswego, OR 97034 _X__ Corporation ___ Limited Liability Company ___ Limited Liability Partnership Date Authorized by Council, if applicable: ___ Other: ______. Domicile, if other than Oregon:______
APPROVED AS TO FORM:
______Evan P. Boone, Deputy City Attorney Ver. 1410
Page 4 – Personal Service Contract
CITY OF LAKE OSWEGO STANDARD PUBLIC CONTRACT PROVISIONS FOR PERSONAL SERVICE / SERVICE CONTRACT (3/13)
The following City of Lake Oswego Standard Public Contract the City, which City may withhold without cause. In addition to provisions are made a part of the Contract between City and any other provisions PCO may require, Contractor shall include in Contractor by reference. Where the Lake Oswego Redevelopment any permitted subcontract under this Contract a requirement that Agency (LORA) is the contracting party, “City” shall refer to LORA the subcontractor be bound by the following sections of this Contract as if the subcontractor were the Contractor: Independent CHANGES Contractor Status; Other Contractors; Hours of Labor; Ownership This contract, including all attachments and exhibits of Work; Indemnity and Hold Harmless; Records; Attorney Fees; annexed hereto, shall not be subject to modification or amendment Compliance with Laws. PCO's consent to any subcontract shall not except in writing, executed by both parties. This contract and any relieve Contractor of any of its duties or obligations under this substantive changes to the scope of work or changes to the contract Contract. costs will not be effective until approved in writing by the City’s This contract is not assignable by the Contractor, either Public Contracting Officer (PCO). whole or in part, unless Contractor has obtained the prior written consent of the City. INDEPENDENT CONTRACTOR STATUS City and Contractor are the only parties to this Contract The Contractor agrees and certifies that: and are the only parties entitled to enforce its terms. Nothing in A. The Contractor is engaged as an independent this Contract gives, is intended to give, or shall be construed to contractor. Although the PCO reserves the right (i) to determine give or provide any enforceable benefit or right, whether directly, (and modify) the delivery schedule for the Work to be performed indirectly or otherwise, to third persons. and (ii) to evaluate the quality of the completed performance, City cannot and will not control the means or manner of Contractor's HOURS OF LABOR performance, nor provide any tools or equipment for the For those employees of Contractor covered or subject to performance of the Work, except as provided elsewhere in this Oregon employment laws, the Contractor shall pay employees for Contract. Contractor is responsible for determining the overtime work performed under the public contract in accordance appropriate means and manner of performing the Work. with ORS 653.010 to 653.261 and the Fair Labor Standards Act of B. Contractor shall be responsible for all federal or state 1938 (29 USC 201 et seq.). taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, City will not withhold from such compensation or REPRESENTATIONS AND COVENANTS payments any amount(s) to cover Contractor's federal or state tax A. Contractor's Representations. Contractor represents and obligations. covenants to City that: C. The Contractor will not, on account of any (1) Contractor has the power and authority to enter into payments made under this contract, be eligible for any benefit and perform this Contract, from federal social security, workers' compensation, (2) This Contract, when executed and delivered, shall be unemployment insurance, or the Public Employee's Retirement a valid and binding obligation of Contractor enforceable in System, except as a self-employed individual; accordance with its terms, and if Contractor is a partnership, D. Contractor is not currently an employee of the corporation or other form of business entity, this contract was federal government or the State of Oregon; and duly approved and executed pursuant to authority of the E. The Contractor is not a contributing member governing body or parties of the Contractor, of the Public Employee's Retirement System. (3) Contractor is not in violation of any Oregon tax laws. F. Contractor is not an "officer," "employee," or (4) Contractor shall, at all times during the term of this "agent" of the City, as those terms are used in ORS 30.265. Contract, be qualified, professionally competent, and duly licensed to perform the Work. OTHER CONTRACTORS (5) Contractor will accomplish the work using a standard Provided that City may not engage another broker for of performance and care that is currently accepted by other the subject property during the term of the Contract, the City may contractors engaged in similar work, under similar conditions undertake or award other contracts for additional or related work, and at the date the services are provided in the Portland and the Contractor shall fully cooperate with such other metropolitan area (Standard of Care). contractors and with any City employees concerned with such (6) Contractor’s shall itemize and explain all expenses for additional or related work, and shall coordinate its performance which reimbursement is claimed. Contractor shall send invoices under this contract with such additional or related work. The to City’s Project Manager. Contractor shall not intentionally commit or permit any act that (7) Contractor’s completion shall not extinguish or will interfere with the performance of work by any other prejudice City's right to enforce this Contract with respect to any contractor or by City employees. breach of Contractor warranty or any default or defect in Contractor performance (defect is defined herein as services that SUBCONTRACTORS AND ASSIGNMENT do not conform to the Standard of Care (Section 5) in the Except as set forth in Contractor’s proposal or otherwise performance of the Contract). in this Contract, no subcontract shall be made by the Contractor (8) Contractor has no present ownership interest and shall with any other party for furnishing any of the work or services not acquire any ownership interest, direct or indirect, in the subject herein contracted without obtaining the prior written consent of property which would conflict in any manner or degree with the
Page 1 – City of Lake Oswego Standard Public Contract Provisions (3/13) CITY OF LAKE OSWEGO STANDARD PUBLIC CONTRACT PROVISIONS FOR PERSONAL SERVICE / SERVICE CONTRACT (3/13) performance of its Work, and that in the performance of this any part of such records to any other person, firm, corporation, contract no person having any such interest shall be employed. association or other entity except as reasonably necessary to carry out the Work, without the consent of the Public Contracting B. Cumulative. The representations and covenants set forth in Officer. this section are in addition to, and not in lieu of, any other The Contractor agrees that the City and its authorized representations and covenants provided. representatives shall have access to the books, documents, papers and records of the Contractor which are directly pertinent to the OWNERSHIP OF WORK specific contract for the purpose of making audit, examination, City will have the right to use all work products of the excerpts and transcripts. Contractor, including background data, documentation and staff Contractor shall maintain all fiscal records directly work that is preliminary to final reports, which result from this relating to this Contract in accordance with generally accepted contract. . accounting principles. In addition, Contractor shall maintain any other records pertinent to this Contract in such a manner as to ELECTRONIC VERSION OF REPORTS clearly document Contractor's performance. Contractor Unless otherwise stated in the Scope of Work or acknowledges and agrees that City’s duly authorized separately waived in writing, all final reports, including reports of representatives shall have access to such fiscal records and other phases of the project and of the entire project, shall be provided books, documents, papers, plans and writings of Contractor that in both written and electronic format. are pertinent to this Contract to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and INDEMNITY AND HOLD HARMLESS keep accessible all such fiscal records, books, documents, papers, The Contractor shall defend, indemnify, and hold the plans, and writings for a minimum of three (3) years, or such City, its officers, agents and employees, harmless against all longer period as may be required by applicable law, following final liability, loss, or expenses, including reasonable attorney's fees, payment and termination of this Contract, or until the conclusion and against all claims, actions or judgments based upon or arising of any audit, controversy or litigation arising out of or related to out of damage or injury (including death) to persons or property, this Contract, whichever date is later. but only to the proportionate extent caused by or resulting from Contractor’s obligation of confidentiality hereunder shall any Contractor negligent or willful act, error, or omission not apply to information which (i) is lawfully known by or in the (excepting professional services performed under this Contract) of possession of Contractor prior to the disclosure of such an act sustained in connection with the performance of this information by the City to Contractor; or (ii) is or becomes publicly contract or by conditions created thereby, or based upon available through no fault on the part of Contractor; or (iii) is Contractor’s violation of any statute, ordinance or regulation. independently and lawfully developed by Contractor with the With respect to professional services performed under disclosure of the information by the City to Contractor playing no this Contract, Contractor shall defend, indemnify, and hold the part whatsoever in the development; or (iv) is disclosed to City, its officers, agents and employees, harmless against all Contractor by a source which, to the actual knowledge of Broker, liability, loss, or expenses, including reasonable attorney's fees, is not under a confidentiality obligation to the City with regard to and against all claims, actions or judgments based upon or arising such information; or (v) is required to be disclosed by subpoena or out of damage or injury (including death) to persons or property , court order or other legal compulsion. but only to the proportionate extent caused by any Contractor negligent act, error, or omission of an act sustained in connection with the performance of this contract or by conditions created CONFIDENTIALITY thereby, or based upon violation of any statute, ordinance or No reports, information and/or data given to or prepared regulation by Contractor. or assembled by the Contractor under this contract shall be made As to matters arising or related to Contractor’s services available to any individual or organization by the Contractor without under the Contract, and within the limitations of liability stated in the prior written approval of the City. the Oregon Tort Claims Act, City shall defend, indemnify, and hold the Contractor, its officers, agents and employees, harmless MEDIATION / VENUE against all liability, loss, or expenses, including reasonable In the event a dispute shall arise between the parties to attorney's fees, and against all claims, actions or judgments based this contract, and prior to the commencement of any suit or upon or arising out of damage or injury (including death) to action, the parties agree to participate in mediation in accordance persons or property , but only to the proportionate extent caused with the mediation procedures of the Oregon Mediation Service, by any City negligent act, error, or omission of an act sustained in or such other procedures as the parties agree. The parties agree connection with or related to the performance of this contract or to share equally in the costs of the mediator. The mediator shall by conditions created thereby, or based upon violation of any be selected by the parties, either upon mutual agreement within statute, ordinance or regulation by City. 15 days written notice by one party to the other requesting mediation, or if the parties are not able to agree upon a mediator RECORDS within said period, the mediator shall be chosen by the City Contractor shall have access to the books, documents, Manager from the list of mediators maintained by the Oregon papers and records of the City as necessary for Contractor's Mediation Service (http://omediate.org). performance of the work. The Contractor shall not disclose all or Any action or suits involving any question arising under
Page 2 – City of Lake Oswego Standard Public Contract Provisions (3/13) CITY OF LAKE OSWEGO STANDARD PUBLIC CONTRACT PROVISIONS FOR PERSONAL SERVICE / SERVICE CONTRACT (3/13) this contract must be brought in Clackamas County Circuit Court.
SEVERABILITY The parties agree that if any term or provision of this contract 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 the contract did not contain the particular term or provision held to be invalid.
COMPLIANCE WITH LAWS The provisions of this contract shall be construed in accordance with the provisions of the laws of the State of Oregon and ordinances of the City of Lake Oswego, Oregon. The Contractor shall comply with all federal, state and local laws and ordinances, applicable to public contracts relating to Contractor’s obligations and performance, and to the work to be done under this contract. The Contractor shall comply with all applicable federal, state, and local laws, rules, and regulations on nondiscrimination in employment because of race, color, ancestry, national origin, religion, sex, sexual orientation, gender identity, marital status, age, medical condition, or disability.
WAIVER The failure of the City to enforce any provision of this contract shall not constitute a waiver by the City of that or any other provision.
INTEGRATION This contract represents the entire and integrated agreement between the Contractor and the City, and supersedes all prior negotiations, representations or agreements, either written or oral.
Page 3 – City of Lake Oswego Standard Public Contract Provisions (3/13) EXHIBIT A
EXCLUSIVE LISTING AGREEMENT FOR SALE
EXCLUSIVE LISTING AGREEMENT SALE TRANSACTION
The undersigned Owner hereby appoints Cushman & Wakefield of Oregon, Inc. ("C&W") as its sole agent and grants to C&W the exclusive right to sell the West End Building located at 4101 Kruse Way, Lake Oswego, Oregon (the "Property").
1. TERM: The term of this Agreement begins on mutual execution and will end at midnight on June 30, 2015.
2. C&W'S SERVICES: C&W will enlist the best efforts of its firm to secure a satisfactory purchaser(s) for the Property, and if C&W deems it necessary, C&W will also solicit the cooperation of other licensed real estate brokers. C&W will negotiate the terms of any sale on behalf of Owner and in Owner's interest.
3. OWNER REFERRALS: Owner will refer to C&W all inquiries and offerings received by Owner regarding the Property, and all negotiations will be conducted solely by C&W or under C&W's direction, subject to Owner's review and final approval.
4. ADVERTISING: Owner authorizes C&W to advertise and to place signage on the Property subject to the requirements of the Lake Oswego Sign Code. C&W, at its expense, will provide its standard signage and flier/brochure. Any additional advertising and promotion will be done at Owner's expense pursuant to a program and budget agreed upon by Owner and C&W and will identify C&W as exclusive agent for the Property.
5. COMMISSION: If, during the term hereof, Owner sells any interest in the Property, Owner will pay to C&W a commission in accordance with the attached Schedule of Commissions (except as provided in paragraph 6 below). Within 15 days after the end of the term, C&W will provide to Owner a list of prospective purchasers to whom the Property was submitted (by C&W, Owner or any third party) during the term. If a prospective purchaser appearing on said list, enters into a purchase contract, lease or option within 180 days after the end of the term, and the purchase thereafter closes or lease is executed, Owner will pay a commission to C&W as provided above. Owner agrees that such 180-day period will be extended for so long as negotiations with a prospective purchaser are continuing.
6. OUTSIDE BROKERS: If C&W recognizes an outside broker authorized to represent the purchaser in a transaction for which a commission is payable hereunder, C&W will request such broker to agree to accept the outside broker portion of the commission computed and payable in accordance with the annexed Schedule, and if such other broker agrees, Owner will pay C&W the commission computed and payable in accordance with the annexed Schedule out of which C&W will pay to such other broker its agreed upon commission and retain the balance of the commission as C&W's compensation. If the other broker does not so agree, then negotiations will be suspended until such agreement is obtained. The term "outside broker" means a broker other than C&W or any brokers associated with C&W.
rjc\x:\web sale\realtor\cushman & wakefield\final agreement elements\exhibit a - exclusive listing requirements final.docx C&W LEGAL FORM - OREGON - 05 – MAY 2001 EXHIBIT A
EXCLUSIVE LISTING AGREEMENT FOR SALE
7. ALTERNATIVE TRANSACTION: If a proposed transaction covered by this Agreement turns into any other transaction, including, but not limited to, an exchange, option to purchase, right of first refusal, build to suit for sale or lease, ground lease or lease, then C&W will automatically, without the necessity of any further acts by Owner or C&W or an amendment to this Agreement, be Owner's sole and exclusive agent for such transaction and will be entitled to a commission on such transaction under the terms of this Agreement. If the commission computation is not addressed in the attached Schedule of Commissions, then the Owner shall pay C&W a market rate commission as dictated by local custom.
8. PROPERTY INFORMATION: Owner represents that it has no knowledge of toxic, contaminated or hazardous substances, or defective conditions, at the Property except as Owner has informed C&W in writing. Owner authorizes C&W to transmit such information to prospective purchasers.
9. OTHER CLIENTS: Owner acknowledges that C&W may represent potential purchasers and consents to such in-company sales or dual representation.
10. FEES AND EXPENSES: If either party institutes legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees and other costs so incurred. Any portion of a commission not paid to C&W when due will bear interest from the due date until paid at the legal rate of interest.
11. ALTERNATIVE DISPUTE RESOLUTION; MEDIATION: If a dispute arises relating to this Agreement and is not resolved, the parties involved in such dispute (“Disputants”) shall first proceed, in good faith, to submit the matter to mediation. The Disputants will jointly appoint an acceptable mediator and will share equally in the cost of such mediation. In the event the entire dispute is not resolved within (30) calendar days from the date written notice requesting mediation is sent by one Disputant to the other, the mediation, unless otherwise agreed, shall terminate. This section shall not alter any date in this Agreement, unless otherwise agreed.
12. AUTHORITY: Owner represents that it is the owner of the Property and/or has the full right, power and authority to execute this Agreement and to consummate a transaction as provided herein, and to perform Owner's obligations hereunder.
13. PROFESSIONAL ADVICE: C&W recommends that the Owner obtain legal, tax or other professional advice relating to this Agreement and the proposed sale of the Property, as well as the condition and/or legality of the Property, including, but not limited to, the Property's improvements, equipment, soil, tenancies, title, environmental, aspects and compliance with the Americans with Disabilities Act. C&W will have no obligation to investigate any such matters unless expressly otherwise agreed to in writing by Owner and C&W. Owner further agrees that in determining the financial soundness of any prospective purchaser, Owner will rely solely upon Owner's own investigation and evaluation, notwithstanding C&W's assistance in gathering any financial information.
14. NON-DISCRIMINATION: It is unlawful for either Owner or C&W to discriminate against any persons because of their race, color, religion, national origin, sex, handicap or family status.
rjc\x:\web sale\realtor\cushman & wakefield\final agreement elements\exhibit a - exclusive listing requirements final.docx C&W LEGAL FORM - OREGON - 05 – MAY 2001 EXHIBIT A
EXCLUSIVE LISTING AGREEMENT FOR SALE
15. SURVIVAL: This Agreement is binding upon the parties hereto and their respective successors and assigns. The terms "Owner" and "Purchaser" include affiliates, successors, assigns and nominees.
16. PUBLICITY: The Owner hereby consents to C&W's publicizing its role in any transaction entered into, subject to the Owner’s reasonable editorial approval of such publicity.
17. AGENCY DISCLOSURE: The Owner acknowledges that they have read and received the statutory Agency Disclosure Acknowledgment setting forth the different Agency Relationships available as required to be provided pursuant to Oregon Revised Statutes Chapter 696.
18. COUNTERPARTS: If more than one person is named as an Owner herein, this Listing Agreement may be executed by each Owner, individually, and when each Owner has executed a copy of this Listing Agreement, such copies taken together shall be deemed to be a full and complete contract between the parties.
19. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between Owner and C&W and supersedes all prior discussions. No modification of this Agreement will be effective unless made in writing and signed by both Owner and C&W. Owner acknowledges receipt of a copy of this Agreement and the Schedule of Commissions.
rjc\x:\web sale\realtor\cushman & wakefield\final agreement elements\exhibit a - exclusive listing requirements final.docx C&W LEGAL FORM - OREGON - 05 – MAY 2001 A PROPOSAL EXHIBIT A
OREGON SCHEDULE OF COMMISSIONS FOR SALE
SCHEDULE OF COMMISSIONS FOR SALE
Rate(s):
One and One-half Percent (1.5%) of the total sales price. If a broker other than C&W represents the Buyer in a transaction, the commission payable shall be Two and One-quarter Percent (2.25%) of the total sales price.
Time of Payment: The commission shall be paid in full at the time of the closing or transfer of title to the Property, except in the case of an installment purchase contract, in which case the commission shall be paid in full at the time of the execution and delivery of the installment purchase contract between Owner and purchaser.
Computation of Sales Price: The commission shall be computed in accordance with the above rate(s) based upon the total sales price, which shall include any mortgages, loans or other obligations of Owner which may be assumed by the purchaser or which the purchaser takes title "subject to," any purchase money loans or mortgages taken back by Owner, and the sales price of any fixtures or other personal property sold by separate agreement between Owner and purchaser as part of the overall sales of the real property.
Purchase Option: If Owner grants a purchase option, C&W will be paid a commission at the above rate(s) as and when amounts are payable for the option (and for extensions thereof). Upon closing of the sale, C&W will be paid a commission at the above rate on the total sales price (excluding any amount paid for the option and applied to the sales price).
Deposit: In the event title does not close and the deposit is retained by Owner, the commission to be paid C&W shall be either 1/2 of the amount of the deposit, or the regular commission computed as set forth above, whichever is less.
Partial Exclusion: From the period starting on mutual execution of this agreement and ending on January 15, 2015, if the Owner sells the Property to The Great Tomorrow or to Nick Bunick or an entity controlled by Nick Bunick, or for which Nick Bunick is a director, officer, owner, partner or member, (each referred to in this agreement as an “Excluded Buyer”), there shall be no commission payable to C&W; however, in such event, Owner agrees to reimburse C&W for any out-of-pocket marketing expenses incurred by C&W during that period. Furthermore, from the period commencing on January 16, 2015 and ending on April 15, 2015, should the Owner sell the subject Property to an Excluded Buyer, the commission payable to C&W shall be Three Quarters of One Percent (0.75%) of the total sales price. After April 15, 2015, there shall be no exclusion from this Agreement for an Excluded Buyer if they are the eventual buyer of the Property.
Broker Regulatory or Statutory Provisions: The following provisions must be included in brokerage agreements in the State of Oregon:
It is illegal for either party to discriminate against any person because of one's membership in a protected class (e.g., race, color, religion, national origin, sex, ancestry, age, marital status, physical or mental handicap, familial status, or any other class protected by law). Owner acknowledges receipt of a copy of Notice to Owners, Buyers and Tenants Regarding Environmental Matters, Americans With Disabilities Act and Related Laws, and Zoning Use/Disclosure The Owner acknowledges that they have read and received the statutory Agency Disclosure Pamphlet setting forth the different Agency Relationships available as required to be provided pursuant to Oregon Revised Statutes Chapter 696.
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A EXHIBIT A
NOTICE TO OWNERS, BUYERS AND TENANTS
NOTICE TO OWNERS, BUYERS AND TENANTS REGARDING ENVIRONMENTAL MATTERS, AMERICANS WITH DISABILITIES ACT AND RELATED LAWS, AND ZONING/USE DISCLOSURE
ENVIRONMENTAL MATTERS
It is essential that all parties to real estate transactions be aware of the health, liability and economic impact of environmental factors on real estate. Cushman & Wakefield does not conduct investigations or analyses of environmental matters and, accordingly, urges the parties to a real estate transaction to retain qualified environmental professionals to determine whether hazardous or toxic wastes or substances (such as asbestos, PCBs and other contaminants or petro-chemical products stored in underground tanks) or other undesirable materials or conditions are present at the property and, if so, whether any health danger or other liability exists. Such substances may have been used in the construction or operation of buildings or may be present as a result of previous activities at the property.
Various laws and regulations have been enacted at the federal, state and local levels dealing with the use, storage, handling, removal, transport and disposal of toxic or hazardous wastes and substances. Depending upon past, current and proposed uses of the property, it may be prudent to retain an environmental expert to conduct a site investigation and/or building inspection. If hazardous or toxic substances exist or are contemplated to be used at the property, special governmental approvals or permits may be required. In addition, the cost of removal and disposal of such materials may be substantial. Consequently, legal counsel and technical experts should be consulted where these substances are or may be present.
AMERICANS WITH DISABILITIES ACT AND RELATED LAWS
As an Owner or tenant of real property, you may be subject to the Americans with Disabilities Act (the ADA), a Federal law codified at 42 USC Section 12101 et seq. Among other requirements of the ADA that could apply to your property, Title III of the ADA requires Owners and tenants of "public accommodations" to remove barriers to access by disabled persons and provide auxiliary aids and services for hearing, vision or speech impaired persons by January 26, 1992. The regulations under Title III of the ADA are codified at 28 CFR Part 36.
We recommend that you and your attorney review the ADA and the regulations, and, if appropriate, your proposed lease or purchase agreement, to determine if this law would apply to you, and the nature of the requirements. These are legal issues. Cushman & Wakefield cannot give you legal advice on these issues.
ZONING/USE DISCLOSURE
Prior to executing a lease, the Tenant is responsible for determining that the zoning applicable to the property allows the Tenant to use the premises for the Tenant’s intended use, and that all building codes, parking requirements, and other governmental requirements, improvements required, and permits necessary have been met or are available to Tenant. Cushman & Wakefield has made no representations, except in writing, if any, concerning the zoning and allowable use of the premises and any requirements that may be imposed upon the Tenant by any governmental agency. If the Tenant's use of the premises requires a Use Permit or other permits from a governmental authority it could take several months to obtain same, and Tenant may
CUSHMAN & 5 WAKEFIELD
A EXHIBIT A
NOTICE TO OWNERS, BUYERS AND TENANTS
still be responsible for the payment of rent and other charges whether or not such permits are ultimately obtained.
By your signature below, you acknowledge that you have read and understand this disclosure and have received a copy:
Received on , 20___
Signature:
Printed Name:
CUSHMAN & 6 WAKEFIELD
A EXHIBIT AR
DISCLOSED LIMITED AGENCY AGREEMENT FOR SELLER
DISCLOSED LIMITED AGENCY AGREEMENT FOR SELLER
Property Address 4101 Kruse Way, Lake Oswego, Oregon
Addendum to Listing Agreement Dated December 2, 2014
Real Estate Firm: Cushman & Wakefield of Oregon, Inc.
The Parties to this Disclosed Limited Agency Agreement are:
Listing Agent (print) Gary J. Griff
Listing Agent’s Principal Broker (print) Susan M. Iggulden, Director
Seller (print) City of Lake Oswego, Oregon
Seller (print)
The Parties to this Agreement understand that Oregon law allows a single real estate agent to act as a disclosed limited agent -- to represent both the seller and the buyer in the same real estate transaction, or multiple buyers who want to purchase the same property. It is also understood that when different agents associated with the same principal broker (the broker who directly supervises the other agents) establish agency relationships with the buyer and seller in a real estate transaction, the agents’ principal broker shall be the only broker acting as a disclosed limited agent representing both seller and buyer. The other agents shall continue to represent only the party with whom they have an established agency relationship, unless all parties agree otherwise in writing.
In consideration of the above understanding, and the mutual promises and benefits exchanged here and in the Listing Agreement, the Parties now agree as follows:
1. Seller acknowledge they have received the initial agency disclosure pamphlet required by ORS 696.820 and have read and discussed with the Listing Agent that part of the pamphlet entitled “Duties and Responsibilities of an Agent Who Represents More than One Party to A Transaction.” The initial agency disclosure pamphlet is hereby incorporated into this Disclosed Limited Agency Agreement by reference.
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A EXHIBIT AR
DISCLOSED LIMITED AGENCY AGREEMENT FOR SELLER
2. Seller, having discussed with the Listing Agent the duties and responsibilities of an agent who represents more than one party to a transaction, consent and agree as follows:
(A) The Listing Agent and the Listing Agent’s Principal Broker, in addition to representing Seller, may represent one or more buyers in a transaction involving the listed property;
(B) In a transaction involving the listed property where the buyer is represented by an agent who works in the same real estate business as the Listing Agent and who is supervised by the Listing Agent’s Principal Broker, the Principal Broker may represent both Seller and Buyer. In such a situation, the Listing Agent will continue to represent only the Seller and the other agent will represent only the Buyer, consistent with the applicable duties and responsibilities as set out in the initial agency disclosure pamphlet; and
(C) In all other cases, the Listing Agent and the Listing Agent’s Principal Broker shall represent Seller exclusively.
Seller signature
Date
Seller signature
Date
Listing Agent signature
Date December 2, 2014
(On their own and on behalf of Principal Broker)
Broker initial and review date
CUSHMAN & 8 WAKEFIELD
EXHIBIT A
INITIAL AGENCY DISCLOSURE PAMPHLET
INITIAL AGENCY DISCLOSURE PAMPHLET (OAR 863-015-215(4))
This pamphlet describes agency relationships and the duties and responsibilities of real estate licensees in Oregon. This pamphlet is informational only and neither the pamphlet nor its delivery to you may be construed to be evidence of intent to create an agency relationship.
Real Estate Agency Relationships
An "agency" relationship is a voluntary legal relationship in which a real estate licensee (the "agent") agrees to act on behalf of a buyer or a seller (the "client") in a real estate transaction. Oregon law provides for three types of agency relationships between real estate agents and their clients:
Seller's Agent -- Represents the seller only;
Buyer's Agent -- Represents the buyer only;
Disclosed Limited Agent -- Represents both the buyer and seller, or multiple buyers who want to purchase the same property. This can be done only with the written permission of both clients.
The actual agency relationships between the seller, buyer and their agents in a real estate transaction must be acknowledged at the time an offer to purchase is made. Please read this pamphlet carefully before entering into an agency relationship with a real estate agent.
Duties and Responsibilities of an Agent Who Represents Only the Seller or Only the Buyer
Under a written listing agreement to sell property, an agent represents only the seller unless the seller agrees in writing to allow the agent to also represent the buyer. An agent who agrees to represent a buyer acts only as the buyer's agent unless the buyer agrees in writing to allow the agent to also represent the seller. An agent who represents only the seller or only the buyer owes the following affirmative duties to their client, other parties and their agents involved in a real estate transaction:
1. To exercise reasonable care and diligence;
2. To deal honestly and in good faith;
3. To present all written offers, notices and other communications in a timely manner whether or not the seller's property is subject to a contract for sale or the buyer is already a party to a contract to purchase;
4. To disclose material facts known by the agent and not apparent or readily ascertainable to a party;
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EXHIBIT A
INITIAL AGENCY DISCLOSURE PAMPHLET
5. To account in a timely manner for money and property received from or on behalf of the client;
6. To be loyal to their client by not taking action that is adverse or detrimental to the client's interest in a transaction;
7. To disclose in a timely manner to the client any conflict of interest, existing or contemplated;
8. To advise the client to seek expert advice on matters related to the transactions that are beyond the agent's expertise;
9. To maintain confidential information from or about the client except under subpoena or court order, even after termination of the agency relationship; and
10. When representing a seller, to make a continuous, good faith effort to find a buyer for the property, except that a seller's agent is not required to seek additional offers to purchase the property while the property is subject to a contract for sale. When representing a buyer, to make a continuous, good faith effort to find property for the buyer, except that a buyer's agent is not required to seek additional properties for the buyer while the buyer is subject to a contract for purchase or to show properties for which there is no written agreement to pay compensation to the buyer's agent.
None of these affirmative duties of an agent may be waived, except #10, which can only be waived by written agreement between client and agent.
Under Oregon law, a seller's agent may show properties owned by another seller to a prospective buyer and may list competing properties for sale without breaching any affirmative duty to the seller. Similarly, a buyer's agent may show properties in which the buyer is interested to other prospective buyers without breaching any affirmative duty to the buyer.
Unless agreed to in writing, an agent has no duty to investigate matters that are outside the scope of the agent's expertise.
Duties and Responsibilities of an Agent Who Represents More than One Client in a Transaction
One agent may represent both the seller and the buyer in the same transaction, or multiple buyers who want to purchase the same property only under a written "Disclosed Limited Agency" agreement, signed by the seller, buyer(s) and their agent.
When different agents associated with the same real estate firm establish agency relationships with different parties to the same transaction, only the principal broker (the broker who supervises the other agents) will act as a Disclosed Limited Agent for both the buyer and seller. The other agents continue to represent only the party with whom the agent already has an
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EXHIBIT A
INITIAL AGENCY DISCLOSURE PAMPHLET established agency relationship unless all parties agree otherwise in writing. The supervising principal broker and the agents representing either the seller or the buyer have the following duties to their clients:
1. To disclose a conflict of interest in writing to all parties;
2. To take no action that is adverse or detrimental to either party's interest in the transaction; and
3. To obey the lawful instruction of both parties.
An agent acting under a Disclosed Limited Agency agreement has the same duties to the client as when representing only a seller or only a buyer, except that the agent may not, without written permission, disclose any of the following:
1. That the seller will accept a lower price or less favorable terms than the listing price or terms;
2. That the buyer will pay a greater price or more favorable terms than the offering price or terms; or
3. In transactions involving one-to-four residential units only, information regarding the real property transaction including, but not limited to, price, terms, financial qualifications or motivation to buy or sell.
No matter whom they represent, an agent must disclose information the agent knows or should know that failure to disclose would constitute fraudulent misrepresentation. Unless agreed to in writing, an agent acting under a Disclosed Limited Agency agreement has no duty to investigate matters that are outside the scope of the agent's expertise.
You are encouraged to discuss the above information with the agent delivering this pamphlet to you. If you intend for that agent, or any other Oregon real estate agent, to represent you as a Seller's Agent, Buyer's Agent, or Disclosed Limited Agent, you should have a specific discussion with him/her about the nature and scope of the agency relationship. Whether you are a buyer or seller, you cannot make a licensee your agent without their knowledge and consent, and an agent cannot make you their client without your knowledge and consent.
CUSHMAN & 11 WAKEFIELD
Schneider, Catherine
From: Bowerman, Karen Sent: Tuesday, December 16, 2014 11:08 AM To: Williams, Brant; Council Distribution Subject: FW: consent calendar item for tonight Attachments: 1994 WSL Consortium IGA.pdf; 2003 WSL Consortium IGA Supplemental.pdf
Thanks, Brant ‐‐ informative! Others on Council may wish to see this before the vote tonight, so I've copied them too.
Karen D. Bowerman, Ph.D. Lake Oswego City Councilor P.O. Box 1063, Lake Oswego, OR 97034 m: 503.858.5983
From: Williams, Brant Sent: Tuesday, December 16, 2014 10:11 AM To: Bowerman, Karen Cc: Studebaker, Kent; Lazenby, Scott; Cross, Shawn Subject: RE: consent calendar item for tonight
Karen,
The primary source of the beginning fund balance is a transfer of $459k from TriMet to Lake Oswego last fiscal year, which TriMet received from Multnomah County as payment to the Consortium for the use of the Willamette Shore Line right‐of‐way for the Sellwood Bridge replacement project. The remainder of the funds are from annual Consortium member contributions, other minor right‐of‐way leases and use permits fees, and interest earnings.
Regarding your second question, the 1994 IGA for the Management of the Willamette Shore Line Right‐of‐Way as supplemented by the 2003 IGA Regarding Maintenance and Funding of the Willamette Shore Line Right‐of‐Way spells out the responsibilities for maintenance, operations and capital improvements for the Line. Lake Oswego is responsible for maintenance and operations and TriMet for capital improvements. Attached are both agreements if you’re interested (and/or have insomnia).
There is a ton of history and information about the Willamette Shore Line. I’d be happy to sit down and go over this with you if you’d like. Otherwise, let me know if you have any questions.
Brant
From: Bowerman, Karen Sent: Tuesday, December 16, 2014 9:21 AM To: Cross, Shawn; Williams, Brant Cc: Studebaker, Kent; Lazenby, Scott Subject: consent calendar item for tonight
Our 2014‐15 budget shows a beginning balance in the trolley fund of almost $600K. What is the source of those funds? Also, Brant, I'm unfamiliar with the documentation that establishes why "both the City and TriMet have responsibilities for .. maintaining .. the WSL to retain it as a functioning rail line."
1
Thanks for your help on this.
Karen ‐‐‐
Karen D. Bowerman, Ph.D. Lake Oswego City Councilor P.O. Box 1063, Lake Oswego, OR 97034 m: 503.858.5983
2
Gmail - SAFETY ALERT OR 43 / Terwilliger Blvd Tryon Creek Stabiliz... https://mail.google.com/mail/?ui=2&ik=3308d8813a&view=pt&search=i...
Charles Ormsby
SAFETY ALERT OR 43 / Terwilliger Blvd Tryon Creek Stabilization
Birdshill CPO/NA
Birdshill CPO / NA (BH) Co-Chair, Charles Ormsby (Skip) Conveys information with respect to Portland Bureau of Environmental Services (PBES) project on south bank of Tryon Creek. Title: Tryon Creek Stream Bank Stabilization Project (TCBS) Birdshill CPO / NA Co-Chair opinion by 2014 Aug 25 Monday 19:00 U (7:00 PM PT) SEVERE Safety Issues with TCBS at intersection of OR Hwy 43 / Terwilliger Blvd + Stampher Rd Note OR Hwy 43 is known as State Street in Lake Oswego THINK SAFTY FIRST – SCHOOL START UP, SCHOOL BUS ROUTES AND STOPS WITH KIDS Project Start: 2014 Sep 02 Tuesday (ESTIMATE) Project End : 2014 Oct 10 Friday (ESTIMATE) Email Received: 2014 Aug 22 Friday 12:33 U (12:33 PM PT). Analyzed: 2014 Aug 25 Monday 12:00 U (12:00 PM PT) Birdshill CPO / NA will request project delay and notify ODOT, Clackamas County, City of Lake Oswego, Lake Oswego School District, Riverdale School District, FirstGroup (Transport Services for LOSD and RVSD). Map and email attached - details developing rapidly.
2014 Aug 26 Tuesday 16:30 U (4:30 PM PT)
Charles B. Ormsby (Skip) Birdshill CPO / NA, Co-Chair 2013 – 2014 Phn: 503.636.4483 Residence E-mail: [email protected]
Birdshill CPO / NA Board 2013-2014 Board of directors Birdshill CPO / NA Residents Numerous Concerned Parties in vicinity of OR 43 / Terwilliger Blvd Lake Oswego Neighborhood Chairs Riverdale School District Lake Oswego School District City of Lake Oswego, Clackamas County, City of Portland, Multnomah County TriMet, ODOT, Metro, Oregon House District 38 – Ann Lininger Oregon Senate District 19 – Richard Devlin
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Subject: SAFETY ALERT OR 43 / Terwilliger Blvd Tryon Creek Stabilization
1. Forward as you see fit 2. Place on public record and in next meeting packets for Portland City Council, Lake Oswego City Council Clackamas County Board of County Commissioners, Multnomah County Board of County Commissioners, Metro Council, Oregon Transportation Commission, Lake Oswego Planning Commission, Lake Oswego Transportation Advisory Board, Tryon Creek Watershed Council, TriMet Board of Directors, Oregon Parks and Recreation Commission Be sure to include ALL Attached
Good Afternoon:
Portland Bureau of Environmental Services (PBES) sent information about: Project Title: Tryon Creek Stream Bank Stabilization Project (TCBS) Project Begin Date: 2014 Sep 02 Tuesday (ESTIMATE) Project End Date: 2014 Oct 10 Friday (ESTIMATE) Locale: OR Hwy 43 (known as State St in Lake Oswego / Terwilliger Blvd Google Earth: 45°25'27.58"N, 122°39'38.35"W Information Received: Email: 2014 Aug 22 Friday 12:23 U (12:23 PM PT) Mailer: 2014 Aug 23 Saturday 12:00 U (12:00 PM PT)
I made a couple of quick calls on afternoon of 2014 Aug 25 Monday and found limited knowledge of this project had been conveyed to key parties including but not limited to: 1. FirstGroup Transport Services – Lake Oswego School District 2. FirstGroup Transport Service – Riverdale School District 3. Lake Oswego School District – Classes Start: 2014 Sep 02 Tuesday 4. Riverdale School District – Classes Start: 2014 Sep 02 Tuesday 5. Lewis and Clark College – Classes Start: 2014 Sep 02 Tuesday
Analyzed PBES documents by making maps
Question: What is the priority rating amongst the following: 1. Fish, Wildlife, environmental habitat concerns? 2. Taxpayers – Ratepayers? 3. Flaggers for roadway construction zones? 4. Unimpeded traffic flow at high speeds? (45 to 50 mph dropping to 25 mph) 5. School kids taking the bus to school in a sustainable manner? 6. Transit riders? 7. First responders? Please order and inform the public at large and Birdshill CPO / NA ASAP.
One could perceive I am over reacting to the email and flyer. from Portland Bureau of Environmental Services (BPES) However given: 1. School start date of 2014 Sep 02 Tuesday, think dim early morning light, new school bus routes with bus stops, new routes for school commuters. 2. Traffic speed on Terwilliger Blvd, plus lack of brush cutting on roadside NO place for walking on shoulders. This is my prime shortcut instead of bike path and walking an extra 0.5 mile. Plus no consideration of trails or bridge in Lake Oswego, Clackamas County and Metro Transportation System Plan updates. 3. Nature of OR Hwy 43 / Terwilliger Blvd + Stampher Road intersection. 4. Observed attitudes of drivers in vicinity of OR 43 / Terwilliger Blvd. 5. Lack of notification signs on OR Hwy 43 + State St akin to signs set out for Lake Oswego Tigard Water Partnership construction B Avenue Stormwater System Construction Update
Lets not forget overlooked surface water management issues from OR Hwy 43 that have caused serious pavement deterioration on Stampher Road. Portland Bureau of Environmental Services paved the road circa 2007 (?) after rebuilding Tryon Creek Stream Bed and drop pool from Willamette River – Tryon Creek confluence NW to OR 43 culvert outfall. Thank you very much. It will likely take another ten years to get it repaved.
I hope for the best BUT plan and inform for the worst.
City of Portland, City of Lake Oswego, Clackamas County, ODOT, Metro and numerous advisory boards continue to demonstrate contempt
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for Birdshill CPO / NA residents, leaders and our area in all aspects of public involvement on substantive projects that affect our community. Last estimate I made over the past ten years was $1.5 billion of projects and numerous policy formulation committees most without a seat for Birdshill CPO / NA leaders at the table to discuss issues on an equitable basis. Contrast with opportunities afforded one person from the unrecognized Foothills area in the City of Lake Oswego. Government cliques would appear to place Birdshill residents in a wheel chair like a grandmother
A project and incident list of gross contempt for the safety, security and quality of life issues in our community since 2000 would take too long to compile today. Unfortunately, however, I am about to begin to compile such a spreadsheet to review all aspects of public notification. This is in response to discussions at the Lake Oswego Planning Commission meeting of 2014 Aug 11 Monday 18:30 U LOPC
I am lazy. I desire to have life be boring. I am not an EMT-I, II, III, or IV, emergency room nurse, triage doctor, orthopedic surgeon, or brain surgeon. I do not want to clean up maimed bodies of children and adults in and about OR Hwy 43 / Terwilliger Blvd + Stampher Road intersection (MP_05.74) and then provide a lifetime of care for the severely disabled in a quadriplegic state. All from the root accident causes of: incompetent planning, project engineering, traffic engineering, project site management and all aspects of citizen involvement.
Flash: Just got a report of an accident at OR 43 / Terwilliger Blvd on 2014 Aug 26 Tuesday 12:45 U (12:45 PM PT). From a visiting nurse providing care wound and home care for my mother of 100 years
Government entities now have a Stage IV political pressure ulcer
Try pro-active communication and involvement without discrimination. All else has failed.
I will be asking for a project start delay for deliveries of equipment and materials until at least 2014 Sep 08 Monday.
Would someone please inform TriMet operations about potential closure of TriMet Stop ID 5508 – N State & E Ave
See TriMet Trip Planner Web: http://ride.trimet.org/?tool=routes#/ Select from left list of routes: 35-Macadam Greeley Magnify map in vicinity of OR Hwy 43 / Terwilliger Blvd.
Transit riders sort of object to walking down a 15 % grade, from First Street in Lake Oswego First Addition Neighborhood, missing a bus because of temporarily closed OR 43 northbound lane so bus cannot stop and thus passes potential rider. Then rider has to walk 0.18 to 0.35 mile up or down line (Rain anyone – Liquid Sunshine) to available northbound OR Hwy 43 aka State Street stops. Alternate 1, Down – line (north) [0.35 miles / 1,848 feet / 563 m] TriMet Stop ID 4895 – SW Riverside & Briarwood Alternate 2 Up-line (south) [0.18 miles / 950 feet / 290 m] TriMet Stop ID 5505 – N State & B Ave
Cooperative, pro-active and ongoing interactive communication between Birdshill CPO / NA and other neighborhoods [Chair(s)] with ODOT, and Lake Oswego Transportation Advisory Board not to forget Lake Oswego Planning Department, Lake Oswego Public Works Department, Portland Bureau of Environmental Services, Clackamas County Department of Planning and Transportation might be of some public service.
It is time for a multi-government entities and neighborhood summit on ALL aspects of the intersection of OR Hwy 43 / Terwilliger Blvd. My mother’s home in the Family Room (Birdshill Conf / War Room) is available and can be made handicap accessible, seats 20.
Thanks
Skip
3 of 5 2014-08-26 20:07 Gmail - SAFETY ALERT OR 43 / Terwilliger Blvd Tryon Creek Stabiliz... https://mail.google.com/mail/?ui=2&ik=3308d8813a&view=pt&search=i...
Charles B. Ormsby (Skip) Birdshill CPO / NA, Co-Chair 2013 - 2014 A Joint Clackamas County Community Planning Organization (CPO) and City of Lake Oswego Oregon Neighborhood Association (NA) Google Earth GPS Coordinates: 45°25'42.18"N, 122°39'41.48"W Clackamas County 170 SW Birdshill Road Portland Oregon 97219-8502 Phn: 503.636.4483 Residence E-mail: [email protected] Web: http://birdshillcpona.shutterfly.com/ (Not Open Yet)
Attached Documents (ATnn) Three (3) total: AT 0 1
Title: Tryon Creek Bank Stabilization (TCBS) File BHCN:..PPDP_BH_PBES_TCBS_2014_08Aug_25Mo_2100U.pdf Size: 280 kb, Page(s): 2 Note: Document / Map created by Birdshill CPO / NA based upon PBES email + flyer NOT Portland Bureau of Environmental Services (PBES)
AT 0 2
Title: Tryon Creek Stream Bank Stabilization Project: Construction starts early September File BHCN: EMAL_2014_08Aug_22Fr_1223U_PBES_BH_TCBS.pdf Size: 111 kb, Page(s): 1
AT 0 3
Title: N – I – C – E is not File BHCN: CVPBXBHCH_NICE_2014_08Aug_24Su_0900U.pdf Size: 33 kb, Page(s): 1
Cross Referenced Documents (CRnn) One (1) total: CR01
Title: Tryon Creek Confluence Stream Bank Stabilization Project Direct Download: https://www.portlandoregon.gov/bes/article/501057 File PBES: TCC StreambankProject.pdf Size: 584 kb, Page(s): 1 Website: NO PBES website / webpage for project at this date of 2014 August 25 Mon 23:10 U
Hyperlinks (HLnn) Six (6) total: HL01
Link: B Avenue Stormwater System Construction Update Title: B Avenue Stormwater System Construction Update
HL02
Link: wheel chair like a grandmother Title: Granny Off the Cliff Website: https://www.youtube.com/watch?v=OGnE83A1Z4U
HL03
Link: 2014 Aug 11 Monday 18:30 U LOPC Agenda: 8.1 Discussion of Commission outreach to neighborhoods Website: http://www.ci.oswego.or.us/boc_pc/planning-commission-59
HL04
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Link: mother of 100 years Title: Longtime Lake Oswego Resident Turns 100 Margaret Ormsby moved to Lake Oswego in 1952 and has been an involved community member since then. Website: http://portlandtribune.com/lor/48-news/230148-93464-longtime-lake-oswego-resident-turns-100
HL05
Link: pressure ulcer Title: Pressure ulcer Website: http://en.wikipedia.org/wiki/Pressure_ulcer
HL06
Link: I-205 alignments Title: Lake Oswego School Board Opposes Road Dividing District Direct Download https://sites.google.com/site/or43data01/home/article01/WSLROW_ATCL_OREG_205ROW_1961_12Dec_22Fr_0602U.pdf?attredirects=0&d=1
3 attachments PPDP_BH_PBES_TCBS_2014_08Aug_25Mo_2100U.pdf 280K EMAL_2014_08Aug_22Fr_1223U_PBES_BH_TCBS.pdf 111K CVPBXBHCH_NICE_2014_08Aug_24Su_0900U.pdf 33K
5 of 5 2014-08-26 20:07
Schneider, Catherine
From: Birdshill CPO/NA
Birdshill CPO / NA (BH) Co-Chair, Charles Ormsby (Skip) based upon interactive agenda for Lake Oswego Council meeting for 2014 Dec 16 Tue 18:00 U (6:00 PM PT) requests the following: 1. Remove agenda item 3.2.1, IGA between Lake Oswego and TriMet wrt trestle work on Willamette Shore Line (WSL) from consent agenda and defer until 2015 Jan in order to confer with Birdshill CPO / NA. Note trestle work at Stampher Trestle adjacent to Union Pacific Railroad Branch Line called the Wilsboro Branch Line. 2. Schedule a review for communication including key documents and project notification between WSL Consortium members and Birdshill CPO / NA for any endeavors that are to affect the WSL and adjacent WBL (Wilsboro Branch Line) owned by Union Pacific Railroad (UPRR) and operated by Portland and Western Railroad (PWRR). 3. Schedule a review and develop a table of ALL elemental aspects of Lake Oswego NICER: Notification – Involvement – Compliance – Enforcement – Response with respect to citizen participation under Oregon Land Use Goal One:
1 Citizen Involvement. OAR 660-015-0000(1) State of communication is abysmal between citizens wrt WSL and many project planning aspects. Most troublesome are potential financial encumbrances due to vehicle grade crossing of UPRR WBL right-of-way from existing policy imbedded into Foothills District Framework Plan (FDFP). Details briefly expanded below with hyperlinks.
2014 Dec 16 Tuesday 02:40 U (2:40 AM PT)
Charles B. Ormsby (Skip) Birdshill CPO / NA, Co-Chair 2013 – 2014 Phn: 503.636.4483 Residence E-mail: [email protected]
Kenneth Studebaker Lake Oswego Mayor (2013 – 2016) Lake Oswego City Council (LOCC 2013-2014) Care of Catherine Schnieder, LO City Recorder (LOCR) Ph: 503.675.3984, Fax: 503.697.6594 Em: [email protected] City Hall, 380 A Avenue Lev 3 4th St / “A” Avenue SE PO Box 369 Thms_gde PDXC / 0656 / F6 Lake Oswego OR 97034-0369 Google Earth: 45 25′10.42″N, 122°40′3.18″W Ph: 503.635.0215 (City Hall), Res: 503.780.1524(Cell)
Randy Arthur Chair 2014 – 2015 Lake Oswego Planning Commission (LOPC) Also Lake Oswego Committee for Citizen Involvement Care of Iris McCaleb, Administrative Aide for (LOPC) City Hall, 380 A Avenue Lev 3 4th St / “A” Avenue SE PO Box 369 Thms_gde PDXC / 0656 / F6 Lake Oswego OR 97034-0369 Google Earth: 45 25′10.42″N, 122°40′3.18″W Ph: 503.697.6591, Fax: 503.635.0269 Wb: http://www.ci.oswego.or.us/boc_pc Em: [email protected]
Copies: Birdshill CPO / NA Board 2013-2014 Board of directors Lake Oswego Chairs TriMet Board of Directors Union Pacific Railroad, Portland and Western Railroad City of Portland Metro, ODOT
Subject: Testimony on TriMet IGA and WSL and NICER Where: TSTM = Testimony to LOCC [(Lake Oswego City Council) 2013-2014] Agenda = Meeting 116 to be held 2014 Dec 16 Tuesday 18:00 U (6:00 PM PT) 3.2.1 – Motion: Authorize the City Manager to sign an Intergovernmental Agreement with TriMet to fund the Willamette Shore Line Trestle Maintenance Project, substantially in the form presented.
2 NOTE Abbreviations: ATnn = Attachment nn BH = Birdshill CPO / NA CRnn = Cross Reference nn FDFP = Foothills District Framework Plan IGA = Intergovernmental Agreement LO = Lake Oswego
LOCC = Lake Oswego City Council
NICER = Notification – Involvement – Compliance – Enforcement – Response OR43 = Oregon Highway 43 [aka State St (LO), Riverside Drive (Clackamas), Macadam Ave (Portland)] PWRR = Portland and Western Railroad ROW = right-of-way UGMA = Urban Growth Management Agreement aka Comprehensive Plan Area of LO which includes taxlots outside LO City limits in DIA shared with Clackamas County by agreement dated 1997 Dec 18 Thursday. UPRR = Union Pacific Railroad WBL = Wilsboro Branch Line (Previously known as Tillamook Branch Line) WSL = Willamette Shore Line
Forward as you see fit
Good Morning Mayor and LO Council 2013-2014:
This email has been drafted rapidly in response to a rapid review of the last meeting of the 2013-2014 Lake Oswego City Council, scheduled for 2014 Dec 16 Tuesday. Consent agenda item 3.2.1 caught my eye due to the fact it involves the Willamette Shore Line (WSL). I have received no notification or communication about the proposed repair of trestles including the “Stampher Trestle” from anyone in either the City of Lake Oswego or TriMet. This is the third instance of communication breakdown with respect to projects along the WSL.
A first issue about surface water management and Stampher Road was communicated on 2012 Oct 28 Sunday and was documented on the following webpage: https://sites.google.com/site/bhrqstgov/home/07rqswmsr
A second project regarding lining of the Elk Rock Tunnel occurred in a similar manner at the last meeting of the 2011-2012 LO City Council on 2012 Dec 18 Tuesday, Agenda item 10.2 – Willamette Shore Line Intergovernmental Agreement for the Elk Rock Tunnel Improvements. My interest in brief was procurement of a geology report prior to tunnel lining to ascertain stability of the Elk Rock Tunnel along the WSL
I ask as a result the 2013-2014 Lake Oswego City Council to perform the following actions immediately before or during the meeting and prior to Citizen Comment – agenda item 5.0. 1. Remove agenda item 3.2.1, IGA between Lake Oswego and TriMet wrt trestle work on Willamette Shore Line (WSL) from consent agenda and defer until 2015 Jan in order to confer with Birdshill CPO / NA amongst others. 2. Schedule a review for ALL communication including key documents and project notification between WSL Consortium members and Birdshill CPO / NA for any endeavors that are to affect the WSL and adjacent WBL (Wilsboro Branch Line) owned by Union Pacific 3 Railroad (UPRR) and operated by Portland and Western Railroad (PWRR). 3. Schedule a review and develop a table of ALL elemental aspects of Lake Oswego NICER: Notification – Involvement – Compliance – Enforcement – Response with respect to citizen participation under Oregon Land Use Goal One: Citizen Involvement. OAR 660-015-0000(1)
Serious issues outlined on one portion of the repair project for three trestles along the WSL ROW (See AT01 – Stampher Rd – Wilsonia Junction and AT02 – Trestles north of OR43 / Riverwood Road) include repair of the “Stampher Trestle” (See Staff Report for item 3.2.1, dated 2014 Dec 11
One result of document research and preparation of a summary report wrt the intersection of OR43 / Terwilliger Blvd along with adjacent decommissioned (circa 1987) “Wilsonia Junction” between the Wilsboro Branch Line (WBL) (formerly known as the Tillamook Branch Line - TBL) and WSL lead to communication with Union Pacific Railroad (UPRR) in early October. This phone call illuminated previously undisclosed policies with respect to vehicle grade crossings of the UPRR WBL right-of-way. Cost and access policies revealed are hyper expensive and troubling for all Lake Oswego residents within the UGMA (Urban Growth Management Area) and service area of the Tryon Creek Wastewater Treatment Plant (TCWP). In short negotiations with UPRR for a new grade crossing specified in the Foothills District Framework Plan (FDFP) at the “North Portal” – existing Public Storage driveway grade crossing may require vertical separation of three existing grade crossings or their closure.
For summary of access and financial concerns please see and download the following summaries: 1.6. 2014 Nov Birdshill Grade Crossing Impacts by FDFP
Thanks
Skip
Charles B. Ormsby (Skip) Birdshill CPO / NA, Chair 2012 - 2013 A Joint Clackamas County Community Planning Organization (CPO) and
4 City of Lake Oswego Oregon Neighborhood Association (NA) Birdshill CPO / NA Centroid GMap: 45°25'46.48"N, 122°39'40.02"W Clackamas County 170 SW Birdshill Road Portland Oregon 97219-8502 GMap: LO_BHCN-170 Birdshill Rd Phn: 503.636.4483 Residence E-mail: [email protected] Web: http://birdshillcpona.shutterfly.com/ (Not Open Yet)
Attached Documents (ATnn) Two (2) total: NOTE UNANOTATED [time constraint(s)] AT01
Title: : Extract of page 15 of 15 from City of Portland, Willamette Shore Railway, Right-of-way Date: 1999 May 03 Monday 17:00 U (5:00 PM PT) File BHCN: MPUBXTMET_WSL_PG15_1999_05May_03Mo_1700U.pdf, Size: 138 kb, Page(s): 1
AT02
Title: : Extract of page 11 of 15 from City of Portland, Willamette Shore Railway, Right-of-way Date: 1999 May 03 Monday 17:00 U (5:00 PM PT) File BHCN: MPUBXTMET_WSL_PG11_1999_05May_03Mo_1700U.pdf, Size: 180 kb, Page(s): 1
AT03
Title: : SAFETY ALERT OR 43 / Terwilliger Blvd Tryon Creek Stabilization Date: 2014 Aug 26 Tuesday 15:48 (3:48 PM PT) File BHCN: EMAL_2014_08Aug_26Tu_1549U_BH_Dstr_TCBS.pdf, Size: 180 kb, Page(s): 1
Cross Referenced Documents (CRnn) Four (4) total: CR01
Title: Birdshill CPO/NA requests SWM Plan wrt OR Hwy 43 / Stampher Rd (MP_05.74) File BHCN: EMAL_2012_10Oct_28Su_1946U_BHCH_LDst_rqst_SWM_Stampher_Rd.pdf Size: 42 kb, Page(s): 5 Date: 2012 Oct 28 Sunday 20:40 U (8:40 PM PT) Hlink: https://sites.google.com/site/bhrqstgov/home/07rqswmsr
CR02
Title: Primary Earthquake Hazard Locales Along Oregon Highway 43 (OR 43) & Willamette Shore Line right-of-way (WSL) (ROW) for LOPT
CR03
5 Title: Wilsboro Branch Line (WBL) Right-of-Way (ROW) and Grade Crossing Trade Off Scenario(s) in the area of Lake Oswego (LO) Oregon (OR) File BHCN: PPDP_BHCN_WBL_cxng_impact_2014_11Nov_08Sa_1100U.pdf Size: 778 kb, Page(s): 3 Date: 2014 Nov 08 Saturday 11:00 U (11:00 AM PM PT) Hlink: 2014 Nov Birdshill Grade Crossing Impacts by FDFP
CR04
Title: Impacts of FDFP Plus TCWP Facility Plan with North Portal Access on Lake Oswego Oregon FDFP North Portal and WBL Grade Crossing Trades File BHCN: PPEP_BHCN_TCWP_Impacts_2014_11Nov_12We_1300U.pdf Size: 2,069 kb, Page(s): 4 Date: 2014 Nov 12 Wednesday 13:00 U (1:00 PM PM PT) Hlink: 2014 Nov TCWP 30 Year Site Plan justified by FDFP
6 Schneider, Catherine
From: Williams, Brant Sent: Tuesday, December 16, 2014 11:29 AM To: Bowerman, Karen; Council Distribution Subject: RE: consent calendar item for tonight Attachments: Willamette Shore Line Trestle Repair Project
I also see that each of you were copied on Skip Ormsby’s email from earlier this morning about the trestle project and fund transfer. Jeff had flagged Skip’s concern for me last evening as well. Attached for your information is my communications this morning with Skip and Amy Marks, both co‐chairs of Birdshill. TriMet will, in fact, be sending mailers about the project to affected residents and property owners. And the only street in Birdshill that will be impacted, Stampher Road, will be open and accessible throughout the project. Scott also spoke with Skip this morning and I believe was able to address at least some of his concerns.
Brant
From: Bowerman, Karen Sent: Tuesday, December 16, 2014 11:08 AM To: Williams, Brant; Council Distribution Subject: FW: consent calendar item for tonight
Thanks, Brant ‐‐ informative! Others on Council may wish to see this before the vote tonight, so I've copied them too.
Karen D. Bowerman, Ph.D. Lake Oswego City Councilor P.O. Box 1063, Lake Oswego, OR 97034 m: 503.858.5983
From: Williams, Brant Sent: Tuesday, December 16, 2014 10:11 AM To: Bowerman, Karen Cc: Studebaker, Kent; Lazenby, Scott; Cross, Shawn Subject: RE: consent calendar item for tonight
Karen,
The primary source of the beginning fund balance is a transfer of $459k from TriMet to Lake Oswego last fiscal year, which TriMet received from Multnomah County as payment to the Consortium for the use of the Willamette Shore Line right‐of‐way for the Sellwood Bridge replacement project. The remainder of the funds are from annual Consortium member contributions, other minor right‐of‐way leases and use permits fees, and interest earnings.
Regarding your second question, the 1994 IGA for the Management of the Willamette Shore Line Right‐of‐Way as supplemented by the 2003 IGA Regarding Maintenance and Funding of the Willamette Shore Line Right‐of‐Way spells out the responsibilities for maintenance, operations and capital improvements for the Line. Lake Oswego is responsible for maintenance and operations and TriMet for capital improvements. Attached are both agreements if you’re interested (and/or have insomnia).
1 There is a ton of history and information about the Willamette Shore Line. I’d be happy to sit down and go over this with you if you’d like. Otherwise, let me know if you have any questions.
Brant
From: Bowerman, Karen Sent: Tuesday, December 16, 2014 9:21 AM To: Cross, Shawn; Williams, Brant Cc: Studebaker, Kent; Lazenby, Scott Subject: consent calendar item for tonight
Our 2014‐15 budget shows a beginning balance in the trolley fund of almost $600K. What is the source of those funds? Also, Brant, I'm unfamiliar with the documentation that establishes why "both the City and TriMet have responsibilities for .. maintaining .. the WSL to retain it as a functioning rail line."
Thanks for your help on this.
Karen ‐‐‐
Karen D. Bowerman, Ph.D. Lake Oswego City Councilor P.O. Box 1063, Lake Oswego, OR 97034 m: 503.858.5983
2 December 9, 2014 Mayor Kent Studebaker Members of City Council City of Lake Oswego 380 A Avenue Lake Oswego, OR 97035
Dear Mayor Studebaker & Members of City Council, May I please offer my sincere gratitude to Councilors Jordan and Hughes for their service to the Lake Oswego community. Councilor Jordan played a critical role in the implementation of the Lake Grove Village Center Plan, an effort the Lake Grove community is and will remain grateful for. She offered uncompromised leadership over a long term of eight years that required much sacrifice on her part, and I respect every ounce of effort it took to be such an inspirational leader for our community. The results of her efforts are evident at both the local and regional level. Her respect for the process of city business and our city staff is an example to be followed.
Councilor Hughes demonstrated herself to be a stalwart of the rights of property owners, and her diligent research and work on behalf of the citizens of Lake Oswego provide a framework for our council work going forward. I thank Councilor Hughes for the time she spent (and I expect will continue to spend) educating folks in LO, including me, on the realities of the sensitive land regulations.
Both of these leaders have shown themselves to be role models for the community and I would like to extend my thanks for their time of selfless leadership for the betterment of the LO community. These two councilors leave huge shoes to fill but also have laid down the example for providing responsible and intelligent leadership the citizens of our town deserve and expect.
My sincere appreciation and gratitude,
Joe Buck