City Council Packet - 02/22/2005
CITY OF TIGARD
OREGON
TIGARD CITY COUNCIL
MEETING
February 22, 2005
COUNCIL MEETING WILL BE TELEVISED
I:\Ofs\Don n a's\Ccpkt3
13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772
Agenda Item No. 4. 1
For Agenda of 4 I .c
COUNCIL MINUTES
TIGARD CITY COUNCIL MEETING
February 22, 2005
Mayor Dirksen called the meeting to order at 6:30 p.m.
Council Present: Mayor Dirksen; Councilors Harding, Sherwood, Wilson, and Woodruff.
• STUDY SESSION
> ADMINISTRATIVE ITEMS
a. Mayor's Agenda was distributed. A copy of this agenda is on file in
the City Recorder's office.
b. Council consensus was to rearrange the business meeting agenda
so that the Ash Creek item (No. 10 on the agenda) will be heard by
the City Council after Item No. 4.
C. Interim Finance Director Imdieke noted a title change for Agenda Item
• No. 8, the title should read: PUBLIC HEARING OF THE CITY
COUNCIULCRB TO AMEND THE TIGARD MUNICIPAL CODE TO
REFLECT CHANGES IN PUBLIC CONTRACTING RULES AND
DECLARE AN EMERGENCY
d. Interim City Manager Prosser referred to and briefly reviewed a
February 22, 2005, memorandum from Interim Finance Director
Imdieke regarding an update on PERS rates. A copy is on file in the
City Recorder's office.
e. Information on "Reasons to Support SB 730" was distributed to the
Council. A copy is on file in the City Recorder's office.
f. Interim City Manager Prosser advised Council of an upcoming Brown
Bag Lunch, Noon, March 4 in the Town Hall for former City Manager
Bill Monahan. Mr. Monahan thanked the Council for asking him
about a City-sponsored reception in his honor; however, he advised
Interim City Manager Prosser that he would not want anything other
than the lunch.
g. City Council received information (copy is on file in the City
Recorder's office) about an MPAC Symposium on Annexation -
February 23, 2005 - 5-7 p.m. Metro Council Chambers - 600 NE
Grand Avenue, Portland, Oregon
h. Calendar Review
• February 28: Capital Improvement Program Tour 3-5 p.m.; Meet
in the Permit Center Lobby
• March 1: Special Council Meeting - 6:30 p.m. - Town Hall
• March 8: Council Business Meeting - 6:30 p.m. - Town Hall
COUNCIL MINUTES - FEBRUARY 22, 2005 page 1
• March 15: Council Workshop Meeting - 6:30 p.m. - Town Hall
• March 22: Council Business Meeting - 6:30 p.m. - Town Hall
• March 29: 5t" Tuesday Council Meeting - 7 p.m. - Water
Auditorium
> CITY COUNCIL ORIENTATION
• City Attorney Ramis reviewed the following topics:
1. Municipal Authority
2. Meeting Procedure and Public Meeting Law
3. Public Records and Public Retention
A copy of the outline of his presentation is on file in the City Recorder's
office.
> UPDATE ON COMMUTER RAIL URBAN RENEWAL FEASIBILITY STUDY
(Schedule and status of Downtown)
Community Development Director Hendryx updated the City Council on the
status of the Washington County feasibility study analysis for the commuter
rail urban renewal effort. Participants in this effort include the cities of Tigard
and Beaverton, Washington County, and Tualatin Valley Fire and Rescue
and the Tualatin Hills Parks and Recreation District. Mayor Dirksen is on the
Policy Advisory Group with Councilor Sherwood attending meetings as an
alternate. Community Development Director Hendryx advised the Council
had received a briefing in January on this matter.
Community Development Director Hendryx overviewed the areas of main
concerns, including:
• governance
• maintaining Tigard control (funding)
• how this effort relates to the Downtown Planning effort
• financial impacts to the General Fund
• public outreach
Mayor Dirksen and Councilor Sherwood commented on the County effort
noting this was also related to the 217 corridor revitalization effort. There will
be a need to incorporate the Downtown Plan. Tigard is considered an
important component to the multi jurisdictional effort. There was discussion
on the need for this matter to be placed before voters and the timeline of
what needs to be done for the May 2006 election.
Discussion then followed on the Downtown Plan. Community Development
Director Hendryx distributed a chart entitled "Downtown Improvement Plan
COUNCIL MINUTES - FEBRUARY 22, 2005 page 2
Phases." A copy is on file in the City Recorder's office. The chart identified
three phases:
1. Plans
2. Tools
3. Build
City Attorney Ramis noted the process should include ample opportunity for
public involvement. There was discussion on process, which would include
an opportunity for other taxing entities to review, public notice, a Planning
Commission public hearing, and a City Council public hearing.
Requirements for urban renewal plans were discussed and Community
Development Director Hendryx distributed language from ORS 457.085 -
"Urban renewal plan requirements; accompanying report; contents; approval
required." A copy is on file in the City Recorder's office.
Another City Council discussion, Community Development Director Hendryx
advised, is scheduled for March.
In response to a question from Councilor Woodruff about tangible results
that could be expected soon for the downtown, Interim City Manager
Prosser advised that some capital improvement projects have been
identified and recommended in the capital improvement program (CIP) for
the upcoming fiscal year.
Councilor Wilson requested that when the consultant comes to the City
Council to talk about urban renewal, that the consultant addresses how
projects are selected for an urban renewal district.
• EXECUTIVE SESSION: Not held
The Study Session concluded at 7:28 p.m.
1. BUSINESS MEETING
1.1 Mayor Dirksen called City Council & Local Contract Review Board to order
at 7:35 p.m.
1.2 Council Present: Mayor Dirksen; Councilors Harding, Sherwood, Wilson,
and Woodruff.
1.3 Pledge of Allegiance
1.4 Council Communications & Liaison Reports: None.
1.5 Call to Council and Staff for Non-Agenda Items
COUNCIL MINUTES - FEBRUARY 22, 2005 page 3
Mayor Dirksen asked all present to note that the public hearing for Ash
Creek Estates, Agenda Item No. 10, would be moved forward to Agenda
Item No. 5.
2. CITIZEN COMMUNICATION (Two Minutes or Less, Please)
• Ken Henschel, 14530 SW 144th Avenue, Bull Mountain, 97224, addressed
some comments he said were made at the last meeting regarding CP04B.
It was referred to at that time as the County Planning Organization 413; it is
the Citizen Participation Organization 4B. He clarified that this is not an
official County organization; rather, it is sanctioned by the County. The
organization exists to educate people within the CPO's boundary, which
includes areas of Tigard as well as unincorporated Washington County.
Issues affecting livability - especially land use are covered. Occasionally,
the CPO membership decides to provide local government with information
on where they stand on certain issues.
Mr. Henschel said he again invited the City of Tigard to participate in those
meetings where it would be appropriate. Citizens would like representation
from the City of Tigard to speak on issues that affect them.
• Alice Ellis Gaut, 10947 SW Chateau Lane, Tigard, OR 97244, stated she
was before the City Council on behalf of the Tualatin Riverkeepers to
invite the City Council, staff, and members of the public to a restoration
tree planting project on Saturday, February 26, 2005, 9 a.m. -1 pm. This
project will take place on the Metro property, next to the new library
property. The property consists of 11 acres of greenspace that Metro has
purchased. She noted this is the property for which there is a proposed
road to cross and she urged everyone to come see this "beautiful and
special place and observe what we have there..." She said she wanted
people to get a feeling of what it would mean to put a road through this
property - what it would do to the habitat and vegetation. Ms. Gaut
distributed an invitation to the City Council.
• John Frewing, 7110 SW Lola Lane, Tigard, OR 97223, noted that at the
Parks Board meeting last week, Supervisor Dan Plaza presented a new
proposal for parks acquisition as part of the CIP for the year 2005-2006.
Prior public versions of the CIP showed no such expenditures. Mr.
Plaza's proposal included the use of $1.3 million in parks system
development charges (SDC's), which have been collected from new
construction within the Tigard City limits over the past years, for the
purpose of buying ten acres outside the City limits on Bull Mountain. Mr.
Frewing said that no park sites have been acquired inside the City during
the past several years when this $1.3 million has accumulated. The
Board asked why funds raised inside City limits are not being used for
COUNCIL MINUTES - FEBRUARY 22, 2005 page 4
0
parks acquisition inside the City limits, which is seriously park-area
deficient? Mr. Frewing said that Mr. Plaza said that the City policy has
been that acquisitions only occur within the City, but that policy might be
changing.
Mr. Frewing said that when Mr. Plaza was asked why these funds would
not be spent in Tigard, Mr. Plaza replied, "That's the way it is." Mr.
Frewing said that when Mr. Plaza was asked to suggest properties, the
only plan Mr. Plaza had identifying potential parks was the white paper
developed last year for Bull Mountain annexation. Mr. Frewing said his
query to the City Council was threefold:
1. Why doesn't Tigard have a plan for parks acquisition within our City
limits?
2. What is Tigard's policy on expenditure of Park SDC funds and what
criteria are used? Mr. Frewing said he did not know of any policy
adopted by City Council resolution or ordinance.
3. What citizen participation opportunity will be available as any
change to this policy is developed?
Mr. Frewing said that in arguing against spending Tigard Parks SDC
funds for acquisition outside the City, he reminded the City Council that
the Development Code, 18.350.100 B.2. clearly states that for Planned
Developments, not for subdivisions, the City "...may require additional
open space dedication..." Mr. Frewing said that in view of the fact that
Tigard Parks SDCs are not being collected on Bull Mountain, he urged
that the City Council use "this provision energetically to acquire park
space there where the City already has planning authority."
Mr. Frewing said he wanted to make an apology that stems from
comments he made two weeks ago. He said he testified about a potential
gift of some five acres to Tigard. He said that Tigard staff was informed of
this potential gift, saying that Parks Supervisor Dan Plaza confirmed it to
him in the summer of 2003. Later Mr. Plaza e-mailed Mr. Frewing saying
it was not him and he felt that Mr. Frewing owed him a public apology.
Mr. Frewing said, "I make that apology." Mr. Frewing said he now
believed it was not Dan Plaza, but Planner Morgan Tracy, who confirmed
this potential gift to Mr. Frewing. Mr. Frewing said that "Morgan told me
then that the offer was forwarded to Parks and nothing more was heard of
it. Perhaps that's why I thought Dan was involved. I do want to apologize
to Dan Plaza for apparently hurting his feelings. But, I never did say it
was Dan who turned down the offer of free parks. Dale Richards
apparently did confirm this offer to Tigard in remarks by his attorney two
weeks ago, but the story doesn't quite end there. At a Parks Board
meeting last week, Dan Plaza mentioned to the Board that both the
COUNCIL MINUTES - FEBRUARY 22, 2005 page 5
Planning Commission and the City Council had been informed of this
potential gift in the summer 2003. Now, all of you weren't on the Council,
obviously, at that time. My question to you is, 'Who on Tigard staff,
Planning Commission, or City Council considered this gift of free parks or
open space and declined the offer and why. It is of more than historical
interest as you have stated a major goal for this year of acquiring more
parks and open space, and the process which you use is of current public
interest."
Mayor Dirksen said he could answer a couple of items presented by Mr.
Frewing; other items will need research in order to be answered. Mayor
Dirksen said the City Council, during its recent goal-setting discussion,
recognized the limited amount of properties available for parks inside the
City. City Council told the staff not to limit themselves to potential park
property inside the City limits; but look inside the urban planning area as
well. It is anticipated that eventually those areas will be inside the City
and those areas could be developed as parks.
Councilor Wilson added that half of Bull Mountain is in the City, annexed
over the years in numerous subdivisions. City Council anticipates more
property on Bull Mountain to come in. The City Council's feeling was,
"why wait until it's fully developed, when there is nothing left." Councilor
Wilson agreed there were other park deficient areas in the City, but it has
long been recognized that the Bull Mountain area - that quadrant of the
City - is one of the most park-deficient areas, and he said he thought the
Parks Master Plan noted this deficiency (although he said he would need
to research this).
Councilor Woodruff agreed that the City Council has given direction to the
staff and the Parks Board to begin to research aggressively.what the City
might do with the increased SDC funds. Interim City Manager Prosser
clarified that the Capital Improvement Program will be before the City
Council in March for review. Councilor Woodruff noted the City Council
would review and make decisions about how to use those funds.
Councilor Sherwood noted that Tigard citizens in the Bull Mountain area
have noted that they have paid SDC's and questioned why there were no
parks in that area. These areas in Tigard are all developed with no land
available for park land.
Mr. Frewing responded that the Parks Board commented last week that
over the years there has been a lot of development on the "flat land" as
well and yet the money that appears to be set forth in this 2005-2006 CIP
Program is entirely on Bull Mountain. Mr. Frewing said, "I think the Parks
COUNCIL MINUTES - FEBRUARY 22, 2005 page 6
Board, and I'm putting words in their mouth - maybe shouldn't - they felt
it should be spent over all of the City."
Councilor Sherwood told Mr. Frewing that the City Council has not had
any meetings with the Parks Board. This Board is to bring
recommendations to the City Council. She said that for Mr. Frewing to
make an assumption "that we have already done that, is not fair, because
we really haven't" Mr. Frewing said, "I'll hope you consider the whole
City."
Councilor Wilson commented on open spaces, which are left over from
development. He noted he was on the Planning Commission for about
eight years prior to his service on the City Council. Councilor Wilson said
he remembered PUD's with left over parcels and it was the City's policy at
that time not to take those. Primarily, he thought this policy was
implemented because of additional maintenance costs when, in fact, they
would be cared for at the expense of the homeowners instead of the
expense of the City. The end result was the same, the open space was
preserved, except that it wasn't open for public access. Councilor Wilson
said he doesn't know that this policy as changed, and he was not sure it
should be changed. However, he said it would be worth reviewing and
noted the great deal of concern about disappearing open space.
Councilor Woodruff noted he was concerned when Mr. Frewing "...made
that comment at the last meeting. I guess I'm happy to hear that it was
brought before the Council... before my time ...Anytime that there's a
possibility of donation of land, that Council be made aware of that."
Mr. Frewing advised he was sympathetic to the fact that there's probably
some land that the City shouldn't pick up - it's dangerous or in someway
not useable at all. But, there's a lot of other opportunities to gain open
space, not necessarily soccer or baseball fields, through this provision in
the Code. He said that is what he is "urging the City Council to do where
it is feasible."
• Robert Ward, 7162 SW Barbara Lane, Tigard, Oregon, spoke to the City
Council about his concern for livability with the increasing "densification"
He noted there seems to be little sympathy for homeowners. He referred
to 300' towers on Mcadam that were recently approved. He said citizens
are speaking up more and said, "Don't forget about livability." Councilor
Wilson noted the timeliness of Mr. Ward's remarks. Councilor Wilson
advised that the City Council would be discussing issues with Metro later
on this agenda. In addition, the Planned Development ordinance is under
review due to the concerns expressed about this ordinance.
COUNCIL MINUTES - FEBRUARY 22, 2005 page 7
Discussion followed with regard to the Planned Development ordinance,
which Mr. Ward said was confusing. Mayor Dirksen noted there are
several issues to be considered on land use matters, including land use
laws and specific court cases, which take away flexibility. Councilor
Sherwood noted the City of Tigard will be performing a Comprehensive
Plan Update and asked Mr. Ward to "stay tuned and stay involved."
3. CONSENT AGENDA: Youth Advisory Council President Rob Williams reviewed
the Consent Agenda:
3.1 Approve Council Minutes for January 18, and 24, 2005
3.2 Approve Budget Amendment No. 9 to the Fiscal Year 2004-05 Budget to
Increase Appropriations in the Library Department for Additional Hours of
Operation to Re-Open the Library on Sundays - Resolution No. 05-09
A RESOLUTION APPROVING BUDGET AMENDMENT #9 TO THE FY
2004-05 BUDGET TO INCREASE APPROPRIATIONS IN THE LIBRARY
DEPARTMENT FOR ADDITIONAL HOURS OF OPERATION TO RE-
OPEN THE LIBRARY ON SUNDAYS
3.3 Local Contract Review Board:
a. Award Contract for the Construction of North Dakota Street Pedestrian
Crosswalk
b. Approve Amendment to Engineering Services Contract for Murray Smith
& Associates, Inc., for Design of a 550-Foot Zone Reservoir No. 2
Councilor Harding asked that Agenda Item 3.2 be removed for separate discussion.
Motion by Councilor Wilson, seconded by Councilor Sherwood, to approve the
Consent Agenda without Item No. 3.2.
The motion was approved by a unanimous vote of Council present:
Mayor Dirksen: Yes
Councilor Harding: Yes
Councilor Sherwood: Yes
Councilor Wilson: Yes
Councilor Woodruff: Yes
COUNCIL MINUTES - FEBRUARY 22, 2005 page 8
Discussion followed on Item 3.2:
3.2 Approve Budget Amendment No. 9 to the Fiscal Year 2004-05 Budget to
Increase Appropriations in the Library Department for Additional Hours of
Operation to Re-Open the Library on Sundays - Resolution No. 05-09
A RESOLUTION APPROVING BUDGET AMENDMENT #9 TO THE FY
2004-05 BUDGET TO INCREASE APPROPRIATIONS IN THE LIBRARY
DEPARTMENT FOR ADDITIONAL HOURS OF OPERATION TO RE-
OPEN THE LIBRARY ON SUNDAYS
Councilor Harding noted her concerns about using bequest dollars for
staffing. She also advised of her concerns with the wording on a sign placed
at the entrance of the library regarding reduced services because the levy
did not pass. She advised she was not in agreement with the proposed
resolution as presented to the City Council. She also noted she did not
realize that consensus had been reached by the City Council on this item
and was surprised to see it on the Consent Agenda.
Councilor Woodruff agreed that it is unusual to use bequest dollars this way;
however, he pointed out that the Tigard family was willing to do this which
was why he supports this action.
Councilor Harding expressed concern about opening the library on Sundays
for a period of time and then needing to shut it down later.
Councilors Sherwood and Wilson made statements in support of Councilor
Woodruffs idea that continuation of Sunday hours could be sorted out
during the Budget process. During the discussion, it was pointed out that
the dollars saved from library construction cannot be used for operation
expenses (legal requirements).
Motion by Councilor Woodruff, seconded by Councilor Sherwood, to
approve consent Agenda Item 3.2 as presented.
The motion was approved by a majority vote of Council present:
Mayor Dirksen: Yes
Councilor Harding: No
Councilor Sherwood: Yes
Councilor Wilson: Yes
Councilor Woodruff: Yes
COUNCIL MINUTES - FEBRUARY 22, 2005 page 9
4. RECOGNIZE OUTSTANDING CITIZEN ASSISTANCE
Police Chief Dickinson presented the staff report on this item. He described the
activity of several citizens who assisted the Tigard Police Department:
• Erik Ramseyer - for assistance resulting in the arrest of a theft and robbery
suspect on December 22, 2004.
• Signe Martin - for assistance resulting in the arrest of a motorist driving under
the influence on December 4, 2004.
• Tanner Ellenson - for assistance resulting in the arrest of a hit and run
motorist that struck a pedestrian on December 21, 2004.
• Trever Ellenson- for assistance resulting in the arrest of a hit and run
motorist that struck a pedestrian on December 21, 2004.
Agenda Item No. 10 was considered at this point in the meeting.
5. CONSIDER INTERGOVERNMENTAL AGREEMENT (IGA) BETWEEN THE CITY
OF TIGARD AND TRIMET FOR THE ASSIGNMENT OF A FULL-TIME POLICE
OFFICER TO THE TRANSIT POLICE DIVISION
Police Chief Dickinson presented the staff report on this item. Police Chief
Dickinson responded to questions from Councilor Harding regarding what TriMet
would fund and what costs would be borne by the City. The advantages and
disadvantages are enumerated in the staff report; a copy is on file in the City
Recorder's office.
Motion by Councilor Sherwood, seconded by Councilor Harding, to approve the
Intergovernmental Agreement.
The motion was approved by a unanimous vote of Council present:
Mayor Dirksen: Yes
Councilor Harding: Yes
Councilor Sherwood: Yes
Councilor Wilson: Yes
Councilor Woodruff: Yes
6. CONSIDER BUDGET AMENDMENT NO. 8 TO THE FISCAL YEAR 2004-05
BUDGET TO ADD A FULL-TIME POLICE OFFICER POSITION AND INCREASE
APPROPRIATIONS FOR FUNDING OF THIS POSITION
Police Chief Dickinson presented the staff report on this item. A budget
amendment is now needed with the City Council's approval of the
COUNCIL MINUTES - FEBRUARY 22, 2005 page 10
Intergovernmental Agreement between the City of Tigard and TriMet for the
assignment of a full-time police officer to the Transit Police Division. (see Agenda
Item No. 5)
Motion by Councilor Wilson, seconded by Councilor Sherwood, to adopt Resolution
No. 05-10.
RESOLUTION NO. 05-10 -A RESOLUTION APPROVING BUDGET
AMENDMENT #8 TO THE FY 2004-05 BUDGET TO ADD A FULL-TIME POLICE
OFFICER POSITION AND INCREASE APPROPRIATIONS FOR FUNDING OF
THIS POSITION
The motion was approved by a unanimous vote of Council present:
Mayor Dirksen: Yes
Councilor Harding: Yes
Councilor Sherwood: Yes
Councilor Wilson: Yes
Councilor Woodruff: Yes
7. DISCUSS A PROPOSED RESOLUTION TO SUPPORT COLLABORATION WITH
WASHINGTON COUNTY JURISDICTIONS REGARDING PROPOSED
CHANGES TO GOAL 14 (URBANIZATION) AND THE URBAN GROWTH
BOUNDARY ADMINISTRATIVE RULES, AND TO SUPPORT LOCAL CONTROL
OVER THE LAND-USE PROCESS
Interim City Manager Prosser advised that staff developed a draft resolution to
attempt to address some of the issues discussed by Council previously.
Council discussion followed. Mayor Dirksen said that in reviewing the draft
resolution he was not sure the issues were addressed. He noted concerns that the
wording was not strong enough, but upon consideration he suggested that what
might be needed is more than one resolution. The proposed resolution really
addresses more the issue of collaborating with Tualatin and other cities. The City
might want to consider the proposed resolution or a modification of the resolution at
this time and then consider further steps to take in the future which addresses more
directly the concerns by the City of Tigard.
Councilor Sherwood asked if Senate Bill 730 would address some of the concerns.
Mayor Dirksen said the Senate Bill would address issues at a state level, but he
didn't think it would conflict with the proposed action before the City Council.
Councilor Sherwood suggested the Council consider a resolution supporting
Senate Bill 730. Mayor Dirksen thought this might be something to consider in the
future.
COUNCIL MINUTES - FEBRUARY 22, 2005 page 11
Councilor Wilson said he would be uncomfortable considering any resolution at this
time. He noted this was the first opportunity for the Council to discuss Metro at all,
other than the discussion at the previous goal-setting session. He said, "We're not
happy. I'd rather discuss things at a policy level ...what are our problems. While I
appreciate our relationship with Tualatin ...I think that our issues are slightly
different and I'm not sure that they frame the problem entirely as it should be... I
would rather just throw it out for discussion... about what our issues are."
Mayor Dirksen noted that Tualatin has requested another meeting between their
Mayor and other cities to continue this discussion. He said that, "Perhaps, through
that process we could further clarify what Tualatin would ask of us..." and then the
Tigard Council could consider a resolution in support. Then, the Mayor suggested,
in a separate discussion, the Council could discuss the issues pertinent to the City
of Tigard. The Mayor said that one of the questions the City of Tualatin is asking is,
"Are cities interested in continuing this discussion?"
Councilor Sherwood noted one of the biggest issues for Tigard is density. She said
she thought the Mayor should continue with the discussion with Tualatin. She
questioned whether a resolution would be the appropriate way to show support for
Tualatin.
Interim City Manager Prosser said staff had understood there might be a timing
issue; however, he was hearing from Council that more discussion is needed. He
suggested looking at future tentative agendas to schedule a longer discussion at a
workshop meeting to discuss and identify policy issues. After that, staff could
redraft the resolution for Council consideration. Council agreed with Mr. Prosser to
schedule this item for more discussion.
Mayor Dirksen will continue to go to the Tualatin meetings. He asked Councilor
Harding if she would be available to attend some of the Tualatin meetings, which
are usually held during business hours. She confirmed that she would be
available.
Mayor Dirksen said that one of the outcomes the City of Tigard is looking for is for
more flexibility when it comes to redrafting the Comprehensive Plan. Councilor
Wilson said, "I think we need more than a change of heart at Metro. We need a
Charter change or a new state law... because personalities have come and
gone... it's structural. It seems almost really unlikely that much is going to change
by the time we get our Comp Plan done ...I'm a little uncomfortable in waiting two
months to even discuss in broad terms our frustrations."
Mr. Prosser reviewed the tentative agenda with the Council and with some
rearrangement of agenda items; this topic was scheduled for further discussion at
the March 15, 2005, workshop meeting.
COUNCIL MINUTES - FEBRUARY 22, 2005 page 12
8. PUBLIC HEARING (CITY COUNCIULOCAL CONTRACT REVIEW BOARD) - TO
AMEND THE TIGARD MUNICIPAL CODE TO REFLECT CHANGES IN PUBLIC
CONTRACTING RULES AND DECLARE AN EMERGENCY
Interim Finance Director Imdieke introduced this item.
a. Mayor Dirksen, as the LCRB Chair, opened the public hearing.
b. Declarations or Challenges: None
C. Staff Report: Finance Department Buyer Barrett reviewed the staff report; a
copy is on file in the City Recorder's office. The proposed ordinance
provides for the transition to new Public Contracting Rules, revises certain
provisions in the Tigard Municipal Code relating to contracting authority,
authorizes the adoption of revised Public Contracting Rules by resolution,
and declares a state of emergency to ensure any revised Public Contracting
Rules will be in effect in the appropriate time frame.
d. Public Testimony: None
e. Council/LCRB discussion followed. In response to Councilor/Board Member
Harding, Mr. Barrett and Mr. Imdieke explained the need for the emergency
clause on the ordinance. If the ordinance is not adopted by March 1, the
City of Tigard purchasing process would fall under the Attorney General's
Model Public Contracting Rules.
City Attorney Ramis also clarified the provisions of the ordinance that allow
for some details on purchasing process to be done by a resolution; this
would provide flexibility for revising the Public Contracting Rules.
f. The staff recommendation was to approve the proposed ordinance.
g. Mayor/LCRB Chair Dirksen closed the public hearing.
h. Council/LCRB Consideration:
Motion by Councilor/Board Member Sherwood, seconded by
Councilor/Board Member Woodruff, to adopt Ordinance No. 05-05,
ORDINANCE NO. 05-05 AN ORDINANCE AMENDING THE TMC TO
REFLECT CHANGES IN THE PUBLIC CONTRACTING RULES AND
DECLARE AN EMERGENCY
COUNCIL MINUTES - FEBRUARY 22, 2005 page 13
The motion was approved by a unanimous vote of Council/LCRB Members
present:
Mayor/Board Member Dirksen: Yes
Councilor Harding/Board Member: Yes
Councilor Sherwood/Board Member: Yes
Councilor Wilson/Board Member: Yes
Councilor Woodruff/Board Member: Yes
9. LOCAL CONTRACT REVIEW BOARD PUBLIC HEARING - TO CONSIDER A
RESOLUTION REVISING PUBLIC CONTRACTING RULES, FINDINGS
SUPPORTING THE REVISED PUBLIC CONTRACTING RULES, AND A
REVISED PURCHASING AND CONTRACTING MANUAL
a. Mayor Dirksen/LCRB Chair opened the public hearing.
b. Declarations or Challenges: None
C. Staff Report: Finance Department Buyer Joe Buyer presented the staff
report. The issue before the Council/LCRB was to consider approval, by
resolution, of revised Public Contracting Rules, the supporting findings for
the revised Public Contracting Rules, and the establishment of a revised
Purchasing Contracting Manual.
d. Public Testimony: None
e. Staff Recommendation: Approve the proposed resolution presented to the
City Council.
f. Mayor/LCRB Chair closed the public hearing.
g. Council Consideration: Local Contract Review Board Resolution No. 05-01
Motion by Councilor/Board Member Wilson, seconded by Councilor/Board
Member Harding, to adopt LCRB Resolution No. 05-01.
LCRB RESOLUTION NO. 05-01 A RESOLUTION ADOPTING REVISED
PUBLIC CONTRACTING RULES, RELATED FINDINGS, AND REVISED
PURCHASING AND CONTRACTING MANUAL.
The motion was approved by a unanimous vote of Council/LCRB Members
present:
Mayor/Board Member Dirksen: Yes
Councilor Harding/Board Member: Yes
Councilor Sherwood/Board Member: Yes
Councilor Wilson/Board Member: Yes
Councilor Woodruff/Board Member: Yes
COUNCIL MINUTES - FEBRUARY 22, 2005 page 14
10. PUBLIC HEARING (QUASI-JUDICIAL) ASH CREEK ESTATES - LAND USE
BOARD OF APPEALS (LUBA) REMAND - SUBDIVISION (SUB) 2003-
00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003-00004/
ZONE CHANGE (ZON) 2003-00003/SENSITIVE LANDS REVIEW (SLR) 2003-
00005/ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT (VAR) 2003-00037
The following description was read by the Mayor at the February 8, 2005, City
Council Meeting:
ITEM ON REMAND: The State Land Use Board of Appeals (LUBA) has
remanded City Council's approval of a 29-lot Planned Development Subdivision
on 9.3 acres and associated Zone Change, Sensitive Lands, and Adjustment
reviews for additional findings to support their decision. This hearing is limited
to the four specific assignments of error which are generally: 1) The City's
acceptance of lower "K" values in relation to the proposed vertical sag on SW
74th and demonstration that the City Engineer is authorized to approve such
deviations to adopted street standards; 2) The requirement that the applicant
prepare and
submit a tree plan that identifies the size, species, and location of trees on the
site, provide a removal plan, protection plan, and mitigation program in
accordance with Tigard Community Development Code (TCDC) Chapter
18.790; 3) Revised findings are required for the proposed curb tight sidewalks
on SW 74th Avenue and also for the cul-de-sac standards to address the
relevant criteria of TCDC Chapter 18.370.C.11; and 4) Additional findings
related to the landscape protection criteria of TCDC Chapter 18.745.030.E. A
full copy of LUBA's Final Opinion and Order can be obtained from City Hall at
cost, or is also available online at http://tuba.state. or.us/adf/2004/aug04/03194.htm.
LOCATION: 9750 SW 74th Avenue; WCTM 1S125DC, Tax Lots 300 and 400.
ZONE: R-4.5: Low-Density Residential District. The R-4.5 zoning district is
designed to accommodate detached single-family homes with or without
accessory residential units at a minimum lot size of 7,500 square feet.
Duplexes and attached single-family units are permitted conditionally. Some
civic and institutional uses are also permitted conditionally. APPLICABLE
REVIEW CRITERIA: Tigard Community Development Code Chapters 18.370,
18.745, 18.790 and 18.810.
a. Mayor Dirksen noted this was a continuation of the Public Hearing
opened on February 8, 2005.
b. City Attorney Ramis noted that the City Council closed the oral portion of
the testimony at the end of the last public hearing on this item. The City
Council allowed a schedule under which participants in the hearing could
submit additional written comments. The Council has received copies of
the comments for review. City Attorney Ramis noted the City Council
was at the stage of the hearing process wherein the City Council is to
COUNCIL MINUTES - FEBRUARY 22, 2005 page 15
deliberate. He noted that although the hearing is closed, the Council has
new information; if the Council has any questions it would be within
proper procedure for Council members to ask questions of staff. Staff
may respond so long as no new information or issues are injected into
the process through that interchange. If the City Council was to ask a
question that resulted in new factual information, the City Council would
need to create an opportunity for people to respond.
C. City Attorney advised there was no need for declarations or challenges at
this point.in the proceedings unless there has been any ex parte
communications since the last hearing on the subject.
Councilor Woodruff advised he made a site visit.
City Attorney advised that one communication came into the City Council
from the City Parks and Building manager after the close of the period
stipulated as a deadline for written testimony to be submitted to the City
Council. City Attorney Ramis said the Council should not consider this
communication dated February 18 during its deliberations.
d. Summation by Community Development Department Staff: Associate
Planner Tracy advised that since the February 8, 2005, City Council
hearing, staff has received two written testimonies: one from John
Frewing with several exhibits and the second from Alice Ellis Gaut.
Those items raised several issues. Associate Planner Tracy said what it
was important to realize is that LUBA has asked the City Council to
consider four specific issues. The testimony that the City Council
received covered a much broader spectrum of issues than what it was
being asked to consider by LUBA. Since the written testimonies were
received, a rebuttal by the applicant was submitted, which concisely
addressed the issues before the City Council. The issues were limited to
the authority for the City Engineer to deviate from street design standards
in accepting a lower K value for the vertical sag; the lack of a tree plan in
the original application; create the findings in support of granting the
curb-tight sidewalks, cul de sac length, cul de sac number of units; and
evidence in support to demonstrate the landscape protection criteria
were being met. The applicant submitted the information in rebuttal
addressing those applicable criteria, in the Development Code and
responding to the issues that LUBA raised. Based on the findings in the
staff report, staff believes all the applicable criteria have been satisfied
and there is no basis for denial. Associate Planner Tracy advised staff
welcomes and would be happy to clarify any issues that the City Council
may have with respect to the application or testimony.
COUNCIL MINUTES - FEBRUARY 22, 2005 page 16
In response to a question from Mayor Dirksen, Associate Planner Tracy
advised staff recommends that the City Council adopt the proposed
resolution, which had been submitted in the City Council meeting packet
as Attachment 4.
e. Councilor Wilson noted the staff report indicated that originally the
applicant requested an adjustment on the street with regard to the K
value. The applicant was told the adjustment was not necessary
because the slope did not exceed a certain percentage over a certain
number of feet. Councilor Wilson said that as he reviewed the
adjustment criteria, it is not limited to slope and the criteria for granting
the adjustment appears to easily be met with the circumstances that are
present. Councilor Wilson was wondering why that information was not
apparent.
Associate Planner Tracy responded that there was a distinction made in
the Development Code. Certain criteria in the Development Code
relating to streets are very specific. In Title 18 (the Development Code)
there are standards relating to the grade - the amount of slope on a
street for a certain amount of feet. This is different from K value, which is
a design concept used in engineering for the degree of a curve, sag, or
bend in the road. There are a number of criteria for designing streets
that are not part of the Development Code. The criteria purposefully
excepted from the Development Code are made part of the City of
Tigard's design standards for streets they are not a land use issue.
LUBA has accepted the fact that no adjustment was required for the K
value because it is not part of the Development Code. The question from
LUBA was, did the City Engineer have the authority to approve
something that does not meet the City of Tigard's design standards for
streets? Associate Planner Tracy said that in looking at the design
standards for streets, which is a separate document, it is implicit in those
design standards that the City Engineer has that authority. Associate
Planner Tracy said that the adjustment process that Councilor Wilson
was referring to was irrelevant to the K value question.
Councilor Wilson summarized his understanding that the design
standards they are not intended to cover every circumstance and there is
some leeway for discretion. Councilor Wilson said also it was mentioned
that the design standards were derived from the Washington County
Standards and he could understand that every jurisdiction, especially
smaller ones, would not have to "reinvent the wheel" as the AASHTO
standards are recognized throughout the country as engineering
standards for roads. Councilor Wilson asked for clarification of the
relationship between the City of Tigard's standards, Washington County
and AASHTO.
COUNCIL MINUTES - FEBRUARY 22, 2005 page 17
Associate Planner Tracy referred this question to City of Tigard
Development Review Engineer McMillan. Ms. McMillan referred to the
Design Standards document. The preface in that document states that
the Washington County Uniform Road Improvement Design Standards
have been used as a guide creating the standards. Therefore, the City of
Tigard did not adopt the Washington County document "all out" as a
standard, but it is used as a guide.
Councilor Woodruff asked about the tree protection steps, which was
prepared in November. He inquired if staff believed this was adequate
and would meet the concerns. Associate Planner Tracy said staff
believes the tree protection steps are adequate because they were
prepared by, not only a certified arborist, but in this case, a consulting
arborist. Terry Flanagan is well renowned for his ability. Furthermore,
Associate Planner Tracy noted that staff has imposed additional
conditions of approval to insure that these steps are met by requiring that
they be placed on the construction documents and additional steps taken
during the building permit process, which is typically the missing link
between the subdivision construction and home construction when the
lots get turned over to builders. By imposing the conditions staff is
recommending, it is insured that the tree protection requirements are
passed on from the subdivider/developer to the homebuilders. There is a
requirement that an arborist is to be involved throughout the whole
process. Councilor Woodruff asked if Associate Planner Tracy believed
that these things are being done in good faith and will they be followed?
Associate Planner Tracy responded that there has been no tree .
protection established yet; however, an independent review of the
arborist report, in terms of the accuracy of the report, has been verified
by the City of Tigard's City Forester. So long as this particular arborist
remains an integral part of this process then Associate Planner Tracy
advised that, "Yes, I believe it will be followed."
Councilor Woodruff asked if the steps that have been laid out with regard
to the tree plan are no less stringent than we would expect of any
development? Associate Planner Tracy advised that in this case,
because of its high profile and extreme scrutiny, these steps are a little
more stringent than most.
f. Mayor Dirksen closed the public hearing.
COUNCIL MINUTES - FEBRUARY 22, 2005 page 18
g. Council Consideration
Councilor Woodruff commented on the scope of the items of the LUBA
remand. He asked if the three City Council members who presided over
the initial approval were satisfied?
Councilor Wilson advised that when this matter came through the first
time, it was equally controversial - one of three controversial
subdivisions that year. The City Council made an error, according to
LUBA when Council decided that the Code did not require a tree
protection plan. The Council's reason for not requiring a tree protection
plan was because the property was a registered wood lot with
Washington County and the City of Tigard Code does not require a
permit to harvest trees from a registered wood lot The owners were
authorized to cut the trees without permission. Councilor Wilson said
that LUBA correctly pointed out that the requirement for a tree protection
plan and the need for a tree removal permit are two different things. The
City of Tigard Code says that a tree protection plan is required for a
subdivision, "period." Councilor Wilson said when he first heard this point
was remanded to Council, he was concerned the owner would cut down
all the trees because that certainly would have been an option. He said,
"I commend the developer for not doing that, but I think that by requiring
the tree removal permit, we've satisfied that criteria... The subsequent
issue of the landscape requirement has also been met. There are just
two other remaining technical issues, in my opinion...I was a little
uncomfortable with the ability of the City Engineer to arbitrarily sort of
waive a rule or impose one, but I recognize that that's done all of the
time... I think you have to sometimes make adjustments for topography
and things like that. And, I think that the questions that LUBA has asked
or sent back to us...the authority the Engineer has to make those sorts of
decisions... I think that we need to determine whether that's been made
or not. I think the fourth issue is a technicality that's my read on it. I'm
satisfied that all counts have been met..."
Councilor Sherwood noted she was also on Council when this matter
was considered previously. She noted there were several meetings
regarding technical and emotional issues. Councilor Sherwood said she
felt the developer had gone "above and beyond" to save and protect the
area. She said she "felt that everything has been answered."
Mayor Dirksen said when the issue first came before the City Council, he
felt that this type of development was exactly the kind of thing that Mr.
Ward spoke about during the Citizen Communication. Because the
developer has met all the legal requirements, there was no opportunity
COUNCIL MINUTES - FEBRUARY 22, 2005 page 19
for the City to deny this application outright. Mayor Dirksen noted the
City placed 45-50 conditions on the development. When the remand was
received from LUBA, he said he was concerned when he read the
assignments of error. He believed that most of them, if not all of them,
could be to a greater environmental impact if all of the assignments error
were addressed in the broadest sense. He said, "meaning the broadest
terms of the Tigard Development Code, particularly with regard to the
slope angle on the street and the curb-tight sidewalks, which would
require a greater amount of fill. Also, the tree issue was one I was
concerned that not only this property owner would choose to harvest all
the trees before developing, but this decision requiring this kind of a tree
protection plan would encourage other property owners who have
registered wood lots would also completely harvest their trees before
bringing the piece of property up for development. I am still concerned
that this could be an outcome of this. But, I am pleased to say that the
developer has not chosen to do that. The property owner has not chosen
to do that. And, I am also pleased that our staff was able to creatively
reconcile and address the other assignments of error without increasing
the impact. At this point, I think we have the best possible solution that is
available to us to date. I will vote in favor.
Councilor Woodruff said that it looks if as if the proposed resolution will
pass. Because of the high profile nature of this, the controversy, and
passionate involvement on both sides, he would encourage staff to
monitor this closely. To the developer he said it should be "really crystal
clear that you're following this to the letter, because it is not only going to
be looked at by us, but by other developers and if this doesn't go well,
the next time... it's going to be that much harder..."
Councilor Harding said she was in disagreement with some of
Engineering's recommendations. She said she understands that the City
of Tigard's Engineer has the authority to make changes and to come up
with his own conclusions outside of codes and regulations, but in
observing this site, she said she still had great concerns about the sag
and the grade. She commented about the true cost of fixing it later as
opposed to requiring the infrastructure now (i.e., a bridge) or after
monitoring to determine if the issues had been addressed. She also
noted concerns about safety - whether people would slow down.
Motion by Councilor Wilson, seconded by Councilor Sherwood, to
approve Resolution No. 05-10.
COUNCIL MINUTES - FEBRUARY 22, 2005 page 20
RESOLUTION NO. 05-10 A RESOLUTION AND FINAL ORDER
APPROVING THE ASH CREEK ESTATES SUBDIVISION (SUBDIVISION
(SUB) 2003-00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003-
00004/ZONE CHANGE (ZON) 2003-00003/SENSITIVE LANDS REVIEW
.(SLR) 2003-00005/ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT
(VAR) 2003-00037) - "REMAND," ADOPTING FINDINGS AND IMPOSING
CONDITIONS.
The motion was approved by a majority vote of Council present:
Mayor Dirksen: Yes
Councilor Harding: No
Councilor Sherwood: Yes
Councilor Wilson: Yes
Councilor Woodruff: Yes
11. COUNCIL LIAISON REPORTS
12. NON AGENDA ITEMS
13. EXECUTIVE SESSION: The Tigard City Council may go into Executive Session.
If an Executive Session is called to order, the appropriate ORS citation will be
announced identifying the applicable statute. All discussions are confidential and
those present may disclose nothing from the Session. Representatives of the
news media are allowed to attend Executive Sessions, as provided by ORS
192.660(4), but must not disclose any information discussed. No Executive
Session may be held for the purpose of taking any final action or making any final
decision. Executive Sessions are closed to the public.
14. ADJOURNMENT
Motion by Councilor Woodruff, seconded by Councilor Sherwood, to adjourn the
meeting.
The motion was approved by a unanimous vote of Council present:
Mayor Dirksen: Yes
Councilor Harding: Yes
Councilor Sherwood: Yes
Councilor Wilson: Yes
Councilor Woodruff: Yes
COUNCIL MINUTES - FEBRUARY 22, 2005 page 21
0
The meeting adjourned at 9:27 p.m.
C
Catherine Wheatley, City Recorder
Attest:
r
Mayor City of Tigard
Date:
iAadm\cathy\ccm\2005\050222.doc
COUNCIL MINUTES - FEBRUARY 22, 2005 page 22
)Greeter is Chief Bill Dickinson
F ARD CITY COUNCIL
MEETING
RY 22, 2005 6:30 p.m. CITY OF TIGARD
IGARD CITY HALL OREGON
125 SW HALL BLVD
IGARD, OR 97223
PUBLIC NOTICE:
Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s).
If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda
item. Citizen Communication items are asked to be two minutes or less. Longer matters can
be set for a future Agenda by contacting either the Mayor or the City Manager.
Times noted are estimated; it is recommended that persons interested in testifying be present
by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard
in any order after 7:30 p.m.
Assistive Listening Devices are available for persons with impaired hearing and should be
scheduled for Council meetings by noon on the Monday prior to the Council meeting.
Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (TDD -
Telecommunications Devices for the Deaf).
Upon request, the City will also endeavor to arrange for the following services:
• Qualified sign language interpreters for persons with speech or hearing impairments;
and
• Qualified bilingual interpreters.
Since these services must be scheduled with outside service providers, it is important to allow
as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the
Thursday preceding the meeting by calling: 503-639-4171, ext. 2410 (voice) or 503-
684-2772 (TDD - Telecommunications Devices for the Deaf).
SEE ATTACHED AGENDA
COUNCIL AGENDA - FEBRUARY 22, 2005 page 1
AGENDA
TIGARD CITY COUNCIL MEETING
FEBRUARY 22, 2005 - 6:30 PM
6:30 PM
• STUDY SESSION
> CITY COUNCIL ORIENTATION
■ City Attorney
> UPDATE ON COMMUTER RAIL URBAN RENEWAL FEASIBILITY
STUDY (Schedule and status of Downtown)
■ Community Development Director
• EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an
Executive Session is called to order, the appropriate ORS citation will be announced
identifying the applicable statute. All discussions are confidential and those present may
disclose nothing from the Session. Representatives of the news media are allowed to
attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any
information discussed. No Executive Session may be held for the purpose of taking any
final action or making any final decision. Executive Sessions are closed to the public.
7:30 PM
1. BUSINESS MEETING
1.1 Call to Order - City Council a Local Contract Review Board
1.2 Roll Call
1.3 Pledge of Allegiance
1.4 Council Communications & Liaison Reports
1.5 Call to Council and Staff for Non-Agenda Items
7:35 PM
2. CITIZEN COMMUNICATION (Two Minutes or Less, Please)
• Follow-up to Previous Citizen Communication
COUNCIL AGENDA - FEBRUARY 22, 2005 page 2
Consent Agenda to be reviewed by Tigard Youth Advisory Council President Rob Williams.
7:40 PM
3. CONSENT AGENDA: These items are considered to be routine and may be
enacted in one motion without separate discussion. Anyone may request that an item
be removed by motion for discussion and separate action. Motion to:
3.1 Approve Council Minutes for January 18, and 24, 2005
3.2 Approve Budget Amendment No. 9 to the Fiscal Year 2004-05 Budget to
Increase Appropriations in the Library Department for Additional Hours of
Operation to Re-Open the Library on Sundays - Resolution No. 05-09
A RESOLUTION APPROVING BUDGET AMENDMENT #9 TO THE FY
2004-05 BUDGET TO INCREASE APPROPRIATIONS IN THE LIBRARY
DEPARTMENT FOR ADDITIONAL HOURS OF OPERATION TO RE-
OPEN THE LIBRARY ON SUNDAYS
3.3 Local Contract Review Board:
a. Award Contract for the Construction of North Dakota Street Pedestrian
Crosswalk
b. Approve Amendment to Engineering Services Contract for Murray Smith
& Associates, Inc., for Design of a 550-Foot Zone Reservoir No. 2
• Consent Agenda - Items Removed for Separate Discussion: Any items requested
to be removed from the Consent Agenda for separate discussion will be considered
immediately after the Council has voted on those items which do not need
discussion.
7:50 PM
4. RECOGNIZE OUTSTANDING CITIZEN ASSISTANCE
■ Staff Report: Chief of Police
8:00 PM
5. CONSIDER INTERGOVERNMENTAL AGREEMENT (IGA) BETWEEN THE CITY
OF TIGARD AND TRIMET FOR THE ASSIGNMENT OF A FULL-TIME POLICE
OFFICER TO THE TRANSIT POLICE DIVISION
a. Staff Report: Chief of Police
b. Council Consideration: Motion approving the IGA and authorize the Interim
City Manager to Sign
8:15 PM
6. CONSIDER BUDGET AMENDMENT NO. 8 TO THE FISCAL YEAR 2004-05
BUDGET TO ADD A FULL-TIME POLICE OFFICER POSITION AND INCREASE
APPROPRIATIONS FOR FUNDING OF THIS POSITION
a. Staff Report: Police Department Staff
COUNCIL AGENDA - FEBRUARY 22, 2005 page 3
b. Council Consideration: Resolution No. 05-10
A RESOLUTION APPROVING BUDGET AMENDMENT #8 TO THE FY
2004-05 BUDGET TO ADD A FULL-TIME POLICE OFFICER POSITION
AND INCREASE APPROPRIATIONS FOR FUNDING OF THIS POSITION
Councilor: 1 move for adoption of the proposed Resolution 05-
Councilor: I second the motion.
Mayor: Will the City Recorder please read the number and title of the Resolution.
City Recorder: (Reads as requested.)
Mayor: Is there any discussion?
Mayor
(after discussion): All of those in favor of adopting Resolution No. 05- please say "aye. "
Mayor/Councilors:
Mayor: All of those opposed to adopting Resolution No. 05- please say "nay. "
Mayor/Councilors:
Mayor: Resolution No. 05- (is adopted or fails) by a (unanimous, or however
votes were split) vote.
Tie votes = failure to pass.
8:20 PM
7. DISCUSS A PROPOSED RESOLUTION TO SUPPORT COLLABORATION WITH
WASHINGTON COUNTY JURISDICTIONS REGARDING PROPOSED
CHANGES TO GOAL 14 (URBANIZATION) AND THE URBAN GROWTH
BOUNDARY ADMINISTRATIVE RULES, AND TO SUPPORT LOCAL
CONTROL OVER THE LAND-USE PROCESS
a. Staff Report: Community Development Director Hendryx
b. Council Discussion
C. Council Direction: Direct staff to make revisions to the draft resolution and
submit to the Council for its consideration at an upcoming Council meeting.
(If Council decides on amendments, if any, to the proposed resolution, then the
resolution could be resubmitted to the Council on its March 8, 2005, Consent
Agenda, if no further discussion is needed.)
COUNCIL AGENDA - FEBRUARY 22, 2005 page 4
8:30 PM
8. PUBLIC HEARING (CITY COUNCIL/LOCAL CONTRACT REVIEW BOARD) -
TO AMEND THE TIGARD MUNICIPAL CODE TO REFLECT CHANGES IN
PUBLIC CONTRACTING RULES AND DECLARE AN EMERGENCY
a. Open Public Hearing
b. Declarations or Challenges
C. Staff Report: Finance Department
d. Public Testimony
- Proponents
- Opponents
e. Staff Recommendation
f. Council Questions
g. Close Public Hearing
h. Council Consideration: Ordinance No. 05-05
AN ORDINANCE AMENDING THE TMC TO REFLECT CHANGES IN THE
PUBLIC CONTRACTING RULES AND DECLARE AN EMERGENCY
Councilor: 1 move for adoption of the proposed Ordinance.
Councilor: 1 second the motion.
Mayor: Will the City Recorder please read the number and title of the Ordinance.
City Recorder: (Reads as requested.)
Mayor: Is there any discussion?
Mayor
(after discussion): Will the City Recorder please conduct a roll-call vote of Council.
City Recorder: Conducts roll call vote.
Mayor: Ordinance No. 05-_ (is approved or fails) by a (unanimous or however
votes were split) vote.
Tie votes = failure to pass
8:40 PM
9. LOCAL CONTRACT REVIEW BOARD PUBLIC HEARING - TO CONSIDER A
RESOLUTION REVISING PUBLIC CONTRACTING RULES, FINDINGS
SUPPORTING THE REVISED PUBLIC CONTRACTING RULES, AND A REVISED
PURCHASING AND CONTRACTING MANUAL
COUNCIL AGENDA - FEBRUARY 22, 2005 page 5
a. Open Public Hearing
b. Declarations or Challenges
C. Staff Report: Finance Department
d. Public Testimony
- Proponents
- Opponents
e. Staff Recommendation
f. Council Questions
g. Close Public Hearing
h. Council Consideration: Local Contract Review Board Resolution No. 05-01
A RESOLUTION ADOPTING REVISED PUBLIC CONTRACTING RULES,
RELATED FINDINGS, AND REVISED PURCHASING AND CONTRACTING
MANUAL.
LCRB Board Member: I move for adoption of the proposed Resolution 05-
LCRB Board Member: I second the motion.
LCRB Board Chair: Will the City Recorder please read the number and title of the
Resolution.
City Recorder: (Reads as requested.)
LCRB Board Chair: Is there any discussion?
LCRB Board Chair: (after discussion): All of those in favor of adopting Resolution
No. OS- please say "aye. "
LCRB Chair and
Board Members:
LCRB Board Chair: All of those opposed to adopting Resolution No. OS- please say
nay.
LCRB Chair and
Board Members:
LCRB Board Chair: Resolution No. 05- (is adopted or fails) by a (unanimous, or,
however votes were split) vote.
Tie votes =failure to pass.
COUNCIL AGENDA - FEBRUARY 22, 2005 page 6
8:50 PM
10. PUBLIC HEARING (QUASI-) UDICIAL) ASH CREEK ESTATES - LAND USE
BOARD OF APPEALS (LUBA) REMAND - SUBDIVISION (SUB) 2003-
00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003-00004/
ZONE CHANGE (ZON) 2003-00003/SENSITIVE LANDS REVIEW (SLR) 2003-
00005/ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT (VAR) 2003-
00037
The following description was read by the Mayor at the February 8, 2005, City
Council Meeting:
ITEM ON REMAND: The State Land Use Board of Appeals (LUBA) has
remanded City Council's approval of a 29-lot Planned Development Subdivision
on 9.3 acres and associated Zone Change, Sensitive Lands, and Adjustment
reviews for additional findings to support their decision. This hearing is limited to
the four specific assignments of error which are generally: 1) The City's
acceptance of lower "K" values in relation to the proposed vertical sag on SW 74'
and demonstration that the City Engineer is authorized to approve such deviations
to adopted street standards; 2) The requirement that the applicant prepare and
submit a tree plan that identifies the size, species, and location of trees on the site,
provide a removal plan, protection plan, and mitigation program in accordance
with Tigard Community Development Code (TCDC) Chapter 18.790; 3)
Revised findings are required for the proposed curb tight sidewalks on SW 74`"
Avenue and also for the cul-de-sac standards to address the relevant criteria of
TCDC Chapter 18.370.C.1 1; and 4) Additional findings related to the
landscape protection criteria of TCDC Chapter 18.745.030.E. A full copy of
LUBA's Final Opinion and Order can be obtained from City Hall at cost, or is also
available online at http:///uba.state.or.uslpdfl2004laugo4lO3l94.htm.
LOCATION: 9750 SW 74`h Avenue; WCTM 1 S 125DC, Tax Lots 300 and
400. ZONE: R-4.5: Low-Density Residential District. The R-4.5 zoning district
is designed to accommodate detached single-family homes with or without
accessory residential units at a minimum lot size of 7,500 square feet. Duplexes
and attached single-family units are permitted conditionally. Some civic and
institutional uses are also permitted conditionally. APPLICABLE REVIEW
CRITERIA: Tigard Community Development Code Chapters 18.370, 18.745,
18.790 and 18.810.
a. Continue Public Hearing from February 8, 2005 (Mayor Dirksen)
City attorney shall clarify the public hearing process; oral testimony was closed on
February 8, 2005
COUNCIL AGENDA - FEBRUARY 22, 2005 page 7
b. Declarations or Challenges (anything to report or challenge since the February
a
8 hearing date?)
C. Summation by Community Development Department Staff:
- Review of written testimony received.
- Review of rebuttal testimony received.
d. Staff Recommendation
e. Council Questions
f. Close Public Hearing
g. Council Consideration: A proposed resolution and final order was submitted
to the Council in the supplemental packet delivered to Council on February
19, 2005. Resolution 05-11.
A RESOLUTION AND FINAL ORDER APPROVING THE ASH CREEK ESTATES
SUBDIVISION (SUBDIVISION (SUB) 2003-00010/PLANNED DEVELOPMENT
REVIEW (PDR) 2003-00004/ZONE CHANGE (ZON) 2003-00003/SENSITIVE LANDS
REVIEW (SLR) 2003-00005/ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT (VAR)
2003-00037) - "REMAND," ADOPTING FINDINGS AND IMPOSING CONDITIONS.
Councilor: I move for adoption of the proposed Resolution 05-
Councilor: I second the motion.
Mayor: Will the City Recorder please read the number and title of the Resolution.
City Recorder: (Reads as requested.)
Mayor: Is there any discussion?
Mayor
(after discussion): All of those in favor of adopting Resolution No. 05- please say "aye. "
Mayor/Councilors:
Mayor: All of those opposed to adopting Resolution No. 05- please say "nay. "
Mayor/Councilors:
Mayor: Resolution No. 05- (is adopted or fails) by a (unanimous, or however
votes were split) vote.
Tie votes =failure to pass.
COUNCIL AGENDA - FEBRUARY 22, 2005 page 8
1 1. COUNCIL LIAISON REPORTS
12. NON AGENDA ITEMS
13. EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If
an Executive Session is called to order, the appropriate ORS citation will be
announced identifying the applicable statute. All discussions are confidential and
those present may disclose nothing from the Session. Representatives of the news
media are allowed to attend Executive Sessions, as provided by ORS 192.660(4),
but must not disclose any information discussed. No Executive Session may be held
for the purpose of taking any final action or making any final decision. Executive
Sessions are closed to the public.
10:00 PM
14. ADJOURNMENT
istadmtc8thytccat2005\050222).doc
COUNCIL AGENDA - FEBRUARY 22, 2005 page 9
City of Tigard, Oregon
Q LI
Affidavit of Posting
CITY OF TIGARD
OREGON
In the Matter of the Proposed Ordinance(s)
dom. OS"- ~v a • a •~s
STATE OF OREGON )
County of Washington ) ss.
City of Tigard )
I, CATi46-9_vve WOP-441'LPLI , being first duly sworn (or affirmed), by
oath (or affirmation), depose and say:
That I posted in the following public and conspicuous places, a copy of
Ordinance Number(s) C?J7 '(25-7
, which were adopted at the
City Council meeting of _ • c'AQ-057 , with a copy(s) of said Ordinance(s)
being hereto attachel and y reference made a part hereof, on the
o2~day of •Q~ , 20
1. Tigard City Hall, 13125 SW Hall Blvd., Tigard, Oregon
2. Tigard Public Library, 13500 SW Hall Blvd., Tigard, Oregon
Signature of Person who Performe osting
Subscribed and sworn (or affirmed) before me this 13 14 day of
Signature of Notary Public for Oregon
OFFICIAL SEAL
GREER A GASTON
NOTARY PUBLIC-OREGON
COMMISSION NO, 373020
MY COMMISSION EXPIRES OCT. 10, 2007
\\TIG333\USR\DEPTS\ADM\GREER\FORMS\AFFIDAVITS\AFFIDAVIT OF POSTING - ORDINANCE.DOC
City of Tigard, Oregon
Affidavit of Posting
CITY OF TIGARD
In the Matter of the Proposed Ordinances 05-01 through 05-16 OREGON
STATE OF OREGON ) NCO Nr0 0J- OS
County of Washington ) ss. a o
City of Tigard )
I, Ucii hem ne l~(1 CL'E , being first duly sworn (or affirmed), by
oath (or affirmation), depose an say:
That I on December 15, 2005, 1 posted in the following public place, a copy of
Ordinance Numbers 05-01 through 05-16, which were adopted by the City
Council.
Tigard Permit Center, 13125 SW Hall Blvd., Tigard, Oregon
Signature of Person who Perforrh~d Posting
Subscribed and sworn (or affirmed) before me this day of
4G~~P~ , 2005.
OFFICIAL SEAL
~
JILL MI BYARS
NOTARY PUBLIC-OREGON Signature of Notary Public for Oregon
COMMISSION NO. 381793
MY COMMISSION EXPIRES JUNE 14,2M
i:tadrnVreerVormsla0ldavQstaf0dav6 of posting - 05 ordinances - 05-01 to 05-16 - permit centerdoc
CITY OF TIGARD, OREGON
ORDINANCE NO. 05- 05
AN ORDINANCE AMENDING THE TMC TO REFLECT CHANGES IN THE PUBLIC
CONTRACTING RULES AND DECLARE AN EMERGENCY.
WHEREAS, The City Council, acting as the Local Contract Review Board approved Ordinance 99-
30 on November 23, 1999, which established Public Contracting Rules for the City; and
WHEREAS, Due to new changes in Oregon Revised Statue 279 these Public Contracting Rules, as
amended, will no longer be valid for contracts entered into on or after March 1, 2005; and
WHEREAS, The City will establish new Public Contract Rules through resolution prior to March 1,
2005; and
W14EREAS, The Tigard Municipal Code Section 2.46 relating to the Local Contract Review Board
was last updated in 2001; and
WHEREAS, The City desires to update and revise provision relating to the Local Contract Review
Board; and
WHEREAS, Due to the tinting established under Oregon Revised Statute 279, a state of emergency
exists in order for the City to have the proper rules established by March 1, 2005.
NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1: The Public Contracting Rules established by Ordinance 99-03 and amended by
Ordinances Nos. 01-02 and 02-21 shall remain in effect for contracts for which
the contracting process is initiated prior to March 1, 2005 but shall not apply to
contracts entered into on or after that date. Those rules shall cease to have effect
upon full completion of all contracts entered into under those rules.
SECTION 2: Tigard Municipal Code 2.46 is amended as follows:
2.46.110 - Delegation Of Authority To Obligate The Citv
(c) The public contract, personal services contract or any other type of
contract let by the City does not exceed $25,000 $50,000 for contracts
other than public improvement contracts and $75,000 for public
improvement contracts..
146.140 - Limitation To Expenditures
ORDINANCE No. 05-Q5
Page 1
1
(b) The expenditure shall not be a component of a project with a total cost in
excess of $25,000 $50,000 for contracts other than public improvement
contracts and $75,000 for public improvement contracts, except in the case
of a project which involves a personal services contract and a public
contract. If a project involves a personal service contract and a public
contract, the two contracts shall be considered separate projects.
SECTION 3: The Local Contract Review Board may adopt, repeal and amend regulations
relating to public contracting by resolution.
SECTION 4: This ordinance; being necessary for the peace, health and safety of the City, shall
be effective on March 1, 2005 after its passage by the Council, signature by the
Mayor, and posting by the City Recorder.
PASSED: By Un(INMOUS vote of q11 Counc' members present after being read by
number and title only, tbis~_ day of 69IMi 2005.
Catherine Wheatley, City . Recorder
'1 r1 d.
APPROVED: By Tigard City Council this acol day of 05.
C
Craig D' en, Mayor
A proved as to form:
Attorney
2,--') -2--0
Date
ORDINANCE No. 05- (25
Page 2
AGENDA
TIGARD CITY COUNCIL BUSINESS MEETING
FEBRUARY 22, 2005 - 6:30 p.m.
13125 SW Hall Boulevard, Tigard, Oregon
• STUDY SESSION
> CITY COUNCIL ORIENTATION
■ City Attorney
> UPDATE ON COMMUTER RAIL URBAN RENEWAL FEASIBILITY STUDY (Schedule and status
of Downtown)
■ Community Development Director
• EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an Executive Session is
called to order, the appropriate ORS citation will be announced identifying the applicable statute. All
discussions are confidential and those present may disclose nothing from the Session. Representatives of the
news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose
any information discussed. No Executive Session may be held for the purpose of taking any final action or
making any final decision. Executive Sessions are closed to the public.
>ADMINISTRATIVE ITEMS
a. Distribute Mayor's Agenda
b. Discuss tonight's business agenda: Should the Ash Creek item (No. 10 on the agenda) be
moved up on the agenda after Item No. 4?
C. Title Change (also reflected in the Mayor's Agenda - tan paper) for Agenda Item No. 8 =
should read: PUBLIC HEARING OF THE CITY COUNCIL/LCRB TO AMEND THE
TIGARD MUNICIPAL CODE TO REFLECT CHANGES IN PUBLIC CONTRACTING
RULES AND DECLARE AN EMERGENCY
d. MPAC Symposium on Annexation - February 23, 2005 - 5-7 p.m. Metro Council
Chambers - 600 NE Grand Avenue, Portland, Oregon (see attached)
e. PERS Rates
f. Calendar Review
• February 28: Capital Improvement Program Tour 3-5 p.m.; Meet in the Permit Center
Lobby
• March 1: Special Council Meeting - 6:30 p.m. - Town Hall
• March 8: Council Business Meeting - 6:30 p.m. - Town Hall
• March 15: Council Workshop Meeting - 6:30 p.m. - Town Hall
• March 22: Council Business Meeting - 6:30 p.m. - Town Hall
• March 29: 51' Tuesday Council Meeting - 7 p.m. - Water Auditorium
Executive Session -
The Public Meetings Law authorizes governing bodies to meet in executive session in certain limited
situations (ORS 192.660). An "executive session" is defined as "any meeting or part of a meeting
of a governing body, which is closed to certain persons for deliberation on certain matters."
Permissible Purposes for Executive Sessions:
192.660 (2) (a) - Employment of public officers, employees and agents,
if the body has satisfied certain prerequisites.
192.660 (2) (b) - Discipline of public officers and employees (unless affected person requests to
have an open hearing).
192.660 (2) (c) - To consider matters pertaining to medical staff of a public hospital.
192.660 (2) (d) - Labor negotiations. (News media can be excluded in this instance.)
192.660 (2) (e) - Real property transaction negotiations.
192.660(2) (0- Exempt public records - to consider records that are "exempt by law from
public inspection." These records are specifically identified in the Oregon
Revised Statutes.
192-660(2) (g) - Trade negotiations - involving matters of trade or commerce in which the
governing body is competing with other governing bodies.
192.660(2) (h) - Legal counsel - for consultation with counsel concerning legal rights and duties
regarding current litigation or litigation likely to be filed.
192.660(2) (i) - To review and evaluate, pursuant to standards, criteria, and policy directives
adopted by the governing body, the employment-related performance of the
chief executive officer, a public officer, employee or staff member unless the
affected person requests an open hearing. The standards, criteria and policy
directives to be used in evaluating chief executive officers shall be adopted by
the governing body in meetings open to the public in which there has been an
opportunity for public comment.
192.660 (2) (j) - Public investments - to carry on negotiations under ORS Chapter 293 with
private persons or businesses regarding proposed acquisition, exchange or
liquidation of public investments.
192.660 (2) (k)- Relates to health professional regulatory board.
192.660 (2) (1)- Relates to State Landscape Architect Board.
192.660 (2) (m)- Relates to the review and approval of programs relating to security.
iAadmlcathylcouncihplnk sheet - study session agendas\2005t050222.doc
Agenda Item #8
Correct Title
Correct Title: Conduct a Public Hearing of City Council/LCRB to
Amend the TMC to Reflect Changes in Public
Contracting Rules and Declare an Emergency.
MEMORANDUM a"`~~"OJ
TO: Mayor and Council Members
FROM: Tom Imdieke, Interim Finance Direct
RE: Update on PERS Rates
DATE: February 22, 2005
The PERS Board approved new employer contribution rates for the PERS Chapter 238
program (Tier One and Tier Two) at its February 18, 2005 meeting. They reported that
the contribution rates were higher than expected for a number of reasons, in particular,
past investment losses. They took the position that recognizing the budgetary
constraints public employers face, the Board acted to moderate the impact of increased
rates and approved a two-stage phase-in of the increase. Half of the increase will be
effective July 1, 2005 with the remainder slated for July 1, 2007. For the City of Tigard
this means that the new rate effective July 1 will be 13.21 % and the rate effective July 1,
2007 will be 17.81 The City's current rate is 8.61
The only City employees covered by PERS are the 58 sworn officers in the Police
Department. All other City employees are covered by a City-provided plan through
ICMA with fixed City contribution rates.
Sandy Zodrow, the City's Human Resources Director plans to discuss this further with
you during your meeting scheduled for March 1, 2005.
cc: Craig Prosser
Sandy Zodrow
-Mc -p
r- I'".Qch C'c vo
Reasons to Support.SB 730 ° OS
,5fck (~c.1 S.PSC~~ Del
The Oregon Land Use Board of Appeals (LUBA) recently ruled that a metropolitan district has
broad authority under ORS Chap. 268 to prepare, as well as compel the adoption of land use
zoning ordinances by cities and counties within the district. This ruling upheld adoption by the
Portland Metropolitan Service District ("Metro") of a Title 4 Ordinance which requires certain
cities and counties to adopt and enforce detailed restrictions on mixed uses on industrial lands
(relating to building size and floor area, street access, lot sizes and divisions, business type, etc.,)
even if those restrictions conflict with their comprehensive plans and zoning ordinances. District
ordinances like Title 4 usurp the traditional and longstanding city and county zoning authority
and "home rule".
SB 730 clarifies that a district's current authority, under ORS Chap. 268, permits it to adopt
generalized policies to guide the contents of comprehensive plans and to review and recommend
changes to these plans to ensure they comply with the regional functional plans, but does not
permit districts to write comprehensive plans or land use regulations for cities and counties or
compel them to adopt such particular plans or regulations.
SB 730 makes metropolitan districts statutes consistent with its Charter
Metro's Charter does not allow it to adopt comprehensive plans or prescribe the content of local
zoning laws. SB 730 realigns ORS 268.390 with that original intent.
SB 730 maintains the traditional home rule authority of cities and counties.
Under Oregon's land use planning statutes and city and county enabling statutes, the authority to
enact comprehensive plans and land use zoning regulations has been delegated exclusively to
cities and counties - a system that has worked for decades. SB 730 provides a clarification that
this delegation was not intended to be repealed when ORS Chap. 268 was adopted and later
amended.
SB 730 does not take away a metropolitan district's authority over the compliance and
enforcement of local zoning laws with state policy.
As important as what SB 730 does, is what it does not do. SB 730 does not take away district's
authority to review comprehensive plans and implementing land use regulations to assure
compliance with state land use policies and regional functional plans.
SB 730 provides needed certaintyfor economic development
For Hillsboro and other cities and counties that have been successful in recruiting, keeping and
nurturing industries and businesses, SB 730 will remove the prospects of businesses having to
serve two "zoning masters"; a district and a city or county as a result of the LUBA ruling. If a
district's authority extends to directing specific zoning ordinances, the land uses certainty
associated city or county zoning ordinances since their inception in Oregon will be lost. This
added layer of bureaucracy and land regulation authority will be a deterrent to economic
development and business investment in cities and counties that would be subject to such a dual
zoning regime.
For more information, contact:
FROM PER.RINPAf_K FAX tJO. : 5032496592 Feb. 14 2005 03:39P11 P2
LC 2625
2/14/05 (BHC/ps)
DRAFT
X5.6 ?3o
SUMMARY
Modifies standards for metropolitan service district review of compre-
hensive plans and land use regulations of cities and counties within district
to determine whether comprehensive plans and land use regulations comply
with regional framework plan and functional plans.
i A BILL FOR AN ACT
2 Relating to land use planning in metropolitan service district; amending
3 268.390.
4 Be It Enacted by the People of the State.of Oregon:
5 SECTION 1. ORS 268.390 is amended to read:
6 268.390. (1) A district may define and apply a planning procedure [which)
7 that identifies and designates areas and activities having significant impact
a upon the orderly and responsible development of the metropolitan area, in-
9 eluding, but not limited to, impact on.-
10 (a) Air quality;
11 (b) Water quality; and
12 (c) Transportation.
13 (2) A district may prepare and adopt functional plans for those areas
14 designated under subsection (1) of this section to control metropolitan area
15 impact on air and water quality, transportation and other aspects of metro-
16 politan area development the district may identify.
17 (3) A district shall adopt an urban growth boundary for the district in
18 compliance with applicable statewide land use planning goals adopted un-
19 der ORS chapters 195, 196 and 197.
20 (4) A district may:
21 (a) Review the comprehensive plans [in.effect on January 1, 1979, or sub-
22 sequently) adopted by the cities and counties within the district [which) that
NOTE: Maori in boldfaced type in an emended 3ec6on a Dew maltet (ifajit and braelard) It esitliny lbw to be onutlerl
New Letbow air io boldf-d type.
FROM : PERRINPACK FAX NO. : 5032496592 Feb. 14 2005 03=40Ptl p4
f.
LC 2625 2/14/05
1 affect areas designated by the district under subsection (1) of this section
2 or the urban growth boundary adopted under subsection (3) of this section
3 and recommend or require cities and counties, as it considers necessary, to
4 make changes in [any plan to assur'e].a comprehensive plan to ensure that
5 the comprehensive plan and any actions taken under [it] the comprehen-
6 sive plan conform to the district's functional plans adopted under subsection
7 (2) of this section and its urban growth boundary adopted under subsection
s (3) of this section.
9 (b) Review and recommend changes to land use regulations of a city
10 or county within the district to ensure that the land use regulations
11 implement comprehensive plan provisions related to a functional plan.
12 (5) Except as provided in ORS 268.330 (1) -and consistent with ORS
13 chapter 197, a district may not:
14 (a) Prepare or adopt a comprehensive plan or a land use regulation.
15 (b) Adopt, enforce or require a city or county within the district to
16 adopt or enforce a comprehensive plan provision or a land use regu
17 lation that prescribes or limits the zoning of specific land within a city
18 or county.
19 (c) Compel adoption by a city or county within the district of the
20 specific text of a land use regulation.
21 [(5)] (6) Pursuant to a regional framework plan, a district may adopt im-
22 plementing ordinances that:
23 (a) Require local comprehensive plans [and implementing regulations] to
24 comply with the regional framework plan within two years after compliance
25, acknowledgment.
26 (b) Require adjudication and determination by the district of the consist-
27 ency of local comprehensive plans and land use regulations with the re-
28 gional framework plan.
29 (c) Require each city and county within the (jurisdiction ofl the district
30 and making land use decisions concerning lands Within the land use juris-
31 diction of the district to make those decisions consistent with the regional
[2)
FROM PERRI14PACK FAX tdO. = 5032496592 Feb. 14 2005 03:40Pt1 P3
LC 2625 2/11105
1 framework plan. The obligation to apply the regional framework plan to land
2 use decisions shall not begin until" one year after the regional framework
3 plan is acknowledged as complying with the statewide land use planning
4 goals adopted under ORS chapters 195, 196 and 197.
5 (d) Require changes in local land use standards and procedures if the
6 district determines that changes are necessary to remedy a pattern or prac-
7 tice of decision-making inconsistent with the regional framework plan.
8 [(6)] (7) The regional framework plan, ordinances that implement the re-
9 gional framework plan and any determination by the district of consistency
10 with the regional framework plan are subject to review under ORS 197.274.
11 (8) If a change in the local land use standards or procedures of a
12 city or county that are required under subsection (6)(d) of this section
13 cause the Land Conservation and Development Commission to find
14 that the comprehensive plan and land use regulations of the city or
15 county do not comply with statewide land use planning goals or with
16 rules adopted by the commission, the commission shall excuse the city
17 or county from compliance with the changes in land use standards or
18 procedures required by the district.
19
[3)
CITY OF TIGARD
CITY COUNCIL ORIENTATION
Timothy V. Ramis
Gary Firestone
Ramis Crew Corrigan Et Bachrach, LLP
2005
TOPICS
1. Municipal Authority
2. Meeting Procedure and Public Meeting Law
3. Public Records and Record Retention
1. MUNICIPAL AUTHORITY
I. SOURCES OF AUTHORITY/ EXERCISE OF AUTHORITY
A. AUTHORITY
1. Sources of Power:
• City Charter (copy attached)
• State Constitution and Statutes
2. Limitations on Power:
• Federal and State Constitutions
• Federal and State preemption
• State Statutes
• Metro, When Authorized by State Statute
3. Tigard City Charter:
• Equivalent to constitution for the City
• Reserves to City all powers not expressly prohibited to the
City by state or federal constitution or statute
• Sets rules for governance of City
B. EXERCISE OF AUTHORITY
1. Council acts as a single decision maker
2. Ordinances:
• The means by which City adopts laws of general
applicability.
• Charter Section 34 specifies form of "ordaining" clause.
• Only material after the ordaining clause is enforceable.
• Normally effective 30 days from adoption to give chance
for referendum petition.
• Emergency ordinances are effective immediately,
emergency clause required. Some ordinances cannot be
adopted by emergency clause (e.g. Urban Renewal District
plan adoption).
1
3. Resolutions:
Formal written, council adopted documents that are not
laws of general applicability.
• Need a clause specifying when effective.
• No particular form required.
4. Motions:
• All ordinances and resolutions require one or more motions
to be adopted.
• Some action may be taken by motion without an ordinance
or resolution.
II. RELATIONSHIP OF ORDINANCES, RESOLUTIONS AND MOTIONS
A. Ordinances are most formal and should be used in every situation in
which the City intends to impose rules binding on all within the City.
B. Ordinance must also be used when specified by statute, charter or code.
C. Resolutions are less formal than ordinances but more formal than
motions.
D. Resolutions may be used to impose rules binding on the City, to approve
contracts or intergovernmental agreements, or whenever charter, code
or statutes require a resolution.
E. Action may be taken by Motion when an ordinance or resolution is not
required.
F. Amendment or rescission of a previous action normally requires an
action of at least the same degree of formality.
2
III. MUNICIPAL CODE
A. The Municipal Code is a codification of the generally applicable
ordinances of the City.
B. Any ordinance that is intended to add, delete or amend sections of the
Municipal Code should explicitly state so.
C. Some ordinances are not codified.
3
2. MEETING PROCEDURE, PUBLIC MEETING LAWS
I. MEETING PROCEDURE
A. The Mayor normally chairs the meetings.
B. The City holds regular sessions, workshop sessions, study sessions and
executive sessions.
1. Regular sessions - Council meets in public and can take formal
action.
2. Workshop sessions - Council meets in public, but usually for
informational purposes or preliminary review, no formal action
taken.
3. Study session - Council meets in public to clarify an issue or
process.
4. Executive session - Council meets in private to discuss limited
subjects, as dictated by state law.
C. All of these sessions are subject to public meeting law.
D. At work sessions, no ordinances should be adopted or other important
action taken. Minor action, like directing staff to proceed, is OK.
E. Basic procedures and rules are set out in the Council Groundrules.
F. Procedures vary depending on type of item being considered:
1. Public hearing
a. Public (or at least portions of it) has right to be heard
b. Notice may be required
2. Ordinance adoption
a. Ordinances must be read in open council session.
b. The reading may be by title only if no Council member
requests reading in full.
4
3. Resolution or motion - only a motion is needed.
4. Information only - no action needed.
II. PARTICIPATION
A. The Council Members have a right to speak
B. The public has a right to speak only during public hearings and during
the public participation agenda item. Their participation may be
limited as to time and subject matter.
C. The Council can provide for additional public participation if it wishes.
D. A quorum is 'a majority of the Council (3 of 5)
E. Motions are passed by a majority of those present.
III. PUBLIC MEETING LAW
A. All meetings of the Council are subject to state public meeting law.
B. Public meetings must be noticed and accessible.
C. Decisions made in public based on public information.
D. Electronic meetings are possible, so long as public has the ability to
listen in.
E. Any time a quorum is present and City business is discussed, a meeting
subject to the public meeting law is being held. If three council
members are present and the meeting has not been noticed, do not
discuss City issues.
F. On-site inspections are OK, but do not discuss business more than
necessary to get information relating to the inspection.
G. Attendance of national, regional and state associations that the City
belongs to is OK, even if a quorum is present.
H. Meetings must be within the City.
5
I. Public meeting law requires accessability but for the most part does not
require public participation. Public participation required under public
meeting law only as to limited matters relating to employment of city
appointed officials, particularly the City Manager.
J. Executive sessions are permitted only as to items for which statutes
specifically allow an executive session. For example, the City Council
may meet in executive session to discuss with its negotiators concerning
the transfer of real property, but may not meet in executive session to
discuss real estate generally. Generally speaking, some matters related
to employment, real property transactions, and legal matters may
appropriately be the subject of executive sessions.
K. No final action may be taken in executive sessions.
L. The media cannot be excluded from executive sessions, except when
the reporter or the reporter's employer is directly involved in the
subject of the meeting, such as litigation in which the City and The
Oregonian are on opposing sides.
M. Decisions can be voided if taken in violation of public meeting law.
N. Civil penalties may be imposed for abuse of executive sessions.
6
3. PUBLIC RECORDS AND RETENTION
I. PUBLIC RECORDS
A. All written materials in any form (paper, electronic, including both e-
mails and voice mails, or other) created, possessed or maintained by a
public body (including a council member) related to the public body, is
a public record.
B. Public records are subject to public disclosure unless protected by an
exemption. Although the list of exemptions is lengthy, you should
expect that all communications will be subject to public disclosure. If
you don't want to read about it in The Oregonian, don't write it down
and don't allow it to be recorded. Even attorney-client privileged
communications may be subject to disclosure after the matter that is
the subject of the communication is resolved.
II. E-MAILS, VOICE MAILS
A. E-mails are written materials that are public records if they relate to
City business. That is true even if the a-mails are on personally owned
computers and using a personal e-mail address. If they relate to City
business, they are public records. All City related a-mails that are not
within the category of "ephemeral correspondence" should be
maintained.
B. Voice mail message likewise are public records. Detailed voice mail
messages with substantive information relating to City matters are
public records that must be retained. Like other electronic records,
they may be retained in electronic form or transcribed.
7
III. RECORD RETENTION
A. City staff will be responsible for record retention and staff will let you
know how to provide materials to the City so that public records are
properly maintained.
B. The only public records that can be disposed of immediately are
"ephemeral correspondence." Ephemeral correspondence includes
items that do not relate to substantive City matters. For example, a
note passed from one council member to the mayor during a council
meeting simply saying that the council member needs a break could be
discarded after being read. On the other hand, if the note asked for a
break because the council member thought that a participant in the
hearing had raised a good point and the council member wanted time to
think about it, the note would be substantive and would have to be
maintained.
H:\ORCC\TV R\TIGARD\COUNCIL\CouncilOrientationTrainingPart l.wpd
8
'S -4cJ Spss,' uvi
Potential Schedule for Urban Renewal a oZ C)
The following provides an overview of estimated time requirements.
NOV 05 MAY 06
Urban Renewal Plan
Interferes with Downtown
Improvement Plan
Public Input into Urban Renewal Plan* Feb. Complete
Draft UR Plan Complete Mar. 31
Downtown
Public Comment* April
Publish UR Plan and Report* May 2-5 Improvement Plan
PC Hearing* May 23 (Feb: June)
Hearing Notice June 28 Public Input into Urban Renewal Plan* June
June 30 - Downtown Improvement Plan Complete
Adopt UR Plan* Jul. 12 Draft UR Plan Complete July
(Two dates reserved) Jul. 26 Public Comment* August
Council Approve Ballot Measure** Aug. 9 Publish UR Plan and Report* Sept. 1
Submit Ballot Measure** Sept. 1 PC Hearing* Sept. 26
Public Education Regarding UR Plan Aug-Nov. (2 months) Hearing Notice
Oct. 25
Election Nov. 8 Adopt UR Plan* Nov. 8
(Two dates reserved) Nov. 22
*State Requirements Council Approve Ballot Measure** Jan. 24
**City Charter Requirement Submit Ballot Measure** Feb. 24
Note: Ballot measure and plan can be Public Education Regarding UR Plan Dec-May (6 months)
adopted at same time, but measure
needs to be adopted no later than 62
days before election.
Election May 9
*State Requirements
**City Charter Requirement
Note: Ballot measure and plan can be
adopted at same time, but measure
needs to be adopted no later than 62
days before election.
Nov. 2005: Urban Renewal Process interferes with Downtown Plan Process, sending mixed messages;
two different products.
May 2006: Urban Renewal builds upon foundations of Downtown Plan.
I:\LRPLN\Barbara\UR\2005\Potential Schedule for Urban Renewal 2 21 05 2x.doc
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ORS 457.085-160 Urban Renewal Plans Page 1 of 5
'Disclaimer:
The following excerpt from the 2003 Oregon Revised Statutes is included on this site to assist in your research on an issue. P
.that there are likely to be other statutes and rules, both federal and state, that may apply based on a specific event or fact situ
(most court-made law will not appear in a statute.
i
lEven if the statute on its face looks like it covers the situation, it may not. We urge you to consult your city attorney about yor,
'situation.
457.085 Urban renewal plan requirements; accompanying report; contents; approval required. (1)
An urban renewal agency shall provide for public involvement in all stages in the development of an
urban renewal plan.
(2) An urban renewal plan proposed by an urban renewal agency shall include all of the following:
(a) A description of each urban renewal project to be undertaken.
(b) An outline for the development, redevelopment, improvements, land acquisition, demolition and
removal of structures, clearance, rehabilitation or conservation of the urban renewal areas of the plan.
(c) A map and legal description of the urban renewal areas of the plan.
(d) An explanation of its relationship to definite local objectives regarding appropriate land uses and
improved traffic, public transportation, public utilities, telecommunications utilities, recreational and
community facilities and other public improvements.
(e) An indication of proposed land uses, maximum densities and building requirements for each urban
renewal area.
(f) A description of the methods to be used for the temporary or permanent relocation of persons living
in, and businesses situated in, the urban renewal area of the plan.
(g) An indication of which real property may be acquired and the anticipated disposition of said real
property, whether by retention, resale, lease or other legal use, together with an estimated time schedule
for such acquisition and disposition.
(h) If the plan provides for a division of ad valorem taxes under ORS 457.420 to 457.460, the maximum
amount of indebtedness that can be issued or incurred under the plan.
(i) A description of what types of possible future amendments to the plan are substantial amendments
and require the same notice, hearing and approval procedure required of the original plan under ORS
457.095 as provided in ORS 457.220, including but not limited to amendments:
(A) Adding land to the urban renewal area, except for an addition of land that totals not more than one
percent of the existing area of the urban renewal area.
(B) Increasing the maximum amount of indebtedness that can be issued or incurred under the plan.
0) For a project which includes a public building, an explanation of how the building serves or benefits
the urban renewal area.
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ORS 457.085-160 Urban Renewal Plans Page 2 of--5
(3) An urban renewal plan shall be accompanied by a report which shall contain:
(a) A description of physical, social and economic conditions in the urban renewal areas of the plan and
the expected impact, including the fiscal impact, of the plan in light of added services or increased
population;
(b) Reasons for selection of each urban renewal area in the plan;
(c) The relationship between each project to be undertaken under the plan and the existing conditions in
the urban renewal area;
(d) The estimated total cost of each project and the sources of moneys to pay such costs;
(e) The anticipated completion date for each project;
(0 The estimated amount of money required in each urban renewal area under ORS 457.420 to 457.460
and the anticipated year in which indebtedness will be retired or otherwise provided for under ORS
457.420 to 457.460;
(g) A financial analysis of the plan with sufficient information to determine feasibility;
(h) A fiscal impact statement that estimates the impact of the tax increment financing, both until and
after the indebtedness is repaid, upon all entities levying taxes upon property in the urban renewal area;
and
(i) A relocation report which shall include:
(A) An analysis of existing residents or businesses required to relocate permanently or temporarily as a
result of agency actions under ORS 457.170;
(B) A description of the methods to be used for the temporary or permanent relocation of persons living
in, and businesses situated in, the urban renewal area in accordance with ORS 35.500 to 35.530; and
(C) An enumeration, by cost range, of the existing housing units in the urban renewal areas of the plan
to be destroyed or altered and new units to be added.
(4) An urban renewal plan and accompanying report shall be forwarded to the planning commission of
the municipality for recommendations, prior to presenting the plan to the governing body of the
municipality for approval under ORS 457.095.
(5) An urban renewal plan and accompanying report shall be forwarded to the governing body of each
taxing district affected by the urban renewal plan and the agency shall consult and confer with the taxing
districts prior to presenting the plan to the governing body of the municipality for approval under ORS
457.095. Any written recommendations of the governing body of each taxing district shall be accepted,
rejected or modified by the governing body of the municipality in adopting the plan.
(6) No urban renewal plan shall be carried out until the plan has been approved by the governing body
of each municipality pursuant to ORS 457.095 and 457.105. [1979 c.621 §2; 1983 c.544 §1; 1987 c.668
§ 1; 1987 c.447 § 130; 1991 c.459 §332; 1997 c.541 §444]
457.090 [Repealed by 1979 c.621 §28]
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ORS 457.085-160 Urban Renewal Plans Page 3 of 5
457.095 Approval of plan by ordinance; required contents of ordinance; notice. The governing
body of the municipality, upon receipt of a proposed urban renewal plan and report from the
municipality's urban renewal agency and after public notice and hearing and consideration of public
testimony and planning commission recommendations, if any, may approve the urban renewal plan. The
approval shall be by nonemergency ordinance which shall incorporate the plan by reference. Notice of
adoption of the ordinance approving the urban renewal plan, and the provisions of ORS 457.135, shall
be published by the governing body of the municipality in accordance with ORS 457.115 no later than
four days following the ordinance adoption. The ordinance shall include determinations and findings by
the governing body that:
(1) Each urban renewal area is blighted;
(2) The rehabilitation and redevelopment is necessary to protect the public health, safety or welfare of
the municipality;
(3) The urban renewal plan conforms to the comprehensive plan and economic development plan, if any,
of the municipality as a whole and provides an outline for accomplishing the urban renewal projects the
urban renewal plan proposes;
(4) Provision has been made to house displaced persons within their financial means in accordance with
ORS 35.500 to 35.530 and, except in the relocation of elderly or disabled individuals, without displacing
on priority lists persons already waiting for existing federally subsidized housing;
(5) If acquisition of real property is provided for, that it is necessary;
(6) Adoption and carrying out of the urban renewal plan is economically sound and feasible; and
(7) The municipality shall assume and complete any activities prescribed it by the urban renewal plan.
[1979 c.621 §3; 1989 c.224 §121]
457.100 [Amended by 1979 c.621 § 12; renumbered 457.065]
457.105 Approval of plan by other municipalities. In addition to the approval of a plan by the
governing body of the municipality under ORS 457.095, when any portion of the area of a proposed
urban renewal plan extends beyond the boundaries of the municipality into any other municipality and,
in the case of a proposed plan by a county agency, when any portion of such area is within the
boundaries of a city, the governing body of the other municipality may approve the plan and may do so
by resolution, rather than by ordinance. A proposed plan for an urban renewal area which is wholly
within the boundaries of a city, or which is wholly within the boundaries of a county and does not
include any area within the boundaries of a city, must be approved only by the governing body of the
municipality in accordance with ORS 457.095. [1979 c.621 §3a; 1987 c.668 §2]
457.110 [Renumbered 457.025]
457.115 Manner of newspaper notice. Notice of adoption of an urban renewal plan required under
ORS 457.095 and notice of filing of an annual financial statement required under ORS 457.460 shall be
published in the newspaper, as defined in ORS 193.010, having the greatest circulation in the
municipality and which is published within the municipality. If no newspaper is published within the
municipality, the required notice shall be published in the newspaper having greatest circulation within
the municipality published nearest to the municipality. [1979 c.621 §3b]
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ORS 457.085-160 Urban Renewal Plans Page 4 of'5
457.120 When additional notice required; to whom sent; content; notice by publication. (1) In
addition to any required public notice of hearing on a proposed urban renewal plan or substantial
amendment or change to a plan, as described in ORS 457.085 (2)(i) and 457.220, the municipality shall
cause notice of a hearing by the governing body on a proposed plan for a new urban renewal area or on a
proposed change containing one of the types of amendments specified in ORS 457.085 (2)(i) to be
mailed to each individual or household in one of the following groups:
(a) Owners of real property that is located in the municipality;
(b) Electors registered in the municipality;
(c) Sewer, water, electric or other utility customers in the municipality; or
(d) Postal patrons in the municipality.
(2) If the urban renewal area governed by the plan or substantial amendment thereof extends beyond the
boundaries of the municipality, notice shall also be sent to each individual in the selected group who is
located in the urban renewal area.
(3) The notice required by this section shall contain a statement in plain language that:
(a) The governing body, on a specified date, will hold a public hearing and consider an ordinance
adopting or substantially amending an urban renewal plan;
(b) The adoption or amendment may impact property tax rates;
(c) States the proposed maximum amount of indebtedness that can be issued or incurred under the plan
or amendment;
(d) The ordinance, if approved, is subject to referendum; and
(e) A copy of the ordinance, urban renewal plan and accompanying report can be obtained by contacting
a designated person within the municipality.
(4) If the municipality which activated the urban renewal agency is a county:
(a) The notice required by subsection (1) of this section shall be sent to each individual or household in
one of the groups listed in subsections (1)(a) to (d) of this section, except that the notice need be sent
only to those individuals or households located in a school district with territory affected or to be
affected by the tax increment financing for the new urban renewal area or proposed change.
(b) In addition to the notice under paragraph (a) of this subsection, the county shall cause notice to be
published in a paper of general circulation throughout the county. The published notice shall contain the
information described in subsection (3) of this section, be published in an advertisement not less than
three inches in height and three inches in width and be located in a general interest section of the
newspaper other than the classified advertisement section. [1991 c.459 §335f, 1997 c.541 §445]
Note: 457.120 was added to and made a part of ORS chapter 457 by legislative action but was not added
to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
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ORS 457.085-160 Urban Renewal Plans Page 5 of 5
457.125 Recording of plan upon approval. A copy of the ordinance approving an urban renewal plan
under ORS 457.095 shall be sent by the governing body of the municipality to the urban renewal
agency. A copy of the resolution approving an urban renewal plan under ORS 457.105 shall be sent by
the governing body of a municipality to the urban renewal agency. Upon receipt of the necessary
approval of each municipality governing body, the urban renewal plan shall be recorded by the urban
renewal agency with the recording officer of each county in which any portion of an urban renewal area
within the plan is situated. [1979 c.621 §4]
457.130 [1957 c.456 §§4,5; 1979 c.621 § 13; renumbered 457.035]
457.135 Conclusive presumption of plan validity. After October 3, 1979, any urban renewal plan
purported to be adopted in conformance with applicable legal requirements shall be conclusively
presumed valid for all purposes 90 days after adoption of the plan by ordinance of the governing body of
the municipality. No direct or collateral attack on the action may thereafter be commenced. [ 1979 c.621
§5]
457.140 [1957 c.456 §6; 1975 c.246 §1; 1979 c.621 §14; renumbered 457.045]
457.145 [1967 c.311 §2; repealed by 1979 c.621 § 15 (457.055 enacted in lieu of 457.145)]
457.150 [1957 c.456 §8; repealed by 1979 c.621 §28]
457.160 Exception to plan requirements for disaster areas. Notwithstanding any other provisions of
ORS chapters 455 and 456 or this chapter and ORS 446.515 to 446.547, where the governing body of a
municipality certifies that an area is in need of redevelopment or rehabilitation as a result of a flood, fire,
hurricane, earthquake, storm or other catastrophe respecting which the Governor has certified the need
for disaster assistance under federal law, the governing body may declare a need for an urban renewal
agency, if necessary, and may approve an urban renewal plan and an urban renewal project for such area
without regard to the provisions requiring:
(1) That the urban renewal plan conform to the comprehensive plan and economic development plan, if
any, for the municipality as a whole.
(2) That the urban renewal area be a blighted area. [ 1957 c.456 § 15; 1979 c.621 § 18; 1993 c.18 § 114]
http://www.orcities.org/webdocs/ORS/0RS457.085-160.htm1 2/15/2005
AGENDA ITEM NO.2 - CITIZEN COMMUNICATION DATE: February 22, 2005
(Limited to 2 minutes or less, please)
Please sign on the appropriate sheet for listed agenda items. The Council wishes to hear from you on other issues
not on the agenda, but asks that you first try to resolve your concerns through staff. Please contact the City Manager
prior to the start of the meeting. Thank you.
NAME, ADDRESS & PHONE TOPIC STAFF CONTACTED
ee,AJ eN-5 G L
~L15130 61.,-l
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17
Pt~b O
CITIZEN COMMUNICATION Page 1
G
Tualatin Riverkeepers Tualatin Riverkeepers invite you
to a Community Restoration
Event at the Brown Natural Area,
a Metro owned Greenspace.
Help restore this rare habitat for
wildlife and clean water by
planting native trees and shrubs.
Highlights
• Plant native trees and shrubs.
• Light snacks provided.
• Tools provided. Creek • • • Give back to your community.
Habitat Restoration • Families welcome.
• Tons of fun!
Date: February 26, 2005 (Saturday)
Time: 9:00 am to 1 pm Contact Person To Sign Up:
Monica Smiley, Volunteer Coordinator
Location: Brown Natural Area - monica@tualatinriverkeepers.org
nest to Bonita Park in Tigard 503.590.5813
AGENDA ITEM # 3, Z
FOR AGENDA OF 02/22/05
CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE A Resolution Approving Budget Amendment #9 to the FY 2004-05 Budget to
Increase Appropriations in the LibrarDepartment for Additional Hours of Operation to Re-open the Library on
Sundays.
PREPARED BY: Michelle Wareing DEPT HEAD OK CITY MGR OK
ISSUE BEFORE THE COUNCIL
Should the City Council approve Budget Amendment #9 to the FY 2004-05 Adopted Budget to increase
appropriations in the Library Department for additional hours of operation to re-open the Library on Sundays?
STAFF RECOMMENDATION
Staff recommends approval of Budget Amendment 49.
INFORMATION SUMMARY
On January 25, 2005, Margaret Barnes, Library Director, presented to City Council a recommendation to add
additional hours of operation to re-open the Library on Sunday through the end of the fiscal year. It was projected
that it would cost about $26,000 for the remainder of the fiscal year to re-open the Library for four hours on
Sundays. It was decided that the $26,000 would be funded by the Grace Tigard Houghton bequest. Council gave
direction to re-open the Library on Sunday through the end of the current fiscal year and to use the Houghton
bequest to fund the additional costs.
The Houghton bequest funds are held in reserve in the Facility Fund. To transfer these funds from the Facility
Fund to General Fund to pay for the additional operating hours would require a supplemental budget. A
supplemental budget is an involved and long process. For expediency, it was decided that the $26,000 would be
transferred from the General Fund's Contingency to the Library Department's budget in the Community Services
Program for this fiscal year. In FY 05/06, a transfer from the Facility Fund, Houghton bequest, to the General Fund
will be set up to repay the General Fund for the additional costs. Library staff will track actual personal services
costs to establish the actual amount that needs to be transferred, but ensure actual costs do not exceed the $26,000
maximum.
OTHER ALTERNATIVES CONSIDERED
Do not approve the resolution.
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
Urban and Public Services, Library
ATTACHMENT LIST
Resolution including Attachment A.
FISCAL NOTES
This action will transfer a total of $26,000 from the General Fund Contingency to Library Department budget,
Community Services Program, for the funding of the additional hours of operation to re-open the Library on
Sunday. Also, a transfer from the Facility Fund to General Fund, to repay the General Fund for actual costs not
to exceed $26,000, will be established in the FY 05/06 Budget.
AGENDA ITEM # 3 , 3 CL
FOR AGENDA OF February 22, 2005
CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE Award of Contract for the Construction of North Dakota Street Pedestrian
Crosswalk
7 Cq
PREPARED BY: Vannie N n DEPT HEAD OK: Agustin P. Duenas CITY MGR OK:
ISSUE BEFORE THE COUNCIL
Shall the Local Contract Review Board approve the contract award for the construction of North Dakota Street
Pedestrian Crosswalk?
STAFF RECOMMENDATION
Staff recommends that the Local Contract Review Board, by motion, approve the contract award to Accord
Construction & Environmental, Inc. in the amount of $27,176.99.
INFORMATION SUMMARY
North Dakota Street is one of the most heavily traveled neighborhood routes in Tigard as it provides a
connection between Scholls Ferry Road to the west and Highway 217 to the east. The street segment west of the
existing Fanno Creek bridge carries approximately 5,500 vehicles per day with an 85`h percentile speed of 38.5
miles per hour.
The Fanno Creek trail extends both north and south of North Dakota Street. However, the trail segments are not
aligned and are separated by a jog of approximately 185 feet along the street. The north trail segment is located
east of the south trail segment. Trail users must walk along the street and cross the street mid-block to continue
along the trail. Roadway safety during peak hours is a concern for the community especially during the winter
time when drivers may be unable to respond properly to pedestrians crossing the street at this location.
To provide a designated crossing point for pedestrians and to provide a safe place for pedestrians to walk
between the two trail segments, this project will install a marked mid-block crosswalk on the street at the
intersection of the south segment with the street. The street will be widened on the north side a distance of
approximately 350 feet to connect the two paths and provide a paved walking surface for pedestrians and to
appropriately address the drainage issues created by the widening. A 12-inch storm drain pipe would be
installed to replace the existing ditch that is backfilled due to the widening of the road. The new crosswalk
would be marked using the high visibility pattern specified by ODOT (Oregon Department of Transportation)
and MUTCD (Manual on Uniform Traffic Control Devices). In addition, advance warning signs and stop bars
would also be installed in both directions to alert drivers of the marked pedestrian crossing.
This project was advertised for bids on January 24 and January 27, 2005 in the Daily Journal of Commerce and the
Tigard Times respectively. The bid opening was conducted on February 7, 2005 and the bid results are:
Accord Construction & Environmental Portland, OR $27,176.99
Integrity Excavation & Construction Battleground, WA $30,063.40
Parker Northwest Paving Oregon City, OR $34,200.00
D&D Concrete & Utilities Tualatin, OR $34,724.00
Cipriano & Son Construction Boring, OR $36,677.50
Paul Lambson Contracting Battleground, WA $37,292.00
Civil Works NW Vancouver, WA $37,208.85
CR Woods Trucking Sherwood, OR $38,191.98
Kerr Contractors Woodburn, OR $38,196.00
C&W Grading Tualatin, OR $53,293.57
Engineer's Estimate $34,000
Based on the bids submitted, the lowest responsive bid of $27,176.99 submitted by Accord Construction &
Environmental appears to be reasonable. Staff recommends approval of the contract award to this qualified lowest
bidder.
OTHER ALTERNATIVES CONSIDERED
None
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
This project meets the Tigard Beyond Tomorrow Transportation and Traffic Goal of "Improve Traffic Safety".
ATTACHMENT LIST
Project location map
FISCAL NOTES
This project is funded in the amount of $55,000 in the FY 2004-05 Gas Tax Fund. This amount is sufficient to
award the contract of $27,176.99 to Accord Construction & Environmental, Inc.
hen012 0 0 4-2105 ty c1p\noM Dakota street crosswaMcounctk2.22.05 north dakota crosswalk contract award als.doc
NORTH DAKOTA STREET
PEDESTRIAN CROSSWALK
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AGENDA ITEM # 3.3 b,
FOR AGENDA OF February 22, 2005
CITY OF TIGARD, OREGON
LOCAL CONTRACT REVIEW BOARD (LCRB) AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE Approve Amendment to Engineering Services Contract for Murray Smith &
Associates, Inc., for Design of 550-foot Zone Reservoir No. 2
PREPARED BY: Brian Ra er if:~~ DEPT HEAD OK CITY MGR OK a
ISSUE BEFORE THE LOCAL CONTRACT REVIEW BOARD
The proposed contract amendment for additional services on the 550-foot Zone Reservoir No. 2 project exceeds 20
percent of the contract amount. Administrative Rule 10.090(1)(b) states that any change to a contract should not
exceed 20% without competitive bidding. Staff requests the LCRB waive Administrative Rule 10.090(l)(b), and
authorize the amendment.
STAFF RECOMMENDATION
Staff recommends the LCRB waive Administrative Rule 10.090(1)(b) and authorize the City Manager to execute
an amendment to the Engineering Services contract with MSA in the amount of $129,062.00.
INFORMATION SUMMARY
In May, 2003, the City entered into a contract with MSA for design services for the 550-foot Zone Reservoir No. 2.
The proposed location for the tank is on the Alberta Rider Elementary School site, located on SW Bull Mountain
Road. MSA performed preliminary engineering work for a location on the site approved by the School District
design team. However, the School District design team changed the location of their school building through the
course of their design work and the tank location no longer is available. The District offered the City another
location on the site near the northeast corner. Staff has reviewed this new location, along with another site across
Bull Mountain Road and has determined that the Rider site will be problematic and expensive for the construction
of a reservoir. Staff is currently negotiating with the land owner of the alternate location in the area. Regardless of
location, work already performed by MSA will need to be "re-done".
In order to move forward with a new location, MSA will need to perform preliminary engineering work again.
Attached is a proposed contract amendment from MSA that explains the steps they will take and the financial
impact of the amendment. It should be noted that the attached amendment form would not necessarily be used by
Staff. It is attached primarily to show the scope and value of the additional work. An amendment on City forms
would be executed. The preliminary engineering work plus additional work associated with a new location is
estimated to cost approximately $129,062.00. The alternative to approving this amendment would be to issue a
Request for Proposals (RFP) for this specific preliminary engineering work. Staff recommends against this option
for several reasons: 1) MSA holds the contract for the remaining design work on the reservoir, which would mean
the City would have to coordinate between two engineering consultants for the same project; 2) MSA is most
familiar with this site and this project; and 3) the reservoir project has been delayed due to the issue mentioned in
the above paragraph and an RFP process would add at least two more months to the delay.
OTHER ALTERNATIVES CONSIDERED
Do not approve the contract amendment and direct staff to issue a Request for Proposals for the additional
work.
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
Urban & Public Services, Water & Stormwater Goal #1, Strategy #3, "Build identified water capital
improvements." The Rider School site was selected as the target site for this capital improvement. Since that site
is not feasible, the City must quickly secure an alternate site in order to complete the project.
ATTACHMENT LIST
Proposed Amendment No. 1 to Agreement for Professional Services
FISCAL NOTES
The amendment will increase the value of the contract by $129,062. The original contract amount was
$268,355.00. Therefore, this amendment is a 48% increase.
AMENDMENT NO. 1
TO AGREEMENT FOR
PROFESSIONAL ENGINEERING SERVICES
FOR
550 FOOT RESERVOIR
FOR
CITY OF TIGARD, OREGON
THIS AMENDMENT, dated the day of , 2005, modifies the
agreement and contract made and entered into at Tigard, Oregon dated May 12, 2003, by and
between City of Tigard, hereinafter called the "City", and MURRAY, SMITH &
ASSOCIATES, INC. hereinafter called the "Engineer", and provides for engineering services
for design, bidding and construction. This amendment is hereby made a part of the above
referenced agreement to the same extent as though it was originally included therein.
This amendment modifies the original scope-of-work to address the relocation of the
reservoir from the Rider School Site to the Price Property. Some of the tasks are similar to
the original work program but the budget has been updated to reflect fees that have been
previously spent on such tasks. Also, some tasks have been revised to reflect additional
efforts associated with design of the reservoir at the new location.
The agreement is hereby amended as follows:
On page 1 of the Agreement, in Item No. 3, Engineer's Fee, REMOVE the last sentence and.
REPLACE with the following:
"The Basic Fee shall not exceed the amount of three hundred ninety-seven thousand, four
hundred and eizhteen dollars $397,418 without prior written authorization (this total does
not include the $5,000 for the Price Property Siting and the $4,000 for Additional reservoir
siting). This total is based on the following: The original budget to design the reservoir in
the south east corner of the Ryder School Site is $268,355. Of that original budget, $77,620
has been spent through January 2005. This amendment is intended to provide fees to replace
those previously expended developing designs for the original site and to add fees required-to
design the reservoir at the Price site. The additional fees requested to design the reservoir at
the Price site total $51,442.34. Therefore the additional fees requested for this amendment
totals $51,442 + $77,620 = $129,062."
In Exhibit 1, Work Plan, is amended as follows:
Item No. 1 - Task A Preliminary Design
On page 1, after the second sentence of paragraph 1, ADD the words "The revised predesign
will include predesign layout of the reservoir at the Price site and will address hydraulic
interests relative to the overflow elevation for the reservoir".
Amendment No. 1 to Agreement Pagel of 4
I:\ENG\2004-2005 FY CIP\550-ft Service Zone Reservoir No. 2 - 0497\Council Packet\022205 Council-MSA-AmendmentNo l.doc
Item No. 2 - Task B Conditional Use Permit Application
On page 3, REMOVE the first paragraph and REPLACE with the following:
"Under this task, assistance with obtaining a conditional use permit for the project from the
City of Tigard will be provided. The Engineer will represent and assist the City with the
preparation and submittal of a conditional use permit application and supporting
documentation such as renderings, maps and other such documents. It is currently
anticipated that this application will be a quasi-judicial Type III application to the City of
Tigard requiring a public hearing process.
The Engineer will assist the City during the application processing and assist with
presentations to County staff, County Planning Commission and County Commissioners, if
necessary. The Engineer will coordinate its work with the City staff and City legal counsel.
It is assumed that this process will not be a contested one".
Item No. 3 - Task C Geotechnical Investigations
On page 4, in the first sentence of paragraph numbered 1), REMOVE the words "Drill two
borings within the footprint of the proposed reservoir" and REPLACE with the following '
sentence "Drill three borings within the footprint of the proposed reservoir".
Item No. 4 - Task D Public Meetings and Presentations
This task will remain as shown in the original scope.
Item No. 5 - Task E Final Design Services
On page 6, REMOVE all of the bulleted items and REPLACE them with the following:
• "Reservoir designs assume a fully buried prestressed concrete reservoir designed and
constructed in accordance with AWWA D110 standards.
• Reservoir top treatment surface feature designs and final site improvement
engineering will be completed as part of this project.
• Reservoir related drainage designs will be coordinated with School District site
development designs. Reservoir drainage facility designs assume connection to
existing storm drainage system located east of the Rider School Site.
• Project designs assume that transmission piping will extend south from the Price site,
adjacent to the Rider School property and extend east from Rider School site where
connection will be made to the transmission piping improvements completed by the
developer that is developing a subdivision in this area. The piping depth ranges from.
minimum cover to approximately 20 feet deep. It is assumed that the entire pipe
length will be constructed using open trench methods. The length of the pipe is
approximately 1200 linear feet.
Amendment No. 1 to Agreement Page 2 of 4
I:\ENG\2004-2005 FY CIP\550-ft Service Zone Reservoir No. 2 - 0497\Council Packet\022205 Council-MSA-AmendmentNol.doc
• Basic electrical features are included in project designs. Telemetry designs will be
coordinated with the City's systems integrator.
• Access road and parking facility final designs will be designed on the Price site for the
new reservoir.
• The half street improvements along the proposed reservoir site on Bull Mountain
Road will designed as part of this project.
• Reservoir overflow piping will extend north from the reservoir and be installed
through easements on private property and to a natural drainage way. Length of the
pipe is approximately 1300 linear feet."
Item No. 6 - Task F - Permits, Approvals and Property Acquisition
On page 8, to the end of the paragraph numbered "2)" ADD the following:
"Approximately three easements will be prepared for the overflow line extending north from
the reservoir and three easements will be prepared for the waterline extending south along the
Rider School Site."
Item No. 7. - Task G - Assistance During Bidding
This task will remain as shown in the original scope.
Item No. 8 - Task H - Engineering Services During Construction
On page 10, ADD at the end of the first sentence in the first paragraph the following:
"Additional engineering related efforts during construction of the reservoir at the Price site
include construction observation and management for the longer water and overflow piping
and the required half street improvement on Bull Mountain Road.
Item No. 9 - Task I - Design and Construction Surveys
On page 12; REMOVE the first paragraph and REPLACE with the following:
"Under this task, design surveys will be performed to provide the topographic and other
information necessary to complete project designs. Topographic surveys will be conducted
for the Price site and the overflow piping extending north of the Price site. Surveys provided
by the school and various developers will be used for the off-site water piping. Construction
surveys will be completed only to the extent necessary to set an elevation reference point and
base line for the contractor to completed detailed surveys."
.Item No. 13 - Task J - Project Partnering
This task will remain as shown in the original scope-of-work.
Amendment No. 1 to Agreement Page 3 of 4
IAENG\2004-2005 FY CIP\550-ft Service Zone Reservoir No. 2 - 0497\Council Packet\022205 Council-MSA-AmendmentNo I.doc
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed in
duplicate by their respective authorized officers or representatives.
<CLIENT>
By:
<Client Representative, Title>
MURRAY, SMITH & ASSOCIATES, INC.
By:
Philip H. Smith, President
Amendment No. I to Agreement Page 4 of 4
I:\ENG\2004-2005 FY CIP\550-ft Service Zone Reservoir No. 2 - 0497\Council Packet\022205 Council-MSA-AmendmentNol.doc
City Council Document Transmittal
CITY OF TIGARD
"r0. lu 0 Q OREGON
From: PftiL/~a
~j (j
Date: a- d 0
I'm sending you:
Document Type: ❑ IGA ❑ Contract
❑ Other
Document Name: f ,~~~~?.ssiv!1 c z n . SVGS.
Approved at the Council Meeting of: 05
Number Copies Included: r-~ v-r a, (5
❑ Your document(s) have been signed by the Mayor
Your document(s) have been signed by the City Manager
Vyour document(s) requires an additional signature(s)
54hen all signatures have been obtained, file an original document with
City of Tigard Records
❑ Additional instructions: ~P I'S ter-- 01 U,1.0-
1:1ADM\FORMS\CITY COUNCIL DOCUMENT TRANSMITTAL.DOC
C~,
AMENDMENT NO. 1
TO AGREEMENT FOR
PROFESSIONAL ENGINEERING SERVICES
FOR
550 FOOT RESERVOIR
FOR
CITY OF TIGARD, OREGON
THIS AMENDMENT, dated the day of 2005, modifies the
agreement and contract made and entered into at Tigard, Oregon d ed May 12, 2003, by and
between City of Tigard, hereinafter called the "City", and MURRAY, SMITH &
ASSOCIATES, INC. hereinafter called the "Engineer", and provides for engineering services
for design, bidding and construction. This amendment is hereby made a part of the above
referenced agreement to the same extent as though it was originally included therein.
This amendment modifies the original scope-of-work to address the relocation of the
reservoir from the Rider School Site to the Price Property. Some of the tasks are similar to
the original work program but the budget has been updated to reflect fees that have been
previously spent on such tasks. Also, some tasks have been revised to reflect additional
efforts associated with design of the reservoir at the new location.
The agreement is hereby amended as follows:
On page 1 of the Agreement, in Item No. 3, Engineer's Fee, REMOVE the last sentence and.
REPLACE with the following:
"The Basic Fee shall not exceed the amount of three hundred ninety-seven thousand, four
hundred and eighteen dollars $397,418 without prior written authorization (this total does
not include the $5,000 for the Price Property Siting and the $4,000 for Additional reservoir
siting). This total is based on the following: The original budget to design the reservoir in
the south east comer of the Ryder School Site is $268,355. Of that original budget, $77,620
has been spent through January 2005. This amendment is intended to provide fees to replace
those previously expended developing designs for the original site and to add fees required-to
design the reservoir at the Price site. The additional fees requested to design the reservoir at
the Price site total $51,442.34. Therefore the additional fees requested for this amendment
totals $51,442 + $77,620 = $129,062."
In Exhibit 1, Work Plan, is amended as follows:
Item No. 1- Task A Preliminary Design
On page 1, after the second sentence of paragraph 1, ADD the words "The revised predesign
will include predesign layout of the reservoir at the Price site and will address hydraulic
interests relative to the overflow elevation for the reservoir".
Amendment No. 1 to Agreement Pagel of4
I:\ENG\2004-2005 FY CIP\550-ft Service Zone Reservoir No. 2 - 0497\Council Packet\022205 Council-MSA-AmendmentNol.doc
Item No. 2 - Task B Conditional Use Permit Application
On page 3, REMOVE the first paragraph and REPLACE with the following:
"Under this task, assistance with obtaining a conditional use permit for the project from the
City of Tigard will be provided. The Engineer will represent and assist the City with the
preparation and submittal of a conditional use permit application and supporting
documentation such as renderings, maps and other such documents. It is currently
anticipated that this application will be a quasi-judicial Type III application to the City of
Tigard requiring a public hearing process.
The Engineer will assist the City during the application processing and assist with
presentations to County staff, County Planning Commission and County Commissioners, if
necessary. The Engineer will coordinate its work with the City staff and City legal counsel.
It is assumed that this process will not be a contested one".
Item No. 3 - Task C Geotechnical Investigations
On page 4, in the first sentence of paragraph numbered 1), REMOVE the words "Drill two
borings within the footprint of the proposed reservoir" and REPLACE with the following
sentence "Drill three borings within the footprint of the proposed reservoir".
Item No. 4 - Task D Public Meetings and Presentations
This task will remain as shown in the original scope.
Item No. 5 - Task E Final Design Services
On page 6, REMOVE all of the bulleted items and REPLACE them with the following:
• "Reservoir designs assume a fully buried prestressed concrete reservoir designed and
constructed in accordance with AWWA D110 standards.
• Reservoir top treatment surface feature designs and fmal site improvement
engineering will be completed as part of this project.
• Reservoir related drainage designs will be coordinated with School District site
development designs. Reservoir drainage facility designs assume connection to
existing storm drainage.system located east of the Rider School Site.
• Project designs assume that transmission piping will extend south from the Price site,
adjacent to the Rider School property and extend east from Rider School site where
connection will be made to the transmission piping improvements completed by the
developer that is developing a subdivision in this area. The piping depth ranges from
minimum cover to approximately.20 feet deep. It is assumed that the entire pipe
length will be constructed using open trench methods. The length of the pipe is
approximately 1200 linear feet.
Amendment No. 1 to Agreement Page 2 of 4
I:1EM2004-2005 FY CIP\550-ft Service Zone Reservoir No. 2 - 0497\Council Packet\022205 Council-MSA-AmendmentNol.doc
• Basic electrical features are included in project designs. Telemetry designs will be
coordinated with the City's systems integrator.
• Access road and parking facility final designs will be designed on the Price site for the
new reservoir.
• The half street improvements along the proposed reservoir site on Bull Mountain
Road will designed as part of this project.
• Reservoir overflow piping will extend north from the reservoir and be installed
through easements on private property and to a natural drainage way. Length of the
pipe is approximately 1300 linear feet."
Item No. 6 - Task F - Permits Approvals and Property Acquisition
On page 8, to the end of the paragraph numbered "2)" ADD the following:
"Approximately three easements will be prepared for the overflow line extending north from
the reservoir and three easements will be prepared for the waterline extending south along the
Rider School Site."
Item No. 7. - Task G - Assistance During Bidding
This task will remain as shown in the original scope.
Item No. 8 - Task H - Engineering Services During Construction
On page 10, ADD at the end of the first sentence in the first paragraph the following:
"Additional engineering related efforts during construction of the reservoir at the Price site
include construction observation and management for the longer water and overflow piping
and the required half street improvement on Bull Mountain Road.
Item No. 9 - Task I - Design and Construction Surveys
On page 12, REMOVE the first paragraph and REPLACE with the following:
"Under this task, design surveys will be performed to provide the topographic and other
information necessary to complete project designs. Topographic surveys will be conducted .
for the Price site and the overflow piping extending north of the Price site. Surveys provided
by the school and various developers will be used for the off-site water piping. Construction
surveys will be. completed only to the extent necessary to set an elevation reference point and
base line for the contractor to completed detailed surveys."
Item No. 13 - Task J - Project Partnering
This task will remain as shown in the original scope-of-work.
Amendment No. 1 to Agreement Page 3 of 4
IAENG\2004-2005 FY C055041 Service Zone Reservoir No. 2 - 0497\Council Packet\022205 Council-MSA-AmendnamtNol.doc
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed in
duplicate by their respective authorized officers or representatives.
<<<CLI'ENT?
City `of Tigard
By:
OT epreseritat ve; "Title>
Craig Prosser, Interim City
Manager
MURRAY, SMITH & ASSOCIATES, INC.
By:
Pluhp H Smith,,Presiddht
Amendment No. 1 to Agreement Page 4 of 4
I:\ENG\2004-2005 FY CIP\550-ft Service Zone Reservoir No. 2 - 0497\Council Packet\022205 Council-MSA-AmendmentNol .doc
AGENDA ITEM # 41
FOR AGENDA OF 2-22-05
CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE Tigard Police Recognizes Outstanding Citizen Assistance
PREPARED BY: Jim Wolf DEPT HEAD OK A49, CITY MGR OK
ISSUE BEFORE THE COUNCIL
Request Tigard City Council join Police Chief Bill Dickinson in formally recognizing the outstanding efforts
exhibited by several Tigard area citizens. The quick action taken by these citizens who witnessed a crime, provided
police helpful assistance. As a result, Tigard Police were able to arrest and charge the people responsible.
STAFF RECOMMENDATION
Staff recommends recognizing this special group of citizens with a certificate of appreciation and verbal
acknowledgement by Chief Dickinson.
INFORMATION SUMMARY
The Tigard Police Department would like to recognize several community members for their invaluable assistance
rendered as a result of witnessing a crime. "Community Policing" is a partnership between the community and law
enforcement. What transpired between the following citizens and Tigard Police is clear evidence that further
illustrates the benefits when law enforcement embraces the support of the community.
On December 41h, Signe Martin became suspicious of a vehicle in front of her as she traveled through several
Tigard neighborhoods and along Hall Blvd. It became apparent to Ms. Martin that the driver may have been driving
while impaired. Ms. Martin telephoned police dispatch and continued to follow the suspicious vehicle while
relaying information relative to the location. During the course, the suspect vehicle ran a red light which created a
gap in the observation. After losing sight of the suspicious driver, Ms. Martin continued looking for the vehicle.
She ultimately spotted it and advised police the location. A Tigard Police Officer arrived shortly and began an
investigation. The driver was ultimately arrested for driving while under the influence. It is evident that this citizen
was taking responsibility for the safety of the entire community. Her actions are a driving force for community
policing.
Early evening on December 21", two young boys that were waiting in their parent's vehicle witnessed a pedestrian
being struck by a hit and run motorist at the intersection of Main and Burnham Street. The boys were key to
making the first call to 9-1-1 in efforts to get assistance for the injured pedestrian. Trevor and Tanner Ellenson also
provided police helpful information based on their eye witness observations. The information provided by the two
brothers assisted with the investigation. Based in part of the help provided by both Trevor and Tanner, Tigard
Police were able to arrest the driver responsible about two hours after the incident occurred. The importance of
citizens taking the necessary action to help police is clearly demonstrated here. More evident is the commendable
and clear thinking actions taken by these two boys. It also serves to illustrate that age does not present boundaries
when it comes to community policing efforts.
Finally, late evening on December 22nd proved once again the integral relationship between citizens and police.
Erik Ramseyer chose to become involved. While shopping at the local Haggen Grocery at about l 1:30PM, his
attention was drawn to a commotion near the store entrance. An employee told him someone was stealing beer. Mr.
Ramseyer followed the suspect out into the parking lot area while making a call to police dispatch advising what
occurred. At one point, Mr. Ramseyer confronted the suspect, but backed off when the thief threatened him with a
knife. However, Mr. Ramseyer was still able to follow and provide dispatch information at a safer distance until
police arrived shortly thereafter. The suspect was ultimately taken into custody by Tigard Police. Mr. Ramseyer's
persistence, albeit with an element of risk as well, resulted in the successful resolution of the incident. More
importantly, Mr.Ramseyer also understood his limits as well. Once again, the invaluable results are evident when
the community and law enforcement work together.
It is incumbent on us to look ahead as to how citizens and police can further strengthen relationships. The
outstanding actions indicated by these four individuals is evidence of a committed relationship with their
community and police. It is with great pride that Signe Martin, Trevor Ellenson, Tanner Ellenson and Erik
Ramseyer be congratulated and thanked for their exceptional decision making efforts and actions. The City of
Tigard appreciates their assistance and wants them to accept our thanks as evidenced by the certificates of
appreciation created for them.
OTHER ALTERNATIVES CONSIDERED
None
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
Not applicable
ATTACHMENT LIST
Copies of Certificate of Appreciation to be presented to each honored citizen
FISCAL NOTES
No cost involved
CERTIFICATE OF APPRECIATION
This certificate is awarded to
In recognition of the assistance you provided to the Tigard Police
Department resulting in the arrest of a theft and robbery suspect on
December 22, 2004.
Your unwavering determination and support for
Tigard Police is commended.
lPresented this 22nd day of February, 2005.
William M. Dickinson, Chief of Police
iij ME
M - WE I -a ~LWMMII~M IME
~~W
jig
CERTIFICATE OF APPRECIATION
This certificate is awarded to
In recognition of the assistance you provided to the Tigard Police
Department resulting in the arrest of a motorist driving under the
influence on December 4, 2004.
Your unwavering determination and support for
Tigard Police is commended.
Presented this 22nd day of February, 2005.
f
~L~r^bf_ /l/I/rp
William M. Dickinson, Chief of Police
NwW
I M- P-0 0- 019 M
rte' •I~•.
CERTIFICATE OF APPRECIATION
This certificate is awarded to
TaAAMe4 FAWV0,V/
In recognition of the assistance you provided to the Tigard Police
Department resulting in the arrest of a hit and run motorist that
struck a pedestrian on December 21, 2004.
Your unwavering determination and support for
Tigard Police is commended.
i
Presented this 22nd day of February, 2005.
William M. Dickinson, Chief of Police
Naw
IM FA i
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AM ,a#
ate%
1 401
CERTIFICATE OF APPRECIATION
This certificate is awarded to
t
2~Ci2~0?i
In recognition of the assistance you provided to the Tigard Police
Department resulting in the arrest of a hit and run motorist that
struck a pedestrian on December 21, 2004.
Your unwavering determination and support for
Tigard Police is commended.
Presented this 22nd day of February, 2005.
William M. Dickinson, Chief of Police
91 MINE,, 111 !ALM %Wj ;j%"
SOME
AGENDA ITEM # 5
FOR AGENDA OF 02/22/05
CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE Approve an Intergovernmental Agreement (IGA) between the Citeses Tigard and
TriMet for the Assignment of a Full-Time Tigard Police Officer to the Transit Police Division
PREPARED BY: Mike Bell/Michelle Wareing DEPT HEAD OK Gvl*V CITY MGR OK a
ISSUE BEFORE THE COUNCIL
Consider approval of an Intergovernmental Agreement with TriMet to assign a full-time Tigard officer to the
Transit Police Division and authorize the Interim City Manager to enter into such agreement.
STAFF RECOMMENDATION
Approve the Intergovernmental Agreement with TriMet to assign a full-time Tigard officer to Transit Police
Division and authorize the Interim City Manager to sign the Intergovernmental Agreement.
INFORMATION SUMMARY
TriMet contracts with the Portland Police Bureau, Multnomah and Washington Counties, cities of Beaverton,
Gresham, and Milwaukie for police services. This multi-agency team is supervised by the Portland Police Bureau
and constitutes the Transit Police Division, which maintains the safety and security of the transit system by
enforcing applicable ordinances and state laws throughout the TriMet service area, which includes the City of
Tigard. There is currently an officer position opening and the City of Tigard has been asked to participate in the
Transit Police Division.
A City of Tigard officer would be assigned full-time to the Transit Police Division Any Tigard Officer assigned
will gain valuable training and experience in transit related issues, which is needed with the advent of commuter
rail in addition to Tigard's two major transit stations (Commercial Street and Washington Square) already in
operation. The officers that are assigned to the Transit Police Division will share their experience gained from this
assignment with other Tigard officers.
The IGA that is to be signed has an effective date of March 1, 2005 and will expire on June 30, 2005. Prior to
expiration, all police agencies will sign new IGA's with TriMet that will become effective July 1, 2005. These new
IGA's will be annual, but automatically renewing unless terminated sooner, for at total of five years to June 30,
2010.
TriMet will pay all personal services costs plus a 10% overhead charge for the Tigard officer assigned to the Transit
Police Division. The City will bill the Portland Police Bureau (managing agency of the Transit Police) each month.
TriMet will also provide the necessary materials and any special training for the officer to perform his/her job
while at the Transit Police Division. Tigard will be responsible for providing a fully operational police officer.
Assigning an in-service officer to TriMet would require hiring an additional officer to "back-fill" the assigned
officer position. A budget amendment to authorize an additional position and costs associated with the new
position is also on the February 22 agenda and contingent upon the City Council's authorization of this IGA.
Advantages: Tigard receives experience and training in transit policing at no cost.
Tigard's police staffing ratio increases from 1.33 officers per 1000 to 1.35 officers per 1000.
Tigard participates in the regional effort to provide safe and effective mass transit.
Provides job enrichment for Tigard Police Officers.
Accepts responsibility for Tigard's role in a Metro wide service.
The contract provides for full recovery of direct costs to the City including overhead.
Disadvantages: Tigard has to hire and train an additional officer.
The Police Department believes that the advantages of this TriMet partnership significantly outweigh the
disadvantages.
OTHER ALTERNATIVES CONSIDERED
Do not sign the Intergovernmental Agreement with TriMet, thereby declining the opportunity to participate in
the Transit Police program.
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
Public Safety, #4 - Police outreach - better communication with all citizens
Tigard Police Mission, Vision, and Goals Statement - Partnering with citizens and other departments
ATTACHMENT LIST
IGA between the City of Tigard and TriMet
FISCAL NOTES
TriMet will reimburse Tigard for all personal services costs (wage, benefits, overtime) plus 10% for overhead
and will provide the assigned officer with the necessary materials to perform his/her job. Also, since the
assigned officer will not be part of the Tigard patrol unit, the Tigard Police Department will need to hire an
additional officer to "back-fill" this position. The estimated cost for this new officer for the remainder of FY
2004/05 is $20,700. This IGA provides for full reimbursement of all wages and benefits to include overtime, as
a well as up to an additional 10% overhead cost for accounting and billing for the contracted officer. A budget
amendment that will authorize the additional position and costs is also on the February 22 agenda and
contingent upon the City Council's authorization of this IGA.
Cathy Wheatley - Re: Council Meeting of 2/22/05 Page 1
From: Cathy Wheatley
To: Bill Dickinson
Subject: Re: Council Meeting of 2/22/05
Thanks Bill ...it's in the works already... but no harm - we'll get the one from TriMet signed by our COT
people when it arrives! I'm trying to do follow up next day after Council on agreements and such so that
you all can get you items concluded as fast as possible - I'll just put a copy of this e-mail with my follow up
notes.
Great presentations at Council on Tuesday!
Cathy
Bill Dickinson 2/23/2005 3:22:38 PM
Cathy,
Wait!! You don't need to have your version signed. TriMet is signing the originals and will forward them to
us for our signature. The one in the packet was a copy for council review, but the original will be coming
from TriMet. We just have to wait until it gets here. Any questions, give me a call!
Bill Dickinson
City Council Document Transmittal
CITY OF TIGARD
To: Gary Firestone, City Attorney's Ofc. OREGON
From: Cathy Wheatley, City Recorder
Date: February 23, 2005
I'm sending you:
Document Type: x IGA Contract
Other
Document Name: TriMet, City of Tigard, City of
Portland (for funding of a police officer)
Approved at the Council Meeting of: February 22, 2005
Number Copies Included: 2 originals
Gary, please sign (2 times, each original document) the
enclosed agreements and return them to me in the
enclosed envelope. Call me if you have any questions,
503-718-2410.
1
I:\ADM\FORMS\CITY COUNCIL DOCUMENT TRANSMITTAL.DOC '
C-
INTERGOVERNMENTAL AGREEMENT
This Agreement is among the Tri-County Metropolitan Transportation District of Oregon
(TriMet), the City of Tigard (Tigard) and the City of Portland (Portland),
pursuant to authority granted in ORS Chapter 190.
The purpose of this agreement is to provide one officer (1.0 FTE) to the TriMet Transit Police
Division, which is operated and administered by the Portland Police Bureau under a separate contract
between TriMet and Portland. TriMet, through Portland, will compensate Tigard for the services of
the officer assigned to the Transit Police Division.
The parties agree as follows:
1. TERM: The term of this agreement is from March 1, 2005 to June 30, 2005, unless terminated
sooner under the provisions hereof.
2. RESPONSIBILITIES OF PARTIES: See attached Exhibit 1.
3. TERMINATION: This agreement may be terminated as follows:
a. Any party may terminate this agreement for its convenience and without penalty upon
thirty (30) days written notice of its intention to terminate.
b. If TriMet is unable to appropriate sufficient funds to pay Tigard for its services under
this agreement, TriMet must notify Tigard and Portland and the agreement terminates as
of the end of the last fiscal year for which such appropriations are available.
C. Any obligations arising prior to the date of termination survive the termination,
including any obligation to defend and indemnify any other jurisdictions.
4. INDEMNIFICATION:
Portland and Tigard will be responsible for the work of the officers assigned to the TriMet
Transit Police Division.
Subject to the conditions and limitations of the Oregon Constitution and the Oregon Tort
Claims Act, ORS 30.260 through 30.300, Tigard shall indemnify, defend and hold harmless
TriMet and Portland from and against all liability, loss, and costs arising out of or resulting
from the acts of Tigard, its officers, employees, and agents in the performance of this
agreement. Subject to the conditions and limitations of the Oregon Constitution and the
Oregon Tort Claims Act, ORS 30.260 through 30.300, TriMet shall indemnify, defend, and
hold harmless Tigard and Portland from and against all liability, loss, and costs arising out of or
resulting from the acts of TriMet, its officers, employees, and agents in the performance of this
agreement. Subject to the conditions and limitations of the Oregon Constitution and the
Oregon Tort Claims Act, ORS 30.260 through 30.300, Portland shall indemnify, defend, and
hold harmless Tigard and TriMet from and against all liability, loss, and costs arising out of or
resulting from the acts of Portland, its officers, employees, and agents in the performance of
this agreement.
5. INSURANCE: Each party shall be responsible for providing workers' compensation
insurance as required by law. No party shall be required to provide or show proof of any other
insurance coverage.
Page I of 7
6. ADHERENCE TO LAW: Each party must comply with all federal, state, and local laws and
ordinances applicable to this agreement.
7. ACCESS TO RECORDS: Each party must have access to the books, documents, and other
records of the other parties related to this agreement for the purpose of examination, copying,
and audit, unless otherwise limited by law.
8. SUBCONTRACTOR AND ASSIGNMENT: No party shall subcontract or assign any part of
this agreement without the written consent of the other parties.
9. ENTIRE AGREEMENT: This agreement and Exhibits 1 and 2 constitute the entire agreement
between the parties. This agreement may be modified or amended only by the written
agreement of the parties.
10. ATTORNEY FEES: In the event a lawsuit is filed to obtain performance of any kind under
this agreement, the prevailing party is entitled to additional sums as the court may award for
reasonable attorney fees, all costs, and disbursements, including attorney fees, costs, and
disbursements on appeal.
11. SEVERABILITY: The parties agree that, if any term of this agreement, is declared by a court
to be illegal or in conflict with any law, the validity of the remaining terms will not be affected.
12. NOTICES: The parties must send any notices, bills, invoices, reports, or other written
communications required by this agreement through the United States Mail, first-class postage
paid, or personally delivered to the addresses below:
TIGARD TRIMET PORTLAND
Bureau of Police
13125 SW Hall Blvd 4012 SE 17th 1111 SW 2"d Avenue
Tigard, OR 97223 Portland, OR 97202 Portland, OR 97204
Attn: Captain Mike Bell Attn: Robert T. Nelson Attn: Chief Crebs
Signature Signature Signature
Craig Prosser
Print Print Print
Interim City Manager
Title Title Title
Approved at to form: By:
Mayor
Gary Firestone, City Attorney Legal Counsel City Attorney
Page 2 of 7
EXHIBIT 1
INTERGOVERNMENTAL AGREEMENT
BETWEEN TIGARD, THE CITY OF PORTLAND
AND
THE TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON
1. SERVICE LEVEL
For the term of this contract, Tigard will provide one (1) full-time officer (FTE) for assignment
to the Transit Police Division (hereinafter Division). On an annual basis, the parties will agree
upon the level of police service including personnel, equipment, and related support, to be
provided to the Division. Tigard personnel assigned to the Division will remain employees of
Tigard and will not be considered employees or agents of TriMet or the City of Portland
(Portland). For purposes of this agreement, the officer assigned to the Division will be referred
to as assigned to the TriMet Transit Police Division.
2. OPERATIONS
a. Deployment: The parties recognize that they have legitimate interests in the
management and deployment of officers assigned to the Division. The parties will work
together to ensure that the allocation and deployment of police personnel assigned to the
Division shall be consistent with TriMet's System Security Plan.
b. Specialty Assignmen : The parties recognize the value of police specialty assignments
and training. TriMet reserves the right, however, to limit the number of
deputies/officers assigned to the Division who hold specialty status and require
specialized training.
C. Daily Operation: The Division's sergeants and command personnel will provide
supervision of Tigard officers for the daily operation of the Division.
d. General Orders, Standard Operation Procedures, and Testing: All officers assigned to
the Division will remain subject to the General Orders and training requirements of
Tigard. Additionally, all deputies/officers assigned to the Division will abide by the
Division's Standard Operating Procedures.
e. Selection and Assignment: The command personnel of Tigard, TriMet, and Portland
will jointly select and assign deputies/officers to the Division. The relevant command
personnel will make every effort to select the most qualified available deputy/officer
making application for assignment to the Division.
f. Agency Cooperation and Coordination:
(1) The parties will work closely and continuously communicate with each other to
ensure that the resources, strategies, work force deployment, and initiatives of
TriMet, Portland, and Tigard are coordinated and effective.
(2) The Commander, TriMet Transit Police Division, or his/her designee, will
coordinate contact with the parties to insure that the resources, strategies, work
force deployment, and initiatives of the Division and those of the respective law
enforcement agencies are coordinated and effective.
Page 3 of 7
(3) Tigard agrees to work cooperatively in an effort to increase reporting of TriMet
related incidents. Tigard agrees to provide to the Division TriMet coded reports,
data, and records. TriMet agrees to make available to Tigard, through the
Division, particular date reports, records, etc. that will assist in fulfilling the
mission as outlined in this document.
g. Officer Seniority
Determination of deputy/officer seniority for purposes of making shift, vacation, holiday,
and overtime assignments shall be according to the Memorandum of Agreement between
Tigard, the Tigard Police Officers' Association, Portland and TriMet attached hereto as
Exhibit 2.
3. REIMBURSEMENT OF COSTS
a. Costs: Tigard must pay the salaries, overtime, insurance, retirement, and other benefits of
its respective deputies/officers serving in the TriMet Transit Police Division. Tigard must
bill the Portland Police Bureau, Fiscal Division, monthly for the salaries, overtime,
insurance, retirement, other benefits and Indirect (overhead not to exceed 10%) charges
incurred by Tigard to provide personnel. Billings will be sent to: PPB Fiscal Division,
1111 SW 2"d Avenue, Portland, OR 97204. Portland agrees to compensate Tigard within
30 days after receiving the bill.
b. Amount: Before April I" of each year of this agreement, Portland and Tigard must
submit to TriMet a proposed annual budget for services under this contract for next
fiscal year (July 1 through the following June 30). The parties will then agree on the
compensation to be paid by TriMet for services to Portland and Tigard under this
agreement. If the parties cannot agree on such compensation by April I" of each year
of this agreement or at anytime during the term of this agreement, any party may elect
to terminate this agreement for its convenience and without penalty in accordance with
the Termination provision in this agreement.
Page 4 of 7
EXHIBIT 2
MEMORANDUM OF AGREEMENT BY AND BETWEEN
THE CITY OF TIGARD, TRIMET, AND
THE CITY OF PORTLAND
The parties to this agreement are the City of Tigard, the City of Portland and TriMet.
It is the intent of this agreement: (1) to recognize that the TriMet Transit Police Division (Division) is
staffed by police officers from many jurisdictions, each covered by their respective collective
bargaining agreements, but that shifts, days off, vacations and overtime need to be assigned in a fair
and equitable manner;. (2) to provide for assignment of shifts, days off, vacations and overtime by
seniority; (3) to allow for the change of shift hours of operation and to re-allocated positions and days
off within certain shifts to maintain an appropriate balance of field strength.
THE PARTIES AGREE THAT:
1. Current and future Tigard officers assigned to the Division will use their Tigard date of hire
seniority as the means to select shifts, days off, vacations and overtime.
2. Current and future Tigard officers assigned to the Division will abide by the following:
3. Seniority shall be defined as the length of uninterrupted services by the officer in his/her
agency within the officer's Civil Service classification following the officer's most recent
appointment. Time spent in the Armed Forces, on military leaves of absence, other authorized leaves
and time lost because of duty-connected disability shall be included in length of service. If an officer
who has been promoted reverts to a position s/he formerly held, the officer's seniority shall be the sum
of the seniority earned in the promotional class and in the class to which the officer reverts.
4. Subject to manpower needs and maintaining efficiency of the Division/Detail, seniority shall be
the prime factor in the selection of shifts and days off provided the officer is otherwise qualified.
Seniority shall govern in the selection of vacation and holidays.
5. In the case of voluntary transfer and/or assignment, the seniority of an officer shall apply
immediately to the officer's choice concerning holidays and vacations. The transferring officer may
not use seniority to bump another officer's shift or days off until 45 days from the date of the written
request.
6. In case of involuntary transfer and/or assignment, the seniority of an officer shall apply
immediately to the officer's choice concerning holidays and vacation. The transferring officer may not
use seniority to bump another officer's shift or days off until 30 days from the date of the written
request.
7. For the purposes of this Agreement, the phrase "Transferring Officer" shall refer to an officer
desiring to change shifts, days off or assignments, or an officer who is involuntarily transferred.
8. The Division shall prepare a form to be used by officers desiring to transfer from one shift,
assignment, or day off configuration to another within the same reporting unit. For the purposes of this
Agreement, this form shall be referred to as the "Transfer Request Form." The Transfer Request Form
Page 5 of 7
shall contain a place for transferring officers to indicate their preferences with respect to shifts and
days off.
9. A transferring officer may complete a Transfer Request Form at any time. If the officer is
seeking or anticipating a transfer, the officer shall file the Transfer Request Form with a Division
Lieutenant. If the officer is seeking a change in days off or shifts which do not involve a transfer
between reporting units, the Transfer Request Form shall be filed with the officer's shift commander.
The Division will forward a copy of the Transfer Request Form to the location of the anticipated
transfer.
10. In the event of a change in days off or shifts that do not involve a change in reporting units, the
time frames referred to in Section 5 and 6 of this Agreement shall begin to run when the transferring
officer submits the Transfer Request Form.
11. When the Division knows that an officer's preferences as indicated on a Transfer Request Form
will result in the displacement of the shift or days off of another officer (referred to herei&as the
Transferred Officer), the Division shall notify the Transferred Officer as soon as possible of the fact
that he or she may be bumped.
12. The Division shall accommodate the shift and/or days off preferences of transferring officers
on a faster time schedule than that contained in Sections 5 and 6 of this Agreement, if, in the
Division's judgment, it is operationally sound to do so, provided that no other affected officer is
bumped from his or her days off or shift who objects to the accommodation.
13. An officer may exercise seniority to bump another officer for shift and days off only once in
ninety (90) days.
14. Vacations. Employees shall be allowed to select two vacation periods on the basis of seniority.
Each vacation period must be of a minimum duration of one day. Vacation time shall be scheduled by
the Division with due consideration being given to request from officers which shall be determined
among officers of equal rank by seniority; provided, however, that each officer shall'be permitted to
exercise the right of seniority only once each year. The sign-up deadline for the exercise of seniority
in the selection of vacations shall be March 15 for the calendar year running from April 15 through
April 14 of the following year.
15. Holiday Assignment. Where the shift strength is reduced or increased on holidays, consistent
with the needs of the Division, assignments shall be offered to the most senior officer. Except for an
emergency, the Division shall provide a minimum of ten (10) days' notice of any deviation from
normal shift strength so that officers may plan the use of their time.
A. Where shift strength is reduced, the most senior officer scheduled for duty on the shift shall
be offered the option of working or not. Where shift strength is increased, the most senior
officer on the shift shall be offered the option of working or not.
B. For purposes of this section, New Year's Eve and Christmas Eve shall be treated as
holidays.
16. Seniority for Vacation Purposes upon Transfer. If an officer is involuntarily transferred, the
Division shall honor the officer's pre-selected vacation times, and shall not disrupt the pre-selected
vacation time for other officers in the division to which the officer is involuntarily transferred. If an
officer accepts a voluntary transfer, the Division shall attempt to accommodate, to the extent possible,
the officer's pre-selected vacation times.
Page 6 of 7
17. Shift Overtime. Where the overtime is not directly related to activities begun by an officer
during the officer's regular shift, and where the planned overtime is anticipated to be four (4) hours or
more in duration, the overtime shall be offered, in the order of seniority, to officers in the Division.
Once each eligible officer has had the opportunity to work shift overtime, officers may once again use
their seniority to work shift overtime as described above, and the seniority list shall rotate in the same
fashion thereafter. The Division shall maintain a list in each reporting unit upon which officers must
place their names indicating a willingness to work shift overtime. If an officer is incorrectly passed
over for shift overtime, the officer shall be allowed to work a makeup overtime assignment within the
next two pay periods following the discovery of the error. The officer and the Division shall mutually
agree upon the makeup overtime assignment, which shall not displace another officer's already-
selected overtime assignment. An officer who has been incorrectly passed over shall not be otherwise
entitled to compensation for the missed overtime.
18. An officer will normally be given adequate advance notice of any change in the officer's
regular hours of work, except where an emergency (an emergency is defined as an unforeseen event
affecting the Division's ability to perform its mission) exists. Notice given less than forty-eight (48)
hours (or seventy-two [72] hours under the Four-Ten Plan) before the officer is to begin work under
the changed schedule entitles the officer to compensation at the overtime rate for those hours not
exceeding eight (8) hours that are earlier, later, or different from the hours the officer last worked in a
work day. A police officer is not entitled to compensation under the overtime rate if the officer is
otherwise entitled to compensation under the same hours of work, or if shift changes are the result of a
voluntary transfer or promotion.
All other terms and conditions of any current Collective Bargaining Agreement between the Tigard
Police Officer's Association and the City of Tigard shall remain in effect as to other issues not
addressed by this MOA.
IT IS AGREED BY:
Reviewed:
Gary Firestone, City Attorney
City of Tigard: Craig Prosser, Interim City Manager
APPROVED AS TO FORM:
City of Portland City Attorney
TriMet, Executive Director of Operations
Page 7 of 7
AGENDA ITEM # LP
FOR AGENDA OF 02/22/05
CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE A Resolution Approving Budget Amendment #8 to the FY 2004-05 Budget to Add a
Full-time Police Officer Position and Increase Appropriations for Funding of this Position.
PREPARED BY: Michelle Wareing DEPT HEAD OK CITY MGR OK
ISSUE BEFORE THE CO CIL
Should the City Council approve Budget Amendment #8 to the FY 2004-05 Adopted Budget to add a full-time
police officer position and increase appropriations for funding of this position?
STAFF RECOMMENDATION
Staff recommends approval of Budget Amendment #8.
INFORMATION SUMMARY
TriMet contracts with the Portland Police Bureau, Multnomah and Washington Counties, cities of Beaverton,
Gresham, and Milwaukie for police services. These officers are supervised by the Portland Police Bureau and
make-up the Transit Police Division, which maintains the safety and security of the transit system by enforcing
applicable ordinances and state laws throughout the TriMet service area. Tigard City Council approved and signed
an Intergovernmental Agreement with TriMet on February 22, 2005 to assign a full-time officer to the Transit
Police Division.
TriMet will pay all personal services costs plus 10% overhead for the Tigard officer assigned to the Transit Police
Division. The City will bill the Portland Police Bureau (managing agency of the Transit Police) each month.
TriMet will also provide the necessary materials and any special training for the officer to perform his/her job while
at the Transit Police Division. Tigard will be responsible for providing a uniform, training as required by Tigard,
and other miscellaneous items to the assigned officer. Since the officer will not be available to work in Tigard's
patrol unit, an additional officer will need to be hired to "back-fill" the assigned officer position.
This budget amendment will increase the authorized police officer positions in the Police Operations Division by
one position. Also, it will transfer funds from the General Fund Contingency to the Police Operations budget. A
contingency transfer is needed even though Tigard will be reimbursed by TriMet because to recognize new
revenues and appropriate them requires a supplemental budget, which is a very involved process. The
reimbursement and overhead payments received from TriMet will be receipted into the General Fund and will
become part of the fund balance, which will be rolled over into FY 2005-06.
OTHER ALTERNATIVES CONSIDERED
Do not approve resolution. If the IGA with TriMet is approved, but the budget amendment is not, the net result
would be a reduction in the number of police officers available to patrol Tigard.
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
Public Safety, #4 - Police outreach - better communication with all citizens.
Tigard Police Mission, Vision, and Goals Statement - Partnering with citizens and other departments
ATTACHMENT LIST
Resolution including Attachment A
FISCAL NOTES
This action will transfer a total of $20,700 from the General Fund Contingency to Police Operations budget,
Community Services Program, for the funding of the additional Police Officer position for the remaining four
months of FY 2004/05.
AGENDA ITEM #
FOR AGENDA OF February 22, 2005
CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE _ Discuss a Proposed Resolution to Support Collaboration with Washington County
Jurisdictions Regarding Proposed Changes to Goal 14 (Urbanization) and the Urban Growth Boundary
Administrative Rules and to Support Local Control Over the Land-Use Process
PREPARED BY: Jim Hendrvx DEPT HEAD OK
TY MGR OK
g*7'
ISSUE BEFORE THE COUNCIL
Discuss a proposed resolution supporting region-wide collaborative efforts to work on Goal 14 Urbanization and
Urban Growth Boundary administrative rules and supporting region-wide efforts to limit Metro's authority to adopt
local land use controls.
STAFF RECOMMENDATION
Discuss the proposed resolution and direct staff to make any revisions so Council may consider the final draft at an
upcoming Council meeting.
INFORMATION SUMMARY
Council members received for review Resolution 4301-04 from the City of Tualatin, voicing local concerns in
defining Metro's role in balancing regional and local issues, including the Urban Growth Boundary (UGB)
expansion. The Council also, during its recent goal-setting meetings, decided it would seek changes at Metro to
free Tigard's Comprehensive Plan process to respond to citizen's concerns and to initiate discussion with Metro
regarding flexibility with density requirements. The draft resolution states that the City of Tigard:
1. Supports the region-wide collaborative efforts to work on Goal 14 Urbanization and Urban Growth
Boundary administrative rules in order to address transition of urban uses and services in unincorporated
areas, including annexation before development.
2. Supports region-wide efforts to limit Metro's authority to adopt local land-use controls to assure that the
Tigard Comprehensive Plan reflects our community's sense of place.
OTHER ALTERNATIVES CONSIDERED
1. Amend the draft resolution.
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
Goal 1: Growth Management: Growth will be managed to protect the character and livability of established
areas, protect the natural environment and provide open space throughout the community
ATTACHMENT LIST
1. City of Tualatin Resolution 4301-04
2. City of Tigard - Draft Resolution
FISCAL NOTES
N/A
i:\adm\packet'05\050222wrb - ais.doc
RESOLUTION NO. 4301-04
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUALATIN,
OREGON DESCRIBING PROPOSED CHANGES TO THE URBAN GROWTH
BOUNDARY EXPANSION PROCESS
WHEREAS Tualatin is a city in the territory of the Metropolitan Services District
(known as "Metro"); and
WHEREAS cities in the Metro region have their urban boundaries established by
Metro; and
WHEREAS the Metro Policy Advisory Committee (MPAC) is a Metro committee
charged with providing a voice and input fo'r Metro cities on Urban Growth Boundary
(UGB) expansion issues; and
WHEREAS there has been mounting frustration and concern in Tualatin in
particular, and many cities in general that the UGB expansion process does not balance
local needs and concerns with regional issues, and that soil classification predominates
in Metro led UGB expansion decisions; and
WHEREAS the City of Tualatin proposes the following seven principles of
legislative change be adopted and incorporated in appropriate sections of Oregon
Revised Statutes, Oregon Administrative Rules and Metro drafted rules-and guidelines
concerning UGB expansion.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF TUALATIN,
OREGON, that:
Section 1. Additions to the Urban Growth Boundary should not be determined
solely by soils classifications, with exception lands always being the first to be
considered for addition. Metro should be allowed to consider other factors, such as
preexisting development in the area, the wishes of the adjacent cities that would have
to serve the area, and other appropriate local concerns.
Section 2. The frequency for reviewing whether the land supply is sufficient for
development purposes should be changed from 5 years to no more often than every 7-
10 years.
Section 3. The Legislature should enact or amend a statute to make it clear that
Metro cannot add land to the Urban Growth Boundary of a city without the city agreeing
to that addition.
Resolution No. 4301-o4 - Page 1 of 2
Section 4. The Legislature should enact or amend a statute clarifying that cities
retain their zoning authority, separate from a UGB expansion. Metro cannot add land to
a city's Urban Growth Boundary and specify the zoning type that the City would have to
impose on that land.
Section 5. The Metro Council election and representation process should be
changed from districts to at-large to ensure a broader-based representation process.
Section 6. The Legislature should enact or amend a statute to require lands
added to the Urban Growth Boundary by Metro concurrently identify a viable
transportation system to support the added land and the existing city transportation
system in coordination with a city.
Section 7. The Legislature should enact or amend a statute to require lands
added to an Urban Growth Boundary by Metro concurrently have allocated funding for
transportation infrastructure development in the added land and the existing city
transportation system.
INTRODUCED AND ADOPTED this 25th day of October, 2004.
CITY OF A IN, OREGON
By
Mayor
ATTEST:
By C.L~t CC/~
City Recorder
Resolution No. 430 t -04 - Page 2 of 2
CITY OF TIGARD, OREGON
RESOLUTION NO. 05-
A RESOLUTION OF THE TIGARD CITY COUNCIL TO SUPPORT COLLABORATION
WITH OUR WASHINGTON COUNTY NEIGHBORS REGARDING PROPOSED
CHANGES TO GOAL 14 (URBANIZATION) AND THE URBAN GROWTH BOUNDARY
EXPANSION ADMINISTRATIVE RULES, AND TO SUPPORT LOCAL CONTROL OVER
THE LAND-USE PROCESS.
WHEREAS, as an incorporated city in the state of Oregon, the City of Tigard is subject to state
land-use planning laws and must have an adopted Comprehensive Plan'tharesults from broad
citizen involvement that meets mandatory state standards;-which-include 19 statewide planning
goals; and
WHEREAS, as an incorporated city in the Portland metropolitan 'region, the City of Tigard also
is located within the service territory of Metro, which has the'primary responsibility for regional
land-use and transportation planning; and
WHEREAS, in October 2004, the City of Tualatin-passed Resolutiout43'01-04 which voices local
concerns in defining Metro's role in balancing regional`and local issues, including the Urban
Growth Boundary (UGB) expansion; and 4
;i
WHEREAS, the City of Tigard,recognizes that while regional efforts have focused on
establishing and amending the Urban Growth Boundary (UGB), critical aspects of
implementation have been overlooked, including the'pfocess of converting urbanizable land to
urban land, the timing of conversion, and-the availability of public facilities, services and
patterns; an- - /
WHEREAS, the City of Tigard feels uongly that implementation must be addressed in a
cohesive and comprehensive manner- including annexation - prior to development, or areas will
continue to,urbanize without,adequate'services, creating additional costs and administrative
burdens to jurisdictions providing services and creating unincorporated urbanized areas which
are in direct opposition to Goal 14; and
WHEREAS, the City`of Tigard recognizes that there have been efforts to clarify Metro's
authority under the Metro Charter based on the Oregon planning program principle which
emphasizes citizen involvement and direction and local land use controls; any directive by Metro
to address local plan and zoning content is inconsistent with state law and prevents the exercise
of balanced legislative judgment by a local council.
Resolution No. 05-
Page I
NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The City of Tigard supports region-wide collaborative efforts to work on Goal 14
Urbanization and Urban Growth Boundary administrative rules in order to address
transition of urban uses and services in unincorporated areas, including
annexation before development.
SECTION 2: To assure that the Tigard Comprehensive Plan reflects our„sommunity's sense of
place, the City of Tigard supports region-wide efforts to limit'Metro's authority to
adopt local land-use controls.
SECTION 1 This resolution takes effect immediately.
PASSED: This day of )2005.
r \
`'".,,Mayor - City\of Tigard
ATTEST:
City Recorder - City of Tigard
i:V3dm\packet'05\050222Wrb resoWtion.tloq
1
v
Resolution No. 05-
Page 2
CITY OF TIGARD, OREGON
RESOLUTION NO. 05-
A RESOLUTION OF THE TIGARD CITY COUNCIL TO SUPPORT COLLABORATION
WITH OUR WASHINGTON COUNTY NEIGHBORS REGARDING PROPOSED
CHANGES TO GOAL 14 (URBANIZATION) AND THE URBAN GROWTH BOUNDARY
EXPANSION ADMINISTRATIVE RULES, AND TO SUPPORT LOCAL CONTROL OVER
THE LAND-USE PROCESS.
WHEREAS, as an incorporated city in the state of Oregon, the City of Tigard is subject to state
land-use planning laws and must have an adopted Comprehensive Plan that results from broad
citizen involvement that meets mandatory state standards, which include 19 statewide planning
goals; and
WHEREAS, as an incorporated city in the Portland metropolitan region, the City of Tigard also
is located within the service territory of Metro, which has the primary responsibility for regional
land-use and transportation planning; and
WHEREAS, in October 2004, the City of Tualatin passed Resolution 4301-04 which voices local
concerns in defining Metro's role in balancing regional and local issues, including the Urban
Growth Boundary (UGB) expansion; and
WHEREAS, the City of Tigard recognizes that while regional efforts have focused on
establishing and amending the Urban Growth Boundary (UGB), critical aspects of
implementation have been overlooked, including the process of converting urbanizable land to
urban land, the timing of conversion, and the availability of public facilities, services and
patterns; and
WHEREAS, the City of Tigard feels strongly that implementation must be addressed in a
cohesive and comprehensive manner - including annexation - prior to development, or areas will
continue to urbanize without adequate services, creating additional costs and administrative
burdens to jurisdictions providing services and creating unincorporated urbanized areas which
are in direct opposition to Goal 14; and
WHEREAS, the City of Tigard recognizes that there have been efforts to clarify Metro's
authority under the Metro Charter based on the Oregon planning program principle which
emphasizes citizen involvement and direction and local land use controls; any directive by Metro
to address local plan and zoning content is inconsistent with state law and prevents the exercise
of balanced legislative judgment by a local council.
Resolution No. 05-
Page I
NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The City of Tigard supports region-wide collaborative efforts to work on Goal 14
Urbanization and Urban Growth Boundary administrative rules in order to address
transition of urban uses and services in unincorporated areas, including
annexation before development.
SECTION 2: To assure that the Tigard Comprehensive Plan reflects our community's sense of
place, the City of Tigard supports region-wide efforts to limit Metro's authority to
adopt local land-use controls.
SECTION 3: This resolution takes effect immediately.
PASSED: This day of , 2005.
Mayor - City of Tigard
ATTEST:
City Recorder - City of Tigard
i:tadmtpacket'05t050222Wrb msolution.doc
Resolution No. 05-
Page 2
AGENDA ITEM No. 8 Date: September 14, 2004
PUBLIC HEARING
TESTIMONY
SIGN-UP SHEET
Please sign on the following page(s) if you wish to testify before City Council on:
CONDUCT A PUBLIC HEARING OF CITY
COUNCIL/LOCAL CONTRACT REVIEW
BOARD TO AMEND THE TIGARD
MUNICIPAL CODE TO REFLECT
CHANGES IN PUBLIC CONTRACTING
RULES AND DECLARE AN EMERGENCY
Due to Time Constraints
City Council May Impose
A Time Limit on Testimony
iAadmtgreer\city sound =ignuptph ordinance.doc
AGENDA ITEM No. 8 Date: February 22, 2005
PLEASE PRINT
Proponent - (Speaking In Favor Opponent - (Speaking Against) Neutral
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
AGENDA ITEM # O
FOR AGENDA OF February 22, 2005
CITY OF TIGARD, OREGON
LOCAL CONTRACT REVIEW BOARD (LCRB) AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE Conduct a Public Hearing of City Council/LCRB to Amend the TMC to Reflect
Changes in the Public Contracting Rules and Declare an Emer enc .
PREPARED BY: Joe Barrett DEPT HEAD OK: CITY MGR OK: CR
ISSUE BEFORE THE LOCAL CONTRACT REVIEW BOARD
Shall the Tigard Local Contract Review Board approve an ordinance providing for the transition to new Public
Contracting Rules, revise certain provisions in the Tigard Municipal Code relating to contracting authority,
authorize the adoption of revised Public Contracting Rules by resolution, and declare a state of emergency to ensure
any revised Public Contracting Rules will be in effect in the appropriate time frame.
STAFF RECOMMENDATION
Approve the ordinance that will provide for the transition to a new set of Public Contracting Rules required by state
law, will authorize the adoption of new Rules by resolution, and will revise certain provisions to the Tigard
Municipal Code relating to the contracting authority. The ordinance also declares a state of emergency allowing
the new Public Contracting Rules to go into immediate effect thus allowing the City to meet the time frame for new
Public Contracting Rules required under Oregon Revised Statute (ORS) 279. An accompanying agenda item will
adopt new Public Contracting Rules by resolution.
INFORMATION SUMMARY
The City of Tigard's current Public Contracting Rules (Rules) were readopted on November 23, 1999 through
Ordinance 99-30. Since 1999, there have been amendments to the Rules via Ordinances Nos. 01-02 and 02-21.
Due to a rewrite of ORS 279, these Rules will no longer be valid as of March 1, 2005.
Due to the rewrite of ORS 279, all governmental agencies in the State of Oregon that do not adopt new Public
Contracting Rules before March 1, 2005 will fall under the Attorney General's Model Public Contracting Rules.
This ordinance will provide for an orderly transition from existing rules to the new rules, freeing the City to
approve rules that will be valid on March 1, 2005.
Along these same lines, staff is asking for the Tigard Municipal Code (TMC) to be revised to reflect changes that
will be in place on March 1, 2005. In TMC Section 2.46, it is twice referenced that contracts/projects exceeding
$25,000 require LCRB approval. Under the proposed rules that staff will present to the City Council on February
22, 2005, the exemption from a formal competitive bidding or proposal process will be raised to $50,000 for
general goods and services and $75,000 for most public improvement projects. If required to follow the Attorney
General's Model Rules, these limits would be raised to $150,000 for general goods and services and $100,000 for
most public improvement projects. In response to this, staff is recommending that the dollar authority for staff to
obligate the City be raised to match the exemption amounts. The ordinance provides for the following changes to
TMC Section 2.46:
2.46.110 - Delegation Of Authority To Obligate The City
(c) The public contract, personal services contract or any other type of contract let by the City does
not exceed $25;090 $50,000 for contracts other than public improvement contracts and $75,000
for public improvement contracts.
2.46.140 - Limitation To Expenditures
(b) The expenditure shall not be a component of a project with a total cost in excess of $25,000 $50,000
for public improvement contracts and $75,000 for public improvement contracts, except in the case
of a project which involves a personal services contract and a public contract. If a project involves a
personal service contract and a public contract, the two contracts shall be considered separate
projects.
These changes will provide the flexibility and simplicity of having the dollar level requiring LCRB approval
directly correlate to the LCRB approved formal Public Contracting Rules threshold. As the March 1, 2005
effective date required under ORS 279 is quickly approaching, staff also asks that the LCRB declare a state of
emergency regarding this action thus allowing the changes to go into effect on March 1, 2005.
OTHER ALTERNATIVES CONSIDERED
Do not approve the ordinance repealing the City's current Public Contracting Rules which will expire on March
1, 2005, as stated under ORS 279 and direct the City to follow the Attorney General's Model Public Contracting
Rules beginning March 1, 2005.
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
N/A
ATTACHMENT LIST
1. Ordinance repealing Ordinance No. 99-30, as amended, revising certain provisions in the Tigard Municipal
Code related to the Local Contract Review Board, and declaring an emergency.
FISCAL NOTES
N/A
2.22'05
MEMORANDUM
CITY OF TIGARD, OREGON A4 k.
TO: Honorable Mayor & City Council
FROM: Cathy Wheatley, City Recorder (titK
DATE: February 18, 2005
SUBJECT: Local Contract Review Board (LCRB) - Legal Requirements
Attached is some information I retrieved from the Finance Department regarding the legal
requirements relating to the LCRB hearings on Tuesday, February 22.
Councilor Harding requested additional information on ORS 279 for review prior to the
hearing.
Attachments
istadmtcatbylcoundacorresponaenceVnemo - Icrb - legal rep - Rearing 2-22-05.eoc
THE NEW LOOK IN PUBLIC
• CONTRACTING
SAT., NOV. 6, 2004
Transitioning to the New Public Contracting Code
(And DOJ Model Public Contract Rules)
TABLE OF CONTENTS
1. INTRODUCTION TO THE PUBLIC CONTRACTING CODE
A. History and Timing 1
B. Rule Making Requirements 2
C. Model Public Contract Rules 2
D. Contracting Agency Choices 2
E. Organization of Model Rules 3
F. Public Contracts Manual 4
II. ORS Ch 279A and DIVISION 46 OF THE MODEL RULES
A. Overview 4
B. Definitions 5
C. Personal Services 5
D. Application of the Code and Model Rules 6
E. Affirmative Action Programs 6
F. Contract Preferences 7
G. Cooperative Purchasing 8
Ill. ORS Ch 2798 and DIVISION 47 OF THE MODEL RULES
A. Introduction 10
B. Methods of Source Selection 10
C. Public Records Law 13
D. Electronic Procurement 14
E. Qualified Products List 14
G. Legal Remedies 15
H. Contract Amendments 15
IV. ORS Ch 279C and DIVISION 48 OF THE MODEL RULES
A. Overview 15
B. Division 48 Definitions 19
C. List of Interested Consultants; Performance Record 19
D. Applicable Selection Procedures; Pricing Information 19
E. Selection Procedures 20
F. Prohibited Payment Methodology; Purchase Restrictions 20
G. Contract Amendments 20
V. ORS Ch 279C and DIVISION 49 OF THE MODEL RULES
A. Background; Limited Statutory and Rule Changes 21
B. Bidding Exceptions and Exemptions 22
C. Performance and Payment Bonds 22
D.' Competitive Proposals 22
E. Competitive Quotes 23
F. Construction Contracts that are not Public Improvements 23
G. Definition of a "Public Improvement" 24
H. Electronic Procurement 24
1. Changes to the Work and Contract Amendments 24
VI. CODE AMENDMENTS PLANNED FOR THE 2005 SESSION 24
NEW LOOK IN PUBLIC CONTRACTING
SAT., NOV. 6, 2004
Transitioning to the New Public Contracting Code
(And DOJ Model Public Contract Rules)
Prepared by the Business Transactions Section
Oregon Department of Justice
1. INTRODUCTION TO THE PUBLIC CONTRACTING CODE
A. History and Timing
The current Public Contracts and Purchasing Laws in ORS Chapter 279 are nearly
30 years old and they predominately reflect the strict structure of public improvement
contracting for which they were written. They are therefore less adaptable to modern and
innovative contracting practices that would be more useful in the age of information
technology, telecommunications and public-private "partnerships." The current laws
have also been amended in a patchwork fashion over several decades, contain many
internal inconsistencies and are difficult to work with (even for the experienced
practitioner). .
In response to House Resolution 1 (2001), representatives of local governments,
schools, state agencies, contractors, unions, and trade organizations worked in the 2002
interim on a comprehensive rewrite of Oregon's public contracting laws. That was the
third consecutive attempt and the third time was the charm.
Reflecting practices suggested by the ABA Model Procurement Code, as well as
input in 2002 from scores of special work groups, affected interest groups and hundreds
of individual participants, the new Public Contracting Code (comprised of ORS Chapters
279A, 279B and 279C, and referenced here as the "Code") becomes operative on March
1, 2005. The new Code, enacted as House Bill 2341 in the 2003 Regular Session, will
apply to public contracts first advertised, or if not advertised then entered into, on or after
March 1, 2005. (Oregon Laws 2003, chapter 794, section 336).
B. Rule Making Requirements
A great deal of state and local government rule making activity has already taken
place in order to implement the new Code. In fact, the underlying legislation requires it.
1
Pursuant to Oregon Laws 2003, chapter794, section 334, all of the state and local
government rules and exemptions adopted under the public contracting statutes to be
repealed in current ORS Ch 279 are themselves repealed as of the March 1, 2005
effective date of the new Code, although that will not invalidate or terminate any existing
public contract. Accordingly, public contracting agencies that have not already begun
considering the effect of the new Code on their contracting rules and exemptions should
get started on that effort without delay.
C. Model Public Contract Rules
Most state and local public contracting agencies will be subject to the Attorney
General's Model Public Contract Rules. (comprised of OAR Chapter 137, Divisions 46,
47, 48 and 49, and referenced here as the "Model Rules") that implement the new Code,
and the Model Rules themselves will apply to public contracts first advertised; or if not
advertised, then entered into, on or after March 1, 2005. However, agencies have an
election to make about the Model Rules, including whether to opt out in whole or in part, :
as described below. Recognizing that those agencies would need to have an early look at
the Model Rules in order to make that determination in.time for their own rulemaking
schedules, the Code set an early date for promulgation of the Model Rules - six months
in advance of the Code's effective date. Oregon Laws. 2003, chapter 794, section 335(2)
requires that the Attorney General adopt Model Rules implementing the new Code by
September. 1, 2004, with an effective date six months later on March 1, 2005. That
requirement was fulfilled (and DOJ gratefully acknowledges the assistance of its formal.
Rules-Advisory Committees, as well as input received in consultation with state and local
government.representatives and affected industry groups, in meeting that deadline).
D. Contracting Agency Choices
Under ORS 279A.065 (parallel to current ORS 279.049) public contracting
agencies in Oregon that are not exempt from the Code will be operating under the DOJ
Model Rules by default on March 1, 2005 unless they have taken special action under. .
that statute to opt out and to adopt their own contracting rules (which may include
portions of the Model Rules by reference). The Department of Administrative Services,
State. Procurement Office (DAS-SPO), is also developing a DAS-SPO set of contracting
rules for state agencies under its procurement authority. Information on the Model Rules
2
as adopted and filed on September 1, 2004, as well as on DAS-SPO rules, is available on
line (for Model Rules click on "DOJ Model Public Contract Rules") at
http://www.oregon.gov/DAS/PFSS/SPO/0rs279-menu.shtrnl
DAS-SPO is the state's central procurement authority, and state agencies without
independent contracting authority either have DAS-SPO make their procurements for
them, or operate under DAS-SPO rules when proceeding under delegated authority from
that agency. Although DAS-SPO has traditionally adopted most of the Model Rules by
reference, that agency now plans to adopt its own parallel rules in 2005 that will closely
track the Model Rules (with specific changes noted in the DAS=SPO rules commentary).
E. Organization of Model Rules
Consistent with the organization of the new Code; the Model Rules described in
detail below are organized into corresponding divisions under OAR Chapter 137, with
the historical exception of maintaining design consultant rules (for Architects, Engineers
and Related Services) in a division separate from the construction rules, so that four
divisions of Model Rules were promulgated rather than three, with each division of rules
corresponding to one of the three chapters of the Code.
1. OAR Chapter 137, Division 46 (based on ORS Ch 279A). These base
provisions contain overarching rules that affect all public contracting activities, including
definitions, policies, affirmative action, contract preferences and cooperative
procurement.
2. OAR Chapter 137, Division 47 (based on ORS Ch 279B). These new
provisions address public procurements for goods and services, including source
selection, types of procurements, the procurement process, specifications and legal
remedies.
3. OAR Chapter 137, Division 48 (based on ORS Ch 279C). This
reorganized set of laws regulates the consultant selection process, including public
contracts for architectural, engineering, land surveying and related personal services.
4. OAR Chapter 137, Division 49 (also based on ORS Ch 279C). Parallel
to the current statutes and rules, these reorganized provisions address public
improvements and other public construction contracts, including procurement rules,
alternative contracting methods and construction contract provisions.
3
t
DAS-SPO rules will have a similar numbering system within OAR Chapter 125,.
with Division 246 (General. Provisions), Division 2.47 (Procurements of Supply and
Services), Division 248 (Consultant Selection) and Division 249 (Construction Services),
reflecting the same topics as the Model Rules in DOJ's corresponding OAR Chapter 137,
Divisions 46, 47, 48 and 49.
F. Public Contracts Manual
The Attorney General's Public Contracts Manual, including all four divisions of
Model Rules with official DOJ commentary, references to public contracting statutes,
constitutional provisions, selected case law summaries and references to related Oregon
Administrative Rules from other state agencies, should be available for sale to the public
in October of 2004. Call 503.378.2992 to order copies.
II. ORS Ch 279A and DIVISION 46 OF THE MODEL RULES
A. Overview
ORS Chapter 279A is applicable to all three chapters of the Code, and Division
46 of the Model Rules is applicable to all four divisions of the Model Rules. Chapter
279A describes the public contracts to which the Code is applicable (and those to which
it is not), and addresses several administrative matters, such as establishing local contract
review boards, application of the Attorney General's Model Public Contract Rules, and
individual contracting agency rulemaking authority with respect to matters of public
contracting.
Chapter 279A also establishes some substantive legal requirements applicable to .
all public contracting. In addition to the matters discussed below, ORS Chapter 279A.
gives contracting agencies the authority to purchase under certain federal programs
without engaging in competitive processes otherwise required by the Code, and provides
authority for local contracting agency disposal of personal property and transfer of fire
protection equipment among regularly organized fire departments without. engaging in
competition otherwise required by the Code. The Model Rules do not address those
issues.
Finally, ORS Chapter 279A also includes several sections specific to state
contracting agencies and their contracting activities. ORS 279A.050 and ORS 279A.140
4
together provide the framework for the allocation of contracting authority among state
agencies and establish certain public contracting procedures for state agencies. In
addition., ORS 279A.250 through ORS 279A.290 provide procedures for the disposal of
surplus property of state agencies. Neither the Model Rules, nor this Chapter, address
those provisions of ORS Chapter 279A.
B. Definitions
ORS 279A.010 contains the definitions of certain terms when they are used in the
Code. Other terms are defined in context. OAR 137-046-0110 establishes the definitional
framework for the Model Rules, and defines certain terms that are not defined in the
Code. Generally, unless the context of a specifically applicable definition in the Code
requires otherwise, terms defined in the Code have the same meaning as set forth in the
Code when they are used in the Model Rules.
C. Personal Services
The Code preserves local contracting agencies' authority both to designate
particular contracts or classes of contracts as contracts for personal services,' and to
establish separate procedures for screening and selecting persons to perform personal
services.2 Local contracting agencies may, but are not required to, use the source
selection methods set forth in ORS Chapter 279B to award contracts for personal
services. To do so, they must adopt rules as further discussed below. State contracting
agencies must use those source selection methods set forth in ORS Chapter 279B to
award contracts for personal services.3 The personal services of contractors who perform
architectural, engineering and land surveying services and related services are treated
differently from other personal services. See Section IV of this Chapter for a detailed
description of that treatment.
D. Application of the Code and the Model Rules
Generally, the Code applies to all public contracting.4 However, the Code does
not apply to the classes of contracts set forth in ORS 279A.025(2), nor does it apply to
the public contracting of the agencies or boards identified in ORS 279A.025(3). Other
'ORS 279A.055(2).
2 ORS 279A.070.
a ORS 279B.050(4).
a ORS 279A.025.
5
provisions of law may exempt certain contracts. or the contracting activities of certain
public bodies from the Code's application .5 Finally, contracting agencies may enter.into
contracts made with qualified nonprofit agencies providing employment opportunities for
disabled individuals without following the screening and selection procedures set forth in,
ORS Chapter 279B, and may enter into contracts or price agreements for some types of
goods and services based on a cooperative procurement conducted as set forth in ORS
279A.200 through 279A.225 as an alternative to following screening and selection
procedures set forth elsewhere in the Code.
ORS 279A.065(1) directs the Attorney General to prepare and maintain model
rules of procedure for public contracting. Unless a contracting agency subject to the Code
adopts its own rules of procedure for public contracting that specifically state that the
Attorney General's Model Rules do not apply to. the contracting agency, the contracting
agency is subject to the Attorney General's Model Rules. However, contracting agencies
that are not subject to DAS authority must adopt rules for personal services contracts
(although the Model Rules may be adopted by reference for that purpose). Contracting
agencies have specific rulemaking authority to address matters other than rules of
procedure, regardless of whether the contracting agency accepts the Model Rules or
adopts its own rules of procedure.7
E. Affirmative Action Programs
A contracting agency may limit competition on .contracts with an estimated cost
of $50,000 or less in order to pursue affirmative action programs established by. the
contracting agency.8 In addition, a contracting agency may require its contractors to
subcontract with business enterprises certified as disadvantaged, minority, women or
emerging small business enterprises under ORS 200.055, or require its contractors to
subcontract with such certified business enterprises that are located or draw their
workforce from areas classified as economically distressed by the Oregon Economic and
Community Development Department.9 In accordance with the procedures set forth in
OAR 137-046-0210(4), a contracting agency may disqualify persons from consideration
5 See, respectively, ORS 279A.025(2)(s) and ORS 279A.025(3)0).
6 ORS 279A.065(4) and (5).
7 ORS 279A.070.
S ORS 279A.100(3).
6
for award of the contracting agency's contracts for fraud- and prohibited conduct related
to obtaining certification as a disadvantaged, minority, women or emerging small
business enterprise, or subcontracting with such certified enterprises.10
F. Contract Preferences
The Code retains existing contract award preferences for goods and services
manufactured and produced in Oregon and for the procurement of goods manufactured
from recycled materials. The Code requires contracting agencies to give preference to
goods or services that have been manufactured or produced in Oregon "if price, fitness,
availability and quality are otherwise equal."" OAR 137-046-0300(2) provides standards
to apply to determine when such equality exists. ORS 279A.125 requires contracting
agencies to select goods certified to be made from recycled materials if certain conditions
exist'2 The Model Rules defer to standards established by the contracting agency to
determine if particular goods are manufactured from recycled materials.
The Code maintains the current reciprocal preference of ORS 279.029(2),
whereby bids of non-resident bidders (but not proposers) are assessed a percentage
increase equal to the percentage of the preference that would be given to the bidder in the
state in which the bidder resides. The Code requires the Oregon Department of
Administrative Services to publish a list of states that give such a preference, and the
amount of the preference. 13 Contracting agencies may rely on that list when applying the
reciprocal preference without incurring any liability. 14
G. Cooperative Purchasing
ORS 279A.200 through ORS 279A.225 provide contracting agencies with the
specific authority to engage in "cooperative purchasing," whereby contracting agencies
may conduct certain public contracting activities on behalf of other contracting agencies,
participate in contracting activities conducted by other contracting agencies, or rely on
9 ORS 279A.105(1) and (2).
10 See OAR 137-046-0210(4); implementing ORS 200.065 and 200.075.
" ORS 279A. 120(2)(a)'
12 The four conditions are (i) the recycled product is available; (ii) the recycled product meets applicable
standards; (iii) the recycled product can be substituted for a comparable nonrecycled product; and (iv) the
recycled product's costs do not exceed the costs of nonrecycled.products by more than five percent, or a
higher percentage if a written determination is made by the contracting agency. ORS 279A.125(2).
13 ORS 279A.120(4).
14 Id.
7
their membership in a cooperative procurement group (e.g., the Oregon Cooperative
Purchasing Program (ORCPP) operated by the Oregon Department of Administrative
Services) as the basis for the selection of contractors to provide certain goods or services..
A contracting agency may enter into a contract or price agreement.arising out of a
cooperative procurement as an alternative to engaging in screening and selection methods
set forth in ORS Chapter 279B or 279C. The Code describes three types of cooperative
procurements, and establishes the conditions under which a contracting agency may
participate in or administer each. Those conditions include conditions related to the
substantive nature of the screening and selection process, various notice and comment.
processes that a contracting agency must provide when it chooses to participate in certain
cooperative procurements, and the procedures governing protests of the procurement,. _
process, the solicitation document, or the award or proposed award of a contract arising
out of a cooperative procurement. The types of cooperative procurements, and the general
substantive and procedural requirements are described below.
1. Joint Cooperative Procurements. Joint cooperative procurements are
cooperative procurements in which the contracting agencies or the cooperative
procurement group are identified in the applicable solicitation document. A joint
cooperative procurement may not be a permissive cooperative procurement. The Model
Rules provide that a contracting agency may use a joint cooperative procurement to
establish contracts or price agreements for goods, services (including personal services)
and contracts for public improvements. A. contracting agency may enter into a contract or
price agreement arising out of a joint cooperative procurement if the solicitation and
award process is an open and impartial competitive, process that uses source selection
methods substantially equivalent to those set forth in ORS 279B.055 (competitive sealed
bids), 279B.060 (competitive sealed proposals), or 279B.085 (special procurement), or
substantially equivalent to the competitive bidding process in ORS Chapter 279C. The
Code does not establish any separate notiice requirements, but does require that the
solicitation and the original contract or price agreement identify each participating.
contracting agency or cooperative procw.*ement group.
2. Permissive Cooperative Procurements. Permissive cooperative
procurements are cooperative procurements in which the contracting agencies are not
8
identified in the:applicable solicitation document. The Model Rules provide that a
contracting agency may use a permissive cooperative procurement to establish contracts
for goods and services (including personal services). A contracting agency may enter into
a contract or price agreement arising out of a permissive cooperative procurement if the
solicitation and award process is an open and impartial competitive process that uses
source selection methods substantially equivalent to those set forth in ORS 279B.055.
(competitive sealed-bids) or 279B.060 (competitive sealed proposals). If a contracting.
agency estimates that it will spend in excess of $250,000 on the goods or services
acquired under a contract or price agreement arising out of a cooperative procurement,
then it must advertise its intent to do so, provide vendors the opportunity to submit
comments, and respond to any comments it receives. 15
3. Interstate Cooperative Procurements. Interstate Cooperative
Procurements are permissive cooperative procurements in which one or more of the
participating agencies are located outside the state of Oregon. The Model Rules provide.
that a contracting agency may use an interstate cooperative procurement to establish
contracts for goods and services (including personal services). A contracting agency may
enter into a contract or price agreement arising out of an interstate cooperative
procurement if the solicitation and award process is an open and impartial competitive
process that uses source selection methods substantially equivalent to those set forth in
ORS 279B.055 (competitive sealed bids) or 27913.060 (competitive sealed proposals): A
contracting agency, or a cooperative procurement group of which it is a member, must
advertise its intent to enter into a contract arising out of the interstate cooperative
procurement, provide vendors the opportunity to submit comments, and respond to any
comments it receives. "6
The Model Rules permit a contracting agency that administers a cooperative
procurement to establish the conditions under which other contracting agencies may
participate in cooperative procurements administered by the administering contracting
agency. In addition, the Model Rules permit, but do not require, the administering
contracting agency to include provisions in solicitation documents, contracts or price
Is ORS 279A.215(2) and (3).
16 ORS 279A.220(2) and (3).
9
agreements to assist other contracting agencies in fulfilling their obligations under the
Code and the Model Rules.;'
Finally, ORS 279A.225 provides the means for protests of solicitation documents`
and contract award decisions related to cooperative procurements and protests and
judicial review of a contracting agency's authority to enter into a contract arising out of a
cooperative procurement. That same statute also makes clear that contract disputes
between a participant in a cooperative procurement and a contractor shall be resolved.
only between those two parties.
III. ORS Ch 279B and DIVISION 47 OF THE MODEL RULES
A. Introduction
Division 47 of the Model Rules implements ORS Chapter 279B and governs the
procurement of goods and services. As discussed in Section II, state contracting agencies
must also procure personal services, except architectural, engineering, land surveying and
related personal services, pursuant to Division 47. Personal services contracts of local
contracting agencies-are not subject to Division 47 unless the local contracting agency
adopts Division 47 as the procedures it will use to procure personal services.
B. Methods of Source Selection
Although ITBs and RFPs remain the primary methods of source selection, the
Code and Model Rules provide for alternative contracting methods and greater
procurement flexibility than under current law.
1. Competitive Sealed Bidding. The Code preserves most of the current
requirements for ITBs, but explicitly recognizes some new procedures including: express
authorization to make multiple awards; the ability to provide public notice electronically
when authorized by the director of the Department of Administrative Services (DAS) or
the local contract review board; the ability to evaluate bids based on criteria other than
cost; and the ability to conduct multistep sealed bids, as discussed in greater detail below.
2. Competitive Sealed Proposals. ORS 27913.060 and Division 47 contain
methods of contractor selection for RFPs new to Oregon. The contracting agency may
evaluate proposals based on the following methods under ORS 279B.060(6)(b): award
" OAR 137-046-0410.
10
based solely on ranking of proposals, discussions leading to best and final offers, serial
negotiations, competitive simultaneous negotiations, multi-tiered competition to identify
a competitive range, multistep RFPs, and any combination of methods authorized by the
Code and Model Rules.
Division 47 contains both general procedures applicable to all RFPs that use a .
multi-tiered or multistep process and specific procedures applicable to specific selection
processes. OAR 137-047-0261 sets forth general procedures applicable to the various
competitive processes, while OAR 137-047-0262 describes the procedures for the
establishment of a competitive range and for conducting discussions and negotiations.
OAR 137-047-0263 sets forth the procedures for conducting multistep sealed proposals.
A contracting agency may now also issue an addendum to the RFP after RFP
closing that modifies the criteria, rating process and procedure for any tier of competition
before the start of the tier to which the addendum applies under ORS 279B.060(6)(d).
When the contracting agency uses a multi-tiered or multistep competitive process, the
contracting agency. may, but is not required to, provide an exclusion protest allowing
bidders or proposers to protest exclusion from subsequent tiers or steps of competition
during the solicitation process. If the contracting agency does not provide this exclusion
protest during the solicitation process, then the contracting agency must allow bidders or
proposers to protest exclusion from a step of competition as part of the contracting
agency's contract award protest. See OAR 137-047-0261(6).
3. Multistep Sealed Bids and. Proposals. Multistep ITBs and RFPs allow
the contracting agency to initially request unpriced bids or proposals and later issue an
ITB or RFP to eligible bidders or qualified proposers, as determined by the contracting
agency, for price submittals. If time is a factor, the contracting agency may require
bidders or proposers to submit separate price bids or proposals to be opened after the
technical evaluation. Under OAR 137-047-0257 for multistep sealed bids and OAR 137-
047-0263 for multistep sealed proposals, the contracting agency must give public notice
for the first phase, but not for subsequent phases. The contracting agency must also
provide bidders and proposers the opportunity to protest the solicitation, any addenda
issued, and the award of the contract. The contracting agency may also provide an
exclusion protest allowing bidders or proposers to protest exclusion from a subsequent
11
step of competition during the solicitation process as discussed above under Competitive
Sealed Proposals. See OAR 137-047-0257(4)(e) and OAR 137-047-0261(6).
4: Small Procurements. The Code and the Model Rules provide a process
for the procurement of goods or services costing less than or equal to $5,000 under ORS
279B.065 and OAR 137-047-0265. Contracting agencies must adopt their own rules of
procedure to govern small procurements pursuant to ORS 279A.070. A contracting
agency may amend a contract awarded as a small procurement pursuant to OAR 137-
047-0800 (as discussed in greater detail below), but the cumulative amendments may. not
increase the total contract price to greater than $6,000.
5. Intermediate Procurements. The Code and Model Rules provide a
process for the procurement of goods or services costing more than $5,000 and less than
or equal to $150,000 under ORS 279B.070 and OAR 137-047-0270. For intermediate
procurements equal to or exceeding $75,000, the contracting agency must use a written
solicitation to obtain quotes, bids, or proposals. A contracting agency may negotiate with
an offeror to clarify the quote, bid, or proposal, or to make the quote, bid, or proposal
more advantageous to the contracting agency. A contracting agency may amend a
contract awarded as an intermediate procaarement pursuant to OAR 137-047-0800, but the
cumulative amendments may not increase: the contract price to greater than 25% of the
original contract price.
6. Sole-source Procurements. Awarding a contract without competition to
a designated sole-source requires a written determination by the director of DAS or the
local contract review board. The determination must be based on findings set forth in
ORS 279B.075(2). As set forth in OAR 137-047-0275, the contracting agency must give
public notice of the sole-source procurement in. instances in which the. contracting agency
would be required to select a contractor based on competitive sealed bids or proposals,
but for the contracting agency's deternibmtion that the goods or services are available
only from one source.
7. Emergency Procurements. A contracting agency may award a contract
without competition if an emergency exists as defined, in ORS 279A.010. The head of the
contracting agency or designee must authorize the emergency procurement, and the
12
contracting agency must document the nature of the emergency and the method of
contractor selection.
8. Special Procurements. Special Procurements serve a purpose similar to
the formal exemption process under current ORS 279.015(2): Like the current exemption
process, the purpose of special procurements is to allow the contracting agency to use.an
alternative procurement process. There are two types of special procurements under ORS
27913.085:
(1) class special procurements for the purpose of entering into a series of contracts over
time for a specified class of goods and services; and (2)' contract-specific special
procurements for the purpose of entering into a single contract or a number of related
contracts on a one-time basis. The- contracting agency must obtain the approval of the
director of DAS or the local contract review board, as applicable, to use a,special
procurement. The director or local contract review board must make the findings set forth
in ORS 279B.085(3) to approve the special procurement. The contracting agency must
also give public notice both of its request for approval of a special procurement and of the
approval of the special procurement in accordance with the timelines set forth in OAR
137-047-0285.
C. Public Records Law
Under ORS 279B.060(5), a contracting agency may now withhold from disclosure
the contents of proposals until after the notice of intent to award. After the contracting
agency issues a notice of intent to award, the contracting agency may withhold from
disclosure trade secrets, as defined in ORS 192.501, contained in a bid and materials
exempt or conditionally exempt from disclosure under the public records law contained
in a proposal.
D. Electronic Procurement
1. Generally. OAR 137-047-0330 allows contracting agencies to conduct
all phases of a procurement by electronic methods, including posting of advertisements
and receipt of offers, to the extent the contracting agency specifies in the solicitation
document or other written instructions. The contracting agency must open electronic
offers in accordance with electronic security measures in effect at the time of offer
receipt.
13
J
2. Reverse Auctions. The electronic procurement rules also expressly .
authorize the use of "reverse auctions." This is a process that allows offerors to submit
electronic offers during a specified period of time during which the contracting agency
may reveal, updated on a real-time basis, the most current lowest .offer price or the
highest ranking offer. Until the deadline established by the contracting agency. for
submitting offers, offerors may revise their electronic offers, except that an offeror may
not increase its price or offer a lower price: unless that price is below the then lowest
electronic offer.
E. Qualified Products List/Debarment
1. Qualified Products List. Under ORS 279B.115, a contracting agency
may develop and maintain a qualified products list in instances in which the testing or:
examination of goods before initiating a procurement is necessaryor desirable to best
satisfy the requirements of the contracting; agency. The contracting agency must give
public notice of the opportunity for potential contractors to submit goods for inclusion on
the list. The inclusion of goods on a qualified products list does not constitute a
prequalification under ORS 279B.120 and 279B.125.
2. Debarment. A contracting agency's ability to debar prospective bidders
and proposers under ORS 279B.130 parallels the concept of conduct disqualification
under current ORS 279.037(2). A contracting agency may allow a debarred person to
participate in solicitations and contracts on a limited basis during the debarment, period as
set forth in OAR 137-047-0575.
F. Price Agreements
The Code explicitly recognizes the price agreement, which is defined in ORS
279A.010(1)(t) as a contract for the procurement of goods or services at a set price with
no minimum or maximum purchase amount or with an initial order combined with a
continuing contractor obligation to provide goods or services in which the contracting
agency does not guarantee a minimum or. maximum additional purchase. A price
agreement constitutes a firm offer by the contractor as set forth in ORS 279B.140.
G. Legal Remedies
ORS 27913.400 through 27913.425 provide detailed administrative and judicial
remedies for violations of ORS Chapter 279B. The protestor must exhaust all
14
administrative remedies before seeking judicial review. The court must give deference to
the contracting agency's determination of facts, but the court reviews questions of law de
novo. Most provisions require judicial review in circuit court with some exceptions.
Some provisions also provide different judicial review processes for state contracting
agencies-and local contracting agencies. Division 47 sets forth the specific protest
procedures for the following categories: special procurements, sole-source procurements,
multi-tiered and multistep solicitations, solicitations generally, contract award, qualified
product list decisions,, and prequalification and debarment decisions. The Code also
contains a catch-all provision in ORS 279B.420 for judicial review of other violations for
which no judicial remedy is otherwise provided in the Code.
H. Contract Amendments
For the first time, the Model Rules address contract amendments. Under OAR
137-047-0800, a contracting agency may amenda contract to: (1) add additional goods or
services within the scope of the solicitation document, contract, or approval of a special
procurement; or (2) renegotiate terms and conditions if it is advantageous to the
contracting agency, subject to several limitations set forth in OAR 137-047-0800(2). This
rule also addresses the permissible scope of amendments to contracts awarded as small
and intermediate procurements, emergency contracts, and price agreements.
IV. ORS Ch 279C and DIVISION 48 OF THE MODEL RULES
A. Overview
In approaching ORS Chapter 279C regarding "Public Contracting - Public
Improvements and Related Contracts", it is important to keep the following concept in
mind: there are.no fundamental changes in the public contracting requirements when a
state or local government entity procures design services, construction services and other
construction-related services. However, Chapter 279C does represent a significant
refinement, clarification and reorganization of the statutory provisions which control state
and local government procurement of services in the design and construction field.
Therefore; while practitioners cannot look forward to learning a completely new system
in these areas, they must nevertheless keep a sharp pencil handy when navigating the
twists and turns of Chapter 279C and Divisions 48 and 49 of the Model Rules.
15
Currently, ORS Chapter 279 addresses construction design services with specific
provisions pertaining to the services of "registered professional engineers, registered
architects and registered professional land surveyors." 18 As for other construction-related
personal services (such as project. management services, commissioning services, special
inspections & testing services; etc.), the provisions of Chapter 279 take a more general
approach, regulating procurement of these services as "contracts for personal services."19
Under these provisions, state and local agencies have broad discretion to establish
screening and selection procedures for these types of services, and to designate particular
contracts or classes of contracts. as "personal services contracts."20
New ORS Chapter 279C rounds up the scattered provisions pertaining to
construction design services, and calls out: other construction-related services from the
broader category of ".`personal services" by defining those services as "Related Services"
and by requiring screening and selection procedures for Related Services .21 For
architectural, engineering and land surveying services, the "qualifications based
selection" process (also known as "QBS and discussed in more detail below) remains
the standard procurement method governing procurements by state agencies and certain
local agencies that fall within the guidelines of ORS 279C.110(2) (those same guidelines
are currently set forth in ORS 279.057(9)). 22 For Related Services, both state and local
agencies retain broad discretion in establishing screening and selection procedures for
these types of services. 23
The principal A&E procurement ;statute, that is currently located at ORS 279.057
and located at ORS 279C.110 of the Code, has not been substantively modified. It was
IS ORS 279.057(1)
19 ORS 279.051(1)
20 ORS 279.051(1) & (2)
21 See generally ORS 279C.100 through 279C.125. See also ORS 279C.100(6) and 279C.120 regarding
'.related services."
22 The local agency receives moneys from the State Highway Fund under ORS 366.762 or 366.800 or a
grant or loan from the state that will be used to pay for any portion of the design and construction of the
project; the total amount of any grants, loans or moneys from the State Highway Fund and from the state
for the project exceeds 35 percent of the value of the project; and the value of the project exceeds $400,000.
Note, however, that such local agencies will not be required.to use a QBS process on and after July 1, 2008,
pursuant to the sunset provisions of ORS 279.057, that are retained in ORS 279C.110.
23 See ORS 279C.120. The permitted procedure;3 can be unique procedures established by the agency under
ORS 279C.105, the QBS method required under ORS 279C.110, or a variety of methods listed in
subsection (1)(c) of ORS 279C.120.
16
reorganized to allow practitioners to more easily read the provisions of the statute, and
more quickly determine if a particular agency is required to use a QBS process in
procuring consultant services. Local agencies remain generally exempt from the QBS
requirements of the statute (except in the situation described in. footnote 22). For state
agencies procuring Architectural, Engineering, or Land Surveying Services, a QBS
process meeting the requirements of the statute is still required (unless the state agency is
exempt from the requirements of the Code).
Now, some of you may be asking: "What is this QBS process, that sounds so
exotic and mysterious?" Simply said, the QBS process is one where the agency initially
selects a design consultant to perform architectural, engineering or land surveying
services on the basis of qualifications alone, and is prohibited from considering the price
that the consultant will charge for the design services (directly or indirectly). The agency
is only permitted to inquire about the consultant's. price for performing the services once
negotiations with the highest ranked firm have begun. 24 The QBS process does not
apply to Related Services, unless the agency adopts a QBS process for the procurement
of those types of services.
The QBS process itself originates with the federal Brooks Act, which was
originally enacted in October 1972.25 Oregon first took the QBS plunge in 1997, and
then temporarily extended the scope of the QBS. procurement.method in 2001. Initially,
the Oregon QBS requirements applied only to state agencies that operated under the
Chapter 279 umbrella. In 2001, the QBS process was extended to cover certain local
agencies meeting the funding requirements mentioned above, and to address certain other
specialized issues 26 The application of the QBS process to these particular local
agencies automatically ends, however, on July 1, 2008.
The Division 48 Model Rules update the current Division 35 Model Rules (which
are limited to architectural, engineering and land surveying services under the specific
24 See ORS 279.057(2) and ORS 279C.110(1).
' 40 USC 1101-1104.
26 See footnote 22 above. See also ORS 279.057(4) and (5), ORS 279.047 and ORS 279.058 for the
provisions dealing with these "specialized issues", if you are REALLY interested in the 2001 adjustments
to ORS 279.057 and design services procurements in general.
17
direction of ORS 279.049(2))27, in order to meet the requirements of ORS 279C.100.
through 125 and ORS 279A.065. The principal revisions to the Division 35 A&E Rules
that are reflected in the Division 48 Rules include the following:
• Establishing screening and selection procedures for Related Services28..
• Increasing the "small procurement' 'Estimated Fee limit for direct appointments
from $10,000 to $25,00029
• Increasing the Estimated Fee limit for state agency "continuation" direct
appointments from $75,000 to $150,00030
• Increasing the Estimated Fee limit for informal selections from $75,000 to
$150,000"
• Clarifying the provisions dealing with prohibited compensation methods, and
restrictions on providing design services and then later selling building materials,
supplies or equipment to an agency32
• Adding provisions addressing the situation where a project has been delayed of
altered and a consultant contract for that project has expired or been terminated 33
• Adding provisions addressing permitted amendments to a consultant contract 34
B. Division 48 Definitions
OAR 137-048-0110 includes some definitions that are unique to the construction
design field. These definitions supplement those definitions set forth in ORS 279A.010,
ORS 279C.100, and OAR 137-046-0110. Many of the definitions that are currently
contained in the Division 35 Model Rules were removed from Division 48, in favor of
comprehensive definitions of these term;; in the Code or the desire to centralize as many
common definitions as possible in Division 46 of the Model Rules. The term "Project" is
new to Division 48 and was needed to provide clarity to the rules in the situation where a
27 "The Attorney General shall add to the model rules described in subsection (1) of this section a provision
for procedures for the screening and selection of persons to perform architectural, engineering and land
surveying personal service contracts. In developing such procedures, the Attorney General shall. use the
least restrictive processes allowed under ORS 183.341."
28 OAR 137-048-0130(2). .
29 OAR 137-048-0200(1)(b)
30 OAR 137-048-0200(l)(c)
31 OAR 137-048-0210(1)
32 OAR 137-048-0300
33 OAR 137-048-0310
34 OAR 137-048-0320
18
project has already begun and is being continued, whether that project was delayed and
the contract has expired or been terminated (OAR 137-048-0310) or merely continued. in
a later phase of the project (OAR 137-048-0200(1)(c) and (d)). The. term "Request for
Qualifications" or "RFQ" has a unique meaning in the construction.design field,. and
needed to be distinguished from the term "Request for Quotes." The term "Estimated
Fee" is of course a critical term to understand in determining the correct procurement
procedure to use for a particular transaction, but the definition in the Division 48 rules
has not been significantly revised.
C. -List of Interested Consultants; Performance Record
OAR 137-048-0120 was revised to clarify the provisions governing how agencies
are to compile and maintain a list of qualified consultants who are interested in
performing Architectural, Engineering, or Land Surveying Services or Related Services
for an agency, and exactly what information agencies are required to retain under the
rule. The rule was also revised to clarify state agency responsibilities on compiling and
maintaining records pertaining to contracts to perform Architectural, Engineering, or
Land Surveying Services, as required by ORS 279.057(5).35
D. Applicable Selection Procedures; Pricing Information
OAR 137-048-0130 includes provisions of broad application within Division 48,
and is designed to direct the reader into the detailed selection procedure that will apply to
the transaction at hand, whether the transaction involves a state agency, local agency, or a
local agency that is subject to the funding requirements of ORS 279.0.57(9).36 This rule
was also revised to add a general provision acknowledging the validity of agencies' use
of electronic methods to screen and select consultants to perform Architectural,
Engineering, or Land Surveying Services or Related Services.37
E. Selection Procedures
Other than the Estimated Fee dollar limit increases already discussed in
subparagraph A. above, there were no extensive revisions to the Direct Appointment
Procedure, the Informal Selection Procedure, or the Formal Selection Procedure.
Provisions pertaining to "High Tie Proposals" were removed from the Informal Selection
75 ORS 279C.110(7) under the Code.
36 ORS 279C.110(2) under the Code.
19
Procedure and the Formal Selection Procedure, and included as a separate rule at OAR
137-048-0230. A separate section dealing with RFQ or RFP cancellation, as well as
consultant costs of submitting a proposal, was added at OAR 137-048-0250. In the
Direct Appointment and Informal Selection procedures, provisions were added pertaining
to contract negotiations and required resulting contract provisions that are substantially
similar. to the provisions under the Formal Selection method (altered as needed to fit any
unique requirements for the Direct Appointment or Informal Selection methods).38
F. Prohibited Payment Methodology; Purchase Restrictions
In OAR 137-048-0300 some revisions were made to clarify that the prohibited
payment/compensation methods included in subsection (1) only address such
compensation methods that are contained in the text of the resulting contract itself. A
consultant's internal practices in arriving at a compensation proposal are not controlled
by this provision. Subsection (2) of the rule clarifies that a "time and materials"
compensation method, without a maximum, not-to-exceed contract price, is not
permitted: Subsection (3)(a) has been clarified to cover not only a strict design-build
transaction, but also an energy savings performance contract transaction that might
include design-build as an agreed-upon phase of the work for a particular project.
G. Contract Amendments
OAR 137-048-0320 was added to Division 48 to provide direction on the
permitted scope of amendments to Division 48 resulting contracts, and the methods to be
used to accomplish the amendments. Subsection (1) of the rule includes the requirement
that the agency informally determine, in the agency's sole discretion, that the amendment
would not materially impact the field of competition for the services described in the
RFP. The rule provides that the field of competition would not be adversely affected,
within the meaning of the rule, "if the Contracting Agency reasonably believes that the
number of Proposers would not significantly increase if the RFP were re-issued to
include the additional services.i39
V. ORS Ch 279C and DIVISION 49 OF THE MODEL RULES
37 OAR 137-048-0130(3)
ss OAR 137-048-0200(3) and OAR 137-048-0210(3).
20
A. Background; Limited Statutory and Rule Changes
Of the three new chapters. within the Public Contracting Code, this chapter most
closely resembles existing ORS Ch 279. Current statutes were. reorganized and updated,
but substantive changes required complete consensus of an industry wide forum which
then reported recommendations for House Bill 2341 to the overall Public Contracting
Law Revision Work Group established by House Resolution 1. during the 2001 Regular
Session. As a result, unlike ORS Ch 279A and 279B, ORS Ch 279C does not constitute a
wholesale change from :existing law. Competitive bidding was retained as the norm for
public improvements, and no substantive changes were made to statutes on hours of
labor, prevailing wage rates, payment and interest, retainage, actions against payment
bonds, first-tier subcontractor disclosure, prequalification, disqualification or legal
remedies.
Reflecting the carve out of ORS Chapter 279C as a special chapter for public
improvements and related contracts, the current Model Rules addressing public
procurement generally (OAR Chapter 137, Division 30) and.public improvements
specifically (OAR, Chapter 137, Division 40) were combined as the base for new Model
Rules implementing ORS Ch 279C. These new rules (OAR Chapter 137, Division 49)
reflect the. same philosophy as was used in the underlying statutes; that is, primarily to.
reorganize and update, but to limit changes unless there was a clear consensus to make
them.
However, as outlined below, there were several areas of substantive change in
ORS Ch 279C that have also been reflected in the Division 49 Model Rules.
B. Bidding Exceptions and Exemptions
While competitive bidding is retained as the norm for public improvement
contracts under ORS 279C.335, an exception is allowed for intermediate level
procurements (see below), emergency contracting procedures are clarified, and class
exemptions are specifically authorized. ODOT's competitive bidding exemption
authority, obtained during a 2002 Special Session, also now sunsets on July 1, 2012.
ORS 279C.335(5) provides that emergency contracts may be declared pursuant to
formal rules, and OAR 137-049-0150 provides the details for making that declaration,
39 OAR 137-048-0320(1).
21
modifying the contract and also for excusing bonds. OAR 137-049-630(5) now provides
guidance on establishing a class exemption from competitive bidding. And for ease of
use, the Division 49 rules contain numerous cross references to the competitive bidding
exemption requirements that must be followed prior to utilizing competitive proposals (as
described below), as well as to Request for Proposals procedures.
C. Performance and Payment Bonds
ORS 279C.375 and 279C.380 specifically require a 100% performance bond as
well as a 100% payment bond, rather than one combined bond, and clarifies the purpose
of each bond. The bonds are now required from a surety company with a state certificate
of authority, and these statutes clarify that the right of action on the payment bond also
applies in the case of competitive proposals. OAR 137-049-0290 further addresses bid or
proposal security, including a description of when proposal security might be appropriate
(where award may be made without negotiation following receipt of a firm offer). See
OAR 137-049-0290(2).
D. Competitive Proposals
These new provisions at ORS 279C.400 to 279C.410 do not authorize the use of
competitive proposals for public improvement contracts, but set out a procedural
framework where they are authorized through the exemption process. Bidding statutes
applicable to competitive proposals are identified, as well as those statutes that are
deemed inapplicable. Requirements for Requests for Proposals and the selection process
are also set forth.
The implementing Model Rules provide greater detail in those areas, primarily
centralized in a subdivision of Division 49 entitled "Alternative Contracting Methods",
OAR 137-049-0060 to 137-049-0690. That subdivision continues to provide specific
direction about Design-Build Contracts, Energy Savings Performance Contracts and
contracts for Construction Manager/General Contractor services.
E. Competitive Quotes .
These new provisions were not codified by Legislative Counsel because they
expire in 2009, but they have the force of law and may be cited as "Oregon Laws 2003,
Chapter 794, Sections 132 and 133". The provisions are set forth in full as Legislative
Counsel notes following ORS 279C.410. They do not authorize the use of competitive
22
quotes for intermediate level procurements, but set out the procedural framework. Three <
informal quotes are required, with award made to the lowest priced quote or a written
record of the alternative basis of award. The maximum dollar thresholds, as estimated
by the contracting agency, are at $100,000 generally or at $50,000 for a contract for a
highway, bridge or other transportation project.
OAR 137-049-0160 addresses the new competitive quote provisions, including
the procedures for written or oral quotes, and, as required -by the Code, provides for
amending such contracts to exceed the intermediate level thresholds (in which price
increases of up to 25% may be made by a contracting officer for additional reasonably
related work, and may be increased up to 50% with an additional level of approval).
F. Construction Contracts that are not Public Improvements
Under these new provisions at ORS 279C.320 such contracts (including minor
alterations, ordinary repair or maintenance of a public improvement) are to be procured
as ordinary goods and services under ORS Ch 279B. Other non-procurement
requirements of ORS Ch 279C, such as prevailing wage rates, may still apply.
OAR 137-049-0140 clarifies that such contracts may also be amended under the
provisions of ORS Ch 279B, and provides a useful listing of ORS Ch 279C statutes that
still apply (referencing specific ORS sections that may be applicable in Disqualification,
Legal Actions, Required Contract Conditions, Hours of Labor, Retainage, Subcontracts,
Action on Payment Bonds, Termination and Prevailing Wage Rates requirements for
Public Works contracts).
G. Definition of a "Public Improvement"
The definition at ORS 279A.010 was also changed to exclude "projects for which
no funds of a public agency are directly or indirectly used except for participation that is
incidental or related primarily to project design or inspection." The purpose of that
change. was to parallel a similar exemption from "public works" made during the 2001
Session. (See Oregon Laws 2001, Chapter 628, House Bill 3350)
OAR 137-049-0140, described in Section 5 above, also applies to these contracts
since they are not public improvement contracts. And see related BOLI rules in -OAR
Chapter 839 for the parallel exemption for public works contracts.
H. Electronic Procurement
23
Unlike ORS Ch 27913, the new ORS Ch 279C does not specifically authorize
submission and receipt of offers electronically. ORS 279C.360(1) does allow electronic
advertisement (provided that public improvement contracts estimated to exceed $125,000
must also be published in a trade newspaper of general statewide circulation), and ORS
279C.410(7) also provides for posting notice of intent to award electronically.
OAR 137-049-0310 recognizes these distinctions and sets forth the parameters for
contracting agencies to follow if they elect to authorize submission and receipt of offers
electronically for public improvement contracts.
1. Changes to the Work and. Contract Amendments
OAR 137-049-0910 is a new rule meant to assist contracting agencies in
implementing the Code generally, rather than to address any specific statute. It defines
the difference between a contract "Amendment" and "Changes to the Work" provisions
common to construction contracts, setting fort& the requirements for each and clarifying .
that when those requirements are met the amendment or change does not result in a new
procurement (and, accordingly, an exemption from competitive bidding is not required .
for additional related work).
VI. CODE AMENDMENTS IN 2005 SESSION
Organizing and drafting the new Code was a massive undertaking involving
scores of people working on three new chapters of Oregon Revised Statutes, and so the
timing of its March 1, 2005 operative date was intentionally set to allow technical
amendments to take effect before public contracting agencies had to live with any
unintended results. The Code organizers and drafters understood that intense scrutiny of
the new statutes would be necessary during preparation of DOJ Model Rules, as well as
rules of other agencies, and that any errors discovered in the Code during that rulemaking
process ought to be able to be corrected before its effective date. As a result, since the
2005 Regular Session convenes in January of 2005, there will be time for corrective
legislation to be adopted with an emergency clause prior. to the March 1, 2005 operative
date of the Code.
There are actually two measurers being prepared for pre-session filing that would
amend the new Code. The first one is restricted to technical amendments to fix obvious
24
drafting errors and will be sponsored by the original sponsor of the Code in the House
(Rep. Garrard). The second is a DOJ Law Improvement Proposal to be introduced in the
Senate, and possibly co-sponsored by DAS, that will include those same technical
amendments along with clarifications and other refinements that are intended to improve
the Code without changing any essential features or generating opposition from affected
interest groups.
25
NEW LOOK IN PUBLIC CONTRACTING
SAT., NOV. 6, 2004
ae
ORS 279B.
ACQUISITION OF GOODS AND SERVICES
I. Overview
ORS Chapter 279A, 279B and 279C are cited as the "Public Contracting Code." ORS
279A.005.
A. Effective Date: March 1, 2005
B. Application: Applies to public contracts first advertised, but if not advertised
then entered into, on or after. March 1, 2005.
1. ORS 279B is subject to ORS 279A, but not 279C. ORS 27913.015
2. ORS 279A.010 (1) contains definitions applicable to ORS 279B.
3. ORS 279C.320 provides that contracts for minor alteration, ordinary repair
or maintenance of public improvements, as well as any other construction
contract not defined as a public improvement shall be governed by ORS
279B.,
4. ORS 279A.025(2) sets forth transactions NOT covered by the Public
Contracting Code. Examples include:
"Sole source expenditures when rates are set by law or ordinance for
purposes of source selection." (2)(0.
C. Authority
1. Local Contract Review Boards: governing body is LCRB if no action
taken. ORS 279A.060
2. Local contracting agencies may adopt rules of procedure. ORS
279A.065(5)(a). Rules must state that the Attorney General Model rules
do NOT apply. EACH TIME the AG modifies the model rules a local
contracting agency "shall review" the model rules to determine whether
the local agency should modify its own rules "to ensure compliance with
statutory changes-" ORS 279A.065(b)
3. Authority under the Code may be delegated and subdelegated in whole or
part. ORS 279.075
Pagel
1.
D. Definitions
1. Goods and Services: ORS 279B.005(1)(c)(b) provides:
"Goods and services " or "goods or services" means supplies, equipment,
materials and services other than personal services designated under ors
279A.055 and any personal property, including, any tangible, intangible
and intellectual property and rights and licenses in relation thereto, that a
contract agency is authorized by law to procure. "Goods and services" or
"good or services" includes combinations of any of the items identified in
this paragraph.
2. Local contracting agency: ORS 289A.010(i)(n)
"Local contracting agency" means a local government or special
government body authorized by law to conduct procurement. "Local
contracting agency: includes any person authorized by a local contracting
agency to conduct procurement on behalf of the local contracting agency.
3. Public contract: ORS 29A.010(1)(x)'
"Public contract" means a sale or other disposal, or a purchase, rental or
other acquisition by a contracting agency of personal property, services,
including personal services, public improvements, public works, minor
alterations, or ordinary repair or maintenance necessary to preserve a
public improvement. "Public contract" does not include grants.
H. Source Selection
Methods of acquiring goods and services include the following:
A. Competitive Sealed Bidding: ORS 279.055
B. Competitive Sealed proposals: ORS 279.060
1. The RFP may state that the contract will be awarded by:
a. Negotiation with highest ranked proposer
b. Competitive negotiations
c. Multiple-tiered competition designed to identify a class of
proposers that fall within a competitive range; or
d. Otherwise eliminate from consideration a class of lower ranked
proposers or any combination of methods as authorized by rules.
ORS 279B.060(2)(h)(D)
Page 2
i. Discussions leading to best and final offers.
ORS 279B.060(6)(b)(B)
ii. Serial negotiations. Id., 6(b)(D)
iii. competitive simultaneous negotiations. Id., 6(b)(E)
2. Proposals are not subject to the Public Records Act during the process of
negotiation or until the Notice of Intent to Award is issued. ORS
279B.060(5)(a). Even after; portions of proposals that are exempt or
conditionally exempt may be withheld. Id., 5(b)
C. Small Procurements: ORS 279.065
$5,000 or Less
D. Intermediate Procurements: ORS 27913.070
>$5,000 to $150,000
3 competitive price quotations or competitive proposals; Fewer may suffice if a
written records is made of the effort
E. Sole Source Procurements: ORS 279B.075
F. Emergency Procurements: ORS 27913.080
An emergency means circumstances that A) Could no have been reasonably
foreseen, B) create a substantial risk of loss, damage or interruption of services or
a substantial threat to property, public health, welfare or safety and C) require
prompt execution of a contract to remedy the condition. ORS 279A.010(l)(f)
G. Special Procurements ORS 27913.085
1. Class of contracts or individual contracts
2. Contracting procedures different than as otherwise set forth in the Code
3. Requires request to the LCRB for approval
4. Use of special procurement must be unlikely to encourage favoritism in
the awarding of public contractors or to substantially diminish competition
for public contracts; and
Page 3
5. Use of special procurement must result in substantial cost savings to the
agency OR to the public OR otherwise substantially promote the public
interest in a manner that could not be practicably be realized by complying
with other contracting procedures or rules adopted pursuant to the Code.
(e.g., 217 interchange)
Practice Note: An ordinance or other LCRB approval adopting a class
special procurement or contract speck special procurement should set
forth specific factual findings that show that the requirements of ORS
279B.085 have been met in regard to 'favoritism'; "diminishing
competition, " "substantial cost savings "and%r 'promoting the public
interest. "
This is important because in the event of a challenge to.the special
procurement, the court will review it pursuant to a writ of review
proceeding pursuant to ORS Chapter 34. Such a review is "on the
record" and additional evidence to support the special procurement will
not be allowed. Second, the court gives "due deference" to factual
findings made by the LCRB and "may not substitute its judgment for that
of the contracting agency * * * : ' ORS 279B.400(6)
6. Public notice required by publishing at least once in a least one newspaper
of general circulation in the area where the contract is to be performed;
ORS 279B.055(4)(b)
7. Examples: See Appendix B.
III. Notice of Intent to Award ORS 27911.135
A. Time: 7 days before the award, unless the contracting agency determines "that
seven days is impractical under rules adopted under ORS 279.065"
B. Not applicable to small procurements, intermediate procurements, sole-source
procurements, emergency procurements or special procurements.
C. The notice and manner of posting or issuance must conform to rules adopted by
the agency.
IV. Specifications
A. Brand names or equals ORS 279B.215
B. Mandatory contractual conditions
1. Prompt payment, contributions to IAF, liens and Dept of Revenue. ORS
279B.220
Page 4
2. Yard waste material for law and landscape maintenance contracts. ORS
279B.225
3. Payment for medical care and workers' compensation. ORS 279B.230
4. Hours of labor. ORS 279B.235
C. Exclusion of recycled oils prohibited. ORS 249.240.
V. Legal Remedies,
A. Protestsljudicial review of special procurements: 279B.400
1. Exhaustion of administrative remedies required
2. Protests to be filed in accordance with rules
3. Approval of a special procurement by writ of review ORS Chapter 34, but
normal 60 day time period is shortened to 10 days.
4. Venue in county where principal offices of the local agency are located,
Priority to be given on docket.
5. Request for judicial review prohibits contract execution UNLESS the
contracting agency determines in writing there is a "compelling
governmental interest in proceeding" OR "that the goods or services are
urgently needed."
6. If agency makes a written determination it must provide that
"immediately" to the person who filed the challenge.
7. Person who filed challenge may seek to stay contract execution.
8. Court may stay proceeding if its finds the written determination was not
supported by "substantial evidence" or constituted a "manifest abuse of
discretion."
9. Court may require bond
10. Prospective contractor to be joined in litigation
11. Court to give "due deference" to any factual contracting decision made
and may not substitute its judgment.
12. Remand if violation could have affected the award of the contract and then
agency may determine whether to proceed with the procurement process
in light of court's decision.
Page 5
13. Reimbursement to contractor if contract had. been executed before court's
decision calculated similarly to that in ORS 279C.470.
14. Costs and attorney fees available but not mandatory.
B. Protests of solicitation documents. 279B.405
1. Protest based on grounds that solicitation document is "unnecessarily
restrictive" "legally flawed" or improperly specifies a brand name.
"legally flawed" means that the solicitation document contains terms and
conditions contrary to law while "unnecessarily restrictive" means that it
"limits competition arbitration without reasonably promoting the
fulfillment of the procurement needs" of the contract agency.
2. Solicitation documents cannot be challenged for a contract specific special
procurement unless approval of the special procurement has been
invalidated.
3. Protests according to rules adopted
4. Protests must contain certain specified information
5. Agency to issue a decision in writing to the protest or notify that the
protest was untimely, or failed to give required information
6. Decision required no less than 3 business days before bids or proposals or
offers are due
7. Judicial review by writ of review
8. Review conditions and possibility of contract execution notwithstanding
protest similar to those for special procurements
C. Protests of contract award: 279B.410
1. Bidder/proposer adversely affected because they would be eligible to be
awarded the contract if protest successful; and
2. Reason for the protest is:
a. all lower bids or higher ranked proposals are nonresponsive
b. Failure in evaluation process
c. Abuse of discretion in rejecting protestor's bid or proposal as
nonresponsive
d. Award otherwise violates Chapters 279B or 279A.
Page 6
3. Rules shall establish reasonable time and manner for protests. Late
protests "may not" be considered.
4. Judicial review pursuant to ORS 29B.415
D. Judicial review of protests of contract award ORS 279B.415
1. Venue: where principal offices of local contracting agency located
2. Join as parties all bidders that would be in line for an award of the contract
ahead of the complainant
3. Bond may be required to be posted
4. Execution of contract to the same extent as special procurements
5.. Court to review "only those grounds the complainant raised in the protest
to the contracting agency."
6. Court review on the basis of "substantial.evidencei.e., if the record
viewed as a whole, would permit a reasonable person to make that
finding." Standards from APA review imported
7. Court may remand to agency and give "ancillary" relief such as bid
preparation costs but such relief does not include an award of the contract
or an award of lost profits or other damages. ORS 279B.415(7)(a).
8. Limited reimbursement to contractor if contract executed
9. Costs and attorney fees may be awarded
E. Judicial review of "other violations" ORS 279B.420.
F. Review of Debarment and prequalification decisions: ORS 279B.425
Page 7
APPENDIX A
DRAFT RULES: LEGAL REMEDIES'
1. PCC 5.33.XXX Protests and Judicial Review of Special Procurements
A. Protest prior to approval: An Affected Person must protest the Purchasing
Agent's s request for approval of a Special Procurement, or a class Special
Procurement before approval by the City Council.
B. Method of Protest
1. Time: A written protest of the Purchasing Agent's request shall be
provided to the Purchasing Agent seven (7) days after the Notice of the
Request for Approval of the Special Procurement is advertised unless a
different time period is provided in the Notice. The Purchasing Agent
shall not consider a protest submitted after the timeline established for
submitting such protest under this rule. or such different time period as
may be provided in the Public Notice of the request for approval of a
proposed Special Procurement.
2. Contents: The written protest must include:
a. Sufficient information to identify the Request that is the subject of
the protest;
b. A detailed statement of all the legal and factual grounds for the
protest;
C. Evidence or supporting documentation that supports the grounds
on which the protest is based;
d. A description of the resulting harm to the Affected Person; and
e. The relief requested.
C. City Response. After receipt of the protest, the Purchasing Agent may do any or
all of the following:
1. Agree with the Protest and withdraw the Request;
2. Agree with the Protest, in whole or in part, and submit a revised Request
to the City Council as part of the same Special Procurement process;
These draft rules are still under revision by the City of Portland's Bureau of Purchases and City Attorney's office.
They have not yet been presented to City Council and do not represent official policy of the City of Portland.
Appendix A Page 1
3. Issue a written response to the protest and provide that response to the
Affected Person;
4. Refer the protest to the Contract Board of Appeals for decision, as
provided in PCC 5.33.XXX;
5. Refer the protest, together with any written response by the Purchasing
Agent; to the City Council for decision;
6. Any other action that is in the best interest of the City that gives full
consideration to the merits of the protest and notice to the protestor of the
action taken;
D. Judicial Review.
I. An affected person may not seek judicial review of the Cit y Council's
approval of a Special procurement or Class Special Procurement unless it
has complied with the Protest requirements of this section and exhausted
its administrative remedies.
2. Judicial review is not available if the Request is denied by the City
Council, Contract Board of Appeals or is withdrawn by the Purchasing
Agent.
II. PCC 5.33.XXX Protests and Judicial Review of Sole-Source Procurements
A. An Affected Person may protest the determination that the Goods or Services or
class of Goods or Services are available from only one source.
B. Method of Protest
1. Time: A written protest of the Purchasing Agent's request shall be
provided to the Purchasing Agent within seven (7) whenever the City
posts a notice that it will make a sole source purchase. The Purchasing
Agent shall not consider a protest submitted after the timeline established
for submitting such protest under this rule or such different time period as
may be provided in the Public Notice of the request for approval of a
proposed Special Procurement.
2. Contents:
a. Sufficient information to identify the Request that is the subject of
the protest;
b. A detailed statement of all the legal and factual grounds for the
protest;
Appendix A Page 2
C. Evidence or supporting documentation that supports the grounds
on which the protest is based;
d. A description of the resulting harm to the Affected Person; and
e. The relief requested
C. City Response. After receipt of the protest, the Purchasing Agent may do any or
all of the following:
1. Agree with the Protest and withdraw the Notice of intent to make a sole
source purchase;
2.. Agree with the Protest in whole or in part and submit a revised Intent to
make a sole source purchase;
3. Issue a written response to the protest and provide that determination to
the Affected Person;
4. Refer the protest to the Contract Board of Appeals. If so referred the
Affected Person is required to participate in that process or its protest will
be considered abandoned and all rights to judicial review will be lost;
5. Refer the protest to the City Council for consideration along with the
Purchasing Agent's Request; or
6. Any other action that is in the best interest of the City while giving full
consideration to the merits of the protest.
D. Judicial Review. An affected person may not seek judicial review of the City
Council's approval of a Sole Source procurement unless it has complied with the
Protest requirements of this section. Judicial review is not available if the City
elects not to make a sole source procurement.
M. PCC 533.XXX Protests and Judicial Review of Multi-Tiered Solicitations
A. Interested offerors may file a written protest of the specifications, Contract terms
and conditions, pursuant to PCC 5.33.XXX. [protest of solicitation documents.]
B. Offerors may protest in one of two ways:
1. If no other protest remedies are provided in the Solicitation Document,
aggrieved offerors can file a written protest to the award within seven (7)
calendar days after the issuance of the Notice of Intent to Award if the
meet the requirements of Section C below, pursuant to PCC 5.33.XXX
[protests of contract award]; or
Appendix A Page 3
2. If expressly required or permitted by the Solicitation Document, aggrieved
offerors can file a written protest after being excluded from the
Competitive Range or after being excluded from any subsequent stages of
procurement.
C. Basis of Protest. An aggrieved Offeror may protest its exclusion from the
competitive range or from subsequent stages of a procurement only if.
1. The Offeror is Responsible and submitted a Responsive Offer;
2. The City made a mistake that, if corrected, would have made the
protesting Offeror eligible to participate in the next stage of the
procurement.
D. If the Solicitation document permits or requires protests prior to the City' issuance
of a Notice of Intent to Award, an affected Offeror must submit a written protests
specifying its basis within seven (7) days after the offeror was excluded from
participating further in the procurement.
E. After receipt of protest objecting to the exclusion of an Offeror from further.
participation in the procurement, the Purchasing Agent may do any or all of the
following:
I . Agree with the Protest, in whole or in part, and permit the Offeror to
participate in the next stage of the procurement;
2. Issue a written response to the protest and provide that determination to
the Affected Person;
3. Refer the protest to the Contract Board of Appeals. If so referred the
Affected Person is required to participate in that process or its protest will
be considered abandoned and all rights to judicial review will be lost;
4. Refer the protest to the City Council for consideration along with the
Purchasing Agent's Request; or
5. Take any other action that is in the best interest of the City while giving
full consideration to the merits of the protest.
F. Judicial Review. An affected person may not seek judicial review of the City's
decision to reject on offeror from a preliminary stage of a multi-tiered solicitation
unless it has complied with the Protest requirements of this section. Judicial
review is not available if the City elects not to make a procurement.
Appendix A Page 4
IV. PCC 5.33.XXX. Protests and Judicial Review of Solicitation Documents and the
Procurement Process
A. A prospective Offeror may protest the procurement process or the Solicitation
Document for offers solicited pursuant to competitive sealed bidding, competitive
sealed proposals, a special procurement, or a class special procurement. Prior to
submitting a protest, a prospective Offeror may seek clarification of any provision
of the Solicitation Document. The City's clarification to an Offeror, whether
orally or in Writing, does not change the Solicitation Document and is not binding
on the City unless the City amends the Solicitation Document by Addendum
B. Method of Protest
1. Time: A written protest of the Purchasing Agent's request shall be
provided to the Purchasing Agent seven (7) after the City posts a notice
that it will make a sole source purchase. The Purchasing Agent shall not
consider a protest submitted after the timeline established for submitting
such protest under this rule or such different time period as may be
provided in the Public Notice of the request for approval of a proposed
Special Procurement.
2. Contents: The protest must include the following information:
a. Sufficient information to identify the Request that is the subject of
the protest;
b. A detailed statement of all the legal and factual grounds for the
protest;
C. Evidence or supporting documentation that supports the grounds
on which the protest is based;
d. A description of the resulting harm to the Affected Person; and
e. The relief requested.
C. Required City Response.
1. The City shall inform the offeror in writing if the protest was not timely
filed;
2. The City shall inform the offeror if it failed to meet the requirements of
Section B( 2) and the reasons for that failure;
3. If the protest was timely filed and provides the information required by
Section B(2) above, the Purchasing Agent City shall issue a decision in
writing and provide that decision to the protestor no less than three (3)
Appendix A Page 5
business days before offers are due, unless a written determination is made
by the City that circumstances exist that require a shorter time limit.
4. The Purchasing Agent's response shall inform the protestor that it may
seek a writ of review provided it seeks the writ before the opening of bids,
proposals or offers.
5. If the City receives protest from a prospective Offeror in accordance with
this rule, the City may extend Closing if the City determines an extension
is necessary to consider the protest and to issue an Addendum to the
Solicitation Document.
D. Optional City Response: In addition to the requirements of Section C above, the
Purchasing Agent may take any or all of the following:
1. Agree with the Protest and make any necessary corrections to the
solicitation document or procurement process;
2. Issue a written response to the protest and provide that decision to the
Affected Person;
3. Refer the protest any response to the Contract Board of Appeals. If so
referred the Affected Person is required to participate irk that process or its
protest will be considered abandoned and all rights to judicial review will
be lost;
4. Refer the protest and any response to the City Council for decision; or
5. Any other action that is in the best interest of the City while giving full
consideration to the merits of the protest.
E. Judicial Review. An affected person may not seek judicial review of the City's
solicitation document or procurement process unless it has complied with the
Protest requirements of this section.
V. PCC 5.33.XXX Protests and Judicial Review of Contract Award
A. An Offeror may protest the award of a Contract, or the intent to award of a
Contract, whichever occurs first, if
1. The bidder or proposer is adversely affected because the bidder or
proposer would be eligible to be awarded the public contract in the event
that the protest were successful; and
2. The reason for the protest is that:
a. All lower bids or higher ranked proposals are nonresponsive;
Appendix A Page 6
b. The City filed to conduct the evaluation of proposals in accordance
with the criteria or processes described in the solicitation
document;
C. The City abused its discretion in rejecting the protestor's bid or
proposal as nonresponsive; or
d. The City's evaluation of bids or proposals or the City's subsequent
determination of award is otherwise in violation of these rules,
ORS Chapter 279B or ORS Chapter 279A.
B. B. Method of Protest.
1. Time: A written protest of the Purchasing Agent's request shall be
provided to the Purchasing Agent within seven (7) days after the City
posts a notice that it will make a contract award. The Purchasing Agent
shall not consider a protest submitted after the timeline established for
submitting such protest under this rule or such different time period as
may be provided in the Public Notice of the request for approval of a
proposed Special Procurement.
2. Contents: The protest must include the following information:
a. Sufficient information to identify the Request that is the subject of
the protest;
b. A detailed statement of all the legal and factual grounds for the
protest as described in Section A(2)(a)-(d) above;
C. Evidence or supporting documentation that supports the grounds
on which the protest is based;
d. A description of the resulting harm to the Affected Person; and
e. The relief requested
C. Required City Response. The City shall take the following actions, as
appropriate:
1. The City shall inform the offeror in writing if the protest was not timely
filed;
2. The City shall inform the offeror if it failed to meet the requirements of
Section B( 2) and the reasons for that failure;
Appendix A Page 7
3. If the protest was timely filed and provides the information required by
Section B(2) above, the City shall issue a decision in writing and provide
that decision to the protestor within seven (7) business days unless a
written determination is made by the City that circumstances exist that
require a shorter time limit.
4. If the City denies the protest, it shall inform the protestor that it has the
right to seek review of the decision by the Contract Board of Appeals, or
Cit y Council, as the Purchasing Agent may determine.
D. Optional City Response: In addition to the requirements of Section C above, the
City may take any or all of the following:
1. Agree with the Protest and issue a revised Notice of Intent to Award or
take any other corrective action that may be necessary to ensure that the
contract is awarded to the appropriate Offeror;
2. Issue a written response to the protest and provide that decision to the
Affected Person;
3. Refer the protest and any response to the Contract Board of Appeals for
decision. If so referred the Affected Person is required to participate in
that process or its protest will be considered abandoned and all rights to
judicial review will be lost;
4. Refer the protest and any response to the City Council for decision; or
5. Take any other action that is in the best interest of the City while giving
full consideration to the merits of the protest.
E. Judicial Review. An affected person may not seek judicial review of the City's
decision to award a contract unless it has complied with the Protest requirements
of this section. Judicial review is not available if the City elects not to make a
sole source procurement
VI. PCC 5.33.XXX Protests of Other Violations
A. Any violation of Chapter 279A or 279B, except ORS 279B.270, 279B.275, ORS
27913.280 and 279B.400 to 279B.425, by the City, for which no administrative
remedy is otherwise provided by this Code is subject to this rule.
B. A protest may be made under this section only if a public contract is about to be
awarded or has been awarded and:
1. An alleged violation of 279A or 279B, except ORS 279B.270, 279B.275,
ORS 279B.280 and 27913.400 to 279B.425, has occurred in the
procurement process and violation has resulted or will result in the
unlawful award of a contract or the unlawful failure to award the contract;
Appendix A Page 8
2. The alleged violation deprived the person protesting of the award of the
contract or the opportunity to compete for the award of the contract;
3. The protestor would have been a responsible bidder, proposer or offeror
qualified to receive the award of the contract;
4. The protestor gave written notice to the City describing the alleged
violation no later than 10 days after the date on which the alleged violation
occurred and in no event more than 10 days after the date of the execution
of the contract;
5. If the alleged violation is of ORS 279A, then it is one for which no judicial
review is provided by another section of ORS Chapter 279A or 279B. If
the alleged violation is of 279B, except ORS 279B.270, ORS 279B.275,
279B.280 and 279B.400 t'279B.425, then it is one for which no judicial
review is provided by another section of ORS Chapter 279B.
C. Method of Protest.
1. Time: A written protest of the Purchasing Agent's request shall be
provided to the Purchasing Agent seven (7) days after the date on which
the alleged violation occurred and in no event no later than seven (7) days
after the date of the execution of the contract. The Purchasing Agent shall
not consider a protest submitted after the timeline established for
submitting such protest under this rule and shall not consider a protest
under this section if a right to protest is elsewhere provided by this Code..
2. Contents: The protest must include the following information:
a. Sufficient information to identify the procurement that is the
subject of the protest;
b. A detailed statement of the alleged violation and all the legal and
factual grounds for the protest;
C. Evidence or supporting documentation that supports the grounds
on which the protest is based;
d: A description of the resulting harm to the Affected Person; and
e. The relief requested.
D. Required City Response. The City shall take the following actions, as
appropriate:
1. The City shall inform the offeror in writing if the protest was not timely
filed;
Appendix A Page 9
2. The City shall inform the offeror if it failed to meet the requirements of
Section B( 2) and the reasons for that failure;
3. If the protest was timely filed and provides the information required by
Section B(2) above, the City shall issue a decision in writing and provide
that decision to the protestor within seven (7) business days unless a
written determination is made by the City that circumstances exist that
require a shorter time limit;
4. If the City denies the protest, it shall inform the protestor that it has the
right to seek review of the decision by the Contract Board of Appeals, or
City Council, as the Purchasing Agent may determine.
E. Optional City Response: In addition to the requirements of Section C above, the
City may take any or all of the following:
1. Agree with the Protest and take any corrective action necessary;
2. Issue a written response to the protest and provide that decision to the
Affected Person;
3. Refer the protest and any response to the Contract Board of Appeals for
decision. If so referred the Affected Person is required to participate in
that process or its protest will be considered abandoned and all rights to
judicial review will be lost;
4. Refer the protest and any response to the City Council for decision; or
5. Take any other action that is in the best interest of the City while giving
full consideration to the merits of the protest.
F. Judicial Review. An affected person may not seek judicial review of an alleged
violation for which no administrative remedy is otherwise provided unless it has
complied with the Protest requirements of this section.
VII. PCC 5.33.XXX Review of Prequalification and Debarment Decisions
A. The denial, revocation or revision of a prequalification decision or a decision to
debar a prospective offer must submit written appeal to the City within three
business days after receipt of the City's notice.
B. The City Council delegates its authority to the Purchasing Agent for the purposes
of receiving notice of any city contracting agency that a person has appealed.
Upon receipt the notice the Purchasing Agent shall notify the person appealing of
a time and place of a hearing designed to consider the appeal within 30 days.
Appendix A Page 10
C. The City Council delegates its authority to conduct a hearing to the Purchasing
Agent. The Purchasing Agent may sub-delegate the authority to conduct a
hearing to any person the Purchasing Agent deems appropriate.
Appendix A Page 11
APPENDIX B: DRAFT RULES RE SPECIAL PROCUREMENT 2
1. PCC. 5.33.XXX Special Procurements
A. The City may award a Public Contract as a Special Procurement pursuant to the
requirements of ORS 279B.085, which permits class special procurements. Such
procurements allow the City to enter into a series of contracts over time without
using competitive sealed bidding or competitive sealed proposals.
B. The City Council declares the following as classes of special procurements for
which contracts may be awarded:3
1. Manufacturer Direct Supplies: The City may purchase goods directly
from a manufacturer without competitive bidding if a large volume
purchase is required and the cost from the manufacturer is the same or less
than the cost the manufacturer charges to its distributor(s). Procurements
of this type are made on a contract-by-contract basis and are not
requirements contracts.
2. Advertisements: Except as provided by City Charter Section 8-101, the
City may purchase advertising in newspapers and written publications.
3. Copyrighted Materials: The City may purchase copyrighted materials
where there is only one known supplier available for such goods. This
includes, but is not limited to, new books, periodicals, curriculum
materials, reference materials, audio and visual media, and non-mass
marketed software from a particular publisher or its designated distributor.
4. Financial Products??? The City may purchase financial products such -as
bond insurance, surety bonds for City bond reserves and liquidity facilities
such as letters of lines of credit.
Practice note: ORS 279A.025(2)(q) provides that
agreements entered into "in connection with" the following
agreements are not covered by the Code:
a. "The incurring of debt by a public body, including but not limited
to the issuance of bonds, certificates of participation other debt
repayment obligations, and any associated contracts * *
2 These draft rules are still under revision by the City of Portland's Bureau of Purchases and City Attorney's office.
They have not yet been presented to City Council and do not represent official policy of the City of Portland.
3 At this time, these classes are placeholders. In order to have a valid class, LCRB's must make the requisite
findings to have special procurements and may have to adopt competitive procedures in order to make those
findings.
Appendix B Page 1
b. "The making of program loans and similar extensions or advances.
of funds, aid or assistance by a public body to a public or private
body for the purpose of carrying out, promoting or sustaining
activities or programs authorized by law; or
c. "The investment of funds by a public body as authorized by law,
and other fmancial transactions of a public body that by their
character cannot practically be established under the competitive .
contractor selection procedures of 27913.050 [methods of source
selection] or ORS 27913.085 [special procurements]
Question: Is a special procurement for financial products necessary?
5. Insurance Contracts•4 Except for Employee Benefit Insurance as provided
in PCC 5.33.xxx, contracts for insurance shall be let by one of the
following alternative procedures:
a. Insurance Consultant: The City may solicit proposals from
insurance agents to perform insurance services as the City's
insurance consultant in connection with more than one insurance
contract. Among the services to be provided is the securing of
competitive proposals from insurance carriers for all coverages for
which the insurance consultant is given responsibility:
i. As part of the RFP process for selection of an insurance
consultant, the City shall make reasonable efforts to inform
known insurance agents in the competitive market area that
it is considering such selection. These efforts shall include
a public advertisement in at least one newspaper of general
circulation in the Portland area and in at least one insurance
trade publication of general circulation in the state. The
advertisement shall generally describe the nature of the
insurance that the City will require.
ii. Any contract period shall not exceed five years. An
insurance consultant may serve more than one contract
period. An insurance consultant of record shall qualify for
a contract prior to each period as if each contract period
were the first.
iii. In selecting an insurance consultant, the City shall select
the consultant or consultants most likely to perform the
most effective services.
4 ORS 279A.025(2)(b) provides that the Code is not applicable to insurance and service contracts as provided under
ORS 414.115 through 414.145. As I read these statutes, they apply only to insurance obtained by the State
Department of Human Resources.
Appendix B Page 2
b. Specific Proposals for Insurance Contracts: As an alternative to the
process provided in PCC 5.33.xxx [above], the City may solicit
proposals from insurance agents for the purpose of acquiring
specific insurance contracts subject to the following conditions:
i. The City shall make reasonable efforts to inform known
insurance agents in the competitive market area of the
subject matter of the contract, and to solicit proposals for
providing the services required in connection with the
contract. These efforts shall include public advertisements
in at least one newspaper of general circulation in the
Portland area and at least one insurance trade publication of
general circulation in the state. The advertisement shall
state the specific nature of the insurance acquired.
ii. The City shall select an insurance agent on the basis of the
most advantageous offer considering coverage, premium
cost, and service to be provided.
6. Employee Benefit contracts
7. Purchase of Used Personal Property or Equipment: The City may procure
used personal property or equipment. Used property or equipment is
property or equipment that has been placed in use by a previous owner or
user for a period of time recognized in the relevant trade or industry as
qualifying the personal property or equipment as "used". Used personal
property or equipment generally does not include property or equipment if
the City was the previous user, whether under a lease, as part of a
demonstration, trial or pilot project or similar arrangement.
8. Hazardous Material Removal and Oil Clean-up. The City may acquire
services to remove or clean up hazardous material or oil from any vendor
when ordered to do so by the Oregon Department of Environmental
Quality pursuant to its authority under ORS Chapter 466. In doing so, the
following conditions apply:
a. To the extent reasonable under the circumstances encourage
competition by attempting to obtain informal price quotations or
proposals form potential suppliers of goods and services;
b. The Bureau responsible for managing or coordinating the clean-up
shall submit a written description of the circumstances that require
it and a copy of the DEQ order for the cleanup to the Bureau of
Purchases together with a requisition authorizing the contract;
Appendix B Page 3
0
c. The Bureau of Purchases shall record the measures taken to
encourage competition, the amount of the price quotations
obtained, if any, and the reason for selecting the contractor to
whom award is made; and
d. The timeline for cleanup does not permit use of intermediate
procurement procedures.
9. Amendments to Contracts and Price Agreements. The City may execute
contract amendments, as follows:
Contract amendments are conditioned upon:
a. An original valid contract exists between the parties;
b. Unit prices or "add alternates" were provided in the solicitation
document that established the cost basis for the additional work or
product or in a lump sum contract the contractor has provided an
estimate of the additional cost which has been verified by the
Bureau seeking the amendment; and
c. The solicitation document provided for such amendments; or
d. Emergency: The original contract was let pursuant to a declaration
of emergency, in accordance with ORS 279.015(4) and PCC
5.33.090 D.1.; or
e. Unplanned Environmental Cleanup: The additional work is
required by reason of existing regulations or ordinances of
federal, state or local agencies, dealing with the prevention of
environmental pollution and the preservation of natural resources,
that affect performance of the original contract and such
regulations or ordinances either were not cited in the original
contract, as provided in ORS 279.318, or were enacted or amended
after submission of the successful bid or proposal.
C. Notice. The City shall given Public Notice of (1) its request for approval and (2)
of the City's approval of a Special Procurement in a similar manner as provide for
Public Notice of Competitive Sealed Bids under ORS 279B.055(4). The Public
Notices shall describe the Goods or Services or class of Goods or Services to be
acquired through the Special Procurement. The City shall give such Public Notice
of its request for approval of a Special Procurement at least fourteen (14) Days
prior to the approval of the Special Procurement by the City Council.
D. If the City plans to conduct a competitive special procurement, it shall give notice
of intent to award to all prequalified offerors who sought the award of a contract
in the manner provided for competitive sealed bids.
Appendix B Page 4
APPENDIX C: ORS 279B BY THE NUMBERS
Type of Magic Number Rules Authority
Procurement
Permissive $250,000 or more City must publish notice ORS 279A.215(2)(a).
Cooperative of intent to acquire more
Agreements than $250,000 on goods
and services under the
contract or price
agreement through a
permissive cooperative
agreement.
Small $5,000 or less May be awarded in any ORS 27913.065.
Procurements manner, including direct
selection, pursuant to
rules adopted.
Intermediate $150,000 or less 1. Verbal quotations: ORS 27913.070; City
Procurements $50,000 or less; Code to distinguish
2. Written quotations: Verbal and written
$50,000 to $150,000
Sole Source $50,000 or more Public Notice required ORS 27913.075A.
for sole source purchases
eater than $50,000
Emergency $150,000 or less Purchasing Agent may ORS 279B.080;/City
declare, bureau direction Code regarding
in Agent's absence authority $500,000 or less Commissioner in Charge City Code
may declare
$500,000 or more Commissioner in Charge City Code
followed by Council
authorization
Facsimile Offers $150,000 or Less if City Code
authorized
Sign Contracts $500,000 or less Purchasing Agent may City Code
sign
$500,000 or more Council must authorize City Code
Appendix C Page 1
NEW LOOK IN PUBLIC CONTRACTING
SAT., NOV. 6, 2004
LOCAL RULES UNDER THE
NEW PUBLIC CONTRACTING CODE
Barbara Novak
Harrang/Long/Gary/Rudnick PC.
Most parts of the Public Contracting Code ("Code") are self-implementing, but many
provisions cannot be used unless implementing rules are adopted, and some provisions
mandate the adoption of local rules. This paper describes the minimum set of rules
needed to exercise all Code authority and to comply with all Code rule requirements.
MODEL RULES
The Code directs the State's Attorney General to promulgate public contracting rules
("Model Rules") that can be used by state agencies and local governments. The Model
Rules will control the contracting of a local government unless the local government
expressly rejects the Model Rules and adopts its own rules.t
The Model Rules were filed on September 1, 2004 and comprise divisions 46, 47, 48 and
49 of OAR Chapter 137 (Department of Justice). The content of the Model Rules is
generally as follows:
Division 46 - Rules applicable to all public contracts (promulgated under ORS
Chapter 279A).
Division 47 - Rules for the procurement of goods and services (promulgated
under ORS Chapter 279B).
Division 48 - Rules for the selection of Architects, Engineer and Land Surveyors`
, (promulgated under ORS 279C.100 - 279C.125).
Division 49 - Rules for the solicitation and award of • public improvement
contract and general rules for construction contracts concerning
relations with contractors and subcontractors and labor provisions
(promulgated under ORS 279C.300 - 279C.870)
Note Concerning "Procurement." The Code defines "procurement" as the act of
purchasing, leasing, renting or otherwise acquiring goods or services. The word
"procurement" is used liberally in ORS 279B but not in ORS 279C. The word
"(4) A contracting agency that has not adopted its own rules of procedure in accordance with
subsection (5) of this section is subject to the model rules adopted by the Attorney General
under this section, including all modifications to the model rules that the Attorney General
may adopt. This subsection does not apply to personal services contracts of local contracting
agencies except for contracts for architectural, engineering and land surveying services and
related services." ORS 279.A.065
Local Contracting Rules - Page 1
t
"procurement" in a sentence indicates that the object of the procurement is goods or
services but not public improvements.
EVERY LOCAL GOVERNMENT MUST ADOPT SOME RULES. , A local
government cannot rely on the Model Rules for all of its contracting needs.
The Model Rules do not create special classes of contracts that are exempt from the'
general requirements for. competitive bids and proposals. Any special exemptions
preferred by a local government for the purchase of, for example, library books, police
dogs,. telecommunications systems or used property, or for procurements under $5,000",
must be created by the local government.
The Model Rules do not provide procedures for personal service contracts of local
governments. Each local government must define personal services and establish one or
more methods for the award of personal service contracts.
The Model Rules do not address issues of delegation of authority for decision making
activities that the statutes assign to "contracting agencies." Each local government must
adopt a rule of delegation.
The Model Rules do not provide procedures for the disposal of surplus property.
CONTRACT REVIEW BOARD/CONTRACTING AGENCY
The powers and duties that are assigned to local governments by the Code fall into two
categories: (1) those that must be exercised or performed by local contract review boards
("CRBs"), and (2) those that must be exercised or performed by "contracting agencies."
Actions assigned to CRBs should be performed by a local government's governing body.
Actions assigned to contracting agencies can be performed by the governing body or
delegated to an executive or administrative official.
Delegation. The Code allows. the powers of contracting agencies to be delegated and sub-
delegated.m Therefore, even local governments who use the. Model Rules should adopt
laws to delegate contracting power to a chief executive or "purchasing agent." Without
appropriate delegation to an executive officer, even routine public contracting actions
may require approval of the governing body.
° Both the Code and the Model Rules refer to exemptions from bidding for procurements under $5,000,
but both the Code and the Model Rules state that the exemption must be used under rules adopted by the
ency.
ORS 279A.075 provides: "Unless otherwise provided in the Public Contracting Code, the exercise of
all authorities in the code may be delegated and subdelegated in whole or in part. Notwithstanding
delegations of authority under this section, a person's exercise of the delegated authority is governed by
the Code and rules adopted under the Code"
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Suggestion: The rules adopted by the governing body should delegate administrative
rulemaking authority to an executive/administrative official. For example:
Except as otherwise provided in these rules, the powers and duties of the local
contract review board under the Public Contacting Code shall be exercised and
performed by the [governing body] and all powers and duties given or assigned to
contracting agencies by the Public Contracting Code shall be exercised or
performed by the Purchasing Agent or the Purchasing Agent's designee.
BASIC RULES REQUIRMENT
Several provisions of the Code require the adoption of implementing rules. In a -few
instances, described below, the authority to act is limited to local contract review boards.
In all other cases, rules may be promulgated by the body, commission or official
designated by a governing body as the rule making authority of the contracting agency:
The rules that must be adopted by CRBs are described below under the heading "LOCAL
CONTRACT REVIEW BOARD." The rules that must be adopted under the authority of
contracting agencies are described below under the heading "CONTRACTING
AGENCIES." The Model Rules that will. apply if local rules are not adopted are
referenced in the discussion and reproduced as end notes.
LOCAL CONTRACT REVIEW BOARD
ORS 279A.060 establishes the governing body of every local government as the local
contract review board of that entity, but allows a governing body to delegate its CRB
authority to another body, board or commission.. Therefore, unless a CRB delegation has
been made, all CRB powers and duties should be exercised and performed by the
governing body.
Designation of Personal Services Contracts.
A local contract review board, by ordinance, resolution, administrative rule or other,
regulation, may designate certain service contracts or classes of service contracts as
personal services contracts (See ORS 279A.055(2)) and may also designate certain
contracts as contracts for architectural, engineering and land surveying services or related
services (ORS 279C.105). The second designation is not necessary and not useful unless
the contracting agency has different rules for the award of contracts for architectural
services than for the award of other types of personal services.
Suggestion: The rule adopted to define and describe the classes, types or
categories of personal service contracts should delegate authority to the entity's
purchasing agent to determine whether a particular contract is of a type that falls within
the definition of personal services, as in the following definition:
"Personal services contract" and "Personal Services". A personal services
contract is a contract primarily for the provision of services that require specialized
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J
technical, creative, professional -or communication skills or talents, unique and
specialized knowledge, or the exercise of discretionary judgment skills, and for
which the quality of the service depends on attributes that are unique to the
service provider. Such services include, but are not limited to, the services of
architects, engineers, attorneys, auditors and other licensed professionals, artists,
designers, computer programmers, performers, consultants and property managers.
The Purchasing Agent shall have discretion to determine whether a particular type
of contract or service falls within the foregoing definitions.
Sole Source Procurement. The board must designate the person who shall have
authority to declare that goods or services are only available from one source, but that
person must use procedural rules adopted by the contracting agency for the declaration
that the sole-source exemption applies. (See ORS 279B.075)
Exemption to Allow Brand Name. Specifications for Public Improvements. ORS
27913.215 provides self-implementing rules under which a contracting agency may use
brand-name specifications when purchasing goods or services under ORS Chapter 279B.
A-different law applies in the case of public improvements, however, and ORS 279C.345
prohibits specifications bl brand name, mark or manufacturer except in accordance with
rules adopted by a CRB.
Special Procurements. Only the contract review board can create or approve
exemptions from the procurement methods prescribed by the Code. ORS 27913.085
authorizes exemptions to be created for the procurement of goods and services. ORS
279C.335 authorizes exemptions to be created for the selection and award of contracts for
public improvements. - Note, however, that a request for proposal process cannot be used
to award a public improvement for which an exemption is obtained unless the contracting
agency has adopted rules for that purpose. (See ORS 279C 400.)
Recommendation: The 2003 Oregon Laws created an exemption to allow public
improvement contracts for up to $100,000 to be awarded under an informal quote
procedure, but the exemption will sunset on June 30, 2009. By adopting a CRB special
class exemption for these contracts, a local government can preserve the exemption past
the statutory sunset provision.
Electronic Publication of Advertisements for Public Improvements. The CRB may
adopt rules. allowing bids for public improvements to be advertised electronically as
provided in ORS 279C.360.3 ORS 27913.055 assigns the authority to promulgate rules
for the electronic procurement of goods and services, however, to contracting agencies.
Appeals of Prequalification Decisions and Debarments. The decision of a contracting
agency to debar a contractor from competing for agency contracts or to deny pre-
qualification of a contractor is subject to de novo review by the agency's CRB in
accordance with rules of the CRB required by ORS 27913.425.
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Concession Agreements. It is questionable whether contracts that grant a franchise or
concession to operate a business on public property are "public contracts" because they
do not fit within the definition of "public contract" under ORS 279A.0101v as either a
sale or disposal of property or services or as an acquisition of property or services. When
adopting contracting rules, a CRB may wish to provide for the selection and award of
° concession agreements. A definition of "concession agreement" might look something
like the following:
"Concession agreement." A concession agreement is a contract that authorizes
and requires a private entity or individual to promote or sell, for its own business
purposes, specified types of goods or services from a site within a building or
upon lands owned by [Contracting Agency] and under which the concessionaire
makes payments to the [Contracting Agency] based, at least in part, on the
concessionaire's revenues from ,sales. The term "concession agreement" does not.
include an agreement which is merely a flat-fee or per-foot rental, lease, license,
permit or other arrangement for the use of public property.
CONTRACTING AGENCY
The Code does not require "contracting agency" actions to be made by the governing
body. In fact, ORS 279A.010 defines "Contracting agency" as including "any person
authorized by a contracting agency to conduct a procurement on the contracting agency's
behalf." Therefore, the authority to promulgate contracting agency rules can be
delegated.
Declaration of Intention to Adopt Local Rules and Reject Model Rules. ORS
279A.065(5) provides:
A contracting agency may adopt its own rules of procedure for public
contracts that: (A) Specifically state that the [Model Rules] do not apply
to the contracting agency; and (B) Prescribe the rules of procedure that
the contracting agency will use. for public contracts, which may include
portions of the model rules adopted by the Attorney General.
Personal Service Contracts. ORS 279A.070 provides:
Each contracting agency authorized to enter into personal services
contracts shall create procedures for the screening and selection of persons
to perform personal services.
A contracting agency may adopt a rule providing that personal service contracts be
awarded under the statutes and Model Rules governing requests for proposals and
intermediate procurements under ORS 27913.050 to. 27913.085 and OAR 137-047-0250-
r' Public Contract is defined as "a sale or other disposal or a purchase, lease, rental or other acquisition by
a contracting agency of personal property, services, including personal services, public improvements
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0290. The problem with this short-cut is that these Code provisions and Model Rules do
not include any rules for award by direct appointment.
Purchase of Equipment and Supplies from Federal Catalogs. The. United States
Administrator of General Services ("GSA") maintains posted catalogues of certain types
of equipment that may be purchased by State and local governments, including law
enforcement equipment suitable for counter-drug activities, pursuant to 10 USC 381, and
computer equipment, pursuant to the e-government act of 1002. ORS 279A.180 requires
contracting agencies to adopt rules for the purchase of goods available from federal
agencies under 10 USC 381 or similar federal purchasing programs.
Transfer, sale or disposal of personal property. If local rules for the disposal of.
personal :property are not adopted under ORS 279A.185, after March 1, 2005, local
governments will have to dispose of surplus personal property using the competitive
bidding requirements of the Code.
Small Procurements. The adoption of rules is required to exempt small value contracts
for goods or services from formal competitive procurement requirements. ORS 279B.065
also provides that a contract awarded as a small procurement may not be amended unless
the rules authorize amendment a
The Model Rules do not describe how a small procurement can be awarded.
Some local rule must be adopted to use this provision.
Informal Selection of Good and Services. ORS 27913.070 provides an informal quote
procedure for the procurement of goods or services exceeding $5,000 but not exceeding
$150,000.5 However, rules must be adopted to authorize a contract awarded under this
section to be amended to exceed $150,000. 6
Recommendation: The Model Rules have a single section (OAR 137-047-0800)
that restricts the manner in which any procurement contract can be amended.
Modifications that local governments may want to make include the following:
Allow additional goods or services to be purchased even though the original
contract did not provide unit prices or allow for additional purchases.
Allow a contract to be extended or even renewed for a single term not to exceed
one year. It is not uncommon for a department to discover that a maintenance
services or real estate broker contract has expired or is about to expire only when it
needs a service performed. A short renewal or extension will allow services to
continue while the department prepares a new solicitation. A short extension or
renewal may also be in the best interest of the agency when pending plans for the
relocation or restructuring of a facility or function may eliminate the further need for
the contracted goods or services.
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Specify the circumstances under which the contract price for small and
intermediate procurement contracts may be increased beyond the statutory exemption
threshold.
Informal Selection of Public Improvement Contractors. Sections 132 and 133 of
Chapter 794 of the 2003 Oregon Laws allow public improvement contracts for up to
$100,000 to be awarded using informal quotes, but only if a contracting agency adopts
authorizing rules, including rules to govern how such contracts may be amended.
Sections 132 and 132 of the act have not been encoded but appear in the Oregon Revised
Statutes immediately following ORS 279C.410.
Suggestion: These laws are automatically repealed on June 30, 2009. Therefore,
it is recommended that rules for informal award of small public improvement contracts
be paired with local CRB exemptions from bidding for such contracts, so that the process
can survive the 2009 statutory sunset provision.
Remember: Pursuant to ORS 2790335 and ORS 279.835 to 279.855, public
agencies are required to check with DAS to see if a nonprofit public agency providing
employment opportunities for the disabled is able to perform the. services.
Competitive Bids for Goods and Services:
Requirements for Public Notice of Solicitations. ORS 279B.055(4) requires
contracting agencies to adopt rules for the advertisement of procurement
contracts. Unless otherwise specified in these rules, the advertisement must be
published at least seven days before the solicitation closing date.7
Electronic Publication of Advertisements and Electronic Submission and
Opening of Bids. The adoption of rules is a prerequisite to the use of electronic
procurement procedures. ORS 279B.055(4)(c). The Model Rules contain
provisions for electronic procurements of goods and services.8
Suggestion: An entity that will rely on the Model Rules should consider
adopting a rule restricting the use of the electronic advertising and bidding
protocols authorized by, the Model Rules.
Correction and Withdrawal of Bids. The adoption of rules is a prerequisite to
use of the authority to allow correction and withdrawal of bids. ORS
279B.055(7).9
Recommendation: The Model Rules for correction and withdrawal of
bids require certain formalities. For example a pre-closing modification must
contain a statement that the modification "amends and supersedes the prior
offer" and be marked as a Bid or Proposal Modification with the solicitation
number shown. These requirements must be set forth in the instructions to
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bidders/proposers; otherwise, the bidders/proposers can hardly be expected to
comply with them.
Recommendation: The Model Rules provide that in case of discrepancies
between unit. and extended prices in a bid, the unit prices will prevail. This
statement should be set forth in the instructions to bidders to prevent disputes..
Competitive Proposals for Goods and Services.
ORS 27913.060 authorize contracting agencies to award procurement contracts
using the proposal process described in the statute, but subsection (2)(h)(D) and
(6)(b)". may require rulemaking as a prerequisite to the authority to use
evaluation methods other a single ranking of submitted proposals. 10
ORS 279B.060(6)(d) also requires rules to be adopted for the issuance addenda to
add new evaluation criteria after initial proposals are opened.
Competitive Proposals for Public Improvements: A public improvement contract
awarded under the competitive proposal process described in ORS 279C.400 cannot be
amended unless the contracting agency has adopted rules for that purpose. In addition,
ORS 279C.405(2) seems to require the adoption of rules authorizing the use of multi-
tiered evaluation, competitive negotiations or any combination of the methods described
in the statute. 12
Suggestion: The criteria that "may" be evaluated using the Model Rules are listed in
great detail, and separate criteria are provided for design build contracts, CM/GC
contracts and energy savings contracts. Contracting Agencies may want to adopt rules
that leave discretion concerning criteria to the purchasing agent. Nevertheless, the
Model Rules can serve as a reference for ideas about the range of criteria: that may be
appropriate for different types of contracts.
Problem?* ORS 2790.355 requires a detailed evaluation report to be made for any
public improvement over $100,000 which is not constructed pursuant to a bid award.
Question: Is anybody doing this? There is no apparent sanction.
Sole Source Procurements. Rules are a prerequisite to the authori t to declare that
goods or services are only available from a sole source. ORS 279B.0751
Notice of intent to award. Rules must be adopted to allow a contracting agency to post
a notice of its intent to award fewer than seven days prior to the award of a contract. The
notice and its manner of posting or issuance must conform to the contracting agency's
rules. (See ORS 279B.135 for goods and services (procurement) awards and ORS
2790410(7) for public improvements awarded by proposals.)
Protests. Contracting agencies must provide a reasonable time and manner for affected
persons to protest: (A) a request for approval from the contract review board for a special
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procurement of goods or services under ORS 279B.085 (See ORS 279B.400); (B) the
terms and specifications and requirements of a solicitation (See ORS 279B.405(3) and
(6)); and (C) procurement awards (See ORS 279B.410).
Accounting System. Unless a contracting agency adopts a cost accounting system that'
substantially complies with the model cost accounting guidelines developed by the
Oregon Department of Administrative Services pursuant' to section 3, chapter 869,
Oregon Laws 1979, as determined by an accountant qualified to perform audits required
by ORS 297.210 and 297.405 to 297.555 (Municipal Audit Law), the contracting agency
may not construct a public improvement with the contracting. agency's own equipment or
personnel if the cost exceeds $5,000. (See ORS 279C.-310)
Emergency Conditions. A public improvement contract may*, be awarded- without
bidding, and the requirement for performance and payments bonds may be 'waived if
emergency conditions require prompt execution of the contract and the contracting
agency has adopted rules for the declaration of emergency conditions. (See ORS
2790335(5) and ORS 279C.380(4)).14
Negotiations when Bids Exceed Project' Budget. A contracting agency must adopt
rules to authorize negotiation with the lowest bidder when all bids exceed the project
budget for a public improvement. (See ORS 279C340) 1-'
MODEL RULES
The following are excerpts from the Model Rules
' OAR 137-046-0130(3) provides: Contracts for Personal Services designated as such by the Local
Contracting Agency's Local Contract Review Board are not subject to these Model Rules, unless the
Agency adopts OAR 137-047-0250 through OAR 137-047-0290 as the procedures the Local Contracting
Agency will use to screen and select persons to perform Contracts for Personal Services other than
Architectural, Engineering and Surveying Services and Related Services.
2 OAR 137-049-0870(2) provides:
(1) Generallv. The Contracting Agency's Solicitation Document shall not expressly or implicitly require
any product by brand name or mark, nor shall it require the product of any particular manufacturer or
seller, except pursuant to an exemption granted under ORS 279C.345(2).
(2) Equivalents. A Contracting Agency may identify products by brand names so long as the following
language: "approved equal"; "or equal"; "approved equivalent" or "equivalent," or similar language is
included in the Solicitation Document. The Contracting Agency shall determine, in its sole discretion,
whether an Offeroes alternate product is "equal" or "equivalent."
s OAR 137-049-0212(2)(b) provides: A Contracting Agency may publish by Electronic Advertisement if
the Contract Review Authority for the Contracting Agency determines Electronic Advertisement is likely
to be cost effective and, by rule or order, authorizes Electronic Advertisement.
4 OAR 137-047-0265 Small Procurements
(1) Generallv. For Procurements of Goods or Services less than or equal to $5,000 a Contracting Agency
may award a Contract as a Small Procurement pursuant to ORS 279B.065 and in accordance with rules
promulgated by the Contracting Agency pursuant to ORS 279A.070.
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(2) Amendments. A Contracting Agency may amend a Public Contract awarded as a Small Procurement
in accordance OAR 137-047-0800, but the cumulative amendments shall not increase the total Contract
Price to greater than $6,000.
S OAR 137-047-0270 Intermediate Procurements
(1) Generally. For Procurements of Goods or Services greater than $5,000 and less than or equal to
$150,000,. a Contracting Agency may Award a Contract as an Intermediate Procurement pursuant to ORS
279B.070.
(2) Written Solicitations. For Intermediate Procurements equal to or exceeding $75,000, a Contracting
Agency shall use a written solicitation to obtain Quotes, Bids or Proposals.
(3) Negotiations. A Contracting Agency may negotiate with a Proposer to clarify its Quote, Bid, or
Proposal or to effect modifications that will make the Quote, Bid, or Proposal acceptable or make the
Quote, Bid, or Proposal more Advantageous to the Contracting Agency.
(4) Amendments. A Contracting Agency may amend a Public Contract awarded as an Intermediate
Procurement in accordance with OAR 137-047-0800, but the cumulative amendments shall not increase
the total Contract Price to a sum that is greater than twenty-five percent (251/6) of the original Contract
Price.
6 OAR 137-047-0800 Contract Amendments
(1) Additional Goods or Services. A Contracting Agency may amend a Contract without additional
competition to add additional Goods or Services within the Scope. of the Solicitation Document, or if no
Solicitation Document, the Contract, or in the instance of a Special Procurement the approval of Special
Procurement subject to the following conditions:
(a) The original Contract was awarded pursuant to ORS 279B.055, 279B.060, 279B.065, 279B.070;
279B.075, 279B.085, or 279A.200 through 279A.225; and
(b) One of the following two conditions is satisfied:
(A) The additional Goods or Services are required by reason of existing or new laws, rules,
regulations or ordinances of federal, state or local agencies, that affect performance of the original
Contract; or
(B) The prices for the Goods or Services are modified only as follows:
(i) When prices for the Goods or Services are based on unit prices, unit prices that establish the
cost basis for the additional Goods or Services were provided in the Offer or original Contract and
those prices do not increase except as permitted by an escalation clause in the Contract; or, .
(ii) When prices for the Goods or Services are not based on unit prices, options that establish the
cost basis for.the additional Goods or Services were provided in the Solicitation Document, Offer,
or original Contract.
(2) Renegotiated Contract. A Contracting Agency may renegotiate the terms and conditions, including
the Contract Price, of a Contract without additional competition and amend a Contract if it is
Advantageous to the Contracting Agency subject to the following conditions:
(a) The amended Contract is within the Scope of the Solicitation Document, or if no Solicitation
Document, the Contract, or in the instance of a Special Procurement the approval of Special
Procurement;
(b) A Contracting Agency must determine that, with all things considered, the renegotiated Contract is
at least as favorable to the Contracting Agency as the original Contract; and
(c) The renegotiated Contract will not have a total term greater than allowed in the original Solicitation
Document, Contract or approval of a Special Procurement after combining the initial and extended
terms. For example, a one-year Contract, renewable each year for up to four additional years, may be
renegotiated as a two to five-year Contract, but not beyond a total of five years. Also, if multiple
Contracts with a single Contractor are restated as a single Contract, the term of the single Contract may
not have a total term greater than the longest term of any of the prior Contracts.
(d) If a Contractor offers a lower price in exchange for a change in term or condition that was
expressly rejected in the original solicitation, the amended Contract may be structured with this
changed term as an optional, but not as a mandatory Contract term.
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(e) If the Contract is the result of a Cooperative Procurement, the amended Contract may not
materially change the terms, conditions, and prices of the Original Contract.
(3) Small or Intermediate Contract. A Contracting Agency may amend a Contract Awarded as small or
intermediate Procurement pursuant to sections 1 or 2 of this rule, provided also the total increase in
Contract price does not exceed the amount set forth in OAR 137-047-0265 for small Procurements and
OAR 137-047-0270 for intermediate Procurements.
(4) Emergency Contract. A Contracting Agency may amend a Contract Awarded as an emergency
Procurement if the emergency justification for entering into the Contract still existsi and the amendment
is necessary to address the continuing emergency.
(5) Price Agreements. A Contracting Agency may amend or terminate a Price Agreement as follows:
(a) As permitted by the Price Agreement;
(b) As permitted by this rule;
(c) If the circumstances set forth in ORS 279B.140(2) exist; or
(d) As permitted by applicable law.
OAR 137-047-0300 Public Notice of Solicitation Documents
(1) Notice of Solicitation Documents: Fee. A Contracting Agency shall provide public notice of every
Solicitation Document in accordance with section (2) of this rule. The Contracting Agency may give
additional notice using any method it determines appropriate to foster and promote competition,
including:
(a) Mailing notice of the availability of the Solicitation Document to Persons that have expressed an
interest in the Contracting Agency's Procurements;
(b) Placing notice.on the Contracting Agency's Electronic Procurement System; or
(c) Placing notice on the Contracting Agency's Internet World Wide Web site.
(2) Advertisine. A Contracting Agency shall advertise every notice of a Solicitation Document as
follows:
(a) The Contracting Agency shall publish the advertisement for Offers in accordance with the
requirements of ORS 279B.055(4) and 279B.060(4); or
(b) A Contracting Agency may publish the advertisement for Offers on the Contracting Agency's
Electronic Procurement System instead of publishing notice in a newspaper of general circulation as
required by ORS 279B.055(4)(b) if, by rule or order, .the Contracting Agency's Contract Review
Authority has authorized the Contracting Agency to publish notice of Solicitation Documents on the
Contracting Agency's Electronic Procurement System.
(3) Content of Advertisement. All advertisements for Offers shall set forth:
(a) Where, when, how, and for how long the Solicitation Document may be obtained;
(b) A general description of the Goods or Services to be acquired;
(c) The interval between the first date of notice of the Solicitation Document given in accordance with
subsection 2(a) or (b) above and Closing, which shall not be less'than fourteen (14) Days for an
Invitation to Bid and thirty (30) Days for a Request for Proposals, unless the Contracting Agency
determines that a shorter interval is in the public's interest, and that a shorter. interval will not
substantially affect competition. However, in no event shall the interval between the first date of
notice of the Solicitation Document given in accordance with subsection 2(a) or (b) above and Closing
be less then seven (7) Days as set forth in ORS 279B.055(4)(f). The Contracting Agency shall
document the specific reasons for the shorter public notice period in the Procurement file;
(d) The date that Persons must file applications for prequalification if prequalification is a requirement
and the class of Goods or Services is one for which Persons must be prequalified;
(e) The office where Contract terms, conditions and Specifications may be reviewed;
(f) The name, title and address of the individual authorized by the Contracting Agency to receive
Offers;
(g) The scheduled Opening; and
(h) Any other information the Contracting Agency deems appropriate.
(4) Posting Advertisement for Offers. The Contracting Agency shall post a copy of each advertisement
for Offers at the principal business office of the Contracting Agency. A Proposer may obtain a copy of
the advertisement for Offers upon request.
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(5) Minority: Women Emer ig ng Small Business. In accordance with ORS 200.035, a State Contracting
Agency shall provide timely notice of all Procurements to the Advocate for Minority, Women and
Emerging Small Business if the estimated Contract Price exceeds $5,000.
(6) Fees. The Contracting Agency may charge a fee or require a deposit for the Solicitation Document.
(7) Notice of Addenda. The Contracting Agency shall provide potential Offerors notice of any Addenda
to a Solicitation Document in accordance with OAR 137-047-0430.
s OAR 137-047-0330 provides the following rules for electronic procurement:
(1) Electronic Procurement Authorized.
(a) A Contracting Agency may conduct all phases of a Procurement, including without limitation the
posting of Electronic Advertisements and the receipt of Electronic Offers, by electronic methods if and
to the extent the Contracting Agency specifies in a Solicitation Document; a request for quotes, or any
other Written instructions on how to participate in the Procurement.
(b) The Contracting Agency shall open an Electronic Offer in accordance with electronic security
measures in effect at the Contracting Agency at the time of its receipt of the Electronic Offer. Unless
the Contracting Agency provides procedures for the secure receipt of Electronic Offers, the Person
submitting the Electronic Offer assumes the risk of premature disclosure due to submission in unsealed
form.
(c) The Contracting Agency's use of electronic Signatures shall be consistent with applicable statutes
and rules. A Contracting Agency may limit the use of electronic methods of conducting a Procurement
as Advantageous to the Contracting Agency.
(d) If the Contracting Agency determines that Bid or Proposal security is. or will be required, the
Contracting Agency should not authorize Electronic Offers unless the Contracting Agency has another
method for receipt of such security.
(2) Rules Governing Electronic Procurements. The Contracting Agency shall conduct all portions of an
electronic Procurement in accordance with these division 47 rules, unless otherwise set forth in this rule.
(3) Preliminary Matters. As a condition of participation in an electronic Procurement the Contracting
Agency may require potential Contractors to register with the Contracting Agency before the date and
time on which the Contracting Agency will first accept Offers, to agree to the terms;. conditions, or other
requirements of a Solicitation Document, or to agree to terms and conditions governing the Procurement,
such as procedures that the Contracting Agency may use to attribute, authenticate or verify the accuracy
of an Electronic Offer, or the actions that constitute an electronic Signature.
(4) Offer Process. A Contracting Agency may specify that Persons must submit an Electronic Offer by a
particular date and time, or that Persons may submit multiple Electronic Offers during a period of time
established in the Electronic Advertisement. When the Contracting Agency specifies that Persons may
submit multiple Electronic Offers during a specified period of time, the Contracting Agency must
designate a time and date on which Persons may begin to submit Electronic Offers, and a time and date
after which Persons may no longer submit Electronic Offers. The date and time after which Persons may
no longer submit Electronic Offers need not be specified by a particular date and time, but. may be
specified by a description of the conditions that, when they occur, will establish the date and time after
which Persons may no longer submit Electronic Offers. When the Contracting Agency will accept
Electronic Offers for a period of time, then at the designated date and time that the*Contracting Agency
will first receive Electronic Offers, the Contracting Agency must begin to accept real time Electronic
Offers on the Contracting Agency's Electronic Procurement System, and shall continue to accept
Electronic Offers in accordance with subsection 5(b) of this rule until the.date and time specified by the
Contracting Agency, after which the Contracting Agency will no longer accept Electronic Offers.
(5) Receipt of Electronic Offers.
(a) When a Contracting Agency conducts an electronic Procurement that provides that all Electronic
Offers must be submitted by a particular date and time, the Contracting Agency shall receive the
Electronic Offers in accordance with these division 47 rules.
(b) When the Contracting Agency specifies that Persons may submit multiple Offers during a period of
time, the Contracting Agency shall accept Electronic Offers, and Persons may submit Electronic
Offers, in accordance with the following:
(A) Following receipt of the first Electronic Offer after the day and time the Contracting Agency
fast receives Electronic Offers the Contracting Agency shall post on the Contracting Agency's
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Electronic Procurement System, and updated on a real time basis, the lowest Electronic Offer price
or the highest ranking Electronic Offer. At any time before the date and time after which the
Contracting Agency will no longer receive Electronic Offers, a Person may revise its Electronic
Offer, except that a Person may not lower its price unless that price is below the then lowest
Electronic Qffer.
(B) A Person may not. increase the price set forth in an Electronic Offer after the day and time that
the Contracting Agency first accepts Electronic Offers.
(C) A Person may withdraw an Electronic Offer only in compliance with these division 47 rules. If a
Person withdraws an Electronic Offer, it may not later submit an Electronic Offer at a price higher
than that set forth in the withdrawn Electronic Offer.
(6) Failure of the E-Procurement. System. In the event of a failure of the Contracting Agency's Electronic
Procurement System that interferes with the ability of Persons to submit Electronic Offers, protest or to
otherwise participate in the Procurement, the Contracting Agency may cancel the Procurement in
accordance with OAR 137-047-0660, or may extend the date and time for receipt of Electronic Offers by
providing notice of the extension immediately . after the Electronic Procurement System becomes
available..
9 OAR 137-047-0440 Pre-Closinp`Modification or Withdrawal.of Offers
(1) Modifications. An Offeror may modify its Offer in Writing prior to the Closing. An Offeror shall
prepare and submit any modification to' its Offer to the Contracting Agency in accordance with OAR
137-047-0400 and 137-047-0410, unless otherwise specified in the Solicitation Document. Any
modification must include the Offeror's statement that the modification amends and supersedes the' prior
Offer. The Offeror shall mark the submitted modification as follows: (a) Bid (or Proposal) Modification;
and (b) Solicitation Document Number (or other identification as specified in the Solicitation Document).
(2) Withdrawals.
(a) An Offeror may withdraw its Offer by Written notice submitted on the Offeror's letterhead, Signed
by an authorized representative of the Offeror, delivered to the individual and location specified in the
Solicitation Document (or the place of Closing if nw location is specified), and received by the
Contracting Agency prior to the Closing. The Offeror or authorized representative of the Offeror may
also withdraw its Offer in person prior to-the Closing, upon presentation of appropriate identification
and evidence of authority satisfactory to the Contracting Agency.
(b) The Contracting Agency may release an unopened Offer withdrawn under subsection 2(a) of this
rule to the Offeror or its authorized representative, after voiding any date and time stamp mark.
(c) The Offeror shall mark the Written request to withdraw an Offer as follows:
(A) Bid (or Proposal) Withdrawal; and
(B) Solicitation Document Number (or Other Identification as specified in the Solicitation
Document).
(3) Documentation. The Contracting Agency shall include all documents relating to the modification or
withdrawal of Offers in the appropriate Procurement file.
OAR 137-047-0470 Mistakes
(1) Generally. To protect the integrity of the competitive Procurement process and to assure fair
treatment of Offerors, a Contracting Agency should carefully consider whether' to permit waiver,
correction or withdrawal of Offers for certain mistakes.
(2) Contracting Agency Treatment of Mistakes. A Contracting Agency shall not allow an Offeror to
correct or withdraw an Offer for an error in judgment. If the Contracting Agency discovers certain
mistakes, in an Offer after Opening, but before Award of the Contract, the Contracting Agency may take
the following action:
(a) A Contracting Agency may waive, or permit an Offeror to correct, a minor informality. A minor
informality is a matter of form rather than substance that is evident on the face of the Offer, or an
insignificant mistake that can be waived or corrected without prejudice to other Offerors. Examples of
minor informalities include an Offeror's failure to:
(A) Return the correct number of Signed Offers or the correct number of other documents required
by the Solicitation Document;
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(B) Sign the Offer in the designated block, provided a Signature appears elsewhere in the `Offer,
evidencing an intent to be bound; and
(C) Acknowledge receipt of an Addendum to the Solicitation Document, provided that it is clear on
the face of the Offer that the Offeror received the Addendum and intended to be bound by its terms;
or the Addendum involved did not affect price, quality or delivery.
(b) A Contracting Agency may correct a clerical error if the error is evident on the face of the Offer or
other documents submitted with the Offer, and the Offeror confirms the Contracting Agency's
correction in Writing. A clerical error is an Offeror's error in transcribing its Offer. Examples include
typographical mistakes, errors in extending unit prices, transposition errors, arithmetical errors,
instances in which the intended correct unit or amount is evident by simple arithmetic calculations (for
example a missing unit price may be established by dividing the total price for the units by the quantity
of units for that item or a missing, or incorrect. total price for an item may be established by
multiplying the unit price by the quantity when those figures are available in the Offer). In the event of
a discrepancy, unit prices shall prevail over extended prices.
(c) A Contracting Agency may permit an Offeror to withdraw an Offer based on one or more clerical
errors in'the Offer only if the Offeror shows with objective proof and by clear and convincing
evidence:
(A) The nature of the error;
(B) That the error is not a minor informality under this subsection or an error in judgment;
(C) That the error cannot be corrected or waived under subsection (b) of this section;
(D) That the Offeror acted in good faith in submitting an Offer that contained the claimed error and
in claiming that the alleged error in the Offer exists;
(E) That the Offeror acted without gross negligence in submitting an Offer that contained a claimed
error;
(F) That the Offeror will suffer substantial detriment if the Contracting Agency does not grant the
Offeror permission to withdraw the Offer,
(G) That the Contracting Agency's or the public's status has not changed so significantly that relief
from the forfeiture will work a substantial hardship on the Contracting Agency or the public it
represents; and
(H) That the Offeror promptly gave notice of the claimed error to the Contracting Agency.
(d) The criteria in subsection (2)(c) of this rule shall determine whether a Contracting Agency will
permit an Offeror to withdraw its Offer after Closing: These criteria also shall apply to the question of
whether a Contracting Agency will permit an Offeror to withdraw its Offer without forfeiture of its Bid
bond (or other Bid or Proposal security), or without liability to the Contracting Agency based on the
difference between the amount of the Offeror's Offer and the amount of the Contract actually awarded
by the Contracting Agency, whether by Award to the next lowest Responsive and Responsible Bidder
or the most Advantageous Responsive and Responsible Proposer, or by resort to a new solicitation.
(3) Rejection for Mistakes. The Contracting Agency shall reject any Offer in which a mistake is:evident
on the face of the Offer and the intended correct Offer is not evident or cannot be substantiated from
documents submitted with the Offer.
(4) Identification of Mistakes after Award. The procedures and criteria set forth above are Offeror's only
opportunity to correct mistakes or withdraw Offers because of a mistake. Following Award, an Offeror is
bound by its Offer, and may withdraw its Offer or rescind a Contract entered into pursuant to this
division 47 only to the extent permitted by applicable law.
10 137-047-0260 Competitive Sealed Proposals
(1) Generally. A Contracting Agency may procure Goods or Services by competitive sealed Proposals as
set forth in ORS 279B.060. A Request for Proposal is used to initiate a competitive sealed Proposal
solicitation and shall contain the information required by ORS 279B.060(2) and by section 2 of this rule.
The Contracting Agency shall provide public notice of the competitive sealed Proposal as set forth in
OAR 137-047-0300.
(2) Request for Proposal. In addition to the provisions required by ORS 279B.060(2), the Request for
Proposal shall include the following:
(a) General Information.
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(A) Notice of any pre-Offer conference as follows:
(i) The time, date and location of anypre-Offer conference; and
(ii) Whether attendance at the conference will be mandatory or voluntary; and
(iii) A provision that provides that statements made by the Contracting Agency's representatives at
the conference are not binding upon the Contracting Agency unless confirmed by Written
Addendum.
(B) The form and instructions for submission of Proposals and any other special information, e.g.,
whether Proposals may be submitted by electronic means (See OAR 137-047-0330 for required
provisions of electronic Proposals);
(C) The time, date and place of Opening;
(D) The office where the Solicitation Document may be reviewed;
(E) Contractor's certification of nondiscrimination in obtaining required subcontractors in
accordance with ORS 279A.110(4). (See OAR 137-046-0210(3)); and
(F) How the Contracting Agency will notify Proposers of Addenda and how the Contracting Agency
will make Addenda available. (See OAR 137-047-0430).
(b) Contracting_Aggncy Need. The character of the Goods or Services the Contracting Agency is
purchasing including, if applicable, a description -of the acquisition, Specifications, delivery or
performance schedule, inspection and acceptance requirements.
(c) Proposal and Evaluation Process.
(A) The anticipated solicitation schedule, deadlines, protest process, and evaluation process;
(B) The Contracting Agency shall set forth selection criteria in the Solicitation Document in
accordance with the requirements of ORS 279B.060(2)(h)(E). Evaluation.criteria need not be precise
predictors of actual future costs and performance, but to the extent possible, such factors shall be
reasonable estimates of actual future costs based on information available to the Contracting
Agency; and
(C) If the Contracting Agency intends to Award Contracts to more than one Proposer pursuant to
OAR 137-047-0600(4)(d), the Contracting Agency must identify in the Solicitation Document the
manner in which it will determine the number of Contracts it will Award.
(d) Applicable Preferences described in ORS 279A.125(2) and 282.210.
(e) For Contracting Agencies subject to ORS 305.385, Contractor's certification of compliance with the
Oregon tax laws in accordance with ORS 305.385.
(f) All Contract terms and conditions, including a provision indicating whether the Contractor can assign
the Contract, delegate its duties, or subcontract the Goods or Services without prior written approval
from the Contracting Agency.
137-047-0261 Procedures for ComRetitive Range Multi-tiered and Multi-step Proposals
(1) Generally. A Contracting Agency may procure Goods or Services employing any.combination of the
methods of Contractor selection as set forth in ORS 279B.060(6)(b). In addition to the procedures set
forth in OAR 137-047-0300 through OAR 137-047-0490 for methods of Contractor selection that call for
the establishment of a Competitive Range or include discussions or negotiations, a Contracting Agency
shall employ the procedures set forth in this rule for Competitive Range, multi-tiered and multi-step
Proposals.
(2) Solicitation Protest. Prior to the initial Closing, a Contracting Agency shall provide an opportunity to
protest the solicitation under ORS 279B.405 and OAR 137-047-0730.
(3) Addenda Protest. A Contracting Agency may provide an opportunity to protest, pursuant OAR 137-
047-0430, any Addenda issued pursuant to ORS 279B.060(6)(d).
(4) Exclusion Protest. A Contracting Agency may provide before the notice of an intent to Award an
opportunity for a Proposer to protest exclusion from the Competitive Range or from subsequent phases of
multi-tiered or multi-step sealed Proposals as set forth in OAR 137-047-0720.
(5) Administrative Remedy. Proposers may submit a protest to any Addenda or to any action by the
Contracting Agency that has the effect of excluding the Proposer from subsequent phases of a multiple-
tiered or multi-step Request for Proposals to the extent such protests are provided for in the Solicitation
Document. Failure to so protest shall be considered the Proposer's failure to pursue an administrative
remedy made available to the Proposer by the Contracting Agency.
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(6) Award Protest. A Contracting Agency shall provide an opportunity to protest its intent to Award a
Contract pursuant to ORS 27913.410 and OAR 137-047-0740. An Affected Proposer may protest, for any
of the bases set forth in OAR 137-047-0720(2), its exclusion from the Competitive Range or any phase
of a multi-tiered or multi-step sealed Proposal, or an Addendum issued following initial Closing, if the
Contracting Agency did not previously provide Proposers the opportunity to protest such exclusion or
Addendum.
OAR 137-047-0262 Competitive Range. Discussions and Negotiations
(1) Competitive Range. When a Contracting Agency's solicitation process conducted pursuant to ORS
279B.060(6)(b) calls for the Contracting Agency to establish a Competitive Range at any stage in the
Procurement process, it shall do so as follows:
(a) Determining Competitive Range.
(A) The Contracting Agency shall establish a Competitive Range after evaluating all Responsive
Proposals in accordance with the evaluation criteria set forth in the Request for Proposals. After
evaluation of all Proposals in accordance with the criteria set forth in the Request for Proposals, the
Contracting Agency shall determine and rank the Proposers in the Competitive Range.
(B) The Contracting Agency may increase the number of Proposers in the Competitive Range if the
Contracting Agency's evaluation of Proposals establishes a natural break in the scores of Proposers
indicating a number of Proposers greater than the initial Competitive Range are closely competitive,
or have a reasonable chance of being determined the most Advantageous Proposer. The Contracting
Agency may decrease the number of Proposers in the initial Competitive Range only if the excluded
Proposers have no reasonable chance to be the most advantageous Proposer.
(b) Protesting Competitive Range. The Contracting Agency shall provide Written notice to all
Proposers identifying Proposers in the Competitive Range. A Contracting Agency may provide an
opportunity for Proposers excluded from the Competitive Range to protest the Contracting Agency's
evaluation and determination of the Competitive Range in accordance with OAR 137-030-0720.
(c) Intent to Award: Discuss or Negotiate. After determination of the Competitive Range and after any
protest period provided in accordance with subsection (1)(b) expires, or after the Contracting Agency
has provided a final response to any protest, whichever date.is later, the Contracting Agency may
either:
(A) Provide Written notice to all Proposers in the Competitive Range of its intent to Award the
Contract to the highest-ranked Proposer in the Competitive Range.
(i) An unsuccessful Proposer may protest the Contracting Agency's intent to Award in accordance
with OAR 137-047-0740 and ORS 27913.410.
(ii) After the protest period provided in accordance with OAR 137-047-0740 expires, or after the
Contracting Agency has provided a final response to any protest, whichever date is later, the
Contracting Agency shall commence negotiations in accordance with section (3) of this rule with
Proposers in the Competitive Range; or
(B) Engage in discussions with Proposers in the Competitive Range and accept revised Proposals
from them as set forth in section (2) of this rule and following such discussions and receipt and
evaluation of revised Proposals, conduct negotiations as set forth in section (3) of this rule with the
Proposers in the Competitive Range.
(2) Discussions: Revised. Proposals. If the Contracting Agency chooses to enter into discussions with and
receive best and final Offers (See 137-047-0262(4)), the Contracting Agency shall proceed as follows:
(a) Initiating Discussions. The Contracting Agency shall initiate oral or written discussions with all
Proposers submitting Responsive Proposals or all Proposers in the Competitive Range (collectively
"eligible Proposers") regarding their Proposals with respect to the provisions of the RFP that the
Contracting Agency identified in the RFP as the subject of discussions. The Contracting Agency may
conduct discussions for the following purposes:
(A) Informing eligible Proposers of deficiencies in their initial Proposals;
(B) Notifying eligible Proposers of parts of their Proposals for which the Contracting Agency would
like additional information; or
(C) Otherwise allowing eligible Proposers to develop revised Proposals that will allow the
Contracting Agency to obtain the best Proposal based on the requirements and evaluation criteria set
forth in the Request for Proposals.
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(b) Conducting Discussions. The Contracting Agency may conduct discussions with each eligible
Proposer necessary to fulfill the purposes of this section 2, but need not conduct the same amount of
discussions with each eligible Proposer. The Contracting Agency may terminate discussions with any
eligible Proposer at any time. However, the Contracting Agency shall offer all eligible Proposers the
same opportunity to discuss their Proposals with the Contracting Agency before the Contracting
Agency notifies eligible Proposers of the date and time pursuant to section 4 that best and final
Proposals will be due.
(A) In conducting discussions, the Contracting Agency:
(i) Shall treat all eligible Proposers fairly and shall not favor any eligible Proposer over another;
(ii) Shall disclose other eligible Proposer's Proposals or discussions only in accordance with
279B.060(6)(a)(B) or (C);
(iii) May adjust the evaluation of a Proposal as a result of a discussion under this section. The
conditions, terms, or price of the Proposal may be altered or otherwise changed during the course
of the discussions provided the changes are within the scope of the Request for Proposals.
(B) At any time during the time allowed for discussions, the Contracting Agency may:
(i) Continue discussions with a particular eligible Proposer;
(ii) Terminate discussions with a particular eligible Proposer and continue discussions with other
eligible Proposers; or
(iii) Conclude discussions with all remaining eligible Proposers and provide notice pursuant to
section 4 of this rule to the eligible Proposers requesting best and final Offers.
(3) Negotiations.
(a) Initiating _Negotiations. The Contracting Agency may commence serial negotiations with the
highest-ranked eligible Proposers or commence simultaneous negotiations with all eligible Proposers
as follows:
(A) After initial determination of which Proposals are Responsive; or
(B) After initial determination of the Competitive Range in accordance with section (1) of this rule;
or
(C) After conclusion of discussions with all eligible Proposers and evaluation of revised Proposals
(See section (2) of this rule).
(b) Conducting Negotiations.
(A) Scope. The Contracting Agency may negotiate:
(i) The statement of Work;
(ii) The Contract Price as it is affected by negotiating the statement of Work; and
(iii) Any other terms and conditions reasonably related to those expressly authorized for
negotiation in the Request for Proposals or Addenda thereto. Accordingly, Proposers shall not
submit, and the Contracting Agency shall not accept, for negotiation any alternative terms and
conditions that are not reasonably related to those expressly authorized for negotiation in the
Request for Proposals or Addenda thereto.
(B) Terminating Negotiation. At any time during discussions or negotiations that the Contracting
Agency conducts in accordance with sections (2) or (3) of this rule, the Contracting Agency may
terminate discussions or negotiations with the highest-ranked Proposer, or the Proposer with whom it
is currently discussing or negotiating, if the Contracting Agency reasonably believes that:
(i) The Proposer is not discussing or negotiating in good faith; or
(ii) Further discussions or negotiations with the Proposer will not result in the parties agreeing to
the terms and conditions of a final Contract in a timely manner.
(c) Continuing Serial Negotiations. If the Contracting Agency is conducting serial negotiations and the
Contracting.Agency terminates negotiations with a Proposer in accordance with paragraph 3(b)(B) of
this rule, the Contracting Agency may then commence negotiations with the next highest scoring
Proposer in the Competitive Range, and continue the process described in section (3) of this rule until
the Contracting Agency has either:
(A) Determined to Award the Contract to the Proposer with whom it is currently discussing or
negotiating; or
(B) Completed one round of discussions or negotiations with all Proposers in the Competitive
Range, unless the Contracting Agency provided for more than one round of discussions or
Local Contracting Rules - Page 17
negotiations in the Request for Proposals, in which case the Contracting Agency has completed all
rounds of discussions or negotiations.
(d) Competitive Simultaneous Negotiations. If the Contracting Agency chooses to conduct competitive
negotiations, the Contracting Agency may negotiate simultaneously with competing Proposers. The
Contracting Agency:
(A) Shall treat all Proposers fairly and shall not favor any Proposer over another;
(B) May disclose other Proposer's Proposals or the substance of negotiations with other Proposers
only if the Contracting Agency notifies all of the Proposers with whom the Contracting Agency will
engage in negotiations of the Contracting Agency's intent to disclose before engaging in
negotiations with any Proposer.
(e) Any oral modification of a Proposal resulting from negotiations under this section (3) shall be
reduced to Writing by the Proposer.
(4) Best and Final Offers. If best and final Offers are required, a Contracting Agency shall establish a
common date and time by which Proposers must submit best and final Offers. Best and final Offers shall
be submitted only once; provided, however, the Contracting Agency may make a written determination
that it is in the Contracting Agency's best interest to conduct additional discussions, negotiations or
change the Contracting Agency's requirements and require another submission of best and final Offers.
Otherwise, no discussion of or changes in the best and final Offers shall be allowed prior to Award.
Proposers shall also be informed if they do not submit notice of withdrawal or another best and final
Offer, their immediately previous Offer will be construed as their best the final Offer. The Contracting
Agency shall evaluate Offers as modified by the best and final Offer. The Contracting Agency shall
conduct evaluations conducted as described in 137-047-0600. The Contracting Agency shall not modify
evaluation factors or their-relative importance after the date and time that best and final Offers are due.
OAR 137-047-0430(3)(b) provides: Notwithstanding subsection 3(a) of this rule, an Addendum that
modifies the evaluation criteria, selection process or procedure for any tier of competition under a multi-
step sealed Bid or a multi-tiered or multi-step sealed Proposal issued in accordance with ORS
279B.060(6)(d) and OAR 137-047-0261 through 137-047-0263 must be issued no fewer than five (5) Days
before the beginning of that tier or step of competition, unless the Contracting Agency determines that a
shorter period is sufficient to allow Offerors to prepare for that tier or step of competition. The Contracting
Agency shall document the factors it considered in making that determination, which may include, without
limitation, the scope of the changes to the Solicitation Document, the location of the remaining eligible
Proposers, or whether shortening the period between issuing an Addendum and the beginning of the next
tier or step of competition favors or disfavors any particular Proposer or Proposers. .
12OAR 137-049-0640 Competitive Proposals: Procedure Contracting Agencies may utilize the following
RFP process for Public Improvement Contracts, allowing flexibility in both Proposal evaluation and
Contract negotiation, only in accordance with ORS 279C.400 to 279C.410 and OAR 137-049-0600 to 137-
049-690, unless other applicable statutes control a Contracting Agency's use of competitive Proposals for
Public Improvement Contracts. Also see the subdivision of rules in this division entitled Formal
Procurement Rules, OAR 137-049-0200 to 137-049-0480, and RFP related rules under the Alternative
Contracting Methods subdivision at OAR 137-049-0640 to 137-049-0660. For ESPCs (Energy Savings
Performance Contracts), the following RFP process shall be utilized if a Contracting Agency desires the
Procurement process to be exempt from the competitive Bidding requirements of ORS 279C.335. The RFP
process for the Alternative Contracting Methods identified in OAR 137-049-0600 to 137-049-0690
includes the following steps:
(1) Proposal Evaluation. Factors in addition to price may be considered in the selection process, but only
as set forth in the RFP. For ESPC Proposal evaluations, the Contracting Agency may provide in the RFP
that qualifications-based evaluation factors will outweigh the Contracting Agency's consideration of
price-related factors, due to the fact that prices for the major components of the Work to be performed
during the ESPC process contemplated by the RFP will likely not be determinable at the time of Proposal
evaluation. Proposal evaluation shall be as objective as possible. Evaluation factors need not be precise
predictors of future costs and performance, but to the extent possible such evaluation factors shall:
(a) Be reasonable estimates based on information available to the Contracting Agency;
Local Contracting Rules - Page 18
(b) Treat all Proposals equitably; and
(c) Recognize that public policy requires that Public Improvements be constructed at the least overall
cost to the Contracting Agency. See ORS 279C.305.
(2) Evaluation Factors.
(a) In basic negotiated construction contracting, where the only reason for an RFP is to consider factors
other than price, those factors may consist of firm and personnel experience on similar projects,
adequacy of equipment and physical plant, sources of supply, availability of key personnel, financial
capacity, past performance, safety records, project understanding, proposed methods of construction,
proposed milestone dates, references, service, and related matters that affect cost or quality.
(b) In CMIGC contracting, in addition to (a) above, those factors may also include the ability to
respond to the technical complexity or unique character of the project, analyze and propose solutions
or approaches to complex project problems, coordination of multiple disciplines, the time required to
commence and complete the improvement, and related matters that affect cost or quality.
(c) In Design-Build contracting, in addition to (a) and (b) above, those factors may also include design
professional qualifications,. specialized experience, preliminary design submittals, technical merit,
design-builder team experience and related matters that affect cost or quality.
(d) In ESPC contracting, in addition to the factors set forth in subsections (a), (b) and (c) above, those
factors may also include sample Technical Energy Audits from similar projects, sample M & V
reports, financial statements and related information of the ESCO for a time period established in the
RFP, financial statements and related information of joint venturers comprising the ESCO, the ESCO's
capabilities and experience in performing energy baseline studies for facilities (independently or in
cooperation with an independent third-party energy baseline consultant), past performance of the
ESCO in meeting energy guarantee Contract levels, the specific Person that will provide the Energy
Savings Guarantee to be offered by the ESCO, the ESCO's management plan for the project,
information on the specific methods, techniques and equipment that the ESCO will use in the
performance of the Work under the ESPC, the ESCO's team members and consultants to be assigned to
the project, the ESCO's experience in the Energy Savings Performance Contracting field, the ESCO's
experience acting as the prime contractor on previous ESPC projects (as.opposed to a sub-contractor or
consultant to a prime ESCO), the ESCO's vendor and product neutrality related to the development of
ECMs, the ESCO's project history related to removal from an ESPC project or the inability or
unwillingness of the ESCO to complete an ESPC project, the ESCO's M & V capabilities and
experience (independently or in cooperation with an independent third-party M & V consultant), the
ESCO's ability to explain the unique risks associated with ESPC projects and the assignment of risk in
the particular project between the Contracting Agency and the ESCO, the ESCO's equipment
performance guarantee policies and procedures, the ESCO's energy savings and cost savings guarantee
policies and procedures, the ESCO's project cost guarantee policies and procedures, the ESCO's
pricing methodologies, the price that the ESCO will charge for the Technical Energy Audit phase of
the Work and the ESCO's fee structure for all phases of the ESPC.
(3) Contract Negotiations. Contract terms may be negotiated to the extent allowed by the RFP and OAR
137-049-0600 to 137-049-0690, provided that the general- Work scope remains the same and that the
field of competition does not change as a result of material changes to the requirements stated in the
Solicitation Document. See OAR 137-049-0650. Terms that may be negotiated consist of details of
Contract performance, methods of construction, timing, assignment of risk in specified areas, fee, and
other matters that affect cost or quality. In ESPC contracting, terms that may be negotiated also include
the scope of preliminary design of ECMs to be evaluated by the parties during the Technical Energy
Audit phase of the Work, the scope of services to be performed by the ESCO during the Project
Development Plan phase of the Work, the detailed provisions of the Energy Savings Guarantee to be
provided by the ESCO and scope of Work, methodologies and compensation terms and conditions during
the design and construction phase and M & V phase of the Work, consistent with the requirements of
OAR 137-049-0680 below.
OAR 137-049-0650 Requests for Proposals ME)
(1) Generally. The use of competitive proposals must be specially authorized for a Public Improvement
Contract under the competitive bidding requirement of ORS 279C.335 (1), OAR 137-049-0130 and OAR
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137-049-0600 to 137-049-0690. Also see ORS 279C.400 to 279C.410 for statutory requirements
regarding competitive Proposals, and OAR 137-049-0640 regarding competitive Proposal procedures.
(2) Solicitation Documents. In addition to the Solicitation Document requirements of OAR 137-049-
0200, this rule applies to the requirements for Requests for Proposals. RFP Solicitation Documents shall
conform to the following standards:
(a) The Contracting Agency shall set forth selection criteria in the Solicitation Document. Examples of
evaluation criteria include price or cost, quality of a product or service, past performance,
management, capability, personnel qualification, prior experience, compatibility, reliability, operating
efficiency, expansion potential, experience of key personnel, adequacy of equipment or physical plant,
financial wherewithal, sources of supply, references and warranty provisions. See OAR 137-049-0640.
Evaluation factors need not be precise predictors of actual future costs and performance, but to the
extent possible, such factors shall be reasonable estimates based on information available to the
Contracting Agency;
(b) When the Contracting Agency is willing to negotiate terms and conditions of the Contract or allow
submission of revised Proposals following discussions, the Contracting Agency must identify the
specific terms and conditions in or provisions of the Solicitation Document that are subject to
negotiation or discussion and authorize Offerors to propose certain alternative terms and conditions in
lieu of the terms and conditions the Contracting Agency has identified as authorized for negotiation.
The Contracting Agency must describe the evaluation and discussion or negotiation process, including
how the Contracting Agency will establish the Competitive Range;
(c) When the Contracting Agency intends to Award Contracts to more than one Proposer, the
Contracting Agency must identify in the Solicitation Document the manner in which it will. determine
the number of Contracts it will Award. The Contracting Agency shall also include the criteria it will
use to determine how the Contracting Agency will endeavor to achieve optimal value, utility and
substantial fairness when selecting a particular Contractor to provide goods or services from those
Contractors Awarded Contracts.
(3) Evaluation of Proposals.
(a) Evaluation. The Contracting Agency shall evaluate Proposals only in accordance with criteria set
forth-in the REP and applicable law. The Contracting Agency shall evaluate Proposals to determine the
Responsible Proposer or Proposers submitting the best Responsive Proposal or Proposals.
(A) Clarifications. In evaluating Proposals, a Contracting Agency may seek information from a
Proposer to clarify the Proposer's Proposal. A Proposer must submit Written and Signed
clarifications and such clarifications shall become part of the Proposer's Proposal.
(B) Limited Negotiation. If the Contracting Agency did not permit negotiation in its Request for
Proposals, the Contracting Agency may, nonetheless, negotiate with the highest-ranked Proposer,
but may then only negotiate the:
(i) Statement of Work; and
(ii) Contract Price as it is affected by negotiating the statement of Work.
(iii) The process for discussions or negotiations that is outlined and explained in subsections (5)(b)
and (6) of this rule does not apply to this limited negotiation.
(b) Discussions, Negotiations. If the Contracting Agency permitted discussions or negotiations in the
Request for Proposals, the Contracting Agency shall evaluate Proposals and establish the Competitive
Range, and may then conduct discussions and negotiations in accordance with this rule.
(A) If the Solicitation Document provided that discussions or negotiations may occur at Contracting
Agency's discretion, the Contracting Agency may forego discussions and negotiations and evaluate
all Proposals in accordance with this rule.
(B) If the Contracting Agency proceeds with discussions or negotiations, the Contracting Agency
shall establish a negotiation team tailored for the acquisition. The Contracting Agency's team may
include legal, technical and negotiating personnel.
(c) Cancellation. Nothing in this rule shall restrict or prohibit the Contracting Agency from canceling
the Solicitation at any time.
(4) Competitive Range: Protest: Award.
(a) Determining Competitive Range.
(A) If the Contracting Agency does not cancel the Solicitation, after the Opening the Contracting
Agency will evaluate all Proposals in accordance with the evaluation criteria set forth in the Request
Local Contracting Rules - Page 20
for Proposals. After evaluation of all Proposals in accordance with the criteria set forth in the
Request for Proposals, the Contracting Agency will determine and rank the Proposers in the
Competitive. Range.
(B) The Contracting Agency may increase the number of Proposers in the Competitive. Range if the
Contracting Agency's evaluation of Proposals establishes a natural break in the scores of Proposers
indicating a number of Proposers greater than the initial Competitive Range are closely competitive,
or have a reasonable chance of being determined the best Proposer after the Contracting, Agency's
evaluation of revised Proposals submitted in accordance with the process described in this rule.
(b) Protesting Competitive Range. The Contracting Agency shall provide Written notice to all
Proposers identifying Proposers in the Competitive Range. A Proposer that is not within the
Competitive Range may protest the Contracting Agency's evaluation and determination of the
Competitive Range in accordance with OAR 137-049-0450.
(c) Intent to Award: Discuss or Negotiate. After the protest period provided in accordance with these
rules expires, or after the Contracting Agency has provided a final response to any protest, whichever
date is later, the Contracting Agency may either:
(A) Provide Written notice to all Proposers in the Competitive Range of its intent to Award the
Contract to the highest-ranked Proposer in.the Competitive Range.
(i) An unsuccessful Proposer may protest the Contracting Agency's intent to Award in accordance
with OAR 137-049-0450.
(ii) After the protest period provided in accordance with OAR 137-049-0450 expires, or after the
Contracting Agency has provided a final response to any protest, whichever date is later, the
Contracting Agency shall commence final Contract negotiations with the highest-ranked Proposer
in the Competitive Range; or
(B) Engage in discussions with Proposers in the Competitive Range and accept revised Proposals
from them, and, following such discussions and receipt and evaluation of revised Proposals, conduct
negotiations with the Proposers in the Competitive Range.
(5) Discussions; Revised Proposals. If the Contracting Agency chooses to enter into discussions with and
receive revised Proposals from the Proposers in the Competitive Range, the Contracting Agency shall
proceed as follows:
(a) Initiating Discussions. The Contracting Agency shall initiate oral or Written discussions with all of
the Proposers in the Competitive Range regarding their Proposals with respect to the provisions of the
RFP that the Contracting Agency identified in the RFP as the subject of discussions. The Contracting
Agency may conduct discussions for the following purposes:
(A) Informing Proposers of deficiencies in their initial Proposals;
(B) Notifying Proposers of parts of their Proposals for which the Contracting Agency would like
additional information; and
(C) Otherwise allowing Proposers to develop revised Proposals that will allow the Contracting
Agency to obtain the best Proposal based on the requirements and evaluation criteria set forth in the
Request for Proposals.
(b) Conducting Discussions. The Contracting Agency may conduct discussions with each Proposer in
the Competitive Range necessary to fulfill the purposes of this section, but need not conduct the same
amount of discussions with each Proposer. The Contracting Agency may terminate discussions with
any Proposer in the Competitive Range at any time. However, the Contracting Agency shall offer all
Proposers in the Competitive Range the opportunity to discuss their Proposals with Contracting
Agency before the Contracting Agency notifies Proposers of the date and time pursuant to this section
that revised Proposals will be due.
(A) In conducting discussions, the Contracting Agency:
(i) Shall treat all Proposers fairly and shall not favor any Proposer over another,
(ii) Shall not discuss other Proposers' Proposals;
(iii) Shall not suggest specific revisions that a Proposer should make to its Proposal, and shall not
otherwise direct the Proposer to make any specific revisions to its Proposal.
(B) At any time during the time allowed for discussions, the Contracting Agency may:
(i) Continue discussions with a particular Proposer;
(ii) Terminate discussions with a particular Proposer and continue discussions with other
Proposers in the Competitive Range; or
Local Contracting Rules - Page 21
(iii) Conclude discussions with all remaining Proposers in the Competitive Range and provide
notice to the Proposers in the Competitive Range to submit revised Proposals.
(c) Revised Proposals. If the Contracting Agency does not cancel the Solicitation at the conclusion of
the Contracting Agency's discussions with all remaining Proposers in the Competitive Range, the
Contracting Agency shall give all remaining Proposers in the Competitive Range notice of the date and
time by which they must submit revised Proposals. This. notice constitutes the Contracting Agency's
termination of discussions, and Proposers must submit revised Proposals by the date and time set forth
in the Contracting Agency's notice.
(A) Upon receipt of the revised Proposals, the Contracting Agency shall score the revised Proposals
based upon the evaluation criteria set forth in the Request for Proposals, and rank the revised
Proposals based on the Contracting Agency's scoring.
(B) The Contracting Agency may conduct discussions with and accept only one revised Proposal
from each Proposer in the Competitive Range unless otherwise set forth in the Request for
Proposals.
(d) Intent to Award: Protest. The Contracting Agency shall provide Written notice to all Proposers in
the Competitive Range of the Contracting Agency's intent to Award the Contract. An unsuccessful
Proposer may protest the Contracting Agency's intent to Award in accordance with OAR 137-049-
0450. After the protest period provided in accordance with that rule expires, or after the Contracting
Agency has provided a final response to any protest, whichever date is later, the Contracting Agency
shall commence final Contract negotiations.
(6) Negotiations.
(a) Initiating Negotiations. The Contracting Agency may determine to commence negotiations with the
highest-ranked Proposer in the Competitive Range following the:
(A) Initial determination of the Competitive Range; or
(B) Conclusion of discussions with all Proposers in the Competitive Range and evaluation of revised
Proposals.
(b) Conducting Negotiations.
(A) Scope. The Contracting Agency may negotiate:
(i) The statement of Work;
(ii) The Contract Price as it is, affected by negotiating the statement of Work; and
(iii) Any other terms and conditions reasonably related to those expressly authorized for
negotiation in the Request for Proposals. Accordingly, Proposers shall not submit, and Contracting
Agency shall not accept, for negotiation any alternative terms and conditions that are not
reasonably related to those expressly authorized for negotiation in the Request for Proposals.
(c) Terminating Negotiations. At any time during discussions or negotiations that the Contracting
Agency conducts in accordance with this rule, the Contracting Agency may terminate discussions or
negotiations with the highest-ranked Proposer, or the Proposer with whom it is currently discussing or
negotiating, if the Contracting Agency reasonably believes that:
(A) The Proposer is not discussing or negotiating in good faith; or
(B) Further discussions or negotiations with the Proposer will not result in the parties agreeing to the
terms and conditions of a final Contract in a timely manner.
(d) Continuing Negotiations. If the Contracting Agency terminates discussions or negotiations with a
Proposer, the Contracting Agency may then commence negotiations with the next highest scoring
Proposer in the Competitive Range, and continue the process described in this rule until the
Contracting Agency has either:
(A) Determined to Award the Contract to the Proposer with whom it is currently discussing or
negotiating; or
(B) Completed one round of discussions or negotiations with all Proposers in the Competitive
Range, unless the Contracting Agency provided for more than one round of discussions or
negotiations in the Request for Proposals.
OAR 137-04941660 RFP Pricing Mechanisms
(1) A Request for Proposals may result in a lump sum Contract Price, as in the case of competitive
Bidding. Alternatively, a cost reimbursement Contract may be negotiated.
Local Contracting Rules - Page 22
(2) Economic incentives -or disincentives may be included to reflect stated Contracting Agency purposes
related to time of completion; safety or other Public Contracting objectives, including total least' cost
mechanisms such as-life cycle costing.
(3) A Guaranteed Maximum Price (GMP) is used as the pricing mechanism for CM/GC where a total
Contract Price is provided in the design phase in order to assist the Contracting Agency in determining
whether the project scope is within the Contracting Agency's budget, and allowing for -design changes
during preliminary design rather than after final design Work has been completed.
(a) If this collaborative process is successful, the Contractor shall propose a final GMT, which may be,
accepted by the Contracting Agency and included within.the Contract.
(b) If this collaborative process is not successful, and no mutually agreeable resolution on GMT can be
achieved with the Contractor, then the Contracting Agency shall terminate the Contract. The public
Contracting Agency may then proceed to negotiate a new Contract (and GMP) with,the firm that was
next ranked in the original selection process, or employ other means for continuing the project under
ORS Chapter 279C.
(4) When cost reimbursement Contracts are utilized, regardless of whether a GMP is included, the
Contracting Agency shall provide for audit controls that will effectively verify rates and ensure that. costs
are reasonable, allowable and properly allocated.
13
OAR 137-047-0275 provides:
(1) Generally. A Contracting Agency may Award a Public Contract without competition as a sole=source
Procurement pursuant to the requirements of ORS 279B.075.
(2) Public Notice. If, but for the Contracting Agency's determination that it may enter into a Contract as
a sole-source, a Contracting Agency would be required to select a Contractor using source selection
methods set forth in either ORS 279B.055 or ORS 279B.060, a Contracting Agency shall give public
notice of the Contract Review Authority's determination that the Goods or Services or class of Goods or
Services are available from only one source in a manner similar to public notice of competitive sealed
Bids under ORS 279B.055(4) and OAR 137-047-0300. The public notice shall describe the Goods or
Services to be acquired by a sole-source Procurement, identify the prospective Contractor and include the
date, time and place that protests are due. The Contracting Agency shall give such public notice at least
fourteen (14) Days before Award of the Contract.
(3) Protest. An Affected Person may protest the Contract Review Authority's determination that the
Goods or Services or class of Goods or Services are available from only one source in accordance with
OAR 137-047-0710.
14 OAR 137-049-0150 Emergency Contracts, Bidding and Bonding Exemptions
(1) Emergency Declaration. Pursuant to ORS 279C.335(5) and this rule, a Contracting Agency may
declare that Emergency circumstances exist that require prompt execution of a Public Contract for
Emergency construction or repair Work. The declaration shall be made at an administrative level
consistent with the Contracting Agency's internal policies, by a written declaration that describes the
circumstances creating the Emergency and the anticipated harm from failure to enter into an Emergency
Contract. The Emergency declaration shall exempt the Public Contract from the competitive bidding
requirements of ORS 279C.335(1) and shall thereafter be kept on file as a public record.
(2) Competition for Contracts. The Contracting Agency shall ensure competition for an Emergency
Contract as reasonable and appropriate under the Emergency circumstances, and may include written
requests for Offers, oral requests for Offers or direct appointment without competition in cases of
extreme necessity, in whatever Solicitation time periods the Contracting Agency considers reasonable in
responding to the Emergency.
(3) Contract Award. Any Contract Awarded under this rule must be Awarded within 60 Days after
declaration of the Emergency, unless an extension is granted under ORS 279C.335(5).
(4) Contract Scope. Although no dollar limitation applies to Emergency Contracts, the scope of the
Contract.must be limited to Work that is necessary and appropriate to remedy the conditions creating the
Emergency as described in the declaration.
Local Contracting Rules - Page 23
(5) Contract Modification. Emergency Contracts may be modified by change order or amendment to
address the conditions described in the original declaration or an amended declaration that further
describes additional work necessary and appropriate for related Emergency circumstances.
(6) Excusing Bonds. Pursuant to ORS 279C.380(4) and this rule, the Emergency declaration may also
state that the Contracting Agency waives the requirement of famishing a•performance bond and payment
bond for .the Emergency Contract. After making such an Emergency declaration the bonding
requirements are excused for the procurement.
15 OAR 137-049-0430 Negotiation When Bids Exceed Cost Estimate
(1) Generally. In accordance with ORS 279C.340, if all Responsive Bids from Responsible-Bidders on a
.competitively Bid Project exceed the Contracting Agency's Cost Estimate, prior to Contract Award the
Contracting Agency may negotiate Value Engineering and Other Options with the Responsible Bidder
'submitting the lowest, Responsive Bid in an attempt to bring the Project within the Contracting Agency's
Cost Estimate. The subcontractor disclosure and substitution requirements of OAR 137-049-0360 do not
apply to negotiations under this rule.
(2) Definitions. The following definitions apply to this administrative rule:
(a) "Cost Estimate" means the Contracting Agency's most recent pre-Bid, good faith assessment of
anticipated Contract costs, consisting either of an estimate of an architect, engineer or other qualified
professional, or confidential cost calculation Worksheets, where available, and otherwise consisting of
formal planning. or budgetary documents.
(b) "Other Options" means those items generally considered appropriate for negotiation in the RFP
process, relating to the details of Contract performance as specified in OAR 137-049-0650, but
excluding any material requirements previously announced in the Solicitation process that would likely
affect the field of competition.
(c) "Project" means a Public Improvement.
(d) "Value Engineering" means the identification of alternative methods, materials or systems which
provide for comparable function at reduced initial or life-time cost. It includes proposed changes to the
plans, Specifications, or other Contract requirements which may be made, consistent with industry
practice, under the original Contract by mutual agreement in order to take advantage of potential cost
savings without impairing the essential functions or characteristics of the Public Improvement. Cost
savings include those resulting from life cycle costing, which may either increase or decrease absolute
costs over varying time periods.
(3) Rejection of Bids. In determining whether all Responsive Bids from Responsible Bidders exceed the
Cost Estimate, only those Bids that have been formally rejected, or Bids from Bidders who have been
formally disqualified by the Contracting Agency, shall be excluded from consideration.
(4) Scope of Negotiations. Contracting Agencies shall not proceed with Contract Award if the scope of
the Project is significantly changed from the original Bid. The scope is considered to have been
significantly changed if the pool of competition would likely have been affected by the change; that is, if
other Bidders would have been expected by the Contracting Agency to participate in the- Bidding process
had the change been made during the Solicitation process rather than during negotiation. This rule shall
not be construed to prohibit resolicitation of trade subcontracts.
(5) Discontinuing Negotiations. The Contracting Agency may discontinue negotiations at any time, and
shall do so if it appears to the Contracting Agency that the apparent low Bidder is not negotiating in good
faith or fails to share cost and pricing information upon request. Failure to rebid any portion of the
project, or to obtain subcontractor pricing information upon request, shall be considered a lack of good
faith.
(6) Limitation. Negotiations may be undertaken only with the lowest Responsive, Responsible Bidder
pursuant to ORS 279C.340. That statute does not provide any additional authority to further negotiate
with Bidders next in line for Contract Award.
(7) Public Records. To the extent that a Bidder's records used in Contract negotiations under ORS
279C.340 arepublic records, they are exempt from disclosure until after the negotiated Contract has been
awarded or the negotiation process has been terminated, at which time they are subject to disclosure
pursuant to the provisions of the Oregon Public Records Law, ORS 192.410 to 192.505.
Local Contracting Rules - Page 24
AGENDA ITEM No. 9 Date: February 22, 2005
PUBLIC HEARING
TESTIMONY
SIGN-UP SHEETS
Please sign on the following page(s) if you wish to testify before City Council on:
Resolution revising public contracting
rules, findings supporting the revised
public contracting rules, and a revised
purchasing and contracting manual.
Due to Time Constraints
City Council May Impose
A Time Limit on Testimony
I:WDWGREEMCITY COUNCIUCCSIGNUPTH TESTIMONYWC
AGENDA ITEM No. 9 Date: February 22, 2005
PLEASE PRINT
Proponent - (Speaking In Favor Opponent - (Speaking Against) Neutral
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No.
0
AGENDA ITEM # /
FOR AGENDA OF February 22, 2005
CITY OF TIGARD, OREGON
LOCAL CONTRACT REVIEW BOARD (LCRB) AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE Conduct a Public Hearing to Consider Revised Public Contracting Rules, Related
Findings, and Revised Purchasing and Contracting Manual.
PREPARED BY: Joe Barrett DEPT HEAD OK: CITY MGR OK:
ISSUE BEFORE THE LOCAL CONTRACT REVIEW BOARD
Shall the Tigard Local Contract Review Board approve by resolution, revised Public Contracting Rules, the
supporting findings for the revised Public Contracting Rules, and the establishment of a revised Purchasing and
Contracting Manual?
STAFF RECOMMENDATION
Approve the resolution revising the City's Public Contracting Rules and the supporting findings, and revising the
City's Purchasing and Contracting Manual.
INFORMATION SUMMARY
On March 1, 2005, a revised Oregon Revised Statute (ORS) 279 will go into effect. Due to the revised ORS 279,
all governmental agencies in the State of Oregon need to either adopt new Public Contracting Rules (Rules) before
March 1, 2005 (as first authorized in House Bill 2024, approved by the Oregon Legislature) or they will fall under
the Attorney General's Model Public Contracting Rules. In response, staff, working closely with the City
Attorney's Office and the Cities of Milwaukie and West Linn, have revised the City's Rules to be in compliance
with the revised ORS 279.
An ordinance to be presented to the Local Contract Review Board (LCRB) on February 22, 2005 will provide for
the orderly transition from the existing Rules to the revised Rules. Staff recommends that the LCRB approve the
resolution establishing the City's revised Rules along with the attached supporting findings allowing the City to
have its own Rules in place by the required March 1, 2005 deadline.
Along these same lines, the City's Purchasing and Contracting Manual (Manual), used by staff as a guide to the
purchasing and contracting processes, will need to be revised to reflect the changes to the Rules. Staff recommends
that the LCRB approve the establishment of a revised Manual and authorize staff to make the necessary changes to
the Manual in order to bring it in line with the revised Rules.
The Public Contracting Rules themselves make up a large document of eighty pages. Due to the size of this
document, it is not attached to the staff report. Copies of the Rules may be requested by contacting Joe Barrett at
(503) 639-4171, ext. 2477.
OTHER ALTERNATIVES CONSIDERED
Do not approve the revised Public Contracting Rules and supporting findings and direct the City to follow the
Attorney General's Model Public Contracting Rules beginning March 1, 2005.
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
N/A
ATTACHMENT LIST
1 Resolution adopting revised Public Contracting Rules, findings supporting the revised Public Contracting
Rules, and establishing a revised Purchasing and Contracting manual.
2 Supporting Findings.
FISCAL NOTES
N/A
AGENDA ITEM #
FOR AGENDA OF Feb. 22. 2005
CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE Ash Creek Estates Subdivision - LUBA Remand
PREPARED BY: Morgan Tracy DEPT HEAD OKfA ~121L, MGR OK
ISSUE BEFORE THE COUNCIL
Consider additional public testimony and the applicant's rebuttal for the Ash Creek Estates Planned Development.
In light of this information, the Council may either adopt the resolution affirming the previous subdivision
approval, or direct staff to modify the findings based on the evidence and testimony.
STAFF RECOMMENDATION
Approve the resolution adopting the Findings and Order.
INFORMATION SUMMARY
At the City Council's February 8, 2005 meeting, the Council opened the public hearing for the Ash Creek LUBA
remand. At that hearing, the applicant introduced new evidence which prompted a request to hold the record open
for seven days. Legal Counsel advised that to eliminate the possibility of a procedural challenge, the record should
be held open. The oral testimony was closed. Additional written public testimony must be submitted by 5 p.m.
February 14, 2005. The applicant may respond with rebuttal testimony, which is to be received at City Hall by 4
p.m., February 18, 2005. This information will be provided under a separate cover as will the materials for findings
from the February 8, 2005 meeting.
OTHER ALTERNATIVES CONSIDERED
- Prepare alternate findings based on the evidence presented.
- Request additional evidence to support alternate findings.
- Prepare findings to deny the request.
VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY
Growth and Growth Management - Goal #1, Accommodate growth while protecting the character and livability of
new and established areas.
ATTACHMENT LIST
To be provided under separate cover.
FISCAL NOTES
Staff time and report analysis preparation are not reimbursable as part of this LUBA remand process.
Agenda Item No. 10 - February 22, 2005
PUBLIC HEARING (QUASI-) UDICIAL) ASH CREEK ESTATES - LAND
USE BOARD OF APPEALS (LUBA) REMAND- SUBDIVISION (SUB)
2003-00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003-00004/
ZONE CHANGE (ZON) 2003-00003/SENSITIVE LANDS REVIEW (SLR)
2003-00005/ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT (VAR)
2003-00037
This is a continuation of the hearing of February 8, 2005. Please see the agenda
packet for February 8, for the documents prepared for Council review for the initial
hearing on the Land Use Board of Appeal remand.
Additional written testimony and rebuttal testimony will be received and distributed
to the Council on Friday, February 18, 2005.
Please contact Cathy Wheatley, City Recorder, at 503-639-4171, Ext. 2410
or e-mail: cathy@ci.tigard.or.us if you have questions or need information.
ATTACHMENT LIST
Attachment 1- Additional written testimony and evidence received prior to and during the February
8, 2005 City Council Hearing
1.1. Transmittal from Kurahashi and Associates to Staff dated November 15, 2004
Submitted by John Frewing on February 4, 2005
1.2. Letter from Jim Labbe, Audubon Society of Portland, Received February 3, 2005
Exhibit A. Building within Nature's Envelope
1.3. Email from Carol Paddock, received February 8, 2005
1.4. Email from Merilyn Ferrara, received February 8, 2005
1.5. Written Testimony from Bob Storer, submitted at the February 8, 2005 hearing.
1.6. Written Testimony from Sue Beilke, Submitted at the February 8, 2005 hearing.
Exhibit A. Photographs
1.7 Oversized Plan from Kurahashi showing area of impact for proposed 74'h Avenue stream crossing.
(Available in File, not reproduced)
1.8 Oversized Plan from Kurahashi showing area of impact for grade compliant 74`x' Avenue stream
crossing. (Available in File, not reproduced)
Attachment 2 - Additional written testimony received after the February 8, 2005 City Council
hearing
2.1. Written Testimony from John Frewing, submitted February 14, 2005:
Exhibit A. Letter from Kurahashi, dated December 13, 2004
Exhibit B. Transmittal from Kurahashi and Associates to Staff dated November 15, 2004
Exhibit C. Transmittal from Kurahashi and Associates to Staff dated May 19. 2004
Exhibit D. ODFW Web Page publication re: Stream-Road Crossings
Exhibit E. Ash Creek Estates Preliminary Plat Map Sheet 2 of 12
Exhibit F. Tree Preservation Plan Sheet 12 of 12
Exhibit G. Petition to City Council re: Comp Plan Amendment dated October 19, 2004
Exhibit H. Transmittal from TVFR to John Frewing dated February 9, 2005
2.2. Written Testimony from Alice Ellis-Gaut, submitted February 14, 2005
2.3 Memorandum from Dan Plaza, Parks Manager to Honorable Mayor & Council re: Mr. Frewing's
Remarks made at a recent LUBA Council Hearing
Attachment 3 - Applicant's Rebuttal to additional testimony and evidence, submitted February 18,
2005.
Attachment 4 - Resolution to Adopt Findings of Fact for the Ash Creek Estates Subdivision
Exhibit A - Staff's January 25, 2005 findings and report to Council
Exhibit B - Resolution 03-58 (original 2003'approval)
Exhibit C - Resolution 03-61 (amending 03-58 to correct a date reference)
I11/ L0/LVVY mVIN 1Ja r&& aUJ 644 2 t4i lwranashl & ASSOC., IIIC. JTnAy fnn~
ATTACHMENT I,-1
KURAHASHI & ASSOCIATES, INC.
FACSIMILE TRANSMITTAL SHEET
- p ~t7yyyy~,.yiCOSO ipr
To: From:
Morgan Tracy Greg Kurahashi
Company: Date:
City of Tigard 1111512004
Fax Number: Total #_off Pages Including Cover:
(5031684-7297
ProjccLNamc: Project Number:
Ash Creek Estates
❑ Urgent 0. For Rcview ❑ Please Comment ❑ Please Reply ❑ Please Recycle ❑ As Requested
RE: Chris asked me to send you these pages out of the Washington County street standards.
Thank you,
Gregory Kurahashi
Kurahashi and Associates "
15580 SW JAY STREET, SUITE' 200; BEAVERTON, OREGON 97006
(503) 644-6842; FAX: (503) 644-9731
•11/ 13/LUU4 musv ia:'LN r'AA 5U3 U44 9731 KUranasnl & ASSOC. , 1nC, 10002/007
TABLE 111 - DESIGN SPEED/CENTERLINE RADIUS-MINIMUMS
MAJOR COLLECTORS/ARTERIALS STRE15TVALL RURAL ROADS
IJegi9n Friction Slope/R min.
Speed(%") Factor(F) (q^ (e}2.5% 0% (e)15% (e)4%___ (e) s%
25 .165 335' 300' 255' 220' 205 185'
30 .160 500' 445' 375' 325' 300' 275'
.35 155 710' 630' 530' 455' 420' 380' .
40 .150 970' 855' 710' 610' 560' 510'
45 .145 1285' 1126' 930' 795' 730' 660' °
50 ' .140 1665' 1450' 1190' 1010' 925' 835'
55 .130 2240' .1920' 1550' 1300' 1190' 1060'
60 .120 3000' 2525' 2000' 1655 1500' 1335'
MINOR COLLECTORS/LOCAL STREET/SPEC/AL AREA ROADS
Design FdcUon SlopetR.min.
Sp9ed(MPH) Factor(F) (e)-490 (e)-2.5% (e) 0°!0 (eJ2.5°,6 (e) 496 (e) 6'Ye
25 0.252 195' 185' 165' :150' 145' 135'
30 0.221 330' 305' 270' 245' 230' 215'
35 0.197 530' 475'' 415' .370, 345' 320'
NOTES:
For Table 111- off right-of-way runoff shall be controlled to prevent concentrated cross
flow in superelevated sections.
Where superelevation is used, street cdirves should be designed for a maximum
superelevation rate of 0.04. If terrain dictates sharp curvature, a maximum
superelevation of 0.06 is justified if the curve is long enough to provide an adequate
superelevation transition.
On local streets, requests for design 'speeds less than 25 mph shall be based on
topography, R.O.'W., alternative design features approved through the land use process
or geographic conditions which impose an economic hardship on the applicant
Requests must show that a reduction in centerline radius will not compromise safe ,
There may be posting requirements associated with designs below 25, mph. In no
case shall the design speed foraltemative designs be less than 20 mph for local roads
and 15 mph for alleys.
SOURCE: REFERENCE 9
27
-.i/10/cvv'► MAN tD::su V'AA to Ms b44 9731 Kurahashl & Assoc., Inc. 10003/007
210.4 VERTICAL ALIGNMENT
Alignments shall meet the following requirements:
Minimum tangent street gradients shall be one-half (0.5) -percent along the
crown and curb.
Maximum street gradients shall be fifteen (15) percent for minor collectors,
and local streets, and ten (10) percent for all other streets. Grades i'n
excess of fifteen (15) percent must be approved by the County Engineer on
ari individual basis.
Local streets intersecting with a minor collector or greater functional
classification street or strdets intended to be posted with a stop sign shall
provide a landing averaging five (5) percent or less- Landings are that
portion of the street within twenty (20) feet of the edge of the intersecting
street at full improvement.
Grade changes of more than one (1) percent shall be accomplished with
vertical curves.
Street grades, intersections and superelevation transitions shall be
designed to not allow concentrations of storm water to flow over the ;
pavement.
Offset crowns shall be allowed and must conform to Standard Drawing M-
403.
Streets intersected by streets not constructed. to full urban standards shall
be designed-to match-both present and future vertical alignments of'the
intersecting streets. The requirements of this manual shall be met for both
present and future conditions.
Vertical curves shall conform to the values found in-Tables IV & V.
Slope easements shall be dedicated or obtained for the purposes of grading
outside of the rights-of-way.
AASHTO provides the designer of sag vertical curves the option of using
shorter curves with the installation of street lighting. These "comfort' designs
can also be slightly alternate by providing a one .(1) percent grade break at
each end of the curve. The following chart compares sag curve lengths using
these criteria:
'y
28 .
11/15/2004 MON 15:30 FAX 503 644 9731 Kurahashi & Assoc., Inc. Q004/007
Algebraic Difference Standard Comfort Comfort w/Grade Breaks.
in Grades 25 MPH 25-MPH 25 MPH
5.0% 150 67 ' 40
7.5% 225 101 74.
12.5% 375• 168 141
17.5%^ .625 235 208
A further concem has been with the design of a sag curve at the •
intersection of a local road with a local road or a local road with a minor
collector road.. In either case, if the intersecting street is stop controlled, a
minimurh.design speed of 15 MPH is allowed on the intersecting street
This is based, on the reasonable speed of a vehicle turning from the through
street to the intersecting street. Minimum curve lengths using a 15 MPH
design speed are as follows:
Algebraic Difference Comfort Comfort w/Grade Breaks
in Grades 15 MPH 15 MPH
5.0% 24 15
7.5% 36 27
12.5% 60.. 51
17.5% 85 75
29
•11/15/ZUU4 RUN 15:su r•AA 503 644 9731 Kurahashi & Assoc., Inc. a 005/007
TABLE IV DESIGN CONTROLS FOR CREST VERTICAL CURVES BASED ON STOPPING
SIGHT DISTANCE
DESIGN SPEED K
1g ~
20 10-10
25 20 - 20
30 30 = 30.
35 40 - 50
40 60-80
45 80-120
50 110-160
55 .150-220
SOURCE: REFERENCE 9.
L Feet
K = A= Percent
A = Algebraic Difference in grades, percent
L = Length of vertical curve, feet
TABLE V - DESIGN CONTROLS FOR SAG VERTICAL CURVES BASED ON STOPPING
SIGHT DISTANCE
DESIGN SPEED* K
15 5-5
20 10-10
25 30-30
30 40 - 40
35 50.50
40 60 - 70
45 70 - 90
50 90 -110
55 100-130
SOURCE: REFERENCE 9.
WHERE: L Feet
K = "A= Percent
A = Algebraic Difference in grades, percent
L = Length of vertical curve, feet
Values may be reduced if street lighting is present for sag vertical curves. AASHTO
publication, An Informational Guide for Roadway Lighting shall serve as a guide.
SOURCE: REFERENCE 10.
30
•11/15/2004 MON 15:30 FAX 503 644 9731 Kurahashi & Assoc., Inc. [x006/007
210.5 INTERSECTIONS
The following specify the minimum requirements for intersections:
The interior angle at intersecting streets shall be kept as near to ninety (90)
degrees as possible and in no case shall it be less than seventy-five (75)
degrees. A tangent section shall be carried a minimum of twenty-five (25)
feet each side of intersecting right-of-way lines.
Curb radii at intersections shall be as shown in Table VI for the various
function classifications. The right-of-way radii at intersections shall be
sufficient to maintain at least the same right-of--way to curb spacing as the
lower classified street.
Sidewalk access ramps. shall be provided at all comers of all intersections,
regardless of curb type, and shall. conform to the ODOT Standard Drawing.
31
u~,iurcvvY mviv Lo:vv rAA OV4 044 13'151 hurahasnl & Assoc., Inc. 10007/007
TABLE VI - TURNING RADII (FEET)
Edge of Pavement/Curb - Minimums*
Street MayMin Major Minor Transit Commercial Local
Classification Arterial Collector Collector Street Industrial Street
Street street street Street
MajoNMlnor
Arterial b5 40 30 40 40 25
Street
Major
Collector 40 40 30 40 40 25
Street
Minor
Collector 30 30 30 30 30 25
Street
Transit 40 40 30 40 40 25
Street
Commercial
Industrial 40 40 30 40 40 25
Street
Local 25 .25 25 25 25 15
Street"
If tike lane or on-street parking exists, above radii maybe reduced by five (5) feet.
On 28' Local Streets, parking shall be prohibited within 50' of a public street intersection.
32
ATTACHMENT 1,2
o~Sodety,,,
~ a
~ ON
ded lv 1
5151 NW Cornell Rd.
Portland, OR 97210
February 3, 2005
Tigard Planning Commission
City of Tigard
13125 SW Hall Blvd,
Tigard, OR 97223
Dear Tigard Planning Commission,
I am writing behalf of the Audubon Society of Portland including our 2400 members residing in
the Tualatin Basin and over 250 living within the City of Tigard. Our comments below relate to
the Ash Creek Estates Subdivision and its remand hearing of February 8, 2005. Please enter
these comments in the record of that hearing.
We praise the City of Tigard's efforts to protect urban forests through its local development code
in order to maintain the multiple natural resource and community benefits provided by urban
trees. An increasing body of literature documents the wildlife, water quality, property value and
human health benefits of urban trees. The extent of forest cover within our watersheds relates
directly to aquatic health of streams and rivers, a relationship documented by local studies in the
Tualatin Basin.1 The primary explanation for the correlation between watershed tree canopy
cover, water quality, and aquatic health is relationship based on the documented capacity of trees
control the quality and quantity of urban stormwater run-off.2 Patches of native vegetation and
forest cover also support numerous native bird species, particularly neotropical migrants.3 A
growing body of literature also links the presence of urban trees to child development, crime
reduction, local business activity, lower domestic violence, and mental and physical health.4 In
i Booth, D. 1991 "Urbanization and the Natural Drainage System-Impacts, Solutions and Prognoses." Northwest Environmental
Journal 7 (1): 93-118. Cole, M. B. 2002. Assessment of Macroinvertebrate Communities in Relation to Land Use, Physical
Habitat, and Water Quality in the Tualatin River Basin, Oregon. Prepared for Clean Water Services by ABR, Inc.-Environmental
Research Services, Forest Grove, OR, pp. 38. Frady C. Gerth, B., Li, J., and Hennings, L. Portland Benthic Invertebrate
Analysis, Metro Regional Services, Portland, OR, pp. 87
2 McPherson, G.E., Maco, S.E., Simpson, J.R., Peper, P.J., Xiao, Q., VanDerZanden, A.M., and Bell, N. 2002. Western
Washington and Oregon Community Tree Guide: Benefits, Costs and Strategic Planting. Center for Urban Forest Research,
USDA Forest Service, Pacific Southwest Research Station, Davis California, pp. 76.
3 Hennings, L.A. 2001. Riparian bird communities in Portland, Oregon: Habitat, urbanization, and spatial scale patterns.
Masters' Thesis, Oregon State University Department of Fisheries and Wildlife, Corvallis, Oregon.
4 Kuo, F. & Sullivan, W. (May 2001). Environment and Crime in the Inner City: Does Vegetation Reduce Crime? Environment
and Behavior, 33:3, 343-367, Lyman, F. (August 2002). The Geography of Health. Land & People Magazine; Taylor, A.F., Kuo,
F.E. & Sullivan, W.C. (2001). Views of Nature and Self-Discipline: Evidence from Inner-City Children. Journal of
Environmental Psychology, 21; Trees in Business Districts: Positive Effects on Consumer Behavior!, University of Washington;
Ulrich, R. (1984). View Through a Window May Influence Recovery from Surgery. Science, 224, 420-421.
addition, recent research documents the significant contribution of trees to neighborhood
property values. Research comparing different tree resources with sales prices of residential
properties suggests individuals will pay 3-7% more for properties with significant tree resources
versus properties with few or no trees. One of the most comprehensive studies based on the
actual sales prices found that each large front-yard tree was associated with about a 1% increase
in the sales price.5 A much greater value of 9% ($15,000) was determined in a U.S. Tax Court
case for the loss of a large Black Oak on a property valued $164,5006. These values approximate
those reported locally. Recently a Portland developer was quoted that "A nice tree in a back yard
can raise a lot's value by $5,000." The research summarized above would all suggest that urban
trees also contribute significantly to a cities' property tax base.
Unfortunately, the loss of urban tree canopy, which is severest in suburban areas in the Portland-
Metro region, threatens all of the above values at the neighborhood, watershed, and regional
scale.8 Development of strong local ordinances to protect urban trees and forest canopy is one
important measure to reverse these trends. Research indicates that local tree protection measures
and active tree planting efforts have contributed in the net gain of forest canopy in some Portland
neighborhoods.9 We urge the City of Tigard to actively pursue the full range of urban tree
conservation efforts, coordinate these programs with other local governments in the Tualatin
Basin and the entire Portland-Metropolitan region, and monitor progress for retaining and
increasing forest canopy within the City's watersheds. Metro is currently developing watershed-
based urban forest canopy protection and enhancement targets as part of regional fish and
wildlife plan and could by part of Tigard's local monitoring of tree protection efforts.
With respect to the applicant's "Tree Plan for Ash Creek Estates" received January 14, 2005 we
ask that the City of Tigard review this plan against the standards of the TCDC Section
18.350.100(B)(3)(a)(1) which requires preservation of "the existing trees, topography and natural
drainage to the greatest degree possible". It is absolutely possible for the Ash Creek Estates
meet a much higher standard of environmental impact avoidance, minimization and mitigation
associated with tree removal on this site. Attached is an example of a single-family housing
development in the City of Portland that exemplifies environmentally responsible site planning
to avoid impacts "to the greatest degree possible."10
Thanks you for considering our comments.
Sincerely,
Jim Labbe
Urban Conservationist
Audubon Society of Portland
5 Anderson, L.M.; Cordell, H.K. 1988 Residential property values improve by landscaping trees. Southern Journal of Applied
Forestry. 9: 162-166.
6 Neely, D. 1988. Valuation of Landscape Trees, Shrubs, and other plants. Seventh Edition. Urbana, IL: International Society of
Arboriculture. 50p
7 Lutzenhiser, M. and N. R. Netusil. 2001. The Effect of Open Spaces on a Home's Sale Price. Contemporary Economic Policy
19 (July): 291-298, Oregonian, February 27, 2004, http://www.urbanfauna.oriz/Trees.litm1.
8 American Forests. 2001. Regional ecosystem analysis for the Willamette/Lower Columbia region of northwestern Oregon and
southwestern Washington State. pp. 16.
9 Poracsky, J, and Lackner M. 2004. Urban Forest Canopy Report in Portland, Oregon, 1972-2002, Cartographic Center,
Geography Department, Portland State University, Portland, OR, p. 42.
'0 Also online at: http://www.Lirbanfauna.orgT/Gi-ubePosterFina17RSM.doe
Building Within Nature's Envelope: An example from Portland, OR
Blend your home with Oregon's natural beauty! Can you guess the age of this development?
• Recognize the unique character of the site. Design your home . The house, deck, and driveway are nestled into the foliage.
• Embrace the local architectural style - in this case • The abundance of mature trees makes you think this development
Pacific Northwest style. to meet family needs and has been here a long time.
• Configure the footprint of the house to preserve • The house was constructed in 2002.
mature plants and protect slopes and streams.
respect the landscape.
Building in an environmental zone is possible!
The approximately 10,000 sq. ft. property is almost entirely
•`x s • within the City's Environmental Conservation Overlay Zone.
• A reduction to the front yard setback allowed the development to
G`e •i., g be built close to the street.
Ix • Flexibility in design and habitat protection were achieved through
a site specific review process.
t, 1 • Significant detrimental impacts were first avoided, then
1 minimized, and finally, mitigated.
Limit disturbance, save habitat, save costs!
. Only six trees were removed to accommodate this development.
T,l. 1;};.•.a i• • Limits disturbance of wildlife and habitat.
e}_. ' ' ' ° "Y J • Minimizes grading and saves topsoil.
If4/ • Avoids the cost of replanting trees, shrubs, and groundcover.
~ _ • Provides you with an instantly mature looking development.
a, 'f • Mature trees can be worth over $5K each, according to Portland
} ai area developers.
"We do not live apart from nature,
we are a part of nature." Native plants suit our climate, soil and wildlife!
Bret Rappaport, from Building Inside Nature's • They are readily available.
linvelope, by Andy Wasowski t
~ N I They don't require mowing, watering or fertilizers.
What about steep slopes? a
• The average slope of this property is 24%. t a.'' •.~i Keep stormwater on-site to minimize impacts to stream!
• The steep slope makes it difficult to construct a % N E • Because of the landslide hazard, stormwater on this site will be
house and driveway. Disturbing hillsides exposes retained by a spreader trench with a lined bottom and plants.
soil to rain and wind, which erode the slope. I ; pie . The house, deck, and driveway are called impervious surfaces.
• When soil erodes, it pollutes streams and harms xm x99 . Impervious surfaces are areas where water won't infiltrate into
aquatic life. the soil.
• Landslides hazards are increased by: e ' . Impervious surfaces increase destructive water velocity and tJ
o altering topography, V volume. Runoff sends pollutants to streams. i'n
o removing vegetation, • Retaining vegetation provides habitat and retains stormwater. X
o saturating soil with misdirected ;j _
stormwater. Rev 7, 10 March 2004. Jan Yarbrough, Tricia Sears, Steve Mullinax
a
Morgan Tracy - Ash Creek Estates Page 1
ATTACHMENT 1.3
From: "Carol Paddock" <cpaddock@mail.viclink.com>
To: "Morgan Tracy" <morgan@ci.tigard.or.us>
Date: 2/8/2005 5:18:17 PM
Subject: Ash Creek Estates
Please include in tonight's discussion:
Tigard City Council:
Re: Ash Creek Estates
It seems that once application was made to the city, the trees, even those
outside sensitive lands, came under a degree of city protection.
From LUBA:
TCDC 1 8.790.030(A) states [p]rotection is preferred over
removal wherever possible.""
But TCDC 18.790.010(C) expressly recognizes that trees may
need to be removed to develop property,[45] and
TCDC 18.790.030(B)(2) anticipates that more than 75% of the
trees on a site may be removed to accommodate development,
subject to mitigation requirements.
In removing trees before homes are designed, the applicant makes an
assumption and determination that he/she knows what is best for each specific
lot, when, in fact, each lot is individual by nature of the slope, tree
locations, specific home design, street location, sun orientation, etc. The
decision as to which trees are best retained or removed given each lot’s
specific qualities should be left in the hands of the individual home buyers
and designers. Certainly more will be protected this way (per city preference
TCDC18.790.030(A)) and those removed will be based on actual development need
of the end user (preserving all possible). This is a far better approach than
an initial cut that pre-empts the end users’ options.
Another approach that certainly keeps more trees that can clearly be retained
is to keep all those within the building setbacks on all individual lots.
Thank you for your consideration,
Carol Paddock
(503) 864-3115
5001 NE Mineral Springs Rd.
McMinnville, Oregon 97128
Morgan Tracy - Fwd: Feb. 8 Council Meeting Agenda Page 1
ATTACHMENT I1't
From: Cathy Wheatley
To: Jim Hendryx; Morgan Tracy
Date: 2/8/2005 5:07:54 PM
Subject: Fwd: Feb. 8 Council Meeting Agenda
"Merilyn Ferrara" <mf@bizlaw1.com> 2/8/2005 3:37:35 PM
Cathy,
I live near the proposed Ash Creek Estates development, and I
hope to be able to attend the Tigard Council Meeting tonight,
specifically to hear Item 8, the Ash Creek Estates remand. Since I may
not be able to attend, I am sending this note to express my strong
concern that the City act responsibly to correctly and fully comply with
its own Development Code in requiring a genuine tree plan and mitigation
program. It is dismaying that the City would not appropriately apply
its own requirements during the application process, and that it caused
a lot of time, money and effort spent by concerned neighbors to bring
the LUBA appeal to tell the City that it must do what it should have
done to begin with. It appeares the City is indifferent to its own
rules, and to the strong interest of the many people throughout the
community in keeping Tigard a "tree city USA" as our signs claim! I
wish I believed such indifference were an anomaly, but it now seems to
be the Council's standard approach to development. I have the same
concern with regard to how the fact the City allowed the standard for
safety of the road and road users and for protecting Ash Creek to be
lowered in approving a lowered standard for the proposed SW 74th
Avenue crossing of Ash Creek. I hope to see or learn that the City
will follow appropriate standards tonight.
Thank you for making this opportunity to communicate available.
Merilyn Ferrara ((cilbizlaw1.com)
14j ATTACHMENT 1,5
February 8, 2005
RE: Ash Creek Estates Subdivision (SUB) 2003-00010 LUBA Remand
Good Evening Mayor, Councilmember's, City staff, and Stakeholders:
My name is Bob Storer. I reside at 7225 SW Ventura Drive in Tigard.
The two issues I want to testify about tonight are the exception to and mitigation for the
proposed vertical sag curve and associated deviations to adopted street standards; and the
tree protection plan, mitigation, and conditions of approval.
The Sag Curve issue and associated proposal for an exception to the standard is being
mitigated by the recommendation for additional advisory signage and street lighting.
Will residents really slow down and adhere to a 15 mph speed limit? Is anyone using our
city streets traveling at 25 mph? And, why would the City only monitor for one-year
after completion of street construction? Will all of the homes be completed by then? In
addition, if not effective, the applicant will be required to install additional traffic control
measures. What effectiveness criteria will be measured and how will it be determined?
As typical, the applicant will be long gone after a few years leaving the community to
fend for itself. What other traffic control measures will be considered for mitigation?
As argued before you in other hearings, a bridge, contrary to the applicant's position,
would provide a much better alternative to crossing Ash Creek in this deep draw. When
you consider all of the pros and cons this alternative will have far less of an overall
impact on natural resources and safety concerns.
It is proposed that the applicant's arborist is to submit written reports to the city's forester,
at least, once every two weeks. I suggest as an alternative that your staff actually go out
and inspect these relatively large developments each week, and therefore; would not need
to review reports and have to determine whether to get out to the site several weeks after
a report is submitted. By the time several weeks have passed it is way too late, and if
there is damage, it usually results in irreparable harm that has already occurred.
Other issues of concern with the Tree Protection Plan include the following points:
• The proposals to notify all contractors of the tree protection procedures and have
all the subs sign an MOU regarding goals of the tree protection plan? What are
the goals and is this a realistic objective that will be undertaken by the applicant?
• The proposal to hydrate and deep root fertilize the trees prior to construction? In
reality, I would be willing to bet this won't occur, or be enforced.
• The recommendation for 6-ft. high metal fencing with steel posts or plastic orange
or snow fencing if properly supported to prevent sagging, with signage visible on
all sides and spaced every 75-ft. These requirements, especially signage, are
almost never implemented on most developments and rarely enforced. Metal
fencing is almost never used and should be on this site as recommended by your
city forester. The plastic fencing is usually not properly supported, and rarely if
ever maintained or enforced.
Also, on p. 4 of the Davis Wright Tremaine letter to Morgan Tracey, dated November 15,
2004, in its Justification for Items ID in the LUBA Remand, it states, "A separate permit
will be submitted for tree cutting within the sensitive area pursuant to TCDC 18.790.05.
I was under the impression that no tree cutting was to occur within the sensitive area? I
would appreciate some clarification of this? Mitigating for the cumulative impacts on
this development and the loss of almost 500 trees on this site and the adjacent
development cannot be attained and will never be accomplished.
I will close by challenging you to challenge your staff and the development community to
provide incentives to build smarter and in a more sustainable manner. I would also
recommend that you visit this site and tour the surrounding developments under
construction in our neighborhood. Does shared access on two lots, one of which is only
4,700 square feet make good quality development sense on this site and in our
community?
You have the discretion on these four issues and associated variance requests. Variances
should be discouraged and held to a higher standard. The question is - will you find the
political will, balance the benefit versus the harm, and require these developments to be
more creative and sustainable? I would implore you to push off your decision tonight
and take our legitimate concerns into serious consideration. Please make a very sincere,
thoughtful, and informed decision and consider the enormous impacts of the
consequences.
Thank you for the opportunity to comment and express my concerns as a stakeholder, and
adjacent neighbor whose quality of life will forever be changed.
ATTACHMENT 1.6
COMMENTS SUBMITTED TO THE CITY OF TIGARD REGARDING
SUBDIVISION 2003-00010 PLANNED DEVELOPMENT REVIEW 2003-00004
ASHCREEK ESTATES SUBDIVISION LUBA APPEAL
Sue Beilke, Director
Biodiversity Project of Tigard
February, 8, 2005
We submitted comments earlier during the initial Ash Creek decision and subsequent appeals.
Our comments subsequent to the LUBA remand are as follows:
We ask you, the members of the Tigard City Council, to consider what one of the purposes of
the Planned Development Code, which includes:
• To preserve to the greatest extent possible the existing landscape features and
amenities through the use of a planning procedure that can relate the type and
design of a development to a particular site.
Upon reviewing again, this proposed project, we argue here that it does not meet the
Purpose of the PD code. The PD is a trade off between adding benefit to the city for giving
the developer some flexibility, but not so much that it negatively affects the existing
landscape, including in this case, the steep slopes, sensitive lands, and Ash Creek, on the site.
The applicant proposes to not only clearcut the entire upper portion of the property, but also to
remove 74 trees from the sensitive lands. This proposed action will have extreme negative
affects on the site, since it will drastically alter the hydrology of the site as well as cause
erosion and great harm to the remaining trees on the sensitive lands area. Heavy equipment
will impact tree roots as well as small shrubs and herbaceous species, and wildlife, such as
salamanders and frogs which cannot move out of the way of this equipment. The steep slopes
have numerous seeps and unstable fragile soils which will be negatively affected by
development and removal of any trees.
We have seen numerous examples of the negative results of clearcutting or removal of even a
portion of trees from a steep slope, and they are disastrous. Trees remaining end up dying due
to the change in hydrology, stream turbidity increases due to slope movement and soils
washing into the stream, and a tremendous amount of wildlife, including songbirds,
amphibians, deer, fox, etc. is outright killed or displaced to the streets due to the loss of
habitat.
Section 18.745.030 of the Code states that "Existing vegetation on a site shall be protected as
much as possible." This does not mean just trees, but includes native shrubs and herbaceous
species. It MUST include these plants, for they are an integral component of a forest or
riparian vegetative community. Shrubs such as snowberry and dogwood and herbaceous
species such as ferns provide critical habitat for wildlife, including nesting sites, food, etc.,
and also cover for a variety of species including red-legged frogs, a State Sensitive-critical
species which is found on this site. This proposed PD does not meet this section of the code
as it currently stands, for it fails to include a plan for protection of "vegetation", therefore, the
application should be denied. .
Section 18.790: In addition, in a conversation we had with Clean Water Services (Colin
MacLaren) in 2004, we .were told that the developer DID NOT have permission to remove the
74 trees from the sensitive lands area. This has never been, to our knowledge, cleared up, and
we are still waiting to hear from CWS. As a result, we ask that the Council deny this
application based on this information.
The Metzger-Progress Community Plan (MPCP) is the resource documentation underlying
the Tigard Comprehensive Plan. It designates the Senn property as the ASC 10 (Area of
Special Concern). Under this designation it requires that "Development of structures and land
division in this special wooded area shall be planned and reviewed under the Type III review
provisions of the Community Development Code. It goes on, to state that because of the
importance of trees and other natural vegetation to the wildife habitat and scenery of the
community, "development shall be designed to minimize the area disturbed". It also lists the
Senn Ash creek site as a "Significant Natural Resource", and highlights its wildlife
importance. The Tigard Comp. Plan, Policy 3.4.2, states "The city shall require cluster type
development in areas having important wildlife habitat value as delineated on the Fish and
Wildlife map on file at the city." The wording of the Comp. Plan is mandatory. Since the
applicant has not provided cluster typed development, etc. in this application, nor has met the
requirements of the Comp. Plan, nor made an attempt to protect more of this natural resource
site, we argue here the application should be denied.
We ask you, the Council members, to think about the latest results from the Tigard Beyond
Tomorrow Vision in 2004 survey results in the Cityscape, February, 2005. They. included:
Provide for preservation of the natural environment and open space throughout
the community.
• Accommodate growth while protecting the character and livability of new and
established neighborhoods.
This project as proposed, cannot accomplish the above. It would fail to protect the character
and livability of the established neighborhood, and in fact would ruin the character of the area.
We ask you, Council members, to help us preserve and protect the Ash Creek site, since it is
the last predominantly western red cedar forest left in the Metro region. We would like to see
this site purchased by the City of Tigard in its entirety, as a natural area for all the citizens of
Tigard to appreciate and enjoy. If we do this, we can protect the livability of this
neighborhood, as well as protecting a unique biologically diverse natural resource.
Thank you for the opportunity to comment.
Sincerely,
Sue Beilke
1. 6 EXHIBIT A
.y
A
ATTACHMENT 2,1
ASH CREEK WRITTEN TESTIMONY JOHN FREWING~ n
BEFORE THE TIGARD CITY COUNCIL o ECO V FD
IN THE MATTER OF ASH CREEK ESTATES REMAND
PDR 2003-0004 (ET. AL.), LUBA 2003-194~~
FEBRUARY 14, 2005
My testimony is divided into three parts: 1) the remand process and scope of hearing adop e y Tigard,
2) the substance of remanded issues, LUBA unresolved issues and new applicant evidence and 3)
reasonable actions which Tigard City Council might make as a result of this remand hearing. A recurring
theme in my comments will be that you have been given a highly varnished report on this development,
not exposing you to a variety of differing facts, which should influence any decision.
I have worked as an appointed member of Tigard's Planned Unit Development Regulations Review
Committee for almost a year now. I am retired, a former registered Mechanical and Nuclear engineer in
the State of Oregon. On our review committee, we have become acquainted with many issues in PD
review. As a reminder to City Council, I would note that the first purpose of a PD is to provide a superior
living arrangement than would be afforded by the normal subdivision rules - this is done by applying
flexible standards. Thus, with the `give' by the city on flexible standards, the developer is to provide a
`superior' living arrangement (for not only the residents, but the city as a whole) in this development,
compared to comparable developments using the subdivision process. Further, the PD approval involves
a number of discretionary choices by city council as distinguished from the `clear and objective
standards' used for a standard subdivision. The Tigard staff report (page 12/28) mentions this situation,
saying that actions like this "contain predominantly discretionary approval criteria." Because this site
involves a heavily treed deep draw on both sides of South Fork Ash Creek, I remind the City Council that
TCDC Approval Criteria 18.350.100 B.2. specifically notes that the "developer may choose to provide or
the commission may require additional open space dedication and/or provision of additional amenities,
landscaping or tree planting." Beneath this approval criteria, in TCDC 18.350.100 B.2.a, the code notes
that a ten percent density bonus may be allowed as an incentive to increase or enhance open space,
architectural character and/or site variation incorporated into the development, provided these factors
make a substantial contribution to the objectives of the PD. Thus, my opposition to this particular
development is not driven by rigid land use regulations, but by the lack of balance proposed by the
applicant and seemingly accepted by the city between new development and benefit to the city. In the
end, I will ask that City Council use these provisions to negotiate a "new deal" with the developer.
This IS a very complex combination of difficult site and proposed residential development. It involves
one of the largest remaining parcels of space in Tigard zoned for residential use. I believe it is not
something which can be decided on some simple philosophical or policy basis. It requires examination of
the nuts and bolts of the site and proposal - unfortunately that requires time. But as noted below, I think
Tigard does have the time to decide this on its merits. This is not the time to act quickly and say `we will
do better next time,' or `this has gone on long enough, lets just make a decision and be done.' All of us
want this to be resolved quickly on its merits. As City Council, you were elected to do this work and
swore to do it. As citizens of Tigard, we have hope that you will do your job diligently.
REMAND PROCESS AND SCOPE
The subject application for a planned development (and subsidiary other permits) was remanded to the
City of Tigard on August 20, 2004 and became final on September 13, 2004. An earlier application for
this planned development had been appealed to LUBA by John Frewing and the record of that
application, review process, approval and appeal is incorporated by reference in these comments.
1
Petitioner John Frewing, awaiting City of Tigard action on the remand, visited with the planner
designated for this application by the Director, Morgan Tracy on or about October 18, 2004, inquiring
about both the process which Tigard would use to consider the remand and the status of any received
material from applicant Windwood Construction. Morgan Tracy informed Frewing that this process was
new to him, but he believed that Tigard would conduct a Type III hearing by City Council, since it was
City Council who approved the application in late 2003. Morgan Tracy indicated that no material had
then been received from the applicant. Later, on or about November 22, 2004, petitioner Frewing again
visited with Morgan Tracy, asking the same questions. Morgan Tracy reiterated his belief that a Type III
hearing before City Council would be held, using the rules of the TDC. He provided petitioner Frewing
with a letter dated November 15, 2004 from applicant's attorney, "providing the City with additional
information and evidence related to those (remanded) findings" together with two 11x17-inch drawings
entitled "Revised Tree Preservation Plan, Sheets 12A and 1213" for the subject Ash Creek Estates planned
development, dated November 10, 2004. Morgan Tracy further opined in response to a question that the
90-day remand time limit for any revised Tigard final decision should start with the November 15, 2004
letter from applicant's attorney. Frewing noted that it did not include the required request stated in ORS
227.181(2)(a), namely a written request that the city proceed with the application on remand. Such a
written request was later received from applicant's engineer Kurahashi on December 13, 2004 (not in
your city council packet, see as Attachment A to this testimony), presumably as a result of Frewing's
query, relayed from Morgan Tracy, and this letter appears to be the basis for calculating a 90 day remand
period ending March 13, 2005 (see staff report). Note that at Frewing's visit of November 22, there was
no tree inventory or "Tree Plan" report from Teragan & Associates, Inc. in the Ash Creek Estates file.
Such "Tree Plan" from Teragan & Associates, Inc. now appears in the file and your packet, noting it was
received on January 14, 2005. The associated drawings, Sheets 12A and 12B which are in your packet,
have been updated and show a drawing date of January 10, 2005. Additionally, correspondence from
applicant's attorney in the file, which is dated January 19, 2005 and noted as received on January 20,
2005 (in your packet) provides "additional evidence relevant to the issues for the February 8, 2005
remand hearing....". Finally, two City of Tigard internal memos dated January 24 and January 25 now
exist in the file (and your packet) and are used in the staff report to justify its conclusions. The staff
report does note (page 12/28) that Type III procedures apply to quasi-judicial permits and actions such as
the present case. The reason I mention this sequence of events is that I contend:
A The Type III evidentiary hearing (18.390.050 C-F) and subsequent decision process is, as a
minimum, the correct procedure for Tigard to use in considering information related to the
remand.
TDC Section 390 establishes the "standard decision-making procedures that will enable the City, the
applicant, and all interested parties to reasonably review applications and participate in the local decision-
making process in a timely and effective way". TDC 18.390.010. Among the four choices for procedure,
Type III is correct for this remand proceeding. Type III procedure involves the City Council, the entity to
whom the remand is addressed, and offers all the opportunity to present evidence and rebut evidence, a
basic right of contested public decisions.
The TDC purpose of reaching a decision in a timely way would arguably be frustrated if any procedure
other than a Type III procedure were used. Appeals would be longer and involve more complicated
procedural matters and thus delay a final decision. Without use of the Type III procedure, the substantial
rights of petitioner Frewing would be prejudiced.
B Not all of the requirements of TCDC 18.390 have been met in processing this remand hearing.
The notice of hearing does not specify provisions of 18.390 as an applicable review criteria.
The general provisions of 18.390.080 have not been met: There is no written authorization by applicant
for attorney Christopher Koback to make the application (18.390.080 DI.b). Lacking such authorization,
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all material submitted by Mr. Koback, including material which he attaches, ie the Teragen "Tree Plan for
Ash Creek Estates" should be stricken from the record and not considered in reaching a decision.
No Tigard staff completeness evaluation and acceptance is part of the record.
C The time limit for Tigard final action on remand should be calculated from the date that the
application was complete, January 25, 2005, when the last memo used as substantive evidence on
the four remanded issues and referred to in the staff report was submitted.
This time limit should thus be on or about April 25, 2005, over a month beyond the date proposed by staff
of March 13, 2005.
Although I do not believe it to be correct, if a completeness date of December 13, 2004 is used, then the
provisions of 18.390.080 4 apply and the city council should make a determination of whether the
submittals after December 13, 2004 constitute "significant changes" to the application. I contend that
they do constitute significant changes and city council should advise the applicant to submit a new
application or reject the later submitted documents. Please make your judgment on this matter.
Even more evidence was submitted at the oral phase of the public hearing on February 8, 2005, but I am
of the opinion that it does not rise to the level of application completeness. If more evidence is submitted
as part of the applicant's rebuttal due February 18, 2005, I ask for the opportunity to review and rebut
such evidence. 1 am concerned about the timeline which you approved on February 8, 2005: opponent
written comments due Monday, 2/14, applicant rebuttal due Friday, 2/18 and council action planned on
Tuesday, 2/22, immediately after a weekend and holiday for city staff on 2/21. This, combined with a
time limit on oral testimony of only three minutes at the hearing on February 8, 2005 does not provide
enough time for you to hear and understand opponent comments and any rebuttal, time for staff to
evaluate opponent comments and any rebuttal and time for council deliberation on possible actions to
take. I must object to this timeline on the basis that it does not provide the due process which participants
deserve and therefore prejudices at least my substantial rights.
D Because of changing testimony by applicant over a wide range of subjects, Tigard consideration
of this PD should allow opportunity for citizens to question applicant and city staff as to the
provisions of the original application which remain in effect and changes contemplated as a result
of remand.
The City of Tigard staff report states (page 12/28) that `the findings contained herein are intended to
supplement the City's adopted findings where consistent'. This leaves it up to the reader to make a
judgment on consistency and search all prior findings for changes. A new and singular set of findings
should be adopted by city council. The staff report continues, noting that the report contains `applicant's
additional findings', not stating their status or role in the decision. Without a singular set of findings (see
definition at TCDC 18.120.030.A.70), any decision by city council is indeterminate and fails to serve its
intended purpose. The city staff report copies some of the applicant's discussion, but not all, and mixes
both findings and analysis regarding each of the remanded items. A land use decision is required to have
clear findings and you should ask staff to prepare such. As an example of such different findings, the
applicant proposes (bottom of page 4, applicant's lawyer letter of 11/15/04) that a separate permit will be
submitted for tree cutting within the sensitive area pursuant to TCDC 18.790.050, but the corresponding
requirement of the city staff report does not make this requirement. As an example of differing
conditions, compare Condition 31 with Condition 54. Condition 31 requires as a CCR, prior to later tree
removal on any lot, a certified arborist must certify as to a tree being "dead or in severe decline."
Condition 54, on the same subject, requires a deed restriction and a certified arborist to find that the tree
has either died or should be removed as a hazardous tree. Which condition should apply, or should both?
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SUBSTANCE OF REMANDED ISSUES, LUBA UNRESOLVED ISSUES AND EVIDENCE
SUBMITTED
A Vertical Sag Curve.
Regarding the vertical sag curve, applicant's lawyer rests his case for approval of a 15 mph design speed
for SW 74`x' on use of Washington County and State of Oregon standards for street design. The Oregon
standards do not exist as evidence in this proceeding, and they apply for many different settings than only
a city. I believe they are irrelevant to this case. Washington County standards are of limited applicability
because they cover a very large rural area with small roads, quite different from the urban setting of
Tigard. However, I have forwarded for the record and attached to this testimony (See Attachment B), a
seven page document submitted to the City of Tigard by Greg Kurahashi dated 11/15/04 - it purports to
be relevant pages from the Washington County street standards and is referenced by applicant's lawyer.
Clearly stated at the bottom of fax page 2/7, is a Washington County standard that "In no case shall the
design speed for alternative designs be less than 20 mph for local roads and 15 mph for alleys". The
subject road in the Ash Creek Estates application is not an alley, it is classified as a Neighborhood Route,
a local street, on the City of Tigard Transportation Plan (Record at 84). Hence, there is explicit guidance
at the county level that the proposed vertical sag curve is too sharp and violates their standards as wel I as
those of Tigard.
There is nothing in the Tigard code which allows the City Engineer to approve explicit violations of the
standards without an adjustment and its requirements. The LUBA Final Opinion and Order of August 20,
2004 makes clear that such permission must be found in order to sustain the city's position. LUBA
stated, " If the city engineer has retained discretion under the TCDC and any other related city regulations
to simply deviate from the table and allow construction of a road with a lower "K" value and impose a
speed limit to preserve safety, no party identifies such authority." Final Order at 26. There is no such
authority. In fact, the Tigard code regulates to the contrary. The TCDC at 18.210.070 A clearly states
"All officials, departments and employees of the City vested with authority to issue permits or grant
approvals shall adhere to and require conformance with this title, and shall issue no permit or
grant approval for any development or use which violates or fails to comply with conditions or
standards imposed to carry out this title." The process contemplated in the TCDC to deviate from city
standards is to request an adjustment. None has been requested here. In his January 25, 2005
memorandum to Morgan Tracy, the city engineer by himself, simply asserts a right to "authorize
modification of the street improvement design standards if justified" but no authority is cited as required
by LUBA.
There is still no evidence in the record that an alleged meeting took place at which approval of a deviating
vertical sag curve was granted as asserted in the earlier staff report prepared by city (Record at 84) and
findings approved as part of Ordinance 03-61. Record at 43. This assertion was added after the close of
the September 9, 2003 hearing and no additional rebuttal could be admitted (see proposed findings by
applicant which do NOT refer to city engineer approval in an earlier findings letter dated 9/26/03 at Third
Supplementary Record 21). This late admission of evidence was not considered by LUBA and you have
the opportunity to correct this procedural error now by rejecting the evidence, then the claim of applicant
and city staff to grant a waiver of the standard without a fully compliant adjustment. Even in his January
25, 2005 memorandum to Morgan Tracy (part of your packet), the Tigard City Engineer makes no
reference to earlier consideration of a vertical sag curve that violates city standards. He goes on, but in
the end, fails to impose a 15 mph speed limit, only recommending an "advisory 15 mph sign". An
advisory speed sign is not a speed limit and will not provide the safety afforded by compliance with city
standards. In the earlier proceedings, at least it was allegedly requested by the applicant that the city
engineer agree to an actual speed limit of 15 mph. Oregon is well aware of the problem of having an
excessive vertical sag curve adjacent to a sharp crest curve - the newspapers of the past year carried the
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stories of youth killed and hurt from joy riding on such a road near Wilsonville, where they claimed it was
fun to "get air" on a similar street alignment.
Furthermore, regarding the vertical sag curve on SW 740' Ave, the new information and evidence
submitted by applicant's lawyer states (page 2) that "Windwood could make the required improvements
using only 21.63 ft. of fill." Applicant knows that even this depth of fill, as planned, far exceeds safe
limits of soil cover over the large water transmission piping in the right of way. There is evidence held by
Tigard city staff, but withheld from your packet, that the vertical sag design proposed for the SW 70
crossing of South Fork Ash Creek is unsafe. This evidence affects any reasoning applied to the approval
of a vertical sag curve on SW 74"'. I make reference to a letter transmittal sheet dated 5/19/04 from
Dimitrios Shaidaee of Kurahashi & Associates to Kim MacMillan of the City of Tigard, which included a
six page fax from Kaaren Hofman of the City of Tualatin to Dimitrios. See Attachment C to this
testimony. This fax is a technical memorandum from CH2M/HILL, an engineering firm retained by City
of Tualatin, evaluating potential impacts from road development to the 36-inch transmission water line in
the right-of-way on SW 74''' adjacent to the proposed Ash Creek Estates. The findings of this evaluation
are clear "The existing pipeline is not designed for a 21.6 foot total fill height and as shown in the
attached calculations the required V (sidewall support pressure from the bedding and initial
backfill material) would need to be over 4000 psi. The existing bedding and initial backtill might
have an insitu V value of from 700 to 1000 psi, far less than the 4214 psi noted as required in the
calculations." The memorandum goes on to recommend a program of excavation and pipe
bedding/sidewall strengthening with reinforced concrete, which would apply to 200 lineal feet of the
transmission water line as it crosses South Fork Ash Creek. The importance of this is that a great deal
more excavation in the sensitive area, wetlands and stream bed appears to be required for the Ash Creek
Estates development than presented in the application so far. This additional damage to the stream
resources has not been considered in any of the evaluations to date (city, CWS, Army Corps of Engineers,
DSL). The expense of the reinforcement work makes more logical the use of a bridge for this draw with,
as noted by applicant, "very, very steep" side slopes. This change in conditions requires reevaluation of
the stream crossing design and its benefits and costs; additional review by at least the Army Corps of
Engineers and Oregon Division of State Lands is warranted before any city action. Tigard, possessing
this information, should inform these agencies of the changed condition for this stream crossing. The
proposal before you has already been significantly changed in design without letting you know.
I additionally question the safety of the Tualatin transmission water line even as it exists today, with its
existing 10 foot fill height. Engineering texts and standards (see for example
www.hi.ihe.nl/sr ug ide/appB.html) state that the embedment modulus, E', mentioned above, is directly
proportional to vertical pressure on a buried pipe due to backfill and surcharge. This direct
proportionality, as distinguished from a squared proportionality or cubed proportionality means that if an
E' value of 4000 psi is required for 20 feet of fill, then an E' value of 2000 psi is required for 10 feet of
fill (the present situation). Yet the CH2M/HILL memorandum states that the present E' value for the pipe
is only in the range of 700 to 1000 psi, far short of the apparently required 2000 psi. Applicant should be
required to determine the location and therefore safety of the present line before any site work, not only
by potholeing (a condition of earlier approval), but by producing calculations from mechanical engineers
showing that the present situation is safe. We all agree that any failure of the water transmission piping is
something to be avoided.
Applicant's lawyer claims that Windwood consultants considered a bridge as opposed to a fill (page 2 of
November 15 letter). There is no evidence in the record of who such consultants might have been, how
their evaluation was done or what their conclusions might have been. The city staff report claims that
such evaluation was done by applicant's engineer; it is indeterminate whether this is the same person(s) or
not. I have testified that a bridge can indeed be used without hazard to the underlying water line while
maintaining the ability to excavate and repair such water line. By arching over the water line at either end
of the bridge (transverse to the street direction), no additional pressure is placed on the water line, the
sensitive area near the stream is not impacted and maintenance can be done by the same excavation which
would be required if a fill is placed. Of course, there are also today a variety of trenchless inspection,
5
construction and repair techniques available to buried pipe owners and operators, ie internal pipe
cementing systems, video systems, directional tunneling, etc. As evaluators of this design feature, you
should be asking city staff to obtain and review both the applicant's consultants work as well as
commissioning an independent evaluation of best choice for safety, maintainability and minimization of
impact to the stream resources. I also ask that you take official note of the appropriate government
regulations and guidelines: ORS 509.585 requires Oregon Department of Fish and Wildlife approval of
any crossings of fish bearing streams and their guidelines express a first preference for bridge crossings of
streams - no such approval exists in the record for this development. See Attachment D to this
testimony.
Applicant's lawyer asserts (page 1 of November 15 letter) that placing additional fill to enable a crossing
of South Fork Ash Creek with a more gentle vertical sag curve would also make the adjacent crest curve
lower. He is wrong and it is wrong for city to rely on this assertion in any action (City staff report, page
14/28). See drawing 5/12 (Record at 633) which shows the crest curve is completely independent of any
proposed fill over the creek - it remains a significant hazard in conjunction with the vertical sag curve and
the junction of SW 74''' Avenue with the new proposed public street which would provide access to Ash
Creek Estates. Even applicant's two drawings introduced as evidence on February 8, 2005 showed that
the adjacent crest curve is not lower. Such claim against making a compliant vertical sag curve is without
merit and any decision based on it is again without factual basis
Applicant's lawyer states (page 2 of November 15 letter) that for the buried water line to be maintainable,
the amount of earth over the line must be minimized. If this is the case, the proposal by applicant to add
up to ten additional feet of fill over the buried water line would reduce the maintainability of the line
significantly. This ten feet of additional burial more than doubles the load on the water line for a
significant part of its passage fronting Ash Creek Estates. If indeed, maintainability in wetlands is a
criterion for designing a stream crossing, a bridge offers less excavation needs and should be favored in
any decision you make. City findings adopt the applicant's same conclusion regarding maintainability
which is inconsistent with permitting increased fill over the buried transmission water line in SW 701
Avenue.
Both the applicant's lawyer (who does not state his qualifications as an engineer in offering new
evidence) and the city staff report make the point (page 2 of November 15, 2004 letter and page 14/28 of
the staff report) that a large failure of the transmission water line would produce catastrophic results. 1
happen to agree with this conclusion, but think it is independent of what design might be used to construct
a street crossing of South Fork Ash Creek. I urge you to discount this `scare' talk about catastrophic
damage as any reasoning for accepting the applicant's proposal.
Both the applicant's lawyer and the city staff report argue against additional fill for the street crossing of
South Fork Ash Creek, saying that it will result in removal of additional large trees in the sensitive area. I
believe they are wrong. Examination of the latest tree plan, received January 14, 2005 (see vicinity of
road crossing South Fork Ash Creek) and comparison of this drawing with the civil engineering plan for
the stream crossing (sheet 2/12 in the earlier application, Record at 630) shows that there are no trees
proposed to be saved by applicant which a higher fill (less extreme vertical sag curve) would cause to be
removed. As one example, look at trees 5256, 5253, 5257 and 5233. Applicant submitted two drawings
at the oral phase of the City Council remand hearing on February 8, 2005 which purport to show trees
impacted under the applicant's proposal and those impacted if additional fill were installed to meet a 25
mph design speed for the street. While there is no legend on the drawings submitted on February 8
saying what different colors and markings mean, there are no tree identification numbers, and there is no
indication on these February 8, 2005 drawings of what trees would be cut per the applicant's latest tree
plan proposal, these particular four trees are shown as being removed (ie highlighted in dark green
marking pen) with higher fill and saved under the applicant's proposal. In fact, the latest tree plan for the
proposal, submitted January 14, 2005 shows these trees as being cut and removed even with the
applicant's proposed lesser fill level. So new fill does not impact these trees. As a second example, the
applicant's drawings submitted on February 8, 2005 show a tree as `saved' some five to ten feet south of
6
the storm drainage retention pond if the applicant's design were accepted and impacted (ie cut and
removed) if a higher fill were placed across the South Fork Ash Creek. The latest tree plan, submitted
January 14, 2005 shows the entire group of trees at this location as trees to be removed (trees 5206, 5207,
6334, 5211, 6333 and 6335). I would note that on the same drawing showing this `saved' tree, it shows a
storm drain line passing directly beneath the tree. Unless some tunneling process is proposed (not
identified by applicant for this or any other trees on the site), this tree cannot be saved as a result of
trenching for the storm drain line. Any decision based on this claim of more tree removal is wrong.
The two drawings submitted on February 8, 2005 generally should not be relied on as a basis for any
decision regarding type or height of fill in a stream crossing of South Fork Ash Creek. They are undated,
unsigned, and without a legend to read them. There are arrows pointing to two different `impact' areas,
one `for relocated 36" water line', even though NO ONE has proposed to date to relocate the 36" water
line in SW 74`'' Avenue, so this impact line is nonsense. Note that both the Tigard staff report (page
14/28) and the applicant's lawyer's letter of November 15, 2004 say "relocating the waterline is not a
viable option." Applicant has created a `straw man' in purporting to show how increased fill to eliminate
a nonconforming vertical sag curve will create added impact in the sensitive area around the stream. He
suggests excessive additional fill to solve the nonconforming vertical sag curve. The February 8, 2005
drawings redesign the entire length of SW 74''' adjoining (and extending beyond) the proposed Ash Creek
Estates - the vertical sag curve originally proposed by applicant extends from Station 17.85 to Station
19.15 and the suggested curve with a conforming fill extends much further. The low point of the sag
curve in these "comparison" drawings is moved some 75 feet south and the pivot point for the sag curve
is moved some 147 feet south under conditions of a conforming vertical sag curve. Only the vertical sag
curve needs correction to meet city design standards and any comparison of impact should consider only
fixing the vertical sag curve section. The February 8, 2005 drawings exaggerate any impact of increased
fill to solve the vertical sag curve nonconformance by coloring in much more areas than the sensitive
areas which might be impacted. The drawing of the original submittal (Record at 628) shows the extent
of sensitive areas - any coloring outside these areas on the February 8, 2005 drawings are exaggeration
for visual impact.
More exaggeration on the February 8, 2005 drawings exists in showing a requirement for the box culvert
for South Fork Ash Creek to be extended west if additional fill were required to make the vertical sag
curve conform to Tigard standards. Such extension goes on to private land to the west and is not shown
as necessary for the applicants base proposal - the west side of the fill is shown as a vertical lock block
wall in both cases. These drawings also state that added fill would require some reconstruction to the
approved subdivision which lies to the south, although no street grade impacts, storm drain impacts or
other details of this subdivision are shown. Both the original proposed fill (nonconforming vertical sag
curve) and hypothetical fill (conforming vertical sag curve) impact Ash Creek Estates lots the same, ie
there is fill on a) lot 28 on the south side of the stream and b) the storm drain retention pond tract on the
north side of the stream. With the storm drain retention pond partially filled under both the original and
alternative (conforming) design of the stream crossing, applicant has not proposed other arrangements for
handling storm drainage; such will necessarily require redrawing lot lines and changing the sizes of lots in
the development.
Finally, there emerges a significant difference in what is put forth as the maximum vertical height of soil
cover over the City of Tualatin 36" water transmission design in the case of the applicant's proposed
design. On the most recent evidence, the February 8, 2005 drawings, it is stated as 17.6 feet of cover.
However, the maximum vertical soil cover over the 36" line as shown in the CH2M-HILL memorandum
to City of Tualatin is 21.63 feet (see table at bottom of fax sheet 4, Attachment C to this testimony).
Applicant's lawyer, in his November 15, 2004 letter on remand issues also states that the applicant is
proposing a 21.63 foot soil cover of the transmission water line. This difference is compounded because
applicant makes the claim on the drawings submitted February 8, 2005, that if a conforming sag curve is
constructed, it would result in a maximum soil cover over the water transmission line of over 31 feet.
And in the applicant's lawyer's memorandum of November 15, 2004, he further states that a compliant
7
sag curve would require fills of greater than 35 feet over the line. Again, I believe this is exaggeration for
the effect of impact on reviewers and should be discounted.
The applicant's lawyer discusses the process by which the State of Oregon uses to set speed limits and
this discussion is copied verbatim by the City of Tigard as findings. This entire discussion should not be
admitted as evidence - at most it is hearsay and as such, should not be the basis for any decision
regarding speed limits. The lawyer is not identified as a traffic engineer and no evidence from the state is
introduced which addresses speed limits. This mixture of softly introducing something other than clear
evidence and tying it to legal arguments is not only irrelevant, but disturbing in making a clear land use
decision. The entire discussion should be struck from the record.
The city staff report notes that the city engineer has determined that the vertical sag curve segment of SW
74'h Avenue should be monitored to verify whether the signage proposed is sufficient to slow traffic. It is
without effect, since this determination does not specify who shall design the program and monitor the
traffic, what kind of monitoring shall be done, how long monitoring shall go on, what reports shall be
generated, to whom these reports will be submitted or how the signage will be judged "effective" or not at
some time less than a year beyond completion of street construction. I question whether the year
`following completion of street construction' is an appropriate monitoring period, since housing
development will still be ongoing and residents of Ash Creek Estates will not have yet all moved in.
More appropriate would be the period starting with street completion and ending one year after all houses
of the PD are occupied. The proposed condition of approval (#52) simply states that `the sag' shall be
monitored, not the motor traffic or pedestrian use or bicycle use along this segment of the street.
Monitoring the sag alone (the "K" value is unlikely to change much at all) says nothing about safety of
the street. In testimony on February 8, 2005, Tigard planner noted that the cost of monitoring was
required by the Condition #52 is to be borne by applicant. Examination of the condition in the staff report
and in the city engineer's memorandum which is referenced shows no such assignment of cost; the
condition should be modified to specify cost responsibility for all phases of the monitoring project. Your
approval of any vertical sag curve should be clear in outlining monitoring conditions.
Applicant and city staff also know that the proposed vertical sag curve must cause other design changes in
the development. The reason that these are not before you is unclear, but perhaps it is part of a general
pattern of simplification of presentations to you, keeping the difficult parts for staff decisions alone.
Applicant has submitted PFI drawings to the city engineering department. Under your regulations, these
are drawings, which show public facility and infrastructure (PFI) elements, which must be completed
before any house construction can take place. I provide for you today one such drawing from the
engineering department file showing that the steep slopes associated with the vertical sag curve
fill/culvert over the creek will cause at least two significant changes beyond what is on the record as
proposed (See Attachment E to this testimony). On the south side of the creek, what was originally
proposed as a I0-foot access to a flag lot must be increased to 25 feet, because it is along the property line
and cannot be placed further north because of steep ground (fill of the stream crossing with
nonconforming vertical sag curve) there. On the north side of the creek, the storm drain retention pond
which is adjacent to the steep fill of SW 740' must be dedicated in a separate tract because it eventually
will belong to the City of Tigard and must be moved because as shown in drawings presented on
February 8, 2005, it will be partially filled by the proposed crossing of South Fork Ash Creek. Both these
changes reduce the size of lots in the development, increasing residential density, a change which violates
Tigard regulations when comparing a conceptual plan to a detailed development plan. See TCDC
18.350.030 B. La. You should consider these lot size changes in a new application.
The city engineer's letter of January 25 does not contain any reasoning for his unauthorized approval of
the non-conforming proposed vertical sag curve, ie any logic which connects the facts of the situation
with the requirements of the regulation. He only addresses motorists for this design deviation, ignoring
pedestrians and bicyclists who are also authorized users and for whom the city engineer has design
responsibility. The fact situation is that approval of the nonconforming vertical sag curve creates hazards
for both pedestrians and bicyclists. To the north of the site on SW 74`h, the street, which was constructed
8
in the early 1970s to county standards, has pavement only 20 feet across. There are no curbs or sidewalks
and a steep wall confines pedestrians and bicyclists to the paved way. To the south of the site on SW 74"i,
where the street has a slope of over 14 percent, there is no curb or sidewalk on the east side of the street,
which is where applicant proposes to provide a sidewalk as far as the Ash Creek Estates property extends.
At that point, pedestrians and bicyclists who use the east side sidewalk adjoining the Ash Creek Estates
site are forced on to the three-fourths width street, perhaps crossing to the west side of the street, where
another development may soon have sidewalks in place. Such pedestrian and bicycle movements on
steep slopes with a sharp vertical sag curve and crest curve which can limit visibility is unsafe. A level
bridge across the steep draw of the creek would avoid some of these problems.
The proposed vertical sag curve as part of a fill and culvert across South Fork Ash Creek further violates
TCDC 18.350.100 (13)(3)(a)(1), which requires preservation of "the existing trees, topography and natural
drainage to the greatest degree possible." A bridge (mentioned as a possibility by applicant's engineer in
testimony on February 8, 2005) over the draw with very steep sides preserves these features to a greater
degree than the proposed fill with vertical sag curve.
B Submittal of a tree plan meeting all requirements of TCDC 18.790.
The very core of any tree plan, ie, identification of the trees, is still in contention in this development
proposal. The city staff report says that there are 893 total trees on site that are larger than 12" (Staff
report, page 19/28). The Teragan & Associates, Inc. tree plan submitted by applicant's attorney says
"there are a total of 778 trees greater than 12 inches in diameter on the site" (page '/o). This difference
between city and applicant should be cause for rejection of the tree plan on first viewing. It either reflects
a gross misunderstanding of the Tigard regulations or a gross lack of concern for adherence to the
approved tree plan or questions of competence on one or another party. A clean application should be
required for consideration by the city. The city is to evaluate the application "as submitted" without
significant modifications.
Regarding the actual specification of tree removal in the tree preservation plan, applicant has retreated
significantly from his commitment of the initial application process, in which he stated that he would
retain 100 percent of trees south of a line drawn during the September 9, 2003 continuation of evidentiary
hearing which adds up to 120 feet of intact tree cover on the south side of lots 13- 18. Compare the tree
removal boundary shown on Record at 325 (a copy of this drawing is attached to this testimony as
Attachment F) with the proposal for removed trees shown on `Exhibit B' drawings in your packet. As
an example, the revised tree preservation plan eliminates protection of large trees 6116, 6118, 6120, 6121,
6125, 6126, 6127, 6128, 6129, 5377A, 6136, 6137, 6138 and 6318 which each individually are south of
the sharp break in vegetative boundary line on the south edge of lot 15. This change alone is a significant
change from the prior application. Resubmittal and reevaluation of the application is the appropriate
action per TCDC 18.390.080. Such retreat from prior commitment also is evidenced in no longer having
a 15 foot buffer along the north and east side of the development where trees are to be saved.
The addition of a 42-page spread sheet of 1,430 trees identified on the site is a substantial change in the
application. The earlier application identified only 876 trees on the site. I believe this significant change
must be reconsidered pursuant to TCDC 18.390.080. This change alone warrants a trip - a review of the
site by City Council before deciding on action and any conditions to be imposed on the Ash Creek Estates
development. Such visit to support a decision is clearly contemplated by the TCDC at 18.390.050 D 9 c.
Since the public and neighbors are not allowed any independent verification of this large tabulation, I
would encourage such visit, with the City Council members picking some 15 tree numbers at random
from the table and determining the accuracy of the table by finding the tree on the site and observing its
size, species and condition. It would be the only independent verification of this information, since there
is no evidence that the City Forester made any such independent observation between the time the table
came to the city (1/14/05) and his comments ten days later (1/24/05).
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The tree plan proposed by applicant is inconsistent within itself. The prior conditions of approval
proposed by applicant (Record at 322) state both 1) that a hedge of Leyland Cypress will be installed
along the north and east borders of the site and 2) no healthy trees will be cut on the open space tract,
which includes a strip 15 feet wide on the north and east boundaries of the site and no healthy trees will
be cut more than 15 feet from the rear of the building footprints on lots 1-18. Thus, two quite distinct
actions are proposed for the same areas of the tract (the boundary strip). This inconsistency is
compounded by the fact that no building footprints are available for this development, so the 15 foot
setback from each house can not be determined, and perhaps more telling, no condition is imposed that
prior to any tree removal that such building footprints must be developed. After tree removal, any intent
to then save trees is without effect - the large trees are gone. Since the 15 foot setback cannot be
determined, the tree plan cannot clearly specify which trees are to be saved and which are to be removed
(a requirement of TCDC 18.790). Deferral without a finding of feasibility for later actions or provision
for a public process for a later action does not meet Oregon land use law requirements.
The 42-page spread sheet associated with the tree plan contains differing numbers which should be
resolved with the Tigard city forester before any action on this application. An accurate accounting of
trees on the site is required to determine mitigation requirements. For example a) trees which are only
12" diameter are counted as trees greater than 12" diameter, thus inflating the number of viable trees
greater than 12" diameter and reducing the percentage of trees removed - see for example line 33 on the
spread sheet (I found 48 such trees on the table, reducing the number of viable trees greater than 12"
diameter from 778 to 730); b) a tree with an effective diameter of 13" is not counted as a tree greater than
12" diameter - see for example line 162 of the spread sheet; c) trees with multiple stems are sometimes
evaluated as having an `effective diameter', other times they are not - see lines 928 and 954 for the
former treatment, and see 921, 923 and 939 for the latter treatment; d) in at least one case, identical size
trees are accounted for differently - see lines 1397 and 1399 of the spread sheet.
While not having access to the development site, I note significant changes in the tree plan regarding
saving of the largest trees on the site. In the earlier proceeding before Tigard city council, applicant stated
that there are 22 trees with diameters equal or greater than 36 inches. Of these, 21 were stated to be
Western Red Cedar and 15 of these were to be saved. See Record, Fourth Supplement at 54, 55, testimony
of arborist Knapp. In the present plan, there are 38 trees on the site with diameters equal or greater than
36 inches, of which 35 are Western Red Cedar and 19 are proposed to be saved. Comparing the
difference in tree quality between those to be cut and those to be saved, I find (see the 42 page spread
sheet received at Tigard on Jan 14, 2005), that there are four times as many poor quality trees to be saved
as to be cut and twice as many very good quality trees to be cut than those saved. This tree count increase
of over 50 percent, while it is consistent with assertions by opponents at the earlier proceeding, is
significant; the Tigard city forester should be asked to evaluate the basis for the difference. The
substantial increase gives further weight to the argument that this grove of trees is indeed unique in
Oregon and deserves the greatest protection which your judgment can afford.
TCDC Section 18.790.030 B 3 requires that the tree plan identify all trees, which are proposed to be
removed. By admission of the purported project arborist, the applicant (Teragan, page 2/4, 11/19/04)
states that "it may be decided at a later date to retain some of the trees on each of the lots". Applicant,
further, in oral testimony on February 8, 2005, characterized the tree plan as a `worst case scenario'.
These statements conflict; the code requirement should be met - all trees which are proposed to be
removed should be identified in the tree plan, not at some later date when the public is not involved. Such
noncompliance with the code further prejudices my rights.
TCDC Section 18.790.030 B 4 requires that the tree plan "define(s) standards and methods that will be
used by the applicant to protect trees during and after construction." The applicant's tree plan (Teragan,
page 3 of 4, Appendix #l, 11/19/04) states, among other things, that before construction begins, the
applicant shall "establish tree protection fencing around each tree or grove of trees to be retained". While
this later action may be important, it does not "define standards or methods" for such tree protection
fencing as required at this stage of planning. The city forester, in his comments (Attachment 4 in your
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packet, page 5 of 6, January 24, 2005) clearly states some such standards or methods, but they are not in
the application nor have not been included as conditions of approval in the staff report which states
findings. Such standards or methods should at least be included as a condition of approval. They state
"To determine the size of the tree protection zone (TPZ), the project arborist should follow the
guidelines listed below: 1 For individual trees follow the trunk diameter method. For every one-
inch of diameter at breast height (DBH), or 4 % feet above the ground, allow 12 inches of space
from the trunk of the tree. For example, a tree that is 15" at DBH must have at least 15' of tree
protection zone around the entire canopy of the tree. 2 For groups of trees the tree protection zone
must be outside of the drip line of the trees on the edge of the stand. If there are conifers with
narrow crowns on the edge of the stand, follow the trunk diameter method or the drip line method,
whichever is greater. 3 Calculate and follow the Optimal Tree Protection Zone calculation as
shown in "Trees and Development: A Technical Guide to Preservation of Trees During Land
Development" by Nelda Matheny and James R. Clark. 4 The project arborist may propose an
alternate method for establishment of the TPZ, provided the effort is coordinated with the City
Forester."
TCDC 18.790.030 A requires that a tree plan be prepared by a certified arborist. The project arborist for
this development is not identified. In the previous filing, Walter Knapp was identified as the project
arborist; in the present filing, Terrance Flanagan of Teragan & Associates writes the forwarding letter of
the tree plan, but the identity of the plan author and project arborist is in question. Appendix #I of the
Teragan report "Tree Protection Steps" further identifies still another person, the `project consulting
arborist', as a key player in some aspects of tree protection - such person is not identified by applicant.
While these may all be the same person, the coordination of actions between them seems difficult if they
are different persons. The forwarding letter of the Teragan tree plan is signed by Terrance P. Flannagan,
but he indicates only that he is a member of the American Society of Consulting Arborists and certified
thereunder, as distinguished from the referenced licensing authority regularly referenced by the Tigard
City Forester, and the former project arborist, the International Society of Arboriculture. The tree plan
itself (pages 3 and 4 of the Teragan transmittal) is not signed by anyone, let alone a registered arborist.
The "Revised Tree Preservation Plan" contained on two large drawings is not signed by a certified
arborist, nor signed by anybody - a Kurahashi consulting firm engineering stamp is affixed, but not
signed. Until these discrepancies can be resolved and certification confirmed, this application should not
be approved in violation of the TCDC.
In considering the number of proposed tree removals in the tree plan, Tigard should be mindful of the
TCDC requirement at 18.350.100(B)(3)(a)(1) for planned developments which requires preservation of
"the existing trees, topography and natural drainage to the greatest degree possible." The application
before you does not meet this standard. The forwarding letter for applicant's tree plan submitted by
Teragan & Associates, Inc., dated 11/19/04, clearly states "It is possible that depending on the final home
design that is chosen, some of the trees that are shown to be removed will not be." Applicant's lawyer
and engineer, in oral testimony on February 8, 2005 offered the same evidence, characterizing the tree
plan as a `worst case scenario' with the hope that fewer trees might be removed. It is cited here to show
that the plan presented does not preserve existing trees, topography and natural drainage "to the greatest
degree possible" because the applicant has offered evidence of an alternative which would save more
trees. The need for tree retention at this site is highlighted by the fact that this site has long been
recognized as a significant natural area, and has long been recognized as a site for a potential city park or
open space. At present the closest Tigard park for the northeast quadrant of the city is Liberty Park at the
intersection of Main St and Highway 99 - over a mile away and across two of the busiest highways in the
city (Hwy 217 and Hwy 99W). This small pocket park is not easily usable. In the Metzger-Progress
Community Plan, which preceded annexation by City of Tigard, this site was designated as a significant
natural area; upon annexation, Tigard was to map this characteristic on to its land use plan - it was not
done. However, interestingly from my point of view, the annexation agreement provided that the land use
designations of the Metzger-Progress Community Plan were to remain in effect until changed by the city.
No change has been made by the city over the last 20 years; I conclude that the site of the proposed
development properly is controlled by the land use designations of the Metzger-Progress Community
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Plan. Even the current Metzger-Progress Community Plan shows the land use designations mentioned
above for the property of the proposed Ash Creek Estates. See
www co washingion or us/deptmtsAut/planning/docs/metz erg_/cmp.htm. Some of you may be aware of
this arrangement through my petition to you dated October 19, 2004 to correct Tigard's comprehensive
plan in this regard (see Attachment G to this testimony). The reply to my petition by Mr Hendryx did
not disagree with the above fact situation, he simply noted that other Tigard regulations are relevant to
natural resource protection - the issue has not been considered on its merits by the city. This is another
situation known to city staff but not included in your materials in an effort to make your job "easier" and
"simpler". I include it here as testimony and evidence that other standards apply to review of this PD.
Please study this situation and weigh the importance of this unique natural area as you consider the
benefits and impacts of the proposed degree of development allowed.
On February 8,2005, in his summary of the staff report on Ash Creek Estates, remand, planner Morgan
Tracy characterized the placement of housing on the site as "clustered". I wish to dispute such
characterization, since it does not appear in the application, but is important to compliance with Tigard
Comprehensive Plan Policy 3.4.2.c. There is no effort by the applicant or expression by Tigard staff to
cluster housing on this site. After removing the mandatory stream, wetland, storm drain retention pond,
streets and sensitive areas, the applicant has proposed spreading houses over all of the remaining area.
Clustering refers to some action by the developer to provide a tight grouping of housing so as to reduce
the area required for clearing and disturbance (Dictionary of Architecture and Construction, P Edition,
edited by Cyril M. Harris, 2000, published by McGraw-Hill and Encyclopedia of Architectural Design,
Engineering and Construction, Vol 1, American Institute of Architects, Joseph A Wilkes, 1988, published
by John Wiley & Sons, Inc.). In this case, the only limitations on clearing and disturbance occur because
of watershed protection regulations. Providing cluster type housing on this site would further save trees.
You should reject the city staff's characterization of `clustered' and deny this application based on
noncompliance with your own comprehensive plan.
The application and staff report before you do not disclose still other issues known to the city affecting
the retention of trees at the Ash Creek Estates site. In making your decision and crafting an appropriate
design for this site, you should know that the developer, Dale Richards, offered the undeveloped area of
the site to the city for free. The city turned down this offer of over 4 acres of open space in the summer of
2003. I am testifying that Dale Richards told me of such offer following the August 12, 2003 city council
hearing on this application; I confirmed the offer in a conversation with city staff in the two following
weeks. (On February 8, I mentioned the name Dan Plaza; he has contacted me and refreshed my memory.
I now believe my contact was with Morgan Tracy). I was told that the recipient passed the offer to
"parks" and `didn't know what happened to it except that it never appeared again.' At a time when
Tigard needs millions of dollars for park and open space acquisition, and at a time when a recent parks
survey shows that the parks action favored by most Tigard people is acquisition of open space, this city
refusal of free land is inexplicable. This open space is admittedly not suitable for soccer and baseball
fields, but is not a high maintenance property, is not in an area frequented by crime and lies along an
already mapped Ash Creek Trail envisioned by your long range planners. I urge you, in considering
possible ways to achieve tree retention at Ash Creek Estates, to reopen discussions with the applicant
regarding the free dedication of land to Tigard. Step one would be to understand all prior discussions and
agreements which relate to this site.
To further show that trees are not being retained to the `greatest degree possible', I note that applicant has
not applied for any of the incentives provided by the TCDC at 18.790.040 to retain trees on the site. The
City of Tigard has done its duty to retain trees by offering these incentives, but they are ignored by
applicant. Any effort to retain trees to the `greatest degree possible' would utilize these incentives. Also,
the requirements of TCDC 18.790.060 D govern tree replacement; they call for planting of mitigation
trees on site and if not possible, then offsite in Tigard. A subsequent paragraph E allows "in lieu"
payment of city costs if the Director agrees. In this case, applicant has not proposed to replace one single
tree on the site, nor any offsite in Tigard. This shows to me that applicant is not interested in retaining
tree cover on the site, either in the short term or the long term, when on site mitigation trees mature. It is
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not consistent with retaining trees on the site `to the greatest degree possible.' Even the city can make
this happen by not approving `in lieu' payment for trees removed. My interest is in preserving as many
trees as possible on this development, in both the short term and long term. City staff should deny the
applicant's proposal to compensate totally for tree removal by `in lieu' payments. Mitigation trees on site
should conform to all the requirements of TCDC 18.790.060 D.
C Lack of justification for `adjustments' on cul-de-sac and curbtight sidewalk designs.
LUBA found lacking the justification for certain adjustments proposed by applicant. LUBA further
hypothesized that justification for street improvement adjustments might be made under TCDC
18.370.020 (C) (11) as distinct from the justification, which was in fact made in the application under
TCDC 18.370.020 C (1). While I don't believe the LUBA comment addressed the application as
submitted, I would note four things regarding all three proposed adjustments: 1) the applicant does not
dispute the continued applicability of TCDC 18.370.020 C (1); 2) TCDC 18.210.020 clearly states that
where several regulations apply to a situation, "the most restrictive or that imposing the higher
standard shall govern"; 3) the application should be evaluated on the basis it was submitted, ie using the
standards of 18.370.020 (C) (1); and 4) while applicant and city staff point to TCDC 18.810.020 D as the
basis for considering alternative decision criteria, this very code paragraph says that such adjustments
may be granted via a Type 11 procedure, as governed by Section 18.390.040 - the procedures and
submittal criteria of 18.390.040 have not been complied with in the present case ( preapp conference,
forms provided by Director, impact study submitted, notice, etc.). Two issues should be mentioned:
First, TCDC 18.810.020 D refers for approval criteria to TCDC 18.370.030 C9, not paragraph 11
proposed by applicant. Second, while use of paragraph 11 for street adjustments calls for a test for
"unacceptably adverse impact on existing development, on the proposed development, or on natural
features in which only "adverse impacts must exceed the public benefits of strict application of the
standards", the test of paragraph 1 imposes a higher standard, namely, a fourfold test that "a) there are
special circumstances or conditions affecting the property which are unusual and peculiar to the land as
compared to other lands similarly situated; b) the adjustment is necessary for the proper design or
function of the subdivision; c) the granting of the adjustment will not be detrimental to the public health,
safety, and welfare or injurious to the rights of other owners of property; and d) the adjustment is
necessary for the preservation and enjoyment of a substantial property right because of an extraordinary
hardship which would result from strict compliance with the regulations of this title."
Applicant has gone on at some length to say there is no problem with the extremely long cul-de-sac.
Staff, at page 23/38 states that its basis for finding that impacts exceed public benefits of strict application
of the code is that "as described previously, there are no impacts to the public health safety or welfare
from granting such adjustment". However, it has ignored the policy of the Tualatin Valley Fire and
Rescue applicable to this PD that no development shall be allowed with more than 25 new houses using a
single access without those houses being protected by individual fire detection and sprinkler systems.
Sprinklers are not required per the application here. The combination in this new development of four
houses on a dead end street and 23 houses on the cul-de-sac present exactly this condition (more than 25
houses using a single access). See the applicable regulations, 1997 UFC 902.2.1 implemented by ORS
92.044. The attached fax from Tualatin Valley Fire and Rescue dated February 9, 2005 (Attachment Il)
reiterates this policy. Applicant's lawyer asserts that a long cul-de-sac represents increased safety
because a robber has only one way to exit. Regional city design guidelines, on the contrary argue against
long cul-de-sacs because there are no cross streets and auto speeds tend to increase, causing risk of
accidents and harm to residents. It is well established by city, county and state regulations that additional
traffic on any street decreases safety without additional design features to control it. The cul-de-sac
adjustments are clearly detrimental to public safety as presently specified and conditioned. Staff claims
(page 23/28) that the only two options for reaching lots on the eastern end of the tract are the cul-de-sac or
a looped street; I respectfully disagree. Use of a conforming cul-de-sac in combination with a private
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driveway to clustered housing types could serve the same houses; thus, the tract in not encumbered by
conformance to the Tigard code.
The curbtight sidewalk similarly is detrimental to public safety in that there being no distance between the
sidewalk and the three/fourths wide street (SW 74 h), cars are more likely to hit a pedestrian or bicyclist
on this stretch of street than if a full width street or planter strip were provided per Tigard street design
standards. This is exacerbated in the present case, where an extreme vertical sag curve and crest curve
occur immediately adjacent to each other and there is no protective fence provided between the sidewalk
and the sloping utility space and then the very steep slope dropping to creek level on one side of the street
and at least two near-vertical walls proposed as part of the earthen fill over South Fork Ash Creek. A
twelve foot steep slope and in some areas a vertical wall to the rocky creek bed thereby exists within feet
of the unguarded proposed sidewalk.
Other standards of the paragraph l test are also not met. The applicant has pointed out no special
circumstances or conditions affecting the property, which are unusual and peculiar to this land as
compared to other lands similarly situated. A similar site exists in Tigard where Durham Road passes
over Fanno Creek - there, a bridge was provided for a safe pedestrian, bicycle and auto passage. None of
the adjustments are necessary for the proper design or function of the subdivision much of this site is
simply not able to be developed. By limiting the number of housing units, clustering them on the north
side of the proposed public street and cul-de-sac, dedicating some of the unusable area to Tigard as open
space and providing a bridge across South Fork Ash Creek, all of the TCDC code requirements can be
met, eg street standards, density requirements and some saving of a rare growth of Western Red Cedar for
the city as a benefit of this development.
Tigard staff in its "additional findings and analysis" associated with inadequate bases for adjustments
claims that TCDC 18.810.070 C provide criteria which allow a curbtight sidewalk on the proposed fill
across South Ash Creek. Staff admits that none of the criteria allowing a curbtight sidewalk are met
except that "there are significant natural features (large trees, water features, etc) that would be destroyed
if the sidewalk were located as required". As pointed out above, comparison of the current drawing
associated with the tree plan and the layout drawing for the sidewalk, Record at 630, shows that all trees
in the way of a sidewalk set back five feet from the curb are already proposed for removal, so the "large
trees" provision does not allow for a curbtight sidewalk. As for "water features", note that a conforming
planter strip and sidewalk would extend the toe of the steep slope down from street level some five feet
further east. Examination of the grading plan for this project (Record at 636) shows that such extension
would not go over the end of the culvert and in proximity to the existing meander in the stream, a vertical
lock block wall already interrupts the slope, so that the planter strip would not cause any "unacceptably
adverse" incursion into the sensitive areas already affected given the major impacts already proposed.
Certainly the wetland areas would not be "destroyed", or require "filling the stream", since, as recognized
by applicant's lawyer, at most the retaining wall might be altered (letter of November 15, page 6).
Applicant's lawyer further argues that altering the already proposed retaining wall would create a
significant extra cost to the fill. He notes that with a planter strip, a bridge might become a requirement
of the Army Corps of Engineers and DSL and such changes would constitute an `extraordinary hardship'.
Just saying so doesn't make it so. What is an `extraordinary hardship' on a project that involves 29
houses approaching $500,000 each? The morning Oregonian of February 8, 2005, the very day of the
remand hearing, had as its top story on page 1 the fact that "Thousands of newcomers are driving a
continuing housing boom in the Portland area... " and "Builders, real estate agents and population
experts point to newcomers - well to do ones - keeping the market hot.", and in the same story, "And it's
not just anyone who's moving here. They're high-earning professionals who are able and ready to buy
new homes." Referring to local builder Legend homes, the article quotes its president, saying "Across all
price ranges, I'm having a difficult time keeping inventory at most of our sites. It's just hot." The article
notes one local builder, Rennaissance Development, observing, "They are coming here for jobs and
quality of life. And even though it may be hard for some people to believe, they find our prices very
affordable." A demonstration of Ash Creek Estates or Windwood Construction economics (eg bank loan
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applications, income tax returns, appraisals by independent persons, etc.) that showed either the houses
would not sell or developer would lose significant monies might be justification for showing
`extraordinary hardship', but not simply declaring it so; facts must support the claim. I would note that
the standard is `extraordinary' hardship, not hardship alone. When I think of hardship, 1 think of arctic
explorers or people of Oklahoma in the dust bowl or John McCain living years in the so called `Hanoi
Hilton', or professionals living and dying under the regime of Cambodia's Pot Pot. To me hardship
means something adverse and enduring over years - not some cost which can be passed on to home
buyers. Synonyms for hardship include inability to meet obligations, mental anguish, humiliation,
oppression and privations. Moreover, courts seem to agree that financial hardship alone is not sufficient
to justify `hardship' in granting what Tigard terms `adjustments.' In addition to financial hardship, some
harm to the land as it lies must be found - it is not the needs, preferences or circumstances of the owner,
which call for an adjustment. There are no special conditions warranting the adjustments requested - this
property is like all other property in Tigard. Finally, a hardship does not exist when self-inflicted. The
applicant (developer) in this case has entered in to some (unknown) kind of purchase agreement with full
knowledge of the restrictions on the land. Extraordinary hardship must be found - not the lesser
standards of `simple hardship' or `unnecessary hardship' or `practical difficulty.' A granting of
adjustments in the present case without extraordinary hardship would endanger the community plan for
Tigard as represented in its regulations by advancing piecemeal exemptions. See for further discussion
Oregon LUBA decision 90-147 of 3/12/91, Boldt v. Clackamas County.
As to the applicant's lawyer representation that `rough proportionality' would not be met, I would observe
that if a bridge were constructed under a renegotiated conceptual design for Ash Creek Estates, real
property dedication requirements in the present application for the stream crossing can be eliminated (ie a
bridge is narrower than full street right of way), thereby eliminating any proportionality tests at all. Even
if proportionality would be an issue, the costs to applicant are to be evaluated against the total projected
impacts of the development on all public facilities and services. I have pointed out in earlier comments
that the impacts of the development have been grossly understated by applicants, noting among many
other impacts that applicant has ignored the impact on school finances that 29 new families has on the
public.
D Lack of evidence regarding protection of on site vegetation during and after construction.
Not until January 19, 2005 did applicant make any effort at all to address this remanded issue; even then,
it was only at the request of Tigard planning staff Morgan Tracy, who noted in preparing his staff report
that this fourth issue had not even been mentioned. Morgan told me this on February 2, 2005 when 1
came by the permit center to review materials prepared for this hearing. The letter from applicant's
lawyer dated November 15, 2004 clearly identifies its subject as only the "three instances" where LUBA
found the city proceedings lacking.
In my appeal before LUBA, neither the City nor applicant contested my observation that there was no
evidence that existing vegetation would be protected "as much as possible" during and after construction.
While `vegetation' certainly includes trees, it includes much more. It includes a wide variety of riparian
plants, small upland brush and grasses, etc. These smaller plants are important for different small
animals, from fish and frogs to turtles and tiny bugs on which larger animals and birds feed. Applicant
now, in his attorney's letter of January 19 simply references the arborist's "tree plan" for any assurances
in this regard. Examination of the "tree plan" shows absolutely no reference to protection of existing
vegetation: Let's examine each of the two pages of what applicant calls a "new detailed tree plan" -
Page 1 (page 3 of 4 in arborist's transmittal) - the word vegetation does not appear once!!
Page 2 (page 4 of 4 in arborist's transmittal) - the word vegetation does not appear once!! The
closest reference to anything other than trees is in Action 1 following construction, where the
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document states "Carefully landscape in the area of the tree. Do not allow trenching within the
root protection zone. Carefully plant new plants within the root protection zone. Avoid cutting
the roots of the existing trees."
Neither the 42-page spread sheet which inventories trees over 6 inches DBH nor the two sheet
drawing entitled "Revised Tree Preservation Plan" make reference to anything but trees - no
mention of vegetation.
I think one can reasonably conclude that the present submittal fails the same test as the original submittal
- no evidence that existing vegetation will be protected at all, let alone `as much as possible', during and
after construction.' This application should be denied for failure to comply with TCDC 18.745.030 (E)
and (G).
However, page 2 of the applicant's tree plan is illuminating in that the quoted sentence above uses the
word `landscape' as a verb. It clearly refers to human work to enhance in some sense a particular ground
area. This seems indeed a legitimate use of the word. The Tigard code at 18.350.100 B 3 g (1) requires a
minimum of 20 percent of the site to be landscaped. My appeal to LUBA claimed that there is no plan,
which shows this minimum amount of landscaping of the site; it still does not exist. In the earlier
application, Record at 632, something called a "landscape plan" is submitted. It shows only some street
tree plantings (nothing approaching 20 percent of the site area) and specifically shows nothing in the
undeveloped area of the site. Regarding the developed lots on the site, the applicant held that
"landscaping on the lots will be accomplished by each homeowner separately." Thus, the applicant is
saying that he has no landscape plan for the developed area of the site. He does use the word
"landscaping" in the same sense as I have agreed is appropriate above - human work to enhance in some
sense a particular ground area. LUBA observed that the open space area of the site, which is to be left in
its natural state was "implicitly" interpreted by the city to be considered as "landscaped". Such `implicit'
new use of the word by both applicant and city as cited above calls for new evidence and argument; it is
beyond a reasonable range of what might have been expected previously. The use of the dictionary term
is not arbitrary or capricious - it is consistent with legislative intent and city intent in adopting its codes.
See TCDC- 18.120.010 A. The TCDC section on landscaping (18.745) doesn't refer to natural areas at all.
The Oxford English Dictionary (2005 Online Edition, Multnomah County Library) has two definitions for
the verb `landscape' - the first is to draw or paint an inland view as distinguished from a marine view,
and the second is to layout or conceal elements of terrain so as to produce a harmonious setting. Both
refer to the work of people, not to finding some natural condition. In its staff report adopted in the
approving ordinance, the city (Record at 67) merely quoted the requirement saying "However, as
discussed later in this report, the applicant is required to landscape at least 20% of the site within a
Planned Development. The applicant has provided a street tree plan for SW 74`" Avenue and proposes to
leave the open space tract in its natural state." Further, the staff report (Record at 68) states that "the
applicant has proposed to remove all the trees within the developable area". And later (Record at 70), the
city notes in response to a quote of the 20% landscaping requirement "The open space and drainage tracts
of this proposal constitute approximately 44% of the site area. The applicant has indicated that
landscaping on the lots will be accomplished by each homeowner separately. The project will exceed the
minimum 20% landscape criteria. There is no landscape plan for the open space tract, however, areas of
steep slopes that are disturbed are required to be replanted per the recommendations of the applicant's
geotech report. Areas within the drainageway and wetlands will require mitigation replanting per the
requirements of Clean Water Services and the Division of State Lands. This criterion has been met." The
applicant's version of this same paragraph, Record at 29 is slightly different. It reads in relevant part,
"The open space and drainage tracts of this proposal account for 44% of the site area. That in
combination of the landscaping on the site will exceed the minimum 20% landscape criteria." Here, the
applicant clearly distinguishes "landscaping" on the site, referring to human-caused enhancement of a
landform, from the open space and drainage tracts.
Several points are worth making regarding this rule and its interpretation:
16
The city and applicant both note that the definition of site is the entire area. So it is clear we are talking
about landscaping 20% of the 9.36 acres subject to this action.
Vegetation refers not only to trees, but to smaller plants, equally important to both the riparian habitat
which supports fish and the upland habitat for small animals and birds and bugs.
If areas left in their found state are considered to have been landscaped, then the whole land area of the
earth is landscaped, which is hardly a sustainable use of the word when imposing a requirement for action
by applicant. If such were the meaning, the requirement would be meaningless.
Further, as some replanting is required in the open space and drainage tracts, there will be human
disturbance in these areas and a plan must be presented to show that the existing vegetation there is
preserved as much as possible.
There is a process in the Tigard code for interpretation, TCDC 18.340. The applicant and staff should use
such process if other than dictionary usage of words is intended. The city's new interpretation of the
verb `to landscape' is beyond a reasonable range of what might be expected and is inconsistent with the
express language of the land use regulation. As administrative or legal argument and evidence, I have
provided reference to repeated use of the word in the sense that I propose within the same documents
prepared by applicant and city. I have made reference to the dictionary definition. I have provided
reference to the applicant's `landscape plan', a technical drawing, which does not illustrate any
landscaping in the site's open space area.
E Appeal issues not resolved on their merits by LUBA.
Assignment of Error 1 C dealt with late submittal of alleged evidence by city on October 10, long after the
initial hearing was closed and petitioner could not ask for continuation of hearing. LUBA did not
address.
Assignment of Error 2 dealt with ex parte contact between city council and applicant's engineer. LUBA
called the relevant testimony of applicant's engineer on 9/9 "exceedingly unclear and ambiguous".
Evidentiary hearing is the proper resolution of the issue on its merits.
Assignment of Error 3A dealt with conclusory findings that the comprehensive plan was met. LUBA
noted that in this particular (3A) discussion, petitioner did not cite a comp plan provision not met, but
such provision was cited in Assignment of Error 5A. Resolution on its merits should consider the citation
in 5A.
Assignment of Error 3B dealt with three improper findings. LUBA did not consider the adequacy of a
finding that PD criteria were met `as illustrated in this report', rather than specifically connecting facts
with the criteria by some rationale. LUBA found that since no flood plain for the Ash Creek Estates site
is shown on the Tigard Flood Plain Map, that no `base flood' (defined as a flood with 100 year
recurrence) exists; it IS shown in the Record at 628 as one example. Resolution on its merits should
consider the meaning of the term `base flood'.
Assignment of Error 3C dealt with a finding in which ONLY the applicant expressed confidence that an
easement could be obtained; nowhere is there a finding of feasibility by the City. LUBA did not address
on its merits.
17
Assignment of Error 5A dealt with a question of the effective comprehensive plan provisions for the Ash
Creek Estates site. Resolution on its merits should evaluate the provisions of the annexation order for this
part of Tigard and the preceding plan provisions.
Assignment of Error 5D was about retaining trees to `the greatest degree possible'. LUBA did not
examine this question, but interposed a question about a `similar development,' which must contain the
same number, size and style of housing units in a PD. Resolution on its merits requires consideration of
the term `the greatest degree possible'.
Assignment of Error 5F dealt with slope requirements of the city for ground surface adjacent to streets.
LUBA deferred the question, noting that ground surface slopes are different from wall standards.
Resolution on its merits requires determination whether there are appropriate wall standards, whether they
are met and consideration of the purpose of the ground surface slope standards.
Assignment of Error 5G dealt with need for and adequacy of an impact statement. Resolution on its
merits must consider that petitioner did identify how deficiencies in the impact study results in failure to
meet the broad PD approval criteria.
Assignment of Error 5H dealt with the stability of slopes at the boundary of the development area.
Resolution on its merits requires comparison of the CWS requirement with evidence of the applicant.
REASONABLE ACTIONS WHICH TIGARD CITY COUNCIL MIGHT TAKE
In summary, you have been given a very varnished and shiny presentation by both staff and the applicant
regarding a development, which has little or no benefit to the city and for which significant deviations
from city standards are being requested. The Chairman of the Tigard Planning Commission, in the very
first hearing on this development said it very clearly, noting that there is not a fair trade in plans for this
PD between the intended community benefits of a PD on the one hand and the impact on both the natural
and social assets of the city proposed in this application and its adjustments.
Decisionmaking has often been described in terms of `perception' first and then `judgment'. Perception
in different people is keyed to varying degrees of senses or intuition. I urge you to use your senses as
much as possible and consider the written words of the code. Judgment in different people is keyed to
varying degrees of thinking or feeling. I urge you to use thinking as much as possible, looking at the
rationality of Tigard's regulations. I know each of you takes seriously your role of protecting the public
interest - the facts of this situation argue against approval as proposed.
I would urge you to deny this particular application via findings to be prepared by your staff at your
direction. Perhaps an alternative concept would emerge in conversation with applicant, which strikes a
more balanced concept pursuant to the goals of any PD. Because of the complexity of the application,
the contorted sequence of modification and review, l suggest that a new application should be required
because of significant changes (TCDC 18.390.080). Planned developments in Tigard are not just for the
profit of the developer - they are clearly intended to benefit (not just be neutral toward) the public good.
A primary goal you have espoused for 2005 is to "manage growth", which I take to mean approve what is
good for Tigard, to approve what is additive to our assets.
We in Tigard have many challenges ahead of us as we make our city better. Allowing this type
development is not on that track. Some development can certainly take place on this tract, but it must
further the needs of Tigard. The need for housing is not to be taken as supreme over all other interests
18
and state land use goals; ORS 197.340 (1) sets the standard in saying "local governments shall give the
goals equal weight in any matter in which the goals are to be applied."
None of this is to personally slight the developer or his consultants and their motivation. They have a
clear interest in maximizing profit on this development. I simply want to remind you that City
government has the job of managing development with broader interests. As the reviewing authority, it is
your job to negotiate the best bargain for the city. It is the job of city government to specify the
conditions under which development can take place.
I would welcome the opportunity to sit with the developer and city staff and discuss a new concept and
conditions, which would afford both reasonable use of this land for residential purposes as wel I as provide
natural resource benefits to the city as a whole.
John Fre ing
7110 SW Lola Lane
Tigard, OR 97223
Attachments:
A Memo from Kurahashi asking Tigard to start application review
B Washington County street design standards (partial)
C Memorandum from CH2M-Hill to Tualatin re adequacy of 36" water line
D ODFW policy stating preference for bridge crossings
E Applicant's PFI drawing showing design changes along SW 74`h Avenue
F Applicant's tree plan as of 9/9/03 (also Record at 325)
G Frewing petition for Tigard correction to Comprehensive Plan 10/19/04
19
r
K_URAI IAS:HI
Assoc~,~ rya, r~r 2.1 EXHIBIT A
DECEMBER 13TH 2004
Morgan Tracy
City of Tigard
13125 SW Hall Blvd
Tigard, OR 97223
Dear Morgan,
We wish to start our 90-day review period of the revisions required by the LUBA remand of Ash Creek
Estates P.D.
Sincerely,
T.
Gregory T. Kurahashi, RE
Kurahashi and Associates, Inc.
15580 SW Jay Street, Suite 200; Beaverton, Oregon 97006
Phone: (503)644-6842;Fax: (503) 644-9731
11/1V/A V V4 mull 1a: ctf rnb OUJ d44 x7:31 Kurahashi & Assoc., Inc. Z001/007
3 C -1
2.1 EXHIBIT B
KURAHASHI & ASSOCIATES, INC.
FACSIMILE TRANSMITTAL SKEET
To: From:
Morgan Tracy Greg Kurahashi
Company: Date:
City of Tigard 11/15/2004
Fax Number: Total # of Pages Including Cover:
(5031684-7297 7
Projccl Name: Project Number:
Ash Creek Estates
❑ Urgent 0 For Revicw ❑ Please Comment ❑ Please Reply ❑ Please Recycle ❑ As Requested
RE: Chris asked me to send you these pages out ofthe Washington County street standards.
Thank you,
Gregory Kurahasbi
Kurnhashi and Associates
15580 SW JAY STREET, SUITE 200; BEAVERTON, OREGON 97006
(503) 644-6842; FAX: (503) 644-9731 IF
k1/15/2004 RON 15:29 FAX 503 644 9731 Rurahashi & Assoc., Inc. 10002/007
TABLE Ill - DESIGN SPEEDICENTERLINE RADIUS-MINIMUMS
MAJOR COLLECTORSIARTERIALS STREETSIALL RURAL ROADS
Design Friction Slope/R mint.
Speed(MPii) Fador(F) (e)-4% (e}2-5% 0% (e)2.5% (e) 4% (e) 8%
25 .165 335' 300' 255' 220' 205, 185'
30 .160 5o0' 445' 375' 325' 300' 275'
..35 .155 710' 630' 530' 455' 420' 380' .
40 .150 970' 855' 710' 610' 560' 510'
45 .145 1285' 1125' 930' 795' 730' 660'
50 ' .140 1665' 1450' 1190' 1010' 925' 835'
55 .130 2240' 1920' 1550' 1300' 1190' 1060'
60 .120 3000' 2525' 2000' 1655' 1500' 1335'
MINOR COLLECTORS/LOCAL STREET/SPECIAL AREA ROADS
Design Friction Slope/R.min.
SpgW(MPH) Fador(F) (e)-490 (e}2.5'Yo ie) 0% (e~2.5° (e) 4% (e) 69'0
25 0.252 195' 185' 165' 15o' 145' 135'
30 0.221 330' 305' 270' 245' 230' 215'
35 0.197 530' 475' 415' .370' 345' 320'
NOTES:
For Table 111- off right-ofway runoff shall be controlled to prevent concentrated cross
flow in superelevated sections.
Where superelevation is used, street ctirves should be designed for a maximum
superelevation rate of 0.04. If terrain dictates sharp curvature, a maximum
superelevation of 0.06 is justified if the curve is long enough to provide an adequate
superelevation transition.
On local streets, requests for design 'speeds less than 25 mph shall be based on
topography, R.O'K, alternative design features approved through the land use process
or geographic conditions which impose an economic hardship on the applicant
Requests must show that a reduction in centerline radius will not compromise safety.
There may be;posting requirements associated with designs below 25 mph. In no
case shall the design speed for aftemative designs be less than 20 mph for local roads
and 15 mph for alleys.
SOURCE: REFERENCE 9
27
L1i1b/ZUU4 RUN 15:3U FAA 5U3 044 9731 Kurahashi & Assoc., Inc. L0003/007
210.4 VERTICAL ALIGNMENT
Alignments shall meet the following requirements:
Minimum tangent street gradients shall be one-half (0.5) percent along the
crown and curb.
Maximum street gradients shall be fifteen (15) percent for minor collectors,
and local streets, and ten (10) percent for all other streets. Grades in
excess of fifteen (15) percent must be approved by the County Engineer on
an individual basis,
Local streets intersecting with a minor collector or greater functional
classification street or streets intended to be posted with a stop sign shall
provide a landing averaging five (5) percent or less.. Landings are that
portion of the street within twenty (20) feet of the edge of the intersecting
street at full improvement.
Grade changes of more than one (1) percent shall be accomplished with
vertical curves.
Street grades, intersections and superelevation transitions shall be
designed to not allow concentrations of storm water to flow over the
pavement.
Off-set crowns shall be allowed and must conform to Standard Drawing M-
403.
Streets intersected by streets not constructed. to full urban standards shall
be designed to match-both present and future vertical alignments of-the
intersecting streets. The requirements of this manual shall be met for both
present and future conditions.
Vertical curves shall conform to the values found in-Tables IV & V.
Slope easements shall be dedicated or obtained for the purposes of grading
outside of the rights-of-way.
AASHTO provides the designer of sag vertical curves the option of using
shorter curves with the installation of street lighting. These "comfort". designs
can also be slightly alternate by providing a one.(1) percent grade break at
each end of the curve. The following chart compares sag curve lengths using
these criteria:
28
11/15/2004 MON 15:30 FAX 503 644 9731 Kurahashi & Assoc.. Inc. 004/007
Algebraic Difference Standard Comfort Comfort w/Grade Breaks .
in Grades 25 MPH 25-MPH 25 MPH
5.0% 150 67 40
7.5% 225 101 74
12.5% 375, 168 141
17.50/a .626 235 208
A further concern has been with the design of a sag curve at the -
intersection of a local road with a local road or a local road with a minor
collector road.. In either case, if the intersecting street is stop controlled, a
minimum design speed of 15 MPH is allowed on the intersecting street.
This is based on the reasonable speed of a vehicle turning from the through
street to the intersecting street. Minimum curve lengths using a 15 MPH
design speed are as foAows:
Algebraic Difference Comfort Comfort w/Grade Breaks
in Grades 15 MPH 15 MPH
5.0% 24 15
7.5% 36 27
12.5% 60. 51
17.5% 85 75
29
Li/10/ZUU4 mule 1z,:4U r'AA 5U3 1544 9731 Kurahashi & Assoc., Inc. Q 005/007
TABLE IV - DESIGN CONTROLS FOR CREST VERTICAL CURVES BASED ON STOPPING
SIGHT DISTANCE
DESIGN SPEED K
15 55
20 10-10
25 20 - 20
30 30--:30,
35 40 - 50
40 60-80
45 80-120
50 110-160
55 150-220
SOURCE REFERENCE 9.
L Feet
A = Percent
K=
A = Algebraic Difference in grades, percent
L = Length of vertical curve, feel
TABLE V - DESIGN CONTROLS FOR SAG_ VERTICAL CURVES BASED ON STOPPING
SIGHT DISTANCE
DESIGN SPEED' K
15 5-5
20 10-10
25 30-30
30 40 - 40
35 50 - 50
40 60 - 70
45 70 - 90
50 90-110
55 100-130
SOURCE: REFERENCE 9.
WHERE: L Feet
K= A = Percent
A = Algebraic Difference in grades, percent
L = Length of vertical curve, feel:
• Values may be reduced if street lighting is present for sag vertical curves. AASHTO
publication, An Informational Guide for Roadway Lighting shall serve as a guide.
SOURCE REFERENCE 10.
30
X1/15/2004 MON 15:30 FAX 503 644 9731 Kurahashi & Assoc., Inc. Z 006/007
210.5 INTERSECTIONS
The following specify the minimum requirements for intersections:
The interior angle at intersecting streets shall be kept as near to ninety (90)
degrees as possible and in no case shall it be less than seventy-five (75)
degrees. A tangent section shall be carried a minimum of twenty-five (25)
feet each side of intersecting right-of-way lines.
Curb radii at intersections shall be as shown in Table VI for the various
function classifications. The right-of-way radii at intersections shall be
sufficient to maintain at least the same right-of-way to curb spacing as the
lower classified street.
Sidewalk access ramps. shall be provided at all comers of all intersections,
regardless of curb type, and shall.conform to the ODOT Standard Drawing.
31
LUU'! muiI Au. JU rAA Duo o44 wiji auranasni a ASSOC., inc. L0007/007
TABLE VI - TURNING RADII (FEET)
Edge of PavementlCurb - Minimurne
Street MayMin Major Minor Transit Commercial Local
Classification Arterial Collector Collector Street Industrial Street
Street street street Street
Major/Minor
Arterial 55 40 30 40 40 25
Street
Major
Collector 40 40 30 4D 40 25
Street
Minor
Collector 30 30 30 30 30 25
Street
Transit 40 40 30 40 40 25
Street
Commercial
Industrial 40 40 30 40 40 25
Street
Local 25 .25 25 25 25 15
_
Street"
If bike lane or on-street partdng exists, above radii maybe reduced by five (5) feet.
On 28' Local Streets, parking shall be prohibited within 50' of a public street intersection.
n
32 " .
EXHIBIT C
KURAHASHI & ASSOCIATES, INC.
LETTER TRANSMITTAL SHEET
Date: From:
Ms. Kim MacMillan 5/19/2004 Dimitrios Shaidaee
Company:
City of Tigard
Address:
13125 SW Hall Blvd
Project Name: Project Number:
Ash Creek Estates 2129
Transmitted By: ❑ Mail (Courier ❑ Pick-up
Transmitted For: WApproval ❑ As Requested ❑ For Your Use ❑ For Your Review
Comments:
Attached are the following submittals for Ash Creek Estates.
6 sets of plans
2 Hydrology Studies
1 set of lighting analysis
1 set of City of Tualatin calculations indicating the need for a concrete cap of the waterline. (Can we be compensated for
the cap since the City of Tualatin Should have designed for the future street?
15580 SW JAY STREET, SUITE 200; BEAVERTON, OREGON 97006
(503) 644-6842; FAX: (503) 644-9731
05/19/2004 16:01 FAX 5036925421 CITY OF TUALATIN 1J001
City Facsimile Numbers
.J CITY OF TUALATIN ~`q`e"`~ 503.692.5421
18880 SW MARTINAZZI AVE C] Library 503.691.6884
TUALATIN, OREGON 97062-7092
(503) 692-2000 ❑ Comrmmiry Development) 503.692.3512
Plar"ng
1
TDD (503) 692-0574 D vision
❑ Operations 503.692.2024
❑ Poke 503.692.9898
Fix ❑ Community Services 503.691.9786
❑ Cornmuruty Dev/Econ Dev 503.691.2798
Division or Legal Dept
Date: ❑ Human Resources 503.885.9832
To: l l 1 s I
From:
Business:. vV 1 I% t 8~ 44 DeptJTitle:
.A
Fax: (I....: Pages: (including cover)
❑urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑Hard Copy to Follow
RE:
Comments:
'05/19/2004 16:02 FAX 5036925421 CITY OF TUALATIN Q002
TECHNICAL MEMORANDUM CH2WILL
City of Tualatin 36" Transmission Pipeline
Load Evaluation
PREPARED FOR: Kaaren Hofmann/City of Tualatin
PREPARED BY: Ed Bannhurst/CH2M HILL
COPIES: Bob Fuller/CH2M HILL
DATE: May 14, 2004
Background
CH2M HILL has been retained by the City of Tualatin to evaluate potential impacts from
road development to an existing 36-inch transmission pipeline. This memorandum presents
our findings and recommendations for protection of the existing pipeline.
The Ash Creek PD will raise the road grade of S.W. 74th Avenue at the Ash Creek crossing
by 14.3 feet from the existing ground surface. An existing 36-inch Transmission pipeline
feeding water to the City of Tualatin is located in SW 74th Avenue at this crossing.
This pipeline was constructed in the early 1980's and is Bar Wrapped Concrete Cylinder
pipe. Bar Wrapped Concrete Cylinder pipe is a composite pipe manufactured with a thin
steel can (liner) which i:5 wrapped with a steel bar (rod) to develop the required hoop
strength. The pipe is mortar lined and coated to protect the steel and provide adequate
stiffness for backfill support. This pipe is designed to handle a specific internal pressure
and external loading condition. Application of pressures or loadings greater than the
design, can damage the. pipe, and potentially cause damage to the surrounding area if the
pipe were to rupture.
The intent of this evaluation is to determine if any residual/additional strength remains in
the existing pipeline, which could be used to support the increase in fill depth. This 36-inch
Transmission pipeline is a critical element of the City's water supply and cannot be
disrupted or damaged.
Ameron manufactured the all of the pipe here in Portland. However, they no longer have a
pipe fabrication facility in Portland, Tracy California is the closest facility. Ameron in Tracy
was unable to provide shop drawings for the pipeline, however, CH21A HILL was able to
obtain a copy of the pipeline design used by Ameron, from our own archives. This pipe
design sheet is a single page, listing all of the pertinent information for the fabrication of the
Bar Wrapped Concrete Cylinder pipe.
The original design engineering firm for the transmission pipeline was R W. Wright
Engineering of Portland, Oregon. Figure 1 was taken from their original drawings, and
defines the design intent for the pipeline.
05/19/2004 16:02 FAX 5036925421 CITY OF TUALATIN Q003
4
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t. :!lC 1iR'-w.`. _ Y+Tif S: ?1/;' J'.~.i. ::~`{i ,I(I{•I •'R••
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• ti,.ird`r ..fit,: ,.f%~'.' .:Y' at i'-}'- i. :•:;1 ~f~1 _ .
ry _
.,P- ~''y",C'- , ~'~''"'J tf, •~1: •:~~t..: y!,,o,(:k il.~w. v'L:l',i":,e. .`i.. •>-ir..h.
Figure 1: RA Wright Pipeline Design Requirements
Note that the section of interest, at Ash Creek, is between station 45+00 and 48+00
.(Transmission Pipeline stationing). Sheet 4 of their as-built drawings define the pipeline
section of interest, near Ash Greek. Based on the information provided in the figure above,
this section of pipe is a pressure class 150 design. The actual pipe configuration used in the
evaluation was the Ameron design; the R.A. Wright information was used to define the
pressure classification.
Design Engineer for the developer is Kurahashi and Associates, Inc. A copy of the new
- road design was provided to CH2M HILL, via fax. A copy of that information is presented
below in Figure 2.
05/19/2004 16:03 FAX 5036925421 CITY OF TUALATIN 1a004
1
T
~acR9 .211. t...
p.M. .;rho
lt1 .
A. P
Figure2: Proposed Road Fill Elevations
Note the information above is in the developers stationing system, not the pipeline
stationing system. The developers stationing is used throughout this evaluation since they
will be required to make any needed modifications to the existing pipeline, as required to
protect it.
The information from the fax sheet was evaluated to define new depths of cover that will be
added over the existing; pipeline. This information is presented in Table 1 below.
Existing Existing Pipe New Pipe Increase in
Top of Pipe Ground New Road Cover Depth Cover Depth Bury Depth
Station Elevation Elevation Elevation ft ft ft
17+7100 199.60 212.50 213.01 -1.2.90 1141 0.51'
18+OQ00 196.00 210.30 211.33 14.30 1533 1.03
18+25.00 193.70 200.30 210.41 6.60 16.71 10.11
18+50L00 19100 199.90 210.23 7.90 18.23 10,33
18+75.00 190.10 198.10 210.80 8.00 20.70 12.70
19+00.00 150.50 197.90 212.13 7.40 21.63 14.23 Worst Case
19+25.00 195.50 203.70 214.20 8.20 18.70 10.50
Note: Station shomm is new road stationing
Table 1: Proposed Pipe Bury Conditions
information developed/provided by R.A. Wright and Kurahashi & Associates have been
used in the evaluation. Calculations of the existing pipe capacity are included in
Attachment B.
/1004 16:04 FAX 5036925421 ..CITY OF TUALATIN Q005
Findings
Based on the information provided in R.A. Wright Engineering drawings (as builts) from
1984, it was determined that the existing pipe is a pressure class 150 pipe. Ameron also had
a 150 pressure class design for their submittals on that project. We have used this Class 150
design in the evaluation of pipe strength.
The Ameron pipe design information provided adequate information to define the pipe
cylinder thickness, the bar wrap diameter and spacing and the lining and coating
thicknesses for the pipe. In addition, sufficient dimensional information (internal diameter
of the can, etc.) was provided to define the location of the steel in relationship to the
centroid of the pipeline. All of this information was input into a pipeline structural design
model, developed in MathCad. The MathCad structural calculator was used to evaluate
strength of the existing pipeline under various fill and pipe bedding conditions. These
calculations are included in Attachment B.
The existing pipeline is not designed for a 21.6 foot total fill height and as shown in the
attached calculations the required E' (sidewall support pressure from the bedding and
initial backfill material) would need to be over 4000 psi. The existing bedding and initial
backfill might have an insitu E' value of from 700 to 1000 psi, far less than the 4214 psi noted
as required in the calculations. Based on the evaluation of the existing pipe strength, it is
apparent that the new fill will have the potential to damage the pipeline, unless
modifications are made to the bedding system.
Recommendations
The existing pipeline is already fabricated and in place, no modifications can be made to it.
The only option to increase pipe strength is to increase the strength of the
pipe/bedding/initial backfill matrix. In order to bring the pipe sidewall support value to
4,000 psi or higher, modifications to the existing pipe bedding system will need to be made.
These modifications will consist of excavation of the soils over and to the side of the existing
pipeline. Reinforced concrete encasement will need to be placed adjacent to and over the
pipe to form a cap. This cap will serve to provide transfer of load to soils at the sides of the
pipe and upgrade the pipe sidewall stiffness. The recommended section for the cap is
shown in Figure 3 below.
05/19/2004 WED 14:41 rTX/RX NO 63771 0005
,/2004 16:04 FAX 5036925421 CITY OF TUALATIN 1~J006
Groundline
%
12" Typical
Concrete
Encasement
i No. 4 at 6" E.W.
Existing 36" pipe
18" Minimum Typ.
Figure 3: Pipe Protecdon Detail
Care must be taken in excavation of the material over and to the sides of the pipe to
ensure the pipeline is not damaged. Full time onsite inspection of the excavation is
recommended' to observe the pipe as it is excavated and verify its condition prior to
the encasement work. The area under the pipe must not be disturbed since it
provides the angle of support for the pipe (90 degrees total, 45 degrees on each side
of the pipe). Length of the encasement will need to extend from Station 18+00 to
Station 20+00 (as a minimum). The faxed sheet was cut off near station 20+00,
where the pipe still has over 14 feet of backfill above it. The encasement can be
eliminated where the total fill depth over the pipe is less than 13 feet.
05/19/2004 WED 14:41• ITX/RX NO 63771 0 006
Stream-Road Crossings
EXHIBIT D
•""kr~i~~ t., to
V X tv~r
i
id
7 '
Hoene I Fish I Wildlife I Habitat I News
Oregon Department Of Fish & Wildlife
Guidelines and Criteria For
Stream-Road Crossings
Authority
ORS 498.351 and ORS 509.605, et al, require any person, municipal corporation or government
agency placing an artificial obstruction across a stream to provide a fishway for anadromous, food
and game fish species where these are present. Fish passage accommodations will be required on
any stream, regardless of size, perennial or intermittent, if it is utilized by fish during any
significant period of the year. In addition, ODFW may recommend fish passage accommodations
at structures constructed in any stream that has a history or potential for fish production if
applicable ODFW Basin Fish Management Plans call for the establishment or re-establishment of
these populations.
A local Oregon Department of Fish and Wildlife (ODFW) representative should be contacted to
determine fish presence and identify fish passage needs at proposed road-waterway crossing
projects if such is in question. Project proponents should assume that accommodations for fish
passage will be required at any road crossing regardless of stream size if no determination is
requested.
Although it is the landowner's responsibility to install and maintain required fish passage
structures, it is the policy of ODFW to provide assistance on request to the extent possible.
Generally, proposed designs should be reviewed by ODFW prior to finalization of project plans.
Fishway Design: Philosophy, Theory and Practice
When designing fish passage facilities, the following biological variables should be considered:
• Species of fish present
• Life stages to be impacted
• Migration timing of affected species/Life stages
The local ODFW district, biologist may be. contacted for this information.
Fish passage design is normally based on the weakest species or life stage present that requires
upstream access and should accommodate the weakest individual within that group. Management
objectives and other relevant factors may, however, direct deviation from this standard. For
instance, passage needs of undesirable species (e.g., brook trout in bull trout habitat) may not be
http://www.dfw.state.or.us/ODFWhtml/InfoCntrFish/Management/stream road.htm 8/8/2003
Stream-Road Crossings Page 2 of 6,
accommodated based on other over-riding management objectives. Also, if juveniles, generally-the
weakest life stage of a species, would use habitat above a culvert for an insignificant portion of the
year, ODFW may conclude that only spawning fish (stronger adults) need to be accommodated and
that the culvert need not be designed at the higher (juvenile) standard.
Conventions
As used in these discussions of standards, designs and criteria, the "entrance" and "exit" of a
culvert or fishway is from the fish's perspective as it moves upstream. Thus, the "entrance" refers
to the downstream portion of the structure while the "exit" is the upstream end. "Inlet" and "outlet"
refer to water entering and leaving a culvert or fishway.
Hydrologic Considerations and Calculations
It is not considered necessary or practical to design culverts to pass fish at flood stage or
continually. Fish generally move after flood peaks pass. Acceptable hydraulic design of culverts
includes selection of appropriate design flow from which the flow characteristics can be derived by
hydraulic analysis. The low flow depth design should be based on the 2-year, 7-consecutive-day
low flow discharge or the 95% exceedence flow for the migration period of the fish species of
concern. The high flow design discharge should be the flow that is not exceeded more than 10%
(Q 10%) of the time during the months of adult migration. That flow can be approximated by
Q 10% = 0.18 X (Q2) + 36
for cases where the 2-year flood event (Q2; in cfs) is greater than 44 cfs. For cases where Q2 is less
than 44 cfs, the design flow can be approximated as equaling Q2.
Criteria for Upstream Movement of Adult Fish
Adult anadromous fish generally expend approximately 80% of their stored energy reserve during
normal upstream migration to suitable spawning areas. Undue exertion or delay at stream-road
crossings due to unsuccessful passage attempts at inadequate (blocking) structures can lead to
reduced spawning success and pre-spawning mortality.
Where fish passage is required by ODFW (in general, wherever fish are present), the following
guidelines shall be utilized for preliminary design. Design flows for culvert passage are calculated
based on monthly periods when fish migrate.
Maximum Water Velocities
Table 1: Average Water Velocity (fps) at High Flow Design Discharge for:
Culvert Length Salmon & Adult 't'rout (>6") Juvenile
(ft) Steelhead Salmonids
Under 60' 6.0 4:0 2.0
60' to 100' 5.0 4.0 2.0
http://www.dfw.state.or.us/ODFWhtml/InfoCntrFish/Management/stream road.htm 8/8/2003
Stream-Road Crossings Page 3 of 6
100' to 200' 4.0 3.0 See note below
200' to 300' 3.0 2.0 See note below
Over 300' 2.0 1.0 See note below
Note: For juvenile fish, only designs incorporating streambed simulation solutions will be
considered for culverts over 100' in length. "Streambed simulation" refers to the situation where
substrate and flow conditions in the crossing structure mimic the natural streambed above and
below the structure.
Table 1 presents the hydraulic criteria for the design of culverts for passage of salmonids.
Satisfaction of these criteria is essential to the adequacy of a culvert installation to meet fish
migration needs. These criteria are based on several references.
In a natural stream channel, the average water velocities indicated in Table 1 are often exceeded.
The diversity of natural channel beds and formations, however, provides paths of access with
suitable depths, velocities and resting opportunities with only brief exposure to excessive
conditions. Velocity requirements noted above may be exceeded within structures with natural
beds upon approval by the ODFW Fish Passage Coordinator, Portland.
Minimum Depth at Low Flow Discharge
For non-embedded culverts, minimum water depth during expected fish passage periods shall be:
• Twelve (12) inches for adult steelhead and chinook salmon;
• Ten (10) inches for salmon other than chinook, sea-run cutthroat trout and other trout over
20 inches in length; and
• Eight (8) inches for trout under 20 inches, kokanee and migrating juvenile salmon and
steelhead.
For embedded (stream simulation) culvert designs, minimum depth at low flow discharge during
expected fish passage periods must meet or exceed conditions found in the adjacent natural
channel.
Entrance Jump: Maximum Vertical Height
A backwatered or partially submerged culvert entrance is preferred but the following maximum
jumps are allowable where justified:
• One(1) foot for salmon and steelhead adults
• Six (6) inches for trout and kokanee adults and salmon and steelhead juveniles.
The above are also the maximum jump heights when a series of jumps and pools are required.
In cases where entrance jumps are planned, a jump pool of at least 1.5 times the jump height or a
minimum 2 feet deep must be provided.
When planning for any jump into a culvert, project designers must show why the culvert could not
be designed with no jump.
http://www.dfw.state.or.us/ODFWhtml/InfoCntrFish/Management/stream_road.htm 8/8/2003
Stream-Road Crossings Page 4 of 6.,
Criteria for Upstream Migration of Juvenile Salmonids
Upstream juvenile migration occurs in response to instream habitat conditions, predation and
population pressures. Juvenile migration and redistribution is a means for increased survival and
optimizing production. An obstruction to juvenile migration can limit production both upstream
and downstream from the barrier.
Juvenile salmonids, by virtue of their small size, are less capable swimmers when compared to
adults. Therefore, maximum water velocity, jump and swimming distance criteria are necessarily
lower than those for adults.
Preferred Road-Stream Crossing Structures
Where fish passage facilities are required by ODFW, the following structure types shall be
considered for use in the displayed order of preference:
1. Bridge (with no approach embankment into the main channel)
2. Streambed simulation strategies using a Bottomless Arch or embedded culvert designs
3. Streambed simulation strategies using embedded round metal or concrete box culvert designs
4. Non-embedded culvert; placed at less than 0.5% slope
5. Baffled culvert (various designs); placed at 0.5% to 12% slope or a structure with a fishway.
Again, streambed simulation refers to the situation where substrate and flow conditions in the
crossing structure mimic the natural streambed for fish passage flows.
The landowner or agency must justify their proposed structure type if a more preferred structure
type is not selected.
General Considerations
At any given flow, slope is an important factor affecting water velocity in culverts. Culvert size
also affects velocities, especially when a structure is considerably undersized and a head (pooling
above culvert) is developed.
Gradients (slope) for non-embedded, non-baffled culverts shall not exceed 0.5% unless a tailwater
situation exists to backwater the culvert to a suitable depth for its length. Properly baffled or weired
culverts are appropriate for steeper gradients depending on design. Structures with fishways (i.e.,
fish ladders or culverts with weir-type baffles) generally will be required where culvert gradients
exceed 5% and streambed simulation is not employed.
Corrugated metal culverts are generally preferred over smooth-surfaced culverts. Deep
corrugations are preferred over shallow corrugations.
Bottomless arches and all styles of embedded culverts shall be placed at or near the same gradient
as the natural streambed and shall be at least as wide as the active stream channel (i.e., no lateral
encroachment on the active stream channel). All embedded culverts (round or arch) must be
embedded one foot deep or at least 20% of its height, whichever is more.
When deciding between bottomless arch and embedded culvert designs, the primary consideration
http://www.dfw.state.or.us/ODFWhtml/lnfoCntrFish/Management/streani road.htm 8/8/2003
• Stream-Road Crossings Page 5 of 6
f
is foundation substrate. If considerable bedrock is present, an open bottom arch is generally the
appropriate choice; embedding a culvert would require extensive excavation. Where. deep
unconsolidated gravel arid cobble is present, failure (undermining) of a bottomless arch foundation
is a major concern.
Hydraulic controls may be required to (1) improve culvert entrance and exit conditions (e.g. using
a beveled inlet configuration; providing resting pools at culvert entrance and exit), (2) concentrate
low flows, (3) prevent erosion of stream bed and banks, or (4) allow passage of bedload material.
The need for, and design of, these project features should be developed in consultation with
ODFW.
If water-crossing structures are placed in spawning areas, they must incorporate mitigation
measures, as necessary, to achieve no-net-loss of spawning area.
Trash racks are discouraged at culvert inlets. But if necessary, these should be installed only above
the high passage flow water level.
For culverts over 200 feet in length, illumination may be required. Contact the ODFW Fish
Passage Coordinator, Portland, for a case-specific determination.
Water Crossing Structures
Bridges
Properly installed bridges pose the least impact on crossed watercourses and are, therefore,
generally preferred by ODFW. Bridges are appropriate at any stream gradient. It is Luiderstood that
bridging costs can be relatively high and that project costs is a valid consideration when evaluating
road-stream crossing alternatives.
Culverts
Where fish are present and passage is a concern, culverts shall be designed and constructed to
provide adequate fish passage (as per criteria stated herein) for those species and Life stages
determined to be present. High water velocity, shallow water depth within the culvert, excessive
vertical drop at the culvert outlet and debris blockages are the most frequent causes of fish passage
problems at culverts.Y Therefore, culverts must be designed and constructed to avoid these defects.
Culverts may be approved for placement in small streams without extensive hydraulic analysis if
placed on a flat gradient (0.5% or less) and achieve minimum depth requirements. Where culvert
installation is not feasible at a flat gradient, the culvert design shall consider design criteria
outlined earlier.
Construction Considerations and Conditions
Culverts and associated fill should be designed using standard engineering design practices to
maintain structural integrity to the 100-year flow.
Disturbance of the bed and banks should be limited to that necessary to place the culvert,
embankment protection and any required channel modification associated with the installation. All
http://www. dfw. state. or. us/ODF Whtml/lnfoCntrFish/Management/stream_road.htm 8/8/2003
Stream-Road Crossings Page 6 of 6•
disturbed areas should be protected from erosion within seven (7) calendar days of completion of
the project using vegetation or other means. The banks should be revegetated within one year with
native or other approved woody plant species. Live stakes should be planted at a maximum interval
of three feet (on center) and maintained as necessary to ensure 80% survival.
Approved, structures should be constructed in the dry whenever possible. Where significant live
flow exists, isolation of the construction site from stream flow is required by techniques such as:
• the installation of a bypass channel, a flume or culvert
• the installation of a sheetpile or sandbag wall
• the use of a water-filled cofferdam
• by pumping the stream flow around the site
Exception may be granted if siltation or turbidity is reduced to acceptable levels by means
approved by ODFW.
Any fish stranded in the construction area or diversion reach shall be safely moved to the flowing
stream. A local ODFW representative should be contacted to determine if the fish need to be
moved.
Any wastewater from project activities and dewatering shall be routed to an area outside the
ordinary high water line to allow settling of fine sediments and other contaminants prior to being
discharged back into the subject stream.
If in-water excavation is anticipated, timing of same shall conform to Oregon Guidelines for
Timing of In-Water Work to Protect Fish and Wildlife Resources unless an exception is approved
by ODFW.
Back To Top.
A Oregon Department of Fish & Wildlife
o-Home $ Fish (D Wildlife News 0 Agency
http://www.dfw.state.or.us/ODFWhtml/lnfoCntrFish/N4anagement/stream road.htm 8/8/2003
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- _ Civil Engineering * WAter Resourc
f Larndscape Architectw-c . Planni Environmental • Surveying
' 15580 SW Jay Street, Suite 2
Beave: ton, Oregon 9740E
(503)0=-4-6842 fax: (503)t,44--91
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2.1 EXHIBIT G
BEFORE THE TIGARD CITY COUNCIL
OCTOBER 19, 2004
PETITION
Tigard resident John Frewing appears before the Tigard City Council on October 19, 2004 and
petitions such governing body to 1) acknowledge and then 2) initiate and approve an amendment to
its Comprehensive Plan, correcting an omission made in 1987 as part of Tigard's annexation of East
Metzger into the City.
BACKGROUND
The Tigard Comprehensive Plan was adopted by Ordinance 83-52 in November, 1983. It consists
of three parts: Volume 1, Resource Information, Volume 2, Findings, Policies & Implementation
Strategies and the Tigard Community Development Code (see Findings, Vol 2, Policy 1-1). An
integral aspect of the Comprehensive Plan is the Comprehensive Plan Map, which is intended to be
the visual representative of the policies and adopted land uses. Where there are apparent
inconsistencies between the policies and the map, the policies shall control (see Vol 2, Introduction,
p 2.).
The Tigard Comprehensive Plan has been revised some 30 times since its adoption to be consistent
with legislative changes, statewide planning goals, regional plans and changed community
conditions.
In June of 1987, by Resolution 87-80, the Tigard City Council annexed East Metzger, generally
bounded by Taylor's Ferry Road on the north, SW 75'h and SW 72nd on the west, Spruce St. on the
south and SW 65 h and SW 680' on the east. This annexation included about 9 acres straddling
South Fork Ash Creek between SW 74`h and SW 70'h (Tax Lots 300 and 400, WCTM IS 125DC,
with a street address of 9750 SW 74 h, owned by Ernest E and Elda H. Senn), hereafter termed the
Senn tract.
The annexation of Resolution 87-80 was approved by the Portland Area Metropolitan Local
Government Boundary Commission in its Final Order 2413 dated July 30, 1987. As stated in
Finding 8 of this Final Order, East Metzger, including the Senn tract, was previously governed by
the Metzger-Progress Community Plan (MPCP), an element of the acknowledged Washington
County Comprehensive Plan.
Finding 10 of Final Order 2413 noted at the outset that "land use and zoning designations on areas
annexed to cities will continue in effect unless, or until the City has by ordinance or provision
provided otherwise." In the governing MPCP, the Senn tract comprises ASC 10 (Area of Special
Concern), which is a land classification of the MPCP. In designating the Senn tract as ASC 10, the
MPCP notes "Development of structures and land divisions in this special wooded area shall be
planned and reviewed under the Type III review provisions of the Community Development Code.
Because of the importance of trees and other natural vegetation to the wildlife habitat and scenery
of the community, development shall be designed to minimize the area disturbed." The MPCP
further lists the Senn tract as a "Significant Natural Resource" and specifically highlights its
wildlife importance, stating that it has "sensitive habitats identified by the Oregon Department of
Fish and Wildlife, the Audubon Society, Urban Institute Habitat Map and forested areas coincident
with water areas and wetlands." Finding 10 of Final Order 2413 concludes that upon annexation,
the city would convert county plan designations to city plan designations which most closely
approximate the county designations.
THE OMISSION
The conversion of ASC 10 on the MPCP to the Tigard planning maps was never considered or
accomplished. The only map in the Tigard Comprehensive Plan, which illustrates important
wildlife habitat is DIAGRAM V, which follows page I-40 in Volume 1 of the Tigard
Comprehensive Plan. It is this diagram, which should be corrected to show the Senn tract as an
important wildlife area.
COMPREHENSIVE PLAN AUTHORITY AND MANDATE FOR CORRECTION
Tigard Comprehensive Plan, Policy 3.4.1 states "The city shall designate, in accordance with Goal
5, the following as areas of significant environmental concern. a.... ; b....; and c. Areas valued
for their fragile character as habitats for plants, animal or acquatic life, or having endangered plant
or animal species, or specific natural features, valued for the need to protect natural areas."
Tigard Comprehensive Plan, Policy 1.1. l .c states "The city shall ensure that the Tigard
Comprehensive Plan and Community Development Code are kept current with the needs of the
community. In order to do this: 1. This plan shall be reviewed and updated at least every five
years."
CONCLUSIONS
The City of Tigard has not implemented important provisions of its agreement with governing
authorities in annexing East Metzger in 1987. Opportunity to update the plan and its associated
maps has occurred every five years since 1987. Compliance with current Comprehensive Plan
policies requires correction of this deficiency.
The Senn tract today, and until acknowledged as otherwise in the Tigard Comprehensive Plan, is
properly governed by requirements of other Tigard areas designated as significant natural areas,
including the requirements for sensitive lands contained in the TCDC.
Signed this 19a' day of October, 2004
John Frewing
7110 SW Lola Lane
Tigard, OR
503-245-5760
ifrewinp,@teleport.com
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CITY OF TIGARD, ORE00N
RESOLUTION 00. 8T ea
A RESOLUTION INITIATING ANNEXATION TO THE CITY OF TIGARD OF THE TERRITORY
OUTLINED I'M EXHIBIT "A" AND DESCRIBED IN EXHIBIT "B" ATTACHED (NORTHEAST
METZGER ZCA 87-05).
WHEREAS, a petition requesting annexation of an area described as Northeast
Metzger containing 180 signatures was submitted to the City of Tigard; and
WHEREAS, a public hearing was held on June' 1F. 1987 before the Tigard City
Council to consider the request; and
J
C•
WHEREAS, by authority of ORS 199.490(1)(a) the Council of the City of Tigard
may initiate the annexation.
NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that:
Section 1: The Council, pursuant to ORS 199.490(i)(a) hereby initiates
proceedings for annexation of the territory to the City.
Section 2: The Council hereby approves the proposed annexation and
requests the Portland Metropolitan Area Local Government
Boundary Commission to approve it.
Section 3: The City Recorder is hereby directed to file a certified copy
of the Resolution with the Commission at once.
PASSED: This day of JIL4 1JL 1997.
{
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Mayor - City of Tigard
ATTEST:
Citl►' Recorder =City of T.igw
AM: cnl3260
44.
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PORTLAND METROPOLITAN AREA LOCAL GOVERNMENT BOUNDARY COMMISSION
320 S. W. Stark 0530) - Portland, Oregon 97204 - Tel: 229-5307
FINAL ORDER
RE: BOUNDARY CHANGE PROPOSAL NO. 2413 - Annexation of territory
to the City of Tigard.
Proceedings on Proposal No. 2413 commenced upon receipt by the
Boundary Commission of a resolution from the City on June 24,
1987, requesting that certain property be annexed to the city.
The resolution meets the requirements for initiating a proposal
set forth in 199.490 particularly paragraph (a) of section (1).
Upon receipt of the petition the Boundary Commission published
and posted notice of the public hearing in accordance with ORS
199.463 and conducted a public hearing on the proposal on July
30, 1987. The Commission also caused a study to be made on this
proposal which considered economic, demographic and sociological
trends and projections and physical development of the land.
The Commission reviewed this proposal in light of the following
statutory guidance:
.11199.410.Policy. (1) The Legislative Assembly find that:
(a) A fragmented approach has developed to public ser-
vices provided by local government and such an approach has
limited the orderly development and growth of Oregon's urban
areas to the detriment of the citizens of this state.
(b) The programs and growth of each unit of local gov-
ernment affect not only that particular unit but also the
activities and programs of a variety of other units within
each urban area.
(c) As local programs become increasingly inter-
governmental, the state has a responsibility to insure
orderly determination and adjustment of local government
boundaries to best meet the needs of the people.
(d) Local comprehensive plans define local land uses but
may not specify which units of local government are to pro-
vide public services when those.services are required.
(2) The purposes of ORS 199.410 to 199.519 are to:
Final Order - Page 1
(a) Provide a method for guiding the creation and growth
of cities and special service districts in Oregon in order to
prevent illogical extensions of local government boundaries;
(b) Assure adequate quality and quantity of public ser-
vices and' the financial integrity of each unit of local gov-
ernment;
(c) Provide an impartial forum for the resolution of
local government jurisdictional questions; and
(d) Provide that boundary determinations are consistent
with local comprehensive planning, in conformance with state-
wide planning goals. However,. when the proposed boundary
commission action is within an acknowledged urban growth
boundary, the state-wide planning goals shall not be applied.
The commission shall consider the timing, phasing and avail-
ability of services in making a boundary determination.
199.462 Standards for review of changes; territory which may
not be included in certain changes. (1) In order to carry
out the purposes described by ORS 199.410 when reviewing a
petition for aboundary change, a boundary commission shall
consider economic, demographic and sociological trends and
projections pertinent to the proposal, past and prospective
physical development of land that would directly or indi-
rectly be affected by the proposed boundary change and the
goals adopted under ORS 197.225."
The Commission also considered its policies adopted under Admin-
istrative Procedures Act (specifically 193-05-000 to 193-05-015),
historical trends of boundary commission operations and deci-
sions, and past direct and indirect instructions of the State
Legislature in arriving at its decision.
FINDINGS
(See Findings in Exhibit ".A" attached hereto).
REASONS-FOR . DECISION
(See Reasons for Decision in Exhibit "A" attached hereto).
Final Order - Page 2
ORDER
On the basis of the Findings and Reasons For Decision listed in
Exhibit "A", the Boundary Commission approved Boundary Change
Proposal No. 2413 as modified on July 30, 1987.
NOW THEREFORE IT IS ORDERED THAT the territory described in
Exhibit "B" and depicted on the attached map, be annexed to the
City of Tigard as of 45 days from this date which is September
14, 1987.
PORTLAND METROPOLITAN AREA LOCAL GOVERNMENT
BOUNDARY COMMISSION
DATE :(7~~" l3 `L`t;-, BY:
Chairman
Attest:
1
Final Order - Page 3
Exhibit A
Proposal No. 2413
FINDINGS
Based on the study and the Public Hearing the Commission found:
1. The territory proposed to be annexed contains 215.5 acres,
458 single family residences, a National Guard armory, an
estimated population of 1104, and an assessed valuation of
$32,610,400.
2. In August 1986 the Commission approved the Metzger/Washington
Square annexation to Tigard (Proposal No. 2260). An election
was held and the proposal was voted down. In February, 1987
the Boundary Commission approved Proposal No. 2344 which
annexed a. southern portion of the metzger community and
Washington Square. That Proposal was approved in an
election.
3. The City initiated this annexation proposal inresponse to the
petition for annexation from 180 area residents.
4. This proposal was initiated by a resolution of the Tigard
City Council. Proposals initiated by this kind of petition
area subject to a remonstrance. This means an election may
be held on the annexation. Such an election is not, however
automatic. If the proposed annexation is approved by the
Boundary Commission, it is not effective for 45 days. If
during the 45 days the Boundary Commission receives a
petition requesting an election signed by 100 registered
voters or 10% of the registered voters residing in the area
to be annexed, the proposed annexation would be subject to a
vote. The registered voters in the area proposed for
annexation would do the voting and a simple majority of those
voting would decide the issue. If the Boundary Commission
approves the proposed annexation and no remonstrance petition
is forthcoming within 45 days of the decision, the annexation
would become effective on the 45th day (or any subsequent day
up to one year later as specified by the Commission) and
there would be no election.
5. The 'Boundary Commission has three adopted policies. The
first of these policies states that the Commission sees cit-
ies as the primary providers of Urban Services. Recognizing
that growth of cities may cause financial problems for
districts, the Commission states in the second policy that
the Commission will help find solutions to those problems.
The third policy states that the Commission may approve
Final Order - Page 4
Exhibit A
Proposal No. 2413
illogical annexations in the short term if these lead to log-
ical service arrangements in the long-term.
6. Most of the area consists of detached single-family
dwellings. Approximately 22 vacant lots are within the area
and two lots are identifed as potential greenway/wildlife
sanctuary.
7. The territory is within the boundary of Metro and within the
regional urban growth boundary.
8. The territory is designated Urban on the acknowledged County
Comprehensive Plan. The area is covered by the Metzger-
Progress Community Plan. This Plan, which covers an area
larger than the area proposed for annexation, was adopted by
the Board of County Commissioners on December 27, 1983. The
Metzger-Progress Community Plan has been reviewed by LCDC and
found to be in compliance with.the state-wide planning goals.
It is considered to be an element of the County Comprehensive jJ
Plan.
The Metzger/Progress Community Plan identifes the area as Low
density Residential with an Institutional designation north
of SW 67th and Oak. Street, the location of the National Guard
armory.
9. Washington County has recently reviewed its role in service
provision in its County 2000 program. The County is
proposing a service delivery system which clearly
distinguishes between municipal and county-wide services in
attempt to achieve tax fairness and expenditure equity in the
provision of public services. It is County policy that all
tax payers should pay for those services which are of County-
wide benefit.
l 10. The City of Tigard has an acknowledged City Limits plan. ORS
215.130 provides that "land use and zoning designations on
areas annexed to cities will continue in effect unless, or
until.the City has by ordinance or provision provided other-
wise." Furthermore the City of Tigard and Washington County
have entered into an Urban Planning Area Agreement the
effective date of which is September 9, 1986. The Urban
Planning Area Agreement (UPAA) is considered to be a part of
both the County's and the City's adopted Comprehensive Plans.
The UPAA sets out an "Active Planning Area" within which the
City assumes responsibility for land use planning, and an
"Area of Interest" in which the County agrees to coordinate
Final Order - Page 5
Exhibit A
Proposal No. 2413
its planning due to the potential impacts on the adjacent
City. This proposal falls within the rules for the Tigard
"Area of Interest". The following pertinent statements are
from Section B, "Area of Interest" portion of the UPAA:
114. The CITY may consider requests for annexations in the
'Area of Interest' subject to the following:"
"A. The CITY shall. not require annexation of lands in the
Area of Interest as a condition to the provision of
urban services for development."
"B. Annexations by the CITY within the Area of Interest
shall not create islands unless the CITY declares its
intent to complete the island annexation."
"C. The CITY agrees in principle to a plebiscite or other
representative means . for . annexation in the
Metzger/Progress Community Planning Area, which
includes Washington Square, within the CITY area of
Interest. NOT CONTRARY TO THE FOREGOING, THE CITY
RESERVES ALL OF ITS RIGHTS TO ANNEX AND ACKNOWLEDGES
THE RIGHTS OF INDIVIDUAL PROPERTY OWNERS TO ANNEX TO
THE CITY PURSUANT TO OREGON REVISED STATUTES. (Cap-
italization added for emphasis.)"
"D. Upon annexation of land within the area of Interest
.to the CITY, the CITY agrees to convert COUNTY plan
designations to CITY plan designations which most
closely.approximate the density, use provisions and
standards of COUNTY designations. Furthermore, the
CITY agrees to maintain this designation for one .year
after the effective date of annexation unless both
the CITY and COUNTY Planning Directors agree at the
time of annexation that the COUNTY designation is
outdated and an amendment may be initiated before the /I
one year period is over."
The City of Tigard has conducted a Municipal Services Study
covering the area proposed for annexation. The study
describes the area, discusses annexation; service provision,
expenditure requirements and revenue projections. 'On July
14, 1986, the City of Tigard adopted an Urban Services Policy
declaring its willingness to plan and ultimately provide
urban services in an area around the current City limits.
The.area proposed for annexation falls within the territory
covered by this policy.
Final Order - Page 6
PROPOSAL N022413
AREA TO BE
„rton ANNEXED rM L f
PARCEL A Y
FIGURE 2d ;o:'
r.~ FIGURE 2b
,
FI 2cI• ,
s.
PARCEL B . ~
FIGURE 2j -FIGURE:2e* FIG
€ URE 2a"
J tf
I Y
36 I
FIGURfi 21 si
FIGURE 2f
FIGURE 2h Y - • •
FIGURE 2g.
y r''r
Tigard
9 9
PROPOSAL NO. 2413
CITY OF TIGARD
ANNEXATION
FIGURE 2 INDEX MAp
11 Noise reduction
M rra• RES S V incorporated intc
developments lot
Arterials and Ma
C (3` M M UITY P LAN vegetative buffer
backs and structi
•COMMUNITY PLAN OVERVIEW, protect what is unique about the such as insulation
Metzger-Progress Planning Metzger-Progress Community Plan Area, and windows away frc
Ar~ea encompasses
two substantially developed urban at the same time connect its land uses with
communities in unincorporated Washington the surrounding metropolitan community. 12 Proposed new corn
County - one historically a residential Boulevard, Greenl:
community, the other a younger community of General Design Elements are first listed Road and Pacific
primarily commercial activities. 'Old which describe policy direction for the evaluated against
Metzger', the residential community, is whole Planning Area. Then, the land uses to discourage strig
conceived as generally east of Greenburg planned for Metzger-Progress are development. Des
and Oleson Roads and west of the county characterized for six subareas and design features outlined i
line, between Taylors Ferry Road and elements specific to each subarea are Development Code
Pacific Highway and Highway 217. Hall presented. All of the design elements in orientation, parkini
Boulevard and Locust Street form the main this Plan, both general to the Planning landscaping. which r
axis for neighborhood commercial activity Area and specific to subareas shall guide detrimental effects
in Metzger.. Progress, including Washington land use in the Metzger- Progress Area. development. .
Square, lies west of Greenburg and Oleson Areas of Special Concern are also defined 13 Where the impact o'
Roads. Most of this area is developed as a in this Community Plan. Some sites within associated with comp
fairly intensive regional commercial
center. the Planning Area present special uses adjacent to res
.
resources, opportunities or problems to the not meet the stands
The development approach planned for the Metzger and Progress community. In such Development Code, I
Metzger portion of the Planning Area is cases, a creative design approach is called development shall be
intended to protect the integrity of the for to resolve development conflicts and/or hours of operation.
existing, primarily low density, assure consideration of important
residential neighborhood, while amenities, such as proper circulation and 14 A height limitation i
accommodating a variety of housing options. open space. Special policies for analysis apply to all develop
Some development is also planned to provide or design, as well as directions for the Boulevard south and
for neighborhood shopping, employment and public review process are given where these gleson Roads.
recreation opportunities which are readily special areas are noted. Fifteen Areas of
accessible to Metzger residents. Moreover, Special Concern are mapped and numbered on 15 New development sh
the use of public transit, and bike/ the Community Plan Map. it determined to be al
pedestrian ways is encouraged in order to development review
reduce the number and length of trips for road extensions
residents must make to work and shop by General Design Elements indicated in Washing
3utor-~wile. Together, the Community Plan ? !n the design of new development. Transportation Plan
dements foster development which moves , floodplains, drainage hazard areas, Plan. New develop
his area toward the goal of the balanced, streams and their tributaries, riparian subject to condition
veil serviced community prescribed in the zones and wooded areas, steep slopes, County's growth m;
omprehensive Framework Plan. scenic features, and powerline easements public facility stani
and rights-of-way shall be: development review
ie development approach for the Progress/
ishington Square portion of the Planning a used to accent, define, or separate 16 Transportation plarn
ea Is continued development as an areas of differing or similar residen- sensitive to the int
-ensive regional, primarily commercial, tial densities and differing planned residential communi
iter. Progress will continue to be land uses; shall provide that
veloped as a diversified and compact integrated with sur
rter of commercial and high density b preserved and protected to enhance the and other modes of
idential uses. Washington Square and economic, social, wildlife, open space, pedestrian. Truck
rounding uses are intended to continue scenic, recreation qualities of the traffic to and fror
eloping as a regional commercial center community; and
i appropriate supportive uses.
A mixture of land uses within this Area Specific Design Elements:
of the flood plain shall be encouraged, consistent with the
I be permitted without Code. Special attention shall be given 1 Parcels designated for medium density,
c improvements to the to shared access, orientation and signage R-15, residential uses west of SW 74th
which have been prepared with minimum detrimental impact on Avenue and Pacific Highway make up Ar
wildlife biologist surrounding low density residential uses. of Special Concern 14. Development of
'age c apacity shall be
1 structures and land divisions within this
1 2 Parcels which include the forested land special area shall be planned and
levelopment for the portion along the east fork of Ash Creek comprise reviewed under the Type III review
ove the flood plain and Area of Special Concern 10. Development provisions of the Commuriity Developmen
~ 217 shall have access of structures and land divisions in this Code. Such development 'shall account
,hthway Avenue and shall be special wooded area shall be planned and adequate acces to all portions of this
ed from the traffic reviewed under the Type III review property and shall not result in an
fet
fe d provisions of the Community Development overload of local residential streets.
ay 217. Code. Because of the importance of trees
for development on this and other natural vegetation to the 2 Several parcels north of Pfaffle and %w
de for open space for wildlife habitat and scenery of the com- of SW 83rd Avenue make up Area of
le flood plain portion munity, development shall be designed to Concern 15. Development of structure:
:
with the appropriate minimize the area disturbed. and land divisions within this Area shal
managing agency, in order be planned and reviewed under the
:e much manaags practicable in Development approval shall not permit Type III review provisions of the
long Ash Creek. removal of more than fifty percent of the Community Develoment Code. Because
mature standing trees (six inch diameter the' importance of trees and other natu
jiation study shall be or greater) unless demonstrated that vegetation to the wildlife habitat and
lie Greenburg Road - Oak removal is necessary to permit scenery of the community, development
%,,y 217 intersection area by development of the site at the planned shall be designed to minimize the area
-he resulting design plan density. This demonstration shall be disturbed.
rculation in this area reviewed by the review authority to
ensure that the applicant has r.spd rho fn:11n1.
nh iPCNves:
followi
r flexibility provided in Planned removal of more than fift# percent of
v th the County Development provisions of the Code to mature standing trees (sixiiinch diamet•
minimize removal. Development design or greater) unless demonstrated that
on Plan, Oak Street west of and clearing for structures shall provide removal is necessary to permit
iid shall be used for local for maximum retention of larger trees. development of the site at the planned
I circulation only, not for
density. This demonstration shall be
;ic. No additional street crossings of the reviewed by the review authority to
cess for commercial uses stream, except for SW.74th Avenue, shall ensure that the applicant has used the
)sided on both sides of be permitted within this Area of Special flexibility provided in Planhed
'luding Lincoln Concern. Since the portion of this site Development provisions of the Code to
.oadoacl, Square and east of SW 74th Avenue is within a minimize removal. Development desigr
;bington
end future establishments. park-deficient area, public open space clearing for structures shall provide fo
use of the part along the creek shall be maximum retention of larger trees.
considered during the development review
process, in coordination with the The access and circulation isystem shat
appropriate park/open space managing provide for no crossings ofa the stream
agency.
Since the site is on-the fringe of a
3 A number of wooded lots south of Ventura park-deficient area, the development
Avenue are designated Area of Special proposal shall include consideration of
Concern 11. Development of structures dedicated public open space, coordinai
and land divisions within this Area shall with the appropriate park/open space
- be planned and reviewed under the Type managing agency.■
III review provisions of the Community
Development Code. Because of the
bordered by the City of importance of trees and other natural
ce Street on the south, Hall vegetation to the wildlife habitat and
lashington Drive on the west, scenery of the community, development
shall be designed to minimize the area
s-Garden Home Community
d
n the north, and the county disturbed.
f Portland on the east. Development approval shall not permit
barea is designated low removal of more than fifty percent of the
ial, R-5 mature standing trees (six inch diameter
or greater) unless demonstrated that
removal is necessary to permit
I
J AREA OF SPECIAL CONCERN
areas designated on the tnrr
\
rV.nr 4r
\ g p;'~ which Lava spa(`liu OVe 181 c
within the plan te.t adJrvss
more special concerns ahrut
A i NOTE: A.S.C.4 HAS BEEN DELE-1 El
BY 84-109M MAY 23, 19i
I I
i
SUBAREA
i PFAFE LE' l
CR
JJU
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i}
y/ s, t)
. s' 4 r ter' i-, r t IZ
is
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"14TH I , t; C: 1 G E `7 1 CITY OF
a' PORTLAND
FiH t,
lu - ; _ - I F,- Ea _
LTT[H
y,~1-~~'~7~f ~'I1 II II ~I~~{1IF_ I~~J' ~4~ WJJyJ ~ IJ UN101
Hill r ~ [I TNAMT
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~hl I Ij-I.,"+,y~~~ EA87-
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i t r o
-111 H
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E01
dl !
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OP&A AN
;Z'! loll
.14
U'`r r
ttt em,
` stArA;
\ VICINITY MAP
GIUI Much of the road travel in this community 1-11
vEner major land uses include the is through as opposed to local traffic. Port
Progress Downs Golf Course, Crescent Grove Principal Arterials skirt the area on the are
Cacn parcel of land in the `
planning area. Cemetery, Metzger Park, Metzger School, southwest (Highway 217) and southeast requ
National Guard Armory, and churches. (Pacific Highway). Hall Boulevard, Oleson
The Community Plan Text provides a w6ttc„ Rccd, Creonburg R=ad, nnc! Scholls Ferry Storl
description of the Community Plan Map in There are relatively few remaining large Road are classified as Minor Arterials. curt,
order to specify the intent of the mapped vacant parcels, though many dwellings are road':
designations. Additionally, the Community located on large lots containing At present there is significant traffic con::t
Plan Text includes Community Design developable land. An estimated total of congestion on Pacific Highway in the along
267 acres of land is considered buildable, vicinity of Highway 217, on Scholls Ferry wf'.erE
F~~o r I ~
SIGNIFICANT -onsic
locati,
NATURAL. RESOURCES J! facilit
a I: basin-
/ 1,,,, prur.,iv,•,, rr,e r,:r. ::r n„~ .rAnrru,,' ~ J (':'.~•'.':«;4:;'4. - i✓
,•.ru 'aAr,r~rr,n.J'..,,.,,,:,.r,,..r....r..,. r,r. r. I ~ ~ . ,:~_J[`; E{+j-~(~~ Wa5hin
~.Lv,li l,r•d „ , . .,r Lnd•• n,. r 1h. rlln,u , ' w t `
I
c 1; ,,ert i r„e .r,, rr.r:,..r„ ,rte _ I
Distric
WATER AREAS AND WETLANDS 1 t;~-/_-T_,~-~, f~' n . station
a,. OF 5.7.,E adjacer
F l__.! , . ,J p: nJ., rrr.,,. n, .,.h tj ' llti t~,T{rd _ . ' i;•~ ~q{`~•J 1
Ferry
1 "'l.. L~~~ III_••
,y WILDLIFE HABITAT j t ► • Metzge
r1;{: y.n.,,,.• I,drr,.,i, r: r rr::. I ~`~i_ •7':=;r.~. _ , -~{1 -i,,,•~ - _ rating•
„r,• n,rd,d,., , r. ,...dr„r' I ~I .',F' ~L.._ k. ;IL-~1 1 ~r~ r_ LII b the bes
•u.n,ri.rirn.,v . ................r.,., ,•••rr- , - i ;..t,. :,y!r.•I .,.,,-il .._o..~,.~`-~q I 1~„
. .rr..r _ ~ '~j' "4+."~~ - The Pla
WATER AREAS AND WETLANDS _ Is•.~_ -
& FISH AND WILDLIFE HABITAT ` _ - - - - Tigard
.•r.,, c., -y ; , I;r, - ._,-='``i^` 'i in the r.
r ..1' 'ri:w, ~ ~ - ._4L.°. ~ , Y-U ir- ....t_~ T" crrv or
of Beavc
a, ( - .-~~t ~fC~, .oar,.no
OPEN SPACE _ f . .,-r.-
f ~[P71J in the T
E .•r, r5~. i - ,
I• :r_ - - Elementa
®
X11 ii eh Sch
• t[7n!~:~ 11{fl1~.L'"1~_~1-~'
3TM
attend M
SCENIC RESOURCES N
. II ,.-Y_~ £ / I: „ , jr 1' t _...,j r
Intermedi
....u.,•r ...r - , i',': is 7: h
Metzger
communit
Improvem
'r Downs Cc
µwl,..:„ .5uu„ i.,rh, va.'•,r, 1 ; !i I. 8 l\\ I NORTH Area. T
SCALE Rec
PARK DEFICIENT AREA^ - ~I I \ reatio
~/7 I J' , ? son yy.,.
Feb 09 05 08:25a TVF&R SOUTH DIV. (503)612-7003 p.l
20~ EXHIBIT H
Tuna atin VaNey have & Rescue
WPOR South Division Fire Marshal's Office
Tualatin ~i~~g~ 7401 SW Washo Ct., Suite 101, Tualatin, OR 97062
Fire & Rescue Tel. 503.612.7000 - Fax: 503.69 2.700
FACSIMILE TRANSWTAL
To: John Frewing Company:
FAX 503.245.5760
From: Eric McMullen
Date: February 9, 2005
CBE: Requested Fire Code References
Note: The first page is takers from our current fire code ordinance. The 25 home
maximum was not found In the model national code at the time of adoption
and was therefore added by TVF&R through adoption of Ordinance 99-01.
The 2nd and 3rd pages are taken from the new fire code ordinance,
currently adopted by Tigard, Tualatin, Beaverton & Durham only. The
limitation Is now found in the model national code and has been bumped up
to 30 homes maximum on a single access.
(dumber of Pages:
(Including cover page) X I
If you do not receive all pages, please call as soon as possible 503.612.7000 - Thank you.
"Working" Smoke Detectors Save Lives
Feb 09 05 08:25a TVF&R SOUTH DIV. (503) 612-7003 p.2
black on yellow background and shall have a stroke of 1-inch wide by 6-inches high. Roadway driving
surfaces, at the discretion of the chief, shall be painted with 6-inch diagonal striping. The color of
st ' ing shall be red or yellow against a high contrast background.
9. Section 902.2.1 is amended by adding the following:
Twenty-five or more dwelling units shall have not less than two or more approved fire apparatus
access roadways.
Exception: 1. When Group rvision cupancies are provide with automatic sprinkler
protection in accordance with UBC Standard 9-1 or 9-3 a single access may be provided when
approved by the chief. All other provisions for fire apparatus access roadways shall be complied with
as specified herein.
2. rWhen Group R, Division 3 Occupancies are provided with automatic sprinkler protection in
acance with National Fire Protection Association Standard 13D, 1996 Edition, a single access may
be provided when approved by the chief.
10. Section 902.2.2.5 is amended to read as follows:
902.2.2.5 Bridges. Private bridges on required fire apparatus access roadways shall be designed and
constructed in accordance with the State of Oregon Department of Transportation and American
Association of State Highway and Transportation Officials Standards. Design load shall conform with
HS-25 or greater. The design and specifications for bridges shall be prepared by a State of Oregon
registered professional engineer. A building permit shall be obtained for the construction of the bridge
when required by the building official. The design engineer shall prepare a special inspection and
structural observation program for approval by the building official when a permit is required or
approval by the fire chief when a permit is not required. The design engineer shall give, in writing,
final approval of the bridge to the fire department after construction is completed. Maintenance of the
bridge shall be the responsibility of the party(ies) that use the bridge for access to their property(ies).
The fire district may at any time, for due cause, ask that a registered engineer inspect the bridge for
structural stability and soundness at the expense of the property owner(s) the bridge serves.
11. Section 902.2.4.1 is amended by adding the following to the end of the section:
The chief may order any vehicle to be removed which is in violation of the Uniform Fire Code and/or
is an obstruction to suppression of fire. If the vehicle is left unattended, the chief may cause the
vehicle to be towed with all expenses incurred by the owner.
12. Section 902.4.1 through 902.4.4 are added as follows:
902.4.1 Required Key Boxes. Key boxes shall be installed on buildings and structures if:
1. an elevator is installed;
2. if equipped with an automatic fire extinguishing system;
3. if equipped with a fire alarm system; or,
4. if, access is restricted due to security arrangements.
Exception: Buildings and structures open and supervised twenty-four hours a day, seven days a
week or constantly attended.
Tualatin Vallev Fire & Rescue 6 n.•a;nn.,ro WAY
Feb 09 05 08:25a TVF&R SOUTH DIV. (503)612-7000,13 P.3
APPENDIX Dam - ! l~R~~ lei 1~- ~'4l I(J P-L=}{ 1~ 1'✓~"
&F 2 / ~e
2. Gates shall be of the swinging or sliding type. 62,000 square feet (5760 m-) shall be provided wide two sepa-
3. Construction of gates shall be of materials that allow rate and approved fire apparatus access toads.
manual operation by one person. Exception: Projects having a-gross building area of up to
4. Gate components shall be maintained in an operative 124,000 square feet (11520 m) that have a single approved
condition at all times and replaced or repaired when de- fire apparatus access road when all buildings are equipped
fective. throughout with approved automatic sprinkler systems.
5. Electric gates shall be equipped with a r. Wans of opening 0104.3 Renioteness. Where two access roads are required,
the gate by fire department personnel for emergency ac- they shall be placed a distance apart equal to not less than one
cess. Emergency opening devices shall be approved by half of the length of the maximum overall diagonal dimension
the fine cone official. of the property or area to be served, measured in a straight line
6. Manual opening gates shall not be locked with a padlock between accesses.
or chain and padlock unless they are capable of being
opened by means of forcible entry tools.
7. Locking device specifications shall be submitted fora SECTION D105
p- AERIAL FIRE APPARATUS ACCESS ROADS
proval by the fire code official. D105.1 Where required. Buildings or portions of buildings or
D103.6 Sip. Where required by the fire code official, fire ap- facilities exceeding 30 feet (9141 mm) in height above the low-
patntus access roads shall be marked with permanent NO est level of fire department vehicle access shall be provided
PARKING-FIRE LANE signs complying with Figure with approved fire apparatus access roads capable of accom-
D103.6. Signs shall have a minimum dimension of 12 inches modating fire department aerial apparatus, Overhead utility
(305 min) wide by 1S kiches (157 rrim) high and have red levers a.1; power Lies shall not be located within the aerial tine appa-
on a white reflective background. Signs shall be posted on one rams access roadway.
or both sides of the fire apparatus road as required by Section
D 103.6. lorD 103.6.2. D105.2 Width. Fire apparatus access roads shall have a mini-
mum unobstructed width of 26 feet (7925 mm) in the immedi-
ate vicinity of any building or portion of building more than 30
SIGN TYPE "A" SIGN TYPE "C" SIGN TYPE "D" feet (9144 mm) in height.
T ID105.3 Proximity to building. At least one of the required ac-
No NO NO cess routes meeting this condition shall be located within a
PARKING PARKING PARKING minimum of 15 feet (4572 rnm) and a maximum of 30 feet
(9144 mm) from the building, and shall be pasitioned parallel
FIRE LANE FIRE LANE FIRE LANE 113° to one entire side of the building.
12-~ -12"-"{ MULTIPLE-FAMILYSRESIDENTAL DEVELOPMENTS
13106.1 Projects having snore than 100 dwelling units. Mul-
tiple-family residential projects having more than I W dwelling
FIGURE 0103.6 units shall be equipped throughout with two separate and ap-
FIRE LANE SIGNS proved fire apparatus access roads.
Exception: Projects having up to 200 dwelling units may
1)103.6.1 Roads 20 to 26 feet in width. Fire apparatus ac- have a single approved fire apparatus access road when all
cess roads 20 to 26 feet wide (6096 to 7925 mm) shall be buildings, including nonresidential occupancies, are.
posted on both sides as a fire lane. equipped throughout with approved automatic sprinkler
ID103.62 Roads more than 26 feet in width. Fire appara- systems installed in accordance with Section 903.3.1.1 or
tus access roads more than. 26 feet wide (7925 mm) to 32 903.3.1.2 of the International Fire Code.
feet wide (9754 mm) shall be posted on one side of the road 1(D106.2 Projects having more than 200 dwelling units. Mul-
as a fire lane. tiple-family residential projects having more than 200 dwelling
units shall be provided with two separate and approved fire ap-
paratus access roads regardless of whether they are equipped
SECTION D104 with an approved auto tic sprinkler system.
COMMERCIAL AND INDUSTRIAL DEVELOPMENTS
11D104.1 ]Buildings exceeding three stories or 30 feet in SECTION D107
height. Buildings or facilities exceeding 30 feet (91.44 mm) or ONE- OR TWO-FAMILY RESIDENTIAL
due.: stories in height shall have at least three means of fire ap- DEVELOPMENTS
paratus access for each structure. 10107.1 One- or two-family dwelling residential develop.
D104-7 Buildings exceeding 62,000 square feet in area. ments. Developments of one- or two-family dwellings where
Buildings or facilities having a gross building area of more than the number of dwelling units exceeds 30 shall be provided with
376 2003 INTERNATIONAL FIRE CODE@
va ameba TVF&R SOUTH DIV.
(503)612-7003 P,4
APP2NDIX D
separate and approved fire apparatus access roads, and shall
meet the requirenlents of Section D 104.3.
Exceptions:
1. Where there are 30 or fewer dwelling units on a single
public or private access way and all dwelling units are
protected by approved residential sprinkler systems,
access from two directions shall not be required.
2. The number of dwelling units on a single fire appara-
tus access road shall not be increased unless fire appa-
ratus access roads will connect with future
development, as determined by the fire code official.
2003 INTERNATIONAL FIRE CODED 377
ATTACHMENT 2,2
RE: Ash Creek Estates
Frewing v. Tigard
To: Mayor Dirksen And Council Members
From: Alice D. Ellis Gaut
10947 SW Chateau Ln
Tigard 97224
The Applicant has submitted a tree plan which identifies for removal many more trees
than indicated on previously filed plans; moreover, many of the now-designated
"remove" trees are in or near the drainage and/or on the steep slope. In his oral testimony,
Applicant stated that he is persuaded by Miller v.Tigard to present a "worst case
scenario" to avoid adverse economic impact during construction, and that he "hoped" to
be able to save more trees than indicated.
I encourage the Council to avoid the invitation to rely on Applicant's stated desire. If the
plan as filed is approved, you will be sanctioning the cutting of all of those trees, and
must expect they all will be removed. Oral assertions are not enforceable.
The plan is flawed in several respects, and a detailed reading of the actual inventory
prepared by Terragen is necessary, in conjunction with a site visit.
Careful examination of the inventory reveals numerous instances of imperfectly formed
but presumably otherwise healthy specimens. Is Applicant intending to treat these as
"hazard" trees, thus avoiding mitigation?
Removal of trees on the slope, outside the building envelopes, should be prohibited,
PERIOD. The area is already severely compromised, and further removal of stabilizing
vegetation will compound erosion problems. There is testimony in the record regarding
slumping in this area.
Landscape protection (existing vegetation, including understory) has not been adequately
addressed, as required by 18.745.030(E). Applicant's verbal reference does not
adequately identify or describe the locations of these plants nor the precise methods of
protection to be used.
If words have meaning, the import of 18.745.030-"Existing vegetation on a site shall be
protected as much as possible"-and 18.350.010(40)-"To preserve to the greatest extent
possible existing landscape features and amenities..."-does not mean what is convenient,
but "...that may or can be exist, be done, or happen; that is in a person's power, that one
can do..." etc. Oxford English Dictionary.
By virtue of the flexibility inherent in the Planned Development concept and code (see
18.350.010 et.seq.), this Council has the authority to craft its findings and order in such
manner as to require actual protection of the sensitive area in question, and of the
landscape features generally. I urge this Council to exercise its judgment accordingly.
Respectfully submitted,
Alice D. Ellis Gaut
Attachment 2.3
MEMORANDUM
CITY OF TIGARD, OREGON
TO: Honorable Mayor & Council
FROM: Dan Plaza, Parks and Buildings Manager
DATE: February 18, 2005
SUBJECT: Mr. Frewing's Remarks Made at Recent LUBA Council Hearing
At the Council LUBA hearing on February 8, 2005, Mr. John Frewing said something to -
the effect that I, Dan Plaza, refused an offer by the developer to donate land to the City
at the Senn property.
My records show that I have not discussed the Senn property with anyone other than
Metro staff members and City staff members from Bill Monahan to Associate Planners
in the City's Community Development Department.
I called the developer, Mr. Dale Richards, and asked him if he, in fact, told Mr. Frewing
that I turned down his offer to donate land to the City. Mr. Richards told me that he had
never talked to me about donating land to the City, in fact, Mr. Richards said that he had
never talked to me about anything at anytime.
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LAWYERS
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Davis Wright Tremaine LLP
ANCHORAGE BELLEVUE LOS ANGELES NEW YORK PORTLAND SAN FRANCISCO SEATTLE SHANGIAM WASHINGTON, D.C.
SUITE 2300 TEL (503) 241-2300
CHRISTOPHER P. KOBACK 1300 SW FIFTH AVENUE FAX (503) 778-5299
Direct (503) 778-5382 PORTLAND, OR 97201-5682 www.dwt.com
chriskoback@dwt.corn
February 18, 2005
VIA E-MAIL
AND U.S. MAIL
Craig Dirksen, Mayor
Nick Wilson, Councilor
Sydney Sherwood, Councilor
Tom Woodruff, Councilor
Sally Harding, Councilor
CITY OF TIGARD
City Hall
13125 S.W. Hall Blvd.
Tigard, OR 97223
Re: 2129 Ash Creek Estates PUD
LUBA Remand (LUBA No. 2003-194)
Dear Mayor Dirksen and Council Members:
This letter is in response to the written testimony offered by opponents in the
above matter on February 14, 2005. Since the vast majority of opponent comments came
through Mr. Frewing's 17-page, single-spaced letter, much of this letter will be directed at Mr.
Frewing's comments. In an effort to keep this letter as brief as possible, I will, unlike Mr.
Frewing, restrict my comments to the issues relevant to LUBA's express remand.
INTRODUCTION
There was an exchange toward the end of the public hearing on February 8, 2005
between Councilor Wilson and Mr. Frewing that encapsulates Mr. Frewing's objectives.
Councilor Wilson pointed out an inconsistency in Mr. Frewing's testimony. On the one hand,
Mr. Frewing objects to the proposed development because it does not preserve enough of the site
which Mr. Frewing describes as having significant environmental qualities. Yet, Mr. Frewing
adamantly opposes two adjustments on 74`" Street (the sag curve and curb tight sidewalks) that
are intended to minimize impact to Ash Creek and the adjacent wetlands. To paraphrase, when
Councilor Wilson asked Mr. Frewing if he desired to see more fill in the stream area, after a
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pause, Mr. Frewing responded that he wanted the standards strictly met. What Mr. Frewing
meant was that he wants whatever will delay or stop development on the site. Mr. Frewing's
true objective is transparent from his numerous comments. He is not interested in seeing
responsible development; he has that in what is now before you. He wants no development. Mr.
Frewing wants you to deny this application so the owners will feel pressure to sell the site at a
lower price for preservation.
Following LUBA's remand, Windwood Homes ("Windwood") worked
cooperatively with your staff to provide all of the additional information and evidence LUBA
found missing from the City's initial approval. During that process, Windwood provided
substantial evidence to support the necessary findings. Your Staff agrees that Windwood has
appropriately addressed the issues. Accordingly, Windwood asks that you reject Mr. Frewing's
obstructionist tactics and approve its application with the additional conditions recommended by
Staff.
PROCEDURAL ISSUES
Mr. Frewing raises some challenges to the "Remand Process and Scope." The
scope of the remand was determined by LUBA's decision. The City did not err in addressing
only the issues remanded.
It is not clear what objection Mr. Frewing has to the remand procedure although it
appears as though he believes the City should have required Windwood to proceed with a new
application to address only four issues upon which the remand was based. Indeed, Mr.
Frewing's authority, TCDC 18.390, addresses the requirements for an initial application, not a
remand hearing. There is no practical reason to require an applicant on remand to file a new
application to address four limited issues. It is worth noting that of the 25 issues Mr. Frewing
raised, LUBA agreed with the City on 21 of them. Moreover, there is no support in the law for
Mr. Frewing's belief. ORS 227.181 addresses remands from LUBA and does not support the
idea that a new application procedure be followed. That statute contemplates a hearing to
address only the issues that were remanded, not to reevaluate the entire application.
Mr. Frewing also argues that the 90-day period for the City to decide the issues on
remand should have started at a later date when he believes the "application" was complete.
First, there was no requirement that Windwood have a new application and, in fact, there was no
new application. Second, ORS 227.181 specifically defeats Mr. Frewing's claim that the time
period for a decision begin with a completeness determination. The 90-day period begins from
the date the applicant requests the City to consider the remand. That is what happened in this
case. Finally, the suggestion that applicant's counsel needs an authorization from the owner to
submit a letter on remand is ridiculous. Authorization is required to file a land use application.
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SUBSTANTIVE ISSUES
Mr. Frewing raises a number of substantive issues, some of which are clearly
beyond the scope of LUBA's remand and which should be rejected for that reason.' As to the
issues that are relevant to LUBA's remand, one question must be answered: whether there is
substantial evidence in the record upon which the City can approve Windwood's application. In
this matter, since it comes before the City Council on remand, the question is limited to those
issues on remand. Substantial evidence is evidence a reasonable person would rely on in
reaching a decision. City of Portland v. Bureau of Labor and Ind., 298 Or. 104, 119, 690 P.2d
475 (1984)
1. Sag Curve.
LUBA's remand, as it relates to the sag curve, is very limited. LUBA stated that
there was not sufficient evidence for the City Engineer's decision to deviate from the sag curve
standards contained in the City's street standards. Specifically, the City's typical street standards
contain a schedule for sag curves that relate a K factor to a certain speed. The lowest K factor on
the chart is 13.4 and it relates to a speed of 25 mph. The City approved a sag curve with a K
factor of 5.3. LUBA's concern was over the City Engineer's authority to approve such a sag
curve for a small section of 74`'' Street. Thus, the only evidence relevant in this remand
proceeding is evidence of the City Engineer's authority to approve a sag curve with a K factor
lower than that stated in the street standards chart..
The Staff Report contains substantial evidence that the City Engineer has the
authority to deviate from the guidelines set forth in the City's standards. The City of Tigard
Development Code ("TCDC") states that the City Engineer shall establish street and utility
standards consistent with the application of engineering principles. TCDC 18.810.020(B) That
is the appropriate bench mark for the City Engineer. If there is evidence in the record that the
City Engineer approved Windwood's design and his approval was consistent with sound
engineering principles, LUBA's remand directive has been met.
The evidence in the record is that the street standard chart expressly states that it
is not intended to cover all situations. From that it must be accepted that the chart does not
contain all design speeds that are consistent with sound engineering principles. Indeed,
Windwood provided evidence in the form of Washington County Standards that show that sound
engineering principles allow for sag curves as low as 5.0 with a corresponding speed of 15 mph.
That is the significance of the Washington County standards. Not even Mr. Frewing stated that
Washington County standards are not based on sound engineering principles.
' On several instances throughout Mr. Frewing's letter, he speaks to general approval criteria for planned unit
developments, including the requirement that an applicant preserve trees to the greatest extent possible. He raised
those points at LUBA and lost. He cannot raise them here. The most egregious example of his exceeding the scope
of remand is page 12 of his letter where he devotes the entire page to issues not before the City Council.
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Mr. Frewing does not understand the relevance of the Washington County
standards. He recites one provision in those standards for the proposition that in Washington
County streets cannot be designed for speeds less than 20 mph. First, 74th Street is under the
City of Tigard's jurisdiction, not Washington County. Again, the test is whether the City
Engineer's approval is consistent with sound engineering principles. There is no requirement
that the City adopt Washington County's code in its entirety. Again, the Washington County
standards are simply evidence of what designs fall within sound engineering principles. Second,
74th Street is not being designed for a 20 mph speed limit. It is being designed as a 25 mph
street. There is one small area where conditions require a slower speed. The City Engineer
addressed this by approving deviation from the standards and recommending an advisory speed
sign. He also recommended a condition that will require monitoring to make sure safety is
maintained. The City Engineer's memorandum is in the record and constitutes substantial
evidence. There was also testimony on February 8, 2004 that there are many areas in Tigard and
Washington County where specific situations have resulted in a similar advisory posting.
Mr. Frewing suggests there had to be a meeting at which the City Engineer
granted approval for a deviation. There is no such requirement and the City Engineer provided a
memorandum memorializing his approval.
The above text responds to LUBA's remand. LUBA did not require any further
evidence. Nevertheless, Mr. Frewing writes on about a number of issues, including the amount
of fill needed and the impact to the wetlands. There is no doubt that if the sag curve is designed
to 25 mph, more fill will be needed and it will have impacts on the stream and wetlands.
Windwood provided evidence to illustrate those points. That evidence explains why Windwood
requested the deviation. However, LUBA did not require any further evidence on those points.
Mr. Frewing's extensive discussion is not relevant to this remand proceeding.
One point Mr. Frewing attempts to make requires a brief response because he is
misleading. Mr. Frewing's comments about a memorandum issued by CH2M/Hill wherein that
entity states that the Tualatin water line is not designed for even 21 feet of fill. Mr. Frewing
ignores two important points. CH2M/Hill proceeds to recommend that the water line be encased
in cement to add protection. Windwood's engineer testified that that is precisely the design
Windwood is proceeding with. Again, all of that is in the record and constitutes substantial
evidence.2
Another point Mr. Frewing attempts to make is that additional fill will not require
additional trees to be removed. Windwood disagrees with that statement. The evidence is in the
record. As Mr. Kurahashi explained, if 32 feet of fill were used to bring the sag curve to 13.4,
the water line would have to be moved outside of the fill to the east. To place the water line
2 Mr. Frewing asks that the exhibits illustrating the increased fill not be considered because they are undated. Mr.
Kurahashi, who created the exhibits, testified about them. Mr. Frewing may not like the exhibits, but they are
properly in the record and are substantial evidence to support the City's approval of Windwood's requested
deviation.
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there, a number of trees, not previously designated for removal, would be cut. A partial list of
the trees is: 5070, 5056, 5075, 5062, 6332. This is all in the record.
2. Tree Plan.
Mr. Frewing's attack on the tree plan is another example of his selective use of
facts. He argues that the Staff Report states that there are 893 trees larger than 12 inches in
diameter, while the arborist and Windwood's counsel state that there are only 778. Both the
Staff Report and Mr. Teragan's report are clear if they are read. They both state that there are
893 total trees larger than 12 inches on the site. They continue to recite that of those 893, 115
trees are deemed hazardous, and thus, not subject to mitigation. Accordingly, there are 778 trees
subject to mitigation. Mr. Frewing is not being forthcoming to the Council.
Mr. Frewing also raises an issue over statements purportedly made by Windwood
during prior hearings regarding the number of trees that would be maintained. That evidence is
not relevant here. In the prior hearings, Windwood and the City were operating under the
assumption that Windwood did not need a tree plan for any part of the site for which a tree
permit was not required. Consequently, Windwood held the reasonable belief that it was not
required to preserve any trees on the portion of the site that is not sensitive land. Windwood may
have made overtures to neighbors to preserve trees in certain areas where it had no obligation to
preserve them. Those overtures were rejected and Mr. Frewing proceeded to LUBA.
However, LUBA's remand caused the City and Windwood to reevaluate the trees
on the site. Under the City's code Windwood had to determine the percentage of trees it could
preserve because that impacted the level of mitigation required. As a result, trees that
Windwood once may have cut, may now be saved and vice versa. The point is that Windwood
accepted LUBA's directive and provided a tree plan that met the City's code as interpreted by
LUBA. The plan shows that at least 59 % of non-hazardous trees with a diameter of over 12
inches are being preserved. The plan identifies the trees that will be cut and the trees that will be
preserved. The City Staff and City Arborist reviewed that plan and agreed it met the City's
requirements. The fact that trees identified as being cut may be retained later is not a basis to
find the plan nonconforming. It is a sign that Windwood shares the hope and desire to preserve
as many trees as possible. Again, Windwood has provided substantial evidence that it has
complied with LUBA's remand.
3. Curb Tight Sidewalks; Cul-de-sac.
The TCDC permits street improvement adjustments to be considered under the
less restrictive provisions in TCDC 18.370.020(11). LUBA recognized that fact. The Staff
Report and Windwood's submission includes substantial evidence that that criterion is met.
There will be negative impacts on the environment, existing development and proposed
development without the adjustment and those impacts outweigh any public benefit from strict
application of the Code.
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Mr. Frewing does not even challenge that evidence. Instead, he argues that the
City has an obligation to apply the more strict standards in the general adjustment section and
then argues exclusively that that criterion has not been met. Thus, there is no evidence to rebut
Windwood's evidence under TCDC 18.370.020(11).
Once again, Mr. Frewing gives the City Council an inaccurate recitation of the
TCDC. Mr. Frewing recites that "where several regulations apply to a situation, the most
restrictive or that imposing the higher standard shall govern." That is a misleading statement of
what the TCDC provides. TCDC 18.210.020 states that where this title imposes a greater
restriction than those imposed or required by other regulations, the most restrictive or that
imposing a higher standard shall govern. Plainly, this provision applies when Title 18 and a
regulation found elsewhere have different standards. It does not mean that when two provisions
within Title 18 apply the City must apply the more restrictive. A better and more rational
approach is the one the City adopted here on remand. It applied the criteria that was specific to
the adjustment requested. LUBA recognized the wisdom of that approach. Each adjustment
Windwood requested relates to a street improvement. The City is applying the correct criteria.
Since Mr. Frewing offered no evidence to rebut Windwood's evidence under this criteria,
Windwood's evidence is substantial evidence in the record. Walls v. DMV, 154 Or. App. 101,
106, 960 P.2d 888 (1998).
Mr. Frewing also fails to even respond to Staff's conclusion that an adjustment is
not even required for curb tight sidewalks other than to vaguely state that he does not believe
trees will have to be removed. Staff concluded that trees will have to be removed to
accommodate a planter strip. Staff Report, p. 22. The evidence of where the trees are is in the
record and supports Staff. Regardless, the exception Staff relied upon, TCDC 18.810.070 (C),
also applies if the planter strip would cause a conflict with water features. There is also evidence
in the record that a planter strip would require additional work in the stream corridor to install a
retaining wall and its footings. Staff's conclusion about the applicability of the exception and,
therefore, the need for an adjustment is supported by substantial evidence.
On the general adjustment criteria, Mr. Frewing focuses upon the perceived
impacts to the public health, welfare and safety. On the cul-de-sac issues, that is the only criteria
LUBA felt required more evidence. First, Mr. Frewing is wrong about the number of homes on
the cul-de-sac. There are 23. The City's prior finding in that regard was never challenged at
LUBA. Mr. Frewing cannot challenge that finding now:
Second, Mr. Frewing does not offer any specific evidence that there will be
negative impacts on public health, safety and welfare if the requested adjustments are approved.
He attempts to challenge the existing evidence that Tualatin Valley Fire and Rescue ("TVF&R")
approved Windwood's proposal with a fax from Mr. McMillan that included some general
standards. What is most interesting is that Mr. Frewing did not obtain any specific comment
from Mr. McMillan on this matter. It would have been easy for Mr. Frewing to ask Mr.
McMillan to provide his thoughts. One reason Mr. Frewing did not do so is because he knew
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that Mr. McMillan had already advised that he did not have a problem with Windwood's
proposal. The only evidence in the record on this particular development is that TVF&R has
approved of Windwood's proposal.
4. Windwood's Landscape Plan.
As LUBA's decision on remand makes clear, Mr. Frewing's challenge on this
issue was that Windwood did not provide a landscape plan that illustrated how existing
vegetation would be preserved during construction. LUBA never decided whether Windwood's
landscape plan adequately protected vegetation during construction because Windwood did not
submit a tree plan in light of the City's existing interpretation of its code. Windwood has done
so now and the plan included specific measures to protect trees during construction. As to other
vegetation, the proposed measures, from a practical point, protect existing vegetation to the
extent possible. The tree protection plan requires fencing all trees to be preserved out to the drip
line. That means no work can be done in that area. As a result, all vegetation within the drip line
of the trees will be protected. It is likely that all other vegetation on the lots will be removed for
construction and then for planting lawns.
If the tree plan does not provide enough edification on how other vegetation will
be protected, recommended Condition 55 requires that prior to any site work Windwood submit
a landscape plan. Windwood understands that its landscape plan under that condition must show
how it will retain existing vegetation during construction. Because that plan must be submitted
before any site work, it assures that the City will review the protection measures before any
vegetation is affected.
Windwood has already provided its plan for how it will protect trees during
construction. That was in its tree plan that the City Arborist approved.
CONCLUSION
At a time when existing land use regulations are under increasing attack through
new legislation, it is rare for an owner and developer to resist the tide to use that legislation and
work with planning staff to responsibly develop property. In this case, Windwood and the Senns
have been rewarded for their efforts with further attempts to delay initiated by persons with
questionable motives. Windwood has responded to LUBA's directive in a straightforward and
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cooperative manner. It has provided the additional evidence LUBA found missing.
Windwood's evidence is substantial evidence that the City Council can rely upon to approve
Windwood's application with the Staff recommended decision.
Very truly yours,
vis Wright Tremaine LLP
~44--
P k4
Christopher P. Koback
CPK/lkt
cc: Windwood Homes
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