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MEDLIN Johnny R From: POMES Carol K Sent: Wednesday, March 16, 2005 4:19 PM To: MEDLIN Johnny R Subject: RE: Prevailing Wage re Roy Carver Road Improvement Project Sounds like this project is subject to the City's public contracting rules for a public improvement and prevailing wage rates. If you need help explaining the requirements to the developer, let me know. Carol Original Message From: Kathryn BROTHERTON [mailto:Kathryn.BROTHERTON @harrang.com] Sent: Wednesday, March 16, 2005 1:32 PM To: Johnny.R.MEDLIN @ci.eugene.or.us Cc: Caro1.K.POMES @ci.eugene.or.us; Jerome LIDZ Subject: Prevailing Wage re Roy Carver Road Improvement Project Johnny - You have asked whether the Roy Carver road improvement project must comply with state statutory prevailing wage provisions. For the reasons discussed below (and consistent with advice previously given by our office), we recommend that the improvements to the road be made in accordance with the prevailing wage statutory provisions. In December, 2004, our office advised the Public Works Department that the City's $48,000 payment for the half street improvement (the improvement to the other half of the street was being funded privately) would likely be interpreted by BOLI as subject to the prevailing wage requirements. While we recognized that the City had a possible argument that the private portion of the project is not subject to prevailing wage requirements, we doubted very much that BOLI would agree with this argument and recommended that the City wait for a better case to make that argument. The Carver road improvement project cannot be enough distinguished from the December, 2004 road project that we can advise you differently than we did in December. Based on documents provided to us, we understand the facts surrounding Carver's road improvement project to be as follows: In 1983 the City purchased (for $290,000) Tax Lot 3508. The warranty deed conveying Tax Lot 3508 from Hugh and Helen Wood to the City states: "Grantor and Grantee agree that whenever Grantor and Grantee wish to improve the Roadway now existing on the Property . . . , both Grantor and Grantee will pay their proportionate share of the cost of the improvements." In 1996 Roy Carver purchased from Hugh and Helen Wood Tax Lot 3500, that tax lot being half of the property described in the above - quoted warranty deed. Roy Carver plans to improve the roadway described in the warranty deed and seeks the City's proportionate share of the improvement costs. Unless specifically exempt, "public works" must comply with prevailing wage requirements. ORS 279C.800(5) defines "public works" to include road improvements "carried on or contracted for by any public agency to serve the public interest." We believe that BOLI would interpret the 1983 warranty deed as a contract by the City for the construction of a road (and agreeing to pay half of the costs for that construction) that will serve the public interest. While the warranty deed is open -ended regarding when the road improvement will occur, we believe that BOLI will still view it as a "contract" by the City for the road improvement. We recognize that the City intends to allow Carver to gate off this road, however, the City will be able to use the road for maintenance purposes, i.e., it will serve a public interest. For the reasons discussed above, Carver's road improvement project which will be funded, in part, with City money must comply with the statutory prevailing wage requirements. Please call me or Jerry Lidz if you have any questions. Kathryn. Kathryn P. Brotherton Harrang Long Gary Rudnick PC 360 East 10th Avenue, Suite 300 Eugene, OR 97401 541- 485 -0220 1