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Ordinance No. 98-02 • CITY OF TIGARD, OREGON ORDINANCE NO. 98- 02 AN ORDINANCE APPROVING THE AGREEMENT BETWEEN THE ATFALATI RECREATION DISTRICT, INC. AND THE CITE' OF TIGARD AND AUTHORIZING THE CITY MANAGER TO SIGN THE AGREEMENT ON BEHALF OF THE TIGARD CITY COUNCIL WHEREAS, on July 22, 1997, the Tigard City Council, upon a motion and voice vote, approved the proposed Agreement between Atfalati Recreation District, Inc. and the City of Tigard, and WHEREAS, the Atfalati Recreation District President has signed the said Agreement, and WHEREAS, Section 20 of the said Agreement provides that the Agreement shall be approved by an Ordinance of the Tigard City Council. NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The Tigard City Council hereby approves the Agreement between Atfalati Recreation District, Inc. and the City of Tigard incorporated herein as "Exhibit A." SECTION 2: The Tigard City Council hereby authorizes the City Manager to sign the Agreement between Atfalati Recreation District, Inc. and the City of Tigard. SECTION 3: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By U &I yl i m0I43 vote of all Council members present after being read by number and title only, thisz2''t t h day of , 1998. ~2i GC> Catherine Wheatley, City Rejrde APPROVED: By Tigard City Council this a~ day of 1' 98. i J icoli, Mayor Appf ved as to f City Attorney z7 Y Date is\admlcathylcounciltatfalord.doc ORDINANCE No. 98-()2- Page 1 EKE IBIT A TIZ-r= CITY ORDINANCE NO. 98- AGREEMENT The City of Tigard, an Oregon municipal corporation ("City"). has purchased real property defined as the Gray/Lamb Cook Park Addition ('Property") as more :^articularly described in the attached Exhibit "A for the sum of $300,000 and the Atfalati Recreatk)n District, Inc., an Oregon non-profit corporation ("ARD"), will be contributing the sum of $150.000 towards the purchase of the Property as hereinafter set forth. The purpose of this agreement is to set forth the obligations, rights, and responsibilities of the parties concerning the purchase of the Property, development of the Property, improvements to the Property, maintenance of the Properrv, and use of the developed fields and the related facilities with this expansion of Cook Park in'iigard, Oregon. The City and ARD (and its members Tigard Soccer Club [TSC] and Tigard Little League Ash. [TLL]) have an arrangement at present whereby TSC and TLL have priority during their seasons for the use of the soccer fields and baseball/softball fields at the present park. The purpose of this agreement is to acknowledge the equity position that ARD will have in the Property being developed and that TSC and TLL will have a priority for the use of the developed Property during their seasons and to acknowledge that TSC and TLL will continue to have priority on the existing ball fields and soccer fields during the development of the Property. The purpose of this agreement is not to reduce the present use that TSC and TLL have in the existing fields, nor is it to give additional benefit as to use of the existing fields, but merely to acknowledge present use and provide for future use of the developed Property. 0 Page 1- AGREEMENT The purpose of this agreement is to also allow for the consolidation and coordinated use of the present baseball softball facilities at Cook Park, the existing soccer facilities at Cook Park and the facilities to be developed on the Property. The cooperative efforts between the City of Tigard, ARD, and the various recreational organizations that use the present facilities and the facilities to be developed is desirable to maximize the use for existing organizations and future organizations. The parties agree as follows: 1. Pun.hase of Rp Property. The present members of ARD, TSC and TLL agree to pay the City a minimum of $15,000 per year for a period of ten (10) years toward the purchase price of the Property for a total payment of $150,000. ARD shall have the right to prepay its obligation at any time. The TSC and TLL are presently assessing their members a per-player fee to hand this purchase. To the extent that there are assessed funds that have been collected by ARD for this purchase in excess of $15,000 per year, ARD ag ees to place these funds in a separate account (the Fund), and said funds shall be used upon agreement between the City and ARD as to the use of these fluids for purchase, development, improvement and maintenance of the Property. The first payment shall be due August 1, 1997, and each payment thereafter shall be due on May 1 of each year until the entire $150,000 is paid. The City and ARD recognize that ARD is soliciting additional members to its organization. It is agreed that should additional ARD members use the Property, they shall be assessed for the use of the Property and funds assessed shall go into the Fund provided for herein. It is further Page 2 - AGREEMENT anticipated by the City and ARD that there will be other uses for the fields to be• developed on the Property and users fees charged and collected by the City and that the City will pilace these funds in the development fund for the Property until the Management Committee Committee"), as defined in Paragraph 2, has determined that the development called for in the 1..997 Revised Cook Park Master Plan ("Plan") has been substantially completed. At that time, the: use of these user fees shall be renegotiated between the City and ARD. 2. Management Committee ("Committee". The Committee shall consist of two (2) City officials appointed by the City Council for the City, and two ARD representatives, one from TSC and one from TLL, appointed by their respective boards. With input from City staff and the boards, the development and improvement of the Property shall be the restponsibility of the Committee within the confines of the City budget and funds becoming availmble from various sources. The Committee shall develop guidelines for use, scheduling, and maintenance of the Property. Tigard's Department of Public Works shall be responsible for maintenance of the facilities. 3. Mediation of Disagreements. The City and ARD agree that they will mediate any disagreements (including those arising in the Committee) between them and will immediately engage the services of a mediator to resolve their differences with reference to development, improvement, maintenance and use of the Property. Both parties acknowledge tihat they may have differences and agree in good faith to mediate and resolve all disputes having in mind the protection of the fields and the use of the fields by the maximum number of participants iim the City and the Page 3 - AGREEMENT surrounding area. The mediation shall be by agreement in a form per the attached agreement which is attached hereto as Exhibit "B." 4. Goals. The parties agree to the following goals: a. To provide an area that can be used by a large number of people for other City events such as the July 4 celebration and Tigard Festival of Balloons. b. To provide additional soccer and baseball/softball fields for TSC and TLL and other Tigard based youth and adult soccer and baseball/softball leagues as well as providing these fields to the public (which may be on a fee basis). C. To maintain all fields at Cook Park at a high quality by limiting their use by rotation, and provide increased maintenance. d. To attract large tournaments and other recreational uses for the Tigard community. A portion of the income from the proceeds would be used to maintain the fields. e. To have fields in the city available to the general public for general recreation. f. To accomplish the first five goals with limited taxpayer money, but working with the City to share parking, utilities, and combining the strengths of the park and the fields. 5. Construction of Fields and Related Facilities. Subject to the availability of fiends ARD will construct appropriate fields on the Property. If the City builds additional facilities at Cook Park, this Agreement may be modified to =Iude the use and operation of those facilities. Page 4 - AGREEMENT The City and ARD agree that the improvements identified in the Plan for the development of the Property benefit the TSC and TLL as well as the general public as a whole. Development and improvement to the Property directly related to ARD and its membership leagues; i.e. playing fields and parking (a percentage to be determined), and snack shacks (and the playground to service the field) are the responsibility of ARD. The City shall be responsible for those improvements that primarily serve the general public; i.e., playing fields and parking (a percentage w be determined), restrooms and pathways. The above are examples and other development projects on the Property will be shared on a negotiated percentage basis between the parties. 6. Provision of Services to Property. City will provide electrical service, garbage collection (including refuse cans and dumpsters), water and sewer service to Cook Park as developed and expanded. City will provide ARD with access to the electrical panel for the snorts fields during the recognized season in return for reimbursement, according to a schedule established by the City. 7. Payment of Costs for Annual Maintenance of Snorts Fields. The Department of Public Works shall be responsible for a base level of maintenance for the sports fields such as mowing, watering, and fertilizing, etc., as determined in its annual budget process. If ARD wishes a higher level of maintenance on the sports fields and related facilities than the City is providing, then ARD may either provide such maintenance (with approval of the City) and be responsible for the cost, or it may negotiate these services and costs on an annual basis with the City. 8. Maintenance and RMair of Facilities. During the recognized TSC and TLL seasons, ARD shall remove all litter and garbage to approved receptacles provided by the City and Page 5 - AGREEMENT keep the Property in a clean and safe condition. ARD shall be responsible for lining all sports fields. Whether fields are suitable for play on a day-to-da% basis shall be the sole decision of the City's Public Works Director or designee. The City shall require any other user of the Property to leave the Property in good condition and repair, including removal of liner and debris from the Property when the use is completed. The City and ARU recognize a use of the fields is a resting period for the fields, and that this resting and rejuvenation period for the fields is to be considered as a use of the fields when determining other uses of the fiele-. 9. improvements. ARD may make temporary- or permanent improvements to the Property only with permission of the City Public Works Director consistent with the Plan and City financial processes. The City gives permission to ARD to provide a snack shack for ARD sales operation during the TSC and TLL recognized seasons. The City shall approve the type and placement of any improvement, including a snack shack, and shall receive funds to cover the cost of electricity to service the snack shack or actual cost as determined each year by the City's Public Works Director. All improvements to the Property shall be constructed consistent with all local and state legal requirements. Any improvement is the props, ty of the City. Upon completion of the Plan, the City shall adopt a financial plan to fiord its obligations under this Agreement. 10. Priority in Use of Sports Fields. The City has the right to schedule community events in Cook Park. The City and the Committee recognize that ARD has priority to use the sports fields for conducting TSC and TLL activities during the appropriate recognized TSC and ML seasons. This priority of use allows ARD fast option to use the sports fields and related facilities during TSC and TLL recognized seasons. Other persons or entities desiring to use the Page 6 - AGREEMENT Property for any purpose during the recognized seasons would have secondary priorities. Community events may preclude use of sports fields and related facilities by ARD, prior to scheduling these events the Committee shall be consulted. 11. Scheduling Other Uses of Property. ARD shall provide the Committee with a schedule of days and times of use and suggestions for field rejuvenation prior to February 1 of each year. The City shall schedule ARD reservation for the Property and review and schedule ARD's requests for other City fields. Reasonable use of the Property by other users consistent with ARD recognized TSC and TLL seasons, will be scheduled by the City utilizing a permit process. 12. Insurance. ARD and/or the specific member will maintain, in full force and effect during the term of this Agreement public liability and property damage insurance, including bodily injury, property damage, and personal injury insurance, covering ARD's and/or its member league's sponsored activities on the Property during the recognized sports seasons. This insurance shall cover all claims which might arise from operations and activities under this Agreement or pertaining to ARD's and/or its member league's activities directly and shall carry the City as an "Additional Insured." The insurance policy will be with a carrier allowed to transact business in Oregon. The policy of insurance maintained by ARD and/or its member league shall provide at least the following limits and coverages: General Liability and Property Damage and shall have a minimum liability of one million dollars for any one occurrence. ARD's and/or its member league's insurance policy shall contain provisions that such policy shall not be canceled or their limits of liability reduced without thirty (30) days prior written notice to the City Risk Manager. ARD Aft Page 7 - AGREEMENT and/or its member league shall provide the City with Certificates of Insurance in a form satisfactory to the City certifying the issuance of such insurance. The Certificates sha?: be forwarded to: Risk Manager, City of Tigard, 13125 SW Hall Blvd., Tigard, Oregon, 97223. clch certificates must be delivered prior to commencement of the terms of this Agreement. The procuring of such required insurance shall not be construed to limit ARD's and/or its member league's liability hereunder. Notwithstanding said insurance, ARD and/or its member league shall be obligated for the total amount of any damage, injury, or low causf d by negligence or neglect connected with this Agreement. 13. Cooperation in Parks Planning. City has and will continue to involve the community in the planning for Cook Park, and design and construction cf improvements to the Property. The City, TSC, TLL, neighbors and others have par ticipated as members of the Cook Park Task Force. Through their efforts, and that of a consultant, the Plan has been developed. Public meetings have been held throughout the process. In the future, City will give notice of public meetings regarding its parks planning process, when revisions to the Plan are under consideration. 14. Term. This Agreement becomes effective on the date it is signed by both parties and will continue for a ten (10) year term which shall begin on August 1, 1997. 15. Ten Year Review and Termination of Agreement. Within a one-hundred and twenty day (120) period prior to the conclusion of the initial ten (10) year cycle, and each ten (10) year anniversary thereafter, ARD and City shall conduct a mutual review of this Agreement and modify or terminate the Agreement if both parties determine that such a modification or termination Page 8 - AGREIIMIENT is in the public interest. If at any time the Hgreement is terminated and the property remains available for active recreational use by ARD, or the Property becomes unusable for recreationW purposes, then no remuneration is required for either party. If at any time the Agreement is terminated and the Property will be unavailable for ARD use as outlined in this Agreement, then Ll e City will either dispose of the Property or provide ARD with a replacement facility equal to or better than the Property. If a disposition of the Property occurs, the proceeds of the disposition shall be split 50 per cent to the City and 50 per cent to ARD or its successors (after deduction of the actual costs of disposition). This Agreement may also be terminated by either party for a material breach of its terms. The non-defaulting party shall give a written notice of default and opportunin to cure at least thirty (30) days before terminating the Agreement for cause. Upon termination. ARD shall remove all of its equipment from the Property and leave the premises in good order and AM& repair. 16. Entire Agreement. This Agreement is the entire agreement between the parties. Except as provided in Paragraph 16, any modification to this Agreement must be in writing and approved by both parties. 17. No Partnership. ARD and the City are not partners or joint venturers. Neither party is responsible for the actions of the other in the use of the Property. 18. Anti-Assi miment. This Agreement may not be assigned by either party without written consent of the other party. 19. Public Contracts Requirements: Anti-Discrimination. The City agrees to comply with the provisions of ORS 279.310 to 279.320, relating to mandatory provisions in public 0 Page 9 - AGREEMENT contracts relating to payment of laborers, payment of claims, environmental and natural rt ources laws and other matters, which statt\tes are incorporated herein for improvements undertaken by the City. The City and ARD agree not to discriminate in the scheduling or use of the Propem against persons on the basis of race, religion, color, national origin, sex, age, marital status, disaMity, or political affiliation. 20. Authority to Execute Agreement. This Agreement shall be approved by an ordinance of the Tigard City Council. ARD represents that the person signing the Agreement on its behalf has authority to sign the Agreement. DATED this day of August, 1997. CITO GARD ATF REC DIS CT, INC. By: By: VZI 4 As its: MA-,"o2 As its: i:\adm\cathy\agremnts\atfWad.doc N Page 10 - AGREEMENT f ie e dVV4 ~3`S pt$flt ~ 940$ •9'itlo~"s61L -~.^6 ~~yq Jf d O t: Pat N A r M V 3V tj 1 S'4 0051 avvi 33 sau iaa y ~®f.07 ffis N e ~ ~ se•a{a ainoa 7wrr °•gNOIY N~lot~ D'iC A ®b 4i.OdN 5 e~ g0° 88YC2 rsr~~Oi Aft. s EXHIBIT "B" -arm 15°2 Agreement to mediate AGRZ T Tc MEDIATE This is an Agreement between and a4d , hereinafter the •mediator,a to enter into mediation with the intent of resolving the following issues: The parties and the mediator 1=derstand and agree as follows: 1. Nature of Mediation The parties hereby appoint and retain as mediator.for their negotiations. The parties understand that mediation is an agreement-reaching process in which the mediator assists parties to reach agreement in a collaborative, c sensual, and informed manner. It is understood that the mediator has no power to decide disputed issues for the pa=ies. The pa--ties understand that mediation is not a substitute for independent legal advice. The parties are encouraged to secure such advice throughout the mediation process and are strongly advised to obtain independent legal review of any formal mediated agreement before signing that agreement. The parties unde_-'sta-nd that the mediator's objective is to facilitate the parties themselves reaching their most constructive and fairest agreement. The parties also understand that the mediator has an obligation to work on behalf of each party equally and ta` the ;mediator cannot render individual legal advice to any party and wi not render therapy or aabi-rate within the mediation:. 2. Scope of` Mediation The parties understand that it is for the parties, with the mediator's concu^-ence, to determine the scope of the mediation and this will be accomplished early in the mediation process. 3. Mediation is Voluntary A11 parties here state their good-faith intention to complete their mediation by an agreement. It is, however, understood that any party may withdraw from or suspend the mediation process. at any time, for any reason. The parties also understand that the mediator may suspend or terminate the mediation if the nediator feels that the mediation will lead to an unjust or unreasonable result; if the mediator feels that an impasse has been reached; or if the mediator term v.nes that he or she can no long effectively perform. a facilitative role. 4. Confidentiality It is understood between the parties and the mediator that the mediation will be strictly confidential. Mediation discussions, any draft resolutions, and any unsigned mediated agreements shall not be admissible in azy tour= proceeding. Only a mediated agreement signed by ar.y parties may be so admissible. The parties further agree to not call the mediator to testify concerting the mediation or to provide any materials from the mediation in any court proceeding between the parties. The m diation is considered by the parties and the mediator as I EXHIBIT "B" -Onn 1-5-2 Agreement to Mediate 0 AGREEMENT TO MFG PATE This is an Agreement between and (e) and ) hereinafter the "mediator,' to enter into mediation with the intent of resolving the following issues: [d). The parties and the mediator understand and agree as follows; 1. Nature of Mediation The parties hereby appoint and retain ['I as mediator for their negotiations. The parties 'undexstand that mediation is an agreement-reaching process in which the mediator fists parties to reach agreement in a collaborative, consensual, and informed manner. it is understood that the mediator has no power to decide disputed issues for the parties. The panties understand that mediation is not a substitute for independent legal advice. The parties a a encouraged to secure such advice throughout the mediation process and are strongly advised to obtain independent legal review of any formal mediated agreement before signing that agreement. The parties understand that the :mediator's objective is to Facilitate the parties themselves reaching t::eir most constructive and fairest ag=-ee:ment. The parties also understand that the mediator has an obligation to work on behalf of each party equally and that the :mediator cannot render irdi,vI ual legal advice to any party and AANL wi not render therapy or arbitrate within the mediation. sec;4_ment negotiations. All parties also understand and agree O::a_ the mediator may have private caucus meetings and discussions with any individual party, in which case all such meetings and discussions shall be confidential between the mediator and the caucusing party. The mediator may, however, have certain statutorily or judicially required reporting obligations, such as reporting a reasonable belief that child abuse has taken place or to speak up to protect one party from another if substa.atial physical harm' is a concern. 5. `u-1 Disclosure Each party agrees to fully and honestly disclose all relevant information and writings as requested by the mediator ALd all information requested by any other party, if the mediator determines that the disclosure is relevant to the mediation discussions. S. mediator Impartiality The parties understand that the mediator must remain impartial throughout and after the mediation process. Thus, the mediator shall not champion the interests of any party over a_nothe. in the mediation or in any court or other proceeding. The par-ies agree that the mediator may discuss the parties, ;mediation process with any attorney any party may retaln as i:.dividual counsel. Such discussions will not include any negotiations, as all mediation negotiations must involve all o ies directly. The mediator will provide copies of correspondence, draft agreements, and written documentation to AM. dependent legal counsel at a party's request. The mediator may communicate separately Keith an individual mediating party, in which case such -caucus* shall be confidential between the mediator and the individual mediating party, unless agreed otherwise by all parties and the mediator. 7. Mediation Fees The parties and the mediator agree that the fee for the mediator shall be per hour for time spent with the parties and for time required to study documents, research issues, correspond, telephone call, prepare draft and final agreements, a and do such other-things as may be reasonably necessary to facilitate the parties reaching full agreement. The mediator 11 also be reimbursed for all expenses incurred as a part of the mediation nrocess. A payment of toward the mediator's fees and expenses shall be paid to the mediator along with the signing of this agreement. Any unearned amount of this retainer fee will be refunded to the parties. The pa.-ties shall be jointly and severally liable for the mediator's fees and expenses. As between t a parties only, responsibility for mediation roes and erae.nses shall be: ( * j . The parties will be provided with a monthly accounting of Zees and expenses by the mediator. Payment of such fees and expennses is due to the mediator no later than 15 days !ol owing date of such billing, unless otherwise agreed in writing. Should payment not be tamely made, the mediator may, in his her sale discretion, stop all work on behalf of the parties, including the drafting and/or distribution of the parties, agreement, and withdraw from the mediation. If collection or tour= action. is taken by the mediator to collect fees and/or expenses under this agreement, the prevailing party in any such action and upon any appeal therefrom shall be entitled to attorney fees and costs therein incurred. DATED: 19 -ent Client Mediator _