Agenda Item - 2022-12-20 - Number 9.02 - Parks and Recreation Capital Improvement Project Funding 9.2
°aVA 4� COUNCIL REPORT
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Subject: May 2019 Parks Bond Capital Projects (LORAC, Rassekh Park)
Meeting Date: December 20, 2022 Staff Member: Ivan Anderholm CPRE, Director
Report Date: December 9, 2022 Department: Parks and Recreation
Action Required Advisory Board/Commission Recommendation
0 Motion ❑ Approval
❑ Public Hearing ❑ Denial
❑ Ordinance ❑ None Forwarded
❑ Resolution 0 Not Applicable
❑ Information Only Comments:
0 Council Direction
❑ Consent Agenda
Staff Recommendation: Staff recommends prioritizing the LORAC project for funding and re-
bidding Rassekh Park project after a funding strategy is developed.
Suggested Language for Motions: (1) Direct staff to continue value engineering negotiations
with the selected contractor before submitting a construction contract for award to the
Council. (2) Postpone the Rassekh Park project until a funding strategy is developed.
Project/ Issue Relates To: May 2019 Parks Bond Capital Projects (LORAC, Rassekh Park)
Issue before Council (Highlight Policy Question):
ElCouncil Goals/Priorities ❑Adopted Master Plan(s) ❑Not Applicable
EXECUTIVE SUMMARY
The Parks and Recreation Department was directed by City Council to pursue prioritized
projects associated with the May 2019 Parks Bond. The department has completed most City
Council prioritized projects including:
• Small park facility replacements ($1,037,000, bond funds);
o East Waluga Park Restroom
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o Lower George Rogers Park Restroom
o Water Sports Center Launch Dock
o George Rogers Large Shelter (in process)
• Adult Community Center Renovation ($2,312,000)
• Tennis Center Renovation ($2,030,670)
• Golf Course Renovation ($4,700,000, in process)
• Acquisition of Yates Property, Hallinan Woods ($1,813,000)
• Golf Clubhouse Renovation ($380,000, in process)
• Rassekh Park design and Field Turf contract ($970,000)
• Total committed investment of the May 2019 Parks Bonds $13,242,670.
The remaining two City Council prioritized projects -- Lake Oswego Recreation and Aquatics
Center (LORAC) and Rassekh Park-- are fully designed and have been bid, both bids came back
substantially over the engineers estimate;
• LORAC, engineers estimate $30,147,290, bid $37,294,777, 19.2% over.
• Rassekh Park, engineers estimate $3,700,000, bid $6,140,601, 40% over.
The cause of the high bids reflects post-pandemic supply chain, workforce availability and
construction inflation rates.
These bids have resulted in a situation where neither of the projects can move forward. There
are insufficient Parks funding available for the LORAC project alone and the Rassekh Park
project bid was cancelled on December 7, 2022 as it was deemed untenable after review.
BACKGROUND
The Parks, Recreation and Natural Resource Advisory Board presented its recommendation for
Parks Bond Capital Projects priorities to City Council on March 3, 2020. Both LORAC and
Rassekh Park were prioritized and staff was directed to implement the projects.
Lake Oswego Recreation and Aquatics Center (LORAC)
City Council and Lake Oswego School Board (LOSD) held a combined meeting on March 16,
2020 to discuss a potential partnership for building a combined recreation and aquatics center,
and a long-term operational agreement.
City Council and LOSD executed a Memorandum of Understanding for negotiating an
intergovernmental agreement for construction and operation of a combined recreation and
aquatics center on June 16, 2020. City Council and LOSD executed intergovernmental
agreements for the construction and operation of a combined recreation and aquatics center
(LORAC) on February 15, 2022.
City Council awarded the LORAC design and engineering contract to Scott Edwards
Architecture, LLP (SEA) on September 1, 2020.
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City Council gave direction to staff to pursue an enlarged recreation and aquatic center on June
15, 2021 and funding direction on July 6, 2021.
City Council approved a design services amendment for the enlarged recreation and aquatics
center on September 21, 2021.
City Council approved the alternative procurement approach for the LORAC on October 18,
2022. The LORAC project was advertised for construction proposals on October 18, 2022.
Proposals for construction of LORAC were opened on November 15, 2022, firm interviews were
conducted on November 16, 2022 and price proposals were opened on November 17, 2022.
Rassekh Park
City Council awarded the Rassekh Park design and engineering contract to MacKenzie on
February 2, 2021.
City Council directed staff to add a skatepark to the Rassekh Park design on October 19, 2021.
City Council awarded the design build award to California Skateparks on January 18, 2022.
The City entered into a contract with FieldTurf USA, Inc. to install City of Portland donated
synthetic turf at Rassekh Park on November 1, 2022.
Rassekh Park was advertised for construction proposals on September 30, 2022 (and addendum
on October 12, 2022). Proposals for construction of Rassekh Park were opened on November.
9. 2022.
Solicitation for Rassekh Park was canceled on December 7, 2022.
DISCUSSION
The pre-solicitation anticipated total cost of LORAC ($38,600,000) and Rassekh Park, including a
skatepark ($6,342,000) was $44,942,000. After opening price proposal, the total cost of the
two projects is $57,964,600.
Rassekh Park: The Parks Department canceled the solicitation for construction of Rassekh Park
and the department is working toward cancellation of the California Skatepark and FieldTurf
contracts that were in addition to the site construction for the project. Potential bond savings
is $320,000 if the contract is successfully cancelled.
LORAC: The price proposal for the highest ranked construction proposer is $37,294,777, soft
costs are $6,022,540 and 10% contingency is $3,729,478, total project cost is $47,046,796
($46,894,795 after deductive alternatives). The following describes the Parks funding available
and the funding need for the LORAC project.
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Parks fund available;
• Bond funds $17,957,330
• LOSD $15,000,000
• Park SDC's $ 7,266,729
• Parks GF $ 1,300,000
• GF Capital Reserve $ 1,800,000
Total $43,324,059
[Total funding shortfall LORAC and Rassekh Park $14,640,541]
Cost of LORAC including soft costs $43,205,317
Contingency @ 10% $ 3,729,478
Total cost of LORAC prior to value engineering $46,894,795
Parks funding shortfall for LORAC $ 3,570,736
Parks funding is insufficient to move forward with the LORAC project unless non-park city funds
or additional LOSD funds are dedicated to the project. Representatives of the City and LOSD
met on December 12, 2022 to discuss additional LOSD funding that may be available to the
project, in accordance with Sec. 4.4 Award of Contract in the Construction Agreement IGA.
LOSD indicated that they are committed to the project and encouraged continued value
engineering with the selected contractor.
ALTERNATIVES
1. Develop a funding strategy that funds the LORAC project and proceed, while value
engineering the project.
2. Cancel the solicitation for construction of LORAC and re-bid at a later date.
FISCAL IMPACT
1. If the LORAC project proceeds, the May 2019 Parks Bond program will be closed out.
2. If the LORAC project does not proceed at this time, there are unknown impacts on the
cost of the LORAC project.
RECOMMENDATION
Staff recommends continued value engineering with selected contractor before awarding a
construction contract.
ATTACHMENTS
1. IGA City— LOSD Construction, City Council Report February 15, 2022
2. City Council minutes July 6, 2021
3. Triplett-Wellman bid summary
4. City Council minutes October 19, 2021
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ATTACHMENT 1 6.1
4r14..., ,AECOUNCIL REPORT
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Subject: Intergovernmental Agreements Recreation and Aquatics Center, Use and
Construction
Meeting Date: February 15,2022 Staff Member: Ivan Anderholm, Director
Report Date: February 7, 2022 Department: Parks and Recreation
Action Required Advisory Board/Commission Recommendation
0 Motion ❑ Approval
❑ Public Hearing ❑ Denial
❑ Ordinance ❑ None Forwarded
❑ Resolution 0 Not Applicable
❑ Information Only Comments:
❑ Council Direction
❑ Consent Agenda
Staff Recommendation: Authorize the Mayor to sign Intergovernmental Agreements
between City of Lake Oswego and Lake Oswego School District for the Construction of and
Use of the Lake Oswego Recreation and Aquatics Center.
Recommended Language for Motion: Move to authorize the Mayor to sign, in substantially
the form attached, Intergovernmental Agreements between the City of Lake Oswego and the
Lake Oswego School District for the Construction and Use of the Lake Oswego Recreation and
Aquatics Center.
Issue before Council (Highlight Policy Question):
ElCouncil Goals/Priorities ❑Adopted Master Plan(s) ❑Not Applicable
ISSUE BEFORE COUNCIL
Review and approve the Intergovernmental Agreement between the City of Lake Oswego and
the Lake Oswego School District for the construction and use of the Lake Oswego Recreation
and Aquatics Center.
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
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BACKGROUND
The City and School District entered into a Memorandum of Understanding (MOU), dated July
9, 2020, that indicated the understanding that the City and School District would share in the
construction cost, operational cost, and maintenance, repair and replacement cost of a new
recreation and aquatics center for the benefit of the district and city residents.
DISCUSSION
The Construction IGA addresses the mutually agreed upon facility including:
• 25-yard stretch competition swimming pool;
• Warm water recreation pool;
• Dry activity and exercise rooms;
• Parks and Recreation classrooms;
• Parks and Recreation offices;
• Cardio/weight room and gymnasium.
The agreement also address:
• Equal allocation of all direct costs for the project up to a total of$30 million ($15 million
each);
• Methodology for allocating savings or additional costs;
• Contracting responsibility and methodology;
• Allocation of internal project management responsibilities.
The Use IGA addresses:
• The parties' share of operating costs and subsidies;
• Responsibilities and funding for maintenance, repair and replacement;
• Priority and scheduling of use of the various elements within the center.
The Construction Agreement is written based on a $30,000,000 total budget with provisions for
either or both parties to increase funding as they deem necessary. Based on direction given to
staff by City Council on June 15, 2021, the total project budget was increased to $36,846,000,
with the City share equaling $21,846,000 and the School District share equaling $15,000,000.
This direction has been the basis of the design development and continues to be the total
targeted cost of the facility including construction and all associated soft costs.
The Use Agreement prioritizes School District use of the competition pool for swimming and
water polo and prioritizes community use of the recreational pool and dry facilities. Long-term
maintenance and operational costs are addressed in the agreement.
FISCAL IMPACT
The fiscal impact to the City of the agreements is:
• $21,846,000 for construction;
• Up to $1,000,000 for capital maintenance over the next 20 years;
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• Estimated $500,000 annually in operational subsidy ($10,000,000 over 20 years).
RECOMMENDATION
Staff recommends that City Council authorize the Mayor to sign the Construction and the Use
Intergovernmental Agreements, in substantially the forms attached, between the City of Lake
Oswego and Lake Oswego School District for the Lake Oswego Recreation and Aquatics Center.
ATTACHMENTS
1. Recreation and Aquatics Center Use and Lease IGA
2. Recreation and Aquatics Center Construction IGA with Exhibit 1
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city
ATTACHMENT 1
INTERGOVERNMENTAL AGREEMENT BETWEEN
CITY OF LAKE OSWEGO
AND
LAKE OSWEGO SCHOOL DISTRICT
Recreation and Aquatics Center
Use Agreement
THIS INTERGOVERNMENTAL AGREEMENT("Agreement") is made effective this day of ,
2022, by and between the City of Lake Oswego, an Oregon municipal corporation ("City") and Lake
Oswego School District No. 7J, also known as Clackamas County School District No. 7, a common school
district of the State of Oregon ("District").The City and District may also be referred to as "Party" or
"Parties".
RECITALS
A. The City owns land and desires to build a Recreation and Aquatic Center including a warm water
recreational pool, classrooms, exercise rooms and offices for the Park and Recreation
Department.
B. The District desires to build a new 25-meter stretch competition swimming pool to meet the
needs of its student athletes and for other District programs and curricula.
C. The District voters approved a bond measure that includes funds for renovation and/or
replacement of the competition swimming pool at Lake Oswego High School and the District has
additional funds from realized bond premiums available for this project.
D. The City voters approved a bond measure to fund the development of new recreation facilities
in addition to repairing facilities and acquisition of property.
E. The Parties wish to cooperate in order for each to maintain excellence in providing quality
services to promote and preserve the general welfare, health and well-being of citizens,
students and other constituents they serve through creation and long-term operation of the
Recreation and Aquatic Center("Project").
F. The Parties desire that the District lease the Aquatic Facilities (as defined below)from the City
and that the Parties each own an undivided 50% interest in the Competition Pool (also defined
below). Notwithstanding the District's undivided 50%interest in the Competition Pool,the
District's aggregate contribution to the design and construction of the Aquatic Facilities,
including but not limited to the Competition Pool,will not exceed $15,000,000.
G. The Parties desire to cooperate to offer convenient and accessible programs and activities that
complement and enhance the student aquatic experience and provide quality aquatic,
recreational and exercise opportunities for City residents.
H. The Parties desire to make efficient and effective use of the completed Project facilities and staff
resources to minimize unnecessary duplication, maximize capacity and community usage, and
utilize specialized swimming facilities in order to make prudent use of bond proceeds and tax
revenues.
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I. The Parties have contemporaneously executed the Intergovernmental Agreement Between the
City of Lake Oswego and Lake Oswego School District 7J Recreation and Aquatics Center
Construction Agreement("Construction Agreement")to define the obligations and cooperative
efforts between the City and District to pool resources to design, permit and construct a new
Recreation and Aquatics Center("Project")to enable the City and District to maintain excellence
in providing quality services in the best interests of the community.
J. This Agreement sets forth the roles, rights, obligations and responsibilities and procedures of
the Parties for the use, operation, maintenance, repair and replacement of the Project upon
completion of construction and the method for sharing and providing for payment of those
costs.The Parties intend that more specific commitments will be made through periodic review
and update to this Agreement and attachments.
K. The Parties have determined that the Project will result in economic and operational benefits to
both Parties that could not be fully realized if acting independently.
L. This Agreement is entered into under the authority of ORS 190.010. No intergovernmental
entity is created under ORS 190.010(5).
THE CITY AND DISTRICT AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS
1.1 Definitions.
As used in this Agreement,the following terms when capitalized shall have the following
meanings:
1.1.1 Athletic Year. The beginning and ending dates of the Oregon High School Activities
Association for high school athletics.
1.1.2 Aquatic Facilities. That portion of the Facilities that comprises the competition pool,
the warm water recreational pool, pool mechanical, maintenance, storage and laundry rooms, pool
offices, lifeguard rooms, spectator restrooms, spectator viewing areas, deck and common areas as
depicted on Exhibit 1, attached hereto and incorporated by reference.
1.1.3 Agreement. This Intergovernmental Agreement between the City of Lake Oswego and
Lake Oswego School District No. 7J.
1.1.4 Asset Management Manual. The operations plan prepared as part of Project
completion that shall be the basis for operations, maintenance, repair and replacement of the Facilities,
which may be amended from time to time.
1.1.5 City. The City of Lake Oswego, an Oregon municipal corporation in Clackamas,
Multnomah and Washington Counties, Oregon.
1.1.6 Competitive Event. An Oregon School Activities Association aquatic competitive event
sponsored or hosted by the District, such as swimming, diving or water polo,where District students are
competing, also sometimes referred to as a District priority event.
1.1.7 Competition Pool. The 25-meter stretch competition swimming pool to be constructed
at the Project and to be owned jointly by the City and the District,with each Party owning an undivided
50% interest in such pool.
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1.1.8 Construction Agreement. The Intergovernmental Agreement between the City of Lake
Oswego and Lake Oswego School District No. 7J Recreation and Aquatics Center Construction
Agreement executed contemporaneously herewith that provides for design, permitting and construction
of the Project.
1.1.9 District. The Lake Oswego School District No. 7J, also known as Clackamas County
School District No. 7, a common school district.
1.1.10 District Representative. The District's Athletic Director or designee who shall have the
powers and duties as set forth in this Agreement.
1.1.11 Dry Facilities. All other areas of the Facilities as depicted on Exhibit 1 that are not
Aquatic Facilities generally consisting of weight and cardiovascular exercise rooms, multipurpose
exercise rooms, gymnasium, locker rooms, changing rooms, storage rooms, building service rooms,
offices and work areas for the City's Park and Recreation Department, lobby and other common areas.
1.1.12 Facilities. The Recreation and Aquatic Center Facilities constructed through the
Construction Agreement that include, among other things, the Aquatic Facilities and Dry Facilities as
depicted on Exhibit 1, attached hereto and incorporated by reference.
1.1.13 Fiscal Year. The time period defined under ORS 294.311(17).
1.1.14 Governing Body. The City Council or the District's Board of Directors.
1.1.15 Local Government Investment Pool (LGIP). The Oregon State Treasurer's Local
Government Investment Pool, subject to regulatory oversight by the Oregon Secretary of State and
administered by the Oregon State Treasury.
1.1.16 Managing Agency. The City of Lake Oswego, according to the terms and conditions of
this Use Agreement.
1.1.17 Facility Manager. The City of Lake Oswego Parks and Recreation Department Director,
or designee who shall have the powers and duties set forth in this Agreement.
1.1.18 Project. The design, permitting and construction of a new Recreation and Aquatic
Center on City owned land all as set forth in the Construction Agreement.
1.1.19 Capital Repair and Replacement Account. A separate account held by the City solely
dedicated to the future capital repair and replacement of the aquatic facilities and from which those
expenditures shall be paid when necessary. The City may choose to hold the account in the Local
Government Investment Pool or other qualified financial institution defined in ORS Chapter 295.
Annually each Party shall pay and deposit its allocated share into the Capital Repair and Replacement
Account.
1.1.20 Project Completion Date. The date of final completion of the Project according to the
terms and conditions of the construction contract.
1.1.21 Property. The City owns the real property located at the Municipal Golf Course and
generally depicted on Exhibit 1, attached hereto and incorporated by reference. Title to the Property
shall remain vested in the City. District shall have rights of use as provided in this Agreement.
1.1.22 User Fees. The amount charged to users of the Facilities according to the methodology
and fees adopted by the City on an annual basis.
1.1.23 School Year. The year that corresponds to both the academic and athletic year as
recognized by Lake Oswego School District.
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ARTICLE II
WARRANTIES AND REPRESENTATIONS OF THE PARTIES
2.1 Legal Authority.
Each Party warrants and represents to the other that it has the legal authority to enter into this
Agreement,that entry into this Agreement will not violate existing agreements and that the person
executing this Agreement on its behalf is authorized to do so.
2.2 Approval of the Governing Bodies.
The Parties hereto certify that each has undertaken the necessary public procedures to approve
this Agreement and authorize the signatories to this Agreement to act on behalf of the Party executing
this Agreement.
2.3 Obligation of Good Faith and Fair Dealing.
The Parties each covenant to deal fairly and in good faith with the other to fulfill the covenants
and requirements of this Agreement.
2.4 Obligation of City to Act as a Prudent Operator of the Facility.
Without limiting the City's duty of good faith and fair dealing, the City agrees to manage and
operate the Facility and perform its duties and obligations under this Agreement(a) in the best interests
of the City and District; (b) in a manner that avoids conflicts of interest; (c) using reasonable standards of
safety, economy, cost efficiency, and expedition; (d) using the skill and care a prudent recreational
facility operator in a similar position would use under similar circumstances; and (e) does not result in a
financial or other benefit to the City at the expense or detriment of the District.
ARTICLE III
TERM
Unless terminated earlier pursuant to Section VIII, the term of this Agreement shall commence
on the Project Completion Date and end on June 30, 2043 ("Initial Term"). If District is not in default at
the end of the Initial Term, it may give written notice of renewal to the City not less than 180 days prior
to expiration of the term. District shall have two Renewal Terms of five years each. Any Renewal Term
shall commence on July 1 and end on the June 30 occurring five years hence. Upon expiration without
renewal or termination of the Aquatic Center Use Agreement pursuant to Article IX,the District's
undivided 50% interest in the Competition Pool shall transfer to the City in consideration for the City
operating the Competition Pool.
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ARTICLE IV
FACILITIES USAGE
4.1 Purpose.
This Agreement provides for the roles, obligations and responsibilities of the Parties for the
lease, use, operation, maintenance, repair and replacement of the Recreation and Aquatics Center
Facilities. Operations shall include management, staffing, program coordination, scheduling and priority
of use,financial practices, budget development and appropriation of funds by each Party to pay its
allocated costs, and development of user fees.
4.2 Ownership and Rights of Use.
4.2.1 Real Property.
The City shall retain sole ownership of the Property, subject to District's rights of use as
set forth in this Agreement. Notwithstanding the foregoing, the Competition Pool shall be owned jointly
by the City and the District,with each party owning an undivided 50% interest in the Competition Pool.
The Property, including the Facility and the common area for access and parking is depicted on Exhibit 1,
attached hereto and incorporated by reference. So long as this Agreement is in effect,the City shall not
sell,transfer, lease, exchange or make other disposition of the Property, except to another local
government who agrees to be bound by all terms and obligations of this Agreement. City may
mortgage, pledge, encumber or refinance the Property if the City deems it necessary and so long as the
District's usage rights are preserved. The Property is part of the City's municipal golf course and the
Parties agree that the common area for access and parking will also be used by persons using the golf
facilities.
4.2.2 District Use.
The purpose of this Agreement is to provide the District's students, coaches, parents,
teachers and invitees with priority access for the Aquatic Facilities area for Competitive Events, school-
sanctioned practice and training by student-athletes that includes set up, warm up, warm down and
take down associated therewith (the "Permitted Use"). The City remains the operator of the Aquatics
Facility throughout the term of this Lease. Another purpose is non-competitive swimming events for
students that are part of the District's education curriculum and programs (also,the "Permitted Use").
During the Athletic Year, District competitive events shall have priority use for the entire Aquatics
Facility. Practice and training by competitive swimmers and water polo players and non-competitive
swimming by the District shall have priority for only those facilities or areas within the Aquatics Facility
necessary for the particular activity but not over the entire Aquatics Facility.
Subject to the City's right to use the Facilities,the District's students and coaches, as
well as those students and coaches competing at a Competitive Event shall have the right to use other
facilities in connection with the Permitted Use.
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4.2.3 City Usage.
The purpose of City usage is to provide regular access by residents and the community
to the Facilities, subject to the District's Use rights in Section 4.2.2 during the Athletic Year. When not
scheduled for District use,the City may schedule and use all or a portion of the Aquatics Facilities.
Notwithstanding, the City may make business decisions to offer incentives and discounts as the City
deems prudent. The City shall have sole priority use of Dry Facilities.
4.3 Scheduling.
The City and District shall share in the enjoyment and joint use of the Facility and shall work
cooperatively to coordinate programs and activities to achieve maximum use of the Facility and to avoid
or minimize conflicting or competing uses. Based upon the purposes and intentions set forth in this
Agreement,the City shall be responsible for scheduling use of the Facility according to the following:
4.3.1 Responsibility.
The City shall be responsible for scheduling all use of the entire Facility. The schedule
for the Facility shall be developed annually in March of each year as described in this Section 4 (see
Exhibit 3 to this Agreement as an example).
4.3.2 District Priority.
During the School Year, the District shall have exclusive use of the Aquatic Facilities
during Competitive Events. During the Athletic Year, the District shall have priority, of designated areas,
use of the Aquatic Facilities,for dates and hours depending on the nature of the District's activity,for
school-sanctioned practice,training and student non-competitive swimming. The hours for District's
priority and/or exclusive use shall include set up, warm up, Competitive Event, practice and training,
non-competitive swimming, warm down and take down time.
4.3.3 Preliminary Annual Schedule.
On an annual basis, but no later than July 1 of each calendar year,the District shall
provide a schedule in an electronic format acceptable to the City, stating the dates and times in the
upcoming Athletic Year for all District Competitive Events, school-sanctioned practice and training, and
non-competitive student swim sessions for the Aquatic Facilities or portion thereof as described in
Section 4.3.2. To the extent possible,the District shall also include potential dates for District
participation in Oregon School Activities Association and Oregon High School Water Polo Competitive
Events that may require use of the Aquatic Facilities.The City shall use best efforts to include the
District's schedule and necessary Aquatic Facilities and City scheduled uses to create a proposed
preliminary schedule for the entire Facility.The City will send the preliminary schedule showing dates,
times and areas of City and District usage to the District for review and comment.
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4.3.4 Final Annual Schedule and Trimester Schedule.
If there are no conflicts or requested changes, the preliminary schedule shall be final
issued by the Parks Director as Exhibit 3.The final annual schedule shall be divided into trimesters. Prior
to the beginning of each trimester,the Facility Manager shall review the planned events for that
trimester, consult with the District Representative, make necessary adjustments and determine the final
Trimester Schedule which shall supersede the final annual schedule for that trimester.Additional
adjustments may be made at the discretion of the Facility Manager upon reasonable notice. If there are
conflicts or requested changes by either Party,then the Facility Manager and District Representative
shall meet within 10 days to resolve the issues and reach agreement on the final Trimester Schedule for
adoption as Exhibit 4. If agreement cannot be reached,the City Manager and District Superintendent
shall meet to resolve this matter. In the absence of agreement between the City Manager and District
Superintendent, the City shall make the final decision on the Trimester Schedule and areas of use.
4.3.5. Cancellations and Rescheduled Events.
The District shall give City at least 72 hours' notice of cancellation of a District event, or
as soon as reasonably practical in the case of inclement weather or other circumstances.The Parties
recognize that unforeseen events may cause changes, postponements, or additional District Competitive
Events not originally scheduled. District shall notify City as soon as practicable if it wishes to reschedule
and if so, such Competitive Events shall be rescheduled to take priority over any other previously
scheduled City usage or District non-priority usage and the operation schedule shall be so amended. If a
District Competitive Event displaces a District non-priority event,then the Parties will make reasonable
efforts to reschedule the non-priority event but City has no obligation to reschedule it. If a District event
is cancelled and not rescheduled within 7 days of cancellation,then the City shall assume the cancelled
date and time and use the unused area of the Aquatic Facility for City purposes.
4.4 Coordination.
The Facility Manager and District Representative shall meet as needed to discuss operations,
scheduling, budget, expenditures and other capital needs and other matters relating to the Facility and
to make or recommend adjustments to this Agreement or the Exhibits.
4.5 Communications and Public Outreach.
The Parties will cooperate in the publication and distribution of joint information (print or
digital) about programs, schedules and usage of the Aquatic Facility. All joint information will be
identified with both Party's logos and relevant facts. Examples include, but are not limited to,
newsletters, program guides, event announcements and special flyers. Informational materials shall be
approved by each Party in advance of publication. Information inconsistent with the policies of either
Party will not be distributed.The Facility Manager and District Representative will each designate an
employee to coordinate communications and public outreach.
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ARTICLE V
OPERATIONS AND MANAGEMENT
City is designated as the Managing Agency to manage the Facility; perform operation,
maintenance, repair and replacement of the Facilities; provide budget, accounting and financial
management, day-to-day management of the Facilities and other services as described herein. The
Parties agree to the following allocation of tasks, obligations and responsibilities to enable and assist the
City to in the discharge of its duties:
5.1 Staffing.
5.1.1 The City shall be responsible to provide staffing, lifeguard services, supervision
and security for the Facilities as it deems necessary or required by law for District programs and usage as
stated in 5.1.2.
5.1.2. District shall provide staffing, supervision, and any other services deemed
necessary solely by the District or required by law for the Aquatic Facilities or portion thereof for District
activities at its sole cost and expense, excluding services provided in 5.1.1. The District shall adhere to
all rules adopted by the City for the Facilities and may adopt additional rules for its events as well as
provided in Section 5.3. The District's Staffing Plan for those dates and times of its usage shall be
submitted to City at the time District submits its schedule of District activities to City in Section 4, or as
otherwise agreed in writing by the Facility Manager.
5.1.3. The Parties intend that nothing in this Agreement will constitute or be
constituted as an employment, partnership,joint venture or other joint employer relationship between
the Parties. Each Party shall be the sole employer of its employees and shall be solely responsible for its
employees and volunteers who shall at all times be under the Party Employer's direction and control.
5.1.4. Each Party shall be responsible to pay or withhold as required, all taxes,
contributions and other amounts levied or imposed by federal, state, regional, county or City
governments applicable to its employees related to this Agreement.
5.1.5. Neither Party will take or allow any action in the name of the other Party or
bind, or purport to bind,the other Party without the express written consent of the other Party.
5.2 Compliance with Laws, Rules and Regulations.
At all times, each Party shall keep itself informed of and shall fully comply with all with
all federal, state, regional and local law, rules and regulations pertaining to this Agreement.
Each Party expressly agrees to comply with the following laws, regulations and executive
orders to the extent they are applicable to this Agreement: (i) Titles VI and VII of the Civil Rights Act of
1964, as amended; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii)the
Americans with Disabilities Act of 1990, as amended; (iv) Executive Order 11246, as amended; (v)the
Health Insurance Portability and Accountability of 1996, as amended; (vi) the Age Discrimination in
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Employment Act of 1967, as amended; (vii)the Vietnam Era Veterans Readjustment Assistance Act of
1974, as amended; (viii) ORS Chapter 659, as amended; (ix) all regulations and administrative rules
established pursuant to the foregoing laws; and (x) all other applicable requirements of federal, state
and municipal civil rights and rehabilitation statutes, rules and regulations.
5.3 Safety and Conduct.
The City, acting by and through the Facility Manager, shall adopt such rules and
regulations regarding safety, conduct and use of the Facility which all users, including District, shall
observe at all times. City rules as adopted or amended shall be set forth on Exhibit 5, attached hereto
and incorporated by reference and posted in conspicuous places in the Facility.
The District, acting by and through the District Superintendent, may adopt and enforce
rules and regulations regarding safety, conduct and usage of the Facility by students or other attendees
at District events. To the extent the District rules conflict with City rules,the more stringent or
restrictive provision shall apply at District events. District Rules shall be set forth on Exhibit 6, attached
hereto and incorporated by reference and posted in conspicuous places in the Aquatic Facility portion.
5.4 Operation, Maintenance, Repair and Replacement Plan.
5.4.1. The City,through its own forces or through service contracts, contractors,
vendors, suppliers and consultants, shall be responsible to operate, maintain, repair and replace the
Facility as provided herein. The City may elect to contract for some or all of these services.
5.4.2. The City shall initially rely upon the Asset Management Manual ("Manual")for
the Facility prepared pursuant to the Construction Agreement as the baseline operating plan that
includes, among other things, warranty information and operating manuals; daily operating procedures
and protocols; an initial inventory of all assets and the condition thereof; current value of the assets
(based upon replacement cost less depreciation basis); an asset management and operation plan;
tracking and reporting on performance of the Facility and its components; and an estimated schedule
for repair and replacement of the Facility or its components along with an estimate of costs.
5.4.3. The City shall periodically update the Manual to reflect maintenance, repair or
replacement work or alterations to the Facility; observations of processes, instrumentation and control
mechanisms; anticipated maintenance, repair or replacement work or modifications for the upcoming
year; changes to operations processes, procedures, means, methods and techniques for Facility
operation; and schedules for repair or replacement.
5.4.4. The Facility Manager and District Representative may meet annually to review
the Manual and amendments thereto. The Facility Manager and District Representative may form an
operations committee to assist in such review.
5.5 Maintenance.
The City shall be responsible to implement a manual for the safety, security and
operations of the Facility, including maintenance to the building exterior and roof, interiors, custodial
services and consumable supplies,floors, paint, electrical, plumbing and mechanical components of the
building.
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5.6. Custodial Staffing.
The City shall make reasonable efforts to schedule routine custodial services so as not to
interfere with District events. If there is additional custodial work caused by the District that cannot be
taken care of through the routine schedule or cannot be scheduled around the District event, then the
City may schedule the custodial work at other hours to not interfere with the District.
5.7 Supplies and Equipment.
The City shall maintain an inventory list and undertake routine ordering and storage at
the Facility of consumable supplies such as treatment chemicals. The City shall undertake routine
process control monitoring, including in-house and outside laboratory testing, as well as causing
specialized maintenance, inspection and testing to be performed.The District shall be responsible to
furnish all equipment, materials and supplies necessary for District events, programs or activities of any
kind. If City provides equipment, materials or supplies for a District event, program or activity,then
District shall be responsible for the items supplied, which must be promptly returned undamaged, clean
and ready for immediate use, or, if a consumable item has been used,to pay the cost thereof. If
damaged, District shall repair or replace at its expense.
5.8 Supervision and Security.
The City shall train and provide, in its sole judgment, an adequate number of competent
personnel to supervise all activities on the Property and Facility. In the Aquatic Facility,the City will
provide an employee to open and close the Facility if the District is using it before or after hours of City
use. City shall provide an adequate number of lifeguards for use of the Aquatic Facilities.
The District will designate its supervisory employee(s) and volunteers and shall conduct
necessary background checks. The District shall at all times be solely responsible for the willful or
negligent conduct of the employee or volunteer, except to the extent any harm caused by such conduct
was the result of the negligence or willful misconduct of the City.
5.9 Parking.
Motor vehicle and bicycle parking shall be permitted in the area designated on Exhibit 2,
attached hereto and incorporated by reference, during City or District use on a first come, first served
basis. During District competitive events the City and District will coordinate and allow participant and
spectator overflow parking at Lakeridge High School and/or Hazelia Field on a first come,first served
basis
5.10 Contracting.
The City shall act as the contracting agency according to law and City procurement rules
and make all decisions on the method and procedures for procurement in accordance with this
Agreement (including but not limited to Article II):
5.10.1. Enter into contracts with consultants and contractors as necessary to manage,
operate, maintain, repair or replace the Facility.
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5.11 Emergency.
The City shall take such actions as City deems reasonable and necessary during an
emergency. City shall endeavor to provide notice to the District as reasonable under the circumstances
and provide status or final action reports to District with cost allocations between the Parties as soon as
reasonably practical. Costs incurred and allocated shall be paid as provided in Section 6.4.3.
5.12 Communications and Public Outreach.
Subject to Section 4.5,the City shall develop and engage in communications and public
outreach activities to promote usage of the Facility, maintain records and respond to public information
or record requests from media or citizens.
5.13. Books and Accounts.
The City shall maintain budget control procedures in accordance with Oregon Budget
Law (ORS Chapter 294) and generally accepted accounting principles. The City shall provide the District
access through its financial dashboard expenditures and receipts by budget item.
5.14. Audit, Record Keeping and Access to Records.
5.14.1. The City shall cause an annual audit to be conducted pursuant to the
requirement of ORS 297.405 to 297.555, as applicable. The City shall maintain its books and records in
such manner that the Facility assets and expenditures related thereto are separately stated and capable
of review without being combined or mixed with other City assets.
5.14.2. The City shall maintain all fiscal records relating to the Facilities in accordance
with generally accepted accounting principles. In addition,the City shall maintain the records in a
manner to document the City's performance hereunder. All such fiscal records, books, documents,
papers, plans and writings shall be retained by the City according to records retention protocols adopted
by the City and kept accessible as required by law.
5.14.3. The City agrees that the District and its authorized representatives shall have
reasonable access during regular business hours to all books, documents, papers and records of the City
which are directly related to the Facility for the purpose of making any audit, examination, copies,
excerpts and transcripts.
5.15. Governing Body Decisions.
Approval by the Governing Body of each Party is required for:
5.15.1.Authorization to use the Capital Repair and Replacement Account.
5.15.2. Any non-emergency expenditure by the City that was not previously approved
and budgeted or that exceeds the City Manager's authority under City purchasing rules to make the
expenditure without approval of the City Council. Any non-emergency expenditure not previously
approved and budgeted or that exceeds the District Superintendent's authority to make the expenditure
without Governing Body approval.
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5.15.3.Approval of new or expanded facilities on the Property that may interrupt
reasonable access by the District to Aquatics facilities.
ARTICLE VI
COSTS AND FEES
6.1 Generally.
The District agrees to pay the City for District use of the Aquatic Facility, contribute 50%of the
established capital maintenance program and annual operating support as specified in this Agreement,
except as otherwise provided herein or mutually agreed and set forth in an amendment to this
Agreement or by Exhibit,to be paid from the funds budgeted and appropriated by each Party. Except as
set forth in this Agreement,the City will pay all costs of operating and maintaining the Facilities,
including but not limited to the Competition Pool.The City agrees that indirect, overhead, or central
administration costs, if any, that it allocates or charges to the Facilities,will be separately shown in the
accounting and financial records of the Facilities and shall be less in any period than the General
Revenue allocated or provided as operating support or as a subsidy of the Facilities.
6.2 User Fees and Charges.
6.2.1 The City shall set all user fees and charges for use of the Facility along with other fees
and charges adopted for the Park and Recreation Department. The User Fees and Charges shall be set
forth as Exhibit 8,which shall be updated annually through the City's adoption of Master Fees and
Charges. The District annual fee will be included in the City's Master Fees and Charges. Annual fees are
adopted through the City's Master Fee and Charges process and are subject to annual adjustment not to
exceed 4%.
6.2.2 The City shall prepare an annual Facility Use Plan based on scheduling information
provided by the District that reflects the start date, end date, days of week, hours during the day and
number of lanes that the District plans on using the Aquatics Facility(ies).
6.2.3 The District agrees to pay the City a minimum annual fee of$265,000 for use and
operational support of the Aquatics Facility.The City will invoice the District annually. Over the first
three years of this agreement, commencing on January 1, 2024,the District agrees to pay the City:
2024 $265,000
2025 $269,000
2026 $273,000
Provided, however,that the District will not be obligated to pay the above fees unless
and until the Facility is completed and open for use by the District. If the Facility opens after January 1,
2024, but before December 31, 2024,the District's annual fee for 2024 will be prorated on the basis of
(a)the number of days during which the Facility is open and available for use during 2024 to (b) 365. If
the Facility opens and is available for the District's use after December 31, 2024,the District will not be
responsible for paying the 2024 fees. If the Facility is completed in a later year,the District will not be
responsible for the fees for prior years and the fees for the year the Facility opens will be prorated on
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the basis of(y)the number of days during which the Facility is open and available for use during that
year to (z) 365. The District and City will review the actual costs associated with managing and
operating the Aquatic Facility for the first two full years of operations for the purposes of establishing
the fees to be paid by the District in future years.
6.2.4 The District agrees to pay the City an amount determined by the Asset Management
Manual equal to 50%of the anticipated annual contribution for capital maintenance of the Aquatics
Facility over 20 years; provided, however,that the total of all payments to be made by the District for its
50%share of the annual contributions for capital maintenance of the Aquatics Facility for the 20-year
period will not exceed $1,000,000. Each Party shall deposit their share, 50%each, of the annual capital
maintenance contribution as budgeted and appropriated into the account designated by the City budget
for receipt of those funds, parties may choose to deposit multiple years of funds. The City shall provide
tracking of expenditures in relation to the fiscal year budget.
6.2.5 In recognition of District's 50%contribution to the cost of design and construction of the
Facility, not to exceed $15,000,000,the District, its students participating in or attending District Events
or programs shall not be required to pay Aquatic Facility user fees and charges for use during
Competitive Events or school-sanctioned practice and training. If students or other District personnel
use the weight and cardiovascular exercise rooms, multipurpose exercise rooms, or gymnasium portions
of the Dry Facilities,then they shall pay the applicable charges.
6.3 Capital Repair and Replacement Cost of Aquatics Facilities.
6.3.1. Methodology.
The Asset Management Manual will include provisions for the Aquatics Facility that(i)
identify the components and functions, (ii)set the anticipated useful life cycle thereof according to
prudent standards and experience for the same type of facilities constructed by the Project, (iii)
estimate the replacement cost in current dollars for the Aquatic Facility or major component along with
a reasonable inflation factor, and (iv) provide a schedule of annual payments over the useful life to be
made by each Party as part of the annual budget and appropriation so that funds will be available for
capital repair or replacement when needed and to minimize or avoid capital financing.
The Parties agree to review the methodology and assumptions based upon actual
experience and evaluation of the Aquatic Facilities at 5-year intervals from the Project Completion Date
and make adjustments as necessary to reflect the actual conditions and to update the schedule to
account for repairs or replacements made that extend the useful life of the Aquatic Facilities. The
Parties agree that the initial 5-year schedule of payments is set forth on Exhibit 8, attached hereto and
incorporated by reference.
6.3.2. Capital Repair and Replacement Account.
Each party shall pay one-half of the annual Capital Repair and Replacement Cost of the
Aquatics Facility, calculated pursuant to Section 6.3.1, and the payment (in the City's case,the City's
reserve for the Capital Repair and Replacement Cost Account) shall be made to the City on or before July
15. The annual amount of capital repair and replacement paid by each Party shall be placed in a City
account solely dedicated for Capital Repair and Replacement of the Aquatics Facilities. City will provide
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periodic statements, not less often than annually, of the total account value, the amount contributed by
each Party and any interest earned. Interest earned shall be attributed equally to each Party. The
Parties may mutually agree to invest the Capital Repair and Replacement Account in an investment
authorized by the City's Investment Policy, if any, and ORS Chapter 294 with due regard to the ability to
obtain the funds for the purposes for which the account is created.
6.3.3. Draw.
If a non-emergency capital repair and replacement event occurs,the City shall assess
the nature and extent of the repairs or replacement needed and report to the District. The City and
District shall meet as soon as reasonably practical to determine necessary action and approve a draw
upon the Capital Repair and Replacement Account as needed accordingly for parts, materials,
contractors and the like. If an emergency capital repair and replacement event occurs, the City shall
undertake such action as necessary or convenient to make the repair and replacement, and shall report
to the District as reasonable explaining the nature of the emergency and the repair and replacement
necessary or convenient, and the expected or incurred costs for the needed parts, materials, contractors
and the like,for draw. If the Capital Repair and Replacement Account does not contain sufficient funds
at the time it is drawn upon, then the amount available shall be used first and each Party shall be
responsible to provide all remaining sums to reach its matching 50%share of the cost thereof within 30
days of invoice by the City.
ARTICLE VII
INSURANCE
Each Party agrees to provide and maintain insurance against damages or injuries that may arise
from the activities contemplated by this Agreement by purchasing and maintaining for the term of this
Agreement (and any Renewal Term) a commercial general liability insurance policy, and automobile
policy, both with a combined single limit of not less than,for 2022, two million dollars ($2,000,000) and
an umbrella policy of two million dollars ($2,000,000)for total coverage of four million dollars
($4,000,000),which policies shall include or be endorsed to include as additional insureds, the other
Party, its Governing Body, officers, agents, employees and volunteers. Each Party shall also carry
Workers Compensation Insurance and other coverages for its own employees as required by law. The
amount shall be increased based upon the same percentage increase per ORS 30.272.
City shall provide property fire and property casualty insurance in the same manner and at the
same level as it does for other City property and facilities, except that it shall add an endorsement to its
general liability policy naming District, its Governing Body, officers, agents, employees and volunteers as
additional insured.
ARTICLE VIII
INDEMNITY
To the extent permitted by the Oregon Constitution and subject to any limitations of the Oregon
Tort Claims Act(ORS 30.260-30.300), each Party agrees to indemnify and hold harmless the other Party,
its governing body, employees and agents, from any and all claims, demands, damages, actions, losses,
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expenses and costs, including attorney fees, arising out, and to the extent of,the indemnifying party's
acts or omissions of action under the Agreement.
ARTICLE IX
DEFAULT,TERMINATION AND WITHDRAWAL
9.1 Withdrawal.
A Party may request that it be allowed to withdraw from this Agreement at any time.
Thereupon,the Parties shall attempt in good faith to negotiate mutually agreeable withdrawal terms,
which shall be reduced to writing and approved by the governing bodies. If withdrawal is not agreed
upon, then this Agreement and all rights and obligations of the Parties shall continue.
9.2 Default and For Cause Termination.
9.2.1 Default and Notice.
The violation of any provision of this Agreement or the failure of a Party to perform any
duty imposed upon it by this Agreement shall constitute a default. The non-defaulting Party shall give
the defaulting Party written notice specifying the reasons and setting a date for cure. In the case of non-
payment,the cure period shall be 15 days from the date of notice. For all other events,the cure date
shall be not sooner than 30 days from the date of notice, except that the cure period shall be 5 days if
the default is a public health or safety matter.
9.2.2 Opportunity to Cure.
If the default is cured within the cure period of Section 9.2.1, or if the failure (other than
failure to make payment) is one that cannot be corrected within the cure period and the defaulting
Party presents a plan of cure that complies with all laws and regulations and commences and continues
to correct the default with reasonable diligence until completed, or if the Dispute Resolution is
requested,the notice of default shall be suspended. If a public health or safety matter is at issue, cure
must continue and request for dispute resolution shall not allow cessation of cure activities. If not
cured, correction is not undertaken or Dispute Resolution not requested,the non-defaulting Party may
pursue rights and remedies under this Agreement.
9.2.3 Rights Upon Default.
After an event of default and the expiration of any cure periods hereunder,the non-
defaulting party may undertake one or more of the following, and may do so simultaneously:
9.2.3.1 Pursue any legal or equitable remedy available under Oregon law;
9.2.3.2 Exclude the defaulting party, such that the defaulting party shall lose use
of the Facility (with all payment obligations continuing during the period of exclusion) until the default is
cured or any judgment, decree or arbitration award is satisfied;
9.2.3.3. Pursue money damages; declaratory judgment; injunction to compel
specific performance of the obligations hereunder;
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9.2.3.4 Compel immediate deposit of all funds required from the defaulting
party; and
9.2.3.5 Terminate this Agreement, but only if the default is due to non-payment
by the defaulting Party.
9.3 Termination and Dissolution.
This Agreement may be terminated and dissolved by mutual agreement of the governing bodies.
Upon agreement to dissolve,the Parties shall develop a Dissolution Plan and schedule to wind down and
cease efforts for the Project. Unless otherwise provided in the Dissolution Plan,termination and
dissolution shall be effective only after all outstanding debts and obligations have been paid or provision
for payment is made.
ARTICLE X
DISPUTE RESOLUTION
10.1. Dispute Resolution.
This Agreement obligates the Parties to cooperate in good faith to achieve the mutual benefit of
the Project. Each Party agrees to bring forward issues regarding past performance or anticipated
performance of obligations and duties at the earliest reasonable opportunity so that the Parties can
work toward solutions in an attempt to avoid a formal declaration of default. The Dispute Resolution
process is provided to encourage solutions at the earliest stage through negotiation.
The Parties hereby agree that any and all disputes or claims arising under this Agreement shall
be resolved through this Dispute Resolution process. Disputes should be resolved by the Facility
Manager and District Representative. If that fails,then the dispute shall be put in writing and this
Dispute Resolution process shall be followed as a condition precedent to any arbitration. The Parties
may waive the steps of the Dispute Resolution process by mutual consent.
10.2 Step One: Negotiation.
Upon receipt of the written dispute,the City Manager and the District Superintendent, or their
designees, shall meet and attempt to resolve the issue within 30 days. Resolution of the dispute shall be
in writing and signed by the City Manager and District Superintendent and ratified by the governing
bodies.
10.3 Step Two: Non-Binding Mediation.
If the dispute cannot be resolved at Step One within 30 days after notice is given,the Parties
shall submit the matter to non-binding mediation in accordance with ORS Chapter 36. The Parties shall
attempt to agree on a mediator("Neutral"). If they cannot agree then the Parties shall request a list of
five (5) Neutrals from an entity or firm providing mediation services. The Parties shall mutually agree on
a Neutral from the list. Costs of the Neutral shall be equally shared by the Parties; however,the Neutral
may determine a different allocation if the Neutral believes a party asserted a frivolous position. The
Parties shall make good faith efforts to have the mediation completed within 60 days after selection of
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the Neutral. If the dispute is resolved through mediation, it shall be reduced to writing and signed by the
City Manager and the District Superintendent and ratified by the governing bodies.
10.4 Step Three: Mandatory Arbitration.
If, after exhaustion of the foregoing steps,the dispute has not been resolved, then either party
may submit the matter to binding arbitration under the rules and processes of Arbitration Services of
Portland, Oregon, Inc. (or other mutually agreed arbitration service) ("ASP"). Each Party shall select an
arbitrator from the ASP list and then shall agree on appointment of the third. All costs of the arbitrators
and costs of the proceedings shall be borne equally; however, the Arbitrators may determine a different
allocation if they find a party asserted a frivolous position. The decision of the panel shall be binding
and may be enforced by entry of the award as a judgment. Nothing herein shall prevent the Parties
from varying the number of arbitrators, conduct of the arbitration or other matters by mutual
agreement reduced to writing.
10.5 Legal Fees and Costs.
Each Party shall bear its own legal fees and expert witness fees at all stages of the dispute
resolution process.
ARTICLE XI
NOTICES
Any notice required or permitted to be given under this Agreement shall be given in writing and
effective when received by hand delivery, electronic means or by first class United States mail, postage
prepaid, addressed to the Parties as set forth below. The Parties shall notify the other of any change of
address or title for receipt of notices under this Agreement.
If to City: City of Lake Oswego
Attn: City Manager
PO Box 369
380 A Avenue
Lake Oswego, OR 97034
With a copy to: City of Lake Oswego
Attn: City Attorney
PO Box 369
380 A Avenue
Lake Oswego, OR 97034
If to District: Superintendent
Lake Oswego School District
PO Box 70
2455 Country Club Road
Lake Oswego, OR 97034
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With a copy to: Assistant Superintendent of Business Services
Lake Oswego School District
PO Box 70
2455 Country Club Road
Lake Oswego, OR 97034
ARTICLE XII
GENERAL PROVISIONS
12.1 Entire Agreement.
This Agreement embodies the entire agreement and understanding of the Parties and
supersedes all previous agreements and understandings relating to the Project, except as provided
herein. The Parties agree that the provisions of the Memorandum of Understanding dated July 9, 2020,
regarding cost sharing for services performed prior to the effective date of this Agreement (section 4)
and indemnification for acts or omissions occurring prior to the date of this Agreement(section 7) shall
be in effect until fully discharged.
12.2 Amendments and Modifications.
This Agreement may only be modified in writing signed by each Party following approval by the
Governing Body. However,the Parties acknowledge and agree that Exhibits hereto will need to be
modified from time to time to account for changed conditions, annual or periodic updates, or achieve
efficiencies. Therefore,the Parties agree that all Exhibits may be modified in writing signed by the City
Manager and the District Superintendent,without necessity of Governing Body action, if they do not
change the terms of the Agreement. Further, Exhibits 3 and 4 relating to scheduling may be modified by
the Facility Manager and the District Representative,without necessity of governing body approval.
12.3 Non-Waiver.
Failure of a Party at any time to require performance of any provision of this Agreement shall
not limit the Party's right to enforce the provision, nor shall any waiver of any breach of any provision be
a waiver of any succeeding breach of the provision or a waiver of the provision itself or any other
provision.
12.4 Time is of the Essence.
Time is of the essence of each and every term, covenant, and condition set forth in this
Agreement.
12.5 Assignment,Sale or Transfer.
The City may assign, sell or transfer any interest in this Agreement or the Facility to a local
government entity who agrees to be bound by all terms and obligations of this Agreement. Otherwise,
no Party may assign, sell or transfer any interest in this Agreement or the Facility without the prior
written consent of the other Party and any act purporting to do so shall be void.
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12.6 Severability.
If one or more provisions contained in this Agreement is ruled invalid, illegal or unenforceable in
any respect,the remaining provisions of the Agreement shall be valid, legal and enforceable and not
affected or impaired.
12.7 Counterparts.
This Agreement may be executed in any number of counterparts which shall constitute a binding
agreement between the Parties. Electronic signatures are acceptable.
12.8 Headings.
The Article, section and subsection headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
12.9 Force Majeure.
No Party shall be considered in default in the performance of its obligations under this
Agreement to the extent that the performance of any such obligation is prevented or delayed by any
cause beyond the reasonable control of the affected Party, including, but not limited to, Acts of God,
earthquake, labor disputes, civil unrest,war, pandemic, events beyond the reasonable control of the
Parties, such as regulatory restrictions or requirements, permit issuance and the like. In the event a
Party claims that performance of its obligations was or will be prevented or delayed by any such cause,
that Party shall promptly notify the other Party of that event and the how it prevents or delays
performance. The Party so claiming a cause of delayed performance shall endeavor to the extent
reasonable to remove the obstacle and resume performance at the earliest possible time.
12.10 Survival of Covenants.
Any provision of this Agreement which, by its terms has or may have application after the
expiration or earlier termination of this Agreement, including covenants, agreements and warranties,
shall be deemed to the extent of such application to survive the expiration of this Agreement.
12.11 No Third-Party Beneficiaries.
The Parties hereto are the only Parties to this Agreement and the only persons or entities
entitled to enforce its terms.
12.12 Exhibits.
The following Exhibits are attached to and incorporated into this Agreement:
• Exhibit 1: Facility Plan
• Exhibit 2: Site Plan
• Exhibit 3: Facility Schedule
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• Exhibit 4:Trimester Facility Schedule
• Exhibit 5: City Rules for Facility
• Exhibit 6: District Rules for Facility
• Exhibit 7: User Fees and Charges
• Exhibit 8: Asset Manual and Capital Replacement 5-year schedule. (will
be incorporated upon completion and approval by City and District)
Exhibits may be incorporated after agreement effective date through resolution by City and District.
CITY OF LAKE OSWEGO LAKE OSWEGO SCHOOL DISTRICT No.7J
An Oregon municipal corporation
Chair
Mayor
Date
Date
Attest:
City Recorder
Approved as to Form
Approved as to Form
District Legal Counsel
City Attorney
Page 20 of 20—Recreation and Aquatics Center Use Agreement
113042820.4 0060568-00003
113042820.6 0060568-00003
EXHIBIT 1
Facility Plan
POOL STORAGE
AND LAUNDRY
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Lake Oswego Recreation and Aquatics Center CONCEPTUAL BUILDING PLAN _ o��• Eo, s 1 E A
17525 Stafford Rd.
L' IF Lake Oswego lg.
1
Lake Oswego, OR School District
04.26.21 I Project # 20138 \RFGG� SCOTTIEDWARDS ARCHITECTURE
Exhibit 1
Page 1 of 1
EXHIBIT 2 - SITE PLAN
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SCALE: 1"= 40'-0"
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PARKS & RECREATION DEPARTMENT
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EXHIBIT 3
Lake Oswego Recreation & Aquatics Center (LORAC) Facility Schedule*
Projected Hours of Operation:
Days Hours
Monday—Thursday 5:00am —9:00pm
Friday 5:00am —8:00pm
Saturday 7:00am —6:00pm
Sunday 8:00am - 5:00pm
Suggested Holiday Hours:
New Years Eve
9:00 AM to 2:00 PM
New Years Day
Closed
MLK Day
9:00 AM to 2:00 PM
President's Day
9:00 AM to 2:00 PM
Memorial Day
9:00 AM to 2:00 PM
Independence Day
9:00 AM to 2:00 PM
Labor Day
9:00 AM to 2:00 PM
Veteran's Day
9:00 AM to 2:00 PM
Thanksgiving
Closed
Day After Thanksgiving
9:00 AM to 2:00 PM
Christmas Eve
9:00 AM to 2:00 PM
Christmas Day
Closed
*Information is subject to change
Tel 503.675.2549 PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
o� �s� PARKS & RECREATION DEPARTMENT
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EXHIBIT 4
Lake Oswego Recreation & Aquatics Center (LORAC) Seasonal Programming Schedule
Schedule for competitive pool programming:
(when LOSD programming information is due to LOPR)
Season When Activities Occur Final Program Information Due Date
Fall (Sep 1 — Dec 31) April 30
Winter Spring (Jan 1—Apr 30) August 30
Summer (May 1—Aug 31) December 31
Tel 503.675.2549 PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
OF�A F �s� PARKS & RECREATION DEPARTMENT
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EXHIBIT 5
Lake Oswego Recreation & Aquatics Center (LORAC) Rules
SECTION I: AUTHORITY
As provided in the Lake Oswego Code, the City Council is authorized to
establish or amend rules and regulations that govern the use of Park Property,
in order to provide for reasonable use and enjoyment of Park Property, to
prevent damage to Park Property, to provide for the safety of persons using
Park Property, to provide for the orderly administration of Park Property, and
protect the City from unnecessary liability or expense.
SECTION-I: DEFINITIONS
All City of Lake Oswego Park Property is governed by the Park Rules, adopted by
Resolution 16-24, September 20, 2016.
"Park Property" means any athletic field, boat dock, foot bridge, pathway,
trail, natural area, open space, park, and recreational facility owned by the City
of Lake Oswego or operated, managed or maintained by the City of Lake
Oswego Parks and Recreation Department, including specialized service areas
such asthe Lake Oswego Public Golf Course, Indoor Tennis Center, Luscher Farm,
Water Sports Center and Adult Community Center
"LORAC" means the Lake Oswego Recreation & Aquatics Center, owned and
operated by the City of Lake Oswego and managed or maintained bythe City of
Lake Oswego Parks & Recreation Department.
"Dry Side" means the all areas other than the competitive pool area, the
recreation pool area, and the spa (hot tub) area.
"Wet Side" means the competitive pool area, the recreation pool area, and
the spa (hot tub) area and natatorium area.
Tel 503.675.2549 PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
Page 2 of 3
*SECTION III: SPECIFIC LORAC RULES
Parks Rules and LORAC specific rules will be abided by. Guests are subject to Park Rules, Section
VIII: Enforcement of Rules.
IN GENERAL
The City assumes no responsibility for any injury that may occur.
Staff must be advised of any incident or accident in the facility
Any person causing damage in any way to equipment or facility will be held responsible
Compliance with these guidelines and staff requests for compliance ensures the safety for all
No gum allowed
No smoking, vaping allowed on or in any Park Property
Metal and plastic water bottles allowed, refillable at drinking fountains
No glass allowed in the facility
No guest provided alcohol allowed in the facility
No LORAC purchased alcohol permitted outside of the lobby and outdoor patio areas
No pets allowed with the exception of registered support animals
Be watchful of your belongings. The City is not responsible for lost or stolen items.
Lost and found clothing or swim aids will be kept for two weeks and then disposed of.
Lost and found phones, wallets, keys, jewelry and other valuables will be kept for 30 days and
then disposed of.
WET SIDE
No one is allowed in the pool unless a certified lifeguard is present
Shower before entering the water
Disposable Diapers Not Permitted —Swim Diapers only
Children 9 years and under must be accompanied by ages 13+ supervisor
Children must be 48" tall to ride water slide
No outside inflatable flotation devices (including water wings)
Only Coast Guard approved life jackets are allowed and the LORAC has them available for use
No running on deck
No horseplay in the water or on deck
Competitive High School Athletes and Event Spectators subject to rules and regulations of OSAA
and OHSWP
Proper swim attire required in all areas - No graphic or vulgar apparel permitted
Denim, Swimwear with Buckles Rivets or Zippers and T Shirts not allowed on the water slide
2+ people in a lane are allowed for circle swimming or independent workouts
Guests must bring their own towels
Spectators are allowed in the viewing area only and are expected to abide by the code of
conduct rules.
Page 3 of 3
No cells phones, tablets, cameras or other photographic devices are allowed to be used in the
locker rooms, shower areas or restrooms.
SPA
Reserved for our adult guests
The spa maximum guest seating cannot be exceeded
Before using the spa - hot tub please check with your physician if you have medical concerns
such as high blood pressure or diabetes.
Please shower before entering spa; use spa at your own risk.
DRY SIDE
Fitness Room
Food, gum, beverages are not permitted (with the exception of metal or plastic water bottles)
in the fitness room.
Use of equipment is at your own risk.
Use equipment properly and follow directions carefully
Users are responsible for knowing their own physical limitations
Shirts and shoes must be worn at all times
No sandals, flip flops or bare feet allowed
Return all equipment used to its designated storage location
No unaccompanied children under the age of 18 are allowed in the fitness room
Report any faulty or damaged equipment to staff.
Wipe down all equipment after use.
Fitness Studio/Gym
Food, gum, beverages are not permitted (with the exception of metal or plastic water bottles)
in the studio or gym.
Proper closed-toe athletic footwear required
No sandals, flip flops or bare feet allowed
No floor-marking footwear allowed
Scheduled events have priority use of gym
Return all equipment after use
Do not wear jewelry during workouts or games
Party Room
Party room reservations follow LOPR rental agreement conditions and guidelines
*Information subject to change
EXHIBIT 6
Lake Oswego School District Aquatics and Swimming Program Rules
General Rules:
https://www.losdschools.org/Page/1829
OSAA swimming rules:
https://www.osaa.org/docs/planbooks/swplan.pdf
Oregon High School Water Polo rules:
http://www.oregonwaterpolo.org/
OF�A F �s� PARKS & RECREATION DEPARTMENT
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EXHIBIT 7
Lake Oswego Recreation &Aquatics Centers (LORAC) User Fee Schedule*
Open Swim Fee Schedule for 2023-2024:
Classification Daily 10 Visit Pass
Res. N. Res Res. N. Res
Adult (18-60) $7.00 $11.00 $63.00 $99.00
Youth (3-18) $5.00 $8.00 $45.00 $72.00
Senior (60+) $5.00 $8.00 $45.00 $72.00
Note: 10 visit passes are a 10% discount over the daily fee.
Classification 3 Month Annual Month to Month
Res. N. Res Res. N. Res Res N. Res
Adult (18-60) $125 $188 $400 $600 $35 $51
Youth (3-18) $106 $160 $340 $510 $29 $44
Senior (60+) $106 $160 $340 $510 $29 $44
Household $234 $352 $750 $1,125 $64 $95
Note: Resident: live in the City of Lake Oswego or Lake Oswego School District
boundaries or currently enrolled in Lake Oswego School District. Monthly rates are the
annual rate divided by 4 times 125%. Month to month is based on automatic
withdrawal (auto renew) from a bank account or credit card. Household includes 2
adults and up to 3 youth. Each additional youth is another $10/$15 per month.
3 Month/Annual/Month to Month membership fees include:
• Lap Swimming or Independent Lane Workouts
• Open swim for individuals and families
• Parent/Preschool Swim
• Senior Swim
• Basic Water and/or Studio Fitness classes
• Access to Workout Room for ages 18+
• Open Play Gym Use
Drop-in Rate:
Fitness Class $8.00/$10.00 (Basic Water or Studio)
Tel 503.675.2549 PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
Page 2 of 2
Aquatic Programs Fees
Group Swim Lessons $75/Session
Semi-Private Lessons $25/Lesson
Private Lessons $35/Lesson
Water Therapy $25/Half Hour
Lifeguard Training $200/Session
Water Safety Instructor Training $200/Session
Water Fitness Instructor Training $200/Session
Senior Swim Time $5/Session
Teen Time $5/Session
Parent/Preschool Swim $5/Session
Birthday Party Packages $250/Event
Water Safety Instructor Training $200/Session
Building Rentals Fees
Annex Room 1 $75/Hour
Annex Room 2 $65/Hour
Annex Rooms 1 & 2 $135/Hour
Annex Rooms 1 & 2 weekends $700/6 Hours
Birthday Party Packages $250/Event
Fitness Studio $100/Hour
Gymnasium per court $65/Hour
Gymnasium $110/Hour
Aquatic Rentals Fees
Lane $16/Hour
8 Lanes $135/Hour
Recreation Pool $200/Hour
Competition Pool $200/Hour
Entire Aquatic Facility After Hours $800/2 Hours
Fees subject to change
EXHIBIT 8
Asset Manual and Capital Replacement 5-year schedule
Will be incorporated upon completion and approval by City and District.
ATTACHMENT 2
INTERGOVERNMENTAL AGREEMENT BETWEEN
CITY OF LAKE OSWEGO
AND
LAKE OSWEGO SCHOOL DISTRICT
Recreation and Aquatics Center
Construction Agreement
THIS INTERGOVERNMENTAL AGREEMENT("Agreement") is made effective retroactively to the 9th day
of July, 2020, by and between the City of Lake Oswego, an Oregon municipal corporation ("City") and
Lake Oswego School District No. 7J, also known as Clackamas County School District No. 7, a common
school district of the State of Oregon ("District").The City and District may also be referred to as "Party"
or"Parties".
RECITALS
A. The City owns land and desires to build a Recreation and Aquatic Center including a warm water
recreational pool, classrooms, exercise rooms and offices for the Park and Recreation
Department.
B. The District desires to build a new 25-meter stretch competition swimming pool to meet the
needs of its student athletes and for other District programs and curricula.
C. The District voters approved a bond measure that includes funds for renovation and/or
replacement of the competition swimming pool at Lake Oswego High School and the District has
additional funds from realized bond premiums available for this project.
D. The City voters approved a bond measure to fund the development of new recreation facilities
in addition to repairing facilities and acquisition of property.
E. The Parties wish to cooperate in order for each to maintain excellence in providing quality
services to promote and preserve the general welfare, health and well-being of citizens,
students and other constituents through creation and operation of the Recreation and Aquatics
Center("Project").
F. The Parties desire to offer convenient and accessible programs and activities that complement
and enhance the student aquatic experience and provide quality aquatic, recreational and
exercise opportunities for City residents.
G. The Parties desire to enter into a use and lease agreement for the Aquatic Facilities (as defined
below) and that the Parties each own an undivided 50% interest in the Competition Pool (also
defined below). Notwithstanding the District's undivided 50% interest in the Competition Pool,
the District's aggregate contribution to the design and construction of the Aquatic Facilities,
including but not limited to the Competition Pool,will not exceed $15,000,000.
Intergovernmental Agreement Between City of Lake Oswego and Lake Oswego School District-
Recreation and Aquatics Center Construction Agreement 1
113157845.3 0060568-00003
H. The Parties desire to make efficient and effective use of the completed Project facilities and staff
resources to minimize unnecessary duplication, maximize capacity and community usage, and
utilize specialized swimming facilities in order to make prudent use of bond proceeds and tax
revenues
I. The Parties executed a Memorandum of Understanding dated July 9, 2020 to provide for
preliminary planning and design of the Project and, pursuant thereto, City retained Scott
Edwards Architecture (SEA) ("Consultants").
J. The purpose of this Agreement is to define the cooperative efforts between the City and District
to pool resources to design, permit and construct a new Project to enable the City and District to
maintain excellence in providing quality services in the best interests of the community.
K. Contemporaneously with this Agreement,the Parties have executed a Recreation and Aquatics
Center Use and Lease Agreement which sets forth the roles, obligations and responsibilities of
the Parties for the lease, use, operation, maintenance, repair and replacement of the Project
upon completion of construction.The Parties intend that more specific commitments will be
made through periodic review and update to the Aquatic Center Use and Lease Agreement and
its exhibits.
L. The Parties have determined that the Project will result in economic and operational benefits to
both Parties that could not be fully realized if acting independently.
M. This Agreement is entered into under the authority of ORS 190.010. No intergovernmental
entity is created under ORS 190.010(5).
THE CITY AND DISTRICT AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement,the following terms when capitalized shall have the
following meanings:
1.1.1 Agreement.This Intergovernmental Agreement Between the City of Lake Oswego and
Lake Oswego School District No. 7J Recreation and Aquatics Center Construction Agreement.
1.1.2 Aquatic Facilities. That portion of the Facilities that comprises the competition pool,
the warm water recreational pool, pool mechanical, maintenance, storage and laundry rooms, pool
offices, lifeguard rooms, spectator restrooms, deck and common areas as depicted on Exhibit 1,
attached hereto and incorporated by reference. Aquatic Facilities may also be referred to as Wet
Facilities.
1.1.3 Asset Management Manual. The operations plan prepared as part of Project
Completion that shall be the basis for operations, maintenance, repair and replacement of the Facilities,
which may be amended from time to time.
Intergovernmental Agreement Between City of Lake Oswego and Lake Oswego School District-
Recreation and Aquatics Center Construction Agreement 2
113157845.3 0060568-00003
1.1.4 City. The City of Lake Oswego, an Oregon municipal corporation in Clackamas,
Multnomah and Washington Counties, Oregon.
1.1.5 Competitive Events. An Oregon School Activities Association or Oregon High School
Water Polo Committee aquatic competitive event sponsored or hosted by District, such as swimming,
diving or water polo,where District students are competing, also sometimes referred to as a District
priority event.
1.1.6 Competition Pool. The 25-meter stretch competition swimming pool to be constructed
at the Project and to be owned jointly by the City and the District,with each Party owning an undivided
50% interest in such pool.
1.1.7 District. The Lake Oswego School District 7J, also known as Clackamas County School
District No. 7, a common school district.
1.1.8 Dry Facility. All other areas of the Facilities as depicted on Exhibit 1 that are not Aquatic
Facilities generally consisting of weight and cardiovascular exercise rooms, multipurpose exercise rooms,
gymnasium, locker rooms, changing rooms, storage rooms, building service rooms, offices and work
areas for the City's Park and Recreation Department, lobby and other common areas.
1.1.9 Executive Committee. A committee consisting of a District Board Member and a City
Councilor appointed by the governing body of each Party, along with the District's Executive Director of
Project Management, the City's Parks and Recreation Director, the City Manager and the District
Superintendent to review and advise the Project Manager and Project Representative on a periodic
basis, make specified decisions, and to act as a liaison with the governing bodies.
1.1.10 Facilities. The Recreation and Aquatic Center Facilities constructed through the
Construction Agreement that include, among other things, the Aquatic Facilities and Dry Facilities as
depicted on Exhibit 1, attached hereto and incorporated by reference.
1.1.11 Fiscal Year. The time period defined under ORS 294.311(17).
1.1.12 Governing Body. Governing Body shall mean the City Council or the District's Board of
Directors.
1.1.13 Local Government Investment Pool (LGIP). The Oregon State Treasurer's Local
Government Investment Pool, subject to regulatory oversight by the Oregon Secretary of State and
administered by the Oregon State Treasury.
1.1.14 Managing Agency. The City of Lake Oswego, according to the terms and conditions of
this Agreement and the Aquatic Center Use and Lease Agreement.
1.1.15 Memorandum of Understanding. The Memorandum of Understanding between the
City and District for the Recreation and Aquatics Center at Municipal Golf Course dated July 9, 2020.
1.1.16 Aquatic Center Use and Lease Agreement. The agreement between the Parties
executed contemporaneously with this Agreement that provides for the roles, obligations and
responsibilities of the Parties for the lease, use, operation, maintenance, repair and replacement of the
Intergovernmental Agreement Between City of Lake Oswego and Lake Oswego School District-
Recreation and Aquatics Center Construction Agreement 3
113157845.3 0060568-00003
Project when completed and placed in service. Operation shall include management, staffing, program
coordination, scheduling and priority of use, budget development and appropriation of each Party's
allocated portion of costs and methodology and amount of user fees.
1.1.17 Project. The design, permitting, construction and commissioning of a new Recreation
and Aquatic Center on City owned land that will include, among other things, Facilities depicted on
Exhibit 1.
1.1.18 Project Account. A separate account held by the City solely dedicated to the Project
and from which Project expenditures shall be paid. The City may choose to hold the account in the Local
Government Investment Pool or other qualified financial institution defined in ORS Chapter 295. Each
Party shall pay and deposit its allocated share of the Project into the Project Account on a basis
sufficient to ensure direct costs are paid on a timely basis.
1.1.19 Project Closeout. Those activities undertaken by the City following Project Completion
to determine final costs,final payments,true up of expenditures, disposition of surplus funds or
collection of underpayments and such other matters necessary to finish the Project.
1.1.20 Project Completion. The date of final completion of the Project according to the terms
and conditions of the construction contract
1.1.21 Project Manager. The Lake Oswego City Manager or designee who shall have the
powers set forth in this Agreement.
1.1.22 Project Representative. The District Superintendent or designee who shall have the
powers set forth in this Agreement.
1.1.23 Property. The City owned real property located at the Municipal Golf Course and
generally depicted on Exhibit 2, attached hereto and incorporated by reference. Title to the Property
shall remain vested in the City. District shall own an undivided 50% interest in the Competition Pool and
rights of use as provided in this Agreement and the Aquatic Center Use and Lease Agreement. Upon
termination of the Aquatic Center Use Agreement,the District's undivided 50% interest in the
Competition Pool shall transfer to the City in consideration for the City operating the Competition Pool.
1.2 Interpretation.
In this Agreement, unless a clear contrary intention appears: (a) reference to any person
includes such person's successors and assigns but, If applicable, only if such successors and assigns are
permitted by this Agreement, and reference to a person in a particular capacity excludes such person in
any other capacity; (b) reference to gender includes other applicable references as though set forth such
as "he/him", "she/her" or"they/them"; (c) reference to any agreement (including this Agreement),
document or instrument means such agreement, document or instrument as amended or modified and
in effect from time to time in accordance with the terms thereof and, if applicable,the terms hereof; (d)
reference to any Article, Section, Schedule or Exhibit means such Article, Section, Schedule or Exhibit to
this Agreement, and references in any Article, Section Schedule, Exhibit or definition to any clause
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means such clause of such Article, Section, Schedule, Exhibit or definition; (e) "hereunder", "hereof",
"hereto", "herein" and words of similar import are references to this Agreement as a whole and not to
any particular Section or other provision hereof; (f) relative to the determination of any period of time,
"from" means "from and including", "to" means "to but excluding" and "through" means "through and
including"; (g) "including" (and with correlative meaning "include") means including without limiting the
generality of any description preceding such term; (h) reference to any law(including statutes and
ordinances) means such law as amended, modified, codified or reenacted, in whole or in part, and in
effect from time to time, including rules and regulations promulgated hereunder; and (i) "will" and
"shall" are mandatory terms.
ARTICLE II
WARRANTIES AND REPRESENTATIONS OF THE PARTIES
2.1 Legal Authority.
Each Party warrants and represents to the other that it has the legal authority to enter into this
Agreement,that entry into this Agreement will not violate existing agreements and that the person
executing this Agreement on its behalf is authorized to do so.
2.2 Approval of the Governing Bodies.
The Parties hereto certify that each has undertaken the necessary public procedures to approve
this Agreement and authorize the signatories to this Agreement to act on behalf of the Party executing
this Agreement.
2.3 Availability of Funds.
Each Party represents that it has lawfully approved funds for the Project and covenants to have
all required amounts ready for expenditure as called for under this Agreement. Nothing herein prohibits
a Party from the exercise of discretion to use other lawfully available funds for the Project.
2.4 Obligation of Good Faith and Fair Dealing.
The Parties each covenant to deal fairly and in good faith with the other to fulfill the covenants
and requirements of this Agreement.
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2.5 Obligation of City to Act as a Prudent Public Agency Managing and Administering the Project.
Without limiting the City's duty of good faith and fair dealing, the City agrees to manage and
administer the Project and perform its duties and obligations under this Agreement (a) in the best
interests of the City and District; (b) in a manner that avoids conflicts of interest; (c) using reasonable
standards of safety, economy, cost efficiency, and expedition; (d) using the skill and care a public agency
in a similar position would use under similar circumstances; and (e) does not result in a financial or other
benefit to the City at the expense of or detriment to the District.
ARTICLE III
TERM
Unless terminated earlier pursuant to Section VIII, the term of this Agreement shall have retroactive
effect to have commenced on the effective date of July 9, 2020 and end one year after the date of
Project Completion or at that the conclusion of any claims or warranty issues. The Parties have
contemporaneously executed an Aquatic Center Use and Lease Agreement and recognize that both
agreements may be in effect for a period of time.
ARTICLE IV
DESIGN AND CONSTRUCTION
4.1 Design.
4.1.1 Preliminary Planning and Schematic Design.
Pursuant to the Memorandum of Understanding, the City, with input from the District, retained
SEA(Designer) as design consultant for the full range of design services for the Project. Designer has
developed a floor plan (Exhibit 1) and scope of work,which the Parties have approved as the basis for
further development of the schedule, scope and work of the Project.
4.1.2 Final Planning and Design.
The Parties agree that City shall amend the existing contract, or enter into a new contract,with
Designer to finish final planning and design for the Project, in accord with the Preliminary Design, for
approval by each Party. The Project Manager(or designee) and the Project Representative shall
participate in necessary joint planning and design meetings to enable the Designer to timely complete
the design work and to develop a mutually agreed Project scope of work from the final design for use in
the construction solicitation documents.The Project Manager and Project Representative shall agree
upon a schedule for periodic review and approval by each Party at significant milestones during design
and at final design. Subsequent design changes shall require the consent of the Parties if they result in a
material change from the final design. For purposes of this Agreement, material change shall be one
where the Aquatic Facilities will not qualify to host Competitive Events
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4.2 Permitting and System Development Charges.
City, as the Managing Agency, shall be the lead agency to negotiate and obtain any and all
required permits, system development charges (SDCs) or approvals for construction of the Project. This
includes permits where the City is both the applicant and the permitting agency.The City agrees to
submit any and all permits in accordance with applicable criteria for decision and to take all reasonable
steps to obtain approval. However, in those cases where the City is the permitting agency,the Parties
acknowledge and agree that this Agreement does not bind the City regarding regulatory acts or
permitting decisions when the City's permit issuing department(s) are acting in that capacity.The City
will undertake all reasonable efforts to mitigate permitting or SDC costs charged to the Project, and that
no permit fees or SDCs will exceed fees that may be assessed on independent parties.
4.3 Construction.
The Parties agree to construct the Project and to share equally in the cost of construction as
specified in the contract between City and the selected contractor, subject to the District's maximum
contribution of fifteen million dollars($15,000,000)to the costs of the Project. The City, as the
Managing Agency, shall follow City purchasing procedures and contractor qualification requirements,
determine the contracting method to select a contractor and award a contract(s) in the name of the City
to perform the work in accordance with this Agreement (including but not limited to Article II). District
and City shall review and approve the final construction contract documents, selection criteria and
contract amount.
4.4 Award of Contract.
The total maximum cost for the entire Project, including but not limited to, design, engineering,
permitting, construction (with a ten percent [10%] contingency) and commissioning is $30,000,000.
If the bid, including the ten percent (10%) contingency, results in a total Project cost of
$30,000,000 or less,then the City shall notify the District and may award the contract without necessity
of District approval unless District, within 7 days of notification, informs the City in writing that it does
not wish to proceed, at which point this Agreement and the Project shall terminate.
If the proposed contract price including the ten percent (10%) contingency cause the total
Project cost to exceed $30,000,000,then the Parties shall determine if savings can be achieved to bring
the total Project cost to an acceptable amount subject to approval by the governing body of each Party.
If approved by each Party,then the City shall be authorized to proceed and per Section 4.6 each party
shall pay one-half of the base (adjusted bid) Project cost. In addition, a party may, by an additive to
scope of work for the base (adjusted bid) Project cost, include component elements back into the
Project but the allocation of cost of those component elements shall be one hundred percent (100%)
upon the party that directed the additive. Notwithstanding the foregoing, under no circumstances shall
the District's share of the Project cost exceed $15,000,000.
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4.5 Project Management.
During design, permitting and construction, City, shall undertake all duties, obligations and
responsibilities to manage consultants and contractors to complete the Project. At least weekly, the
Project Manager and District's Project Representative shall meet to review project schedules and
performance, progress payment requests, change orders and punch list items. The District's Project
Representative may attend all contractor and consultant meetings.
4.6 Costs and Expenses.
4.6.1. Each Party shall be responsible to pay one-half of all costs and expenses incurred by the
City for design, permitting, construction and commissioning services for the Project up to $30,000,000,
except (a)the District's share shall not exceed $15,000,000 and (b) as provided in Section 4.4 regarding
additives, any component element added back into the Project shall be one hundred percent(100%)
upon the party that directed the additive.
Any cost or change order exceeding that amount shall be allocated to the District if it is
attributed to the Aquatic Facilities or to the City if attributed to the Dry Facilities or warm water pool or
appurtenant features, unless the parties otherwise mutually agree. Each Party's share shall be
deposited in the Project Account.The Parties agree that improvements or conditions reasonably
imposed by permitting agencies (including the City in its regulatory review and approval) shall be a
Project cost and the District's portion shall be shared proportionally based on the ratio of$15,000,000
bears to the total Project cost, which ratio shall not exceed 0.50. Additives (additional improvements or
amenities not included in the base Project design) shall be paid for at the sole expense of the Party
requesting them.
4.6.2. City shall provide that all contracts with consultants and contractors for the Project
Progress payments for permitting, design and construction shall require monthly progress payments or
at such other regular intervals as the City deems best. Upon receipt of an invoice or progress payment
request,the City shall review and pay as required by the applicable contract from the Project Account in
Section 5.3.4.1. City shall provide an invoice to the District (along with such documentation as the
District requests), showing District's share of the cost within 10 days of receipt. City shall draw from the
Project Account to pay District's allocated share.
4.6.3. If the City disputes all or a portion of an invoice or progress payment request from a
consultant or contractor, it shall resolve the matter through the terms of the applicable contract, which
may include dispute resolution procedures. In such case, the City shall notify District, pay the
undisputed portion of the District's share as determined by the City, but may withhold the disputed
amount until the matter is resolved. Upon resolution,the City shall notify the District and deduct the
District's share from the Project Account.
4.6.4 If the District disputes all or a portion of an invoice from the City,the City may make
payment from the Project account but District reserves all rights to use the dispute resolution
procedures of Article IX to review the disputed amounts and determine payment responsibility.
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4.6.5. Notwithstanding Sections 4.6.3 and 4.6.4,the Parties agree that during construction, no
dispute between the Parties shall cause cessation or delay of work by the contractor. If the contractor
threatens to suspend or terminate work because of a dispute over non-payment,the Parties agree that
the City may expend funds from the Project Account to resolve any issues with the contractor and each
Party shall expressly reserve rights regarding the final allocation of costs or obligations paid to the
contractor which shall be resolved by dispute resolution.
4.7 Post Completion.
Following substantial completion,the Project Manager and Project Representative shall meet as
needed to achieve final completion under the contract. Upon final completion,the Project Manager and
Project Representative shall review and confer on any warranty or contract performance issues. Project
Manager shall use reasonable discretion as to enforcement of identified warranty or contract
performance obligations.
ARTICLE V
PROJECT MANAGEMENT
5.1. Managing Agency.
City shall be the Managing Agency to manage the design, permitting and construction of the
Project under this Agreement. City shall also be the Managing Agency under the terms of the Aquatic
Center Use and Lease Agreement to manage the operation, maintenance, repair and replacement of the
Project after completion of construction.
5.2 Powers and Duties.
The City, as Managing Agency, shall have the power, authority and obligation to:
5.2.1. Act as the contracting agency according to law and City procurement rules and
make all decisions on the method and procedures for procurement in accordance with this Agreement
(including but not limited to Article II).
5.2.2. Enter into contracts with consultants and contractors for design, permitting and
construction of the Project, apply for necessary permits, provide or cause to be provided appropriate
insurance coverages, performance and payment bonds or security for performance of the work, manage
all contracts as the owner's representative and complete the annual work plan.
5.2.3. Approve amendments and change orders according to City procurement rules.
Any amendment or change order that increases a Party's share by less than $250,000 of the contract
price may be approved by the Executive Committee and that will be binding on the Parties, subject to
the District's maximum capital contribution of$15,000,000. Any amendment or change order that
increases a Party's share by more than $250,000 of the contract price shall be approved by the
governing body of that Party. However, City may approve an amendment or change order without
District approval if the City reasonably believes that failure to do so will result in termination or
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suspension of the work by the consultant or contractor. In such case, District and City reserve all rights
to determine responsibility for the cost through negotiation or dispute resolution.
5.2.4. Take such actions as City deems reasonable and necessary during an
emergency and inform the Executive Committee at the soonest practical time.
5.2.5. Manage and conduct all day to day business affairs in the prosecution of the
Project including, but not limited to, planning, permitting, contract management, payment of invoices,
accounting, budgeting, maintenance of records and all other matters to complete the Project.
5.2.6. Retain counsel and experts to prosecute, defend and compromise any and all
claims that may arise during the Project,with approval from the Executive Committee. Settlement and
compromise of claims that result in an increase in a Party's share of the contract price by less than
$250,000 may be approved by the Executive Committee. The governing body of the affected Party shall
approve any settlement that causes an increase in its costs of more than $250,000 of the contract price.
If District does not approve,the City may make such settlement decisions as it deems appropriate in the
exercise of its discretion and in accordance with this Agreement (including but not limited to Article II).
The Parties reserve all rights to resolve issues regarding responsibility for payment through the Dispute
Resolution process.
5.2.7. In the exercise of the Managing Agency functions, the Project Manager shall
coordinate with the Project Representative so that the District has a reasonable opportunity to review
proposed methods of contracting, requests for proposals, contracts, value engineering, designs, permit
applications and costs. As design and construction proceeds,the Project Manager shall coordinate with
the Project Representative so that the District is regularly apprised of progress through periodic
briefings or reports appropriate to the type of work; availability of project records; periodic financial
reports (not less than quarterly); opportunity for attendance at consultant or contractor meetings;
opportunity for review of invoices and progress payment requests along with supporting documentation
if requested; review and comment on amendments or change orders; and review and participation in
financial forecasting and budgeting to assure funding is available when needed for the Project.
5.2.8. Retain consultants and provide staff for public communications and outreach,
including response to public information, media or records requests. Public communications and
outreach shall be jointly reviewed and approved. The Project Manager and Project Representatives shall
develop protocols for communications and outreach.
5.2.9. Identify,track and report on key performance indicators for the Project.
5.3 Finance, Budgeting and Accounting.
5.3.1 Prior and Current Year Expenditures. The Parties have agreed to equally share all direct
costs incurred to date under the MOU incurred during the 2020-21 fiscal year and including cost
incurred by the District for site analysis, market analysis, operational performa, and design work in the
amount of$334,150.75. Upon execution of this Agreement with the retroactive effective date of July 9,
2020,the MOU shall be of no further effect. Within 30 days, City shall provide an accounting of all
amounts spent to date. By July 30, 2021,the City shall determine final expenditures for the 20-21 fiscal
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year and provide documentation so that each has paid its one-half share of the Project costs to date. If
payment is due, it will be paid no later than September 15, 2021. If there is a surplus, the amount will
be retained in the Project Account and applied to the 2021-22 fiscal year expenditures.
5.3.2 Fiscal Year 2021-22 and Thereafter. The City shall prepare a work plan and budget for
the Project based upon anticipated Project costs, including a ten percent (10%) contingency factor,for
fiscal year 2021-22 and each Fiscal Year thereafter until the Project is complete. The draft budget shall
be prepared by the City and distributed to the District by March 1st for preliminary budget planning by
each Party. The Project Manager and Project Representative shall meet as necessary to prepare the
final draft budget to be distributed to the Oversight Committee by April 1st. The final budget and
appropriation for the Party's proportionate share must receive approval by each Party prior to June 30.
5.3.3. Books and Accounts. The City shall maintain budget control procedures in accordance
with Oregon budget law and generally accepted accounting principles. Within 30 days of the close of
each quarter,the City shall provide a report tracking expenditures and receipts by budget item through
the last working day of the quarter.
5.3.4 Finances.
5.3.4.1. By July 15, 2021 and on July 15 of each year thereafter until the Project is
complete, each Party shall pay and deposit the share of expenditures as budgeted and appropriated for
that fiscal year into the Project Account. The City shall maintain the Project Account and only use it for
the Project. Interest that accrues on the account shall be credited equally to each Party.
5.3.4.2. The City shall draw on the account as necessary to pay consultant, contractor
and other Project expenses as provided in Section 4.6. The City shall provide Project Account activity
and tracking of expenditures in relation to the fiscal year budget as part of the quarterly reporting in
section 5.3.3.
5.3.4.3. If it appears that actual expenditures for the fiscal year will be more than the
amount in the Project Account, each Party shall undertake all steps necessary appropriate and pay its
proportionate share to the Project Account within the current fiscal year to avoid a deficit and so that all
amounts incurred for the Project are paid timely. If it appears there will be a surplus in the Project
Account at the end of the fiscal year, the surplus shall be carried over and applied in the subsequent
fiscal year until Project Completion. Upon Project Completion,the City shall conduct final Project
Closeout and true up all expenditures to determine the final shares of the Parties and apply the Project
Account accordingly. Any surplus funds in the Project Account after Project Closeout shall be remitted
to each Party equally. If there is no surplus in the Project Account and money is owing from a Party,the
amount shall be determined and paid within 30 days of invoice.
5.3.4.4. Each Party has approved funding authorized for this Project. Each Party
covenants that it shall use that authority as necessary to fund its proportionate share of this Project.
Nothing herein prevents a Party from using any available resources in whole or in part for the Project.
Each Party covenants to undertake all steps necessary to provide funds in a timely manner, exercise
such authority as necessary, obtain funding commitments, and execute such bonds, indentures, or other
credit facility documents as required in order to have necessary funds available and deposited in the
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Project Account for any fiscal year.The Parties agree to provide reports on the status of any financing
efforts to the other.
5.4. Asset Management Manual.
As part of final completion of the Project, SEA and contractor shall provide the City an Asset
Management Manual that includes, among other things, warranty information and operating manuals;
an initial inventory of all assets of the Project and the condition thereof; an asset management and
operation plan and an estimated schedule for repair and replacement. The Parties shall also jointly
develop the current value of the assets based upon a replacement cost basis along with estimates of
cost for repair and replacement according to the forecasted schedule for same as an initial task under
the Aquatic Center Use and Lease Agreement.
5.5 Audit, Record Keeping and Access to Records.
5.5.1. The City shall cause an annual audit to be conducted pursuant to the requirement of ORS
297.405 to 297.555, as applicable. The City shall maintain its books and records in such manner that the
Project assets and expenditures related thereto are separately stated and capable of review without
being combined or mixed with other City assets.
5.5.2. The City shall maintain all fiscal records relating to the Project in accordance with
generally accepted accounting principles. In addition,the City shall maintain the records in a manner to
document the City's performance hereunder. All such fiscal records, books, documents, papers, plans
and writings shall be retained by the City according to records retention protocols adopted by the City
and kept accessible as required by law.
5.5.3. The City agrees that the District and its authorized representatives shall have reasonable
access during regular business hours to all books, documents, papers and records of the City which are
directly related to the Project for the purpose of making any audit, examination, copies, excerpts and
transcripts.
5.6 Executive Committee.
The Executive Committee shall consist of 6 people.The Governing Body of each Party shall
appoint one person from its membership to the Executive Committee. Those members shall serve at
the pleasure of the appointing governing body.The remaining members of the Executive Committee
shall consist of the District's Executive Director of Project Management,the District Superintendent,the
City Manager and the City's Park and Recreation Director.The Committee shall meet as deemed
necessary by the City, but not less often than quarterly, to review the Project and provide advice or
recommendations to the Project Manager as requested and make decisions as provided in this
Agreement.The Executive Committee members from each Party shall be responsible to keep their
governing body apprised of the Project and to provide timely decisions where required. The Executive
Committee may approve amendments to the Exhibits to this Agreement; change orders or other
expenditure of any contingency fund that is within the approved budget without necessity of governing
body approval as provided in Sections 5.2.3 and 5.2.6; and non-material amendments to the Project
scope of work. The Executive Committee shall work in good faith to make recommendations or
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decisions by a majority. If a majority decision on a change order or expenditure cannot be made,the
decision shall be deemed a "no" position requiring governing body approval to proceed except as
otherwise provided in this Agreement.
5.7 Governing Body Decisions.
Approval by the governing body of a Party is required for:
5.7.1. The annual budget and appropriations for a Party's share of costs.
5.7.2. Any non-emergency expenditure by the Managing Agency that was not
previously approved and budgeted or that exceeds the Managing Agency's authority under City
purchasing rules to make the expenditure without approval of the City Council.
5.7.3. Amendment to the Project scope of work resulting in material change.
5.7.4. Amendment of this Agreement.
5.7.5. Approval of any change order or contract amendment with a contractor or
consultant that increases a Party's share of costs by more than $250,000.
5.7.6. Dissolution of this Agreement or abandonment of the Project.
5.8 No Partnership or Joint Venture.
5.8.1. The Parties intend that nothing in this Agreement will constitute or be constituted as an
employment, partnership,joint venture or other joint employer relationship between the Parties. Each
Party shall be the sole employer of its employees and shall be solely responsible for its employees and
volunteers who shall at all times be under the Party Employer's direction and control.
5.8.2. Each Party shall be responsible to pay or withhold as required, all taxes, contributions
and other amounts levied or imposed by federal, state, regional, county or City governments applicable
to its employees related to this Agreement.
5.8.3. Neither Party will take or allow any action in the name of the other Party or bind, or
purport to bind,the other Party without the express written consent of the other Party.
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ARTICLE VI
OWNERSHIP OF FACILITIES AND RIGHTS OF USE
6.1. Real Property.
City owns the real property on which the Project will be constructed and shall always retain sole
ownership, subject to District's lease and rights of use to the Facilities and area as described on Exhibit 1
and as more specifically set forth in the Aquatic Center Use and Lease Agreement. Notwithstanding the
foregoing,the Competition Pool shall be owned jointly by the City and the District, with each party
owning an undivided 50% interest in the Competition Pool. So long as this Agreement is in effect,the
City shall not sell,transfer, lease, exchange or make other disposition of the real property except to
another local government who agrees to be bound by all terms and obligations of this Agreement. City
may mortgage, pledge, encumber or refinance the real property if that is necessary for the City to
perform its obligations and complete the Project.
6.2 Improvements.
Upon completion of the Project,the Facilities so constructed shall be owned by the City subject
to (1)the District's undivided fifty percent (50%) ownership interest in the Competition Pool and (2)the
District's right of use for the initial term and any renewal terms as set forth in the Aquatic Center Use
and Lease Agreement and so long as the Aquatic Center Use and Lease Agreement is not in default.
6.3 Abandonment.
If the Project is not constructed or the Parties decide to abandon construction,then the Parties
shall proceed to wind up the Project and pay all sums owing for work performed to the date of
termination. Wind up and the date of termination shall mean any and all efforts to cease work,
demolish work and restore the site to its pre-existing condition (unless the Parties agree otherwise) and
secure the site in a safe manner, as well as such terms provided in any contract with a consultant or
contractor. Upon abandonment, District shall have no further right of use of City real property or any
improvements.
ARTICLE VII
INDEMNITY
To the extent permitted by the Oregon Constitution, each Party agrees to indemnify and hold
harmless the other Party, its governing body, employees and agents, from any and all claims, demands,
damages, actions, losses, expenses and costs, including attorney fees, arising out, and to the extent of,
the indemnifying party's acts or omissions of action under the Agreement.
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ARTICLE VIII
TERMINATION AND WITHDRAWAL
8.1 Prior to Receipt of Proposals.
Prior to receipt of proposals from contractors to construct the Project, either Party may
terminate this agreement by written notice to the other, at which point all activities shall cease, invoices
for services rendered by any consultant to the date of termination shall be paid and final action to wind
up the Project shall occur.
8.2 Prior to Contract Award.
The total maximum cost for the Project, including but not limited to, design, engineering,
permitting, construction (including a ten percent [10%] percent contingency) and commissioning is
$30,000,000.
If the proposal for construction results in the total maximum cost of the Project of$30,000,000
or less, City shall notify the District as to whether it intends to award the contract. If the City intends to
proceed,then within 7 days of that notification, District may provide written notice that it will not
participate, at which point this Agreement shall terminate.
If the total maximum cost of the Project based on the cost proposal for construction exceeds
$30,000,000,the parties shall proceed as provided in Section 4.4. Following that analysis, if the parties
cannot agree on reductions to the Project to result in a reduced Project with a base (adjusted) Contract
Cost of less than $30,000,000,this Agreement shall terminate. If terminated,the Agreement shall cease
and the Project wound up as provided in Section 8.1.
8.3 Post Contract Award.
Upon commencement of construction after contract award, unless the Parties mutually agree
otherwise,this Agreement may only be terminated for material breach of the provisions of this
Agreement or non-appropriation of funds.
8.4 Withdrawal.
A Party may request that it be allowed to withdraw from this Agreement at any time.
Thereupon,the Parties shall attempt in good faith to negotiate mutually agreeable withdrawal terms
which shall be reduced to writing and approved by the governing bodies. If withdrawal is not agreed
upon, then this Agreement and all rights and obligations of the Parties shall continue.
8.5 Default and For Cause Termination.
8.5.1 Default and Notice. The violation of any provision of this Agreement or the failure of a
Party to perform any duty imposed upon it by this Agreement shall constitute a default. The non-
defaulting Party shall give the defaulting Party written notice specifying the reasons and setting a date
for cure. In the case of nonpayment,the cure period shall be 15 days from the date of notice. For all
other events,the cure date shall be not sooner than 30 days from the date of notice.
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8.5.2 Opportunity to Cure. If the default is cured within the cure period of Section 8.5.1, or if
the failure (other than failure to make payment) is one that cannot be corrected within the cure period
and the defaulting Party presents a plan of cure and commences and continues to correct the default
with reasonable diligence until completed, the notice of default shall be suspended. If not cured or
correction is not undertaken,the non-defaulting Party may pursue rights and remedies under this
Agreement.
8.5.3 Rights Upon Default. The non-defaulting party may pursue any legal or equitable
remedy available under Oregon law, including among other remedies,termination of the agreement,
damages, declaratory judgment, injunction to compel specific performance of the obligations hereunder
and compelling immediate deposit of all funds required from the defaulting Party to complete the
Project.
8.6 Dissolution.
This Agreement may be dissolved by mutual agreement of the governing bodies. Upon
agreement to dissolve,the Parties shall develop a Dissolution Plan and schedule to wind down and
cease efforts for the Project. Unless otherwise provided in the Dissolution Plan, dissolution shall be
effective only after all outstanding debts and obligations have been paid or provision for payment is
made.
ARTICLE IX
DISPUTE RESOLUTION
9.1. Dispute Resolution.
This Agreement obligates the Parties to cooperate in good faith to achieve the mutual benefit of
the Project. Each Party agrees to bring forward issues regarding past performance or anticipated
performance of obligations and duties at the earliest reasonable opportunity so that the Parties can
work toward solutions in an attempt to avoid a formal declaration of default. The Dispute Resolution
process is provided to encourage solutions at the earliest stage through negotiation.
The Parties hereby agree that any and all disputes or claims arising under this Agreement shall
be resolved through this Dispute Resolution process. Disputes should be resolved by the Project
Manager and Project Representative or the Oversight Committee. If that fails,then the dispute shall be
put in writing and this Dispute Resolution process shall be followed as a condition precedent to any
arbitration. The Parties may waive the steps of the Dispute Resolution process by mutual consent.
9.2 Step One: Negotiation.
Upon receipt of the written dispute,the City Manager and the District Superintendent, or their
designees, shall meet and attempt to resolve the issue within 30 days. Resolution of the dispute shall be
in writing and signed by the City Manager and District Superintendent and ratified by the governing
bodies.
Intergovernmental Agreement Between City of Lake Oswego and Lake Oswego School District-
Recreation and Aquatics Center Construction Agreement 16
113157845.3 0060568-00003
9.3 Step Two: Non-Binding Mediation.
If the dispute cannot be resolved at Step One within 30 days after notice is given,the Parties
shall submit the matter to non-binding mediation in accordance with ORS Chapter 36. The Parties shall
attempt to agree on a mediator("Neutral"). If they cannot agree then the Parties shall request a list of
five (5) Neutrals from an entity or firm providing mediation services. The Parties shall mutually agree on
a Neutral from the list. Costs of the Neutral shall be equally shared by the Parties; however,the Neutral
may determine a different allocation if the Neutral believes a Party asserted a frivolous position. The
Parties shall make good faith efforts to have the mediation completed within 60 days after selection of
the Neutral. If the dispute is resolved through mediation, it shall be reduced to writing and signed by the
City Manager and the District Superintendent and ratified by the governing bodies.
9.4 Step Three: Mandatory Arbitration.
If, after exhaustion of the foregoing steps,the dispute has not been resolved, then either party
may submit the matter to binding arbitration under the rules and processes of Arbitration Services of
Portland, Oregon, Inc. (or other mutually agreed arbitration service) ("ASP"). Each Party shall select an
arbitrator from the ASP list and then shall agree on the appointment of the third. All costs of the
arbitrators and costs of the proceedings shall be borne equally; however,the Arbitrators may determine
a different allocation if they find a Party asserted a frivolous position. The decision of the panel shall be
binding and may be enforced by entry of the award as a judgment. Nothing herein shall prevent the
Parties from varying the number of arbitrators, conduct of the arbitration or other matters by mutual
agreement reduced to writing.
9.5 Legal Fees and Costs.
Each Party shall bear its own legal fees and expert witness fees at all stages of the dispute
resolution process.
ARTICLE X
NOTICES
Any notice required or permitted to be given under this Agreement shall be given in writing and
effective when received by hand delivery, electronic means or by first class United States mail, postage
prepaid, addressed to the Parties as set forth below. The Parties shall notify the other of any change of
address or title for receipt of notices under this Agreement.
If to City: City of Lake Oswego
Attn: City Manager
PO Box 369
380 A Avenue
Lake Oswego, Or 97034
Intergovernmental Agreement Between City of Lake Oswego and Lake Oswego School District-
Recreation and Aquatics Center Construction Agreement 17
113157845.3 0060568-00003
With a copy to: City of Lake Oswego
Attn: City Attorney
PO Box 369
380 A Avenue
Lake Oswego, Or 97034
If to District: Superintendent
Lake Oswego School District
PO Box 70
2455 Country Club Road
Lake Oswego, Or 97034
With a copy to: Assistant Superintendent of Business Services
Lake Oswego School District
PO Box 70
2455 Country Club Road
Lake Oswego, Or 97034
ARTICLE XI
GENERAL PROVISIONS
11.1 Entire Agreement.
This Agreement embodies the entire agreement and understanding of the Parties and
supersedes all previous agreements and understandings relating to the Project, except as provided
herein.
11.2 Amendments and Modifications.
This Agreement may only be modified in writing signed by each Party following approval by the
Governing Body. Upon recommendation of the City Manager and District Superintendent, the Executive
Committee may amend the Exhibits to this Agreement without Governing Body approval and such
amendments will be effective upon execution by the City Manager and District Superintendent.
11.3 Non-Waiver.
Failure of a Party at any time to require performance of any provision of this Agreement shall
not limit the Party's right to enforce the provision, nor shall any waiver of any breach of any provision be
a waiver of any succeeding breach of the provision or a waiver of the provision itself or any other
provision.
Intergovernmental Agreement Between City of Lake Oswego and Lake Oswego School District-
Recreation and Aquatics Center Construction Agreement 18
113157845.3 0060568-00003
11.4 Time is of the Essence.
Time is of the essence of each and every term, covenant, and condition set forth in this
Agreement.
11.5 Assignment, Sale or Transfer.
The City may assign, sell or transfer any interest in this Agreement or the Project to a local
government entity who agrees to be bound by all terms and conditions of this Agreement. Otherwise,
no Party may assign, sell or transfer any interest in the Agreement or the Project without the prior
written consent of the other Party, which it may withhold without cause, and any act purporting to do
so shall be void.
11.6 Severability.
If one or more provisions contained in this Agreement is ruled invalid, illegal or unenforceable in
any respect,the remaining provisions of the Agreement shall be valid, legal and enforceable and not
affected or impaired.
11.7 Counterparts.
This Agreement may be executed in any number of counterparts which shall constitute a binding
agreement between the Parties. Electronic signatures are acceptable.
11.8 Headings.
The Article, section and subsection headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
11.9 Force Majeure.
No Party shall be considered in default in the performance of its obligations under this
Agreement to the extent that the performance of any such obligation is prevented or delayed by any
cause beyond the reasonable control of the affected Party, including, but not limited to, Acts of God,
earthquake, labor disputes, civil unrest,war, pandemic, events beyond the reasonable control of the
Parties, such as regulatory restrictions or requirements, permit issuance and the like. In the event a
Party claims that performance of its obligations was or will be prevented or delayed by any such cause,
that Party shall promptly notify the other Party of that event and the how it prevents or delays
performance. The Party so claiming a cause of delayed performance shall endeavor to the extent
reasonable to remove the obstacle and resume performance at the earliest possible time.
11.10 Survival of Covenants.
Any provision of this Agreement which, by its terms has or may have application after the
expiration or earlier termination of this Agreement, including covenants, agreements and warranties,
shall be deemed to the extent of such application to survive the expiration of this Agreement.
Intergovernmental Agreement Between City of Lake Oswego and Lake Oswego School District-
Recreation and Aquatics Center Construction Agreement 19
113157845.3 0060568-00003
11.11 No Third Party Beneficiaries.
The Parties hereto are the only Parties to this Agreement and the only persons or entities
entitled to enforce its terms.
11.12 Exhibits.
The following Exhibits are attached to and incorporated into this Agreement:
• Exhibit 1: $30,000,000 base concept
CITY OF LAKE OSWEGO LAKE OSWEGO SCHOOL DISTRICT
An Oregon municipal corporation Clackamas County School District No. 7)
Mayor Chair
Date Date
City Recorder Attest:
Approved as to Form Approved as to Form
City Attorney District Legal Counsel
Intergovernmental Agreement Between City of Lake Oswego and Lake Oswego School District-
Recreation and Aquatics Center Construction Agreement 20
113157845.3 0060568-00003
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ATTACHMENT 2
CITY COUNCIL REGULAR MEETING
rrA
MINUTES
July 6, 2021
aREGO�
1. CALL TO ORDER
Mayor Buck called the regular City Council meeting to order at 5:32 p.m. on July 6, 2021.
The meeting was held both virtually via Zoom and in-person.
2. ROLL CALL
Present: Mayor Buck and Councilors Rapf, Mboup (attending remotely), Manz,
Nguyen, Wendland, Verdick
Staff Present: Megan Phelan, Assistant City Manager; Jason Loos, City Attorney; Kari
Linder, City Recorder; Ivan Anderholm, Parks Director; Paul Espe,
Associate Planner
Others Present: Paul Soper, Sustainability Advisory Board; Malcolm Mathes, Meals on
Wheels
3. PLEDGE OF ALLEGIANCE
Mayor Buck led the Pledge of Allegiance.
4. PUBLIC COMMENT
• Tom Horman, 1660 Campus Way, Lake Oswego
Mr. Horman spoke to his concerns regarding wildfire preparedness. He had sent the Councilors
handouts electronically with links to valuable reference material. The first link was to a 2017 report
provided to the City which made it clear that several neighborhoods needed to have their risk of
wildfire addressed as a high priority and noted that all were lacking in defensible space. He urged
the Council to take action to reduce its liabilities and allow residents to reduce their risk to the
impacts of wildfire. Councilor Manz received confirmation that the risk spreadsheet was part of
the 2017 report and had not been created by Mr. Horman.
• Carol Ockert, 910 Cumberland Rd, Lake Oswego
Ms. Ockert stated she was speaking tonight as Chair of the Neighborhood Chairs Committee of
Lake Oswego, who requested the inclusion of neighborhood associations (NAs) on the City
City Council Meeting Minutes Page 1 of 7
July 6, 2021
Council check sheet. This sheet was included in many of the document packets for Council review
and had a box to check if a recommendation was given on an issue by a relevant body. NAs are
officially recognized by the City and should be represented on the sheet to provide relevant or
helpful information for Council's decision making.
4.1 PRIOR PUBLIC COMMENT FOLLOW-UP
None was offered.
5. PRESENTATIONS
5.1 Distinguished Service Award: Paul Soper of the Sustainability Advisory Board
Mayor Buck described Mr. Soper's service on the Sustainability Advisory Board (SAB),
highlighting the volunteer work he has done to drive progress on sustainability for the city. That
work included shepherding green building standards for operations and maintenance of the new
City Hall building, the strict plastic bag ordinance, advocating for electric vehicle transportation,
and creation of the city's Climate Action Plan. He then presented Mr. Soper with the Distinguished
Service Award with thanks to him and his family.
5.2 Meals on Wheels Board Donation
Malcolm Mathis, President, Lake Oswego Meals on Wheels, gave recognition to the Meals on
Wheels' Board members present and to the leadership of the Adult Community Center(ACC)who
also offered meals and other support to seniors and disabled residents. He described what Meals
on Wheels did for the community, noting the COVID-19 pandemic had a major impact on the
program and its partners in 2020. He expressed his thanks to Mayor Buck and the Council, for
their support, and detailed the donations received by local citizens, businesses, non-profits, and
other groups. On behalf of the Meals on Wheels Board Members, the staff of the ACC, and
volunteers, he presented a check to Mayor Buck for $88,778 to cover the entire deficit for 2020
for Meals on Wheels.
5.3 Proclamation — Parks & Recreation Month
Mayor Buck read the Proclamation, declaring July 2021 as Parks & Recreation Month in the City
of Lake Oswego, and thanked the Parks Department for its work.
6. PUBLIC HEARING
6.1 Ordinance 2871, Annexing Property at 5918 Seville and the Public Right of Way(AN
21-0001).
Jason Loos, City Attorney, read the parameters for the public hearing.
Paul Espe, Associate Planner, noted a piece of testimony had just been received from Joseph
D. Perry in opposition to the annexation due to concerns that the adjacent property would be an
island, and about the requirement to connect to City services that were more expensive than
City Council Meeting Minutes Page 2 of 7
July 6, 2021
those provided by the County. Mr. Espe noted ORS 222.750 detailed the circumstances where
unincorporated territory could be annexed by the City, and further explained the statute's
applicability to the subject property. He had determined that the property would not qualify as an
island based on the requirements in the statute. He then presented the Council Report, detailing
the zoning, size, public utilities hookups, and future roadway improvements. The applicant would
need to file for a tree removal application permit if they wanted to remove the Douglas fir on the
right-of-way (ROW), which might be necessary depending upon from where the sewer line was
run, though possibilities could be explored to save the tree. Staff found the annexation to be timely
in regard to the public facilities and recommended approval.
Councilor Rapf received confirmation that the area indicated in red and labeled "ROW" and the
area where the Douglas fir was located were public land. Based on past experiences, he inquired
about the possibility of the owner wanting the tree removed and pursuing annexation for that
reason. Mr. Espe clarified the annexation would not affect the tree, but once the property was
annexed, the owner could apply for a permit to remove the tree and extend the sewer.
Mayor Buck opened the public hearing, confirmed there was no public testimony, and closed the
public hearing.
Councilor Wendland moved to enact Ordinance 2871. Councilor Manz seconded the
motion.
A roll call vote was held, and the motion passed, with Mayor Buck and Councilors Rapf,
Manz, Nguyen, Wendland, and Verdick voting `aye'. (6-0). Councilor Mboup had technical
difficulty due to being remote.
7. STUDY SESSION
7.1 Recreation and Aquatics Center Funding Strategy
Ivan Anderholm, Parks and Recreation Director, presented the Council Report, explaining that
the study session would be based on Council's direction to staff at the last meeting to recommend
a strategy for Funding Option #3 for the Recreation and Aquatic Center (RAC). Staff created a
strategy in consultation with Finance Director Sean Cross that met the requirements of the City
Council's Finance Policy to spend the most restricted funds first. The funding plan addressed how
to bring the City's funding for the RAC up to $22 million. Funding from the Lake Oswego School
District (LOSD)would remain at$15 million; with the total meeting the $37 million anticipated cost
at the concept schematic design level. He detailed the budgetary sources for funding, noting it
would reduce the availability of Parks Bonds to Council approved Parks projects. The proposed
strategy allowed Council the greatest flexibility with the Capital Reserve Fund for other lower-
priority park projects or other capital projects that were more important to the City.
Councilor Manz received confirmation that staff's recommendation was very similar to what was
discussed at the Parks and Recreation Board (PRAB) meeting. However, the fundamental
difference was that the PRAB was seeking to dedicate the Capital Reserve toward the project,
and to still have Park Bond dollars available for other projects on the list. Mr. Anderholm believed
that would still be possible if Council chose to do so. The balance of the Park Bond was $3.3
City Council Meeting Minutes Page 3 of 7
July 6, 2021
million; if the acquisition of trails and the Luscher Farm parking access projects were allowed
funding, the remainder of Parks Bond would be $800,000 that could be dedicated to projects of
lower priority. The PRAB had also prioritized additional Luscher Farm projects. In response to a
request for clarification from Councilor Manz, he noted that the PRAB's recommendation for the
Parks Bond funding amount remained the same. The recommendation for trail acquisition also
had dollars coming from system development charges (SDCs) and recommended what the City's
local share from the recently-passed Metro Bond should be. Mayor Buck approved of the strategy
and its flexibility. The $800,000 remaining balance in bond funding combined with a portion of the
$1.8 million in reserves could fund Items 3 and 4 on the Parks Bond projects list, though perhaps
not Tryon Creek Cove, though that project was currently on hold. Councilor Wendland also
approved of the strategy and explained use of the City's SDC funds were limited because the city
was not growing, but the RAC was one of the eligible projects that would work well for such funds.
He asked for clarification on the discussions concerning exceeding the $30 million proposed for
the RAC budge, due to expectations beyond what was needed by LOSD. The City needed a place
for the Parks and Recreation Department and more gym space which had not been originally
included. While some might state the City was over budget, he would say the City was realistic
with the expectations of the community feedback as well as the measured and good thinking of
Council and the PRAB regarding the RAC project. The $30 million was never intended to be a
finite budget, but rather a target, and only $14.8 million from the Parks Bond would be used, and
one view could be that the City was $200,000 under the bond budget. Mayor Buck agreed with
his point, noting that when the $30 million cost was discussed; no design or engineering plans
had been available. The numbers were more reliable now.
Mr. Anderholm confirmed he had received the needed direction from Council.
8. COUNCIL BUSINESS
8.1 Verification of Filing Initiative Measure 2020IN-1
Kari Linder, City Recorder and Elections Officer, updated on this agenda item to amend
Chapter 10 of the Lake Oswego Charter to enhance protection of the city's natural areas. She
detailed the events leading to the initiative's qualification for the ballot for the general election on
November 2, 2021.
Mayor Buck referred to Council's discussion at its last meeting regarding putting forth a
competing measure. He acknowledged the effort put into the initiative petition, but believed it was
also important to recognize Council's duty to ensure that what went before the voters, especially
an issue that carried the weight of being part of the City Charter, was a community agreement
that fostered the continuation of the decades-long care and stewardship of the city's natural areas.
The initiative would amend City Charter Chapter 10 to add more properties to the language that
was passed in the 1970s regarding Springbrook Park. However, the way parks were maintained
and cared for changed over time as the community grew, and that made access and connection
necessary. The Council could take the original initiative and make it better through a competing
initiative and also ensure that it worked with the friends groups and community members to care
for the parks. The City proposed Charter amendment would ensure that it was meeting the
community goals of preservation and was doing its duty to the beloved areas by facilitating the
access that fostered a continued connection and care that ensured their long-term health.
City Council Meeting Minutes Page 4 of 7
July 6, 2021
Community members had also expressed support for the City's effort in the competing measure
and would be working on campaigning on its behalf.
Mr. Loos confirmed in a response to Councilor Wendland that the initiative would automatically
be placed on the ballot because it proposed to change the City Charter, and that Council did not
have the options related to a typical initiative.
8.2 Resolution 21-23, Receiving and Filing Initiative Measure 2020IN-1 to Amend
Chapter X of the Lake Oswego Charter to Enhance Protection of the City's Natural
Areas.
Councilor Wendland moved to adopt Resolution 21-23. Councilor Rapf seconded the
motion.
A voice vote was held, and the motion passed, with Mayor Buck and Councilors Rapf,
Mboup, Manz, Nguyen, Wendland, and Verdick voting `aye'. (7-0)
Mayor Buck noted Council would have a special meeting in August to discuss and refer the City's
competing measure.
9. CONSENT AGENDA— Full Council
9. 1 Fosberg Road Drainage Improvement Contract Award (WO 288)
9.2 Resolution 21-24, Revising 2021 Master Fees and Charges for a Street Fee
Typographical Error
Councilor Manz moved to adopt the Consent Agenda. Councilor Wendland seconded the
motion.
A voice vote was held, and the motion passed, with Mayor Buck and Councilors Rapf,
Mboup, Manz, Nguyen, Wendland, and Verdick voting `aye'. (7-0)
10. ITEMS REMOVED FROM THE CONSENT AGENDA
No items were removed from the Consent Agenda
11. CONSENT AGENDA— Councilors Only
11.1 Resolution 21-08, A Resolution of the City Councilors of the City of Lake Oswego
Approving Appointments to the Development Review Commission, Sustainability
Advisory Board, Planning Commission, Historic Resources Advisory Board,
Library Advisory Board, Transportation Advisory Board, Parks Board, 50+Advisory
Board, Tourism Advisory Committee, Budget Committee, and the Diversity, Equity
and Inclusion Advisory Board
City Council Meeting Minutes Page 5 of 7
July 6, 2021
Mayor Buck stated 115 interviews had been conducted of members to serve on boards and
committees. He expressed his thanks to Council and the community members who applied and
stepped forward to serve the city.
Councilor Nguyen moved to adopt Resolution 21-08. Councilor Verdick seconded the
motion.
A voice vote was held, and the motion passed, with Mayor Buck and Councilors Rapf,
Mboup, Manz, Nguyen, Wendland, and Verdick voting `aye'. (7-0)
12. INFORMATION FROM COUNCIL
Councilor Manz reported the PRAB supported moving forward with the Bond allocation as noted
earlier in the meeting. She personally thanked the citizens of Lake Oswego for their work to avoid
causing fires over the holiday weekend. An excellent job keeping safe was done by everyone.
Councilor Verdick acknowledged Jenny Slepian, Sustainability and Management Analyst, who
would be moving on from her position. As liaison to the SAB, she had served the City well in
helping it become more sustainable.
Mayor Buck reported that Metro had been looking to re-site the Metro South Transfer Station for
quite a while, and was discussing whether to move the entire facility including the portion for public
disposals and the portion for disposal by garbage trucks. A site had been identified outside of
Oregon City, and the robust public-engagement process was in progress on whether to move the
transfer station there.
• The County was collecting vehicle registration fees, which were split 60 percent to the County
and 40 percent to the City, and 10 percent of the County's portion was placed into the Strategic
Investment Fund for road transfers and improvements to County roads. The report noted 20
roads needing work within the City's urban services area, but only a few hundred thousand
dollars was assigned.
• Information from the Metro Policy Advisory Committee (MPAC) included resilient building
runways. Portland International Airport was working on the design of a resilient runway that
could withstand a 9.0 magnitude or higher earthquake. They were now seeking the funding
that would enable items like emergency supplies to come into the region in the event of a
catastrophic earthquake. Also discussed was affordable housing in the region, with
information provided by various affordable housing and other housing developers on what
was working well and what could work better for funding.
Mr. Anderholm updated on Parks Department events, stating now that the Oregon Health
Authority (OHA) restrictions had been lifted, the Parks Department was considering options this
summer to possibly hold some community-wide free events with no restrictions. The number of
events would be pared down compared to previous years. He hoped to announce the details to
the public in the next two weeks or so. A movie and concert at Luscher Farm had been planned
for this summer. The Picnic in the Park program had received a tremendous response, and those
community members who enjoyed it would be polled on the possibility of continuing the event into
the future.
City Council Meeting Minutes Page 6 of 7
July 6, 2021
13. REPORTS OF OFFICERS
There were no reports provided.
14. EXECUTIVE SESSION: The Lake Oswego City Council will meet under authority od
ORS 192.660 (2)(e)Consider deliberations with persons designated to negotiate real
property transactions and (f) Consider records that are exempt by law from public
inspection.
City Attorney Loos read the parameters of the Executive Session.
Mayor Buck called for a brief recess, and Council took a break from 6:34 p.m. till 6:41 p.m.
Council met in Executive Session from 6:42 p.m. till 7:04 p.m.
15. ADJOURNMENT
Mayor Buck adjourned the meeting at 7:04 p.m.
Respectfully submitted,
plifiti,51.kitaile____)
Kari Linder, City Recorder
Approved by the City Council on September 9, 2021
Joseph M. Buck, Mayor
City Council Meeting Minutes Page 7 of 7
July 6, 2021
Triplett Wellman Inc. ATTACHMENT 3
Lake Oswego Recreation&Aquatic Center
BASE BID ALTERNATE#1 ADD-Acoustic ALTERNATE#2 DEDUCT-Remove ALTERNATE#3 DEDUCT-Remove ALTERNATE#4 ADD-Provide ALTERNATE tt5 ADD-Pool Stucco
Steel Decking at Natatorium& Sonaspray&K-13 Acoustic Spray Duct Silencers&Duct Lining at Additional PV Array System @ PEMB Walls
11/17/2 2 Acoustic Panels at Weight/Cardio Room Building Mechanical Systems
100 BUILDING PERMITS OWNER
120 BUILDERS RISK INSURANCE 269,860
130 POLLUTION LIABILITY INSURANCE 16,480
145 MOCKUP 10,300
150 DEFERRED SUBMITTALS 9,373
170 TRAFFIC CONTROL 20,600
240 BIM 30,900
250 FINAL CLEANING 28,732
1000 GENERAL CONDITIONS 1,244,702
1030 FIELD ENGINEERING 41,664
3200 BLDG REBAR 150,259
3205 MASONRY REBAR 24,838
3300 SITE CONCRETE&REBAR 1,118,759
3320 BUILDING CONCRETE 1,247,792
3322 TRENCH DRAINS 53,914
3330 CRETESEAL 20,600
3351 POLISHED&SEALED CONCRETE 32,471
4220 MASONRY 461,154
5120 STRUCTURAL STEEL 412,065
5310 STEEL DECKING/MTL FAB/STAIRS/RAILS 94,830 625,926
5800 STEEL ERECTION 198,582
6100 ROUGH CARPENTRY/SHEATHING/GLB/TRUSS 1,158,235
6101 MISC.CARPENTRY 249,525
6200 FINISH CARPENTRY 47,895
6411 CASEWORK/ARCH WW/COUNTERS 188,897
7111 BITUMINOUS DAMPPROOFING 45,279
7170 BENTONITE WATERPROOFING 14,751
7210 THERMAL INSULATION/F.I.P. 91,910
7250 WEATHER BARRIERS 162,263
7421 METAL WALL PANELS/FLASHING&SM 848,411
7521 SBS MEMBRANE ROOFING 1,591,844 40,000
7720 ROOF HATCHES 4,278
7841 FIRESTOPPING 5,150
7920 JOINT SEALANTS 80,909
7951 EXPANSION JOINT COVERS 285,928
8000 DOOR/HARDWARE-INSTALL 40,003
8111 MTL DOORS/WD DOORS/FRMS/HARDWARE 240,829
8310 ACCESS DOORS 5,150
8332 OVERHEAD/SECT.COILING DOORS 123,752
8411 STOREFRONTS/GLAZING 805,460
8900 LOUVERS 11,375
9221 METAL FRAMING/DRYWALL/ACOUST./FWP 1,111,319 261,000
9251 ACRYLIC PLASTERING - 225,000
9300 TILE 92,387
9646 WOOD ATHLETIC FLOORING 185,027
9650 RESILIENT FLOORING/ATHLETIC/CARPE1 94,934
9830 ACOUSTICAL FINISH SYSTEN 348,655 (50,000)
9900 PAINTING/STAINING/WATER REP/HPC 206,508
10140 SIGNAGE 20,459
10211 TOILET PARTITIONS 30,865
10223 FOLDING PANEL PARTITIONS 24,305
10261 WALL PROTECTION 82,988
10280 TOILET ACCESSORIES 35,020
10440 FIRE EXTINGUISHERS 2,629
10512 PLASTIC LOCKERS 185,299
10750 FLAGPOLES 4,481
11301 RESIDENTIAL APPLIANCES 8,240
11662 GYM EQUIPMENT/DIVIDEF 92,267
11812 FACILITY FALL PROTECTION 23,278
12241 WINDOW SHADES 51,209
13110 SWIMMING POOL CONSTRUCTION/SLIDES 5,071,633
13341 BLEACHERS 20,124
13342 METAL BUILDING SYSTEMS 760,140 (37,000)
13343 METAL BUILDING ERECTION 837,102
21000 FIRE PROTECTION 438,770
22000 PLUMBING/HYD 1,745,418
23000 HVAC/TAB/CONTROLS 2,874,112 86,900 (62,000)
26000 ELECTRICAL/LV/COMMS/DAS/PV 4,841,547
26060 PHOTOVOLTAIC - 384,000
31000 EXCAVATION/EROS CTL/CEMENT TRT/UTII 4,374,019
32121 ASPHALT PAVING 480,907
32172 PAVEMENT MARKINGS 103,515
32311 CHAIN LINK FENCING 132,016
32330 SITE FURNISHINGS 121,379
32840 LANDSCAPING/IRRIGATION/SOILS/MAIN1 772,809
BASE BID ALT #1 ALT #2 ALT #3 ALT #4 ALT #5
45000 TOTAL DIRECT COST 36,663,079 936,826 (50,000) (62,000) 424,000 225,000
47000 RERR.BOND 315,818 27,000 11,000 6,750
48000 LIABILITY INSURANCE 315,880 7 14,000 8,250
100000 TOTAL 37,294,777 992,000 (50,000) (62,000) 449,000 240,000
Bid Number 37,294,777 992,000 (50,000) (62,000) 449,000 240,000
ATTACHMENT 4
o s�
CITY COUNCIL REGULAR MEETING
MINUTES
October 19, 2021
ORFOo�'
1. CALL TO ORDER, CITY COUNCIL
Mayor Buck called the regular City Council meeting to order at 3:01 p.m. on October 19,
2021. The meeting was held both virtually via video conferencing and in-person.
2. ROLL CALL
Present: Mayor Buck, Councilors Rapf, Mboup, Manz, Nguyen, Wendland and
Verdick
Staff Present: Martha Bennett, City Manager; Jason Loos, City Attorney; Dale
Jorgensen, Police Chief; Barb Ripley, Assistant to the Chief; Ivan
Anderholm, Parks Director; Kari Linder, City Recorder
Others Present: Scott Hayes, Oregon Accreditation Alliance; Steven Tuttle, McKenzie
Architects
3. PLEDGE OF ALLEGIANCE
Mayor Buck led the Council in the Pledge of Allegiance.
4. PUBLIC COMMENT
Mayor Buck noted that many written communications were received prior to this meeting and
had been read by Council. He noted that this meeting was a hybrid meeting and some
presenters and members of the public would be joining via Zoom.
• Jeff Gudman
Mr. Gudman said he had created a document showing the past and future infrastructure in the
city and had shared it with Council and staff. He hoped it would assist Council's dialog and its
dialog with the community.
• Jason Murray
Mr. Murray spoke to the development of Rassekh Park and the inclusion of skateboarding in
particular. Lake Oswego was likely the only city in the greater Portland area without a municipal
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October 19, 2021
skatepark, and he asked that skateboarding be considered secondary to the park's primary use
with the understanding other sports were also under consideration. His two young children loved
the independence and creativity of the sport, and having a skatepark would allow them a safe
place to practice. He was happy to offer his expertise, insights, and time in the design phase.
Councilor Manz noted the prior skatepark had been taken down in order to put up a sorely-
needed maintenance center. In her neighborhood, Hallinan St provided a long strip for
skateboarders. She appreciated the camaraderie of the sport and the way it brought people
together. She was aware terrible things were said about skateboarders that were not
necessarily true, and appreciated the reminder that another skatepark was needed.
• Robert Byrd
Mr. Byrd noted a resurgence of skateboarding in the past few years. His son was very
passionate about skateboarding as well as other sports, and he would frequently join his son at
Stronger Skatepark in Milwaukie. However, his two younger children's activities often conflicted
and it would be nice to have a skatepark in Lake Oswego that his older son could use.
Skateboarders currently used areas of the city that were not necessarily compatible with the
sport.
• Sebastian Joyce
Mr. Joyce noted the biased opinions around skateboarding and believed a skatepark would
keep kids off of private properties and offer a place for community building. Benefits to the city
would include hosting summer camps at the skatepark and offering skateboarding competitions.
He believed the city was stuck on building basketball courts, soccer fields, pickleball courts, and
playgrounds but plenty of those existed already and building more would not necessarily be a
benefit. He confirmed skateboarding was now an Olympic sport. He supported being involved in
the design of the skatepark.
Councilor Manz reiterated that she enjoyed the camaraderie among skateboarders and agreed
a lot of the stereotypes were not necessarily true. She appreciated Mr. Joyce's testimony and
agreed the city already had a plethora of other sports.
Councilor Mboup stated his support of skateboarding as a teacher and believed it was a great
sport. He encouraged Mr. Joyce and Mr. Byrd to get involved in the design of the skatepark.
• Lisa Shaw-Ryan
Ms. Shaw-Ryan said she was supportive of the testimony about the skatepark so far. She
appreciated the strong consideration of adding it as a new amenity to another park slated for the
city and the enthusiasm shown for it.
Councilor Rapf said he was fully in support of a skatepark. He noted the emails Council had
received over the last week did not indicate any stereotypes of skateboarders or skating, or any
opposition to a skatepark. He believed Council would agree to building a skatepark in Rassekh
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October 19, 2021
Park and, based on the outpouring of community support, he believed a lot of entrepreneurial
people would love to be a part of building it.
• Rick Cook
Mr. Cook stated three things were necessary for Rassekh Park: An entrance, a parking lot, and
a field. However, certain areas of the park should be protected, including the watershed and the
wildlife corridor where deer had strolled through the vineyard this summer. He recommended
changes to the design that would lessen the impact of noise and lighting on the wildlife that had
nowhere else to go. He believed the dirt pile stored on the Rassekh Park property for many
years was perhaps from the Waluga Junior High School development.
• Randall Yamada
Mr. Yamada stated he was the Stafford area and Community Planning Organization
representative to the Rassekh Park Advisory Committee and was present to speak for the
neighbors of Rassekh Park. Only a small fraction of the requests by the adjacent Atherton,
Palisades and Stafford neighborhood groups had been implemented in the Rassekh Park plan.
He referred to Section 42.03 of the Comprehensive Plan addressing streets and livability. In the
proposal, Atherton Dr was used as a parking access for a multi-sports athletic complex instead
of being limited to circulation from residential lands. Also, no plans were suggested for
improving the adjacent traffic circle on Stafford Rd in conjunction with a park and the new
community center swim facility. He urged Council to review the requests from the Palisades
Neighborhood Association and the Stafford area for the park design, and to read
Comprehensive Plan Goals 1, 5, and 8 about equitable citizen involvement, preservation, and
parks planning. Neighbors of Rassekh Park needed to have city leadership respond to their
concerns.
4.1 PRIOR PUBLIC COMMENT FOLLOW-UP
No prior Public Comment follow-up was provided.
5. PRESENTATION
5.1 Police Department Accreditation
Scott Hayes, Executive Director for the Oregon Accreditation Alliance, presented Police
Chief Jorgensen with the Fifth Award of Accreditation of the Lake Oswego Police Department
(LOPD). He gave a brief history of the Alliance and the accreditation process, noting its purpose
was to establish best practices, accountability, transparency, and to enhance management of
operations. The Lake Oswego Police Department was one of the initial agencies to have joined
the Accreditation Alliance in Oregon.
Dale Jorgenson, Police Chief, recognized Accreditation Manager Barb Ripley for her stellar
work on her first reaccreditation process. He described the significance of the accreditation
process for the community was adhering to best practices in police work and to the changes in
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October 19, 2021
the laws during the last three years in Oregon. It was also necessary to show that the LOPD's
policies were kept up-to-date and followed.
Councilor Mboup expressed interest in reading the 105 standards for accreditation and to
learn where the LOPD scored high and where improvements were needed. Mr. Hayes replied
that the final report would cover the information on how the LOPD met its assessments, would
would be forwarded to Chief Jorgenson, and any areas of concerns could be addressed with the
Chief. All of the Accreditation Alliance's information including the Standards Manual were
available to the public on its website. Chief Jorgenson noted that he and City Manager Bennett
were discussing how some of the accreditation information would be shared, and he would also
present the report to Council in January. Lastly, he noted the report was public currently.
6. STUDY SESSION
6.1 Rassekh Park Project Design Update
Ivan Anderholm, Parks and Recreation Director, provided the background on Rassekh Park
and updated on the project's design process. The park was classified in the Parks Master Plan
2025 as a hybrid park, meaning a portion was sensitive lands and a portion could be developed
for active recreation. The entire sensitive lands overlay of the park and the delineated wetland
would not be touched as part of the project. A traffic impact analysis would be done, and an in-
depth parking study was completed to determine the proper number of parking spaces. An initial
cultural assessment report was done, and an archaeologist had examined the land and would
continue to do so through the initial stages of development. A wetland delineation, a full
arborist's report, a geotechnical report, and a sustainability matrix were also done for the
project.
Steven Tuttle, Landscape Architect, McKenzie Architects, gave an orientation to the
Rassekh Park project site, the progress to date, and the anticipated timeline for the project. He
described the outreach efforts including a project website that went online in April, in-person and
online meetings with the public, and several meetings with the Parks Advisory Committee
(PAC). The focus for the park was active recreation, and input from the community emphasized
the importance of natural character, walking paths, playgrounds, shade, and restrooms among
other amenities. From Code research it was learned that access to the park needed to be taken
from Atherton Dr which made for a safe entry due to the lower amount of traffic compared to
Stafford Rd. The proposed location of the parking lot provided more flexibility in grading as it
was the flattest and therefore the least expensive location.
Mr. Anderholm noted the concept before the City Council tonight was based off of a 30 percent
design and did not include a skatepark or court amenities, but did meet up with the targeted $5
million development cost. Based on feedback and the size of the site, a 10,000 sq ft skate area
at an estimated cost of $250,000 to $500,000 was possible where the basketball and pickleball
court area were currently proposed. Given direction to explore that option, staff would involve
the community and a company specifically known for skatepark development, who would also
have a community engagement process involving kids and adults.
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October 19, 2021
Mayor Buck confirmed through an informal poll of Council for staff to look into a 10,000 sq ft
skatepark with the involvement of the community. He expressed several preferences for what
he would like to see in the park Mr. Anderholm confirmed that because the project had not
gone out to bid, he would be returning to Council with more information on the skatepark. A
project budget was available in the meeting packet, but contingencies would likely get tighter
and staff would not be sure of the cost until the project was bid.
Councilor Rapf supported the diversity and opportunities to get kids interested in sports
through skateboarding. He asked for information about the overlook berm shown in the diagram.
Mr. Tuttle replied the 12-ft high berm would serve several purposes. Part of the community
feedback requested spectating opportunities for athletics in the park and the berm would
provide a unique viewing angle, it was an interesting feature of the park and gave it a bit of
identity, it would provide a view over Luscher Farm area, and because a lot of dirt would be
moved around during the project, it provided a place to store it and to not have to pay to have it
removed. Councilor Rapf suggested removing the berm to allow room for a 10,000 sq ft
skatepark, or to use the big area with a pathway to the south of the field by moving the path
closer to the field. He inquired about use of American Rescue Plan Act (ARPA) funds or use of
any excess funds from the North Shore Bridge repairs. Ms. Bennett responded that she did not
believe it was possible to spend ARPA funds on recreational capital. She reminded that as soon
as staff knew more about the North Shore Bridge, they would return to Council for a more
detailed conversation. She noted system development charges (SDCs) sounded like a possible
funding source for the skatepark. Councilor Rapf said he would like to see the 10,000 sq ft
skatepark, basketball court, and pickleball/tennis court in the park. Mr. Anderholm stated
consideration would be given to how to fit those things in. He noted that in the Luscher Area
Master Plan to be initiated next year with Clackamas County, a prescribed area was designated
on the east side of Hazelia Field intended for hard-surface courts which could allow more park-
like features and recreational opportunities there.
Councilor Mboup stated he was very excited about the proposed park. He supported the
involvement in the design from those who testified in favor of a skatepark earlier this evening.
Thought should also be given to those using a wheelchair or other devices in the park,
otherwise it would not be considered inclusive. A skatepark would offer the opportunity for
children to have fun, grow, and develop their motor skills. It was important to fund the capital
improvement program, and the park could be part of that as infrastructure. The additional fields
would also mean games might not run so late and require lighting which generated some
complaints.
Councilor Verdick stated her full support for a skatepark, noting it needed to be done right with
the right size and right designers and engagement from the community. It would give people of
all ages who maybe did not play on a sports team an opportunity and an outlet. She asked if
one of the two baseball fields could be eliminated to allow for other amenities. Mr. Tuttle replied
the feedback had been prioritized to provide maximum field play, but it did not leave as much
room for some of the larger elements like basketball and a skatepark. Mr. Anderholm said
Councilor Verdick's suggestion could be given consideration, but the amount of square footage
available would be the same. Mr. Tuttle added that the walking paths and the natural character
were the highest-ranking feedback received from the community. They had wanted to provide
the Councilors the option to include all amenities for the sake of discussion, even though that
City Council Meeting Minutes Page 5 of 9
October 19, 2021
ultimately might not be their preference and the money might not be available. Councilor
Verdick believed the pathways were great and recommended access to the Luscher Farm area
and to the future aquatic center be provided as much as possible to give families with children
who were old enough opportunities to go to the different locations.
Councilor Nguyen noted that there was a consensus on the Rassekh Park project including a
skatepark. Doing nothing was not an option to him because Council had an obligation to the
community to provide such facilities. However, it was also necessary to be good neighbors and
the parking was very close to the sensitive area, and he knew concern existed about moving the
fields closer to it because of the potential for light pollution. He supported moving the cars closer
to the east side and using the less dense activity of a baseball field to provide a buffer for the
sensitive area. The park would potentially have less activity when school was in session, but he
was concerned about too many cars, loud music, and how long people would be waiting in their
cars in the evening for the athletes to finish their games. He suggested consideration be given
to mitigating the light trespass and some of the noise with a vertical barrier that would also
protect the wildlife corridor. Cost should not be the only consideration for the location of the
parking lot. Mr. Tuttle confirmed cost was the driver for the parking lot's location. Field lighting
was improving all the time, and the lighting proposed for the field minimized glare and was
directional to the field surface. A bit of an offset existed between the parking and the sensitive
lands, and the location of the parking lot would draw a bit of tree canopy to that side of the park.
If the field were placed next to the sensitive land boundary, the lighting required to make a
playing surface safe would not be good for wildlife. Minimal light was needed within the parking
area and the temperature of that light could be more controlled and would be friendlier to
wildlife. He wanted to provide the right amount of buffer on every side so nothing felt too tight,
and to promote the natural character and walkability of the park. Mr. Anderholm noted that
besides the cost factor for the parking lot, stormwater needed to be treated on site before it
reached Pecan Creek and a change in the parking lot's location would require the stormwater
treatment area to be moved as well. Also, the enormous amount of grading required would
move unnatural grades closer to the edge of the sensitive land and would create more of a stark
contrast with the field elevation. The loop-in/loop-out parking configuration provided the ability to
work with the natural grades. Consideration had been given to placing the field in the southwest
corner towards Atherton Dr, but that would require a 6-ft retaining wall which would be more of
an obstruction to the wildlife corridor than a parking lot at grade with trees in the planters.
Moving the field to the other side of the parking lot would also move the light poles to within 200
ft of the adjacent yards. The neighbors had given feedback that they wanted the lights as far
away from them as possible. A lot of consideration had been given to the proposed design and
more would take place, but he believed the best-balanced location had been found for everyone
involved.
Councilor Wendland said he had attended the meetings for Rassekh Park. He understood
Councilor Nguyen's concerns and he was aware of some differing opinions on the design
among the neighborhood groups but, in the bigger picture, he believed the project would serve
the city very well. He asked if it was true that artificial turf was more environmentally friendly
than a grass turf. Mr. Anderholm replied that it was a wash. Herbicides or pesticides would not
be used, and water usage would be reduced. The turf infill used today needed to be a certified
inert material and could not have hydrocarbons or similar substances that could leach through
the field into the drainage. Regardless, the entire field would have its own pre-treatment facility
City Council Meeting Minutes Page 6 of 9
October 19, 2021
that would treat the water the same as if it were from an impervious surface. Trade-offs did
exist; for example, more heat would be created from the artificial turf, but the benefit was a safe,
usable surface from a human-interaction perspective. Councilor Wendland noted that a
shortage in the number of fields it the city created a hierarchy of use in which prioritizing older
kids frequently bumped the younger players out of their field space and ran counter to the desire
to have them participate in sports. He inquired about earlier public testimony on the location of
parks in residential areas. Ms. Bennett said she would confirm with either Director Rooney or
Director Siegel whether the Transportation System Plan (TSP) enacted into the Code allowed
park access off of a residential street as opposed to a major arterial like Stafford Rd. Councilor
Wendland responded he would not put the safety of children and the citizens at risk at the
expense of some discomfort from a local situation. Many people had parks in their
neighborhoods and enjoyed the advantages. He asked if any concerns existed that any of the
project's stages would not pass a review. Mr. Anderholm believed they had been very diligent
in their conversations with Planning and Engineering on compliance with requirements and
regulations. The application was being prepared for land use review where the traffic impacts
and parking study would be a part. An attempt was made with the consultants to comply with
Code, and recommendations were made on how to address the concerns from any discoveries.
He was confident due diligence had been done and suggestions made for mitigating any
impacts. Also, contingency was built into the contract with the consultants. Councilor
Wendland complimented staff for an excellent job on the project. He liked the suggested
skatepark because a number of other concerns had been addressed with the proposed
pathways, shelters and picnic tables, etc. He believed having just one pickleball court was a bit
fragmented, but supported the skatepark and acknowledged that it needed to be done right. He
was aware of the concerns from the Palisades Neighborhood Association and he and Councilor
Manz had met with them and attended several meetings but concerns would still exist going
forward, many of which had been addressed, and he believed a great plan had been created for
the park that would serve the citizens and the neighborhood.
Councilor Manz pointed out the number of innovations that had come from skateboarding and,
more importantly, how it enabled kids to participate in a sport who might have never played a
team sport. She was completely in support of the project and appreciated the work put into it. It
was as close to perfect as possible.
Mayor Buck thanked Mr. Anderholm and Mr. Tuttle for their work and for the presentation, and
also thanked the community members who participated thus far in the engagement process. A
lot of comments had been received from the adjacent neighbors which was understandable, and
he appreciated the work that had gone into mitigating those concerns.
7. CONSENT AGENDA— COUNCILORS ONLY
7.1 Resolution 21-34, A Resolution of the City Councilors of the City of Lake Oswego
Approving the Appointments to the Ad Hoc ARPA Funding Advisory Committee.
7.2 Resolution 21-35, A Resolution of the City Councilors of the City of Lake Oswego
Approving the Appointment of an Alternate to the Development Review
Commission.
City Council Meeting Minutes Page 7 of 9
October 19, 2021
Mayor Buck presented his appointment of alternate Dwight Sangrey to replace Jason Frankel
who had stepped down from the Development Review Commission and he thanked both of
them for their service. He also thanked Councilor Manz and Councilor Mboup who would serve
as liaisons to the ARPA Advisory Committee and the many other community members who had
volunteered to serve.
Councilor Wendland moved to adopt the Consent Agenda. Councilor Mboup seconded
the motion.
A voice vote was held, and the motion was passed, with Mayor Buck and Councilors
Rapf, Mboup, Manz, Nguyen, Wendland, and Verdick voting `aye', (7-0).
8. INFORMATION FROM COUNCIL
Mayor Buck reminded that the community policing wrap-up event would take place virtually
tomorrow virtually, and all Councilors would attend. He reported that the Youth Leadership
Council (YLC) had a summer hiatus and the program had been revamped for this year. He and
Councilor Mboup had attended the YLC's retreat this past weekend. The annual review of the
City Manager, City Attorney, and the Judge would be done this winter. Evaluation forms would
be sent out that were many years old, and he requested feedback on them from the Councilors.
Councilor Verdick reported that the Sustainability Advisory Board met last night for the first
time since June and it was great to reconnect with everyone. Amanda Watson, the new
Sustainability Advisory Manager, was now on board. The group was active and engaged and
was looking forward to serving the community.
9. REPORTS OF OFFICERS
Ms. Bennett reminded that Council goal setting would be moved from January 8th to January
22nd and would run from about 8:30 a.m. to 3:00 or 4:00 pm. Councilors had been asked about
whether a portion of the session could be done on the prior Friday afternoon. Last year the big
picture of the visioning part of the conversation had been skipped, partially due to using Zoom,
and it might be helpful to do the Council agreements and discuss how the Councilors were
working together on Friday to allow a deep dive into the substance on Saturday morning. She
asked any Councilor who was not open to the idea to let Ms. Linder know. The community
survey was almost ready to go, and would be the opportunity to find out how satisfied the
people of Lake Oswego were with the community in general and City services in particular, and
to ask some high-priority policy questions regarding COVID and the response to it,
transportation funding options for pathways, and emergency preparedness. The results would
be available in the fall before the Council goal setting session.
10. ADJOURNMENT, CITY COUNCIL
Mayor Buck adjourned the City Council at 5:02 p.m. to call to order the Redevelopment
Agency. The LORA board met from 5:02 p.m. to 5:05 p.m.
City Council Meeting Minutes Page 8 of 9
October 19, 2021
Respectfully submitted,
564
Kari Linder, City Recorder
Approved by the City Council on December 7, 2021
Joseph M. Buck, Mayor
City Council Meeting Minutes Page 9 of 9
October 19, 2021