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Metro - Woodard Park/Lowery Property FIRST AMENDMENT TO INTERGOVERNMENTAL AGREEMENT (Woodard Park / Lowery Property) THIS FIRST AMENDMENT TO INTERGOVERNMENTAL AGREEMENT (the "Amendment ") is made and entered into as of the last date of signature indicated below (the "Effective Date "), by and between the City of Tigard, an Oregon municipal corporation (the "City "), and Metro, an Oregon municipal corporation ( "Metro "). RECITALS A. On June 9, 1997, Metro purchased the Lowery Property with proceeds from the Metro Open Spaces Bond Measure, and thereafter the City and Metro entered into an Intergovernmental Agreement dated August 30, 1999 (the "Agreement "), pursuant to which the City operates, manages and maintains a portion of the Lowery Property (the "Property "). B. In order to improve the access to the Lowery Property and adjacent Woodard Park, and allow sufficient room for emergency vehicles to turn around, the City desires to pave a portion of the Lowery Property that Metro manages and maintains, which paving area is depicted on the attached Exhibit A (the "Paving Area "). C. Metro does not object to the paving, provided that the City assumes management responsibility for the Paving Area. D. The City and Metro therefore wish to enter into this Amendment to provide for the obligations and responsibilities of the parties with respect to the Paving Area. E. Capitalized terms used in this Amendment shall have the meanings given to them in the Agreement, except as modified by this Amendment. In consideration of the foregoing and the mutual covenants of the parties set forth in this Amendment, the receipt and adequacy of which are acknowledged, the parties agree as follows: TERMS 1. Paving Area. The portion of the Lowery Property depicted on Exhibit A and labeled the "Paving Area" shall hereafter be deemed part of the "Property," as defined in the Agreement, to be managed, maintained, and operated by the City in accordance with the Agreement. Notwithstanding anything to the contrary, the City's management of the Paving Area shall not impede access to the home on the Lowery Property, which will continue to be managed by Metro. 2. Counterparts: Delivery. This Amendment may be executed in counterparts. Delivery of this executed Amendment by facsimile or e-mail shall be sufficient to form a binding agreement. Page 1 — First Amendment to Intergovernmental Agreement (Woodard Park / Lowery Property) 3. Effect of Amendment. The parties ratify and confirm the Agreement. Except as amended by this Amendment, the Agreement is unmodified and in full force and effect. IN WITNESS WHEREOF, the City and Metro have executed this Amendment as of the Effective Date. METRO, CITY OF TIGARD, an Oregon municipal corporation an Oregon municipal corporation By: Az- By: Name: Name: Oral E Di rk,Se n Title: Title: QtJ Date: 12 / 3 ` ' Date: I V 0\112 -1- 01`7 aL7 o� Page 2 — First Amendment to Intergovernmental Agreement (Woodard Park / Lowery Property) EXHIBIT A Depiction of Improvements and the Improvement Land J SD Headwa +l !LW Ft FV= 159.44 !£ OUT - 156 69 - i - == r , , ..,.,. ci.„,„,.. ,i,,,,, - — I ____.... A . — p rut / _ KATH,�RINE ST s ;�, - , � - Tr IA7 � / Y / // ' � � Area 0 ; I •. , 4 400, Jr OM / i t 4 .41 GAZEBO i s -il L \ 3' FOC 11 PsY AREA Ctf ( 1 tJ . Pr CORKS ,r.,. WOODARD PARK F1 S CALE i' = 20 DU as MU KM N *. 3 Conceptual Design FILE A 24' rw o m TIC AAI) a ev Op tion B 069 Exhibit A to First Amendment to Intergovernmental Agreement (Woodard Park / Lowery Property) 92 X56 EXHIBIT "V' to Resolution 99-2816 INTERGOVERNMENTAL AGREEMENT Woodard Park/Lowery Property This Intergovernmental Agreement ("Agreement") dated this ~ ay of , 1999, is by and between Metro, a metropolitan service district organized under the laws o the state of Oregon and the 1992 Metro Charter, located at 600 Northeast Grand Avenue, Portland, Oregon, 97232-2736 ("Metro"), and the City of Tigard, located.at 13125 S.W. Hall Boulevard, Tigard, Oregon 97223 ("the City"). WITNESSETH: WHEREAS, on. May 16, 1995, voters approved Ballot Measure 26-26, Open Spaces, Parks, and Streams, authorizing Metro, a metropolitan service district organized under the laws of the State of Oregon and the 1992 Metro Charter, to issue up to S 135.6 million in general obligation bonds for the protection of open. spaces, parks and streams ("Metro Open Spaces Bond Measure"); and WHEREAS, the Fanilo Creek Greenway was identified as a regionally significant open space in the Metro Greenspaces Master Plan, and the Fanno Creek Greenway Target Area was subsequently established pursuant to the Metro Open Spaces Bond Measure; and WHEREAS, pursuant to,the Metro Open Spaces Bond Measure, Metro acquired real property from the Lowery family, located within the Fanno Creek Greenway Target Area, along Fanno Creek at 10270 SW Katherine Street, commonly known as Tax Lot 00600, Township 2 South, Range 1 West, Section 2BB, in the City of Tigard, County of Washington, State of Oregon, and more particularly described in Exhibit A attached hereto and incorporated herein (the "Lowery Property");- and WHEREAS, on June 9, 1997, Metro purchased the Lowery Property with proceeds from the Metro Open Spaces Bond Measure to preserve it as open space in accordance with the measure; and WHEREAS, the City wishes to operate, manage, and maintain a portion of the Lowery Property, as described in Exhibit A-I attached and incorporated herein (hereinafter, the "Property"), which excludes the Lowery house, garage, and access drive, which shall remain Metro's responsibility; and WHEREAS, on March 2, 1999, the City passed Resolution 99-13 adopting the Woodard Park Concept Plan, attached hereto as Exhibit B and incorporated herein; WHEREAS, Metro and the City wish to preserve the Property as open space, provide for passive recreation, and provide for improved wetland habitat, in accordance with the Woodard Page I - Woodard.Park/Lowery Property IGA i:\docs#14.os\06region.trl\05fanno.crkUowery-tigard iga 062399.doc OGC/JM/sm/kaj 06/23/99 052298 Park Concept Plan, the Metro Open Spaces Bond Measure, and the Metro Greenspaces Master Plan; WHEREAS, the Oregon Department of Transportation ("ODOT") by letter, dated April 21, 1999, proposed to implement a wetlands mitigation plan on the Property, to improve. Fanno Creek's wetland vegetation and riparian habitat; WHEREAS, on Aj A-2G h y ,1999, the City Council authorized the City to enter into this Agreement and. to manage, operate and maintain the Properly in accordance with the terms set forth. in this Agreement; WHEREAS, on -3 t,yy- l 15 - '1999, the Metro Council authorized Metro to enter into this Agreement to, provide or transfer of management responsibility for the Property in accordance with the terms set forth in this Agreement; and WHEREAS, Metro and the City wish to enter into this Agreement to provide for the responsibilities and obligations of the parties with respect to the acquisition, allowable uses, maintenance and operation of the Property; NOW, THEREFORE, the parties agree as follows: A. Management. Maintenance, and Operation 1. The City shall be responsible for the ongoing management, maintenance, and operation of the Property in accordance with the terms of this Agreement. 2. The Property shall be managed, maintained and operated in accordance and in a manner consistent with this Agreement, Metro's Greenspaces Master Plan, the Metro Open Spaces Bond-Measure, the Woodard Park Concept Plan, and ODOT's Conceptual Wetlands Mitigation Plan (collectively, "the Plans"). These Plans shall constitute the Resource Protection Plans for the Property, as'described in the Metro -Greenspaces Master Plan. In case of conflict among Plans, the Plan affording the highest level of resource protection shall govern. 3. If Metro executes an agreement to purchase additional property within the Fanno Creek Greenway.Target Area which Metro would like the City to manage under the terms of this Agreement, Metro shall notify the City in writing in the form attached hereto as Exhibit C ("Notice of Acquisition"). The. City shall notify Metro if the City does not wish to accept management responsibilities for that additional property in accordance with this Agreement, using the,City's best efforts to make this notification prior to the closing date for the acquisition. If the City has not so notified Metro within thirty (30) days of receiving Metro's Notice of Acquisition, then the City shall be deemed to have accepted the additional property for management, maintenance and operation responsibilities in accordance with the terms and conditions of this Agreement. Page 2 - Woodard Park/Lowery Property IGA i:\docs#14.os\06region.trl\05fanno.crk\lowery-tigard iga 062399.d- 0GCOM/sn✓kaj 06/23/99 052298 4. Metro grants to the City, its agents and contractors, the right to enter the Property for the purpose of performing all activities reasonably necessary for the management, maintenance and operation of the Property under the Plans. 5. The term of the City's management, maintenance, and operation responsibilities for the Property shall be twenty (20) years from the date of this Agreement. This Agreement shall renew automatically for an additional ten-year term, unless earlier terminated under Section E (4-5), or unless either party . provides- notice of intent not to renew prior to the expiration of the current term. C. Limitations on Use 1. The Property shall be managed, maintained and operated in accordance with its intended use as natural area open space, with the primary goal being protection of the Property's natural resources, enhancement and protection of wildlife habitat, and public recreation consistent with the foregoing. 2. The Property may be used by the public, in the City's discretion, for preservation, restoration and enhancement of riparian vegetation and wildlife habitat, passive recreation, pedestrian activity, and non-motorized bicycle use.. The City shall give Metro ninety (90) days' advance written notice of its intent to construct any improvements, trails, or alteration of water or timber resources on the Property. Such notice shall demonstrate, to Metro's sole satisfaction, consistency with Metro's Greenspaces Master Plan and the City's Woodard Park Concept Plan. Metro shall have the right to approve of the items contained in the notice, which approval shall not be unreasonably withheld. In any event, no improvements or trails shall be constructed on the Property and no alteration of water or timber resources shall occur that are inconsistent with this Agreement or with the Plans. The City's Woodard Park Concept Plan provides for a proposed ODOT wetlands mitigation project, further described in ODOT's Conceptual Wetlands Mitigation Plan, attached hereto and incorporated herein as Exhibit D. In exchange for ODOT wetlands enhancement performed pursuant to the Conceptual Mitigation Plan, ODOT requires a perpetual wetlands mitigation easement over that portion of the Property enhanced for, mitigation. The terms of the wetlands mitigation shall be subject to Metro approval. 3. Metro shall have the right to review and comment on any changes in the Plans relating to the management, maintenance, or operation of the Property. Any changes in the Plans made or proposed by the City that relate to management, maintenance, or operation of the Property shall not conflict with the guidelines: set forth in this Agreement, in,Metro's Greenspaces Master Plan, or with the uses .and restrictions described in the Metro .Open Spaces Bond Measure. The City shall give Metro written notice as soon as possible, but in no event less than 90 days, in advance of a proposal to amend the City's Plans, where such amendment would alter the City's management, maintenance or operation of the Property. 4. The Property shall not be subdivided or partitioned, nor shall any development rights, timber rights, mineral rights, or other rights related to the Property be sold or otherwise granted, nor Page 3 - Woodard Park/Lowery Property 1GA i:ldocs#14.osW6region.tr1\05fanno.crkUowery-tigard iga 062399.doc OGCOM/sm/kaj 06/23/99 052298 shall there be any alteration of any water or timber resource, except as necessary for construction of trail or other improvements, for the purpose of enhancing wetlands and . improving resource values, or as necessary to protect public safety. 5. Metro has, implemented the following stabilization and security measures prior to executing this Agreement. On the date of this Agreement, the City shall assume all continuing maintenance obligations for these measures: e Mowing the upland portion of the Property; • Controlling access to the Property through gates and fencing, to prevent unauthorized use and illegal dumping; and • Managing "danger trees," to prevent damage to surrounding property. 6. The City shall maintain security of the Property, and shall provide additional fencing, gates, signage, and other measures as the City may deem necessary to increase safety on the Property, and to preserve and protect the Property's natural resources. D. Permits Easements, Asses cmentc Coordination with Other Public Agencies 1. As stated in Metro's Greenspaces Master Plan, by accepting management responsibility for the Property, the City agrees-to be, responsible for funding the operation and maintenance of the Property with the City's own resources. The City's management responsibility shall include responsibility for all taxes or assessments for the Property. 2. The City shall be responsible for obtaining any permits necessary for management, maintenance or operation of the Property. 3. Any permits granted by the City to users of the Property -shall comply with the terms and limitations set forth in this Agreement and in the Plans. 4. The City shall be responsible for contacting and.coordinating with other local or state agencies regarding any management, maintenance or operation:issues .that may. arise with respect to the Property. . 5. All future requests for easements, rights of way, and leases on or affecting,the Property shall be submitted to Metro in accordance with the Metro Easement Policy, Resolution No. 97- 2539B, passed by the Metro Council on November 6, 1997, attached hereto as Exhibit E: E. Genera! Provisions 1. Indemnification. The City, to the maximum extent permitted by law and subject to the Oregon Tort Claims Act, ORS Chapter 30,. shall defend, indemnify and save harmless Metro, its officers, employees, and agents from and against any and all liabilities, damages, claims, demands, judgments, losses, costs, expenses, fines, suits, and actions, whether arising in tort; Page 4 - Woodard Park/Lowery Property IGA i:ldocsN14.os\06region.trl\05fanno.crkVowm-rigard iga 062399.doc OGCIJWsrt✓kaj 06123/99 052298 contract, or by operation of any statute, including but not limited to attorneys' fees and expenses at trial and on appeal, relating to or resulting from the management,, maintenance or operation of the Property, including,but not limited to construction of trails or in relation to any otherimprovement on the Property. 2. Oregon Constitution and Tax Exempt Bond Covenants. The :source of funds for the acquisition of the Property is from the sale:ofvoter-approved general obligation bonds that are to be paid from ad valorem property taxes exempt from the limitations of Article )U, section I I (b), 11(c), I I (d) and 11(e) of the Oregon Constitution, and the interest paid by Metro to bond holders is currently exempt from federal and Oregon income taxes. The City covenants that it will take no actions that would cause Metro to be unable to maintain the current status of the real property taxes as exempt from Oregon's constitutional limitations or the income tax exempt status of the bond interest. -In the event the City breaches this covenant, Metro shall,be entitled to whatever remedies are available to either cure the default or to compensate Metro for any loss it may suffer as a result thereof. 3. Funding Declaration and Signs. The City may provide on-site signs informing the public that the City is managing the site. Metro will provide on-site signs which shall be installed by the City, stating that funding for the acquisition came from Metro's Open Spaces Bond Measure proceeds. The City shall also document in any publication, media presentation or other presentations, that funding for the acquisition came from Metro's Open Spaces Bond Measure proceeds. All signs will be consistent with Metro guidelines for Open Spaces Projects. 4. Joint Termination for Convenience. Metro and the City may jointly terminate all or part of this Agreement based upon a-determination that such action is in the public interest. Termination under this provision shall be effective upon ten (I0) days written notice of termination issued by Metro, subject to the mutual written agreement of the parties. 5. Termination for Cause. Either party may terminate this Agreement in full, or in part, at any time before the date of completion, whenever that party determines, in its sole discretion, that the party has failed to comply with the conditions of this Agreement and is therefore in default. The terminating party shall promptly notify the other party in writing of that determination and document such default as outlined herein. The other party shall have thirty (30) days to cure the problem. Notwithstanding any termination for cause, both parties shall be entitled to receive payments for any work completed or for which that partyis contractually obligated for, which completion or contractual obligation occurred prior to the effective date of the termination, provided that no party shall be obligated to make any payment except for work specifically provided for in this Agreement. 6. Law of Oregon. This Agreement shall be governed by the laws of the state of Oregon, and the parties agree to submit to the jurisdiction of the courts of 'the state of.Oregon. All applicable provisions of ORS chapters 187 and 279, and all other terms and conditions necessary to be inserted into public contracts in the state of Oregon, are hereby incorporated as if such provisions were a part of this Agreement, including but not limited to ORS 279.015 to 279.320. Page 5 - Woodard Park/Lowery Property IGA i:\docs#14.os\06mgion.trl\05fanno.crk\lowery-bard iga 062399.doc OGU M/sm/kaj 06/23/99 052298 7. Notices. All notices or other communications required or permitted under this Agreement shall be in writing, and shall be personally delivered (including by means of professional messenger service) or sent by fax and regular mail. To Metro: Metro. Cher & j-Gieeko Director, Metro Regional Parks and Greenspaces 600 N.E. Grand Avenue Portland, OR 97232-2736 To City: City of Tigard AM Community Development Director 13125 S.W. Hall Boulevard Tigard, OR 97204 8. Assignment. The parties may not assign any of its rights or responsibilities under this Agreement without prior written consent from the other party, except the parties may delegate or subcontract for performance of any of its responsibilities under this Agreement. 9. Severability. If any covenant or provision in this Agreement shall be adjudged void, such adjudication shall not affect the~validity, obligation, or performance of any other covenant or provision which in itself is valid, 'if such remainder would then continue to conform with the terms and requirements of applicable law and the intent of this Agreement. 10. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior oral or written agreements or representations relating to the Property. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both parties. IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year set forth above. CITY OF GARD METRO By: By: ayor, City' 6f Tigard Tit Mike B n, Executive Officer Exhibits: Exhibit A - Legal Description Exhibit 13- Woodard Park Concept Plan Exhibit C - Form of Notice of Acquisition Exhibit D - ODOT Wetland Mitigation Project Plans and Easement Exhibit E - Metro Easement Policy and Metro Resolution No.. 97-2539B Page 6 - Woodard Park/Lowery Property IGA i:\docs#14.os\06region.tri\05fanno.crk\lowery-tigard iga 062399.d0c OGCOM/sm/kaj 06/23199 r 6 0 0 N O R T, 5T GRAND AV E N U E I PORTLAND, OREGON 9. 2 7 3 6 T E L 503 7 9 7 1 7 0 0 FA% 503 797 1 797 i METRO September 1, 1999 Duane Roberts City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 Dear Mr. Roberts: Enclosed is the City of Tigard's copy of the fully executed agreement for managing property located within the Fanno Creek Greenway Target Area. Metro's contract number for this intergovernmental agreement is 921563. Please include the contract number in any correspondence related to this contract. Do not hesitate to contact Heather Nelson Kent at 797-1739 or Jim Desmond at 797-1914 if you require any additional information or clarification. Sincerely, Elaine M. Stewart Contracts Administrator Regional Parks and Greenspaces Department Enc. Recycled Paper www.metro-region.org T D D 7 9 7 1 8,0 4