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Resolution No. 10-64 CITY OF TIGARD, OREGON TIGARD CITY COUNCIL RESOLUTION NO. 10- Lp4 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE ALL DOCUMENTS RELATED TO SECURING DONATIONS AND GRANT FUNDING ASSOCIAITD WITH THE ACQUISITION OF THE SUMMER CREEK PROPERTY - PHASE 1 WHEREAS, the Tigard City Council has authorized the purchase of the 43-acre Summer Creek Property — Phase 1,also known as the Fowler Property;and WHEREAS, to assist the City in the purchase of the Sununer Creek Property, grants and donations were solicited from various govenimental agencies;and WHEREAS, Clean Water Services cornnutted to donate $100,000 toward the purchase, as detailed in a letter dated November 1,2010, (Attachment 1);and WHEREAS, Washington County committed to donate $400,000 of Metro local share dollars toward the purchase, contingent upon an intergovernmental agreement (IGA); and WHEREAS, Metro awarded a $1 mullion capital grant toward the purchase, contingent upon an intergovernmental agreement and a conservation easement;and WHEREAS, the Oregon Watershed Enhancement Board awarded a $1 mullion grant toward the purchase, contingent upon a grant agreement and a declaration. NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Council authorizes the City Manager to execute all documents related to securing donations and grant funding associated with the acquisition of the 43-acre Sumner Creek Property -Phase 1.These documents include,but are not limited to: ■ Washington County IGA, entitled, "Intergovernmental Agreement for Metro Greenspaces Funding Contribution, Summer Creek Property, City of Tigard and Washington County," (Exhibit A). ■ Metro IGA, entitled, "Intergoveinmental Agreement, Natural Areas Bond Measure, Capital Grant Award," (Exhibit B). • Metro conservation easement,entitled,"Conservation Easement," (Exlnrblt C). ■ Oregon Watershed Enhancement Board grant agreement, entitled, "Watershed Acquisition Grant Agreement," (Exhibit D). ■ Oregon Watershed Enhancement Board declaration, entitled, "Declaration of Restrictive Covenants and Equitable Servitudes," (Exhibit E). RESOLUTION NO. 10 - (04 Page 1 SECTION 2: T his resolution is effective irrunediately upon passage. r� PASSED: This D3 day o P�e� 010. of Tigard > ATTEST: �- __e_, City Recorder- City of Tigard RESOLUTION NO. 10 - LJ Page 2 1 Exhibit A INTERGOVERNMENTAL AGREEMENT FOR METRO GREENSPACES FUNDING CONTRIBUTION SUMMER CREEK PROPERTY CITY OF TIGARD AND WASHINGTON COUNTY THIS AGREEMENT is made and entered into by and between WASHINGTON COUNTY, acting by and through its Elected Officials, hereinafter referred to as "County"; and the CITY OF TIGARD, acting by and through its City Council, hereinafter referred to as "Cit " Y• WITNESSETH RECITALS WHEREAS,the voters of Metro approved Ballot Measure 26-80 on November 7,2006, and that measure provided funds for natural areas, clean water,and to protect fish and wildlife, including funds to be expended by local parks providers for specified projects; and WHEREAS, the City of Tigard is a local parks provider; and WHEREAS, the City and County have each signed an Intergovernmental Agreement ("IGA") with Metro for Natural Areas Bond Measure Local Share Component (the "Local Share Program"), and the"Summer Creek Property",described in Exhibit"A"and shown on Exhibit"B"attached hereto, is located within one of the target acquisition areas included in the "Local Share Project List" of both the City and County IGAs; and WHEREAS, ORS 190.010 authorizes agencies to enter into intergovernmental agreements for the performance of any or all functions and activities that a party to the agreement has the authority to perform; and WHEREAS, City desires to acquire the Summer Creek Property for purposes allowed under the Local Share Program through its own financial contribution and financial participation of others, including County; and, WHEREAS, the County Board of Commissioners by County Minute Order 09-62, dated March 24, 2009, has approved and authorized a financial contribution to acquisition by City of the Summer Creek Property, using a portion of County's Local Share Program funds; AGREEMENT 1 50014-36792.010 205863 2.AocW)1/2/2010 r f NOW, THEREFORE,the promises being in general as stated in the foregoing recitals,and in consideration of the terms, conditions and covenants as set forth below, the parties hereto agree as follows: ARTICLE I - COUNTY OBLIGATIONS 1. County shall, upon execution of this Agreement, assign a liaison person to be responsible for coordination of this transaction with City. 2. Upon receipt of the notice from City described in Article 11.4 below, County shall sign and deliver to Metro a Requisition Certificate for Release of Funds, Natural Areas Bond Local Share ("Certificate"), requesting release of funds in the amount of $400,000 from the County's Local Share Program funds to the City, for the purchase of the Summer Creek Property. 3. County shall have no responsibility for the acquisition, management, control or use of the Summer Creek Property. Following completion of the County's obligations for signature and delivery of the Certificate, County shall have no further obligations under this Agreement. ARTICLE 11- CITY OBLIGATIONS 1. City shall enter into and execute this Agreement after it has been presented and approved during a duly authorized session of the Tigard City Council. 2. City shall, upon execution of this Agreement, assign a liaison person to be responsible for coordination of this transaction with County. 3. City shall take all actions necessary to acquire the Summer Creek Property, including securing funding, executing a real estate purchase agreement, closing the purchase, and recording a deed to the property. 4. City shall notify County's liaison in writing and by telephone that it has executed a purchase agreement for the Summer Creek property, has secured sufficient funds and funding commitments, and is prepared to close the purchase. The notice shall provide instructions to County as to the timing and location for delivery of the Certificate by County, including escrow arrangements. 5. In the event that the purchase of the Summer Creek Property does not close within 180 days of the date of this Agreement, upon written request by County, City shall take all steps required to return or release County's funds provided herein to Metro for reallocation to another allowed use. 6. City shall perform all obligations of the Metro-City IGA, including but not limited 2 .50014-36792.010 305865 1.docW11/?/?010 to execution of a Conservation Easement and using the Summer Creek Property for the purposes allowed in the Metro-City IGA. In the event the City breaches its IGA with Metro, such action also will constitute a breach of this Agreement, and the County will have the legal right to enforce compliance by City with that IGA under the terms of this Agreement. 7. City shall use funds provided by County under this Agreement solely for the acquisition of the Summer Creek Property. 8. Following acquisition of the Summer Creek Property, the City shall be solely responsible for ownership, management, supervision and control of the Summer Creek Property. This paragraph shall not limit the City's ability to transfer the Summer Creek Property for park purposes to a park district or other public entity that assumes the continuing obligations of the Metro-City IGA and this Agreement. ARTICLE III - GENERAL PROVISIONS 1. LAWS OF OREGON The parties agree to abide by all applicable laws and regulations regarding the handling and expenditure of public funds. This Agreement shall be governed by the laws of the State of Oregon. 2. DEFAULT Either party shall be deemed to be in default if it fails to comply with any provision of this Agreement. City and County agree time is of the essence in the performance of any of the obligations within this Agreement. Complaining party shall provide the other party with written notice of default and allow thirty (30) days within which to cure the defect. 3. INDEMNIFICATION This Agreement is for the benefit of the parties only. Each parry agrees to indemnify and hold the other harmless, to include their respective officers, employees, agents and representatives,from and against all claims, demands and causes of actions and suits of any kind or nature for personal injury, death or damage to property on account of or arising out of services performed,the omission of services or in any way resulting from the acts or omissions of the parties so indemnifying and/or its officers, employees, agents or representatives. Indemnification is subject to and shall not exceed the limits of liability of the Oregon Tort Claims Act (ORS 30.260 through 30.300). 4. MODIFICATION OF AGREEMENT 3 50014-36791.010?05865 1.docW111212010 No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both parties. Such waiver, consent, modification or change, if made, shall be effective only in specific instances and for the specific purpose given. 5. DISPUTE RESOLUTION The parties agree to use their best efforts to resolve any dispute arising out of this Agreement by mediation. If mediation is not successful within thirty (30) days of commencement, the parties are free to utilize any legal remedy they may have. 6. SEVERABILITY If any terms or provisions of this Agreement or the application thereof to any person or circumstance shall, to any extent, be determined by a court to be invalid or unenforceable, the remainder of this Agreement and the application of those terms and provisions shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 7. NONDISCRIMINATION No person shall be denied or subjected to discrimination in receipt of the benefits of any services or activities made possible by or resulting from this Agreement on the grounds of race, color, religion, gender, sexual orientation, national origin,disability, age or marital status. Any violation of this provision shall be considered a material defect and shall be grounds for cancellation, termination or suspension in whole or in part by the County. 8. INTEGRATION This Agreement includes the entire agreement of the parties and supersedes any prior discussions or agreements regarding the same subject. There are no understandings, agreements,or representations,oral or written, not specified herein regarding this Agreement. 9. EFFECT OF AGREEMENT This Agreement shall be effective upon execution by the parties, and shall continue in effect until all obligations have been performed. The City's obligations under Article 11.6, and the County's right to enforce those obligations, shall survive closing of the purchase of the Summer Creek Property and conveyance to the City. 10. AMENDMENT OR EXTENSION 4 50014-36792.010 205865 ?docLVI11212010 This Agreement may be amended or extended by consent of the parties, subject to provisions of this Agreement. Except for breach, it may be canceled or terminated for any reason beyond the control of the parties. IN WITNESS WHEREOF, the parties hereto have set their hands as of the day and year hereinafter written. DONE AND DATED this day of , 2010. CITY OF TIGARD WASHINGTON COUNTY, OREGON Mayor Chair Date: Date: ATTEST: City Recorder Recording Secretary APPROVED AS TO FORM: Senior Assistant County Counsel 5 50014-36793.010 205865 3.dorl4/1 113/2010 Exhibit B Project: Summer Creek Acquisition Natural Areas Capital Grants Program Contract No. INTERGOVERNMENTAL AGREEMENT Natural Areas Bond Measure Capital Grant Award This Intergovernmental Agreement (this "Agreement"), entered into under the provisions of ORS chapter 190 and effective on the date the Agreement is fully executed (the "Effective Date"), is by and between Metro, a metropolitan service district organized under the laws of the state of Oregon and the Metro Charter, located at 600 N.E. Grand Avenue, Portland, Oregon 97232-2736, and the City of Tigard, located at 13125 SW Hall Blvd., Tigard, Oregon 97223 ("Grant Recipient'). RECITALS WHEREAS, the electors of Metro approved Ballot Measure 26-80 on November 7, 2006, authorizing Metro to issue $227.4 million in bonds to preserve natural areas, clean water, and protect fish and wildlife (the "Measure"); WHEREAS, the Measure allocated $15 million from bond proceeds to the Nature in Neighborhoods Capital Grants Program to complement the regional and local share portions of the Measure by providing opportunities for the community to actively protect fish and wildlife habitat and water quality in areas where people live and work; WHEREAS, Metro has determined to make a grant award to Grant Recipient to fund Summer Creek Acquisition (the "Project") as more specifically identified within the Scope of Work attached hereto as Exhibit A (the "Work"); WHEREAS, the Grant Recipient will become the owner of the property that constitutes the Project, which property is more specifically identified as Attachment 1 in Exhibit A (the "Property");] WHEREAS, this Agreement between Metro and Grant Recipient is now needed to satisfy the terms and conditions of the Nature in Neighborhoods Capital Grants Program as provided for in the Measure; and Page 1 — Capital Grants Award IGA/City of Tigard—Summer Creek WHEREAS, except as specifically provided in this Agreement, including the scope of work attached hereto as Exhibit A, and otherwise notwithstanding any statements or inferences to the contrary, Metro neither intends nor accepts any (1) direct involvement in the Project (2) sponsorship benefits or supervisory responsibility with respect to the Project; or (3) ownership or responsibility for care and custody of the tangible products which result from the Project; NOW THEREFORE, the parties agree as follows: 1. Purpose; Scope of Work; Limitations The purpose of this Agreement is to implement the Measure and facilitate the funding of a Nature in Neighborhoods Capital Grants Program project. Grant Recipient shall perform all activities described in the Scope of Work attached hereto as Exhibit A (the `'Work"). As a condition precedent to Metro's agreement to fund the Project, Grant Recipient hereby approves the Project and agrees to comply with the terms and conditions of this Agreement and the applicable provisions of the Measure. At no time will Metro have any supervisory responsibility regarding any aspect of the Work. Any indirect or direct involvement by Metro in the Work shall not be construed or interpreted by Grant Recipient as Metro's assumption of a supervisory role. 2. Declaration of Capital Project In accordance with the Measure, Metro may only provide funds to Grant Recipient for the Project so long as such funds are exclusively used for capital expenses. Grant Recipient hereby confirms that the Project will result in the creation of a capital asset to be owned by Grant Recipient. Grant Recipient covenants that it will (a) own and hold all such capital improvements and real property interests acquired pursuant to this Agreement, and (b) record the asset created by the Project as a fixed, capital asset in Grant Recipient's audited financial statement, consistent with Generally Accepted Accounting Principles ("GAAP") and with Grant Recipient's financial bookkeeping of other similar assets. Page 2— Capital Grants Award IGA/City of Tigard—Summer Creek 3. Contract Sum and Terms of Payment Metro shall compensate Grant Recipient for performance of the Work as described in Exhibit A. Metro shall not be responsible for payment of any materials, expenses or costs other than those that are specifically described in Exhibit A. 4. Limitations on Use of the Capital Asset That Results from the Project Throughout the term of this Agreement, Grant Recipient shall maintain and operate the capital asset that results from the Project in a manner consistent with one or more of the following intended and stated purposes of the Measure (the `'Nature in Neighborhood Approved Purposes"): • To safeguard water quality in local rivers and streams; • To protect and enhance fish and wildlife habitats; • To promote partnerships that protect and enhance nature in neighborhoods; and • To increase the presence of ecological systems and plant and animal communities in nature deficient and other disadvantaged neighborhoods; Grant Recipient may not sell, use, or authorize others to use such capital asset in a manner inconsistent with such purposes. Notwithstanding the foregoing, secondary uses that arise as a result of such capital asset being used primarily in accordance with the Nature in Neighborhood Approved Purposes will be permitted, but only to the extent such secondary uses affect a de minimis portion of such capital asset or are necessary in order to facilitate the primary Nature in Neighborhood Approved Purposes. For example, if, as part of a land use review proceeding initiated to obtain the necessary approvals to operate such capital asset consistent with the Nature in Neighborhood Approved Purposes, a portion of such capital asset was required to be dedicated as a road, such road dedication would be a pennitted secondary use. If the Work is the acquisition of real property, then Grant Recipient shall satisfy the requirements in this section of the Agreement by granting to Metro a conservation easement substantially comparable to the form of conservation easement approved by the Metro Council at the time the Metro Council approved the grant award to Grant Recipient. Page 3— Capital Grants Award IGA/City of Tigard—Summer Creek 5. Funding Recognition Grant Recipient shall recognize in any publications, media presentations, or other presentations referencing the Project produced by or at the direction of Grant Recipient, including, without limitation, any on-site signage, that funding for the Project came from the Metro Natural Areas Bond Measure's Nature in Neighborhoods Capital Grants Program. Such recognition shall comply with the recognition guidelines detailed in the Measure. The Grant Recipient shall place at or near the Project's location signage that communicates that funding for the Project came from the Metro Natural Areas Bond Measure's Nature in Neighborhoods Capital Grants Program. 6. Term It is the intent of the parties for the Project to have been completed, and for all Metro funding to have been provided to Grant Recipient prior to December 31, 2011. Notwithstanding the foregoing, all provisions set forth in this Agreement, and the obligations of Grant Recipient hereunder, shall continue in effect after the completion of the Project until June 30, 2027. 7. Termination for Cause A. Subject to the notice provisions set forth in Section 7.13 below, Metro may terminate this Agreement, in full or in part, at any time during the term of the Agreement if Metro reasonably determines that Grant Recipient has failed to comply with any provision of this Agreement and is therefore in default. B. Prior to tenninating this Agreement in accordance with Section 7.A above, Metro shall provide Grant Recipient with written notice that describes the reason(s) that Metro has concluded that Grant Recipient is in default and includes a description of the steps that Grant Recipient shall take to cure the default. From the date that such notice of default is received by Grant Recipient, Grant Recipient shall have 30 days to cure the default. In the event Grant Recipient does not cure the default within the 30-day period, or under circumstances where the default cannot be reasonably cured within the 30-day period, fails to begin curing such default within the 30-day period or fails to continue diligently to cure such default, Metro may Page 4— Capital Grants Award IGA/City of Tigard—Summer Creek terminate all or any part of this Agreement, effective on any date that Metro chooses. Metro shall notify Grant Recipient in writing of the effective date of the termination. C. Grant Recipient shall be liable to Metro for all reasonable costs and damages incurred by Metro as a result of and in documentation of the default. Following such termination, should Metro later detennine or a court find that Grant Recipient was not in default or that the default was excusable (e.g. due to a labor strike, fire, flood, or other event that was not the fault of, or was beyond the control of, Grant Recipient) this Agreement shall be reinstated or the parties may agree to treat the termination as a joint tennination for convenience whereby the rights of Grant Recipient shall be as set forth below in Section 8. 8. Joint Termination for Convenience Metro and Grant Recipient 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 only upon the mutual, written tennination agreement signed by both Metro and Grant Recipient. 9. Oregon Constitution and Tax Exempt Bond Covenants Grant Recipient acknowledges that Metro's source of funds for the Nature in Neighborhoods Capital Grants Program is from the sale of voter-approved general obligation bonds that are to be repaid using ad valorem property taxes exempt from the limitations of Article XI, sections 11, 11 b, l l c, I I d, and I l e of the Oregon Constitution, and that the interest paid by Metro to bond holders is currently exempt from federal and Oregon income taxes. Grant Recipient covenants that it will take no actions that would cause Metro not to be able to maintain the current status of the real property taxes imposed to repay these bonds as exempt from Oregon's constitutional property tax limitations or the income tax exempt status of the bond interest under IRS rules. In the event Grant Recipient breaches this covenant, Grant Recipient shall undertake whatever remedies are necessary to cure the default and to compensate Metro for any loss it may suffer as a result thereof, including, without limitation, reimbursing Metro for any Projects funded under this Agreement that resulted in Grant Recipient's breach of its covenant described in this Section. Page 5 — Capital Grants Award IGA/City of Tigard—Summer Creek 10. Liability and Indemnification As between Metro and Grant Recipient, Grant Recipient assumes full responsibility for the performance and content of the Work; provided, however, that this provision is not intended to, and does not, create any rights by third parties. To the extent permitted by Oregon law, and subject to the limitations and conditions of the Oregon Tort Claims Act, ORS chapter 30, and the Oregon Constitution, Grant Recipient shall indemnify, defend, and hold Metro and Metro's agents, employees, and elected officials harmless from any and all claims, demands, damages, actions, losses, and expenses, including attorney's fees, arising out of or in any way connected with the performance of this Agreement by Grant Recipient or Grant Recipient's officers, agents, or employees. Grant Recipient is solely responsible for paying Grant Recipient's contractors and subcontractors. Nothing in this Agreement shall create any contractual relationship between Metro and any such contractor or subcontractor. 11. Contractors' Insurance A. Grant Recipient shall require all contractors perfonning any of the Work to purchase and maintain at each contractor's expense, the following types of insurance covering the contractor, its employees and agents: 1. Commercial general liability insurance covering personal injury, property damage, and bodily injury with automatic coverage for premises and operation and product liability shall be a minimum of$1,000,000 per occurrence. The policy must be endorsed with contractual liability coverage. Grant Recipient and Metro, and their elected officials, departments, employees and agents, shall be named as additional insureds. 2. Automobile bodily injury and property damage liability insurance. Insurance coverage shall be a minimum of$1,000,000 per occurrence. Grant Recipient and Metro, and their elected officials, departments, employees, and agents, shall be named as additional insureds. Notice of any material change or policy cancellation shall be provided to Grant Recipient thirty(30) days prior to the change. B. This insurance required by Grant Recipient, as well as all workers' compensation coverage for compliance with ORS 656.017, must cover all contractors' operations under this Agreement, whether such operations are by a contractor, by any subcontractor, or by anyone directly or indirectly employed by any contractor or subcontractor. Page 6— Capital Grants Award IGA/City of Tigard—Summer Creek C. Grant Recipient shall require all contractors performing any of the Work to provide Grant Recipient with a certificate of insurance complying with this section and naming Grant Recipient and Metro as additional insureds within fifteen (15) days of execution of a contract between Grant Recipient and any contractor or twenty-four (24) hours before services such contract commence, whichever date is earlier. D. In lieu of the insurance requirements in Sections 11.A through 11.D, above, Grant Recipient may accept evidence of a self-insurance program from any contractor. Such contractor shall name Grant Recipient and Metro as additional insureds within fifteen (15) days of execution of a contract between Grant Recipient and any contractor or twenty-four (24) hours before services such contract commence, whichever date is earlier. 12. Safety Grant Recipient shall take all necessary precautions for the safety of employees, volunteers and others in the vicinity of the Work and the Project, and shall comply with all applicable provisions of federal, state and local safety laws and building codes, including the acquisition of any required permits. 13. Metro's Right to Withhold Payments Metro shall have the right to withhold from payments due Grant Recipient such sums as necessary, in Metro's sole opinion, to protect Metro against any loss, damage or claim which may result from Grant Recipient's performance or failure to perform under this Agreement or the failure of Grant Recipient to make proper payment to any suppliers, contractors or subcontractors. All sums withheld by Metro under this Section shall become the property of Metro and Grant Recipient shall have no right to such sums to the extent that Grant Recipient has breached this Agreement. 14. Project Records, Audits, and Inspections A. For the term of this Agreement, Grant Recipient shall maintain comprehensive records and documentation relating to the Project and Grant Recipient's performance of this Agreement (hereinafter"Project Records"). Project Records shall include all records, reports, data, documents, systems, and concepts, whether in the form of writings, figures, graphs, or models, that are prepared or developed in connection with any Project. Page 7— Capital Grants Award IGA/City of Tigard—Summer Creek B. In accordance with Section 2 above, Grant Recipient shall maintain all fiscal Project Records in accordance with GAAP. In addition, Grant Recipient shall maintain any other records necessary to clearly document: (i) Grant Recipient's performance of its obligations under this Agreement, its compliance with fair contracting and employment programs, and its compliance with Oregon law on the payment of wages and accelerated payment provisions; (ii) Any claims arising from or relating to (a) Grant Recipient's performance of this Agreement, or (b) any other contract entered into by Grant Recipient that relates to this Agreement or the Project; (iii) Any cost and pricing data relating to this Agreement; and (iv) Payments made to all suppliers, contractors, and subcontractors engaged in any work for Grant Recipient related to this Agreement or the Project. C. Grant Recipient shall maintain Project Records for the longer period of either (a) six years from the date the Project is completed, or (b) until the conclusion of any audit, controversy, or litigation that arises out of or is related to this Agreement or the Project and that commences within six years from the date the Project is completed. D. Grant Recipient shall make Project Records available to Metro and its authorized representatives, including, without limitation, the staff of any Metro department and the Metro Auditor, within the boundaries of the Metro region, at reasonable times and places, regardless of whether litigation has been filed on any claims. If the Project Records are not made available within the boundaries of Metro, Grant Recipient agrees to bear all of the costs incurred by Metro to send its employees, agents, or consultants outside the region to examine, audit, inspect, or copy such records, including, without limitation, the expense of travel, per diem sums, and salary. Such costs paid by Grant Recipient to Metro pursuant to this Section shall not be recoverable costs in any legal proceeding. E. Grant Recipient authorizes and permits Metro and its authorized representatives, including, without limitation, the staff of any Metro department and the Metro Auditor, to inspect, examine, copy, and audit the books and Project Records of Grant Recipient, including tax returns, financial statements, other financial documents relating to this Agreement or the Page 8— Capital Grants Award IGA/City of Tigard— Summer Creek Project. Metro shall keep any such documents confidential to the extent permitted by Oregon law, subject to the provision of Section 12(F) below. F. Grant Recipient agrees to disclose Project Records requested by Metro and agrees to the admission of such records as evidence in any proceeding between Metro and Grant Recipient, including, but not limited to, a court proceeding, arbitration, mediation or other alternative dispute resolution process. G. In the event the Project Records establish that Grant Recipient owes Metro any sum of money or that any portion of any claim made by Grant Recipient against Metro is not warranted, Grant Recipient shall pay all costs incurred by Metro in conducting the audit and inspection. 15. Public Records All Project Records shall be public records subject to the Oregon Public Records Law, ORS 192.410 to 192.505. Nothing in this Section shall be construed as limiting Grant Recipient's ability to consider real property transactions in executive session pursuant to ORS 192.660(1)(e) or as requiring disclosure of records that are otherwise exempt from disclosure pursuant to the Public Records Law (ORS 192.410 to 192.505) or Public Meetings Law (ORS 192.610 to 192.690). 16. Law of Oregon; Public Contracting Provisions The laws of the state of Oregon shall govern this Agreement and the parties agree to submit to the jurisdiction of the courts of the state of Oregon. All applicable provisions of ORS chapters 187, 279A, 279B, and 279C, 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. Specifically, it is a condition of this Agreement that Grant Recipient and all employers working under this Agreement are subject to and will comply with ORS 656.017 and that, for public works subject to ORS 279C.800 to 279C.870 pertaining to the payment of prevailing wages as regulated by the Oregon Bureau of Labor and Industries, Grant Recipient and every contractor and subcontractor shall comply with all such provisions, including ORS 279C.836 by filing a public works bond with the Construction Contractors Board before starting work on the project, unless exempt under that statute. Page 9— Capital Grants Award IGA/City of Tigard—Summer Creek 17. Notices and Parties' Representatives Any notices permitted or required by this Agreement shall be addressed to the other party's representative(s) as set forth below and shall be deemed received (a) on the date they are personally delivered, (b) on the date they are sent via facsimile, or (c) on the third day after they are deposited in the United States mail, postage fully prepaid, by certified mail return receipt requested. Either party may change its representative(s) and the contact information for its representative(s) by providing notice in compliance with this Section of this Agreement. Grant Recipient's Designated Representatives: Steve Martin City of Tigard 13125 SW Hall Blvd Tigard, OR 97223 steve@tigard-or.gov Metro's Designated Representatives: Natural Areas Program Director Metro Regional Center 600 N.E. Grand Ave. Portland, OR 97223 Fax (503)-797-1849 with copy to: Metro Attorney 600 N.E. Grand Ave. Portland, OR 97223 Fax (503) 813-7522 18. Assignment Grant Recipient may not assign any of its responsibilities under this Agreement without prior written consent from Metro, which consent shall not be unreasonably withheld. 19. Severability If any tern or provision in this Agreement shall be adjudged invalid or unenforceable, such adjudication shall not affect the validity or enforceability of the remainder of the Page 10— Capital Grants Award IGA/City of Tigard—Summer Creek Agreement, which remaining terms and provisions shall be valid and be enforced to the fullest extent permitted by law. 20.No Waiver of Claims; Modifications Metro's failure to enforce any provision of this Agreement shall not constitute a waiver by Metro of that or any other provision of this Agreement. This Agreement may be amended only by written instrument signed by both Metro and Grant Recipient and no waiver, consent, or change of ten-ns of this Agreement shall bind either party unless in writing and signed by both parties. 21. Integration of Agreement Documents All of the provisions of any proposal documents including, but not limited to, Requests for Proposals, Grant Proposals and Scopes of Work that were utilized in conjunction with the award of this Grant are hereby expressly incorporated herein by reference, provided, however, that the terms described in Sections 1 through 21 of this Agreement and in Exhibit A shall control in the event of any conflict between such terms and such other incorporated documents. Otherwise, this Agreement represents the entire and integrated agreement between Metro and Grant Recipient and supersedes all prior negotiations, representations or agreements, either written or oral. The law of the state of Oregon shall govern the construction and interpretation of this Agreement. The Parties, by the signatures below of their authorized representatives, hereby acknowledge that they have read this Agreement, understand it, and agree to be bound by its terms and conditions. IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year indicated below. City of Tigard METRO Signature Michael Jordan Metro Chief Operating Officer Print Name: Title: Date: Date: Page 11 — Capital Grants Award IGA/City of Tigard—Summer Creek APPROVED AS TO FORM BY: Signature Dan Cooper Metro Attorney Print Name: Title: Date: Date: Page 12— Capital Grants Award IGA/City of Tigard—Summer Creek Exhibit C to . - Metro resolution No. 10-4134 After recording return to: Office of Metro Attorney Exhibit C to City of 600 NE Grand Avenue Tigard Resolution Portland,OR 97232-2736 DRAFT CONSERVATION EASEMENT THIS CONSERVATION EASEMENT(the"Easement")is entered into this day of 200_,by and between ("Grantor")and Metro, an Oregon municipal corporation("Grantee"). RECITALS A. Grantor is the fee simple owner of that certain real property approximately acres in size located in the County of[County], State of Oregon,commonly known as [address],and more particularly described on the attached Exhibit A(the"Property"). B. On November 7,2006,the voters approved Ballot Measure 26-80(the"2006 Natural Areas Bond Measure"),which provided Grantee with funds for the acquisition of natural areas from willing sellers. The 2006 Natural Areas Bond Measure(the"Bond Measure")was designed to provide Grantee with the ability to protect the region's significant natural areas,fish and wildlife habitat, greenways,water quality, and lands near rivers and streams. The Bond Measure allocated$15 million from bond proceeds to the Nature in Neighborhoods Capital Grants Program(the"Metro Grants Program")to provide opportunities for the community to actively protect fish and wildlife habitat and water quality in areas where people live and work. C. Grantor was able to acquire the Property in part by using funds provided by the Metro Grants Program. A condition of Grantor's receipt of such funds from Metro was its agreement to grant this conservation easement. D. In order to preserve the natural features of the Property that provide significant wildlife habitat values and contribute to water quality, Grantor desires to grant to Grantee,and Grantee desires to accept from Grantor, a conservation easement over the Property. For valuable consideration,the receipt of which is hereby acknowledged by Grantor, and the mutual covenants,terms, conditions, and restrictions contained herein,the parties hereby agree as follows: AGREEMENT 1. Grant of Conservation Easement. For and in consideration of the sum of ($ and of the mutual promises,terms,conditions,restrictions and undertakings herein set forth,Grantor hereby voluntarily grants to Grantee a perpetual,non-possessory conservation easement,in gross,on, over,under, and across the Property. This Easement is being created and acquired in accordance with ORS 271.715 to 271.795,and the provisions herein shall be construed and applied accordingly. 2. Purpose. (a) General Purpose. The general purposes of this Easement are to ensure that the Property will be retained forever predominantly in its natural condition for: [INCLUDE ONLY APPROPRIATE AND RELEVANT BULLETS FROM BELOW—AT LEAST ONE FROM FEDERAL CITATIONS AND RELEVANT PART OF STATE CITATION] Page l-Conservation Easement—[name] Exhibit C to - Metro Resolution No. 10-4134 ® "The protection of a relatively natural habitat of fish,wildlife, or plants,or similar ecosystem"(as that phrase is used in 26 U.S.C. §170(h)(4)(A)(ii)); a "The preservation of land areas for outdoor recreation by, or the education of, the general public"(as that phrase is used in 26 U.S.C. §170(h)(4)(A)(i)); ® "The preservation of certain open space(including farmland and forest land) where such preservation is(1) for the scenic enjoyment of the general public,or(II)pursuant to a clearly delineated Federal, State, or local governmental conservation policy,and will yield a significant benefit"(as that phrase is used in 26 U.S.C. §I70(h)(4)(A)(iii));and m "Protecting natural, scenic,or open space values of real property,ensuring its availability for agricultural,forest,recreational, or open space use,protecting natural resources,maintaining or enhancing air or water quality,or preserving the historical,architectural,archaeological, or cultural aspects of real property" (as that phrase is used in ORS 271.715(1)). (b) Specific Purpose, Protection of Conservation Values. The more specific purpose of this Easement is to prevent any use or occupancy of, or activity on,the Property that will impair or interfere with the Conservation Values, as identified in that certain Nature In Neighborhoods Capital Grant Agreement between Grantor and Metro,dated [INSERT DATE I (the"Grant Agreement"),on file at the offices of the Grantee. 3. Prohibited and Permitted Uses. Subject to encumbrances of record on the Property,Grantor shall not engage in any activity on,or use of,the Property that is inconsistent with the terms of this Easement or materially interferes with or impairs the Conservation Values of the Property. Without limiting the generality of the forgoing,the activities and uses described on the attached Exhibit B are expressly prohibited. Grantor reserves all rights accruing from its ownership of the Property, including the right to engage in or permit or invite others to engage in all uses of the Property that are not inconsistent with the terms of this Easement or expressly prohibited herein. Grantor shall provide Grantee with not less than thirty(30)days written notice prior to(a)applying for any grading,tree removal,building, or construction permit,and(b)undertaking any activity that could materially interfere with or impair the Conservation Values of the Property. 4. Baseline Documentation. The current condition of the Property is documented in the Grant Agreement. an inventory of relevant features of the Property,dated ,200_,on file at the offices of Grantee (the"Baseline Documentation"). The parties agree that the Baseline Documentation provides an accurate representation and description of the Property at the time of this grant. The Baseline Documentation is intended to serve as an objective, although not exclusive, information baseline for monitoring compliance with the terms of this Easement. 5. Enforcement and Remedies. (a) Notice of Violation. Grantee shall have the right to prevent any use of,or activity on, the Property that is inconsistent with the purpose and terms of this Easement. If Grantee determines that Grantor,or third parties under Grantor's authority or permission,are in violation of the terms of this Easement,Grantee shall give written notice to Grantor of such violation and demand corrective action sufficient to cure the violation. In the event that such violation involves injury to the Property resulting from any use or activity inconsistent with the purpose and terms of this Easement, such notice shall demand that Grantor,at Grantor's sole cost and expense, restore the portion of the Property so injured to its prior condition in accordance with a plan approved by Grantee. (b) Failure to Cure. If Grantor fails to cure.a violation within 30 days after Grantor's receipt of notice thereof from Grantee,or under circumstances where the violation cannot reasonably be cured within a 30-day period, fails to begin curing the violation within the 30-day period, Grantee may bring an action at law or in Page 2-Conservation Easement—[name] Exhibit C to Metro Resolution No. 10-4134 equity to(i)enforce the terms of this Easement,(ii)enjoin the violation by a temporary,preliminary,and/or permanent injunction,(iii)recover any damages to which Grantee may be entitled for such violation of the terms of this Easement, and (iv)require the restoration of the Property to the condition and appearance that existed prior to such violation. (c) Emergency Enforcement. If Grantee, in its sole discretion,reasonably determines that the circumstances require immediate action to prevent or mitigate significant damage to the Property,Grantee may enter the Property to prevent or mitigate further damage to or alteration of the Property necessary to protect the Conservation Values or otherwise pursue its remedies under this Section 5 without prior notice to Grantor and without waiting for the expiration of the cure period set forth above in subsection 5(b). (d) Nature of Remedies. Grantee shall have available all legal and equitable remedies to enforce Grantor's obligations hereunder. Grantor agrees that Grantee's remedies at law for any violation of the terms of this Easement are inadequate, and that Grantee shall be entitled to injunctive relief,both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including without limitation specific performance of the terms of this Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's rights under this Section 5 shall be cumulative, in addition to all remedies now or hereafter existing at law or in equity,and apply equally in the event of either actual or threatened violations of the terms of this Easement. (e) Costs of Enforcement. Grantor shall reimburse Grantee for any costs or expenses incurred by Grantee in enforcing the terms of this Easement necessitated by Grantor's violation of the terms of this Easement including,without limitation,all reasonable court costs,attorney fees, expert witness fees,and costs of restoration mitigation. (f) Grantee's Discretion to Enforce. Enforcement of the terms of this Easement is at the discretion of Grantee. Any forbearance by Grantee to exercise its rights under this Easement in the event of any breach of any terms of this Easement by Grantor,its agents,employees,contractors, family members, invitees, or licensees shall not be deemed or construed to be a waiver by Grantee of such term under this Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. (g) Waiver of Certain Defenses. Grantor acknowledges that it has carefully reviewed this Easement and has had the opportunity to consult with and been advised by legal counsel of its terns and requirements. In full knowledge of the provisions of this Easement,Grantor hereby waives any claim or defense it may have against Grantee or its successors or assigns under or pertaining to this Easement based upon waiver,laches,estoppel, adverse possession,or prescription. (h) Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed to entitle Grantee to bring any action against Grantor to abate,correct,or restore any condition on the Property or to recover damages for any injury to,or change in,the Property resulting from(1)causes beyond Grantor's control including,without limitation,natural changes,fire, flood, storm or earth movement,acts of trespassers, or(2)any reasonable and prudent action taken by Grantor under emergency conditions to prevent, abate,or mitigate significant injury to the Property resulting from such causes. 6. Liability and Indemnification. (a) Liability. The parties acknowledge and agree that because Grantor is the fee owner of the Property, except as specifically provided for under subsection(b)below,the general liability for risks,damages,injuries, claims,or costs arising by virtue of Grantor's ownership and use of the Property shall remain with Grantor as a normal and customary incident of the right of Property ownership. Nothing in this Easement shall be construed Page 3-Conservation Easement—[name] Exhibit C to - Metro Resolution No. 10-4134- as 0-4134as giving rise to any right or ability of Grantee to become an"owner"or"operator"of the Property within the meaning of the Comprehensive Environmental Response,Compensation and Liability Act of 1980, as amended. (b) Indemnification. Grantor shall indemnify, defend, and hold harmless Grantee(and Grantee's officers, employees and agents)from and against all claims,suits,actions,losses,damages, liabilities,costs and expenses of any nature whatsoever resulting from, arising out of,or relating to the activities of Grantor and Grantor's invitees on the Property. To the extent permitted by Article XI, Section 7 of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260 to 30.300,Grantee shall indemnify, defend,and hold harmless Grantor from and against all claims,suits,actions, losses, damages, liabilities,costs and expenses of any nature resulting from,arising out of,or relating to the activities of Grantee(or Grantee's officers,employees and agents)on the Property, except to the extent such damages are due to Grantor's or Grantor's invitees'negligence or willful misconduct,or to any breach of this Easement by Grantor or Grantor's invitees. 7. Covenants Running With the Land. The parties acknowledge and agree that the covenants and agreements set forth in this Easement are intended to bind Grantor, Grantee,and their respective successors and assigns. The Property and the Property shall be held,conveyed,mortgaged,pledged as security for a debt,leased, used, and occupied subject to the covenants,conditions,restrictions,and other limitations set forth in this Easement(the"Restrictions"). All and each of the Restrictions are imposed as equitable servitudes upon the Property and every part thereof shall run with the land. Furthermore,all and each of the Restrictions shall be binding upon and burden,and shall inure to the benefit of, all persons having or acquiring any right,title,or interest to either the Property or the Property. 8. Amendment. Grantor and Grantee may mutually agree in writing to amend this Easement; provided that no amendment shall be allowed that will affect the qualification of this Easement or the status of Grantee under any applicable laws,including 26 U.S.C. § 170(h), as amended(or any successor provision(s)then applicable), and ORS 271.715-795. hl no event shall the"economic hardship" of Grantor constitute a changed circumstance that would allow Grantor to unilaterally amend this Easement. 9. Assignment. This Easement is transferable by Grantee,but Grantee may only assign its rights and obligations hereunder to an organization that is a"qualified organization"at the time of the transfer under 26 U.S.C. § 170(h)(3)(or any successor provision then applicable)and authorized to acquire and hold conservation easements under ORS 271.715 to 271.795 (or any successor provisions then applicable). Grantee shall notify Grantor in writing,at Grantor's last known address,in advance of such assignment. In the event that an assignee assumes the obligations of Grantee hereunder,then Grantee shall have no further liability with respect to this Easement. 10. Recording. Grantor shall immediately record this instrument,and any amendment agreed to pursuant to Section 8,in the official records of the county within which the Property is located, and in any other appropriate jurisdictions, and Grantee may re-record it at any time as may be required to preserve Grantee's rights in this Easement. 11. Notice and Addresses. Any notice,demand,request,consent,approval,or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by mail, postage prepaid,to the address set forth below. Any party may change the address to which its notices are to be sent by duly giving notice pursuant to this Section. To Grantor. Page 4-Conservation Easement—[name] Exhibit C to -- Metro Resolution No. 10-4134 To Grantee: Metro Land Conservation Program Director 600 NE Grand Avenue Portland, OR 97232 With a copy to: Office of Metro Attorney 600 NE Grand Avenue Portland, OR 97232 12. General Provisions. (a) Governing Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Oregon. (b) Liberal Construction and Conservation Intent. Any general rule of construction to the contrary notwithstanding,this Easement shall be liberally construed in favor of the grant to effect the Purpose of this Easement and the policy and purpose of ORS Chapter 271. If any provision in this instrument is found to be ambiguous,an interpretation consistent with the Purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. Any ambiguities in this Easement shall be construed in a manner which best effectuates the Conservation Values for the Property. (c) Changed Circumstances. Grantor and Grantee acknowledge that future conditions may change in the areas neighboring the Property and the Property, including without limitation, increased development, land use, and zoning changes. Grantor and Grantee further acknowledge that such future conditions may result in various hardships to Grantor by virtue of the restrictions contained in this Easement,including without limitation, restrictions on the ability to develop the Property and the Property. However,Grantor and Grantee expressly intend that this Easement continue in perpetuity regardless of such changes conditions and circumstances and regardless of hardship,whether such hardship is economic or otherwise. In no event shall the hardship of Grantor constitute a changed circumstance that would allow Grantor to unilaterally terminate this Easement. (d) Severability. If any provision of this Easement,or its application to any person,entity, or circumstance, is found to be invalid,the remainder of the provisions of this Easement,or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected. (e) Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Property and supersedes all prior discussions,negotiations,understandings,or agreements relating to the Property, all of which are merged into this Easement. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment that complies with Section 8. (f) Termination of Rights and Obligations. A party's rights and obligations under this Easement terminate upon assignment of that party's interest in the Easement or transfer of the Property,except that liability for acts or omissions occurring prior to transfer shall survive assignment or transfer. Page 5-Conservation Easement—[name] Exhibit C to -_ Metro Resolution No. 10-4134" IN WITNESS WHEREOF, the parties have executed this Easement as of the date first set forth above. GRANTEE: GRANTOR: METRO,an Oregon municipal corporation By: Michael Jordan,Chief Operating Officer [name] + [name] State of OREGON County of MULTNOMAH This instrument was acluiowledged before me on , 20 by Michael Jordan as Chief Operating Officer of Metro. Notary Public-State of Oregon State of OREGON County of This instrument was acknowledged before me on , 20 by [name]. Notary Public-State of Oregon Page 6-Conservation Easement—[name] Exhibit C to _ 1 - Metro Resolution No. 10-4134' State of OREGON County of This instrument was acknowledged before me on 20 by [name]. Notary Public-State of Oregon M:litlomey\confidential\I6 BondMens?006\06 Grants ProgramUtestrictive Conservation Easement for acquisitions TEMPLATE 012110.doc Page 7-Conservation Easement—[name] Exhibit C to Metro Resolution No. 10-4134 Exhibit A Property Description Page I Exhibit A to Conservation Easement—[name] Exhibit C to Metro resolution No. 10-4134 Exhibit B Grantor's Prohibited Uses and Activities 1. The partition,division, subdivision,or de facto division of the Property. 2. Residential,commercial,or industrial use,activities,improvements, or development of any kind. 3. The excavating,draining,dredging,mining,drilling,removing or exploring for or extracting of minerals, oil,gas, coal,and other hydrocarbons, soils, sands, gravel,rocks or any other materials on or below the surface of the Property. 4. The manipulation or alteration,diminution,or drainage of any natural water course, wetland, stream bank,riparian area,shoreline,or body of water on the Property, any activity that causes or is likely to cause significant pollution of any surface of subsurface waters, or any use or activity that causes or is likely to cause significant soil degradation or erosion. 5. Agricultural activities of any kind,including,without limitation,the establishment and maintenance of a livestock corral,personal gardens,row crops,haying, grazing, livestock watering,or other pasture uses. 6. The placing, filling, storing,processing,disposing,dumping,depositing,abandonment, discharging,or release of any gaseous,liquid,solid,or hazardous wastes, substances, materials,trash,or debris of whatever nature on, in,over,or under the ground or into the surface or ground water of the Property. 7. The introduction or planting of any non-native,noxious,or invasive species. Page 1 Exhibit B to Conservation Easement—[name] Project No.: 210-102 Project Name: Summer Creek OREGON WATERSHED ENHANCEMENT BOARD I Exhibit D WATERSHED ACQUISITION GRANT AGREEMENT This grant agreement (the "Agreement") is between the State of Oregon acting by and through the Oregon Watershed Enhancement Board (the "Board") and the City of Tigard ("Grantee") in consideration of the mutual covenants contained herein. This Agreement consists of the following, in descending order of precedence: this Agreement less all Exhibits; and attached Exhibit A (Declaration of Restrictive CovenantsJand Equitable Servitudes), Exhibit B (Grant Application), and Exhibit C (Federal Grant Requirements). The exhibits are incorporated herein by this reference. �. A. Authorization \ \ The grant (the "Grant Award") provided by the Board under this Agreement is au horized by ORS 541.351 to 541.401 and is subject to Oregon-A dministrative,Rules 695-001-0000 to 695- 050-0050 as such rules may be periodically amended by the Board: B. Grant Award \� The Board hereby agrees to provide $1,000;000:00 in-Pacific Coastal Salmon Recovery Fund (PCSRF) funds and other funds (the"Funds'\5\on the-te Zln s-specified in this Agreement for the purpose of funding Grantees acquisition of fe,\simple tttle,on real property (the "Property") located in Washington County, Oregon, as more;particularly�described in the property description included in/the Declaration of Restrietiy e Covenants and Equitable Servitudes (the "Declaration") attached as xhibit A). :\ C. Fund Source---. The Gran't'Award is nded\in part�from a federal source (Catalogue of Federal Domestic Assistance.Number 11.438).\'Grantee�maybe subject to the federal single audit act requirements in OMB Circular A-133, and additional federal requirements identified in Exhibit C. D. ConservationPurpose) �y The Conservation Pu\�os this Grant Award is the protection of the Property, which consists in part of wetlands andJ,ripa 'an forest. Protection of the Property will ensure that it can be used in perpetuity for environmental education,public recreation, and enhancement of fish and wildlife resources. E. Funding Conditions (1) The Board certifies that at the time this Agreement is entered into, sufficient funds are authorized for expenditure within the Board's current appropriation or limitation. (2) As a condition for the disbursement and use of the Grant Award, Grantee agrees to the following: Project No.: 210-102 Project Name: Summer Creek (a) Grantee shall install signage that states that the Property is protected for the benefit of fish and wildlife, and that funding for this project was provided by the Board. (b) Grantee shall provide notice on any technical, educational, or information material pertaining to this project that funding was provided by the Board. (c) The Grant Award will be used exclusively for the fee simple title purchase of the Property. (d) As a condition of this Grant Award, Grantee has executed the Decl'ar'ation, encumbering the entirety of the Property. IX (e) The Grant Award will be disbursed to an escrow account Mth Wratten escrow instructions from the Board, to which the escrow agent must agree in writing. The Board's escrow instructions will include, but not be limited to, the requirement%at the Grant\Award not be released from escrow until: (i) the escrow agent has recorded the fully executed Declaration, and (ii) the title company is irrevocably committed to issue a title insurance policy c:sistent with the conditions listed in the escrow instructions. (f) Use of the Property shall be consistent with the Declaration, and the grant application submitted to the Board (the "Grant Application"), attached as�EXhibit B. aGrantee shall provide written confirm\\ `�" shin to ount to the Board that the cquisition and use of the Property for the Co sery ton Purpossee�de cribed in Section D is compatible with, and allowed by, applicable prov�istons of t e Washington County Comprehensive Plan and-land use regulations. (h) Grantee shall n6`ti assign or transfer its rights ordelegate its responsibilities under this Agreement or the Declaration, or sell;lease, exchange or otherwise dispose of the Property without the Board-is-prior writte approval which the Board shall not unreasonably withhold. After Grantee/-gives,no�tice, the Board shall Sider transfer of the interest in land acquired with the Board)s assistanceat.the,next regularly scheduled public business meeting of the Board's governing"body in accordance with O:RSj541.376. i If Grange Tans to rant easementtss or encumbrances on the Property, or allow the O �P \ g modification of easements orencumbrances pre-dating the Declaration, Grantee shall provide 30 days prior written`notice of the proposed easement or encumbrance to the Board, and shall give the Board an opport�unity'to consult on the proposed easement or encumbrance language. p 0) In the event that th'e Property is transferred or assigned without the Board's consent or the Property is used in a manner that is not consistent with the Declaration, the management goals and objectives stated in the Grant Application, and the Conservation Purpose of the Grant Award as described in Section D, Grantee shall pay the Board the greater of the following: The Funds, together with interest from the effective date of the Declaration ("Effective Date") at the rate provided for in ORS 82.010, as amended from time to time. The required repayment amount will not exceed five (5) times the Funds; or Project No.: 210-102 Project Name: Summer Creek The Liquidation Value, which takes into account both increases and decreases in the fair market value of the Property over time, and is to be calculated as follows: the fair market value of the Property at the time the Liquidation Value is to be determined, as if unencumbered by any other lien or mortgage on the Property; less the value (if any) of any capital improvements Grantee made to the Property after the Effective Date, if the improvements are otherwise permitted pursuant to the Declaration; multiplied by 18.94% (which constitutes the percentage that the consideration paid for the Declaration bears to the fair market value of the Property at the time of the Declaration, as determined by the Board's review appraiser in the appraisal review report dated November 6, 2009, on file with the Boar ,4) For example, if the fair market value of the Property at the time the Liquidation Value is to�befdetermined is $1,000,000, and the value of Grantee's capital improvements made after the Effective Date is $200,000, and the Board's grant equaled 60% of the fair market value of the ropervty at the time the Declaration was made, the Liquidation Value is: ($1,000,000 - $200,000) x'0:60 = $480,000 (k) Grantee shall develop and implement regi Z'@F'e\vironmell on ro .amconsistenteducatiewith the education plan presented, and in partnership with he�rgan2ations specifiid, in the Grant Application. The program shall include measures that will be taken to protect the Property's natural resources from the effects of use associated with the program. The measures shall include,but not be limited to, an acces§-p lan that address s�trail�coonsolidation described in the Grant Application. (1) Grantee shall present the egional environm�.ental e! d atio p gram to the Board for discussion and approval within nin e(9) months\of\the final signature on this Agreement. m Grantee shall re fo annuallyto the Board for\ Iver 5 ears regarding use and effectiveness ( ) P � \annually g g of the regional education program) The.annual reports shall be submitted to the Board on the following dates:;Sep-temberY,,2'012; S`eptembe 013; September 1, 2014; September 1, 2015; and September-1016. n Gr ntee, u on rior reqquest and at amutually agreeable time, shall allow Board members v P P and their represseentatives access to theV�Property to periodically monitor or evaluate the project. ( ) o These cond tions shall contnue in effect for the term of this Agreement. 1 (P) Grant a eemen�filesued for subsequent projects only if education and reporting obligations for this Agreement have been met by the deadlines specified herein. F. Effective Date; Term of Agreement This Agreement shall become effective upon execution by Grantee and the Board. Execution may be made by facsimile and in counterparts, with conforming originals provided to the Board within seven (7) days of the date of facsimile. This Agreement shall remain in effect for a term of six (6) years from the final signature. G. Records Maintenance and Access Project No.: 210-102 Project Name: Summer Creek (1) Access to Records and Facilities. The Board, the Secretary of State's Office of the State of Oregon and their duly authorized representatives will have access to the books, documents, papers and records of Grantee that are directly related to this Agreement, the grant moneys provided hereunder, or the project for the purpose of making audits and examinations. In addition, the Board, the Secretary of State's Office of the State of Oregon and their duly authorized representatives may make and retain excerpts, copies and transcriptions of the foregoing books, documents, papers and records. Grantee will permit authorized representatives of the Board, the Secretary of State's Office of the State of Oregon and their duly authorized representatives to perforin site reviews of all services delivered as part of the project. (2) Retention of Records. Grantee will retain and keep accessible il,oks, documents, papers, and records that are directly related to this Agreement, the rids and the project for a minimum of three (3) years, or such longer period as may be required byother provisions of this Agreement or applicable law, following termination or expiration of t is Agreement. If there are unresolved audit questions or litigation at the end of the liree�year period, Grantee will retain the records until the questions or litigation are resolved. (3) Expenditure Records. Grantee will docum t the expenditure of all grant moneys disbursed by the Board under this Agreement. Grantee w 1I crl at and maintain al expenditure records in accordance with generally accepted accounting principles and in sufficient detail to permit the Board to verify how the gran6oneys were expend d;in luding without limitation accounting for all other funds expended, as well-as in-kind services anonated materials. H. Amendments \ Any amendment to this Agreementmust be mutually agreed�to in writing by all parties. 1. Assignment Grantee shalL.not-assign or transfer iinterest in th s Agreement without prior written approval from the Board. J. 1 rmigation This Agreement`may be terminated at any time by mutual written consent of all parties. K. Compliance Wit h-Applicable Law Grantee shall complywith all federal, state and local laws, regulations, executive orders and ordinances applicable to this Agreement or to the project. Without limiting the generality of the foregoing, Grantee expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to this Agreement or to the project: (a) all applicable requirements of state civil rights and rehabilitation statutes, rules and regulations, (b) Titles VI and VII of the Civil Rights Act of 1964, as amended, (c) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended, (d) the Americans with Disabilities Act of 1990, as amended, (e) Executive Order 11246, as amended, (f) the Health Insurance Portability and Accountability Act of 1996, (g) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended, (h)the Vietnam Era Veterans' Project No.: 210-102 Project Name: Summer Creek Readjustment Assistance Act of 1974, as amended, (i) all regulations and administrative rules established pursuant to the foregoing laws, and 0) all other applicable requirements of federal civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to this Agreement or to the project and required by law to be so incorporated. Grantee shall not discriminate against any individual, who receives or applies for services as part of the project, on the basis of actual or perceived age, race, creed, religion, color, national origin, gender, disability, marital status, sexual orientation, age or citizenship. All employers, including Grantee, that employ subject workers who provide services in the State of Oregon shall comply with ORS 656.017 and provide the required Workers' Compensation coverage, unless such employers are exempt under ORS 656.126. L. Grantee Authority The individual signing on behalf of Grantee hereby cerrtfZ01s- (\SW\ears and rpenalty of applicable law that the signator is authorized to act on behalf of Grantee, has authority and knowledge regarding Grantee's payment of taxes,mid-to the best of signator's knowledge, Grantee is not in violation of any Oregon tax lawls. \�i Y M. Indemnity �� Grantee shall indemnify and hold the Boar' d andthe State of Or on,and their officers, employees, and agents harmless against all\1 so ses and liabilities art* ing out of or relating to the activities of Grantee or its officers, employees, subcontractors, or a.ents on the Property. \�V To the extent permitted by Article\XI, section 7\6f the OregoUn/Constitution and the Oregon Tort Claims Act, ORS 30.260"o 30.300, the Board shall indemnify and hold Grantee and its officers, employees, and a ge�s��ess against all losses and abilities arising out of or relating to the activities of the Board or 'ts officers—, employees,` subcontractors, or agents on the Property. Pro*ect Ma afia er.for Grantee: Project Manager for the Board: Dennis °:oellermeier Miriam Hulst CitY40- Tigard Oregon Watershed Enhancement Board 8777 SVCS\Burnham Street 775 Summer Street NE, Suite 360 Tigard, OR 97223 Salem, OR 97301-1290 (503) 718-25961 (503) 986-0026 Project No.: 210-102 Project Name: Summer Creek THIS AGREEMENT, INCLUDING ALL MATERIALS INCORPORATED HERE BY REFERENCE, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES ON THIS SUBJECT. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HERE REGARDING THIS AGREEMENT. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS AGREEMENT SHALL BIND ANY PARTY UNLESS IN WRITING AND SIGNED BY ALL PARTIES. SUCH WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THE FAILURE OF THE BOARD TO ENFORCE^ANY PROVISION OF THIS AGREEMENT SHALL NOT CONSTITUTE A WAIVER BTHEOARD OF THAT OR ANY OTHER PROVISION. GRANTEE, BY EXECUTING'THIS AGREEMENT, HEREBY ACKNOWLEDGES THAT GRANTEE HAS READ THIS�AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY IT TERMS A,D CONDITIONS. AGREED: FOR GRANTEE: FOR THE B O ARD: City of Tigard \ Thomas M. By,er OWEB Executive Director Date Date APPROVED FOR KLEGAL'S 'FU, GIENCY: Assistant.A'ttorney General,Oregon Department of/lustice Date Project No.: 210-102 Project Name: Summer Creek EXHIBIT A DECLARATION OF RESTRICTIVE COVENANTS AND EQUITABLE SERVITUDES l Project No.: 210-102 Project Name: Summer Creek EXHIBIT B GRANT APPLICATION r � Project No.: 210-102 Project Name: Summer Creek EXHIBIT C FEDERAL GRANT REQUIREMENTS For the purposes of the federal granting agency,OWEB is the recipient of federal funds and Grantee is the sub-recipient of federal funds. In the following requirements, Grantee is also referred to as "Recipient." As a sub-recipient of Federal grant funds, pursuant to this Agreement, Recipient assumes sole liability for Recipient breach of the conditions of the grant, and will, upon`Recipient breach of grant conditions that requires the state to return funds to the grantor, hold harmle ss and indemnify the state for an amount equal to the funds received under this Agreement; o ,,legal limitations apply to the indemnification ability of the Recipient grant funds, the indemnification amount will be the maximum amount of funds available for expenditure, including any available contingency funds or other available non-appropriated funds, up to the amounttr�re�Lved under this Agreement. (a) All equipment and materials purchased with funds made available by this Agreement must be used only for purposes of the same generale. ature outlined h,this Agreemen � (b) The cost principles of OMB Circular A-21 (Educati onInstit tions), A-87 (S ate, Local or Indian Tribal Government), or A-122 (Non-Profit Organizations) are applicable, as appropriate to this award. (c) The Recipient agrees to ensure that\all (conference, meeting convention, or training space funded in whole or in part with Fed 6I,fi n&, complies wiNthe Hotel and Motel Fire Safety Act of 1990. � } (d) The Recipient agrees to comply with'the f OMB Circular A-133, "Audits of States, Local Governments, and Non-PrAit.6rganizat ons�. (e) The Recipient agrees o comply with procurement requirements of 40 CFR Part 30 or 40 CFR Part 31,s applicable\,Vo purchases funded with federal grant funds. (f) Recipient agrees�that�n�o poAion of the federa�gr nt funds will be used to engage in lobbying of the Federal Government/ior di litigation against the United States unless authorized under existing'law:—The R eiplentag s-to provide certification to OWEB at project completion. Reeipie`nT shallbide by its respective OMB Circular(A-21, A-87, or A-122), which A,e`cipient rohibits the use f Federal g ant funds for litigation against the United States. Any Part 30 shall abide'by its re elective OMB Circular(A-21 or A-122), which prohibits the use cfvFederal grant gun&to participate in various forms of lobbying or other political act vities (g) Pursu nt to Section 18 of the Lobbying Disclosure Act, the Recipient affirms that it is not a nonprofit organization described in Section 501(c) (4) of the Internal Revenue Code of 1986; or that it is a nonprofit organization described in Section 501(c) (4) of the Code but does not and will not engage in lobbying activities as defined in Section 3 of the Lobbying Disclosure Act. G, (h) If Grant Agreement exceeds $100,000, Recipient agrees to comply with Title 40 CFR Part 34,New Restrictions on Lobbying and to submit certification and disclosure forms accordingly. Any Recipient who makes a prohibited expenditure under Title 40 CFR Part 34 or fails to file the required certification or lobbying forms shall be subject to a civil penalty of not less than$10,000 and not more than $100,000 for each such expenditure. Exhibit E After recording return to: Oregon Watershed Enhancement Board 775 Summer Street NE, Suite 360 Salem,OR 97301-1290 DECLARATION OF RESTRICTIVE COVENANTS AND EQUITABLE SERVITUDES THIS DECLARATION OF RESTRICTIVE COVENANTS AND EQUITABLE SERVITUDES (the "Declaration") is made this day of , 2010 (the "Effective Date"), by thelCity of Tigard, an Oregon municipal corporation ("Owner"),the owner of certain real property located in Washington County, Oregon, more particularly described in the attached Exhibit A (the "Property"), in favor of the State of Oregon acting by and through its Oregon Watershed Enhancement.Board (''OIVE81t). BACKGROUND A. Owner submitted Grant Application No. 210-1.©2�'('the "Application")to OWEB for - assistance with funding the purchase of the Property. B. OWEB agreed to provide$1,000,000 in Pacific Coastal Sa'Imon Recovery Fund (PCSRF) funds and other funds (the "Funds");`to,,0wner for the purpose of assisting with purchase of the Property from the Trusf'fo:r,Public Land, a California nonprofit public benefit corporation, in exchange for Owner agre'e' ing to use the Property for environmental education, public recreation, and_tish an;d wild life'protection as described in the Application on file with dWEB:o C. Owner entered into an agreement with the Trust for Public Land pursuant to which the Trust for Public Land agreed to'convey the Property to Owner. kµ NOW THEREFORE„in consideration of the receipt of:$;1,000,000 from OWEB to be used for the purpose of purchasing'the"Proper..ty,,Owner,hgreby declares,fhat the Property subject to this Declaration is now held, andmust be sold and'conveyed,subject to the following land use restrictions and covenants, which wilf°run with the Property,and be bi'ndirig on all parties having or acquiring any right, title or interest in.the Property or any,part of it, and inure to the benefit of OWEB. SECTION 1. PROPERTY USE; PROPERTY USE RESTRICTIONS 1.1 Land Use. Owner shall,use the Property for environmental education and public recreation in accordance with the Applica"tion. Owner shall also protect and enhance the Property's fish and wildlife resources as described in'the Application. Not to diminish the generality of the foregoing, Owner shall not partition or subdivide the Property. Further, Owner shall not use or develop the Property for residential, commercial or industrial purposes. 1.2 Encumbrances. This Declaration is made by Owner,free of all liens and encumbrances, except as specifically set forth in attached Exhibit B. 1.3 Assignment or Disposal. Owner shall not assign or transfer its rights or delegate its responsibilities under this Declaration or sell, lease, exchange or otherwise dispose of the Property without OWEB's prior written approval, which OWEB shall not unreasonably withhold. After Owner gives notice, OWEB shall consider transfer of the interest in land acquired with OWEB's assistance at the next regularly scheduled public business meeting ofth4--OWEB's governing body in accordance with ORS 541.376.aceeFding to the eFiteFma spe6fied OR GAR ChapteF 695, as ameRded fFaw time te time. If Grantor plans to grant easements or encumbrances on the Property, or allow the modification of easements or encumbrances pre-dating this Declaration, Owner shall provide 30 days prior written notice of the proposed easement or encumbrance to OWER, and shall give OWEB an opportunity to consult on the proposed easement or encumbrance language. SECTION 2.GENERAL PROVISIONS 2.1 Enforcement. OWEB has standing and may bring an action at law or-equity in a court of competent jurisdiction to enforce all restrictions and covenants established by-this Declaration and to enjoin violations, ex parte, if necessary. If Owner violates this Declaration;"'OWEB may demand from Owner and Owner shall return to OWEB the Funds with interest consistent.with OAR 695-045-0140 among other remedies. The failure to enforce any provision in no`event may be deemed a waiver of the right to do so later. �:'�;� 2.2 Severability. If any provision of this Declaration conflicts With governing law or if any provision is held to be invalid or unenforceable by a court of competent juri'sd_ictfon, (i) such provision shall be deemed to be restated to reflect as nearly as'possible the original intentions of OWEB and Owner in accordance with applicable law, and (ii)the remaining terms, provisions, covenants and restrictions of this Declaration shall remain in full force and effect. 2.3 Duration.The restrictions.established by this Declaration are,;inte`nded to run with and bind the Property, and to inure to the benefit o.f and be enforceable by OWEB, its legal representative, successors and assigns in perpetuity.; , 2.4 Amendment.This Declaration may-.not be amended�or revoked, except by written agreement executed by OWEB and Owner, tfieirsuccessors and assigns, and recorded in the manner then provided for bylaw. 2.5 Limitation of Liability of OWEB. Unde,'ho circumstance will OWEB have any liability to Owner, its successors and assigns, or otheruser or guest or invitee of Owner by virtue of OWEB's enforcement or failure to enforce„the rights established by this Declaration, and Owner, its successors and assigns, shall indemnify OWEBt'Iagainst any liability related to the Property. K 2.6 Choice of Law.The,laws.,of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Declaration, including, without limitation, its validity, interpretation,construction, performance, and enforcement. 2.7 Breach of Agreements. Owner represents and warrants that this Declaration does not violate any of the terms of any other agreement to which Owner is a party, or to which the Property is subject. The true and actual consideration for this Declaration is the Funds in the amount of$1,000,000, provided by OWEB to Owner. OWNER: the City of Tigard, an Oregon municipal corporation By: As: STATE OF OREGON ) ss. ,. County of ) This instrument was acknowledged before me on this ,day of$ah, 2010, by as the authorized representat ue of the City of Tigard,aegon municipal " Al corporation,acting under authority granted to him/her by the City of Tigard,an Oregon municipal corporation. „ Notary PublliFffor Oregon ,. My Commission,expires: i eta This conveyance is approved as to form and content and accepted by OWEB. OWER: The State of Oregon,acting by and through its Oregon Watershed Enhancement Board By: As: r STATE OF OREGON ss. County of This instrument was acknowledged before me on this qday of ��201QAy as the and authorized repre�entatiue hof OWEB,acting nder authority granted to him by OWEB. :o <. Notary Publicfor Oregon " fVly Commission expires: i3( EXHIBIT A Property A� y UPS , Of y�. EXHIBIT B Encumbrances i s. fig'