State of Oregon - Facility Grant Cooperative Agreement STATE MARINE BOARD
FACILITY GRANT COOPERATIVE AG EEMENT
This Agreement is entered into by and between the State of Oregon, acting by
and through its Marine Board, hereinafter called the "Board" and City of Tigard in
the State of Oregon hereinafter called the "Recipient".
The purpose of this Agreement is to set forth obligations by both parties in
the development of recreational boating facilities at Cook Park Floating Dock
hereinafter called the "Project" as described in the Recipient's Facility Grant
Application to the Board. With this reference, the Application is made part of this
Agreement. If a conflict exists between the Application and this Agreement, the
Agreement will govern.
The Board and the Recipient are authorized under ORS Chapter 190 to enter into
cooperative agreements. Furthermore, the Board is authorized to provide grants for
boating facility projects under ORS 830.150:
The Board asserts it has sufficient Facility Grant Funds within its current
1993-95 biennial period available and has authorized expenditure on the Recipient's
project described herein.
NOW THEREFORE, the Board and the Recipient agree to the following:
I. BOARD ACTIONS
The Board shall:
A. Provide Funds. Provide grant funds in an.amount not to exceed
S 13,012 to the Recipient to partially fund the project developments as
described herein and according to OAR 250-14..
B. Plan Review. Review and approve the Recipient's final architectural and
engineering plans, specification, and cost estimates prior to project
bid advertisement or construction.
C. Permits. Receive proof from the Recipient that all necessary state,
federal, and local permits or approvals have been obtained prior to
project bid advertisement or construction.
D. Performance Bond. Not distribute any funds until the Recipient
provides proof of a performance bond as described in Item. II..D.
E. Final Payment. Provide funds to the Recipient in an amount not to
exceed that specified in Item I.A. upon:
l. . Completion of the project; and
2. Acceptance of the project by the Recipient; and
3. Inspection and approval of the project by the Board. Appropriate
final billing documentation shall be submitted by the Recipient
along with a request for final payment.
.4. Final payment will be made to the Recipient within 30 days.
F. Proiect Ownership. Recognize that .the project once completed will be
the exclusive property of the Recipient.
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II. RECIPIENT'S ACTIONS
The Recipient shall:
A. Contribute. Contribute at least $ 350 its equivalent in labor,
materials, or services as described in the Application.
B. Submit Plans., Submit final architectural and engineering plane,
specifications, and cost estimates to the Board for review and approval
prior to project bid advertisement or construction.
C. Permits. Submit one copy of all permits and leases, if any, to the
Board prior to project bid advertisement or construction.
D. Performance Bond. Submit one copy, of the contractors performance bond,
if other than the Recipient, in the amount of the construction contract
from a surety company authorized to do. business in Oregon.
E. Construction Contract. Award, monitor, and inspect .the construction
contract to assure compliance with project plans and specifications.
F. Proiect Sign. Post in a conspicuous location at the site a sign
identifying the. Board's participation in the project.;-
G.
roject.G. Cost Overruns. Be responsible for all cost overruns unless otherwise
specifically agreed to in writing with the Board.
H. Final Billing. Present the Board with appropriate final project billing
documentation.
I. Proiect Comuletion. Complete the project and submit the final billing
on or before June 30, 1995.
J. Responsible for Proiect. Throughout the term of this Agreement be
responsible for the maintenance and operation of the project and related
facilities.
K. Allow Indiscriminate Access. Throughout the term of this Agreement
allow free and unencumbered public access to the project to all persons
without regard to race., color, religious or political beliefs,, sex,
national origin, or place of primary residence.
L. User Fees. Notify and receive written Board approval of any user fees
charged for the use of the improvements described herein throughout the
term of this Agreement. Fees charged will be subject to reasonable
review and approval by the Board. General multiple use facility "day
use" entrance fees are exempt from this provision.
III. TERM OF AGREEMENT
The term of this Agreement is twenty (20) years commencing on the date of
execution by or in behalf of the Director of the Board .and the Recipient.
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IV. TERMINATION PROVISIONS
The following provide for the termination and modification of this Agreement:
A. Termination for Convenience. The Recipient may terminate this Agreement
at any time upon thirty (30) days prior written notice, delivered by
certified mail or .in person to .the Board provided, however, that upon
any such termination -of the Agreement.the Recipient shall, within thirty
(30) days of such termination, reimburse by check payable to the Board
all funds contributed by the Board to the project.
B. Termination_andlMod ification for Good Cause, The Board, at any time
upon thirty (30) days prior written notice delivered by certified "mail.
or in person to the Recipient, may modify or terminate this Agreement
for good cause or may modify or terminate this Agreement should state
regulations or guidelines be modified, changed or interpreted in such a
way that the project, or any portion of the project, is no longer
eligible for:.Facility Grant Funds as described in ORS 830.150.
C. Termination for Default. The Board may at any time upon thirty (30)
days prior written notice of default, delivered by certified mail or in
person to the Recipient terminate this Agreement if:
1. The design, permitting, or construction of the project is
not pursued with due diligence; or
2. Fee simple title to or other interest in the construction
sites is not sufficient, legal, and valid; or
3. The construction of the project is not permissible under
state,. federal, or local law; or
4. The Recipient does not abide by the nondiscrimination and
affirmative action provisions of this Agreement; or
5. The Recipient, without the prior and written approval of the
Board, uses the funds provided by the Board to build any
project other than the project described in the final
architectural and engineering drawings approved by the
Board; or
6. The construction is not performed in a good and workmanlike
manner; or
7. During the term of this Agreement, the Recipient conveys the
project or the project property or converts the use of the
project or the project property to a use which precludes
free and unencumbered public access.
The Recipient shall, within thirty (30) days of its receipt of a notice
of default reimburse by check payable to the Board all funds contributed
by the Board to the project.
D. Other Rights and Remedies. The rights and remedies of the Board related
to termination for convenience, termination and modification for good
cause, and termination for default are not limited to those listed above
and are in addition to any other rights and remedies provided by law.
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V. FORCE MAJEURE
Neither the Board nor the Recipient shall be held responsible for delay or
failure to perform when such act or delay or failure is due to fire, flood,
epidemic, strikes, acts of God or the public. enemy, legal acts of public
authorities, or delays or defaults caused by public carriers, which cannot be
reasonably foreseen or provided against.
VI. STANDARD CONDITIONS
The Following are the Standard Conditions of this Agreement.
A. Persons Not to Benefit.. No member of or delegate to Congress, resident
commissioner, officer,, agent or employee of the,United States of
America, member .of the Oregon Legislative Assembly, elected official of
the State of Oregon, or official, agent, or employee of' the State of
Oregon, or elected member, officer, ..agent, or employee of .any political
subdivision, municipality or municipal corporation of the State of
Oregon shall be admitted to any share or part of this Agreement or
derive any financial benefit that may arise therefrom.
B. Maintenance of Records. The Recipient agrees to maintain records of
costs reimbursed by the Board which fully document and support the
billings. All books, records, and other documents relevant to this
Agreement shall be retained for either five (5) years after the
effective date of this Agreement, or any longer period which may be
required to complete any audit or to resolve any pending audit. f indings.
C. Disallowed Costs. The Recipient agrees that any payment or payments
made under this Agreement shall be subject to reduction for amounts
charged thereto which are found on the basis of any audit examination
not to constitute allowable costs under this Agreement. The Recipient
shall refund by check payable to the Board the amount of such reduction
payments under the completed, modified, or terminated Agreement.
D. Accounting Procedures and Audits. The Recipient's accounting procedures
shall provide for an accurate and timely recording of receipt of funds
by source, of expenditures made from such funds, and of unexpended
balances. Controls shall be established which are adequate to ensure
that all expenditures reimbursed under this Agreement are for allowable
purposes and that documentation is readily available to verify that such
charges are accurate.
E. Right to Examine. The Recipient agrees that the Director of the Board
or any duly authorized state representative shall have access to and the
right to examine directly any books, documents, papers, records, .and
transactions of the Recipient which are directly pertinent to this
Agreement for the purposes of making audit, examination, excerpts,
transcripts or performance evaluation for a period of five (5) years
after the effective- date of this Agreement.
F. Progress Payments. The Board may disperse funds in the form of progress
payments after the Recipient awards the contract for construction based
on percentage of estimated project completion. The Recipient shall
provide appropriate documentation to the Board. In no case shall the
Board dispense more than 90 percent of the funds as described in Item
I.A. as progress payments.
G. Cost Savings. Any cost savings realized after completion of the project
based on the total of Board funds Item I.A. and Recipient contributions
Item II.A. shall be prorated based on the percent of contribution by
.either party.
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H. overpayment. In the event that the amount of the Board's initial and
interim payments to the Recipient exceed the reimbursable expenses of
the final billing presented by the Recipient to the Board, the Recipient
agrees to refund the payments in excess of billing.by check payable to
the Board within thirty (,30) days.
I. Dual Payment. The.Recipient shall not be compensated for or receive any
other form of dual payment for work performed under this Agreement from
any agency of the State of Oregon or the United States of America or any
other party.
J. Administration and Indirect Costs. The Board shall not provide any
funds described in Item I.A. to the. Recipient for administration,
overhead, or indirect costs with this Agreement.
K. Expenditure of Funds by the Board. The Board, with Recipient approval
may be authorized to expend grant funds described in Item I.A. on
project developments.
L. Compliance with Applicable Law. The Recipient shall comply with all
federal, state, and local laws and ordinances applicable to the work to`
be done under this Agreement.
M. Compliance with Workers Compensation. The Recipient shall require that
the contractor, its subcontractors, if any, and all employers working
under this Cooperative Agreement are subject employers under the Oregon
Workers:' Compensation Law and shall comply with ORS 656.017, which
requires them to provide workers' compensation coverage for all their
subject workers.
N. Suits Resulting from this Agreement. To the full extent authorized by
Oregon statute, ordinance, or charter provision,, the Recipient agrees to
defend,, save, and hold harmless the State of Oregon and the Board, its
officers, agents, employees, and members, from all claims, suits, or
actions of whatsoever nature resulting from or arising out of the
activities or omissions of the Recipient's contractors, subcontractors,
and Recipient's agents .and employees under this Agreement.
O. Attorney Fees. In the event a lawsuit of any kind is instituted by
either party to obtain performance of any kind under this Agreement, the
prevailing party may collect additional sums as the court may adjudge
for reasonable attorney fees and all costs and disbursements incurred
therein.
P. Payments by the Recipient. The Recipient agrees to:
1. Make payment promptly as due to all persons supplying labor or
materials for the project; and
2. Pay all contributions or amounts due to the State Industrial
Accident Fund on behalf of the Recipient or any of its contractors
for liability incurred in the performance of this Agreement; and
3. Not permit any lien or claim to be file or prosecuted against the
State of Oregon, the Board, or the Recipient on account of any
labor or material furnished for the project.
Q. State Tort Claims Act. Recipient is not an officer., employee, or agent
of the state as those terms are used in ORS 30.265.
VII. OTHER PROVISIONS
Other provisions of this Agreement include:
None
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VIII.BINDING AGREEMENT
The provisions of this Agreement shall be binding upon and shall inure to the
benefits of the Board and the Recipient and the respective successors and
assigns.
IX. SEVERABILITY
The Board and the Recipient agree that if any term or provision of this
Agreement is declared by a court of competent jurisdiction to be illegalor in
conflict with any-law, the validity of the remaining terms. and provisions
shall not be affected, and the rights- and obligations of the parties shall be
construed and enforced as if the Agreement, did not contain the particular term
of provision held to be invalid.
X. FAILURE TO ENFORCE
The failure of _the State of Oregon to enforce any provision of this Agreement
shall not constitute a waiver by the State of Oregon of that provision or any
other provision.
XI. WAIVER OF TERMS
The terms of this Agreement shall not be waived, altered, modified,
supplemented or amended, in any manner whatsoever, except by written
instrument signed by both the Board and the Recipient.
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XII. MERGER CLAUSE
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE BOARD AND THE
RECIPIENT.. NO WAIVER, CONSENT, MODIFICATION OR"CHANGE OF .TERMS THIS AGREEMENT
SHALL BIND EITHER PARTY UNLESS IN WRITING 'AND SIGNED BY BOTH THE BOARD AND THE .
RECIPIENT. SUCH WAIVER, CONSENT', MODIFICATION OR CHANGE, IF MADE, SHALL BE
EFFECTIVE ONLY IN THE 'SPECIFIC INSTANCE AND .FOR THE -SPECIFIC PURPOSE: GIVEN,.
THERE ARE \NO UNDERSTANDINGS, AGREEMENTS, OR. REPRESENTATIONS, ORAL OR WRITTEN,
NOT SPECIFIED HEREIN REGARDING THIS AGREEMENT'. THE RECIPIENT,, BY THE
SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT THE
.RECIPIENT HAS. READ.THIS AGREEMENT, UNDERSTANDS IT., AND AGREES TO BE :BOUND'.BY
ITS TERMS AND CONDITIONS.
STATE OF OREGON: RECIPIENT:
Marine Board City of Tigard
By. BY:
Paul Donheffner
Titlez Director Title: / .,
Date: July 20, 1993 Date: `7/;l l Lll 3
Address 13)as 5W
Telephone:
Federal Employer
Identificatiory, ''!!
Number: �f 3- 03G17�
F:\Maggie\Letter.FRM\CTYPRTPK.AGR
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