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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. Page 1 of 7 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. Page 2 of 7 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. Page 3 of 7 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. Page 4 of 7 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 Page 5 of 7 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. Page 6 of 7 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 Page 7 of 7