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Oregon Depart of Fish & Wildlife - Cook Park Floating Dock 1 COOPERATIVE AGREEMENT FOR MOTORBOAT FACILITY This Agreement is entered into by and between the STATE OF OREGON, acting by and through its Department of Fish And Wildlife, hereinafter called the "Department" and the 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 on land owned by Recipient at the Cook Park Waterfront on the Tualatin River. Said project shall be named the Cook Park Floating Dock, hereinafter called the "Project" as described in the Recipient's proposal requesting funding. With this reference, the proposal is made part of this Agreement. The Department asserts it has sufficient funds available for motor boating projects within its current 1993-95 biennial period; however, the funds are matching federal grants obtained through the Federal Aid in Sport Fish Restoration Program administered by the U.S. Fish and Wildlife Service, and therefore this agreement is subject to their approval. NOW THEREFORE, the Department and the Recipient agree to the following: 1. The Department shall: A. Provide Funds. Provide funds in an amount not to exceed $ 4,338 to the recipient to partially fund the project developments as described herein subject to the availability of Federal Funds. 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. Final Payment. 1. Completion and acceptance of project by the Recipient. - - - -.-- 2. Inspection and approval of project by the Department. continued next page 3. Payment will be made to the recipient within 30 days after request of payment with appropriate billing documentation. 4. Final payment will be made to the Recipient within 30 days. E. Project Ownership. Recognize that the project once completed will be the exclusive property of the Recipient. H. The Recipient shall: A. Contribute. Contribute $ 350 in dollars or services and materials as described in the proposal request. Also, procure $ 13,012 from Oregon State Marine Board to provide additional funds to finance the project. B. Submit Plans. Submit final architectural, engineering and signage plans, specifications, and cost estimates to the Department for review and approval prior to project bid advertisement or construction. C. Construction Contract. Award, monitor, and inspect the construction contract to assure compliance with project plans and specifications. D. Project Sign. Post in a conspicuous location at the site within 10 days after completion of the project a sign at least three feet wide acknowledging the . cooperators. Suggested format in no particular order as follows: PROJECT NAME Federal Sport Fish Restoration Program Oregon Department of Fish and Wildlife Oregon State Marine Board City of Tigard E. Cost Overruns. Be responsible for all cost overruns unless otherwise specifically agreed to in writing with the Department. F. Final Billing. Present the Department with appropriate final project billing documentation. G. Project Completion. Complete the project and submit the final billing on or before July 1, 1994. H. Responsible for Project. Throughout the term of this Agreement be responsible for the maintenance and operation of the project and related facilities. I. User Fees. Notify and request written approval from the Department 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 Department. General'multiple use facility"day use" entrance fees are exempt from this provision. J. Barrier-Free Access. The Recipient will make all efforts to assess said project for barrier-free access. While it is understood that not-all sites will be suitable for full handicapped access-due to site configuration or costs,.it is also understood that the Recipient will, in writing to the Department, identify where appropriate proper gradients, handrails or other such designs that will be incorporated to assist the handicapped in accessing the project. K. Photos. Provide the Department with two copies each of a before and after photo of the subject. 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 Department and the Recipient. 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 Department 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 Department all funds contributed by the Department to the project. B. Termination and Modification for Good Cause. The Department, 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 the 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 funding. C. Termination for Default. The Department may at any time upon (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 3 2. Fee 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 Department, uses the funds provided by the Department to build any project other than the.project described in the final architectural and engineering drawings approved by the Department; 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 Department all funds contributed by the Department to the project. D. Other Rights And Remedies. The rights and remedies of the Department 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. V. FORCE MAJEURE Neither the Department 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. 4 VI. STANDARD CONDITIONS The following are the Standard Conditions of this Agreement. A. Maintenance of Records. The Recipient agrees to maintain records of costs reimbursed by the Department 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 findings. B. 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 Department the amount of such reduction payments under the completed, modified, or terminated Agreement. C. 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. D. Right to Examine. The Recipient agrees that the Director of the Department 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. E. Progress Payments. The Department 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 awards the contract for construction based on percentage of estimated project completion. The Recipient shall provide appropriate documentation to the Recipient. In no case shall the Department dispense more than 90 percent of the funds as described in Item I:A as progress'payments. F. Cost Savings. Any cost savings_realized_after completion of the project based on the total of Department funds Item LA and Recipient contributions Item IhA shall be prorated based on the percent of contribution by either party. G. Overpayment, In the event that the amount of the Department's initial and interim payments to the Recipient exceed the reimbursable expenses of the final billing presented by the Recipient to the Department, the Recipient agrees to refund the payments in excess of billing by check payable to the Department within thirty(30) days. H. 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, I. Administration And Indirect Costs.. The Department shall not provide any.funds described in Item I.A to the Recipient for administration, overhead, or indirect costs with this Agreements. J. Expenditure of Funds by the Department. The Department with Recipient approval may be authorized to expend grant funds described in Item I.A on project developments. K. 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. L. Assurance of Civil Rights. "The undersigned is subject to the Title VI of the Civil Rights Act of 1964, Section 504 of Rehabilitation Act of 1973, the Age Discrimination Act of 1975, Title IX of the Education Amendments of 1972, and offers all persons the opportunity to participate in programs or activities regardless of race, color, national origin, age, sex, or handicap. Further, it is agreed that no individual will be turned away from or otherwise denied access to or benefit from any program or activity that is directly associated with a program of the RECIPIENT on the basis of race, color, national origin, age, sex, or handicap." 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 permitted by Article XI, Section 7 of the Oregon Constitution and by the Oregon Tort Claims Act, the Recipient agrees to defend, save, and hold harmless the State of Oregon and the Department, its officers, agents, employees, and members, from all claims, suits, or actions of whatsoever nature resulting from or arising out of the activities of the Recipient, the Recipient's contractors, subcontractors, and the 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. F 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 filed or prosecuted against the State of Oregon, the Department, or the Recipient on account of any labor or material furnished for the project. VII. OTHER PROVISIONS Other provisions of this Agreement include: Total Estimated Project Cost is $17,700. VIII. BINDING AGREEMENT The provisions of this Agreement shall be binding upon and shall inure to the benefits of the Department and the Recipient and the respective successors and assigns IX. SEVERABILITY Department and the Recipient agree that if any term or provision of this Agreement is declared by a court of competent jurisdiction to be illegal or 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 Department and the Recipient. 7 XII. MERGER CLAUSE THISAGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE DEPARTMENT AND THE RECIPIENT. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS THIS AGREEMENT SHALL BIND EITHER PARTY UNLESS INWRITING AND SIGNED BY BOTH THE DEPARTMENT 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 ITSTERMS AND CONDITIONS. STATE OF OREGON: RECIPIENT: Department of Fish and Wildlife .City of Tigard B �4� -�/ y: By. Title: Title: Richard Coresm Date: Assistmt Director Date: bt of Fish and Wll h Address: Ria/4A Sr - J*w Address: f /aS- 5 ) P. o . 8ox 59 for-"and, o ie q 7AO 7 Telephone:oZ;tq-5410 X jco8' Telephone: 5p3 --(=,39- 41/7/ FAX: 17 4 FAX: X03— 4=;,S q — 7S go Fed. Employer ID # 8