Metro - Trail Easement between Grant Street and Woodard Park. LIMITED ACCESS AGREEMENT
THIS AGREEMENT is made and entered into as of the last date of signature indicated below(the
"Effective Date"),by and between Metro,an Oregon municipal corporation,and the City of Tigard,a
municipal subdivision of the state of Oregon("City").
RECITALS
A. Metro is the holder of a trail easement over a privately-owned real property commonly
known as Tax Parcel 00501,Township 2 South,Range I West,Section 213A of the Willamette Meridian
and located in the City of Tigard,State of Oregon.
B. Metro is also the holder of a second trail easement over a privately-owned real property
commonly known as Tax Parcels 300,302,and 304,Township 2 South,Range I West,Section 2BA of the
Willamette Meridian and located in the City of Tigard, State of Oregon
C. Metro and City are negotiating an assignment agreement through which Metro will assign its
interest under the two trail easements(together,the"Easements")to City. Prior to accepting assignments
of the Easements,City desires to conduct pre-construction environmental site assessments("ESA's")
within the portions of the two properties subject to the Easements(the"Easement Areas").The Easement
Areas are depicted on the attached Exhibit A.
D. City intends to contract with a third party to perform the ESA's,and Metro desires to allow
City access to the Easement Areas for such limited purposes, upon and subject to the terms and conditions
set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises set out below,the parties hereby
agree:
1. Grant of Access to City. Metro hereby grants to City a non-exclusive,temporary permit to
enter upon the Easement Areas for the limited purposes of conducting the ESA's. City's ESA activities
shall be contained within the Easement Areas and City hereby acknowledges that nothing in this
Agreement allows or permits City to access any adjacent portions of larger parcels which are privately
owned. City's sole access to the Easement Areas shall be through Woodard Park.
2. Noninvasive vs.Invasive ESA Activities.
(a) City may engage in the following noninvasive and invasive ESA activities without first
obtaining Metro's prior written consent: (i)a site inspection of the Easement Areas and any other non-
invasive activities related to performing a Phase I Environmental Site Assessment and(ii)the following
invasive testing related to performing a Phase II Environmental Site Assessment:(A)soil,sediment,and
surface and ground water collection and sampling,limited to the extent such collection and testing can be
performed with non-motorized hand tools. All collection and testing shall be conducted in general
accordance with the scope and limitations of the American Society for Testing and Materials(ASTM)
Standard E 1527-05 and All Appropriate Inquiries(AAI)rule,Federal Register,Vol. 70,No.2010.
(b) Except for the invasive collection and testing permitted under subsection(a)(ii)above,
the City must first obtain Metro's prior written consent,which may be withheld or conditioned in its sole
e
discretion,before engaging any invasive ESA activities,including without limitation,the following: soil,
sediment,water,and groundwater sampling;conducting subsurface surveys;drilling or boring of holes;
any other activities conducted in accordance with Phase I1 Environmental Site Assessment work in
general accordance with ASTM Standard E 1903-97.
3. Notice of Entry; Copies of Reports. City shall notify Metro in writing or by telephone at least
two(2)days in advance of any entry onto the Easement Areas so that a Metro representative has the
opportunity to accompany each person entering the Easement Area pursuant to this Agreement. All ESA
activities undertaken by City shall occur between the hours of 7:00 a.m.and 7:00 p.m. City shall provide
to Metro upon request,a copy of all reports,test and data summaries,and correspondence prepared as a
result of ESA's and City shall have Metro added as a certified user of the ESA reports.
4. Term of Agreement. Unless earlier terminated as provided herein,this Agreement shall begin
on the Effective Date hereof and continue for a period of sixty(60)days or until the conclusion of all
work reasonably necessary to complete the ESA's,whichever date is the earlier to occur.
5. City's Covenants. City shall: (a)perform all ESA work in a safe manner, in material
compliance with all applicable laws,orders,rules,regulations and ordinances;(b)obtain any and all
governmental permits and approvals which may be necessary for it to perform the ESA's;(c)promptly
and adequately repair any damage to the Easement Areas caused by City by restoring the damaged area(s)
to substantially original condition;(d)promptly remove from the Easement Areas all equipment,vehicles,
materials,soil,liquids,wastes,and/or other substances,that come to be located on the Easement Areas as
a result of its entry on the Easement Areas;and(f)not permit any mechanic's,materialmen's,or other
liens or claims to stand against the Easement Areas for labor or material furnished in connection with
City's permitted ESA activities.
6. Communications with Owner. Except for an inquiry made by City's consultant as part of the
ESA,all communication and contact with the underlying fee property owners shall be through a Metro
representative. City will not attempt to contact such owners without Metro's prior written consent.
7. Indemnity. City shall defend(with counsel reasonably acceptable to Metro), indemnify,and
hold harmless Metro and its elected officials,departments,employees, and agents(collectively,the
"Indemnified Persons")from and against any and all claims,demands,actions,suits,damages, liabilities,
injury to persons or property,costs,penalties,fines or expenses(including reasonable attorney,
engineering,and other professional or expert fees)(collectively"Damages")which,in whole or in part,
directly or indirectly,arise from or are in any way connected with entry onto the Easement Areas by City,
the ESA's,or any breach,violation or nonperformance of any of City's obligations under this Agreement.
Notwithstanding the foregoing,the foregoing indemnity shall not apply to the extent any Damages are
caused by the gross negligence or willful misconduct of the Indemnified Persons.
8. Notice. Notices shall be delivered in person or mailed by first class mail to the following
address to the attention of the person specified below;
To Metro:
Office of the Metro Attorney
600 NE Grand Ave
Portland,OR 97232
To City:
City of Tigard
Attn:Kim MCMillan
13125 SW Hall Blvd
Tigard,OR 97223
9. Termination. In the event City fails to comply with any provisions of this Agreement
("Default"),then Metro may immediately or any time thereafter terminate this Agreement upon written
notice to City. Such termination shall not affect Metro's rights to pursue other remedies for such Default.
All obligations of the parties hereunder not fully discharged or fulfilled by such party(including,without
limitation,City's indemnity obligations set forth in Section 7 above)shall survive the termination of this
Agreement.
10. Miscellaneous.
(a) This Agreement is personal to City and is for City's use only,and is not intended to be an
easement,and is not transferable or assignable by City.
(b) The above Recitals are incorporated herein by this reference as material terms of this
Agreement,and not as mere recitals.
(c) As used in this Agreement,the terms Metro and City,include their respective employees,
agents,authorized representatives,contractors,and subcontractors,retained either directly or indirectly.
The parties have executed this Agreement effective as of the date last set forth below.
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