Clean Water Services - Derry Dell Gravity Sewer replacement FIRST AMENDMENT
TO INTERGOVERNMENTAL AGREEMENT
BETWEEN CITY OF TIGARD AND
CLEAN WATER SERVICES FOR THE
DESIGN, PERMITTING,AND CONSTRUCTION OF
THE DERRY DELL GRAVITY SEWER REPLACEMENT
This Amendment, dated effectiveLtit 1 tJL 2Z 5�"-�l , ()1,4 44H;—is between
CLEAN WATER SERVICES (District),a County Service District organized under ORS Chapter
451,and the CITY OF TIGARD(City),an Oregon Municipality and amends the parties'
Intergovernmental Agreement for the Design, Permitting, and Construction of the Derry Dell
Gravity Sewer Replacement dated April 3, 2012 (Agreement).
A. RECITALS
1. City and District previously entered into the Agreement to collaborate on the design,
permitting, and construction of the Derry Dell Gravity Sewer Replacement(Original
Project). The Original Project includes designing and constructing approximately 1,200
feet of new sanitary sewer, removing or abandoning 1,800 feet of existing sanitary sewer,
and realigning a 700-foot reach of Derry Dell Creek.
2. In the best interests of permitting, design, construction, and to minimize adverse impacts
on adjacent properties and costs,the parties now wish to amend the Original Project to
include: (i)replacing two existing 36-inch diameter CMP culverts crossing SW Walnut
Street with 108 linear feet of 8-foot by 9-foot reinforced concrete box culvert, (ii)
installing 240 feet of 8-inch water line,(iii)widening approximately 275 feet of the SW
Walnut Street road prism to its ultimate width, and(iv)installing 795 feet of paved trail
and boardwalk and associated appurtenances(collectively, Enhanced Work).
3. The parties also wish to amend the Agreement to clarify each party's responsibility for
the Enhanced Work, Communication Plan, and to further clarify the allocation of
mitigation credit generated from the Original Project.
4. City and District agree that it is in the best interest of the public and both parties to
postpone the construction due to the design of the Enhanced Work,National Marine
Fisheries Service consultation,In-Water Work Period limitations,winter erosion control
issues,public inconvenience, and to provide appropriate project review periods. The
bidding period will be postponed until after January 2014 with a new substantial
completion target of October 31,2014.
NOW, THEREFORE,the parties agree as follows:
First Amendment of Intergovernmental Agreement for Derry Dell Gravity Sewer Replacement
Page I of 4
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B. TERMS AND CONDITIONS
The Agreement is amended to add the following:
I. ENHANCED WORK
City shall:
1. Provide all designs,permits, and temporary construction easements necessary to
construct the Enhanced Work.
2. Provide lead inspection and any necessary construction testing. City shall be responsible
for warranty inspection of Enhanced Work during the project warranty period.
3. Grant sanitary sewer easement(s)to District for the 21-inch sanitary sewer line. City shall
retain all property rights in the easement area but agrees not to construct any permanent
structures or consent to any construction activities on or near the sanitary sewer line
which might in any fashion unearth, undermine, or damage the sanitary sewer line
without written consent from District.
4. Within five business days of bid opening,reimburse District the `bid' amount of the
construction costs associated with the Enhanced Work. Upon acceptance reimburse
District the final construction costs of the Enhanced Work and any change orders for the
Enhanced Work less the amount paid at the time of the bid opening. City has the right to
direct District to reject all Enhanced Work bids if not acceptable to City at its sole
discretion.
5. By December 31, 2014, Reimburse District for the cost to design and install planting
materials to meet the Vegetated Corridor Enhancement requirement associated with
Enhanced Work.
6. Reimburse District for construction contract administration efforts. This amount shall be
equal to 5%of the total construction cost of the Enhanced Work and installation of
Vegetated Corridor plant material associated with Enhanced Work, including any
approved change orders. This amount shall be calculated no later than 30 days after the
substantial completion date, as determined by the District.
7. By September 30, 2014, Reimburse District for all costs associated with ESA Vigil-
Agrimis, Inc. (ESA)providing additional project management, survey, and structural
engineering services for the Enhanced Work. City's reimbursement to District for ESA's
work shall not exceed $31,980.
District shall:
1. Amend the Service Provider Letter and planting plan to include the Enhanced Work.
2. Design and install planting materials to meet Vegetated Corridor Enhancement
requirements associated with Enhanced Work.
First Amendment of Intergovernmental Agreement for Derry Dell Gravity Sewer Replacement
Page 2 of 4
3. Administer the bid process and award the construction contract.
4. Perform construction contract administration for all contracts issued by the District for
the Work.
5. Assist the City with construction inspection of the Enhanced Work and warranty
inspection.
6. Invoice City no later than 30 days after the substantial completion date.
II. COMMUNICATION PLAN
1. City shall take the lead in handling all public involvement related to planning and
constructing the Original Project and Enhanced Work.
2. District shall assist City with communicating to the public about the project and attend
planned events for public involvement related to planning and constructing the Original
Project and Enhanced Work.
3. District shall reimburse City a percentage of the cost for Sally Murdoch Media Relations
to prepare a Communication Plan. District's reimbursement percentage shall be equal to
the Original Project construction cost(sewer and creek relocation)divided by the overall
construction cost of the Original Project and Enhanced Work. District's reimbursement to
City for the Communication Plan shall not exceed $5,000.
4. City will invoice the District no later than 30 days after the substantial completion date.
III. VEGETATIVE CORRIDOR, STREAM MITIGATION AND WETLAND MITIGATION
CREDIT ALLOCATION
The parties agree to the following allocation of vegetative corridor mitigation credit,wetland
mitigation credit, and stream mitigation credit:
1. The Original Project created 26,073 square feet of vegetative corridor mitigation credit.
This credit shall be divided equally between City and District. Each party shall receive
13,036.5 square feet of vegetative corridor mitigation credit.
2. City's planned park area, south of SW Johnson Street, created 3,518 square feet of
vegetative corridor mitigation credit. This credit shall be considered credit associated
with the Enhanced Work and belongs to City.
3. District shall use its vegetative corridor mitigation credit to mitigate impact associated
with the Original Project. District's impact is 1,073 square feet which will leave District
with 11,963.5 square feet of credit for other uses.
4. City shall use its vegetative corridor mitigation credit from the Original Project and
Enhanced Work to mitigate impact associated with the Enhanced Work. City's impact is
7,554 square feet which will leave City with 9,000.5 square feet of credit for other uses.
First Amendment of Intergovernmental Agreement for Derry Dell Gravity Sewer Replacement
Page 3 of 4
5. The Original Project created 22,377 square feet of wetland mitigation credit. This credit
shall be divided equally between City and District. Each party shall receive 11,188.5
square feet of wetland mitigation credit.
6. There is no net wetland impact associated with the Original Project,therefore mitigation
will not be required which will leave District with 11,188.5 square feet of wetland
mitigation credit for other uses.
7. The Oregon Department of State Lands and US Army Corps of Engineers approved City
to use its wetland mitigation credit to mitigate wetland impacts associated with the
Enhanced Work. City's wetland impact is 6,751 square feet which will leave City with
4,437.5 square feet of wetland mitigation credit for other uses.
8. The Original Project created 266 Linear Feet of stream mitigation credit. This credit
shall be divided equally between City and District. Each party shall receive 133 linear
feet of stream mitigation credit.
9. In the event that City requires more credits than allocated, City shall have the right to
purchase credit from District at direct cost(the actual cost to establish the credits which
shall include all construction and maintenance costs) or at the rate of$3.93 per square
foot for vegetative corridor mitigation credit and$4.09 per square foot for wetland
mitigation credit,whichever is lower.
0. Each party in its sole discretion shall be able to use its share of wetland mitigation credits
for future projects within its jurisdiction in compliance with federal, state and local
regulations.
C. EFFECT OF AMENDMENT
Except as amended herein,the Agreement shall remain in full force and effect.
CLEAN WATER SERVICES CITY OF TIGARD ORE ON
By:W,, By:
General Ma ger or Designee -41`-sL City Manager or D si nee
APPROVED AS TO FORM APPROVED AST FORM
r
District Cbunsel J City tounsel
First Amendment of Intergovernmental Agreement for Derry Dell Gravity Sewer Replacement
Page 4 of 4
INTERGOVERNMENTAL AGREEMENT
BETWEEN CITY OF TIGARD AND
CLEAN WATER SERVICES FOR THE
DESIGN, PERMITTING,AND CONSTRUCTION OF
THE DERRY DELL GRAVITY SEWER REPLACEMENT
This Agreement, dated , 2012, is between CLEAN WATER
SERVICES (District)a coup service district organized under ORS Chapter 451 and THE CITY
OF TIGARD (City) an Oregon Municipality.
A. RECITALS
1. ORS 190.003 — 190.110 encourages intergovernmental cooperation and authorizes local
governments to delegate to each other authority to perform their respective functions as
necessary.
2. District and City entered into an Intergovernmental Agreement dated January 25, 2005
and Amendments thereto dated July 1, 2008 and July 1, 2009 (IGA)that articulate the
procedures for working together on projects.
3. District and City have responsibility to operate and maintain sewers in the project area.
4. This project will result in improvements to the District's and City's sewer system by
eliminating some of the existing exposed sewer/creek crossings.
5. Under the IGA, District and City share the costs for system improvements. City is
responsible for the cost of pipes 12 inches in diameter and smaller. District is responsible
for the cost of pipes larger than 12 inches in diameter.
6. The pipes included in this project range in size from 8 inches to 24 inches.
7. The most reliable and cost-effective solution requires a joint District and City project.
8. District and City wish to work cooperatively as District designs,permits, and constructs
improvements to the sanitary sewer along Derry Dell Creek.
NOW, THEREFORE, it is agreed by and between the parties hereto as follows:
B. PROJECT DESCRIPTION
The Derry Dell sewer project includes designing and constructing approximately 1,200 feet of
new sanitary sewer, removing or abandoning 1,800 feet of existing sanitary sewer, and realigning
a 700-foot reach of Derry Dell Creek. The project will include removing five exposed sewer
crossings on Derry Dell Creek and Fanno Creek and eliminating several sewer access manholes
in Woodard City Park. Removing the crossings and eliminating the manholes will reduce the
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Derry Dell Gravity Sewer Replacement
risk of damage to the sewer system during periods of high stream flow, restore fish passage,
improve the ecology and health of the stream corridor, and produce wetland mitigation credit.
Stream bank erosion along Derry Dell Creek will also be addressed. The work described in this
section shall be referred to as the "Project".
C. DISTRICT OBLIGATIONS
District shall:
1. Provide the following Project delivery components:
a. Project management
b. Planning and public involvement
c. Preliminary design
d. Permitting
e. Assist City with negotiating a property acquisition to relocate the stream channel
f. Acquire easements needed to fill the existing stream channel
g. Final design
h. Contract documents
i. Bidding and contract award
j. Construction and contract administration
D. TIGARD OBLIGATIONS
City shall:
1. Assist District with Project planning and public involvement.
2. Provide existing planning information and data, as available.
3. Acquire real property or easement needed to relocate the new stream channel.
4. Allow District and its contractor access to City property and easements to construct
and/or abandon sewer pipeline, perform site grading, and fill the existing stream channel.
5. Allow District and its contractor to remove trees and invasive vegetation on City
property, as required.
6. Allow District and its contractor to replant and establish vegetation in any area disturbed
by construction.
7. Pay City permit fees and tree mitigation fees as required by City code.
8. The parties agree that the Project will meet the requirements of section 18.775.020C of
the City of Tigard Municipal Code for exemptions to a Sensitive Lands permit
(Exemptions)provided the Project be performed under the direction of the City and in
compliance with the provisions of the City of Tigard Standards and Specifications for
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Derry Dell Gravity Sewer Replacement
Riparian Area Management. The City Project Manager shall have the authority to direct
District and its contractors within the scope of the Project to ensure that Project work
meets these requirements. Either party may terminate this Agreement if the Project does
not qualify for an Exemption by providing written notice to the other party.
E. COMPENSATION
District shall fund all aspects of the Project for assets and services described in Section C of this
Agreement. City shall fund and pay for direct costs incurred by City including, but not limited
to, City staff time, materials, and City permit fees for the services and assets described in Section
D of this Agreement. City shall also pay for easement and land acquisition costs to relocate the
creek.
District and City agree that assigning the cost of this Project by pipe size would be difficult.
Therefore, the parties agree that District's fair share of the Project cost shall be the cost outlined
to provide the services and assets described in Section C of this Agreement, and City's fair share
of the Project cost shall be the cost for City to provide the services and assets described in
Section D of this Agreement. The parties also agree that any mitigation credits generated as part
of the Project shall be allocated between District and City in proportion to each party's final
investment in the Project.
F. GENERAL TERMS
1. Laws and Regulations. City and District agree to abide by all applicable laws and
regulations.
2. Term of this Agreement. This Agreement is effective from the date the last party signs it
and shall remain in effect until the Project is complete and the parties' obligations have
been fully performed or this Agreement is terminated as provided herein.
3. Amendment of Agreement. City and District may amend this Agreement from time to
time, by mutual written agreement.
4. Termination. This Agreement may be terminated immediately by mutual written
agreement of the parties, with the termination being effective in 30 days.
5. Integration. This document constitutes the entire agreement between the parties on the
subject matter hereof and supersedes all prior or contemporaneous written or oral
understandings, representations or communications of every kind on the subject. No
course of dealing between the parties and no usage of trade shall be relevant to
supplement any term used in this Agreement. Acceptance or acquiescence in a course of
performance rendered under this Agreement shall not be relevant to determine the
meaning of this Agreement and no waiver by a party of any right under this Agreement
shall prejudice the waiving party's exercise of the right in the future.
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Derry Dell Gravity Sewer Replacement
6. Indemnification. Within the limits of the Oregon Tort Claims Act, codified at ORS
30.260 through 30.300, each of the parties shall indemnify and defend the other and their
officers, employees, agents, and representatives from and against all claims, demands,
penalties, and causes of action of any kind or character relating to or arising from this
Agreement (including the cost of defense thereof, including attorney fees) in favor of any
person on account of personal injury, death, damage to property, or violation of law,
which arises out of, or results from, the negligent or other legally culpable acts or
omissions of the indemnitor, its employees, agents, contractors or representatives.
7. Attorney Fees. If any dispute arises concerning the interpretation or enforcement of this
Agreement or any issues related to the U.S. Bankruptcy Code (whether or not such issues
relate to the terms of this Agreement), the prevailing party in any such dispute shall be
entitled to recover all of its attorney fees, paralegal fees, costs, disbursements and other
expenses from the non prevailing party, including without limitation those arising before
and at any trial, arbitration, bankruptcy, or other proceeding and in any appeal.
8. Resolution of Disputes. If any dispute out of this Agreement cannot be resolved by the
project managers from each party, the City Manager and District's General Manager will
attempt to resolve the issue. If the City Manager and District's General Manager are not
able to resolve the dispute, the parties will submit the matter to mediation, each party
paying its own costs and sharing equally in common costs. In the event the dispute is not
resolved in mediation, the parties will submit the matter to arbitration. The decision of
the arbitrator shall be final, binding and conclusive upon the parties and subject to appeal
only as otherwise provided in Oregon law.
9. Interpretation of Agreement.
A. This Agreement shall not be construed for or against any party by reason of the
authorship or alleged authorship of any provision.
B. The paragraph headings contained in this Agreement are for ease of reference
only and shall not be used in construing or interpreting this Agreement.
10. Severability/Survival. If any of the provisions contained in this Agreement are held
illegal, invalid or unenforceable, the enforceability of the remaining provisions shall not
be impaired. All provisions concerning the limitation of liability, indemnity and conflicts
of interest shall survive the termination of this Agreement for any cause.
11. Approval Required. This Agreement and all amendments, modifications or waivers of
any portion thereof shall not be effective until approved by 1) District's General Manager
or the General Manager's designee and when required by applicable District rules,
District's Board of Directors and 2) City.
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Derry Dell Gravity Sewer Replacement
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12. Choice of Law/Venue. This Agreement and all rights, obligations and disputes arising
out of the Agreement shall be governed by Oregon law. All disputes and litigation
arising out of this Agreement shall be decided by the state courts in Oregon. Venue for
all disputes and litigation shall be in Washington County, Oregon.
13. Notice. The parties shall deliver any notice to the parties respective Project managers.
District's Project manager is:
Andy Braun, P.E.
Capital Program Manager
2550 SW Hillsboro Highway
Hillsboro, OR 97123
City's Project manager is:
Kim McMillan, P.E.
Construction Services and Engineering Supervisor
13125 SW Hall Blvd.
Tigard, OR 97223
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed the day and
year first written above.
CLEAN WATER SERVICES CITY OF TIGARD, OREGON
01
By: 4. ,ZeBy:
General Mdn ger or Designee City Manager or Designee
APPROVED AS TO FORM APPROVED AS TO FORM
District Counsel City Counsel
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Derry Dell Gravity Sewer Replacement