Clean Water Services ~ IG187010 ~ Fanno Creek Park Enhancement Project Implementation INTERGOVERNMENTAL AGREEMENT
FANNO CREEK PARK ENHANCEMENT PROJECT IMPLEMENTATION
CLEAN WATER SERVICES AND
CITY OF TIGARD
This Agreement, dated Qq,9� KpQ_Mbtt ( , 2017, is between CLEAN
WATER SERVICES(District) and the CITY OF TIGARD (Tigard).
A. RECITALS
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.
District and Tigard collaborate on projects that enhance riparian and floodplain
ecological functions and values, pretreat and manage storm water, and allow for sanitary
sewer service, in an effort to improve water quality in the Tualatin Basin.
District and Tigard entered into an Intergovernmental Agreement dated January 25, 2005
that articulates the procedures for working together on projects.
District and Tigard have worked together to complete the development and adoption of a
Master Plan for Fanno Creek Park and Plaza.
District and Tigard wish to work cooperatively to: a) develop final construction
documents for the enhancement of Fanno Creek, including elements of Tigard's Fanno
Creek Park project; b) construct the improvements; and c) develop an Ecological
Enhancement Plan for long-term management of natural areas in Fanno Creek Park
(collectively referred to as the Project).
NOW, THEREFORE, it is agreed by and between the parties hereto as follows:
B. PROJECT DESCRIPTION
The Project implements the Master Plan for Fanno Creek Park(Park) and consists of the
District's Enhancement project and the City's Amenities project, defined below. Tigard's
trail and bridge improvements (Amenities) project includes replacing the Ash Avenue
Bridge and the pedestrian and bike trail removed as part of the Enhancement project,
providing an enhanced trailhead at the end of Ash Avenue, and planting the trail
corridor. District's improvements to Fanno Creek(Enhancement)project includes re-
meandering Fanno Creek, creating and improving floodplain wetlands,placing large
wood for improved channel function and habitat complexity, repairing highly eroded
banks to protect bridge and sanitary sewer infrastructure, and establishing native plant
communities. The Project Area is identified in the map attached as Exhibit A.
Major elements of the Project include, but are not limited to:
1. Developing final construction documents and a construction schedule for District's
Enhancement project and Tigard's Amenities project.
2. Constructing the Enhancement project and the Amenities project based on final
construction documents. To increase efficiency and to minimize trail closures, both
projects will be designed, permitted and constructed together.
3. Developing an Ecological Enhancement Plan that will describe the actions to be
conducted (planting and invasive weed treatments)to establish and maintain healthy
native plant communities at the site.
4. Restoring Park habitat and plant communities as shown in the Master Plan.
C. DISTRICT OBLIGATIONS
District will manage the design,permitting, and construction of the Enhancement and
Amenities projects in the Park and on adjoining lands secured by Tigard, by completing
the following activities:
1. Hire consultants to develop construction documents, conduct engineering and
environmental investigations, and prepare permit applications.
2. Provide all technical information generated to Tigard.
3. Work with regulators and secure all necessary permits for the Enhancement and
Amenities projects from the Division of State Lands, the Corps of Engineers,NOAA-
Fisheries, Oregon Department of Fish and Wildlife, District, and Tigard.
4. Cooperate with Tigard to integrate the Enhancement and Amenities project design
elements to meet District and Tigard needs, and participate in meetings and design
discussions with Tigard throughout the development of final construction documents.
5. Develop an Ecological Enhancement Plan for the Project Area that incorporates
Tigard trail vegetation guidelines.
6. Provide technical assistance and support to Tigard for any wetland or vegetated
corridor mitigation required for the Amenities project. Where feasible and cost
effective, District will integrate the mitigation into the design of the Enhancement
project and construct the mitigation as part of the Enhancement project. If mitigation
beyond what is available on the site is necessary, Tigard will be responsible for such
mitigation.
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7. Provide final construction documents (plans, specifications in District format, and
estimate) and a construction schedule to Tigard prior to the start of construction.
8. Administer the bid process and award the construction contract for the Enhancement
and Amenities projects. Perform contract administration for all contracts issued by the
District for the projects, and conduct construction inspection and management of the
Enhancement and Amenities projects. District shall require all contractors name
Tigard as an additional insured on all applicable policies.
9. Construct the Enhancement and Amenities projects in accordance with construction
documents approved by District and Tigard.
10. Complete habitat restoration in accordance with the Ecological Enhancement Plan.
11. Monitor and maintain the Enhancement project in accordance with the Ecological
Enhancement Plan.
12. Communicate and coordinate with the Tigard project manager on relevant aspects of
the Project.
D. TIGARD OBLIGATIONS
Tigard will manage the Master Plan for the Park and adjoining lands by completing the
following activities:
I. Provide input and review of work products to District through the design and
permitting phase of the Enhancement and Amenities projects.
2. Provide construction oversight during construction of the Amenities project.
3. Coordinate with and compensate District for consultant fees, construction costs, and
project management staff time for work conducted on the Amenities project
per Section E of this Agreement.
4. Make a good faith effort to secure additional lands or easements over adjacent private
property as required to implement the Project prior to construction. If Tigard cannot
acquire additional lands or easements for the Project, the Project will be constructed
on property currently owned by Tigard. Tigard shall identify if acquisition of
additional property is feasible early in the design phase.
5. Provide public involvement,with District's participation as needed, for the entire
Project. Tigard, or a consultant selected by Tigard, shall conduct all necessary public
meetings for any permitting obligations. Tigard shall prepare and distribute notice to
park neighbors, respond to public calls regarding the Project, and post signage
regarding the Project along the trail routes. Tigard shall close and manage the trail
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accesses for the duration of the construction of the Project to maximize the safety of
citizens and staff.
6. Review the Project plans for local permitting and National Flood Insurance Program
compliance. Tigard shall process any necessary permits associated with achieving
compliance. Tigard shall facilitate permitting for the Enhancement project in
cooperation with District's timeline to the maximum extent possible.
7. Provide guidelines and input on vegetation to be established along the trail corridors
to the District to be incorporated into the Ecological Enhancement Plan. Tigard shall
provide review and approval of the Ecological Enhancement Plan when completed.
8. Provide District with a"Grant of Rights"over the Project Area substantially in the
form attached hereto as Exhibit B.
9. Communicate and coordinate with the District project manager on relevant aspects of
the Project.
10. Ensure compliance with Tigard's Sensitive Lands requirements. The parties agree to
perform the Project in a manner which meets the requirements of Section
18.775.020C of the City of Tigard Municipal Code for exemptions to a Sensitive
Lands permit(Exemptions). The Project will be performed under the direction of the
City and in compliance with the provisions of the City of Tigard Standards and
Specifications for 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 notice to the
other party.
E. COMPENSATION
1. Tigard will pay for the material purchase and construction of the Amenities project,
and for the design, investigation, and permitting costs for the Amenities project.
Tigard will reimburse District for any of the above costs that the District incurs,but in
no event shall Tigard's total cost for the Amenities exceed $553,000. District is not
obligated to spend more money on the Amenities project than the amount that Tigard
has agreed to reimburse it for. If the cost to complete the Amenities project will
exceed$553,000, District and Tigard will enter into an Amendment to this
Agreement to adjust the scope of work or increase the not-to-exceed amount, as
mutually determined by the parties.
2. District will pay for the design, investigation,permitting costs, material purchase,
contractor fees, and construction of the Enhancement project.
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3. District and Tigard will review Project cost estimates at the 30%, 60%and 90%
design plans and specification phases.
4. Costs for Project services will be tracked by each entity. Tigard will annually
reimburse District for the costs District incurs in accordance with Section E.1.
District will provide Tigard with an invoice for Project costs within 60 days of the
end of each fiscal year and a final invoice upon completion of the Project. Project
costs shall be based on actual design invoices and construction costs. Tigard shall
reimburse District within 30 days of receiving the invoice.
F. GENERAL TERMS
1. Laws and Regulations. Tigard and District agree to abide by all applicable laws and
regulations.
2. Term of this Agreement. This Agreement is effective from the date of execution by
both parties and shall remain in effect until the Project is complete and the parties'
obligations have been fully performed.
3. 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 others 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.
4. Inte rag tion. 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 parry's exercise of the right in the future.
5. Termination. This Agreement may be terminated immediately by mutual written
agreement of both parties.
6. Resolution of Disputes. If any dispute out of this Agreement cannot be resolved by
the project managers from each party,the City Manager and Clean Water Service's
General Manager will attempt to resolve the issue. If the City Manager and Clean
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Water Service'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. If 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.
7. 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 constructing or interpreting this Agreement.
8. 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.
9. 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) Tigard.
10. 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.
SIGNATURE PAGE TO FOLLOW
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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
By: 4 By:���bYw��
Bill Gaffi, Ge ral anager Marty Wine, City Manager
APPROVED AS TO FORM APPROVED AS TO FORM
'h' �_..
District)Counsel ig r CiAttorney
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Disclaimer: Not intended as definitive property description. Exhibit A
All users of this information should perform a separate
investigation of conditions before commencing any plan,
design, construction, watershed enhancement activities, Feet
or other work.There are no warranties,expressed or implied,
including the warranty of merchantability or fitness fora CleanWater\ Services
particular purpose, concerning this information. 0 70 140 280
Washington County,Oregon 2018.005778
01/24/2018 02:24:49 PM
D-E Cnt=1 Stn=30 RECORDS1
$30.00$S,00$11.00$20.00-Total=;66.00
RETURN TO: Clean Water Services 1111111 1111111111111111111111
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Mail Stop 10 02358116201800057780060061
I,Richard Hobarnicht,Director of Asussment and
2550 SW Hillsboro Highway Taxation and Ex-Offlelo county Cierk for Washington
County,Oregon,do haroby certny that the within
Hillsboro,OR 97123 instrument of writing was reeel 'd old re orded In the
book of records of said coi
Richard Hobernieht,Director of Assessment and
Tax Statements: No change requested Taxation,Ex-Cfnclo County Clerk
Project: Fanno Ash to Main
Tax Lot Nos.: 2S 102AC00203, 2S 102AC00204,
2S102DB00500,2S102DBO2800
Square Feet: 980,522
GRANT OF RIGHTS TO CONDUCT ECOLOGICAL ENHANCEMENT
AND
STEWARDSHIP ACTIVITIES
Name of GRANTOR: City of Tigard
Mailing Address: 13125 SW Hall Blvd
Tigard,OR 97223
Legal Description of Larger See Exhibit A attached herein
Parcel:
GRANTOR,owner of the property described in Exhibit A herein(the"Property"),does hereby
grant and convey to Clean Water Services,GRANTEE,the right to conduct ecological
enhancement and stewardship activities on the Property. GRANTEE's right to conduct
ecological enhancement and stewardship activities is nonexclusive until such time as GRANTEE
develops an ecological enhancement plan approved by GRANTOR in accordance with Section 2
below.
The consideration for this Grant of Rights is non-monetary.
This Grant of Rights shall be effective on the date it is recorded in the deed records of
Washington County,Oregon and shall terminate twenty(20)years from that recording date.
GRANTEE may renew this Grant of Rights for an additional twenty(20)year period by
providing written notice to GRANTOR at least one year but no more than two years prior to the
scheduled termination date. GRANTEE may also terminate this Grant of Rights prior to the
scheduled termination date in the event of a change in GRANTEE'S available funding or
business related regulatory constraints.Notice of such termination must be provided in writing at
least one(1) year prior to the early termination date.
Grant of Rights to Conduct Ecological Enhancement
City of Tigard
Page 1
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GRANTEE shall have ownership of ecological credits(e.g. Shade Credits)created on the
Property as a result of GRANTEE's ecological enhancement activities. GRANTEE shall not
have ownership of ecological credits which result from activities conducted by GRANTOR
unless GRANTEE and GRANTOR separately agree to such ownership.
Additional terms and conditions set forth below are hereby agreed to and binding upon the
parties to this Grant of Rights:
1. The purpose of this Grant of Rights shall be to improve ecological conditions by
enhancing and maintaining the Property. GRANTEE's enhancement and maintenance
activities on the Property may include,but shall not be limited to,the following: 1)
using manual,mechanical or chemical means to control invasive species,provided that
the chemical means are applied in accordance with GRANTEE's Integrated Pest
Management Plan; 2)planting native tree,shrub,forb and grass species; 3)placing
large woody debris on the Property or in any stream adjacent to the Property;4)
irrigating planted species; 5) replacing dead tree, shrub, forb and grass species; 6)
monitoring site conditions and collecting ecological data; and 7)conducting such other
activities as GRANTEE determines are reasonably necessary to protect or improve
riparian,fishery, upland and wetland ecological functions in accordance with mutually
agreed enhancement plan (s)and applicable regulatory crediting frameworks.
GRANTOR reserves the right to use and enjoy the Property except as such use may be
inconsistent with or conflict with the activities allowed GRANTEE by this Grant of
Rights.
2. Prior to commencing any enhancement activities GRANTEE shall: 1)prepare an
ecological enhancement plan (Plan)setting forth GRANTEE's proposed enhancement
activities; 2)obtain GRANTOR's approval of the Plan,and 3)obtain all required
permits. When GRANTEE's proposed enhancement activities will affect stream flow,
the Plan shall include modeling to estimate the hydraulic impact of the enhancement
activities.The Plan shall also include a twenty(20)year stewardship plan, and shall
include a description of funding sources for the enhancement activities, and any
transaction that may result in the transfer of mitigation obligations or ecological
credits beyond the regulatory requirements of the GRANTEE. The Plan may be
amended from time to time as agreed by both parties.
3. After the Plan has been approved by GRANTOR, GRANTEE shall have the right but
not the obligation to conduct any of the enhancement activities described in the Plan.
However, if GRANTEE has not implemented the Plan(or substantially commenced
implementation of the Plan) within three years from the date the Plan was approved by
GRANTOR,then such Plan shall be deemed to have expired and(a)GRANTEE's
rights shall no longer be exclusive to GRANTEE and(b)GRANTEE shall be required
to submit a new proposed Plan to GRANTOR before commencing any enhancement
activities on the Property.
Grant of Rights to Conduct Ecological Enhancement
City of Tigard
Page 2
4. When GRANTEE conducts its enhancement activities pursuant to its approved Plan,
GRANTEE shall thereafter maintain the resulting enhancements to the Property for the
duration of this Grant of Rights. GRANTEE's obligation to maintain such
enhancements shall be limited to portions of the Property GRANTEE has enhanced.
GRANTEE shall be under no obligation to maintain portions of the Property
GRANTEE has not enhanced. GRANTEE'S maintenance obligation shall consist of
conducting activities that support the ecological function of the portion of the Property
GRANTEE has enhanced. Such maintenance obligations may include,but are not
limited to,reducing invasive species and planting additional native species.
5. During the term of this Grant of Rights GRANTOR shall periodically monitor the
Property and shall enforce GRANTOR's ownership rights against trespassers in
accordance with the policies GRANTOR has adopted for GRANTOR's other similar
land. In the event GRANTOR fails to enforce GRANTOR's rights against trespassers
and GRANTEE believes such failure could result in harm to the Property's ecological
conditions addressed by GRANTEE's Plan,GRANTEE, in its capacity as the owner
i
of this Grant of Rights,may pursue any and all action against trespassers available
under applicable law.
I
6. GRANTOR and GRANTEE agree that there shall be no damming, dredging or other
activities that may be detrimental to enhancement activities conducted on the Property.
GRANTOR agrees not to engage in any activities on the Property which are,in the
reasonable opinion of GRANTEE, inconsistent with GRANTEE's actions to preserve
the natural condition of the Property in accordance with the approved Plan. The
parties acknowledge that GRANTOR may lease the Property or portions thereof for
farming activities,provided that such activities are consistent with the requirements of
this paragraph.
7. GRANTEE and its contractors shall confine enhancement activities and any related
construction operations to the Property or obtain the written permission of GRANTOR
if additional area or access is required.
8. To the maximum extent permitted by law and subject to the limitations of the Oregon
Tort Claims Act,ORS Chapter 30,and the Oregon Constitution,GRANTEE shall
defend, indemnify,and hold harmless GRANTOR from and against any and all claims,
demands,judgments, losses,damages,expenses,costs, fees(including,but not limited to,
attorney, accountant,paralegal,expert,and escrow fees), fines,and/or penalties,which
may be imposed upon or claimed against GRANTOR and which,in whole or in part,
directly or indirectly,arise from or are in any way connected with(a)the negligent or
wrongful act or omission of GRANTEE,its agents,employees or contractors acting
within the scope of their employment or duties occurring on the Property and (b)the
breach of any provision of this Grant of Rights by GRANTEE. It is understood and
agreed that GRANTEE,by accepting this grant of Grant of Rights, is not accepting
any liability and shall not be responsible for any environmental contamination on the
Property,unless such contamination results from or is caused by an intentional or
negligent act of GRANTEE or its agents,employees,and contractors.
Grant of Rights to Conduct Ecological Enhancement
City of Tigard
Page 3
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9. The rights granted herein shall be covenants running with the land and be binding
upon GRANTOR, its successors and assigns for the duration of the Grant of Rights,
except as otherwise set forth herein. The parties covenant and agree that all activities
and operations conducted on the Property pursuant to this Grant of Rights will be strictly
in compliance with all applicable present and future laws,rules,and regulations of
Washington County and the State of Oregon,and any other governmental body having
jurisdiction over the Property. GRANTOR represents and warrants that it is the owner
of the real property described herein,and has the full right and power to grant the
rights provided in this Grant of Rights, subject to liens and encumbrances of record as
of the date of execution set forth below.
IN WITNESS WHEREOF,the parties have executed this Grant of Rights as of the dates written
below.
GRANTOR:
City of Tigard,
an Oregon municipal corporation
Name: MG r4-kA L< GL�Ih
Title: MQ
Date:
State of OREGON )
ss.
County of
This instrument was acknowledged before me on J)4eCe—%JV_a( 2017 by
of City of Tigard,an Oregon
municipal corporation.
OFFICIAL STAMP
KELLY E BURGOYNE
NOTARY PUBLIC - OREGON X0 P
COMMISSION NO.958991 No&ry PublState of Orego
MY COMMISSION EXPIRES FEBRUARY 12,2021
Grant of Rights to Conduct Ecological Enhancement
City of Tigard
Page 4
GRANTEE:
ACCEPTED
Clean Water Services
By:
General Manager or Eiesj6ee
� Date: /
APPROVED AS TO FORM
District Counsel
State of OREGON )
ss.
County of I,JASRIMwpm ) 13*41
This instrument was acknowledged before me on �l UxRy 1F; .2011 by
1L-L. &rri , AENCP-AL VY\pWA6,EV, of Clean Water Services,a
County Service District.
f� STs, NoPublic-State of Oregon
STEPHANIE ANN MORRNM
j NOTARY puBU04F EGM
+ COMNMSSION NO.%1911
MY COMMISSION EXPIRES MAY 18,M
Grant of Rights to Conduct Ecological Enhancement
City of Tigard
Page 5
EXHIBIT A
Government Lots No. 5 and No. 6 in Section 1,Township 2 South,Range 1 West,Willamette
Meridian, Washington County,Oregon.
EXCEPTING THEREFROM that portion lying within the boundaries of the Oregon Electric
Railroad right of way and the Southern Pacific Railroad right of way;
i
ALSO EXCEPTING THEREFROM that portion of Government Lot No. 5 lying East of the
Southern Pacific Railroad right of way;
AND FURTHER EXCEPTING THEREFROM that portion of Government Lot No. 5 lying
within the boundaries of the Bonita Industrial Park.
Exhibit A to Grant of Rights to Conduct Ecological Enhancement
City of Tigard
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