INTERGOVERNMENTAL AGREEMENT
North Marine Drive Habitat Enhancement
This Intergovernmental Agreement (“Agreement”) dated June , 2002, is by and between the City of Portland, Office of Transportation, (“PDOT”) and Metro, a metropolitan service district organized under the laws of the state of Oregon and the 1992 Metro Charter (“Metro”). (PDOT and Metro shall be individually referred to herein as a “Party” or collectively as the “Parties.”) The Parties acknowledge that they have authority to enter into this Agreement pursuant to the powers contained in their respective charters and in ORS 190.010.
The Parties agree as follows:
1. Project Declaration.
a. It is in the mutual interests of the Parties to enhance western painted turtle habitat in a part of the Smith and Bybee Lakes Wildlife Area contiguous with PDOT’s North Marine Drive Expansion—Phase 2 improvement project. This agreement is to describe all work to improve approximately one-half acre of such habitat (the “Project”) in the area identified on Attachment A (the “Project Area”), and to provide for the division of responsibilities between PDOT and Metro for all aspects of that work.
b. The Project shall include, but not be limited to, installation of silt fence for erosion control, removal of sandy soil, hauling excavated material to a disposal site, traffic control measures, if needed, any necessary temporary access roads, installation of topsoil, addition of gravel, seeding with native grasses and forbs, and planting of woody shrubs and trees.
2. Project Design and Construction.
a. Design:
i. Metro will design the project and acquire any necessary land use approvals and permits. Metro will also approve all materials to be used in the Project; including topsoil, native plant seeds, and woody plants.
ii. PDOT will assist with project design, including conducting a survey of the Project Area.
b. Construction:
i. Metro will delineate the precise Project Area on the ground using silt fencing and other markers and will permit PDOT and its contractors to enter the Project Area for completion of Project tasks. Metro will supervise all excavation work, the hauling of material off-site, approval of topsoil to be used, and topsoil replacement. Metro will also construct silt fencing, place gravel as needed for habitat purposes, and perform seed and woody plant installations.
ii. PDOT will provide survey services as needed. PDOT will also oversee and complete, or contract for the completion of, all necessary excavation, hauling, provision of topsoil, flagging, traffic control signs, and construction of temporary access roads. PDOT may use contractors already under contract with PDOT as part of PDOT’s North Marine Drive Extension – Phase 2 improvement project to complete any such tasks. Rather than using PDOT’s services or the services of PDOT’s contractors, Metro may, at its sole discretion, make alternate arrangements to accomplish Project tasks as Metro deems necessary..
3. Project Expenses. Metro is responsible for all Project expenses except for PDOT staff time. Upon completion of the work to be performed by PDOT’s contractors, PDOT shall submit an itemized invoice to Metro depicting all applicable contract expenditures. All such contract expenditures shall be reimbursed by Metro in full, up to a total limit of $25,000.
4. Maintenance. Upon completion of the Project, Metro will maintain the site at Metro’s expense.
5. Notices. All notices or other communications required or permitted under this Agreement shall be in writing, and shall be sent by personal delivery (including by means of professional messenger service), facsimile, electronic mail, or regular mail to the other Party’s designee. The City and Metro may change their respective designee by providing written notice of such a change to the other Party. Unless changed as provided in this paragraph, the Parties’ respective designees are:
For PDOT: For Metro:
Stacy Bluhm Elaine Stewart
Portland Office of Transportation Metro Regional Parks and Greenspaces
1120 SW 5th Avenue, Suite 800 600 NE Grand Avenue
Portland, Oregon, 97204 Portland, Oregon, 97232
503-823-7723 office, 503-247-7303 field 503-797-1515 office
503-823-7371 fax, 503-247-7306 field fax 503-797-1849 fax
6. Indemnification.
a. To the extent permitted by Oregon law, and subject to the limitations of the Oregon Tort Claims Act, ORS 30.260 to 30.300, as may be amended from time to time, PDOT shall defend, indemnify, and hold harmless Metro and its respective officers, employees, and agents, against any and all liabilities, damages, claims, demands, judgments, losses, costs, expenses, fines, suits, and actions, whether arising in tort, contract, or by operation of any statute, including but not limited to attorneys’ fees and expenses at trial and on appeal, arising out of the PDOT’s obligations as set forth in this Agreement.
b. To the extent permitted by Oregon law, and subject to the limitations of the Oregon Tort Claims Act, ORS 30.260 to 30.300, as may be amended from time to time, Metro shall defend, indemnify, and hold harmless PDOT , and its respective officers, employees, and agents, against any and all liabilities, damages, claims, demands, judgments, losses, costs, expenses, fines, suits, and actions, whether arising in tort, contract, or by operation of any statute, including but not limited to attorneys’ fees and expenses at trial and on appeal, arising out of Metro’s obligations as set forth in this Agreement.
7. General Provisions.
a. Oregon Law and Forum. This Agreement shall be construed according to the laws of the State of Oregon. Any litigation among the Parties arising out of this Agreement or out of work performed under this Agreement shall be brought, if in the state courts, in Multnomah County, and, if in the federal courts, in the United States District Court for the District of Oregon.
b. Assignment. No Party shall assign this Agreement, in whole or in part, without the prior written consent of the other Party, except that a Party may delegate or subcontract for performance of any of its respective responsibilities under this Agreement.
c. Severability. If any non-material provision in this Agreement is found to be illegal or unenforceable, all other provisions of this Agreement shall nevertheless remain in full force and effect and the illegal or unenforceable provision shall be stricken.
d. Integration. This Agreement contains the entire agreement among the Parties regarding the subject matter set forth herein, and supersedes all prior written or oral discussions or agreements. No waiver, consent, modification or change of the terms of this Agreement shall bind any Party unless it is in writing and signed by both Parties.
IN WITNESS WHEREOF, the Parties hereto have set their hands on the day and year set forth above.
CITY OF PORTLAND:
By: ________________________________________
Jim Francesconi, Commissioner of Public Utilities
By: ___________________________ Approved as to Form:
Gary Blackmer, City Auditor
Date: _________________________ ____________________________
Deputy City Attorney
METRO:
By: ___________________________ Approved as to Form:
Scott Moss, Asst. Director, Admin. Services
Date: _________________________ ____________________________
Metro General Counsel
O:\track_changes_bb\Unfinalized_group\City Auditor - City Recorder - Council Ordinance - 176639 METRO turtle nesting contract.DOC