INTERGOVERNMENTAL AGREEMENT

 

TRY/ON Life Community Farm Conservation Easement

Acquisition and Co-ownership Agreement

 

This Intergovernmental Agreement (“Agreement”) is entered into this _________ day of __________, 2006, by and between Metro, a metropolitan service district established pursuant to Oregon law and the Metro Charter (“Metro”); the City of Portland, a municipal corporation, through its Bureau of Environmental Services (“BES”); and Oregon State Parks, a political subdivision of the State of Oregon, through its Oregon Parks and Recreation Department (“State Parks”) (collectively, the “Parties”).

 

 

Witnesseth:

 

WHEREAS, the Parties hereto have agreed to cooperate in the purchase of a conservation easement (“Conservation Easement”) encumbering real property in Multnomah County, Oregon, located at 11640 SW Boones Ferry Road, Portland, Oregon (the “Farm Property”), and legally described and depicted in the Conservation Easement attached hereto as Exhibit A; and

 

WHEREAS, Metro and BES each desire to contribute ONE HUNDRED THOUSAND DOLLARS ($100,000) and TWO HUNDRED THOUSAND DOLLARS ($200,000) respectively toward the purchase price of $300,000 for the Conservation Easement, in exchange for ownership shares in the Conservation Easement as tenants-in-common, commensurate to their contribution; and

 

 WHEREAS, the Parties desire to provide for the management and enforcement of the Conservation Easement by State Parks as an adjunct to Tryon Creek State Park; and

 

WHEREAS, on May 16, 1995, voters approved Ballot Measure 26-26, Open Spaces, Parks, and Streams (“Metro Open Spaces Bond Measure”), which authorizes Metro to issue up to $135.6 million in general obligation bonds for the protection of open spaces, parks and streams, and the Metro Greenspaces Master Plan, the Metro Open Spaces Bond Measure, and the Refinement Plan for the Tryon Creek Linkages Target Area, adopted by the Metro Council on May 16, 1996 via Resolution No. 96-2330, recognized the Tryon Creek watershed as a regionally significant natural area; and

 

WHEREAS, on January 4, 2006, via Ordinance No. 06-XXXX (“For the Purpose of Authorizing the Chief Operating Officer to Contribute Towards the Purchase of the TRY/ON Life Community Farm Property in the Tryon Creek Linkages Target Area”), the Metro Council authorized Metro to enter into this Agreement to purchase a fractional interest in the Conservation Easement in accordance with ORS 271.715-795 and Metro Code Section 10.03, taking a pro-rata share of title as a tenant-in-common with BES and State Parks, under the terms and conditions set forth herein; and

 

WHEREAS, on January ___, 2006, via Ordinance No. __________, the Portland City Council authorized the Commissioner of Public Utilities to enter into this Agreement to purchase the fractional interest in the Conservation Easement under the terms and conditions described herein;

 

NOW, THEREFORE, the Parties agree as follows:

 

1.  Acquisition and Closing.

 

1.1  Metro is currently negotiating the terms of an Agreement of Purchase and Sale for the Conservation Easement with Oregon Sustainable Land Trust (“OSALT”), which holds an option to purchase the Farm Property. Metro shall be responsible for these negotiations, and shall enter into the Agreement of Purchase and Sale with OSALT to purchase the Conservation Easement for $300,000 (the “Purchase Price”), on terms consistent with this Agreement. Metro shall be responsible for conducting commercially reasonable due diligence in accord with Metro Open Spaces Bond Measure practices prior to closing the acquisition of the Conservation Easement. If BES or State Parks requires that any additional due diligence be performed, BES or State Parks shall be solely responsible for those items.

 

1.2  Subject to the review of the results of Metro’s due diligence and approval by all Parties, Metro shall contribute one-third (1/3) of the Purchase Price, in the amount of $100,000, and BES shall contribute two-third (2/3) of the Purchase Price, in the amount of $200,000, at Closing, in consideration of which Metro shall receive an undivided one-third (1/3) interest and BES shall receive an undivided two-third (2/3) interest in the Conservation Easement as tenants-in-common.

 

1.3  The Closing shall take place at _____________ Title Company, __________________Portland, Oregon ________. The Parties agree to accept the grant of Conservation Easement subject to the encumbrances set forth in the attached Exhibit B. Metro shall provide buyer’s escrow instructions and shall coordinate closing details among the Parties to this Agreement. The Parties shall equally share the recording fees, escrow fees, and the title insurance premium, if any, relating to the acquisition of the Conservation Easement.

 

2.  Management and Enforcement of the Conservation Easement

 

2.1  State Parks agrees to exert reasonable efforts to enforce the terms of the Conservation Easement, and shall be responsible for the administration of the Conservation Easement, including all contacts with the fee owner and occupants of the Farm Property. State Parks shall be responsible for management of any enhancement and restoration activities performed in the area protected by the Conservation Easement (the “Protected Area”), if any, in accord with the terms of this Agreement and the terms of the Conservation Easement.

 

 2.2  Metro and BES shall have the right to review and comment on State Parks’ enforcement, administration and management under the Conservation Easement, which practices by State Parks shall not conflict with the guidelines set forth in this Agreement, or with the uses and restrictions described in the Metro Open Spaces Bond Measure. State Parks shall provide Metro and BES with written notice as soon as possible, but in any event no less than 30 days in advance of a proposal to initiate enhancement or restoration of the Protected Area.

 

3.  Permits, Easements, Assessments, Coordination with Other Public Agencies

 

 3.1  State Parks shall be responsible for obtaining any local, state or federal permits necessary for enforcement and management of the Conservation Easement.

 

 3.2  Any permits granted to third parties by State Parks to use the Protected Area shall comply with the requirements and restrictions set forth in the Conservation Easement and the terms and limitations set forth in this Agreement.

 

3.3  State Parks shall be responsible for contacting and coordinating with other local or state agencies regarding any and all management or enforcement issues that may arise with respect to the Protected Area.

 

 3.4  All requests to use the Protected Area for any non-park use, or for easements, rights-of-way, and leases on or affecting the Protected Area shall be submitted to Metro in accordance with the Metro Easement Policy, Resolution No. 97-2539B, passed by the Metro Council on November 6, 1997, attached hereto as Exhibit B. No such request shall be approved until authorized by the Metro Council.

 

4.  General Provisions

 

 4.1  Indemnification. Each party to this Agreement, 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, shall defend, indemnify and hold harmless the other parties to this Agreement, their officers, employees, and agents from and 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, relating to or resulting from the each party’s management and enforcement of the Conservation Easement, including but not limited to restoration and enhancement on the Protected Area pursuant to the Conservation Easement.

 

 4.2  Oregon Constitution and Tax-Exempt Bond Covenants. The source of Metro’s contribution to the acquisition of the Conservation Easement is from the sale of voter-approved general obligation bonds that are to be paid from ad valorem property taxes exempt from the limitations of Article XI, section 11(b), 11(c), 11(d) and 11(e) of the Oregon Constitution, and the interest paid by Metro to bondholders is currently exempt from federal and Oregon income taxes. The City and State Parks covenant that they will take no actions that would cause Metro to be unable to maintain the current exemption from Oregon’s constitutional limitations or the income tax exempt status of the bond interest. In the event BES and/or State Parks breach this covenant, Metro shall be entitled to whatever remedies are available to either cure the default or to compensate Metro for any loss it may suffer as a result thereof.

 

 4.3  Signs. State Parks may provide on-site signs informing the public that State Parks is managing the Protected Area. Metro may provide on-site signs stating that a portion of the funding for the acquisition came from Metro Open Spaces Bond Measure proceeds. The Parties shall also document in any publication, media presentation or other presentations that a portion of the funding for the acquisition came from Metro Open Spaces Bond Measure proceeds.

 

 4.4  Joint Termination for Convenience. The Parties hereto may mutually agree to terminate all or part of their responsibilities and obligations under this Agreement, based upon a determination that such action is in the public interest. Termination under this provision shall be effective ten (10) days following the execution of a written agreement to terminate, signed by all Parties to this Agreement.

 

 4.5  Termination for Cause. Any party may terminate this Agreement, whenever that party determines, in its sole discretion, that another party has failed to comply with the terms and conditions of this Agreement and is therefore in default. The terminating party shall promptly notify the other parties in writing of that determination and document such default with reasonable particularity. The defaulting party shall then be provided with thirty (30) days to cure the problem, or to substantially pursue such a cure, if it is not possible to complete a cure within thirty days.

 

4.6  Laws of Oregon. This Agreement shall be governed by the laws of the state of Oregon, and the Parties agree to submit to the jurisdiction of the courts of the state of Oregon. All applicable provisions of ORS chapters 187 and 279, and all other terms and conditions necessary to be inserted into public contracts in the state of Oregon, are hereby incorporated as if such provisions were a part of this Agreement including but not limited to ORS 279.015 to 279.320.

 

4.7  Duration. This Agreement shall continue indefinitely, but may be amended or terminated at any time with the written consent of all Parties.

 

4.8  Assignment. Except as otherwise provided herein, the Parties may not assign any of their rights or responsibilities under this Agreement without prior written consent from the other parties, except the Parties may delegate or subcontract for performance of any of their responsibilities under this Agreement.

 

4.9  Notices. All notices or other communications required or permitted under this Agreement shall be in writing, and shall be personally delivered (including by means of professional messenger service) or sent by fax and regular mail.

 

 To Metro:    Metro

       Jim Desmond

       Director, Metro Parks & Greenspaces

       600 N.E. Grand Avenue

       Portland, OR 97232-2736

 

 To State Parks:  Dave Wright

State of Oregon

Parks and Recreation Department

725 Summer Street NE, Suite C

Salem, Oregon 97301

       

 To BES:    City of Portland

       Bureau of Environmental Services

Attn:          

1900 SW 4th Avenue

Portland, Oregon 97201

 

4.10   Severability.  If any covenant or provision in this Agreement shall be adjudged void, such adjudication shall not affect the validity, obligation, or performance of any other covenant or provision which in itself is valid, if such remainder would then continue to conform with the terms and requirements of applicable law and the intent of this Agreement.

 

4.11  Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any prior oral or written agreements or representations relating to this Farm Property. No waiver, consent, modification or change of terms of this Agreement shall bind the Parties unless in writing and signed by each party.

 

 IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year set forth above.

 

 

Metro            Oregon State Parks

 

By: ______________________________  By: _____________________________

Title: ____________________________  Title: ___________________________

 

 

City of Portland, Bureau of Environmental Services

 

By:          

Title:          

 

 

 

 

Exhibit A  Conservation Easement

Exhibit B  Metro Easement Policy, Resolution No. 97-2539B