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08-150 Spokane County Conservation Dist: Barker Bridge Replcmnt River Impact Mitigation AGREMENTFOR SPOKANE RNER AQUATIC IMPACT MITIGATION FOR THE BARKER ROAD BRIDGE REPLACEMENT PROJECT THIS AGREEMENT, made and entered into this /~11_ day of C;'~.✓ , 2008, by and beriveen the CITY OF SPOKANE VALLEY, having offices for the transaction of business at 11707 E Sprague Avenue, Suite 106, Spokane Valley, Washington, 99206, hereafrer referred to as the "CITY" and the SPOKANE COIJNTY CONSERVATION DISTRICT, having offices for the transaction of business at 210 North Havana Street, Spokane, Washington, 99202, and hereafter referred to as the "CONSERVATION DISTRICT" and the WASHINGTON STATE DEPARTMENT OF FISH AND WILDLIFE, having offices for the transaction of business at 2315 North Discovery P, Spokane Valley, Washington, 99216, and hereafter referced to as "FISH AND WILDLIFE", jointly reFerred to as "PARTIES". WITNESSETH WHEREAS, the CITY has the care of funds and business; and WHEREAS, pursuant to the provisions of RCW Section 77.55.100, FISH AND WILDLIFE has authority to set conditions on hydraulic project approvals in order to protect fish life; and WHEREAS, the CITY has and is proposing to perform construction activities in the 5pokane River, invobing activities which FISH AND WILDLIFE has determined will produce and have produced adverse impacts to aquatic habitat, will require compensatory mitigation as a condition of a hydraulic project approval; and WHEREAS, the CONSERVATION DISTRICT has the necessary personnel, facilities, equipment, technical knowledge and experience to implement aquatic and riparian habitat restoration activities meeting the requirements set forth by RCW 77.55.290; and WHEREAS, the CITY desires to contract with the CONSERVATION DISTRICT to perform the compensatory mitigation required by FISH AND WILDLIFE relative to the construction activities associated with the replacement of the Barker Road Bridge; and NOW, THEREFORE, for and in consideration of the mutual promises set foRh hereinafrer, the PARTIES hereto do mutually agree as follows: Section I Payment The CITY agrees to make one lump-sum imlieu fee payment of $32,000 to the CONSERVATION DISTRICT. It is understood by the PARTIES that this constitutes full and final payment for services rendered under this Agreement. This money is to be used by the CONSERVATION DISTRICT solely for a project to enhance riparian and/or aquatic habitat in a manner consistent with RCW 77.55.290 within the Spokane River Watershed and within the City of Spokane Valley. If, afrer three years, a project within the City of Spokane Valley has not been identified, the CITY agrees that the CONSERVATION DISTRICT may use this money on a project in another location that the CONSERVATION DISTRICT deems appropriate. The CITY will provide a copy of the payment voucher to F1SH AND WILDLIFE to document the transfer of funds. C08-150 FISH AND WILDLIFE shall recognize this payment as effective compensatory mitigation for the negative impacts to aquatic habitat that have occurted to date and are expected from the work that will occur under the CITY's Hydraulic Project Approval for the Replacement of the Barker Road Bridge over the Spokane River. Section II Assignment and Authorization of Work The clauses and general provisions in the Agreement will be incorporated by reference into the task assignment of work issued to the CONSERVATION DISTRICT by the CITY. The CONSERVATION DISTRICT agrees to accept and perform this task under the conditions of this Agreement. F[SH AND WILDLIFE reserve the right to review project proposals created by the CONSERVATION D[STR[CT that intend to use the mitigation payment provided by the CITY. Prior to spending the CITY mitigation payment, the CONSERVATION DISTRICT shall furnish FISH AND WILDLIFE with a copy of the plans and contracts for an appropriate project. The CONSERVATION DISTRICT shall not begin work on a project intending to use the CITY s mitigation payment without written approval of the project by FISH AND WILDLIFE. Section III Scope of Work The CONSERVATION DISTRICT'S services may include but are not limited to the following: 1. Provide qualified personnel capable of creating and executing aquatic resource management projects. 2. Conduct resource evaluations and other operations required to identify potential mitigation sites. 3. Obtain permissions from or contracts with affected property owners as necessary. 4. Create detailed plans of the project proposal to be circulated to FISH AND WILDLIFE. 5. Construct or cause to be constructed a riparian and/or aquatic habitat enhancement project as required by the CITY and FISH AND WILDLIFE. 6. Conduct maintenance conforming to the standards set forth by FISH AND WILDLIFE. Section N Inspection of Work FISH AND WILDLIFE will at all times be accorded by the CONSERVATION DISTRICT proper facilities for review and inspection of the work hereunder and will at all times have access to the premises, and to all data, notes, records, correspondence, instructions, and memoranda of every description pertaining to the work hereunder. Section V Maintenance of Records The CONSERVATION DISTRICT shall make available to the CITY or the Washington State Auditor, or their duly authorized representatives, at any time during their normal operating hours, all records, books, or pertinent infortnation which the CONSERVATION DISTRICT shall have kept in conjunction with this Agreement, and which the CITY may be required by law to make part of its auditing procedwes. Section VI Relationships of Parties The PARTIES intend that the relationship created by the Agreement will be structured to provide an in- lieu fee payment for compensatory mitigation. The CITY is interested only in satisfying the compensatory mitigation being required by FISH AND WILDLIFE for the replacement of the Barker Road bridge. FISH AND WILDLIFE is interested only in the protection oF fish and wildlife habitat, and that adverse impacts to water quality be compensated for by means of improvements to the affected riparian and /or aquatic habitat. The CONSERVATION DISTRICT is interested only in providing natural resource preservation and enhancement services throughout Spokane County. No agent, employee, contractor, servant, or otherwise working for the CITY, CONSERVATION DISTRICT, or FISH AND WII,DLIFE shall be deemed to be entitled to any of the benefits provided by the other PARTIES involved in this Agreement. The CONSERVATION DISTRICT will be solely and entirely responsible for its acts and the acts of its agents, employees, servants, contractors, or otherwise, during the performance of this Agreement. Section VII Indemnification The CONSERVATION DISTRICT agrees to indemnify and defend the CITY and FISH AND WILDLIFE from any loss, cost or expense claimed by outside parties for property damage and bodily injury, including death, caused solely by its own negligence or willful misconduct of the CONSERVATION DISTRICT, its employees, or agents in connection with the services to be preformed by the CONSERVATION DISTRICT under the terms of this contract. The C[TY agrees to indemnify and defend the CONSERVATION DISTRICT and FISH AND WILDL[FE from any loss, cost or expense claimed by outside parties for property damage and bodily injury, including death, caused solely by the negligence or willful misconduct of the CITY, its employees, or agents in connection with the obligations of the CITY under the terms of this contract. FISH AND WILDLIFE agrees to indemnify and defend the CITY and the CONSERVATION DISTRICT from any loss, cost or expense claimed by outside parties for property damage and bodily injury, including death, caused solely by its own negligence or willful misconduct of FISH AND WILDLIFE, its ' employees, or agents in connection with the obligations of FISH AND WILDLIFE under the terms of this contract. Each of the PARTIES agrees to indemnify the other PARTIES for any loss, wst or expense claimed by outside parties for property damage and bodily injury, including death, to the extent of the PARTY's own negligence or willful misconduct, or that of the PARTY's employees or agents in connection with the obligations under the terms of this contract. In the case of joint negligence or willful misconduct by any or all of the PARTIES, then [he amount of indemnity shall be in direct proportion to the negligence or willful misconduct attributable to each individual PARTY. Section VIII Non-Discrimination The PARTIES hereto specifically agree that no person shall, on the grounds of race, creed, color, sex, or national origin, be excluded from full employment rights and participation in, or be denied the benefits of, or be otherwise subject to, discrimination under any program, service or activity, for which the CONSERVATION DISTRICT has received or will receive payment under the provisions of this Agreement. Section IX Obligations to Outside Parties No Agreement between the CONSERVATION DISTRICT and its consultants and/or contractors shall create any obligation of liability for the CITY or FISH AND WILDLIFE with regard to this Agreement without the specific written consent of the affected party and notwithstanding its concurrence in, or approval of, the award of any agreement or sub agreement or the solicitations thereo£ The CONSERVATION DISTRICT hereby agrees to include this provision in all agreements it enters into for the employment of any individuals, procurement of any materials, or the performance of any work to be accomplished under this Agreement. Section X No Waiver of Rights The CITY and FISH AND WILDLIFE shall not be precluded or estopped by any measurement, estimate, or ceRificate made either before or after the completion and/or acceptance of the work and payment therefore from showing the true amount and chazacter of the work performed and materials Fumished, or from showing that any such measurement, estimate, or certificate is untrue or incorrectly made, or that the work or materials does not conform in fact to the contract. The CITY shall not be precluded or estopped, notwithstanding any such measurement, estimate, or certificate, and payment in accordance therewith, from recovering from the CONSERVATION DISTRICT and its sureties, if any, such damage as the CITY may sustain by reason of the CONSERVATION DISTRICT'S failure to comply with the terms of this Agreement. A waiver of any breach of the Agreement, agreed to by all PARTIES, shall not be held as a waiver of any other or subsequent breach. Section XI Amendments The Agreement may be amended by a written supplemental Agreement The supplemental Agreements shall be agreed upon by the PARTIES in writing prior to undertaking any work affected by the revision. The subsequent changes to the Task Document made necessary by the supplemental Agreement shall be made in writing and signed by the PARTIES. Section XII Notices All notices called for or provided for in this Agreement shall be in writing and must be served on any of the PARTIES either personally of by certified mail, retum receipt requested, sent to the PARTIES at their respective addresses hereinabove given. Notices sent by certified mail shall be deemed served when deposited in the United States mail, postage prepaid. Section XIII Headings The section headings in the Agreement have been inserted solely for the purpose of convenience and ready reference. In no way do they purport to, and shall not be deemed to, define, limit, or extend the scope or intent of the sections to which they pertain. Section XIV Administrators The CITY'S administrator for the terms of this Agreement is David Mercier. The administrator for the CONSERVATION DISTRICT for the terms of this Agreement is Rich Baden. The administrator for F[SH AND WILDILFE for the terms of this Agreement is William Brooks. Section XV Venue Stipulation This Agreement has and shall be construed as having been made and delivered in the State of Washington, and the laws of the State of Washington shall be applicable to its construction. Enforcement of this Agreement, or any provision hereto, shall be instituted only in courts of competent juri sdiction within Spokane County, Washington. Section XVI Term This Agreement shall remain in effect for five years, or upon completion of a project authorized in Section II of this Agreement, whichever occurs first. Section XVII All Writiugs Contained Herein This Agreement contains all the terms and conditions agreed upon by the PARTIES. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the PARTIES hereto. The CONSERVATION DISTRICT has read and understands all of this Agreement, and now states that no representation, promise, or agreement not expressed in the Agreement has been made to induce the CONSERVATION DISTRICT to execute the same. IN WITNESS WHEREOF, the PARTIES have caused this Agreement to be executed on the date and year set forth hereinabove. CITY OF SPOKANE VALLEY David Mercier - City Manager CONSERVATION DISTRICT Rich Baden - Executive Director CONTRqCTS OFFICE FISH AND WILDLIFE NOV 2 4 2008 NASHINGT0NDFPARlM6JT0FFl518WIL7LM William Brooks - Re ional Habitat Program Manager WILLIAM C. BROKS, C.P.M. COIVTRACTS OFFICER