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17-149.00 Fish & Wildlife/Spokane Conservation: Sullivan West Bridge Replacement Ph 2 11- 14'l AGREEMENT FOR SPOKANE RIVER AQUATIC IMPACT MITIGATION FOR THE SULLIVAN ROAD WEST BRIDGE REPLACEMENT PROJECT THIS AGREEMENT,made and entered into this j Alay of A[QV_11L r- ,2017,by and between the City of Spokane Valley,having offices for the transaction of business at 10210 East Sprague Avenue, Spokane Valley,Washington,99206,hereafter referred to as the"CITY",the Spokane Conservation District,having offices for the transaction of business at 210 North Havana Street,Spokane,Washington, 99202,and hereafter referred to as"SCD",and the Washington State Department of Fish and Wildlife, having offices for the transaction of business at 2315 North Discovery Place,Spokane Valley,Washington, 99216,and hereafter referred to as"WDFW",jointly referred to as"PARTIES"and individually referred to as "PARTY". WITNESSETH WHEREAS,the CITY has the care of funds and business;and WHEREAS,pursuant to the provisions of RCW Section 77.55.021,WDFW has authority to set conditions on hydraulic project approvals in order to protect fish life and habitat;and WHEREAS,the CITY has and is proposing to perform construction activities in the Spokane River, involving activities which WDFW 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, SCD 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 77.55.181; and WHEREAS,the CITY desires to contract with SCD to perform the compensatory mitigation required by WDFW relative to the construction activities associated with the Sullivan Road West Bridge Replacement project; and NOW,THEREFORE, for and in consideration of the mutual promises set forth hereinafter,the PARTIES hereto do mutually agree as follows: Section I Payment The CITY agrees to make one lump sum in-lieu fee payment of$25,000 to SCD.It is understood by the PARTIES that this constitutes full and final payment for services rendered under this Agreement. The CITY's payment to SCD shall be made on or before December 31,2017. This money is to be used by SCD for a Mitigation Project to enhance riparian and/or aquatic habitat and other work as described in Section III herein in a manner consistent with RCW 77.55.181. The CITY will provide a copy of the payment voucher to WDFW to document the transfer of funds. WDFW shall recognize this payment as effective compensatory mitigation for the negative impacts to aquatic habitat that have occurred to date and are expected from the work that will occur under the CITY's Hydraulic Project Approval for the replacement of the Sullivan Road West 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 SCD by the CITY. SCD agrees to accept and perform this task under the conditions of this Agreement. Pagel of5 WDFW reserves the right to review project proposals created by SCD that intend to use the mitigation payment provided by the CITY. SCD shall furnish WDFW with a copy of the plans and contracts for the Mitigation Project. SCD shall not begin work on the Mitigation Project intending to use the CITY°s mitigation payment without written approval of the project by WDFW. Section III Scope of Work SCD shall be responsible to perform the following: 1. Develop a Mitigation Project Plan to enhance riparian and/or aquatic habitat along the north shore of the Spokane River adjacent to Sullivan Park downstream(west)of Sullivan Road. The Mitigation Project Plan shall satisfy WDFW approval criteria and shall include designation of plant species and a plant layout plan,design of improved access to the Spokane River from Sullivan Park, • and design of a split rail fence along the top of river bank. 2. Obtain permissions,temporary construction easements,and/or right of entry agreements from affected property owner(s)as necessary for implementation of the Mitigation Project Plan. 3. Obtain all regulatory permits for construction of the approved Mitigation Project. 4. Construct or cause to be constructed the Mitigation Project to enhance riparian and/or aquatic habitat in accordance with the plan approved by WDFW. 5. Develop as-built mitigation construction report and as-built drawings of the Mitigation Project. 6. Develop a 3-year monitoring plan of the Mitigation Project plants for approval by WDFW. 7. Conduct monitoring and maintenance of the Mitigation Project plants for a period of up to 3 years conforming to the standards set forth by WDFW. Maintenance shall include watering,weed control,and replacement of plants as necessaryto achieve at least 80 percent survival of native plants and seedlings after 3 years. Failure to achieve 80 percent survival in year three will require that a plan be submitted with follow-up measures to achieve requirements(Chapter WAC 220-660- 130). 8. Submit mitigation monitoring reports to WDFW,for monitoring years 1,2,and 3.Year one monitoring will occur at least one year after completion of the Mitigation Project. Section IV Inspection of Work WDFW will at all times be accorded by SCD 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 SCD 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 information which SCD shall have kept in conjunction with this Agreement,and which the CITY may be required by law to make part of its auditing procedures. Page 2 of 5 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 WDFW for the Sullivan Road West Bridge Replacement project. WDFW is interested only in the protection and enhancement of fish habitat,and that adverse impacts to water quality be compensated for by means of improvements to the affected riparian and/or aquatic habitat. SCD 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,SCD,or WDFW shall be deemed to be entitled to any of the benefits provided by the other PARTIES involved in this Agreement. SCD 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 SCD agrees to indemnify and defend the CITY and WDFW 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 SCD,its employees,or agents in connection with the services to be performed by SCD under the terms of this Agreement. The CITY agrees to indemnify and defend SCD and WDFW 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 Agreement. WDFW agrees to indemnify and defend the CITY and SCD,as allowed by law, 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 WDFW,its employees,or agents in connection with the obligations of WDFW under the terms of this Agreement. Each of the PARTIES agrees to indemnify the other PARTIES for any loss,cost 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 each PARTY's respective obligations under the terms of this Agreement. In the case of joint negligence or willful misconduct by any or all of the PARTIES,then the 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 in the operation of this Agreement, no person shall be excluded from full employment rights and participation in,or be denied the benefits of,or be otherwise subject to,discrimination in violation of state or federal law. • Section IX Obligations to Outside Parties No agreement between SCD and its consultants and/or contractors shall create any obligation of liability for the CITY or WDFW 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 thereof. SCD 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. Page 3 of 5 Section X No Waiver of Rights The CITY and WDFW shall not be precluded or estopped by any measurement,estimate,or certificate made either before or after the completion and/or acceptance of the work and payment therefore from showing the true amount and character of the work performed and materials furnished,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 SCD and its sureties,if any,such damage as the CITY may sustain by reason of SCD'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 or by certified mail, return 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 Mark Calhoun,City Manager. The administrator for SCD for the terms of this Agreement is Vicki Carter,Director. The administrator for WDFW for the terms of this Agreement is Margen Carlson,Deputy Assistant Director, Habitat Program. 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 jurisdiction within Spokane County,Washington. Page 4 of 5 Section XVI Terns This Agreement shall remain in effect for five years,or until completion of the Mitigation Project monitoring and reporting authorized in Section III of this Agreement,whichever occurs first. Section XVII All Writings 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. SCD 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 SCD 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 a Mark Calhoun—City Manager SPOKANE CONSERVATION DISTRICT Vicki Carter—Director WASHINGTON STATE DEPARTMENT OF FISH AND WILDLIFE • argen ar. •n,Deputy Assistant Director HABI :T PROGRAM Page 5of5