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17-144.00 WA Dept of Fish & Wildlife, Trout Unlimited: Spokane River Mitigation for Sullivan Bridge rl - H L, AGREEMENT FOR SPOKANE RIVER AQUATIC IMPACT MITIGATION FOR THE SULLIVAN ROAD BRIDGE REPLACEMENT PROJECT THIS AGREEMENT,made and entered into this 28th day of_November .2017, by and between CITY OF SPOKANE VALLEY,having offices for the transaction of business at 10210 East Sprague Avenue,City of Spokane Valley,Spokane Valley,Washington,99206,hereafter referred to as the "CITY". TROUT UNLIMITED,Spokane Falls Chapter#76,having a business mailing address of P.O.Box 30185.Spokane,Washington.99223.and hereafter referred to as TROUT UNLIMITED"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 "FISH AND WILDLIFE",jointly referred to as"PARTIES". WITNESSETH WHEREAS,the CITY obtained Hydraulic Project Approval#131256-3 from FISH AND WILDLIFE for replacement of the Sullivan Road Bridge. WHEREAS,pursuant to the provisions of RCW 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 conducted and contracted construction activities in the Spokane River, involving activities which FISH AND WILDLIFE has determined produced adverse impacts to redband trout and will require compensatory mitigation as a condition of a hydraulic project approval;and WHEREAS,TROUT UNLIMITED has the care of funds and business and has the necessary personnel and technical knowledge and experience to assist FISH AND WILDLIFE in a project benefitting the Spokane River redband trout population meeting the requirements set forth by RCW 7735.290;and WHEREAS.FISH AND WILDLIFE desires to partner with TROUT UNLIMITED to perform the compensatory mitigation required by FISH AND WILDLIFE relative to the construction activities associated with the replacement of the Sullivan Road West Bridge;and WHEREAS.FISH AND WILDLIFE desires that the CITY make payment for the required compensatory mitigation directly to TROUT UNLIMITED on its behalf;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 S18.000 to TROUT UNLIMITED.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 TROUT UNLIMITED solely for a project benefitting the redband trout population in partnership with FISH AND WILDLIFE,and in a manner consistent with RCW 77.55.290 within the Spokane River Watershed. The CITY will provide a copy of the payment voucher to FISH AND WILDLIFE to document the transfer of funds. FISH AND WILDLIFE shall recognize this payment as effective compensatory mitigation for the negative impacts to fish life that occurred under the CITY's Hydraulic Project Approval#131256-3 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 the TROUT UNLIMITED by FISH AND WILDLIFE. TROUT UNLIMITED agrees to accept and perform this task under the conditions of this Agreement. FISH AND WILDLIFE reserves the right to review project proposals created by TROUT UNLIMITED that intend to use the mitigation payment provided by the CITY. Prior to spending the CITY's mitigation payment.TROUT UNLIMITED shall furnish FISH AND WILDLIFE with a copy of the plans and contracts for an appropriate project or provide the funds directly to FISH AND WILDLIFE. TROUT UNLIMITED 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 TROUT UNLIMITED services may include hut 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 or cause to be created 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 FISH AND WILDLIFE. 6. Provide the direct funds for FISH AND WILDLIFE to conduct a project benefitting redband trout in the Spokane River. 7. Conduct maintenance conforming to the standards set forth by FISH AND WILDLIFE. Section 1V Inspection of Work FISH AND WILDLIFE will at all times be accorded by TROUT UNLIMITED 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 TROUT UNLIMITED shall make available to the CITY,FISH AND WILDLIFE 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 TROUT UNLIMITED shall have kept in conjunction with this Agreement,and which the PARTIES may be required by law to make part of its auditing procedures. 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 Sullivan Road West Bridge. FISH AND WILDLIFE is interested only in the protection of fish life and fish habitat,and that the adverse impacts to redband trout may be compensated for by means of improvements that directly benefit trout populations or aquatic habitat.TROUT UNLIMITED is interested only in providing natural resource preservation and enhancement services throughout the Spokane River watershed. No agent,employee,contractor.servant,or otherwise working for the CITY,TROUT UNLIMITED,or FISH AND WILDLIFE shall be deemed to be entitled to any of the benefits provided by the other PARTIES involved in this Agreement. TROUT UNLIMITED 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 TROUT UNLIMITED 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 TROUT UNLIMITED,its employees,or agents in connection with the services to be performed by TROUT UNLIMITED under the terms of this contract. The CITY agrees to indemnify and defend TROUT UNLIMITED 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 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. FISI I AND WILDLIFE agrees to indemnify and defend the CITY and TROUT UNLIMITED 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,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 contract. 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 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 TROUT UNLIMITED has received op will receive payment under the provisions of this Agreement. Section IX Obligations to Outside Parties No Agreement between TROUT UNLIMITED 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 thereof. TROUT UNLIMITED 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 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 TROUT UNLIMITED and its sureties. if any.such damage as the CITY may sustain by reason of TROUT UNLIMITED'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 he 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,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. The administrator for TROUT UNLIMITED for the terms of this Agreement is Bill Abrahamse. The administrator for FISH AND WILDILFE for the terms of this Agreement is Margen Carlson. 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. 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 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. PARTIES have read and understand all of this Agreement,and now state that no representation,promise,or agreement not expressed in the Agreement has been made to induce PARTIES 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 FISH AND WILDLIFE �! (AII461gar 41111P Mark Calhoun.City Manager arge Cap.Deputy Assistant Director TROUT UNLIMITED Bill Abrahamse,Chapter President