HomeMy WebLinkAboutItem 11 Long-Term Agreement with the Freshwater Trust for Mill Race Planting Projects AGENDA ITEM SUMMARY Meeting Date: 11/5/2012
Meeting Type:Regular Meeting
Staff Contact/Dept.: Todd Miller/DPW
Staff Phone No: 541-736-7137
Estimated Time: 5 Minutes
S P R I N G F I E L D
C I T Y C O U N C I L
Council Goals: Provide Financially
Responsible and
Innovative Government
Services
ITEM TITLE: LONG-TERM AGREEMENT WITH THE FRESHWATER TRUST FOR MILL
RACE PLANTING PROJECTS
ACTION
REQUESTED:
Approve or not approve the city manager’s authorization of a 25-year duration
conservation agreement with The Freshwater Trust (TFT), an Oregon not-for-profit
organization, to restore, maintain, and monitor riparian vegetation on the
Springfield Mill Race.
ISSUE
STATEMENT:
In March 2010, City Council approved entering into a Sponsorship Agreement
(Attachment 1) with the Metropolitan Wastewater Management Commission
(MWMC) to develop riparian shade restoration projects on the Springfield Mill
Race. In August 2012, the MWMC contracted with TFT to implement the projects.
TFT now needs to enter into a conservation agreement (Attachment 2) with the City
of Springfield to allow TFT long-term access to the site(s) and ensure the site(s)
will be protected from any potentially conflicting activities. The agreement
provides the City’s general approval of any planting locations along the Mill Race
as deemed appropriate and authorized by the Development and Public Works
Director during project implementation. This arrangement provides the most
efficient means of identifying, restoring, and crediting planting locations under the
MWMC’s agreement with TFT.
ATTACHMENTS: Attachment 1: Sponsorship Agreement
Attachment 2: Conservation Agreement
DISCUSSION/
FINANCIAL
IMPACT:
The City of Springfield will benefit from this agreement both as an MWMC partner
and as custodian of the Mill Race restoration. The 25-year restoration projects will
further the City’s objectives for Mill Race ecosystem restoration while reducing
demands on City maintenance resources. The agreement requires the City to avoid
damaging the restored areas. City staff and partners (such as Willamalane Park and
Recreation District) will need to coordinate other restoration and recreational
activities in the vicinity of TFT management areas so as to not harm or hinder their
viability.
For private land restoration, TFT typically enters into conservation easements or
site leases for annual payments in exchange for land committed to restoration. Any
costs of these transactions would be incurred by the MWMC. Public lands not
requiring such compensation afford more cost-effective restoration to the MWMC.
No such lease or easement payments will be received by the City under this
agreement.
ATTACHMENT 1
Page 1 of 2
ATTACHMENT 1
Page 2 of 2
Conservation Agreement – 1
ATTACHMENT 2
Conservation Agreement – 2
CONSERVATION AGREEMENT
THISACONSERV TIONA GREEMENTA(“ greement”)AisAmadeAandAenteredAintoAthisA____AdayA
of November, 2012, between the City of Springfield, an Oregon municipal corporation (the
“City”),AandATheAFreshwaterATrust,AanAOregon nonprofit organization (“TFT”)A(collectively,AtheA
“Parties”).
RECITALS
A. The City owns and controls certain real property adjacent to the Springfield Mill Race
(“RiparianALand”)AlocatedAinAtheAMiddleAForkAWillametteARiverAwatershedAmoreA
particularlyAdescribedAinAExhibitA A(“IdentificationAofARiparianALand”).
B. The Parties may wish to expand the Riparian Land identified in Exhibit A through later
mutual agreement and amendment of the Agreement.
C. TFT wishes to perform certain stream bank and riparian habitat restoration projects
moreAparticularlyAdescribedAinAExhibitABA(“RiparianARestorationA ctivities”)AonAtheA
Riparian Land to generate temperature credits. TFT has contracted to sell the
temperature credits generated within the Riparian Land to the Metropolitan
WastewaterAManagementACommissionA(“MWMC”),AwhichAwillAuseAtheAcreditsAtoAmeetA
regulatory requirements established by the Oregon Department of Environmental
Quality.
D. The City is an MWMC partner with mutual interest in cost-effective regulatory
compliance for its citizens, and the City maintains project objectives in the restoration
and maintenance of the Mill Race ecosystem.
E. The City wishes to provide TFT with the exclusive right to perform the Riparian
Restoration Activities, maintenance, and monitoring on the Riparian Land in exchange
for the consideration contained herein.
F. The City and TFT wish to enter into this Agreement to establish the terms and conditions
of the scope of Riparian Restoration Activities on the Riparian Land.
NOW THEREFORE, in consideration of the foregoing recitals, and the consideration,
obligations, covenants, and agreements set forth herein, the legal sufficiency of which the
Parties hereby acknowledge, the City and TFT agree as follows:
1. TERM.
1.1. The term of this Agreement shall be for a period of twenty-five (25) years (the
“Term”),AcommencingAonA____________,A2012A(theA“CommencementADate”)A
ATTACHMENT 2
Conservation Agreement – 3
and, unless earlier lawfully terminated, terminating on ____________, 2037 (the
“TerminationADate”).A
1.2. Renewal Option. Provided neither party is in default under this Agreement as of
the Termination Date, this Agreement may be renewed by TFT and the City for a
successiveAtermAofAtwentyA(20)AyearsA(“RenewalATerm”).AA
1.2.1. Notice. TFT must provide the City with prior written notice of its intent to
exercise the Renewal Term option a minimum of ninety (90) calendar
days beforeAtheATerminationADateA(“RenewalANotice”).ATheACityAshallAhaveA
thirty (30) calendar days from the date of the Renewal Notice to provide
written notice of its acceptance of the Renewal Term.
2. CONSIDERATION.
2.1. InAconsiderationAforAtheACity’sAgrantAofAthisA greement, TFT shall perform the
stream bank restoration and mitigation projects described in Exhibit B to
enhance the ecological value of the Riparian Land for the benefit of the riparian
land, ecosystem health, and the public welfare of the State of Oregon.
3. USE AND ACCESS.
3.1. TFT Use. TFT shall have the exclusive right to perform, monitor, and maintain the
Riparian Restoration Activities on the Riparian Land for a period of twenty (20)
yearsA(“CreditALife”).ATheAPartiesAagreeAthatATFTAshallAbeAtheAsoleAbeneficiary of all
environmental credits produced through Riparian Restoration Activities on the
RiparianALandA(“Credits”),AandAtheAMWMCAasApurchaserAofAsuchACreditsAshallAbeA
considered an intended third party beneficiary of this Agreement. TFT shall
provide the City with twenty-four (24) hours prior notice by telephone or email
before it or its contractors or employees access the Riparian Land. TFT shall be
responsible for obtaining any required permits for the performance of the
Riparian Restoration Activities.
3.2. Access. TFT shall have non-exclusive access to the Riparian Land to conduct the
Riparian Restoration Activities. If the Riparian Land does not have road access,
the City shall provide TFT consent, in writing, of a designated non-exclusive
access route across the adjacent property to enable TFT to access the Riparian
LandAforAtheAdurationAofAtheACreditALifeA(“ ccessARoute”).ATheA ccessARouteAmustA
be not less than twelve (12) feet in width.
3.3. City Use Restrictions. The City acknowledges that the value, security, and success
of Riparian Restoration Activities on the Riparian Land are of the essence to TFT
under this Agreement. The City may use the Riparian Land for any purpose not in
ATTACHMENT 2
Conservation Agreement – 4
conflict with this Agreement including educational tours and/or access. The City
furthermore agrees it shall not:
3.3.1. Prevent, significantly hinder, delay, diminish, or damage Riparian
Restoration Activities;
3.3.2. Remove vegetation from the Riparian Land or otherwise take action that
could reduce plant viability on the Riparian Land;
3.3.3. Permit trespass by livestock or use herbicides upon the Riparian Land; or
adjacent City lands that would result in herbicide drift onto Riparian Land.
3.3.4. Construct any buildings, roads, improved pathways, or other
improvements which negatively impact the Riparian Restoration
Activities as described in Exhibit B, or dispose of any trash or refuse,
within the Riparian Land boundaries;
3.3.5. Damage, destroy or remove any fencing, plant stakes, plant protection
devices, flags, markers, irrigation components or systems, or other
devices or property placed or installed by TFT, its contractors, or
subcontractors on or within the Riparian Land; or
3.3.6. Engage in specific activities or uses of its land adjacent to the Riparian
Land that would negatively impact the Riparian Restoration Activities as
described in Exhibit B. Furthermore, if required to protect the viability of
the Riparian Restoration Activities, the City agrees to permit TFT to install
temporary protective fencing around the Riparian Land to minimize
pedestrian foot traffic and damage to plants.
3.4. TFT Use Restrictions. TFT and its contractors shall not use or occupy the Riparian
Land: (i) for any purpose that would violate applicable state or federal law; (ii) to
construct or make structural improvements on the Riparian Land for dwelling or
occupancy purposes; or (iii) for any use other than performing, maintaining, and
monitoring the Riparian Restoration Activities.
4. CITY DESIGNATED REPRESENTATIVE.
4.1. The City has designated the Operations Manager of the Development and Public
Works Department as the representative to work with TFT during the term of
this Agreement (“CityADesignatedARepresentative”).ATheACityAmay,AatAitsA
discretion, change the single person acting as the City Designated Representative
with written notice to TFT.
ATTACHMENT 2
Conservation Agreement – 5
5. ASSIGNMENT OR TRANSFER.
5.1. Assignment or Transfer by TFT. TFT may assign or transfer its interest under this
Agreement, subject to consent by the City. Consent shall not be unreasonably
withheld. TFT shall provide the City with prior written notice of any such
assignment or transfer. In determining reasonable consent, the City may
consider the performance record of any proposed assignee in similar tasks.
5.2. Assignment or Transfer by the City. Should the City sell, convey, assign, or
transferA(collectively,A“transfer”)AtheACity’sAinterestAinAitsArealApropertyAandA
RiparianALandAduringAtheATerm,AtheACity’sAobligationsAunderAthisA greementAshallA
inure to and be binding upon all such successors in interest. The City shall
provide TFT with prior written notice of any such transfer of interest to a
successor in interest.
6. SUBORDINATION AND NON-DISTURBANCE IN THE EVENT OF FORECLOSURE.
6.1. TFT agrees that this Agreement is subject and subordinate to all existing
mortgages or trust deeds, if any, of the City on the Riparian Land.
6.2. The City agrees to use its best efforts to deliver an agreement or letter to TFT
fromAanyAexistingAorAfutureAmortgageAorAtrustAdeedAholdersAacknowledgingATFT’sA
use and interest in the Riparian Land, and providing that so long as TFT is not in
defaultAofAthisA greement,ATFT’sAinterestAwillAnotAbeAextinguishedAuponAsuchA
holder’sAforeclosure,ApowerAofAsale,AorAdeedAinAlieuAofAforeclosureA
(“Non-DisturbanceA greement”).AUponAnoticeAtoATFTAofAforeclosure, power of
sale, or deed in lieu of foreclosure, TFT agrees to attorn to any such purchaser,
trust deed, or mortgage holder. The City shall provide written notice to TFT of
any mortgage or trust deed for which it is unable to obtain a Non-Disturbance
Agreement.
6.3. Should the City be unable to obtain a Non-Disturbance Agreement, TFT agrees
that the City will not be in default under this Agreement and all obligations
under this Agreement will nevertheless remain in full force and effect.
7. WARRANTIES.
7.1. The City hereby represents and warrants to TFT, and such warranties shall be
applicable and in full force and effect throughout the Term, that:
7.1.1. No known actions, proceedings or investigations are pending or
threatened against the City which would interfere with the City's ability
to enter into this Agreement or consummate the same;
ATTACHMENT 2
Conservation Agreement – 6
7.1.2. No casualty and/or condemnation with respect to the Riparian Land or
any part thereof has occurred and no such known condemnation is
pending or threatened;
7.1.3. No uncured violations of any law, ordinance, order, or regulation of any
governmental authority having jurisdiction of Riparian Land exist
requiring any work, repair, construction, alteration or installation on, or
in connection with the Riparian Land that would impede the Riparian
Restoration Activities;
7.1.4. The City has the authority to enter into this Agreement, and to
consummate the transaction contemplated herein;
7.1.5. No portion of the Riparian Land is currently the subject of any other type
of legal proceeding except as described in this Agreement; and
7.1.6. Except for the Project Cooperation Agreement Between the Department
of the Army and the City of Springfield, Oregon for the Springfield Mill
Race Section 206 Ecosystem Restoration, dated April 1, 2005, which does
not require the performance of riparian restoration on the Riparian Land,
The City has not entered into any real property use agreement regarding
the Riparian Land other than this Agreement including, but not limited to,
any federal or state Conservation Reserve Program or Conservation
Reserve Enhancement Program agreement(s), and that title to the
Riparian Land is free and clear of any claims or encumbrances arising by,
through, or under the City.
8. HAZARDOUS MATERIALS.
8.1. Definition. The term "Hazardous Materials" for purposes of this Section 8 means
any chemical, substance, materials, waste, or component which is now or
hereafter listed, defined, or regulated as a hazardous or toxic chemical,
substance, materials, waste, or component by any federal, state, or local
governing or regulatory body having jurisdiction, or which would trigger any
employee or community "right-to-know" requirements adopted by any such
body, or for which any such body has adopted any requirements for the
preparation or distribution of a materials safety data sheet.
8.2. Site Preparation Records.A tAtheACity’sArequest,ATFTAshallAprovideAtheACityAwithAaA
written list identifying any Hazardous Materials then used or maintained upon
the Riparian Land in connection with the Riparian Restoration Activities, and
such other information as the City may reasonably require or as may be required
by applicable law.
ATTACHMENT 2
Conservation Agreement – 7
8.3. TFT Releases. If any Hazardous Materials are improperly released, discharged or
disposed of by TFT or its employees, contractors, or agents, on or about the
Riparian Land, TFT shall immediately, properly, and in compliance with
applicable laws notify the City and clean up, remediate, and remove the
Hazardous Materials from the Riparian Land and any other affected property at
TFT’sAsoleAcostAandAexpense.ATFTAshallAindemnifyAandAholdAtheACityAharmlessAfromA
and against any and all claims, demands, liabilities, losses, damages, penalties
and judgments directly arising out a violation of this Section by TFT, its
employees, contractors or agents.
8.4. City Releases. The City shall not knowingly release, discharge, or dispose of any
Hazardous Materials on the Riparian Land in violation of any applicable laws. If
the presence of any Hazardous Materials exists in excess of the amount
permitted by applicable laws, and to the extent that such presence is caused by
the City or a third party (other than TFT, its employees, contractors, or agents),
or is a pre-existing condition, TFT may (i) elect to immediately terminate this
Agreement and recover costs, or (ii) request the City to promptly take all actions
necessary, or take action necessary to cause responsible third parties, to comply
withAsuchAapplicableAlawsAatAtheACity’sAsoleAcostAandAexpense.AThe US Army Corps
of Engineers completed an Environmental Assessment of the Mill Race in 2003
(Environmental Assessment, Springfield Millrace, 206 Habitat Restoration
Project, Springfield, Oregon). On the basis of that assessment and subsequent
restoration activities, the City represents and warrants to TFT that, as of the
CommencementADate,AtoAtheAbestAofAtheACity’sAknowledge,AthereAareAnoA
Hazardous Materials situated in or on the Riparian Land in violation of applicable
laws.
9. DAMAGE OR DESTRUCTION OF RIPARIAN LAND.
9.1. Mitigation of Damages. Should either party become aware of any damage or risk
of damage to the Riparian Land or Riparian Restoration Activities performed on
the Riparian Land, including any release, discharge, or disposal of any Hazardous
Materials, including herbicide drift, on the Riparian Land, that party agrees to
immediately notify the other party within three (3) calendar days to mitigate or
prevent such damage. The City agrees to take all measures reasonably necessary
to promptly mitigate any risk of damage.
9.2. Nuisance or Trespass. In the event that the Riparian Land or Riparian Restoration
Activities are subject to damages or destruction resulting from nuisance or
trespass by unauthorized City personnel or City contractors, the City will
immediately notify TFT and take all reasonable measures necessary to promptly
ATTACHMENT 2
Conservation Agreement – 8
mitigate damages, abate the nuisance or trespass, and prevent reoccurrence of
the same.
9.3. City Damages. Should damage to the Riparian Land or Riparian Restoration
Activities be caused by the intentional, reckless, or negligent acts or omissions of
the City, its agents, or employees, the City agrees to: (i) assist TFT in mitigating
damages as requested by TFT, and (ii) to compensate TFT for the reasonable cost
incurred by TFT in restoring the project to pre-loss condition.
9.4. TFT Damages. Should damage to City-owned lands be caused by the intentional,
reckless, or negligent acts or omissions of TFT, its agents, or employees in
connection with the Riparian Restoration Activities, TFT agrees to: (i) assist the
City in mitigating damages as requested by the City, and (ii) to compensate the
City for the reasonable cost incurred by the City in restoring the damaged land to
pre-loss condition.
9.5. Force Majeure.A“ForceAMajeure”AisAanAunforeseeableAandAunavoidableAeventAorA
circumstance not within the reasonable control of TFT or the City which could
not have been brought within control through commercially reasonable efforts,
which causes a delay or non-performance of a duty or obligation under this
Agreement. Neither party shall be liable for Riparian Land lost, damaged, or
otherwise diminished by a Force Majeure event.
10. END OF TERM.
10.1. TFT shall remove all artificial, non-vegetative markers, equipment, devices, or
items placed or installed on the Riparian Land by TFT, its contractors, or
subcontractors on or prior to the Termination Date.
11. TERMINATION.
11.1. This Agreement may be terminated at any time prior to the Termination Date by
mutual agreement of the Parties in writing.
11.2. InAtheAeventAofAMWMCAterminationAofATFT’sAcontractualAthermalAcredit
obligations, either party may terminate this Agreement upon sixty (60) days prior
written notice to the other party.
12. INSURANCE.
12.1. City Insurance. The City shall insure and maintain all insurance coverage for the
Riparian Land as is customarily maintained by owners of land of similar size,
location, and as appropriate for public use of the property, and comprehensive
general liability insurance on an occurrence basis with limits of liability in an
amount not less than $1,000,000.00 combined single limit for each occurrence
ATTACHMENT 2
Conservation Agreement – 9
and $1,000,000.00 in the aggregate. On or before the Commencement Date, the
City shall furnish to TFT certificates of insurance evidencing such insurance
coverage. Renewal certificates will be furnished to TFT at least thirty (30) days
prior to the expiration date of such insurance policies showing the above
coverage to be in full force and effect.
12.2. TFT Insurance. TFT shall insure and maintain comprehensive general liability
insurance for its Riparian Restoration Activities on the Riparian Land in an
amount not less than $2,000,000.00 combined single limit for each occurrence
and $3,000,000.00 in the aggregate. On or before the Commencement Date, TFT
shall furnish to the City certificates of insurance evidencing such insurance
coverage. Renewal certificates will be furnished to the City at least thirty (30)
days prior to the expiration date of such insurance policies showing the above
coverage to be in full force and effect.
13. INDEMNIFICATION.
13.1. Indemnification of TFT by the City. Subject to the limitations of the Oregon
Governmental Tort Claims Act per Oregon Revised Statutes (ORS 30.260 et seq.),
The City agrees to indemnify and hold harmless TFT, its directors, officers,
employees, agents, successors, and assigns from and against any and all claims,
demands, penalties, losses, liabilities, expenses, damages, lawsuits or actions
arising out of or inAanyAwayArelatedAtoAtheACity’sAbreachAofAthisA greement,Awhich
breach shall include without limitation, any failure of theACity’s representations and
warranties identified under Section 7 (“Warranties”)AhereinAtoAbeAtrueAorAanyA
negligence or misconduct by the City. This clause does not constitute a waiver of
the Oregon Comparative Negligence statute.
13.2. Indemnification of the City by TFT. TFT agrees to indemnify and hold harmless the
City,AandAtheACity’sAagents,Asuccessors,AandAassigns,AfromAandAagainstAanyAand all
claims, demands, penalties, losses, liabilities, expenses, damages, lawsuits, or
actions arising out of or resulting from the willful or negligent acts or omissions
of TFT, its employees, subcontractors, or for anyone for whose acts it may be
liable,AforAbodilyAinjury,Adeath,AorAdamageAtoApropertyArelatedAtoATFT’sARiparianA
Restoration Activities under this Agreement.
14. DISPUTE RESOLUTION.
14.1. Mediation. In the event that TFT and the City are unable to reconcile a dispute
arising under this Agreement, the parties agree to first submit the claim to
mediation. The mediation process is subject to ORS 36.100 to 36.238 and will be
held in Eugene, Oregon.
ATTACHMENT 2
Conservation Agreement – 10
14.2. Costs. TFT and the City are responsible for their own attorney fees related to
mediation, and will equally share the common costs and fees associated with the
alternative dispute resolution process.
14.3. Venue. All disputes arising out of the Agreement not otherwise settled through
mediation will be decided by the Circuit Court of Lane County, Oregon.
14.4. Attorneys Fees. The prevailing party in any dispute outside the alternative
dispute resolution process, including any issues related to bankruptcy and the
U.S. Bankruptcy Code, will be entitled to recover all attorney fees, paralegal fees,
costs, disbursements and other expenses from the non-prevailing party.
15. MISCELLANEOUS.
15.1. Controlling Law and Operation. This Agreement shall be governed under, and
construed pursuant to, the laws of the State of Oregon or, as applicable, under
the laws of the United States. Each of the Parties acknowledges that they have
been given the opportunity to obtain counsel, or that they have been
represented by counsel of their own choice and that they have read this
Agreement and have had it fully explained to them by such counsel, and that
they are fully aware of the contents of this Agreement and of its legal effect.
15.2. Severability/Survival. If any of the provisions contained in the Agreement are
held illegal, invalid or unenforceable, the enforceability of the remaining
provisions shall not be impaired. All provisions concerning the limitation of
liability and all provisions concerning indemnification shall survive the
termination of the Agreement.
15.3. Integration. This Agreement constitutes the entire agreement between the
Parties and supersedes all prior written or oral communications.
15.4. Headings. The paragraph headings are for ease of reference only and shall not be
used in construing or interpreting this Agreement.
15.5. Modification. This Agreement may be modified only by a written document
signed by both TFT and the City.
15.6. Waiver. No waiver will be binding on a party unless it is in writing and signed by
the party making the waiver.A Aparty’sAwaiverAofAaAbreachAofAaAprovisionAofAthisA
Agreement will not be a waiver of any other provision or a waiver of a
subsequent breach of the same provision.
15.7. Notices. Except where specifically provided otherwise in this Agreement
whenever any notice, demand or request is required or provided for under this
Agreement, such notice, demand or request shall be provided in writing to the
ATTACHMENT 2
followingaddressesorsuchotheraddressesasthePartiesmayindicatein
writing,bypostageprepaid,certifiedorregisteredmail:
ToTFT:TheFreshwaterTrust
Attn:JosephFuria,GeneralCounsel
65SWYamhillSt.Suite200
.Portland,OR 97204
Phone:(503)222-9091x45
Fax:(503)222-9187
TotheCity:TheCityofSpringfield
Attn:DevelopmentandPublicWorksDepartment
Director
225FifthStreet
Springfield,OR 97477
Phone:541-726-3753
Fax:541-726-2309
16.SIGNATURES.
---------,,...
t
CITYOFSPRINGFIELD,
anOregonmunicipalcorporation
By:_
Name:_
Its:------------
DATE:.........~........--+--o..
OFFICEOFCI
THEFRESHWATERTRUST,
anOregonnonprofitorganization
By:_
Name:-----------
Its:------------
ConservationAgreement-11
ATTACHMENT 2
Exhibit A – Conservation Agreement – 12
EXHIBIT A – IDENTIFICATION OF RIPARIAN LAND
The following Riparian Land adjacent to the Springfield Mill Race located in the Middle Fork
Willamette River watershed, owned and managed by the City, and subject to the terms and
conditions of this Agreement, is listed as follows:
1. Swanson Reach. Approximately 1300 feet of riparian land along the south bank of the
channel located on Taxlot 1703350000307 bounded on the east by Taxlot
1803010001000 and to the south by Taxlot 1803010003900; and defined as the East
Channel project area running from Station 1+00 on the west to Station 13+00 on the
east on the attached East Channel Proposed Grading map; and more particularly
illustrated in a project boundary map and metes and bounds survey provided by the City
to be attached to this Agreement.
In the event that TFT and the City wish to perform Riparian Restoration Services on other
Riparian Land during the Term of this Agreement, the Parties shall mutually agree upon other
such locations in writing on an as-needed basis through signed concurrence of the City of
Springfield Development and Public Works Director or equivalent acting-in-capacity City
representative.
ATTACHMENT 2
Exhibit A – Conservation Agreement – 13
ATTACHMENT 2
Exhibit B – Conservation Agreement – 14
EXHIBIT B – SCOPE OF RIPARIAN RESTORATION ACTIVITIES
1. Introduction. The following provides a basic outline of the actions and activities that may
occur on the Riparian Land. The Riparian Restoration Activities include a broad range of
stream bank restoration and mitigation actions similar to many forestry, agricultural, and
landscaping practices. This Exhibit does not contain, and is not intended to be, an exclusive
and exhaustive list of activities that TFT may conduct on the Riparian Land, but a general
description of the outline and timeline of work that the City may expect on its Riparian
Land. As the Riparian Land is unique, each TFT project will be distinctive and tailored to that
site. Variations in climate, plant species and site conditions often require modified designs
for each project. Accordingly, TFT reserves the right to respond to conditions on the ground
with responsible and professional agricultural practices that may or may not be cited below.
2. Site Planning. As project manager, TFT will develop a planting plan for the Riparian Land,
vet and hire contractor(s) to perform the work of installing and maintaining the plantings,
monitor and document the progress of the plantings, develop maintenance
recommendations and guide the project through the credit verification and registration
process. To the extent possible, TFT will engage local contractor(s) to prepare, plant and
maintainAtheAriparianArestorationAproject,AandAwelcomesAtheACity’sArecommendationsAforA
such contractors.
3. Scope of Work. TFT or its contractor(s) may complete all or some of the following work on
the Riparian Land:
3.1. Site Preparation and Invasive Plant Removal: Site preparation will include removal or
control of invasive plants within the Riparian Land and preparation of the ground for
planting. Such work may involve mowing, scalping, brush hogging, hand digging and
herbicide treatments. Invasive plant material will disposed of in accordance with best
management practices for those species.
3.2. Plant Procurement: Indigenous-derived plant material will be secured whenever
available. Local suppliers will be given preferential consideration for supply. TFT will
work with contractor(s) to select appropriate species and relative numbers based on
conditions observed at nearby reference sites and professional judgment.
3.3. Plant Location: Planting performed by TFT or its contractor(s) will conform with zone
planting guidelines developed by TFT through its planting plan and in accordance
with Willamette Partnership planting standards as follows:
Willamette Partnership Minimum Riparian Revegetation Requirements:
All plant materials must come from locally-sourced seed within the same
EPA eco-region (see Native Seed Network for availability
ATTACHMENT 2
Exhibit B – Conservation Agreement – 15
http://www.nativeseednetwork.org/index) unless otherwise unavailable
(e.g. in the Willamette sources below 1,500 feet).
Plantings must be based on appropriate plant community determined by
local reference site. Unless different at the local reference site, the site
must support a minimum of 1,600 stems per acre (average) at project year
5.
The site must have no more than ten percent (10%) invasive shrub or tree
species, and no more than twenty percent (20%) invasive herbaceous
species. After the site has matured to the stage when desirable canopy
species reach fifty percent (50%) cover, the cover of invasive understory
species may increase but may not exceed thirty percent (30%).
The site may have no fewer than five woody species and no single species
may represent more than fifty percent (50%) of the woody plants at
project year 5.
Neither trees nor shrubs shall represent less than twenty percent (20%) of
the total stems per acre at project year 5.
The stream connected to the site must have perennial flow.
Reference sites will be identified within the 5th Field hydrologic unit of the
projectAsiteAusingADEQ’sAwadableAstreamAconditionsAassessmentAfromA2007A
when possible.
3.4. Plant Protection: To minimize plant losses due to herbivory or damage from routine
maintenance tasks (e.g., mowing), tree cages or protection tubes may be utilized as
needed.
3.5. Irrigation: Supplementary irrigation may be required for establishment of most
plantings. Accordingly, TFT and its contractor(s) may install an irrigation system to
meet establishment needs on the Riparian Land for the use of TFT and its
contractors. If the City is providing irrigation water or a point of diversion for the
irrigationAsystem,AtheACity’sApreferencesAregardingAdesignAandAlocation will be taken
into account in the implementation of the system. Irrigation will be provided for the
purpose of plant establishment only and once plantings are established (expected
within 5 years) the irrigation system will be removed by TFT or its contractor(s).
4. Project Site Maintenance. TFT and its contractor(s) will maintain plantings made during the
term of this Agreement. Maintenance may include irrigation, control of invasive plants,
pruning and replacement of failed plantings. Maintenance activities are likely to occur more
frequently in the first 2 to 3 years during plant establishment and less frequently in years 5
through 20.
ATTACHMENT 2
Exhibit B – Conservation Agreement – 16
4.1. Maintenance. Maintenance of the Riparian Land and associated plantings will be the
sole responsibility of TFT. The City will not have any responsibility for maintenance of
the plants on the Riparian Land.
4.2. Maintenance Schedule and Reporting. TFT and its contractor(s) will create a
maintenance schedule including written status of the performance of the Riparian
Restoration Activities, to be revised annually and reviewed with the City. The
maintenance schedule will define the maximum number of visits needed per week
and will contain information for the City regarding types of maintenance activities to
be conducted on the Riparian Land and the frequency of their occurrence. Scheduled
maintenance tasks will generally occur on the timeline outlined below. Additional
maintenance may take place as needed and dictated by routine monitoring reports.
4.2.1. Year 1: New plants will be irrigated as needed.
4.2.2. Years 1 – 5: Invasive plants will be managed by mowing the project site as
required. Subsequent herbicide applications may be required.
4.2.3. Years 5 – 20: Maintenance will be reduced after sites have achieved
free-to-grow conditions. However, if a site sustains damage, corrective
actions will be completed as directed by the terms of the Contract and this
Exhibit C.
4.2.4. In-fill planting: The planting plan will be used as a guide for in-fill planting to
replace failed plants, as well as an assessment on the success/failure of the
on-site plants. In-fill planting will target representative stem densities of
reference sites.
4.2.5. Any materials used to minimize maintenance or herbivory (e.g. tree tubes or
similar technology) may be removed.
4.3. Additional Visits. Additional visits to Riparian Land for any other purpose beyond
Riparian Restoration Activities or site verification (e.g., third party visits) will be
arrangedAwithAtheACityAinAadvanceAatAtheACity’sAdiscretion.A
5. Remediation. If RiparianALandAisAnotAperformingAtoATFT’sAstandardsAatAyearsA5,A10,A15,AandA20A
of the Agreement, excluding circumstances in which the loss or damage is due to a Force
Majeure event, action will be taken to address causes of sub-standard performance.
ATTACHMENT 2