TRI-MET and CITY OF PORTLAND

Intergovernmental Agreement

THIS INTERGOVERNMENTAL AGREEMENT (“Agreement”) between the TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a mass transit district of the State of Oregon (“Tri-Met”), and the CITY OF PORTLAND, a municipal corporation of the State of Oregon (“City”) through its BUREAU OF PARKS AND RECREATION (“Parks”) is entered into this ________ day of _________________, 2002.

RECITALS

A.  Under the authority of House Bill 3478 (Oregon Laws 1996, Chapter 12, the “Act”) Metro Board adopted a final land use order on July 23, 1998, for the South/North Light Rail Project.

B.  As of April 1999, Metro completed a supplemental draft Environmental Impact Statement identifying a new alternative for a portion of South/North Light Rail Project, in the area north of the Rose Quarter, such alternate being called the Full-Interstate Alignment Alternative.

C.  This Full-Interstate Alignment commonly referred to as the North Interstate MAX Light Rail Project (“Project”) is a light rail project designed to accommodate transportation needs in North and Northeast Portland business and residential areas.

D.  Following public notice, Metro held a public hearing on October 28, 1999, and adopted Resolution 99-2853A Revised Alignment, which approved the Project as a phase of the South/North Light Rail Project.

E.  The City Council has identified the Project as the region’s next priority rail transportation project and has confirmed its support through Resolution No. 35800 adopted June 7, 1999.

F.  The Act defines the relationship between Tri-Met and other governmental entities following the adoption of the final land use order for the Project, and states “The State and all counties, cities, special districts and political subdivisions shall:

(a)  Amend comprehensive or function plans, including public facility plans and their land use regulations, to the extent necessary to make them consistent with a land use final order, and

(b)  Issue the appropriate development appraisals, permits, licenses and certificates necessary for the construction of the Project or Project extension consistent with a land use final order. Development appraisals, permits, licenses and certificates may be subject to reasonable and necessary conditions of approval, but may not, by themselves or cumulatively, prevent implementation of a land use final order.”

G.  Tri-Met cannot construct or implement the Project without the use of City streets, and the City is willing to allow Tri-Met to use City streets without being compensated for such use.

H.  The City has a duty to the general public to provide safe and convenient streets and to protect itself from unreasonable financial burdens imposed by Tri-Met’s use of the streets.

I.  The Project is, or will be, subject to budgetary limitations imposed by the U.S. Department of Transportation, Federal Transit Administration (FTA), and Finance Agreements. The Project is, or will be, subject to all terms and conditions of the FTA grant agreement insofar as there is Federal participation in costs of the Project.

J.  The parties understand that the City and its urban renewal agency are joining together to provide funding for the City’s share of the Project costs.

K.  The City owns land in North Portland which is known as Portland International Raceway (“PIR”) and through Parks, it operates an enterprise program known as Portland International Raceway (“Raceway”). Tri-Met’s Project will impact the land at PIR.

L.  The parties desire to enter into this Agreement to document each party’s understandings and agreements relating to the design, construction, operation, use and maintenance of a Park & Ride facility to be located at PIR, and with respect to the construction, maintenance and monitoring of Tri-Met’s wetland mitigation site at Forebay Slough which is a natural resource, physical component of the land at PIR.

NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:

ARTICLE I: Development, Joint Use and Maintenance of Light Rail Station and Park & Ride.

A.  Park & Ride.

1.  Location. The City grants to Tri-Met the right to locate two (2) Park & Ride facilities at PIR at sites more particularly described in the attached Exhibit A (“Park & Ride” or “Premises”). Tri-Met is not obligated to pay the City or PIR any compensation for use of the City’s land as a Park & Ride facility. Tri-Met will, however, bear all costs with respect to construction of the Park & Ride. Any additional cost due to a change of the location or design of the Park & Ride from that identified in Exhibit A as a result of the Portland International Raceway Interpretive Center Project (“Interpretive Center”) will be borne by the Interpretive Center.

2.  Use. Tri-Met will have the right to use and to allow its transit users the right to use the Park & Ride facility Monday through Friday, during the hours of train operation (“Hours of Train Operation”). The Park & Ride will be available for exclusive PIR use on weekends (“Weekend Use”); provided, however, that transit users may use the Park & Ride on the same terms as PIR patrons during PIR Use (defined below). PIR will additionally be entitled to not more than four (4) exclusive Friday Uses of the Park & Ride each year (“Friday Uses”). Weekend Use and Friday Uses are jointly referred to herein as “PIR Use”. The parties acknowledge that during PIR use, PIR may charge a fee for parking or otherwise condition the use. City will provide Tri-Met with at least fourteen (14) days advance written notice of its intended Friday uses. City shall be responsible for and obtain any permits required for any extraordinary use of the Park & Ride for PIR events and/or PIR Use.

3.  Interpretive Center Reserved Spaces. Twenty-five (25) spaces in the Park & Ride are reserved for Interpretive Center use during the weekdays, including Friday Uses (“Interpretive Center Spaces”). Tri-Met will mark or otherwise identify the Interpretive Center Spaces, as directed by the City. The Interpretive Center will be responsible for the cost of marking or identifying the Interpretive Center Spaces and other routine maintenance related thereto.

4.  Term. The term of the Agreement shall commence on the date of execution by the parties. The term for the Park & Ride shall commence on September 1, 2004, and continue for a period of 15 years thereafter. Tri-Met and its contractors are hereby granted immediate access to the Park & Ride area to perform any necessary improvements to the Park & Ride area and shall coordinate access and schedule with PIR management. Tri-Met shall have the option to renew the term for the Park & Ride for additional five (5) year terms, which shall be exercised by giving the City written notice of its election to exercise the option prior to the end of the expiring term. Either party may terminate this Agreement upon ninety (90) days written notice.

5.  Maintenance of Grounds. Tri-Met shall keep and maintain all aspects of the Park & Ride in good and substantial repair and condition, including the roadways and parking areas within the Park & Ride, maintaining them free of snow, ice, debris, potholes, and obstructions. Tri-Met shall also have sole responsibility for providing and paying for utilities, sweeping, lighting and relamping and shall provide proper containers for trash and garbage, and pay for routine removal of trash and garbage from an approved hauler and shall otherwise keep the Park & Ride free and clear of rubbish, debris, and litter. City will be responsible for clearing all rubbish, debris and litter from the Park & Ride during and subsequent to any Weekend Use and Friday Uses.

6.  Landscaping. Tri-Met shall be responsible for maintaining the landscaped portion of the Park & Ride to City’s satisfaction during the duration of this Agreement.

7.  Signage. In accordance with City code regarding signage, Tri-Met and/or its contractors shall have the right to install or cause to be installed appropriate signs and related systems in the Park & Ride as necessary (“Sign Systems”). The Sign Systems may include, but are not limited to: (1) “Lot Full” or “Open” signs designed and installed by Tri-Met contractor; (2) Detection loops in the in/out driveways; (3) Computer counting facilities designed to track total numbers versus capacity and send signals to lighted signs; (4) Electric power to signs as required. The parties understand that individual underground electrical services to the signs are the intended method of installation. Tri-Met will timely pay all installation and operation costs. The parties agree that signage will be the minimum necessary

8.  Insurance. Tri-Met and the City will maintain a self-insurance program or a commercial general policy of insurance to provide insurance coverage over its and its contractor’s activities on the Park & Ride in an amount not less than the Oregon Tort Claims limits for public agencies.

B.  Wetlands and Environmental Zone Mitigation Site; Compensation. City hereby grants Tri-Met the right to use its Forebay Slough site, which is located on the north side of the Columbia Slough and more particularly described in the attached Exhibit B, for wetland and Environmental Zone mitigation, which Tri-Met is responsible for under its permit issued by the Office of Planning and Development Review (“Mitigation Site”). Tri-Met has paid the City $19,000 for the creation of a conservation easement at the Mitigation Site.

C.  Wetland Development, Monitoring and Maintenance. Parks will plant, monitor and maintain the Mitigation site and Tri-Met will reimburse Parks for this work at Parks billable rates. Tri-Met will design the wetland mitigation and will consult with Parks on planting lists and final design approval. The planting plan will be substantially in the form noted on the attached Exhibit C. The plant installation is estimated to cost $93,000 and a related waterline installation is estimated to cost $8,500. Tri-Met contractors will excavate the Wetland Site and Parks will install the plantings. Tri-Met will pay for all costs associated with the initial installation of the Mitigation Site. Parks will monitor and maintain the Mitigation Site for a period of five (5) years under a separate Wetland Maintenance Agreement to be negotiated between Tri-Met and Parks in good faith within a reasonable time following execution of this Agreement. Compensation for the maintenance and monitoring by Parks will be negotiated between the parties but is estimated at $83,000.00 at Parks current billable rate over the five (5) year period.

D.  Conservation Easement. The City has granted a Conservation Easement at the Mitigation Site to Tri-Met for use as a compensatory wetland mitigation site in connection with the Project and Tri-Met has recorded the document in the real property records of Multnomah County, a copy of which is attached hereto as Exhibit D. The Easement, as required by State of Oregon, restricts future uses of Forebay Slough and protects it as a Mitigation Site serving Tri-Met’s interests.

E.  Project Managers. Each party has designated a project manager to be the formal representative for this project. All reports, notices, and other communications required under or relating to this Agreement shall be directed to the appropriate individual.

ARTICLE II: General Provisions

A.  Liability. Tri-Met shall hold harmless and indemnify the City, and its officers, agents, and employees against any and all liability, settlements, loss, costs and expenses in connection with any action, suit or claim arising out of the work of Tri-Met, its employees, officers, agents or contractors under this Agreement within the maximum liability limits under the Oregon Tort Claims Act and the Oregon Constitution. City shall hold harmless and indemnify Tri-Met and its officers, agents, and employees against any and all liability, settlements, loss, costs and expenses in connection with any action, suit or claim arising out of City work under this Agreement with the maximum liability limits under the Oregon Tort Claims Act and the Oregon Constitution.

B.  Interest of Members of Congress. No member of/or delegate to the Congress of the United States shall be permitted to any share or part of this Agreement or to any benefit arising there from.

C.  Duration of Agreement. This Agreement shall be in force and effect with any modifications upon the signatures of all parties to this Agreement until either party ceases to hold title or interest in either the PIR site or the PIR Light Rail Station, or in accordance with Article I, Section A, Paragraph 4 of this Agreement.

D.  Disadvantaged Business Enterprise. In cooperation with the performance of this Agreement, City will cooperate with Tri-Met in meeting Tri-Met’s commitments and goals with regard to the maximum utilization of disadvantaged business enterprises and will use its best efforts to ensure that disadvantaged business enterprises shall have the maximum practicable opportunity to compete for subcontract work under this Agreement.

E.  Equal Employment Opportunity. In connection with the execution of this Agreement, City shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, or natural origin. Such actions include, but are not limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination rates of pay or other forms of compensation; and selection for training, including apprenticeship.

F.  Termination for Convenience. Upon 90 days notice or upon mutual Agreement, City or Tri-Met may terminate this Agreement in whole or in part at any time by written notice to the other party. In the event of such termination, Tri-Met shall pay City’s costs, including contract close-out costs and any restoration costs to pre-light rail construction condition or as shall be mutually agreed. City promptly shall submit its termination claim to be paid by Tri-Met. If City has any property in its possession belonging to Tri-Met, City will account for it and dispose of it in the manner Tri-Met directs.

G.  Termination for Default. If City or Tri-Met fails to perform in the manner called for in this Agreement, or if City or Tri-Met fails to comply with any provisions of this Agreement, either City or Tri-Met may with ninety (90) days written notice terminate this Agreement for default. Termination shall be effected by serving a notice of termination setting forth the type and nature of the default.

Within the ninety (90) days following receipt of written notice, City and Tri-Met shall endeavor to correct any problem giving rise to the default notice. If the parties agree on a performance schedule, the parties may allow work to continue or they may treat the termination as a termination for convenience. In the case of termination, City will be paid all its costs for work performed.

H.  Maintenance of Records. City shall maintain records to show actual time involved in accomplishment of the Project and the cost incurred for the period of time specified. City shall cooperate in good faith with Tri-Met and FTA to provide records in a form satisfactory to FTA.

I.  Audit and Inspection for Records. Upon reasonable notice, City shall permit the authorized representatives of Tri-Met, the United States Department of Transportation, and the controller General of the United States to inspect and audit all data and records of the City relating to its performance under the Agreement. Tri-Met shall be responsible for all auditing costs.

J.  Documents. All records, reports, data, documents, systems and concepts, whether in the form of writings, figures, graphs or models which are prepared or developed in connection with this Project shall become public property. All design drawings and documents prepared by City staff under this Agreement shall be the Property of Tri-Met. Tri-Met shall keep accurate maps and records, including the approved as-built construction plans and specifications, of its installations located at PIR and shall provide to the City a copy of such maps and records upon City’s reasonable request. Maps shall be on a scale of 3,500 feet per inch or whatever standard scale the City adopts for general use. Tri-Met shall also provide such maps in an electronic format acceptable to the City.

K.  Title VI Assurance. City shall comply with all provisions of Title VI of the Civil Rights Act of 1964. City shall incorporate the provision of the Title VI of the Civil Rights Act of 1964 in Agreements, if any, with subcontractors.

WHEREFORE, Tri-Met and City have agreed to all provisions of this Agreement as of the date first noted.

CITY OF PORTLAND    TRI-MET METROPOLITAN

           TRANSPORTATION DISTRICT

             OF OREGON

By:____________________________    By:___________________________

Name: Jim Francesconi          Name: Neil McFarlane

Title: Commissioner of Parks & Recreation      Title: Executive Director, Capital Projects

Approved as to Form          Approved as to Legal Sufficiency for

             Tri-Met

_______________________________    ______________________________

Senior Deputy City Attorney        Assistant General Counsel