City Auditor - City Recorder - Council Ordinance - 180719 TriMet mall security and cleaning contract

THIS INTERGOVERNMENTAL AGREEMENT (“Agreement”), dated this ___ day of ______________, 2007, is entered into by and between the CITY OF PORTLAND, a municipal corporation of the State of Oregon (“City”), and the TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a mass transit district organized under the laws of the State of Oregon (“TriMet”).

A. Pursuant to ORS Chapter 190, the parties have the authority to enter into this Agreement.

B. TriMet and the City are partners in constructing the Portland Mall Segment of the South Corridor Light Rail Project (“Project”), which will bring light rail service to the Portland Transit Mall in downtown Portland.

C. This significant investment in the Transit Mall warrants implementation of a strategy to assure the long-term economic, physical and social viability of the Transit Mall.

D. Reconstruction of the Transit Mall as part of the Project will begin in January 2007.

E. It is necessary and desirable to assure timely maintenance and adequate security for all blocks not directly undergoing construction activity for the duration of the construction period.

F. TriMet is willing to oversee the day-to-day maintenance and security of the Transit Mall and Temporary Transit Mall (defined below) during calendar year 2007.

G. The City desires to support TriMet in its performance of its obligations under this agreement, both financially, and by performing services on the Transit Mall and Temporary Transit Mall.

1. The following definitions shall be used in the interpretation of this Agreement:

a. Transit Mall: The Transit Mall encompasses 5^th and 6^th Avenues in downtown Portland from NW Irving Street to SW Jackson Street, inclusive of the light rail trackway, roadway and sidewalks.

b. Temporary Transit Mall: The Temporary Transit Mall encompasses 3^rd Avenue from NW Glisan Street to SW Market Street and 4^th Avenue from NW Glisan Street to SW Lincoln Street, inclusive of the roadway and sidewalks.

1. TriMet agrees to perform the scope of work set forth in Exhibit A, which is attached hereto and incorporated by this reference herein. TriMet may, at its discretion, enter into an agreement with a subcontractor to perform these services.

1. To support TriMet in performing its security and maintenance obligations under this Agreement, the City shall pay TriMet a total of $500,000, as follows: The City shall pay TriMet $250,000 no later than February 28, 2007 and another $250,000 no later than June 1, 2007.

2. The City agrees to perform the Scope of Work set forth in Exhibit B, which is attached hereto and incorporated herein by this reference.

3. The City shall make payment to TriMet at the following address, and the payment shall reference the contract number set forth above:

1. The parties agree that this Agreement is an interim measure to assure that needed services are provided on both the Transit Mall and Temporary Transit Mall during calendar year 2007. The parties envision that the Agreement will be superseded or followed by a permanent multi-year agreement for maintenance and security services on the Transit Mall. City and TriMet agree to cooperate and negotiate in good faith toward the development of a permanent agreement, if any, that clearly defines the roles, responsibilities and obligations of the parties, including the funding of services.

1. Relationship of the Parties. Each of the parties hereto shall be deemed an independent contractor for purposes of this Agreement. No representative, agent, employee or contractor of one party shall be deemed to be an employee, agent or contractor of the other party for any purpose, except to the extent specifically provided herein. Nothing herein is intended, nor shall it be construed, to create between the parties any relationship of principal and agent, partnership, joint venture or any similar relationship, and each party hereby specifically disclaims any such relationship.

2. No Third-Party Beneficiary. Except as set forth herein, this Agreement is between the parties and creates no third-party beneficiaries. Nothing in this Agreement gives or shall be construed to give or provide any benefit, direct, indirect or otherwise to third-parties unless third-persons are expressly described as intended to be beneficiaries of its terms.

3. Compliance with Laws. TriMet shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the work under this Agreement, including, to the extent applicable, the provisions of ORS 279C.505, 279C.515, 279C.520, 279C.530 and 279C.580, which hereby are incorporated by reference. Without limiting the generality of the foregoing, TriMet expressly agrees to comply with: (i) Title VI of Civil Rights Act of 1964; (ii) Section V of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990 and ORS 659.425; (iv) all regulations and administrative rules established pursuant to the foregoing laws; and (v) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations.

4. Indemnification. Within the limits of the Oregon Constitution and the Oregon Tort Claims Act, codified at ORS 30.260 through 30.300, each of the parties shall hold harmless, indemnify and defend the other and its officers, employees and agents from and against all claims, demands, penalties, and causes of action of any kind or character relating to or arising from this Agreement (including the cost of defense thereof, including attorney fees) in favor of any person on account of personal injury, death, damage to property, or violation of law, which arises out of, or results from, the negligent acts or omissions of the indemnitor, its officers, employees, or agents.

5. Project Managers. All routine correspondence and communication regarding this Agreement shall be between the project managers:

Neil McFarlane

TriMet

710 NE Holladay St.

Portland, Oregon 97232

Phone: (503) 962-2134

Fax: (503) 962-3863

Email: mcfarlan@trimet.org

Don Gardner

Portland Office of Transportation

1120 SW Fifth Ave. Suite 800

Portland, OR 97204

Phone: (503) 823-7557

Fax: (503) 823-7371

Email: don.gardner@pdxtrans.org

The Project Managers are authorized to approve work and billings, to give notices, to execute amendments to this Agreement that do not increase the compensation, to terminate this Agreement and to carry out any other act referred to herein.

6. Effective and Termination Dates. This Agreement shall be effective upon execution by both parties and will terminate on December 31, 2007. The parties may extend the term of the Agreement by mutual written agreement.

7.1 The City and TriMet, by mutual written agreement, may terminate this Agreement at any time.

7.2 Either the City or TriMet may terminate this Agreement in the event of a breach of the Agreement by the other. Prior to such termination, however, the party seeking the termination shall give the other party written notice of the breach and of the party’s intent to terminate. If the breaching party has not entirely cured the breach within thirty (30) days of the notice, then the party giving the notice may terminate the Agreement at any time thereafter by giving a written notice of termination.

7.3 In the event that TriMet subcontracts its obligations under this Agreement, and the City exercises its right to terminate this Agreement, or the parties mutually agree to terminate this Agreement, the City shall be responsible for its pro-rata share of any money owed by TriMet to its subcontractor.

7.4 In the event that TriMet subcontracts its obligations under this Agreement, and if its subcontractor is obligated to reimburse TriMet for money paid under that subcontract agreement, TriMet shall reimburse the City for its pro-rata share of payments already made to the subcontractor.

8. Remedies. The remedies provided under this Agreement shall not be exclusive. The parties also shall be entitled to any other equitable and legal remedies that are available.

9.1 This Agreement shall be construed according to the laws of the State of Oregon. TriMet and the City shall negotiate in good faith to resolve any dispute arising out of this Agreement. Should any dispute arise between the parties concerning this Agreement that is not resolved by mutual agreement described above, it will be submitted to mediated negotiation prior to any party commencing litigation. In such an event, the parties to this Agreement agree to participate in good faith in a non-binding mediation process. The mediator shall be selected by mutual agreement of the parties, but in the absence of such agreement, each party shall select a temporary mediator and those mediators shall jointly select the third mediator who alone shall conduct the mediation. All costs of mediation shall be borne equally by the parties.

9.2 If the matter cannot be resolved with the aid of the mediator, the dispute shall be submitted to binding arbitration pursuant to ORS 36.600 et. seq. by an arbitrator jointly selected by the parties. If the parties are unable to agree on the arbitrator, the presiding judge of the Multnomah County Circuit Court shall appoint the arbitrator, provided however, that at the request of either party, arbitration shall be conducted by the Arbitration Service of Portland, Inc.

10. Assignment. Except as otherwise set forth herein, TriMet shall not assign this Agreement, in whole or in part, or any right or obligation hereunder, without the prior written approval of the City.

11. Severability/Survivability. If any provision of this Agreement is found to be illegal or unenforceable, this Agreement nevertheless shall remain in full force and effect and the provision shall be stricken. All provisions concerning indemnity survive the termination of this Agreement for any cause.

12. Interpretation of Agreement. This Agreement shall not be construed for or against any party by reason of the authorship or alleged authorship of any provision. The Section headings contained in this Agreement are for ease of reference only and shall not be used in constructing or interpreting this Agreement.

13. Entire Agreement; Modification; Waiver. This Agreement and attached exhibits constitute the entire Agreement between the parties on the subject matter hereof and supersede all prior or contemporaneous written or oral understandings, representations or communications of every kind. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. No course of dealing between the parties and no usage of trade will be relevant to supplement any term used in this Agreement. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both parties. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of a party to enforce any provision of this Agreement shall not constitute a waiver by a party of that or any other provision.

IN WITNESS WHEREOF, the parties have executed this Agreement effective for the dates noted herein.

(a) Operate and maintain all transit related signaling, switching and information systems and transit appurtenances.

(b) Maintain or cause to be maintained all Light Rail electrical and catenary systems.

(d) Provide enhanced maintenance and cleaning services for all blocks of the Transit Mall not under construction. Maintenance and cleaning services shall consist of at least the following:

• Provision of “on-call” services to deal with business owner concerns regarding cleanliness of the Transit Mall or the ground floor of building facades which may become dirty as a result of construction activity.

• Provide for the daily cleanings of four shelters at Portland State University between SW Harrison and SW Mill Streets.

• Provide for the cleaning of MAX shelters at Pioneer Square on SW Morrison and SW Yamhill Streets.

(e) Provide the following maintenance and cleaning services for all blocks of the Temporary Transit Mall:

• Provide weekly pressure washing of 23 shelters, including a five-foot sidewalk perimeter around each shelter.

• Provide for daily inspections and cleaning including the immediate removal of graffiti from bus shelters and stops.

• Provide such additional cleaning efforts on the Temporary Transit Mall as may be determined appropriate.

(f) TriMet shall require each of its subcontractors to obtain and keep in effect policies of insurance which will provide Public Liability and Property Damage coverage, which policies include the City of Portland, its officers, employees and agents as an additional insured. The insurance coverage shall not be materially amended, modified, altered or cancelled insofar as the coverage contemplated herein is concerned without at least 30 days written notice. Limits of insurance covering City’s interests shall equal TriMet’s coverage requirements but in no case shall it be less than $1,000,000.00 per occurrence with an annual aggregate limit not less than $2,000,000.00.

(g) TriMet shall require each of its subcontractors under this Agreement to indemnify, hold harmless and defend the City, its officers, employees and agents from and against all claims, suits, actions of whatsoever nature, damages or losses, and all expenses and costs incidental to the investigations and defense thereof, including reasonable attorneys fees, resulting from or arising out of the activities of such subcontractor, its officers, employees or agents under any subcontract agreement.

(h) TriMet shall not be relieved of its responsibility for performance of its duties under this Agreement , regardless of any subcontract entered into. TriMet shall require that any subcontractor performing services under this Agreement shall comply with the requirements of this Agreement.

The City of Portland shall, through its appropriate bureaus, shall complete the following Scope of Work on the Transit Mall:

(e) Manage and enforce such temporary parking as may be allowed on the Transit Mall during the construction period.

(f) Operate and maintain all permanent traffic control signage, signals and pavement markings.

(g) The City shall provide a designated liaison to facilitate day-to-day communication and coordination of services provided under this Agreement.

The City of Portland shall, through its appropriate bureaus, complete the following Scope of Work on the Temporary Transit Mall:

(b) Perform street sweeping five nights per week for blocks not under construction.