INTERGOVERNMENTAL AGREEMENT
Oregon Pacific Railroad Realignment Project
This Intergovernmental Agreement (“Agreement”) dated November 30, 2007, is by and between Metro, a metropolitan service district organized under the laws of the state of Oregon and the Metro Charter, located at 600 NE Grand Avenue, Portland, Oregon, 97232-2736 (“Metro”), and the City of Portland, Bureau of Environmental Services, located at 1120 SW 5th Avenue, Portland, Oregon 97204 (“BES”), collectively referred to as the “Parties.”
RECITALS:
WHEREAS, Metro and the City of Portland, Parks and Recreation Department (“Parks”) entered into an intergovernmental agreement (the “Sellwood Section IGA”) dated February 6, 2004, providing for the management, maintenance and operation by Parks of certain parcels of real property owned by Metro in the Town of Sellwood, City of Portland (the “Sellwood Section”) and establishing that, until the Springwater Trail is constructed over said parcels, Parks will landbank the Sellwood Section in accordance with the Metro Open Spaces Implementation Work Plan; and
WHEREAS, in accord with the Sellwood Section IGA, all requests for easements over the Sellwood Section must be evaluated and processed by Metro using the Metro Easement Policy, Resolution No. 97-2539B, passed by the Metro Council on November 6, 1997; and
WHEREAS, BES plans to install a Combined Sewer Overflow Interceptor system under unimproved SE Grand Avenue between SE Tacoma Street and SE Marion Street (the “CSO Project”), and has requested a permanent sewer easement (“Easement”) over a portion of the Sellwood Section next to SE Grand Avenue to provide for the CSO Project, and Metro wishes to accommodate said request; and
WHEREAS, the Oregon Pacific Railroad (“OPR”) rail line currently occupies SE Grand Avenue between SE Tenino Street and SE Marion Street, and a section of said rail line between railroad engineer’s station Milepost 3.64 and Milepost 3.98 must be permanently realigned eastward to provide space for the excavation and construction of the CSO Project and to allow the OPR rail line and CSO Project to co-exist within SE Grand Avenue (the “OPR Realignment Project”); and
WHEREAS, Metro has expertise in negotiating for and acquiring railroad right-of-way and procuring track realignment services, and BES wishes to enter into this Agreement with Metro for the procurement of track realignment services for the OPR Realignment Project;
NOW, THEREFORE, the Parties agree as follows:
1. Permanent Sewer Easement. Metro and BES agree to execute and record a Permanent Sewer Easement encumbering the Metro Property, State Identification Number 1S1E26BB 4000, TL 4000 BLOCK 21, within the Sellwood Section, as shown in the map attached as Exhibit A. Metro and BES agree that the Permanent Sewer Easement will be drafted and recorded as set forth in the easement recording paragraph in the Scope of Work, Exhibit B to this IGA.
2. Procurement of Track Realignment Services. Metro, its agents and contractors shall procure track realignment services for the OPR Realignment Project on BES’s behalf, in accord with the Scope of Work and Budget attached as Exhibit B. The procurement services provided by Metro shall be conducted in accord with the Metro Code and all applicable provisions of ORS Chapters 279Aand 279B. All modifications to the Scope of Work and Budget must be mutually approved in writing by BES and Metro.
3. Payment. Once the BES and Metro Ordinance(s) are in effect, Metro shall be reimbursed for costs of track realignment shown in Exhibit A. Metro then shall invoice BES for mobilization and progress payments for each segment of railroad work complete. Each invoice shall include a breakdown of payment for costs for Metro staff that performed work, payment for costs for all other services directly related to Procurement Services with a description of those services, and payment for the direct costs for the rail realignment services, in accordance with Exhibit B. In addition, Metro shall be reimbursed for its staff time and expenses, and any other reasonable costs and expenses associated with or in any way related to the procurement performed hereunder, including changes in the Scope of Work and Budget, OPR Realignment Project delays and OPR Realignment Project cost increases. Metro shall provide City with current and projected expenses, and a summary of work accomplished by each Metro Staff, to BES on a monthly basis upon commencement of Procurement Services. Invoices shall be sent addressed as follows, or to such other address as the City may hereafter specify in writing:
Bureau of Environmental Services
Kurt Robinson
1120 SW Fifth Ave, Room 1000
Portland, OR 97204
4. BES to Provide Unpaved Maintenance Road. After track realignment is accomplished and upon completion of the Sewer Project, but no later than December 31, 2011, BES shall provide a 16-feet wide graded gravel maintenance road, to be located within unimproved SE Grand Avenue rights-of-way, eight and one-half (8.5) feet west of the railroad ties, between SE Umatilla Street and SE Linn Street crossings, as depicted in Exhibit A. BES shall install barriers or other improvements that prevent access by unauthorized motor vehicles over the maintenance road.
5. Maintenance of Unpaved Maintenance Road – Future Trail Use. BES agrees to maintain the unpaved maintenance road in a condition passable by bicycles and pedestrians, and specifically acknowledges that the maintenance road will be paved by others in the future as part of a Metro/Portland Parks bicycle and pedestrian trail project, and officially opened to the public. BES agrees that, after said paved bicycle and pedestrian trail is constructed, BES will repair and/or replace any trail improvements that are removed and/or damaged beyond ordinary wear and tear by BES’s ongoing maintenance, repair or replacement of the sewer improvements within Grand Avenue and the Sellwood Section. BES further agrees that said maintenance, repair and replacement activities shall not result in closure of the trail for more than 48-hours in any two week period, save any duration required to mitigate emergency sewer situations with the sewer system, or unless mutually agreed that a duration of ongoing maintenance longer than 48 hours is necessary.
6. Termination of Agreement.
6.1 Termination for Convenience by Mutual Agreement. Metro and BES may terminate all or part of this Agreement at any time by mutual agreement, based upon the determination that such termination is in the public interest. Termination under this provision shall be effective immediately upon written notice of termination executed by both Parties.
6.2 Payment/Reimbursement After Termination. Notwithstanding any termination of this Agreement, Metro and its agents and contractors shall be entitled to receive payment and/or reimbursement for any work completed or for which Metro or its agents or contractors are contractually or legally obligated, where such work or legal/contractual obligation occurred prior to the effective date of the termination.
7. Term and Expiration. This Agreement for Procurement Services shall be twenty (20) years. Unless earlier terminated, this Agreement shall expire on the tenth anniversary of the Effective Date. The Sewer Easement shall be in force, in perpetuity, unless amended otherwise by mutual agreement of both parties.
8. Coordination of Public Statements. BES and Metro shall coordinate their public statements about the OPR Realignment Project. All written public statements and media communications by BES concerning the OPR Realignment Project shall be provided to Metro for review and approval no less than five (5) business days prior to the public statement’s release, or, if in case of emergency, no less than 48 hours prior to release.
9. General Provisions.
9.1 Notices. All notices or other communications required or permitted under this Agreement shall be in writing, and shall be personally delivered (including by means of professional messenger service) or sent both by fax and regular mail as follows, or to such other address as the receiving party may hereafter specify in writing:
To Metro: Jim Desmond
Director, Metro Regional Parks and Greenspaces
600 NE Grand Avenue
Portland, OR 97232-2736
To BES: Andi Gresh
Fund Development Manager
City of Portland Bureau of Environmental Services
1120 SW 5th Avenue
Portland, OR 97204
9.2 Indemnification. Subject to the conditions and limitations of Article XI, Section 10 of the Oregon Constitution and the limits of the Oregon Tort Claims Act, ORS chapter 30:
9.2.1 BES shall defend, indemnify and save harmless Metro, its officers, employees, and agents from and against any and all liabilities, damages, claims, demands, judgments, losses, costs, expenses, fines, suits, and actions whether arising in tort, by contract or by operation of any statute, including but not limited to attorney’s fees and expenses at trial and upon appeal which, in whole or in part, directly or indirectly arise from or are in any way connected with BES’s performance of its obligation under this Agreement, or its breach violation or non-performance of its obligation hereunder.
9.2.2 Metro shall defend, indemnify and save harmless BES, its officers, employees, and agents from and against any and all liabilities, damages, claims, demands, judgments, losses, costs, expenses, fines, suits, and actions whether arising in tort, by contract or by operation of any statute, including but not limited to attorney’s fees and expenses at trial and upon appeal which, in whole or in part, directly or indirectly arise from or are in any way connected with Metro’s performance of its obligation under this Agreement, or its breach violation or non-performance of its obligation hereunder.
9.3 Laws of Oregon. This Agreement shall be governed by the laws of the state of Oregon, even if Oregon’s choice of law rules would otherwise require application of the law of a different state, and the Parties agree to submit to the jurisdiction of the court of the state of Oregon.
9.4 Assignment. Neither party shall assign any of its responsibilities under this Agreement without prior written consent from the other party, except that both Metro and BES may subcontract for performance of any of their respective responsibilities under this Agreement, without the prior written consent of the other party.
9.5 Severability. If any covenant or provision in this Agreement shall be adjudged void, such adjudication shall not affect the validity, obligation, or performance of any other covenant or provision which in itself is valid, if such remainder would then continue to conform with the terms and requirements of applicable law and the intent of this Agreement.
Attachments:
Exhibit A –Permanent Sewer Easement and Rail Alignment
Exhibit B – Scope of Work and Budget – Track Realignment Procurement Services
IN WITNESS WHEREOF, the Parties hereto have set their hands on the day and year set forth above.
CITY OF PORTLAND METRO
Bureau of Environmental Services
________________________________________ _________________________________
Elected Official or Delegate Date Authorized Signature Date
________________________________________ _________________________________
Bureau Director Date Approved as to form by Date
General Council
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City Auditor Date
Approved as to form by Date
City Attorney