INTERGOVERNMENTAL AGREEMENT BETWEEN
THE CITY OF PORTLAND AND THE PORT OF PORTLAND

This Intergovernmental Agreement ("Agreement") is entered into, pursuant to ORS 190.110 and 190.240, between the CITY OF PORTLAND ("City") and THE PORT OF PORTLAND ("Port") and is effective on ______________________, 2008.

RECITALS

A.  Pursuant to the Cascade Station Traffic Mitigation Agreement ("TMA") by and between the Port, the Cascade Station Development Company, LLC ("CSDC"), and the Portland Development Commission ("PDC"), the Port and CSDC are required to complete certain traffic mitigation improvements.

B.  In order for CSDC to complete its requirements under the TMA, the City must acquire certain right-of-way as described on Exhibit A. ("Project").

C.  The City and the Port have agreed that the Port shall be charged for all costs associated with the acquisition.

AGREEMENT

NOW THEREFORE, in consideration of the promises and covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.

1  PROJECT DEFINITION

The Project, as described in Recital B, consists of the City acquiring certain property so that CSDC in turn may complete its obligations under the TMA.

2  CITY OBLIGATIONS

The City shall do no work before receiving notice from the Port of Portland. Upon receiving notice the City shall:

2.1  Upon receipt of legal descriptions, exhibit maps and project plans with cross sections from the Port, develop a right-of-way acquisition cost estimate.

2.2  Upon approval of the right-of-way acquisition cost estimate by the Port, establish Just Compensation based upon review of the valuation by qualified personnel on all properties.

2.3  Prior to making offers to obtain property rights, submit appraisals and Just Compensation to the Port for budgetary approval.

2.4  Consult with the Port prior to incurring settlement costs in excess of 20% above the established Just Compensation for the property rights.

2.5  Acquire title in the name of the City.

2.6  If the condemnation process is necessary to acquire such property rights, provide the Port with an estimate for the costs for all related legal and litigation work.

2.7  Upon budgetary approval from the Port, perform all legal and litigation work related to the condemnation process, if necessary, to acquire such property rights.

2.8  Provide the Port with invoices of all costs associated with the acquisition.

3  PORT OBLIGATIONS

The Port shall:

3.1  Provide the City with legal descriptions and exhibit maps in conformance with City standards. The Port shall provide project plans and cross-section information. The Port shall also provide environmental information if necessary for determining right of way needs. Port shall conduct or cause to be conducted Level 1 testing for presence of hazardous material. The Port shall conduct or cause to be conducted reasonable testing up to Level 2, if requested. If contamination is found on the property to be acquired, a recommendation for remediation will be made. The Port shall be responsible for any costs incurred for necessary remediation.

3.2  Provide the City with field location and project data necessary for determining right of way needs.

3.3  Reimburse the City for all reasonable costs related to the City's acquisition of the right-of-way, including, but not limited to, staff time, title work, appraisals, acquisition costs, attorneys fees, condemnation and associated costs.

3.4  Within fifteen (15) days after receipt of invoices from the City, the Port will review each invoice and recommend payment, or respond in writing to the City with the reasons the Port is requiring the City to resubmit the invoice before it can be approved for payment. The Port will pay all recommended payments within sixty (60) calendar days after receipt.

3.5   The Port's obligation to reimburse the City shall be subject to the Port’s right to consult with the City and authorize and approve all costs described in this Section 3.

4  TERMINATION

This Agreement may be terminated by either party upon written notice. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the parties prior to termination.

5  ACCOUNTING

The City will provide the Port no less frequently than quarterly with a written assessment of progress on the Project and an accounting of expenditures for the Project. The City will provide the Port with copies of any existing backup documentation requested by the Port.

6  RECORDS AND AUDIT

The City will retain all records related to the Project, including without limitation, all financial records and records documenting costs, until the later of: (i) three years after the final completion of the Project; or (2) resolution of any disputes with the Port. The Port shall have the right to have its representatives inspect, copy, and audit those records upon reasonable notice to the City. The Port shall reimburse the City for the City's reasonable audit-related costs, except that the City shall pay its own audit costs and shall reimburse the Port for the Port's reasonable audit costs if the audit reveals one or more errors in cost allocation under this Agreement that are in the Port's favor and that amount to five percent (5%) or more of the Port's total payments per project under this Agreement.

7  NOTICES AND COMMUNICATIONS

Communications between the parties regarding this Agreement shall be directed to the party’s respective contact person as indicated below:

 To the Port:  Attn: Robin McCaffrey

     The Port of Portland

     121 NW Everett

     Portland, Oregon 97209

     Phone: (503) 944-7513

     Fax: (503) 944-7466

     E-mail: robin.mccaffrey@portofporltand.com

 To the City:  Attn: David McEldowney

     Portland Office of Transportation

     1120 SW 5^th Avenue #800

     Portland, Oregon 97204

     Phone: (503) 823-7166

     Fax: (503) 823-4554

     E-mail: david.mceldowney@pdxtrans.org

Official communications regarding this Agreement shall be by email or in writing to the above-named persons or their designees. Designated Representatives may only be changed upon written notice to the other party.

8  GOVERNMENTAL POWERS

Nothing in this Agreement shall be deemed the agent or representative of the other. This Agreement does not create a separate entity under ORS Chapter 190.

9  NO AGENCY; NO SEPARATE ENTITY

Neither party shall be deemed the agent or representative of the other. This Agreement does not create a separate entity under ORS Chapter 190.

10  MODIFICATIONS

The Agreement may be modified only by a written amendment signed by authorized representatives of each party.

11  INTEGRAGTION

This Agreement constitutes the parties' entire agreement regarding the Project and supercedes all prior and contemporaneous agreements and communications regarding the subject.

12  SEVERABILITY

If a provision of this Agreement is deemed by a court to be void or unenforceable, the remaining provisions shall remain fully enforceable to effect the intent of the parties.

13  AUTHORITY

Each individual signing below represents and warrants that he or she is duly authorized to sign this Agreement on behalf of and contractually bind the party for which he or she signs.

14  DISPUTE RESOLUTION

If any dispute should arise between the parties with respect to this Agreement or the parties' obligations or activities under this Agreement, and the dispute cannot be resolved through escalated negotiation, the dispute shall be submitted to mediation before a mediator agreed to and compensated equally by the parties. If the parties cannot agree upon a mediator, then either party may apply to US Arbitration & Mediation of Oregon for appointment of a mediator, which appointment shall be binding on both parties. If this dispute is not resolved through mediation, the parties may agree to submit the dispute to arbitration. If the parties do not agree to submit the dispute to arbitration, either party may institute litigation.