INTERGOVERNMENTAL AGREEMENT FOR STUDENT TRANSIT PASS PILOT PROJECT

AMONG THE CITY OF PORTLAND, PORTLAND PUBLIC SCHOOLS AND THE TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON

This Intergovernmental Agreement for a Student Transit Pass Pilot Project (hereinafter “Agreement”) is entered into by and among the City of Portland, a municipal corporation, acting by and through its City Council (hereinafter “City”), Portland Public Schools (hereinafter “PPS”), and the Tri-County Metropolitan Transportation District of Oregon, a mass transit district organized under the laws of the state of Oregon (hereinafter “TriMet”), (all jointly referred to herein as “the Parties”).

RECITALS

A.  Oregon Department of Energy (State) has a Business Energy Tax Credit (BETC) Program under which State funds are available for funding of certain transportation projects that decrease environmental impacts and otherwise meet State’s BETC program requirements, including funding of free student transit passes.

B.  The Parties desire to implement a Student Transit Pass Pilot Project that would provide free transportation on regular TriMet service routes and Portland Streetcar to students enrolled at Jefferson, Franklin and Roosevelt High Schools for the period of January 1 through June 30, 2009, (hereinafter “Pilot Project”) and to establish a plan for extension of the Pilot Project to other schools in the Portland Public School District by April 2009.

C.  The Parties intend that application will be made to the State to obtain BETC funding for the Pilot Project.

D.  The Parties desire to set forth their agreements as to their respective roles and responsibilities for implementation of the Pilot Project.

Now, therefore, the premises being in general as stated in the foregoing recitals, it is agreed by and between the Parties hereto as follows:

AGREEMENT

ARTICLE I - DIVISION OF RESPONSIBILITIES

A.  City Shall:

1.  Assign a Project Manager for City’s work under this Agreement who will serve as City’s Project contact.

2.  Research and seek out other regional, state and federal sources for long-term funding for extension of the Pilot Project.

3.  Take the lead in securing a tax-paying pass-through partner for BETC funding, which selection shall be subject to the approval of PPS and TriMet, which approval shall not be unreasonably withheld or delayed.

4.  If, after three (3) months from the completion of the Pilot Project, City has not secured a pass-through partner, City will reimburse TriMet for 25.5% of the completed Pilot Project costs, in an amount not to exceed $1,177,664.

5.  Promptly make the Pilot Project cost reimbursement(s) to TriMet after receipt of true and accurate cost documentation and invoice(s) from TriMet.

6.  Authorize free travel on all regular Portland Streetcar service routes for students enrolled at Franklin, Jefferson and Roosevelt High Schools, for the period of January 1 through June 30, 2009. City shall recognize a PPS issued Franklin, Jefferson and Roosevelt High School student photo ID card, as valid proof of fare payment on City’s Portland Streetcar for such time period. Photo ID card is non-transferrable and may be used as proof of payment on Portland Streetcar only by the individual whose name and photo appear on the front of the card.

7.  Coordinate PPS, Multnomah Youth Commission and TriMet to develop plan to deliver “How To Ride” and Code of Conduct messages to participating schools.

B.  PPS Shall:

1.  Assign a Project Manager for PPS’s work under this Agreement who will serve as the PPS Project contact.

2.  Assist TriMet in filing applications for BETC funding for the Project, including providing information necessary for the preliminary and final Pilot Project applications, and providing ongoing support and data to meet BETC program monitoring/reporting requirements.

3.  Reimburse TriMet in the amount of $25,191 for the Pilot Project BETC application fees.

4.  Provide in-class student data collection and data summary required for the BETC program at PPS’s cost, including data collection provided for under Article I (D)(3)(d). Design and cost of the student data collection and summary shall be mutually agreed to by all parties before the data collection commences.

5.  Develop an “opt-out” notification form to students and families that will include the TriMet developed “Code of Conduct” guidelines and inform parents/guardians that they may notify their student’s school if they do not want their student to receive a Youth Pass. The notification form will include a statement that the student’s use of their photo ID as proof of fare payment and use of the TriMet transit system is subject to TriMet Code regulations.

6.  Work with TriMet to develop and implement a student curriculum on “How to Ride” that will include the TriMet Code of Conduct guidelines. Distribute the TriMet developed “How to Ride” materials and the TriMet Code of Conduct guidelines to each student.

7.  Pay all costs of producing the PPS photo ID card for the Pilot Project, which will include the embedded TriMet fare media design.

8. PPS shall pay TriMet 74.5% of TriMet’s incurred Pilot Project costs for data collection/ analysis, accountant services and staff administration necessary to successful implementation of the Pilot Project. TriMet shall engage a third party consultant to provide data/collection analysis, and an accountant for final BETC application services, which costs shall be billed to PPS for 74.5% reimbursement. TriMet staff shall provide administration services for the Pilot Project, which shall be billed to PPS at the affected employee’s fully burdened hourly rate listed in Exhibit A. A good faith estimate of the total TriMet staff hours required for the Pilot Project is provided in Exhibit A, however, PPS’s reimbursement obligation to TriMet shall be based on actual TriMet staff time expended. TriMet will track staff time to the nearest half hour, which shall be detailed per employee and included on bimonthly billings to PPS. PPS shall make payment to TriMet within thirty (30) days following PPS’s receipt of true and accurate cost documentation and invoice from TriMet. PSS shall commit funding up to the amount of $135,000 for reimbursement to TriMet under this Paragraph.

C.  TriMet Shall:

1.  Assign a Project Manager for TriMet’s work under this Agreement who will serve as TriMet’s Pilot Project contact.

2.  Submit an application to DOE for preliminary approval of BETC funding for the Pilot Project and provide preliminary Pilot Project cost estimates to be submitted with the application.

3.  Authorize free all-zone travel on regular TriMet service routes for students enrolled at Franklin, Jefferson and Roosevelt High Schools, for the period of January 1 through June 30, 2009. TriMet shall recognize a PPS issued Franklin, Jefferson and Roosevelt High School student photo ID card, with embedded TriMet fare media design as valid proof of fare payment for such time period. Photo ID card is non-transferable and may be used as proof of fare payment on TriMet transit system only by individual whose name and photo appears on the front of the card.

4.  Design the fare media design to be embedded on the student photo ID card, and deliver the design to the PPS printing vendor.

5.  Develop “How to Ride” materials for the Pilot Project and deliver them to PPS with TriMet Code of Conduct guidelines materials.

6.  Submit/have the pass-through partner submit the final BETC application to State. TriMet will determine the cost per rider and engage a CPA to certify costs prior to submitting the final application.

7.  Track staff administrative time expended on the Pilot Project and submit an accounting of hours/costs to PPS for reimbursement as provided in Article I B (8). Submit third party data collection/analyst consultant and accountant services costs to PPS for reimbursement as provided in Article I B (8).

8.  Submit true and accurate cost documentation and invoice(s) to the City for eligible reimbursements by the City. (See, Article I A (4) and (5)).

9.  In the case that no pass-through partner is identified within three (3) months of the completion of the Pilot Project and reimbursement is made by the City to TriMet for eligible Pilot Project costs (See Article I. A. (4) and (5)), and the City subsequently identifies a pass-through partner for the Pilot Project within an eligible period of time as defined by BETC guidelines and BETC funding is approved for payment of at least 25.5% of TriMet’s Pilot Project costs, TriMet will forward to City the amount of the BETC funding received from the pass-through partner within one (1) month of receiving payment from the pass-through partner.

D.  General Agreements/Obligations of the Parties

1.  The Parties agree to make decisions and act quickly to pursue the development of the Pilot Project and to provide resources and personnel necessary to implement the Pilot Project and to fulfill their obligations under this Agreement in a timely manner.

2.  The Parties agree that TriMet is not responsible for any costs or expenses associated with the Pilot Project, and that any costs or expenses incurred by TriMet for the Pilot Project will be reimbursed to TriMet either through BETC funding or by the City and/or PPS. Specific obligations as between City and PPS to reimburse TriMet for Pilot Project costs and expenses are set forth in this Agreement. In no event shall the City’s obligation for TriMet’s costs or expenses exceed the amounts set out in Article I.A. (4) of this Agreement. In no event shall PPS’s obligations for TriMet’s costs or expenses exceed $135,000 which is the amount that PPS would have expended for fares in the absence of the Pilot Project.

3.  The Parties agree that the following conditions apply with respect to the Pilot Project:

(a)  The Pilot Project will proceed only if pre-approval of the BETC application is secured from the State.

(b)  The Pilot Project will be in effect from January 1 through June 30, 2009.

(c)  Pilot Project costs will need to be determined prior to securing a pass-through partner.

(d)  The BETC program will require “before and after” surveys/assessments/data collection/analysis of the Pilot Project as follows, the costs of which will be paid by PPS as provided by this Agreement (see Article I.B. (4) and (8)):

o  TriMet bus stop data will be used as the baseline ridership for the Pilot Project.

o  TriMet will develop a survey and data collection methodology in cooperation with PPS’ research department that will include:

1.  Implementation of an on-street assessment to determine which bus stops students use. TriMet to survey passengers deboarding buses at stops near schools to determine the number of students using each stop;

2.  Implementation of an in-class survey to determine ridership. PPS will conduct the in-class survey of each student in April 2009 to determine the number of non-school rides each student takes. PPS to achieve 75% response rate from in-class survey.

4. To be eligible for participation in the Pilot Project, schools must be able to issue student photo ID cards with an embedded TriMet fare media design.

5.  The Parties agree that any extension of the Pilot Project beyond June 30, 2009 would be subject to the following conditions:

(a)  Establishment by February 2009 of a Pilot Project Data and Evaluation Team comprised of the Parties’ respective staff members to develop a Plan for an extension. The Plan would assign division of tasks among the Parties, estimated costs and financial responsibilities, including determinations of what portion of costs would be reimbursable by BETC and identification of additional locations to be added to the Pilot Project, consistent with this Agreement.

(b)  Resolution to TriMet’s satisfaction of transit system overcrowding issues before adding additional schools/extending the Pilot Program, to be based on application of TriMet’s standard Achievable Capacity criteria of: 133 people per MAX car (64 seated and 69 standing) and 51 people per bus (39 seats for low-floor bus with 12 standing) and a reasonable demonstration that extending the Pilot Project to a given school will not cause transit system ridership to increase beyond manageable levels.

(c)  PPS’s completion of in-class surveys/data analysis by the end of April 2009 at high schools mutually agreed to by the Parties to determine a baseline for any expansion of the Pilot Project, and other surveys as needed to meet the DOE BETC application requirements. PPS to pay all in-class survey/data analysis costs. PPS to achieve 75% response rate from in-class surveys. PPS to pay TriMet 74.5% of TriMet’s incurred Pilot Project costs for data collection/ analysis, accountant services and staff administration necessary to successful implementation of the Pilot Project.

(d)  Sufficient information in the Plan to permit a timely application to State for BETC funding beyond June 30, 2009. PPS to pay for BETC application fee.

(e)  TriMet’s holding of a Public Hearing for the purpose of TriMet’s consideration of public comment, and a determination by TriMet in its sole discretion to proceed with the extension. If TriMet Board action is required for continuation of the Pilot Project, any extension would be subject to approval of the TriMet Board.

(f)  The Pilot Project extension would be terminated if BETC funds were not available or the BETC program were modified to not apply.

(g)  Agreement by all of the Parties to the terms and conditions of a Pilot Project Extension Agreement through a subsequent Intergovernmental Agreement.

6  The Parties agree to include long-term sustainability of BETC funding for extension of the Pilot Project on their respective legislative agendas every year until it is renewed.

7.  The Parties agree that PPS will convene bi-monthly stakeholder meetings to monitor the success of the Pilot Program and develop plans for expansion.

8.  Should the Pilot Project prove to be successful in PPS, TriMet and the City will consider extension of the Pilot Project to other school districts within the City of Portland on or after September 1, 2009.

E.  Project Managers

1.  TriMet hereby appoints the person identified below to act as its Project Manager with regard to this Agreement:

Tom Strader

Senior Fare Policy Analyst

TriMet

4012 S.E. 17^th Avenue

Portland OR 97232

Telephone:  (503) 962-7562

Facsimile:  (503) 962-6451

TriMet may, from time to time, designate another person to act as the TriMet Project Manager and may specify other contact information for its Project Manager by means of a writing delivered to PPS’ and City’s Project Managers.

2.  The City hereby appoints the person identified below to act as its Project Manager with regard to this Agreement:

Nate Waas Shull, Youth Engagement Coordinator

Office of the Mayor

City of Portland

1221 S.W. 4^th Avenue, Suite 340

Portland, OR 97076  

Telephone:  (503) 823-4027

Facsimile:  (503) 823 -3588

City may, from time to time, designate another person to act as the City Project Manager and may specify other contact information for its Project Manager by means of a writing delivered to TriMet’s and PPS’ Project Managers.

3.  PPS hereby appoints the person identified below to act as its Project Manager with regard to this Agreement:

Phil Weber, Transportation Director

Portland Public Schools

Portland, OR 97123

Telephone:  (503)-916-6901 ext. 7271

Facsimile:  (503) 916-2707

PPS may, from time to time, designate another person to act as the PPS Project Manager and may specify other contact information for its Project Manager by means of a writing delivered to TriMet’s and City’s Project Managers.

ARTICLE II - GENERAL PROVISIONS

A.  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.

B.  Liability

Within the provisions and limits of liability set forth in the Oregon Tort Claims Act, codified at ORS 30.260 through 30.300, each of the Parties shall indemnify and defend the others and their directors, officers, employees, and agents from and against all claims, demands, penalties, and causes of action of any kind or character arising from this Agreement on account of personal injury, death or damage to property, which arises out of the acts or omissions of the indemnitor, its directors, officers, employees or agents. The obligations assumed hereunder shall survive the termination or expiration of this Agreement.

C.   Termination

1.  This Agreement may be terminated by mutual agreement of the Parties.

2.  In addition to the rights afforded under subparagraph C (1) above, this Agreement may be terminated by a Party as a result of a material breach of an obligation by another Party to this Agreement as provided by law or in equity. Prior to such a termination, the terminating party must provide the Project Managers of the other parties with thirty (30) calendar days written notice of the material breach, including a detailed explanation of the breach during which period the breaching party may cure the material breach (“Cure Period”). If at the end of the Cure Period the breaching party has not cured the default, the terminating party may terminate this Agreement for default.

D.  Inspection of Records

Each of the Parties shall have the right to inspect, at any reasonable time, such records in the possession, custody or control of the other Parties necessary for review of the other Parties’ obligations and its rights under this Agreement. The cost of such inspection shall be borne by the inspecting Party. This right is does not extend to records privileged or otherwise exempt from disclosure under applicable law. Any party required under this Agreement to create or develop records must maintain those records for inspection pursuant to this Paragraph D.

E.  Successors; No Assignment

The benefits conferred by this Agreement and the obligations assumed hereunder, shall inure to the benefit of and bind the successors of the Parties. The rights and obligations of each Party under this Agreement may not be assigned in whole or in part without the prior written consent of the other Parties.

F.  Choice of Law; Place of Enforcement

This Agreement shall be governed by and construed in accordance with the laws of the state of Oregon. The venue for any litigation relating to interpretation or enforcement of this Agreement shall be in Multnomah County, Oregon.

G.  Amendments

This Agreement (including the exhibits hereto) may only be amended by means of a writing signed by an authorized representative of each of the Parties hereto. No amendment to any provision of this Agreement shall be implied from any course of performance, any acquiescence by any Party, any failure of any Party to object to the other Parties’ performance or failure to perform, or any failure or delay by any Party to enforce its rights hereunder.

H.  Integration

This document constitutes the entire agreement between the Parties on the subject matter hereof, and supersedes all prior or contemporaneous written or oral understandings, representations or communications of every kind. No course of dealing between the Parties and no usage of trade will be relevant to supplement any term used in this Agreement.

I.  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 paragraph headings contained in this Agreement are for ease of reference only and shall not be used in constructing or interpreting this Agreement.

J.  Severability/Survivability

If any clause, sentence or portion of the terms and conditions of this Agreement becomes illegal, null or void for any reason, the remaining portions will remain in full force and effect to the fullest extent permitted by law. All provisions concerning indemnity survive the termination of this Agreement for any cause.

K.  Laws and Regulations

The Parties agree to abide by all applicable laws and regulations in carrying out this Agreement.

L.  Waivers

No waiver by any Party of any provision of this Agreement shall be of any force or effect unless in writing. Except as otherwise provided herein, no waiver made by a Party with respect to the performance, or manner or time thereof, or obligation of another Party or any condition inuring to its benefit under this Agreement shall be considered a waiver of any other rights of the Party making the waiver or a waiver by the other Parties not joining in such waiver, and no such waiver shall be construed to be a continuing waiver.

M.  Notice

Any notice or communication under this Agreement shall be deemed received by the addressee on the earliest to occur of:

1.  The date such notice is hand-delivered to the notice address of the addressee; or

2.  If such notice is transmitted by telecopy or facsimile machine to the fax number of the addressee specified as part of the notice address, then:

a.  If such notice is transmitted during regular business hours, 8:00 a.m. to 5:00 p.m. Pacific Time, on a mail delivery day, such notice shall be deemed to be delivered on the date it is so transmitted; and

b.  If such notice is not transmitted during such regular business hours, or is transmitted on a date that is not a mail delivery date, such notice shall be deemed delivered on the next mail delivery day following the date upon which the same was transmitted; or

c.  If sent to the addressee’s notice address through the United States Postal Service, postage prepaid, the third mail delivery day following the date upon which the envelope containing such notice is postmarked.

The notice address of each Party is set forth above in ARTICLE 1, Paragraph (E) Project Managers. Any Party may change the foregoing notice address by giving prior written notice thereof to the other Party at its notice address.

N.  Headings

Any titles of the sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions.

O.  No Third Party Beneficiaries

The Parties intend that the rights, obligations and covenants in this Agreement shall be exclusively enforceable by the Parties. There are no third party beneficiaries to this Agreement, either express or implied.

P.  Mediation

The Parties shall negotiate in good faith to resolve any dispute arising under this Agreement. If the Parties are not able to resolve a dispute within forty-five (45) days after such dispute has arisen, they shall submit the matter to mediation. The mediation shall be conducted in Portland, Oregon, in accordance with such procedures, and on such time schedules as the Parties shall mutually agree. The mediator shall be selected by mutual agreement of the Parties, or if the Parties cannot agree, each party shall select a temporary mediator and those mediators shall jointly select the permanent mediator. Mediators’ fees shall be shared equally between the Parties. Each Party shall bear its own costs and expenses in connection with the mediation. Each Party shall participate in such mediation in good faith, but nothing in this Agreement shall preclude a Party from exercising its rights as provided by law in the event mediation is unsuccessful. The Parties shall continue in the performance of their respective obligations under this Agreement notwithstanding the dispute. This dispute resolution procedure may be modified by mutual agreement of the Parties.

Q.  Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed to be an original and such counterparts shall constitute one and the same instrument.

R.  Term

This Agreement shall be in effect from the date of execution by all of the Parties through December 31, 2009, unless extended by agreement of the parties, or terminated earlier in accordance with the provisions hereof.

The individuals signing below represent and warrant that they have authority to bind the party for which they sign.

CITY OF PORTLAND  TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON (TRIMET)

By:              By:          

Approved as to Form:          Approved as to Form:

By:              By:           City Attorney            TriMet Legal Department

PORTLAND PUBLIC SCHOOLS

By:                

Date:            

Approved as to Form:

By:          

Legal Counsel

EXHIBIT A