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Trimet ~ IG227002 ~ Intergovernmental Agreement Between Trimet And City Of Tigard For Reimbursement Of Soutwest Corridor Light Rail Project Design And Construction Services INTERGOVERNMENTAL AGREEMENT BETWEEN TRIMET AND CITY OF TIGARD FOR REIMBURSEMENT OF SOUTHWEST CORRIDOR LIGHT RAIL PROJECT DESIGN AND CONSTRUCTION SERVICES This INTERGOVERNMENTAL AGREEMENT FOR REIMBURSEMENT OF SOUTHWEST CORRIDOR LIGHT RAIL PROJECT DESIGN AND CONSTRUCTION SERVICES ("Agreement") is entered into between the TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON ("TriMet") and the CITY OF TIGARD ("City") (each hereinafter referred to individually as a"Parry" and collectively as "the Parties"), effective on the last day executed by the Parties below. RECITALS 1. TriMet and the City are authorized to enter into this Agreement pursuant to ORS 190.010. 2. TriMet owns and operates the public mass transit system serving the Portland, Oregon metropolitan region within Washington, Multnomah and Clackamas counties, including the City of Tigard. The transit system includes the MAX light rail system, composed of the Eastside/Banfield, Westside/Hillsboro, Airport, Interstate, Portland Transit Mall, I-205, and Portland-Milwaukie segments. 3. The "Southwest Corridor" is a transportation corridor located between downtown Portland Tigard and Tualatin. Metro and its regional partners, including TriMet, initiated a comprehensive land use and transportation planning study to create a plan that will identify and prioritize public investments in the Southwest Corridor(the"Southwest Corridor Plan" or"Plan"). 4. In June 2018, the Portland area metropolitan service district ("Metro"), TriMet, and the Federal Transit Administration ("FTA")published the Draft Environmental Impact Statement("DEIS") for the Southwest Corridor Light Rail Project ("Project"). The Project would construct a new light rail line from downtown Portland to Tigard and Bridgeport Village in Tualatin, along with other roadway,bicycle, and pedestrian transportation improvements. 5. On August 13, 2018, the Southwest Corridor Steering Committee ("Steering Committee"), consisting of representatives from the Oregon Department of Transportation("ODOT"), Metro, Washington County, TriMet, and the cities of Beaverton, Durham, King City, Portland, Tualatin, Sherwood, and Tigard recommended a Locally Preferred Alternative ("LPA") for the Project light rail route. In the fall of 2018, the City Councils of Beaverton, Portland, Tigard, and Tualatin, and the Washington County Board of Commissioners, adopted resolutions or board orders or issued letters in support of the PA. On September 26, 2018, the TriMet Board of Directors issued Resolution 18-09-66 Recommending Confirmation of the Locally Preferred Alternative for the Southwest Corridor Light Rail Project. 6. On February 13,2019,the FTA approved the Project's entry into the Project Development ("PD") stage of development. TriMet has designed the Project to a 30%level of design and is expected to publish a Final Environmental Impact Statement("FEIS") in spring 2021,which evaluates updated designs,responds to comments, and confirms strategies to minimize and mitigate impacts identified in the DEIS. 7. Voters rejected a local bond measure on November 3, 2020 that would have provided funds necessary to continue and complete the Project. Without a new funding source,the Project will not move forward into the next phase of design nor seek FTA approval into the Engineering phase and Project partner involvement ceased. 8. Between February 13,2019 and November 3, 2020,the City assigned staff to the Project as necessary to oversee coordination and facilitation of the City's various roles in the design, permitting, and construction of the Project. To facilitate the involvement by City staff and their timely input and reviews,TriMet agrees to reimburse the City up to $100,000 for these staff expenses. TriMet recognizes that this does not provide full reimbursement for City staff time incurred on the project but reflects current funds availability. At a future date if the project is able to move forward to a future phase,the remainder of the City's incurred and properly documented staff time costs may be considered for a credit or share toward the project as negotiated at that time and as allowed by FTA. 9. The Parties enter into this Agreement to document each Party's understandings and agreements with respect to the reimbursement by TriMet of certain staff labor actually incurred by the City between February 13, 2019 and November 3, 2020 in direct connection with the Project. NOW, THEREFORE,the premises in general being as stated in the foregoing Recitals,the Parties hereby agree as follows: AGREEMENT ARTICLE I—TERM This Agreement is effective upon the date last executed below,unless terminated or extended by mutual agreement of the Parties in accordance with this Agreement. ARTICLE II—TRIMET OBLIGATIONS A. Reimbursement. TriMet agrees to reimburse the City for actual staff labor costs, as described above in Recital 9, incurred by the City between February 13, 2019 and November 3, 2020. The maximum amount of City staff expenses that will be reimbursed by TriMet is $100,000. B. Payment. TriMet shall reimburse the City for the staff based upon the Actual Hourly Burdened Labor Rate described herein within thirty(30) days of TriMet's receipt of a proper invoice. TriMet shall review backup documentation for suitability and assist the City as necessary to assure compliance with FTA requirements. For purposes of this Agreement, the Actual Hourly Burdened Labor Rate is defined as base wages plus benefits times 1.10. ARTICLE III—CITY OBLIGATIONS A. Invoices. The City shall submit an invoice or invoices to TriMet for actual City labor costs incurred between February 13, 2019 and November 3, 2020. Invoices shall reference this Agreement and include employee names, title, and Actual Hourly Labor Rate, the date(s) services were furnished, copies of employee timesheets substantiating the time, along with a brief description of the services furnished, and other financial reports as required and in accordance with FTA requirements or other supporting documentation for each month. All invoices shall be signed by the Tigard staff employee or his/her supervisor, certifying the hours worked and activities performed. Invoices shall be submitted to TriMet's Finance Department as follows: TriMet Finance Department Attn: Accounts Payable 1800 First Avenue, Suite 300 Portland, OR 97201 Overtime premium pay(pay exceeding straight time) shall not be invoiced to TriMet. B. Additional Services. TriMet will not pay any claim for additional services not specifically provided for herein, unless agreed to mutually by written modification of this Agreement. C. Status of Contractor. The City agrees that it provided the staff services referenced in this Agreement as an independent contractor and those staff members, even though they may have been assigned to the Project, were not employees of TriMet. ARTICLE IV—GENERAL PROVISIONS A. Liability. Subject to the limitations of the Oregon Tort Claims Act and the Oregon Constitution, City agrees to indemnify, hold harmless and defend TriMet, its officers, employees and agents from and against all claims, suits, actions, or whatsoever nature, damages or losses, and all expenses and costs incidental to the investigation and defense thereof including reasonable attorneys fees, resulting from or arising out of the acts of City, its officers, employees or agents under this Agreement. Subject to the limitation of the Oregon Tort Claims Act and the Oregon Constitution, TriMet agrees to indemnify, hold harmless and defend 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 investigation and defense thereof including reasonable attorneys fees, resulting from or arising out of the acts of TriMet, its officers, employees or agents under this Agreement. The City and TriMet indemnification obligations under this Section shall survive termination of this Agreement. B. Term; Termination. 1. Unless terminated sooner by a method set forth in this Agreement, the Agreement shall terminate thirty(30) days after TriMet has provided the maximum reimbursement allowed per this agreement or thirty(30) days after the City has been fully reimbursed for all staff labor eligible for reimbursement under this Agreement, whichever occurs first. Either Party may terminate this Agreement in the event of a material breach by the other Parry, but only if the other Party fails to cure the breach within fifteen(15) days of receipt of written notice specifying the breach or, if the breach is of a character which cannot be cured within 15 days, if the Parry in receipt of the notice commences working to cure the breach within 15 days and continues in good faith until cured. C. Notice. Formal notices required or permitted under this Agreement shall be deemed sufficiently given by one Party when received by the other Party after being sent postage prepaid by United States Postal Service certified or registered mail or by overnight courier addressed as follows: If to TriMet: Jeb Doran, Senior Project Manager TriMet 1800 SW First Avenue, Suite 300 Portland, OR 97201 with a copy to: Lance Erz, Sr. Deputy General Counsel TriMet 1800 SW First Avenue, Suite 300 Portland, OR 97201 If to City: Joe Wisniewski, City Engineer City of Tigard Tigard Civic Center 13125 SW Hall Blvd. Tigard, OR 97223 Either Party may change its address by notice given to the other. D. Maintenance of Records. The City shall maintain records to show actual time involved in accomplishment of the Project and the cost incurred for the period of time specified. The City shall cooperate in good faith with TriMet and the FTA to provide records in a form satisfactory to FTA. TriMet shall take the lead and assist the City as necessary for compliance with FTA requirements. E. Audit and Inspection of Records. The Parties acknowledge and agree that each Party, the federal government, and their duly authorized representatives shall have access to each Parry's books, documents, papers, and records which are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts, and transcripts for a period of three (3)years after final payment. Copies of applicable records shall be made available upon request. The cost of such inspection shall be borne by the inspecting Party. F. Documents. All records, reports, data, documents, systems, and concepts, whether in the form of writings, figures, graphs, or models that are prepared or developed in connection with this Project shall become public property. G. 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 Party. H. Choice of Law; Dispute Resolution; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon. Any dispute that is not resolved by mutual agreement shall 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 mediation shall take place in Portland, Oregon. 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 permanent mediator. The mediator's fees and costs shall be borne equally by the Parties. In the event mediation is unsuccessful, the Parties are free to pursue any legal remedies that may be available. Jurisdiction and venue for any litigation between the City and TriMet arising under this Agreement or out of work performed pursuant to this Agreement shall be in the Multnomah County Circuit Court or the United States District Court for the District of Oregon, located in Portland, Oregon. I. Waivers. No waiver by either 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 the other 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 Party not joining in such waiver, and no such waiver shall be construed to be a continuing waiver. J. 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. K. 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. L. Interpretation of Agreement. 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. This Agreement shall not be construed for or against any Party by reason of the authorship or alleged authorship of any provision. M. Integration, Modification, and Administrative Changes. This Agreement includes the entire agreement between the Parties on the subject matter contained in this Agreement and supersedes any and 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. This Agreement may only be modified in writing by a modification that has been signed by individuals authorized to bind each of the Parties contractually. The Parties shall not make changes to this Agreement through the issuance of permits, approvals, or other administrative requirements or processes. N. Compliance with Law. The parties recognize that should future funding be approved by the FTA, federal funds will be used to reimburse allowable costs for the Project Development Phase, which may include reimbursement of Tigard's staff labor per this agreement and other costs as deemed appropriate by TriMet. Each Party agrees to comply with all local, state, and federal laws and regulations and fully understands and agrees to comply with all applicable requirements governing the work of FTA and contractors and that reimbursement will be retained by TriMet. O. Federal Funding Limitation. To the extent applicable to each of the Parties, this Agreement is subject to all federal provisions prescribed for third-party contracts by the federal grant agreement. P. No Partnership; No Participation. Each of the Parties hereto shall be deemed an independent contractor for purposes of this Agreement. No representative, agent, employee or contractor of one Parry shall be deemed to be a representative, agent, employee 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. No Party or its employees is entitled to participate in a pension plan, insurance, bonus, or similar benefits provided by any other Party. Q. Authority. Each parry represents that it has the authority to enter into this Agreement on its behalf and the individual signatory for each Party represents that he or she is authorized by that Party to execute and deliver this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date last written below. TRI-COUNTY METROPOLITAN CITY OF TIGARD TRANSPORTATION DISTRICT OF OREGON Digitally signed by Steven b. Steven D.Witter— By: oxer zoil.97.�R 130813-0Tar By: S4 Steve Witter Name: Stephen Rymer Executive D reCtOr Title: City Manager Date: Date: June 14,2021 APPROVED AS FORM By By Dee Brookshire Tigard City Attorney CFO Date 6/14/2021 Date 10.19.21 APPROVED AS FORM By _ ---r W, _<--- Stephen edshaw,Deputy General Counsel Date