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Resolution No. 09-15 w CITY OF TIGARD, OREGON TIGARD CITY COUNCIL RESOLUTION NO. 09- Jt A RESOLUTION OF THE CITY COUNCIL APPROVING A CONTINUING CONTROL AGREEMENT WITH TIMET FOR THE WESTSIDE EXPRESS SERVICE COMMUTER RAIL PROJECT(WILSONVILLE TO BEAVERTON) WITHIN THE CITY OF TIGARD WHEREAS, the City and Tr Met desire to enter into an agreement for TriMet's continuing control over the>alignment and real property associated with the Commuter Rail Westside Express Service ( ES) project located in the City;and WHEREAS,this continuing control is requited to satisfy the requiretiients of the Federal Transit Administration (FTA) as set forth in 49 U.S.0 5 5307(d)(1)(B) and WHEREAS,the agreement will enable TriMet to construct,maintain and operate the project within the City. NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The agreement attached as Exhibit A to this Resolution is hereby approved., and the City Manager is authorized to sign the agreement documents. SECTION 2. This resolutioniseffective immediately upon passage. t-kl PASSED:This j24 day of � ,2009. N"-City of Tigard ATTEST: City Recorder-City of Tigard i:\cnglguslresolutionsl200913-24-09 resolution approving a continuing control agreement with trimct for commuter rail operation res,doc RESOLUTION NO. 09 / Page 1 .4 EXHIBIT A T ET/CITY OF TIGAR.D CONTINUING CONTROL AGREEMENT WESTSIIIE EXPRESS SERVICE/WILSONVILLE TO BEAVERTON COMMUTER RAIL PROJECT This continuing control agreement(the"Agreement")is made and entered into by and between Tri-County Metropolitan Trans ortat on District of Oregon,a mass transit district organized under the laws of the State of Oregon("TriMet"), and the City of Tigard,a municipality in the State of Oregon("City") (jointly referred to herein as"the Parties"), as of the effective date shown below. RECITALS A. In 1996, Washington County("County"),the cities of Beaverton„Tigard, Tualatin, Wilsonville, and Sherwood, and TriMet, Metro and the Oregon Department of Transportation("ODOT")began studying the feasibility of a commuter rail line in a branch rail corridor(which corridor runs in part over real property owned by the City) that parallels interstate 5 and Oregon Highway 217 between Wilsonville and Beaverton (the"Project"). B. In September 1999,the County,under the oversight of the Federal Transit Administration("FTA") began alternatives analysis and an environmental assessment process required by the National Environmental Policy Act of 1970 C NEPA"). An extensive public involvement process was undertaken, which resulted in an indication of public and business support for the Project. C. In May 2000,the Wilsonville-to-Beaverton Transit Center alignment was selected as the locally preferred alternative including the rail line along SW Lombard Avenue between SW Farmington Road and the Beaverton Transit Center. D. Final environmental assessment was published on January 23, 2001, followed by a Finding of No Significant Impact("FONSI")issued by FTA on March 22; 2001 with an addendum issued on April 9, 2001. On May 7, 2004,FTA authorized the commencement of final design,and the Project now is nearly complete with an expected opening for revenue service in February of 2009. E. On October 30,2006, TriMet entered into a Full Funding Grant Agreement ("FFGA")with FTA for acquisition, construction, operation,and maintenance of the Project. F. Upon completion of construction of the Project, TriMet intends to commence commuter rail service to areas under City's jurisdiction. G. The Parties now desire to enter into this Agreement for TriMet's continuing control over the alignment and real property located in the City. The Parties have the authority to enter into Intergovernmental Agreements pursuant to ORS Chapter 190.. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed by and between the Parties as follows: AGREEMENT I To satisfy the continuing control requirements of the FTA as set forth in 49 U.S.C. § 5307(d)(1)(B),the City hereby grants to TriMet a permanent permit over, under,and above only those portions of the City's public right-of-way upon which the Project's facilities,features, or both are sited (the "Property"),which Property is needed for the purpose of construction,operation, and maintenance of the Project. Subject to the terms of this Agreement, the City agrees to take no action that would interfere with TriMet's continuing control of the Project structures, equipment, or facilities,provided that use by TriMet will be subject to the City's pen-nit process with respect to construction and maintenance within the Property as provided in this Agreement. This grant will be in perpetuity and irrevocable, except that,in the event TriMet intends to permanently cease to operate the Project on the Property,TriMet shall give 30 days prior written notice to City of such intent. Upon receipt of such notice,the City may revoke the continuing control rights granted herein and require TriMet to restore the Property to its original condition. 2. , The Parties agree that the purpose of this Agreement is to enable TriMet to construct, maintain, and operate the Project in accordance with Project plans and specifications and the terms of this Agreement. The Parties agree that the Project is to be constructed utilizing, in part,federal funds provided to TriMet by FTA pursuant to the FFA No. OR-03-0107-04, and that the federal government retains a continuing interest in all structures, equipment, and other facilities acquired or constructed with federal funds that may be located in or upon the Property generally shown in Exhibit 1. TriMet's interest in the Property may not be assigned or transferred without FTA's written concurrence. 3. The City shall retain ownership of the Property and, to the extent permitted by 49 U.S.C. § 5307(d)(1)(B),control of utility easements,property leases, private crossing agreements, and utility franchise rights. 4. TriMet shall have the right to construct,maintain, and operate the Project on the Property, provided that TriMet shall cause its contractor to obtain an access permit from the City prior to any construction. The City will have the right to review the construction plans and specifications for any construction to occur on the Property and for structures partially or entirely located on the Property. 5. The City shall not charge TriMet or the Project a fee for use of or access to the Property. However,the Parties acknowledge and agree that if Trimet were to pay for the Property, the payments would be costs allowable under a Federal grant. In consideration for the continuing control rights granted herein, TriMet agrees to maintain 2 50014-36794 Tigard ConanningContridAgmement-Finid 3-4.09Aic the Property in a reasonable operating condition that does not threaten the health or safety of the general public so long as it operates under this Agreement. 6. The City agrees that it shall not impair TriMet's rights under this Agreement. In addition,the City staffagrees to propose for enactment or amendment, as necessary and consistent with state law, local ordinances,rules, and regulations establishing TriMet's authority to construct, operate, and maintain the Project upon the Property in accordance with the rights afforded herein. The Parties do not anticipate that any ordinances,rules, or regulations are necessary to effectuate the rights granted by this Agreement, other than the approval of this Agreement by the City Council. However,in the event that the Parties determine such ordinances, rules, or regulations are necessary, prior to adopting or amending such ordinances,rules, or regulations, the City shall give TriMet an opportunity for review, and to be heard regarding their contents. To the extent not provided in existing ordinances,rules, or regulations, to satisfy the continuing control requirements granted herein,the,City staff agrees to propose for enactment regulations which would: A. Restrict interference associated with impeding or preventing the safe and efficient operation of the Project caused by construction and maintenance activities of private parties on private property and public right-of-way to only temporary interference necessitated by construction activity of the City or others. B. Allow TriMet to review and comment on design plans and specifications before permitting construction of any private property driveways or other access ways that turn into or intersect the Project Property. The City shall not approve any plan or specification that would prohibit TriMet from operating commuter rail on the Property or Project alignment. C. Allow TriMet to review and comment on design plans and specifications before constructing any street or way that turns into or intersects the Project Property. The City shall not approve any plan or specification that would prohibit TriMet from operating commuter rail on the Property or Project alignment. D. Protect the commuter rail line from interference by parked or other encroaching vehicles. Parking immediately adjacent to the commuter rail line shall be prohibited. E. Notify TriMet of any proposed future changes by the City, or which are proposed to be approved through permit by the City, including traffic control measures,that may affect the operation and continuing control of the Commuter Rail alignment,and work with TriMet to mitigate the impact of such change on operation of the system. 3 50014-36794 7igardCoiiiiiyuingCatitro[Agreenteni-rin.1-3-4-09.doc F. Require any utility construction within the Commuter Rail corridor to use methods that, to the extent feasible, allow Commuter Rail system operations to continue during construction. G. Grant authority to TriMet to have immediate access to the Commuter Rail system in order to perform all required construction, operation, and maintenance of the system, subject to the City's design review and pennitting process,which may include reasonable and necessary conditions of approval,provided that such process will not prevent the implementation and continuing control of the Project. 7. The Parties understand that temporary interferences for emergencies, construction repairs, and maintenance of the City streets and other public or private facilities,parades, or civic events may occur, provided that the City shall, except in emergency situations where no notice is feasible,provide TriMet with reasonable notice of temporary interference and shall cooperate with TriMet representatives to minimize the interference and, if possible for portions of the Commuter Rail alignment that are double-track,provide that only one track is affected by the interference at any one time. 8. This Agreement, including any interests herein, shall not be assignable without the City's prior written consent. However, if any public body acquires or succeeds TriMet, TriMet's interest, right, and obligations created by this Agreement will be assignable by TriMet, with FTA written approval,to the public body that acquires or succeeds TriMet. 9. All notices required under this Agreement will be deemed to be properly served if sent by U.S. mail to the last representative of the Party identified below in this paragraph. Until hereafter changed by the Parties by notice in writing, notices shall be sent: IF TO THE CITY: IF TO TRI ET: Craig Prosser Manager of Real Property Acquisition City Manager TriMet City of Tigard Capital Projects and Facilities Division 13125 SW Hall Blvd 710 NE Holladay St. Tigard, OR 97223 Portland, OR 97232 10. Any modification to this Agreement shall be mutually agreed upon and reduced to writing,and will not be effective until signed by the Parties hereto. 11. To the extent permitted under the Oregon Tort Claims Act and the Oregon Constitution, each Party shall save,hold harmless and indemnify the other Party from any and all claims, suits, or actions at law or inequity, including attorneys' fees and court 4 50014-36794 77gardContinuing Control Agreement-Finid-3-4-09.doc b casts, which may arise out of an injury to or death or persons or damages to property caused by the Party's negligence in the exercise of any right or privilege granted or conferred by this Agreement. 12. The Parties agree that each party and its respective successors or assigns may avail itself of any remedy at law or in equity to enforce or preserve the rights conferred and obligations assumed by the respective parties herein, and to obtain compensation for any damages or loss incurred as a result of breach by the other party of any provision contained herein. 13. The provisions of this Agreement shall be construed according to the applicable previsions of Oregon law. Litigation to enforce any provision of this Agreement shall be conducted in the Circuit Court of the State of Oregon for Washington County. 14. If any provision of this Agreement is in conflict with any applicable statute,rule of law, or regulation,then such provision shall be deemed to be null and void to the extent that it may conflict therewith but without invalidating the remaining provisions hereof. 15. This Agreement shall be effective upon the date signed by both parties. IN WITLESS HEREOF, the Parties hereto have executed this Agreement as of the effective date. TRENAET CITY OF TIGARD By: By Neil McFarlane Craig Prosser Executive Director City Manager Approved as to Form; Approved as to Form. For TriMet For City By: By: Britney Colton Timothy V. Ramis Deputy General Counsel City Attorney 5 30014-3679,E Tigard Continuing Control Agreement'-Final 3.4.09.doc Beaverton k k,a i,`(E JI SI if tIs°af(s! Mall/Nimbus Washington Square Mall V , Tigard T ,° Portion of aligrunent within City of Tigard jurisdiction } s b.,dtfaxtc����F� Tualatin Yet s ES commuter rail line WES stations s; 0 Existing MAXlight rail stations MAX Blue Line: eRTH Gresham-Hillsboro MAX Red Lute: Airport-Beaverton TC Tigard Continuing Tc Transit Center Control Agreement 4 Wof.= Cutter railroad Exhibit 1 Wilsonville � � TriMet:boundary