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RIGINAL
T-,RI VIET/CITY OF TIGARD
CONTINUING CONTROL AGREEMENT
WESTSIDE EXPRESS SERVICE/WILSONVILLE TO BEAVERTON
COMMUTER RAL PROJECT
This continuing control agreement(the "Agreement") is made and entered into by
and between Tri-County Metropolitan Transportation 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 1date 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 ("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,
-- 200.1 with,-an:addelidurn issued on April 9, 200L. On,May 7, 2004, FTA authorized the
comrnenceinentof'final Aesign;.and the Project now is nearly-coniplete 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.
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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,
1. To satisfy the continuingcontrol.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 permit 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
FFGA 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
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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 staff agrees 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.
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500/4-36794 Tigard Continuing Control Agreement-Final 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: Grant7 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
permitting 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, TriMe't'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 TRIMET:
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
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50014-36794 Tigard Continuing Control Agreement-Final 3-4-09.doc
costs, 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 provisions 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 WITNESS HEREOF, the Parties hereto have executed this Agreement as of the
effective date.
TRIMET CITY OF
By: By:
Neil McFarlane Craig#6ser
Executive Director City Manager
Approved as to Form: Approved as to Form:
For Tri et For City
� P
By: B.
Britney Co on imothy V. Ramis
Deputy G neral Counsel City Attorney
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500/4-36794 Tigard Continuing Control Agreement-Final 3-4-09.doc
TC Beaverton
BeavertOn-Hillsdalo h!viy
Hall/Nimbus Washington Square Mall
TC
Tigard rc �'ii7j
Portion of alignment
within City of Tigard
jurisdiction
I u;I[acin Rd
r�ril�tl�,Rtve�
Tualatin. ~
® WES
commuter'rail line
O WES stations
Q Existing MAX light rail
g stations
— MAX Blue Line:
NORTH Gresham-Hillsboro
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MAX Red Line:
Airport-Beaverton TC
Tigard Continuing
Control Agreement T� Transit Center
Other railroad
Exhibit 1 Wilsonville
TriMet boundary
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COPY
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T R I E TT: 'D,'c• e�
April 28, 2009
Jennifer De Gregorio
Jordan Schrader
2 Centerpointe 6th Floor
Lake Oswego, OR 97035
Re: Contract No. TriMet Con ct: GH090202TL
Continuing Control agreem t —Westside Express ServiceMilsonville to
Beaverton Commuter Rail Pro ct
Dear Ms. De Gregorio:
Enclosed is one fully executed copy of the doc ent referenced
above. Please retain this copy for your files.
If you have any questions, please contact me at (503 62-2202.
aura Corey
Contracts
Procurement Department
Enclosure
cc: Steven Witter
Britney Colton
Tri-County Metropolitan Transportation District of Oregon • 710 NE Holladay Street,Portland,Oregon 97232 • 503-238-RIDE • TTY 503-238-5811 • trimet.org
C-.CY 11 CAA
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