IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF CLACKAMAS TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a municipal corporation, v. Plaintiff, CLACKAMAS COUNTY, a political subdivision of the State of Oregon; and NORTH CLACKAMAS PARKS AND RECREATION DISTRICT, a county service district, Defendants. Case No. COMPLAINT FOR DECLARATORY JUDGMENT, BREACH OF CONTRACT, AND SPECIFIC PERFORMANCE NOT SUBJECT TO MANDATORY ARBITRATION Amount in Controversy: > $1,,0 EXPEDITED CONSIDERATION REQUESTED For its Complaint against Defendant Clackamas County ("County") and Defendant North Clackamas Parks and Recreation District ("District"), Plaintiff Tri-County Metropolitan Transportation District of Oregon ("TriMet") alleges as follows: VENUE 1. Venue is proper under ORS.00. PARTIES. TriMet is a municipal corporation and a mass transit district organized under the laws of the State of Oregon. Page 1 COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
Oregon.. Defendant County is a municipal corporation and a political subdivision of the State of. Defendant District is a county service district of Clackamas County organized under ORS Chapter 1. COMMON ALLEGATIONS. TriMet provides bus, light rail, and commuter rail services in the Portland Metropolitan area, and carries more people than any other U.S. transit district its size. TriMet operates the -mile Metropolitan Area Express ("MAX") light rail system with stations in Multnomah, Clackamas, and Washington Counties. An expansion of the MAX system, the Portland- Milwaukie Light Rail Transit Project ("Project"), is currently in the design and construction phase. The Project will create a light rail alignment that travels. miles, connecting Portland State University in downtown Portland, inner Southeast Portland, Milwaukie, and north Clackamas County.. The Project is the result of the cooperative efforts of partners from all levels of government federal, state and local and reflects over a decade of collaboration for the benefit of the entire region. The County has been an active participant in the process from its inception to the selected final design.. The County's commitment was reconfirmed when the Locally Preferred Alternative was adopted in 0. The County, along with the District, again committed to the Project in March, when TriMet, the County, and the District entered into an Intergovernmental Grant Agreement ("IGA") (attached to this Complaint as Exhibit 1). The IGA provides for the rights Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
and obligations of the parties with respect to funding preliminary engineering, final design, and construction for the Project.. In August, the County and TriMet entered into a Supplemental Agreement ("Supplemental IGA") (attached to this Complaint as Exhibit ) concerning the County's share of funding of the Project, and peimit fees and development charges.. The IGA and Supplemental IGA obligate TriMet to undertake the engineering, design, and construction of the Project.. The IGA and Supplemental IGA obligate the County to take various actions, including transferring funds to TriMet as payment for the County's share of the costs of final design and construction of the Project; processing land use permits associated with the Project; transferring a parcel of land to TriMet; and funding road improvements.. The IGA obligates the County and the District to use best efforts to ensure the Project is planned, designed, and constructed in accordance with the provisions of the IGA. The IGA further obligates the County and the District to act reasonably and in good faith and to fully cooperate and coordinate with TriMet in fulfilling its responsibilities with respect to the design, construction, and financing of the Project.. In April, the District and TriMet entered into an Intergovernmental Agreement for Design and Construction Services for Trolley Trail Segment ("Trolley Trail IGA") (attached to this Complaint as Exhibit ) which authorized TriMet to begin preconstruction and other construction activities for the Project on real property belonging to the District and located Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
between S.E. River Road and S.E. Park Avenue, adjacent to McLoughlin Boulevard, in Clackamas County ("Trolley Trail Property"). Before the effective date of the IGA, Supplemental IGA, and Trolley Trail IGA, TriMet, the County, and the District each passed appropriate ratifying resolutions.. Construction of the Project is continuing at multiple locations in Multnomah and Clackamas Counties, including on the Trolley Trail Property. MAX service on the new line is set to begin in.. On September,, pursuant to the terms of the IGA and Supplemental IGA, the County made a funding contribution of $,,0 to the Project.. On September,, County voters approved Ballot Measure -01, captioned "Voter Approval of County Resources for Public Rail Transit Systems." The text of the measure, codified at Clackamas County Code ("County Code") 1.0.0 and as subsequently amended by the Clackamas County Board of County Commissioners, is as follows: Page COMPLAINT 1.0.0 Election Required A. The Board of County Commissioners may not authorize the use of county resources for the financing, design, construction or operation of any public transit system without first obtaining the approval of county voters at an election on an authorization ordinance. "County resources" shall include any public funds, staff time, lobbying agreements, property interests or other tangible or intangible county assets, and the right to direct or permit the use of such resources. Nothing in this section shall be constructed to prohibit the use of county resources for the protection of public health, safety and welfare. B. Any authority extended to the Board of County Commissioners by an election held under section (A), shall be strictly limited to the parameters of the authorization ordinance. An authorization ordinance submitted to voters under section (A) 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
must provide sufficient public notice of the authority conveyed and shall not be effective unless the following parameters are specified: 1. the types of county resources to be authorized;. the permissible uses of such resources;. the estimated cash value of any authorized resources and any associated personnel costs; and. the duration of the authority extended. Sufficient public notice for an authorization ordinance is provided to county voters if the certified ballot title accurately summarizes the authorized parameters and provides a link to a detailed description hosted on a county website. If sufficient public notice cannot be accomplished in the manner above, the county shall provide such information to voters by mail at least days in advance of the election. C. This measure shall become immediately effective upon passage. If any provision of this measure is barred from operation by superior law, the other provisions shall remain unaffected. Sections (A) and (B) shall be codified into Title I of the Clackamas County Code in a new chapter entitled "Reserved Powers.". The Clackamas County Board of County Commissioners has announced an intention to require approval of County voters at an election on an authorization ordinance on May, ("Authorization Ordinance"), allegedly pursuant to County Code 1.0.0. The County states that the vote is a prerequisite to performing certain remaining obligations under the IGA and Supplemental IGA. The County states that if voters approve the Authorization Ordinance: (a) The County will execute a funding agreement funding $1,,0 in road and signalization improvements in the vicinity of Park Avenue, Oatfield Road, and McLoughlin Boulevard. According to the Ballot Title Explanatory Statement, TriMet will pay $,0 of the amount in Systems Development Charges, while the remainder will come from the County Road Fund. All of these improvements were previously set forth in the County Transportation System Plan. Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
(b) The County will transfer to TriMet property described as Tax Lots ECD000 and ECD000, approximately, square feet in size, for which the County will be credited $,. (c) The County will transfer to TriMet a parcel of land of approximately, square feet in size, for the sum of $1,0. (d) The County will execute a Continuing Control Agreement providing that TriMet will control any portions of county-owned streets and sidewalks that will be occupied by light rail tracks or stations. According to the Ballot Title Explanatory Statement, this agreement is required by the Federal Transit Administration. FIRST CLAIM FOR RELIEF DECLARATORY JUDGMENT AGAINST COUNTY (PROSPECTIVE APPLICATION). TriMet incorporates by reference the allegations of paragraphs 1 through as if fully set forth herein.. TriMet's rights are affected by County Code 1.0.0 insofar as the ordinance, as interpreted by the County, alters the County's perfonnance of its obligations under the IGA and Supplemental IGA. On that basis, TriMet has standing under ORS.0 and is entitled to a determination of the construction and validity of County Code 1.0.0.. TriMet contends that County Code 1.0.0 applies prospectively only and does not place any conditions on or otherwise change or eliminate the County's obligations under the IGA and Supplemental IGA. Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
. The County contends that County Code 1.0.0 has retroactive application and, on that basis, requires the approval of County voters at an election on the Authorization Ordinance as a precondition to performing its contractual obligations under the IGA and Supplemental IGA.. An actual controversy exists regarding the construction and validity of County Code 1.0.0, and TriMet is entitled to a declaration that County Code 1.0.0 is prospective only in its application and does not affect to the County's obligations under the IGA and Supplemental IGA. Time is of the essence and TriMet requests expedited consideration. SECOND CLAIM FOR RELIEF DECLARATORY JUDGMENT AGAINST COUNTY (IMPAIRMENT OF CONTRACT AND INITIATIVE POWER). TriMet incorporates paragraphs 1 through and as if fully set forth herein.. TriMet contends that, if County Code 1.0.0 applies retroactively: (a) County Code 1.0.0, as interpreted by the Board of County Commissioners, and the proposed Authorization Ordinance, unconstitutionally impair contracts under Article I, Section of the United States Constitution, and Article I, Section of the Oregon Constitution, insofar as they change or eliminate the County's obligations under the IGA and Supplemental IGA; and (b) Ballot Measure -01, as codified at County Code 1.0.0, and as interpreted, applied and implemented by the Board of County Commissioners, is unenforceable because it exceeds the power of the initiative and referendum process under Article IV, Section 1() of the Oregon Constitution, by intruding into the general administrative and executive functions of County governance. Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
. The County contends that County Code 1.0.0 and the Authorization Ordinance do not violate either the United States Constitution or the Oregon Constitution.. An actual controversy exists regarding the construction and validity of County Code 1.0.0 and the Authorization Ordinance, and TriMet is entitled to a declaration that County Code 1.0.0 and the Authorization Ordinance are unconstitutional and void insofar as they apply to the County's contractual obligations under the IGA and Supplemental IGA. Time is of the essence and TriMet requests expedited consideration. THIRD CLAIM FOR RELIEF DECLARATORY JUDGMENT AGAINST COUNTY (IGA AND SUPPLEMENTAL IGA). TriMet incorporates paragraphs 1 through and as if fully set forth herein.. TriMet contends that, if County Code 1.0.0 applies retroactively and is otherwise valid, the County's remaining, unperformed obligations under the IGA and Supplemental IGA are exempted from approval by County voters by the express terms of County Code 1.0.0 to the extent that those obligations (a) do not constitute use of County resources for the financing, design, construction or operation of a public transit system, and/or (b) constitute use of County resources for the protection of public health, safety and welfare.. The County contends that it is unable to perform any of its remaining contractual obligations under the IGA and Supplemental IGA until it obtains the approval of Clackamas County voters at an election on the proposed Authorization Ordinance, due to the requirements of County Code 1.0.0. Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
0. An actual controversy exists regarding the construction of the IGA and Supplemental IGA in light of County Code 1.0.0, and TriMet is entitled to a declaration that County Code 1.0.0 does not require voter approval to the extent that the County's remaining obligations (a) do not constitute use of County resources for the financing, design, construction or operation of a public transit system, and/or (b) constitute use of County resources for the protection of public health, safety and welfare. Time is of the essence and TriMet requests expedited consideration. FOURTH CLAIM FOR RELIEF BREACH OF CONTRACT AGAINST COUNTY 1. TriMet incorporates the allegations of paragraphs 1 through as if fully set forth herein.. The County has breached the IGA and Supplemental IGA in one or more of the following particulars: (a) failing to fund $1,,0 in improvements to roads and signals in the vicinity of Park Avenue, Oatfield Road, and McLoughlin Boulevard, using the County Road Fund, and Systems Development Charges paid by TriMet, and failing to enter into a related intergovernmental agreement, as required by Paragraph of the Supplemental IGA; (b) refusing to perform its remaining duties under the IGA and Supplemental IGA until it obtains the approval of County voters at the election on the Authorization Ordinance; (c) failing to use best efforts to ensure the Project is planned, designed, and constructed in accordance with the IGA and Supplemental IGA; and (d) failing to act reasonably and in good faith and fully cooperate and coordinate with TriMet in fulfilling its responsibilities with respect to the design, construction, and financing of the Project. Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
. All conditions precedent to the County's performance have been performed, waived, or excused.. As a result of the County's breach of contract, TriMet has been and will continue to be damaged in the amount of $1,,0, plus pre judgment interest. Time is of the essence and TriMet requests expedited consideration. FIFTH CLAIM FOR RELIEF SPECIFIC PERFORMANCE AGAINST COUNTY. TriMet incorporates the allegations of paragraphs 1 through as if fully set forth herein.. At all relevant times, the County has been the owner of real property located in Clackamas County described at Exhibit H of the Supplemental IGA (the "County Property").. In exchange for consideration recited in the IGA and Supplemental IGA, the County agreed to convey the County Property to TriMet. The agreed closing date of the conveyance was to be December,.. All conditions precedent to the County's performance have been performed, waived, or excused.. TriMet has demanded that the County convey the County Property under the terms of the IGA and Supplemental IGA. The County has refused and continues to refuse to convey to TriMet the County Property. Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//L1/-00
0. TriMet has no adequate remedy at law to enforce the agreement to convey the County Property other than specific performance, and is entitled to specific performance by court decree (a) ordering the County to convey the County Property to TriMet, and (b) retaining continuing jurisdiction over the performance of this and other obligations under the IGA and Supplemental IGA. Time is of the essence and TriMet requests expedited consideration. SIXTH CLAIM FOR RELIEF SPECIFIC PERFORMANCE AGAINST DISTRICT 1. TriMet incorporates the allegations of paragraphs 1 through as if fully set forth herein.. TriMet has requested that the District enter into an agreement to convey the Trolley Trail Property to TriMet for the Project, consistently with the District's duties under the IGA and Trolley Trail IGA. In exchange for the transfer, TriMet has offered to convey to the District an adjacent property, to construct a trail on that property at no cost to the District, and to provide the District with additional compensation. To date, the District has refused to enter into such an agreement.. The Clackamas County Board of County Commissioners, sitting as the Board of the District, has announced an intention to conduct an advisory vote of voters within the District boundary. The vote will occur on May,, and will ask voters whether the District should proceed with the transfer of the Trolley Trail Property to TriMet. The District acknowledges that it is not subject to County Code 1.0.0, and that it is not required to obtain voters' prior approval of the transfer. Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
particulars:. The District has breached the IGA and Trolley. Trail IGA in one or more of the following (a) refusing to enter into an agreement to transfer the Trolley Trail Property to TriMet for the Project until it conducts an advisory vote by District voters on May, ; (b) failing to use best efforts to ensure the Project is planned, designed, and constructed in accordance with the IGA and Trolley Trail IGA; and (c) failing to act reasonably and in good faith and fully cooperate and coordinate with TriMet in fulfilling its responsibilities with respect to the design, construction, and financing of the Project.. All conditions precedent to the District's performance have been performed, waived, or excused.. TriMet has no adequate remedy at law to enforce the IGA and Trolley Trail IGA other than specific performance, and is entitled to specific performance by court decree (a) ordering the District to convey the Trolley Trail Property to TriMet, and (b) retaining continuing jurisdiction over the performance of this and other obligations under the IGA and Trolley Trail IGA. Time is of the essence and TriMet requests expedited consideration. WHEREFORE, Plaintiff requests relief as follows: (1) On its First, Second, and Third Claims for Relief against the County, that the Court declare: (a) The IGA and Supplemental IGA are valid and enforceable under state law and County ordinances; (b) The County is obligated to perform the duties set out in the IGA and Supplemental IGA without first obtaining the approval of county voters; and Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00
(c) County Code 1.0.0 and the vote on the Authorization Ordinance do not affect the validity of the IGA and Supplemental IGA, or any portion thereof, or TriMet's or the County's obligations thereunder; () On its Fourth Claim for Relief, judgment against the County in an amount of $1,,0, plus prejudgment interest; () On its Fifth Claim for Relief, an order decreeing that the County shall convey the County Property to TriMet, as set forth in the IGA and Supplemental IGA, and that the Court shall retain continuing jurisdiction over the performance of this and other obligations under the IGA and Supplemental IGA; () On its Sixth Claim for Relief, an order decreeing that District shall convey the Trolley Trail Property to TriMet, and that the Court shall retain continuing jurisdiction over the performance of this and other obligations under the IGA and Trolley Trail IGA; and () Such other relief as the Court deems appropriate. DATED this th day of March,. By: / Steven K. Bladkhurst, OSB #0 E-mail: skb@aterwynne.corn Lori Irish Bauman, OSB # E-mail: lib@aterwynne.com Tel: 0/-; Fax: 0/-00 Attorneys for Plaintiff Tri-County Metropolitan Transportation District of Oregon TRIAL ATTORNEY: Steven K. Blackhurst Page COMPLAINT 1 NW LOVEJOY STREET, SUITE 00 PORTLAND, OR -0 (0) - 00//LIB/-00