Authorize the City Attorney to take legal action against TriMet and other construction and design entities to recover costs for necessary remediation and repair that have been and will be expended by the City due to the atypical settling for the Streetcar SE 2nd Approach Structure

WHEREAS, in 1988 the City of Portland Central City Plan created a vision for an "Internal Transit Loop," which would create a public transportation system that connects in a continuous loop the west and east sides of the City of Portland over the Willamette River; and WHEREAS, in 2012 the City began service on the Streetcar Loop Extension from SW Market Street to the Oregon Museum of Science and Industry ("OMSI") which provided a northerly Streetcar Loop crossing of the Willamette River via the Broadway Bridge and provided service to the eastside of Portland in preparation for full loop service; and WHEREAS, the City constructed the SE 2 nd Approach Structure as part of the south approach embankment at the SE terminus of the Eastside Streetcar service; and WHEREAS, the City hired engineers, design, and construction professionals including but not limited to David Evans and Associates, Inc. and Stacy and Witbeck, Inc. to design and construct the SE 2 nd Approach structure; and WHEREAS, the SE 2 nd Approach Structure was completed in 2013 and served as the SE terminus of the Streetcar; and WHEREAS, the City and TriMet then cooperatively pursued the vision of completing the “Internal Transit Loop”; and WHEREAS, in 2013, TriMet began construction for the Portland-Milwaukie Light Rail Transit Project to extend service through the South Waterfront District, across the Tillicum Bridge and through Southeast Portland and the City of Milwaukie; and WHEREAS, the City and TriMet endeavored to “close the loop” for the Streetcar as part of the Portland-Milwaukie Light Rail Transit Project; and WHEREAS, the City entered into an Intergovernmental Agreement (IGA), TriMet Contract No. GH130434 BC, also known as the Eastside Streetcar Close the Loop project, and attached hereto as Exhibit A, wherein TriMet agreed to make improvements to the OMSI Station platform and SE 2 nd Approach Structure as part of the Portland-Milwaukie Light Rail Transit Project; and WHEREAS, the scope of the Eastside Streetcar Close the Loop project required TriMet to design and construct improvements to the OMSI Station platform and approach, including the construction of a new retaining wall in SE 2nd Place, the widening of the approach structure to accommodate the installation of an additional Streetcar track, the provision and installation of an overhead catenary system, the provision of Automatic Train Stop equipment, and the installation of signal connections on and off the east end of the Project; and WHEREAS, the IGA required TriMet to design and construct the project and hire all design and construction professionals to complete the scope of work; and WHEREAS, TriMet delivered the completed Project to the City in 2015; and WHEREAS, the City hired a geotechnical engineer to investigate and monitor unanticipated settlement of the Project after delivery; and WHEREAS, the geotechnical investigation recently released preliminary findings indicating the unanticipated settlement requires repair and remediation; and WHEREAS, the law provides a remedy for the City to recover costs attributable to the acts and omissions of those responsible for the settlement and repair of the SE 2 nd Approach Structure; and WHEREAS, it is in the public interest for the City to recover public funds expended because of breaches of contract, failure to adhere to applicable professional standards of care and / or negligence on behalf of others; NOW, THEREFORE, BE IT RESOLVED, that, the City Attorney or his designee is authorized to commence an action in any competent tribunal to protect the City’s rights and recover damages and any other relief against TriMet and any and all design professionals, engineers, and contractors for which there is a good faith basis to assert legal claims, and to pursue to conclusion in any higher tribunal and to make any stipulation, agreement, or admission as in his judgment may be in the best interest of the City. The City Attorney is further authorized to retain outside counsel to assist in the prosecution of such litigation if in his judgment doing so is in the best interest of the City.