HomeMy WebLinkAbout2017-153 Co Manager - GoTriangle for cost sharing for the Durham-Orange Light Rail Transit Project PfiF YZ07 a bl �s3
ORANGE COUNTY,DURHAM COUNTY,
AND RESEARCH TRIANGLE REGIONAL PUBLIC TRANSPORTATION AUTHORITY
INTERLOCAL AGREEMENT FOR COST SHARING
FOR THE DURHAM-ORANGE LIGHT RAIL TRANSIT PROJECT
This Interlocal Agreement for Cost Sharing for the Durham-Orange Light Rail Transit (D-O LRT)
Project (Agreement) dated April 2, 2017, is entered into by and between Orange County (Orange), a
political subdivision of the State of North Carolina, Durham County(Durham),a political subdivision of the
State of North Carolina,and Research Triangle Regional Public Transportation Authority d/b/a GoTriangle
(GoTriangle),a regional public transportation authority.As used in this Agreement,Orange, Durham, and
GoTriangle may be referred to individually as a "Party" and collectively as the "Parties."This Agreement
is made pursuant to Article 20 of Chapter 160A of the North Carolina General Statutes (N.C.G.S.) and
N.C.G.S. § 105-508.1.
RECITALS:
WHEREAS, all Parties desire to provide for the future transportation needs of Durham and
Orange, understanding that enhanced mobility options will support a high quality of life, strengthen
economic development, and promote sustainability; and
WHEREAS,the Durham County Board of County Commissioners approved the first Durham County
Bus and Rail Investment Plan on June 27, 2011(Durham BRIP); and
WHEREAS, Orange, Durham, and GoTriangle entered into the original Interlocal Agreement for
Cost Sharing for the D-O LRT Project on May 15, 2012 (2012 Cost Sharing Agreement); and
WHEREAS, the Orange County Board of County Commissioners approved the first Bus and Rail
Investment Plan in Orange County on October 2, 2012 (Orange BRIP); and
WHEREAS, the Durham-Chapel Hill-Carrboro Metropolitan Planning Organization (DCHC MPO)
approved the Durham BRIP on June 22,2011,and the Orange BRIP on October 10,2012(Orange BRIP and
Durham BRIP collectively, County BRIPs); and
WHEREAS, the GoTriangle Board of Trustees (GoTriangle Board) approved the Durham BRIP on
June 22, 2011, and approved the Orange BRIP on June 27, 2012; and
WHEREAS, the D-O LRT Project was included in both County BRIPs as a major capital investment;
and
WHEREAS, the Federal Transit Administration (FTA) issued its Record of Decision (ROD) for the
D-O LRT Project on February 11,2016, and an Amended ROD on December 14, 2016; and
WHEREAS, in accordance with the FTA approvals, the D-O LRT Project is a 17.7-mile, 18-station
light rail transit service which will provide connections between University of North Carolina (UNC)
Hospitals,the UNC campus, the William and Ida Friday Center for Continuing Education, Patterson Place,
the South Square area, Duke University,the Duke University and Durham Veterans Affairs Medical Centers,
downtown Durham, east Durham, and North Carolina Central University; and
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WHEREAS, GoTriangle is seeking funds from FTA's Capital Investment Grant (CIG) Program
(49 U.S.C. §5309)for the D-0 LRT Project; and
WHEREAS, the D-O LRT Project Cost Estimate which is eligible for federal participation, including
costs related to project development, engineering, construction, testing, commissioning, start-up, and
financing costs through the anticipated final year of disbursement of federal funds(projected to be 2032),
is$2,476.3 million year of expenditure(YOE) (New Starts Project Cost); and
WHEREAS,GoTriangle receives and uses public monies,pursuant to N.C.G.S.Chapter 105,Articles
43, 50, 51, and 52, to fund public transportation in GoTriangle's jurisdiction, including the planning,
financing,construction, maintenance, and operation costs of the D-0 LRT Project; and
WHEREAS, there are four dedicated local revenue sources used to fund the D-0 LRT Project and
other new transit projects and services in Durham and Orange: (1)Article 43 Half-Cent(0.5 percent)Sales
and Use Tax; (2) Article 50 Five-Percent (5 percent) Vehicle Rental Tax; (3) Article 51 Three-Dollar ($3)
increase to GoTriangle Regional Vehicle Registration Fee; and (4) Article 52 Seven-Dollar ($7) County
Vehicle Registration Fee (collectively, Dedicated Local Transit Revenues); and
WHEREAS, in light of changes to the original funding assumptions in the County BRIPs,the Parties
have revised their funding strategy for the D-0 LRT Project as follows: federal (50 percent [$1,238.15
million YOE]),state(10 percent[$247.63 million YOE]),and local/other(40 percent[$990.52 million YOE]);
and
WHEREAS, in order for the D-O LRT Project to advance to the Engineering Phase of the CIG
Program (Engineering Phase), at least 30 percent of the non-CIG share of the D-0 LRT Project
($371.4 million YOE) must be committed at entry to the Engineering Phase; and
WHEREAS,the Parties acknowledge that the total non-CIG share of the New Starts Project Cost is
$1,238.15 million YOE,of which$887.9 million YOE(71.7 percent) is committed from the Dedicated Local
Transit Revenues;and
. WHEREAS, the Parties acknowledge that one hundred percent (100%) of non-CIG funds must be
committed prior to GoTriangle's application for a Full Funding Grant Agreement (FFGA), which is
anticipated to be submitted to FTA in calendar year 2019; and
WHEREAS, on February 16, 2017, GoTriangle received guidance from FTA explaining that
additional documentation would be necessary to update the estimated D-0 LRT Project cost in the County
BRIPs, and to confirm that at least 30 percent of the non-CIG share (at least $371.4 million YOE) is
committed; and
WHEREAS, the Parties acknowledge material changes to the County BRIPs have occurred, as
defined in the 2012 Interlocal Implementation Agreement for Orange County Bus and Rail Investment Plan
and the 2013 Interlocal Implementation Agreement for Durham County Bus and Rail Investment Plan,
prompting the Parties to revise the County BRIPs; and
WHEREAS, on 14 ,the Durham County Board of County Commissioners adopted the
updated Durham County ransit Plan(2017 Durham Plan)and authorized the execution of this Agreement;
and
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WHEREAS, on �OOrange County Board of County Commissioners adopted the
updated Orange County T ansit Plan J2017 Orange Plan)and authorized the execution of this Agreement;
and ,p
WHEREAS, on 20 the DCHC MPO Board approved the 2017 Orange Plan and the
2017 Durham Plan (collec ively, 2.017 County Plans); and
WHEREAS, on , Go �.�r� the GoTriangle Board approved the 2017 County Plans and
authorized the execution of this Agreement; and
WHEREAS,the D-0 LRT Project remains a major capital investment of the 2017 County Plans;and
WHEREAS, pursuant to the 2017 County Plans, Orange and Durham mutually desire to allocate
Dedicated Local Transit Revenues for the planning, construction, financing, and operation and
maintenance of the D-0 LRT Project; and
WHEREAS,the Parties intend this Agreement to supersede the May 2012 Cost Sharing Agreement,
to memorialize a D-0 LRT Project cost sharing plan, and to fully satisfy FTA's requirements for entry into
the Engineering Phase; and
WHEREAS, the Parties recognize the importance of the D-0 LRT Project to Orange, Durham, the
Research Triangle region,and the State of North Carolina;
NOW, THEREFORE, the Parties hereto, each in consideration of the mutual promises and
undertakings of the other as herein provided, do hereby covenant and agree, each with the other, as
follows:
1. The effective date of this Agreement is the date first set forth above.
2. This Agreement supersedes the Parties' 2012 Cost Sharing Agreement.
3. The 2017 County Plans are specifically incorporated by reference as if the same were fully
set forth herein.
4. The New Starts Project Cost is$2,476.3 million YOE.The Parties acknowledge that as the
D-0 LRT Project moves from preliminary design (30 percent)to final design(100 percent),
as with any major capital project planned and constructed over a number of years, the
actual capital and financing costs may be subject to change and adjustment.The Parties
acknowledge that entry into the Engineering Phase establishes a maximum CIG funding
share of$1,238.15 million YOE.
5. As set forth in the 2017 County Plans,the Parties agree to pay for the New Starts Project
Cost using a combination of federal (50 percent), state (10 percent), and local/other (40
percent) funding sources. From the Dedicated Local Transit Revenues, and as of the
effective date of this Agreement,the Parties commit a total of$887.9 million YOE to fund
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the New Starts Project Cost (County Contributions). The Parties agree that total County
Contributions shall not exceed 40 percent of the New Starts Project Cost.
6. The share of the County Contributions from the Dedicated Local Transit Revenues
committed by Durham shall be$738.4 million YOE (Durham Share).
7. The share of the County Contributions from the Dedicated Local Transit Revenues
committed by Orange shall be$149.5 million YOE (Orange Share).
8. Without further approval from Orange and Durham, GoTriangle shall allocate and pay for
the Durham Share and the Orange Share of the New Starts Project Cost, including the
planning, engineering, financing, and construction, from the Dedicated Local Transit
Revenues in accordance with this Agreement and the 2017 County Plans.
9. GoTriangle may allocate and pay for the counties' respective shares of the New Starts
Project Cost, including the planning, engineering, financing, and construction, from the
Dedicated Local Transit Revenues on a pay-as-you-go basis and/or by issuing debt with a
par value up to the amount committed in Paragraph 5 above. Consistent with North
Carolina law and the 2017 County Plans, GoTriangle may use the Dedicated Local Transit
Revenues for the purposes of issuing and repaying debt. GoTriangle will allocate debt
attributed to each county as follows: eighty-one and one-half percent(81.5%)for Durham
and eighteen and one-half percent(18.5%x)for Orange.
10. In preparation for submittal of the FFGA application,the Parties shall collaborate among
themselves and with philanthropic, corporate, institutional, non-profit, and other
supporters to secure the remainder of the non-CIG share needed for construction from
sources including,but not limited to: private monetary and in-kind donations,other funds
specifically identified to fund the Joint Development component of the D-O LRT Project,
and additional federal and state funds(as may become available).The Parties understand
that the Financial Plan for the D-O LRT Project must reflect that one hundred percent
(100%) of non-CIG funds are committed prior to GoTriangle's application for a FFGA.
11. The costs to operate and maintain the D-0 LRT system (0&M Cost)will be paid first from
light rail system fare revenues, with any remaining 0&M Cost being paid from the
Dedicated Local Transit Revenues.
12. The division of responsibility for O&M Cost and State of Good Repair cost shall be
allocated as follows: eighty percent (80%) for Durham and twenty percent (20%) for
Orange through 2036, and eighty-one percent (81%) for Durham and nineteen percent
(19%)for Orange thereafter.
13. If, during the term of this Agreement, federal CIG funds, private, in-kind, local or other
funds as described in Paragraph 10,or state funds to be used for the D-O LRT Project are
cancelled, terminated, withdrawn, do not materialize, or otherwise become unavailable
for the D-O LRT Project, or if such federal CIG or state funds are reduced in an amount
that requires additional local revenues beyond the County Contributions,the Parties shall
meet within fifteen (15) business days to determine how to address the situation. Such
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response may include, but not be limited to the following: a schedule delay in one or
more aspects of the D-0 LRT Project; phased implementation of the D-0 LRT Project; a
reduction in the scope of the D-0 LRT Project;suspension of the D-0 LRT Project;working
together to identify and pursue additional funding mechanisms to directly support the
D-0 LRT Project from sources other than the Dedicated Local Transit Revenues; a
combination of these measures; discontinuation of the D-0 LRT Project; or other
reasonable steps to mutually address the situation.
If the Parties elect to discontinue the D-0 LRT Project, the Staff Working Groups' shall
convene within twenty (20) business days to begin the process to develop new transit
plans for Orange and Durham so that funds generated by the Dedicated Local Transit
Revenues can be reallocated.
14. Upon entry into the Engineering Phase, GoTriangle will produce Quarterly
D-0 LRT Project Reports in accordance with FTA requirements (Quarterly Reports) and
will share such Quarterly Reports with FTA,Orange,Durham,and DCHC MPO.In the event
of significant cost overruns or unmitigated funding shortfalls that require additional local
revenues beyond the County Contributions, as may be reflected in the Quarterly Reports
to FTA, the Parties shall meet within fifteen (15) business days to determine how to
address the situation. Such response may include, but not be limited to the following: a
schedule delay in one or more aspects of the D-0 LRT Project; phased implementation of
the D-0 LRT Project; a reduction in the scope of the D-0 LRT Project; suspension of the
D-0 LRT Project;working together to identify and pursue additional funding mechanisms
to directly support the D-0 LRT Project from sources other than the Dedicated Local
Transit Revenues; a combination of these measures; discontinuation of the D-0 LRT
Project; or other reasonable steps to mutually address the situation. As used herein,
"significant cost overruns or unmitigated funding shortfalls" means either: (i) an annual
decrease in total revenues from the Dedicated Local Transit Revenues as set forth in the
2017 County Plans, as those Plans may be amended, of 5%or more; or(ii) after entering
the Engineering Phase,an increase in the D-0 LRT Project capital cost(including financing)
as set forth in the 2017 County Plans, as those Plans may be amended,of 5%or more; or
(iii) an annual increase in the overall project operating costs of the D-0 LRT Project as set
forth in the 2017 County Transit Plans,as those Plans may be amended,of 5%or more.
If the Parties elect to discontinue the D-0 LRT Project, the Staff Working Groups shall
convene within twenty (20) business days to begin the process to develop new transit
plans for Orange and Durham so that funds generated by the Dedicated Local Transit
Revenues can be reallocated.
15. In the event of a significant cost overrun or an unmitigated funding shortfall as set forth
in Paragraphs 13 or 14,representatives of each Party shall meet as set forth in Paragraphs
13 or 14 to attempt in good faith to resolve the matter(s).All Parties must be represented
by a person with the authority to settle the matter(s) on behalf of the Party.The Parties
1 As set forth in the Durham and Orange Implementation Agreements, the Staff Working Group for each
County Plan consists of one voting member and one alternate from each of the following entities: the
applicable county,GoTriangle, and DCHC MPO.
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may by agreement and in good faith conduct further meetings as necessary to resolve the
matter(s).
If resolution is not achieved, any Party may demand mediation in writing. Upon such
demand, all Parties shall be required to participate in mediation. The dispute(s) to be
mediated shall be memorialized in writing.The Parties shall in good faith select a mediator
certified in accordance with the rules of mediator certification in Superior Court in North
Carolina. If the parties are unable to agree to a mediator,a mediator will be appointed by
the American Arbitration Association. If, after all reasonable good faith attempts to
resolve the matter have been made, and it appears to the mediator that the parties are
at an impasse with no significant likelihood of reaching resolution, the mediator shall
issue a written notice of impasse identifying the unresolved issue(s) between the Parties.
Following a declaration of impasse by the mediator, the unresolved issue(s) shall be
arbitrated upon the written demand of any Party.The arbitration shall be expedited,and
the American Arbitration Association rules shall apply to the arbitration,unless the Parties
agree otherwise. Prior to arbitration,the Parties may bring forward all possible remedies
that may be considered by the arbitrator(s). The arbitration hearing shall take place in
Wake County, North Carolina, before a panel of three (3) arbitrators, with Orange
selecting one (1) arbitrator, Durham selecting one (1) arbitrator, and those two (2)
arbitrators jointly selecting the third arbitrator, unless Durham and Orange can reach
consensus on a single arbitrator. The decision of the arbitrator(s) shall be by simple
majority and binding upon the Parties. Judgment on an award rendered in any such
arbitration may be entered in the Superior Court of Wake County.
Each Party shall bear its own costs related to the foregoing dispute resolution process,
including reasonable attorneys' fees, except that all mediation and/or arbitration fees
charged by a mediator or arbitration panel shall be divided equally among the Parties.
Each Party hereby consents to any such disputes being so resolved.
16. if the balance of the Dedicated Local Transit Revenues attributed to a county is insufficient
to meet that county's respective share of costs,then neither Orange nor Durham shall be
obligated to use revenues other than the Dedicated Local Transit Revenues to pay its
respective share.
17. If, after the effective date of this Agreement, the Parties are authorized to levy new
transit-specific taxes or fees, or if the limits of the Dedicated Local Transit Revenues are
expanded by the North Carolina General Assembly,this Agreement shall not obligate the
use of such additional revenues for the D-O LRT Project.
18. GoTriangle shall provide an annual report on the collection, allocation, and expenditure
of the Dedicated Local Transit Revenues to the elected governing boards of Durham and
Orange. GoTriangle shall provide to the governing boards of Durham and Orange copies
of its annual audit reports as those reports are related to the collection of transit revenues
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in Durham and Orange, including funds collected pursuant to N.C.G.S. Chapter 105,
Articles 43, 50, 51, and 52.
19. The term of this Agreement shall continue until the latter of June 30, 2037 or the final
maturity date of any debt issued in connection with the D-O LRT Project and payable from
the Dedicated Local Transit Revenues.
20. This Agreement may be terminated upon mutual agreement of the Parties. In the event
of termination prior to the expiration of the term set forth in Paragraph 19 or of any
extensions thereto, the Parties shall determine what obligations remain and how to
equitably distribute such obligations as they relate to the D-O LRT Project.
21. To be effective, any amendment, change, correction, extension, or termination of this
Agreement shall be in the form of a written instrument approved by the governing board
of each Party.
22. This Agreement shall be governed by and in accordance with the laws of the State of
North Carolina. Except as to those matters subject to arbitration under Paragraph 15,the
Parties agree that all actions relating in any way to this Agreement shall be brought in the
General Court of Justice in the County of Wake, North Carolina.
23. Except to the extent provided otherwise in this Agreement,the Orange County Manager
shall designate persons to carry out Orange's obligations under this Agreement, the
Durham County Manager shall designate persons to carry out Durham's obligations under
this Agreement, and the General Manager of GoTriangle shall designate persons to carry
out GoTriangle's obligations under this Agreement.
24. All equipment, improvements, and interests in real property acquired under this
Agreement shall be the property of GoTriangle or another entity under separate
agreement and shall be subject to disposition as required under applicable law.
25. This Agreement is entered into by the Parties for their purposes only and does not confer
any rights, benefits, remedies,or privileges on any other person or entity.
26. If any provision of this Agreement is determined to be unenforceable by a court of
competent jurisdiction, such determination shall not affect any other provision of this
Agreement.
27. Pursuant to N.C.G.S. § 147-86.59, any person identified as engaging in investment
activities in Iran, determined by appearing on the Final Divestment List created by the
State Treasurer pursuant to N.C.G.S. § 147-86.58, is ineligible to contract with the State
of North Carolina or any political subdivision of the State.The Iran Divestment Act of 2015,
N.C.G.S. § 147-86.55 et seq., requires the contracting party to certify that it meets the
requirements of the Iran Divestment Act. By execution of this Agreement, each Party
certifies that it is not on the Final Divestment List of entities that the State Treasurer has
determined engages in investment activities in Iran, and that it shall not utilize in
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connection with this Agreement any subcontractor that is identified on the Final
Divestment List.
28. Each Party acknowledges that the individual executing this Agreement on behalf of the
respective party is authorized to execute the document and to bind the Party to the terms
contained herein. The Parties further acknowledge that they have read this Agreement,
conferred with their legal counsel, and fully understand the contents of this Agreement.
29. A copy or facsimile copy of the signature of the individuals executing this Agreement shall
be deemed an original with each fully-executed copy of this Agreement as binding as an
original. The Parties agree that this Agreement can be executed in counterparts, as
triplicate originals,with facsimile signatures sufficient to evidence an accord to be bound
by the terms of this Agreement.
30. The terms and provisions herein contained constitute the entire agreement by and among
the Parties and shall supersede all previous communications, representations, or
agreements, either oral or written among the Parties with respect to the subject matter
herein.
IN WITNESS WHEREOF,this Agreement has been executed, in triplicate originals, on the part of
Orange County, Durham County, and GoTriangle by authority duly given.
INTENTIONALLY LEFT BLANK.
SIGNATURES CONTINUED ON PAGE FOLLOWING.
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ATTEST: DURHAM COUNTY, NORTH CAROLINA
BY: / y/) BY.
TITLE: TITLE: Chairperson, B County Commissioners
Reviewed and approved as to legal form by Durham
COUP County.
�A
Lo ell Siler
•r' ounty Attorney
ATTEST: ORANGE C N�TY, N ROLINA
BY: BY: ,✓�
TITLE: TITLE:Chairperson, Board of County Commissioners
Reviewed and approved as to legal form by Orange
County.
f
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52 J Roberts
County Attorney
orf¢ Cato����
ATTEST: RESEARCH TRIANGLE REGIONAL PUBLIC
TRANSPORTATION AUTHORITY D/B/A
GOTRIANGLE
BY: BY: ,
TITLE ' ' ITLE: hairperson, Board of Trustees
This instrument has been pre-audited in the Reviewed and approved as to legal form by
manner required by the Local Government Budget GoTriangle.
and Fiscal Control Act by GoTriangle.
Saundra Freeman A-- ..heey Blake
Chief Financial Officer and Director of General Counsel
Administrative Services
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