HomeMy WebLinkAboutItem 03 Intergovernmental Agreement with Lane Transit District
AGENDA ITEM SUMMARY Meeting Date: June 25, 2007
Meeting Type: Work Session ,/#iJ
Department: Public W O::;fkS{t..d
Staff Contact: Len Good .
S P R I N G FIE L D Staff Phone No: 726-3685
C I T Y C 0 U N C I L Estimated Time: 15 minutes
ITEM TITLE: INTERGOVERNMENTAL AGREEMENT WITH LANE TRANSIT
DISTRICT
ACTION
REQUESTED:
Provide staff direction with respect to negotiation of an intergovernmental
agreement with Lane Transit District ("L TD") concerning the ongoing
operating and maintenance of ErnX facilities to be constructed in the Pioneer
Parkway! Gateway corridor
ISSUE
STATEMENT:
As L TD enters the detail design process for the Phase II ErnX route, it is
desirable to determine the long-range relationship between L TD and the City
with respect to operations and maintenance, so that the design can reflect
those understandings
ATTACHMENTS: A.:
B.:
Council Briefing Memo
Summary of Issues and Staff Recommendations
DISCUSSIONI
FINANCIAL
IMP ACT:
Phase II of ErnX, approved by the Council in concept in late 2006 is now
beginning design. Since some aspects of that design may hinge on how the
system is to be operated and maintained. Staff seeks general guidance and
policy direction from Council before entering into negotiations with LTD.
MEMORANDUM
City of Springfield
Date:
To:
From:
COUNCIL
BRIEFING
MEMORANDUM
Subject:
ISSUE: The Council has approved the conceptual alignment of Phase II of the Lane
Transit District ("LTD") EmX bus rapid transit facility. As the project now moves into fInal
design, it is appropriate to discuss the circumstances under which Lane Transit District will be
permitted to occupy City rights of way and property for the purpose of operating the EmX
system, so that an operating agreement may be concluded before construction begins.
BACKGROUND: On November 6, 2006 the Council, by resolution, endorsed the Pioneer
Parkway EmX corridor proposed by Lane transit district. As part of that approval, the Council
directed the City Manager to negotiate with L TD to develop and intergovernmental agreement
to cover ongoing relationships with L TD in the operation of the EmX system. For the past
several months, City staffhave reviewed the issues that would likely be addressed in such an
agreement. While many of the issues are at a technical level where staff can work with L TD
staff to find mutually acceptable solutions, some of these issues are ones which may have policy
implications which the Council should have an opportunity to discuss before negotiations begin
with L TD and turn to specifIc proposals. Staff will present these issues and some alternatives
for discussion by the Council, and welcome direction that the Council may choose to provide on
policy matters.
DISCUSSION: City staffhave identifIed a number of areas where the City and LTD need
to reach agreement on important operational parameters before the EmX system is constructed
and begins operation. These include the following:
1) Who will be fmancially responsible for the cost of the maintenance of these various
facilities?
2) Who will be responsible for performing maintenance on the various facilities used by
EmX? This includes not only the roadbed over which the vehicles travel, but also the
stations, the signage and traffic control mechanisms.
3) Who will have ownership rights for the various facilities?
4) Will there be circumstances where the City has the ability to regulate operations of the
EmX system?
5) Will L TD compensate the citizens for the diminution of the property and rights of way
available to the public by the grant of virtually exclusive access to L TD to certain City
property or rights of way?
Within each of these areas of discussion there are a number of parameters that can affect the
Council's preferred policy choices. One overarching parameter which applies to most of the
areas of discussion is the fact that L TD' s use of City facilities may be divided into three
ATTACHMENT A - Page 1 of 4
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categories.
The first category is that portion of the EmX system that will operate in mixed traffic. In
many cases, LTD's involvement with City rights of way is, in this situation, no different
from the current use of City streets by LTD. One notable difference is that there may be
additional signal and signage requirements to accommodate EmX.
The second category involves that part of City streets which will be designated for
predominant bus use. In these areas lanes will be striped as exclusive bus lanes, with certain
exceptions to allow for turning movements or crossings. These areas will not be physically
separated from lanes designed for vehicular travel. They are commonly called "busways."
The third category involves City rights of way, and some property owned by the City in fee,
which will be devoted to exclusive use by EmX (with certain emergency exceptions) and
which will be physically separated from adjoining street lanes by a non-traversable median.
These are commonly called "guideways."
Funding of Maintenance of EmX facilities
Until recently it would have been necessary to conclude that L TD must bear the fmancial
burden for all facilities expect those in mixed traffic settings, unless the Council was
disposed to make General Fund resources available for that purpose. This is because the
settled law on use of revenue from fuel taxes, whether state or local was that this money
must only be applied to the benefit of vehicular traffic. In 2006, however, the Oregon
Supreme Court articulated a new approach to the limitations of Article IX, Section 3a, of the
Oregon Constitution; In Oregon Telecommunications Association v. ODOT, 348 Or 418
(2006), the court concluded that the test should focus on "... the connection between the
process or activity and the public highway, not the connection between the process or
activity and motor vehicle traffic that may from time to time use the public highway."
Under this new test, the Attorney General has previously advised L TD that construction of
bus lanes and transit priority signals, among other things, are eligible uses for state highway
trust fund money. This being so, we conclude that the maintenance and preservation of such
facilities are likewise eligible for funding through fuel tax revenues.
The fact that revenues such as those of the City's Street Fund may legitimately be used for
maintenance and preservation of these portions of the EmX facilities does not necessarily
mean that, as between the City and L TD, City funds should be used. That policy choice is
for the Council to make. It is possible that the decision might be different when considering
ordinary Street travel lanes used by EmX, as opposed to either exclusive bus lanes in the
City streets or exclusive bus lanes that are physically separated from the travel lanes of the
adjoining street. At present it appears that the City of Eugene does not charge LTD for
maintenance of the EmX facilities on the Phase I route. However, the transportation
. subcommittee of the Eugene Council, on May 23, recommended to the full Council that
they consider this as one option for resolving ongoing problems. with transportation funding.
Staff believe that LTD expects that it will be expected to fund the cost of maintenance of the
EmX facilities. We expect that a mutual agreement can be reached on details within that
general concept.
Maintenance and Preservation of EmX Facilities
The funding decisions do not necessarily control the decision as to which agency performs
ATTACHMENT A - Page 2 of 4
the work. For example, given the close integration with the rest of the City's signal system,
it might seem eminently logical that both operation and maintenance of signal facilities
dedicated to ErnX functions should, be handled by the City as part of an integrated system, .
regardless of who is financially responsible for the cost of maintenance. Similarly, it might
be seen as logical to suggest that regardless of funding, the maintenance and preservation of
exclusive bus lanes that are not physically separated from vehicle lanes, as well as mixed
traffic lanes, would be managed by City staff to insure maximum efficiency. On the other
hand, it could be concluded that those bus lanes that are separated by a non-traversable
median are sufficiently distinct from the adjoining streets that their maintenance could be
left to LTD, even if that does create some risk of reduced efficiency. A contrary argument
might be that since L TD does not have the equipment or staff trained to maintain these
facilities, it makes more sense for City staff to actually perform the work, again without
regard to who is fmancially responsible for the cost of maintenance or preservation. Staff
believe that L TD may prefer that the City perform most maintenance because of efficiencies
in cost and to avoid the need for them to purchase suitable equipment. We expect that L TD
may prefer to maintain the station structures, a division of labor which City staff would
support.
Ownership of ErnX Facilities
This issue would seem to be limited to those bus lanes which are physically separated from
the City street and to station sites which are not within the public rights of way. In all other
cases, the facilities will be constructed on public rights of way held by the City. There is no
reason to suggest that the property status of the land underlying either an exclusive bus lane
that is part of the street, or a mixed traffic lane would be affected by the presence of EmX.
In the case of the physically separated bus lanes, it might be possible to argue that this is not
a City facility'and need not be in public right of way. If the facility is located in property
that is not public right of way, however, the decision in Oregon Telecom would not seem to'
offer a basis for using gas tax money for maintenance and preservation. In addition, a
question could arise with respect to ownership of facilities is that of whether or not Storm
Drainage Systems Development Charges would be due on account of additional impervious
surface created by the system. The City's policy is not to authorize waivers of SDCs.
However, the City does not impose Storm Drainage SDCs on public streets. If L TD were to
retain ownership, however, and the facility were not in public right of way, it might be
necessary that Storm Drainage SDCs be assessed. One solution might be to dedicate, as
right of way, that portion of property which is occupied by EmX facilities. Retaining fee
title to the balance of the property would help insure that the adjoining property is not used
for other potentially incompatible purposes, like placement of utilities. Staff believe that
L TD will be comfortable with City ownership of all facilities except the station structures.
In the case of station sites, it is possible to distinguish between the station structure itself
and the underlying land. While normally the landowner also owns the structure erected on
the land, that need not be the case. This is particularly true where the City now owns the
underlying land in fee. Ownership of the station structure by the City may reduce
complexity with respect to things such as SDC charges, but might also increase the risk of
City liability. .
Regulation of Operations
We expect that there will need to be extremely close integration of the control of signals
used to regulate operation of the EmX system. This suggests that it may be ultimately more
ATTACHMENT A - Page 3 of 4
appropriate if the City actually operates the complete signal system, with such input as is
appropriate from L TD to insure that ErnX operates as efficiently as possible considering the
larger responsibilities of the City to enable efficient overall traffic flow. It is also probably
prudent to assure that emergency vehicles have the right to use the ErnX routes in the event
of emergency. This could, in fact, be a benefit to emergency services if it qpens up ways to
get through tied up traffic to reach the scene of an accident or emergency. It is also likely
that the city might wish to have the ability to temporarily restrict ErnX operations to permit
parades to pass across the EmX route. If we want to exercise those powers, it is important
that any agreement be clear on what authority the City has to alter or suspend EmX service.
Staff understands that procedures are in place to govern these sorts of situations on the
Eugene/Springfield route now in operation. Expect those can be adapted to address all of
these issues.
Payment for Use of Rights of Way
The dedication of facilities to the purposes of ErnX will have the effect of reducing the
capacity of the streets to handle vehicular traffic. This raises the question of whether or not
the citizens are entitled to be compensated for giving up a portion of their valuable street
assets to this limited purpose. It is not unlike the basis upon which City's charge franchise
or right of way fees to utilities. It might be argued that the presence of EmX will induce a
sufficient shift in transportation modes so that levels of service for vehicles will not decline.
LTD's current operating statistics for the route suggest that it is carrying'as much traffic as
would a lane of vehicle traffic. Imposing a fee such as this would be a novel approach to
recovering revenue for use of the rights of way. Eugene does not impose such a fee at this
point, and I am not aware of any other similar system in the nation which does. A right of
way use fee might cause significant changes in the financial picture for EmX and raise
questions about its viability. Staff does not recommend imposing such a fee. If such a fee is
proposed, we expect that LTD will object vigorously.
RECOMMENDED ACTION: Provide policy guidance to staff in preparation for negotiations
with L TD with respect to an operating agreement to cover EmX Phase II. Staff recommends
that we seek and agreement with L TD which 1) requires L TD to fund all additional costs of
operating and maintaining the street and signal system used by EmX; 20 provides that the City
perform all maintenance on the system, except for station structures and, if the parties agree,
guideways; 3) provides that all aspects of the system located in right of way be owned by the
City, except for station structures; 4) provides for suitable procedures which give the City
ability to use the system route for emergency purposes; and 5) does not require payment of a
right of way use fee in the nature of rent.
ATTACHMENT A - Page 4 of 4
PIONEER P ARKW A Y EMX INTERGOVERNMENTAL AGREEMENT
SUMMARY OF ISSUES AND STAFF RECOMMENDATIONS
Issue Comment Recommendation
Financial Responsibility for Traffic Lanes - Part of Staff recommends
Maintenance/Operations existing City streets LTD be financially
Busways - Additional responsible for all
maintenance burden additional
Guideways - Additional maintenance and
Maintenance burden operating costs.
Signals/Signs - additional
burden to integrate
Performing Maintenance of Traffic Lanes and busways - Staff recommends
system and signals integrated with City streets; that City personnel
much more efficient for City perform all
to perform work maintenance and
Guideways - could be signal operations
maintained by L TD; may be services, with the
more efficient for City since possible exception of
L TD has no equipment and work in Guideways,
trained staff if L TD wishes to
perform.
Ownership of facilities More efficient if City owns, Staff recommends
with exception of station that City own all
structures, where there can structures in right of
be flexibility way, except station
structures.
Emergency Procedures City may need to use system Staff recommends
for major emergencies; may that emergency
want to seek suspensions of procedures be greed
service to work around upon.
parades.
Payment of "rent" for use of right Would bean unusual Staff recommends not
of way arrangement. Staff does not imposing a rental fee.
support.
Attachment B, Pag~ 1 of 1