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HomeMy WebLinkAboutR-2002-042 Yakima Valley Trolleys AgreementRESOLUTION NO. R 2002 - 42 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute an operation license agreement between the City of Yakima and the Yakima Valley Trolleys, a non-profit corporation, authorizing said organization to operate and maintain the electrical railway system and museum of the City of Yakima. WHEREAS, the City of Yakima has an interurban electrical railway system and museum; and WHEREAS, the City does not have sufficient personnel and expertise to operate and maintain said system and museum; and WHEREAS, the members of Yakima Valley Trolleys have the experience and expertise to operate and maintain the electrical railway system and museum, and the organization is willing to do so in accordance with the terms and conditions of an agreement substantially similar to the attached operation license agreement; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to authorize execution of an operation license agreement between the City of Yakima and Yakima Valley Trolleys in a form substantially similar to the attached agreement, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute an operation license agreement between the City of Yakima and the Yakima Valley Trolleys, a non-profit corporation, authorizing said organization to operate and maintain the electrical railway system and museum of the City of Yakima. The form of the final agreement shall be subject to review and approval of the City Attorney and shall be substantially similar to the attached operation license agreement. ADOPTED BY THE CITY COUNCIL this 16th day of April, 2002. ATTEST: City Clerk (1k)res/comm dev-yakima valley trolleys-operation-apr 02.pm lace, Mayor OPERATION LICENSE AGREEMENT BETWEEN THE CITY OF YAKIMA AND YAKIMA VALLEY TROLLEYS THIS OPERATION LICENSE AGREEMENT (hereinafter "License Agreement") is made and entered into by and between the City of Yakima, a Washington municipal corporation (hereinafter the "City"), and the Yakima Valley Trolleys, a Washington non-profit corporation (hereinafter "YVT"). WHEREAS, YVT desires to operate and use the City's electric railway system during calendar year 2002. WHEREAS, the City is willing to grant an operation license to YVT to operate the City's electric railway system in accordance with the terms and conditions of this License Agreement. NOW, THEREFORE, in consideration of the mutual covenants, promises, terms and conditions set forth herein, it is agreed by and between the City and YVT as follows: 1. Use and Operation License. YVT is licensed to use, operate, maintain and promote the City's electric railway system and electric railway museum located at 306 West Pine Street. Said use, operation, maintenance and promotion shall include but not be limited to the following: a. Operate, use and promote the City's electric railway system, including trolley cars, engines, way cars, associated railway rolling stock, and electric railway system parts, overhead wiring, track, supplies, tools, machines, and other associated equipment and materials. A map of the electric railway system is attached hereto as Exhibit "A" and incorporated herein by this reference. YVT shall provide the City's Community and Economic Development Director with a written operation and promotion schedule within 30 calendar days of execution of this Agreement. Said Director shall notify YVT in writing of the City's approval or rejection of the schedule within fifteen (15) calendar days thereof. b. Operate, use and promote the City's electric railway museum located at 306 West Pine Street, Yakima, Washington, including associated exhibits, gift shop, ticket office, and restrooms. A map and legal description of the railway museum site is attached hereto as Exhibit "B" and incorporated herein by this reference. YVT shall provide the City's Community and Economic Development Director with a written museum operation and promotion schedule within thirty (30) calendar days of execution of this Agreement. Said Director shall notify YVT in writing of the City's approval or rejection of the schedule within fifteen (15) calendar days thereof. c. Store and maintain the City's electric railway system, including trolley cars, engines, way cars, associated railway rolling stock, and electric railway system parts, overhead wiring, track, supplies, tools, machines, and other associated equipment and materials. Said electric railway system trolleys, cars, engines, equipment, parts, supplies, tools, machines and Page 1 of 8 (lk)agr/yakima valley trolleys oper agree-april 02 -pm other materials will be stored neatly in and upon the subject property located at 306 West Pine Street, Yakima, Washington. d. An inventory of the City's electric railway system, including trolley cars, engines, way cars, associated railway rolling stock, and electric railway system parts, overhead wiring, track, supplies, tools, machines, and other associated equipment and materials is attached hereto as Exhibit "C" and incorporated herein by this reference. 2. Electric Railway System and Museum Use Restricted. a. Electric Railway System Use Restriction. The operation, use and promotion license granted herein for the City's electric railway system shall be restricted to the use and operation of the electric railway system on a non-profit basis for the transport, benefit, and enjoyment of the public, as an educational resource, as a tourist attraction and a tourism promotional activity, and to activities necessary for the maintenance of the electric railway system. b. Electric Railway Museum. The operation, use and promotion license granted herein for the City's electric railway museum shall be restricted to the use and operation of the electric railway museum on a non-profit basis for the benefit, education and enjoyment of the public, as a tourist attraction and a tourism promotional activity, and to activities necessary for the care and maintenance of the electric railway museum. c. Immediate Termination of License Agreement. In the event that YVT operates/uses the City's electric railway system in violation of these use restrictions, the City has the right to immediately terminate this License Agreement with no advance notice to YVT and to take immediate possession of the electric railway system and electric railway museum. 3. Maintenance. a. General Maintenance. In consideration of the license granted herein, YVT assumes responsibility for and agrees to maintain the City's electric railway system, including trolley cars, engines, way cars, associated railway rolling stock, and electric railway system parts, overhead wiring, track, supplies, tools, machines, and other associated equipment and materials, and electric railway museum in good repair and in as clean, neat and orderly manner as reasonably possible. YVT must coordinate all significant general maintenance work with the Public Works Director and the City Engineer or their respective designees. b. Track Maintenance. YVT shall maintain all electric railway system railway track located on a City street in a manner that provides that the top of the rails shall be level with the surface of the street; provided, however, that YVT shall not be required to elevate or depress a rail in a City street in a manner that is contrary to standard railroad engineering practices. YVT must coordinate all significant track maintenance work with the Public Works Director and the City Engineer or their respective designees. Page 2 of 8 (1k)agr/yakima valley trolleys oper agree-apri102-pm 4. Budget and Expenditures. a. Annual Operation and Maintenance Budget. With assistance from the Community and Economic Development Director and/or his staff, YVT shall submit a proposed annual budget to the City for the operation and maintenance of the electrical railway system and the electrical railway museum. This proposed budget shall be submitted during the City Council's normal budget preparation cycle. For budget purposes, YVT should be treated like any other City department as to timing, form of the budget document and internal review by the City. b. City Approval Required for Maintenance and Operation Expenditures. To the extent that YVT requires and seeks funding from the City (including the "trolley fund") for any expense and/or costs related to the maintenance and/or operation of the City's electrical railway system and electrical railway museum, YVT shall seek and obtain approval of the City before incurring the respective expense and/ or costs in accordance with the following: • The Community and Economic Development Director or his designee must review and approve all expenses/costs of $2,500 or less. • The City Manager or his designee must review and approve all expenses/costs of $10,000 or less. • The City Council must review and approve all expenses/costs in excess of $10,000. • No expenditure may be made from the trolley fund established under YMC Chapter 3.95 without City Council approval and can only be used for the purposes specified in YMC § 3.95.010. c. Compliance with City Purchasing Policies. YVT shall comply with City purchasing policies, procedures and instructions in purchasing equipment, materials, and supplies necessary for the operation and maintenance of the electrical railway system. YVT shall purchase all such equipment, materials and supplies in the name of the City. d. Revenues from Operation of the Electrical Railway System. Revenue derived from the operation of the electrical railway system shall be used in accordance with YMC § 3.95.010 for the acquisition, operation, maintenance and capital improvements of the electrical railway system and no other purposes. 5. Safety and Accident Reporting Requirements. In operating and maintaining the electrical railway system and museum under this License Agreement, YVT shall comply with safety and accident reporting requirements of WAC Chapter 468-550 and any other applicable federal, state and/or local laws, rules, and regulations. a. Electrical Railway System Description and Organizational Structure. In accordance with WAC 468-550-040(4), YVT shall submit on behalf of the City a written description of electrical railway system and organizational structure to the Washington State Page 3 of 8 (1k)agr/yakima valley trolleys oper agree-april 02 -pm Department of Transportation ("Department") by September 1, 2002, or within ninety (90) calendar days of commencing operations of the electrical railway system under this License Agreement, whichever is sooner. Said description shall satisfy the criteria stated in WAC 468- 550-040(4) and shall be submitted to the City Economic Development Director for his review and approval prior to submission to the Department. b. Notification and Investigation of Accidents. YVT shall be responsible for and shall comply with all notification, reporting and investigation requirements of WAC 468-550- 070 regarding accident, incident, unacceptable hazardous conditions as those terms are defined under WAC 468-550-030, including but not limited to: notifying the Department within twenty- four (24) hours of the occurrence of any reportable incident, or the discovery of any unacceptable hazardous condition; and investigating all reportable incidents and unacceptable hazardous conditions and issuing a written investigation report to the City and the Department within forty-five (45) calendar after the occurrence of the incident, or discovery of the unacceptable hazardous condition. 6. Surrender of Property. YVT agrees that at the expiration of this License Agreement, YVT will quit and surrender the electric railway system and electric railway museum, in as good a state and condition as when received by YVT or as improved thereafter, to the City, and will deliver all keys to said property to the City 7. Term. The term of this License Agreement shall commence upon full execution hereof by the parties and shall terminate at midnight, December 31, 2003, unless sooner terminated by either party in accordance with Section 23 of this License Agreement. 8. Inspection and Audit. YVT shall maintain (in accordance with generally accepted accounting practices) books, accounts, records, documents and other materials related directly or indirectly to the costs, expenses and revenues of the operation and maintenance of the City's electric railway system and electrical railway museum as licensed under this License Agreement. All such books, accounts, records, documents and other materials shall be subject to inspection and audit at reasonable times by representatives of the City and/or of the Washington State Auditor. YVT shall make such books, accounts, records, documents and other materials available and afford the proper facilities for such inspection and/or audit within forty-eight (48) hours of inspection/audit notification from City representatives and/or the Washington State Auditor. Such books, accounts, records, documents and other materials may be copied by representatives of the City and/or of the Washington State Auditor as part of such an inspection/audit. YVT shall preserve and make available all such books, accounts, records, documents and other materials for a period of at least three (3) years after termination of this License Agreement. In addition, and as a non-profit corporation, YVT shall maintain and make available its tax returns to anyone who desires to review and inspect such tax returns. 9. Independent Contractor Status of YVT. YVT and the City understand and expressly agree that YVT is an independent contractor with regard to the use, operation, promotion and maintenance of the City's electric railway system and electric railway museum under this License Agreement. No officer, employee, volunteer, and/or agent of YVT shall act on behalf of or represent him or herself as an agent or representative of the City. No officer, employee, volunteer, and/or agent of YVT shall make any statement in the name of or on behalf of the Page 4 of 8 (Ik)agr/yakima valley trolleys oper agree-april 02 -pm City. YVT, as an independent contractor, assumes the entire responsibility for using, operating, promoting, and maintaining the electric railway system and electric railway museum. YVT and its officers, employees, volunteers, agents and/or subcontractors shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and/ or retirement benefits. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership or agency between YVT and the City. 10. Taxes and Assessments. YVT shall be solely responsible for compensating its employees, agents, and/or subcontractors and for paying all related taxes, deductions, and assessments, including but not limited to, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this License Agreement. 11. Nondiscrimination Provision. During the performance of this License Agreement, YVT shall not discriminate in violation of any federal, state, and/or local law and/or regulation on the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical handicap. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff, or termination, rates of pay or other forms of compensation, selection for training, and the provisions of services under this License Agreement. 12. The Americans with Disabilities Act. YVT shall comply with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), and its implementing regulations, and Washington State's anti -discrimination law as contained in RCW Chapter 49.60 and its implementing regulations ("WLAD"), with regard to the activities and services provided pursuant to this License Agreement. The ADA and the WLAD provide comprehensive civil rights to individuals with disabilities in the area of employment, public accommodations, public transportation, state and local government services, and telecommunications. 13. Compliance With Law. YVT shall obtain and maintain all permits and/or licenses from the City, state and/or federal government necessary and/or required to use, operate, promote and maintain the City's electric railway system and electric railway museum under this License Agreement. Further, YVT shall use, operate, promote and maintain the City's electric railway system and electric railway museum under this License Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. 14. Debts and Liens. YVT shall not permit/allow any lien to attach to the City's electric railway system, electric railway museum and/or any other City property. YVT shall not permit/allow any debt to be imposed on the City as a result of YVT's use, operation, promotion and/ or maintenance of the City's electric railway system and electric railway museum under this License Agreement. In the event of any such lien and/or debt, YVT shall immediately take all necessary steps to have the City legally released from said lien and/or debt. 15. Compliance With Environmental Laws. a. YVT represents, warrants and agrees that it will use, operate and maintain the City's electric railway system and/or electric railway museum in compliance with all Page 5 of 8 (lk)agr/yakima valley trolleys oper agree-april 02 -pm applicable environmental laws. As used in this License Agreement, "Environmental Laws" means all federal, state and local environmental laws, rules, regulations, ordinances, judicial or administrative decrees, orders, decisions, authorizations or permits, including, but not limited to, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et. seq., the Clean Air Act, 42 U.S.C. § 7401, et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., the Emergency Planning and Community Right to Know Act, 42 U.S.C. § 1101, et seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 2601, et seq., the Oil Pollution Control Act, 33 U.S.C. § 2701, et seq., and any Washington or other comparable local, state, or federal regulation, statute, ordinance and/or law pertaining to the environment or natural resources. b. Toxic or hazardous substances are not allowed on the subject property without the express written permission of the City and under such terms and conditions as may be specified by the City. For the purposes of this License Agreement, "Hazardous Substances," shall include all those substances identified as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., and the Washington Model Toxic Control Act, RCW 70.105D et seq. Within 30 days of execution of this Agreement, YVT shall provide the City with a written list of substances/materials/products necessary to operate, use and maintain the City's electric railway system and electric railway museum. The City shall notify YVT in writing of the City's approval or rejection of the list of substances/materials/products by March 31, 2002. In the event the City's grant approval of the use of any particular substance/material/product is granted, the disposal of such must be done in a legal manner by the YVT. c. YVT agrees to cooperate in any environmental investigations conducted by the City or independent third parties where there is evidence of contamination on the subject property, or where the City is directed to conduct such audit by an agency or agencies having jurisdiction. YVT shall provide the City with notice of any inspections of the subject property, notices of violations, and orders to clean up contamination. 16. General Indemnification and Hold Harmless. YVT agrees to protect, defend, indemnify, and hold harmless the City, its officers, elected officials, agents, and employees from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including attorneys' fees and disbursements) caused by or occurring by reason of any negligent act and/or omission of YVT, its directors, officials, officers, members, employees, agents, and/or volunteers arising out of or in connection with the use and/or operation of the City's electric railway system and electric railway museum under this License Agreement, including but not limited to any personal injury and/or property damage claim, demand, lawsuit or other proceeding brought by one of its members against the City. The provisions of this section shall survive the termination or expiration of this License Agreement 17. Liability Insurance. On or before the date this License Agreement is fully executed by the parties, YVT shall provide the City with a certificate of insurance as proof of liability insurance with a minimum liability limit of Two Million Dollars ($2,000,000.00) combined single limit bodily injury and property damage. The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect (any statement in the certificate to the effect of "this certificate is issued as Page 6 of 8 (1k)agr/yakima valley trolleys oper agree-april 02 -pm a matter of information only and confers no right upon the certificate holder" shall be deleted). Said policy shall be in effect for the duration of this License Agreement. The policy shall name the City, its elected officials, officers, agents, and employees as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice (any language in the clause to the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company shall be crossed out and initialed by the insurance agent). The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 18. No Insurance provided by the City. It is understood the City does not maintain liability insurance for YVT and/ or its members, directors, officials, officers, agents, members, employees and volunteers. 19. Assignment. This License Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by YVT to any other person or entity without the prior written consent of the City. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of YVT stated herein. 20. Waiver of Breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this License Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any License Agreement, covenant or condition of this License Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such License Agreement, covenant, condition or right. 21. Severability. If any provision of this License Agreement is determined to be invalid and unenforceable, all of the other provisions of this License Agreement shall remain valid and enforceable notwithstanding, unless the provision found to be invalid and unenforceable is of such material effect that this Agreement cannot be performed in accordance with the intent of the parties in absence thereof. 22. Ambiguities Shall Not Be Construed Against the Drafter. Both the City and YVT have participated in the drafting of this License Agreement. As such, the parties agree that the common law principles of construing ambiguities against the drafter shall have no application to this License Agreement. 23. Termination. Either party may terminate this License Agreement, with or without cause, by giving the other party fifteen (15) calendar days prior written notice of termination. 24. Survival. Any provision of this License Agreement which imposes an obligation after termination or expiration of this License Agreement shall survive the term or expiration of this License Agreement and shall be binding on the parties to this License Agreement. 25. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: Page 7 of 8 (Ik)agr/yakima valley trolleys oper agree-apri102-pm TO CITY: TO YVT: Director Community & Economic Development City of Yakima 129 North Second Street Yakima, WA 98901 President Yakima Valley Trolley 2211 West Yakima Avenue Yakima, WA 98907 or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 26. Governing Law. This License Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 27. Venue. The venue for any action to enforce or interpret this License Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. 28. Integration. This written document constitutes the entire License Agreement between the City and YVT and supercedes any and all previous written and/or oral License Agreements between the parties. There are no other oral or written License Agreements between the parties as to the matters covered herein. No changes or additions to this License Agreement shall be valid or binding upon either party unless such change or addition be in writing and executed by both parties: CITY OF YAKIMA Dick Zais, City anager YAKIMA VALLEY TROLLEYS City Clerk J City Contract No. o'Z OO 2 - a? //o/7.. Page 8 of 8 (lk)agr/yakima valley trolleys oper agree-april 02 -pm Yakima Valley Trolley Operational o Yakima Valley y Trolle y Agreement LwwEweorn O 1 • • F-- N 19THAVE FRUFMLEOLVD. • i 11 F (....',1I F F f F i MIMCQIMAVF �a 4 ! i .% UWYITVIEW AVE• _s DiM nJE L i t - a Wim^ YAK IMA AVE wow. NA- `t,'"' • 11 j e '.- i `� a EM.E:cw1 Scale —lin = 3159ft 0 1579.5 3159 M City of Yakima, Washington April 11, 2002 1" a. a E 3 `a BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No.: For Meeting of: X.10 April 16, 2002 ITEM TITLE: Consideration of Resolution authorizing Execution of Operating Agreement between the City and Yakima Valley Trolleys (YVT) SUBMITTED BY: ""1 illiam Cook, Director of Community and Economic Development CONTACT PERSON/TELEPHONE: William Cook (575-6113) SUMMARY EXPLANATION: The City of Yakima owns an interurban electrical railway system and museum located at 306 West Pine Street. Yakima Valley Trolleys organization is willing to operate and maintain the electrical railway system and museum in accordance with the terms and conditions of an operation license agreement with the City of Yakima This organization has the expertise and experience with sufficient personnel to operate and promote the electric railway system during calendar year 2002. In the fall of 2001, a Temporary Operation License Agreement between the City of Yakima and Yakima Valley Trolleys was approved. At that time, the Yakima Valley Trolleys organization made at least one trolley run from the City's electrical railway facilities to Selah, Washington. The operation of the electrical railway systems is restricted to transportation of passengers for the benefit and enjoyment of the public and as a tourist attraction and for tourism promotional activity. The attached agreement continues the partnership with this organization to enhance the Yakima community. Resolution X Ordinance Contract X Other Specify Operation License Agreement Funding Source: APPROVAL FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Approve resolution to execute a contract with Yakima Valley Trolleys (YVT) BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION R-2002-42