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HomeMy WebLinkAbout02/05/2013 13 Termination of Joint Air Terminal Operations Agreement; Transfer of Yakima Air Terminal Property Ownership to the City 0 7. ., -- -N,„ 4 f1411#6. BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT �� Item No. For Meeting of: February 5, 2013 ITEM TITLE: Resolution authorizing the City to execute an Agreement with Yakima County to terminate the Joint Air Terminal Operations Agreement and in accordance with the terms and conditions of said Agreement to become the sole owner /operator of the Air Terminal. SUBMITTED BY: Jeff Cutter, City Attorney CONTACT Jeff Cutter - 575 -6030 PERSON /TELEPHONE: SUMMARY EXPLANATION: III The Yakima Air Terminal is jointly owned by the City and County and operated by the Yakima Air Terminal Board as authorized by RCW Chapter 14.08 and pursuant to the Joint Air Terminal Operations Agreement entered into between the parties on June 30, 1982. The City and County agree that the existing Yakima Air Terminal management structure is unsatisfactory, resulting in important issues not being managed in a timely and efficient manner. The parties have further agreed that it is in the public interest for a single entity to take over complete ownership and operations of the airport. The benefits of sole ownership include: unity of authority and command; reduction of airport operating costs; expedited decision making; reduced management turnover; and more efficiency and direct accountability. Through the Agreement the City and the County mutually agree that the Joint Air Terminal Operations Agreement should be terminated and all real and personal property owned by the parties as tenants in common be conveyed to the City of Yakima, in consideration of the City's assumption of joint obligations and liabilities as specified in the Agreement, thereby resulting in the future operation of the Air Terminal as a department of the City. The County will hold a public hearing on the matter on February 12, 2013, following the City's 1 consideration of this action. A draft Agreement is attached for your review as the County is still reviewing the Agreement; however, we don't anticipate any significant changes, and the final Agreement will be distributed at the February 5, 2013 Council meeting. Resolution X Ordinance Other Termination (specify) Agreement ID Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No Funding Source: Phone: APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ Resolution- YAT -JOA Termination Agreement 1-2013 ❑ draft agreement • • RESOLUTION NO R -2013- A RESOLUTION concerning the Yakima Air Terminal, approving an agreement with Yakima County that terminates the existing Joint Air Terminal Operations Agreement and transfers the ownership of all real and personal property associated with the Yakima Air Terminal back to the City and allocates the liabilities and responsibilities related to the Yakima Air Terminal between the City and the County WHEREAS, the Yakima Air Terminal is jointly owned by the City and County and operated by the Yakima Air Terminal Board as authorized by RCW Chapter 14 08, pursuant to the Joint Air Terminal Operations Agreement entered into between the parties on June 30, 1982; and WHEREAS, the City and the County agree that the existing Yakima Air Terminal management structure is unsatisfactory, often resulting in important issues not being dealt with in a timely and efficient manner; and WHEREAS, the parties further agree that it is in the public interest for a single entity to hold ownership and conduct the operations of the airport to provide 1) unity of authority and command; 2) reduction in and efficiency of the airport's operating costs; 3) expedited decision making; 4) reduced management turnover; and 3) more direct accountability; and WHEREAS, the City and the County mutually agree that the Joint Air Terminal Operations Agreement should be terminated and all real and personal property owned by the parties as tenants in common should be fully conveyed to the City of Yakima in consideration of the City's assumption of the obligations and liabilities of Air Terminal operation and ownership, as specified in the TERMINATION OF JOINT AIR TERMINAL OPERATIONS AGREEMENT attached hereto and incorporated herein by this reference, Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA. The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated TERMINATION OF JOINT AIR TERMINAL OPERATIONS AGREEMENT, thereby accepting the County's undivided one -half interest in the Yakima Air Terminal, including all property, real and personal, associated therewith, as well as all associated appurtenances thereto in accord with the terms and conditions of said Agreement, to be owned and managed by the City of Yakima as a department of the City ADOPTED BY THE CITY COUNCIL this 5 day of February, 2013 ATTEST Micah Cawley, Mayor City Clerk TERMINATION OF JOINT AIR TERMINAL OPERATIONS AGREEMENT THIS AGREEMENT is entered into this 12th day of February, 2013, by and between the City of Yakima, Washington, hereinafter referred to as "the City" and the County of Yakima, Washington, hereinafter referred to as "the County". RECITALS 1 The Yakima Air Terminal is jointly owned by the City and County and operated by the Yakima Air Terminal Board as authorized by RCW Chapter 14 08 and pursuant to the Joint Air Terminal Operations Agreement entered into between the parties on June 30, 1982 ger 2 The parties agree that the existing Yakima Air Terminal management structure is unsatisfactory. As a result, import- .,,t issues are not dealt with in a timely and efficient manner Now 3. The parties further agree tha in M . blic interest for a single entity to take over ownership and operations of the'': •ort -nefits of single or sole ownership include: unity of authority and command;reduction of the airport's operating costs; expedited decisio aking, rem . ed ma ent turnover, and clearer accountability. 4 The City and the C• mutu• e at the Joint Air Terminal Operations Agreement should be termin• and all re* Jnd personal property owned by the parties as tenants in common sh• be conveyed to the City of Yakima, in consideration of the City's assumptru <of joint obligations and liabilities as specified in this Agreement and operation of the Air Terminal as a city department NOW, THEREFORE, the parties hereto, through their respective legislative bodies, do hereby agree as follows: 1 Termination of Joint Air Terminal Operations Agreement The Joint Air Terminal Operations Agreement entered into between the parties on June 30, 1982 is terminated effective February 12, 2013 1 2 Conveyance of Real and Personal Property Commencing on the twelfth day of February, 2013, the real and personal property now owned by the City and County as tenants in common and constituting the Yakima Air Terminal, its real property, appurtenances thereto and personal property shall be in the sole ownership of the City Said Air Terminal shall be operated by the City of Yakima in accordance with the provisions of RCW 14.08. Pursuant to this Agreement, the County shall make appropriate conveyance and transfer to the City of its undivided one -half interest in fee simple in and to the real property and all improvements and appurtenances thereto, constituting the Yakima Air Terminal under the authority of RCW 1408310, RCW 39 33 010 In consideration of this mutual Agreement, the County does hereby convey and grant to the City of Yakima its interest in all assets and all personal property, known or unknown, located on or used in connection with the operation of the Air Terminal (described in part in Exhibit "B" attached hereto and incorporated by references so fully set forth herein), and to include contract rights, leases, choses in actions, and FAA funds 3. Dissolution of the Yakima Air'':; a Board. The Yakima Air Terminal Boar. •issol m ectiv '> February 12, 2013 All powers and duties of the Y. W : rminal B d c. a • operation and maintenance of the air terminal she ° assu by the :::: akim pursuant to RCW 14 08 4. Financial Close, Yakima County sha plete'' "' •ki Air Terminal financial closeout for 2012 by March 31, 2013 All recor. •sh and oh m financial assets of the Yakima Air Terminal that are currently in thessession of the County will be transferred to the City not later than March 31, 2013. Yakima County will continue to charge for financial services through March 31, 2013 5. Joint Venture Liabilities. 5.1 2012 Operating Loss. It is anticipated that the Yakima Air Terminal will experience an operating loss of approximately $40,000 for budget year 2012. The City and the County shall each assume one half of any such liability 5.2 Pending Litigation. The Yakima Air Terminal is currently a party in two pending lawsuits (1) Yakima Air Terminal McAllister Field v. M.A. West Rockies Corporation, Yakima County 2 Superior Court Cause No 10 -2- 00989 -1, and, (2) All Seasons Associates, LLC v Yakima Air Terminal McAllister Field, et al., Yakima Superior Court Cause No. 12 -2- 01536 -7. The City and the County shall mutually agree on any settlement or continuation of litigation expenses, including outside counsel attorney fees. The City and the County shall each assume one half of any liability resulting from a final judgment or settlement of the litigation, including any associated legal fees and costs. 5 3 Other Liabilities Other than as specifically provided herein, all obligations and liabilities preexisting the date of execution of this agreement, or arising after the date of execution from acts or conduct of the Yakima Air Terminal Board, its officers, agents, or employees predating date of execution, shall be the sole responsibility of the City and the County shall not be responsible therefore other than by specific written agreement. Unless otherwise specifically provided herein, the City agrees to hold harmless and indemnify Yakima County, its elected officials, officers, employees, and agents from any and all said preexisting debts, liabilities, choses in action, or claims of any nature, absolute or contingent, together with all expenses and legal fees incurred to compromise or defend such liabiliti c 'n action, or claims of any nature, absolute or contingent, including, b of li •;to, any and all liabilities arising from State or Federal audit 6. Hazardous •nces. 6.1 Definitions: "Person" as used i is Agree shall have the meaning given at RCW 70.105D.020 (19) [A]n individual, , corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, federal government agency or Indian tribe b "Remedy" or "Remedial Action" as used in this Agreement shall have the meaning given at RCW 70.105D.020 (26): [A]ny action or expenditure consistent with the purposes of this chapter to identify, eliminate, or minimize any threat or potential threat posed by hazardous substances to human health or the environment including any investigative and monitoring activities with respect to any release or threatened release of a hazardous substance and any health assessments 3 or health effects studies conducted in order to determine the risk or potential risk to human health. c "Hazardous Substance" as used in this Agreement shall have the meaning given at RCW 70.105D.020 (10): (a) Any dangerous or extremely hazardous waste as defined in RCW 70 105 010 (5) and (6), or any dangerous or extremely dangerous waste designated by rule pursuant to chapter 70.105 RCW; (b) Any hazardous substance as defined in RCW 70 105 010(14) or any hazardous substance as defined by rule pursuant to chapter 70.105D RCW; jc) Any substance that, on March 1, 1989, is a hazardous substance under section 101 (14) of the federal cleanup law, 42 U.S.C. Sec. 9601(14); (d) Petroleum or petroleum produce, and. >< > ><:: ><:: (e) Any substance or ` »ory of substances, including solid waste decomposition product ;• •M.'.'..µ fined by the director by rule to present a threat to human health onment if released into the environment d "Facility" as use• is Agre - •II e meaning given at RCW 70.105 D .020'`.......... [a]ny buildin• •Ilati• - quipment, pipe or pipeline (including any pipe into a -r or p h • -d treatment works), well, pit, pond, lagoon, impound ° ditch, la' ill, storage container, motor vehicle, rolling stock, vessel, o raft, or (b) any site or area where a hazardous substance, other than a 'nsumer product in consumer use has been deposited, stored, disposed of, or placed, or otherwise come to be located. e. "Federal cleanup law" as used in this Agreement shall have the meaning given at RCW 70 105D 020 (6) The federal comprehensive environmental response, compensation, and liability act of 1980, 42 U.S.C. Sec. 9601 et seq., as amended by Public Law 99 -499. f. "Contamination" as used in this Agreement shall have the meaning: 4 The presence of any Hazardous Substance at or affecting the Yakima Air Terminal Facility, including any hazardous substances that have migrated to or from the Yakima Air Terminal Facility, provided such Hazardous Substances are present in such concentrations or other such conditions as to create a violation, liability or a duty to conduct a response under the Model Toxics Control Act, Wash. Rev. Code § 70.105D or the Federal Cleanup Law 6.2 Remediation. The City of Yakima shall be responsible for all costs associated with investigation and Remediation of any Contamination at and /or from the Yakima Air Terminal Facility arising under the Model Toxics Control Act, RCW Chapter 70.105D, and /or the Federal Cleanup Law from the date of this Agreement forward. 6 3 Release and Waiver The City of Yakima hereby waives all known and unknown rights and releases all claims and causes of action whether now or hereafter in existence that it may have against the County of Yakima related to Contamination at the Yakima Air Terminal Facility 6A Indemnit. The City of ` i a shall respons' m •r the future costs of investigation and Remediation of Cont® atio /or from t , akima Air Terminal Facility and shall defend, indemnify and -. ®kima aunty from and against any and all "Environmental Risks." For `6 'oses of +r • ent "Environmental Risk" means and includes any and all acts or th s -ned losses, all direct and indirect costs associated with Remedial Action (including t! - pair, replacement or restoration of improvements and equipment, and monitoring and other requirements imposed by any governmental entity), liabilities, demands, claims and causes of action (including those asserted by third parties for personal injury, illness, death, and damage to real and personal property), damages (including natural resource damages, consequential damages and punitive damages), expenses (including experts and consultants' fees and disbursements), reasonable attorney's fees and disbursements for in -house and outside counsel (including those incurred at trial, on appeal, or in enforcing this Agreement, and regardless of the outcome) fines, assessments, penalties, forfeitures, judgments, settlements, orders, equitable relief of any kind, suffered, paid, incurred by, or sought from Yakima County by any Person in connection with, in whole or in part, or arising or allegedly arising, directly or indirectly out of: a The presence, suspected presence, or threat of Contamination at the Yakima Air Terminal Facility; or 5 b Non - compliance with any environmental law, including, but not limited to, the Model Toxics Control Act, RCW Chapter 70.105D and /the Federal Cleanup Law 6 5 Duration of the City of Yakima's Duty to Indemnify The City of Yakima's duty to indemnify and defend Yakima County shall continue until terminated by mutual agreement of the parties 7. Personnel. The City shall hire all existing Yakima Air Terminal employees who choose to transition to City employment. Employees who transition to City employment shall be subject to the applicable provisions, terms and conditions of the collective bargaining agreement between the Yakima Air Terminal, and Washington State Council of County and City Employees, AFSCME, Local 1122, AFLCIO, attached hereto as Exhibit "C" and incorporated by reference as though fully set forth herein. Exhibit "C" shall govern the initial term and conditions of employment and will be honored by the City of Yakima through December 31, 2013, unless amended as provided therein Annual leave and sick leave of c' • Yakima Air Terminal employees as of the date of this Agreement shall be t -xclu '.bility of the City of Yakima 8 Lease Assiar t All lease agre- is be -en Yaki it Terminal as lessor and tenants of the Air Terminal are hereby • m - City of Yakima effective February 1, 2013 9. Assignment' "<<'::::.. The City of Yakima shall not assign, transfer or delegate this Agreement or any obligation assumed hereunder without the prior express written consent of Yakima County The County shall not consent to any assignment unless the assignee first agrees to assume all duties, obligations, and liabilities of the City of Yakima herein. 10 Non - Waiver The failure of either party to insist upon strict performance of any provision of this Agreement or to exercise any right based upon a breach, threat or the acceptance of any performance during such breach shall not constitute a waiver of any right under this Agreement 11 Severability 6 If any portion of this Agreement is changed by mutual Agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 12 Integration This written document constitutes the entire Agreement between the City and the County There are no other Agreements between the parties as to the subject covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change or addition is in writing and executed by the parties. 13 Notices Any notice provided for or concerning this Agreement shall in writing and shall be deemed sufficiently given when delivered or when sent by certified or registered mail to the following: To City Tony O'Rourke, City Manager 129 N. 2nd Street Yakima, WA To County J Rand Elliott Yakima County Ce issio ima, :'98901 14 No Third Part. Ben - % ,". °E ' i3ai ii> >:ii; "� ; <;��:<;:> oun � �;;ar; k . gree .reement shall not confer third party benefi '94 status on r3y non -. , includi • he citizens of either the County or the City. 15. Dispute Resolution. 15.1 In the event of a dispute between the County and the City arising by reason of this Agreement, the dispute shall first be referred to officers or representatives designated by the Chairman of the Board of Yakima County Commissioners and the City Manager The officers or representatives so designated shall meet within thirty (30) calendar days of either party's request for a meeting, and the parties shall make a good faith effort to achieve a resolution of the dispute. 15.2 If the parties are unable to resolve the dispute under the procedure set forth in Section 15 1, the matter shall be referred to mediation The parties shall mutually 7 agree upon a mediator to assist them in resolving the dispute Any expenses incidental to mediation shall be borne equally by the parties. 15.3 If the parties fail to resolve the dispute through mediation, either party may then pursue any available judicial remedies The prevailing party shall be entitled to recover their reasonable attorney's fees, costs, and expenses incurred in connection with the litigation 16. Venue. The laws of the State of Washington shall be applicable to the construction and enforcement of this Agreement Any action concerning this Agreement shall be brought in the Superior Court of Yakima County 4,. Executed by the parties, this day of'"'" >< , 2013. ATTEST ATTEST City Clerk Tiera L Girard Clerk of the Board CITY O ligip"D OF YA A COUNTY COMMISSIONERS By: Michael D. Leita, Chairman Kevin J. Bouche Y- Commissioner J Rand Elliott, Commissioner Constituting he Board of County Commissioners g Y for Yakima Count Washington Y- � Approved as to form: Terry D Austin Chief Civil Deputy Prosecuting Attorney 8