HomeMy WebLinkAbout05/21/2013 05O Electrical Railway System and Museum Operating Agreement with Yakima Valley TrolleysBUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No—SD
For Meeting of: 5/21/2013
ITEM TITLE: Resolution authorizing execution of Operating Agreement
between the City of Yakima and Yakima Valley Trolleys
(YVT).
SUBMITTED BY: Jeff Cutter, City Attorney
SUMMARY EXPLANATION:
The City of Yakima owns an interurban electrical railway system and museum located at 306
West Pine Street. Yakima Valley Trolleys, a non - profit Washington corporation, 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, experience and sufficient personnel to operate and promote the electric
railway system during calendar years 2013 and 2014.
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 on trolley run frorn 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 prior Operation License Agreement has expired; the attached agreement continues
the partnership with this organization to enhance the Yakima community.
Resolution: X
Other (Specify):
Contract: X
Start Date: 6/20/2013
Item Budgeted: NA
Funding Source /Fiscal
Impact:
Strategic Priority:
Insurance Required? No
Ordinance:
Contract Term:
End Date: 12/31/2014
Amount:
YVT Budget.
Economic Development
Mail to: President -YVT, 2211 West Yakima Avenue, Yakima, WA
98907
Phone:
APPROVED FOR .4
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SUBMITTAL: 4mvo" City Manager
RECOMMENDATION:
Approve Resolution to execute a contract with Yakima Valley Trolleys (YVT).
ATTACHMENTS:
mom
W WT-Operating License Agree-Resolution-05-13.doc
E WT-Operating License Agree-05-13.doc
Description-
WT-Operating License Agree-Resolution-05-13
WT-Operating License Agree-05-13
RESOLUTION NO. R -2013-
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 to operate and maintain the City's
electrical railway system and museum.
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 21St day of May, 2013.
Micah Cawley, Mayor
ATTEST:
City Clerk
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, at no cost to the City, the City's electric
railway system during calendar years 2013 and 2014.
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.
a. 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 license to use,
operate, maintain and promote said system shall include but not be limited to the authority to:
i. 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 Economic Development
Director with a written 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.
ii. 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
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.
iii. 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 other materials will be stored neatly in and upon the subject property located at
306 West Pine Street, Yakima, Washington.
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b. 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, associated equipment and materials
and the 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 Director of Utilities and Engineering, 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
Director of Utilities and Engineering or their respective designees.
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4. Budaet and Exaenditures.
a. Annual Operation and Maintenance Budget. With assistance from the Economic
Development Director and /or the Director's designee, 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 Economic Development Director or their 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 when 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. When 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 /Safety Structure. In
accordance with WAC 468- 550 - 040(4), YVT shall submit on behalf of the City a written
description of the Yakima electrical railway system and its organizational structure to the
Washington State Department of Transportation ( "Department ") by September 1, 2013, 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. Further, in accord
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with RCW 35.21.228(2), YVT shall implement and comply with its system safety program plan
and system security and emergency preparedness plan and shall perform internal safety and
security audits to evaluate its compliance with the plans and shall submit its audit schedule to
the Department no later than December 15th each year this License is in effect. YVT shall also
prepare an annual report for its internal safety and security audits undertaken in the prior year
and submit the report to the Department no later than February 15th of each year this License
is in effect. This annual report must include the dates the audits were conducted, the scope of
the audit activity, the audit findings and recommendations, the status of any corrective actions
taken as a result of the audit activity, and the results of each audit in terms of the adequacy and
effectiveness of the plans.
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 days 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, 2014, 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 shall 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
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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 and City property 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 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
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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 thirty (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 no later than thirty (30) days
after receiving said list. In the event the City's approval of the use of any particular listed
substance /material /product is granted, the disposal of such must be done in a legal manner
according to applicable laws and regulations 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 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. 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.
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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:
TO CITY: Director Economic Development
City of Yakima
129 North Second Street
Yakima, WA 98901
TO YVT: President
Yakima Valley Trolleys
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
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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 a court of competent jurisdiction that is located in 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
YAKIMA VALLEY TROLLEYS
By: By:
Tony O'Rourke, City Manager Its:
Date: Date:
ATTEST:
City Clerk
City Contract No.
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