HomeMy WebLinkAboutR-2011-025 Two Year Tolling Agreement RE: 4-Party Agreement; City, County, Union Gap, Terrace Heights Sewer District•
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.IA, 10
For Meeting Of February 1, 2011
ITEM TITLE Consideration of a Tolling Agreement relating to the 1976 "Agreement for
Wastewater Treatment and Disposal Service", otherwise referred to as the "4 -
Party Agreement"; approving a two-year Tolling Agreement that will preserve
the status quo of said "4 -Party Agreement" for the purpose of allowing the
parties thereto to meet and discuss any amendments or revisions they may
deem to be in the best interests of the parties served; and establishing the
terms by which said discussions and negotiations may proceed while
maintaining the past and present operation of the "4 -Party Agreement"
throughout the tolling period.
SUBMITTED BY: Jeff Cutter, City Attorney
CONTACT PERSON/TELEPHONE: Jeff Cutter - 575-6030
SUMMARY EXPLANATION: There have been discussions held between the City, Yakima
County, Union Gap and the Terrace Heights Sewer District about the present and future status
of the 1976 "Agreement for Wastewater Treatment and Disposal Service", otherwise referred to
as the "4 -Party Agreement". The Parties have expressed a desire to explore updates and
revisions to the present agreement in light of changes that have occurred since the 4 -Party
Agreement was entered in 1976. The attached Resolution and Tolling Agreement has been
discussed by the Parties and with the exception of Union Gap there has been an expressed
interest in entering a tolling agreement to preserve the present status quo of the Parties'
relationships under the Agreement during a two-year period during which the Parties could
discuss revisions to address changes and to bring the agreement for wastewater services
current with the conditions as they exist today. With the exception of Union Gap the parties
have tentatively approved the attached Tolling Agreement for this purpose and it is now
presented to the City Council for approval, after which it shall be presented to Yakima County
and the Terrace Heights Sewer District for their execution, after which formal discussion shall
begin. Union Gap has indicated its willingness to engage in the discussions and negotiation of
potential revisions to the 4 -Party Agreement but does not wish to enter into a tolling agreement.
Resolution X Ordinance _ Other(Specify) Tolling Agreement
Contract Mail to (name and address):
Phone:
Funding Source
APPROVED -FOR -SUBMITTAL -- '- Acting City Manager
STAFF RECOMMENDATION: Approve the Tolling Agreement
BOARD/COMMISSION/COMMITTEE RECOMMENDATION: The Intergovernmental
Committee has recommended bringing the Tolling Agreement to the Council.
COUNCIL ACTION:
RESOLUTION NO. R-2011-25
A RESOLUTION relating to the 1976 "Agreement for Wastewater Treatment and Disposal
Service", otherwise referred to as the "4 -Party Agreement"; approving a
two-year Tolling Agreement that will preserve the status quo of said "4-
' Party Agreement" for the purpose of allowing the parties thereto to meet
and discuss any amendments or revisions they may deem to be in the best
interests of the parties served; and establishing the terms by which said
discussions and negotiations may proceed while maintaining the past and
present operation of the "4 -Party Agreement" throughout the tolling period.
WHEREAS, the Parties to the Tolling Agreement, attached hereto and incorporated
herein by this reference, which excludes the City of Union Gap which has declined to enter into
this Tolling Agreement, are parties to the 1976 "Agreement for Wastewater Treatment and
Disposal Service", as amended (hereafter the "4 -Party Agreement or "Agreement"); and
WHEREAS, Section 12 of the 4 -Party Agreement provides that the Agreement "shall
continue in full force and effect for a period of years established by the treatment and disposal
facility bonds, and may be renewed thereafter by mutual agreement"; and
WHEREAS, at the present time the Parties may have differing positions as to the status
and continuing effectiveness of the 4 -Party Agreement; and
WHEREAS, it would be time-consuming for the Parties to attempt to resolve if, and to
what extent the 4 -Party Agreement remains effective and continues to serve the best interests
of the Parties, as well as to attempt to determine what other authority would govern the
relationship of the Parties and the issues addressed by the 4 -Party Agreement; and
WHEREAS, the Parties wish to avoid the time and expense that would be required to
determine the legal status of the 4 -Party Agreement and in the alternative believe it to be in
their mutual best interests to negotiate among themselves matters addressed by the 4 -Party
Agreement and the continued efficient and economic provision of a wastewater service to the
Urban Growth Area residents and businesses; and
WHEREAS, the 4 -Party Agreement includes two (2) separate component elements,
specifically identified as (1) wastewater treatment, collection, disposal and operational
considerations (Sections 1-9); and (2) land use and regional planning (Section 10); and
WHEREAS, The Parties agree to negotiate in good faith on all elements of the
underlying 4 -Party Agreement but recognize that during the effective period of this Tolling
Agreement such negotiation (or failure of negotiation) shall not adversely impact the continued
operation of the regional wastewater system as currently constituted; and
WHEREAS, the City Council, on behalf of the City of Yakima, believes it to be in the
City's best interest to enter into this Tolling Agreement in order to preserve the status quo under
the 4 -Party Agreement for a specified and finite period of time within which such negotiations
may be conducted, under the terms set forth in the Tolling Agreement; NOW, THEREFORE:
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BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The Acting City Manager of the City of Yakima is hereby authorized and directed to
execute the attached and incorporated 4 -Party Tolling Agreement.
ADOPTED BY THE CITY COUNCIL this 1st day of February, 2011.
ATTEST: Micah Cawle Mayor
iC)9_Ao‘at
City Clerk
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Ca -r\51-- act/ t c
I -
TOLLING AGREEMENT
This Tolling Agreement (Agreement") is entered by and between Yakima County
("County"), the City of Yakima ("Yakima") and the Terrace Heights Sewer District
("District"), collectively referred to as the Parties, as represented by the signatures
provided at the end of this Agreement; this Tolling Agreement shall be effective upon
the last date of signature hereto.
WHEREAS, the Parties to this Tolling Agreement, with the exception of the City
of Union Gap which has declined to enter into this Agreement, are parties to the 1976
"Agreement for Wastewater Treatment and Disposal Service", as amended (hereafter
the "4 -Party Agreement or "Agreement").
WHEREAS, Section 12 of the 4 -Party Agreement provides that the Agreement
"shall continue in full force and effect for a period of years established by the treatment
and disposal facility bonds, and may be renewed thereafter by mutual agreement."
WHEREAS, at the present time the Parties may have differing positions as to the
status and continuing effectiveness of the 4 -Party Agreement.
WHEREAS, it would be time-consuming for the Parties to attempt to resolve if,
and to what extent the 4 -Party Agreement remains effective and continues to serve the
best interests of the Parties, as well as to attempt to determine what other authority
would govern the relationship of the Parties and the issues addressed by the 4 -Party
Agreement.
WHEREAS, the Parties wish to avoid the time and expense that would be
required to determine the legal status of the 4 -Party Agreement and in the alternative
believe it to be in their mutual best interests to negotiate among themselves matters
addressed by the 4 -Party Agreement and the continued efficient and economic
provision of a wastewater service to the Urban Growth Area residents and businesses.
WHEREAS, the 4 -Party Agreement includes two (2) separate component
elements: (1) wastewater treatment, collection, disposal and operational considerations
(Sections 1-9); and (2) land use and regional planning (Section 10). The parties agree to
negotiate in good faith on all elements but recognize that during the effective period of
this Tolling Agreement such negotiation (or failure of negotiation) shall not adversely
impact the continued operation of the regional wastewater system as currently
constituted.
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WHEREAS, the parties further believe it to be in their mutual best interests to
enter into this Tolling Agreement in order to preserve the status quo under the 4 -Party
Agreement for a specified and finite period of time within which such negotiations may
be conducted.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the Parties do hereby covenant and agree as follows:
1. As used in this Agreement, the following terms shall have the following
meanings:
(a).
"Effective Date" shall mean the final date upon which all Parties
have ratified this Agreement by providing a signature in the space
provided below.
(b). "Tolling Period" shall mean the period from and including the
Effective Date (as defined above, regardless of the date of actual
party signatures) of this . Agreement until and including the
Expiration Date (as defined below) of this Agreement. This Tolling
Agreement shall expire two (2) years from the Effective Date of this
Agreement, at which time the statute of limitations shall no Longer
be tolled and the statute of limitations shall begin to run again.
(c). "Expiration Date" shall mean the date that falls exactly two (2)
years from the Effective Date of this Agreement.
(d). "Timing Defenses" shall mean any affirmative defenses to any
Claim that any Party may have to the extent based upon any statute
of limitations and/ or any failure of any Party to file a damage
claim, institute or commence litigation, or institute or commence
any other legal proceeding within some specified period, before a
specified date,, or before the happening of a specified event.
(e). "Claim" or "Claims" shall mean any contention that the 4 -Party
Agreement has terminated or that any Party has breached the terms
of the 4 -Party Agreement.
2. The Parties stipulate, covenant and agree that Timing Defenses applicable to the
Claims shall be tolled during the Tolling Period. Any limitation periods for filing
complaints or demands with any federal, state or municipal court, agency or
dispute resolution service applicable to any existing claim or cause of action,
including any. claim or cause of action grounded in contract, tort, statute or
equity that any of the Parties may possess against any of the other Parties
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relating to participation in the 4 -Party Agreement are tolled and shall be
suspended from running from the "Effective Date" set forth in this Agreement.
3. The Parties stipulate, covenant, and agree that this Agreement shall have no
effect on any Timing Defenses that may be available to any Party prior to the
Effective Date, and that all time periods prior to the Effective Date and after the
Expiration Date shall be included in the calculation of and running of any
applicable Timing Defenses. Nothing contained herein shall preclude any Party
from asserting any Timing Defenses to the extent that such defenses already exist
as of the Effective Date, and nothing herein shall be deemed to revive any Claims
barred as of the Effective Date. Furthermore, this Agreement shall have no effect
on any defenses asserted by any Party other than those described in this
Agreement.
4. The Parties stipulate, covenant and agree that by executing and entering into this
Agreement no Party waives or otherwise impairs, by estoppel or any other
means, any Parties' right and ability to raise any Timing Defenses available to for
the periods prior to the Effective Date and after the Expiration Date.
5. The Parties stipulate, covenant and agree to negotiate in good faith to reach an
agreement that will address and resolve all matters addressed by the 4 -Party
Agreement and all related agreements that have been created as revisions,
amendments, settlements and expanded expressions of the underlying 443arty
Agreement; the Parties further stipulate, covenant and agree that all issues
pertaining to the relationship of the Parties under the previous agreements
should be addressed in one over-all encompassing agreement that will best serve
the Parties' interests, resolve any existing claims and provide a foundation for
future successful cooperation of the Parties.
6. The Parties stipulate, covenant and agree that regardless of any provision in the
4 -Party Agreement to the contrary, the 4 -Party Agreement shall remain in effect
with respect to the provision of regional wastewater service (Sections 1 through
9, as amended) throughout the term of this Agreement. Thereafter, unless
otherwise established by the terms of a new wastewater service agreement, the
individual parties shall be free to take whatever action deemed necessary and
appropriate to be consistent with their understanding of the 4 -party Agreement's
status at that time. Regional planning obligations (Section 10) shall terminate
upon the expiration of the Tolling Agreement unless otherwise agreed by the
Parties.
7. The provisions of this Agreement comprise all of the, terms, conditions,
agreements and representations of the Parties respecting the tolling of the Timing
Defenses. This Agreement may not be altered or amended except by mutual
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written agreement executed by the Parties. The Parties hereby agree that terms
of this Agreement have not been changed, modified, or expanded by any oral
agreements or representations entered into or made by the Parties prior to or at
the execution of this Agreement.
8. The Parties hereto acknowledge that each of them has had the benefit of counsel
of their choice and has been offered an opportunity to review this Agreement
with chosen counsel. The Parties hereto further acknowledge that they have,
individually or through their respective counsel, participated in the preparation
of this Agreement, and it is understood that no provision hereof shall be
construed against any Party hereto by reason of any Party having drafted or
prepared this Agreement.
9. This Agreement may be executed in one or more original facsimile counterparts,
each of which shall be deemed an original, but also which together will
constitute one and the same instrument.
10. This Agreement shall terminate on the Expiration Date as provided in paragraph
1(c) above, unless otherwise extended in writing prior to termination by the
parties to be bound.
11. Nothing in this Agreement shall be construed as an admission or denial by any
of the Parties to the merits of any Party's claims or the merits of any Party's
defenses.
12. This Agreement is not intended to be admissible against any Party or anyone else
as an admission of any liability and/ or fault in any matter. Notwithstanding the
immediately preceding sentence, this Agreement, if otherwise admissible, may
be introduced into evidence at any proceeding held between or among the
Parties for the specific purpose of enforcing its terms.
13. Venue for any action taken to enforce or construe the terms of this agreement
shall reside in the Yakima County Superior Court in Yakima County,
Washington.
14. If any portion of this Agreement is changed per mutual agreement of the parties,
or any portion is held invalid by a court of competent jurisdiction, the remainder
of the Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, this Agreement has been signed by the following
Parties, or their representative counsel.
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CITY OF YAKIMA
By:
Michael A. Morales
Acting City Manager for City of Yakima
CITY CONTRAC f N0 l_11.®
RESOLUTION NO: 1 IRO
YAKIMA COUNTY
Mike Leita
Yakima County Commissioner
rd r
Dated this 2.1 day of re ---b • , 2011.
Dated this 15 day of , 2011.
By: Dated this54- day of ,? , 2011
Ra .. iott
Yakima County Commissioner
By:
Kev
Ya
Bouc y
ima o my Commissioner
TERRACE HEIGHTS SEWER DISTRICT
Dated this1 day of R.lo , 2011.
By: Or74K,,,,,,, Dated this / 5 day of ficaae-4, 2011.
Norman Alderson
Manager
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