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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: 1 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 2 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. jc/4-Party Tolling Agreement 1 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 jc/4-Party Tolling Agreement 2 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 jc/4-Party Tolling Agreement 3 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. jc/4-Party Tolling Agreement 4 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 jc/4-Party Tolling Agreement 5