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HomeMy WebLinkAboutR-1994-161 Yakima Interurban Lines AssociationRESOLUTION NO. R94-161 A RESOLUTION authorizing and directing the City Manager and City Clerk of the City of Yakima to execute a lease and operating agreement with Yakima Interurban Lines Association, Inc. for electric railway street car operation for 1995 WHEREAS, the City owns an electric railway system, donated to the City of Yakima by the Yakima Valley Transportation Company, over which system the Yakima Interurban Lines Association has for many years operated railroad street cars by agreement with the City, and WHEREAS, Yakima Interurban Lines Association, Inc. desires to continue the street car operation for the year 1995 as provided by the attached agreement document; and WHEREAS, the City Council deems it to be in the best interest of the City that the attached agreement be executed, accordingly, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk of the City of Yakima are hereby authorized and directed to execute the attached agreement with Yakima Interurban Lines Association, Inc. for 1995 subject to Yakima Interurban Lines Association, Inc. presenting to the City Manager proof of adequate insurance coverage in conformance with the terms of the "Electric Railway Lease, Operating and Indemnification Agreement" which is attached hereto and by reference made a part hereof. ADOPTED BY THE CITY COUNCIL this2othday A1`IEST: City Clerk of December ,1994. gaz Mayor ELECTRIC RAILWAY LEASE, OPERATING, AND INDEMNIFICATION AGREEMENT THIS LEASE AGREEMENT, executed this O '`'' day of b , 1994, by and between the City of Yakima, hereinafter called the City, and Yakima Interurban Lines Association. Inc., hereinafter called YILA: SD WITNESSETH: SSC WHEREAS, the City owns an Inc railway system, with some tracks outside and some tracks inside the Yakima City boundary;) onsistntac ely of properties of the former Yakima Valley Transportation Company, as those prod - ictk nsferred and conveyed to the City by virtue of a 'Bill of Donation', a "Donation Quitclaim- -•", and also by a 'YVT Blanket Assignment of Third Party Agreements to City of Yakima"; anctGOO WHEREAS, the City desires to operate a portion of such electric railroad system which portion is depicted on the map (EXHIBIT A); and WHEREAS, the City owns one electric railway trolley car and exercises the management and control over another trolley car, owned by Yakima County, by virtue of an agreement between the City and Yakima County dated January 29, 1974, which trolley cars have been operated on such electric railroad system for a number of years as a tourism promotion by agreement currently between YILA and the City ; and WHEREAS, inasmuch as Yakima Valley Transportation Company transferred operation of its railroad system and conveyed it to the City, as recited above, YILA desires to continue the operation of the electric railway cars on that portion of such railroad system depicted on EXHIBIT A, and to promote the trolley car rides to promote tourism for the benefit of the general public of the City and its environs; and the City recognizes that the general public will benefit from the continued operation of the trolley cars, and therefore the City is willing to allow YILA to operate the trolley cars on that railroad system depicted on EXHIBIT A as provided by this agreement, NOW, THEREFORE, in consideration of the premises, and of the promises of the parties hereto; and in also consideration of the benefit to inure to the general public of the City and its environs by the continued operation of the trolley cars under by this agreement, the parties mutually agree as follows: 1 . DELIVERY OF ELECTRIC RAILROAD SYSTEM TO YILA. The City hereby leases and delivers possession to YILA of all property owned by the City constituting the electric railroad system including, but not limited to, the trolley cars, all equipment acquired from Yakima Valley Transportation Company listed on the Bill of Donation, and the track, catenary, appurtenances, and the real property of the existing system both inside and outside the City boundary as depicted on the attached map and legal description (EXHIBIT A) which is incorporated herein. 2 . LICENSES, PERMITS, ETC. Included in the delivery to YILA is the right and responsibility for administration of pipeline crossing licenses, property use permits, subleases, and similar agreements relating to the use of the property by third parties; and YILA is hereby assigned the right to collect and retain as revenue to YILA all fees provided by such licenses, permits, leases and similar agreements. 3 . YILA ACCEPTANCE OF DELIVERY. YILA shall possess the property referred to in Paragraph 1 above. YILA shall maintain an inventory which shall be updated at least yearly, by identifying and making a written List of all equipment, real property, trolleys, bams, and other property related to the maintenance and operation of the trolley cars and the electric railroad system. 4. ELECTRIC RAILWAY SYSTEM OPERATION. YILA shall operate the electric railway trolley cars and trolley system, and further shall administer the railroad system and its related equipment and properties, all without cost or liability burdening the City; and YILA shall assume, perform and otherwise be responsible for all duties, obligations, and liabilities related to possession and operation of the railroad system, its equipment and related properties which would be duties, obligations, or liabilities of the City except for this agreement. lap/contracts/yila agreement 12/16/94 11:59 AM ELECTRIC RAILWAY LEASE, OPERATING, AND INDEMNIFICATION AGREEMENT: PAGE 1 5. SYSTEM USE RESTRICTED. The use made by YILA of the railroad system and related properties and equipment shall be limited to operation of the electric railway trolley cars only for transport of passengers as a tourist attraction and tourism promotional activity, and to activities necessarily related to such operation or otherwise required to fulfill obligations under this agreement. The use by YILA of the trolleys, tracks or related property or equipment for any other purpose shall constitute grounds for the immediate termination of this agreement by the City. 6 . EQUIPMENT MAINTENANCE. YILA shall maintain in good repair the trolley cars and all other properties and equipment constituting the system, all without cost to or liability on the part of the City. 7 . TRACK MAINTENANCE. Tracks located on any City street shall be maintained so the tops of the rails shall be level with the surface of the street; provided, YILA shall not be required to superelevate or depress one rail of any track or otherwise to change the crosslevel of any track or tracks contrary to standard railroad engineering practices. YILA shall maintain the surface of the streets between the rails of the tracks and for a distance of eighteen (18) inches on the outside of each rail in a manner satisfactory to the City's Director of Public Works. 8 . PERSONNEL. YILA shall provide all personnel needed to operate and maintain the trolley cars, property and the trolley system business, without cost or liability to the City. 9. NEWLY ACQUIRED EQUIPMENT. Any equipment acquired by YILA for use in the trolley operation under this agreement shall remain the property of YILA unless the equipment is attached to or incorporated in property owned by the City so that its removal would result in substantial or irreparable damage to City property, in which event that equipment acquired by YILA shall become City property without payment or other consideration by the City to YILA. 10. YILA AS INDEPENDENT CONTRACTOR. The parties intend that YILA shall manage and operate an electric railway trolley car business, and maintain the equipment and properties, as an independent contractor and not as an agent of the City. YILA shall have the authority to set the amount of fares and to retain all earned income and donations derived from the trolley business. No officer, employee or agent of YILA shall be deemed to be an agent or representative of the City in connection with the trolley operation. No person shall be deemed an employee or agent of the City on the basis that such person acted as an employee of YILA or otherwise acted on behalf of YILA . In promoting or operating the electric railway trolleys, YILA shall not use the designation "City of Yakima" or "County of Yakima" in any way which might give the appearance or impression that YILA is and agent of or is otherwise connected with the City or County of Yakima, except as an independent contractor; provided, that the two trolley cars to be operated pursuant to this agreement may retain their names of "City of Yakima" and "County of Yakima". No officer, employee or agent of YILA is authorized to make any statement on behalf of either the City of Yakima or Yakima County. 1 1 . TOURISM PROMOTION. To any extent determined by the City from time to time, the City may cooperate with VILA in the promotion of the electric railway system as a tourist attraction in the greater Yakima area, but the city shall not be obligated to promote the electric railway system as a tourist attraction in the greater Yakima area. 12. COMPLIANCE WITH LAWS. YILA shall obtain necessary permits or licenses from the City, State or federal government, or any other governmental agency having jurisdiction over the electric railway business by YILA; and YILA otherwise shall operate the electric railway trolley cars, and the system and business, in accordance with all applicable laws, rules and regulations. 1 3. ADDITIONAL REGULATIONS. In addition to complying with all other applicable laws, rules and regulations, YILA agrees to comply with the following regulations in operating the trolley cars. (a) The speed of trolley cars and all other on -track equipment shall not exceed five miles per hour on 6th Avenue between Pine Street and Walnut Street, and shall not exceed twelve miles per hour elsewhere. lap/contrads/yila agreement 12/16/94 11:59 AM ELECTRIC RAILWAY LEASE, OPERATING, AND INDEMNIFICATION AGREEMENT: PAGE 2 (b) The electric railway trolleys and other on -track equipment shall not be operated North of Pine Street or South of Fruitvale Boulevard during the following time periods on Mondays through Fridays: Hours Prohibited: 1:00 a.m. to 9:00 a.m. 11:30 a.m. to 1:00 p.m. 4:30 p.m. to 6:00 p.m. (c) All trolleys and all other on -track equipment shall obey signals at intersecting streets, and shall be preceded by a flag person at intersections which are protected by stop signs. 1 4. DEBTS AND LIENS. YILA shall not allow any lien to attach to City property. YILA shall not allow any tax or debt to be imposed on the City as a consequence of YILA's possession, occupancy or use of City equipment or property. In the event any lien, tax, or debt is incurred or arises by operation of law, YILA shall immediately pay and satisfy such lien tax, or debt. 1 5. INDEMNIFICATION. YILA shall indemnify and hold the City, and/or its officers, employees, and agents harmless from, and YILA shall defend the City, and/or its officers, employees, and agents against any and all claims, liability, or other obligations based on or resulting from any act or omission of YILA including without limitation, YILA's possession, operation, or maintenance of railway properties, trolley cars, the trolley system, or the trolley business. 16. INSURANCE REQUIREMENT. YILA shall, prior to any possession, operation, or maintenance of railway properties, trolley cars, the trolley system, or the trolley business under this agreement, obtain a general public liability policy insuring against bodily injury and property damage with a combined single limit of not less than one million dollars ($1,000,000) for each incident. The City, and its officers, employees and agents shall be named as insured parties along with VILA. Further, the policy shall insure the contractual undertakings of YILA under this agreement, including the indemnification provisions of paragraph 10.B. above. 17. TRACK PROPERTY PRESERVATION. YILA may protect track property by whatever legal means are necessary, in order to keep the complete electric railway corridor intact and usable. YILA may acquire such additional property as it deems necessary to provide for the trolley operation under this agreement. However, no power of eminent domain is purported to be delegated to YILA by this agreement. Furthermore, nothing in this agreement requires the City to exercise its power of eminent domain for the benefit of YILA or the trolley system or business. 1 8. RESERVATION OF RIGHTS. The City reserves the right, as against any claim by or detriment to YILA, to control and regulate the public streets and other railway property over which any rail tracks traverse, and to improve its streets and street right-of-way, and to install and maintain sewers, water mains or any other public works. The City reserves the right to sell that portion of the railroad system described in Exhibit A, together with all appurtenances. In the event of the conveyance of the aforementioned portion of the railroad system, the City shall notify YILA in writing prior to any transfer. From and after said transfer YILA shall not perform any activity covered by this agreement on said portion of the system without the written approval of the City. 1 9. TROLLEY FUND. Funds received from the salvage of abandoned portions of the YVT system shall be used for capital improvements to the system at the City's sole discretion. 2 0 . ASSIGNABILITY. No rights under this agreement may be assigned by YILA to any other person, corporation or association without the City's prior written consent. 21. DEFAULT - TERMINATION A . Notice Of Default - Termination. In the event of failure or default by YILA in satisfying any duty or obligation under this agreement, the City may terminate this agreement by delivering to YILA written notice of default and intent to terminate. Such notice shall specify the act or omission which constitutes the default. In the event YILA fails to cure such default within forty-five (45) days from the delivery of the notice, then this agreement shall automatically terminate. lap/contracts/ylla agreement 12/16/94 11:59 AM ELECTRIC RAILWAY LEASE, OPERATING, AND INDEMNIFICATION AGREEMENT: PAGE 3 B. Immediate Termination. The provisions of paragraph 16.A. above shall not apply to a breach of this agreement by YILA in expanding its operations beyond the transport of passengers, only, as a tourist attraction and promotion activity; nor shall those provisions apply in the event YILA fails to obtain or maintain in full force and effect the insurance policy required by this agreement. In either such event, this agreement will terminate immediately on notice by the City to YILA. 22. NOTIFICATION Any notice by either party to the other pertaining to this agreement or the trolley operation shall be given in writing and delivered by certified mail or by personal service as follows: City of Yakima c/o City Manager 129 North 2nd Street Yakima, Washington 98901 (509) 575-6040 Yakima Interurban Lines Association P. O. Box 649 Yakima, Washington 98907 (509) 575-1700 23. YILA OFFICE LOCATION. YILA shall maintain an office at the address stated above, or at some other place within the City of Yakima, with a telephone or telephone recording device. YILA shall immediately notify the City in writing of any change in the name of the responsible person to receive notification under Paragraph 18.A above, or of any change of the office address where notice is to be given, or YILA's telephone number. 2 4. TERM. This agreement shall be effective when signed by an authorized representative of each party, and shall terminate at 12:01 a.m. on January 1, 1996. 25. NO WARRANTIES. The City of Yakima makes no warranties, expressed or implied, as to any aspect of any trolley cars, or other property, real or personal, or the railway system. EXECUTED AT YAKIMA, WASHINGTON, the day and year first above written. CITY OF YAKIMA ATTEST: KAREN S. ROBERTS, City Clerk City Contract No. G Resolution -��I Bj R: . ZAIS, Jr., Yakima City Manager YAKIMA INTERURBAN LINES ASSOCIATION, INC. By /ZA lap/contracts/yila agreement 12/16/94 11:59 AM ELECTRIC RAILWAY LEASE, OPERATING, AND INDEMNIFICATION AGREEMENT: PAGE 4 41- EleLtr Railway Trac Exhibit N YVT Electri Railway Tra IP Scale 1 3300 0 1650 3 Created December 16, 1993