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HomeMy WebLinkAboutR-2023-082 Resolution authorizing an agreement with Yakima County Development Association (YCDA) to establish and manage a Minimum Revenue Guarantee Airline Fund RESOLUTION NO. R-2023-082 A RESOLUTION authorizing an agreement with Yakima County Development Association (YCDA) to establish and manage a Minimum Revenue Guarantee Airline Fund. WHEREAS, the City owns and operates the Yakima Air Terminal-McAllister Field in accordance with applicable Federal, State, and Local regulations; and WHEREAS, Alaska Airlines, Inc., an Alaska Corporation ("Alaska") is a major airline serving the United States and international destinations, and is the primary provider of air service to Yakima; and WHEREAS, Alaska is willing to provide additional scheduled air service between Yakima, Washington ("YKM") and Seattle, Washington ("SEA"), on the terms and conditions set forth in a separate agreement between the City and Alaska for an additional flight into and out of the Yakima Air Terminal; and WHEREAS, Alaska requires a Minimum Revenue Guarantee to bring additional service to Yakima in an amount not to exceed $500,000.00, which funds are dedicated to fund loss of revenue to Alaska Airline during its one-year term of the additional scheduled flight; and WHEREAS, the Yakima County Development Association has agreed to assist in the establishment and management of the Minimum Revenue Guarantee Airline Fund; and WHEREAS, the City Council finds that the opportunity to obtain the services of Alaska Airlines for the City of Yakima is very important to the future of the City, and offers an opportunity for economic expansion and growth within the entire local area; and WHEREAS, the City Council of the City of Yakima finds that it is in the best interests of the City and its residents to enter into an agreement with YCDA to create, promote, and administer the Minimum Revenue Guarantee Airline Fund; 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 agreement with the Yakima County Development Association (YCDA) to establish and manage a Minimum Revenue Guarantee Airline Fund that is necessary to fulfill Air Service Agreement Minimum Revenue Guarantee (MRG) contract with Alaska Airlines and the Yakima Air Terminal - McAllister Field during its one-year term of its scheduled flight. ADOPTED BY THE CITY COUNCIL this 6th day of June, 2023. ATTEST: KiMA�`1% Janice Deccio, Mayor y ^""Xu- 111 IPi p no. _ ti, A A P :SEAL � ; Rosalinda Ibarra, City .1� 0�� h,' SHHIN� 1 AGREEMENT BETWEEN THE CITY OF YAKIMA AND YAKIMA COUNTY DEVELOPMENT ASSOCIATION THIS AGREEMENT is entered into this o2 day of J u ne- , 2023, by and between the City of Yakima(hereinafter referred to as the "City") and the Yakima County Development Association (hereinafter referred to as the "Recipient"). WHEREAS, Alaska Airlines (sometimes referred to as "Alaska") has agreed to provide an additional flight into, and out of, Yakima on a daily basis under a contract with the City; and WHEREAS, the contract with Alaska Airlines requires that the City have a Minimum Revenue Guarantee Airline Fund in the minimum amount of$500,000.00 (the"Fund") set aside to pay the difference between the Actual Costs of the flight and the actual revenue Alaska receives from those flights over the course of the contract, approximately one year; and WHEREAS, the City is seeking donations from local businesses and entities into the fund to ensure the additional service; and WHEREAS, the City wishes to engage the Recipient to assist the City in collecting and holding the funds from all sources that will go towards making any necessary payment to Alaska Airlines; and WHEREAS, it was determined that it was in the best interest of all parties to have an independent third party hold the donation funds until the City provides to Recipient the invoice from Alaska Airlines at the end of the contract term seeking payment for the difference between Actual Costs and ticket sale/additional revenue from the flights; NOW, THEREFORE, it is agreed between the parties hereto as follows: 1. SCOPE OF SERVICE A. MINIMUM REVENUE GUARANTEE AIRLINE FUND ("FUND") The Recipient will be responsible for setting up an interest-bearing account at Banner Bank (the"Account") for the sole purpose of holding funds from various jurisdictions, including the City of Yakima and Yakima County, as well as business and other entities wishing to contribute to the Fund. Interest payments shall be invested back into the Fund and be available for reimbursement to Alaska pursuant to the contract between Alaska and the City. The Recipient will have authority to, and is required to, deposit all funds into the Account within 72 hours of receipt. The Recipient shall only withdraw funds from the Account upon request from the City and supported by an invoice or payment demand from Alaska Airlines, at which point Recipient shall transfer the funds to the City and the City shall promptly pay the invoice or payment demand from Alaska. It is anticipated that Alaska will only be providing one invoice at the end of the year of service, however, if Alaska determines it is appropriate to invoice more than once per year, Recipient shall transfer funds from the Account to the City upon said invoices or payment demands as they arise. B. SOLICITATION OF DONATIONS The Recipient will support the City's efforts to solicit donations for the Fund so that the Fund reaches a minimum of$500,000.00 during the term of the contract with Alaska Airlines. In the event Alaska Airlines requests, and the City enters into, an extension to the contract for the additional flight, and said extension requires a minimum fund amount, Recipient agrees to support the City's efforts to solicit additional donations for the extension period(s). The Recipient and City will work together to solicit donations when appropriate, and will coordinate promotional materials, media appearances, press releases and other public content during the course of this Agreement. C. REIMBURSEMENT OF FUNDS In the event at the end of the contract between Alaska Airlines and the City there are remaining funds in the Fund that have not been paid to Alaska Airlines, Recipient shall return the funds to the donors on a pro rata basis. For example, if Yakima County contributed 30% of the total funding during the contract period (including any renewals), it would receive 30%of the remaining fund balance as reimbursement. Funds shall be reimbursed within sixty (60) days after the final invoice from Alaska Airlines is presented to Recipient and funds are transferred to the City. 2. TIME OF PERFORMANCE Services of the Recipient shall start on the effective date of this Agreement and end upon disbursal of all funds pursuant to this Agreement, or within ninety (90) days of payment to the City upon invoice from Alaska to pay Alaska pursuant to the Alaska Airlines contract with the City of Yakima, a copy of which will be attached to this Agreement, whichever is longer. Any renewal or amendments shall be provided to Recipient and attached to this Agreement as well. 3. BUDGET Recipient shall receive no funding from the City to administer this Agreement, collect, solicit, hold, or disburse the funds. 4. STAFFING Recipient shall provide adequate staffing to administer the requirements outlined in this Agreement. Jonathan Smith of YCDA shall be the primary staff person and key personnel for purposes of this Agreement. Any changes in key personnel assigned or their general responsibilities under this Agreement are subject to the prior approval of the City. 5. NON-DISCRIMINATION The Recipient shall comply with all Federal, State and local laws prohibiting discrimination on the basis of age, sex, marital status, race, creed, color, national origin, the presence of any sensory, mental or physical handicap or any other group protected under local, state or federal law existing or hereafter created. 6. NOTICES Notices required by this Agreement shall be in writing and delivered via mail (postage prepaid), commercial courier, or personal delivery. Any notice delivered or sent as aforesaid shall be effective on the date of delivery or sending. All notices and other written communications under this Agreement shall be addressed to the individuals in the capacities listed below, unless otherwise modified by subsequent written notice. Communication and details concerning this Agreement shall be directed to the following representatives: City: Recipient: City Manager Jonathan Smith City of Yakima Yakima County Development Association 129 North 2nd Street 10 North 9th Street Yakima, WA 98901 Yakima, WA 98901 (509) 575-6000 (509) 575-1140 7. SPECIAL CONDITIONS A. Recipient shall provide copies to the City of any solicitation letters, media releases, or other documents that go out to the public seeking donations or providing updates on matters associated with the Alaska Airlines extra flight prior to release for review and comment. B. Recipient shall provide updates to the City Council, either in writing or in person, upon request. 8. GENERAL CONDITIONS A. General Compliance The Recipient agrees to comply with all other applicable Federal, state and local laws, regulations, and policies, including, but not limited to regulations associated with federal and ARPA grant money where relevant and federal accounting regulations and policies associated with receiving federal monies, governing the funds and the Fund provided for under this Agreement. B. independent Contractor Nothing contained in this Agreement is intended to, or shall be construed in any manner, as creating or establishing the relationship of employer/employee between the parties. The Recipient shall at all times remain an "independent contractor"with respect to the services to be performed under this Agreement. The City shall be exempt from payment of all federal and/or state Unemployment Compensation, FICA, retirement, life and/or medical insurance and Workers' Compensation Insurance, as the Recipient is an independent contractor. C. Hold Harmless and Indemnification Recipient agrees that it is financially responsible for any audit exception or other financial loss to the City which occurs due to its negligence or its failure to comply with the terms of this Agreement. ii. Recipient further agrees to defend, release indemnify and hold harmless the City, its elected and appointed officials, employees, and agents from and against any and all claims, demands and/or causes of action of any kind or character whatsoever arising out of or in connection with the performance of this Agreement by the Recipient, its employees, subcontractors, agents,or volunteers for any and all claims by any persons for alleged personal injury, death, or damage to their persons or property to the extent caused by the negligent acts, errors or omissions of the Recipient, its employees, agents, subcontractors, volunteers or representatives. In the event that any suit or claim for damages based upon such claim, action, loss, or damages is brought against the City, the Recipient shall defend the same at its sole cost and expense; provided that the City retains the right to participate in said suit if any principle of governmental or public law is involved; and if final judgment be rendered against the City and/or its officers, agents, and/or employees or any of them or jointly against the City and the Recipient and its respective officers, agents, subcontractors, employees, volunteers or any of them, the Recipient agrees to fully satisfy the same and the Recipient shall reimburse the City for any cost and expense which the City has incurred as a result of such claim or suit, including, but not limited to attorneys' fees, costs and appeal costs and fees. The provisions of this section shall survive the expiration or termination of this Agreement. D. Insurance i. The Recipient shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Recipient, its agents, representatives, or employees. ii. Recipient's maintenance of insurance as required by the Agreement shall not be construed to limit the liability of the Recipient to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. iii. Recipient shall obtain insurance of the types, coverage and minimum limits described below: a. Commercial General Liability. Before this Agreement is fully executed by the parties, Recipient shall provide the City with a certificate of insurance and accompanying endorsement as proof of commercial liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) general aggregate. The certificate and endorsement shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, its elected and appointed officials, officers, agents, employees, and volunteers as additional insureds. The insured shall not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. 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. b. Commercial Automobile Liability Insurance. If Recipient owns any vehicles, before this Agreement is fully executed by the parties, Recipient shall provide the City with a certificate of insurance and endorsement as proof of commercial automobile liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage. Automobile liability will apply to"Any Auto" and be shown on the certificate. ii. if Recipient does not own any vehicles, only"Non-owned and Hired Automobile Liability" will be required and may be added to the commercial liability coverage at the same limits as required in that section of this Agreement, which is Section (D)(iii)(a) above entitled "Commercial General Liability Insurance." iii. Under either situation described above in Section (D)(iii)(b)(i) or (D)(iii)(b)(ii), the required certificate of insurance and endorsement shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, its elected and appointed officials, officers, agents, employees, and volunteers as additional insureds. The insured shall not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. 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. c. Workers' Compensation. Statutory workers'compensation and employer's liability insurance as required by state law. d. Professional Liability. Before this Agreement is fully executed by the parties, Recipient shall provide the City with a certificate of insurance and endorsement as proof of professional liability coverage with a total liability limit of the limits required in the policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per claim, and Two Million Dollars ($2,000,000.00) aggregate. The certificate and endorsement shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The insured shall not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide. If the policy is written on a claims made basis the coverage will continue in force for an additional two years after the completion of this Agreement. e. Directors' and Officers' Insurance. Directors' and Officers' insurance appropriate to the Recipient's actions. If the Professional Liability policy covers the actions of the Recipient's directors and officers that would be covered under a Directors' and Officers' policy, this requirement may be met by that liability insurance. iv. If any of the required insurance provides coverage on a claims-made basis: a. The retroactive date must be on or before the date of the Agreement or the beginning of services provided to the City. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after expiration or termination of the Agreement. b. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, Recipient must purchase "extended reporting" coverage for a minimum of five (5) years after completion of services provided by this Agreement. v. Recipient's Commercial General Liability insurance policies are to contain, or be endorsed to contain that they shall be primary insurance as respect to the City. Any insurance, self-insurance, or self-insured pool coverage maintained by the City shall be excess of the Recipient's insurance and shall not contribute with it. vi. Recipient shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Recipient before commencement of the work. vii. Failure of either or all of the additional insureds to report a claim under such insurance shall not prejudice the rights of the City, its elected and appointed officials, officers, employees, agents, and representatives thereunder. The City and the City's elected and appointed officials, officers, principals, employees, representatives and agents shall have no obligation for payment of premiums because of being named as additional insureds under such insurance. viii. Failure on the part of the Recipient to maintain the insurance as required shall constitute a material breach of this Agreement, upon which the City may, after giving five (5) business days' notice to the Recipient to correct the breach, immediately terminate the Agreement or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Recipient from the City. ix. If the Recipient maintains higher insurance limits than the minimums shown above, the City shall be insured for the full available limits of Commercial General and Excess liability maintained by the Recipient for each policy, irrespective of whether such limits maintained by the Recipient are greater than those required by this Agreement or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained by the Recipient. x. The Recipient shall not use or disclose Personal Information, as defined in RCW 19.255.010, in any manner that would constitute a violation of federal law or applicable provisions of Washington State law. Recipient agrees to comply with all federal and state laws and regulations, as currently enacted or revised, regarding data security and electronic data interchange of Personal Information. E. Amendments The City or Recipient may amend this Agreement at any time provided that such amendments make specific reference to this Agreement, and are executed in writing, signed by a duly authorized representative of each organization, and approved by the City's governing body, or its designee. Such amendments shall not invalidate this Agreement, nor relieve or release the City or Recipient from its obligations under this Agreement. F. Assignment and/or Subcontracting The Recipient shall not assign or subcontract any portion of the services provided within the terms of this Agreement without obtaining prior written approval from the City. The City has the sole authority to decide whether assignment and/or subcontracting will be allowed. All terms and conditions of this Agreement shall apply to any approved subcontract or assignment related to the Agreement. G. Suspension or Termination i. Termination for Cause. City may suspend or terminate this Agreement if the Recipient materially fails to comply with any terms of this Agreement, which include, but are not limited to, the following: a. Failure to comply with any of the rules, regulations or provisions referred to herein, or such statutes, regulations, executive orders, policies or directives as may become applicable at any time; b. Failure, for any reason, of the Recipient to fulfill in a timely and proper manner its obligations under this Agreement; c. Ineffective or improper use of funds provided under this Agreement; or d. Submission by the Recipient to the City reports that are incorrect or incomplete in any material respect. ii. Termination by Agreement. This Agreement may be terminated at any time, in whole or in part, upon the written agreement of Recipient and City. iii. Termination for Convenience. Either party may terminate this Agreement for any reason, or no reason, by providing the other party ninety (90) calendar days written notice. Upon termination of this Agreement under any section above, any money in the Fund not already transferred to the City for payment of an invoice or demand from Alaska Airlines shall be transferred to the City of Yakima to be held in an account to continue providing funds for the additional air service during the term of the contract between the City of Yakima and Alaska Airlines. Additionally, Recipient shall provide an audit of the Fund indicating the dates and amounts which were deposited and withdrawn from the Fund. 9. ADMINISTRATIVE REQUIREMENTS A. Financial Management If the Recipient is a governmental entity, the Recipient shall comply with the requirements and standards of OMB Circular A-128, "Audits of State and Local Government," and Circular A-87, "Principles for Determining Costs Applicable to Grants and Contracts with State, Local and Federally recognized Indian Tribal Governments," and with 2 CFR Part 200. If the Recipient is not a governmental entity, the Recipient shall comply with the requirements and standards of 2 CFR Part 200, and all other applicable federal laws, regulations, executive orders and guidelines. B. Documentation and Recordkeeping i. Records to be Maintained The Recipient shall maintain all records required by the Federal regulations specified in 24 CFR 570.506 that are pertinent to the activities to be funded under this Agreement, all records necessary to document compliance with any other applicable federal, state, or local law or regulation, and all records relevant or associated with this Agreement and the Scope of Work. ii. Retention Required records shall be retained for a period of six (6) years after termination of this Agreement, except as follows: (1) Records that are the subject of audit findings shall be retained for six (6) years after the program ends or six (6) years after such findings have been resolved, whichever is longer; and (2) records for nonexpendable property shall be retained for six (6) years after its disposition. Nonexpendable property is defined in 2 CFR 200.333. iii. Inspection and Disclosure of Records The Recipient acknowledges that this Agreement and any other information provided by it to the City and/or relevant to the program(s) described in the Exhibit(s) and Attachment(s) are subject to the Washington State Public Records Act, Chapter 42.56 RCW. Records relating to this Agreement shall at all times be subject to inspection by the City. Recipient shall provide the City sufficient, safe and proper facilities and/or send copies of the requested documents to the City upon City's request. All records related to Recipient's services under this Agreement must be made available to City, upon request. They must be produced to third parties, if required pursuant to the Public Records Act, or by law. All records relating to Recipient's services under this Agreement must be managed and retained by Recipient for the minimum period of time required pursuant to the Washington State Secretary of State's records retention schedule. This section shall survive any expiration or termination of this Agreement. iv. Close-Out The Recipient's obligation to the City shall not end until all close-out requirements are completed. Activities during this close-out period shall include, but are not limited to: making final payment to the City, distribution of unused funds pursuant to the terms of this Agreement (if any), and determining the custodianship of records. Notwithstanding the foregoing, the terms of this Agreement shall remain in effect during any period that the Recipient has control over the Fund. v. Audits and Inspections The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by the City, and Federal or State officials if appropriate, so authorized by law during the performance of this Agreement and during the period of retention specified in this Agreement. vi. Access to Records. a. Recipient agrees that City may carry out monitoring and evaluation activities so as to ensure compliance by Recipient with this Agreement and with all other laws, regulations, and ordinances related to the performance hereof. b. At any reasonable time and as often as City may deem necessary, Recipient shall make its records available to the City, federal or state auditors, or any of their authorized representatives, and shall permit them to audit, examine, and make excerpts and/or copies of the same. Recipient records shall include, but shall not be limited to, the following: payroll, personnel and employment records, procurement bidding documents, contracts, sales closing statements, applications, award notifications, receipts, requests for reimbursement, and invoices related to this Agreement. c. The City shall have the right to review and audit all records of the Recipient pertaining to any payment by the City. Said records shall be maintained for a period of seven years after the completion of the project. vii. Debarment and Suspension Certification Entities that are debarred, suspended, or proposed for debarment, by the U.S. Government are excluded from receiving federal funds and contracting with the City. Recipient, by signature to this Agreement, certifies that Recipient is not currently debarred, suspended, or proposed for debarment, by any Federal department or agency. Recipient also agrees that it will not enter into a subcontract with a person or entity that is debarred, suspended, or proposed for debarment. Recipient will notify the City if it, or a subcontractor, is debarred, suspended, or proposed for debarment, by any Federal department or agency. Debarment status may be verified at °q _s dwww.sam.govi. 10. GOVERNING LAW AND VENUE A. The venue for any action to enforce or interpret this Agreement shall be in the Superior Court of Washington for Yakima County. B. This Agreement has been and shall be construed under the laws of the State of Washington. 11. SEVERABILITY It is understood and agreed by the parties hereto that if any part, term, or provision of this Agreement is held by the courts to be illegal, the validity of the remaining provisions shall not be affected; and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. If it should appear that any provision hereof is in conflict with any federal or state statutory provision, said provision which may conflict therewith shall be deemed modified to conform to such statutory provision. 12.WAIVER The City's failure to act with respect to a breach by the Recipient does not waive its right to act with respect to subsequent or similar breaches. The failure of the City to exercise or enforce any right or provision shall not constitute a waiver of such right or provision. 13. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the City and the Recipient for the use of funds received under this Agreement and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between the City and the Recipient with respect to this Agreement. 14.SURVIVAL Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this agreement and shall be binding on the parties to this Agreement. DATED this <-1� day of June, 2023 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY YAKIMA YAKIMA COUNTY DEVELOPMENT ASS'N Azu________ By: Robert Harrison, City Manager By• onathan Smit , Direc pr AT7T: 12,66,,,- _____.......„,., _,..4,,,,,m4 •„, 'pa City Clerk Chun-The, I� ao)-3 °� SEAL ",NTRaCT ITi j ii • I%%SHING = 1 sAki. ,'''%,F`Y�'�11�1 1,C: .r',, \III'or : k#,C"), :..... Id/ BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 12. For Meeting of: June 6, 2023 ITEM TITLE: Resolution authorizing an agreement with Yakima County Development Association (YCDA)to establish and manage a Minimum Revenue Guarantee Airline Fund SUBMITTED BY: Jaime Vera,Airport Operations and Maintenance Manager SUMMARY EXPLANATION: Alaska requires a Minimum Revenue Guarantee to bring additional service to Yakima in an amount not to exceed $500,000.00, which funds are dedicated to fund loss of revenue to Alaska Airline during its one-year term of the additional scheduled flight and the Yakima County Development Association has agreed to assist in the establishment and management of the Minimum Revenue Guarantee Airline Fund ITEM BUDGETED: Yes STRATEGIC PRIORITY: Economic Development APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Adopt resolution. ATTACHMENTS: Description Upload Date Type 0 Resolution 6/2/2023 Corer Memo ❑ Contract 5/31/2023 Contract