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ILA - Franklin County TRAC 1994 and Addendum No.1 2014INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF PASCO AND FRANKLIN COUNTY, WASHINGTON, REGARDING THE FINANCING, ACQUISITION AND OWNERSHIP OF A MULTI-PURPOSE ARENA U10l7 EXHIBITION FACILITY Foster Pepper 6 Shefelman 1111 Third Avenue, Suite 3400 Seattle, Washington 98101 r ; L4 = Table of Contents ARTICLE IV TRAC PROPERTIES . . . . . . . . . . . . . . . . . 15 Section 4.1. Acquisition of Personal Property . . Page s ARTICLE I DEFINITIONS 3 Section 1.1. Interpretation . . . . . . . . . 3 Section 1.2. Definitions . . . . . . . . . . 3 ARTICLE II COOPERATIVE PROJECT . . . . . . . . . . . 10 Section 2.1. Purpose of this Agreement . . . 10 Section 2.2. The TRAC Facility . . . 10 Section 2.3. Control of the TRAC Facility . . 10 Section 2.4. Financing of the TRAC Facility . 11 Section 2.5. Tax Covenant . . . . . . . it Section 2.6. Debt Capacity of City . . . . . 12 ARTICLE III COUNTY FUNDS . . . . . . . . . . . . . . . . 12 Section 3.1. Parking Fund . . .. . . 12 Section 3.2. Maintenance and Operations Fund 13 Section 3.3. Construction Fund . . . . . . . 13 Section 3.4. Revenue Fund . . . . . . . . . . 13 Section 3.5. Renewal and Replacement Fund . . 14 ARTICLE IV TRAC PROPERTIES . . . . . . . . . . . . . . . . . 15 Section 4.1. Acquisition of Personal Property . . 15 Section 4.2. Ownership of the TRAC Facility . . . 15 Section 4.3. Disposal of the TRAC Facility . . . 16 ARTICLE V WARRANTIES AND COVENANTS . . . . . . . . . . . . . 16 Section 5.1. Warranties . . . . . . . . . . . . . 16 Section 5.2. Covenants . . . . . . . . . . . . . 17 Section 5.3. Maintenance . . . . . . . . . . 18 Section 5.4. Alterations and Additions . . . . . 18 Section 5.5. Legal Claims and Attorneys' Fees . . 18 ARTICLE VI DESIGN OF THE TRAC FACILITY . . . . . . . . . . . 20 Section 6.1. Design and Construction Budget . . . 20 Section 6.2. Schematic Design . . . . . . . . . . 21 Section 6.3. Final Design . . . . . . . . . . . . 21 Section 6.4. Ownership of Documents . . . . . . . 22 Section 6.5. Consistency with Governmental Requirements . . . . . . . . . . . . 22 Section 6.6. Failure to Comply with Document Submission Schedule . . . . . . . . 23 Section 6.7. County Control of Architects and Contractors . . . . . . . . . . . . 23 i- Pages) ARTICLE VII CONSTRUCTION OF IMPROVEMENTS . . Section 7.1. Construction Schedule . . . . . Section 7.2. Commencement of Construction . . . . Section 7.3. Construction Contract Award . . . . Section 7.4. Delay or Cost Overruns . . . . . . . Section 7.5. Future Improvements to the TRAC Facility . . . . . . . . . . . ARTICLE VIII OPERATION OF THE TRAC FACILITY . . . . . . Section 8.1. County to Operate the TRAC Facility Section 8.2. Major Damage to the TRAC Facility Section 8.3. Modifications and Additions to the TRAC Facility . . . . . . Section 8.4. Payment of Operating Costs . . . . Section 8.5. Emergency Expenditures . . . . . . 24 24 25 25 26 27 27 27 28 29 29 29 ARTICLE IX OVERSIGHT OF THE TRAC FACILITY . . . . . . . . . 30 Section 9.1. Oversight . . . . . . . . . . . 30 Section 9.2. Advisory Board . . . . . . . . . . . 30 Section 9.3. The TRAC Facility Manager . . . . . 32 Section 9.4. TRAC Budget . . . . . . . . . . . . 32 ARTICLE X INSURANCE PROVISIONS . . . . . . . . . . . . . . . 33 Section 10.1. Property Insurance . . . . . . . . . 33 Section 10.2. Public Liability Insurance . 33 Section 10.3. Design Development and Construction 11.6. Headings . . . . . . . . . . . . 36 Insurance . . . . . . . . . . . . . 34 ARTICLE XI MISCELLANEOUS . . . . 35 Section 11.1. Amendment to this Agreement 35 Section 11.2. Duration and Termination of this Agreement . . . . . . . . . . . . . 35 Section 11.3. Disposition of Property upon Termination . . . . . . . . . . . . 35 Section 11.4. Notices . . . . . . . . . . . . . . . 35 Section 11.5. Waiver . . . . . . . . . . . . . . . 36 Section 11.6. Headings . . . . . . . . . . . . 36 Section 11.7. Filing of this Agreement . . . . . . 37 Section 11.8. Conflict of Interest . . . . . . . . 37 Section 11.9. Severability . . . . . . . . . . . . 37 Section 11.10. Recitals . . . . . . . . . . . . . . 37 Section 11.11. No Separate Legal Entity . . . . . . 37 Section 11.12. Merger . . . . . . . . . . . . . . . 37 Section 11.13. Effective Date . . . . . . . . . . . 38 0113823.06 11- INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF PASCO AND FRANKLIN COUNTY, WASHINGTON, REGARDING THE FINANCING, ACQUISITION AND OWNERSHIP OF A MULTI-PURPOSE ARENA AND EXHIBITION FACILITY WHEREAS, Franklin County, Washington (the "County"), is a municipal corporation duly organized and existing under the Constitution and laws of the State of Washington; WHEREAS, the City of Pasco, Washington (the "City") is an optional municipal code city duly organized and existing under and by virtue of the Constitution and laws of the State of Washington; WHEREAS, RCW 67.28.120 authorizes the City and the County to acquire, construct, install, add to, improve, replace, repair, maintain, operate and regulate the use of public stadium facilities, convention center facilities, performing arts center facilities and/or visual art center facilities; WHEREAS, the County is authorized to finance such facilities by the issuance of bonds pursuant to chapters 67.28, 39.36 and 39.46 RCW; WHEREAS, RCW 67.28.130 and 67.28.170 authorize the County to lease all or a portion of such facilities to the City; WHEREAS, the City is authorized by chapter 35.42 RCW to lease real and personal property; WHEREAS, the City Council (the "Council") and the Board of County Commissioners (the "Board of Commissioners") have determined that it is in the best interests of the residents and inhabitants of the City and the County that the City and the County jointly 0113823.06 1 acquire, construct, install, add to, improve, replace, repair, maintain, operate and regulate the use of facilities to accommodate conventions, trade and agricultural shows, exhibitions and community meetings; WHEREAS, pursuant to Chapter 233, Laws of 1992, and Capital Contract No. 6-92-19599, the Washington State Department of Community Development has agreed to pay the County $2,800,000 in matching funds in order to complete the TRAC Facility; WHEREAS, the City will acquire a 50% undivided leasehold interest in the TRAC Facility from the County with an option to purchase a 50% undivided ownership interest in the TRAC Facility; WHEREAS, the City and the County are authorized by chapter 39.34 RCW to enter into agreements for the joint and cooperative exercise of certain powers, privileges and authority; WHEREAS, the City and the County desire to enter into this interlocal cooperation agreement (the "Agreement") in order to provide for the acquisition, construction, ownership, operation and financing of the TRAC Facility; WHEREAS, the Board of Commissioners authorized the execution of this Agreement by Resolution No. CH -031 , adopted on Fe 19r6LCl ry 7 , 1994; WHEREAS, the Council authorized the execution of this Agreement by Resolution No. adopted on Jan unrv_, 1994; and WHEREAS, the City and the County each hereby find and determine that this Agreement is mutually fair and advantageous to the City and the County; 0113823.06 2 NOW, THEREFORE, BETWEEN THE CITY AND THE COUNTY, IT IS HEREBY AGREED AS FOLLOWS: ARTICLE I DEFINITIONS Section 1.1. Interpretation. As used in this Agreement, the following terms have the meanings provided in this Article I. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Words imparting the singular number shall include the plural number and vice -versa unless the context shall otherwise indicate. Section 1.2. Definitions. Acquisition or Acquire shall include purchase, lease, receipt by grant, condemnation, transfer, or other acquirement, or any combination thereof. Advisory Board shall mean the "TRAC Advisory Board" created pursuant to Section 9.2 of this Agreement. Board of Commissioners shall mean the Board of County Commissioners. Bonds shall mean the $2,400,000 limited tax general obligation bonds to be hereafter issued by the County to Acquire, construct and install the TRAC Facility and the $3,900,000 unlimited tax general obligation bonds approved by the voters of the County at a special election held on February 8, 1993. City shall mean the City of Pasco, Washington, an optional municipal code city duly organized and existing under and by virtue of the Constitution and the laws of the State of Washington. 0113823.06 3 Code shall mean the Internal Revenue Code of 1986, as amended, and any proposed, temporary or final Treasury Regulations promulgated thereunder. Construction Documents shall mean the construction schedule, construction plans and specifications submitted by the TRAC Facility architect and the Design and Construction Budget. Construction Fund shall mean the fund of that name to be created by the County pursuant to Section 3.3 of this Agreement. Costs of TRAC shall mean the costs, expenses and liabilities paid or incurred, or to be paid or incurred, by the City or the County, in connection with planning, engineering, designing, Acquiring, constructing, installing, and financing the TRAC Facility and obtaining all necessary approvals, certificates, permits and licenses with respect thereto, including, without limitation: (1) financing costs of and interest on any bond anticipation notes issued to finance any costs of the TRAC Facility; (2) any eminent domain, condemnation or Acquisition expenses incurred in connection with the condemnation or Acquisition of property or property rights that are necessary for the TRAC Facility; (3) amounts payable to contractors and suppliers including fees for designing facilities included in the TRAC Facility where the designs are provided by the contractor or supplier); (4) costs of labor, services, materials, supplies and equipment furnished by the City or the County; (5) costs of improvements required by any Governmental Authority; 6) architectural, engineering, legal and other professional fees, marketing costs and brokerage commissions; (7) capitalized interest 0113823.06 4 on Bonds issued to finance the TRAC Facility, to the extent permitted by the chapters 67.28 and 39.46 RCW; and (8) costs of financing, including without limitation, bond discount, printing expense, rating agency fees, the cost of bond insurance, registrar fees accrued prior to completion of the TRAC Facility, legal and accounting fees. Council shall mean the City Council. County shall mean Franklin County, Washington, a municipal corporation duly organized and existing under and by virtue of the Constitution and the laws of the State of Washington now in force. County's Use shall mean the operation of the TRAC Facility by the County under and pursuant to this Interlocal Cooperation Agreement. Design and Construction Budget shall mean the budget for the design and construction of TRAC, including, without limitation, construction contract costs, taxes, contingencies, fees, and allowances for the TRAC Facility furnishings, finishes, fixtures and equipment, indirect expenses, costs of the preparation and execution of reasonable changes, and available financing opportunities, all based on the Final Design Documents and the Construction Documents. The Design and Construction Budget shall not mean the preliminary Design and Construction Budget. Final Design Documents shall mean a complete set of drawings describing the structural, mechanical, acoustical, lighting, and electrical systems of the TRAC Facility, including major building materials and finishes and a detailed site plan for the TRAC Facility. These documerts also include a preliminary specification 0113823.06 5 to further describe the TRAC Facility in detail, and a cost estimate based on unit costs, quantities, materials and systems specified. Financing Lease shall mean the Financing Lease to be entered into by and between the County, as lessor, and the City, as lessee, with respect to the TRAC Facility, and any future lease obligations between the Parties relating to the TRAC Facility. The form of this Financing Lease is attached hereto as Exhibit A and by this reference is made a part hereof. Financing Lease Payments shall mean payments under the Financing Lease. Governmental Authority shall mean the United States of America, the State or any instrumentality or political subdivision thereof, or any municipal or quasi -municipal authority, or similar entity thereof including, with respect to matters pertaining to insurance, boards of fire underwriters to the extent they have power to impose conditions on the issuance of policies or the coverage thereof. Governmental Requirement shall mean any law, ordinance, code, order, rule or regulation of any Governmental Authority. Maintenance and operations Fund shall mean the fund of that name to be created by the County pursuant to Section 3.2 of this Agreement. Major Damage shall mean the damage or destruction of so much of the TRAC Facility that, in the reasonable opinion of the Board of Commissioners, one or more of the following conditions result: i).the conduct of County's use of the TRAC Facility would be 0113823.06 6 substantially prevented or impaired for a period of time exceeding six months; (ii) the remaining portion of the TRAC Facility would not be economically and feasibly usable by the County or (iii) the TRAC Facility will be other than reasonably efficient or economic for the County's use. Maximum Allowable Contract Cost shall mean $ , the maximum amount of the initial construction contract for the TRAC Facility not including sales tax or contingencies. Design, consulting, inspection, testing, and all administrative, miscellaneous and other Costs of TRAC are not included in said amount. Necessary Approvals shall mean any permit, license, certificate, approval or other evidence of compliance with any requirement necessary for the lawful construction and occupancy of the TRAC Facility and the issuance of the insurance required to be carried under this Agreement. operating Costs shall mean the costs and expenses incurred by the County for operations, maintenance, repairs and ordinary renewals and replacements necessary for the operation of the TRAC Facility, and shall include, without limitation, all administrative expenses, insurance premiums, legal and engineering expenses, consulting and technical expenses, payments to pension, retirement, health and hospitalization funds, annual charges payable by the County pursuant to any licenses, permits, orders or other authorizations from any agency or regulatory body having lawful jurisdiction over the TRAC Facility, any taxes, governmental charges, costs of transfers or exchanges of the Bonds, and other 0113823.06 7 expenses required to be paid by the County to the extent properly and directly attributable to the operation of the TRAC Facility. operating Costs shall not include debt service payments or any provision for depreciation or similar charges, or any costs or expenses for new construction or reconstruction other than the costs of restoring any part of the TRAC Facility to be paid from Revenues. Parking Fund shall mean the fund of that name to be created by the County pursuant to Section 3.1 of this Agreement. Parties shall mean the County and the City. Phase I shall mean the Acquisition and construction of the TRAC Facility. Phase II shall mean the recreational facilities to be acquired and built at the sole cost of the City on County land to be leased to the City by a ground lease other than the Financing Lease. Premises shall mean the real property owned by the County upon which the TRAC Facility contemplated by this Agreement will be built and legally described in Exhibit "AI' attached hereto and incorporated by this reference. Renewal and Replacement Fund shall mean the fund of that name to be created by the County pursuant to Section 3.5 of this Agreement. Revenue Fund shall mean the fund of that name to be created by the County pursuant to Section 3.4 of this Agreement. Revenues shall mean all revenues, interest income on all funds and accounts created hereunder, to the extent not paid into or 0113823.06 8 retained in the Construction Fund, and charges, rents and other income and receipts derived by the County from the TRAC Facility. Schematic Design Documents shall mean those documents including all schematic design documents, including a scale model showing plans and elevations to give a clear idea of the shape, form, and context of the TRAC Facility. Such documents shall also include description of exterior and public area materials, site materials and relationships in detail and circulation of pedestrians and vehicles. TRAC means a trade, recreation, and agricultural project presently contemplating two phases, Phase I and Phase II, or such additional parts as may be agreed to by the City and County. TRAC Budget shall mean the annual budget for TRAC Facility, which shall set forth the Operating Costs and Revenues of the TRAC Facility. TRAC Facility shall mean the trade, recreation, and agricultural center, which shall contain an exhibit hall, a multi- purpose arena, and a central core public facility, together with contiguous parking and ancillary improvements required in conjunction with said facility by the County or any Governmental Authority, and all other personal property, tangible or intangible, that is now owned or hereafter Acquired, constructed or installed by the County, and is used or useful in connection with the ownership, operation and management of said facility; provided, the term "TRAC Facility" shall not include the Premises, the commercial activities contemplated on the Premises or Phase II. 0113823.06 9 ARTICLE II COOPERATIVE PROJECT Section 2.1. Purpose of this Agreement. The purpose of this Agreement is to set forth certain agreements between the Parties relating to the financing, Acquisition, construction, ownership, management, maintenance and operation of the TRAC Facility. This Agreement does not apply to any other project, unless agreed upon in writing by the Parties. Section 2.2. The TRAC Facility. The County shall Acquire, design, construct, maintain and operate the TRAC Facility in accordance with this Agreement. The County shall cause the TRAC Facility to be Acquired and constructed in accordance with all Governmental Requirements and according to generally accepted engineering and construction standards. During the course of the Acquisition, design, construction, maintenance and operation of the TRAC Facility, the County will require that all warranties, express or implied, from materialmen, contractors, and subcontractors shall inure to the benefit of the Parties. The City shall cooperate with the County in all reasonable manner in seeking performance under said warranties. Section 2.3. Control of the TRAC Facility. The Board of Commissioners shall have the sole responsibility and decision-making authority with respect to the TRAC Facility, but the exercise of that authority shall be consistent with the provisions of this Agreement. Decisions relating to any change in a construction or Acquisition contract increasing the Costs of TRAC by $100,000 or more are considered to be major decisions and may be made by the Board of Commissioners only upon receiving the prior 0113823.06 Its] written consent of the City in the form of a resolution of the Council, which consent shall not be unreasonably withheld. Section 2.4. Financing of the TRAC Facility. The Acquisition, construction and installation of the TRAC Facility shall be financed by the Bonds and a grant from the State of Washington. The Bonds will be payable from the taxes and other legally available money collected by the County, by Financing Lease Payments by the City under the Financing Lease and other legally available Revenues. Section 2.5. Tax Covenant. If the Bonds are issued as tax-exempt obligations, then the Parties hereby covenant that they will not make any use of the proceeds from the sale of the Bonds or any other money or obligations of the Parties which may be deemed to be proceeds of such Bonds pursuant to Section 148(a) of the Code which would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148(a) of the Code and related regulations promulgated thereunder. The Parties will comply with the applicable requirements of Section 148(a) of the Code throughout the term of the Bonds. The Parties covenant they will not act or fail to act in a manner that will cause the Bonds to be considered obligations not described in Section 103(a) of the Code. The Parties will take no actions and will make no use of the proceeds of the Bonds, or any other funds, that would cause the Bonds to be treated as "private activity bonds" (as defined in Section 141(b) of the Code) subject to treatment under said Section 141(b) as an obligation not described in subsection (a) of 0113823.06 11 said Section 103, unless the tax exemption thereof is not adversely affected. Section 2.6. Debt Capacity of City. The Parties acknowledge that the County may pay debt service on the Bonds, in part, by Lease Revenues received by the County under the Financing Lease. The City further acknowledges that the Financing Lease Payments under the Financing Lease will constitute lease debt of the City pursuant to RCW 35.42.200. The City agrees that it has not and will not, prior to the effective date of the Financing Lease, incur lease debt or other indebtedness (either voted or non -voted) in an amount which, together with the estimated debt to be incurred as a result of the commencement of the Financing Lease, exceeds the now vested statutory debt limitations of RCW 35.42.200. ARTICLE III COUNTY FUNDS. Section 3.1. Parking Fund. The County may establish a Parking Fund into which shall be deposited gross revenues from parking facilities located on the Premises for the sole purpose of operating, improving, extending, or adding to the parking facilities located on the Premises. The County may issue obligations separate and distinct from the issuance of the Bonds that are secured from gross parking revenues or net parking revenues in the Parking Fund for the sole purpose of improving, extending, or adding to the parking facilities located on the Premises. Net parking revenues shall be the gross revenues of the parking facilities located on the Premises less the costs of operating and maintaining such parking facilities. Until and 0113823.06 12 unless the County elects to issue such obligations, all parking revenues deposited in the Parking Fund shall be used to pay Operating Costs or for the other purposes stated in this Section. Upon issuance of parking revenue obligations, all parking revenues shall be retained in the Parking Fund and applied to debt service on such bonds and payment of Operating Costs relating to the parking facilities and, if sufficient, the other purposes stated in this Section. Section 3.2. Maintenance and Operations Fund. The County shall establish a Maintenance and Operations Fund from which Operating Costs shall be paid. Section 3.3. Construction Fund. The County shall establish a Construction Fund into which it shall deposit the net proceeds of the Bonds, excluding accrued interest. Money in the Construction Fund may be utilized to pay the Costs of TRAC. Money in the Construction Fund may also be used to pay any arbitrage rebate owed on the Bonds, subject to Bond covenants. Any funds remaining in the Construction Fund upon completion of the TRAC Facility may be used by the County for any lawful purpose relating to the TRAC Facility or to pay debt service on the limited tax general obligation Bonds. Section 3.4. Revenue Fund. The County shall establish a Revenue Fund into which it shall deposit all Revenues as collected (except for net insurance proceeds, other than business interruption insurance proceeds, which shall be deposited into the Renewal and Replacement Fund in accordance with Section 3.5). The Revenues deposited therein shall 0113823.06 13 be used only for the following purposes and in the following order of priority, having due regard for payments relating to the TRAC Facility which shall become due: First, to pay Operating Costs; Second, to pay the principal of, premium, if any, and interest on any revenue bonds the County may hereafter issue to finance improvements to the TRAC Facility; Third, to fund a reasonably required reserve fund for any revenue bonds the County may hereafter issue to finance improvements to the TRAC Facility, if it is not financially or legally feasible to fund that reserve with proceeds of revenue bonds; Fourth, to pay the principal of, premium, if any, and interest on the Bonds; Fifth, to make deposits in the Renewal and Replacement Fund, other necessary additions, betterments, improvements and repairs to or extensions and replacements of the TRAC Facility, to call for redemption or to defease revenue bonds or any of the Bonds, or for any other TRAC Facility purposes. Section 3.5. Renewal and Replacement Fund. The County shall establish a Renewal and Replacement Fund into which it shall deposit all amounts required to be deposited therein by the TRAC Budget, and the net proceeds of condemnation awards or insurance (other than business interruption insurance) relating to condemnation, damage or destruction of property of the TRAC Facility if in excess of $100,000. Amounts on hand in the Renewal and Replacement Fund shall be disbursed to pay the cost of 0113823.06 14 replacement, repair, reconstruction or restoration of the TRAC Facility, or disbursed to pay other Costs of TRAC. All income realized from the investment of the Renewal and Replacement Fund shall be credited to the Renewal and Replacement Fund and used and applied as additional net proceeds within the Renewal and Replacement Fund. Any amounts in the Renewal and Replacement Fund which, in the judgment of the County, are not, and will not, be reasonably required (as evidenced by a certificate of a consulting engineer) for the purpose of the Renewal and Replacement Fund, shall be deposited in the Revenue Fund. ARTICLE IV TRAC PROPERTIES Section 4.1. Acquisition of Personal Property. The Parties, in their discretion, may jointly or separately Acquire and hold any personal property authorized in the Design and Construction Budget and/or the TRAC Budget. Personal property so Acquired shall become part of the TRAC Facility unless the Parties agree otherwise. Section 4.2. Ownership of the TRAC Facility. A. The TRAC Facility shall be owned by the County. Pursuant to the Financing Lease, the City shall acquire an undivided one- half leasehold interest in the TRAC Facility and may under the Financing Lease acquire an undivided one-half ownership interest in the TRAC Facility. The Parties agree to enter into the Financing Lease at such time as the obligations are sold, thereby enabling the completion of Section 6.4 and Exhibit C of the Financing Lease. B. If at any time the City seeks to invalidate all or any portion of this Agreement directly or by any Governmental 0113823.06 15 Requirement that could result in termination of the TRAC Facility, without the prior consent of the County, the City's leasehold interest in the Property shall immediately revert to the County. The City's obligation to pay Rent shall not terminate upon the reversion of the City's leasehold interest in the TRAC Facility pursuant to the previous sentence. Section 4.3. Disposal of the TRAC Facility. If an "event of default" occurs under the Financing Lease with respect to the City, the remedies of the County in the Financing Lease shall govern the disposition of the TRAC Facility. ARTICLE V WARRANTIES AND COVENANTS. Section 5.1. Warranties. A. The County warrants as of the date of execution of this Agreement that: (1) it will cooperate with the City to insure there are no easements, restrictions, rights, or rights-of-way of record or otherwise, which would prohibit or materially interfere with the construction of the TRAC Facility; and (2) it has not received any notice of any claim, action, or proceeding, actual or threatened, by any organization, person, individual, or governmental agency which would adversely affect, in any material respect, the use or occupancy of the Premises. B. The City warrants as of the date of execution of this Agreement that it will assist the County in acquiring any special permits required for the TRAC Facility. 0113823.06 16 Section 5.2. covenants. A. The Parties covenant not to permit the use of TRAC (1) in violation of any Governmental Requirements; (2) in violation of any covenants and restrictions affecting the Premises; (3) for any unlawful, noxious or offensive purpose, or in such a manner as to constitute a nuisance; or (4) in any manner that would adversely affect the tax-exempt status of the interest on the Bonds. B. The County, as agent for the City and operator of the TRAC Facility under Section 8.1, covenants to maintain the TRAC Facility and to make all improvements, repairs and replacements as and when needed to preserve the TRAC Facility in good working order and condition, subject to any act or failure to act by the City that may adversely affect the County's ability to make improvements, repairs and replacements and the availability of Revenues to make such improvements, repairs or replacements. C. The County covenants to, except to the extent the County is required to pay or cause to be paid the Costs of the TRAC Facility from the proceeds of the Bonds, pay promptly when due the entire cost of any work to the TRAC Facility from the Revenues of the TRAC Facility only, so that the TRAC Facility shall, at all times, be free of liens for labor and materials arising from such work; procure all Necessary Approvals before undertaking such work; do all such work in a good and workmanlike manner, employing materials of good quality; perform such work in such manner as to insure proper maintenance of good and harmonious labor relationships; and comply with any Governmental Requirements relating thereto. 0113823.06 17 D. The County covenants to cause to be discharged of record by payment (or in the case of the TRAC Facility, causing to be paid) all liability and expense arising from any lien at any time filed against the TRAC Facility for any work, labor, services or materials claimed to have been performed at, or furnished to the TRAC Facility, for or on behalf of the Parties relating to the TRAC Facility from the Revenues of the TRAC Facility only. Section 5.3. Maintenance. The County shall maintain the Premises and the TRAC Facility in good condition and repair. The County shall comply with all Governmental Requirements applicable to the TRAC Facility. The duty to so maintain shall be subject to the Revenues of the TRAC Facility. Section 5.4. Alterations and Additions. The County, at its expense, shall have the right to make such alterations, improvements, and additions to the Premises as are consistent, in the reasonable judgment of the County, with the TRAC Facility and in compliance with Governmental Requirements applicable to any alterations, improvements, or additions where the County, in its sole discretion, has determined such alteration, improvements, or additions are necessary for the TRAC Facility. Section 5.5. Legal Claims and Attorneys' Fees. A. Each Party shall promptly report to the other any claim or suit against it arising out of or in connection with the Premises, the TRAC Facility or the Parties' activities thereon. The County shall have the right to compromise and defend such claim or suit within the limits of any applicable insurance. 0113823.06 18 B. If a legal action is instituted by either Party to enforce this Agreement, or any part thereof, the prevailing Party shall be entitled to recover reasonable attorneys' fees and court costs. C. Each Party shall pay its own legal fees incident to the preparation and execution of this Agreement and other documents contemplated by this transaction. D. Each Party shall appear and defend any action or legal proceeding brought to determine or contest the validity of this Agreement and/or the legal authority of the Parties to undertake the activities contemplated by this Agreement. If both Parties are not named as parties to the action, the Party named shall give the other Party prompt notice of the action and provide the other an opportunity to intervene. Each Party shall bear any costs and expenses taxed by the court against it; provided, that any costs and expenses assessed by a court against both Parties jointly shall be shared equally. E. To the extent permitted by applicable law, each Party shall hold the other Party harmless from all suits, claims, or liability arising from the act or omissions of the indemnifying Party, its agents or employees, and from all claims for unpaid wages, remuneration for services, liens, and remittances for supplies arising from the TRAC Facility; and in the event any such suit be filed against the indemnified Party, the indemnifying Party shall appear and defend the same, and if judgment be rendered or settlement be made against the indemnified Party, to pay the same, which payment, along with all costs and expenses of such defense, 0113823.06 19 shall be a capital cost payable from the proceeds of any financing authorized herein; provided, each Party hereby retains the right to select its attorneys in the event a claim is made, or a lawsuit is filed, .against either Party with respect to TRAC, the Premises or any Party's activities relating thereto. ARTICLE VI DESIGN OF THE TRAC FACILITY Section 6.1. Design and Construction Budget. A. The Board of Commissioners shall submit a preliminary Design and Construction Budget to the Advisory Board for its review and comment within 30 days of the execution of this Agreement. The Advisory Board shall provide the Board of Commissioners with written comments to the Design and Construction Budget within 21 days of their receipt. The Advisory Board shall be deemed to have approved the preliminary Design and Construction Budget if no written comments are received by the Board of Commissioners within such 21 -day period. Failure of the Board of Commissioners to obtain a review and comment on the preliminary Design and Construction Budget by the Advisory Board shall not be a breach. B. upon receipt of written comments to the preliminary Design and Construction Budget from the Advisory Board, the Board of Commissioners shall approve, modify or re -write the preliminary Design and Construction Budget within a reasonable time. If the Board of Commissioners determines to modify or re -write the preliminary Design and Construction Budget, then the Board of Commissioners shall submit the modified or re -written preliminary Design and Construction Budget to the Advisory Board for comment pursuant to subsection A. of this Section 6.1. 0113823.06 20 C. Subject to the provisions of Section 7.4 of this Agreement, the Costs of TRAC relating to the design, Acquisition, construction and installation of the TRAC Facility shall be provided for by Bond and grant proceeds. Section 6.2. Schematic Design. A. The Board of Commissioners shall submit Schematic Design Documents to the Advisory Board for its review and comment within 15 days of the Board of Commissioners, approval of the preliminary Design and Construction Budget. The Advisory Board shall provide the Board of Commissioners with written Comments to the Schematic Design Documents within 21 days of their receipt. The Advisory Board shall be deemed to have approved the Schematic Design Documents if no written comments are received by the Board of Commissioners within such 21 -day period. B. Upon receipt of written comments to the Schematic Design Documents from the Advisory Board, the Board of Commissioners shall approve, modify or re -write the Schematic Design Documents within 21 days. If the Board of Commissioners determines to modify or re- write the Schematic Design Documents, then the Board of Commissioners shall submit the modified or re -written Schematic Design Documents to the Advisory Board for comment pursuant to subsection A. of this Section 6.2. Section 6.3. Final Design. A. The Board of Commissioners shall submit Final Design Documents to the Advisory Board within 5 days of Board of Commissioners, approval of the Final Design Documents. The Advisory Board shall provide the Board of Commissioners with 0113823.06 21 written comments to the Final Design Documents within 21 days of their receipt. The Advisory Board shall be deemed to have approved the Final Design Documents if no written comments are received by the Board of Commissioners within such 21 -day period. B. Upon receipt of written comments to the Final Design Documents from the Advisory Board, the Board of Commissioners shall approve, modify or re -write the Final Design Documents within 21 days. If the Board of Commissioners determines to modify or re- write the Final Design Documents, then the Board of Commissioners shall submit the modified or re -written Final Design Documents to the Advisory Board for comment pursuant to subsection A. of this Section 6.3. Section 6.4. ownership of Documents. Any plans, specifications, illustrations, and models developed by the architect, subject to the rights of the architect, or other reports, studies, permits or other materials or property developed during the preconstruction period shall be the property of the County for purposes of construction of the TRAC Facility, as provided herein. Section 6.5. Consistency with Governmental Requirements. The TRAC Facility shall be designed to comply with all applicable Governmental Requirements. The Board of Commissioners shall administer the TRAC Facility, and the Acquisition, construction and installation thereof, in a manner to ensure compliance with all Governmental Requirements at all times as provided in this Agreement. 0113823.06 22 Section 6.6. Failure to Comply with Document Submission Schedule. The Board of Commissioners may, at its option and upon 5 days prior written notice to the City, modify the schedules for submission of Schematic Design Documents, Final Design Documents and Construction Documents set forth herein, but the Board of Commissioners may not reduce the review and comment time of the Advisory Board without its consent which consent will not be unreasonably withheld. Failure of the Board of Commissioners to submit or revise the Schematic Design Documents, Final Design Document, or Construction Documents within the time periods set forth in Articles VI and VII of this Agreement shall not give rise to the City's right to terminate this Agreement or otherwise pursue its remedies hereunder so long as the Board of Commissioners diligently and in good faith endeavors to submit such plans of revisions within such time frames. Section 6.7. County Control of Architects and Contractors. The County shall have sole control and authority to select and employ all architects and contractors with respect to the design, Acquisition, construction, installation, maintenance and/or repair of the TRAC Facility. The County shall have sole control of all such architects and contractors and shall have the sole authority to direct such architects and contractors with respect to the design, Acquisition, construction, installation, maintenance and/or repair of the TRAC Facility. The County shall clearly specify such limitation in any contract it hereafter executes with an architect or contractor relating to the design, Acquisition, 0113823.06 23 construction, installation, maintenance and/or repair of the TRAC Facility. The City shall not consult with or direct the actions of any architect or contractor employed by the County with respect to the design, Acquisition, construction, installation, maintenance and/or repair of the TRAC Facility unless it first receives the written consent of the County. Unless otherwise agreed upon in writing by the Parties, the City's input relating to the design, Acquisition, construction, installation, maintenance and/or repair of the TRAC Facility will be by means of the Advisory Board. ARTICLE VII . CONSTRUCTION OF IMPROVEMENTS Section 7.1. Construction Schedule. A. The Board of Commissioners shall submit the Construction Documents to the Advisory Board within 5 days of approval of the Construction Documents. The Advisory Board shall provide the Board of Commissioners with written comments to the Construction Documents within 21 days of their receipt. The Advisory Board shall be deemed to have approved the Construction Documents if no written comments are received by the Board of Commissioners within such 21 -day period. B. Upon receipt of written comments to the Construction Documents from the Advisory Board, the Board of Commissioners shall approve, modify or re -write the Construction Documents in 21 days. If the Board of Commissioners determines to modify or re -write the Construction Documents, then the Board of Commissioners shall submit the modified or re -written Construction Documents to the Advisory Board for comment pursuant to subsection A. of this Section 7.1. 0113823.06 24 Section 7.2. Commencement of Construction. Upon approval of the Construction Documents by the Board of Commissioners, the Board of Commissioners shall issue the request for proposals or bids for construction of the TRAC Facility and pursue completion of the TRAC Facility. Construction shall commence no later than six months after approval by the Board of Commissioners of the Construction Documents. The Board of Commissioners shall promptly notify the Council of any event which will or is likely to delay commencement of construction. Section 7.3. Construction Contract Award. A. The construction contractor shall be selected pursuant to competitive process consistent with state law for solicitation of proposals or bids by contractors who, in the determination of the Board of Commissioners, are qualified to undertake development or construction of the TRAC Facility. The Board of Commissioners shall require the contractor to post performance and payment bonds for the TRAC Facility. B. Before the Board of Commissioners awards a contract for construction of the TRAC Facility, the Board of Commissioners shall provide the Council with evidence that: (1) the lowest responsible bid is within the approved Design and Construction Budget; (2) the contractor has submitted evidence of compliance with performance and payment bond requirements; and (3) the award covers construction of a building or buildings, consisting of an exhibit hall, a multi-purpose arena, and a central core facility with a combined total of not less than 125,000 square feet. 0113823.06 25 C. Any contracts or subcontracts between the County and any other person arising in connection with this Agreement shall comply with all applicable terms and conditions hereof. Unless otherwise expressly permitted herein, no part of this Agreement may be assigned by one of the Parties without the prior written consent of the other Party. D. In the event the requirements of subsection B. of this Section 7.3 are not met to the reasonable satisfaction of the Council, then the Council shall promptly (but in any event within three working days). so notify the Board of Commissioners in writing. Upon receipt of such notice, the Board of Commissioners shall delay awarding the construction contract and shall submit the matter to the Advisory Board for written comments and recommendations. The Advisory Board shall provide the Board of Commissioners with written comments and recommendations relating to the award of the construction contract within 21 days after the matter has been submitted to the Advisory Board. The Advisory Board shall be deemed to have approved the award of the construction contract if no written comments are received by the Board of Commissioners within such 21 -day period. Section 7.4. Delay or Cost Overruns. If the Board of Commissioners reasonably determines that: 1) construction of the TRAC Facility is over budget; 2) construction of the TRAC Facility is substantially behind schedule; or (3) construction of the TRAC Facility is deviating impermissibly from the Construction Documents, then it shall promptly so notify the Advisory Board and the Council. The Board 0113823.06 26 of Board of Commissioners and the Council shall determine the appropriate action agreed to in writing by a future interlocal cooperation agreement. Section 7.5. Future Improvements to the TRAC Facility. The Board of Commissioners may propose to the City additional capital improvements to the TRAC Facility, under such financing arrangements as the Board of Commissioners deems appropriate. The terms of such financing arrangements, and the City's participation in the costs thereof, shall be determined by subsequent interlocal cooperation agreements between the Parties, except as provided in Sections 3.1 and 3.3. ARTICLE VIII OPERATION OF THE TRAC FACILITY Section 8.1. County to Operate the TRAC Facility. Upon completion of the TRAC Facility, the County shall operate and manage the TRAC Facility on behalf of the Parties. The City hereby appoints the County as the sole and exclusive manager of the TRAC Facility and the City's leasing agent with respect to the TRAC Facility during the term of the Financing Lease, upon the terms and conditions set forth herein. The County hereby accepts such appointment on the terms and conditions set forth herein, and agrees to furnish on behalf of the Parties all services necessary for the management, operation and leasing of the TRAC Facility. The County, subject to the availability of Revenues of the TRAC Facility and the payment of costs pursuant to Section 8.4 hereof, shall operate and maintain the TRAC Facility as a first- class public multi-purpose arena and exhibition facility, to be kept at all times in a safe and clean condition available on a 0113823.06 27 reasonable basis for uses for which it is designed and at fees or rentals fixed by a schedule designed to pay as much of the Operating Costs as practicable. Prior to commencement of operation of the TRAC Facility, the County shall provide pre -opening services for the TRAC Facility, including start-up, mobilization of staff, services and facilities for operation, and performance of marketing and booking plans. The County hereby assumes payment of all Operating Costs subject to the availability of Revenues of the TRAC Facility and the payment of costs pursuant to Section 8.4 hereof. The County shall provide all management, supervision, personnel, materials, equipment, services and supplies necessary to operate, maintain and repair the TRAC Facility and shall take all reasonable precautions to prevent damage, injury or loss, by reason of or related to the operation and maintenance of the TRAC Facility and Premises, to any persons or property, and shall comply with all other applicable laws, ordinances, rules, regulations and lawful orders of the County relating to the safety of persons or property or their protection from damage, injury or loss. The County shall properly supervise and direct its employees and other parties implementing the performance of its duties, obligations and functions under this Agreement, and the County shall be fully responsible for the performance of such employees and other parties. All costs of the County so incurred shall be reimbursed as an Operating Cost. Section 8.2. Major Damage to the TRAC Facility. In the event of Major Damage or destruction to the TRAC Facility, the County may elect to (1) rebuild the TRAC Facility and 0113823.06 28 continue this Agreement in full force and effect; or (2) terminate this Agreement. If and to the extent the County receives insurance proceeds as a result of such Major Damage, if the County has elected to repair the TRAC Facility, such proceeds shall be applied to such repair, and if the County has elected to terminate the Agreement, the County shall apply such proceeds first to pay off or defease the Bonds, pay the costs of demolition, pay any other costs associated with the TRAC Facility, and distribute any surplus funds to the County and City in equal amounts. Section 8.3. Modifications and Additions to the TRAC Facility. The County shall undertake all modifications and additions to the TRAC Facility necessary to comply with Government Regulations. Section 8.4. Payment of Operating Costs. The Parties covenant they will each pay 50% of any Operating Costs that exceed Revenues from operation of the TRAC Facility in any calendar year. If any Party advances funds for the other Party, such funds shall bear interest at the rate paid by the State of Washington local government investment pool. Each Party reserves the right to determine the source of such payment. Section B.S. Emergency Expenditures. The County or its manager may undertake emergency expenditures without review of the Advisory Board where such expenditures are necessary to meet operating commitments and are required prior to the next regularly scheduled meeting of the Advisory Board. 0113823.06 29 ARTICLE I% OVERSIGHT OF THE TRAC FACILITY Section 9.1. Oversight. The Board of Commissioners shall make reports to the Advisory Board as required in this Agreement. Throughout the term of this Agreement, the Board of Commissioners shall submit financial statements and rental and fee schedules relating to the TRAC Facility and other financial data relating to the TRAC Facility to the Advisory Board at such times as may be reasonably requested by the Advisory Board. Section 9.2. Advisory Board. Pursuant to RCW 39.34.030(4), the Parties hereby form, and shall maintain, a joint board known as the "TRAC Advisory Board" the "Advisory Board"). The Advisory Board shall be separate from, and in addition to, any other joint board provided for in any other interlocal cooperative agreement between the Parties. The Advisory Board shall be comprised of three members designated by the City, three members designated by the County (at least one of whom is a resident of either North Franklin School District or Kahlotus School District), and one member residing in Franklin County (from either an unincorporated or incorporated area) selected by the other six representatives; provided such representative shall be a resident of the County. The members of the Advisory Board shall serve without additional compensation for terms set by and at the discretion of the Council and the Board of Commissioners, as appropriate. Representatives to the Advisory Board may also serve on any other joint board established by the Parties. The chair of 0113823.06 30 The Advisory Board shall select its chair from among its members. Members may be removed at any time by their appointive authority. The purpose and function of the Advisory Board shall be to create a forum for discussion between the Parties concerning the TRAC Facility, and to create a body to whom information concerning the TRAC Facility may be provided. The Advisory Board shall have no decision-making authority, but shall make recommendations to the Board of Commissioners and the Council. The Advisory Board shall review the TRAC Facility Revenues and expenditures, City Financing Lease payments, rental and fee schedules, and projections regarding cash flows and revenue receipts on a quarterly basis. The Advisory Board shall also identify and assess potential risks to the Parties' general funds resulting from the TRAC Facility. The Advisory Board may request that monitoring activities be undertaken by City and/or County staff for reporting to the Advisory Board. The Advisory Board shall meet at least quarterly at a time and day fixed by it. Special meetings shall be called by the Chairperson of the Board of Commissioners or any two members of the Advisory Board upon written notice to all Advisory Board members. All meetings of the Advisory Board shall be open to the public. Minutes of Advisory Board meetings shall be kept and provided to the Board of Commissioners and the Council as promptly as practicable following such meetings. The expenses of the Advisory Board shall be Operating Costs of the TRAC Facility. 0113823.06 31 Section 9.3. The TRAC Facility Manager. The Board of Commissioners shall appoint a Manager who shall be responsible for day-to-day management of the TRAC Facility. Prior to such time as the County has appointed a Manager, the County shall designate or contract with an appropriately qualified employee or firm to manage the TRAC Facility. The Manager shall serve as the exclusive County representative to the architect and other consultants and to the general contractor and other contractors, shall serve as spokesperson for the TRAC Facility to government authorities and other third parties, and shall have such other duties as designated by the Board of Commissioners. The Manager may retain such other staff as the various Project budgets permit and are reasonably necessary to manage the TRAC Facility. Section 9.4. TRAC Budget. A. The Board of Commissioners shall submit the TRAC Budget to the Advisory Board for its review and comment by September 1 of each year. The Advisory Board shall provide the Board of Commissioners with written comments to the TRAC Budget within 21 days of their receipt. The Advisory Board shall be deemed to have approved the TRAC Budget if no written comments are received by the Board of Commissioners within such 21 -day period. B. Upon receipt of written comments to the TRAC Budget from the Advisory Board, the Board of Commissioners shall approve, modify or re -write the TRAC Budget within a reasonable time. If the Board of Commissioners determines to modify or re -write the TRAC Budget, then the Board of Commissioners shall submit the 0113823.06 32 modified or re -written TRAC Budget to the Advisory Board for comment pursuant to subsection A. of this Section 9.4. ARTICLE % INSURANCE PROVISIONS Section 10.1. Property Insurance. A. The County shall keep or cause to be kept insured, for their mutual benefit, as named insureds both the City and the County (and their officers, agents and employees), all improvements located on or appurtenant to the TRAC Facility against loss or damage by fire, vandalism, and such other risks as are now or hereafter included in an extended coverage endorsement in common use for public structures. The amount of insurance shall be sufficient to reflect replacement value and to prevent either Party from becoming a co-insurer under the provisions of the policy. In no event shall the amount of such insurance be less than the full insurable value as recommended by an independent insurance consultant. The costs of such insurance shall be an Operating Cost. B. Notwithstanding subsection A of this Section 10.1, the County may, with Council written approval, implement a program of self insurance with reserves that are sufficient, in the reasonable judgment of the County, to protect the County against loss. Section 10.2. Public Liability Insurance. A. The County shall keep or cause to be kept in force, for the mutual benefit of the Parties, as named insureds both the City and the County .(and their officers, agents and employees), comprehensive broad form and general public liability insurance against claims and liability for personal injury, death, or 0113823.06 33 property damage arising from the use, occupancy, or condition of the TRAC Facility, improvements, or adjoining areas. The cost of said insurance shall be an Operating Cost. B. The initial policies of the insurance provided for in subsection A of this Section 10.2 shall provide protection of at least $1,000,000 for bodily injury or death to any one person, at least $1,000,000 for any one accident or occurrence, and at least 50,000 for property damage. The limits of such policies shall be reviewed at the written request of either Party. At no time shall such policy limits be lower than those customarily maintained with respect to facilities of like character as the facilities comprising the TRAC Facility. C. Notwithstanding subsection A or B of this Section 10.2, the County may, with Council written approval, implement a program of self insurance with reserves that are sufficient, in the reasonable judgment of the County, to protect the County against loss. Section 10.3. Design Development and Construction Insurance. A. Within 90 days of the execution of this Agreement, the County shall negotiate and approve a package of insurance and other risk coverage instruments that shall be designed to adequately protect the Parties against loss or damage during the design, development and construction phases of TRAC. B. Notwithstanding subsection A of this Section 10.3, the County may, with Council written approval, implement a program of self insurance with reserves that are sufficient, in the reasonable judgment of the County, to protect the County against loss. 0113823.06 34 ARTICLE %I MISCELLANEOUS section 11.1. Amendment to this Agreement. This Agreement shall not limit the ability of the Parties to enter into subsequent interlocal cooperation agreements that are necessary to carry out the provisions of this Agreement. This Agreement may be amended only by written agreement of the Parties. Section 11.2. Duration and Termination of this Agreement. This Agreement shall automatically terminate in 30 years. This Agreement may be terminated, in whole or in part, through the adoption of a joint resolution to that effect by the Parties; provided, such act shall not materially impair the interests of the owners of the Bonds. Section 11.3. Disposition of Property upon Termination. The provisions for accounting for funds and liabilities shall survive this Agreement. Upon termination of this Agreement, any personal property acquired by the City for the TRAC Facility not purchased to fulfill its obligation under Section 8.4 can be removed by the City, and the County shall pay the City one dollar for the City's interest in the remaining property. In the event of demolition or other salvage costs incurred within one year of termination, such costs shall be deemed a cost of TRAC to be paid according to this Agreement. Section 11.4. Notices. Any notice or demand from one Party to the other Party shall be in writing and shall be deemed duly served if and when mailed by registered or certified mail, return receipt requested, to the addresses set forth below. 0113823.06 35 If to the City: City of Pasco 412 West Clark Pasco, Washington 99301 Attention: City Manager If to the County: Franklin County 1016 North Fourth Avenue Pasco, Washington 99301 Attention: Ex -officio Clerk of the Board of County Commissioners Section 11.5. waiver. No officer, employee or agent of the Parties, other than the Board of Commissioners and the Council jointly, has the power, right, or authority to waive any of the conditions or provisions of this Agreement. No waiver of any breach of this Agreement shall be held to be a waiver of any other or subsequent breach. All remedies afforded in this Agreement or at law shall be taken and construed to be in addition to every other remedy provided herein or by law. Failure of the Parties to enforce at any time any of the provisions of this Agreement, shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of this Agreement or any part hereof, or the right of the Parties to hereafter enforce each and every such provision. Section 11.6. Headings. The article and section headings in this Agreement have been inserted solely for the purpose of convenience and ready reference. In no way do they purport to, and shall not be deemed to, limit or extend the scope or intent of the articles and the sections to which they apply. 0113823.06 36 Section 11.7. Filing of this Agreement. The County shall file this Agreement with the City Clerk, the County Auditor and the Secretary of State of the State of Washington. Section 11.5. Conflict of Interest. No member, official, or employee of either Party shall have any personal interest, direct or indirect, in the subject matter of this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, Partnership, or association in which he or she is, directly or indirectly, interested. Section 11.9. Severability. In the event any provision of this Agreement shall be declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not, in any way, be affected or impaired thereby. Section 11.10. Recitals. The recitals set forth herein are hereby incorporated into this Agreement in full. Section 11.11. No Separate Legal Entity. This Agreement does not create nor seek to create a separate legal entity pursuant to RCW 39.34.030. Section 11.12. Merger. This Agreement, including the Financing Lease, contains the entire agreement between the Parties and cannot be changed or 0113823.06 37 terminated, except by written instruments subsequently executed by the Parties hereto. There is no other agreement, express or implied, oral or written, which modifies, amends, or otherwise changes the writing herein. This Agreement and the terms and conditions hereof apply to and are binding on the legal representatives, successors, and assigns on both Parties. Section 11.13. Effective Date. This Agreement shall become effective immediately after it is duly adopted by the Parties and the certification of the approval of the $3,900,000 unlimited tax general obligation bonds by the voters of the County at the February 8, 1994, special election thereon, except that the obligation of the Parties to pay the costs of consultants for design and other work carried on by the County shall be effective immediately and shall apply to all such costs incurred from the date of the contracts with each consultant until such design and other work is completed or terminated under those contracts. IN WITNESS WHEREOF, Franklin County, Washington, has executed this Agreement by its duly authorized officials as of this,/4-day of _/ J,_1994. BOARD OF COUNTY COMMISSIONERS. FRANKLIN COUNTY, WASHINGTON Chair ATTEST: Clerk S E A L) , 0113823.06 38 IN WITNESS WHEREOF, the City of Pasco, Washington, has executed this Agreement by its duly authorized officials as of this L day of M,41Y , 1994. CITY OF PASCO Franklin County, Washington Mayor ATTEST: Oale , Cler t S E A L) STATE OF WASHINGTON ) ss. County of Franklin ) On this day of(lir ( , 1994, before me personally appeared Uf Y7 t11F'- and Acto me known to be the Chair and the Clerk of the Board of County Commissioners, respectively, of Franklin County, Washington, that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute the said instrument on behalf of the corporation. GIVEN UNDER MY HAND AND OFFICIAL SEAL the day and year in this certificate first above written. Signawre of ry) 11UPkS Ayr)n f5 Printed Name of Neury) Notary public in and for he state of Washington, residing at My Commission expires 0113823.06 39 State of Washington) ss County of Franklin ) On this 2-4- day of May, 1994, before me personally appeared Joyce DeFelice, and Daniel L. Underwood, to me known to be the Mayor and Clerk, respectively of the City of Pasco, Washington that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute the said instrument on behalf of the corporation Given under my hand and official seal, the day and year in this certificate first above written. Name of Notary Public in and for the State of Washington residing at Pasco My Commission expires: 9/16/95 FRANKLIN COUNTY RESOLUTION NO. BEFORE THE BOARD OF COMMISSIONERS, FRANKLIN COUNTY, WASHINGTON RE: APPROVING ADDENDUM NO. 1 TO THE INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF PASCO AND FRANKLIN COUNTY, WASHINGTON, REGARDING THE FINANCING, ACQUISITION AND OWNERSHIP OF A MULTI-PURPOSE ARENA AND EXHIBITION FACILITY TRAC), AMENDING RESOLUTION 94-126 WHEREAS, the Franklin County Commissioners have identified a need to establish a standard format for the provision of operating funds and the repayment of same regarding the annual ongoing operation of TRAC; and WHEREAS, the Board of Franklin County Commissioners also wishes to establish clarification that the City of Pasco and Franklin County will each pay 50% of any Operating Costs that exceed revenues from operation of the TRAC Facility in any calendar year, and WHEREAS, the Board of Commissioners constitutes the legislative authority of Franklin County and deems this to be in the best interest of Franklin County; NOW, THEREFORE, BE IT RESOLVED the Franklin County Board of Commissioners hereby approves the attached Addendum No. I to the Interlocal Cooperation Agreement between the City of Pasco and Franklin County, Washington, regarding the financing, acquisition and ownership of a Multi-purpose Arena and Exhibition Facility (TRAC), amending Resolution 94-126. APPROVED this 3`d day of December, 2014 Attest: C C rte Clerk to to Board Original: Franklin County, City of Pasco, TRAC Copies: Franklin County Accounting Dept. BOARD OF COUNTY COMMISSIONERS FRANKLIN COUNTY, WASHINGTON Chair Chair Pro Tem 4 --- Member ADDENDUM NO. 1 INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF PASCO AND FRANKLIN COUNTY, WASHINGTON, REGARDING THE FINANCING, ACQUISITION AND OWNERSHIP OF A MULTI-PURPOSE ARENA AND EXHIBITION FACILITY (TRAC) THIS ADDENDUM NO.1 is entered into 3rd day of December, 2014, by and between the the parties to the Interlocal Cooperation Agreement between the City of Pasco and Franklin County, Washington, regarding the financing, acquisition and ownership of a multi-purpose arena and exhibition facility dated the 24th day of May, 1994. IN CONSIDERATION of the mutual covenants contained herein, shall be and hereby is amended to read as follows: Section 1. Section 8.4, Payment of Operating Costs, shall be and hereby is amended and shall read as follows: A. The Parties covenant they will each pay 50% of any Operating Costs that exceed Revenues from operation of the TRAC Facility in any calendar year. If any Party advances funds for the other Party, such funds shall bear interest at the rate paid by the State of Washington local government investment pool. Each Party reserves the right to determine the source of such payment. B. In order to meet the cash flow demands of the Operating Costs, the Cash Flow Reserve Fund is created to provide for continuing availability for payment of the Operating Costs as provided in Section A above. The Cash Flow Reserve Fund shall be held and administrated by the County. On or before January 1, 2015, the City and the County shall each deposit into the Cash Flow Reserve Fund the sum of $100,000.00 which shall be used for the purpose of meeting operating costs during those periods when there is not sufficient operating revenue to meet the Operating Costs as they mature. Application of these funds to meet operating costs shall be equally borne between the City and the County. The Cash Flow Reserve Fund shall be replenished from operating revenues on or before December 31 of each operating year during the term of this Agreement. Any disbursements from this Fund, other than as provided above, shall be refunded to the City and the County on an equal basis. c i// - y94/ Addendum No. 1 to Interlocal Agreement Between City and County - 1 Section 2. All remaining terms and conditions of the Interlocal Agreement shall remain in full force and effect. DATED this _L(gZj lday of December, 2014. CITY: CITY OF PASCO, a Municipal Corporation of the State of Washington D e Zabe11, City Matfager APPROVED AS TO FORM: Leland B. Kerr, City Attorney COUNTY: FRANKLIN CONTY, a Political Subdivision of the State of Washington ae Rob EertKoch, Chairman Brad Peck, Chair Pro Tem Rielf Miller, Member ATTEST BY: Z(,c' ivu12::;aOl`f Clerk oft Board ;;? 0 / / -q APPROVED AS TO FORM: Shawn Sant, Prosecuting Attorney for Franklin County 1 By: - De rosecuting Attorney Addendum No. 1 to Interlocal Agreement Between City and County - 2 STATE OF WASHINGTON ) ss County of Franklin ) On the day of 2014, before me, the undersigned, a Notary Public, in and for the State of Washington, duly commissioned and sworn, personally appeared DAVE ZABELL, to me know to be the City Manager of the City of Pasco, a Municipal Corporation of the State of Washington, who executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said City, for the uses and purposes there mentioned, and on oath stated that said person was authorized to execute the said instrument for said City. WITNESS my hand and official seal hereto affixed the day and year in this certificate above k11111jit1 V 0. F.\•'P1q' I CPQ` G ; Print Name: C Notary Public in and for the State of Washington W o: Residing at: Y1 Pt t) I ftgecr+.•yt`; My Commission Expires: I P STATE OF WASHINGTON ) ss County of Franklin On the 3 day of be -c e4 t- , 2014, before me, the undersigned, a Notary Public, in and for the State of Washington, duly commissioned and sworn, personally appeared ROBERT E. KOCH, to me known to be the Chairman of the Board of Franklin County Commissioners, and BRAD PECK, to me known to be a Chair Pro -Tem of the Board of County Commissioners, and RICK MILLER, to me known to be a Member of the Board of County Commissioners, a political subdivision of the State of Washington, who executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said political subdivision of the State of Washington, for the uses and purposes there mentioned, and on oath stated that said persons were authorized to execute the said instrument for Franklin County, Washington. WITNESS my hand and official seal hereto affixed the day and year in this certificate above written. CHERg blll au . Sl,,,•• "„ , i Printed N e: ry C, ev s a E%PIRFa p Notary Public in and fof the State of Washington4r Residing at:/}vTia My Commission Expires: /0 -/ h llll `rTA7E OF Addendum No. 1 to Interlocal Agreement Between City and County - 3