Update from Jack Roberts, County Attorney
6-20-2012
After the work session last week, I re-read the relevant provisions of the Funding Agreement. The County has agreed to notify MWAA, within 120 days of receiving preliminary engineering, if it will participate in the funding of the project. The agreement is silent on the consequence of the County failing to notify MWAA within the agreed period – there is no default “opt in” set out in the agreement. I have followed up with the Board to correct my comments at the work session.I also can assure you that Mr. Hemstreet will be taking no action binding the County to anything without proper Board authorization.I apologize for any concerns that have been caused by my comments at the work session.Jack Roberts
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Ken Reid asks for clarification...
If, for example, there were a tied vote, it is not clear how or if Tim Hemstreet should act. This is especially odd given that the vote may occur after close of business on July 3rd, before a holiday.
Where will this leave Loudoun? What action will Hemstreet take, if any? Will the orders come from Scott York, who is the hardcore pro rail Chairman? Now that the Loudoun County Attorney is on the record making statements that appear to contradict the "Funding Agreement," County Administrator Tim Hemstreet may use his authority under this agreement, and act based on the opinions of County Attorney Jack Roberts, to finalize the single largest financial commitment by mistake. If Mr. Hemstreet shares a misunderstanding of the opted in or out question, he might act improperly.
Either Jack Roberts is confused or there is some funny business going on. These are two very important questions.
Reply by Jack Roberts:
"If you do not take action by July 4, you are in…”
Roberts comments do not concur with documentation. In 3 places there is a reference to Loudoun's need to accept the terms. This puts Loudoun out and requires an opt in action to change that.
1. MEMORANDUM OF AGREEMENT BETWEEN US DOT, VIRGINIA, FAIRFAX, LOUDOUN, WMATA, AND MWAA Page 1 of 14 MEMORANDUM OF AGREEMENT
AMONG UNITED STATES DEPARTMENT OF TRANSPORTATION,
COMMONWEALTH OF VIRGINIA,
FAIRFAX COUNTY,
LOUDOUN COUNTY,
THE WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
http://www.dot.gov/affairs/2011/FTADulles.pdf
WHEREAS, the Funding Agreement provides, among other things, that Fairfax and Loudoun shall notify MWAA whether each respective county will proceed with its financial participation in Phase 2 of the Project within 90 days following receipt from MWAA of documents comprising 100% preliminary engineering for Phase 2, documents supporting the amount of the cost estimate for Phase 2 at 100% preliminary engineering, and documents demonstrating how that cost estimate was developed and computed; and
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2. This Amendment to the original "Funding Agreement" uses the same wording:
http://www.mwaa.com/file/Tab_B-5__Approval_of_the_Third_Amendment_to_the_Dulles_Toll_Road_Permit_and_Operating_Agreement.pdf
page 3
“WHEREAS, The Funding Agreement provides that Loudoun and Fairfax Counties shall have 90 days following their receipt of the Phase 2 preliminary engineering materials in which to review the materials and notify the Airports Authority whether they will financially participate in Phase 2 of the Project (“Review Period”);
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3. This uses the same wording as on page 7 of the original "Funding Agreement":
http://www.metwashairports.com/file/dtfundingagreement.pdf
Question 2.
Ken Reid, “...does the staff have the authority to finalize our agreement with MWAA and Fairfax without Board input...?"
Reply by Jack Roberts:
“NO…this is the funding agreement that the Board entered into... that gives you the opportunity to back out of the project, within this time period that we’re in. If you take no action, you, the Board, are in.”
Again Roberts comments contradict the written agreement.
On page 4 section 2.1 of the Funding Agreement (link below), the county Administrator is Loudoun's designated representative in this agreement and is authorized to act on behalf of the County.
"For purposes of committing the funding partners on funding matters, only the funding partners representative shall act, there shall be no substitutes..."
http://www.metwashairports.com/file/dtfundingagreement.pdf
The "Funding Agreement identifies the Loudoun County Administrator as Loudoun's representative.
______________________________________________________________
BOARD WORK SESSION VIDEO CLIP TRANSCRIPT
Video: http://youtu.be/E1Vo6nAMuPM
Time stamps from original Board Meeting video.
Ken Reid 2:03:38 Jack, under this 2007 agreement, are we allowed to say on July 3, or even June 19, we will opt in
2:22:24 “…On the Record, even though I’m sure this has been covered before, does the board have to take any positive action in order to stay in the project? As it currently stands, does the staff have the authority to finalize our agreement with MWAA and Fairfax without Board input or action, Mr. Roberts?”
Jack Roberts 2:22:43 ”If you do not take action by July 4, you are in… that is my understanding
Reid 2:22:50 “But staff has no authority to do it? Staff has no authority to make a decision?”
Roberts 2:22: 56 “NO…this is the funding agreement that the Board entered into, that gives you the opportunity to back out of the project, within this time period that we’re in. If you take no action, you, the Board, are in.”
Reid 2:23:14 “We’re in, and we can’t say ‘we will opt in, with these conditions,’ we can’t say ’we’re setting up the tax districts,’ we can’t say ‘we don’t want buses capped on the Airport Access Rd’ (that was a good point Mr. Letourneau made)”
Roberts 22:23:25 “Could I address the whole issue of conditions? Because, on a staff level, we have talked about this whole idea of could we do a conditional Opt In, or a conditional Opt Out, however you state it. I think it’s going to be very difficult to put a condition on, that is a condition that you’re going to do something in the future, as opposed to a condition where you’re asking something of MWAA (Chairman York interrupts: “MWAA with not doing the PLA”). To my mind, if you say ‘this is conditional on us doing something, you have essentially Opted Out.”
Reid 22:24:02 “They gave us 30 days extra, and a lot of people didn’t think they were going to give us thirty days.” (Sup. Buona interrupts)
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BOARD WORK SESSION
DULLES CORRIDOR METRORAIL PROJECT – PHASE II
Agenda
Board Room
Monday, June 18, 2012
6:00 P.M.
BOARD WORK SESSION VIDEO CLIP TRANSCRIPT
Video: http://youtu.be/E1Vo6nAMuPM
Time stamps from original Board Meeting video.
Ken Reid 2:03:38 Jack, under this 2007 agreement, are we allowed to say on July 3, or even June 19, we will opt in
2:22:24 “…On the Record, even though I’m sure this has been covered before, does the board have to take any positive action in order to stay in the project? As it currently stands, does the staff have the authority to finalize our agreement with MWAA and Fairfax without Board input or action, Mr. Roberts?”
Jack Roberts 2:22:43 ”If you do not take action by July 4, you are in… that is my understanding
Reid 2:22:50 “But staff has no authority to do it? Staff has no authority to make a decision?”
Roberts 2:22: 56 “NO…this is the funding agreement that the Board entered into, that gives you the opportunity to back out of the project, within this time period that we’re in. If you take no action, you, the Board, are in.”
Reid 2:23:14 “We’re in, and we can’t say ‘we will opt in, with these conditions,’ we can’t say ’we’re setting up the tax districts,’ we can’t say ‘we don’t want buses capped on the Airport Access Rd’ (that was a good point Mr. Letourneau made)”
Roberts 22:23:25 “Could I address the whole issue of conditions? Because, on a staff level, we have talked about this whole idea of could we do a conditional Opt In, or a conditional Opt Out, however you state it. I think it’s going to be very difficult to put a condition on, that is a condition that you’re going to do something in the future, as opposed to a condition where you’re asking something of MWAA (Chairman York interrupts: “MWAA with not doing the PLA”). To my mind, if you say ‘this is conditional on us doing something, you have essentially Opted Out.”
Reid 22:24:02 “They gave us 30 days extra, and a lot of people didn’t think they were going to give us thirty days.” (Sup. Buona interrupts)
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BOARD WORK SESSION
DULLES CORRIDOR METRORAIL PROJECT – PHASE II
Agenda
Board Room
Monday, June 18, 2012
6:00 P.M.
I. Call to Order – Vice-Chairman Clarke
II. Information Items – Finance Meeting #4
1. Recap of Previous Finance Discussions (Hemstreet)
2. Discussion of Projected Staff Resources (Mays)
3. Rail to Dulles Opt-In Consideration (Vice-Chairman Clarke)
III. Adjourn
II. Information Items – Finance Meeting #4
1. Recap of Previous Finance Discussions (Hemstreet)
2. Discussion of Projected Staff Resources (Mays)
3. Rail to Dulles Opt-In Consideration (Vice-Chairman Clarke)
III. Adjourn
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http://www.youtube.com/watch?v=E1Vo6nAMuPM
http://www.youtube.com/watch?v=E1Vo6nAMuPM
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