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HomeMy WebLinkAboutR-2002-110 John & Wauna Harman Foundation License Agreement (Community Senior Center at Gailleon Park )RESOLUTION NO. R-2002- 110 A RESOLUTION authorizing and directing the City Manager to execute a license agreement with the John and Wauna Harman Foundation, a Washington non-profit corporation, relating to the use of a portion of Gailleon Park for construction of a community senior center at no cost to the City. WHEREAS, the John and Wauna Harman Foundation has indicated an intent to provide a community senior center as a beneficent donation to the City of Yakima for use by Yakima's senior citizens; and WHEREAS, the City of Yakima has determined that a portion of the City's Gailleon Park is a desirable location for such a use; and WHEREAS, the City's existing facilities for senior citizens will still be an important part of the City' s ability to serve the needs of the community, but would be complemented by the addition of the senior center described herein; and WHEREAS, the John and Wauna Harman Foundation will not only provide the senior center facility as a "turn -key" completed project with appropriate fixtures, but will also provide such on- and off-site infrastructure improvements as determined necessary by the City pursuant to Title 12 of the Yakima Municipal Code, all at no cost whatsoever to the City; and WHEREAS, the Yakima City Council finds and determines that it is in the public interest to grant the John and Wauna Harman Foundation a license to use a portion of Gailleon Park for the purposes as set forth herein, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated "License Agreement" with the John and Wauna Harman Foundation for the use of a portion of Gailleon Park in the City of Yakima, Page -1 Washington, for the construction of a public senior center as a "turn -key" completed project at no cost to the City of Yakima. ADOP IED BY THE CITY COUNCIL this 3rd day of September, 2002. Place, Mayor ATTEST - City, Clerk Page -2 GAILLEON PARK Legal Description Beginning at the Northeast corner of the Northeast quarter of the Southeast quarter of Section 20, Township 13 North, Range 18, E.W.M.; thence South along the East line of said subdivision, 695.5 feet; thence North 88°45' West 330 feet, more or less, to the right of way of the Yakima Valley Canal; thence Northerly and Easterly along said right of way to a point on the South line of said right of way 300 feet West of the East line of said subdivision; thence North and crossing said canal, a distance of 130 feet, more or less, to the North line of said subdivision at a point 300 feet West of the Northeast corner of said subdivision; thence East along the North line of said subdivision to the point of beginning, Except the North 45 feet for County Road, Except right of way for County Road 60 feet in width as conveyed by instrument recorded in Volume 902 of Official Records of Yakima County, Washington, Auditor's File No. 2338437, and Except right of way for Yakima Valley Canal. LICENSE AGREEMENT THIS AGREEMENT is made this 941) day of 12.1 , 2002, by and between the City of Yakima, a Washington municipal corporation, hereinafter referred to as "CITY" and the John and Wauna Harman Foundation, a Washington non-profit corporation, hereinafter referred to as "LICENSEE". In consideration of the mutual promises and covenants contained in this agreement, the parties hereto agree as follows: 1. Grant of License. CITY hereby grants to LICENSEE a license to enter onto and use, subject to all of the terms and conditions of this agreement, the following -described real property located in Yakima County, Washington, to -wit: [parties agree and acknowledge that an appropriate legal description for the specific portion of the City of Yakima Gailleon Park to be used by the Project may be appended hereto as if set forth fully herein] The above-described real property (the "Property") may be used by LICENSEE solely for construction of a new Senior Center facility (the "Project") for contribution to the City of Yakima at no cost to the CITY, and for incidental activities relating to such construction, and LICENSEE hereby promises and agrees to make (at LICENSEE's sole expense) all modifications and improvements to the Property to allow CITY's future access, use, ownership, and operation of the Project on the Property, all as provided for herein. 2. Term; No Payment Required. This license is given to LICENSEE as an accommodation with no monetary consideration. The LICENSEE's performance of the construction obligations contained herein, and the final completion date hereof, shall be not later than nine (9) months following the date upon which the final necessary permit or approval to authorize construction has been given by the CITY (the "final completion date"). The final LICENSE AGREEMENT - 1 completion date shall be extended by the number of days construction of the Project is delayed due to abnormally inclement weather, strike, fire, or other casualty to the Project, failure of governmental agencies to timely inspect and approve plans, specifications or work, or other cause beyond the reasonable control of LICENSEE. "Final Completion" shall mean the time when is ready the building 3. Permits. during the term or construction and necessary provided for herein, of each such 4. Project description. The Project shall be, upon final completion, a "turn key" facility appropriate for public use as a Senior Center of approximately 15,000 square feet and shall also include all fixtures and personal property necessary to enable the CITY to make full use of the Project as a Senior Center upon surrender to the CITY. Without limitation, the Project shall include, at LICENSEE'S sole cost and expense which can include donations by others, appropriate parking areas, and a building with common areas, restrooms, a fully -furnished dining area, a kitchen and meal preparation area, and food storage. facilities, all of which will be within the boundaries of Gailleon Park. In addition, all necessary infrastructure improvements (whether on or off site) shall be provided by LICENSEE consisting of curbs, gutter, sidewalk along east side of N. 65th Avenue (extending approximately 650 feet southward from the intersection of N. 65th Avenue and Summitview Avenue), sidewalk canal crossing, two standard street lights, stormwater management devices, including any necessary drains, and street parking on the east side of N. 65th Avenue, all of which is adjacent to City of Yakima Gailleon Park. CITY agrees to use its for occupancy and use by the CITY. LICENSEE shall obtain and at all times hereof all licenses, permits, or other development approvals necessary to construct the Senior Center for the CITY to assume operation of the same as and shall also comply with each and every term permit. possess LICENSE AGREEMENT - 2 best efforts to assist LICENSEE in seeking any available source of funding, other than from the CITY itself, to assist in paying for said infrastructure improvements. LICENSEE contemplates spending approximately Three Million Dollars ($3,000,000.00) on the Project, which will include but not be limited to all permits, licenses, construction costs, inspections fees, connection costs, architecture, engineering and consulting services and Title 12 infrastructure improvements. LICENSEE agrees to complete the Project as a "turn key" operation so the CITY can use, own and operate the Project as a Senior Citizen Center. LICENSEE shall consult with CITY from time to time and as set forth in paragraph 7 below, for periodic confirmation that the Project will be surrendered to the CITY as a "turn key" operation. The Project will be constructed according to plans and specifications to be hereafter developed by LICENSEE. 4.1 Compliance with laws. LICENSEE and its consultants, architects, and contractors shall comply with all applicable statutes or rules of any governmental authority then in effect while constructing the Project. LICENSEE represents and warrants that, as of the time the Project is completed and operation of the same is assumed by CITY, the Project will be in compliance with all applicable statutes or rules of any governmental authority then in effect related to the construction or operation of the Project. In the event that the Project is deemed subject to public bidding laws by a court of competent jurisdiction, LICENSEE shall have the right to terminate this agreement. 4.2 Construction performance. The Project shall be constructed by LICENSEE with due diligence. The quality of construction and the quality of materials used in the construction of the Project shall be of a first class quality. LICENSEE shall prosecute construction to completion without undue interruption or delay and in a good, workmanlike manner. LICENSEE shall take LICENSE AGREEMENT - 3 steps to discourage the accumulation of unsightly debris, broken down equipment, trash, garbage or other materials not necessary for the operations contemplated herein. LICENSEE shall cooperate fully with CITY to maintain the highest reasonable public image. 4.3 Warranty. LICENSEE warrants that materials, goods and equipment furnished under this agreement will be of good quality and new. LICENSEE shall assign to CITY any and all guarantees and/or warranties of workmanship and materials, or any other warranty which it may receive relating to the Project. LICENSEE shall take all steps necessary to ensure that any and all warranties of which it may be a beneficiary shall be assignable to CITY. LICENSEE shall obtain assignable warranties in LICENSEE's agreements with its consultants, architects, and contractors such that the CITY shall enjoy and benefit from warranties against defects in workmanship or materials for all materials, goods, services and equipment furnished under this agreement for a period of one year from the date that possession of the Project is assumed by the CITY. 4.4 Utilities. LICENSEE shall make all arrangements for and pay fo"r, prior to delinquency, all utilities and services furnished to or used by it or its agents or contractors, including, without limitation, gas, electricity, water, telephone service, communications, cable television, trash collection, sewer and storm drainage. LICENSEE shall, as part of its construction obligations, contract for and pay all necessary charges to connect the Project to, or to access, gas, electrical, water, telephone, communications, cable television lines or sources and sewer and storm drainage. 4.5 Public health; nuisance. LICENSEE is solely responsible for assuring that all activities required under this agreement to be performed by LICENSEE or any of its consultants, architects, or contractors are in compliance with any applicable federal, state LICENSE AGREEMENT - 4 SENT BY: 9-16- 2 ;12;OOPM ; MENKE JACKSON BEYER- 509 5756238;# 2/ 2 or local environmental or public health laws, codes or regulations. LICENSEE shall also be responsible for maint_aini,ng reasonable security at the Project site to protect the public health and safety and to avoid unauthorized uses of the Project site. The ProjecL shall not cause a nuisance as defined in applicable law, and LICENSEE shall endeavor to take ali reasonable and practicable steps to minimize disruption and conflict during construction with the surrounding residences, whether occasioned by noise, dust, traffic, or other inconvenience. 5. CITY'S title; liens. LICENSEE acknowledges the legal fee title of CITY to the above-described real property and agrees never to deny such title or to claim title in TICENSEE'S name. 1.,ICENSEE expressly agrees that it doers not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the above-described real property of CITY by virtue of the rights granted under this License agreement, LICENSEE'S occupancy or use under this agreement, or any other basis. Title to, and unencumbered ownership of, a1l work, materials, and goods that are an clement of the Project shall pass to the CITY no later than the date of final completion set forth herein. Upon the date of final completion, LICENSEE warrants that each and every aspect of the Project shall he free and cloar of all liens, claims, security Interests or encumbrances however arising. At all times material hereto, whether prior to or after Final Completion, the LICENSEE shall indemnify and hold the CTTY harmless from any pending, threatened, or actual lien foreclosure action arising out of development and construction of L'he Project by .LICENSEE or any of its consultants, contractors or agents. 6. Disputes; arbitration. It is the intent and expectation of the parties that disputes and disagreements, if any, regarding the construction of the Project will be worked out between them in a spirit of good will and fairness. The parties agree to use their 410ENSE AGREEMENT - 5 best efforts to settle such disputes, claims, questions, or disagreements and negotiate in good faith with each other. In the event the parties are unable to resolve any dispute between them, the same shall be submitted to arbitration whereby the parties shall jointly select an independent arbitrator, or failing agreement upon an arbitrator within 30 days of one party providing notice of a dispute to the other, each shall select an arbitrator within the succeeding 15 days and give written notice thereof to the other, the two so selected shall within 15 days thereafter select a third arbitrator, and each party shall submit its position to the arbitrators in writing. In any arbitration commenced hereunder, the decision may include an order of specific performance. Each party shall bear the cost of the arbitrator selected by that party, but the other costs of arbitration, including the fees of the third arbitrator and the prevailing party' reasonable expert witness' and attorneys' fees, shall be paid by the non-prevailing party. 7. Records. CITY or its representatives will meet with the LICENSEE from time to time or as may be required to discuss the progress of Project construction provided under this agreement. These meetings will be used to keep LICENSEE and the CITY informed of operations that may affect either party. 8. Safety. The LICENSEE shall require i•n writing from each contractor and subcontractor, to the extent of the work to be performed by each, an agreement that all applicable Federal, State and local safety regulations governing job site safety shall be observed and enforced. 9. Supervision; contractual relations. LICENSEE shall designate a project consultant who shall be responsible for studying and understanding all aspects of this agreement and who shall be the primary contact with the CITY. LICENSE AGREEMENT - 6 By appropriate written agreement LICENSEE or LICENSEE'S consultant shall require each contractor and subcontractor, to the extent of work performed by each, to be bound to LICENSEE by the terms of this agreement and to assume toward the LICENSEE all the obligations agreement, and responsibilities which the LICENSEE, by this assumes toward the CITY. Each such contract or subcontract shall preserve and protect the rights of the CITY under this agreement so that LICENSEE's contracting or subcontracting thereof will not prejudice such rights of CITY. The LICENSEE or LICENSEE's consultant shall make available to each contractor and subcontractor a copy of this agreement for the purpose of this provision. 10. Insurance. On or before the date this License agreement is fully executed by the parties, the LICENSEE shall provide the CITY with a certificate of insurance as proof of liability insurance with a minimum liability limit of Two Million Dollars ($2,000,000.00) combined single limit bodily injury and property damage. The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect (any statement in the certificate to the effect of "this certificate is issued as a matter of information only and confers no right upon the certificate holder" shall be deleted). Said policy shall be in effect for the duration of this License agreement. The policy shall be in a form satisfactory to the CITY and shall name the CITY, its elected officials, officers, agents, and employees as additional insureds, and shall contain a clause that the insurer will 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 doing business in the State of Washington. It is understood the CITY does not maintain liability insurance for the LICENSE AGREEMENT - 7 LICENSEE or its directors, officials, officers, agents, contractors, employees or volunteers. LICENSEE shall at LICENSEE'S expense obtain and keep in force during the term of this license a policy of insurance covering loss or damage to the Project in the amount of the full replacement value thereof against all perils included within the classification of fire, extended coverage, vandalism, malicious mischief and special extended perils ("all risk," as that term is known in the insurance industry). LICENSEE shall be liable for any deductible amount in any such policy. LICENSEE shall obtain such endorsements as are reasonably recommended by CITY's risk manager, including, without limitation, an endorsement for changes in building codes. LICENSEE shall be the loss payee on any policy provided for herein, and any proceeds shall be used to rebuild the Project following any insured casualty to the standards and specifications originally established for the Project. If, after written notice and a fifteen (15) day opportunity to cure, LICENSEE shall fail to obtain any insurance required under this agreement, CITY may, at its election, obtain such insurance and LICENSEE shall reimburse CITY for the cost thereof, within five (5) days following demand therefor. LICENSEE and CITY each hereby release and relieve each other, and waive their right of recovery against the, other, for loss or damage arising out of or incident to the perils insured against herein which perils occur in, on or about the Project, whether due to the negligence of either party or their agents, employees, contractors and/or invitees, but only to the extent of actual and available insurance coverage. LICENSEE shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this agreement; provided, that this paragraph shall be inapplicable to the extent that it would have LICENSE AGREEMENT - 8 the effect of invalidating any insurance coverage otherwise available. 11. Indemnity. LICENSEE shall, commencing with the date hereof, indemnify, defend, protect and hold harmless CITY and its respective elected officials, council members, officers, employees, agents and contractors (collectively the "Indemnitees") from and against any and all claims, losses, proceedings, damages, causes of action, liability, costs and expenses (including reasonable attorneys' fees), related to, arising from or in connection with, or caused by, directly or indirectly (a) any act, omission or negligence of LICENSEE wheresoever the same may occur and (b) any breach or default in the performance of any obligations on the part of LICENSEE or its contractors, consultants, agents, or employees to be performed under the terms of this agreement, or any such claim or any action or proceeding brought thereon. In case of any action or proceeding subject to the indemnification terms herein, LICENSEE upon notice from CITY shall defend the same at LICENSEE's expense by counsel reasonably satisfactory to CITY. LICENSEE, as a material part of the consideration to CITY, hereby assumes all risk of damage to property or injury to persons in, on or about the Project arising from any cause prior to surrender of the Project to City, and LICENSEE hereby waives all claims in respect thereof against CITY. For purposes of indemnification provided herein, LICENSEE specifically waives any immunity that may be granted it under the Washington State Industrial Insurance Act, Title 51, Revised Code of Washington. Further, the indemnification obligations of LICENSEE to CITY shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable to or for any third party under workers' compensation acts, disability benefit acts, or other benefit acts; provided, that LICENSEE's waiver of immunity shall not include or LICENSE AGREEMENT - 9 extend to any claims by LICENSEE's employees directly against LICENSEE. LICENSEE's and CITY's obligations under this section shall survive termination or expiration of this agreement. 12. Entry. CITY shall have the right to enter onto the site of the Project at all reasonable times to inspect the Project for compliance with applicable building and permit codes. 13. Performance Bond. Prior to the commencement of any construction activity of any sort hereunder, LICENSEE agrees to furnish to the CITY satisfactory evidence that LICENSEE has obtained from its contractor (or contractors, if more than one general contract shall exist) a duly issued valid bond or bonds covering faithful performance of the construction terms of this agreement and payment of any obligations arising hereunder. In any of said bond or bonds obtained by LICENSEE, the CITY (together with LICENSEE, as CITY's and LICENSEE's respective interests are set forth herein) shall be entitled to enforce the same for all purposes. 14. Warranties and representations. LICENSEE makes the following representations, warranties and acknowledgments as of the date of this agreement, which representations, warranties and acknowledgments shall survive and continue thereafter: (a) Status. LICENSEE is a Washington non-profit corporation, duly formed and validly existing and has all power and authority to perform the obligations contemplated hereby. (b) Authority. LICENSEE has complied with all laws and regulations concerning its organization, existence and transaction of business. LICENSEE represents that it has or will obtain all personnel and equipment required to perform the services hereunder. LICENSE AGREEMENT - 10 Such personnel shall not be employees of CITY. To the best of LICENSEE's knowledge, LICENSEE has, or at all appropriate times shall have, properly obtained, all permits, licenses and approvals necessary to construct the Project, and at the time the Project is surrendered to the CITY will allow CITY to operate the Project in a lawful manner. (c) No Litigation. There is no litigation, action, suit or other proceeding pending or threatened against LICENSEE which may in any manner whatsoever affect the validity, priority or enforceability of this agreement or the construction, use, occupancy or operation of the Project by CITY. (d) No Breach. To the best of LICENSEE's knowledge, none of the undertakings of LICENSEE contained in this agreement violates any applicable statute or any order or ruling of any court, or conflicts with, or constitutes a breach or default under, any agreement by which LICENSEE is bound or regulated. (e) Accuracy. To the best of LICENSEE's knowledge, all documents, reports, instruments, papers, data, information and forms of evidence delivered (whether prior or subsequent to the execution of this agreement) to CITY by LICENSEE with respect to this agreement or CITY'S performance hereunder are accurate, correct and complete and shall not contain any misrepresentation or omission. LICENSE AGREEMENT - 11 CITY makes the following representations, warranties and acknowledgments as of the date of this agreement, which representations, warranties and acknowledgments shall survive and continue thereafter: (a) No Litigation. There is no litigation, action, suit or other proceeding pending or threatened against CITY which may in any manner whatsoever affect the validity, priority or enforceability of this agreement or the construction of the Project by LICENSEE, or the use, occupancy or operation of the Project by CITY. (b) No Breach. To the best of CITY's knowledge, none of the undertakings of CITY contained in this agreement violates any applicable statute or any order or ruling of any court, or conflicts with, or constitutes a breach or default under, any agreement by which CITY is bound or regulated. (c) Accuracy. To the best of CITY'S knowledge, all documents, reports, instruments, papers, data, information and forms of evidence delivered (whether prior or subsequent to the execution of this agreement) to LICENSEE by CITY with respect to this agreement or LICENSEE's performance hereunder, are accurate, correct and complete and shall not contain any misrepresentation or omission. (d) Authority. CITY has complied with all laws and regulations concerning the approval and authorization of this agreement, the signing of this agreement by CITY has been duly LICENSE AGREEMENT - 12 authorized, and this agreement is legally binding on CITY. 15. Surrender of Project; restriction on use. At the time of Final Completion or earlier termination of this agreement, LICENSEE shall immediately surrender to CITY the possession of the Project and shall execute any bill of sale, release of interest, or other instrument necessary to convey all right and title of LICENSEE in and to all improvements made to the subject real property. LICENSEE shall leave the surrendered property and any other property in good and clean condition whether upon Final Completion or any earlier termination. The CITY agrees to restrict use of the Project, upon Final Completion, to use primarily as a senior center, or for other incidental community uses for the benefit of the community at large at least until such time as a comparable public senior center exists elsewhere in the City. The CITY agrees to the recording of a document in the real property records of Yakima County evidencing this covenant. 16. Hazardous Materials. LICENSEE shall not store, generate, treat'or dispose of any hazardous material or hazardous waste on the property of CITY, including the Project site and the surrounding real property of CITY, except for the storage and use, as provided for by applicable law or regulation, of materials commonly and reasonably used in the construction industry during the course of construction of the Project. CITY acknowledges that the real property made a subject of this agreement has been used for an orchard and other uses, and may contain hazardous materials, hazardous wastes, and other contaminants. CITY agrees that LICENSEE shall not have any responsibility or obligation to CITY for cleanup or in any other way dealing with any hazardous materials, hazardous wastes, and other contaminants as the same may exist on the subject real LICENSE AGREEMENT - 13 property as of the effective date of this agreement. CITY agrees to provide to LICENSEE a buildable site for the Project. Without prejudice to the CITY's rights to seek contribution or indemnification from any potentially responsible third parties, CITY agrees, for purposes of facilitating the construction provided for herein, to promptly assume responsibility and liability for any hazardous materials, hazardous waste and/or other contaminants existing as of the date of this agreement, such that LICENSEE's construction efforts may proceed in a reasonably timely manner. LICENSEE shall have the right to terminate this agreement in the event that the CITY does not fulfill its covenant to provide a buildable site for LICENSEE's construction efforts or timely perform environmental cleanup and remediation as provided herein. When used in this agreement, the term shall be defined to mean any substance "Hazardous Material" or material defined or designated as hazardous or toxic waste, hazardous or toxic material, a hazardous, flammable explosive, corrosive, toxic, or radioactive substance, or other similar term, by any federal, state, or local environmental statute, regulation, or ordinance presently in effect or that may be promulgated in the future, as such statutes, regulations, and ordinances may be amended from time to time, including, but not limited to, the statutes listed below: (a) Federal Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (b) Federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. Federal Clean Air Act, 42 U.S.C. § 7401-7626. Federal Water Pollution Control Act, Federal Clean Water Act of 1977, 33 U.S.C. § 1257 et seq. (c) (d) LICENSE AGREEMENT - 14 (e) Federal Insecticide, Fungicide, and Rodenticide Act, Fed. Pesticide Act of 1978, 7 U.S.C. § 13 et seq. (f) Federal Toxic Substance Control Act, 15 U.S.C. § 2601 et seq. (g) Federal Safe Drinking Water Act, 42 U.S.C. § 3000(f) et seq. (h) Washington Clean Air Act, RCW Chapter 70.94. (i) Washington Solid Waste Management -Recovery and Recycling Act, RCW Chapter 70.95. (j) Washington Model Toxics Control Act, RCW Chapter 70.105D. (k) Washington Hazardous Waste Fees Act, RCW Chapter 70.105.A. (1) Washington Nuclear Energy and Radiation Act, RCW Chapter 70.98. (m) Washington Radioactive Waste Storage and Transportation Act of 1980, RCW Chapter 70.99. LICENSEE shall indemnify, protect, hold harmless and defend the CITY, its elected officials, council members, officers, employees, agents and volunteers from and against any and all liability (including reasonable attorneys' fees), directly or indirectly arising from (a) the use, generation, storage or disposal of Hazardous Materials by LICENSEE, and (b) the cost of any required or necessary repair, cleanup or detoxification and the preparation of any closure or other required plans, to the full extent that such liability is attributable, directly or indirectly, to the presence or use, generation, storage, release, threatened release or disposal of Hazardous Materials on or with respect to the subject of this license by LICENSEE, its officers, employees, agents and/or invitees. LICENSE AGREEMENT - 15 Except as set forth above in this Section 16, LICENSEE releases the CITY from any and all claims LICENSEE may have against the CITY of whatever kind or nature resulting from or in any way connected with the environmental condition of the Project site or the surrounding real property of CITY, including any and all claims LICENSEE may have against CITY under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), or any other federal, state, or local law, whether statutory or common law, ordinance, or regulation pertaining to the release of Hazardous Materials into the environment. LICENSEE's and CITY's obligations under this section shall survive termination or expiration of this agreement. 17. Notices. Any notice provided for or concerning this agreement shall be in writing and shall be deemed sufficiently given when sent by registered or certified mail, postage prepaid, if sent to the party, or hand delivered to the party, at the following addresses: CITY City of Yakima Attn: City Engineer City Hall 129 North 2nd Street Yakima, WA 98901 LICENSEE John and Wauna Harman Foundation Mr. Barry W. Harman, President 7838 River Oaks Circle Sandy, UT 84093 18. Assignment or Sublicense. No assignment or other transfer of the license granted under this agreement, or any interest in such license, and no sublicense for any purpose shall be made or granted by LICENSEE without the express, prior, and written consent of CITY. 19. Governing Law; Venue. This agreement shall be construed and interpreted in accordance with the laws of the State of LICENSE AGREEMENT - 16 Washington. Venue of any action arising from or related to this agreement shall lie in the Superior Court in and for Yakima County, Washington. 20. Time is of the Essence. Time is of the essence herein. By executing this agreement, the LICENSEE confirms that the date of final completion represents a reasonable period of time for completing the Project. If LICENSEE delays commencement of construction on the site of the Project by more than six months from the date of this Agreement because of environmental studies, hearings, lawsuits, or other causes which LICENSEE believes could result in suspension of construction, LICENSEE may terminate this Agreement by written notice to the CITY and LICENSEE shall thereafter have no further obligations or responsibilities with regard to the Project. 21. Waivers. The waiver by either party of any breach by the other party of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. 22. Brokers. Each party warrants to and for the benefit of the other that it has had no dealings with any real estate broker or other agent (attorneys excepted) in connection with the negotiation or making of this agreement. Each party shall indemnify the other for breaches of this warranty. 23. Headings. The captions of the various sections of this agreement are for convenience and ease of reference only and do not define, limit, augment or describe the scope, contents or intent of this agreement or of any part or parts of this agreement. 24. Consents of CITY. Neither CITY's execution of this agreement nor any consent or approval given by CITY hereunder shall waive, abridge, impair or otherwise affect CITY'S powers and duties as a governmental body. Any requirements under this agreement that LICENSE AGREEMENT - 17 LICENSEE obtain consents or approvals of CITY are in addition to and not in lieu of any requirements of law that LICENSEE obtain approvals, licenses or permits as may otherwise be necessary. 25. No Joint Venture. Nothing contained herein shall be construed to render the CITY in any way or for any purpose a partner, joint venturer or associated in any relationship with LICENSEE other than that of CITY and LICENSEE, nor shall this agreement be construed to authorize either party to act as agent for the other, or to make CITY in any way responsible for the liabilities, debts or losses of LICENSEE including, but not limited to, any fees or amounts owing to LICENSEE's consultants, architects, or contractors. 26. Exhibits. All exhibits to which reference is made in this agreement are hereby incorporated by reference in full. Any reference to "this agreement" includes matters incorporated by reference. 27. Entire agreement; Modification. This agreement contains the entire agreement between the parties with respect to the Project. No verbal agreement or implied covenant shall be held to vary the provisions hereof, any statements, law or custom to the contrary notwithstanding. No promise, representation, warranty or covenant not included in this agreement has been or is relied on by either party. Each party has relied on its own inspection of the Project site and examination of this agreement, the counsel of its own advisors and the warranties, representations and covenants in this agreement itself. The failure or refusal of either party to inspect the Project site, to read this agreement or other documents or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention or claim that might have been based on such reading, inspection or advice. No provision of this agreement may be amended or varied except by an agreement in writing signed by the Parties. LICENSE AGREEMENT - 18 28. Severability. The invalidity or illegality of any provision shall not affect the remainder of this agreement and all remaining provisions herein shall, notwithstanding any such invalidity or illegality, continue in full force and effect. 29. Nondiscrimination Provision. During the performance of this agreement, the LICENSEE shall not discriminate in violation of any federal, state, and/or local law and/or regulation on the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical handicap. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff, or termination, rates of pay or other forms of compensation, selection for training, and the performance of activities under this agreement. 30. Execution in Counterparts. This agreement, or the Memorandum of License, or both, may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. 31. Date of Agreement. The date of this agreement shall be the date it is signed by the CITY. IN WITNESS WHEREOF, each party to this agreement has caused it to be executed at Yakima, Washington on the date indicated below. CITY OF YAKIMA By: City Manager Date: 3-99t. o2OD 2� ATTEST: JOHN AND WAUNA HARMAN FOUNDATION B y W. Harman, President Date: 9-'0- oz City Clerk LICENSE AGREEMENT - 19 CITY CONTRACT No: RESCLUTIO'a HO: ...1.:42.01,42:--1.1—P BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. l For Meeting of: September 3, 2002 IThM TITLE: Resolution Authorizing License Agreement for Construction of a Community Senior Center at Gailleon Park SUBM1T1 ED BY: Chris Waarvick, Director of Public Works Denise Nichols, Parks and Recreation Manager CONTACT PERSON/TELEPHONE: Denise Nichols, 575-6020 SUMMARY EXPLANATION: Staff respectfully requests approval authorizing the City Manager to execute the attached License Agreement with the John and Wauna Harman Foundation to use a portion of Gailleon Park for the construction of a new community senior center. The benefactors will build the proposed senior center, and once complete, will donate the facility to the City to be operated as a senior citizens center. This project has been in the making for some 18 months when the benefactors approached the City about this concept. Various sites were reviewed and the benefactor has an expressed desire for the Gailleon Park site. (Continued) Resolution X Ordinance Other (Specify) License Agreement Contract Mail to: Parks and Recreation Manager's Office Phone: 575-6020 Funding Source: N/A APPROVED FOR SUBMITTAL : City Manager STAFF RECOMMENDATION: Staff respectfully requests approval of the resolution authorizing the City Manager to execute the attached License Agreement. BOARD/COMMISSION RECOMMENDATION: The Parks and Recreation Commission approved the usage of Gailleon Park as the future site of the proposed Senior Center. COUNCIL ACTION: • Yakima. Senior Center 602 North 4th Street, was one of the first senior centers in the state and celebrated its 25th anniversary in September, 1998. Remodeled twice since its construction in 1974, it boasts 9,000 square feet of space with a fully -equipped commercial kitchen and dining room, pool tables, reading/television area, arts and crafts rooms, health screening room, computer lab and multi-purpose rooms and serves senior who pass through its doors 65,000 annually. • Yakima Senior Center has a long list of programs and activities. Trips and tours to a wide variety of destinations: New Zealand, Pike Place Market, Skagit Valley Tulip Festival, Reno and Lake Tahoe to name a few Computer classes: Introduction, Windows, Mac I and II, Word Processing, Excel and Learning the Internet Health and Wellness: Blood Pressure and Blood Sugar Testing, Hearing Screening, Medication Review, Footcare Clinic, Fitness Forever and Driver Refresher Ongoing Activities: Bridge, Pinochle, Cribbage, Bingo, Pool, Friday Dances and Daily Lunches Crafts: China Painting, Ceramics, Quilting, Oil Painting, Floral Design, Watercolor, Leather Tooling and Woodcarving Clubs and Meetings: Bible Study, Dinner Club, TOPS, Senior Singles, AARP and Creating Writing. • 1 i By 2010, the baby -boom generation will make up more than two thirds of the 50 -plus population and Senior Centers will be changing to attract and serve this unique and active population. A busy group of people, boomers are opting out of the rocking chair to pursue numerous interests and activities.They will be using their new found time and freedom to follow new paths that include continuing education, turning hobbies into small businesses or caring for grandchildren while parents make a living. And with life spans on the upswing, the booming senior populations will be doing all of these things longer. In the future, Multipurpose Centers for Active Adults will serve as gateways to senior service networks as well as destinations. The service delivery possibilities are endless: • programs for health, fitness and wellness • opportunities for socializing, education, recreation, arts, travel, volunteerism, social and community action • resources for insurance, medication, tax, finance and legal information • assistance with meals, nutrition, adult daycare, caregiver relief, employment and transportation. As our older population increases and changes, Active Adult Centers will adapt existing methods while inventing new ones to ensure their ability to meet the needs and aspirations of seniors in the twenty-first century. Approximately one quarter of Yakima's population — 20,000 individuals — is fifty years old or older. At the same time, the city's median household income is $29,706 which increases the value of public activities, programs and services to the city's residents. Services for seniors represent an exciting opportunity for investment in the future and for enhancement Yaki m a's quality of life. One possible site for a new center is Gailleon Park at 65th and Summitview Avenues. The location is ripe for development and would provide an excellent site for an active adult center. The land was donated to the City in 1974 by the Clevenger Family and the name Gailleon was derived from the names of two of their children. Attributes that make the property attractive include the following: 4.5 acres — plenty of room for a center, landscaping and parking. Land is owned by the city and is available for development. Summitview location is compatible with Active Adults Center concept. A recent survey shows 80% of current center users reside west of 16th Avenue. Surrounded by well-established residential neighborhoods. Rapidly developing neighorhoods to the west. Located on a major arterial with direct bus service. • Westside location mirrors and complements eastside location of existing Yakima Senior Center. • The Clevenger Family would like to see the land put to a use that would benefit the community.