HomeMy WebLinkAboutR-2003-107 JEM Properties, L.L.C. & Terry Powell License AgreementRESOLUTION NO. R-2003-10
A RESOLUTION authorizing the City Manager of the City of Yakima to execute a
license agreement with JEM Properties, L.L.C. and Terry Powell to
improve, use and maintain certain property located at 202 East
Yakima Avenue, Yakima, Washington, for park and recreation
purposes.
WHEREAS, the City desires to improve, use and maintain certain real property
located at 202 East Yakima Avenue, Yakima, Washington, for park and recreation
purposes; and
WHEREAS, RCW 4.24.200-.210 encourages property owners and others in lawful
possession of property to provide free recreational areas for public use by limiting their
liability for injuries to recreational users; and
WHEREAS, JEM Properties and Powell are willing to grant a license to the City
to improve, use and maintain said property for park and recreation purposes in
accordance with the terms and conditions of the attached license agreement.
WHEREAS, the City Council deems it to be in the best interest of the City of
Yakima to authorize execution of the attached license agreement with JEM Properties,
L.L.C. and Terry Powell, 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 JEM Properties,
L.L.C. and Terry Powell to improve, use and maintain certain property located at 202
East Yakima Avenue, Yakima, Washington, for park and recreation purposes.
ADOPTED BY THE CITY COUNCIL this 5th day of August, 2003.
ATTEST:
City Clerk
(1k)res-public works-parks-morrier-Powell-license.pm
Mary Place, Mayor
LICENSE AGREEMENT
BETWEEN THE CITY OF YAKIMA,
JEM PROPERTIES, L.L.C.
AND
TERRY POWELL
THIS LICENSE AGREEMENT (hereinafter "License Agreement") is made and entered
into by and between the City of Yakima, (hereinafter the "City"), JEM Properties, L.L.C.
(hereinafter "JEM Properties"), and Terry Powell, an individual (hereinafter "Powell").
WHEREAS, the City desires to improve, use and maintain certain real property located
at 202 East Yakima Avenue, Yakima, Washington, for park and recreation purposes.
WHEREAS, RCW 4.24.200-.210 encourage property owners and others in lawful
possession of property to provide free recreational areas for public use by limiting their liability
for injuries to recreational users.
WHEREAS, JEM Properties and Powell are willing to grant a license to the City to
improve, use and maintain said property for park and recreation purposes in accordance with
the terms and conditions of this License Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, promises, terms and
conditions set forth herein, it is agreed by and between the City, JEM Properties and Powell as
follows:
1. Improvement, Use and Maintenance License. The City is licensed to improve, use and
maintain as a City park the real property located at 202 East Yakima Avenue, Yakima,
Washington, Yakima County Tax Parcel # 191319-24403, and legally described on attached and
incorporated Exhibit "A."
2. Term of License Agreement. The term of this License Agreement shall commence upon
full execution hereof by the parties and shall continue indefinitely until terminated by any
party. Any party hereto may terminate this License Agreement, with or without cause, by
giving the other parties written notice of termination fifteen (15) calendar days prior to the
effective date of termination.
3. Surrender of Property. The City agrees that upon termination of this License
Agreement, the City will quit and surrender the property described in Exhibit A to JEM
Properties and Powell in as good a state and condition as when received by the City or as
improved thereafter.
4. Right to Property. Representatives of JEM Properties and Powell shall have the right to
enter upon and inspect the subject property at any time during the term of this License
Agreement.
5. Licensee Status of the City. The City understands and expressly agrees that it is a
licensee with regard to any and all activities conducted/performed pursuant to this License
Page 1
(Ik)agr/parks mother powell license 7-25-03.pm
Agreement. No officer, employee, volunteer, and/or agent of the City shall act on behalf of or
represent him or herself as an agent or representative of JEM Properties and/or Powell. The
City, as a licensee, assumes the entire responsibility for all activities conducted/performed by
the City and any of its officers, employees, volunteers, and/or agents pursuant to this License
Agreement. The City and its officers, employees, volunteers, agents and/or subcontractors
shall make no claim of employment with JEM Properties and/or Powell nor shall claim against
JEM Properties and/or Powell any related employment benefits, social security, and/or
retirement benefits. Nothing contained herein shall be interpreted as creating a relationship of
servant, employee, partnership or agency between the City and JEM Properties and/or Powell.
6. Compliance With Law. The City shall conduct all activities under and pursuant to this
License Agreement in full compliance with any and all applicable laws, rules, and regulations
adopted or promulgated by any governmental agency or regulatory body, whether federal,
state, local, or otherwise.
7. Nondiscrimination Provision. During the performance of this License Agreement, the
City 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 License Agreement.
8. Debts and Liens. The City shall not permit/allow any lien to attach to the property as a
result of the City's improvement, use and maintenance of the property under this License
Agreement. In the event of any such lien, the City shall immediately take all necessary steps to
have JEM Properties and Powell legally released from said lien.
9. General Indemnification and Hold Harmless.
The City agrees to protect, defend, indemnify, and hold harmless JEM Properties and
Powell, and their officers, elected officials, agents, and employees from any and all claims,
demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all
judgments, awards, costs and expenses (including reasonable attorneys' fees and
disbursements) caused by or occurring by reason of any negligent act and/or omission of the
City, its officers, elected officials, employees, agents, and/or volunteers arising out of or in
connection with the improvement, use and maintenance of the subject property under and
pursuant to this License Agreement, including but not limited to any personal injury and/or
property damage claim. The provisions of this section shall survive the termination or
expiration of this License Agreement.
10. Environmental Indemnification and Hold Harmless.
a. JEM Properties and Powell agree to indemnify, defend and hold the City, its
officers, elected officials, agents and employees harmless from and against any and all claims,
causes of action, demands and liability including, but not limited to, any costs, liabilities,
damages, expenses, assessments, penalties, fines, losses, judgments and attorneys' fees
associated with the existence of, and/or removal or remediation of any hazardous substances
Page 2
(1k)agr/parks morrier powell license 7-25-03.pm
that have been released, or otherwise come to be located on the subject property prior to the
execution of this License Agreement, including but not limited to the following; the presence of
hazardous substances related to underground storage tanks on or near the property; the
presence of perchloroethylene ("perc") and similar substances on the property; and those
hazardous substances that may have migrated through water or soil to the property from other
property or those that may have migrated from the property through water or soil to other
properties. JEM Properties and Powell further agree to retain indemnify, defend, and hold the
City, its officers, elected officials, agents and employees harmless from any and all liability
arising from the off site disposal, handling, treatment, storage or transportation of any such
hazardous substances removed from the property.
b. The City agrees to indemnify, defend and hold JEM Properties and Powell, and
their officers, directors, agents and employees hamiless from and against any and all claims,
causes of action, demands and liability including, but not limited to, any costs, liabilities,
damages, expenses, assessments, penalties, fines, losses, judgments and attorneys' fees
associated with the existence of, and/or removal or remediation of any hazardous substances
that have been released, or otherwise come to be located on the subject property after the
execution of this License Agreement and which are caused by or result from the City's
improvement, use and maintenance of the property, including those that may have migrated
from the property through water or soil to other properties. The City further agrees to retain
indemnify, defend, and hold JEM Properties and Powell and their officers, elected officials,
agents and employees harmless from any and all liability arising from the off site disposal,
handling, treatment, storage or transportation of any such hazardous substances removed from
the property.
c. For the purposes of this License Agreement, "hazardous substances" includes all
substances identified as hazardous under the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., and the Washington Model Toxic
Control Act, RCW 70.105D et seq.
d. The provisions of this section shall survive the termination or expiration of this
License Agreement.
11. SELF-INSURED STATUS OF CITY AND EXCESS LIABILITY INSURANCE.
a. The City is a self-insured municipal corporation but annually purchases a public
entity excess liability insurance policy with a limit of at least seven and one half (7.5) million
dollars ($7,500,000) per any one occurrence or wrongful act or series of continuous repeated or
related occurrences or wrongful acts in excess of the City's retained limit of one and one half
(1.5) million dollars ($1,500,000).
b. In the event the City, after commencement of this Agreement, elects to terminate
said excess liability coverage, the City will promptly notify JEM Properties and Powell.
c. Said excess liability coverage shall not be deemed as having relieved the CITY of
any liability.
Page 3
(1k)agr/parks morrier powell license 7-25-03.pm
12. Assignment. This License Agreement, or any interest herein, or claim hereunder, shall
not be assigned or transferred in whole or in part by the City to any other person or entity
without the prior written consent of JEM Properties and Powell. In the event that such prior
written consent to an assignment is granted, then the assignee shall assume all duties,
obligations, and liabilities of the City as stated herein.
13. Waiver of Breach. A waiver by any party hereto of a breach of any other party hereto of
any covenant or condition of this License Agreement shall not impair the right of the party not
in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either
party to insist upon strict performance of any License Agreement, covenant or condition of this
License Agreement, or to exercise any right herein given in any one or more instances, shall not
be construed as a waiver or relinquishment of any such covenant, condition or right.
14. Severability.
a. If a court of competent jurisdiction holds any part, term or provision of this
License Agreement to be illegal, or invalid in whole or in part, the validity of the remaining
provisions shall not be affected, and the parties' rights and obligations shall be construed and
enforced as if the Agreement did not contain the particular provision held to be invalid.
b. If any provision of this License Agreement is in direct conflict with any statutory
provision of the State of Washington, that provision which may conflict shall be deemed
inoperative and null and void insofar as it may conflict, and shall be deemed modified to
conform to such statutory provision.
15. Notices. Unless stated otherwise herein, all notices and demands shall be in writing
and sent or hand delivered to the parties to their addresses as follows:
TO CITY: Denise Nichols, Manager
Parks & Recreation Division
City of Yakima
2302 Fruitvale Blvd.
Yakima, WA 98902
JEM Properties, L.L.C.: Joseph R. Morrier, President/CEO
JEM Properties, L.L.C.
402 East Yakima Avenue, Suite 1400
Yakima, WA 98901
Terry Powell: Terry Powell
Instant Press
110 North 2nd Street
Yakima, WA 98901
or to such other addresses as the parties may hereafter designate in writing. Notices and/or
demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such
Page 4
(Ik)agr/parks morrier powell license 7-25-03.pm
notices shall be deemed effective when mailed or hand delivered at the addresses specified
above.
16. Governing Law. This License Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
17. Venue. The venue for any action to enforce or interpret this License Agreement shall lie
in the Superior Court of Washington for Yakima County, Washington.
18. Integration. This written document constitutes the entire License Agreement between
the City, JEM Properties and Powell and supercedes any and all previous written and/or oral
agreements between the parties. There are no other oral or written agreements between the
parties as to the matters covered herein. No changes or additions to this License Agreement
shall be valid or binding upon either party unless such change or addition be in writing and
executed by both parties.
CITY OF YAKIMA JEM PROPERTIES, L.L.C.
By: _
Dick Zais, City anager
Date: August 6, 2003
ATTEST:
By: PROPERTY SOLD TO TERRY POWELL
Date:
Joseph R. Morrier, President/CEO
&110148
City Clerk
City Contract No. 2003-76
Resolution No. R-2003-107
Page 5
(1k)agr/parks morrier powell license 7-25-03.pm
ITEM TITLE:
SUBMITTED BY:
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of August 5, 2003
Consideration of a License Agreement between the City of Yakima,
JEM Properties, L.L.C. and Terry Powell
Yakima Downtown Association and
Department of Community and Economic Development -
CONTACT PERSON/TELEPHON "T 1 iam R. Cook, CED Department Director, 575-6227
SUMMARY EXPLANATION:
Over the last two months the Yakima Downtown Association Advisory Board (YDA) has
discussed improving the vacant lot located at 202 East Yakima Avenue (former Jade Tree
Restaurant) for park and reaction purposes and to further beautify the downtown. Both
JEM Properties (current owner) and Terry Powell are willing to grant a license to the City
to improve, use and maintain the property for park and recreation purposes in accordance
with the terms and conditions of the attached license agreement. The goal of the YDA
Advisory Board is to have this park developed by the end of August for the "Hot Shots" 3
on 3 Basketball Tournament.
Resolution X Ordinance Contract Other (Specify) License Agreement
Funding Source
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION: Approve Resolution
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION:
STOKES LAWRENCE
VELIKANJE MOORE & SHORE
Dustin E. Yeager
(509) 895-0067
Dustin.Yeager@stokeslaw.com
Reply to Yakima Office
May 29, 2013
CERTIFIED MAIL
Mr. Ken Wilkinson
Parks and Recreation Manager
City of Yakima
2301 Fruitvale Blvd.
Yakima, Washington 98902
Re: License Agreement (202 East Yakima Avenue)
Dear Mr. Wilkinson:
My office represents Snyder Land Co., LLC ("Snyder Land"). On May 28, 2013,
Snyder Land purchased the real property located at 202 East Yakima Avenue, Yakima,
Washington (the "Subject Property") from Terry Powell. For the past ten years the City
of Yakima has used and maintained the Subject Property under the terms of the License
Agreement Between the City of Yakima, JEM Properties, L.L.C., and Terry Powell,
which is dated on or about August 6, 2003 and remains in effect (the "License
Agreement").
This letter has been sent to you for the purpose of notifying the City of Yakima of
Snyder Land's purchase of the Subject Property and the assignment of Ms. Powell's
interest under the License Agreement to Snyder Land. Please note that all future notices
given under the License Agreement by the City of Yakima should now be given to
Snyder Land, rather than Terry Powell, at the following address:
Snyder Land Co., LLC
c/o Dustin E. Yeager, Stokes Lawrence, P.S.
120 North Naches Avenue
Yakima, Washington 98901
SinLarr,;cnc , P S.
Stokes Lanuvnrr 11120 Fifth Anenue, Snate 3000 18eni1le, Washington 98101-2393 206.626 6000 reccptinn 206.464 1496 facsasrile
Stodrvs Lawrence Mikan)? More cf Slror: 120 Ai Naches Avenue Yakima, Washington 'ton 98901-2757 509 853 3000 reception 509 895 0060 farsimili
52608-002 \ 1191140 docx
uva m. siok e.s/rrro.CONM
May 29, 2013
Page 2
If you have any questions, please let me know. Thank you for your time.
Sincerely,
STOKES LAWRENCE
VELIKAJE MO- E & SHORE
Dustin E.
52608-002 \ 1191140 docx
ASSIGNMENT OF.LICEN
SE AGREEMENT
EFFECTIVE DATE,: May 28, 2013
PARTIES: TERRY POWELL
(referred to in this Assignment as "Assignor")
SNYI)ER LAND CO., LLC,
a Washington limited liability company
(refeued to in this Assignment as "Assignee")
LICENSE AGREEMENT, The term "License Agreement," when used in this Agreement,
means and refers to the License Agreement between the City of Yakima, JEM Properties, L.L.C.,
and Terry Powell dated on or about August 6, 2003, for the licensed improvement, use, and
maintenance of the property located at 202 East Yakima Avenue, Yakima County (Yakima
County Tax Parcel No. 191319-24403).
ASSIGNMENT. On the above -stated Effective Date, Assignor sold the Yakima County,
Washington real property subject to the License Agreement to Assignee. In connection with said
sale, Assignor hereby assigns and transfers to Assignee all of Assignor's interest in the License
Agreement to Assignee.
EXECUTED effective as of the Effective Date first written above.
52608-002 \ 1191 137.docx