HomeMy WebLinkAboutR-2004-064 New Senior Center / Harman Center at Gailleon Park (John & Wauna Harman Foundation)RESOLUTION NO. R-2004- 64
A RESOLUTION authorizing and directing the City Manager to execute an
agreement with, and accept a quit claim deed from, the John
and Wauna Harman Foundation, a Washington non-profit
corporation, relating to the anticipated completion and transfer
of a community senior center, at no cost to the City of Yakima,
located on a portion of Gailleon Park.
WHEREAS, on September 3, 2002, the City Council passed Resolution No. R-
2002-110 which authorized and directed 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; and
WHEREAS, the John and Wauna Harman Foundation has undertaken
extensive work in overseeing and financing the construction of 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 the proposed senior
center is a desirable structure for the City to own and operate, and is an
appropriate use of a portion of Gailleon Park; 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 will be
complemented by the addition of the senior center described herein; and
WHEREAS, the John and Wauna Harman Foundation intends to
imminently transfer possession of the proposed senior center facility as a "turn -key"
completed project with appropriate fixtures and has provided 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 accept the proposed senior center on the terms more fully set forth
in that certain Agreement for Acceptance of Project, together with a quit claim deed
imposing a restrictive covenant for the continued use of the proposed senior center
as a senior center, both as attached hereto and incorporated herein by this
reference, 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 "Agreement for Acceptance of Project" and
the attached and incorporated quit claim deed with the John and Wauna Harman
Foundation for the transfer of a proposed senior center facility located on a portion
of Gailleon Park in the City of Yakima, Washington, as a "turn -key" completed
project at no cost to the City of Yakima.
ADOPTED BY THE CITY COUNCIL this 20t4ay of April, 2004.
ATTEST:
City Clerk
C/,„
Paul P. George, Mayor
BILL OF SALE
The John and Wauna Harman Foundation, a Washington non-profit
corporation ("Foundation"), in consideration of further assurance of title and as a
public benefit, hereby transfers and assigns to the City of Yakima, a Washington
municipal corporation ("City"), the following personal property:
All existing structures and related equipment, furniture,
furnishings, trade fixtures, and other improvements known as the
"Harman Center," located on the City of Yakima's Gailleon Park.
Foundation warrants to City full and clear title to the above property, and that
the same is free of all liens and encumbrances of any kind.
DATED THIS day of April, 2004.
JOHN AND WAUNA HARMAN
FOUNDATION, a Washington non-profit
corporation
By:
Its:
When recorded, return to:
Kenneth W. Harper
Menke Jackson Beyer
Elofson Ehlis & Harper, LLP
807 North 39th Avenue
Yakima, WA 98902
Phone: (509) 575-0313
QUIT CLAIM DEED
COUNTY EXCISE TAX
DATE_ t—�
PAIR$ i1L"It
REC.NO. 3 6 2 3 8 3
BY
Yakima County
lrer's Offiao
Reference nos. of docts.
assigned or released:
Grantor:
Grantee:
Legal description:
n/a
John and Wauna Harman Foundation, a Washington
non-profit corporation
City of Yakima, a Washington municipal corporation
NE % SE IA S20 T13 N R18 EWM (Additional legal on
page Sof document.)
Assessor's Parcel No.: 18132041001
THE GRANTOR, the John and Wauna Harman Foundation, a Washington
non-profit corporation, in consideration of the covenants herein and as a public
benefit, conveys and quit claims to the City of Yakima, a Washington municipal
corporation, the following described real estate, situate in Yakima County,
Washington, together with all after acquired title of the grantor therein, to -wit:
SEE ATTACHED EXHIBIT A
TOGETHER WITH all appurtenances belonging thereto.
Quit Claim Deed - 1
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In consideration of the gift by Grantor to Grantee of the building and
improvements located on the above-described real property and identified
herein as the "Harman Center," Grantee accepts this deed subject to the
following restrictive covenants:
1
So long as the improvements presently located on said real property exist,
said improvements shall henceforth be identified as the "Harman Center"
and shall not be used for any purpose other than primarily as a site for the
benefit city of Yakima's programs and efforts to a the a ty
r. of the city _�.__s_zs �.� programs ubzz�a ext u. efforts i3�ipro`��. quality L� of
life for the elderly and older persons, provided that the specific programs and
efforts of the City of Yakima in fulfilling this mission shall be subject to
determination by the City, in its sole discretion.
2. This covenant, and the terms and restrictions set forth herein, shall run with
the land and shall be binding upon the current and future owners thereof.
3. This covenant contains the entire understanding between the parties with
respect to the subject matter hereof. There are no other representations,
agreements, arrangements or understandings, verbal or written, between
and among the parties relating to the subject matter of this covenant. No
amendment or modification to these covenants shall be valid or effective
unless duly authorized and made in writing.
Quit Claim Deed - 2
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DATED this 4day of April, 2004.
John and Wauna Harman
Foundation, a Washington
non-profit corporation
By:
Its:21c...4-.
-N"
ACCEPTED this a0 day of April, 2004.
City of Yakima, Washington, a
Washington municipal corporation
By:
Its: City Manager
STATE OF WASHINGTON
): ss.
County of Yakima
I certify that I know or have satisfactory evidence that Brykit), t_fci. pvwf is the
person who appeared before me, and said person acknowledged that he signed this
instrument, on oath stated that he was authorized to execute the instrument and
acknowledged it as the Pr c si deN..F'' of the John and Wauna Harman
Foundation, a Washington non-profit corporation, to be the free and voluntary act of
Quit Claim Deed - 3
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DATED: r; a0,0100
2005
STATE OF WASHINGTON
County of Yakima
2 A
gGoY®'Vd��iunt name
Notary Public in and for the State of
Washington.
My appointment expires: 5
Residing at:
Ya ted
): ss.
I certify that I know or have satisfactory evidence that R.A. Zais, Jr., is
the persons who appeared before me, and said person acknowledged that he signed
this instrument, on oath stated that he is authorized to execute the instrument and
acknowledged it as the City Manager of the City of Yakima, Washington to be
the free and voluntary act of such party for the uses and purposes mentioned in this
instrument.
DATED: Apr:, .-01 ODY
Quit Claim Deed - 4
P.4, imprint name
Notary Public in and for the State of
Washington.
My appointment expires:
Residing at:
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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
HDB-Daily
Gailleon Park Legal
EXHIBIT A
111111,111111111111111111111111
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AGREEMENT FOR ACCEPTANCE OF PROJECT
THIS AGREEMENT is made this 4,20 day of April, 2004, 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 "FOUNDATION" (collectively referred to herein as the
"parties").
WHEREAS the parties hereto are also parties to that certain
license agreement dated September 9, 2002, (the "License
Agreement") associated with the FOUNDATION'S rights to use the
CITY's property (the "Property") commonly known as a portion of
Gailleon Park and more fully described in the License Agreement;
WHEREAS the FOUNDATION'S use of the Property pursuant to the
License Agreement resulted in the construction of a turn -key
facility for use by the CITY as a community senior center (the
"Project") at no cost to the CITY;
WHEREAS construction of the Project is nearing completion, and
the FOUNDATION desires, to transfer possession of the Project to the
CITY, and the CITY desires to accept the same;
WHEREAS the parties acknowledge that certain steps remain to
be completed prior to the actual transfer of possession of the
Project to the CITY, and wish to hereby document the transfer
process and, in so doing, supplement the terms of the License
Agreement.
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NOW, THEREFORE, in consideration of the mutual promises and
covenants contained in this agreement (the "Agreement"), the
parties hereto agree as follows:
1. Termination of License. Upon final transfer of the
Project as provided for herein, the license granted from the CITY
to the FOUNDATION shall terminate and be of no further force and
effect. The FOUNDATION agrees and acknowledges that upon
termination of the license, the FOUNDATION shall have no rights in,
or claims upon, either the Project or the real property upon which
it is located, and the FOUNDATION agrees to take such steps as may
be necessary to confirm title in and to the Project and the subject
real property with the CITY.
2. No Payment Reg—uired. None of the obligations set forth
in this Agreement to be pprfo rme rl by the CITY invol involves the payment
of monetary consideration to the FOUNDATION. The FOUNDATION shall
transfer, __on_ the___terms _more- fully set_ forth herein,._ the Project to
the CITY as a gift to the CITY.
3. Completion of Project. The parties have been advised
by the general contractor that substantial completion of the
Project (as the term "substantial completion" is defined in the
General Conditions of the Contract for Construction for the
Project by and between the FOUNDATION and its contractor and
architect dated April 30, 2003, referred to herein as the
"General Conditions") will occur prior to, or within thirty (30)
days after, execution of this Agreement. Final completion of the
Project (as the term "final completion" is defined in the General
Conditions) will occur by not later than August 1, 2004. The
terms and conditions of the General Conditions governing
substantial completion, partial occupancy or use, and final
completion, as set forth more particularly at paragraphs 9.8
through 9.10, and subparts thereof, shall be incorporated herein
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by this reference, and the obligations of the general contractor
and the architect to the Owner described in said General
Conditions shall be expressly acknowledged and agreed to confer a
third party benefit to the CITY, and shall be enforceable by the
CITY as such as the assignee of the FOUNDATION.
Without limitation to the generality of the foregoing, the
architect's issuance to the FOUNDATION of a final certificate for
payment shall also constitute a representation to the CITY of the
conditions and status of the Project as described in the General
Conditions and shall be enforceable for all purposes that the
same could be enforced by the Owner pursuant to the terms of the
General Conditions.
4. Transfer of Possession; Final Transfer of Project;
Building Commissioning. Within ten (10) days of the Project
having been determined by the FOUNDATION to be ready for transfer
of possession to the CITY, but not later than the date for final
completion of the Project, the FOUNDATION shall give written
notice of the same to the CITY.
As used in this Agreement, "transfer of possession" shall
mean that point in time when the risk of loss of the Project has
passed from the FOUNDATION to the CITY and all incidents of
ownership in and to the Project have finally and irrevocably
vested with the CITY, all on the terms set forth herein.
Transfer of possession shall be evidenced for purposes of this
Agreement by the surrendering to the CITY of all master keys, and
copies thereof, related to the Project and by execution of the
documents referred to in paragraph 7, below. City assumes and
agrees to be responsible for all liability arising from the
operation and use of the building after transfer of possession.
Notwithstanding transfer of possession, the FOUNDATION
agrees to perform all steps necessary, as set forth herein, to
AGREEMENT FOR
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consummate final transfer of the Project to the CITY not later
than August 1, 2004. "Final transfer of the Project" shall occur
by written notice of the FOUNDATION to the CTTY, which notice
shall constitute a warranty that all conditions pre -requisite to
the final transfer of the Project to the CITY set forth herein
and in the License Agreement have been satisfied, including as
follows:
a. issuance by the architect of the final certificate
of payment and payment by the FOUNDATION of all
sums due thereunder;
b. payment by the FOUNDATION of all sums due the
architect and any other consultants, suppliers, or
other persons known to the FOUNDATION to be
associated in any way with the Project;
c. delivery of all documents specified in paragraph 5,
below.
Upon final transfer of the Project to the CITY consistent with
the terms of this Agreement, the parties agree that the Project
will be deemed to constitute a completed "turn key facility" as
that phrase is used in the License Agreement.
The FOUNDATION warrants that building commissioning actions
that remain to be completed after transfer of possession of the
Project to the CITY are limited to the air conditioning system,
including test and balance procedures. Notwithstanding transfer
of possession of the Project to the CITY, the FOUNDATION and its
contractors, architect, and agents, shall remain responsible for,
and shall pursue to completion, the successful commissioning of
the air conditioning system and any other building commissioning
tasks.
AGREEMENT FOR
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Under no circumstances shall acceptance of transfer of
possession by the CITY or final transfer of the Project to the
CITY be construed as an acceptance by the CITY of defective work
or of improper materials, whether said defect is attributable to
the architect, general contractor, subcontractor, supplier, or
any other person, nor shall any such transfer constitute a waiver
of any other claims, including those which may arise out of this
Agreement or the License Agreement.
5. Document Delivery. Not later than ten (10) days prior to
final transfer of the Project to the CITY, the following documents
related to the Project shall be delivered, in their original
version, if applicable, to the CITY's Director of Public Works or
his designee:
a. Project construction records, including all
construction correspondence, change orders, test
reports (including geotechnical and soils analysis
reports and documentation of testing for all life
safety systems), financial records, shop drawings,
product data, samples (as the terms "shop drawings"
and "product data" and "samples" are defined in the
General Conditions), and survey materials.
b. All of the general contractor's close-out documents,
including but not limited to those documents submitted
to the architect pursuant to paragraph 9.10.2 of the
General Conditions. In recognition of the optional
language set forth in paragraph 9.10.2(5) of the
General Conditions, the FOUNDATION hereby agrees to
require, as Owner, any and all such documents as may
meet the description of "other data establishing
payment or satisfaction of obligations, such as
receipts, releases and waivers of liens, claims,
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security interests or encumbrances arising out of the
Contract...."
r-_ A directory of all contractor, subcontractor,
manufacturer, vendor, and material supplier
information, including names, addresses, telephone
numbers, and contractor/subcontractor license or
identification numbers, together with a brief
description of the service provided and/or system or
material installed or supplied.
d. All official certifications associated with the
Project, including but not limited to use and
occupancy permits, certificate of inspection from
fire official, r ert i fi rat n nf inspection from
public health officials, and certificate of inspection
from any other governing authorities as applicable.
e. 111 maintenance agreements and/or service contracts
associated in any way with the Project which, by their
terms or by implication, are enforceable beyond the
transfer of possession or final transfer of the
Project to the CITY, regardless of whether the CITY
may be or become a party to any such obligations.
f. All construction materials testing reports, whether
obtained by the general contractor or any
subcontractor.
g. All as -built drawings, renderings, or diagrams,
including electronic versions of the same, for any
aspect of the Project, whether obtained by the
architect, general contractor, or any subcontractor or
any other person associated with the Project. If
applicable, this shall include copies of any
contractor's notes, including but not limited to those
AGREEMENT FOR
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referencing any field changes, unless the same have
been incorporated into final as -built documents.
h. All operations and maintenance ("O&M") manuals for any
aspect of the Project, whether obtained by the general
contractor or any subcontractor or any other person
associated with the Project.
i. As -installed building finishes data, including
specific paint formulas or types, and usage locations,
both interior and exterior, as well as manufacturer's
recommended cleaning statements or instructions.
j. As -built systems data, including coordinated drawings
or diagrams showing as -installed color -coded piping
and wiring diagrams, as -installed electric circuit
directories of panel boards, and charts of valve tag
numbers with location and function of each valve.
k. Utility metering information, as applicable.
1. Warranty summary information. The obligation to
provide warranty summary information includes the
delivery to the CITY of all guarantees and/or bonds
executed by vendors, manufacturer, suppliers,
contractors and subcontractors, and incorporates by
reference, and supplements, the obligation set forth
at paragraph 4.3 of the License Agreement, which
requires that the FOUNDATION:
...obtain assignable warranties in
[FOUNDATION's] agreement 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
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m.
n.
furnished under this agreement for a
period of one year from the date that
possession of the Proiect is assumed by
the CITY.
All written owner -contractor and owner -architect
contracts, including standard form of agreement,
general conditions of the contract for construction,
supplemental general conditions, and any
agreements, contracts, or addenda thereto.
All final commissioning reports for the project and
for all systems associated with the project including,
but not limited to, with respect to HVAC systems, fire
other
suppression
i nn
systems.
o. Substantial
contractor.
p. Substantial
architect.
Architect's
r. Consents to
q-
ygtemc, and el e— r- r- 1 and r 1 nmhi ng
completion certificate signed by general
completion certificate signed by
final certificate for payment.
assignment of the FOUNDATION's contract
rights as set forth in paragraph 6, below.
6. Assignment of Rights. FOUNDATION agrees and acknowledges
that the CITY shall be the assignee of all rights of the FOUNDATION
as against third parties including, but not limited to,
contractors, subcontractors, material suppliers, and architect, to
the same extent as would or might benefit the FOUNDATION itself.
The FOUNDATION agree to provide to the CITY, prior to transfer
of possession, documents sufficient to fully and enforceably assign
the FOUNDATION's contract and all other rights with respect to the
architect, contractor, subcontractors and material suppliers to and
AGREEMENT FOR
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for the benefit of the CITY, provided the FOUNDATION shall also
have the right to pursue and enforce said contract rights at any
time on its own behalf prior to final transfer of the Project to
the CITY.
In the event that it becomes necessary for the FOUNDATION to
execute further documents to evidence or create said assignments,
the FOUNDATION agrees to perform the same, and agrees to otherwise
cooperate in whatever way necessary with the CITY to achieve the
assignment of rights described herein and described in the License
Agreement.
7. Bill of Sale; Quit Claim Deed. FOUNDATION agrees to
execute, prior to transfer of possession, the bill of sale and quit
claim deed in the form attached hereto as Exhibits A and B,
incorporated herein by reference, to evidence the complete and
irrevocable transfer of any and all ownership interest, claim, or
incident thereof to the CITY. Both parties reaffirm and warrant
that no consideration has been given by the CITY to the FOUNDATION
or to any other party in exchange for the Project as a turn key
facility or for the bill of sale or quit claim deed, and that the
Project has been, and is, strictly a donative gift of the
FOUNDATION to the CITY.
8. Utilities. FOUNDATION and CITY agree that fees and/or
charges for all utilities and services furnished to or used by the
Project including, without limitation, gas, electricity, water,
telephone service, communications, cable television, trash
collection, sewer and storm drainage, shall be apportioned between
FOUNDATION and CITY on a pro -rated basis as of the time transfer of
possession to the CITY occurs.
9. No Liens. FOUNDATION ratifies and warrants that each and
every aspect of the Project is free and clear of all liens, claims,
security interests or encumbrances however arising.
AGREEMENT FOR
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10. Insurance. The Project has been insured as set forth
more fully at paragraph 10 of the License Agreement, and the
FOUNDATION nn notice from any i ns rer i r li �+ r r i 1 +
the Project is or may be uninsurable. The parties intend for the
risk of loss associated with the Project to become the obligation
of the CITY upon transfer of possession, and the CITY agrees to
arrange for appropriate insurance and risk management procedures
for the Project upon transfer of possession pursuant to paragraph 4
of this Agreement.
11. Release of Liability. Notwithstanding anything in this
Agreement or the License Agreement to the contrary, the FOUNDATION
shall, commencing on the date of final transfer of the Project, be
released from any further responsibility and liability related to
the Project other than for any breach of the License Agreement or
this Agreement existing on said date of final transfer.
12. Warranties and Representations. FOUNDATION and CITY each
ratify, warrant, and re -affirm each and every warranty and
representation set forth in the License Agreement to the extent not
expressly modified herein.
13. Governing Law; Venue. This Agreement shall be construed
and interpreted in accordance with the laws of the State of
Washington. Venue of any action arising from or related to this
Agreement shall lie in the Superior Court in and for Yakima County,
Washington.
14. 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.
15. Headings. The captions of the various sections of this
Agreement are for convenience and ease of reference only and do not
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define, limit, augment or describe the scope, contents or intent of
this Agreement or of any part or parts of this Agreement.
16. 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.
17. 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
FOUNDATION, 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 FOUNDATION
including, but not limited to, any fees or amounts owing to
FOUNDATION's consultants, architects, contractors or suppliers.
18. Exhibits. All exhibits to which reference is made in
this Agreement are hereby incorporated by reference as if set forth
in full. Any reference to "this Agreement" includes matters
incorporated by reference.
19. Modification. No provision of this Agreement may be
amended or varied except by an agreement in writing signed by the
parties.
20. 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.
21. Execution in Counterparts. This Agreement 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.
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22. Ratification of License Agreement. Except as modified
herein, the Parties ratify and affirm the provisions set forth in
the License Agreement.
23. Date of Agreement. The effective 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, a Washington
municipal corporation
By:
Date:
City Manager
l rrs ) cZO .200
JOHN AND WAUNA HARMAN FOUNDATION,
a Washington non-profit
corporation
By.
ry W. Harman, President
Date: y, a( - Dy
CITY CONTRACT
RESOLUT1ONAr) i2- o -goy
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in 6A Yakima Co, WA
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 10
For Meeting of: April 20, 2004
ITEM TITLE: A Resolution authorizing an Agreement for Acceptance of Project for the
new Harman Center at Gailleon Park
SUBM1'1'1'ED BY: Chris Waarvick, Director of Public Works
Denise Nichols, Parks and Recreation Manager
CONTACT PERSON/TELEPHONE: Denise Nichols, 575-6020
SUMMARY EXPLANATION:
Construction of the new senior center is nearing completion, and the time has come to transfer
possession to the City of Yakima. Staff respectfully requests Council consideration of the
resolution authorizing an agreement with the John and Wauna Harman Foundation accepting
the new Harman Center at Gailleon Park, including a Bill of Sale and a Quit Claim Deed, at no
cost to the City of Yakima.
Resolution Ordinances X Other (Specify)
ContractX Mail to (name and address) : Phone:
Funding Source: Parks and Recreation Fund
APPROVED FOR SUBMITTAL: City Manager
STAFF RECOMMENDATION: Staff respectfully requests the City Council to adopt the
Resolution authorizing and directing the City Manager to execute an Agreement for
Acceptance of Project, including a Bill of Sale and a Quit Claim Deed, with the John and
Wauna Harman Foundation for the Harman Center at Gailleon Park.
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION:
Resolution adopted. RESOLUTION NO. R-2004-64