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HomeMy WebLinkAboutR-2005-179 Final Transfer of Harman Center to City of YakimaRESOLUTION NO. R-2005- 179 A RESOLUTION authorizing and directing the City Manager to accept final transfer of the Harman Center at Gailleon Park and to execute such documents as are attached hereto to accomplish the acceptance of the same. 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, on April 20, 2004, the City Council passed Resolution No. R-2004- 64 which authorized and directed the City Manager to execute an agreement with the John and Wauna Harman Foundation to provide for the final transfer of the Harman Center at Gailleon Park to the City of Yakima; 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 complete final transfer of the facility to the City of Yakima, all at no cost whatsoever to the City; and Resolution No. R-2005-179 Page 1 WHEREAS, the Yakima City Council finds and determines that it is in the public interest to accept the proposed final transfer of the Harman Center at Gailleon Park on the terms more fully set forth in the accompanying documents 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 accept final transfer of the Harman Center at Gailleon Park to the City of Yakima and to execute such documents as are attached hereto to accomplish the acceptance of the same, all as a "turn -key" completed project at no cost to the City of Yakima. ADOPTED BY THE CITY COUNCIL this 15t day of November, 2005. Paul P. George, Mayor ATTEST: City Clerk Resolution No. R-2005- 179 Page 2 LIMITED EXTENDED WARRANTY Tri -Ply Construction, LLC, a Washington limited liability company, hereby provides the City of Yakima with a five-year limited extended warranty on the Yakima Senior Center, located at 101 North 65th Ave., Yakima, Washington 98908, as follows: Tri -Ply Construction, LLC warrants the adhesiveness of all of the flooring systems inside the Yakima Senior Center building (with the exception of the hardwood flooring systems) for a period of five -years commencing on May 1, 2004 and ending on April 30, 2009. This limited warranty does not cover wear and tear, nor does the limited warranty cover the adhesiveness of the flooring systems in the event of a flood or fire, or some other event out of the normal course of events. This limited warranty is given to the City of Yakima with the intention of being limited to any problems that may occur with the adhesiveness of the flooring systems due to the condition of the underlying sub -surface, specifically including but not limited to the concrete slab. In the event of a covered loss of adhesiveness, Tri -Ply Construction shall either repair or replace the affected area(s) with materials of like kind at no additional cost, and to the satisfaction of the City of Yakima. Dated this day of November, 2005 Warranty Provided By: Tri -Ply Construction, LLC By: Accepted by: City of Yakima By: Its: Its: RELEASE OF RESPONSIBILITY AND LIABILITY Parties: The City of Yakima, a Washington municipal corporation The John and Wauna Harman Foundation, a Washington non-profit corporation. Effective Date: November , 2005 Pursuant to the requirements of the parties' Agreement for Acceptance of Project dated on or about April 20, 2004, and the parties' License Agreement dated on or about September 9, 2002, (the "Agreements" herein) the City of Yakima, Washington, a Washington municipal corporation, hereby releases the John and Wauna Harman Foundation, a Washington non-profit corporation, (the "Hannan Foundation" herein) from any responsibility and/or liability whatsoever, related in any way to the design, construction or operation of the Project (as the term "Project" is defined in the above-described Agreement for Acceptance of Project, which definition is incorporated herein by this reference) and hereby assumes full responsibility and liability for the Project, except as provided as follows. Nothing contained herein shall operate as a release of the Harman Foundation for breach of any provision of the Agreements, or for breach of any of the following documents of even date: Certification of Payment; Assignment of Warranties; Assignment and Assumption of Contract Rights; Certification Regarding Title; and the instant Release of Responsibility and Liability. The Harman Foundation hereby discloses that a subcontractor of Tri -Ply Construction, Northern Hardwood, may make a claim for reimbursement for the costs and expenses of replacing the hardwood flooring during construction. Without limitation as to the obligations of the Harman Foundation contained elsewhere in the above-described documents, in the event of any claim by Northern Hardwood or by any other person arising out of the replacement of the hardwood flooring, the Harman Foundation agrees and affirms that it will indemnify and hold harmless the City of Yakima against the same. CITY OF YAKIMA, a Washington JOHN AND WAUNA HARMAN FOUNDATION, municipal corporation a Washington non-profit corporation By: By: R. A. Zais, Jr. City Manager Barry W. Harman, President Date: Date: ATTEST: City Clerk CERTIFICATION REGARDING TITLE Effective Date: November , 2005 Property: The Harman Center / The Yakima Senior Center 101 N. 65th Ave. Yakima, WA Abbreviated Legal: EN _ SE _ S20 T13 N R18 EWM, Yakima County, WA (for full legal description, see attached Exhibit A (the "real property" herein)) Tax Parcel Number: 181320-41001 Pursuant to the requirements of the parties' Agreement for Acceptance of Project dated on or about April 20, 2004, and the parties' License Agreement dated on or about September 9, 2002, (the "Agreements" herein) the John and Wauna Harman Foundation, a Washington non- profit corporation, (the "Harman Foundation" herein) certifies and warrants to the City of Yakima that as of the effective date of this document, there are no liens of any kind, whether filed of record or, to the best of the Harman Foundation's knowledge, claimed but not filed of record, nor are there any security interests filed of record or, to the best of the Harman Foundation's knowledge, claimed but not filed of record, encumbering any of the fixtures, items of personal property, or the real property or appurtenances, associated in any way with the Project (as the term "Project" is defined in the above-described Agreement for Acceptance of Project, which definition is incorporated herein by this reference). The John and Wauna Harman Foundation, A Washington non-profit corporation By: Mr. Barry Harman Its: President CERTIFICATION OF PAYMENT Parties: The John and Wauna Harman Foundation, a Washington non-profit corporation. The City of Yakima, a Washington municipal corporation Effective Date: November , 2005 Pursuant to the requirements of the parties' Agreement for Acceptance of Project dated on or about April 20, 2004, and the parties' License Agreement dated on or about September 9, 2002, (the "Agreements" herein) the John and Wauna Harman Foundation, a Washington non- profit corporation, (the "Harman Foundation" herein) certifies and warrants to the City of Yakima that it has paid all sums due and owing to the architect, Traho Architects, to the general contractor, Tri -Ply Construction, and to any and all of the consultants, design professionals, contractors, subcontractors, materialmen, suppliers, and other persons associated in any way with the Project (as the term "Project" is defined in the above-described Agreement for Acceptance of Project, which definition is incorporated herein by this reference). The Hannan Foundation hereby discloses that a subcontractor of Tri -Ply Construction, Northern Hardwood, may make a claim for reimbursement for the costs and expenses of replacing the hardwood flooring during construction. Aside from that potential claim, the Harman Foundation has no knowledge of any other claim, whether actual or alleged, associated with the Project. Without limitation as to the obligations of the Harman Foundation contained elsewhere in the above-described Agreements, in the event of any claim by Northern Hardwood or by any other person arising out of the replacement of the hardwood flooring, the Harman Foundation agrees and affirms that it will indemnify and hold harmless the City of Yakima against the same. Other than as set forth in the immediately preceding paragraph, the Harman Foundation further certifies and warrants that all conditions pre -requisite to the final transfer of the Project to the City of Yakima as set forth in the above-described Agreements have been satisfied in full. The John and Wauna Harman Foundation, A Washington non-profit corporation By: Mr. Barry Harman Its: President ASSIGNMENT OF WARRANTIES Assignor: The John and Wauna Harman Foundation, a Washington non-profit corporation. Assignee: The City of Yakima, a Washington municipal corporation. Effective Date: November 1, 2005 Pursuant to the requirements of the parties' Agreement for Acceptance of Project dated on or about April 20, 2004, and the parties' License Agreement dated on or about September 9, 2002, (the "Agreements" herein) the John and Wauna Harman Foundation, a Washington non- profit corporation, (the "Harman Foundation" herein) assigns and transfers to the City of Yakima, a Washington municipal corporation, any and all of the rights of the Harman Foundation in and to any and all warranties express and implied associated in any way with the Project (as the term "Project" is defined in the above-described Agreement for Acceptance of Project, which definition is incorporated herein by this reference), including without limitation as provided by any vendors, manufacturers, suppliers, contractors, subcontractors, design professionals, and consultants. In the event that any warranty needs to be enforced by the City of Yakima, but the provider of the warranty wants a specific written assignment of the warranty in question, The Harman Foundation will use its best efforts to work with the City of Yakima in good faith in providing signatures on any and all documents that the City of Yakima may need to effectuate the transfer of the warranty to the satisfaction of the entity providing the warranty. Any such documentation shall be the sole responsibility of the City of Yakima, and at its expense. In the event that any warranty needs to be enforced by the City of Yakima, but was not assignable, The Harman Foundation will use its best efforts to work with the City of Yakima in good faith in attempting to derive the full benefit of the warranty for the City of Yakima; however, in such event , all costs and expenses of any such effort shall be born exclusively by the City of Yakima. The Harman Foundation hereby discloses that a subcontractor of Tri -Ply Construction, Northern Hardwood, may make a claim for reimbursement for the costs and expenses of replacing the hardwood flooring during construction. Without limitation as to the obligations of the Harman Foundation contained elsewhere in the above-described Agreements, in the event of any claim by Northern Hardwood or by any other person arising out of the replacement of the hardwood flooring, the Harman Foundation agrees and affirms that it will indemnify and hold harmless the City of Yakima against the same. To the extent that The Harman Foundation needs to enforce or rely in any way upon any warranties in order to defend, prosecute, or deal with any such claim(s), this assignment shall not be effective to divest The Harman Foundation of those rights. The John and Wauna Harman Foundation, A Washington non-profit corporation By: Mr. Barry Harman Its: President ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS Parties: The John and Wauna Harman Foundation, a Washington non-profit corporation. And: The City of Yakima, a Washington municipal corporation Effective Date: November , 2005 Pursuant to the terms and conditions of the April 29th, 2004 Agreement for Acceptance of Project and the September 9, 2002 License Agreement, The John and Wauna Harman Foundation (The Harman Foundation) hereby assigns all of its contract rights against the contractor (Tri -Ply Construction, L.L.C.), the architect (Traho Architects, PS), and any subcontractors, materialmen, suppliers and any other person associated in any way with the Project (as the term "Project" is defined in the above-described Agreement for Acceptance of Project) to the City of Yakima. The City of Yakima hereby accepts the assignment of those contract rights and assumes any and all contract obligations owed to Tri -Ply Construction, LLC and Traho Architects, PS, and any of the other above-mentioned parties. These assigned rights and assumed obligations shall specifically include The Harman Foundation's rights in the following contracts: (1) The Standard Form of Agreement between Owner and Architect with Standard Form of Architect's Services (AIA Document B141 — 1997) and Standard Form of Architect's Services: Design and Contract Administration (AIA Document B141 — 1997) dated July 1, 2002. (2) The Standard Form of Agreement Between Owner and Contractor (AIA Document A101) dated April 30, 2003, and incorporated terms and conditions of The General Conditions of the Contract for Construction (AIA A201 — 1987). Page 1 of 3 The parties acknowledge that the above-mentioned contracts contain clauses that may prohibit assignment without the written approval of the respective contracting parties. By their signatures below, Traho Architects, P.S. and Tri -Ply Construction, L.L.C. authorize the assignment of The Harman Foundation's rights and obligations in and under those contracts to the City of Yakima. The parties agree that, with the exception of the potential dispute over the replacement of the hardwood flooring, all contractual rights and obligations are assigned to and assumed by the City of Yakima. The parties acknowledge that a subcontractor of Tri -Ply Construction, Northern Hardwood Co., Inc. might pursue a claim for reimbursement of the costs and expenses of replacing certain hardwood floors during the construction of the Project. The parties further acknowledge that Northern Hardwood Co., Inc. might argue that the hardwood floor had to be replaced as the result of an improper design by Traho Architects and/or as the result of improper construction methods employed by Tri -Ply Construction. If such a claim is made, the parties agree that The Harman Foundation will indemnify and hold the City of Yakima harmless against such claim, and will be allowed to assert all of the contractual rights (subject to all of the contractual obligations) as between itself and Tri -Ply Construction and Traho Architects as set forth in the subject contracts, and that this assignment and assumption will not in any way adversely affect The Harman Foundation's rights and obligations under those contracts in the context of resolving any dispute over the replacement costs and expenses of the hardwood flooring. The parties agree that this agreement may be executed in identical counterparts. Agreed to by: The John and Wauna Harman Foundation The City of Yakima By: Mr. Barry Harman, President By: R.A. Zais, Jr., City Manager Page 2 of 3 Assignment Approved by: Tri -Ply Construction, L.L.C. Traho Architects, P.S. Tri -Ply, Inc., Member By: Mr. Ken Ormbrek, Principal By: (Print Name) Its: (Title) Page 3 of 3 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: November 15, 2005 ITEM TITLE: A Resolution authorizing and directing the City Manager to accept final transfer of the Harman Center at Gailleon Park to the City of Yakima SUBMITTED BY: Chris Waarvick, Director of Public Works Denise Nichols, Parks and Recreation Manager CONTACT PERSON/TELEPHONE: Denise Nichols, 575-6020 SUMMARY EXPLANATION: As a beneficent donation to the City of Yakima, The Harman Foundation constructed a community senior center at Gailleon Park at no cost to the City of Yakima. Pursuant to the requirements of the legal documentation for that project, the time has come to complete final transfer of the Harman Center facility to the City of Yakima. Staff respectfully requests Council consideration of the resolution authorizing the City Manager to accept the Harman Center at Gailleon Park. Resolution X Ordinances Other (Specify) Contractual Agreements Contract Mail to (name and address): Phone: Funding Source: APPROVED FOR SUBMITTAL�� ' 4 ���-_--_�� � ��, City Manager STAFF RECOMMENDATION: Staff respectfully requests the City Council adopt the Resolution authorizing and directing the City Manager to accept final transfer of the Harman Center at Gailleon Park to the City of Yakima and to execute such documents necessary to accomplish the acceptance as a "turn -key" completed project at no cost to the City of Yakima. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2005-179