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HomeMy WebLinkAboutR-2011-034 23rd Avenue & Lincoln Avenue Pathway Fence Agreement RESOLUTION NO. R- 2011 -34 A RESOLUTION ratifying the Acting City Manager's execution of a Revocable License Agreement with Kerry and Gayle Harthcock and Connie Cross to allow for the construction of a fence on City property to be erected to restrict public access on and along a walking path extending beyond the termination of 23 Avenue and Lincoln Avenue and which has historically permitted unwanted public access to the private property of the Harthcock's and Cross's properties. WHEREAS, the City Council was petitioned by property owners living on the north end of 23 Avenue just south of Lincoln Avenue to close the public stairs and path extending from the end of 23 Ave. to Lincoln Ave; and WHEREAS, the petitioning property owners complained of unwanted public access by way of the pathway extending north from the end of 23 Ave. to Lincoln Ave. by individuals that were vandalizing and damaging the properties of the petitioners and their neighbors; and WHEREAS, the City Council considered the request of the petitioners and conducted research regarding the criminal history in the area, the public use of the access for public access purposes and the possibility to restrict public access across the access point by means of a barrier; and WHEREAS, The City Council held a public hearing on the proposed closure of the public access from 23 Ave. to Lincoln Ave. and following the hearing determined that so long as the barrier was paid for by the petitioners the City would allow the closure of the access under the terms of a Revocable License Agreement to be arranged between petitioners and the City; and WHEREAS, the proposed Revocable License Agreement attached hereto and incorporated herein by this reference has been negotiated by the City legal department, the Yakima Streets Division and the petitioners to establish the terms and conditions and responsibilities of the parties as determined necessary to effect the desired access closure; and WHEREAS, the City Council finds the terms and conditions of the attached and incorporated Revocable License Agreement to satisfy the City's requirements and establish appropriate responsibilities of the parties to said agreement; Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The Acting City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated Revocable License Agreement. ADOPTED BY THE CITY COUNCIL this 15 day of February, 2011. ATTEST: Micah awle a Y, or u ay or Clerk 1 CITY OF YAKIMA REVOCABLE LICENSE AGREEMENT THIS REVOCABLE .LICENSE AGREEMENT is made by and between the CITY OF YAKIMA, a Washington municipal corporation (hereinafter "City "), and Kerry 'and Gayle Harthcock, and Connie Cross (hereinafter "Licensees "). In consideration of the mutual promises and covenants contained in this License, the parties hereto agree as follows: 1. Grant of License. The City hereby grants to Licensees a Revocable License to use, subject to all of the terms and conditions of this License, the following- described real property: That portion of the following described property Tying easterly of Lot 20 of Chareve Park as recorded in Volume F of Plats, Page 38 AND westerly of Lot 23 of Cherry Orchard Addition as recorded in Volume G of Plats, Page 3 to wit: In the West half of the Northeast quarter and the North half of the Northwest quarter of Section 23, Township 13 North, Range 18 East W.M.: A strip of land 60 feet wide being 30 feet on each side of the following described line; all on magnetic bearings: Commencing at a point on the North line of said Section 540 feet East of the Northwest corner thereof; thence South 75° 30' East 100 feet; thence South 65° 32' East 200 feet; thence South 59° East 100 feet; thence South 46° 25' East 100 feet; thence South 37° East 100 feet; thence South 26° 30'East 100 feet; thence South 11° 40'East 100 feet; thence South 19 °10' East 100 feet; thence South 28° 25' East 100 feet; thence South 37° 55" East 199 feet; thence South 71° 30" East 96 feet; thence North 86° 20' East 75 feet; thence North 32° 25' East 100 feet; thence North 7° 45' East 199 feet; thence North 22° 10' East 199 feet; thence North 58° East 100 feet; thence North 74° 30' East 100 feet; thence South 89° 30' East 100 feet; thence South 80° 20' East 296 feet; thence North 82° 30' East 100 feet; thence North 64° East 100 feet; thence North 67° 5' East 100 feet; thence South 86° 25' East 199 feet; thence South 53° 25 East 88 feet; thence South 44° 50' East 100 feet; thence South 77° East 200 feet; thence South 88° 40' East 100 feet; thence North 68° East 200 feet; thence North 81° 45' East 300 feet; thence North 82° 15' East 300 feet; thence South 89° 10' East100 feet; thence South 81° East 250 feet to the west line of the Southeast quarter of the Northeast quarter of said Section at a point 386 feet South of the northwest corner of said subdivision. The above - described real property will be used by Licensees solely for road right -of -way crossing purposes (ingress and egress) to access Licensees adjacent parcels of land. 2. Rights of Licensees. For the duration of this License, Licensees shall: a. By possession of a key, combination or other security device, control access to and through a fence and gates that shall be located as mutually agreed upon by the City and Licensees prior to construction. The City of Yakima shall retain the ability to access the property for street personnel and emergency entry requirements. City of Yakima Page 1 of 4 Revocable License Agreement 3. Obligations of Licensees. a. Licensees shall not construct or maintain any other improvements. on the above described real property; b. Licensees understand and agree that the City shall retain all rights and authority to use the real property now and in the future for underground utilities, recreational pathways, surface transportation and other purposes as deemed necessary in the discretion of the City. c. Access is granted to all parties to this agreement. Harthcock and Cross, as participating parties, shall equally share the cost of a fence to run from east to west across the subject property blocking it from north and south access by the public. Said total cost shall not exceed $5,000. d. Licensees shall leave the subject property in the same condition it was in at the initiation of this License at such time as the License is revoked or terminated. 4. Obligations of City. a. The City shall construct a fence and gates on the identified real property in locations that shall be mutually agreed upon by the City and Licensees prior to beginning construction. b. The City shall maintain the fence, the gates, the Knox Box and the property. c. The City shall retain responsibility for any damage to the fence, the Knox Box and the gates. d. The City shall compensate Licensees for the cost of the fence and gates in the event they are removed at a future date. The City shall reimburse Licensees the full amount paid by Licensees within thirty (30) days of removal. e. The City shall have responsibility for the cost of removal of fence upon termination of License. • 5. No Payment Required. This License is granted to Licensees as an accommodation with no monetary consideration outside the cost of initial construction of the fence. 6. City's Title. Licensees acknowledge the legal fee simple title in the City to the above - described vacant strip of land, referred to as the real property, and agree never to deny such title or to claim title in this strip of land in Licensees name. Licensees expressly agree that they do not and shall not claim at any time any interest of any kind or extent whatsoever in the above described real property of the City, whether by virtue of the rights granted under this License agreement, Licensees payment for construction of the fence, use under this License, or upon any other basis. The City shall remain liable for any and all activities occurring on this real property, other than Licensees activities. 7. Assignment. This License, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by Licensees to any other person or entity without the prior written consent of the City, which consent shall not be unreasonably withheld. 8. No Insurance from City. It is understood the City does not maintain liability insurance for Licensees. City of Yakima Page 2 of 4 Revocable License Agreement 9. Non - Waiver. The waiver by Licensees or the City of the breach of any provision of this License shall not operate or be construed as a waiver of any subsequent breach by any party or prevent any party thereafter from enforcing any such provision. 10. Severability. a. If a court of competent jurisdiction holds any part, term or provision of this License to be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the third parties' rights and obligation shall be construed and enforced as if the License did not contain the particular provision held to be invalid. b. If any provision of this License is in direct conflict with any statutory provision of the State of Washington, that provision which conflicts shall be deemed inoperative and null and void insofar as it conflicts, and shall be deemed modified to conform to such statutory provision. 11. Survival. Any provision of this License which imposes an obligation after termination or expiration of this License shall survive the term or expiration of this License and shall be binding on the parties to this License. 12. Notices. Any notice provided for or concerning this License 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 address: TO CITY: R. A. Zais, Jr. City Manager 129 North 2nd Street Yakima, WA 98901 TO LICENSEES: Kerry and Gayle Harthcock 348 North 23 Avenue Yakima, WA 98902 AND Connie Cross 347 North 23 Avenue Yakima, Washington 98902 13. Integration and Supersession. This License sets forth all of the terms, conditions, and agreements of the parties relative to the subject matter hereof and supersedes any and all prior negotiations, discussions, understandings and agreements between the parties as to the subject matter hereof, which are hereby declared terminated and of no further force and effect. There are no terms, conditions, or agreements with respect thereto, except as herein provided and no amendment of modification of this License shall be effective unless reduced to writing. and executed by the parties. 14. No Third Party Rights Except as Set Forth Above. This License is entered into for the sole benefit of the City and Licensees. It shall confer no benefits or rights, direct or indirect, on any third persons, including employees of the parties. No person or entity other than the parties themselves may rely upon or enforce any provision of this License. The decision to assert or waive any provision of this License is solely that of each party. 15. Termination. Any party may terminate this License, with or without cause, by giving the other parties thirty (30) days written notice of termination. City of Yakima Page 3 of 4 Revocable License Agreement • 16. Condition Precedent. This License is granted subject to the condition precedent that Licensees shall arrange with the Director of Public Works an agreed plan solely for construction of the fence, all in accordance with written plans approved by the Director of Public Works and by Licensees. 17. Governing Law. This License shall be governed by and construed in accordance with the laws of the State of Washington. 18. Venue. The venue for any action to enforce or interpret this License shall lie in the • Superior Court of Yakima County, Washington. IN WITNESS WHEREOF, each party to this License has caused it to be executed at Yakima, Washington on the date first set forth here. THE CITY OF YAKIMA LICENS S 1 2 By v. . B �/ Y s, R. . Jr., City Manage( Kerry Harthc ck Date Z- ?-/ I By a • �.a.�. a le 'arthcock Date 4/'//( By Connie Cross Date • City Contract No. 020//_ a( City Resolution No. /Q d'i/ • • • City of Yakima Page 4 of 4 Revocable License Agreement BUSINESS OF THE CITYCOUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: February 15, 2011 ITEM TITLE: Consideration of a resolution authorizing a Revocable License Agreement to allow for the construction of a fence to restrict public access to the 23r Avenue & Lincoln Avenue Pathway SUBMITTED BY: Chris Waarvick, Public Works Director CONTACT PERSON/TELEPHONE: Chris Waarvick, Public Works Director (575-6005) SUMMARY EXPLANATION: Staff respectfully requests the approval of the attached resolution ratifying the Acting City Manager's signature on a Revocable License Agreement with the Harthcocks and Cross for a fence to limit pedestrian traffic at the north end of 23 Avenue adjacent to Lincoln Avenue, The Harthcocks and other neighbors have requested in the past restriction of the pathway to prevent re-occurring vandalism, graffiti and theft. • The City Council approved the closing of the pathway with the condition that city funds not be used. The signators will build the fence to city specifications at their cost; estimated at no more than $5,000. Resolution X Ordinance _Other (Specify) Resolution, Map, past Council documents Funding Source Adjacent Property Owners APPROVED FOR SUBMITTAL: J / :T.:, — City anager STAFF RECOMMENDATION: Staff recommends approval of resolution implementing the City Council's decision on May 18, 2010. BOARD/COMMISSION/COMMITTEE RECOMMENDATION: City Council approved the basic outline of the action identified in the attached License Agreement on May 18, 2010. COUNCIL ACTION: ros12011 Agend Snot Rmocablc License Agmn for 23rd Ave Path rrf ASSIGNMENT OF REVOCABLE LICENSE AGREEMENT THIS ASSIGNMENT of the Revocable License Agreement, City Contract Number 2011- 26, (hereinafter referred to as "Assignment") is entered into by and between Kerry and Gayle Harthcock (hereinafter referred to as "Assignor") and Patricia Nichols and Clifford Nichols (hereafter collectively referred to as the "Assignee"), both of whom agree to be bound by this Assignment, in consideration of the mutual covenants herein contained WHEREAS, Assignor entered into a Revocable License Agreement with the City of Yakima on or about February 9, 2011, regarding construction and maintenance of a fence, and City property; and WHEREAS, Assignor now seeks to assign the rights associated with the Revocable License Agreement to Assignee, due to the fact that Assignor is selling their property to Assignee, and WHEREAS, the City finds the assignments of the rights, interests and obligations of the Revocable License Agreement acceptable, now, therefore, Assignor and Assignee agree as follows 1. Assignor and Assignee agree that the Assignor does hereby assign all of their rights and interest, and delegate all of their obligations, responsibilities and duties found in the Revocable License Agreement to Assignee. 2. Assignee does hereby accept all of the rights and interest, obligations, responsibilities and duties of Assignor found in the Revocable License Agreement. 3.Assignee will receive notices pursuant to Section 12 of the Revocable License Agreement as follows. Patricia Nichols and Clifford Nichols 348 North 23rd Avenue Yakima, WA 98902 4. Pursuant to Section 7 of the Revocable License Agreement, the City consents to the assignment of the Revocable License Agreement 5.A copy of the Revocable License Agreement is attached hereto and fully incorporated herein IN WITNESS WHEREOF, each party to this License has caused it to be executed at Yakima, Washington on the date first set forth here ASSIGNORS ASSIGNEES � r � By Y rry Harthcock Patricia Nichols cf/o 12 3 Ga a o Clifford Nichols q/5%3 9/ .!/ Date Date CONSENT TO ASSIGNMENT CITY OF YAKIMA Lelk- -' il-r---j- By Robert Harrison, City Manager Date 1otc91a .4, p,Klnr, ? s ��1 i +* . 11 ATTEST i* *� SEAL rs odutieztOYOLV Ili "P`boo, . 0\ .., -2 h -ZSHINC.; --'4- Rosalinda Ibarra, City Clerk City Contract No.ato)3_ ril City Resolution No. R,v"-h 3q City of Yakima Page 4 of 4 Assignment of Revocable License Agreement