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