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04/17/2012 08 Weisenburger Statue Removal and Preservation Agreement with Yakima Valley Museum & Historical Association ,ee.,„_\, ,,,,....„..„,„ if ( ....,,, BUSINESS O „ F .. THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. g. For Meeting of: April 17, 2012 ITEM TITLE: Resolution authorizing agreement with Yakima Valley Museum for removal, transport and preservation of statue (Colonel J.J. Weisenburger) SUBMITTED BY: Joan Davenport, Acting Director of Community & Economic Dev. CONTACT Joan Davenport, Acting Director of Community & Economic PERSON /TELEPHONE: Dev. (576 -6417) Mark Kunkler, Senior Assistant City Attorney SUMMARY EXPLANATION: The statue currently in place near the intersection of East Yakima Avenue and South Naches Avenue was originally erected in 1902. The statue was constructed of sandstone and has suffered deterioration through the years. The Yakima Valley Museum ( "Museum ") has agreed to remove, transport and display the statue inside their facility. The display of the statue will promote the history of the community and assist in fundraising activities to find a replacement statue. No city funds are requested for this project. The Yakima Arts Commission has reviewed this private request at two prior meetings. The "Project Planning Team" presented this project at the March 28, 2012 meeting of Arts Commission. The project was recommended for approval to the City Council. Resolution X Ordinance Other Agreement (specify) Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No Funding Source: Phone: APPROVED FOR C Manager ....",,*,". frz., SUBMITTAL: - STAFF RECOMMENDATION: Approve the resolution to authorize the agreement BOARD /COMMISSION RECOMMENDATION: Recommended for approval by the Yakima Arts Commission ATTACHMENTS: Click to download Resolution authorizing agreement with Yakima Valley Museum 0 Agreement with Yakima Valley Museum RESOLUTION NO. R -2012- A RESOLUTION authorizing the City manager to execute an agreement between Yakima Valley Museum and Historical Association and City of Yakima for removal, transportation and preservation of statue (Colonel J.J. Weisenburger). WHEREAS, on July 4, 1902, a statue of Colonel J.J. Weisenburger was erected to commemorate the commander of local soldiers in the Spanish- American War (1898), and the troops he commanded (hereafter called "Statue "). The Statue is currently located in the boulevard near the intersection of West Yakima Avenue and Fifth Street. The Statue was carved from sandstone and is deteriorating from exposure to weather and the elements over the 109 years since its installation. Unless removed and protected, the Statue is in immediate danger of disintegration and loss; and WHEREAS, the Yakima Valley Museum and Historical Association ( "Museum ") desires to remove and transport the Statue to its museum facilities where it can provide a protected climate so as to promote the preservation of the Statue and provide display of the Statue for the education and edification of the public, to promote awareness of the history of the community, and to support the efforts of the community to provide a replacement; and WHEREAS, the Yakima Arts Commission has previously recommended approval, and the City Council finds and determines that approval of an agreement with the Museum providing for the removal, transportation and preservation of the Statue is in the best interest of residents of the City of Yakima and will promote the preservation of the Statue, together with the general health, safety and welfare; therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute the "Agreement for Removal, Transportation and Preservation of Statue ('The Colonel')," by and between the City of Yakima and the Yakima Valley Museum and Historical Association, a copy of which Agreement is attached hereto and incorporated herein by this reference, and the City Manager is hereby authorized to perform and administer this Agreement for and on behalf of the City of Yakima. ADOPTED BY THE CITY COUNCIL this day of , 2012. ATTEST: Micah Cawley, Mayor City Clerk AGREEMENT FOR REMOVAL, TRANSPORTATION AND PRESERVATION OF STATUE ( "The Colonel ") By and Between CITY OF YAKIMA And YAKIMA VALLEY MUSEUM AND HISTORICAL ASSOCIATION THIS AGREEMENT is 'made and entered into by and between the City of Yakima and the ' Yakima Valley Museum and Historical Association for the uses and purposes set forth below. I. Recitals A. The City of Yakima (hereafter called "City ") is a municipal corporation of the State of Washington with City Hall located at 129 North 2 Street, Yakima, Washington 98901. B. Yakima Valley Museum and Historical Association (hereafter called "Museum ") is a nonprofit corporation duly formed and existing under the laws of the State of Washington, with offices and facilities located at 2105 Tieton Drive, Yakima, Washington 98902. C. On July 4, 1902, a statue of Colonel J.J. Weisenburger was erected to commemorate the commander of local soldiers in the Spanish - American War (1898), and the troops he commanded (hereafter called "Statue "). The Statue was placed on a pedestal in the boulevard near the intersection of West Yakima Avenue and Third Street in the City of Yakima. The Statue was carved from sandstone and is deteriorating from exposure to weather and the elements over the 109 years since its installation. Unless removed and protected, the Statue is in immediate danger of disintegration and loss. D. The Museum desires to remove and transport the Statue to its museum facilities where it - can provide a protected climate so as to promote the preservation of the Statue and provide display of the Statue for the education and edification of the public, to promote awareness of the history of the community, and to support the efforts of the community to provide a replacement statue. E. City and Museum desire to enter into an agreement providing for the removal, transportation and storage of the Statue for these purposes. IL Agreement WHEREFORE, in consideration of the promises, covenants and mutual benefits provided herein and below, the parties agree as follows: 1 1. Ownership of Statue — Transfer in Trust. The Statue is owned by the City, and the City will remain vested with ownership of the Statue throughout and following the removal, transportation and delivery to the Museum. Pursuant to the terms of this Agreement, City transfers possession of the Statue, in trust, to the Museum in accordance with the provisions herein and below. 2. Removal of Statue. City hereby authorizes the Museum to remove, or cause to be removed, the Statue from its current location at the intersection of West Yakima Avenue and Naches Avenue. 3. Transportation of Statue. After removal of the Statue, the Museum shall transport, or cause to be transported, the Statue to its facilities. Transport may include delivery to a facility where a casting of the Statue may occur prior to delivery to Museum facilities. Such transportation shall be done with reasonable care and precaution to avoid further damage to the Statue. 4. Display of Statue. City hereby grants Museum license and permission to erect such Statue in and upon Museum facilities, and to display such Statue in the manner and at times the Museum deems appropriate and proper, including but not limited to, display of such Statue to promote donation or grant of funds to construct and erect a statue to replace such Statue upon public property. 5. Reasonable Care of Statue. City and Museum agree and understand that the Statue is in fragile condition resulting from deterioration and weakness caused by more than one hundred years' exposure to weather. City understands that risk of damage is inherent in the removal, transportation and display of the Statue, and that further deterioration may occur despite the Museum's exercise of care for the safe removal, transportation and display of the Statue. Therefore, City and Museum agree and understand that Museum will use reasonable care in the removal, transportation and display of the Statue, and that any damage to the statue that occurs despite the exercise of such care shall not constitute a breach of this agreement or breach of duty of due care. 6. Approval by City of Plans for Removal, Transportation and Display of Statue. Museum shall prepare and deliver to City a written description of its plans and procedures for the removal and transportation of the Statue, which plans and procedures shall be subject to City approval. The written plans and procedures shall include the proposed date(s) of removal and transportation, the contractor and /or persons performing the removal and transportation, and the methods to be used to perform these functions. Museum will also provide a description of the methods and means of display of the Statue within and upon Museum facilities, and the means to be used by Museum to safeguard, in a reasonable manner, the condition and structural integrity of the Statue. 2 7. Permits. Museum shall obtain any and all necessary permits from the City to accomplish the removal and /or transportation of the Statue. 8. Term of License and Agreement. The License to remove, transport and display the Statue shall commence upon execution of this Agreement by both parties, and shall continue until terminated by either party as described in Section 9 below. 9. Termination of License and Agreement — Effect of Termination. Either party may terminate this Agreement, and the License herein, upon sixty (60) days (or such other time as the parties mutually agree) advance written notice delivered to the other party. Upon the effective date of termination, the parties shall cooperate to deliver the Statue to the City or to such charitable entity or organization mutually agreed by the parties to receive such Statue. If the parties are unable to agree, or if no successor charitable organization desires to receive the Statue, the City will take possession and may display, store or transfer such Statue in accordance with applicable law. The provisions of Section 11 below shall survive termination of this Agreement for any reason. 10. Notice. Any notice required to be given under this Agreement shall be provided to the parties named below, or to their successors in interest: CITY: MUSEUM: City Manager John Baule, Executive Director City of Yakima City Hall Yakima Valley Museum 129 North 2 Street 2501 Tieton Drive Yakima, Washington 98901 Yakima, Washington 98902 11. Indemnification. Museum shall protect, defend, indemnify and hold the City, and its elected and appointed officials, employees and agents, harmless from and against any and all claims, demands, losses, damages, liens, liabilities, penalties, fines, lawsuits, and other proceedings, and any costs and expenses associated with the same (including attorney's fees and disbursements, whether in litigation or not), which accrue to or are incurred by the City, or its elected or appointed officials, employees or agents, and which arise directly or indirectly from or out of, relate to, or in any way are connected with personal injuries, loss of life or property damage occurring because of the Museum's negligence in the removal, transportation, use, display, or maintenance of the property covered by this agreement and any litigation, legal challenge or determination pertaining to the validity of this agreement. The provisions of this paragraph shall survive the termination of this agreement for any reason. City shall protect, defend, indemnify and hold the Museum, and its elected and appointed officials, employees and agents, harmless from and against any and all claims, demands, losses, damages, liens, liabilities, penalties, fines, lawsuits, and other 3 proceedings, and any costs and expenses associated with the same (including attorney's fees and disbursements, whether in litigation or not), which accrue to or are incurred by the Museum, or its elected or appointed officials, employees or agents, and which arise directly or indirectly from or out of, relate to, or in any way are connected with personal injuries, loss of life or property damage occurring because of the City's sole negligence in removal, transportation, use, display, or maintenance of the property covered by this agreement and any litigation, legal challenge or determination pertaining to the validity of this agreement. The provisions of this paragraph shall survive the termination of this agreement for any reason. 12. Entire Agreement. This agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this agreement shall not be binding upon either party except to the extent incorporated in this agreement. Any modification of this agreement or additional obligation assumed by any party in connection with this agreement shall be binding only if evidenced in writing signed by each party or an authorized representative of each party. 13. Assignment or Sublicense: Museum shall not assign or transfer this license or Agreement, nor grant a sublicense for any purpose, without the express, prior and written consent of City. 14. Severability: If any portion of this agreement is changed per mutual agreement or any portion is held invalid, the remainder of the agreement shall remain in full force and effect. 15. Governing Law: This agreement shall be governed in all respects by the laws of the State of Washington. 16. Venue: In the event there should be any litigation arising out of this agreement, venue shall lie in Yakima County, Washington. WHEREFORE, this Agreement is executed and effective this day of April, 2012. CITY OF YAKIMA YAKIMA VALLEY MUSEUM AND HISTORICAL ASSOCIATION By: By: Michael A. Morales John Baule, Executive Director Interim City Manager By: 4 ATTEST: City Clerk 5