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HomeMy WebLinkAboutR-1993-046 Greenway / License / PathwayBEFORE THE BOARD OF YAKIMA COUNTY COMMISSIONERS AND THE YAKIMA. CITY COUNCIL In the Matter of the Granting of a License from the City of Yakima to Yakima County for the purpose of extending the Yakima River Greenway Path along the Yakima River Dike over property belonging to the City CITY RESOLUTION NO R-93-46 247-1993 COUNTY RESOLUTION NO WHEREAS, the Yakima River Greenway Foundation has received funding to extend the Yakima River Greenway Recreational Pathway southerly along the Yakima River Dike, a portion of which extension necessarily crosses property owned by the City of Yakima, and, WHEREAS, the City Council of the City of Yakima and the Board of Yakima County Commissioners each deem it in the best interests of the citizens of the County and the City that said pathway be extended; and, WHEREAS, Yakima County accepts full responsibility for the construction and maintenance of the Pathway and agrees to defend and indemnify the City against any claims arising out of the use of said property for the Pathway and further agrees to make improvements intended to protect the city property from users of the Pathway NOW, THEREFORE, BE IT HEREBY RESOLVED that Dick Zais, City Manager, is hereby authorized to execute a license in the form attached hereto granting to the County a license to cross the property described in said license for the purposes and upon the conditions set forth in said license BE IT FURTHER RESOLVED that the Board of Yakima County Commissioners is hereby authorized to execute the attached license and thereby bind Yakima County to the conditions set forth therein ADOPTED by the Yakima City Council this 25th day of May 1993 Pat Berndt, Mayor City of Yakima Attest. Karen S. Roberts, City Clerk City of Yakima to Yakipa County\Greenway Path\license Page - 1 of 2 • AdopteeYakima County Commissioners Attes • Sylvi Clerk Hinoj osa he Board . • YCYCTGrn.Agr City of Yakima to Yakima County\Greenway Path\License Page - 2 of 2 GREENWAY LICENSE This license is granted by the City of Yakima, Washington, to Yakima County, Washington for the purposes and under the terms specified below. 1. DEFINITIONS. "City" shall mean the City of Yakima. "County" shall mean Yakima County, Washington. 2. TERM and TERMINATION. The term of this license shall commence immediately upon execution by both parties and shall terminate on December 23, 2017. For the initial term, the City may terminate this license only for a public purpose. 3. GRANT OF LICENSE/PREMISES. The City hereby grants to the County a license for the purposes stated herein upon a corridor 200 feet wide, being 100 feet on either side of the centerline of the Yakima River dike as it exists on the date of execution of this license, upon property described in Exhibit "A" attached hereto. Fee interest in the premises is owned by the City. 4. CONSIDERATION. The County's use of the property for recreational use is hereby deemed to be a public recreational use by the citizens of the City. 5. USE OF PREMISES. The County shall use the premises for a public recreational pathway no more than 14 feet in improved width. In using these premises, the County shall comply with all policies and regulations heretofore or hereafter promulgated by the City relative to the location, operation, and maintenance of improvements located on the License - City of Yakima to Yakima County Page - 1 premises. It is expressly agreed that the County shall comply with all applicable federal, state, and local laws, ordinances regulations, and environmental requirements. The County agrees to hold the City harmless from claims or suits resulting from County's failure to comply with such requirements. 6. IMPROVEMENTS. 6.1 The County shall make improvements to fences, construct fences and gates and plant trees as detailed in the Yakima River Greenway Pathway - South plan sheets pages 2 and 3 dated April 1993 as designed by CH2MHILL Consulting Engineers and Addendum No. 1 to the Contract Specification for the Construction of Yakima River Greenway Pathway - South, Yakima County Project No. R 2457, copies of which are attached hereto. Copies of which are in the City clerk's office and made a part hereof. Provided, however, the County at its expense shall construct reasonable additional fencing or improvements to existing fencing in the event the City determines that such addition or improvements are needed to keep persons or animals out of restricted city areas. 6.2 The County shall post "No Trespassing" signs at intervals to the City's Director of Engineering and Utilities on the fence line visible to users of the pathway, clearly instructing users of the pathway not to trespass onto City owned property which is not within the contemplated scope of this license. 6.3 Within one year from the date of execution of this license, the parties shall execute a tree -planting addendum to this license which shall become part of this license. The purpose of the License - City of Yakima to Yakima County Page - 2 • addendum shall be to provide a tree screen between this segment of the greenway path nd the City's adjacent activities. The County shall be responsible for the expense of planting said trees and their maintenance. 6.4 The County shall maintain and repair all of its improvements authorized by any license granted by the City and keep such areas free of debris and waste within a reasonable time and in a good and workmanlike manner. 7. JOINT USE. It is understood that the property is to be used jointly by the County of Yakima and the City of Yakima and that each party will conduct operations in a reasonable manner so as to not interfere with the operation of the other. 8. RESERVATION OF RIGHT TO MAINTAIN AND GRANT UTILITY FRANCHISES AND PERMITS. The City reserves the right for utility franchise and permit holders to enter upon the premises to maintain existing facilities and, for itself, to grant utility franchises and/or permits across the premises. Such installation will be accomplished in such a manner as to minimize any disruption to the County. The franchise/permit holder will be required to restore paving and grading damaged by the installation. The County will not disturb markers or stakes installed by the City of Yakima or franchise/permit holders and will contact the franchise/permit holder prior to any excavation in order that the franchise/permit holder may locate the utility. It is the County's responsibility to protect legally installed underground utilities. Prior to any tilling of the soil, or any other operation in which License - City of Yakima to Yakima County Page - 3 earth, rock, or other material on or below the ground is moved or otherwise displaced to a vertical depth of twelve (12) inches or greater, the County must call 1-800-553-4344 to ascertain the existence of underground utilities as well as to provide notice of County's operation to all owners of underground utilities. Furthermore, the County must comply with all provisions of RCW 19.122 relating to underground facilities. Violations of this statute are subject to possible civil penalty. 9. CITY'S RIGHT OF ENTRY AND INSPECTION. The City, reserves the right to enter upon the premises at any time without notice to the County for the purpose of conducting any activity associated with City operations. City shall in no way be responsible for any incidental or consequential damages due to such entry and inspection and any subsequent loss of use by County. City may from time to time go upon the premises for the purpose of inspecting any excavation, construction, or maintenance work being done by the County. 10. HOLD HARMLESS/INDEMNIFICATION CLAUSE. The County, its successors, or assigns, will protect, save, and hold harmless the City, its authorized agents, and employees, from all claims, actions, costs, damages, or expenses of any nature whatsoever by reason of the acts or omission of the County, its assigns, agents, contractors, licensees, invitees, employees, or any person whomsoever, arising out of or in connection with any acts or activities authorized by the County, whether those claims, actions, costs, damages, or expenses result from acts or activities occurring on or off the licensed premises. The County further agrees to defend the City, its agents, or employees in any License - City of Yakima to Yakima County Page - 4 litigation, including payment of any costs or attorney's fees, for any claims or action commenced, thereof arising out of or in connection with acts or activities authorized by this license. This obligation shall not include such claims, costs, damages, or expenses which may be caused by the sole negligence of the City of Yakima or its authorized agents or employees; Provided that if the claims or damages are caused by or result from the concurrent negligence of (a) the City, its agents, or employees and (b) the County, its agents, or employees, and involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the County or its agents or employees. 11. NONDISCRIMINATION. The County, for itself, its successors, and assigns as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that no person, on the grounds of race, color, creed, national origin, marital status, age, sex, or the presence of any sensory, mental, or physical handicap shall be excluded from participation in, be denied the benefits of, or be otherwise unlawfully subjected to discrimination in the use of the facility now or hereafter on the premises, that in connection with the construction of any improvements on said lands and the furnishing of services thereon, no such discrimination shall be practiced in the selection of employees or contractors, or by contractors in the selection and retention of their subcontractors, that such discrimination shall not be practiced against the public in their access to and use of the facility and services provided for public accommodation constructed or operated on, over, or under the space of License - City of Yakima to Yakima County Page - 5 the right of way, and that the County shall use the premises in compliance with all other requirements imposed pursuant to the Revised Code of Washington Chapter 49.60 and Title 49, Code of Federal Regulations, Subtitle A, Office of the Secretary of Transportation, Part 21 (49 C.F.R. Part 21), and as said Regulations may be amended. The breach of any of the above nondiscrimination covenants shall be a material act of default entitling the City to terminate this license in accordance with the procedures set forth herein. 12. ATTORNEY FEES. In the event of any controversy, claim, or dispute arising out of this license, the substantially prevailing party shall, in addition to any other remedy, be entitled to recover any reasonable costs or attorney's fees which it incurs. 13. MODIFICATION. This instrument contains all the agreements and conditions made between the parties hereto and may not be modified orally or in any manner other than by an agreement in writing signed by all parties thereto. No failure on the part of any party to enforce any covenant or provision herein contained, nor any waiver of any right thereunder by any party, unless in writing, shall discharge or invalidate such covenant or provision or affect the right of said party to enforce the same in the event of any subsequent breach or default. 14. ASSIGNABILITY: The County's obligations under this license cannot be assigned without the prior written consent of the City. The City acknowledges that the Yakima River Greenway Foundation will assume responsibility for the County's obligations hereunder and hereby consents to such but does not release the County from any performance obligations. License - City of Yakima to Yakima County Page - 6 IN WITNESS WHEREOF, the parties have caused this License to be • executed by their duly authorized officers on the dates set forth below. YAKIMACOUNTY SSIONERS CITY OF YAKIMA Attest this May, 1993. day of 10---6-2_ Attest th1s3 day of May, 1993: Sylvia E. Hinojo a Cler e B akima County Commissioners By• Approved as to form: 41, Deputy P uting Attorney STATE OF WASHINGTON ) County of Yakima On this day of May, 1993, before me personally appeared RICHARD ZAIS known to be the City Manager of the City of Yakima, Washington, that executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of said City, for the uses and purposes therein mentioned, and on oath d that he is authorized to execute said instrument by resolution of the City Council of said City, and that the seal affixed is the official seal of said City. ACKNOWLEDGEMENT GIVEN under my hand and official seal the day and year last above written 3vt.t ? 77g4c Notary Publicd for th of Washington res ding at: Commission expires: 02., License - City of Yakima to Yakima County Page - 7