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HomeMy WebLinkAboutJerrad Flanary • A3I-7 LICENSE AGREEMENT This License Agreement ("Agreement"), dated November *9 , 2010, is by and between the City of Auburn, a Washington municipal corporation hereafter referred to as "Auburn", and Jerrad Flanary who currently resides at 29836 113th Way SE Auburn, WA 98092, hereafter referred to as "Licensee." RECITALS A. Auburn is the owner of certain real Space, located at 2401 Stuck River Drive Auburn, WA 98092, hereafter referred to as the "Space." B. Licensee wants to use the Space for the purpose of storing a manufactured home which is already located on the property. At no time will there be any occupancy of the home authorized. NOW, THEREFORE, in consideration of the promises, covenants and conditions contained herein, the parties hereto agree as follows: 1. Grant of License. Auburn hereby grants to Licensee the right to enter upon the Space for the purpose set forth in Recital B through midnight April 30, 2011. 2. Consideration. a. Licensee agrees to pay to Auburn the sum of $200.00 as a license fee for its use of the Space.PQ-,~ 3. Term and Purpose. The term of this Agrelent shall begin on December 1, 2010 (the "Commencement Date") through April 30, 2011 and may be terminated by either party with or without cause by giving the other party seven (7) days written notice requiring them to vacate the Space. In the event Licensee shall utilize the Space for any other purpose or perform any, other activity on the Space which is not authorized by this Agreement, or otherwise breach any covenant hereof, this Agreement and all Licensee's rights hereunder shall be terminated immediately. 4. Maintain and Restore. Licensee shall not allow any waste, damage, or destruction to occur on the Space and upon termination or expiration of this Agreement, Licensee at its sole cost and expense, shall restore the Space to its original condition. Without limiting the foregoing, Licensee specifically agrees not to allow any toxic, hazardous or petroleum products to be discharged or deposited onto the Space in connection with Licensee's activities hereunder. 5. Due Care and Diligence. Licensee will use due care and diligence in the exercise of its rights hereunder, and it will at all times exercise its rights hereunder at such times and in such manner as approved by Auburn and as will not occasion (a) any interference with the -1- business operations on the Space, (b) any interference with the customary access to or from the Space, or (c) any damage or injury to the Space, or to any sublessees, agents, servants or employees of Auburn. 6. Assumption of Risk. Licensee assumes all risks and liabilities arising out of Licensee's use of the Space or use of the Space by Licensee's employees, agents, representatives, guests or invitees. 7. Licensee's Covenants. Licensee covenants and agrees that Auburn shall not at any time or to any extent whatsoever be liable, responsible or held accountable for: (a) any personal injury (including death) to any person, including Licensee's employees, agents, representatives, guests or invitees which in any way arises out of Licensee's activities hereunder or activities of Licensee's employees, agents, representatives, guests or invitees hereunder or use or occupation of the Space by Licensee, or Licensee's employees, agents, representatives, guests or invitees; (b) Property damage including Property of Licensee or Licensee's employees, agents, representatives, guests or invitees which in any way arises out of Licensee's activities hereunder or activities of Licensee's employees, agents, representatives, guests or invitees hereunder or use or occupation of the Space by Licensee, or Licensee's employees, agents, representatives, guests or invitees; (c) any costs associated with Licensee's activities under this Agreement; and (d) the presence of or discharge or emission of toxic or hazardous materials or substances. 8. Indemnity. Licensee agrees to indemnify and hold harmless and, at Auburn's option, defend Auburn, its officers, agents, employees, successors and assigns from and against any and all suits, actions, legal proceedings, claims, demands, and expenses (including attorneys' fees and expenses) of whatever kind or character relating to Licensee's use of the Space, including, but not limited to: (a) personal injury (including death) to any person, including Licensee's employees, agents, representatives, guests or invitees; (b) Property damage, or activities of Licensee's employees, agents, representatives, guests or invitees or the use of the Space by Licensee or by Licensee's employees, agents, representatives, guests or invitees; (c) claims of lien from Licensee's employees, agents, representatives, or (sub)contractors; or (d) the presence of hazardous, toxic or petroleum products in the Space. It is further specifically and expressly understood that the indemnification provided herein constitutes the Licensee's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 9. Compliance with Laws. Licensee agrees to comply with all requirements of federal, state or local law, ordinances or regulations and shall defend and save harmless Auburn from and against any liabilities or claims arising out of or from any alleged breach of such laws or ordinances. 10. Costs. Licensee agrees to pay all costs, including attorney's fees, incurred by Auburn in enforcing this Agreement. 11. Insurance. Licensee shall procure and maintain in effect during the term hereof homeowner's insurance in the minimum amount of $500,000.00, which shall include liability -2- coverage for injury to any person or property arising from the Licensee's storage of the manufactured home on the premises. Auburn shall be named as additionally insured on this policy. The Licensee agrees to furnish a Certificate of Insurance to Auburn and Auburn shall be notified a minimum of twenty (20) days prior to any cancellation or modification of the policy. 12. Notices. All notices, demands, consents, approvals and other communications (each, a "Notice") which are required or desired to be given by either party to the other under this Agreement shall be in writing and shall be (a) hand delivered, (b) sent by U.S. registered or certified mail, postage prepaid, return receipt requested, (c) sent by reputable overnight courier service, or (d) transmitted by facsimile machine (with a copy, including the transmission sheet indicating successful transmission of the Notice by facsimile machine, to follow by regular mail), addressed to the appropriate party at its address set forth below, or at such other address as such party shall have last designated by Notice to the other. Notices shall be deemed given when delivered, if delivered by hand or by overnight courier; at the time and on the date of machine transmittal, if given by facsimile; or three days after mailing, if given by U.S. mail. Rejection or other refusal by the addressee to accept a Notice or the inability to deliver the Notice because of a changed address of which no Notice was given shall be deemed to be receipt of the Notice sent. Notice addresses for the parties are as follows: To Licensee: Jerrad Flanary 29836 113th Way SE Auburn, WA 98092 To Auburn: City of Auburn 25 West Main St Auburn, WA 98001 Attention: Facilities Facsimile: (253)804-3116 13. Miscellaneous. (a) Entire Agreement - No Oral Modifications. This Agreement and the exhibits hereto constitute the final and complete agreement, and supersede all prior correspondence, memoranda or agreements between the parties relating to the subject matter hereof. This Agreement cannot be changed or modified other than by a written agreement executed by all parties. (b) Successors Bound. Subject to the restrictions on assignment contained in Section 13(c), the provisions of this Agreement shall extend to, bind and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors, and assigns. -3- (c) Assignment. This Agreement is personal to Licensee and Licensee shall not have any right to assign its rights or obligations hereunder. Any attempt by Licensee to assign this license shall terminate this Agreement. Auburn shall have the right to assign any and all of its rights and obligations hereunder. (d) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Washington. (e) Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. (f) Attorneys' Fees. In the event that any party hereto brings an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, or for an alleged breach or default of this Agreement, or any other action arising out of this Agreement or the transactions contemplated hereby, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and any court costs incurred in such action or proceeding, in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment. (g) Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remaining terms and provisions of this Agreement shall not be affected thereby, but each remaining term and provision shall be valid and enforced to the fullest extent permitted by law. (h) Captions. The captions of this Agreement are inserted solely for convenience of reference only and do not define, describe or limit the scope or intent of this Agreement or any term hereof. (i) Exhibits. All exhibits attached hereto are hereby incorporated herein by reference and made a part hereof. 0) Construction. Licensee and Auburn acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement (including the exhibits) or any amendments thereto, and the same shall be construed neither for nor against Licensee or Auburn, but shall be given a reasonable interpretation in accordance with the plain meaning of its terms and the intent of the parties. (k) Survival of Terms. The covenants and indemnity of Licensee contained in this Agreement shall survive the termination of Licensee's rights to utilize the Space. -4- it (1) Authority. Each person executing this Agreement represents and warrants that he or she has the authority to so execute this Agreement and that no further approval of any kind is necessary to bind the parties hereto. (m) Time. Time is of the essence of every provision contained herein. DATED as of the day and year first set forth above. AUBURN: CIT OF A , :a W cipa ration By. Its: Y r 1ck r', LICENSEE: Jerrad Flanary _j By Its: f -5 'I;