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HomeMy WebLinkAbout20100908001092 CONSERVATION EASEMENT AGREEMENT 090810 Return Address: City of Auburn City Clerk 25 West Main Auburn,WA 98001 1111 101111111111111 1 EXCISE TAX NOT REQUIRED 20100908001092 CASH CUSTOMER EAS 69.00 Kin o Records PAGE-001 OF 008 09/08/2010 12:09 By Deputy KING COUNTY, WA Above this line reserved for recording information. CONSERVATION EASEMENT AGREEMENT (for stream and stream buffer areas) Reference#(if applicable): N/A Additional on page: Grantor/Borrower: 1)Colby R E,LLC Additional on page: Grantee/Assignee/Beneficiary: City of Auburn Legal Description/STR: SEC 23,T21N,R4E,WN q " Additional on page: Assessor's Tax Parcel ID#: 3751600752 THIS CONSERVATION EASEMENT AGREEMENT (the "Agreement") is made and entered into this 6th day of August, 2010, by and between Colby R E, LLC, hereinafter referred to as "GRANTOR", and the CITY OF AUBURN, a municipal corporation organized under Title 35A RCW,hereinafter referred to as the"CITY"and/or"GRANTEE". WHEREAS,the GRANTOR is owner in fee simple of certain real property located in the City of Auburn, King County, Washington, legally described on Exhibit `A' attached hereto and incorporated herein by reference, which property is intended to be subject to this Agreement and burdened in perpetuity by this Agreement(the"Subject Property"); WHEREAS, the GRANTOR or the representative of GRANTOR executing this Agreement has the authority to burden a portion of the Subject Property for the purpose of granting the CITY a perpetual non-exclusive stream conservation easement (the "Conservation Easement") with respect to certain stream and stream buffer areas legally described on Exhibit `B' and shown on Exhibit `C' attached hereto and incorporated herein by reference; WHEREAS, the Parties mutually agree that this Agreement will preserve the quality of the stream for the benefit of public health, safety, and welfare; WHEREAS, the Parties mutually agree that preservation of the quality of stream areas are essential to maintaining a quality environment, maintaining quality water resources, and the preservation of wildlife, and that preservation of the quality of streams are in conformity with the CITY's Comprehensive Plan; NOW, THEREFORE, in consideration of the mutual benefits to be derived, the parties hereby agree as follows: 1. AUTHORITY TO BURDEN SUBJECT PROPERTY. GRANTOR is the owner in fee simple of the Subject Property referred to above and has full power and authority to burden the Subject Property in perpetuity with this Conservation Easement. Page 2 2. GRANT OF EASEMENT IN PERPETUITY. GRANTOR hereby grants the non-exclusive Conservation Easement set forth herein to the CITY in perpetuity and covenants that the Conservation Easement shall run with the land included in the Subject Property legally described in Exhibit `A' attached hereto. The Conservation Easement shall burden a portion of the Subject Property and benefit the CITY and public. 3. HEIRS, SUCCESSORS, AND ASSIGNS. The Conservation Easement shall be binding on the officers, directors, shareholders, members, partners, employees, agents, personal representatives, heirs, successors, and assigns of the parties. 4. SCOPE OF EASEMENT. GRANTOR covenants not to in any way impair or interfere with the function and use of the Conservation Easement nor undertake any activity which is inconsistent with the preservation of the stream, or stream buffer areas or the quality of the streams on the Subject Property. GRANTOR further covenants to take reasonable and necessary steps to restrict access to the Conservation Easement and covenants to prohibit construction of any structures or artificial surfaces or alteration of any vegetation within the Conservation Easement. No activity of any kind may take place within the Conservation Easement without the prior approval by the City of Auburn Director of Planning and Community Development. The GRANTOR is responsible for posting the property and for curing the acts of third parties, whether authorized or unauthorized, which impair or damage the property inconsistent with this agreement. The CITY shall be permitted to enter onto the Subject Property, at all reasonable times to monitor, preserve, enhance, and maintain the Conservation Easement or the stream functions such as habitat and conveyance, or storage of stormwater. The CITY shall not unreasonably interfere with the ownership, possession, use, or enjoyment by GRANTOR or GRANTOR'S tenants of the Subject Property when entering the Subject Property to perform the permitted functions described herein. 5. PROHIBITED USES OF CONSERVATION EASEMENT. GRANTOR shall not undertake, nor cause to be undertaken any activity or use of the Conservation Easement which is inconsistent with the purpose, scope, or intent of this Agreement, nor inconsistent with any required mitigation measures, vegetative enhancement, or protection undertaken by the CITY; or stream functions such as: habitat and conveyance, or storage of stormwater. • Page 3 6. RESERVED RIGHTS. The GRANTOR reserves to itself all rights, title, interest, and obligations incident to ownership of the Subject Property and Conservation Easement except those rights and interests expressly conveyed to the CITY hereunder and those obligations expressly undertaken by the CITY hereunder. 7. ENFORCEMENT. In the event the CITY determines that GRANTOR is in violation of the terms of this AGREEMENT, and an enforcement action is initiated, the prevailing party in such action shall be entitled to recover reasonable attorney's fees and costs incurred in prosecuting or defending against such enforcement action, in addition to any other remedy or relief obtained. Before taking any action to enforce this Agreement, the CITY shall give the GRANTOR written notice and give the GRANTOR a reasonable time to cure the violation and restore any portion of the Conservation Easement damaged by the GRANTOR's actions. The time to cure shall not exceed 30 calendar days from the date of mailing, unless the parties agree otherwise. After expiration of the time to cure, the CITY, at its option, may take action to preserve, protect, or restore any portion of the Conservation Easement or its stream functions. In, such case, the reasonable expenses incurred by the CITY shall be recoverable from GRANTOR if GRANTOR is found to be in violation of this Agreement. The GRANTOR agrees that any claim for injunctive relief or specific performance for a violation of this Agreement shall not require proof of actual damages. 8. NON-WAIVER OF BREACH. No omission or failure by the CITY to exercise or enforce any of its rights under this Agreement or to enforce any breach hereof, nor any forbearance granted by the CITY, shall be deemed or construed as a waiver by the CITY of such rights or a discharge of liability for any breach by GRANTOR of the terms hereof. Nor shall any delay by the CITY in the exercise or enforcement of its rights and remedies limit or impair such right or remedy, or be construed as a waiver of the CITY'S right to pursue its remedies. 9. COSTS AND LIABILITIES. Except as provided in Paragraph 4 of this Agreement above, GRANTOR retains all responsibilities and will bear all costs and liabilities of any kind related to or incidental to the ownership of the portion of the Subject Property described in Exhibit "B" and agrees to pay all assessments and taxation (if any) against said property assessed by any governmental authority as they become due. 10. HOLD HARMLESS AND INDEMNIFICATION. GRANTOR agrees to hold harmless, indemnify and defend the CITY, its officials, members, employees, and agents from all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, reasonable attorney's fees, arising from or in any way relating to the Conservation Easement to the fullest extent permitted by law. Furthermore, GRANTOR agrees to indemnify, hold harmless and defend the CITY from and against any liabilities, penalties, costs, losses, damages, expenses, causes of action, claims demands or judgments, including, reasonable attorney's fees, arising from or relating to any third party claim which challenges GRANTOR'S right to execute and deliver this Agreement. Page 4 11. RECORDATION. GRANTOR agrees to incorporate the terms of this Agreement in any deed, lease (other than residential apartment leases entered into in the ordinary course of GRANTOR'S business) or other agreement which divests GRANTOR of any interest in any portion of the Subject Property. GRANTOR shall record this Agreement immediately in the Office of the King County Department of Records and Elections. 12. CONSTRUCTION. This Agreement shall be liberally construed to effect the purpose and intent hereof. 13. SEVERABILITY. If any provision of this Agreement is ruled invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions hereof shall remain in force and effect. 14. The GRANTOR warrants that the terms of this Agreement, including, without limitation, the restrictions on the GRANTOR's use of the portion of the Subject Property, does not violate nor will violate any contract, agreement or instrument to which the GRANTOR is a party or which materially and adversely affects the Conservation Easement. Page 5 IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the date first written above. GRANTOR: GRANTEE: Colby R E, LLC a Limited Liability Company CITY OF AUBURN, a municipal corporation } s IOW By: - By: Name: o.cirv,e u o, h i •to 4-6 Name: Pe - { i,-.. Title: 5 VI' Title: Maya/ STATE OF WASHINGTON ) )ss. COUNTY OF KING ) ft THIS IS TO CERTIFY that on this 26 r day of A v.ciw.sT , 20(0, before me, the undersigned, a notary public in and for the State of Washington, duly commissioned and sworn, personally appeared Cou.r-Z►JsY [Asti u' oro ,to me known to be the A .rnowz.ea Ac NT that executed the foregoing instrument and acknowledged the said instrument to be their free and voluntary act and deed for the uses and purposes therein mentioned. WITNESS my hand and official seal the day and year of the certificate first above written. f4J %��1' J. C �'4, Q,, e.�I J.(Print Name) C6dt CA/ccA t( ;Notary Public in and for the State of Washington S s, °' %residing at bo-rteU-., 1ntA S 09. 40900 =My appointment expires: o'I-09- I'{ STATE OF WASHINGT65," 1 4-09_1�'s��� County of King ) ,,I'OP 44"AOH• f I certify that I know or have satisfactory evidence that Pe-1-2{ 2- S is the person who appeared before me,and said person acknowledged that he signed this instrument,on oath stated that he was authorized to execute the instrument and acknowledged it as the Mayor of THE CITY OF AUBURN to be the free and voluntary ct of uch party for the uses and purposes mentioned in this instrument. Dated ©90 3 �/a ,,x "rRjtl li'''''nt' ",, - ain-re 7/e 6- -(1'f'/` K Notary Public in and for the State of Washington _. . - cn residing at & k- -( -✓ '''', "if�t\o __ My appointment expires /'d-LS=�✓/ /bd %,9 ,,,,'0.25-''`,.�-0 File: 2.1 ''lss�Opl`tZ,r� v��-,: REF. H:\FOR'� '�Ll '05'��(5/03) EXHIBIT"A" SUBJECT PROPERTY LOT 9, BLOCK 25,JOVITA HEIGHTS,ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 20 OF PLATS AT PAGE 12, RECORDS OF KING COUNTY,WASHINGTON,TOGETHER WITH THAT PORTION OF IOWA DRIVE AS VACATED UNDER CITY OF AUBURN ORDINANCE NO.6008 AND RECORDED UNDER RECORDING NO. 20060406000310,WHICH ATTACHED THERETO BY OPERATION OF LAW. EXHIBIT"B" CONSERVATION EASEMENT THAT PORTION OF LOT 9, BLOCK 25,JOVITA HEIGHTS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 20 OF PLATS AT PAGE 12, RECORDS OF KING COUNTY,WASHINGTON,TOGETHER WITH THAT PORTION OF IOWA DRIVE AS VACATED UNDER CITY OF AUBURN ORDINANCE NO. 6008 AND RECORDED UNDER RECORDING NO. 20060406000310,WHICH ATTACHED THERETO BY OPERATION OF LAW, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF SOUTH 348TH STREET(20TH ST.)AND 56TH AVENUE SOUTH (GRAND VIEW BLVD.)AS SHOWN ON SAID PLAT;THENCE NORTH 01°15'35" EAST ALONG THE CENTERLINE OF 56TH AVENUE SOUTH A DISTANCE OF 407.59 FEET;THENCE LEAVING SAID CENTERLINE, SOUTH 88°44'25" EAST A DISTANCE OF 30.00 FEET TO THE POINT OF INTERSECTION OF THE EASTERLY MARGIN OF 56TH AVENUE SOUTH WITH THE CENTERLINE OF IOWA DRIVE(NOW VACATED)AS SHOWN ON SAID PLAT;THENCE SOUTH 28°26'50" EAST ALONG THE CENTERLINE OF IOWA DRIVE A DISTANCE OF 46.12 FEET TO THE TRUE POINT OF BEGINNING;THENCE NORTH 61°33'10" EAST A DISTANCE OF 13.06 FEET;THENCE SOUTH 33°02'17" EAST A DISTANCE OF 2.29 FEET;THENCE SOUTH 79°07'25" EAST A DISTANCE OF 5.31 FEET; THENCE SOUTH 65°47'40" EAST A DISTANCE OF 23.52 FEET; THENCE SOUTH 29°59'20" EAST A DISTANCE OF 33.63 FEET;THENCE SOUTH 45°43'58" EAST A DISTANCE OF 7.05 FEET;THENCE SOUTH 67°27'11" EAST A DISTANCE OF 8.29 FEET;THENCE SOUTH 23°46'30" EAST A DISTANCE OF 37.73 FEET;THENCE SOUTH 16°22'13" EAST A DISTANCE OF 16.90 FEET;THENCE SOUTH 01°30'27" EAST A DISTANCE OF 34.30 FEET;THENCE SOUTH 21°42'41"WEST A DISTANCE OF 10.27 FEET;THENCE SOUTH 35°13'47" EAST A DISTANCE OF 2.63 FEET;THENCE SOUTH 46°00'18" EAST A DISTANCE OF 11.37 FEET;THENCE SOUTH 25°36'07" EAST A DISTANCE OF 5.76 FEET TO THE CENTERLINE OF VACATED IOWA DRIVE;THENCE NORTH 58°19'25" WEST ALONG SAID CENTERLINE A DISTANCE OF 26.63 FEET TO AN ANGLE POINT IN SAID CENTERLINE;THENCE CONTINUING ALONG SAID CENTERLINE NORTH 28°26'50" WEST A DISTANCE OF 158.54 FEET TO THE POINT OF BEGINNING. EXHIBIT "C" S 88'44'25" E 30.00' 94 // mss.�0s L\ . T a : (\I,";<' -' G; F 1 CO w W TPOB % 95 -5 3 rns to rn W Z I O \l s o 2 ^ Q \ �o�bo L6 o_ ova \ C� L7 :11.1 V) O ti� \ PROPOSED PLAT OF \13 2 y "VISTA POINTE" FN� n \ \ \ 'L OAxa0,- F` � \ cv 17 c(` 1-°,, -7� F� \ 09�+ o�,� \ S 348TH STREET I o\ L11 L12 L13 \ L14 CONSERVATION EASEMENT LINE TABLE \ LINE LENGTH BEARING L1 13.06 N61'33'10"E N 5819'25" W ` L2 2.29 S33'02'17"E 26.63' L3 5.31 S79'07'25"E j L4 23.52 S65'47'40"E % L5 33.63 529'59'20"E '��`' L6 7.05 S45'43'58"E L7 8.29 S67'27'11"E LB 37.73 S23'46'30"E 1"=40' L9 16.90 S1622'13"E L10 34.30 S01'30'27"E L11 10.27 S25'13'47 W � �3 L12 2.63 535'13'47"E �Q 17) L13 11.37 S46'00'18"E �L LI L14 5.76 S25'36'07"E TACOMA • SEATTLE JOB NO. 209307.50 2215 North 30th Street,Suite 300,Tacoma,WA 98403 253.383.2422 TEL August 17, 2010 1200 Sixth Avenue,Suite 1620,Seattle,WA 98101 206.267.2425 TEL CONSERVATION EASEMENT THIS EXHIBIT HAS BEEN PREPARED TO ASSIST IN THE INTERPRETATION LEGAL BY: BD EXHIBIT BY: TAD OF THE ACCOMPANYING LEGAL DESCRIPTION. IF THERE IS A CONFLICT BETWEEN THE WRITTEN w:\sdskproj\2009\209307\dwg\conservation eosement.dwg DESCRIPTION AL ES II T PO AND THIS SKETCH, THE PREVAIL.