HomeMy WebLinkAbout9505051081 CONSERVATION EASEMENT 050595lifter recording return to:
CITY OF AUBURN
CITY.CLERK'S OFFICE
25 WEST MAIN
AUBURN WA 98001-4998
CONSERVATION EASEMENT
THIS CONSERVATION EASEMENT is made by and between NORTHWEST
RACING ASSOCIATES, LIMITED PARTNERSHIP (a Washington Limited
Partnership), whose mailing address is 350 - 29th St. N.W.,
Auburn, WA 98001 (the "Grantor"), and the CITY OF AUBURN, a
Washington municipal corporation, with a mailing address of 25 W.
Main, Auburn, WA 98001 (the "City" or "Grantee").
RECITALS
A. Grantor is the sole owner in fee simple of certain real
property in King County, Washington, which is described in
Exhibit A, attached hereto and incorporated herein by this
reference ('"the Property").
B. Grantor has obtained from the City approval of a
conditional use permit (the "CUP") and other permits associated
with the construction and operation of a thoroughbred horse
C) racing facility (the "Project"). As part of the Project, Grantor
1,4 has received approval from the City to fill certain wetlands so
in long as Grantor mitigates those impacts through construction of a
Q wetland mitigation plan on the Property. A condition of
U9 approval, set forth the City's Ordinance No. 4689, Condition No.
4.A.10.b., provided as follows:
The wetland mitigation area (Thormod site) shall be
encumbered by a public open space, conservation
easement granted to the City of Auburn. The easement
shall state that any uses within the easement area
shall be as approved by the Planning Director. The
uses shall be consistent with the wetland mitigation
area and shall be a general benefit to the public.
Evidence that the easement has been executed and
recorded is required prior to allowing spectators on
the racetrack site.
C. Grantor has also applied to the U.S. Army Corps of
Engineers (the "Corps") for a Section 404 permit to fill wetlands
(the 11404 Permit"). A plan to mitigate the impacts of the
wetland fill was presented to the Corps by the consultant for the
Grantor and was published as the Final Wetland Mitigation Plan
for the Auburn Thoroughbred Racetrack Project, Auburn,
Washington, September, 1994 (the "Wetland Mitigation Plan") and
was included as Appendix B3 of the Final Federal Environmental
Impact Statement for the Auburn Thoroughbred Horse Racing
Facility, January, 1995, issued by the Corps. The Wetland
Mitigation Plan provides for the creation, restoration and
enhancement of wetlands on the Property and further provides that
PAGE 1 OF 9
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the Property will be protected by a conservation easement granted
to the City of Auburn.
D. Once the Wetland Mitigation Plan on the Property is
completed, the Property will possess wildlife habitat, water
quality, fisheries, flood storage, and open space values
(collectively "Conservation Values") of great importance to
Grantor, to Grantee, to the Corps, to the people of Auburn and to
the people of the State of Washington.
E. The specific Conservation Values now existing on the
site and to be created through implementation of the Wetland
Mitigation Plan are documented in the Wetland Mitigation Plan on
file at the offices of Grantee and the Corps and are incorporated
herein by this reference.
F. Grantee is a municipal government organized pursuant to
RCW 35A.
G. Grantor intends, as owner of the Property, to convey to
Grantee the right to preserve and protect the Conservation Values
of the Property in perpetuity. Grantor acknowledges that the
Corps, as the Section 404 permitting agency, is a third party
beneficiary of this conveyance.
H. Grantee agrees by accepting this grant to honor the
intention of Grantor as herein stated and to preserve and to
CO protect in perpetuity the Conservation Values of the Property for
C~ the benefit of those now living and those as yet unborn.
"4
1. This easement will benefit the properties of the City
0 as a whole and burden the subject property.
G NOW, THEREFORE, in consideration of the above and the mutual
covenants, terms, conditions and restrictions contained herein
the parties agree as follows:
1. Grant of Easement. Pursuant to the laws of the State
of Washington and in particular Sections 64.04.130 and Chapter
84.34 of the Revised Code of Washington, Grantor hereby
voluntarily grants and conveys to Grantee a conservation easement
in perpetuity over the Property on the terms and conditions set
forth herein ("Easement"). Grantor expressly intends that this
Easement runs with the land and that this Easement shall be
binding upon Grantor's agents, personal representatives,
successors or assigns.
2. Easement Purpose. It is the purpose of this Easement
to allow the construction, monitoring and maintenance of the
Wetland Mitigation Plan and to prevent any use of the Property
that will significantly impair or interfere with the Conservation
Values to be established under the Wetland Mitigation Plan on the
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Property. Grantor intends that this Easement will confine the
use of the Property to such activities as are consistent with the
purpose of this Easement.
3. Rights of Grantee. To accomplish the purpose of this
Easement, the following rights are conveyed to Grantee by this
Easement:
a. To preserve and protect the Conservation Values of
the Property.
b. To enter upon the Protected Property at reasonable
times in order to monitor Grantor's compliance with the terms of
this Easement; provided that such entry shall be upon prior
notice to Grantor and that Grantee may not unreasonably interfere
with the quiet use and enjoyment by Grantor of the Property.
C. To prevent any activity on or use of the Property
that is inconsistent with the Wetland Mitigation Plan or the
purpose of this Easement.
4. Prohibited Activities and Uses in the Property. Any
activity in or use of the Property inconsistent with the Wetland
Mitigation Plan or the purpose of this Easement is prohibited.
5. Permitted Activities and Uses. Any activity in or use
of the Property which is not inconsistent with the Wetland
H Mitigation Plan or the purpose of this Easement is permitted.
Without limiting the generality of the foregoing authorization,
O the following activities in and uses of the Property are
expressly permitted:
Ca
a. Construction, maintenance, monitoring and
Cn implementation of contingency measures associated with the
Wetland Mitigation Plan.
b. Walking, viewing, bird watching and similar
passive recreational uses.
C. Scientific and educational purposes pertaining to
the Conservation Values of the Property.
6. Reserved Rights. Grantor reserves to itself, and to
its agents, successors and assigns, all rights and obligations
accruing from its ownership of the Property, other than those
conveyed to Grantee in this grant of Easement.
7. Grantee's Remedies. If Grantee determines that Grantor
is in violation of the terms of this Easement or that a violation
is threatened, Grantee shall give written notice to Grantor of
such violation and demand corrective action sufficient to cure
the violation and, where the violation involved injury to the
PAGE 3 OF 9
Property resulting from any activity or use inconsistent with the
purpose of this Easement, to restore the portion of the Property
so injured. If Grantor fails to cure the violation within thirty
(30) days after receipt of notice thereof from Grantee, or, under
circumstances where the violation cannot reasonably be cured with
a thirty (30) day period, fails to begin curing such violation
within the thirty (30) day period, or fails to continue
diligently to cure such violation until finally cured, Grantee
may bring an action at law or in equity in a court of competent
jurisdiction: (1) to enforce the terms of this Easement, to
enjoin the violation by temporary or permanent injunction; (2) to
recover any damages to which it may be entitled for violation of
the terms of this Easement or injury to any Conservation Values
protected thereby; and (3) to require the restoration of the
Property to the condition that existed prior to any such injury.
Without limiting Grantor's liability therefore, Grantee, in its
sole discretion, may apply any damages recovered to the cost of
undertaking any corrective action on the Property. If Grantee,
in its sole discretion, determines that circumstances require
immediate action to prevent threatened violations of the terms of
the Easement, Grantee may petition a court of competent
jurisdiction for appropriate injunctive relief. The remedies
described in this paragraph are cumulative and are in addition to
all remedies now or hereafter existing at law or in equity.
7.1 Costs of Enforcement. Any costs incurred by Grantee in
enforcing the terms of this Easement against Grantor,
including, without limitation, costs of suit and attorneys'
fees, and any costs of restoration necessitated by Grantor"s
violation of the terms of this Easement shall be bore by
Grantor. If Grantor prevails in any action to enforce the
terms of this Easement, or in any action brought by Grantor
or its agents, successors or assigns, against Grantee for
violations of this Easement, Grantor"s costs of suit,
including, without limitation, attorneys' fees, shall be
bore by Grantee.
7.2 Grantee's Discretion. Any forbearance by Grantee to
exercise its rights under this Easement in the event of any
breach of its terms by Grantor may not be deemed or
construed to be a waiver by Grantee of such term or of any
subsequent breach of the same or any other term of this
Easement or of any of Grantee"s rights under this Easement.
No delay or omission by Grantee in the exercise of any right
or remedy upon any breach by Grantor may impair such right
or remedy or be construed as a waiver.
7.3 Acts Beyond Grantor's Control. Nothing contained in
this Easement shall be construed to entitle Grantee to bring
any action against Grantor to abate, correct, or restore any
condition on the Property or to recover damages for any
injury to or changes in the Property resulting from causes
PAGE 4 OF 9
beyond Grantor's control, including, without limitation,
natural causes, fire, flood, storm, or earth movement, or
from any prudent action taken by Grantor under emergency
conditions to prevent, abate; or mitigate significant injury
to the Property resulting from such causes, or from acts of
trespassers.
8. Access. No right of access by the general public to
any portion of the Property is conveyed by this Easement.
However, access for the limited purposes consistent with this
agreement and in accordance with the provisions of Paragraph 3.b.
may be provided by Grantee.
9. Costs and Liabilities. Grantor retains all
responsibilities and will bear all costs and liabilities of any
kind related to the ownership, operation and maintenance of the
Protected Property.
9.1 Taxes. Grantor will pay all taxes assessed against the
Property by governmental authority as they become due. To
preserve its rights under this Easement, Grantee may, but is
in no event obligated to, make payment of any taxes upon
five (5) days prior written notice to Grantor and the
obligation to Grantee created by such payment will bear
In interest until paid by Grantor at the same rate imposed by
Q the relevant governmental authority for the late payment of
the tax so paid by the Grantee. In the event Grantor fails
to timely pay any taxes, including, but not limited to, real
estate taxes on April 31 and October 31, then the Grantee,
at its option, may pay such taxes and in such event Grantee
may require, at Grantee's option, Grantor to convey the
property to Grantee by statutory warrant deed, to Grantee
free and clear of all encumbrances.
9.2 Hold-Harmless. Grantor shall hold harmless, indemnify,
and defend Grantee and its members, directors, officers,
employees, agents, and contractors and the heirs, personal
representatives, successors, and assigns of each of them
(collectively "the Indemnified Parties") from and against
all liabilities, penalties, costs, losses, damages,
expenses, causes of action, claims, demands, or judgments,
including, without limitation, reasonable attorneys" fees
(collectively "Liabilities"), arising from or in any way
connected with: (1) injury to or the death of any person, or
physical damage to any property, resulting from any act,
omission, condition, or other matter related to or occurring
on the Property, regardless of cause; (2) the obligations
specified in paragraphs 11 and 11.1 herein; and (3) the
existence or administration of this Easement; PROVIDED,
HOWEVER, this paragraph does not purport to indemnify
Indemnified Parties against liability for damages arising
out of bodily injury to persons or damage to property caused
PAGE 5 OF 9
by or resulting from the sole negligence of Grantee, or
Grantee's employees, agents or contractors; and PROVIDED
FURTHER, that in the case of concurrent negligence of
Grantor, its servants, agents, employees and contractors,
this indemnity provision shall be valid and enforceable only
to the extent of the negligence of Grantor, its servants,
agents, employees and contractors; and PROVIDED FURTHER,
that the Indemnified Parties shall not be held harmless
under this indemnity provision for Liabilities arising from
the acts or omissions on the Property by any invitee of the
Grantee.
10. Extinguishment and Amendment. If circumstances arise
in the future which make it impossible to accomplish the purposes
of this Easement, this Easement can only be terminated or
extinguished, in whole or in part, by judicial proceedings in a
court of competent jurisdiction. If circumstances arise which
make it appropriate to amend or modify this Easement, Grantor and
Grantee are free to jointly amend this Easement; provided that
there may be no amendment which would affect the qualification of
T-1 this Easement or Grantee under any applicable laws, including
GD Section 170 (h) of the Internal Revenue Code of 1954, as amended,
C and any amendment shall be consistent with the purpose of this
W4 Easement and may not affect its perpetual duration. Any such
amendment shall be recorded in the official records of King
County, Washington.
11. Assignment. This Easement is transferable by Grantee,
but Grantee may assign its rights and obligations under this
Easement only to an organization that is a qualified organization
at the time of transfer under Section 170 (h) of the Internal
Revenue Code of 1986, as amended (or any successor provision then
applicable), and the applicable regulations promulgated
thereunder, and authorized to acquire and hold conservation
easements under Section 64.40.130 or 84-34.250 of the Revised
Code of Washington (or any successor provision then applicable).
As a condition of such transfer, Grantee shall require that the
conservation purposes that this grant is intended to advance
continue to be carried out by the transferee.
12. Subsequent Transfers. Grantor agrees to incorporate
the terms of this Easement in any deed or other instrument which
divests Grantor of any interest in or any portion of the
Property, including, without limitation, a leasehold interest.
The failure of Grantor to perform any act required by this
paragraph will not impair the validity of this Easement or limit
its enforceability to any degree whatsoever.
13. Notices. Any notice, demand, request, consent,
approval or communication that either Grantor or Grantee desires
or is required to give to the other must be in writing and either
personally delivered, or sent by first class mail, postage
PAGE 6 OF 9
prepaid, or transmitted by electronic means with a copy of such
electronic transmittal bearing the date of such transmittal
retained by the transmitter, to:
To Grantor: NORTHWEST RACING ASSOCIATES,
LIMITED PARTNERSHIP
350 - 29th St. N.W.
Auburn, WA 98001
To Grantee: CITY OF AUBURN
25 W. Main
Auburn, WA 98001
V4
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or to such other address as either party from time to time shall
designate by written notice to the other. All notices shall be
deemed given on the first day following the day the notice is
mailed or electronically transmitted in accordance with this
paragraph.
14. Recordation. Grantor is to record this instrument in a
timely fashion in the Official Records of King County, Washington
15. General Provisions.
15.1. Controlling Law. The interpretation and
performance of this Easement is governed by the law of the
State of Washington.
15.2. Liberal Construction. Any general rule of
construction to the contrary notwithstanding, this Easement
is to be liberally construed in favor of the grant to effect
the purpose of this Easement and the policy and purpose of
the Washington statutes authorizing conservation easements.
If any provision of this Easement is found to be ambiguous,
an interpretation consistent with the purpose of this
Easement which would render the provision valid is to be
favored over any interpretation which would render such
provision invalid.
15.3. Severability. If any provision of'this Easement,
or its application to any person or circumstance, is found
to be invalid, the remainder of the provisions of this
Easement, or the application of such provision to persons or
circumstances as to which it has not been found to be
invalid, as the case may be, may not be affected thereby.
15.4. Entire Agreement. This instrument sets forth the
entire agreement of the parties hereto with respect to the
Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to this Easement, all
of which are merged herein.
PAGE 7 OF 9
15.5. No Forfeitures. Nothing contained herein will
result in a forfeiture or reversion of Grantor's title in
any respect.
15.6. Perpetuity. The covenants, terms, conditions and
restrictions of this Easement are binding upon and inure to
the benefit of the parties hereto and their respective
successors in interest and assigns and are to continue as a
servitude running with the Property in perpetuity.
15.7. Termination of Rights and Obligations. Aparty's
rights and obligations under this Easement terminate upon
transfer of the party's interest in the Easement or
Property, except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
15.8. Captions. The captions in this instrument have
been inserted solely for convenience of reference and are
not a part of this instrument and shall have no effect upon
construction or interpretation.
IN WITNESS WHEREOF, the undersigned Grantor has executed
V this instrument this 47%;-day of 1995.
d
rl NORTHWEST RACING ASSOCIATIES, LIMITED PARTNERSHIP
By Racing, Inc.
Ln Its General Partner
0 By
V'c -President, R ci , Inc.
THE CITY OF AUBURN does hereby accept the above Grant Deed of
Conservation Easement.
Charles . Booth, Mayor
ATTEST:
GUSH
Robin Wohlhueter, City Clerk
PAGE 8 OF 9
APPROVED AS TO FORM:
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Michael Reynolds, City Attorney
STATE OF j )C(~.: J` )
r ) ss.
COUNTY OF . ;'T )
On this day of 'c-, 19before me
personally apps red ) / /'•.i c_- . ) and
of the rporation that executed the within
and foregoing instrument, and acknowledged said instrument to be
the free and voluntary act and deed of said corporation, for the
uses and purposes therein mentioned, and on oath stated that
he/she was authorized to execute said instrument and that the
seal affixed is the corporate seal of said corporation.
In Witness Whereof I have hereunto set my hand and affixed
by official seal the day and year first above written.
gn ture)
(Pri t Name)
Notary ublic in and for the-State of
residing at
My Commission Expires:
MU I£R03155.BC
PAGE 9 OF 9
MAY-'..5-95 FRI 8:19 NW RACING ASSOCIATES FAX NO. 2069398841 P.02
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LWAL DESOMMION
That portion of the Northeast Quarter of the Hot+khwest Quarter of
Section, t3{ Township 2L worth, Range 4 nat, VvX. lyinq Asst of
MAY Str+ N.W. as satabtished is Lot, Line Adjustment recorded
under > aordiug No. 9341?10691; and
The biarthWast Quarter of the Northwest Quarter of Section 13 ,
Tevnahip 81 North, Range 4 Xast, p.M. Except that portion conveyed
to tha State of V ulbl.ngton for Strata 'Highway go. SR 167 By Dead
Recorded under Recording No. 6811997P Togath= with the North 30
Feet, as Noasuxvd Along Us Easterly Line, of that Portion of the
Northeast Quarter of the Forthoast Quarter of Section 14, Township
31 NOMO Range 4 East W.M. Lying BaSterly of $N 181 (West Valley
Highway).
All situate in the city of kuln=, Caamy of King, State of
Mwhington.
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