Loading...
HomeMy WebLinkAbout9505180972 CONSERVATION EASEMENT 051895 After recording return to: /L/W J �1' `� It `'' ' '"``' • CITY OF AUBURN \:: 3. 3 (ACM. ,;L`ERK'S OFFICE MAY 3 0 7995 Ko 410 25 WEST MAIN AUBURN WA 98001-4998 CONSERVATION EASEMENT Cr TY OF AU URN : CITY CLEF OFFICE cm H- THIS CONSERVATION EASEMENT is made by and between NORTHWESM RACING ASSOCIATES, LIMITED PARTNERSHIP (a Washington Limited a °) Partnership) , whose mailing address is 350 - 29th St. N.W. , = Auburn, WA 98001 (the "Grantor") , and the CITY OF AUBURN, a A P r*4 Washington municipal corporation, with a mailing address of 2511. IN. Main, Auburn, WA 98001 (the "City" or "Grantee") . (-; 0 RECITALS A. Grantor is the sole owner in fee simple of certain real g property in King County, Washington, which is described in o u, iExhibit A, attached hereto and incorporated herein by this o reference ("the Property") . B. Grantor has obtained from the City approval of a P conditional use permit (the "CUP") and other permits associated '11 with the construction and operation of a thoroughbred horse racing facility (the "Project") . As part of the Project, Grantor has received approval from the City to fill certain wetlands so long as Grantor mitigates those impacts through construction of a wetland mitigation plan on the Property. A condition of 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 , 'r'' recorded is required prior to allowing spectators on y 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 9 (the "404 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 n Impact Statement for the Auburn Thoroughbred Horse Racing V 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 EXCISE TAX NOT REQUIRED King Co. ecor s Division kl,, 4 -(/(, "t/DWAY I • 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 11 intention of Grantor as herein stated and to preserve and to protect in perpetuity the Conservation Values of the Property for the benefit of those now living and those as yet unborn. I. This easement will benefit the properties of the City as a whole and burden the subject property. NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions and restrictions contained herein ^� the parties agree as follows: M 1. Grant of Easement. Pursuant to the laws of the State 0 of Washington and in particular Sections 64 . 04 . 130 and Chapter In 84 . 34 of the Revised Code of Washington, Grantor hereby v4 voluntarily grants and conveys to Grantee a conservation easement 1,) in perpetuity over the Property on the terms and conditions set 0 forth herein ("Easement") . Grantor expressly intends that this -1/3 Easement runs with the land and that this Easement shall be C) 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 PAGE 2 OF 9 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. tl iib. 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 CIA notice to Grantor and that Grantee may not unreasonably interfere 0 with the quiet use and enjoyment by Grantor of the Property. U, C. To prevent any activity on or use of the Property 0) 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 Mitigation Plan or the purpose of this Easement is permitted. Without limiting the generality of the foregoing authorization, the following activities in and uses of the Property are expressly permitted: a. Construction, maintenance, monitoring and 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 Riahts. 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 01 protected thereby; and (3) to require the restoration of the 0 Property to the condition that existed prior to any such injury. (,D Without limiting Grantor's liability therefore, Grantee, in its td sole discretion, may apply any damages recovered to the cost of L7 undertaking any corrective action on the Property. If Grantee, CD in its sole discretion, determines that circumstances require 0� 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 Grantors 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 interest until paid by Grantor at the same rate imposed by 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. N 0 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 L7 representatives, successors, and assigns of each of them 0 (collectively "the Indemnified Parties") from and against 1/1 all liabilities, penalties, costs, losses, damages, 01 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 this Easement or Grantee under any applicable laws, including Section 170 (h) of the Internal Revenue Code of 1954 , as amended, and any amendment shall be consistent with the purpose of this 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 04 thereunder, and authorized to acquire and hold conservation easements under Section 64 . 40. 130 or 84-34 .250 of the Revised 0) Code of Washington (or any successor provision then applicable) . 0 As a condition of such transfer, Grantee shall require that the conservation purposes that this grant is intended to advance 1.4 continue to be carried out by the transferee. 12 . Subsequent Transfers. Grantor agrees to incorporate 0) 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 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 qtimely 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 0 Easement which would render the provision valid is to be OD favored over any interpretation which would render such r4 provision invalid. U, 0 15. 3 . Severability. If any provision of this Easement, 11� or its application to any person or circumstance, is found 0, 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 Riahts and Obligations. A party'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 this instrument this W day of 1fc/ 1995. NORTHWEST RACING ASSOCIATIES, LIMITED PARTNERSHIP By Racing, Inc. Its General Partner By 4/ ' 1. V -President, R ci , Inc. 40117 THE CITY OF AUBURN does hereby accept the above Grant Deed of Conservation Easement. s. A . G. 1 , Charles fik. Booth, Mayor al 0 OD ATTEST: 1,4 In et9-6-huwaliki. --rti On Robin Wohlhueter, City Clerk PAGE 8 OF 9 APPROVED AS TO FORM: Michael Reynolds, City Attorney . STATE OF , 4 '(C�_1 f L___: ) • I . ) ss. COUNTY OF -'( l /!%^' ) j - -/ On this L' day of /J1r"r.c , 197S, before me personally appeared /i•;., , 1 ,(,r;-•••y, i1' and of the corporation 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. i � 1.% . ��ignature) j. •' .1;3;6Y7,RY; ., •. Print Name :>.•,� ;- 1 . ', ' /: "; A''' / / Notary-'Public in and for the State of J ;',u tt. " - $ - . I . , residing at H' - ' .i - ` `` My Commission Expires: . N C1 CD 1.4 MU ERa3rss.BC CP 0 Ch PAGE 9 OF 9 EXHIBIT A LEGAL DESCRIPTION That portion of the Northeast Quarter of the Northwest Quarter of Section 13, Township 21 North, Range 4 East, W.M. lying West of Clay Street N.W.; and The Northwest Quarter of the Northwest Quarter of Section 13, Township 21 North, Range 4 East, W.M.; Except that portion conveyed to the. State of Washington for State Highway No. SR 167 By Deed Recorded under Recording No. 6611997; Together with the North 30 feet, as Measured Along the Easterly Line, of that Portion of the Northeast Quarter of the Northeast Quarter of Section 14, Township 21 North, Range 4 East W.M. Lying Easterly of SR 181 (West Valley Highway). All Situate in the City of Auburn, County of King, State of Washington. CD OD L7 1/1 0 • After recording return to: /I,JW / 3 -;,22./_.V, /V 3./3. .2 , ',CITY OF AUBURN C� . CITY. CLERK'S OFFICE MAY 3 Q )99' �'O W 25 WEST MAIN AUBURN WA, 98001-4998 CONSERVATION EASEMENT ��4F AUKURN Cl iY CLERKS OFFICE THIS CONSERVATION EASEMENT is made by and between NORTHWESp ?3 RACING ASSOCIATES, LIMITED PARTNERSHIP (a Washington Limited a. ;: Partnership) , whose mailing address is 350 - 29th St. N.W. , m a' Auburn, WA 98001 (the "Grantor") , and the CITY OF AUBURN, a g s . t4 Washington municipal corporation, with a mailing address of 25 U. m Main, Auburn, WA 98001 (the ""City" or "Grantee") . r, 0 RECITALS mm A. Grantor is the sole owner in fee simple of certain real property in King County, Washington, which is described in m iai Exhibit A, attached hereto and incorporated herein by this a - " o reference ("the Property") . o B. Grantor has obtained from the City approval of a conditional use permit (the "CUP") and other permits associated llwith the construction and operation of a thoroughbred horse 11 racing facility (the "Project") . As part of the Project, Grantor has received approval from the City to fill certain wetlands so long as Grantor mitigates those impacts through construction of a wetland mitigation plan on the Property. A condition of 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."' C. Grantor has also applied to the U.S. Army Corps of Engineers (the "Corps") for a Section 404 permit to fill wetlands 9 (the "404 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 EXCISE TAX NOT REQUIRED King Co. ecor s Division pUty I. • 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 II intention of Grantor as herein stated and to preserve and to protect in perpetuity the Conservation Values of the Property for the benefit of those now living and those as yet unborn. I. This easement will benefit the properties of the City as a whole and burden the subject property. NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions and restrictions contained herein the parties agree as follows: NI 1. Grant of Easement. Pursuant to the laws of the State 71 0 of Washington and in particular Sections 64. 04 . 130 and Chapter an 84 . 34 of the Revised Code of Washington, Grantor hereby 1.4 voluntarily grants and conveys to Grantee a conservation easement 3r, in perpetuity over the Property on the terms and conditions set forth herein ("Easement") . Grantor expressly intends that this II Easement runs with the land and that this Easement shall be m 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 PAGE 2 OF 9 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. t4 iib. 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 0 with the quiet use and enjoyment by Grantor of the Property. 'fin C. To prevent any activity on or use of the Property 0) 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 Mitigation Plan or the purpose of this Easement is permitted. Without limiting the generality of the foregoing authorization, the following activities in and uses of the Property are expressly permitted: a. Construction, maintenance, monitoring and 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 04 recover any damages to which it may be entitled for violation of r„ the terms of this Easement or injury to any Conservation Values 01 protected thereby; and (3) to require the restoration of the Q Property to the condition that existed prior to any such injury. OD Without limiting Grantor's liability therefore, Grantee, in its rl sole discretion, may apply any damages recovered to the cost of I7 undertaking any corrective action on the Property. If Grantee, CD in its sole discretion, determines that circumstances require 0� 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 interest until paid by Grantor at the same rate imposed by 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, OD OD employees, agents, and contractors and the heirs, personal L7 representatives, successors, and assigns of each of them C) (collectively "the Indemnified Parties") from and against 0 all liabilities, penalties, costs, losses, damages, CI 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. Extinauishment 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 this Easement or Grantee under any applicable laws, including Section 170 (h) of the Internal Revenue Code of 1954 , as amended, and any amendment shall be consistent with the purpose of this 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 04 thereunder, and authorized to acquire and hold conservation easements under Section 64.40.130 or 84-34 .250 of the Revised 01 Code of Washington (or any successor provision then applicable) . 0) As a condition of such transfer, Grantee shall require that the OD conservation purposes that this grant is intended to advance L7 continue to be carried out by the transferee. 12 . Subsequent Transfers. Grantor agrees to incorporate 01 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 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 r 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. 04 04 If any provision of this Easement is found to be ambiguous, r an interpretation consistent with the purpose of this Easement which would render the provision valid is to be OD favored over any interpretation which would render such ,',♦ provision invalid. VI Q 15. 3 . Severability. If any provision of this Easement, l,n or its application to any person or circumstance, is found 0, 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. A party'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 . Cautions. 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 this instrument this 7lC-' day of , 1V /11 1995. I NORTHWEST RACING ASSOCIATIES, LIMITED PARTNERSHIP By Racing, Inc, Its GeneralA/ . ' Partner By ,i_ 40 7 V -President, R ci , Inc. THE CITY OF AUBURN does hereby accept the above Grant Deed of Conservation Easement. bulutb.i. a (Z,, -(:) csa Charles A. Booth, Mayor r ol Q or ATTEST: ll} e4(14-h-) Wadt/aZt-,) 1714 Robin Wohlhueter, City Clerk PAGE 8 OF 9 . APPROVED AS TO FORM: Michael Reynolds, City Attorney STATE OF ' )al.etki) ) ss. COUNTY OF 1' On this day of r,!'� , 19?5,^ before me personally appeared \J 4(1),/ 'G( , pe0i e.. , .Q and of the b rporstion 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. j' w`fit^, / .,�- ,,,.• .�� ; `',.`. ign furs j n , _ , ,, ti* �F• U4 r `; (Pri t N e) , .. atagr, ? 5i•9' No y ublic in and for the State f i. r, .).'YL'i..� ,e. 7,-. 9 --- c.,:M� . It 4 _ ` kUaall. residing at\ ¢'/�.,,irl�'/wa,e/ - . ,,,,. ,` ' :": ' My Commission Expires: f/ z"/--;e, '' mil' '.,¢t',. t,:-''.k, i: :` .'/I%•••n..r- \'* of C4 wa 0 4.4 NRAtERQ3ISS.BC ti7 in PAGE 9 OF 9 MAY-12-95 FRI 8:25 NW RACING ASSOCIATES FAX NO. 2U69398841 P. U2 . • , EXHIBIT A LEGAL DESCRIPTION That portion of the Northeast Quarter of the Northwest Quarter of Section 13, Township 21 North, Range 4 East, W.M. lying West of Clay Street N.W. ; and The Northwest Quarter of the Northwest Quarter of Section 13, Township 21 North, Range 4 East, W.M. ; Except that portion conveyed to the State of Washington for State Highway No. SR 167 By Deed Recorded under Recording No. 6611997; Together with the North 30 feet, as Measured Along the Easterly Line, of that Portion of the Northeast Quarter of the Northeast Quarter of Section 14, Township 21 North, Range 4 East W.M. Lying Easterly of SR 181 (West Valley Highway). All Situate in the City of Auburn, County of King, State of Washington. r Ch 0 23 v4 CD LI Ch After recording return to: it)�`� J "1 ` `1` 't `'' ' "` CITY OF AUBURN p 3. 3 CITY. CLERK'S OFFICE MAY a 0 1995 `.o 25 WEST MAIN AUBURN WA 98001-4998 CONSERVATION EASEMENT CITY OF AU URN �:ITY CLERKS OFFICE M 1 H)- i THIS CONSERVATION EASEMENT is made by and between NORTHWES% RACING ASSOCIATES, LIMITED PARTNERSHIP (a Washington Limited 3 V Partnership) , whose mailing address is 350 - 29th St. N.W. , ,c i§ Auburn, WA 98001 (the "Grantor") , and the CITY OF AUBURN, a N e4 Washington municipal corporation, with a mailing address of 25 1. r% Main, Auburn, WA 98001 (the "City" or "Grantee") . N m C) RECITALS A. Grantor is the sole owner in fee simple of certain real C) property in King County, Washington, which is described in Exhibit A, attached hereto and incorporated herein by this alip ai reference ("the Property") . B. Grantor has obtained from the City approval of a .- \` conditional use permit (the "CUP") and other permits associated11 1 with the construction and operation of a thoroughbred horse racing facility (the "Project") . As part of the Project, Grantor has received approval from the City to fill certain wetlands so long as Grantor mitigates those impacts through construction of a wetland mitigation plan on the Property. A condition of approval, set forth the City's Ordinance No. 4689, Condition No. 4 Is 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 ,J recorded is required prior to allowing spectators on `_\ the racetrack site. ('* C. Grantor has also applied to the U.S. Army Corps of 9 Engineers (the "Corps") for a Section 404 permit to fill wetlands (the "404 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 (-0; 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 V' ) 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 EXCISE TAX NOT REQUIRED King Co. ecor•s Division �Li&- . ••Aputy 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 11 intention of Grantor as herein stated and to preserve and to protect in perpetuity the Conservation Values of the Property for the benefit of those now living and those as yet unborn. I. This easement will benefit the properties of the City as a whole and burden the subject property. 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 CI C of Washington and in particular Sections 64. 04 . 130 and Chapter an 84 . 34 of the Revised Code of Washington, Grantor hereby ,r.4 voluntarily grants and conveys to Grantee a conservation easement :7 in perpetuity over the Property on the terms and conditions set C forth herein ("Easement") . Grantor expressly intends that this 1.1 Easement runs with the land and that this Easement shall be CI 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 PAGE 2 OF 9 • 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. Ni lib. 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 _a notice to Grantor and that Grantee may not unreasonably interfere Ti with the quiet use and enjoyment by Grantor of the Property. 4 C. To prevent any activity on or use of the Property 0) 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 Mitigation Plan or the purpose of this Easement is permitted. Without limiting the generality of the foregoing authorization, the following activities in and uses of the Property are expressly permitted: a. Construction, maintenance, monitoring and 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 0/ recover any damages to which it may be entitled for violation of the terms of this Easement or injury to any Conservation Values 0/ protected thereby; and (3) to require the restoration of the a Property to the condition that existed prior to any such injury. CID Without limiting Grantor's liability therefore, Grantee, in its t4 sole discretion, may apply any damages recovered to the cost of tiai undertaking any corrective action on the Property. If Grantee, D in 'its sole discretion, determines that circumstances require 0 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 11 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 interest until paid by Grantor at the same rate imposed by 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, CD CD and defend Grantee and its members, directors, officers, employees, agents, and contractors and the heirs, personal L7 representatives, successors, and assigns of each of them (collectively "the Indemnified Parties") from and against all liabilities, penalties, costs, losses, damages, 01 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 11 this Easement or Grantee under any applicable laws, including Section 170 (h) of the Internal Revenue Code of 1954 , as amended, and any amendment shall be consistent with the purpose of this 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 04 thereunder, and authorized to acquire and hold conservation N easements under Section 64. 40. 130 or 84-34 .250 of the Revised 01 Code of Washington (or any successor provision then applicable) . As a condition of such transfer, Grantee shall require that the OD conservation purposes that this grant is intended to advance r4 continue to be carried out by the transferee. CD 12. Subseauent Transfers. Grantor agrees to incorporate 01 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 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. 04 04 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 OD favored over any interpretation which would render such '4 provision invalid. N Q 15. 3 . Severability. If any provision of this Easement, In or its application to any person or circumstance, is found C) 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. A party'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 this instrument this 1'71.- day of t1 1995. i NORTHWEST RACING ASSOCIATIES, LIMITED PARTNERSHIP By Racing, Inc. Its General Paartner By ����4 .V oilita--i- -President, R ci , Inc. THE CITY OF AUBURN does hereby accept the above Grant Deed of Conservation Easement. s. balot.w. G. ice,. N Charles A. Booth, Mayor r ol CD OD ATTEST: r4 0 egih) tOCIVAL,a- t-) Q? Robin Wohlhueter, City Clerk PAGE 8 OF 9 APPROVED AS TO FORM: 1 4i-''' Michael Reynolds, City Attorney • STATE OF , C (_ti 1.�. ) I ss. COUNTY OF 'f•," 1 f'_! ) A On this q -I /day of JJ/c t y-- , 19• , before me personally appeared - ;Al' ;. 21 Ar,-.. _ ;A, and of the corporation 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. 11/_X ___., ,-/ * 1 . / --- , (Signature) . /• `,1p�,e t • ' ' (Print Name) ? •,. • �Y.'. _ 4 Notary—"Public in and for the State of ,; 1 , ' . , residing at . 7 : ' My Commission Expires: • NI GOvii AMA LE.R031 SS.BC V7 CP 0 Ch PAGE 9 OF 9 EXHIBIT A LEGAL DESCRIPTION That portion of the Northeast Quarter of the Northwest Quarter of Section 13, Township 21 North, Range 4 East, W.M. lying West of Clay Street N.W.; and The Northwest Quarter of the Northwest Quarter of Section 13, Township 21 North, Range 4 East, W.M.; Except that portion conveyed to the_. State of Washington for State Highway No. SR 167 By Deed Recorded under Recording No. 6611997; Together with the North 30 feet, as Measured Along the Easterly Line, of that Portion of the Northeast Quarter of the Northeast Quarter of Section 14, Township 21 North, Range 4 East W.M. Lying Easterly of SR 181 (West Valley Highway) . All Situate in the City of Auburn, County of King, State of Washington. cn GO U9 CD cn 3-- /- CITY OF AUBURN INTEROFFICE MEMORANDUM TO: Jeff Dixon, Planning Department FROM: Robin Wohlhueter SUBJECT: NW Racing Conservation Easement DATE: May 9, 1995 Here is a copy of the recorded document for the conservation easement between Northwest Racing Associates, Limited Partnership and the City of Auburn as recorded 9505051081. Please keep for your records. cc: Mike Reynolds Paul Krauss File: MAgigirETrement=s� 03.3.4 NW Racing Associates F:1CIerk\Adm in195J D5-9.doc After recording return to: /L/W J �1' `� It `'' ' '"`-' • CITY OF AUBURN \:: 3. 3 (ACM. ,;L`ERK'S OFFICE MAY 3 0 7995 Ko 410 25 WEST MAIN AUBURN WA 98001-4998 CONSERVATION EASEMENT Cr TY OF AU URN : CITY CLEF OFFICE cm H- THIS CONSERVATION EASEMENT is made by and between NORTHWESM RACING ASSOCIATES, LIMITED PARTNERSHIP (a Washington Limited a °) Partnership) , whose mailing address is 350 - 29th St. N.W. , = Auburn, WA 98001 (the "Grantor") , and the CITY OF AUBURN, a A P r*4 Washington municipal corporation, with a mailing address of 2511. IN. Main, Auburn, WA 98001 (the "City" or "Grantee") . (-; 0 RECITALS A. Grantor is the sole owner in fee simple of certain real g property in King County, Washington, which is described in o u, iExhibit A, attached hereto and incorporated herein by this o reference ("the Property") . B. Grantor has obtained from the City approval of a P conditional use permit (the "CUP") and other permits associated '11 with the construction and operation of a thoroughbred horse racing facility (the "Project") . As part of the Project, Grantor has received approval from the City to fill certain wetlands so long as Grantor mitigates those impacts through construction of a wetland mitigation plan on the Property. A condition of 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 , 'r'' recorded is required prior to allowing spectators on y 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 9 (the "404 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 n Impact Statement for the Auburn Thoroughbred Horse Racing V 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 EXCISE TAX NOT REQUIRED King Co. ecor s Division kl,, 4 -(/(, "t/DWAY I • 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 11 intention of Grantor as herein stated and to preserve and to protect in perpetuity the Conservation Values of the Property for the benefit of those now living and those as yet unborn. I. This easement will benefit the properties of the City as a whole and burden the subject property. NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions and restrictions contained herein ^� the parties agree as follows: M 1. Grant of Easement. Pursuant to the laws of the State 0 of Washington and in particular Sections 64 . 04 . 130 and Chapter In 84 . 34 of the Revised Code of Washington, Grantor hereby v4 voluntarily grants and conveys to Grantee a conservation easement 1,) in perpetuity over the Property on the terms and conditions set 0 forth herein ("Easement") . Grantor expressly intends that this -1/3 Easement runs with the land and that this Easement shall be C) 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 PAGE 2 OF 9 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. tl iib. 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 CIA notice to Grantor and that Grantee may not unreasonably interfere 0 with the quiet use and enjoyment by Grantor of the Property. U, C. To prevent any activity on or use of the Property 0) 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 Mitigation Plan or the purpose of this Easement is permitted. Without limiting the generality of the foregoing authorization, the following activities in and uses of the Property are expressly permitted: a. Construction, maintenance, monitoring and 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 Riahts. 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 01 protected thereby; and (3) to require the restoration of the 0 Property to the condition that existed prior to any such injury. (,D Without limiting Grantor's liability therefore, Grantee, in its td sole discretion, may apply any damages recovered to the cost of L7 undertaking any corrective action on the Property. If Grantee, CD in its sole discretion, determines that circumstances require 0� 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 Grantors 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 interest until paid by Grantor at the same rate imposed by 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. N 0 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 L7 representatives, successors, and assigns of each of them 0 (collectively "the Indemnified Parties") from and against 1/1 all liabilities, penalties, costs, losses, damages, 01 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 this Easement or Grantee under any applicable laws, including Section 170 (h) of the Internal Revenue Code of 1954 , as amended, and any amendment shall be consistent with the purpose of this 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 04 thereunder, and authorized to acquire and hold conservation easements under Section 64 . 40. 130 or 84-34 .250 of the Revised 0) Code of Washington (or any successor provision then applicable) . 0 As a condition of such transfer, Grantee shall require that the conservation purposes that this grant is intended to advance 1.4 continue to be carried out by the transferee. 12 . Subsequent Transfers. Grantor agrees to incorporate 0) 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 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 qtimely 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 0 Easement which would render the provision valid is to be OD favored over any interpretation which would render such r4 provision invalid. U, 0 15. 3 . Severability. If any provision of this Easement, 11� or its application to any person or circumstance, is found 0, 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 Riahts and Obligations. A party'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 this instrument this W day of 1fc/ 1995. NORTHWEST RACING ASSOCIATIES, LIMITED PARTNERSHIP By Racing, Inc. Its General Partner By 4/ ' 1. V -President, R ci , Inc. 40117 THE CITY OF AUBURN does hereby accept the above Grant Deed of Conservation Easement. s. A . G. 1 , Charles fik. Booth, Mayor al 0 OD ATTEST: 1,4 In et9-6-huwaliki. --rti On Robin Wohlhueter, City Clerk PAGE 8 OF 9 APPROVED AS TO FORM: Michael Reynolds, City Attorney . STATE OF , 4 '(C�_1 f L___: ) • I . ) ss. COUNTY OF -'( l /!%^' ) j - -/ On this L' day of /J1r"r.c , 197S, before me personally appeared /i•;., , 1 ,(,r;-•••y, i1' and of the corporation 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. i � 1.% . ��ignature) j. •' .1;3;6Y7,RY; ., •. Print Name :>.•,� ;- 1 . ', ' /: "; A''' / / Notary-'Public in and for the State of J ;',u tt. " - $ - . I . , residing at H' - ' .i - ` `` My Commission Expires: . N C1 CD 1.4 MU ERa3rss.BC CP 0 Ch PAGE 9 OF 9 EXHIBIT A LEGAL DESCRIPTION That portion of the Northeast Quarter of the Northwest Quarter of Section 13, Township 21 North, Range 4 East, W.M. lying West of Clay Street N.W.; and The Northwest Quarter of the Northwest Quarter of Section 13, Township 21 North, Range 4 East, W.M.; Except that portion conveyed to the. State of Washington for State Highway No. SR 167 By Deed Recorded under Recording No. 6611997; Together with the North 30 feet, as Measured Along the Easterly Line, of that Portion of the Northeast Quarter of the Northeast Quarter of Section 14, Township 21 North, Range 4 East W.M. Lying Easterly of SR 181 (West Valley Highway). All Situate in the City of Auburn, County of King, State of Washington. CD OD L7 1/1 0