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HomeMy WebLinkAbout9810292077 WETLAND EASEMENT 1029983. 13 Return to: William I-1. Block. Buck & Gordon 1011 Western Avenue, Suite 902 Seattle, WA 98104 EASEMENT AGREEMENT A C3 CU cu C3 C3 0 w O ci~ M ti ru 4, cs co O, Document Title: Easement Agreement Reference numbers of related documents: N/A Grantor(s): City of Auburn Grantee(s): Opus Northwest LLC FILED BY Plvt' ff 071-1 W(0<65q`-{Z I2/l5 Legal Description , ection 23, wp 21N, Range 4 East record her Nei:;i c )IL, E5 accommodation only. It has not be,3n examined as to proper execution or as to its effect upon title. Additional legal description is attached as Exhibit A to the document Assessor's Property Tax Parcel/Account Number(s): 232104-9028-03 232104-9004-01 ~0A THIS EASEMENT AGREEMENT ("Easement") is made and entered into as of G ptee rd 3, 1998, by and between the CITY OF AUBURN ("Grantor") and OPUS NORTHWEST, LLC, a Delaware limited liability company ("Grantee"). RECITALS A. Grantor is the owner of that certain real property situated in the City of Auburn, County of King, State of Washington, which is legally described in Exhibit A, attached hereto and incorporated herein by this reference (the "City Property"). Grantee owns certain real property in the City, which is legally described in Exhibit B attached hereto and incorporated herein by this reference ("Grantee's Property"). To facilitate the development of the Grantee's project, Grantee desires to obtain an easement over the City 356448BM83 Property for purposes of enhancement, restoration, creation, monitoring and maintenance of wetlands. 13. 'The Grantor desires to grant to Grantee, and Grantee desires to accept an easement over the City Property on the terms and conditions set forth below. AGREEMENTS In consideration of the mutual promises and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree: 1. Easement. Grantor grants and conveys to Grantee a non-exclusive easement over, under across and through the City Property for the purposes of creating, enhancing, restoring, monitoring and/or maintaining wetlands on the City Property for the benefit and credit of the Grantee's Property and any future development situated thereon. Grantor reserves the right to use the City Property for purposes not inconsistent with and that would not interfere with any wetlands enhancement work performed by Grantee during or after the performance of the work or any continuing obligation of Grantee to maintain the same. Examples of such purposes include park and nature trail uses. 2. Indemnity. Grantee shall indemnify, defend and hold harmless Grantor and its agents and employees from and against any expenses, damages, claims or liabilities r4 arising from the exercise by Grantee or their agents or employees of any of the rights 00 granted by this Easement or any use of the City Property by Grantee or persons acting under the direction and control of Grantee. Grantor shall indemnify, defend and hold harmless Grantee and their agents and employees from and against any expenses, damages, claims or liabilities as a result of the use of the City Property by Grantor, its agents or employees. Insurance. Grantee and the applicable agent or contractor entering on the City Property shall, during all periods of construction and all periods during which Grantee has maintenance or monitoring obligations on the City Property, maintain insurance in the forms and minimum amounts set forth on Exhibit C hereto (as applicable). After the initial construction and installation of the wetlands on the City Property, Grantee shall provide not less than twenty four (24) hours advance written notice to Grantor of Grantee's, its agents' or employees' entry on the City Property which notice shall designate the purpose for and anticipated duration of such entry, provided however that in the case of an emergency Grantee shall give only such prior notice as may be commercially reasonable but shall in any event give notice after the fact that such entry has taken place. 4. Wetlands Design. Grantee shall not, in any activity or through any construction or alteration of the City Property create a dangerous condition on the City Property. Grantee's wetlands mitigation plantings and or construction plans (the "Plans") -2- 356448BM83 shall be subject to Grantor's prior written consent, which shall not be unreasonably withheld or delayed; provided that (i) Grantor's approval of Grantee's Plans shall not constitute any representation by Grantor as to the sufficiency, safety, feasibility or other matter relating to such Plans, (ii) Grantee shall be solely responsible for any consequences of its plan decisions and implementation, and (iii) if Grantor disapproves any Plans on the ground that they create a dangerous condition, Grantor shall cooperate with Grantee in creating an alternative design acceptable to Grantor in its regulatory capacity that does not create such a dangerous condition. Grantee agrees to provide Grantor with copies of its proposed and any "as built" construction records showing wetlands mitigation plantings or development. r~ Q~ G7 5. Stormwater Conveyance System. Grantee acknowledges that Grantor may be constructing a stormwater conveyance system within the Easement and consents to such construction and agrees that such construction shall not be deemed inconsistent with Grantee's rights hereunder. Grantor agrees that, if such stonnwater conveyance system is sufficiently designed as of the time of completion of the Plans, Grantee may include any benefits created by the stormwater conveyance as a part of Grantee's wetland mitigation plan and further that the mitigation measures that Grantee is required to construct shall not be greater as a result of the stormwater conveyance than would have been required without the stormwater conveyance. Grantor further agrees that if the stormwater conveyance system is designed after completion and regulatory approval of the Plans, construction of the stormwater conveyance system shall be undertaken in such a manner as the construction does not require the undertaking of any additional or replacement wetlands mitigation by Grantee beyond that contemplated in the approved Plans. 6. Condition of City Property. Grantee acknowledges that the easement rights conveyed hereunder, and the condition of the underlying City Property are taken "as is where is" without representation or warranty as to the condition of the City Property and. that no representations or warranties have been made or are made and no responsibility has been or is assumed by Grantor as to any matters concerning the City Property, or as to any other fact or condition which has or might affect the City Property or any portion thereof. The parties agree that all understandings and agreements heretofore made between them or their respective agents or representatives are merged into this Easement that this Easement has been entered into after a reasonable investigation, or with the parties satisfied with the opportunity afforded for a reasonable investigation. Grantee is not relying upon any statement or representation by Grantor unless such statement or representation is specifically embodied in this Easement. 7. Notices. All notices required or permitted hereunder shall be in writing and. shall either be delivered in person or sent by certified or registered mail, return receipt requested, and shall be deemed received on the sooner of actual receipt or five days after being deposited in the mail, postage prepaid, addressed to Grantor or Grantee at their last known address. 356448BM83 -3- 8. Binding Effect. This Easement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. C .0 N P~ M 9. Amendment. This Easement may be amended only by written instrument executed by Grantor and Grantee. 10. Applicable Law. This Easement shall be governed by and construed in accordance with the laws of the State of Washington. 11. Attorneys' Fees. In any proceeding brought to enforce this Easement or to determine the rights of the parties under this Easement, the prevailing party shall be entitled to collect, in addition to any judgment awarded by a court, a reasonable sum as attorneys' fees, and all costs and expenses incurred in connection with such a lawsuit, including attorneys' fees, expenses of litigation, and costs of appeal. For purposes of this Easement, the prevailing party shall be that party in whose favor final judgment is rendered or who substantially prevails, if both parties are awarded judgment. The term "proceeding" shall mean and include arbitration, administrative, bankruptcy, and judicial proceedings including appeals. 12. Recording. Upon execution, this Easement shall be recorded in the land records of King County, Washington. 13. Duration of Easement. This Easement shall be in effect for a period concurrent with Grantee's wetland mitigation obligations relating to Grantee's Property and applicable to the City Property. Upon expiration of Grantee's wetland mitigation and/or maintenance and monitoring obligations, this Easement shall automatically without further action by either party expire, provided that if Grantee's wetland mitigation obligations require a perpetual dedication, that dedication shall survive. If Grantee has not engaged in. any wetlands mitigation measures pursuant to this Easement by the fifth (5") annual anniversary of this Easement; then this Easement shall automatically and without further action by either party expire. 1.4. Restrictive Covenant. The Grantor shall record against the Grantor's Property a restrictive covenant in the form attached hereto as Exhibit D and incorporated herein by this reference. 356448BM83 -4- EXECUTED as of the day and year first above written. GRANTOR: CITY OF AUBURN Approv- as to form the City Attorney: 1 Michael J. Reynolds By: . l ` 0 4 Charles A. '-Aoatk , Mayor GRANTEE: OPUS NORTHWEST LLC C~ IS: -5- 35G448BM83 STATE OF WASHINGTON ) ss. COUNTY Of, KING ) On this day personally appeared before me nho r& s A • dirk, to me known to be the Mc4VdY- of CITY OF AUBURN, a government entity that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said for the uses and purposes therein mentioned, and on oath stated that ~ is authorized to execute said instrument. GIVEN under my hand and official seal thisaLdday of d et 4e , 1998. r~ G~~E E. ` `aN\.gIQ N F r • ,~i n!nTARY r ~ r C • WASN;~•~~ 'rrnnNWN bQn re,//c.. 6' s (Print name of notary) NOTARY PUBLIC in anfor the Sta of Washington, residing at My commission expires M-Zd -"9S STATE OF WASHINGTON ) ss. COUNTY OF KING ) On this-day personally appeared before me -JOkr► L4 , to me known to be the Vk-e. /sec IWa••,f -of Opus Northwest, LLC, the limited liability company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he is authorized to execute said instrument. GIVEN under my hand and official seal this 7rK day of 1998. 0%4 '10980000, Of LFF ~~NNM•~ EXP#/v • ° r i yF /'~0~ O o 1 r II , ro 2o' srA of 356448BM83 ~ ~ 'k oeInJo 1 •FF- (Print name of notary) NOTARY PUBLIC in and for the State of Washington, residing at $e!/n y y a-- My commission expires 6le r-1 z.00-1..-- -6- EXHEBIT A The land rp=Atr-ed _-s commitment is situated in the county of xins, state of Wash__`: _ =n, and descr=bed as follows: Portion of the norzhwest cuarter of the northeast quarter and the southwest quarter of the .....r-,.=east c_uar ter of Section 23, :ownsrlp 21 Ncrth. Range 4 East, W.M., :n King County, Washington, more Pardo- ar_v descr:~ed as follows: yommencinc at the ,^..rtheast corner of Section 23, whose position is marked with an '_ron pipe, one and one-half in:hes in diameter; thence north 89029'52" west along the north line of Section 23, a dj.star ce of 1525.61 feet to the west margin of State Sign Route 167; t.aence along said west ma_7iu for the following t -ee courses, soul 2°13 32' east, 204.29 feet; thence soa::h 20°2_ 04' west, 351.26 feet; thence south 240=7'42" west, 141.68 feet to the TRCE POINT OF C1 BEGINNING; thence ...._...=ulnc along said west ma_-gin for the following three l"{ course s, south 24*17'42" wes t, 225.34 feet; Q~ :.hence south 24°1,'47" west, 233.02 feet; thence south 47°04'44" west, 522.34 feet; thence north 76057'20" west, 97._5 feet, thence north 55°"18'42" west, I= .82 feet; thence north 28057'S311 east, 788.87 feet, thence south 89033'54" east, 376.49 feet to the point of beginning. EXHIBIT B LEGAL DESCRIFTION: Parcel B of Short Plot No. SP-3--79 recorded under No. 7903210411, being known as: A portion of Section 6, Township 21 North. Range 5 East. W.M., in King County, Washington and Section 31. Township 22 North, Range 5 East, W.M., in King County, Washington. described as follows: The South 40 acres of the West 1,487.34 feet of the North 2.286.76 feet of the donation land claim of the heirs at law of, Harvey N. Jones and his wife, Eliza Jones, both deceased designated as Claim No. 39; EXCEPT that portion therefore described as follows: BEGINNING at the Southeast comer thereof; THENCE West, 264 feet; THENCE North, 585 feet; THENCE East. 254 feet; THENCE South, 585 feet to the POINT OF BEGINNING; ALSO, EXCEPT that portion of the South 530 feet lying West of the v4 Northeriy extension of the West line of 'C" Street; EXCEPT those portions deeded to the city of Auburn for 37th Street Northeast under King County Recording Nos. 6314812, 6310370 and 8103120474; ALSO, the North half of the North half of the following described tract: BEGINNING at the Southwest corner of said donation land claim; THENCE North. 4.574.46 feet; THENCE East. 1.518 feet; THENCE South, 4,574,46 feet; THENCE West. 1,518 feet to the POINT OF BEGINNING; EXCEPT the portion thereof described as follows: BEGINNING at the Southwest corner of said donation land claim; THENCE North. 4,574.46 feet; THENCE East, 1,487.34 feet, more or less. to the West line of the G. Fraeger Rood and the TRUE POINT OF BEGINNING of the tract o f land herein excepted; THENCE South along the West line of said rood 200 feet: THENCE West, 1,089 feet; THENCE North, 200 feet; THENCE East. 1,089 feet; ALL EXCEPT the East 35 feet for Auburn Way North. also known as State Road No. 5. SITUATE in the city of Auburn, county of King, state of Washington. Legal description from First American Title Insurance Company, Policy No. 63626 EXHIBIT C 141-18(I) Gaaaral The Coarrwtar shall obtain and twiniain in ,`u!. force and affe,.t. from the Awatti Dare to tht Compictioa Data, public liability and pznpo:zy darangc ioauxarica with tiasu=cc cauL;nrtius or through sourrrs approved by tiro Stet Insurance Commig+~oncr purnuuu to Tiac 43 ACW. Whoa the Contr,.ctor &-Uvcrs the axecusai Can=for the Work to the Con=:lg A,gracy it shall be =cmpanied by a Certificate of Insurance (or a Cartiticate and a Binder) for a primwy Policy of Comprehcaive Ctcneral Liability :tzatu = ==:ing the c+:q,uir•=enta set &Xth h==ter. Tao i,cus:rutc : pclicv provided must be on apt:: occ'.a:euc:. 1=3i:; ao claisax made policy will be acceptad. The 'saurna= provided rnusr 'oe with as insumace ==;=Y with a Best rating of B*7 or a~qui~ralent The Courraezing Agency rmcn-. j the ri& to approve the sc;.tr:ry if thic imam a= ;mvided. to ccrnpany, tc=s snd coverafTI!, and the Cc.tff rate of Irsursnce. Failure of the Conmetor to fully comply duriag thy; ;tam of ` the Cantta,c: with thtse re;uitirnents will be consid=d a matcrial br_=.h of cc,trx; and shall be cause `ar inamediare cermination of the Cantrac: at tre opt»an of dzc Cantrac:ing ~ A.gercy, C; The policy of in:ur=c: shall =eci3cally name the Can ztcting Agency std an- otter entity spec rcally mquircc by the Contact ProVizoas as an additiarml in=czL The Com=inr, GO A =vt .all be givcn 20 .nays prior weir= notice of any c=ceilation, ttrducron cr maciincdan of the iasurincc, ?he CD==r shall act born work neck the Coaaaa: until the required insursncc has been otrtsti:.ra Red aggrovcd * the COQ=C:iMS Ag=c f. l'rtszaartca shall provide cavorsgc to the Cancac;ar, all. subcont~=. and the Caauac ng Agency. Tht cav ge shall aromt &Pi= charms for ;=oral injuuics, lac udang ='.rletnal daattL as well as c!Ai= for proper;; daazages which may arise fr= say ccr or omission of the Conw=.or or the subcO==,ar, or by anyone dir=ly or irutfzzct}y emplaye oy c;ther of them. Upon -=uaar, the Cocusuar dull :tirN%rd ca %ha Contracr+ag Ag=cy the original police, or cadancm=t obtained, to a Cnrraaeme, policy currently in fartc. C-1 1-07.18(2) Coverages The inzuran= shall provide the miai== coverages set forth btlaw: 1.07.18(7)A Standard a- Exteeded Bodily la4jury b. Employ= as Additional lm=d c. PrcraiseslOPwAxioru Liability (M&Q d. O%v=3 and Gontrtzctors Protective Liability, as i n c l u a e a within a s t a n d a rtl commercial general liability policy e. Products and Compictod Operations Liability (through guaramcc period) b. PemoaallnlwY, including cov Mica A. H, C, with no emplQyec exrlusiuII G" ~ I. Stop Gap or Employers Contingent LisWity ~ j_ Automobile Liabdiw. including coverage for owticd, nooowtxli, leiseNi or hired vehitlcs lc. Explosion, Collapse;. Uud d Damage (X.C.U.) as appiicablc I-OTA )B Special If rho caatract tequit>ws working over wiser, the following addltlamd wmiga are rtxquzat a. W"=r--aft. awned ami con-ownad b. U.S. Harbor aTketa'/Lonphonem= and Jonas Act Other additional coveragm thin may ba required will be Umd in the Cotitrsct Provieianr. When the use of explosives is mceswry for the prosecution of the Wane„ ncic Contxwtot's Lost M=tca smell commit a< speew Chaise pem fitting blasting. C-? 1-07.18(3) Ltmis, L All cover = combined single limit: 11,000.000 per occurrence, no deductible; Providing covugc in these stated arnouats affil not be canned to relleve the C., nrcac(or from llttbility in c:tems of such limits. 1-07.1$(4) Evidence of Iasurnace Tbe Cot'muactar shall provide evidence of insurance by ona of the following methods: 1. A Caz4freate of It umme may be submitted which conforms to the following rcquiraments: a. Nacres the Caatrac:ia& Agency as an adc iticnai insured; rl- C~ C'! C~ Q7 b. Conuins tha appropriate amount and gpes of coverages which are specified by the Coturzcr. Q Does :tat contain tlu following or similar wording; "This CCcrtiEciw: is iasvad as a taste; of inkrmation only and cenfcrs no dghra upon the Cart Ecsec hold.-.-"?- d. Provident for cancellation notice to the Contracting Agency of az t,_ast 20 days. C. Does not conmin the following or similar wording regur3ing caaccllscdon notification to the Com actLng Agency. "Failure to mail such notice shall impose no ob6gaaion or liability of any kind upon the WMP=Y." 2. A aompiewd Acord form A"25 (or equivaloru) may be mbcmim-d which coafaams to the following cequimmenm a, the wording at for top of the form. *M2 3 Ccrtificrte is i:twud as :c masur of infbmzaaion only and coafe:s au tiylhts upon the Cerdiicatc holder," mast be deleted in lh entirety; b. Ibe warding at the botmm of the Acord form, "Should any of the above descnibed polities be caruceled before the mcpiration dwo dtereof, the Wuiag company will endeavor to mag days written notice to the below aarrxd Callfi tc holder, but f3lilure to mail such notice 1 1 c-3 shall impose no obligauon or liability of any Sdcd upon d>e company," shall be changed to mad "Should any of the above described pohci-w be canceled or tm--4=ed as to coverage before the expiration datr them. f, the issuing company will mail :U days written notict to thu Cartihc:ate holder, (the Contracting Agency), the tamed additional it>sured, by certified mail"; C. The Contracting AQertcy is named as as additional insum-d; d. Tbr appropriate amount and typos of coverages spt:citied in d= Contract are contained thacim Any warding crossed out must be initialed by the agenvbroker. CT9 3. A cwnpieted Acord farm 425 may be submitted without the changca dw=bed in C22x2) above If the Acord form is accompanied by a complc,--d Endorsemmt mining the Conawti.ng Agency as an additlonai insured and containing tha in=Td's cant tad policy number, and signed by a duly w.Wwrized agendbroke;. The changes described is (2)(b) abo-,•r mus, be made on the Ccrificate of Insurance. Any wording crossed our must be initialed by the &g-:,Wbroke.. 4. A ccmpisted Acord float ".2.5 (or equivalent) racy be submit d w{=ut thu changer described in (2)(a) above if it is accompanied by an Insur== Biadtr (Acord N') 5, or equivalent) indicating that tbte Endomemem naming tit Contracting Agency as as additional in=cd is bound with tha CL►rt:&cate of Insm=cc (Acord AQ5). The Contractor must submit the EZdomemr..-nt prior to 1ha cxptrtunon of the Insurance MaLrr. Fail= :o mplac» a Birder which has eocpired may result in a material breach of the Contract and the C:onrracting Agency, at its option, may stop all woriL The chaagcs desc.ibed in (2)(b) above must be rude on the Ccrdficum or Insurance acd nay wording crossed out must be initialed bey the ag='brokcr. 3. A =r ificd copy of the insur=e policy may be submitted which shat] nurse the Conu=ring Air=y as an AddWonal In3ured- C-4 After recording return to: Staci S. Jeske Cairncross & Hempelmann, P.S. 701 Fifth Avenue, 70th Floor Seattle, Washington 98104-7016 EXHIBIT D RESTRICTIVE COVENANT This Restrictive Covenant is made by the City of Auburn as the owner of that certain real property described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"). In connection with the grant of an easement to Opus Northwest, LLC for purposes of creating, enhancing and monitoring wetlands on the Property, the City agrees to restrict use of the Property as required under the Department of the Army, Seattle District Corps. of Engineers Permit No. 97-4-01228 (the "Permit") issued to Opus Northwest LLC as follows: The wetland area created as mitigation for work authorized by the Permit shall not be made the subject of a future individual or general Department of the Army permit application for fill or other development, except for the purposes of enhancing or restoring the C7 mitigation associated with the wetlands project on the Property. In ~a addition, a description of the mitigation area identified in the final mitigation plan as approved, and any subsequent permit mitigation Q) area revisions, will be recorded in the public land records for the County. This Restrictive Covenant shall be deemed a covenant running with the land and shall bind all successors and assigns of the City. Legal Description: Section 23, Twp. 21N, Range 4 East Assessor's Property Tax Parcel/Account Number(s): 232104-9028-03 232104-9004-01 Appro ed as to form by the City Attorney: CITY OF AUBURN 1 By' By: ' cx Michael J. Reynolds e s ' 7%1 ,Mayor Acknowledgement attached 335? 15cM83 STATE OF WASHINGTON ) ss. COUNTY OF /N d ) On this day personally appeared before me Cjiuilr s R,~ to me known to be the individual described in and who executed the within and foregoing instrument, and acknowledged to me that k L- signed the same as 's free and voluntary act and deed for the uses and purposes therein mentioned. GIVEN under my hand and official seal this a ~ ay of 1998. ]]1»~ 1 l~ r~ #~5510N ~•'•A.. rr NOTARY 9N co c 4 u: _IC o O rr~ r^ r?Q E F1 .5.- C INNS " Lacct~y ~!L'4a4~ -Lc-. -2),as koA (Print name of notary) NOTARY PUBLIC in an or the State of Washington, residing at az,) My commission expires 4917-1:z 33 521 ScM83 E=IT A The lard referred -4- ._is a_-=.,i=is situated in the county of King, state o Wasri.,t and described as follows: Pcrticn of the nc=--.hwest qua _ex of the nor-..heast qua=ter and the southwest quarter of the _..=--=east cuarte_-- of Section 23, Towns. _p 21 Ncr=h. Ra:_ge 4 _Z ast, W.M., K:ng County, Washington, more part_... I arly described as follows: ( otrme n_ing at the ......_taeast ccrner of Section 23, whose position is ' marked with an "ipe, cn e and one-half inches i= diametex; C1 tze:.ce ncxth 89029132" west aicng the nor-h line of Section 23, a C1 distance of 1525.61 feet to the west margin of State Sigh Route 167; C tae^ce al:nc said west ma=-. =ar tae following ._...ree ca o rses, so:__- 2013'32" east, 204.29 feet, th=ence south 20°21 04" west, 351.26 feet; =hence south 24017'42" west, 141.68 _feet to the TRUE PO= OF HEM=I~NG , . thence ,...=.._a:i^_ alctg sai:i west margin for the following three c3,- ses, scu=h 240:7142" west, 225.34 feet; thence south 24017'47, ' west, ...33. C2 feet; tierce south 47004,441, west, 522.34 feet; :hence rcrth 76°S7'20" west, 57.15 feet; thence north 5a°18 42' west, _ 2.62 feet; thence ncrth 28057'B311 east, 788.87 feet, thence so =h 89023'54" east, 376.49 feet to the po..rt of begjnn+ ne.