HomeMy WebLinkAboutAuburn Properties & King County
. i4- 3 14B
RIGHT-OF-ENTRY AND CONSTRUCTION AGREEMEIdT
Reference # (if applicable): N/A
Grantor: Auburn Properties, Inc.
Grantee/Assignee/Beneficiary King County
Legal Descriptions/STR: SW 31-22-05
Assessor's Tax Parcel ID#: 9360600305
9360600330
PROJECT: Flood Protection Measures
In consideration and subject to the terms contained herein, Auburn Properties, Inc., a
Washingfon corporation (Grantor) hereby grants to King County, a political subdivision of the
State of Washington (Grantee), and Grantee's contractors, employees, agents, successors and
assigns, the right to enter upon certain portion of that land, identified as APN 9360600305 and
9360600330 (Property), as further set forth below for the purposes of constructing and
retaining a temporary earth berm and/or placing flood fighting materials (collectively, the Flood
Protection Measures) and for storing materials as required for the construction of such
temporary earth berm. Grantee's. construction of the Flood Protection Measures, and the
activities related thereto, shaU be referred to herein as the "Project."
SPECIAL STIPULATIONS
1. Subject to the terms contained herein, Grantor hereby agrees to permit Grantee the
non-exclusive right of entry (including the right of ingress and egress) to such portion of
the Property that comprises an approximately 100 feet wide swath of land from and
along the eastem and northem boundaries of the Property (Project Area) solely for the
purposes of (a) conducting any necessary non-invasive inspection of the Property in
connection with the Project, and (b) constructing and installing the Flood Protection
Measures and to temporarily store materials as required for such construction and
installation, proyided that the right to store construction materials in the Project Area
shall expire upon completion of the construction. The Construction Area is illustrated on
Exhibit B attached hereto and incorporated herein.
2. Grantee hereby acknowledges and agrees that the Flood Protection Measures shall be
substantially in the form described in Exhibit A attached hereto and incorporated herein.
Wifhout limiting the generality of the foregoing, the Flood Protection Measures shall (a)
be wholly located within the portion of the Project Area that is approximately. 20 feet from and along the eastem and northern boundaries of ' the Property, except where
indicated, on Exhibit B, (b) be approximately 10 feet or less in its width across at its base,
(c) be approximately 12 feet or less in its height over the existing grade of the Property,
Right-Of-Entry And Construction Agreement
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and (d) require invasive penetration of the existing fence along the boundaries of the
Property only where indicated in Exhibit B. Grantee agrees to notify Grantor as soon as
practicable of any of the measurement specifications for the Project Area or the Flood
Profection Measures in Sections 1 or 2 that require modifications. Grantor reserves the
right to file a written protest of such modifications, which protest shall include the
specific reasons for the protest.
3. At its sole cost and expense, Grantee shall construct the Project (a) in a good, safe and
workmanlike manner, (b) in a manner that will not harm or damage the Property, and (c)
in a manner that does not materially or unreasonably interfere with the use or operation
of the Property by Grantor or any other tenant/licensee of Grantor; provided, that the
foregoing shall not be construed to require that the Project or the Flood Protection
Measures prevent or reduce flooding in the Property.
4. Grantee shall construct the Project at its sole cost and, during such construction,
maintain the Project Area in a clean and safe condition. Upon completion of
construction, Grantee shall promptly .remove any and all debris, rubbish or combustible
material from the Project Area arising from Grantee's activities or othecwise in-
connection with the Project and/or the Flood Protection Measures. Such responsibility of
Grantee shall include, without limitation, clean up of any toxic or hazardous subsfances
deposited on the Property by Grantee or Grantee's contractors, agents, employees,
invitees and guests. The parties agree that the foregoing obligations shall not be
construed to require an on-going obligation by Grantee to maintain the Project Area
after the construction of the Project.
5. Grantee, its agents and assigns, will promptly and regularly notify Grantor of its
construction schedule and progress of the Project and manage and conduct the
construction activity so as to avoid any adverse impact to the Property or to Grantor's
rights thereta Grantee agrees that it shall be responsible for remedying any damage to
the Property that occurs during the installation and completion of installation of the Flood
Protection Measures. Without limiting the generality. of the foregoing, Grantee shall
promptly remove, or require, its contractors and subcontractors to promptly cure and
release, any liens, encumbrances, additional tax assessments or other similar claims .
against the Property or against Grantor's rights thereto in connection with, or as a result
of, the Project.
6. Grantor authorizes and appoints Grantee as its revocable agent and attorney-in-fact to
make application for any and all permits directly required to complete the Project;
_ provided, that Grantee shall notify Grantor in writing no less than five (5) days prior to
the submission of any such application on behalf of Grantor and shall not submit any application in the event of Grantor's reasonable objections to such application. 7: Grantee hereby represents and acknowledges that Grantee is solely responsible for the
Project and its costs.
8. Grantee's access and use of the Project Area is absolutely conditioned upon the Grantee's continued and timely satisfaction of its obligations hereunder: Grantee agrees that, in addition to any other remedies granted to Grantor under equity and law, Granfor
specifically reserves the right to submit a claim for loss of use of Property (or.any portion
thereofl based on any modification- to the proposed measurement specifications in .
Section 1 or 2 for which Grantor fled a written profest under this Agreement.
Right-Of-Entry And Construction Agreement
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9. To the full extent permitted by law, Grantee, on behalf of itself and its contractors,
employees, agents, successors and assigns, agrees to use and occupy the Project Area
at its own risk and hereby releases Grantor, officers, directors, shareholders,
representatives, agents and employees, from all claims for any damage or injury
brought by Grantee, its contractors, agents or employees, successors, assigns or
invitees.
10. Any waiver by Grantor of strict compliance with any provisions of this Right-of-Entry and
Construction Agreement shall not be deemed a waiver of any other provisions not so
waived or of Grantor's right to insist on strict compliance thereafter. The provisions of
this: Right-of- Entry and Construction Agreemenf areseverable, and, in the event any
provision or a part hereof is held to be unenforceable, the remaining provisions and
parts thereof shall continue in full force and effect;
11. This Right-of- Entry and Construction Agreement constitutes the entire agreement
between Grantor and Grantee relating fo the Project. Any and all prior representations;
understandings or agreements, written or oral, relating thereto are superseded and
govemed by the terms hereof.
12: Grantee's obligations, under the provisions of this Right-of- Entry and Construction
Agreement shall survive the expiration or termination of this Right-of- Enfry and
Construction Agreement.
13. This Right-of- Entry and: Construction Agreement shall be construed in accordance with
the laws of the State of Washington, without: respect to any choice of-law or conflict of'
law rules and provisions in such state. This Right-of- Entry and Construction Agreement
shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns.
14. Notwithstanding the language or construction of any, provisions of this Right-of-Ent.ry.
and Consfruction Agreement otherwise, Grantor does not consent to any implied
dedication or taking under this Agreement for any portion of#he Property.
15. Granfee agrees to report to Grantor the status of the Project as needed, but not less
than frequently than at the beginning and at_ the end of construction of the Flood
Protection Measures.
16. Grantee hereby represents and acknowledges that Grantee is solely responsible for the
Project and its cosfs. To the full extent permitted by law, Grantee further agrees :to
indemnify, defend (with counsel reasonably acceptable to Grantor), protect and hold -
harmless (collectively, the Indemnification Obligation) Grantor and its officecs, directors,
shareholders, representatives, agents and employees from any and alf damages,
losses, expenses, liability to, or claim of (collectively, the Claims) any person of entity: which may result directly or indirectly in connection with the construction and removal of
the Flood Protection Measures or Grantee's breach of its obligations underthis Right-of-
Entry and 'Construction Agreement except for any and all damages caased by the sole -
negligence of the Grantor. Nofinrithstanding any statements #o the contrary, the parties
agree that Grantee's Indemnification Obligation excludes any Claims (or portions,
thereofl to the extent such Claims (or portions thereofl arise ouf of damages or injuries
occurring on the Property from any flood related occurences or any rise in water ievel
adjacent to the Property.
Right-0f-Entry And Construction Agreement
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17. Grantee has previously issued that certain Proclamation dated September 10, 2009 (the
Proclamation) to declare an emergency relative to the Howard Hanson Dam flooding
threat pursuant to King County Code Chapter 12.52 and is undertaking the Project .
pursuant to such Proclamation and its police powers related to such flooding threat;
Grantee has requested that Grantor enter into this Right of Entry and Construction
Agreement in order to carry out the Project pursuant to the Proclamation and has
commenced the construction of the Project in order to timely mitigate against the
flooding threat.
18. Grantee is hereby given the right; but not the obligation, to maintain the.Flood Protection
Measures at`the Project Area, through use of its own staff or through a contractor of its
choosing, for a period of fve years from the date hereof or when the U.S. Army Corps:of
Engineers determines that the Howard Hanson Dam has been. restored to its original
design capacity; whichever occurs first. Upo❑ such expiration, . Grantee agrees to
promptly notify Grantor and to cause the Flood Protection Measure"s to be removed and
to restore the Property and the improvemenfs the'reon to its condition previous fo the
placement of the Flood Protection Measures and related materials at the Project Area.
The foregoing obligations ofi Grantee shall not include restoration or mitigation of any damage caused solely by flooding or by other activities or events unrelated to the
Project or the Flood Profection Measures.
Dated this ~ day of of ,20ol.
GRANTOR: - GRANTEE:
AUBURN PROPERTIES, INC., KING COUNTY, a political subdivision of
a Washington corporation the State of Washington
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By: &'16aZ
Sa
perstei , Assistan ecretary Na ! frvG-4r?. kiarIV>
Notice: Aubum Properties, Inc. Notice: Mark Isaacson
120 N. Robertson Boulevard, 3`d Floor Director, Water and Land
Los Angeles, CA 90048 Resources Division .
Attention: John Manavian 201 South Jackson St. Ste. 600
Fax; (310) 652-8538 Seattle, Washington, 98104-3855 Phone: (310) 855-8484 Fax: (206) 296-0192
Phone: (206) 296-6587
Right-0f-Entry And Construction Agreement
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Exhibit A
Flood Protection Measures Desian
Right-Of-Entry . And Construction Agreement
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Right-Of Entry And Construction Agreement
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