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HomeMy WebLinkAbout20090203000923 RECIPROCAL ACCESS AND STORMWATER EASEMENT t ' y Return Address: City of Auburn City Clerk 25 West Main Auburn, WA 98001 20090203000923 PACIFIC NW TIT EAS 96.00 PAGE001 OF 013 02/03/2008 11:44 KING COUNTY, WA Above this line reserved for recording information. RECIPROCAL ACCESS AND STORMWATER EASEMENT AND MAINTENANCE AGREEMENT 'PR,~IFICNAR i HA'E6i~ GRA07-0011 Reference # (if applicable): N/A GrantorBorrower: Hebert B Street, LLC Grantee 1/Assignee: Harris Real Estate Seattle Grantee 2/Assignee: HJR, LLC Beneficiary: City of Auburn Legal Description/STR: S01-T21N-R04E Assessor's Taac Parcel ID#: 158060-0230, -0236, and -0242 THIS AGREEMENT, made and entered into this -~1 ST day of_-,.aou, , 2009, by and between HEBERT B STREET, LLC, owner of Parcel 1 and its heirs, successors a(nd assigns, and HARRIS REAL ESTATE SEATTLE, owner of Parcel 2 and its heirs, successors and assigns, and HJR, LLC, owner of Parcel 3 and its heirs, successors and assigns. Hereinafter referred to as the Owner 1, Owner 2 and Owner 3 respectively. RECITALS A. Owner 1 is the owner of real property located in King County, Washington, which is described more particularly in Exhibit 1 hereto, hereinafter referred to as Parcel L B. Owner 2 is the owner of real property adjacent to the Parcel 1 which is described more particularly in Exhibit 2 hereto, hereinafter referred to as Parcel2, and Owner 3 is the owner of real property adjacent to the Parcel 1 which is described more particularly in Exhibit 3 hereto, hereinafter referred to as Parcel 3. Parcel 1, Parcel2 and Parcel3 are referred to collectively as the "Entire Property." EXCiSE TAX NOT REQUi; ;'~':-D Krng Cc:. P-o;;prds C3ivisi: rt Reciprocal Access and Stormwater Agreement J ~~u.,y Page i of 13 j~' Xj~dG-~ 3-1 Yl~ L Ar?1.SSt C. The parties which to grant each other certain easements affecting portions of Parcel 1, Parcel2 and Parcel3 and wish to reflect those easements in writing. NOW, THEREFORE, the parties covenant and agree as follows: 1. STORMWATER EASEMENTS (a) Owner 1 grants to Owner 2 and Owner 3 and their successors and assigns in title or interest to all or any portion of Parcel 2 and Parcel 3 an easement to connect to and use the stormwater piping which is constructed under Parcel 1 and the right to discharge stormwater from the stormwater pipes located under Parcel 2 and Parcel 3 through the stormwater pipes located under Parcel 1 into the stormwater detention pond (the "Pond") constructed on Parcel 1. 2. RECIPROCAL EASEMENTS (a) Owner 1 hereby grants to Owner 2 and Owner 3 and their successors and assigns in title or interest to all or any portion of Parcel 2 and Parcel 3 a non-exclusive easement for vehicular and pedestrian ingress, egress and access to and from the storm facility and storm conveyance lines over and upon the paved entryway portion Parcel 1 which lies immediately adjacent to Parcel 2 and Parcel 3, other than that portion thereof designated for parking (the "Owner 1 Parcel Access Easement Area"). (b) Owner 2 hereby grants to Owner 1 and its successors and assigns in title or interest to all or any portion of Parcel 1 a non-exclusive easement for vehicular and pedestrian ingress, egress and access to and from the storm facility and storm conveyance lines over and upon the paved entryway portion Parcel 2 which lies immediately adjacent to Parcel 1, other than that portion thereof designated for parking (the "Owner 2 Parcel Access Easement Area"). (c) Owner 3 hereby grants to Owner 1 and its successors and assigns in title or interest to all or any portion of Parcel 1 a non-exclusive easement for vehicular and pedestrian ingress, egress and access to and from the storm facility and storm conveyance lines over and upon the paved entryway portion Parcel 3 which lies immediately adjacent to Parcel 1, other than that portion thereof designated for parking (the "Owner 3 Parcel Access Easement Area"). (d) The provisions hereof are binding upon and run with the parcels identified herein. The easements granted hereby are granted for the use of the parties hereto (as long as they hold an interest in any portion of the Entire Property) and their respective successors, assigns, and the tenants, employees, agents, contractors, subtenants, licensees, . concessionaires, customers and business invitees of each of them. 3. MAINTENANCE (a) Owner 1, Owner 2 and Owner 3 shall each be solely responsible for maintaining the Access Easement Area on its parcel in good order, repair and condition and in accordance with the requirements of applicable law, including replacing the pavement thereon when needed, at its sole cost and expense. Reciprocal Access and Stormwater Agreement Page 2 of 13 (b) Owner 1 shall maintain the Pond and the stormwater piping on the Entire Property that connects to the Pond in good order, repair and condition and in accordance with the requirements of applicable law, including replacement when needed. Owner 2 and Owner 3 shall reimburse Owner 1 for thirty-three and 1/3 percent (33.3%) each of the cost incurred by Owner 1 in maintaining, repairing and replacing the Pond and piping, together with a fee equal to ten percent (10%) thereof, within ten (10) days after Owner 2's and Owner 3's receipt of each invoice therefor reflecting the expenditure and Owner 2's and Owners 3's share thereof. Any amount not paid when due shall bear interest at the rate of twelve percent (12%) per annum from the due date therefor. 4. LIMITATION AND COVENANT (a) Owner 1, Owner 2 and Owner 3 each represent, warrant and covenant that at no time will any stormwater discharge from its parcel into the Pond contain any Hazardous Material, as defined in paragraph 4(b), in violation of applicable law. (b) "Hazardous Material" shall mean any matter (whether gaseous, liquid or solid) which is or may be harmful to persons or property, including but not limited to materials now or hereafter designated as hazardous or toxic waste or substance under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC 9601, et seq., or as a Hazardous Substance, Hazardous Household Substance, Moderate Risk Waste or Hazardous Waste under the Hazardous Waste Management Act, RCW Chapter 70.105, or as a hazardous substa.nce under the Model Toxics Control Act, RCW Chapter 70.105D, all as now or hereafter amended, or which may now or hereafter be regulated under any other federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environment, including, without limitation, (i) any asbestos and/or asbestos containing materials (collectively "ACM's") regardless of whether such ACM's are in a friable or non-friable state, or (ii) any matter designated as a hazardous substance pursuant to Section 311 of the Federal Water Pollution Control Act (33 USC 1317), or (iii) any matter defined as hazardous waste pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act (42 USC 6901 et seq.), pertaining to health or the environment. 5. INDEMNITY, INSURANCE. The owner or owners of each parcel shall indemnify and defend the owner or owners of the other parcel against, and hold the other harmless from and against, all claims, demands, liabilities, costs and expenses (including reasonable attorneys' fees) suffered by or claimed against the others as the result of or caused by a claim asserted by any third party for damage or injury suffered on the indemnifying party's Parcel Access Easement Area or from the breach of the indemnifying party's obligations under this Agreement, to the extent that any such claim or demand is not due to the negligence or misconduct attributable to the owner(s) of the other parcel. When a claim or demand results from negligence or misconduct attributable to the owners of both parcels, each party will be responsible for the claim or demand in proportion to its allocable share of such joint negligence or misconduct. Each party shall carry commercial general liability insurance on its parcel with combined minimum limits of not less than Two Million Dollars ($2,000,0000) per occurrence for property damage and bodily injury. Such policy shall name the owners of the other parcel as additional insured and shall not be cancelable without at least ten (10) days' prior written notice to the other parcel owners. Reciprocal Access and Stormwater Agreement Page 3 of 13 6. LIMITATION. Nothing contained in this document shall limit the rights of Owner 1 or Owner 2 or Owner 3 to construct, reconstruct, alter, remove or relocate buildings, improvements, landscaping or other features on the non-Access Easement Areas of its parcel. 7. SUCCESSORS AND ASSIGNS. The term "successors and assigns in the title or interest" to Parcel 1, Parcel 2 or Parcel 3 include, but is not limited to, mortgages, beneficiaries of deeds of trust, secured parties under security agreements, and any purchaser upon the foreclosure of any such security interest or in lieu thereof. The term also includes contract purchasers, optionees and trustees. 8. EMINENT DOMAIN. Nothing herein shall be construed to give a party any interest in any award or payment made to another party in connection with any exercise of eminent domain or transfer in lieu thereof affecting another party's parcel or to give the public or any government any rights in the Entire Property or a parcel. In the event of any exercise of eminent domain or transfer in lieu thereof or any part of the Access Easement Areas of either Parcel 1, Parcel 2 or Parcel 3, the award attributable to the land and improvements of such portion of the Easement Areas shall be payable only to the owner in fee thereof and no claim thereon shall be made by the owners of any other portions of the Access Easement Areas. 9. AMENDMENT. This Agreement may be modified, amended or cancelled only by written agreement of all owners of Parcel 1, Parcet 2 or Parcel 3. As used herein, the term "record owner" shall include contract purchases. 10. LITIGATION. If any lawsuit, arbitration or dispute arises in connection with this Agreement, the substantially prevailing party therein shall be entitled to recover from the other party the substantially prevailing party's costs and expenses, including reasonable attorney's fees, incurred in connection therewith, in preparation therefore and on appeal therefrom, including those incurred in a bankruptcy proceeding, which amounts shall be included in any judgment entered therein. 11. DEFAULT. If the owner of any parcel shall default in the full, faithful and punctual performance of any obligation required hereunder, and if at the end of thirty (30) days after written notice from any other of a parcel or the party to whom its authority has been delegated, stating with particularity the nature and extent of such default, the defaulting owner has failed to cure such default, and if a diligent effort is not then being made to cure such default, then any other owner of a parcel or the party to whom its authority has been delegated shall, in addition to all other remedies it may have at law or in equity, have the right to perform such obligation of this agreement on behalf of such defaulting owner and recover the cost thereof, together with interest at the rate of twelve percent (12%) per annum. Any such claim for reimbursement, together with interest as aforesaid, shall be a secured right and a lien shall attach and take upon recordation of a lien claim by the claimant with the King County Recorder's Office. The claim of lien shall include the following: (1) the name of the claimant, (2) a statement concerning the basis of the claim of the lien, (3) the last known name and address of the owner or reputed owner of the parcel against which the lien is claimed, (4) a description of the parcel against which the lien is claimed; (5) a description of the work performed or payment made which has given rise to the claim of lien hereunder and a Reciprocal Access and Stormwater Agreement Page 4 of 13 statement itemizing the amount thereof, and (6) a statement that the lien is claimed pursuant to the provision of this Agreement. The notice shall be duly verified, acknowledged and contain a certificate that a copy thereof has been served upon or mailed to the party against whom the lien is claimed, either by personal service or by mailing (first class, certified, return receipt requested) at the address for mailing of tax statements with respect to the property against which the lien is claimed. A party which files a lien shall be obligated to release the lien if the owner of the parcel posts a bond in an amount sufficient to release the lien as a matter of record. The lien so claimed shall attach from the date of recordation solely in the amount claimed thereby on it may be enforced in any manner allowed by law for the foreclosure of liens. Notwithstanding the foregoing, such liens shall be subordinate to any mortgage or deed of trust given in good faith and for the value now or hereafter encumbering the property subjected to the lien which is recorded prior to the date of such lien, and any purchaser at any foreclosure or trustee's sale (as well as any grantee by deed in lieu of foreclosure or trustee's sale) under any first mortgage or deed of trust shall take free and clear from any such then existing lien, but otherwise be subject to the provisions of this Agreement. The failure of the owner or owners of a parcel to insist in any one or more cases upon the strict performance of any of the promises, covenants, conditions, restrictions or agreements herein, shall not be construed as a waiver or relinquishment for the future breach of the provisions hereof. 12. RIGHTS AND OBLIGATIONS OF LENDER. The charges and burdens of this Agreement are, and shall at all times be, prior and therefore superior to the lien or charge of any mortgage or deed of trust hereafter made in good faith and for value affecting Parcel 1, Parcel2 and Parcel 3 or any part thereof, or any improvements now or hereafter placed thereon, but are subordinate to the security interests of record on the date hereof. A breach of any of the easements, covenants or restrictions hereof shall not defeat or render invalid the lien or charge of any mortgage or deed of trust. The superiority of this Agreement shall be limited to the extent that title to any property acquired through sale under foreclosure of any mortgage or deed of trust affected by power of sale, judicial proceedings, or otherwise, shall be subject to all the charges and burdens affecting the parcels by virtue of this Agreement. 13. RELEASE FROM LIABILITY. Any person acquiring fee or leasehold title to Parcel 1, Parcel2 or Parcel3 or any portion thereof shall be bound by this Agreement only as to the parcel or portion of the parcel acquired by such persons. Such person shall be bound by this Agreement only during the period such person is the fee or leasehold owner of such parcel or portion of the parcel, except as to obligations, liabilities or responsibilities that accrue during said period. Although persons may be released under this paragraph, the easements, covenants and restrictions of this Agreement shall continue to be benefits and servitudes upon the parcel and ruruling with the land. This Agreement shall bind and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns. 14. NOT A PUBLIC DEDICATION. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the parcels to the general public or for the general public or for any public purposes whatsoever, it being the intention of the parties hereto that this Agreement shall be strictly limited to and for the purposes herein expressed. The right of the public or any person to make any use whatsoever of the Access Easement Areas of the parcels herein affected, or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission, and subject to the control of the owner. Notwithstanding any Reciprocal Access and Stormwater Agreement Page 5 of 13 other provisions herein to the contrary, the owners of the parcels may periodically restrict ingress and egress in order to prevent a prescriptive easement from arising by reason of continued public use. Any restriction on ingress and egress shall be limited to the period reasonably necessary to prevent the creation of a prescriptive easement and, to the extent reasonably practical, shall occur at such time as to have a minimum effect on the parties hereto. 15. NOTICES. All notices provided for herein may be delivered in person, sent by regular overnight courier service or mailed in the United States mail, registered or certified, with postage prepaid and, if mailed, shall be considered delivered three (3) business days after deposit in such mail. The addresses to be used in connection with such correspondence and notices are the following, or such other addresses as a party shall from time to time direct: Owner L• Hebert B Street, LLC Address: 2020 ` A" Street S.E. Auburn, WA 98002 Owner 2: Harris Real Estate Seattle Address: 401 Alexander Ave., Building 326 Tacoma, WA 98421 Owner 3: HJR, LLC Address: 2020 ` A" Street S.E. Auburn, WA 98002 16. DEDICATION. Owner 1 shall have the right at any time hereafter to convey and dedicate the Pond to the City of Auburn or any other governmental entity, at which time its obligations hereunder as to the Pond shall terminate. 17. MISCELLANEOUS (a) HeadinQS. The headings in this Agreement are for convenience only and do not in any way limit or affect the terms and provisions hereof. (b) Unenforceabilitv. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the remainder of such provision or any other provisions hereof. (c) Gender. Wherever appropriate in this Agreement, the singular shall be deemed to refer to the plural and the plural to the singular and pronouns of certain genders shall be deemed to include either or both of the other genders. (d) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. (e) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but which when taken together shall constitute one and the same instrument. Reciprocal Access and Stormwater Agreement Page 6 of 13 (f) Binding on Successors in Interest. The easements and agreement provided for herein are binding on the heirs, assigns and successors in interest of the parties hereto. 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements, oral or written, express or implied, and all negotiations or discussions of the parties, whether oral or written, and there are no warranties, representations or agreements among the parties in connection with the subject matter hereof except as set forth herein. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. GRANTOR: GRANT E: HEBERT B STREET LLC HARRI S TFAEAT By: By: Name: Name: S~o D A*UO - Title: Title: ~J Mt~.~..q,~.✓` Date: Date: -J-IoJ GRANTEE: HJR. LLC BY: Name: '~~thr- Title: IAt/%,c i,,,, Date: 3°\,.,. 9r\ , 1.U p~ Reciprocal Access and Stormwater Agreement Page 7 of 13 Mark which notary is required: Corporate Individual LLC X Partnership Reciprocal Access and Stormwater Agreement Page 8 of 13 . STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) THIS IS TO CERTIFY that on this ~day of , 2009, before me, the undersigned, a~Otary public in and for the State of Washington, duly commissio ed and sworn, personally appeared ~ y ~t' , to me known to be the manager member that executed the foregomg~rument and acknowledged the said instrument to be their free and voluntary act and deed: far the uses and purposes therein mentioned. WITNESS my hand c~ flf~f}cial seal the day and year of the certificate first above written. \ ~~6 M i4F. O r Print Name) ~ z so i NOTARY ~ " PUBUC ~ ; cP~ otary Public in and for the State of ashington re iding at •'4% NyA$% My ap intment expires: STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) THIS IS TO CERTIFY that on this Nay of n 2009, before me, the undersigned, ~a public in and for t e State f Washington, duly commissio ed and sworn, personally appeared ~/At3V~ , to me known to be the manager member that executed the foregoing instrTi►ment and acknowledged the said instrument to be their free and voluntary act and deed: for the uses and purposes therein mentioned. WIT'NESS my ha~" pf~'bial seal the day and year of the certificate first above written. % N, MCG~eB c ~ Q~~a~°~ Oy ~ ; (Print Name) _ ; ° NpTAAY : ` r ~ NPUBUC' = Q~ otary Public in and for the State of t : ..Z ~ 5 2o~~.•j C 7 Washin g ton re idin g at 11 1 , ~ O•..... ~Q ~y~ /-P_ r1 ~y~_i b.%,h ~.ou ~ ~ e 0s0f,~NPMy apijomtment expires:)./~,1 Reciproca] Access and Stormwater Agreement Page 9 of 13 STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) THIS IS TO CERTIFY that on this -~-Nlay of \ Y1 n 1 a n , 2009, before me, the undersigned, a no public in~ d for th State of Washington, duly commissio ed and sworn, personally appeared r"'Pl 14 bp e-, , to me known to be the manager member that executed the foregoing instrument and acknowledged the said instrument to be their free and voluntary act and deed: for the uses and purposes therein mentioned. WITNESS my hand and official seal the day and year of the certificate first above written. %~,,MC~~~~~~~ ~~1~pL• e! {~~c/ti.. • (Pnnt Nam ~ TAAY ~ - rJ0 C = Z~ Notary Public m and for the State of pUgLl Washin ton idin at , ~al~~y ~ %~91,~'•.?-; s;?°;.•'~t1~`My appomtment expireso).(S: Reciprocal Access and Stormwater Agreement Page 10 of 13 EXHIBIT 1 LEGAL DESCRIPTION: LOT 1 OF CITY OF AUBURN LOT L1NE ADNSTMENT NO. LLA-01-0018 RECORDED UNDER NO. 200109100018741N K1NG COLINTY. Reciprocal Access and Stormwater Agreement Page 11 of 13 EXHIBIT 2 LEGAL DESCRIPTION: LOT 1 OF CITY OF AUBURN SHORT PLAT NO. SPL-03-0001 RECORDED LTNDER NO. 20030910001929 IN KING COLTNTY. Reciprocal Access and Stormwater Agreement Page 12 of 13 EXHIBIT 3 LEGAL DESCRIPTION: PARCEL A OF CITY OF AUBURN LOT LINE ADJUSTMENT NO. BLA-07-0006 RECORDED LJNDER NO. 20070803900002 IN KING COLTNTY. Reciprocal Access and Stormwater Agreement Page 13 of 13