HomeMy WebLinkAbout2008 - Possession and Use Agreement - Lily Pointe Investments - 20081103000918 (Revised) 20081103000918
CITY OF TUKWIL AG 54.00
PAGE001 OF 013
11/03/2008 12:12
KING COUNTY, WA
DOCUMENT RECORDING
COVER SHEET
Return Address:
CITY OF TUKWILA
Office of the City Clerk
6200 Southcenter Blvd.
Tukwila, WA 98188
(206) 433 -1800
Document Title: Possession and Use Aqreement Revised
Parties: City of Tukwila, WA
6200 Southcenter Boulevard
Tukwila, WA 98188
Lily Pointe Investments, LLC
C/O Carol -Ann O'Mack
4128 W Ames Lake Dr NE
Redmond WA 98503
Legal Description: NW1 /4, 36 -23 -04
Assessor's Property Tax Parcel /Account Number(s): 362304- 9087 -04
Notes: This document supersedes the previously recorded
Possession and Use Document recorded under King County
records number 20080604000331.
PL 84 -99 Tukwila 205
Levee Rehabilitation
PROJECT
POSSESSION AND USE AGREEMENT REVISED
08 (c6
Tax Accounts 362304 9087 -04
TRACT OR OTHER PROPERTY IDENTIFICATION
This Agreement is entered into by and between The City of Tukwila, a municipal corporation of the State
of Washington (the "City and Lily Pointe Investments, LLC, a Washington Limited Liability Company
(the "Owner This document supersedes the previously recorded Possession and Use Document
recorded under King County records number 20080604000331.
RECITALS
A. The document attached as Attachment 1 to this Possession and Use Agreement contains certain
easements rights (the "Easements that are necessary for repairs and improvements to the Tukwila 205
Federally Certified Levee under the guidelines for the U.S. Army Corps of Engineers PL 84 -99 Levee
Rehabilitation Effort along the Left Bank of the Green River (The "Project Delay in acquisition and
construction of the Project is contrary to the public interest.
B. Owner is the owner of that certain real property (the "Property") commonly known as 6801 S. 180th
Street, Tukwila, Washington, and more particularly described on Attachment 2.
C. Owner and City acknowledge that this Agreement is being entered into under threat of condemnation
and shall be subject to just compensation by the City (in an amount that will be determined upon a
mutually acceptable settlement or trial) in order to compensate Owner for the Easements. Nothing herein
shall be construed as a waiver of the Owner's right to object to any further use or occupancy of any other
portion of the property that the City may require in the future
D. The Owner wishes additional time to resolve any questions it may have concerning the Easements,
including the issue of just compensation.
AGREEMENT
1. For and in consideration of payment by the City to the Owner for the Easements, m an amount to
be negotiated by the parties or determined at trial, the Owner grants to City possession and use of
those portions of the Property subject to the Easements (the "Easement Area for Project
purposes.
2. The parties agree that the Easement Area is necessary for a public use of the City. If the parties
cannot agree as to the amount of just compensation due the Owner and the City institutes
condemnation proceedings, the Owner will not object to the City's entry of an Order Adjudicating
Public Use and Necessity, as provided in RCW 8.12.090.
3. The parties agree that if condemnation proceedings are instituted by the City, this Agreement
shall be deemed to satisfy the requirements of a stipulated Order of Immediate Use and
Possession. This Agreement shall continue in effect until said proceedings have terminated and
the Easement Area is finally acquired by the City.
4. The parties agree that the "Date of Possession" and the "Date of Valuation" for the Easement
Area shall be May 19, 2008. The City agrees that upon final valuation of Easement Area,
whether by mutual agreement or by trial, the City shall pay to Owner the amount determined plus
twelve percent (12 interest per annum as accrued from the Date of Possession through the date
of final payment. The parties agree to use commercially reasonable efforts to negotiate a
mutually acceptable settlement on valuation of the Easement Area as soon as possible after the
Date of Possession; however, should the parties fail to reach a mutually acceptable settlement
within six (6) months of the Date of Possession, the parties shall proceed to trial.
Page 1 of 13 0
5. Nothing in this Agreement shall be deemed to waive any right either party may have to a
subsequent adjudication of just compensation pursuant to state law. Neither this Agreement nor
the basis for the payment made pursuant to this Agreement shall be construed as evidence of or
an admission of fair market value or just compensation by either party to the Agreement.
6. If condemnation proceedings are instituted, any payment of costs and attorneys fees shall be
governed by the provisions of RCW 8.25.070 and 8.25.075.
7. If in the use of the Easement Area the City, the King County Flood Control Zone District (the
"County") or the Army Corps of Engineers (the "Corps or any of their employees or agents
damage any portion of the Property (including, but not limited to, the Easement Area), the City
shall be solely responsible for ensuring that the Property is repaired, replaced and restored.
Additionally, other than in the event of Owner's gross negligence, the City shall indemnify,
defend and hold Owner, its successors and assigns harmless from and against all claims, damages
(to property, improvements or otherwise), injury to persons, expense, loss, liability, causes of
action or suit of any kind, including attorneys' fees and court costs, arising from or related to the
rights granted to the City herein or the possession and use of the Easement Area by the County or
the Corps. The obligations contained in this Section 7 shall survive the granting of the
Easements, whether the Easements are granted by Attachment 1 or by condemnation action.
8. This Agreement, including its attachments, is the complete expression of the terms hereto and any
other representations, whether oral or in writing not incorporated in this Agreement are excluded.
Time is of the essence of the performance of the provisions of this Agreement. Waiver of any
default shall not be deemed to be a waiver of any other or subsequent default.
Dated: /C t/ /O
i
OWNER: Lily o ite Inves ents, Washingt on ited Liability Company
BY 1 Cam Name: c::OL— ,4-ec.1, C'//Lt file
i14 -Attl d4&- Q
CITY:
Title:
The City of Tukwila, a municipal corporation of the State of Washington.
BY f:21.)
�►'ame
Tit
Page 2 of 12
STATE OF WASHINGTON
COUNTY OF KING
On this ay of C 2008, before me, the undersigned, a Notary Public in and for
the State of Washington, commissioned and sworn, personally appeared
ck c_9 0 ./t0_&) to me known to be the person who signed as
►r(\ Cti v1 a of the City of Tukwila, a municipal corporation of the State of
Washington, that ex ce uted the within and foregoing instrument, and acknowledged said instrument to be
the free and volun act and deed of said corporation for the uses and purposes therein mentioned, and
on oath stated that R was duly elected, qualified and acting as said officer of the corporation, that
Q-- was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal
of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above
written. I
-`a IN( M. it
Print Name: C�i�f ■,s� ft'1 0 141 r y 4
Notary Public i d for tlye State of Washington, s o
resi at ul rr\nI G11i.t�
My commission expires: 5 "1 -I n1 d8 12
i G O wap
441 WAS1 ti
STATE OF WASHINGTON
On this IN day of
COUNTY OF KING
V U
ss.
ss
2008, before me, the undersigned, a Notary Public in and for
thc tate of Washington, duly commissioned and sworn, personally appeared
A'1'lI1 Q Mates_ to me known to be the person who signed as
of Lily Pointe Investments LLC, a Washington limited liability company that executed
the within and foregoing instrument, and acknowledged 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 /she was duly elected, qualified and acting as said officer of the Limited Liability Company,
and that he /she was authorized to execute said instrument on behalf of the Limited Liability Company.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above
writt en.
Print Name: L ri Jg thazina t�
Notary Public and for tie State of Washington,
residing at (ILV (1Q. 7 1
My commission expires: aco 9
Page 3 of 12
Recording Requested By And Exhibit A -3
When Recorded Mail To: Reference City Ordinance No. 2200
The City of Tukwila
Department of Public Works
6300 Southcenter Blvd, Suite 100
Tukwila, Washington 98188
Attn: Ryan Larson
ATTACHMENT 1
EASEMENT
Grantor: Lily Pointe Investments, LLC, a Washington Limited Liability Company
Grantee(s): The City of Tukwila, a municipal corporation of the State of Washington, and
The King County Flood Control Zone District, a quasi municipal corporation of
the State of Washington
Legal Description (abbreviated): Ptn. NW1 /4, 36 -23 -04
Additional legal description on page 8, hereinafter called Exhibit A.
Assessor's Tax Parcel: 362304- 9087 -04
Project: Tukwila -205 Levee
THIS AGREEMENT made this day of 2008, by and between Lily Pointe
Investments, LLC, a Washington Limited Liability Company, hereinafter called the Grantor, and
The City of Tukwila, a municipal corporation of the State of Washington, and The King County
Flood Control Zone District, a quasi municipal corporation of the State of Washington,
hereinafter collectively called the "Grantees
Grantor, in consideration of mutual benefits and other valuable consideration, the receipt
and adequacy of which is hereby acknowledged, hereby grants and conveys to the
Grantee(s), their successors and assigns, agents and licensees certain easements as
described below (the "Easements for the purposes set forth herein, under, over and upon
those limited portions of the Property described in Exhibit A which are more particularly
described in Exhibits B, C, and D attached hereto, and by this reference made a part
hereof, situated in King County, Washington:
1. Flood Protection Levee Easement. A perpetual and assignable right and
easement in, on, over and across the land described in Exhibit B to construct, maintain,
repair, operate, patrol and replace a flood protection levee, including all appurtenances
thereto; reserving, however, to the owners, their heirs and assigns, all such rights and
privileges as may be used without interfering with or abridging the rights and easement
hereby acquired.
2. Perpetual Road Easement. A perpetual and assignable easement and right -of -way
in, on, over, and across the land described in Exhibit C for the location, construction,
operation, maintenance, alteration and replacement of a levee access road and
appurtenances thereto; together with the right to trim, cut, fell, and remove therefrom all
trees, underbrush, obstructions and other vegetation, structures, or obstacles within the
limits of the levee access road right -of -way; reserving however, to the owners, their heirs
and assigns, the rights to cross over or under the easement and right -of -way for access to
their adjoining land; subject however, to existing easements for public roads and
highways, public utilities, railroads, and pipelines.
A map showing the location of said easement areas (the "Easement Areas is attached as Exhibit
D.
Grantor shall have the right to place locked bollards across the Flood Protection Levee Easement
Page 4 of 12
and Road Access Easement (collectively the "Easements so long as the Grantee(s) are
provided a key or combination to access the Easements. Grantee(s) shall give notice to the
Grantor prior to any use of the Easement Areas for the use, operation or hauling of heavy
equipment, including, but not limited to, dump trucks, excavators and bulldozers.
Nothing in this grant shall be deemed to be a grant of access to the general public or for
recreational uses. The scope of this grant is expressly limited to the Grantee(s), their employees
and contractors, for the limited purposes described in this Agreement.
If in the use of the easements granted above, the Grantee shall damage other property of the
Grantor or shall cause damage to the easement area as a result of activity that is not permitted by
the easement, each Grantee shall repair, replace and restore, at the Grantee's sole expense, said
damage.
Each Grantee shall maintain and keep in full force and effect a policy of general liability
insurance in an amount not less than One Million Dollars per occurrence, and provide Grantor
with a certificate of insurance or self insurance and will name Grantor, its successors and assigns
as Additional Insureds in the event one or both of the Grantee(s) should choose not to self insure.
Each Grantee may self insure its obligations hereunder. Other than in the event of Grantor's
gross negligence, each Grantee shall indemnify and hold Grantor, its successors and assigns
harmless from all claims, damages or causes of action, including attorneys' fees and court costs,
arising from that Grantee's use of the Easements.
The rights, conditions, covenants and provisions contained in this Easement shall inure to the
benefit of and be binding on the parties hereto and their respective heirs, administrators,
executors, successors and assigns and shall run with the land.
Page 5 of 12
WITNESSETH, the said Grantor has hereunto signed their names the day and year first above
written.
GRANTOR: Lily Pointe Investments, LLC, a Washington Limited Liability Company
BY
Name:
Title:
GRANTEE: The City of Tukwila, a municipal corporation of the State of Washington.
BY
Name:
Title:
GRANTEE: King County Flood Control Zone District, a quasi municipal corporation
BY:
Acting pursuant to Resolution No. FCZD2008 -01.2 of said Grantee
Name:
Title:
STATE OF WASHINGTON
ss.
COUNTY OF KING
On this day of 2008, before me, the undersigned, a Notary Public in
and for the State of Washington, duly commissioned and sworn, personally appeared
to me known to be the person who
signed as of Lily Pointe Investments, LLC, a Washington Limited Liability
Company that executed the within and foregoing instrument, and acknowledged 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 /she was duly elected, qualified and acting
as said officer of the Limited Liability Company, and that he /she was authorized to execute said
instrument on behalf of said Limited Liability Company.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first
above written.
Print Name:
Notary Public in and for the State of Washington,
residing at
My commission expires:
Page 6 of 12
STATE OF WASHINGTON
COUNTY OF KING
ss.
On this day of 2008, before me, the undersigned, a Notary Public in
and for the State of Washington, duly commissioned and sworn, personally appeared
to me known to be the person who
signed as of the City of Tukwila, a municipal
corporation of the State of Washington, 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 was duly elected,
qualified and acting as said officer of the corporation, that was authorized to execute
said instrument and that the seal affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first
above written.
STATE OF WASHINGTON
)SS.
COUNTY OF KING
Dated:
Print Name:
Notary Public in and for the State of Washington,
residing at
My commission expires:
I certify that I know or have satisfactory evidence that is the person
who appeared before me, and said person acknowledged that he signed this instrument, on
oath stated that he is authorized to execute the instrument and acknowledged it as the
of King County, acting on behalf of
the King County Flood Control Zone District pursuant to Resolution FCZD2008 -01.2 of said
District to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Printed name
Notary Public in and for the
State of Washington
Residing at
My appointment expires
Page 7 of 12
EXHIBIT A
UNDERLYING PROPERTY PARCEL(S)
LEGAL DESCRIPTION
That portion of Section 36, Township 23 North, Range 4 East, W.M., in King County,
Washington, described as follows:
Beginning at the northwest corner of said Section 36;
Thence south 01 °19'01" west along the west line of said Section 36, a distance of 1,355.89
feet;
Thence easterly along a curve to the left, the center of which bears north 02 °45'45" east,
having a radius of 336.00 feet, an arc distance of 9.00 feet, through a central angle of
01 °32'04" to the south line of the north 36 feet of Government Lot 4 in said Section 36;
Thence south 88 °46'19" east along said south line a distance of 372.81 feet;
Thence south 01 °13'4F' west a distance of 305.00 feet;
Thence north 88 °46'19 west a distance of 50.00 feet to the TRUE POINT OF BEGINNING;
Thence south 88 °46'41" east along a line 100 feet south of and parallel to the south line of
that parcel of land leased to Sperry Rand Corporation as surveyed and monumented on the
ground in 1968, and recorded under King County Recording Number 6356645, a distance of
420.58 feet, more or less, to the top of the left bank of the Green River;
Thence along said top of the left bank of the Green River the following courses and
distances:
south 07 °00' east a distance of 115 feet;
south 01°06' west a distance of 104 feet;
south 09 °12' west a distance of 106 feet;
south 26 °49' west a distance of 102 feet;
south 47 °21' west a distance of 103 feet;
south 60 °15' west a distance of 40 feet;
south 74 °35' west a distance of 60 feet;
Thence west a distance of 106 feet;
north 67 °30' west a distance of 107 feet;
north 26 °19' west a distance of 104 feet;
north 20°2T west a distance of 103 feet;
north 21°54' west a distance of 105 feet;
north 32 °38' west a distance of 116 feet;
north 44 °04' west a distance of 34 feet, more or less, to a point from which the TRUE
POINT OF BEGINNING bears north 69 °38'41" east;
Thence leaving said top of left bank north 69 °38'41" east a distance of 225 feet, more or
less, to the TRUE POINT OF BEGINNING.
Page 8 of 12
EXHIBIT B
FLOOD PROTECTION LEVEE EASEMENT
LEGAL DESCRIPTION
That portion of Section 36, Township 23 North, Range 4 East, W.M., in King County,
Washington, lying landward of the ordinary high water mark of the left bank of the Green
River and riverward of a line described as follows:
Beginning at the northwest corner of said Section 36;
Thence south O1 °19'01" west along the west line of said Section 36, a distance of 1,355.89
feet;
Thence easterly along a curve to the left, the center of which bears north 02 °45'45" east,
having a radius of 336.00 feet, an arc distance of 9.00 feet, through a central angle of
01 °32'04" to the south line of the north 36 feet of Government Lot 4 in said Section 36;
Thence south 88 °46'19" east along said south line a distance of 372.81 feet;
Thence south 01°13'41" west a distance of 305.00 feet;
Thence north 88 °46'19 west a distance of 50.00 feet to the herinafter referred to as point
Thence south 88 °46'41" east along a line 100 feet south of and parallel to the south line of
that parcel of land leased to Sperry Rand Corporation as surveyed and monumented on the
ground in 1968, and recorded under King County Recording Number 6356645, a distance of
369.60 feet to the TRUE POINT OF BEGINNING OF SAID DESCRIBED LINE, thence
the following courses and distances:
south 01 °52'11" east a distance of 35.17 feet;
south 01 °51'04" east a distance of 122.78 feet;
south 01 °44'32" west a distance of 104.47 feet;
south 12°11'25" west a distance of 36.04 feet;
south 20 °48'04" west a distance of 51.57 feet;
south 33 °48'38" west a distance of 62.76 feet;
south 53 °39'34" west a distance of 37.11 feet;
south 63 °03'02" west a distance of 79.27 feet;
south 80 °57'48" west a distance of 35.11 feet;
south 67°5T45" west a distance of 61.80 feet;
north 83 °48'22" west a distance of 111.43 feet more or less, to the terminus of said line
herein described, at a point which is located south 70 °57'20" west 216.98 feet, and south
27 °23'15" east 461.50 feet from point "A" referenced herein.
Page 9 of 12
Levee Access:
EXHIBIT C
PERMANENT ACCESS ROAD EASEMENT
LEGAL DESCRIPTION
That portion of Section 36, Township 23 North, Range 4 East, W.M., in King County,
Washington, described as follows:
Beginning at the northwest corner of said Section 36;
Thence south 01 °19'01" west along the west line of said Section 36, a distance of 1,355.89
feet;
Thence easterly along a curve to the left, the center of which bears north 02 °45'45" east
having a radius of 336.00 feet, an arc distance of 9.00 feet, through a central angle of
O1 °32'04" to the south line of the north 36 feet of Government Lot 4 of said Section 36;
Thence south 88 °46'19" east along said south line a distance of 274.87 feet;
Thence along a curve to the right, the center of which bears south 01°13'41" west having a
radius of 50.00 feet, an arc distance of 78.54 feet, through a central angle of 90 °00'00
Thence south 01°13'41" west a distance of 255.00 feet to the TRUE POINT OF
BEGINNING;
thence south 88 °46'19" east a distance of 48.00 feet;
thence south 01 °13'41" west a distance of 33.27 feet;
thence along a line hereinafter referred to as line "X south 69 °38'41" west a distance of
259.75 feet more or less to the westerly boundary of property described in Exhibit "A"
herein;
thence northerly and along said westerly boundary to a point on a line distant 30 feet
northwesterly of said line "X" measured perpendicularly thereto;
thence north 69 °38'41" east to a point which bears south 01°13'41" west from the TRUE
POINT OF BEGINNING;
thence north 01°13'41" east 20.00 feet more or less, to the TRUE POINT OF BEGINNING.
Page 10 of 12
Tukwila 205: Site 3 Easements
Temporary Staging and Work Area Easement
Permanent Levee Easement
Permanent Access Easement
Parcel Boundaries
N
76 0 76 160 Feet
MAP OF PROPERTY AND EASEMENTS
3623049095
3623049094
EXHIBIT D
J
Page 11 of 12
3623049079
3623049017
3823049087
ATTACHMENT 2
UNDERLYING PROPERTY PARCEL(S)
LEGAL DESCRIPTION
That portion of Section 36, Township 23 North, Range 4 East, W.M., in King County,
Washington, described as follows:
Beginning at the northwest corner of said Section 36;
Thence south 01 °19'01" west along the west line of said Section 36, a distance of 1,355.89
feet;
Thence easterly along a curve to the left, the center of which bears north 02 °45'45" east,
having a radius of 336.00 feet, an arc distance of 9.00 feet, through a central angle of
O1 °32'04" to the south line of the north 36 feet of Government Lot 4 in said Section 36;
Thence south 88 °46'19" east along said south line a distance of 372.81 feet;
Thence south 01°13'41" west a distance of 305.00 feet;
Thence north 88 °46'19 west a distance of 50.00 feet to the TRUE POINT OF BEGINNING;
Thence south 88 °46'41" east along a line 100 feet south of and parallel to the south line of
that parcel of land leased to Sperry Rand Corporation as surveyed and monumented on the
ground in 1968, and recorded under King County Recording Number 6356645, a distance of
420.58 feet, more or less, to the top of the left bank of the Green River;
Thence along said top of the left bank of the Green River the following courses and
distances:
south 07 °00' east a distance of 115 feet;
south 01°06' west a distance of 104 feet;
south 09°12' west a distance of 106 feet;
south 26 °49' west a distance of 102 feet;
south 47 °21' west a distance of 103 feet;
south 60 °15' west a distance of 40 feet;
south 74 °35' west a distance of 60 feet;
Thence west a distance of 106 feet;
north 67 °30' west a distance of 107 feet;
north 26 °19' west a distance of 104 feet;
north 20 °22' west a distance of 103 feet;
north 21°54' west a distance of 105 feet;
north 32 °38' west a distance of 116 feet;
north 44 °04' west a distance of 34 feet, more or less, to a point from which the TRUE
POINT OF BEGINNING bears north 69 °38'41" east;
Thence leaving said top of left bank north 69 °38'41" east a distance of 225 feet, more or
less, to the TRUE POINT OF BEGINNING;
Page 12 of 12