HomeMy WebLinkAbout1995 - Right-of-Entry Easement - Tukwila Pond Committee - 9505030239 RIGHT OF ENTRY EASEMENT
THIS RIGHT OF ENTRY EASEMENT "Contract dated this `—day of
1995, is made by and between the CITY OF TUKWILA, a municipal corporation of the State of
Washington (the "City") and The TUKWH.A POND COMMITTEE anon- profit corporation
of the State of Washington (the "Corporation with reference to the following facts
RECITALS
h 1 The City owns and desires to improve certain real property, more particularly described in
v Attachment A," attached hereto and incorporated herein by reference Part of the City's plans
include development of a public park, referred to herein for convenience as the "Tukwila Pond
Park" or the "Park"
2 The Corporation desires to undertake the development and construction of all or a portion
of the Park at its sole expense, in accordance with a proposal to be submitted and approved by
the Tukwila City Council If the City Council approves the "Schematic Design and Plans" for
Tukwila Pond Park for what is commonly referred to as the upland portion of the Park
property which are attached hereto as Attachment "B" and incorporated herein by reference,
the Corporation will develop and construct the described improvements and then to offer the
improvements as a gift to the City and its citizens To accomplish its purpose, the Corporation
has been duly organized as a Washington non -profit corporation.
3 The City Council desires to receive, for the benefit of the City and its citizens, the gift the
Corporation desires to confer and, therefore, to enable the Corporation to develop and
construct the improvements, the parties desire to enter into this Contract.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, to be kept, performed and fulfilled by the respective parties hereto, and other good and
valuable consideration, it is mutually agreed as follows
1 Grant of Easement. For valuable consideration as described below, City hereby grants and
conveys to the Corporation an easement across, along, in, upon and under that certain real
property described in Attachment "A," for the purpose of developing, constructing and
installing the improvements specifically described in the "Schematic Design and Plans" for
Tukwila Pond Park Attachment "B to be approved by the City Council
2 Term of Easement. The Term of Easement "Term shall commence on the date the Mayor
signs the "Schematic Design and Plans" for Tukwila Pond Park, at which time the "Schematic
Design and Plans" become "Approved Plans" as provided in paragraph 4, below, and shall
terminate upon the date on which the City issues written notice of acceptance of the
improvements or the date upon which this Contract is terminated as provided herein,
whichever occurs first. The Corporation shall have five (5) years from the date of
commencement in which to raise the money, obtain permits and construct the improvements
2
The agreement shall be extended so long as the Corporation is diligently prosecuting the work
to complete the project and has the consent of both parties
3 Consideration. The Corporation shall pay to the City the annual easement fee in the sum of
One Dollar ($1 00), payable for the first year in advance of the commencement date, and for
subsequent years (if any), payable in advance of each successive anniversary date throughout
the Term
4 Approval of "Schematic Design and Plans." The Corporation's duty to proceed with
development and construction of the Park is conditioned upon approval by the City Council of
the proposed "Schematic Design and Plans" for the Tukwila Pond Park substantially in the
form submitted by the Corporation on Attachment "B" Upon execution of this Contract by
both parties, the City and Corporation shall proceed in cooperation to obtain the City
Council's review and approval of the proposed "Schematic Design and Plans" for Tukwila
Pond Park (hereinafter referred to for convenience as the "Plans Upon approval of the
Plans, the Mayor shall mark the Plans "Reviewed and Approved," shall sign the Plans and
submit them to the Corporations for approval. The Corporation shall have twenty (20) days to
approve or disapprove the Plans Upon approval by the Corporation, the Plans shall become
the "Approved Plans," and the Corporation's performance under the Contract shall conform
thereto In the event the City Council fails or refuses to approve the Plans within twelve (12)
months from the date on which the Plans are submitted to the City Council for review, either
party may elect to terminate this Contract without any liability to the other whatsoever Once
the Plans become the Approved Plans, the Community and Parks Committee of the City
Council will function as the Pond Oversight Committee, the purpose of the Oversight
Committee being to monitor construction of the Park according to the Approved Plans and
this contract
5 City's Warranty Against Hazardous Substance. The City warrants that to the best of its
knowledge, the Park property is free of the existence of any substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances," or "solid
waste" in CERCLA, SARA, RCRA, Toxic Substances Control Act, Federal Insecticide,
Fungicide and Rodenticide Act, and the Hazardous Materials Transportation Act (49 U S C
Section 1801 et seq the Clean Water Act (33 U S C Section 1251 et seq the Model
Toxics Control Act (RCW 70 105D, et seq or which are classified as hazardous or toxic
under federal, state or local laws or regulations The City's warranty in this regard shall
survive the execution and Term of this Contract With respect to the release of any toxic or
hazardous substances or wastes, or other condition of the Park property, occurring prior to
the date of this Contract which release or condition violates the provisions of, or necessitates
any removal, treatment, or other remedial action under, any applicable past, present, or future
federal, state, or local statute or ordinance or any regulation, requirement, or directive of any
governmental authority with Jurisdiction relating to protection of the environment, the City
agrees to defend, indemnify, and hold harmless the Corporation from and against any and all
losses, claims, liabilities, damages, demands, fines, costs, and expenses (including reasonable
attorneys' fees and legal expenses) ansing out of or resulting therefrom,
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6 Possession and Control Upon receipt of the Approved Plans from the City the Corporation
shall promptly commence and diligently pursue completion of the development and
construction of the Park in accordance with the Approved Plans, and at its sole expense
Without limiting the generality of the foregoing, the Corporation shall
a) Permit the City to inspect and review progress on the development and construction of the
Park, as provided below in paragraph 24, to ensure compliance with the Approved Plans
and all applicable statutes, laws, codes, ordinances, regulations and lawful orders
b) Have the power and right to enter into any and all contracts, agreements or other
documents affecting the improvements to be constructed (but not the real property) which
the Corporation deems reasonable for purposes of development, construction and security
of the improvements
c) Take any and all action the Corporation deems appropriate to accomplish its purposes and
perform the terms and conditions of this Contract.
Neither party shall have any right, power or authority to (i) enter into any contract,
agreement or document for or on behalf of the other, or (ii) to act for, be an agent or
representative of, or otherwise bind the other to any contract or undertaking. Without
limiting the generality of the foregoing, nothing in the Contract shall be construed or
interpreted as creating any kind of joint venture or other legal entity between the Corporation
and the City and, if and to the extent the City exercises any control over the action of the
Corporation, such control is being exercised for the convenience of the Corporation to assist
the Corporation in conferring a gift of a park to the City and its citizens. All actions
undertaken by the Corporation are undertaken as a private entity, independent of the City
including, without limitation, the performance of any obligation or the exercise of any rights
or privileges arising under the terms and conditions of this Contract
7 Indemnity During the Term, the Corporation agrees to protect and save the City (and its
elected and appointed officials, agents and employees) harmless from and against all claims,
demands and causes of action of any kind or character, including the cost of defense thereof,
on account of injury or death to persons or damage or destruction of property, arising from
the Corporation's negligent acts or omissions or the negligent acts or omissions of any agent
or employee of the Corporation. Notwithstanding the foregoing, the Corporation disclaims
any liability for and does not warrant in any fashion (express or implied) for any purpose the
design, construction, durability, safety or other characteristics of any improvements to the
Property made by the Corporation in connection with development of the Park. The City of
Tukwila, Washington, shall be made a third -party beneficiary to all contracts entered into
between the Corporation and the designers, architects, professionals, contractors,
materialmen and suppliers selected to provide material, labor and services to the Park project.
8 City's Acceptance of the Park. The improvements and fixtures constructed by the
Corporation shall become the property of the City upon termination of this Contract by
acceptance of the improvements according to the following procedures.
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a) Whenever the Corporation is satisfied that its improvements are complete in accordance
with the Approved Plans and are suitable for conveyance to the City, the Corporation shall
notify the City in writing that the improvements are complete and ready for final
inspection. Upon receipt of such notice the City shall conduct a final inspection to verify
that the Park is developed and constructed in accordance with the Approved Plans and
applicable statutes, laws, codes, regulations, ordinances and lawful orders If the City is
satisfied that the improvements are so constructed and installed, the City Council may
accept the gift of the improvements Upon such acceptance, the Term shall expire and the
Corporation shall have no further right, title or interest in the Park property and the
improvements and fixtures thereon, nor any further obligation or responsibility with
respect to the Park property or the improvements thereon.
b) The Corporation may, from time to time during the Term and in its discretion, give the
City written notice that a portion of the improvements are ready for final inspection. Upon
receipt of such notice, the City shall conduct a final inspection to verify that the designated
portion of the improvements have been developed and constructed in accordance with the
Approved Plans and applicable statutes, laws, codes, regulations, ordinances and lawful
orders If the City is satisfied that the improvements and fixtures are so constructed and
installed, the City Council may accept the gift of such portion of the improvements Upon
such acceptance, the Contract shall expire with respect to the designated portion of the
improvements and the Corporation shall have no further right, title or interest in the Park
property and the improvements and fixtures thereon, nor any further obligation or
responsibility with respect to that portion of the Park property or the improvements
thereon.
c) Acceptance by the City, whether in whole or in part, shall be in "as is" condition and "with
all faults The City shall have no recourse against the Corporation concerning the design,
construction, durability, safety or other characteristics of any improvement to the Park
property
9 Permits and Approval. The Corporation is responsible for obtaining all permits and
approvals necessary to develop and construct the improvements The Corporation's duty to
proceed with development and construction of the Park is conditioned upon the issuance of all
necessary permits for the improvements as described on the Approved Plans In the event the
City fails or refuses to issue all necessary permits for the Approved Plans within twelve (12)
months from the date on which the Schematic Design and Plans for Tukwila Pond Park are
submitted to the City for review, either party may elect to terminate this Contract without any
liability to the other whatsoever
10 Use of the Property The Property shall be used by the Corporation exclusively for the
purpose of developing and constructing the improvements Construction impacts shall be
limited in conformance with the "Best Management Practices (BMP)" described in the
Department of Ecology's Stormwater Management Manual for the Puget Sound Basin,
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February 1992 edition or latest revision thereto
11 Cost of Development; Labor The Corporation shall provide all necessary labor, materials,
services, equipment and other items necessary for the development and construction of the
improvements upon the Park property The Corporation shall undertake such development at
its sole expense, entering into any and all labor, material, contractor and subcontractor
agreements on its own behalf.
12 The Corporation Maintenance of the Park property During the Term, the Corporation
shall exercise control and maintenance of the Park property and, keep the construction site in
a reasonably clean, safe and sanitary condition. The Corporation shall not post no-signs,
placards or advertisements of any kind upon the Park property which are not in conformance
with the City's sign ordinance and without prior written consent of the City The City shall not
unreasonably withhold consent to the placement of conforming signs related to public safety,
construction site security and identification of the Corporation, professionals, contractors and
material suppliers to the project. The Corporation shall secure and protect the fob site to
ensure the safety of the public The Corporation shall, at all times, conduct its activities upon
the Park property during day light hours and in a manner which avoids unreasonable
disturbance of the public
13 Liability Insurance and Financial Information The Corporation shall, for the benefit of
itself and the City, secure and maintain the following policies of liability insurance during the
Term with coverages and in the amounts as specified below
a) Comprehensive General Liability Insurance and Automobile Liability Insurance
with limits of liability of not less than.
(i) Five Hundred Thousand Dollars ($500,000 00) for each person, personal bodily injury;
(ii) One Million Dollars ($1,000,000 00) for each occurrence, personal bodily injury;
(iii) Five Hundred Thousand Dollars ($500,000 00) for property damage
(iv) One Million Dollars ($1,000,000) combined single limit.
The Corporation shall name the City as an additional insured under such policies of insurance,
which shall not be reduced or canceled during the Term. Certificates of insurance or a copy of
such policies shall be supplied to the City upon request
b) Financial Information Provision. The Corporation shall retain the services of an
independent, local CPA firm to help maintain and review the Corporation's financial
accounts This CPA firm shall in a timely manner review, prepare and report upon the
Corporation's financial accounts in accordance with generally accepted accounting and
audit standards and practices so that necessary information pursuant to this Contract is
provided to the City Council
14 Taxes and Fees. ]wring the Term the Corporation shall pay all taxes incurred in connection
with development and construction of the improvements on the Park property The City shall
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not, in any case, bear the cost of any such taxes or other fees of any type associated with the
development and construction of improvements on the Park property during the Term. The
Corporation shall apply for and seek to obtain all appropriate tax and fee exemptions
15 Compliance with State, Federal and Local Laws The Corporation shall occupy the
Property and develop the Park in compliance with all applicable federal, state and local laws,
easements, rules, regulations, statutes and ordinances
16 Agreement Not to Discriminate The Corporation will not discriminate against any person,
contractor, subcontractor, supplier, employee or applicant for employment in connection with
development and construction of improvements on the Park property on the basis of race,
creed, color, sex, age, national origin, marital status, sensory, mental or physical handicap,
unless based upon a bonafide occupational qualification. The Corporation will take affirmative
action to ensure that all such persons, contractors, subcontractors, suppliers, employees or
applicants are hired, retained or otherwise employed in connection with project are treated
equally without regard to their race, creed, color, sex, age, national origin, marital status,
sensory, mental or physical handicap
17 Termination of the Contract for Default. The parties acknowledge that since the primary
purpose of this Contract is to enable the Corporation to confer a gift of a public park to the
City, each party agrees that its sole remedy for any breach of, default, or noncompliance with
the terms and conditions of this Contract shall be to exercise its right of termination pursuant
to this paragraph 17 In the event either party fails to fully and faithfully perform their
respective obligations under tlus Contract, the non defaulting party may, upon written notice
to the other ternunate this Contract
18 Additional Rights of Termination In the event the Corporation's efforts to develop and
construct the improvements on the Park are materially impaired or prohibited, due to
circumstances beyond the Corporation's reasonable control, then the Corporation may
terminate this Contract by giving written notice to the City in which event, the Corporation
shall surrender possession of the Park property to the City in its then existing condition. By
way of example, the Corporation may terminate this Contract in the event any person or entity
(other than the City or the Corporation) shall by legal proceeding or otherwise seek or
attempt to impair or prohibit development of a park upon the Park property by the
Corporation in accordance with the terms and conditions of this Contract.
19 Effect of Termination Any termination under this Contract shall take effect upon the non
temunatmg party's receipt of a notice of termination. Upon termination, all rights and
obligations of the parties hereto shall cease, provided, however, that the Corporation, in its
sole discretion, may elect to complete any portion of the work in progress that it deems
necessary in order to avoid liabihty to others resulting from the termination, and that the
Corporation shall be allowed a reasonable time to stop work, demobilize and remove from the
Property any material, equipment, personal property or other items which are not property of
the City and not yet incorporated into the Park. Upon termination, the Corporation shall be
allowed to designate in writing any and all partial complete improvements which are intended
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to become City property and any improvements not so designated will be removed from the
property by the Corporation as quickly as reasonably possible Further, if and to the extent
desired by the Corporation upon termination, the Corporation shall tender and the City shall
accept any remaining funds from donations to the park project and material on site intended to
be incorporated into the improvements.
20 Destruction of Improvements If at any time during the Term, any improvements to the Park
property made by the Corporation are destroyed or damaged by any cause or casualty, the
Corporation shall have no obligation to restore such improvements However, the
Corporation may, at its sole option, elect to restore such improvements in accordance with
Approved Plans or if approved by the City Council, with such modified plans and
specifications as the Corporation may propose to the City If the Corporation elects against
restoration, then the Corporation shall, by written notice to the City, terminate this Contract
In the event of such termination, possession of the Park property shall be surrendered to the
City in its then existing condition. Upon such termination, the Corporation shall release to the
City any insurance proceeds received by the Corporation by reason of such damage or
destruction on the condition that the City use such insurance proceeds for purposes of
developing the Park.
21 Removal of Property at Expiration of Contract. Within thirty (30) days of the expiration of
the Term, the Corporation shall remove all equipment, material, supplies, personal property or
other items from the Park property, excepting any such items which comprise improvements
22 Monthly Reports During the Term, the Corporation shall provide the City Council and City
Administration with monthly written reports summarizing the status of Park development and
construction of the improvements Such reports shall include unaudited cash flow statements
or financial statements prepared in accordance with accepted accounting standards and
practices and such other information as the City may reasonably request from time -to -time in
writing, provided, however, that nothing in this paragraph shall require the Corporation to
disclose the name of any individual contributor, the amount contributed by any contributor, or
any other information which is deemed "privileged" under the law
23 Preclusion of Waste The Corporation shall not commit or permit any waste or damage to
the Property and shall not permit any rubbish to be deposited or accumulated upon the
Property
24 Right of City Inspection Suspension of Work. The City or its agents may enter upon the
Property at all reasonable times and in a reasonable manner for the purpose of conducting
inspections If the City determines that work has been or is being done that is not in
accordance with the Approved Plans or city codes or regulations, it may order work
suspended until the Corporation brings the work into compliance with the Approved Plans or
codes or regulations. Upon receiving such suspension order, the Corporation will cease all
work until the City gives notice to proceed.
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25 Utilities During the Term, the Corporation shall pay the cost of any and all utilities used in
connection with development and construction of the improvements on the Park property
26 Liens The Corporation shall keep the Park property free and clear of any and all liens or
encumbrances ansing from work performed or materials supplied to the project. At the City's
request, the Corporation shall furnish the City written proof of payment of any item which
would constitute the basis for such a lien.
27 Unauthorized Improvements The Corporation shall not dispose of or make any alterations
or improvements which will affect the Park property or appearance thereof, or make any
changes to or use of the Park property, contrary to or not included in Approved Plans without
the prior written approval of the City Council.
28 Condemnation If, during the Term, the Park property shall be taken or condemned in whole
or in part by any competent authority then this Contract shall terminate with respect to that
portion of the Park property taken or condemned upon the date title vests in the condemnor
With respect to any remaining portion of the Park property not so taken or condemned, either
party may terminate this Contract by written notice to the other if it determines that
development of the Park is no longer feasible If neither party elects to terminate the Contract
with respect to such remaining portion of the Park property, the City Council and the
Corporation shall fully cooperate in the preparation of modified plans and specifications for
Park development. All compensation awarded upon such taking or condemnation shall
become the sole property of the City and the Corporation shall have no claim thereto
29 Assignment. The Corporation will not assign, or in any manner substitute, any person or
organization, to its rights or responsibilities under this Contract without the written approval
of the City Council,
30 Notices Any notice request, designation, direction, statement or other communication to be
give pursuant to this Contract shall be in writing and shall be delivered in person or mailed, in
a properly addressed and stamped envelope with the required postage, to the intended
recipient as follows
The City- The Corporation
Mayor John W Rants R.M. Braukus, President
Tukwila City Hall The Tukwila Pond Committee
6200 Southcenter Blvd. 22828 68th Avenue South
Tukwila, WA 98188 Kent, WA 98032 -6019
and and
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Ms. Linda Cohen, City Attorney Frederick Mendoza
Tukwila City Hall Cromwell, Mendoza Belur, P S
6200 Southcenter Blvd. 6450 Southcenter By Ste 100
Tukwila, WA 98188 Tukwila, WA 98188
Any party may change its address specified in this paragraph by giving the other written notice
in accordance with this paragraph.
31 Miscellaneous This Contract sets forth the entire agreement between the parties and
supersedes any and all prior agreements. This Contract shall be construed and interpreted in
all respects in accordance with the laws of the State of Washington. The invalidity or
unenforcability of any provision of this Contract shall not affect the other provisions, hereof,
and this Contract shall be constructed in all respects as if such invalid or unenforceable
provisions were omitted.
IN WITNESS WHEREOF the Parties have executed this Contract on the date first above
stated.
THE TUKWILA POND CITY OF TUKWILA
COMMITTEE
R Ptr Nra „t� Presided Jo W Rants, Mayor
APPROVED AS TO FORM
City Attorney
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STATE OF WASHINGTON
)ss
COUNTY OF KING
On this day of 9 t before me, the undersigned, a Notary public in and
for the State of Washington, personally appeared R.M. Braukus, to me known to be the
President of the THE TUKWILA POND COMMITTEE, the nonprofit corporation that
executed the foregoing instrument, and acknowledged the said instrument, to be the free and
voluntary act and deed of said nonprofit corporation, for the uses and purposes therein
mentioned, and on oath stated that R.M. Braukus was authorized to execute the said
instrument, and that the seal, if affixed, is the corporate seal of said nonprofit corporation.
WITNESS my hand and official seal hereto affixed the day and year first above written.
I
NOTARY PUBLIC in and for the State of Washington, residing at
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STATE OF WASHINGTON
)ss
COUNTY OF KING
On thi� 8 day of 19i, before me, the undersigned, a Notary Public in and
for the State of Washington, personally appeared John W Rants, to me known to be Mayor of
the CITY OF TUKWILA, the municipal corporation that executed the foregoing instrument
and acknowledged the said instrument to be the free and voluntary act and deed of said
nonprofit corporation, for the uses and purposes therein mention, and on oath stated that John
McFarland was authorized to execute the said instrument and that the seal, if affixed, is the
corporate seal of said municipal corporation.
WITN official seal hereto affixed the day and year first above written.
NOTARY PU�Ije in and for the State of Washington, residing at
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ATTACHMENT "A"
The land referred to in this Agreement is situated in the State of Washington, County of King
and is described as follows
PARCEL A.
Lot 2 of City of Tukwila Short Plat No 91 -9 -SS as recorded under Recording No
9208261819, records of King County, Washington.
PARCEL B
An easement for ingress and egress over the following described tracts
Beginning at the Northwest corner of the Northwest quarter of the Southeast quarter of
Section 26, Township 23 North, Range 4 East, W.M.,
Thence Easterly along the Northerly line thereof, 20 feet,
Thence Southerly, parallel to the Westerly line of the said Northwest quarter of the Southeast
quarter, 20 feet,
Thence Westerly, Parallel to the Northerly line of the said Northwest quarter of the Southeast
quarter, 20 feet to the Westerly line of said Northwest quarter of the Southeast quarter
Thence Northerly, along said Westerly line, 20 feet to the point of beginning;
Also the Northerly 16 feet of that portion of the Northeast quarter of the Southwest quarter
of Section 26, Township 23 North, Range 4 East, W.M., lying Easterly of the Mess Bros
County Road,
PARCEL C
A non exclusive easement for vehicular passage only over and across an unspecified 30 foot
wide portion of the West 60 feet of Lot 1 of Lot Line Adjustment No 88 -6 -BLA Tukwila
Pond, recorded under Recording No 8906011033, being a re- recording of 8901240241, as
contained within instrument recorded under Recording No 8902211002
Situate in the County of King, State of Washington.
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