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HomeMy WebLinkAboutPW04-293 - Other - Department of Army - Meridian Valley Creek Ecosystem Restoration - Certification of Lands - 04/15/2005 r r KENT W A S H I N G T O N July 15, 2005 OFFICE OF THE MAYOR ` Jim White,Mayor 220 Fourth Ave,S, Kent,WA 98032-5895 Department of the Army Seattle District, Corps of Engineers A ;Phone: 253-856-5700 Attn: Real Estate Division Fax:253-856-6700 Post Office Box 3755 Seattle, Washington 98124-3755 Re: Certification of Lands and Authorization for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek By Project Cooperation Agreement dated the 16`h day of November, 2004, the City of Kent, a Washington municipal corporation, assumed full responsibility to fulfill the requirements of non-federal cooperation as specified ` therein and in accordance with the Water Resources Development Act of 1986, as amended. x: •' '` This is to certify that the City of Kent has sufficient title and interest in the lands hereinafter shown on the attached Exhibits A, B, and C in order to enable the City of Kent to comply with the aforesaid requirements of non- ' r federal cooperation. :S k4 1 Said lands and/or interest therein are owned or have been acquired by ` the City of Kent, and are to be used for the construction, maintenance and J, operation of the above referenced Project and include but are not limited to the ' �:' w�c-' . �•^� ` = „following specifically enumerated rights and uses,except as hereinafter noted: 1. Fee. The fee simple title to Parcels 1, 2, 5, and 6 on the N as= attached Exhibit A, and Parcel 7 on Exhibit C, subject, however, to existing easements for public roads and highways, public utilities,railroads, and pipelines. M' ' 2. EnviropMontal Easement. A perpetual and assignable right and X easement in on, over and across the lands of the Grantors described as parcels 3 4 and 6 (in the event of the vacation of 14 8' Ave. SE) in Exhibit A attached hereto to construct f .A operate, maintain repair, alter, rehabilitate remove replace and r, ♦♦g° d� . monitor features of the Green-Duwamish Ecosystem rp �, ,. T' ,.,. Restoration Project including; channel features vegetative �� • ; ",�^ °.�wzi Certification of Lands and Authorization for Entry ofDuwamish/Green River Ecosystem ­,411 Project at Meridian Yagfey Creek—Page l of 25 r plantings; modifications and improvements within and adjacent to the channel or shore for grade control, or bank stabilization purposes; fish and wildlife habitat or other ecosystem restoration improvements; placement of materials or structures in the bed,banks, or shorelines that influence stream velocity or channel form; removal or placement of gravels, cobbles, and boulders, woody debris and other structures or conveyances to recharge or maintain flow to existing wetlands; together with the right to remove structures or obstructions including levees; reserving, however, to the owners, their heirs and assigns, all other rights and privileges that may be used without interfering with or abridging the enumerated rights and easement hereby conveyed and acquired: all subject to existing easements for public roads and highways, public utilities, railroads and pipelines. 3. Temporary Work Area Easement. A temporary easement and right-of-way in, on, over, and across an area of the land approximately 0.10 acres in size bounded by the yellow dotted line north of Parcel 1 on Exhibit A for a period not to exceed one year beginning with date possession of the land is granted to the United States, for use by the United States, its representatives, agents, and contractors as a work area for excavation, sand bagging and water diversion for the construction of the Meridian Valley Creek Project, together with the right to trim, cut, fell, and remove therefrom all trees, underbrush, obstructions, and any other vegetation, structures, or obstacles within the limits of the right-of-way; reserving, however, to the landowners, their heirs and assigns, all such rights and privileges as may be used without interfering with or abridging the rights and easement hereby acquired; subject however, to existing easements for public roads and highways, public utilities,railroads, and pipelines. The City of Dent does hereby grant to the United States of America, its representatives, agents and contractors, an irrevocable right, privilege and permission to enter upon the lands hereinbefore mentioned for the purpose of prosecuting the Project. The City of Kent certifies to the United States of America that any lands acquired subsequent to the execution of the Project Cooperation Agreement that are necessary for this Project have been accomplished in compliance with the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (Public Law 91-646) as amended by Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contained in 49 CFR,Part 24. Certification of Laiuls and Authorization for Entry of Duwamish/Green River Ecosystem Project at MedWO Valky Creek—Page 2 of 25 r MY OF KENT r By. ayor Date: — . -- Off' Certification of Lands and Authorization for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 3 of 25 h ATTORNEY'S CERTIFICATE I, Arthur"Pat"Fitzpatrick, Deputy City Attorney, an attorney admitted to practice law in the State of Washington certify that: I am an attorney for the City of Kent, a Washington municipal corporation. I have examined the title to the portions of King County tax parcel numbers 272205-9178-05, 272205-9176-07, 272205-9235-06, 858640-0004- 03, and 000620-0004-06 identified by the U.S. Army Corps of Engineers as needed for the Duwantish/Green River Ecosystem Project, Kent, Washington, and included in the Certification of Lands and Authorization For Entry document to which this Certificate is appended. The City of Kent is vested with sufficient title and interest in the described lands required by the United States of America to support the construction, operation, and maintenance of the Duwamish/Green River Ecosystem Project at Meridian Valley Creek. There [X] are (see attached risk analysis) [ ] are no outstanding third party interest of record that could defeat or impair the title and interest of the CITY OF KENT in and to the lands described, or interfere with construction, operation, and maintenance of the Project. Such interests include, but :re not limited to,public roads and highways, public utilities, railroad, pipelines, other public and private rights of way, liens and judgments. To the extent such interests existed prior to acquisition of the described lands by the CITY OF s interests e' been subordinated to le KENT, such inter s s have ether b n cleared or sub d nated the title and interests so acquired. The CITY OF KENT has authority to grant the Certification of Lands and Authorization For Entry to which this Certificate is appended; that said Certification of Lands and authorization for entry is executed by the proper duly authorized authority; and that the authorization for entry is in sufficient form to grant the authorization therein stated. DATED AND SIGNED at Kent, Washington, this /j7 day of 2005. O Arthur"Pat" atrick Deputy City Attorney Certification of Lands and Authorization for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 4 of 25 s RISK ANALYSIS FOR OUTSTANDING THIRD PARTY INTERESTS Duwamish/Green River Ecosystem Project at Meridian Valley Creek EXHIBITS A.B, and C Exhibit A. Attached as Exhibit A is an aerial photographs of the six (6) parcels of land within which the Meridian Valley Creek currently exists and will be relocated. Exhibit B. Attached as Exhibit B is the same aerial shown in Exhibit A with the addition that Exhibit B shows all of the exceptions listed in title policies and the utilities located in the right-of-way. Exhibit C. Attached as Exhibit C is an aerial photograph of the seventh parcel of land associated with the Project and which will be used as the temporary disposal site for the Project. Certification of Lands and Authorizadon for Entry of DuwamishlGreen River Ecosystem Project at Meridian Valley Creek—Page 5 of 25 PARCEL 1 Documents Attached: • Quit Claim Deed from Soos Creek Water & Sewer District, King County to the City of Kent Recording No. 20040625002505 • Pacific Northwest Title Company Owner's Policy for title insurance, policy number 1093-196986 with documents for special exceptions • Opinion of Steve Merryman,PLS • Plat map for Meridiana No. 2 • Aerial photograph—Meridiana No. 2 • Sewer Easement to Soos Creek Water& Sewer District • Plat map for Carroll Estates • Interlocal Agreement Regarding Soos Creek Water & Sewer District List Station 10B And City of Kent's Meridian Valley Creek Restoration On Exhibit A, King County tax parcel number 272205-9178-05 (hereafter "178") is labeled with a solid white circle with the number 178 in it and is outlined in yellow. The City owns the portion of parcel 178 that is northeast of the orange line and is labeled with the yellow circle with the number 1 in it (hereafter "Parcel 1"). The City owns Parcel 1 through the attached deed from Soos Creek Water& Sewer District. An evaluation of the outstanding third party interests of record on Parcel 1 is provided below. Item "A" is the reservation of easement found in the deed from Soos Creek Water & Sewer District to the City. Items "B" through "K" are special exceptions found in the Pacific Northwest Owner's Policy for Parcel 1, and item"L"is existing sewer lines. A. RESERVATION OF EASEMENT IN DEED. 1. Identification of third garty interests: Reservation of pipeline easement in Quit Claim Deed from Soos Creek Water & Sewer District ("Soos Creek Water') to the City. This reservation of easement is located on Exhibit B between the dashed brown lines shown with the sewer line shown in solid brown labeled as "Ex. Sewer Line". 2. Assessment: The pipeline for which the easement is reserved is already installed and was constructed four feet below the Project's finished grade. The reserved easement is perpendicular to the Project and is 20 feet wide. The reserved easement allows Soos Creek Water the right to access, alter, install, operate, maintain, extend, construct, repair, and reconstruct the thirty inch (30") PVC pipe. By the terms of the easement, all work done by Soos Creek Water must be accomplished in such a manner that the improvements made for the Project shall not be disturbed, or in the event that they are disturbed they will be repaired or replaced by Soos Creek Water in as good a condition as they were previously. Soos Creek Water must coordinate all work with the City of Kent so that the work is scheduled to minimize the impact to fish. The reserved easement does not interfere with the Project because the easement language provides protection for the Project. Certification of Lands and Authorization for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 6 of 25 3. .Plan to Resolve: No resolution is necessary as the easement reservation does not interfere with the Project. B. SPECIAL EXCEPTION 1. 1. Identification of third party interests: Easement in favor of Puget Sound Power & Light Company Electric (PSE) for an electric line. The area affected is south of the dotted green line shown on Exhibit B and labeled"Exception#V. 2. Assessment: PSE's easement is located within tax parcel 178, but is not located within Parcel 1 and is therefore not located within the footprint of the Project. Attached is the written opinion of Steve Merryman, PLS, providing that the PSE easement does not affect the real property the subject of the title report(Parcel 1). 3. Plan to Resolve: No resolution is necessary as the easement does not interfere with the Project. C. SPECIAL EXCEPTION 2. 1. Identification of third party interests: Easement in favor of Brian and Gladys Siverts for ingress and egress over the east thirty (30) feet of Parcel 1. The area affected is east of the dotted green line on Exhibit B and labeled"Exception 92". 2. Asses went: This ingress and egress easement is located within the footprint of the Project. The easement, however, is not the approved short plat access for the benefited parcel. The real property benefited by the easement was short platted in 1990 as the Plat of Meridiana No. 2. A copy of the short plat, recording number 9009130430, is provided and shows that the access for the approved short plat does not include the easement, but rather provides access to a public road via a thirty foot (30) roadway within the benefited parcel. Homes currently exist on each of the four (4) Meridiana No. 2 lots and each takes access from the road depicted on the short plat. An aerial photograph taken in 2002 has also been provided. While the benefited parcel has not recorded a release of the easement, the benefited parcel did not use the easement and has instead obtained approval and built homes using an alternate access. 3. Plan to Resolve: No resolution is necessary as the easement does not interfere with the Project. The benefited property chose to use an alternate access route. D. SPECIAL EXCEPTION 3. 1. Identification of third party interests: Easement in favor of Cascade Sewer District for sewer mains and appurtenances as shown in brown on Exhibit B and labeled "Exception #3" and "Exc. #3". Cascade Sewer District is now known as Soos Creek Water & Sewer District as the result of a merger between Cascade Sewer District and Water District 58. II Certification of Lands and Authorizatlon for Entry of Duwam1&VGreen River Ecosystem Project at Meridian Valley Creek—Page 7of 25 2. Assessment: The easement merged into the fee simple title when Soos Creek Water obtained title to Parcel 1. The pipeline is located within the footprint of the Project, but is outside of the stream bed in an area of the Project that will be used for planting. A sewer easement from the City of Kent to Soos Creek Water is attached. This easement provides that any work performed by Soos Creek Water in the easement area "shall be (i) accomplished in such a manner that the private improvements existing within this easement area including said incidental areas shall not be disturbed or destroyed, or in the event they are disturbed or destroyed, they will be replaced in as good a condition as they were immediately before the property was entered upon by" Soos Creek Water, "and (ii) coordinate with the City of Kent so that actions are scheduled to minimize impact to fish." The easement has currently been agreed to by the parties and has been signed by the attorneys for Soos Creek Water and the City. The City's Mayor will complete the execution of this document after approval by the City Council on August 2, 2005, and the document will be recorded No problems are anticipated with Council approval as this is merely a replacement of an earlier easement that both parties assumed continued to burden Parcel 1. 3. Plan to Resolve: No resolution is necessary as the easement does not interfere with the Project because it is located outside of the stream bed and any damage done by Soos Creek Water to the planting area must be repaired per the terms of the easement. E. SPECIAL EXCEPTION 4. 1. Identification of third party interests: Easement in favor of King County Water District No. 111 for water lines and water facilities. This easement is shown in red on Parcel 1 and is labeled in two places as`Exception#4". 2. Assessment: The pipeline that exists within the easement does not physically interfere with construction, operation, or maintenance of the Project, and the Project in return does not interfere with the operation or maintenance of the pipeline. The terms of the easement require Water District 111 to "minimize and avoid, to the extent possible, damage to any existing private improvements on the easement. If any damage occurs, the District shall repair and/or replace said improvements." The pipeline is approximately four (4) feet in depth, which is below the planned Project channel bottom, but may be exposed during placement of the stream bed gravel. Sheet 11 of 17 of the Project drawings show that the City will encase the pipe with concrete. This will protect the pipe if there is any down cutting in the channel (from natural process). if the pipe depth is higher than shown in the as-built drawings, 45 degree elbows will be used, after consulting with engineers, to extend the pipe deeper in that section. The Easement Relinquishment under Recording No. 20030708000007 provides that this Easement will be fully relinquished when Soos Creek Water provides King County Water District 111 with a new water line and easement to serve Soos Creek Water. Soos Creek Water, however,tells the City that given the location for Soos Creek Water's Certification of Lands and Authorization for Entry of DuwantishlGreen River Ecosystem Project at Meridian Valley Creek—Page 8 of 25 new list station on tax parcel 178, there are no plans in the near future to relocate this line and abandon the current Easement, 3. Plan to Resolve: No resolution is necessary. The easement does not interfere with the Project construction and any damage to the Project from repairs to the utility line must be repaired by Water District 111. F. SPECIAL EXCEPTION 5. 1. Identification of third nasty interests: Drainage Release Agreement between King County and Arthur and Esther Swanson consenting to the natural flow of surface water from Carroll Estates across Parcel 1. 2. Assessment: Carroll Estates is identified on Exhibit B as a plat adjacent to the southwest corner of tax parcel 178. The plat map for Carroll Estates is attached showing all twelve (12) lots in the plat. The design of the Project has no impact on the property benefited by the Drainage Agreement. After the Project is constructed, drainage from Carroll Estates can continue to naturally flow over Parcel 1. Likewise, the Project is not impaired by the Drainage Agreement. The Project will accommodate the flow of water from Carroll Estates. 3. Plan to Resolve: No resolution is necessary as the Drainage Agreement does not interfere with the Project. G. SPECIAL EXCEPTION 6. 1. Identification of third party interests: Agreement for water service between King County Water District I I I and Arthur and Esther Swanson for water service. The area impacted by this Agreement is shown on Exhibit B in red on the west side of tax parcel 178 and labeled as Exception#6. This is where the benefiting parcel connects into the King County Water District I I I existing water system(see Special Exception 4). 2. Assessment: The area covered by the Agreement for water service is not located within the footprint of the Project. 3. Plan to Resolve: No resolution is necessary as the Agreement does not interfere with the Project. Certifcadon of Lands and Authorization for Entry of Duwanpi&VGreen River Ecosystem Project at Meridian Valley Creek—Page 9 of 25 H. SPECIAL EXCEPTION 7. 1. Identification of third party interests: Mineral rights reservation by Northern Pacific Railroad Company. This is noted in the table on Exhibit B. 2. Assessment: This reservation by the railroad was recorded in 1892. The literature, statutes, and cases on mineral rights focus on the types and amounts of damages that are paid to surface owners for damage to the surface from mining operations, and the extensive permitting processes that mining operations undergo. Case law indicates that mineral rights must be exercised with due regard for the rights of the owner of the surface estate. The holder of the mineral rights must act in accord with customary good practice of the industry,which the author of The Easement of the Mineral Estate for Surface Use, etc' sees as a "flexible yardstick that reflects changing societal and technological standards." An abuse of mineral rights is generally remedied by an award of damages, which would include the cost of restoring the land to its former condition.2 Washington Courts have not dealt with this issue directly, but in the case of Peters v. Bellingham Coal Mines, 173 Wash. 123, 131, 21 P.2d 1024 (1933), the Court acknowledged that"it is well settled law that the grant of the surface, with a reservation of the minerals and the right to extract the same, does not permit the destruction of the surface, unless the right to do so has been expressed in term so plan as to admit of no doubt." A natural progression of the Peters case would see the Washington Court awarding damages to surface owners for an abuse of mineral rights. The mining of minerals is subject to regulation by federal, state, and local agencies. In this case, the Army Corps of Engineers may have jurisdiction over any proposed mining activity that would affect the Project. The state of Washington Department of Natural Resources (DNR) would also have jurisdiction over the required application for a Reclamation Permit3, and the state of Washington Department of Ecolo§y (DOE) would have jurisdiction over the State Environmental Policy Act(SEPA)process . As part of the Reclamation Permit process, the Railroad would have to explain to DNR its plans for the mining operation, as well as its plan for reclamation once the mining has ceased.s The permit process requires the Railroad to obtain verification from the local jurisdiction, the City of Kent, that the land use is authorized by City regulations.' In this case, the City does not allow mining operations in residential districts, which is the zoning district for Parcel 1. Saddle Mountain Minerals, L.L.C. v. Joshi, 152 Wn.2d 242, 95 P.3d 1236 (2004), is a damage case in which the Court discussed the dollar value of mineral rights on a parcel of land where the zoning law prohibited mining. The Court focused its decision on the fact that the zoning prohibition did not mean that the minerals did not have Lowe, The Eement of the Mineral Estate for Surface Use, etc.,39 Rocky Mtn.Min.L.Inst.4-1 (1993), Section 4.03. Z Id. a Chapter 78.44 RCW ' Chapter 43.21C RCW s Washington Real Property Desk Book,3d ed.(1997)Section 140.4(2). e WAC 332-18-010(2) Certification of Lands and AuthorizadaN for Entry of Duwomish/Green River Ecosystem Project at Meridian Valley Creek—Page 10 of 25 a dollar value; however, the Court did accept that a zoning ordinance could bar the mining of minerals. In this case, the City's existing zoning ordinance would bar mining in the vicinity of the Project. The Reclamation Permit process also requires that SEPA review is completed prior to the Reclamation Permit being submitted. DOE has consistently required that an Environmental Impact Statement (EIS) be prepared for mines within its jurisdiction. An EIS is designed to systematically analyze and inform decision makers of all relevant and material environmental considerations, including mitigation measures relevant to the various alternatives analyzed.7 `Both state and federal agencies consider protection of the environment during mining activities, and restoration of the environment after such activities cease, as essential."s Given the case law regarding damages, the City's prohibition of mining activities in residential zones, and Washington's permit requirements for restoration and mitigation; it is likely cost prohibitive for the Railroad to pursue a mining operation on Parcel 1. 3. Plan to Resolve: No resolution is necessary as the reservation does not interfere with the Project. I. SPECIAL EXCEPTION 8. 1. Identification of third party interests: This is the ordinance by which the City of Kent annexed the area shown in Exhibit A and B. This exception is not shown on II Exhibit B. 2. Assessment: The ordinance annexes all of the Exhibit A and B parcels within the city limits of the City of Kent. This annexation has no negative impact on the Project. 3. Plan to Resolve: No resolution is necessary as the annexation does not interfere with the Project. J. SPECIAL EXCEPTION 9. 1. Identification of third party interests: This is the ordinance by which the Kent City Council authorized acquisition and/or condemnation of property rights for the Project. This exception is not shown on Exhibit B. 2. Assessment: The ordinance has no negative impact on the Project. 3. Plan to Resolve: No resolution is necessary as the ordinance does not interfere with the Project RCW 43.21C.031(1) $ Washington Real Property Desk Book,3d ed.(1997),Section 140.4(3). Certification of Lands and Authorizadon for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 11 of 25 K. SPECIAL EXCEPTION 10. 1. Identification of third party interests: Right to make necessary cuts or fills in favor of King County. This exception is not shown on Exhibit B. 2. Assessment: After this right was recorded in favor of King County in 1951, the City of Kent annexed the area in Exhibit A and B (see special exception 8), and became King County's successor to the right to make necessary cuts or fills. The City of Kent, being the nonfederal sponsor of this project, will not use this right in any way that will negatively impact the Project. 3. Plan to Resolve: No resolution is necessary as the right does not interfere with the Project. L. SEWER LINES. 1. Identification of third party interests: North of the Viewing Platform in the northeast comer of Parcel 1, there are existing gravity and forced main sewer lines as shown on Exhibit A and B. These lines terminate in manholes. 2. Assessment: Soos Creek Water has explained to the City that it constructed the lines in this location in anticipation of serving the new Soos Creek Water pump station. After construction of the lines, the location of the pump station changed so that the lines are not now being used. The attached Interlocal Agreement Regarding Soos Creek Water & Sewer District Lift Station 10B and City of Kent's Meridian Valley Creek Restoration provides that the City may abandon these lines at the City's costs. The City, however, is not planning on abandoning the lines because the lines do not interfere with the Project and the City wants to avoid the expense. The only part of the Project in the vicinity of the lines is the trail, and construction and maintenance of the trail does not physically interfere with the lines. The construction drawings provide that the trail will be constructed where staked by City/Army Corps personnel. At time of construction, it will be staked to avoid the lines. 3. Plan to Resolve: No resolution is necessary because Soos Creek Water no longer uses these lines and will not be performing any maintenance or repairs. The City has the legal right to abandon the lines, but has no plans to do so because the existence of the lines does not physically interefere with the Project. Certification of Lands and Authorization for Entry pfDuwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 12 of 25 PARCEL 2 Documents Attached: • Deed from Carol Jean Bhatia to the City of Kent, King County Recording No. 20021231001005 e Pacific Northwest Title Company Owner's Policy for title insurance,policy number 1093-146676 On Exhibit A, King County tax parcel number 272205-9176 (hereafter "176") is labeled with a solid white circle with the number 176 in it and is outlined in yellow. The City owns all of parcel 176, which is also labeled with the yellow circle with the number 2 in it (hereafter"Parcel 2"). The City owns Parcel 2 through the attached deed from Carol Jean Bhatia. An evaluation of the outstanding third party interests of record on Parcel 2 is provided below. Items A and B are special exceptions found in the Pacific Northwest Title Owner's Policy. A. SPECIAL EXCEPTION 1. 1. Identification of third party interests: Easement in favor of Puget Sound Power & Light Company Electric (PSE) for an electric line. Shown as the area south of the dashed green line on Exhibit B and labeled"Exception 1". 2. Assessment: PSE's easement and physical improvements are located within the footprint of the Project, but not ,Nithin the proposed channel, planting area, or access route. For this reason, maintenance and repair by PSE will not interfere with any Project features and the Project will not interfere with PSE's easement rights. 3. Plan to Resolve: No resolution is necessary as there are no Project features within the easement area. B. SPECIAL EXCEPTION 2. 1. Identification off party interests: Right to make necessary cuts or fills in favor of King County. This exception is not shown on Exhibit B. 2. Assessment: After this right was recorded in favor of King County in 1951, the City of Kent annexed the area in Exhibit A and B and became King County's successor to the right to make necessary cuts or fills. The City of Kent,being the nonfederal sponsor of this project,will not use this right in any way that will negatively impact the Project. 3. Plan to Resolve: No resolution is necessary as the right does not interfere with the Project. Certification of Lands and Authorization for Entry of Duwamisk/Green River Ecosystem Project at Meridian Valley Creek—Page 13 of 25 PARCEL 3 Documents Attached: • Protection Easement from King County to the City of Kent, King County Recording No. 20050201000919. Page 1 of Exhibit A to the Protection Easement is located on Parcel 3 • Pacific Northwest Title Company Owner's Policy for title insurance,policy number 1093-212999 On Exhibit A, King County tax parcel number 272205-9235 (hereafter "235') is labeled with a solid white circle with the number 235 in it and the portion of 235 shown on Exhibit A is outlined in solid yellow. The City has an easement over the portion of tax parcel 235 bordered by dotted yellow and labeled with a yellow circle with the number 3 in it (hereafter "Parcel 3'). The City obtained the easement on Parcel 3 through the attached Protection Easement from King County. An evaluation of the outstanding third party interests of record on Parcel 3 is provided below. Items "A" through "D" are special exceptions found in the Pacific Northwest Title Owner's Policy. A. SPECIAL EXCEPTION 1. 1. Identification of third p,�rty interests: Easement in favor of Puget Sound Power & Light Company Electric (PSE) for an electric line. PSE's existing physical improvements are shown on Exhibit B as a pink dash-dot line. These are located north of Parcel 3 on the northern boundary of Parcel 5 and east of Parcel 3 on the eastern boundary of Parcel 6. 2. Assessment: PSE's physical improvements are not located within the footprint of the Project for Parcel 3. 3. Plan to Resolve: No resolution is necessary as the physical improvements do not interfere with the Project. B. SPECIAL EXCEPTION 2. 4. Identification of gh W party interests: Mineral rights reservation by Northern Pacific Railroad Company. This is noted in the table on Exhibit B. 5. Assessment: This reservation by the railroad was recorded in 1892. The literature, statutes, and cases on mineral rights focus on the types and amounts of damages that are paid to surface owners for damage to the surface from mining operations, and the extensive permitting processes that mining operations undergo. Case law indicates that mineral rights must be exercised with due regard for the rights of the owner of the surface estate. The holder of the mineral rights must act in accord with customary good practice of the industry, which the author of The Easement of the Mineral Estate for Surface Use, etc9 sees as a "flexible yardstick that reflects changing societal and technological standards." 9 Lowe, The Easement of the Mineral Estate for Surface Use, etc.,39 Rocky Mtn.Min.L.Inst.4-1 (1993), Section 4.03. Certification of Lands and Autkorizadon for Entry ofDuwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 14 of 25 An abuse of mineral rights is generally remedied by an award of damages, which would include the cost of restoring the land to its former condition.10 Washington Courts have not dealt with this issue directly, but in the case of Peters", the Court acknowledged that "it is well settled law that the grant of the surface, with a reservation of the minerals and the right to extract the same, does not permit the destruction of the surface,unless the right to do so has been expressed in term so plan as to admit of no doubt." A natural progression of the Peters case would see the Washington Courts awarding damages to surface owners for an abuse of mineral rights. The mining of minerals is subject to regulation by federal, state, and local agencies. In this case, the Army Corps of Engineers may have jurisdiction over any proposed mining activity that would affect the Project. The state of Washington Department of Natural Resources (DNR) would also have jurisdiction over the required application for a Reclamation PermitU, and the state of Washington Department of Ecolow (DOE) would have jurisdiction over the State Environmental Policy Act(SEPA)process . Through the Reclamation Permit process, the Railroad would have to explain to DNR its plans for the mining operation, as well as its plan for reclamation once the mining has ceased.14 The permit process requires the Railroad to obtain verification from the local jurisdiction, the City of Kent, that the land use is authorized by City regulations." In this case, the City does not allow mining operations in residential districts, which is the zoning district for Parcel 3. Saddle 162 is a damage case in which the Court discussed the dollar value of mineral rights on a parcel of land where the zoning law prohibited mining. The Court focused its decision on the fact that the zoning prohibition did not mean that the minerals did not have a dollar value;however,the Court did accept that a zoning ordinance could bar the mining of minerals. In this case, the City's existing zoning ordinance would bar mining in the vicinity of the Project. The Reclamation Permit pmM. s also requires that SEPA review is completed prior to the Reclamation Permit being submitted. DOE has consistently required that an Environmental Impact Statement (EIS) be prepared for mines within its jurisdiction. An EIS is designed to systematically analyze and inform decision makers of all relevant and material environmental considerations, including mitigation measures relevant to the various alternatives analyzed.17 "Both state and federal agencies consider protection of the environment during mining activities; and restoration of the environment after such activities cease, as essential."18 to Id. 11 Peters, 173 Wash.@ 131 12 Chapter 78.44 RCW " Chapter 43.21C RCW 14 Washington Real Property Desk Book,3d ed.(1997)Section 140.4(2). 15 WAC 332-18-010(2) 16 Saddle„ 152 Wn.2d 242,95 P.3d 1236 17 RCW 43.21C.031(1) '8 Washington Real Property Desk Book,3d ed.(1997),Section 140.4(3). Certification of Lands and Authorkation for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 15 of 2S Given the case law regarding damages,the City's prohibition of mining activities in residential zones, and Washington's_permit requirements for restoration and mitigation; it is more than likely cost prohibitive for the Railroad to pursue a mining operation on Parcel 3. 6. Plan to Resolve: No resolution is necessary as the reservation does not interfere with the Project. C. SPECIAL EXCEPTION 3. 1. Identification of third party interests: This is the ordinance by which the City of Kent annexed the area in Exhibit A and B. This exception is not shown on Exhibit B. 2. Assessment: The ordinance annexes all of the Exhibit A and B parcels within the city limits of the City of Kent. This annexation has no negative impact on the Project. 3. Plan to Resolve: No resolution is necessary as the annexation does not interfere with the Project D. SPECIAL EXCEPTION 4. 1. Identification of third party interests: Right to make necessary cuts cr fills in favor of King County. This exception is not shown on Exhibit B. 2. Assessment: After this right was recorded in favor of King County in 1951, the City of Kent annexed the area in Exhibit A and B (see special exception 3), and became King County's successor in the right to make necessary cuts or fills. The City of Kent, being the nonfederal sponsor of this project, will not use this right in any way that will negatively impact the Project. 3. Plan to Resolve: No resolution is necessary as the right does not interfere with the Project. Certification ofLands and Authorization far Entry of Duwamishxreen River Ecosystem Project at Meridian Valley Creek—Page 16 of 25 PARCEL 4 Documents Attached: • Protection Easement from King County to the City of Kent, King County Recording No. 20050201000919. Page 2 of Exhibit A attached to the Protection Easement is located on Parcel 4 • Pacific Northwest Title Company Owner's Policy for title insurance,policy number 1093-213054 On Exhibit A, King County tax parcel number 272205-9004 (hereafter "004") is labeled with a solid white circle with the number 004 in it and the portion shown on Exhibit A is outlined in solid yellow. The City has an easement over the portion of tax parcel 004 bordered by dotted yellow and labeled with a yellow circle with the number 4 in it (hereafter "Parcel 4'). The City obtained the easement on Parcel 4 through the attached Protection Easement from King County. An evaluation of the outstanding third party interests of record on Parcel 4 is provided below. Item "A" is special exception 5 in the Pacific Northwest Title Owner's Policy. A. SPECIAL EXCEPTION 5. 1. Identification of third R=interests: Unrecorded leaseholds, if any; rights of vendors and holders of security interests of tenants to remove trade fixtures at the expiration of the term. This exception is not shown on Exhibit B. 2. Assessment: An inspection of Parcel 4 shows no evidence of unrecorded leaseholds or any trade fixtures. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. Certification of Lands and Authorhation for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 17 of25 PARCEL 5 Documents Attached: a Abstract of 1951 deed, King County Recording No. 4125314, from Wetherby to King County for the establishment, construction, and maintenance of a county public road and highway now known as Southeast 256t'Street • Abstract of 1898 deed, King County Recording No. 169017, from Westerdal to King County for property now known as Southeast 256 h Street • Deed from Soos Creek Water & Sewer District to the City of Kent, King County Recording No. 20040625002505 (same as Parcel 1) • Plat map for Lake Meridian North Division 1 showing utility easement On Exhibit A, Parcel 5 is the right-of-way labeled in black as SE 256 h Street, bordered by a solid yellow line, and labeled with a yellow circle with the number 5 in it (hereafter "Parcel 5"). The City obtained the Parcel 5 right-of-way through the 1951 and 1898 deeds attached. The City became the successor in interest to the grantee in the deeds, King County, when the City annexed the area in Exhibit A and B via Ordinance No. 3344 (discussed in previous exceptions). An evaluation of the outstanding third party interests of record on Parcel 5 is provided below. A. SPECLAL EXCEPTION IN DEED I. Identification of third party interests: The deed conveying Parcel 5, the Southeast 256h right-of-way, to King County contains the condition that the property be used for public road and highway purposes. 2. Assessment: The City of Kent is the successor in interest to King County's deed to the property via annexation, and the City of Kent is the adjoining land owner. The Project's removal of the flume and expansion of an existing culvert within the right-of-way are consistent with the use of Southeast 256a' for road and highway purposes. The City plans future expansion of the right-of-way and has acquired a strip of property 5 feet wide along the south side of SE 256a' from Soos Creek Water for this purpose.19 The Quit Claim Deed is attached. The flume currently exists within the right-of-way as an open ditch preventing the expansion of the south side of the right-of-way. The Project's removal of the flume will allow for the planned expansion. Additionally, the Project includes expansion of a culvert exiting within Parcel 5. While the culvert expansion is necessitated by the Project, it would also have been required at the time the Southeast 2560' right-of-way was expanded. 19 Interlocal Agreement Regarding Soos Creek Water&Sewer Distnct List Station 1 OB And City of Kent's Meridian Valley Creek Restoration,attached to Parcel 1 documents,see section 4. Certification of Lards and Authorization for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 18 of 25 3. Plan to Resolve: No resolution is necessary. The deed restriction is not impacted by the Project and the deed restriction does not impact the Project. B. EXISTING UTILITIES WITHIN THE RIGHT-OF-WAY 1. Identification of third party interests: The following utilities are located within the SE 25e right-of-way and shown on Exhibit B: • sewer lines shown in a solid brown line • forced main sewer shown as a brown dash-dotted line • water line shown in a solid red line • gas line shown as a solid green line • buried phone line shown as a solid pink line • PSE power line shown as a dashed-dotted pink line 2. Assessment: The flume is currently located within Parcel 5 and is shown as a dashed blue line on Exhibit B. There are buried phone lines (pink), a water line (red), two sewer lines (brown), and two forced main sewer lines (brown dash-dot) that cross perpendicularly under the flume. These buried lines will not be moved or disturbed during the removal of the flume for the Project. The remainder of the identified utilities are located parallel to the flume and will likewise not be moved or disturbed during the removal of the flume for the Project. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. C. UTILITY EASEMENT ADJACENT TO PARCEL 5 1. Identification of third party interests: To the north of Parcel 5 Exhibit B shows an existing easement with a dashed yellow line. The fee to this area is owned by third parties, but a utility easement exists per the face of the plat for Meridian North Division I, King County recording number 771220850, a copy of which is attached. The easement was created via the final plat document and does not have a separately recorded easement document. 2. Assessment: The easement area will be used as a temporary work area for sand bagging and water diversion when water is taken out of the culvert to build the Project's extension of the culvert. The term "utility" in the easement is not defined on the final plat document. This work,however, will be performed by the City in accord with its authority as a purveyor of a Storm and Surface Water Utility. Chapter 7.05 of the Kent City Code created a Storm and Surface Water Utility. The storm and surface water system was defined to include "all properties, interest ... owned or held by the city, however acquired, insofar as they relate to or concern storm or surface water sewerage, ..., in and to the drainage or storage, or both, of storm or surface waters, or both, through under or over lands, landforms, watercourses, sloughs, streams, ponds, rivers, lakes and swamps all beginning, in each case or instance, at a point where storm or surface waters first enter the storm or surface water system of the city and ending in each case or instance at a point where such stone or surface waters exit from the,storm or surface water system of the Certification of Lands and Authorization for Entry of Duwamisk/Green River Ecosystem Project at Meridian Valley Creek—Page 19 of 25 { city." The City's use of the easement area to temporarily redirect water flow from the drainage pipe is a utility purpose for the storm and surface water utility system. The necessary work for the Project will be performed within the existing easement area and will not interfere with the underlying fee interest. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. Certification of Lands and Authorization for Entry of DuwamishlGreen River Ecosystem Project at Meridian Valley Creek—Page 20 of 25 PARCEL 6 Documents Attached: • 1932 Judgment on Verdict awarding the 143`d Street right-of- way to King County for the establishment, construction, and maintenance of a county public road and highway • Protection Easement from King County to the City of Kent, King County Recording No. 20050201000919. Exhibit C of the Protection Easement is the 148 h right-of-way • Ordinance 3096, City of Kent franchise agreement with Puget Sound Energy • Power Pole location survey drawing On Exhibit A, Parcel 6 is the right-of--way labeled in yellow 148 h right-of-way, bordered by solid yellow lines, and labeled with a yellow circle with the number 6 in it (hereafter "Parcel 6"). The City obtained the Parcel 6 right-of-way through the attached 1932 Judgment on Verdict in favor of King County. The City became the successor in interest to King County when the City annexed the area in Exhibit A and B via Ordinance No. 3344(discussed in previous exceptions). Item"A" is a condition included in the Judgment on Verdict and Item"B" is the existing utilities within the right-of-way. A. CONDITION IN JUDGMENT ON VERDICT 1. Identification of third party interests: The Judgment on Verdict awarding Parcel 6, the 148ft Avenue Southeast right-of-way, to King County contains the condition that the property be used for public road and highway purposes. 2. Assessment: The City of Kent is the successor in interest to King County's interest in Parcel 6 right-of-way via annexation by Ordinance No. 3344. Should it be determined that the relocation project does not fall within the condition of the deed, the adjoining land owners would own the remaining property interests. King County is the adjoining land owner and King County has granted the City of Kent an easement for the Project as shown in Exhibit C to the Protection Easement attached. As the holder of the right-of-way interest and the beneficiary of the easement, the City of Kent controls the interests necessary to construct and protect the Project. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. B. EXISTING UTILITIES WITHIN THE RIGHT-OF-WAY 1. Identification of thiW party interests: Within the 148`h right-of-way there are PSE power lines shown as a pink dashed-dot line on Exhibit B. 2. Assessment: The power lines are located within the footprint of the Project as shown by a dotted white line on Parcel 6. See the attached drawing for the Power Pole Locations signed by a professional land surveyor Eric Knowles showing that the power lines are located within Parcel 6. The power lines will not interfere with the Project and Certification of LandsandAuthorhationfor Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 21 of 25 the Project will not interfere with the power lines because there are no Project features in the immediate area of the power lines and any maintenance performed by PSE on the power lines is governed by the City's franchise with PSE, which provides that PSE is required to "restore the surface of the Franchise Area to at least a condition the same as it was in immediately prior to any such disturbance."20 Ordinance No. 3096, the PSE Franchise with the City,is attached. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. 20 ordmance 3096,page 9,Section 9. Certification of Lands and Authorization for Entry of DuwamisWGreen River Ecosystem Project at Meridian Valley Creek—Page 22 of 25 PARCEL 7—TEMPORARY DISPOSAL SITE Documents Attached: • Deed,from Upland Industrial Development Company to the City of Kent,King County Recording No. 890720105 • Deed from Union Pacific Land Resources Corporation to the City of Kent,King County Recording No. 8212130085 • Deed from City of Kent to City of Kent for right-of-way and utility purposes,King County Recording No. 20040416001870 • Deed from Union Pacific Land Resources Corporation to the City of Kent Recording No. 8411070009 • Deed from Upland Industrial Development Company to the City of Kent Recording No. 9312162620 • Pacific Northwest Title Company Owner's Policy for title insurance,policy number 1093-213822 Parcel 7 is shown on Exhibit C and outlined in a solid orange line. The City obtained title to Parcel 7 through the five deeds attached and referenced above. An evaluation of the outstanding third party interests identified of record in the owner's policy for title insurance is provided below. Special Exceptions 1 through 8 are addressed in items A through H below. A. SPECIAL EXCEPTION 1. 1. Identification of third party interests: Union Pacific Land Resource Corporation (Union) gave the City of Kent a deed to the property to be used "exclusively for the preservation of open space for the scenic enjoyment of the general public." This exception is noted in the table on Exhibit C. 2. Assessment: The fill from construction of the Project will be used to fill-in spots on Parcel 7 that have been warn away by excessive use from the public. The use of Parcel 7 as a disposal site will not interfere with its use as open space for scenic enjoyment. The fill will not deter from the scenic enjoyment of the open space. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. B. SPECIAL EXCEPTION 2. 1. Identification of third party interests: Covenant in the deed to the City of Kent providing that the City will make no use of the property for lagoon or wetland projects that will cause adjacent property to become subject to a wetland buffer. This exception is noted in the table on Exhibit C. 2. Assessment: The use of the property as a disposal site is not a use for a lagoon or wetland that will cause adjacent property to become subject to wetland buffers. Certification of Lands and Authorization for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 23 of 25 1V 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. C. SPECIAL EXCEPTION 3(Same document as Special Exception 1). 1. Identification of third party interests: Union Pacific Land Resource Corporation(Union) gave the City of Kent a deed to the property in which Union reserved in the deed all mineral rights "but without entering upon or using the surface of the lands hereby quitclaimed, and in such manner as not to damage the surface of said lands or interfere with the use thereof." This exception is noted in the table on Exhibit C. 2. Assessment: The reservation of mineral rights will not interfere with the Project because Union cannot disturb the surface of the land if it exercises this right. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. D. SPECIAL EXCEPTION 4. 1. Identification of third party interests: The deed from Union Pacific Land Resources Corporation (Union) to Upland Industrial Development Company (Upland) reserves for Union all mineral rights "without entering upon or using the surface of the land herby quitclaimed and in such a manner as not to damage the surface of said land or to interfere with the use thereof." This exception is noted in the table on Exhibit C. 2. Assessment: The reservation of mineral rights will not interfere with the Project because Union cannot disturb the surface of the land if it exercises this right. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. E. SPECIAL EXCEPTION 5. 1. Identification of third_party interests: As owner, the City of Kent established a setback restriction within which"no buildings or structures may be erected or placed." This exception is noted in the table on Exhibit C. 2. Assessment: The setback restriction will not interfere with the Project because use as a disposal site will not involved the construction of'buildings or other structures. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. Certification of Lands and Authorizatim for Entry of Duwamish/Green River Ecosystem Project at Meridian Valley Creek—Page 24 of 2$ ~ F. SPECIAL EXCEPTION 6. 1. Identification of third party interests: This exception involves "[a]ny questions that may arise due to the shifting and changing in course of Green River (White River). 2. Assessment: Any shift in the course of the Green River would not interfere with the use of Parcel 7 as a disposal site because no structures or other improvements would be lost due to the shift. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. G. SPECIAL EXCEPTION 7. 1. Identification of third p interests: This exception is for the right of the state of Washington to that portion, if any, of the property that lies within the ordinary high water mark of the Green River. 2. Assessment: The property to be used for a disposal site does not lie within the ordinary high water mark of the Green River. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. H. SPECIAL EXCEPTION 8. 1. Identification of third party interests: This exception is for any prohibition of or limitation of use, occupancy, or improvement of the land resulting from the rights of the public or riparian owners to use any portion which is now or has been formerly covered by water. 2. Assessment: This use of Parcel 7 as a disposal site will not involve the use of property currently covered by water. As for any areas that were formerly covered by water, soil disposal will not interfere with any rights that public or riparian owners may have to use any portion of Parcel 7. 3. Plan to Resolve: No resolution is necessary as there is no interference with the Project. Si r DATE: �Aithur` " atnck,WSBA#19798 Attorney for City of Kent Deputy City Attorney Certification of Lands and Authorization for Entry of Duwamish/Green.River Ecosystem Project at Meridian Valley Creek—Page 25 of 25