HomeMy WebLinkAboutPW07-102 - Original - Miles Sand & Gravel - S 228th Street BNSF Grade Separation - 06/06/2007 Records Management.
KENO- Document
WASHiNGTON
_ �v
s�
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission to City Clerks Office. All
portions are to be completed, if you have questions, please contact Mary Simmons, City
Clerks Office.
Vendor Name: Miles Sand & Gravel
Contract Number: s 0
This is assigned by Mary Simmons
Vendor Number:
Project Names: S. 228th Street BNSF Grade Separation
Contract Effective Date: June 13, 2007
Contract Termination Date:
Contract Renewal Notice (Days):
Number of days required notice for termination or renewal or amendment
Contract Manager: Mark Madfai
Department: Engineering
Abstract:
Miles batch plant facility modifications.
ADCL7832 07102
AGREEMENT
This Agreement is entered into this 6th day of June 2007, between the City of
Kent ("the City") and Miles Sand & Gravel ("Miles"). The City and Miles will be
referred to herein collectively as the"Parties."
BACKGROUND
The City intends to construct an overpass ("the Project") on South 228th Street at
the BNSF railroad tracks as contemplated in the City's six-year Transportation
Improvement Plan. As a result of the overpass construction, two of three existing
driveways into properties owned by Miles adjacent to the overpass will be permanently
closed. These existing driveways are located at and serve the Miles concrete batch plant
facility (at 8045 S. 228th Street) and an adjacent Miles-owned warehouse and office
building (at 8041 S. 228th Street). These properties shall be referred to herein as Miles
Parcel A (or "Batch Plant Facility") and Miles Parcel B (or "Warehouse"), respectively.
The two parcels with their existing driveways and facilities are shown on Exhibit A
Aerial Photo attached hereto. The two driveways that must be closed to accommodate
construction of the Project are (1) the only existing driveway into the Miles Parcel B
Warehouse (Existing Driveway #1 on Exhibit A), and (2) one of the two existing
driveways into the Miles Parcel A Batch Plant Facility (Existing Driveway#2 on Exhibit
A). The third existing driveway, which presently serves only the Parcel A Batch Plant
Facility, will remain but must be modified to serve both Parcel A and Parcel B (Existing
[Miles Ag"6-6-07 doc] 1
Driveway#3 on Exhibit A). That modification, in turn, will require modifications to the
Batch Plant Facility located and operating on Parcel A.
The City of Kent contracted with Westmar Consulting Engineers ("Westmar") to
advise the City on possible reconfiguration of the Parcel A Batch Plant Facility in order
to assure continued operation of the Batch Plant Facility while also accommodating
vehicular traffic into and out of Miles Parcel B via the one existing Parcel A driveway
that will remain after construction of the Project. Westmar prepared several alternatives
for the plant modification which were reviewed by Walt Miles and Mike Schuh of Miles
Sand & Gravel and Tim LaPorte, Ken Langholz, Mark Madfai and Randy Walton of the
City of Kent. The attached Exhibit B-depicts the alternative preferred by, and agreed to
by, the Parties.
Now, therefore the parties agree as follows:
1. Plans and Specifications.
At its sole cost and expense, the City will cause Westmar and Geoengineers
(collectively the "Consultants") to prepare final plans and specifications for the Batch
Plant Facility modifications, subject to Miles' written approval which will not be
unreasonably withheld. The object is to provide Miles with a quality replacement plant
causing as little disruption to Miles' operation as practicable. A general description of
the plant modifications is as follows:
a. Retaining walls will be constructed around three sides of the
existing gravel/aggregate storage piles (thus confining the piles and
providing more space for reconfiguration of the plant).
[Miles Agmt 6-6-07 doc] 2
b. A "batch plant" provided by Miles will be installed which will
include three silos for the cement and fly ash, an aggregate feed
conveyor, and an aggregate hopper. The existing batch plant will
remain in operation until the replacement batch plant is nearing
completion, at which point the existing batch plant will be
surplused.
C. A new truck wash rack will be constructed adjacent to the batch
plant.
d. A new batch plant office approximately 20' by 50' will be
constructed. A new add mixture storage pad approximately 10' by
54' will be constructed adjacent to the office.
e. All utilities including power, telephone and gas, water and sewer
will be extended to the new building and batch plant.
f. The existing aggregate feed conveyor from the stock piles will be,
if practicable (as determined by Miles), shortened and reused. If
the existing aggregate feed conveyor must be replaced, the
replacement cost will be borne by Miles.
g. A new aggregate conveyor transfer tower will be constructed with
a new aggregate feed conveyor to the newly installed replacement
batch plant.
h. The existing drive-over truck dump will remain in place. The
drive up ramp configuration will be modified slightly to
accommodate the new truck path, and a new eeelegy blesl—E
St.cl.�- p;ft
[Miles Agmt 6-6-07 doc] 3
retaining wall will be constructed to confine the drive-up ramp. A
new concrete driveway will be constructed from the 35-foot wide
gate to the truck dump area. A new pervious concrete driveway
will be installed on the ready mix, cement, and aggregate truck
paths at all locations.
i. The existing stockpile feed conveyor will be reused in place.
j. The existing reversing stockpile conveyor will be, if practicable (as
determined by Miles), reused in place and extended to the south to
access a new specialty aggregate bin. If the existing conveyor
must be replaced,the replacement cost shall be borne by Miles.
k. A new specialty aggregate bin will be installed adjacent to the new
wall constructed at the south end of the stockpiles over the existing
tunnel.
1. The tunnel under the aggregate piles and the aggregate feed
conveyor inside the tunnel will be, if practicable (as determined by
Miles), reused in place. If replaced, the replacement cost shall be
borne by Miles.
in. New primary and secondary processing ponds will be constructed
along with drainage facilities (i.e., trench drains and pipes for
water to access the ponds).
n. The existing Miles business sign will remain in place.
o. A new concrete driveway will be constructed along the frontage of
the Parcel A Batch Plant Facility to access the Parcel B
[Miles Agmt 6-6-07 doc] 4
Warehouse. This new driveway will include an eight-foot-high
chain link fence (on the south side of the driveway) with gates to
secure the entire area of the concrete plant operations. The
location of the new driveway and the other features of the Work
described in the above list are shown on Exhibit B.
2. Permits.
After the plans and specifications have been approved by Miles, Westmar will
submit for permits,which the City will expedite. The City will pay all permitting costs.
3. Work to be Performed by Miles.
The work covered by the plans and specifications (except the new driveway as
described in 1(o)) will be performed by Miles, directly or through subcontractors hired by
Miles. Subject to the provisions of paragraphs 4 and 10 below, the work will commence
within 30 days of the date all permits are issued, and be performed as expeditiously as
practicable (which Miles estimates to be four months, barring weather impacts and any
other events beyond Miles' reaso le control). The City's goal is to have the work
Fe 60. ft,!D Z`I ,,*.y s^�
completed by §atmafy34, 2008, nd both parties pledge their good faith efforts to cause
that to occur. However, and in no event, shall the City claim damages against Miles for
failure to meet the City's =awm7--R., 2008, completion goal unless such failure results
from willful delay or negligence of Miles. All improvements and work performed shall
belong to Miles. All salvage items shall also belong to Miles, but the City shall be
credited for the salvage value of the items salvaged. Salvage value shall be as agreed to
by the Parties after consultation with Westmar.
[Miles Agmt 6-6-07.doc] 5
4. Payment for Work Performed by Miles.
The City agrees to pay for all work performed by Miles to accomplish the
reconstruction work on the Batch Plant Facility based on the final plan as agreed to by the
parties. Payment for work shall be on a time and materials basis. The City shall have 5
days to review and accept the bill or request additional substantiation for the costs. If
accepted, the bill will be paid within 30 days following the 5 day review period. Time
shall include, but not be limited to, reasonable time for supervision and clerical time and
also legal time reasonably necessary to reach this Agreement. Miles understands that the
City may request Westmar to prepare an estimate of the costs of the work. Miles agrees
to cooperate with Westmar in preparing such estimate. The estimate shall not be binding
upon Miles in any way.
Anything in this paragraph 4 or elsewhere in this Agreement to the contrary
notwithstanding, it is understood that Miles will obtain an estimate for a replacement
concrete batch plant with the same capabilities and capacities as the existing. The
estimate will be presented to the City for approval. Within 35 days of approval of the
estimate, the City will pay Miles the amount of any required down payment ("Down
Payment") for the replacement batch plant. Miles will use the Down Payment proceeds
to promptly order a replacement concrete batch plant. If the replacement batch plant has
upgraded/increased capabilities and capacities as compared with the existing batch plant,
any additional costs associated with the upgraded/increased capabilities and capacities of
the replacement concrete batch plant will be the responsibility of Miles. Upon receipt of
the City's Down Payment, Miles shall have not less than eight months to complete the
[Miles Agmt 6-6-07 doc] 6
project. The City shall make any additional payments for the replacement batch plant up
to the amount of the approved estimate as they become due.
5. Changes in the Work.
If at any time it appears to Miles that changes in the work are advisable, it will
request approval from the City. If the request is not denied in writing within three days
of submittal, it will be deemed approved. No such request will be denied unless the
request is unreasonable. The City shall have the burden of showing unreasonableness of
the request.
6. City to Construct Driveway.
When Miles informs the City that Miles' work is nearing completion, the City
will promptly commence and complete the driveway and other work described in
paragraph 1(o) above, at the City's sole cost and expense.
7. Driveways to Remain Open.
The City will not close any driveways to the Miles properties until the new
concrete plant is operational and the new driveway is completed.
8. Access.
Miles will allow the City and its consultants access to the Batch Plant Facility and
Warehouse properties at all reasonable times for the purposes of constructing the
driveway pursuant to this Agreement and field reconnaissance for appraisal and design,
including but not limited to surveying, taking measurements, soil borings and samples,
photographs, and other tasks required to perform the final design work. The City will
provide reasonable advance notice to Miles for any access and shall not detrimentally
impact Miles' operations.
[Miles Agmt 6-6-07 doc] 7
9. Possession and Use Agreement.
The Parties shall promptly enter into a possession and use agreement which shall
be in substantially the same form as the attached Exhibit C.
10. Damages.
The City has hired qualified appraisal and review appraisal firms to determine for
the City the amount of just compensation to which Miles will be entitled as a result of the
City's taking and/or damaging of property and property rights needed for the City's
Overpass Project. Within 30 days of execution of the possession and use agreement, the
City will pay to Miles the amount of its original offer(related to the underpass project) of
$94,025. Such amount shall be increased by the amount of the City's review appraisal in
excess of $94,025 at such time as the review appraisal is completed. Payment of this
amount shall operate in all ways as the equivalent of a deposit into the court registry that
the City would make upon entry of a stipulated order granting immediate possession and
use in the event a condemnation lawsuit had been filed. In the event the Parties are
thereafter unable to negotiate a final resolution as to compensation, the City will file a
lawsuit in eminent domain to submit the matter of compensation to the King County
Superior Court for judicial determination.
The City acknowledges that its Project will damage Miles' properties (Parcels A
and B). One of the purposes of this Agreement is to mitigate and or compensate for
certain of those damages. Miles' damages include, without limitation:
a. The value of an easement over Parcel A to accommodate the new
driveway needed to access the Parcel B Warehouse from the
Parcel A driveway.
[Miles Agmt 6-6-07 doc] 8
b. The value of a temporary construction easement and a utility
easement needed for the City's Project.
C. Damage if any to the remainder of Parcels A and B including, if
applicable, reduced utility of either parcel for future activities;
damages due to loss of visibility and reduced or eliminated street
frontage; and damages, if any, resulting from revised traffic
circulation.
d. The cost of reconfiguring existing improvements on Parcel A.
Payment of those costs is provided for in this Agreement.
e. Damage to Miles resulting from operational downtime caused by
performance of the work described in paragraph 1. The Parties
agree that Miles will likely be precluded from operating its batch
plant for a period of time during which construction activities
pursuant to this Agreement are being performed ("operational
downtime"). The amount of damages suffered by Miles related to
operational downtime, if any, shall if possible be determined by the
Parties with the assistance of Westmar separate and apart from the
eminent domain appraisal process referred to above. However, in
the event the Parties are unable to agree on the amount of
compensation to which Miles is ultimately entitled for operational
downtime, the matter shall be determined through the judicial
process as part of an eminent domain lawsuit to be filed by the
[Miles Agmt 6-6-07 doc] 9
City pursuant to the Parties' Possession and Use Agreement dated
June 6, 2007.
f. Damage if any to which Miles may be legally entitled resulting
from temporary restrictions on access or circuity of travel caused
by the City's construction of the Project. The amount of such
damage, if any, shall if possible be determined by the Parties with
the assistance of Westmar separate and apart from the eminent
domain appraisal process referred to above. However, in the event
that the Parties are unable to agree on the amount of compensation
to which Miles is entitled for this item, the matter shall be
determined through the judicial process as part of an eminent
domain lawsuit to be filed by the City pursuant to the Parties'
Possession and Use Agreement dated June 6, 2007.
11. Arbitration.
Within five days of a demand for arbitration, any dispute, controversy or claim
arising out of or in connection with this Agreement (excluding compensation matters
within the scope of the eminent domain appraisal and excluding damages for operational
down time as addressed in paragraph 10 g. above) shall be submitted to and settled by
binding arbitration in the City of Tacoma, Washington, pursuant to the rules then in effect
of the Judicial Arbitration&Mediation Services, Inc. ("JAMS"). If the parties are unable
to agree on an arbitrator, JAMS may appoint the arbitrator. Any award rendered shall be
final and conclusive upon the parties and a judgment thereon may be entered in the
[Miles Agmt 6-6-07 doc] 10
highest court having jurisdiction. The cost of the arbitration shall be paid by the non-
prevailing party and the prevailing party shall be entitled to its reasonable attorneys' fees
and costs. In the event the non-prevailing party institutes judicial proceedings
challenging the arbitration award, the party that substantially prevails in such judicial
proceeding shall be reimbursed for all costs of such proceeding, including attorneys' fees.
In the event JAMS ceases to exist, the dispute, controversy or claim shall be resolved by
arbitration as provided in RCW Chapter 7.04 or any substitute or comparable provision.
12. Miles' Non-Litigation Costs.
The City has paid Miles $17,928.03 for all reasonable attorney fees and consultant
costs through January 1, 2007. The City reimbursed Miles for these costs because they
resulted substantially or wholly from Miles having to evaluate, study, research and
negotiate with respect to the City's prior decision, since modified, to construct an
underpass rather than an overpass.
The City agrees that for purposes of any future eminent domain lawsuit, the
attorney and other fees to which Miles will potentially be entitled shall be those fees
incurred by Miles after January 1, 2007.
13. Entire Agreement.
There are no verbal or other agreements which modify or affect this Agreement,
and the parties agree that this Agreement constitutes the full and complete understanding
between them.
14. Authority.
Each of the parties represents it has full power and authority to enter into this
Agreement and to carry out all actions required of it under this Agreement. Each of the
[Miles Agmt 6-6-07 doc] 11
parties will deliver to the other party such written evidence of authority as the other may
request, including but not limited to attorney's opinions. If an ordinance is required by
the City to approve this Agreement and/or payment of the monies required, such
ordinance shall be promptly adopted.
Executed the date first above written.
Miles Sand & Gravel Company City o t
By,Gj"G7 By
Its Its
�"'�'� �t
AWIZoV,r-O y fAS To FC�
/ru)-A.. l� 14'`
-rook VP>WI5AKrE, C TY /-Y(O►ZNe`/
[Miles Agmt 6-6-07 doc] 12
STATE OF WASHINGTON )
ss.
County of r) )
I certify that I know or have satisfactory evidence that Wit E' Jr
is the person who appeared before me, and said person acknowledged that [he][she]
signed this instrument, on oath stated that [he][she] was authorized to execute the
instrument and acknowledged it as the _Pfr5 jeof of Miles Sand & Gravel to
be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument. -{
DATED this J )7 day of �JUhZ—' , 2007.
(Type/Print Name above)
Notary Public in and for the
17 State of Washington, residing at 6V 1►,°)v"
�^,}'` My appointment expires: )O -9U-'Oq
ts" 1�� �
STATE OF WASHINGTON )
ss.
County of )
I certify that I know or have satisfactory evidence that ' t� � CJ I(K
is the person who appeared before me, and said person acknowledged- hat [he][she]
signed this instrument, on oath stated that [he][she] was authorized to execute the
instrument and acknowledged it as thebW chA 3\N 6 fft(fWf the City of Kent to be the
free and voluntary act of such party for-die uses and purposes mentioned in the
instrument.
DATED this 1t l day.VW 2 2007.
Notory Public (Type/Pnnt Name above)
state of w0ngton Notary Public in and for the I _
HEATHER M THOMAS State of Washington, residin a MY Appointment Expbes Apr 17, 200g g
My appointment expires:
[Miles Agmt 6-6-07 doc] 13
EXHIBIT LIST
Exhibit A Aerial photo showing Miles Parcels A and B
with existing driveways and facilities
Exhibit B Westmar's reconfiguration plan agreed to by the Parties
Exhibit C Possession and Use Agreement
[Miles Agmt 6-6-07 doc] 14
Exhibit A
,.I ",f^tl�,+:w...,+�m. •...-, wy n 1�(.. +,w» ., p �s
rq
T ^
ag
m n Tsi
i
.. , rq aim • '� -
" >' c_ 'aaaae:�w�acazr�r�.r'7.►_�' f, �Fa x' � ,
p D
a J
ell I
•x � � �� � 1\\- � *��� A�1 it � $� t1
. x
mt
44 A
.e^
V .
c
• `v. t�` i4>i (i7� Qit t 4 A' IW wb
f �
jixY a
Exhibit B
I �
I
I
I
-----
-- - E€� $
I I
I I I
, I
I I I j
I I
1
--_____—_
�VN
$ � \"ispor
�S /I I I •T I C� I
a�D
m \ \ �
x \
x �\
w 1 — \
--i \
W \\\
Rf�
�l@
Exhibit C
MAIL TO:
Property Management Division
City of Kent
220 4th Avenue South
Kent, Washington 98032
Attn: Frank Grewell/Carol Storm
POSSESSION AND USE AGREEMENT
Public Right of Way Easement for Utility Purposes
City of Kent South 22811, Street Grade Separation Project
Miles Sand and Gravel Parcel (#553878)
This Possession and Use Agreement ("Agreement") is entered into on the date last
written below,between the City of Kent, a municipal corporation (the "City" or "Kent"),
and Miles Sand & Gravel Co., a Washington corporation ("Miles" or"Owner"). The City
and Miles are referred to herein collectively as "the Parties."
RECITALS
The City has determined that it will construct a Railroad Grade Separation Overpass on
South 2281h Street (the "Project") at the BNSF railroad tracks adjacent to real property
owned by Miles. In order to construct the Project it is necessary for the City to acquire
from Miles—through condemnation if necessary—a Utility Easement and a Temporary
Construction Easement("TCE"),and to permanently close two of three existing driveways
into properties owned by Miles adjacent to the overpass. These existing driveways are
located at and serve the Miles concrete batch plant facility (at 8045 S. 228th Street) and an
adjacent Miles-owned warehouse and office building (at 8041 S. 228th Street). These
properties shall be referred to herein as Miles Parcel A(or"Batch Plant Facility")and Miles
Parcel B(or"Warehouse"), respectively. The two parcels with their existing driveways and
facilities are shown on Exhibit C (aerial photo attached hereto). The two driveways that
must be closed to accommodate construction of the Project are (1) the only existing
driveway into the Miles Parcel B Warehouse (Existing Driveway #1 on Exhibit C), and (2)
one of the two existing driveways into the Miles Parcel A Batch Plant Facility (Existing
Driveway #2 on Exhibit C). The third existing driveway, which presently serves only the
Parcel A Batch Plant Facility,will remain but must be modified to serve both Parcel A and
Possession/Use Agreement 6-6-07 Page I of 6
Parcel B (Existing Driveway #3 on Exhibit C). That modification, in turn, will require
modifications to the Batch Plant Facility located and operating on Parcel A. The Parties'
rights and obligations with respect to those modifications are set forth in an Agreement
between the Parties dated A U 2007 /-47
The Utility Easement and Temporary Constru asement area are depicted on the
drawing attached hereto as Exhibit A. The legal descriptions for the Miles Parcels as a
whole and for the two easements over the Miles Parcels in particular are attached as Exhibit
B. The City represents that the Utility Easement and Temporary Construction Easement
areas shown on Exhibit A are accurately described on Exhibit B and encompass 7398 and
2472 square feet, respectively. For informational purposes,the forms of easement that the
Parties' contemplate Miles will ultimately execute are attached as Exhibits E (Utility
Easement) and F (Temporary Construction Easement.) Easements will not be executed
until final resolution of just compensation issues, whether by settlement or by judicial
process.
The City initially offered Miles a total of $94,025 for various property and/or property
rights sought from Miles, plus related damages,but that offer was based on an underpass
design for the grade separation. The City has decided to construct an overpass and has
requested from qualified appraisal and review appraisal firms a new appraisal based on the
new project.
The Parties recognize that it will benefit the City to obtain as soon as possible all property
and/or property rights necessary to accommodate the contemplated Overpass Project.
Accordingly, the Parties enter into the following agreement:
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements, covenants and
conditions herein, the Parties agree as follows: �'�"`
1. Miles agrees that as of the date oofKt ih s Agreement, and pursuant to the
provisions of the Parties' Agreement dated 1, ,, 2007 (a copy of which is attached as
Exhibit D hereto) the City may take possession of and use the easement areas shown on
Exhibit A and legally described in Exhibit B, and may close Existing Driveways 1 and 2
identified on Exhibit C.
Possession/Use Agreement 6-6-07 Page 2 of 6
2. The Parties agree that they need additional time to negotiate with respect to
compensation for the taking and for driveway closures and for any and all damages to
which Miles may be legally entitled related to any aspect of the City's Project.To facilitate
such negotiation without the necessity of mcurring condemnation lawsuit-related expenses,
the City agrees that it will not file a condemnation lawsuit(unless Miles consents otherwise
in writing) until, at the earliest, December 30, 2007, unless requested in writing to do so by
Miles. If Miles makes such written request,then the City will file such a lawsuit within 20
days of such written request.
3. Anything in paragraph 2 to the contrary notwithstanding, in the event the
Parties are unable by December 30,2007(or a later date if mutually agreed to in writing by
the Parties)to agree upon compensation for the interests sought to be acquired by the City,
plus any and all damages to which Miles may claim entitlement related to any aspect of the
City's Project, the City will file a condemnation lawsuit in order to present the issue of
compensation to the court or a jury. The City will file this lawsuit to facilitate resolution of
Miles' claims even if (a) Miles has agreed upon compensation for the property and/or
property rights acquired by the City and (b) Miles contests only damages other than fair
market value of such rights. Miles agrees that upon the City's filing of such a
condemnation lawsuit, Miles will stipulate as to the threshold issue of public use and
necessity by executing a "Stipulated Order of Public Use and Necessity" to be drafted by
the City and approved by Miles' attorney.
4. The City agrees that Miles'execution of this Possession and Use Agreement will
be recognized as,and will be accorded the same legal effect(pursuant to RCW 8.04.090)as,
a stipulation by Miles to an Order Granting Immediate Possession and Use, including
determining Miles' potential right (pursuant to RCW 8.25.070) to recover attorney fees in
the event compensation is ultimately decided by the court or by jury. In the event that
attorney or expert witness fees are ultimately awarded pursuant to RCW 8.25.070, fees
eligible for award by the court shall include all such fees incurred subsequent to January 1,
2007.
5. Within thirty calendar days of the date upon which this agreement is executed,
the City shall pay to Miles the amount of its original offer: $94,025.00. This amount shall be
increased by the amount of the City's new review appraisal in excess of $94,025 at such
time as the review appraisal is completed. This amount, which would ordinarily be paid
into the Court Registry if this matter were already before the court pursuant to a Petition
for Condemnation, shall be a part of and a credit toward any final compensation amount
whether determined through negotiation or through the judicial process. Neither this
Possession/Use Agreement 6-6-07 Page 3 of 6
payment nor anything else in this Agreement, however, shall prejudice Owner's right to
just compensation pursuant to Washington State law,nor shall this Agreement or any term
contained herein be construed as evidence of, or as an admission by any Party of, fair
market value.
IN WITNESS WHEREOF,this Right of Entry Agreement has been executed this 6th
day of June, 2007.
Owner:
Miles Sand and Gravel Co., a Washington corporation
by
Name:
President, Miles Sand and Gravel Company
STATE OF WASHINGTON)
)SS
COUNTY OF KING )
I, the undersi ned, a Notlp)�
Public in and for the State of Washington, hereby
certify that on this �&y of 2007, personally appeared before me
1A,h It m ley to me known to be the individual(s) described in and who
executed the foregoing instrument and acknowledged that they signed and sealed the same
as their free and voluntary act and deed for the uses and purposes therein mentioned.
;siora; Print Name: CQ �' �/�►nSPh
NOTARY NotaryNotary Public in and for the
State of Washington residing at
c�. FL°'l!C
My commission expires O ' o-G 9
Possession/Use Agreement 6-6-07 Page 4 of 6
City/of Kent
b GL-�
Public Works Director
STATE OF WASHINGTON)
)SS
COUNTY OF KING )
I, the undersigned, a Not ry Public in and for the State of Washington, hereby
certify that on this �15 day of J1� Af— 2007, personally appeared before me
1M lw J, LA vz( tome known to be the individual(s) described in and who
executed t14 foregoing instrument and acknowledged that they signed and sealed the same
as their free and voluntary act and deed for the uses and purposes therein ,mentioned.
*int e:��f Il/l Tl'16YY1A5
Notary PtlpgC Notary Public in and for the
dote of
HEATHER State of Washington residing at
My APPWntment Expyes Apr 17,2WO ILW I
�^ My commission expires g
Possession/Use Agreement 6-6-07 Page 5 of 6
Exhibit List for Possession and Use Agreement
Exhibit A Drawing depicting easement areas
Exhibit B Legal descriptions for Miles Parcels and for
easement areas on the parcels
Exhibit C Aerial photo showing parcels and existing
driveways
Exhibit D Parties' June 6, 2007 Agreement (without any
exhibits attached)
Exhibit E Form of Utility Easement
Exhibit F Form of Temporary Construction Easement
Possession/Use Agreement 6-6-07 Page 6 of 6
Exhibit A
`XV,AVMV<tl iSNB
4 Jss� Nu 8i � r 1" _--�—r•
---- -T--- , w ------L __-
g so$ § a 1p
� gjig
5 1M aW I 6 1 1 qqYY� ~ 9 N
f y i
8 0
—
m`v
dog >? M 1 rq w I la, I a s z
a$ #m a ^re I n/Ir 1,
y \ P Ifwohr
ti � I1T o I 1 ��gNi
lk\\
m I \ \4
m]m] h ��G ].rn_tr Mier --_
It I'm �q
f m d n \\' 83rd AVE. S.
4.4
v \ _
Q x mrw E 1J1881 H IOTµ'f 1316M'
m rn \
x �\
a W
G\Deslgn102-3013\dwg1MOU\ExhIMIC dwg.6/5/20O7 11 24 20 AM
Exhibit B
1
PACIFIC Noxr[-IwF'st"h'ILE
Cnmpun ..f WvFnya+n Inc
TO: City of Kent 215 Columbia Street
220 4th Avenue South Seattle,Washington
Kent, WA 98032 98104
Attn: Jerry McCaughan
Ref.# South 227th St. Grade Separation
SUPPLEMENTAL REPORT #2
PNWT Order Number: 553878
Seller: Miles Sand & Gravel
Buyer/Borrower: City of Kent
The following matters affect the property covered by this order:
• The legal description has been amended to read as follows:
PARCEL A:
That portion of the southeast quarter of the northeast quarter of
Section 13, Township 22 North, Range 4 East, W.M. , in King County,
Washington, lying northwesterly of right-of-way of Primary State
Highway No. 5 condemned by the State of Washington under King County
Superior Court Cause No. 657464 and lying southerly of the south
line of South 228th Street as established by deed dated January 12,
1969 and recorded under Recording Number 6293026, records of King
County, Washington; and lying easterly of the west 250 feet of said
southeast quarter of the northeast quarter of said section.
PARCEL B:
The west 250 feet of the southeast quarter of the northeast quarter
of Section 13, Township 22 North, Range 4 East, W.M. , in King
County, Washington;
EXCEPT South 228th Street, as widened by condemnation under King
County Superior Court Cause No. 633010;
EXCEPT the Northern Pacific Railway right-of-way;
EXCEPT that portion conveyed to the State of Washington for Primary
State Highway No. 5 by deed recorded under Recording Number 5499517;
AND EXCEPT portion southeasterly of the northwesterly line of State
Road No. 167 condemned by the State of Washington under King County
Superior Court Cause Numbers 657464 and 650447.
END OF LEGAL DESCRIPTION
(continued)
Utility Easement
Tax Parcel 132204-9059
Title Order No. 553878
That portion of the southeast quarter of the northeast quarter of Section 13, Township 22 North,
Range 4 East, W.M., in King County, Washington, described as follows:
Commencing at the northeast corner of said Section 13; thence SO °07'46"W, along the east line
thereof, 1318.81 feet to the northeast comer of the southeast quarter of the northeast quarter of
said Section 13 and the easterly prolongation of the centerline of South 2281h Street; thence
N88036'38"W, along the north line of said subdivision and the centerline of street, 1072.09 feet
to the east line of the west 250.00 feet of said subdivision; thence SO1°08'56"W along said east
line, 50.00 feet to the south right of way margin of said street and the TRUE POINT OF
BEGINNING; thence S88°36'38"E, along said margin, 356.53 feet to a point of tangency with a
370.00 foot radius, circular curve to the left; thence northeasterly, along said curve, through a
central angle of 19°34'53", an arc distance of 126.45 feet to the northwesterly margin of SR 167,
thence S47e17'00"W, along said margin, 52.30 feet to the south line of the north 60.00 feet of
said subdivision; thence N88136'38"W, along said south line, 442.92 feet to the east line of the
west 250.00 feet of said subdivision; thence NOI008'56"E, along said east line, 15.00 feet to the
TRUE POINT OF BEGINNING.
Containing 7398 square feet as shown on the exhibit attached.
[1382239 v03 doe] -4-
Temporary Construction Easement
Tax Parcel 132204-9168
Title Order No. 553878
That portion of the southeast quarter of the northeast quarter of Section 13,Township 22 North,
Range 4 East, W.M., in King County,Washington, described as follows:
Commencing at the northeast corner of said Section 13; thence S01*07'46"W, along the east line
thereof, 1318.81 feet to the northeast corner of the southeast quarter of the northeast quarter of
said Section 13 and the easterly prolongation of the centerline of South 228th Street; thence
N88°36'38"W, along the north line of said subdivision and the centerline of street, 1072.09 feet
to the east line of the west 250.00 feet of said subdivision;thence S01'08'56"W along said east
line, 50.00 feet to the south right of way margin of said street and the TRUE POINT OF
BEGINNING,thence continuing along said east line, S01°08'56"W 10.00 feet to the south line
of the north 60.00 feet of said subdivision; thence N88136'38"W, along said south line, 246.56
feet to the easterly margin of the Burlington Northern Santa Fe Railroad right of way; thence
N06'03'10"W, along said easterly margin, 10.08 feet to the south margin of South 228th Street;
thence S88°36'38"E, along said south margin, 247.82 feet to the TRUE POINT OF
BEGINNING.
Including 2472 square feet as shown on the exhibit attached.
11382238 v03 doe) -4-
Exhibit C
P7d L4 6l l l LOOZ1919'61vp 9oolo4o16mme Ioc-mUB'soo 9
oMT .F
AL 4
••r�i. 4 5 i+ '� y G i H�F�Sy'`'[t
ny�
it t�1 •a n• ern" n� Y I�:�Tr-F}i ��t� * V k I
Wi•7t
2<
CA
o, °
4P^✓�'' iha 'rCi
Ir
-� °, r U m �` • '!' ^fin +I
of
a }t
x ..
i�. • griie W 1
d LL
�y yY I
ww
Y y' f
�a I
, r'`• La
U
to
u
Exhibit D
AGREEMENT
This Agreement is entered into this 6th day of June 2007, between the City of
Kent ("the City") and Miles Sand & Gravel ("Miles"). The City and Miles will be
referred to herein collectively as the"Parties."
BACKGROUND
The City intends to construct an overpass ("the Project") on South 228th Street at
the BNSF railroad tracks as contemplated in the City's six-year Transportation
Improvement Plan. As a result of the overpass construction, two of three existing
driveways into properties owned by Miles adjacent to the overpass will be permanently
closed. These existing dnveways are located at and serve the Miles concrete batch plant
facility (at 8045 S. 228th Street) and an adjacent Miles-owned warehouse and office
building (at 8041 S. 228th Street). These properties shall be referred to herein as Miles
Parcel A (or "Batch Plant Facility") and Miles Parcel B (or "Warehouse"), respectively.
The two parcels with their existing driveways and facilities are shown on Exhibit A
Aenal Photo attached hereto. The two dnveways that must be closed to accommodate
construction of the Project are (1) the only existing dnveway into the Miles Parcel B
Warehouse (Existing Driveway #1 on Exhibit A), and (2) one of the two existing
driveways into the Miles Parcel A Batch Plant Facility(Existing Driveway#2 on Exhibit
A). The third existing driveway, which presently serves only the Parcel A Batch Plant
Facility, will remain but must be modified to serve both Parcel A and Parcel B (Existing
[Miles Agmt 6-6-07 doe] 1
Driveway #3 on Exhibit A). That modification, in turn, will require modifications to the
Batch Plant Facility located and operating on Parcel A.
The City of Kent contracted with Westmar Consulting Engineers ("Westmar") to
advise the City on possible reconfiguration of the Parcel A Batch Plant Facility in order
to assure continued operation of the Batch Plant Facility while also accommodating
vehicular traffic into and out of Miles Parcel B via the one existing Parcel A driveway
that will remain after construction of the Project. Westmar prepared several alternatives
for the plant modification which were reviewed by Walt Miles and Mike Schuh of Miles
Sand & Gravel and Tim LaPorte, Ken Langholz, Mark Madfai and Randy Walton of the
City of Kent. The attached Exhibit B depicts the alternative preferred by, and agreed to
by, the Parties.
Now,therefore the parties agree as follows:
1. Plans and Specifications.
At its sole cost and expense, the City will cause Westmar and Geoengmeers
(collectively the "Consultants') to prepare final plans and specifications for the Batch
Plant Facility modifications, subject to Miles' written approval which will not be
unreasonably withheld. The object is to provide Miles with a quality replacement plant
causing as little disruption to Miles' operation as practicable. A general description of
the plant modifications is as follows:
a. Retaining walls will be constructed around three sides of the
existing gravel/aggregate storage piles (thus confining the piles and
providing more space for reconfiguration of the plant).
[Miles Agmt 6-6-07.docl 2
b. A "batch plant" provided by Miles will be installed which will
include three silos for the cement and fly ash, an aggregate feed
conveyor, and an aggregate hopper. The existing batch plant will
remain in operation until the replacement batch plant is nearing
completion, at which point the existing batch plant will be
surplused.
C. A new truck wash rack will be constructed adjacent to the batch
plant.
d. A new batch plant office approximately 20' by 50' will be
constructed. A new add mixture storage pad approximately 10' by
54' will be constructed adjacent to the office.
e. All utilities including power, telephone and gas, water and sewer
will be extended to the new building and batch plant.
f. The existing aggregate feed conveyor from the stock piles will be,
if practicable (as determined by Miles), shortened and reused. If
the existing aggregate feed conveyor must be replaced, the
replacement cost will be borne by Miles.
g. A new aggregate conveyor transfer tower will be constructed with
a new aggregate feed conveyor to the newly installed replacement
batch plant.
h. The existing drive-over truck dump will remain in place. The
drive up ramp configuration will be modified slightly to
accommodate the new truck path, and a new ecology block
[Miles Agmt 6-6-07 doc] 3
retaining wall will be constructed to confine the drive-up ramp. A
new concrete driveway will be constructed from the 35-foot wide
gate to the truck dump area. A new pervious concrete driveway
will be installed on the ready mix, cement, and aggregate truck
paths at all locations.
i. The existing stockpile feed conveyor will be reused in place.
j. The existing reversing stockpile conveyor will be, if practicable (as
determined by Miles), reused in place and extended to the south to
access a new specialty aggregate bin. If the existing conveyor
must be replaced, the replacement cost shall be borne by Miles.
k. A new specialty aggregate bin will be installed adjacent to the new
wall constructed at the south end of the stockpiles over the existing
tunnel.
1. The tunnel under the aggregate piles and the aggregate feed
conveyor inside the tunnel will be, if practicable (as determined by
Miles), reused in place. If replaced, the replacement cost shall be
borne by Miles.
in. New primary and secondary processing ponds will be constructed
along with drainage facilities (i.e., trench drains and pipes for
water to access the ponds).
n. The existing Miles business sign will remain in place.
o. A new concrete driveway will be constructed along the frontage of
the Parcel A Batch Plant Facility to access the Parcel B
[Miles Agmt 6-6-07.doc] 4
Warehouse. This new driveway will include an eight-foot-high
chain link fence (on the south side of the driveway) with gates to
secure the entire area of the concrete plant operations. The
location of the new driveway and the other features of the Work
described in the above list are shown on Exhibit B.
2. Permits.
After the plans and specifications have been approved by Miles, Westmar will
submit for permits, which the City will expedite. The City will pay all permitting costs.
3. Work to be Performed by Miles.
The work covered by the plans and specifications (except the new driveway as
described in 1(o)) will be performed by Miles, directly or through subcontractors hired by
Miles. Subject to the provisions of paragraphs 4 and 10 below, the work will commence
within 30 days of the date all permits are issued, and be performed as expeditiously as
practicable (which Miles estimates to be four months, barring weather impacts and any
other events beyond Miles' reasonable control). The City's goal is to have the work
completed by January 31, 2008, and both parties pledge their good faith efforts to cause
that to occur. However, and in no event, shall the City claim damages against Miles for
failure to meet the City's January 31, 2008, completion goal unless such failure results
from willful delay or negligence of Miles. All improvements and work performed shall
belong to Miles. All salvage items shall also belong to Miles, but the City shall be
credited for the salvage value of the items salvaged. Salvage value shall be as agreed to
by the Parties after consultation with Westmar.
[Miles Agent 6-6-07 doc] 5
4. Payment for Work Performed by Miles.
The City agrees to pay for all work performed by Miles to accomplish the
reconstruction work on the Batch Plant Facility based on the final plan as agreed to by the
parties. Payment for work shall be on a time and materials basis. The City shall have 5
days to review and accept the bill or request additional substantiation for the costs. If
accepted, the bill will be paid within 30 days following the 5 day review period. Time
shall include, but not be limited to, reasonable time for supervision and clerical time and
also legal time reasonably necessary to reach this Agreement. Miles understands that the
City may request Westmar to prepare an estimate of the costs of the work. Miles agrees
to cooperate with Westmar in preparing such estimate. The estimate shall not be binding
upon Miles in any way.
Anything in this paragraph 4 or elsewhere in this Agreement to the contrary
notwithstanding, it is understood that Miles will obtain an estimate for a replacement
concrete batch plant with the same capabilities and capacities as the existing. The
estimate will be presented to the City for approval. Within 35 days of approval of the
estimate, the City will pay Miles the amount of any required down payment ("Down
Payment") for the replacement batch plant. Miles will use the Down Payment proceeds
to promptly order a replacement concrete batch plant. If the replacement batch plant has
upgraded/increased capabilities and capacities as compared with the existing batch plant,
any additional costs associated with the upgraded/increased capabilities and capacities of
the replacement concrete batch plant will be the responsibility of Miles. Upon receipt of
the City's Down Payment, Miles shall have not less than eight months to complete the
[Miles Agmt 6-6-07 doc] 6
project. The City shall make any additional payments for the replacement batch plant up
to the amount of the approved estimate as they become due.
5. Changes in the Work.
If at any time it appears to Miles that changes in the work are advisable, it will
request approval from the City. If the request is not denied in writing within three days
of submittal, it will be deemed approved. No such request will be denied unless the
request is unreasonable. The City shall have the burden of showing unreasonableness of
the request.
6. City to Construct Driveway.
When Miles informs the City that Miles' work is nearing completion, the City
will promptly commence and complete the driveway and other work described in
paragraph 1(o) above, at the City's sole cost and expense.
7. Driveways to Remain Open.
The City will not close any driveways to the Miles properties until the new
concrete plant is operational and the new driveway is completed.
8. Access.
Miles will allow the City and its consultants access to the Batch Plant Facility and
Warehouse properties at all reasonable times for the purposes of constructing the
driveway pursuant to this Agreement and field reconnaissance for appraisal and design,
including but not limited to surveying, taking measurements, soil borings and samples,
photographs, and other tasks required to perform the final design work. The City will
provide reasonable advance notice to Miles for any access and shall not detrimentally
impact Miles' operations.
[Miles Agent 6-6-07.doc] 7
9. Possession and Use Agreement.
The Parties shall promptly enter into a possession and use agreement which shall
be in substantially the same form as the attached Exhibit C.
10. Damages.
The City has hired qualified appraisal and review appraisal firms to determine for
the City the amount of just compensation to which Miles will be entitled as a result of the
City's taking and/or damaging of property and property rights needed for the City's
Overpass Project. Within 30 days of execution of the possession and use agreement, the
City will pay to Miles the amount of its original offer (related to the underpass project) of
$94,025. Such amount shall be increased by the amount of the City's review appraisal in
excess of $94,025 at such time as the review appraisal is completed. Payment of this
amount shall operate in all ways as the equivalent of a deposit into the court registry that
the City would make upon entry of a stipulated order granting immediate possession and
use in the event a condemnation lawsuit had been filed. In the event the Parties are
thereafter unable to negotiate a final resolution as to compensation, the City will file a
lawsuit in eminent domain to submit the matter of compensation to the King County
Superior Court for judicial determination.
The City acknowledges that its Project will damage Miles' properties (Parcels A
and B). One of the purposes of this Agreement is to mitigate and or compensate for
certain of those damages. Miles' damages include, without limitation:
a. The value of an easement over Parcel A to accommodate the new
driveway needed to access the Parcel B Warehouse from the
Parcel A driveway.
[Miles Agmt 6-6-07 doe] 8
b. The value of a temporary construction easement and a utility
easement needed for the City's Project.
C. Damage if any to the remainder of Parcels A and B including, if
applicable, reduced utility of either parcel for future activities;
damages due to loss of visibility and reduced or eliminated street
frontage; and damages, if any, resulting from revised traffic
circulation.
d. The cost of reconfiguring existing improvements on Parcel A.
Payment of those costs is provided for in this Agreement.
e. Damage to Miles resulting from operational downtime caused by
performance of the work described in paragraph 1. The Parties
agree that Miles will likely be precluded from operating its batch
plant for a period of time during which construction activities
pursuant to this Agreement are being performed ("operational
downtime'). The amount of damages suffered by Miles related to
operational downtime, if any, shall if possible be determined by the
Parties with the assistance of Westmar separate and apart from the
eminent domain appraisal process referred to above. However, in
the event the Parties are unable to agree on the amount of
compensation to which Miles is ultimately entitled for operational
downtime, the matter shall be determined through the judicial
process as part of an eminent domain lawsuit to be filed by the
[Miles Agmt 6-6-07.docl 9
City pursuant to the Parties' Possession and Use Agreement dated
June 6, 2007.
f. Damage if any to which Miles may be legally entitled resulting
from temporary restrictions on access or circuity of travel caused
by the City's construction of the Project. The amount of such
damage, if any, shall if possible be determined by the Parties with
the assistance of Westmar separate and apart from the eminent
domain appraisal process referred to above. However, in the event
that the Parties are unable to agree on the amount of compensation
to which Miles is entitled for this item, the matter shall be
determined through the judicial process as part of an eminent
domain lawsuit to be filed by the City pursuant to the Parties'
Possession and Use Agreement dated June 6, 2007.
11. Arbitration.
Within five days of a demand for arbitration, any dispute, controversy or claim
arising out of or in connection with this Agreement (excluding compensation matters
within the scope of the eminent domain appraisal and excluding damages for operational
down time as addressed in paragraph 10 g. above) shall be submitted to and settled by
binding arbitration in the City of Tacoma, Washington, pursuant to the rules then in effect
of the Judicial Arbitration& Mediation Services, Inc. ("JAMS"). If the parties are unable
to agree on an arbitrator, JAMS may appoint the arbitrator. Any award rendered shall be
final and conclusive upon the parties and a Judgment thereon may be entered in the
[Miles Agmt 6-6-07.doc] 10
highest court having jurisdiction. The cost of the arbitration shall be paid by the non-
prevailing party and the prevailing party shall be entitled to its reasonable attorneys' fees
and costs. In the event the non-prevailing party institutes judicial proceedings
challenging the arbitration award, the party that substantially prevails in such judicial
proceeding shall be reimbursed for all costs of such proceeding, including attorneys' fees.
In the event JAMS ceases to exist, the dispute, controversy or claim shall be resolved by
arbitration as provided in RCW Chapter 7.04 or any substitute or comparable provision.
12. Miles' Non-Litigation Costs.
The City has paid Miles $17,928.03 for all reasonable attorney fees and consultant
costs through January 1, 2007. The City reimbursed Miles for these costs because they
resulted substantially or wholly from Miles having to evaluate, study, research and
negotiate with respect to the City's prior decision, since modified, to construct an
underpass rather than an overpass.
The City agrees that for purposes of any future eminent domain lawsuit, the
attorney and other fees to which Miles will potentially be entitled shall be those fees
incurred by Miles after January 1, 2007.
13. Entire Agreement.
There are no verbal or other agreements which modify or affect this Agreement,
and the parties agree that this Agreement constitutes the full and complete understanding
between them.
14. Authority.
Each of the parties represents it has full power and authority to enter into this
Agreement and to carry out all actions required of it under this Agreement. Each of the
[Miles Agmt 6-6-07.docl 11
parties will deliver to the other party such written evidence of authority as the other may
request, including but not limited to attorney's opinions. If an ordinance is required by
the City to approve this Agreement and/or payment of the monies required, such
ordinance shall be promptly adopted.
Executed the date first above written.
Miles Sand& Gravel Company City of Kent
By By
Its Its
[Miles Agmt 6-6-07.doc] 12
STATE OF WASHINGTON )
ss.
County of )
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person acknowledged that [he][she]
signed this instrument, on oath stated that [he][she] was authorized to execute the
instrument and acknowledged it as the of Miles Sand & Gravel to
be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
DATED this day of , 2007.
(Type/Print Name above)
Notary Public in and for the
State of Washington, residing at
My appointment expires:
STATE OF WASHINGTON )
ss.
County of )
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person acknowledged that [he][she]
signed this instrument, on oath stated that [he][she] was authorized to execute the
instrument and acknowledged it as the of the City of Kent to be the
free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
DATED this day of , 2007.
(Type/Print Name above)
Notary Public in and for the
State of Washington, residing at
My appointment expires:
[Miles Agmt 6-6-07.doc] 13
Exhibit E
AFTER RECORDING MAIL TO:
City of Kent
220 4th Avenue South
Kent,WA 98032
Attention: Property Management
Reference Number of Related Document: FA No. DEMO-1216(001)
Grantor(s): Miles Sand&Gravel Company
Grantee(s): City of Kent
Abbreviated Legal Description: Ptn. SE '/4 NE 1/413-22-4
Additional Legal Description is on Page(s) 4 of Document
Assessor's Tax Parcel No.: 132204-9059
Project: South 228t7i Street Grade Separation at BNSF Railway
Utility Easement
(Corporate)
THIS INSTRUMENT made this day of , 2007,by and between Miles
Sand & Gravel Company, a Washington Corporation, hereinafter called"Grantor" and CITY OF
KENT, a municipal corporation of King County, State of Washington, hereinafter called
"Grantee":
WITNESSETH: That said Grantor for valuable consideration receipt of which is hereby
acknowledged, do by these presents grant, bargain, sell, convey, and confirm forever unto the
Grantee, its successors and/or assigns, an easement for underground utilities, together with
necessary appurtenances, and together with a temporary construction easement for the
construction of a wall on City right-of-way adjacent to the north line of said utility easement,
across the following described real property situated in King County, Washington:
Refer to Exhibit"A" attached and made a part hereto
"Government Transfer under the Threat of Condemnation"
The Grantee shall have the right without prior institution of suit or proceeding at law, at
reasonable times to enter upon said property with the necessary equipment for the purposes of
altering, installation, operation, maintenance, extending, constructing, repair and reconstructing
of the said underground utilities and temporary construction of the wall or making any
connections therewith without incurring any legal obligation or liability therefore; providing that
said altering, installation, operation, maintenance, extending, constructing, repair and
reconstructing of said underground utilities and temporary construction of the wall shall be
accomplished in such a manner that the private improvements existing within this easement area
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 the Grantee.
[1382239 vO3 doe] - t -
The Grantor and the Grantee,by recording of this easement,do hereby mutually covenant
and agree as follows:
1. The Grantee agrees to indemnify and hold harmless the Grantor from and against
any and all claims, demands, actions, liabilities, losses, damages, or expense of whatsoever kind
or nature, including attorneys' fees, to any person or persons whomsoever, which may in any
manner anse by reason of act or omission of the Grantee, its agents or employees ansing out the
use of the easement hereby granted.
2. Grantor may use the easement area for driveways, walkways, parking, landscape
and any other uses which do not unreasonably interfere with the Grantee's use of the easement.
In the event it becomes necessary for the Grantee to repair or replace utilities, the Grantee at the
completion of said work shall return the property affected to a condition equal to its original
condition, including, but not limited to, repaving, reseeding, and replanting in a working manner
satisfactory to the Grantor. All maintenance and repair work will be timed at times convenient
for the Grantor and completed as expeditiously as possible.
3. The Grantee agrees that the easement area will be included for purposes of
calculating land area for zoning, setbacks and other land use purposes associated with Grantor's
adjacent property.
4. In the event of any legal action or proceeding by any of the parties to enforce any
part of this agreement, the prevailing party shall be entitled to its reasonable costs and expenses
of such action or proceeding, including reasonable attorneys' fees.
5. This agreement shall be binding upon and run with the land and shall inure to the
benefit of and be binding upon the Grantor described above and the successors and assigns and
may be enforced by any of them.
IN WITNESS WHEREOF the parties have executed this agreement this day of
) 2007.
MILES SAND&GRAVEL COMPANY CITY OF KENT
Its Its
(1392239 vO3 docl -2-
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this day of , 2007, before me a Notary Public in and
for the State of Washington, personally appeared , to me known to be
the of Miles Sand and Gravel, a Washington corporation that executed
the foregoing instrument, and acknowledged it to be the free and voluntary act of said
corporation, for the uses and purposes mentioned in this instrument, and on oath stated that they
were authorized to execute said instrument.
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, 1 have hereunto set my hand and official
seal the day and year first above written.
NOTARY PUBLIC in and for the State of
Washington,residing at
My appointment expires
STATE OF WASHINGTON )
)ss
COUNTY OF KING )
On this day of 2007, before me a Notary Public in and
for the State of Washington, personally appeared , to me known to be
the of the City of Kent, a Washington municipal corporation that
executed the foregoing instrument, and acknowledged it to be the free and voluntary act of said
corporation, for the uses and purposes mentioned in tins instrument, and on oath stated that they
were authorized to execute said instrument.
-Notary Seat Must Appear Within Thu Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
NOTARY PUBLIC in and for the State of
Washington,residing at
My appomtment expires
[1382239 vO3 dock -3-
Exhibit F
-u I
AFTER RECORDING MAIL TO:
Property Management
City of Kent
220 0 Avenue South
Kent, WA 98032
Reference Number of Related Document: FA No. DEMO-1216(001)
Grantor(s): Miles Sand&Gravel Company
Grantee(s): City of Kent
Abbreviated Legal Description: Ptn. SE '/4 NE %4 13-22-4
Additional Legal Description is on Page(s) 4 of Document
Assessor's Property Tax Parcel or Account No.: 132204-9168
Title No.: #553878
Project Name: South 228th Street Grade Separation at BNSF Railway
Temporary Construction Easement
(Corporate)
THIS AGREEMENT made this day of , 20 , by and between Miles
Sand &Gravel Company, a Washington Corporation, hereinafter called"Grantor" and CITY OF
KENT, municipal corporation of King County,Washington,hereinafter called"Grantee"
WITNESSETH:
That said Grantor, for valuable consideration does by these presents grant, bargain, sell,
convey, and confirm unto the Grantee, its successors or assigns, a temporary construction
easement to be used only during construction of the South 2281h Street Railroad grade
separations and appurtenances on, through and across the following described property situated
in King County,Washington:
Refer to Exhibit"A"Attached and made a part hereto
"Government Transfer under the Threat of Condemnation"
Said temporary construction easement shall remain in force during construction and until
such time as said South 228`h Street Railroad grade separations and appurtenances have been
accepted for maintenance and operation by the City of Kent; provided, however, that said
easement will terminate no later than two years from the date of granting this easement. The said
Grantee shall have the right, without prior institution of any suit or proceeding at law, at such
times as may be necessary to enter upon said above described property for the purpose of
construction of said South 228`h Street Railroad grade separations and appurtenances or making
any connections therewith, without incurring any legal obligation or liability therefore, provided
that such constructing of said South 228`h Street Railroad grade separations and appurtenances
shall be accomplished in such a manner that the existing improvements and land contours
(1392239 v03 doe] 1-
existing in the right-of-way shall not be disturbed or destroyed or in the even that 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 the Grantee.
Grantee agrees to indemnify and hold harmless Grantor from and against any and all
claims, demands, actions, liabilities, losses, damages or expense of whatsoever kind or nature,
including attorneys' fees, to any person or persons whomsoever, which may in any manner arise
by reason of any act or omission of the Grantee, its agents or employees arising out of the use of
the easement hereby granted.
In the event of any legal action proceeding by any of the parties to enforce any part of
this agreement,the prevailing party shall be entitled to its reasonable costs and expenses of such
action or proceedings, including reasonable attorneys' fees.
Dated this day of ,20 .
MILES SAND & GRAVEL COMPANY CITY OF KENT
Its Its
[1382238 vO3 doe) .2.
STATE OF WASHINGTON )
)ss
COUNTY OF KING )
On this day of _, 200�, before me a Notary Public in and
for the State of Washington, personally appeared , to me known to be
the of Miles Sand& Gravel Company, a Washington corporation that executed
the foregoing instrument, and acknowledged it to be the free and voluntary act of said
corporation, for the uses and purposes mentioned in this instrument, and on oath stated that they
were authorized to execute said instrument.
-Notary Sea!Must Appear Within Mrs Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
NOTARY PUBLIC in and for the State of
Washington,residing at
My appointment expires
STATE OF WASHINGTON )
)ss
COUNTY OF KING )
On this day of , 200_, before me a Notary Public in and
for the State of Washington, personally appeared , to me known to be
the of the City of Kent, a Washington municipal corporation that executed the
foregoing instrument, and acknowledged it to be the free and voluntary act of said corporation,
for the uses and purposes mentioned in this instrument, and on oath stated that they were
authorized to execute said instrument
-Notary Seat Mast Appear Within Thu Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official
sea]the day and year first above written.
NOTARY PUBLIC in and for the State of
Washington,residing at
My appointment expires
(1392238 vO3 doc) -3-