AN ORDINANCE relating to the Department of Parks and Recreation authorizing the Superintendent of Parks and Recreation to negotiate, execute, grant and convey easement rights over, under and across a portion of Fauntleroy Park for the purposes of installing, repairing, maintaining and reconstructing an existing retaining wall to repair and control landslide activity, and to accept payment and reimbursement therefor.

WHEREAS, in January, 1997, a landslide occurred affecting Fauntleroy Park and two private residential properties adjacent to the north boundary of Fauntleroy Park; and

WHEREAS, a geotechnical investigation of the affected properties determined that a retaining structure could reduce the likelihood of another landslide, thus benefiting both the private properties and the park property; and

WHEREAS, in November, 2001, the private property owners applied for and were issued Parks Revocable Use Permit Number 2002-09 allowing installation of a retaining structure, subject to certain conditions and requirements; and

WHEREAS, the Permit required that the private property owners seek an easement from the City of Seattle, granting permanent rights and continuing responsibility for the retaining structure; and

WHEREAS, the value of the easement has been determined by an appraisal; and

WHEREAS, this grant of easement is not a transaction requiring an equivalent parcel in exchange pursuant to Ordinance 118477 (Initiative 42); NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. As requested by the Superintendent of Parks and Recreation ("Superintendent"), and recommended by the Mayor, the Superintendent is authorized to negotiate, execute, grant and convey a perpetual, non-exclusive easement over, under and across a portion of real property ("Property") located in Fauntleroy Park, legally described as follows:

Beginning at the southwest corner of Parcel A of City of Seattle Short Plat No. 76-43, according to King County Recording No. 7607160576;

thence south 00 degrees 38'15" west, on production southerly of the west line of said Parcel A, 85.00 feet;

thence south 89 degrees 21'45" east, parallel with the south line of said Parcel A, 72.63 feet to the west margin of 39th Avenue S.W.;

thence north 00 degrees 53'29" east, along said west margin, 85.00 feet to the south line of said Parcel A;

thence north 89 degrees 22'48" west 73.01 feet to the Point of Beginning,

for the purpose of installing, repairing, maintaining and reconstructing an existing retaining wall to repair and control landslide activity to two residential properties adjacent thereto, substantially in the form attached hereto as Attachment 1 ("Easement Agreement"), or with such additions, modifications or deletions as the Superintendent deems to be in the best interest of the City of Seattle ("City"). The Superintendent is further authorized to accept from the grantees of said easement, for and on behalf of the City, the appraised value of the easement interest in payment thereto plus associated administrative costs in reimbursement thereto to the City.

Section 2. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and confirmed.

Section 3. The requirements of Ordinance 118477 are hereby superseded for the purposes of this ordinance.

Section 4. This ordinance shall take effect and be in force thirty (30) days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten (10) days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of ________________________, 2008, and signed by me in open session in authentication of its passage this _____ day of ___________________, 2008.

_________________________________

President __________of the City Council

Approved by me this ____ day of _____________________, 2008.

_________________________________

Gregory J. Nickels, Mayor

Filed by me this ____ day of __________________________, 2008.

____________________________________

City Clerk

(Seal)

Attachment 1. Easement Agreement

Marcia Flynn/mf

DPR Fauntleroy Park Easement ORD

February 5, 2008

Version #4

Form Last Revised on December 31, 2007 1

AFTER RECORDING, RETURN TO:

Seattle Department of Parks and Recreation

Property and Acquisition Services

800 Maynard Avenue South, 3rd floor

Seattle, WA 98134

DOCUMENT SUMMARY Document Title: RETAINING WALL EASEMENT AGREEMENT Grantor: THE CITY OF SEATTLE Grantees: 1. James H. and Anne K. Gillingham

2. Anne Speros

3. George Kuetgens Abbreviated Legal Description: Ptn E 1/2 SW 1/4 SE 1/4 S 35, T 24 N, R 3 E, WM

Additional legal is on page 9 of document. Assessor's Property Tax Parcel/Account Number: 3524039213

RETAINING WALL EASEMENT AGREEMENT

THIS RETAINING WALL EASEMENT AGREEMENT (the "Easement Agreement") dated _______________, 2008, is made by and between THE CITY OF SEATTLE, a municipal corporation existing under the laws of the State of Washington (the "City"), and JAMES H. GILLINGHAM and ANNE K. GILLINGHAM, husband and wife, and ANNE SPEROS and GEORGE KUETGENS, each as their separate estates, as their interests may appear ("Grantees"), for the benefit and in favor of the Grantees.

RECITALS

A. Grantees are the holders of fee title to certain real property described on attached Exhibit A (the "Benefited Land"). The City, acting through its Department of Parks and Recreation ("Parks"), is the holder of fee title to certain real property described on the attached Exhibit B (the "Burdened Land"). The Benefited Land and the Burdened Land are adjacent parcels of property situated within the City of Seattle, King County, Washington and are within a slide-prone area.

B. Under a REVOCABLE PERMIT TO USE OR OCCUPY PARK PROPERTY (Permit No. 2002-09) dated effective as of April 25, 2002 (the "Revocable Permit"), Parks issued to said Grantees as fee owners of the Benefited Property, a temporary permit to install, repair, maintain and reconstruct a buttress slope stabilization retaining wall upon the Burdened Land for the purpose of controlling slide activity (the "Retaining Wall"), pursuant to City of Seattle Department of Planning and Development (DPD) Project No. 2006588. As contemplated by the Revocable Permit, the Retaining Wall was subsequently installed and surveyed and the fair market value of the easement interest taken by the Retaining Wall was established by independent fee appraisal and paid to the City.

C. As a condition of the issuance of the Revocable Permit, and as required by Seattle Municipal Code section 15.04.060, Grantees agreed to indemnify, defend and hold the City and its officers, agents and employees harmless from any and all losses, claims, actions, costs, damages and expenses (including attorney's fees and costs) arising out of or resulting from any act, error or omission of the Grantees or any of their agents, subcontractors, employees and invitees in connection with any act or activity authorized by the Revocable Permit. The Revocable Permit provided that the indemnification provisions pertaining to the Retaining Wall contained therein shall survive the term of the Revocable Permit by Grantees' execution of a WAIVER AND INDEMNIFICATION AGREEMENT AND COVENANT TO MAINTAIN RETAINING WALL, of even date, which becomes a part hereof and is attached as Exhibit D (the "Indemnification Agreement").

D. This Easement Agreement is required under the terms of the Revocable Permit and pertains to the Indemnification Agreement.

E. The granting of this Easement and execution of this Easement Agreement has been duly authorized by the City by action of the Seattle City Council under Ordinance No. ______________, passed ______________, 2008.

THEREFORE, the parties agree as follows:

1. GRANT OF EASEMENT.

1.1. Retaining Wall Easement. The City hereby grants and conveys to Grantees a perpetual non-exclusive easement for the purposes of installing, repairing, maintaining and reconstructing the existing Retaining Wall for the purpose of controlling slide activity, for the use and benefit of the Benefited Land by Grantees and Grantees' heirs, successors and assigns in interest in the Benefited Property, over, under and across that portion of the Burdened Land which is legally described on attached Exhibit C (the "Easement Area"). A survey (the "Survey") of the Easement Area is recorded under King County Recording Number 20051230900019 and is incorporated herein by reference.

1.2. Maintenance and Repair Easement. The City further hereby grants and conveys to Grantees a non-exclusive temporary easement over and across that portion of the Burdened Land which lies within ten (10) feet of and adjoins the perimeter of the Easement Area for purposes of undertaking and completing the periodic inspection, repair, maintenance and reconstruction of the Retaining Wall. All such activities shall be at Grantees' expense and in accordance with the Indemnity Agreement and shall be subject to all applicable laws, regulations and ordinances of the City, including any such further building permit or other conditions as may apply to the intended work.

2. SUCCESSORS AND ASSIGNS. The covenants and conditions contained in this Agreement inure to the benefit of and bind the heirs, successors, executors, administrators and assigns of the parties hereto.

3. EASEMENT APPURTENANT. This Easement is appurtenant to the Benefited Land and therefore shall run with the land.

4. SECTION HEADINGS. The marginal headings and paragraph titles to the paragraphs of this Agreement are not a part hereof and shall have no effect on the construction of or interpretation of any part of this Agreement.

5. EFFECT ON OTHER DOCUMENTS. This Easement supersedes and replaces the Revocable Permit, but not the Indemnity Agreement provision. Both this Easement Agreement and the Indemnity Agreement as set forth herein as Exhibit D shall continue in full force and effect in accordance with their respective terms. Grantees shall maintain a liability insurance policy with the City named as an additional insured for any activity associated with the Retaining Wall.

IN WITNESS WHEREOF, the City has executed this Easement Agreement as of the date first written above by its duly appointed and authorized officer.

"CITY": THE CITY OF SEATTLE, a municipal

corporation

By: ________________________________

Its: ________________________________

Department of Parks and Recreation

"GRANTEES": ______________________________________

JAMES H. GILLINGHAM

______________________________________

ANNE K. GILLINGHAM

______________________________________

ANNE SPEROS

______________________________________

GEORGE KUETGENS

EXHIBITS

Exhibit A Benefited Land (Legal Description)

Exhibit B Burdened Land (Legal Description)

Exhibit C Easement Area (Legal Description)

Exhibit D Indemnification Agreement

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

On this ___ day of ______________, 2008, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared _____________________, known to me (or proved to me on the basis of satisfactory evidence) to be the _______________ of the Department of Parks and Recreation of THE CITY OF SEATTLE, the municipal corporation named in and which executed the foregoing document, and stated on oath that he/she was authorized to execute the foregoing document on behalf of said municipal corporation and signed the same as the free and voluntary act and deed of said municipal corporation for the uses and purposes therein mentioned.

WITNESS my hand and official seal thereto affixed the day and year in this certificate above written.

____________________________________________

NOTARY PUBLIC in and for the State of Washington

Residing at ___________________________________

___________________________________

(Printed or Stamped Name of Notary)

My appointment expires _______________________

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

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 and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in the instrument.

DATED: _________________, 2008.

_____________________________________________

NOTARY PUBLIC in and for the State of Washington

Residing at ___________________________________

____________________________________

(Printed or Stamped Name of Notary)

My appointment expires ________________________

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

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 and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in the instrument.

DATED: _________________, 2008.

___________

NOTARY PUBLIC in and for the State of Washington

Residing at ___________________________________

_____________________________________________

(Printed or Stamped Name of Notary)

My appointment expires ________________________

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

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 and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in the instrument.

DATED: _________________, 2008.

____________________________________________

NOTARY PUBLIC in and for the State of Washington

Residing at ___________________________________

_____________________________________________

(Printed or Stamped Name of Notary)

My appointment expires ________________________

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

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 and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in the instrument.

DATED: _________________, 2008.

_____________________________________________

NOTARY PUBLIC in and for the State of Washington

Residing at ___________________________________

_____________________________________________

(Printed or Stamped Name of Notary)

My appointment expires ________________________

EXHIBIT A

BENEFITED LAND

PARCEL A:

Parcel A of City of Seattle Short Plat No. 76-43, according to King County Recording No. 7607160576;

AND

PARCEL B:

Lots 1 and 2, Block 3, Daugherty Addition, according to the plat thereof recorded in Volume 27 of Plats, page 19, in King County, Washington.

EXHIBIT B

BURDENED LAND

The east 1/2 of the southwest 1/4 of the southeast 1/4 of Section 35, Township 24 North, Range 3 East, W.M., in King County, WA; EXCEPT County Road; AND EXCEPT that portion thereof described as follows:

That portion of the northeast 1/4 of the southwest 1/4 of the southeast 1/4 of

Section 35, Township 24 North, Range 3 East, W.M., in King County,

Washington, described as follows:

Beginning at the intersection of the center lines of West Barton Street and

West Director Street, as shown on the Plat of Fauntlee Hills, Division No. 1,

as per plat recorded in Volume 43 of Plats, page 27; thence south 36 degrees 00'40"

west at right angles to the center line of said West Barton Street, 30 feet to the

southwesterly line thereof; thence south 53 degrees 59'20" east along said southeasterly

line, 10.24 feet to a point of curve on said line; thence continuing along said southwesterly line on a curve to the left with a radius of 355 feet a distance of

64.46 feet to the true point of beginning; thence continuing along said curve

a distance of 99.25 feet; thence south 0 degrees 05'40" west 100.55 feet; thence west

130 feet; thence northeasterly 133 feet, more or less, to the true point of beginning;

AND EXCEPT that portion lying north and east of a line which begins on the east line of said subdivision 100.00 feet south 0 degrees 53'29" west from the intersection of said east line with the south line of West Barton Street as established 30.0 feet from the center line; thence north 89 degrees 21'45" west 230.0 feet; thence north 0 degrees 38'15" east 74.35 feet to the south line of West Barton Street and the terminus of the line herein described.

EXHIBIT C

EASEMENT AREA

Beginning at the southwest corner of Parcel A of City of Seattle Short Plat No. 76-43, according to King County Recording No. 7607160576; thence south 00 degrees 38'15" west, on production southerly of the west line of said Parcel A, 85.00 feet; thence south 89 degrees 21'45" east, parallel with the south line of said Parcel A, 72.63 feet to the west margin of 39th Avenue S.W.; thence north 00 degrees 53'29" east, along said west margin, 85.00 feet to the south line of said Parcel A; thence north 89 degrees 22'48" west 73.01 feet to the Point of Beginning.

(consisting of 6,189 square feet or 0.14 acres)

EXHIBIT D

INDEMNIFICATION AGREEMENT

WAIVER AND AGREEMENT TO INDEMNIFY

CITY OF SEATTLE FOR USE OF PARK PROPERTY

We, JAMES H. GILLINGHAM and ANNE K. GILLINGHAM, husband and wife, and ANNE SPEROS and GEORGE KUETGENS, each as their separate estates, as their interests may appear, ("Grantors" herein), owners of property commonly known as 3821 and 3901 SW Barton Street, Seattle, Washington, execute this waiver and hold harmless agreement in favor of THE CITY OF SEATTLE ("City" herein) as of the ______ day of ________________________, 2008.

WITNESSETH:

WHEREAS, the above-named is/are the owners of real property legally described as:

PARCEL A

Parcel A of City of Seattle Short Plat No. 76-43 according to King County

Recording No. 7607160576;

and

PARCEL B

Lots 1 and 2, Block 3, Daugherty Addition, according to the plat thereof recorded

in Volume 27 of Plats;

and

WHEREAS, said property is adjacent to City of Seattle public park property known as Fauntleroy Park; and

WHEREAS, certain private improvements benefiting said property, specifically a retaining wall, ancillary hard landscaping elements, and vegetative landscaping, have been constructed and/or are installed on the public park property known as Fauntleroy Park;

NOW, THEREFORE, the above-named hereby covenant and agree as follows:

1. Grantors, their agents, contractors, assigns, tenants, guests, and invitees hereby waive any right to assert any claim whatsoever (including attorney's fees) against the City (and/or its officers, representatives, agents, employees) for any injury to, or death of, persons; or loss of, or damage to, property caused by or resulting from said owners or owners' agents, contractors, assigns, tenants, guests, or invitees use or occupancy upon park property, except such claims, costs, damages or expense which may be caused by the sole negligence of the City.

2. Grantors will protect, defend, indemnify and save the City harmless from and against any and all claims, suits or actions brought against the City (and/or its officers, representatives, agents, employees) on the basis of any injury to, or death of, persons; or loss of, or damage to, personal property on park property caused by or attributable to said owners or owners' agents, contractors, assigns, tenants, guests, invitees use or occupancy upon park property. Where claims arise from the concurrent negligence of the owner and the City, owners' indemnification obligations shall apply only to the extent of owners' negligence.

3. Grantors further agree that they shall not make nor allow to be made any changes, additions, or extensions to above-specified private improvements on park property without the knowledge of and expressed permission of The City of Seattle, acting through its Department of Parks and Recreation.

DATED this ______ day of ____________________, 2008.

_____________________________________________

JAMES H. GILLINGHAM

_____________________________________________

ANNE K. GILLINGHAM

_____________________________________________

ANNE SPEROS

_____________________________________________

GEORGE KUETGENS

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

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 and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in the instrument.

DATED: _________________, 2008.

_____________________________________________

NOTARY PUBLIC in and for the State of Washington

Residing at ___________________________________

_____________________________________________

(Printed or Stamped Name of Notary)

My appointment expires ________________________

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

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 and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in the instrument.

DATED: _________________, 2008.

_____________________________________________

NOTARY PUBLIC in and for the State of Washington

Residing at ___________________________________

_____________________________________________

(Printed or Stamped Name of Notary)

My appointment expires ________________________

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

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 and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in the instrument.

DATED: _________________, 2008.

_____________________________________________

NOTARY PUBLIC in and for the State of Washington

Residing at ___________________________________

_____________________________________________

(Printed or Stamped Name of Notary)

My appointment expires ________________________

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

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 and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in the instrument.

DATED: _________________, 2008.

_____________________________________________

NOTARY PUBLIC in and for the State of Washington

Residing at ___________________________________

_____________________________________________

(Printed or Stamped Name of Notary)

My appointment expires ________________________

"Easement Agreement"

1

Attachment 1 to DPR Fauntleroy Park Easement ORD

N:Template/Sample Documents/Retaining Wall Easement.doc