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RECORDED Shoring Encroachment ENP2022-0009 (2)202304260232 AGREENIEN1 Rec:$212.50 4/26/2023 12:42 PM I of 10 SNOIIOMISII COUNTY, WA Plmronically Recorded WHEN RECORDED RETURN TO: City Clerk City of Edmonds 121 Fifth Avenue North Edmonds, WA 98020 CTI NCS 220588-NCS DOCUMENT TITLE(S): Encroachment and Indemnity Agreement for Shoring Systems in Rights -of -Way REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED: N/A GRANTOR(S): City of Edmonds GRANTEE(S): CA Senior Edmonds WA Property owner, LLC ABBREVIATED LEGAL DESCRIPTION: Ptn Tract 4, Solner's Five Acre Tracts, Snohomish. county, WA TAX PARCEL NUMBER(S): 00807-000-004-01 When recorded mail to: City Clerk City of Edmonds 121 Fifth Avenue North Edmonds, WA 98020 SPACE ABOVE THE LINE FOR RECORDERS USE Assessor's Parcel No.: 005807-000-004-01 Applicant: CA SENIOR EDMONDS WA PROPERTY OWNER, LLC ENCROACHMENT AND INDEMNITY AGREEMENT FOR SHORING SYSTEMS IN RIGHTS -OF -WAY This ENCROACHMENT AND INDEMNITY AGREEMENT ("Agreement") is entered into between the CITY OF EDMONDS ("City") and CA SENIOR EDMONDS WA PROPERTY OWNER, LLC, a Delaware limited liability company ("Owner"), the owner of the real property described below and the indemnitor under this Agreement, in accordance with Chapter 18.70 of the Edmonds Community Development Code. 1. The Property. Owner is the owner of that certain real property located at 21200 72nd Avenue W., within the City of Edmonds, Washington, as described in Exhibit "A" attached hereto and incorporated herein by reference. 2. The Project. The Owner is constructing a senior living facility. 3. The Rights -of -Way. Two City rights -of -way adjacent to Owner's property used for streets and alleys, specifically 212t1i Street SW and 72" c1 Avenue W, will be encumbered by an encroachment related to the Project. 4. The Encroachment. The Owner desires to encroach upon the above referenced public rights -of -way and the City hereby covenants and agrees and grants its permission to Owner to allow soil nails and other shoring materials ("Shoring System") to remain in a portion of the City rights -of -way. A partial site plan, scaled 1 "=20', showing the location of the encroachment is attached as Exhibit "B" and incorporated herein by this reference. The City's agreement to allow this encroachment is subject to the following terms and conditions: FINAL Encroachment and Indemnity Agreement for Shoring Systems Page 1 of 6 81809587.3 a. On behalf of itself, its successors and assigns, the Owner promises to maintain, repair and/or remove the encroachment located in the public rights -of -way, and to restore the rights -of -way to substantially their condition prior to the encroachment, at its sole expense to the commercially reasonable standards established by the City. b. The Owner, on behalf of itself and its successors and assigns, acknowledges that the City had no obligation to approve the encroaclunent within the public rights -of -way for the sole benefit of the Owner, and the agreements contained herein provide sufficient consideration for the Owner and its successors and assigns to maintain, repair and/or remove said encroachment located in the public rights -of -way as reasonably necessary and required, and to restore the rights -of -way to substantially their condition prior to the encroachment, at its sole expense in perpetuity. c. The Owner shall, at the request of the City and within thirty (30) days (or such longer period as may be reasonably necessary at the City's sole discretion), repair, reconstruct, and/or remove the encroachment, and restore the rights -of -way to substantially their condition prior to the encroachment, at the Owner's sole expense. Upon receipt of notification from the City that the City requires removal of all or portions of the encroachment from within the public rights -of -way, the Owner will within thirty (30) days (or such longer period as may be reasonably necessary at the City's sole discretion) remove those portions of the encroachment from within the rights -of -way and restore the rights -of -way as reasonably required by the City at its sole expense. If the portions of the encroachment required by the City to be removed are not timely removed by the Owner, or if the portions of the rights -of -way are not timely restored by the Owner, they shall be removed and/or restored by the City at the expense of the Owner, and the Owner shall reimburse the City for the costs of removal of the encroachment and/or restoration of the rights -of -way and disposal of materials, as well as for any increased construction costs or consequential damages incurred by the City due to the Owner's delay. In the event that portions of the encroachment must be removed to facilitate utility and/or construction activity by the City with the public rights -of -way or other requirements of the City, the Owner shall be solely responsible for removal of the encroachment, and restoration of the rights -of -way to substantially their condition prior to the encroachment, at its expense upon completion of the utility and/or construction or other activity by the City. d. Whatever rights and obligations of the City with respect to the public rights -of -way shall remain and continue in full force and effect and shall in no way be affected by City's grant of permission to construct and maintain the Shoring System encroachment. FINAL Encroachment and Indemnity Agreement for Shoring Systems Page 2 of 6 81809587.3 e. Business and commercial operation property owners are required to provide and continually maintain during the term of the permit a certificate of insurance naming the City as an additional insured, with respect to liability, and providing that it shall be primary as to any other policy of insurance. A copy of the insurance certificate shall be provided to the City at the beginning of each calendar year, no later than the 21 st day of January. f. Owner shall, in the performance of this Agreement, comply with all applicable Federal, State and local laws and regulations, including but not limited to City code and ordinance requirements. 5. Indemnification. In consideration of the City's permission to encroach upon and indefinitely occupy the public rights -of -way described above by erecting and maintaining within the rights -of -way the Shoring System designed to support the public rights -of -way during construction of the Project with soil nails and other shoring materials, the Owner on behalf of itself, its heirs, executors, administrators, successors and assigns; covenant and agree to at all times protect and save harmless the City, its officers, agents and employees, from any and all claims, actions, suits, losses, and expenses of every kind and description, foreseen or unforeseen, which may accrue to or be suffered by any person or persons, or public or private property, or by the City arising from or out of the Owner's promises contained in this Agreement; including but not limited to any damage that may be caused to the encroachment by the City's operation, maintenance, repair, replacement or other work related to construction activity within the public rights -of -way, or any damage or expense arising out of the loss of, or damage to, public or private property or the injury to or death of any person or persons. Owner agrees to compensate the City for damages to the public rights -of -way and the utilities located therein, and for the costs of repair, reconstruction, and restoration of the public rights -of -way, including but not limited to the expenses of such repair, reconstruction or restoration, the construction of temporary facilities and bypasses, traffic redirection, barricades, fences and other measures taken to protect the public, the public rights -of -way, and utilities therein, and for the extraction of the soil nails and other materials that are situated within the public rights -of -way for shoring purposes, if deemed necessary by the City in its sole discretion. This promise to hold harmless and indemnify includes defense by counsel of the City's choosing and the payment of reasonable attorneys' fees and court costs. Nothing herein, however, shall be interpreted to require the Owner to indemnify the City from the negligence or intentional tortious act of the City's employees, officers, or agents. This indemnification agreement is and shall be deemed to be a covenant attaching to and running with the above -described real estate. 6. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all other agreements, oral or written, between the parties with respect to the subject matter. This agreement may not be amended except in writing in a document agreed to and duly executed by both parties and filed of record with the auditor of Snohomish County, Washington. FINAL Encroachment and Indemnity Agreement for Shoring Systems Page 3 of 6 81S095S7.3 7. Notices. Any notice which is required or may be given pursuant to this Agreement shall be sent in writing by United States mail, first class, postage pre -paid, registered or certified with return receipt requested, or by other comparable commercial means and addressed as follows: If to the City: If to the Ovvner. City Engineer CA Senior Edmonds WA Property Owner, LLC City of Edmonds 2401 East 2" d Avenue, Suite 500 121 Fifth Avenue North Denver, CO 80206 Edmonds, WA 98020 Attn: Michael Berman These addresses may be changed from time to time by providing notice to the other party in the manner described above. Notice of address change shall be provided thirty (30) days prior to such change. 8. Waiver. City's consent to or approval of any act or omission by Owner shall not constitute a waiver of any other default by Owner and shall not be deemed a waiver or render unnecessary City's consent for approval to any subsequent act by Owner. Any waiver by City of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of the Agreement. 9. Termination of Agreement. In addition to any other remedy provided for by law, the City reserves the right to terminate this Agreement in the event the encroachment negatively impacts or damages the City's right-of-way, easement and/or underlying utility systems or violates any condition of service adopted by the City, at its sole discretion, as may be necessary to prevent damage to the City's utility system, or any other public facility or private property which may be impacted by the Owner's failure to properly use the rights -of - way. 10. Successors and Assians. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective legal representatives, successors, and assigns. Owner agrees to incorporate this Agreement by reference in any subsequent deeds to the property, but any failure to do so does not invalidate this provision. 11. Ca aci . Each party represents that the person(s) executing this Agreement on behalf of such party has the authority to execute this Agreement and by such signature(s) thereby bind such party. FINAL Encroachment and Indemnity Agreement for Shoring Systems Page d of 6 81809587.3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this 11644day of Ma. A 2022. CITY OF EDMONDS: E G NEERING DIVISION FINAL Encroachment and Indemnity Agreement for Shoring Systems Page 5 of 6 81809587.3 OWNER: CA SENIOR EDMONDS WA PROPERTY OWNER, LLC, a Delaware 1'mited liability company By: Name: Mic ael Berman Its: Authorized Signatory STATE OF rQLQ(-N�)D ) COUNTY OF Dt-k�v MARIA DE LA LUZ DELGADILLO NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20204012522 MY COMMISSION EXPIRES APRIL 02, 2024 This day, personally appeared before me, Michael Berman, the Authorized Signatory of CA Senior Edmonds WA Property Owner, LLC, a Delaware limited liability company, and stated that he is authorized to execute this document on behalf of said company for the uses purposes therein mentioned. Notary Public: UU Typed or Printed Name: Mh(Z\+, -DE Lp, Iinzt>�l�tt�D�� My Commission expires: _AP��t b2� 202_ FINAL Encroachment and Indemnity Agreement for Shoring Systems Page 6 of 6 Exhibit A THE NORTH 159 FEET OF TRACT 4, SOLNER'S FIVE ACRE TRACTS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 7 OF PLATS, PAGE 25, RECORDS OF SNOHOMISH COUNTY, WUASHINGTON. EXCEPT THE 'VEST 100 FEET THEREOF. (ALSO KNOWN AS LOT 4 OF CITY OF EDMONDS SHORT PLAT NO. S-20-77, RECORDED UNDER AUDITOR'S FILE NO. 770 a310298). SITUATE 1N THE COUNTY OF SNOHOMISH, STATE OF WASHINGTON. V AM nR F 4— GN LN V, 9N �SN VN ZN rz- -4 LLI Y, n� U 0 ry ;z -j 70 U U— —1 L X F. 0 -51 T 0 z 29 E3 :T Y. D� (L CS, :5 z cn 0 -J C-) -0 0F a- LIJ CL, M 0 > SHORING ENCROACHMENT EXHIBIT< IL z 0 FRIOJ. NO. I cl( o �. 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