RECORDED Stormwater Encroachment ENP2022-0010202304260231
AGREEMENT
Rec: S211.50
4/26/2023 12:42 PM 1 of 9
SNOHOMISH COUNTY,
WA
Elmironicelly 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 Private Stormwater System
Within Right 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 PRIVATE STORMWATER SYSTEM WITHIN RIGHT 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 2121h Street SW and 72nd 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 portions of the stormwater system serving the Project to remain in a portion of
the City rights -of -way. A partial site plan, scaled l "=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:
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82379191.1
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 encroachment 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 fiom 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.
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82379191.1
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" 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.
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82379191.1
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 Owner:
City Engineer CA Senior Edmonds WA Property Owner, LLC
City of Edmonds 2401 East 2nd 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 Assigns. 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. Capacity. 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.
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82379191.1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this l0ay
of M C.rA 2022.
C�ID�Z�J�7u C�7�I IZ.�
By: _
E I EERING DIVISION
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82379191.1
OWNER:
CA SENIOR EDMONDS WA PROPERTY OWNER, LLC,
a Delaware li ited liability company
By:
Name: Michael Berman
Its: Authorized Signatory
STATE OF 0000(ZAO0
COUNTY OF DENVECZ )
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:
Typed or Printed Name: M�,v.tk DE to t o L DEDL--IINDkt-�—D
My Commission expires: kMkL 02, 2D7q
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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, WASHINGTON.
EXCEPT THE WEST 100 FEET THEREOF.
(ALSO KNOWN AS LOT 4 OF CITY OF EDMONDS SHORT PLAT NO. S-20-77,
RECORDED UNDER AUDITOR'S FILE NO, 7705310298).
SITUATE IN THE COUNTY OF SNOHOMISH, STATE OF WASHINGTON.
,923 79 19 1.1
X
w
212TH STREET SW
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