HomeMy WebLinkAboutres2015-017WHATCOM COUNTY COUNCIL AGENDA BILL NO.
2015 -152
CLEARANCES
Initial
Date
Date Received in Council Office
Agenda Date
Assigned to:
AM
4 -01 -15
4 -28 -15
Introduction
Originator:
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Division Head:
5/12/15
Hearing
/
Dept. Head.
APR 21 2015
I
WHATCOM COUNTY
COUNCIL
Prosecutor:
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04 /14 by
Purchasin /Bud et:
k
Executive;
TITLE OF D A Resolution Approving an Agreement for Sale of a License
ATTACHMENTS: 1. Cover Memo
2. Resolution
3. License Agreement
4. Map of Site
SEPA review required? ( ) Yes (X) NO
Should Clerk schedule a hearing ? ( X ) Yes ( ) NO
SEPA review completed? ( ) Yes ( ) NO
Requested Date:
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public
hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate.
Be clear in explaining the intent of the action.)
Brian Kerkvliet and Alexandra King, owners of property adjacent to a Whatcom County owned gravel pit
known as Abel Pit, have requested formal access over the County owned property to access their property.
Whatcom County Public Works recommends selling them a license to provide them with legal access to their
property.
COMMITTEEACTION.
COUNCIL ACTION.
4/28/2015: Introduced 7 -0
5/12/2015: Approved 7 -0, Res. 2015 -017
Related County Contract #:
Related File Numbers:
Ordinance or Resolution
Number: Res. 2015 -017
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing
on the County's website at. www.co.whatcom.wa.us /council.
I SPONSORED BY:
2 PROPOSED BY: Public Works
3 INTRODUCTION DATE: 4/28/2015
4 RESOLUTION NO. 2015 -017
5 A RESOLUTION APPROVING AN AGREEMENT FOR SALE OF A LICENSE
6
7 WHEREAS, Whatcom County owns a gravel pit known as "Abel Pit ", tax parcel number 390320 186151
8 0000, that has a paved road on it that is used by Public Works to access the property from East Laurel Road;
9 and
10 WHEREAS, said paved road is part of the "Abel Pit" property and is not part of the County Road System;
11 and
12 WHEREAS, Brian Kerkvliet and Alexandra King ( "Grantee "), own property identified as tax parcel number
13 390320 183218 0000, that is adjacent to "Abel Pit" and use said paved road to access their property; and
14 WHEREAS, the Grantee and the former owners of the Grantee's property have used said paved road to
15 access their property since the 1970's; and
16 WHEREAS, the Grantee wish to have formal legal access to their property; and
17 WHEREAS, while the County Code does not specifically address the procedure for conveying a limited
18 interest in County property, this matter has been reviewed by the Property Management Committee with a
19 recommendation to present to the County Council for approval; and
20 WHEREAS, Public Works is supportive of granting a License Agreement to the Grantee to provide them
21 with formal legal access to their property; and
22 WHEREAS, the Grantee would be required to obtain a legal description for the License Agreement; and
23 WHEREAS, as compensation for the License Agreement the Grantee will be required to pay for "Abel Pit"
24 survey work as approved by Public Works; and
25 NOW, THEREFORE, BE IT RESOLVED by the Whatcom County Council that the Executive is authorized
26 to conclude the sale of the License as set forth in Exhibit A to the Grantee subject to full payment and to the
27 terms and conditions of the License Agreement.
28 A P PRO "day of May , 2015
T C
30
31 Q
32
33 Dana brown- <,C`o�tniy Clerk
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35 AiPROV6W$1 '.F6R —
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38 Chief Civil Deptay Prosecutor
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Carl Weimer, Council Chair
EXHIBIT A
After recording return document to:
Whatcom County Public Works
Real Estate Coordinator
322 N. Commercial, Suite 210
Bellingham, WA 98225
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE
Document Title: LICENSE AGREEMENT
Reference Number of Related Documents: None
Grantor: Whatcom County
Grantee: Brian Kerkvliet and Alexandra King, as Trustees of the Able Trust, U /T/D
March 14, 2006
Legal Description: Ptn of W 10 Ac of E 35 Ac of E V2 SW Less Rd, S20, T39N, R3E
Additional Legal Description is on Page 10
Assessor's Tax Parcel Number: 390320 186151 0000
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made and entered into this day of
2015, by and between WHATCOM COUNTY, A WASHINGTON
MUNICIPAL CORPORATION, hereinafter referred to as "Grantor" and BRIAN
KERKVLIET AND ALEXANDRA KING, AS TRUSTEES OF THE ABLE TRUST,
U/T/D MARCH 14, 2006, hereinafter referred to as "Grantees."
RECITALS
WHEREAS, the Grantees own real property located in Whatcom County, Washington,
legally described as follows: See Exhibit A attached hereto and made a part hereof.
Situate in Whatcom County, Washington; and
WHEREAS, the Grantor owns real property located in Whatcom County, Washington,
legally described as follows: See Exhibit B attached hereto and made a part hereof.
Situate in Whatcom County, Washington; and
WHEREAS, the Grantees desire legal access to and from their property; and
WHEREAS, the Grantees and previous owners of the Grantees' property have been
using portions of the Grantor's property to access their property without permission;
Page 1 of 10 Pages
LICENSE AGREEMENT
NOW, THEREFORE, Grantor, in consideration of ten dollars ($10.00) and other good
and valuable consideration in hand paid, receipt of which is hereby acknowledged, and in
consideration of the performance by the Grantees of the covenants, terms and conditions
hereinafter set forth, hereby conveys and grants to Grantees a nonexclusive license over,
across, along, in and upon that portion of the Grantor's property described in Exhibit C
( "License Area ") attached hereto for the purposes of ingress and egress.
1. Grantees' Use/Restrictions: Grantees agree to use the areas subject to license granted
by Grantor for ingress and egress. Grantees shall exercise their rights under this license
so as to minimize and avoid, insofar as possible, interference with the use by the Grantor
of the Grantor's property and shall at all times conduct their activities in the License Area
so as not to interfere with, obstruct or endanger the Grantor's operations or facilities.
Grantees agree not to damage the License Area beyond normal wear and tear associated
with residential access. In the event the Grantees damage the License Area the cost of
repairing such damage shall be borne by the Grantees.
2. Use of Grantor's Property by Grantor. Grantees' rights herein shall at all times be
subordinate to such rights of Grantor as are necessary to preserve and maintain the
capabilities of the use of the Grantor's Property by the Grantor.
3. License Area Legal Description: Grantees prepared Exhibit C, which describes the
License Area. Grantees represent that Exhibit C is a true and accurate description of the
License Area. Grantees' obligation to provide a true and accurate description of the
License Area is a material term of this license.
Grantor's acceptance of Exhibit C does not constitute agreement that Grantees' property
description accurately reflects the License Area.
4. Third Party Rights. Grantor reserves all rights with respect to its property including,
without limitation, the right to grant easements, licenses and permits to others subject to
the rights granted in this Agreement.
Page 2 of 10 Pages
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY
LICENSE AGREEMENT
5. Termination for Breach. In the event Grantees breach or fail to perform or observe
any of the terms and conditions herein, and fail to cure such breach or default within
ninety (90) days of Grantor giving Grantees written notice thereof, or within such other
period of time as may be reasonable in the circumstances, Grantor may terminate
Grantees' rights under this agreement in addition to and not in limitation of any other
remedy of Grantor at law or in equity, and the failure of Grantor to exercise such right at
any time shall not waive Grantor's right to terminate for any future breach or default.
6. Termination for Cessation of Use. In the event Grantees cease to use the license area
for a period of five (5) successive years, this agreement and all Grantees' rights hereunder
shall automatically terminate and revert to Grantor.
7. Release and Indemnity. Grantees do hereby release, indemnify and promise to
defend and save harmless Grantor from and against any and all liability, loss, cost,
damage, expense, actions and claims, including costs and reasonable attorney's fees
incurred by Grantor in defense thereof, asserted or arising directly or indirectly on
account of or out of (1) acts or omissions of Grantees and Grantees' agents, employees,
and contractors in the exercise of the rights granted herein, or (2) acts and omissions of
Grantor in its use of Grantor's property which affect Grantees and Grantees' employees,
agents, contractors, and other parties benefiting from said license; provided however, this
paragraph does not purport to indemnify Grantor against liability for damages arising out
of bodily injury to persons or damage to property cause by or resulting from the sole
negligence of Grantor or Grantor's agents or employees. If liability arises out of bodily
injury or death to persons or damage to property as a result of the concurrent negligence
of Grantees, their agents or their employees, and of Grantor, its agents or its employees,
Grantees are responsible for indemnification only to the degree and extent of the
negligence of Grantees, their agents, or their employees. However, this paragraph does
not purport to indemnify Grantor against liability caused by or resulting from the
negligence of Grantor or Grantor's agents or employees.
Page 3 of 10 Pages
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY
LICENSE AGREEMENT
8. Notices: Any and all notices given under this license agreement shall be made in
writing and shall be hand delivered or sent by certified or overnight mail addressed to the
parties at the address listed below, unless a different address has been designated in
writing and delivered to the other party.
Brian Kerkvliet and Alexandra King
617 E. Laurel Road
Bellingham, WA 98226
Whatcom County Public Works
ATTN: Eric Schlehuber
901 W. Smith Rd
Bellingham, WA 98226
9. Title. The rights granted herein are subject to permits, leases, licenses, and easements,
if any, heretofore granted by Grantor affecting Grantor's property subject to this
agreement. Grantor does not warrant title to Grantor's property and shall not be liable for
defects thereto or failure thereof.
10. Assignment of Interest. Grantees shall not assign any part of Grantees' interest in
this license agreement without the Grantor's express written consent, which Grantor shall
not unreasonably condition or withhold. Grantor reserves the right to reasonably change
the terms and conditions of this license upon consent to assignment. Notwithstanding
any of the foregoing, Grantor hereby consents to any assignment or transfer of Grantees'
interest in the License to one or more of the beneficiaries of Grantees' trust without any
need to re -apply for consent or approval of such assignment or transfer.
11. Successors. The rights and obligations of the parties shall inure to the benefits of and
be binding upon their respective successors and assigns.
12. Binding Effect. In all respects, the provisions of this agreement shall be construed
and interpreted as covenants which are personal to the parties above described, and shall
be binding upon and inure to the benefit of the parties hereto, and their successors in
interest in accordance with the provisions of paragraph 11, above.
13. Unlawful Conduct. The parties to this agreement covenant that they will not use or
cause to be used any part of the granted accesses for any unlawful conduct or purpose.
Unlawful use may be grounds for immediate termination of this agreement.
14. No Waiver. Failure to enforce any provision of this document shall not operate as a
waiver of any such provision.
Page 4 of 10 Pages
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY
LICENSE AGREEMENT
15. Dispute Resolution— Binding Arbitration. The parties agree to resolve any dispute
related hereto through binding non - appealable arbitration pursuant to RCW 7.04A. In
such action, the arbitrator shall be an individual licensed to practice law in the state of
Washington and jointly selected by the parties within fifteen (15) days from the written
demand for arbitration. If the parties cannot agree to an arbitrator, the presiding judge of
the Whatcom County Superior Court shall select the arbitrator. The rules for Mandatory
Arbitration for Whatcom County shall control the procedures for the arbitration. The
parties agree to cooperate in good faith to ensure that the arbitration occurs as quickly as
practicable. The arbitrator has the authority to enter any award reasonable and necessary
to resolve the dispute, including but not limited to award of damages, foreclosure of liens,
enter an injunction, and require specific performance and /or any other remedy in law or
equity. The decision of the arbitrator shall be binding and non - appealable.
Consistent with the foregoing provisions for dispute resolution, venue of any action
arising from this agreement shall be in the Superior Court of the State of Washington in
and for the County of Whatcom.
16. Severability. Invalidation of any of the provisions of this agreement by judgment or
court order shall in no way affect any of the other provisions, which shall remain in full
force and effect.
17. Entire Agreement. This agreement contains all representations and is the entire
understanding between the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this document as of the date
first above written.
Whatcom County
Joe Rutan, Interim Director of Public
Works
Accepted and Approved for Whatcom County:
Jack Louws, County Executive
Approved as to form:
Prosecuting Attorney's Office
ta-fv_
Daniel Gibson,
Chief Civil Deputy Prosecutor
Page 5 of 10 Pages
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY
LICENSE AGREEMENT
STATE OF WASHINGTON
ss
COUNTY OF WHATCOM
On this day of , 2015, before me personally appeared
Jack Louws, to me known to be the Executive of Whatcom County, a municipal
corporation that executed the within and foregoing instrument, and acknowledged said
instrument to be the free and voluntary act and deed of Whatcom County, for the uses and
purposes herein mentioned, and on oath stated that he was authorized to execute said
instrument on behalf of Whatcom County.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public in and for the State of Washington
Residing at
My commission expires
Page 6 of 10 Pages
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY
LICENSE AGREEMENT
Accepted and approved by Brian Kerkvliet and Alexandra King, as Trustees of the
Able Trust, U/T/D March 14, 2006
Brian Kerkvliet, Trustee
Alexandra King, Trustee
STATE OF WASHINGTON
ss
County of WHATCOM
On this clay of 2015, before me personally
appeared Brian Kerkvliet and Alexandra King, as Trustees of the Able Trust, U /T /D
March 14,2006, to me known to be the individuals described herein and who executed
the foregoing instrument, and acknowledge that they signed the same as their free and
voluntary act and in the capacity and for the uses and purposes therein mentioned.
GIVEN under my hand and official seal the day and year last above written.
Notary Public in and for the State of
Washington, residing at
My commission expires
Page 7 of 10 Pages
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY
LICENSE AGREEMENT
EXHIBIT A
Legal Description of Grantee's propeqy (parcel number 390320 183218 0000
The South 370 feet of the following described property:
The North 650 feet lying west of a line drawn 30 feet west of and parallel with the east
line of the following described tract:
That portion of the West 10 acres of the East 35 acres of the two following described
tracts of land, to -wit:
The Northeast Quarter of the Southwest Quarter less the North 30 feet; and the North 20
rods of the Southeast Quarter of the Southwest Quarter, all of said land being in Section
20, Township 39 North, Range 3 East of W.M., more particularly described as follows:
Beginning at a point on the north line on the Southwest Quarter of Section 20, Township
39 North, Range 3 East of W.M., said point being North 88 °42'30" West 676.00 feet
from the center of said Section 20; thence South 1 °00' West, 1,671 feet; thence North
88 °45' West 271.4 feet; thence North 1 °09' East 1,671.2 feet; thence South 88 °42'30"
East,267 feet to the Point of Beginning, less County Road No. 101 (East Laurel Road).
Situate in Whatcom County, Washington.
Page 8 of 10 Pages
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LICENSE AGREEMENT
EXHIBIT B
Legal Description of Grantor's property (parcel number 390320 18615 1)
The portion of the West 10 acres of the East 35 acres of the two following described
tracts of land, to -wit; The Northeast quarter of the Southwest quarter, less the North 30
feet; and the North 20 rods of the Southeast quarter of the Southwest quarter. All of said
land being in Section 20, Township 39 North, Range 3 East of the Willamette Meridian;
More particularly described as follows: Beginning at a point on the North line of the
Southwest quarter of Section 20, Township 39 North, Range 3 East of the Willamette
Meridian. Said point being North 88 °42'30" West, 676.00 feet from the center of said
Section 20; thence South 1 °0' West, 1,671.00 feet; thence North 88 °45' West, 271.4 feet;
thence North 1 °09' East, 1,671.2 feet; thence South 88 °42'30" East, 267 feet to the point
of beginning;
Excepting there from that portion of the North 650 feet, lying West of a line drawn 30
feet West of and parallel with the East line of the above described tract. Also less County
road and containing 6.75 acres.
Page 9 of 10 Pages
PLEASE MAKE. NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY
LICENSE AGREEMENT
License Legal Description:
EXHIBIT C
Page 10 of 10 Pages
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