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AG 92-132 DECLARATION OF SETBACK RESTRICTIONS THIS DECLARATION OF SETBACK RESTRICTIONS is made this l64 day of 644,5?"' , 1917-1 by John S. Smith, Sr. , (hereinafter "Smith") ; Gary Hall, (hereinafter "Hall") ; and the City of Federal Way, a Washington Municipal Corporation, (hereinafter "City") , collectively "Parties" . 1. HALL is the agent for Smith, owner of the real property situated in the County of King, State of Washington, described in Exhibit A attached hereto and incorporated herein by this reference ("Smith Property") and Hall has applied to the City for a building permit for development located on the Hall property; and 2. Adjacent and to the West of the Smith property, are located two properties , which properties are legally described in Exhibit B attached hereto and incorporated herein by this reference, ("Adjacent Properties") , and which are burdened by a ten (10) foot sewer easement, and a five (5) foot slope easement, collectively "Adjacent Easement Area", as legally described in Exhibit C attached hereto and incorporated by this reference; and 3. The City is the permitting authority the Smith Property; and 4. This Agreement is executed to conform to the mandatory requirements of Uniform Building Code, 1988 Edition ("UBC") , Section 1709 and Table 5-A, which provides for permanent establishment of a ten (10) foot setback area wherein no buildings or structures may be erected or placed; and 5. The City and Smith/Hall intend to establish setback restrictions designed to benefit the Smith property by creating setback strips on the Smith property in which no buildings or structures may be erected or placed; and 6. It is the intention of the City to allow Smith/Hall to include the Adjacent Easement Area, together with the Smith property to satisfy the requirements of UBC Section 1709 and Table 5-A, upon conditions as outlined herein. NOW THEREFORE, based upon the foregoing and in consideration of the promises, covenants, agreements and undertakings contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: -1- ORIGINAL 4 S 1. No Buildings. 1. 1. No building, structure or other improvement of any kind whatsoever shall be commenced, placed, constructed, erected, maintained or permitted to remain on the West five feet (5 ' ) of the land described in Exhibit A and nor on the Adjacent Easement Area (collectively, the "Setback Area") ; provided however, that this restriction is binding solely upon the owner of the Smith property, the successors or assigns to the Smith property, and all lessors of the Smith property, and is in no way intended to be a restriction or burden on the use, and enjoyment develo ment of the Adjacent Properties. P 1.2. In the event provisions of this Paragraph 1 are breached by the commencement, placement, construction, Y � P erection, or maintenance of a building, structure, or other improvement within the Adjacent Setback Area by owners or occupiers of the Adjacent Properties, the City shall forebear from the enforcement of the provisions of Paragraph 5 herein, conditioned upon Smith's immediate bonding for, and construction of, all improvement necessary for full compliance with UBC requirements then in effect including, but not limited to, the construction of a parapet on the exterior building wall. Nothing herein contained shall be deemed a restriction on the use of said Adjacent Easement Area for underground utilities, railroad tracks, parking, driveway, walkway, fencing or landscaping. 2. Setback. Conditioned upon the restrictions contained herein, the City shall consider the Setback Area as area sufficient to meet the requirements of UBC Section 1709 and Table 5-A for the Smith property development. 3 . Duration and Modification. 3. 1 No addition, modification or amendment of any term of this Agreement shall be effective unless set forth in writing and signed by the parties hereto. The covenants, conditions, restrictions and provisions of this Agreement are imposed upon that portion of the Smith property lying within the Easement Area (the "Smith Easement Area") and shall run with and bind the Smith property and the successive owners thereof, and shall inure to the benefit of and be enforceable by the City and by their respective legal representatives, heirs, successors and assigns, all for a perpetual term commencing with the date this Agreement is recorded in the records of the County Recorder of King County, Washington. -2- • 3 .2 The covenants, conditions, restrictions and provisions contained herein may be modified or changed only by an instrument, signed by a majority of the then owners of the Smith property and the City, recorded in the records of the County Recorder of King County, Washington, agreeing to change said covenants, conditions, restrictions and provisions in whole or in part. 4. No Waiver. No failure or delay on the part of the City to enforce any covenant, condition, restriction or provision contained in this Agreement or in exercising any right, power, privilege or remedy may be, or may be deemed to be, a waiver thereof; nor may any single or partial enforcement or exercise of any right, power, privilege or remedy preclude any other or further exercise of the same or any other right, power, privilege or remedy. 5. Enforcement and Cumulative Rights. 5.1 Violation or breach of any covenant, condition, restriction or provision contained in this Agreement shall give to the City the right to prosecute an action or proceeding at law or in equity against the person or persons who have violated or breached or are attempting to violate or breach any of such covenants, conditions, restrictions or provisions to enjoin or prevent them from doing so, to cause such breach or violation to be remedied or to recover damages for such violation, and/or to immediately revoke the occupancy permit for any building located on the Smith property. 5.2 The rights, powers, privileges and remedies of a covenantee provided herein are cumulative and not exclusive of any right, power, privilege or remedy provided by law or in equity. 6. Severability. In the event any portion of this Agreement shall be declared by any court of competent jurisdiction to be invalid, illegal or unenforceable, such portion shall be deemed severed from this Agreement, and the remaining parts hereof shall remain in full force and effect, as fully as though such invalid, illegal or unenforceable portion had never been part of this Agreement. 7. Headings. The paragraph headings contained in this Agreement are for purposes of reference and convenience only and shall not limit or otherwise affect the meaning of this Agreement. -3- i • 8. Indemnification. 8.1 For City. Smith and Hall agree to indemnify and hold the City, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Agreement to the extent caused by the negligent acts, errors or omissions of Smith and Hall, their respective or joint partners, shareholders, agents, employees, or by Smith"s or Hall's breach of this Agreement. 8.2 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 9. Attorney Fees. In the event either of the Parties defaults on the performance of any terms of this Agreement or either Party places the enforcement of this Agreement in the hands of an attorney, or files a lawsuit, each Party shall pay all its own attorneys' fees, costs and expenses. The venue for any dispute related to this Agreement shall be King County, Washington. 10. Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. 11. Authority. Each individual executing this Agreement on behalf of the City and Hall represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of Smith, Hall or the City. 12. Notices. Any notices required to be given by the City to Smith or Hall, or by Smith or Hall to the City shall be delivered to the Parties at the addresses set forth below. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth below. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. -4- • 13. Notice to Lessors. A copy of this Declaration of Setback Restriction Agreement shall be provided to each present or future Lessor of the Smith property by Hall or Smith. Verification of the fulfillment of this paragraph shall be provided to the City. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. CITY OF FEDERAL WAY JOHN S. SMITH, SENIOR BY:B J. Brent Mc rSlgnatur9 Its: City Manager 3000 Ca .9, A(Address) /�� 5 , Get e* �- X06- 798- 5/361 (Phone) APPROVED AS TO FORM: GARY HALL (ADDRESS) Carolyn A. Lake, Acting City Attorney 0 54s 4. do7 oM 9f0,1 (PHONE) STATE OF WASHINGTON ) ss COUNTY OF KING ) On this /JAG day of �.� , 199_9, before me, the undersigned, a Notary P blic in and for the State of Washington, duly commissioned and sworn, personally appeared JOHN S. SMITH, SENIOR to me known and that executed the foregoing instrument, and acknowledged the said instrument to be his free and voluntary act and deed, and for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute the said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Public in and for the State f Washington, residing at ✓- " / 2w My appointment expires /O/S -5- , • 40 • STATE OF WASHINGTON ) ss COUNTY OF KING ) On this ,,10 day of /9U6 vs 7.--- , 19 142., before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared GARY HALL to me known and that executed the foregoing instrument, and acknowledged the said instrument to be his free and voluntary act and deed, and for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute the said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. Vr Notary Public in and for the Washin State of ton g , residing at My appointment expires ii/9/93 STATE OF WASHINGTON ) ss COUNTY OF KING ) On this day of , 19 , before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and orn, personally appeared _ -/ tt , o me known to the ZC Y MANAGER of the City of NH °0 Federal Way, a municipal Corporation, the Corporation that executed 0 the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, and for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute the said instrument and that the seal affixed is the corporate seal of said corporation. WITNESS my hand and official seal hereto affixed the day and year first above written. /e/\-- . Notary Public in and for the State 9f Washington, residing at 3}ail 1 a_U1 - My appointment expires - 2 LA\KATHLEER\SETBACK.AOR -6- • • EXHIBIT "A" LEGAL DESCRIPTION "SMITH PROPERTY" Lot 2 of King County Short Plat No. 688029, recorded under Recording No. 8912199006, records of King County, Washington, being more particularly described as follows: Commencing at the Southeast corner of Section 13, Township 21 North, Range 3 East, W.M. ; Thence along the East line thereof N88°46'15"W, 1064.69 feet, to the Westerly line of Lot 4 of King County Short Plat No. 278133-R, recorded under Recording No. 8001170451 , records of King County, Washington; Thence North along said Westerly line N01°13'45"E, 8.00 feet to the point of be- ginning; Thence continuing NO1°13'45"E, 246.15 feet, to the Southwest corner of Lot 3 of King County Short Plat No. 688029; Thence S88°46'15" E, along the South line of said Lot 3, 75.00 feet; Thence S01°13'45" W, 34.15 feet; Thence S88°46'15"E, 76.60 feet, to the Northwest corner of Lot 1 of King County Short Plat No. 688029; Thence S01°13145: W, 102.01 feet, to a point of curvature; Thence along a curve concave to the right, having a radius of 56.00 feet, and a length of 58.64 feet, through an included angle of 60°00'00" to a point of re- verse curve; Thence along a curve concave to the left, having a radius of 56.00 feet and a length of 58.64 feet, through an included angle of 60000'00' ; . . Thence SO1013'45W, 13.00 feet, to a point which is 95.60 feet, and bears S88°46115"E, from the point of beginning; Thence N88°46'15" W, 95.60 feet, to the point of beginning; Together with an easement for ingress and egress as recorded under Recording No. 8912011175; subject to emcumbrances of record; Situate in King County, Washington • II EXHIBIT "B" LEGAL DESCRIPTION TWO "ADJACENT PROPERTIES" Lots 3 & 4 of King County Short Plat No. 688029, recorded under Recording No. 8912199006, records of King County, Washington, being more particularly des- cribed as follows: Commencing at the Southeast corner of Section 13, Township 21 North, Range 3 East, W.M. ; Thence along the East line thereof N88°46'15" W, 1064.69 feet, to the Westerly line of Lot 4 of King County Short Plat No. 278133-R, recorded under Recording No. 8001170451 , records of King County, Washington; Thence North along said Westerly line N01°13'45"E 254.15 feet, to the point of beginning; Thence continuing S88°46'15"E, 75.00 feet; Thence SO1°13'45"W, 34.15 feet; Thence S88°46'15"E, 279.60 feet, to a point of curvature; Thence along a curve concave to the right, having a radius of 75.00 feet, length of 30.86 feet, and an included angle of 23°34'41 " , to a point on the East line of Lot 4 of King County Short Plat No. 688029; Thence NO1°13'45"E, along said East line, a distance of 174.09 feet; Thence N88°46'15"W, 384.60 feet, to the Northwest corner of Lot 3 of King County Short Plat No. 688029; Thence SO1°13'45"W,133.07 feet,to the point of beginning; Together with an easement for ingress and egress as recorded under Recording No. 8912011175; subject to encumbrances of records; • (Also known as Lot 3 of Federal Way Boundary Line Adjustment Number BLA-92-0006, recorded under AF# 920817-9001 ) . Situate in King County, Washington • EXHIBIT "C" LEGAL DESCRIPTION ADJACENT EASEMENT AREA Beginning at a point on the southeast corner of Lot 1 , King. County Short Plat No. 278133R recorded under Auditor's File No. 8001170451 , located in the southeast quarter of Section 13, Township 21 North, Range 3 East, W.M. , King County Washington; thence north 88 degrees, 46 minutes, 15 seconds west, a distance of 10 feet; thence north 1 degree, 13 minutes 45 seconds east, a distance of 246.15 feet; thence south 88 degrees, 46 minutes, 15 seconds east, a distance of 10 feet to a point, said point being the northwest property corner of Lot 2, King County Short Plat No. 688029 recorded under Auditor's File No. 8912199006; thence south 1 degree, 13 minutes, 45 seconds west, a distance of 246.15 feet to a point, said point being the point of beginning. —9--