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2010-026710 ` Washington County, Oregon t� P 0410912010 11:17:' 7 AM 2010 -026710 N! Cut =1 Stn =10 O HOFFMAN ` $60.00 $5.00 $11,00 $15,00 • Total s $91.00 After recording return to: �1II Ili�l 01470708201000267100121)125 1, Richard Hobemleht, DlnetorofAs Bois rnant and Metro Taxation snd Ex- DKielo County Clerk farWsatdnyton County, Crayon, do hereby csrtlfy that the wlthln Office of Metro Attorney tastrumsnt or writing was received and n ordad i the y book of records orssld eoupty.. (� 500 NE Grand Avenue w chardHoloe m lcht ,DlreetororAssassmentand Portland, Oregon 97232 TexatloN9x.ofnclocountyclerk l TRAIL AND GREENWAY EASEMENT This Trail and Greenway Easement (this "Easement ") is made and entered into effective the last date of signature, below (the "Effective Date "), by and between Tigard C6 Industrial LLC, an Oregon limited liability company ( "Grantor "), and Metro, an Oregon municipal corporation ( "Holder "). 4'G RECITALS A. Grantor is the owner of the real property commonly known as Tax Parcels 300, 302 and 304 in Township 2 South, Range l West, Section 2BA of the Willamette Meridian, in the City of Tigard, County of Washington, State of Oregon, and legally described on Exhibit A Ca attached hereto (the "Property"). B. Holder is an Oregon municipal government whose purpose, among other things, is to build, operate, and maintain recreational trails and pathways for the benefit of the public. C i Holder desires to build, operate, and maintain a recreational trail, pathway and greenway on the a� Property along Fanno Creek. tom-• �-- C. Grantor desires to grant to Holder, and Holder desires to accept from Grantor, an easement over the Property for the purpose of allowing Holder to establish and maintain a public CD trail and pathway, with an adjoining greenway, in accordance with the terms and conditions set forth below. In consideration of the recitals and the mutual benefits, covenants, and terms herein ups contained, and for other good and valuable consideration, the receipt of which is hereby t:.. acknowledged, Grantor hereby dedicates, grants, covenants, and agrees as follows: AGREEMENT 1. Grant of Easement Grantor hereby grants to Holder a nonexclusive, perpetual easement in gross, on, over, across, and along a portion of the Property (the "Easement Area "). The Easement Area runs along Fanno Creek as more particularly described and depicted in Exhibits B -1 and B attached hereto, and as depicted on Survey No. 31405, filed with the I Washington County Surveyor's office on March 8, 2010. 2. Purposes The two general purposes of this Easement are to authorize a portion of the Easement Area to be used as a public bicycle and pedestrian trail for public recreation and for the remainder of the Easement Area to be protected and restored as a natural area to protect Page 1 TRAIL AND GREENWAY EASEMENT -- Tigard Industrial LLC water quality and provide and improve fish and wildlife habitat. Holder shall have the right to enter the Easement Area at any time to establish, install, construct, maintain, and repair (a) a trail and pathway, which trail shall be not more than 12 feet 6 inches in width (the "Trail "), and (b) a vegetated buffer of native plants and natural habitat on all other portions of the Easement Area not used for the Trail (the "Greenway "). The Trail may be either a low - impact soft surface trail or an all- weather paved trail, or any combination or variant thereof. Holder shall also have the right to permit the public to access and use the Trail established, installed, and constructed by Holder. 3. Construction, - Repair, Maintenance (a) Holder may take all reasonable actions necessary to establish, construct, maintain, and repair the Trail within the Easement Area, including, but not limited to, conducting invasive pre- construction Phase I and Phase II environmental site assessments and installing the following related surface and subsurface utilities and improvements (collectively, the "Trail Facilities "): (i) appropriate trail surfaces, footbridges and associated trail structures and culverts, (ii) trail markers, signs, lights, and other security enhancements along the Easement Area and at all points of access, (iii) any barriers, fences and gates necessary to prevent motorized vehicular access into the Easement Area, and (iv) benches for the convenience and comfort of the public. The Trail Facilities shall be and remain the property of Holder. (b) Holder may take all reasonable actions necessary to establish, construct, maintain, and repair the Greenway within the Easement Area, including, but not limited to: (i) removing non - native and invasive plant species, and (ii) installing ecological, habitat, and water quality restoration improvements such as, without limitation, planting native plants, creek channel and bank stabilization projects, culvert removal, and wetlands restoration. (c) Holder shall be responsible for obtaining all governmental permits for construction of the Trail and Trail Facilities prior to commencing such construction and Grantor shall cooperate in good faith with Holder in obtaining any necessary construction and /or development permits. Holder shall give Grantor thirty (30) days written notice before commencing construction of the Trail and Trail Facilities. (d) Holder shall be solely responsible for all repair and maintenance of the Trail, Trail Facilities, and Greenway; provided, however, that Grantor shall reimburse Holder for all sums'expended by Holder to repair any damage to the Trail, Trail Facilities, and Greenway due to the negligence or abnormal use by Grantor or Grantor's invitees, guests, or licensees. 4. Permitted Trail Uses Holder may permit the public to access the Trail for bicycle and pedestrian recreational and transportation purposes, including, without limitation, walking, running, cycling, skating, skiing, and horseback riding. Except for motorized wheelchairs (or other mobility devices used by individuals with disabilities) or in the case of an emergency, motorized vehicles will not be permitted on the Trail; provided, however, that Holder may use motorized vehicles and equipment for construction, maintenance, repair, and security purposes related to the Trail and Trail Facilities. Holder shall have the right, in its sole discretion, to restrict or Iimit public use of and access to the Trail. Page 2 TRAIL AND GREENWAY EASEMENT— Tigard Industrial LLC 5. Grantor's Use of Easement Area 5.1. Grantor skull retain the right to access, use and enjoy the Easement Area for its purposes consistent with the rights granted herein, including Grantor's continued use of the Easement Area to absorb storm water runoff on the Property. Grantor is prohibited, however, from engaging in any activity on, or use of, the Easement Area that (i) is inconsistent with the terms of this Easement, (ii) materially interferes with or impairs the use of the Trail by Holder or the public, (iii) hinders or interferes with future Trail construction or repair by Holder, or (iv) materially interferes with or impairs the ecological functioning of the Greenway. Without limiting the generality of the forgoing, the following activities and uses by Grantor within the Easement Area are expressly prohibited without the express written consent of the Holder: (a) Constructing any improvements or structures, parking any vehicles, installing any paving or gravel, or storing any property; (b) BIocking, obstructing, or interfering with Holder's access through the Easement Area; (c) Excluding any persons from using the Trail, provided that such use is in accordance with the terms of this Easement, or taking any other action that unreasonably prevents or interferes. with public entry onto the Trail and Trail Facilities, including without limitation, imposing a fee or charge of any kind; (d) Cutting, trimming, pruning, destroying, mowing, spraying with biocides, or removing any vegetation trees, plants, or shrubs; (e) Planting any vegetation, including, without limitation, any trees, shrubs, grasses, or seeds of any kind; (f) Placing or erecting any signs, billboards, or other advertising material, temporary or permanent, upon any portion of the Easement Area; (g) Dumping or storing ashes, trash, rubbish, garbage, sawdust, lawn cuttings, leaves, compost, 'or other material or substances; 3 ! (h) Filling, excavating, digging, dredging, mining, quarrying; removing, or disturbing the topsoil, sand, gravel, rock, minerals, or other materials; (i) Damming, dredging, or undertaking any other activities that may be detrimental to water quality; and (j) Taking any action that damages fish or wildlife, or their habitats; alters existing vegetation or drainage patterns, flood plains, wetlands, or the natural condition of the Easement Area; or results in erosion, siltation, or other fonns of pollution. 5.2. Notwithstanding the prohibitions enumerated in subsection 5. 1, above, Grantor shall retain the right to maintain, repair, replace, and reconstruct the parking lot on Grantor's property, in the same location as where it existed on the Effective Date of this Easement (the "Parking Lot Maintenance'). In the event that Parking Lot Maintenance would Page 3 TRAIL AND GREENWAY EASEMENT — Tigard Industrial LLC otherwise be in violation of the provisions of subsection 5.1 it shall nevertheless be permitted; provided, however, that the portion of the Easement Area that is impacted, and any trail or landscaping improvements within the Easement Area that are affected, by the Parking Lot Maintenance shall be repaired or replaced, so as to return the affected portion of the Easement Area to a condition comparable to its condition prior to the commencement of such Parking Lot Maintenance. Such repair or replacement shall be completed not less than 90 days after the Easement Area is affected by such Parking Lot Maintenance. 6. Enforcement In addition to any other remedies available at law or in equity, Holder may compel Grantor to make the Easement Area available. for the purposes set forth above in Section 2 by exercising any one or more of the following remedies: (a) Holder may seek injunctive relief to specifically enforce the terms of this Easement, to restrain present or future violations of this Easement, or to compel restoration of the Trail, Trail Facilities, and Greenway destroyed or altered as a result of Grantor's violation of this Easement; and (b) Holder may enter the Property to remove any barrier obstructing Holder's ability to access the Easement Area or the Trail, and may take other self-help measures or actions reasonably necessary to protect and preserve the rights of Holder under this Easement. 7. Hazardous Substances Grantor represents and warrants to the best of its knowledge that it has disclosed to Holder the results of any and all Phase I Environmental Assessments, Phase II Environmental Investigations, surveys, sampling, and testing regarding the Property, and any information contained therein. It is understood and agreed that Holder, by accepting this grant of easement, is not accepting any liability for any release of Hazardous Substances, as that term is defined in ORS Chapter 465, on, to, or from the Property, unless resulting directly from an intentional or negligent act of Holder or Holder's employees, agents, or contractors, and that Grantor is not attempting to convey, transfer, or assign any such liability herein. 8. Taxes Grantor shall.pay when due all real property taxes, assessments, and other charges against the Property, including the Easement Area. There shall be no night to contribution from Holder for such items. Holder shall not object to a designation of the Easement Area as open space or a habitat area for tax purposes, in order for Grantor to take advantage of any tax benefits that such designation may provide; provided, however, that any such designation would not adversely affect Holder's rights to use the Easement Area as provided in this Easement. 9. Liability and Indemnity The parties to this Easement acknowledge that, to the extent so provided in ORS 105.672 to ORS 105.696, both Grantor and Holder are immune from liability for injuries incurred on the property by members of the public who access the Easement Area under authority of this Easement. Except to the extent caused by an act or omission of Grantor, Holder shall indemnify, defend, and hold harmless Grantor against all losses and litigation expenses resulting from (a) property damage, including any release of hazardous substances or other environmental liability, that occurs or is alleged to have occurred as a result j of Holder's installation or maintenance of the Trail, Trail Facilities, or Greenway, or (b) personal injury that occurs or is alleged to have occurred as a result of Holder's installation or maintenance of the Trail, Trail Facilities, or Greenway. Grantor agrees to indemnify, defend, Page 4 TRAIL AND GREENWAY EASEMENT — Tigard Industrial LLC t and hold harmless Holder from any loss or litigation expense arising from, related to, or associated with (a) personal injury or property damage occurring prior to the Effective Date of this Easement, (b) activities or uses engaged in by Grantor, or Grantor's contractors, agents, employees, tenants, guests, invitees, or anyone else entering the Property by, through, or under the express or implied invitation of Grantor, or (c) structures, facilities, or improvements within the Easement Area, other than the Trail pacilities installed by Holder. As used in this Section, the term "losses" means any liability, loss, claim, settlement. payment, cost and expense, interest, award, judgment, damages (including punitive damages), diminution in value, fines, fees, and penalties or other charge other than a litigation expense. As used in this Section, the term "litigation expenses" means any court filing fee, court cost, arbitration fee or cost, witness fee, and each other fee and cost of investigating and defending or asserting any claim of violation or for indemnification under this Agreement including in each case, attorneys' fees, other professionals' fees, and disbursements. As used in this Section, the term "property damage" includes, without limitation, any contamination by or a release of hazardous substances, or other environmental liability, on or affecting the Property. 10. Notice and Addresses Any notice, demand., request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and. either served personally or sent by certified mail, return receipt requested, postage prepaid, to the address set forth below. Any party. may change the address to which its notices are to be sent by duly giving notice pursuant to this Section. To Grantor: Tigard Industrial LLC c/o Philip A. Cohn 5805 .lean Road Lake Oswego, Oregon 97035 To Holder: Metro Natural Areas Acquisition Director 600 NE Grand Avenue Portland, Oregon 97232• -2736 Copy to: Metro Office of Metro Attorney 600 NE Grand Avenue Portland, Oregon 972322736 11. Title Warranty Grantor represents and warrants that Grantor owns the entire fee simple interest in the Property, and has the full power and lawful authority to grant this Easement. Any and all financial liens or financial encumbrances existing as of the date of the execution of this Easement have been subordinated. Grantor further represents and warrants that the Property is not subject to any other liens and encumbrances except as otherwise set forth on 3 the attached Exhibit C . i 12. Entire Agreement This Easement is the final and complete agreement between the parties concealing the rights granted herein, and supersedes all prior understandings with respect to it. This Easement may not be modified or terminated, nor may any obligations under it be waived, except by written instrument signed by all parties to the Easement. Page 5 TRAIL AND GREENWAY EASEMENT — Tigard Industrial LLC 11 Further Cooperation Each of the parties agree to execute such other documents and to perform such other acts as may be reasonably necessary or desirable to further the expressed and intent purpose of this Easement. I 14. Covenants Running With the Land The parties acknowledge and agree that the grant conferred by this Easement is intended to, and does, constitute an encumbrance that runs with the Property and inures to the benefit of and is binding upon the parties and their respective grantees, heirs, successors, and assigns. Without limiting the forgoing, Grantor acknowledges that Holder's rights under this Easement are assignable and that Grantor hereby consents to Holder's assignment of all of its right, title, and interest and its delegation of all of its obligations created under this Easement. Upon any such assignment, Holder shall be forever released and discharged from any and all claims, demands, and damages which Grantor may have, make, or suffer as a result of any thing done or occurring after the date of such assignment. Nothing contained in this Section, however, shall in any way be construed as releasing Holder's successors and assigns from any obligations to Grantor created by this Easement. IN WITNESS WHEREOF, the parties have executed this Easement as of the date first set forth above. HOLDER: GRANTOR: METRO, TIGARD INDUSTRIAL LLC, an Oregon municipal o rayon an Oregon limited liability company x/, ," ���- -- -Mich46 Jordan, By. Phillip A. Cohn Chief Operating z Title: Authorize Sign Date: /D Date: 4 /8 /2010 Exhibits: Exhibit A — Property Legal Description Exhibit B -1— Easement Area Legal Description Exhibit B -2 — Depiction of Easement Area Exhibit C — Permitted Liens and Encumbrances M:SauonwyicmtFideati I6 Hanat: ;.3006M Acquisitions116 Faano Creek Linkage%\16.066 TigardIndouid LLOTigard Indus Trail Easement Mew FINAL 031830.doc I. I Page 6 TRAIL AND GREENWA Y EASEMENT — Tigard Industrial LLC - State of OREGON County Of his ins ent was acknowledged before me on L _ _ 2010 by � as the - of Tigard Industrial LLC, an Oregon limited liability company. Notary Public - State of Oregon OF SEAL . L VIEGAK NOTARY PUSUC COMMISSION NO, 423412 f WCOMMISSION FIRES NOV 15, 2011 State of OREGON County of MULTNOMAH This instrument was acknowledged before me on f. 1 2010 by Michael Jordan as Chief Operating Officer of Metro. OFFICIAL SEAL KAYLENE L KIRCHEM Notary P blic - State of Oregon NOTARY P OREG CoMMISSIQN No. 406947 # my GOMMISSIDN EXPIRES JUNE 7, 2 ©1 D Page 7 TRAIL AND GREENWAY EASEMENT -- Tigard Industrial LLC 1 a EASEMENT EXHIBIT A Property Legal Description Parcel I: TRACT A: Beginning 8.78 feet North 89 °23' East and 306.20 feet South 18 °20' West from the Northwest corner of Lot 21 of North Tigardville Addition as amended, a plat of record in Section 2, Township 2 South, Range 1 West, Willamette Meridian, in the County of Washington and State of Oregon; thence North 71 °40' West 324.30 feet to a point on the West line of Lot 22 of the above said Tigardville Addition; thence South 0 °45' East on the above said West line of Lot 22 a distance of 236.12 feet to an angle point in said West line of Lot 22; thence South 11 °12' West 9.29 feet to a point; thence South 67 °08' East 374.02 feet to a point on the Westerly right of way line of County Road No. 893 (Lucas Road); thence North 23 °40' East on said Westerly line of road 234.60 feet to a point; said point being the Southeast corner of that tract in correction Deed recorded May 15, 1972 in Book 867, Page 272, Records of Washington County; thence North 71 ° 40' West 148.71 feet to a point; thence North 18 °20' East 28,34 feet to the point of beginning. TOGETHER WITH that portion of S.W. Lucas Avenue which inured thereto by reason thereof by Vacation Ordinance No. 75 -17, recorded April 1, 1975 in Book 1016 Page 693. TRACT B: Beginning 8.78 feet North 89 °23' East and 306.20 feet South 18 °20' West from the Northwest corner of Lot 21 of North Tigardville Addition, as amended, a plat of record in Section 2, Township 2 South, Range 1 West, Willamette Meridian, in the County of Washington and State of Oregon; thence South 18 °20' West 23.53 feet to the true point of beginning of the parcel described herein; thence continuing South 18 °20' West 4.81 feet to a point; thence South 71 °40' East, 128.49 feet to a point; thence North 18 0 24 1 57" East, 4.62 feet to a point; thence North 71'35'03" West 128.50 feet to the trac point of beginning. Parcel II: Beginning at a point on the Easterly right of way line of Lucas Avenue, said point of beginning being 305.74 feet South 23 °40' West from the intersection of the Easterly right of way line of Lucas Avenue and the Southerly right of way line of County Road No. 767 (Tigard Street) in Section 2, Township 2 South, Range I West, Willamette Meridian, in the County of Washington and State of Oregon; thence South 74 1 08'20" East 256.96 feet to a point on the Westerly line of Tract I of that certain tract of land conveyed by Deed in Book 313, Page 480 of the Washington County Deed Records; thence South 15 °51'39" Weston above said Westerly line 182.55 feet to the Southwest corner thereof; thence South 76 °21'30" East on the Southerly line of said tract (Book 313, Page 480) 50.00 feet, more or less, to the center of Fanno Creek; thence upstream in center of creek to a point 151.96 feet Southerly from the last described line when measured at a right angle; thence leaving said creek North 75'1 1' West 315.00 feet, more or less, to a point on the Easterly right of way line of Lucas Avenue; thence North 23 °40' East on said line 343.22 feet to the point of beginning. TOGETHER WITH that portion of S.W. Lucas Avenue which inured thereto by reason thereof by Vacation Ordinance No. 75 -17 recorded April 1, 1975 in Book 1016, Page 693. Page 1 TRAIL AND GREENWAY EASEMENT — Exhibit A EASEMENT EXHIBIT A Property Legal Description Parcel III: TRACT A: Beginning at a point on the Westerly right of way line of Lucas Avenue; said point of beginning being 538.91 feet South 23 °40' West from the intersection of the Westerly right of way line of Lucas Avenue and the Southerly right of way line of County Road No. 767 (Tigard Street) in Section 2, Township 2 South, Range 1 West, of the Willamette Meridian, in the County of Washington and State of Oregon; thence North 67 °0S' West 374.02 feet to a point; thence South 11 °12' West 108.00 feet, more or less, to the center of Fanno Creek; thence in the center of said creek and downstream to a point on the Southern Extension of the Westerly right of way line of Lucas Avenue; thence North 23 °40' East 110.00 feet to the point of beginning. TOGETHER WITH that portion. of S.W. Lucas Avenue which inured thereto by reason thereof by Vacation Ordinance No. 75 -17 recorded April 1, 1975 in Book 1016, Page 693. TRACT B: Beginning at a point on the Easterly right of way line of Lucas Avenue; said point of beginning being 62596 feet South 23 °40' West from the intersection of the Easterly right of way line of Lucas Avenue and the Southerly right of way line of County Road No.' 767 (Tigard Street) in Section 2, Township 2 South, Range 1 West, of the Willamette Meridian, in the County of Washington and State of Oregon; thence South 21 °Z0' East 28.25 feet to a paint; thence South 75 °11' East 2$2.27 feet, more or less, to the center of 1~anno Creek; thence in the center of said creek and upstream in a Westerly direction, to a point on the Southern extension of the Easterly right of way line of Lucas Avenue; thence North 23 °40' East 52.00 feet, more or less, to the point of beginning. TOGETHER WITH that portion of S.W. Lucas Avenue which inured thereto by reason thereof by Vacation Ordinance No. 75 -17 recorded April 1, 1975 in Book 1016, Page 693. i i Page 2 TRAIL AND GREENWAY EASEMENT --- Exhibit A EASEMENT EXHIBIT B -1 Easement Area Legal Description A parcel of land lying in the northwest one - quarter of Section 2, Township 2 South, Range 1 West, W.M., City of Tigard, Washington County, Oregon, and being a portion of that property described in the Statutory Warranty Deed to Tigard Industrial LLC, recorded March 5, 1999 as Document No. 99027431, Washington County Records; the said parcel being that portion of said property lying on the southerly side of the following described line: Beginning at a point which bears South, a distance of 491.19 feet, and West, a distance of 574.94 feet from the monumented north one - quarter corner of said Section 2; thence North 85 08' 02" West, a distance of 25.00 feet to a 518" iron rod; thence continuing North 85° 08' 02" West, a distance of 145.09. feet to a 518" iron rod; thence North 85° 49' 07" West, a distance of 170.45 feet to a 518" iron rod and the True Point of Beginning; thence South 53° 56' 33" West, a distance of 126.06 feet to a 5/8" iron rod; thence North 70° 34' 30" West, a distance of 205.42 feet to a 5/8" iron rod; thence North 22° 10' 27" West, a distance of 90.79 feet to a 5/8" iron rod; thence North 69° 07' 25" West, a distance of 224.83 feet to a 5/8" iron rod; thence North 70° 35' 26" West, a distance of 140.16 feet to a 5/8" iron rod; thence continuing North 70° 35' 26" West, a distance of 25.00 feet to terminus of this line. Bearings and distances are based on the Oregon Coordinate System of 1983, North Zone. i i i Pagel TRAIL AND GR.EENWAY EASEMENT— Exhibit B -I EASEME EXHIBIT S- Deic6o of Easement Area . � . - S.W. KAROL COURT 7/ T ■ �_� §� � � 2 � � q `§ Ni b _ $m .� 29 k - . & .b - 2 \ » � G § , §- ! . CAI TRAIL AND ORE£NW4Y{ASFMENT -ExIn 113-2 . . EASEMENT EXHIBIT C Permitted Liens and Encumbrances 1. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to. Unified Sewerage Agency Purpose: Sewer Recording Date: November 6, 1972 Recording No: Book 896; Page 128 Affects: a 30 foot strip of land over a portion of subject property 2. Any easements or rights of way for existing utilities or other rights of way over those portions of said Land lying within the public right of way vacated by resolution or ordinance Recording Date: April 1, 1975 Recording No: Book 1016; Page 693 Affects: Ordinance No. 75 -17, Lucas Avenue 3. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document Granted to: City of Tigard Purpose : underground storm drainage Recording Date: October 30, 1986 Recording No: 86050542 and 86050543 Affects: various strips of land over subject property 4. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: City of Tigard Purpose: Sewer Recording Date: October 30, 1986 Recording No: 86050548 and 86050544 Affects: various strips of land over subject property i Page 2 TRAIL, AND GREENWAY EASEMENT — Exhibit C