2010-030494 _� -- — _ . ..............
Washington County, Oregon 201 ^034494
t" 0412112010 03 :59:19 PM �
D-12 Cnt =1 Stn =7 K GRUNEWALD
' $60.0o $5.00 $11.00 $15.00 - 'rata] = $91.00
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* After recording return to: I, Richard Hob 014ht p89120 f 0003 g 049401 d 20129 Asses 1` Ca Coun ty, O do here that {ho wRhl on g
Metro ty, v €
inatrument afwrltingwas reached and r"orded inthe s
Office of Metro Attorney boak of reeordo of aald cou
600 EVE Grand Avenue ; Richard Hnbem3aht, 01recto�r of � esament and
Portland, Oregon 97232 Taxation, Ez Officta County Clerk
TRAIL AND GREENWAY EASEMENT
�C] This Trail and Greenway Easement (this "Easement ") is made and entered into
[� effective the last date of signature, below, by and between James R. and Sherry D. Elliott,
( "Grantors "), and Metro, an Oregon municipal corporation ( "Holder ").
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RECITALS
A. Grantors are the owners of the real property commonly known as Tax Parcel
r6 00501, Township 2 South, Range 1 West, Section 213A of the Willamette Meridian, in the City
of Tigard, County of Washington, State of Oregon, and legally described on Exhibit A
attached hereto (the "Property").
B. Holder is an Oregon municipal government whose purpose, among other
C."i things, is to build, operate, and maintain recreational trails and pathways for the benefit of the i
public. Holder desires to build, operate, and maintain a recreational trail, pathway and
greenway on the Property along Fanno Creek.
C. Grantors desire to grant to Holder, and Holder desires to accept from Grantors,
i an easement over the Property.for the purpose of allowing Holder to establish and maintain a
public trail and pathway, with an adjoining greenway, in accordance with the terms and
conditions set forth below.
Q In consideration of the recitals and the mutual benefits, covenants, and terms herein
u ' contained, and for other good and valuable consideration, the receipt of which is hereby
acknowledged, Grantors hereby dedicate, grant, covenant, and agree as follows:
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AGREEMENT
1. Grant of Easement Grantors hereby grant to Holder a nonexclusive, perpetual j
easement in gross, on, over, across, and along a portion of the Property (the "Easement €
Area"). The Easement Area runs along Fanno Creek on the western portion of the property
and is more particularly described and depicted on Exhibits B -1 and B_-_2 attached hereto.
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 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,
Page I TRAIL AND GREENWAY EASEMENT — Elliott
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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, Hepair,,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, installing the following related surface and subsurface utilities and improvements
(collectively, the "Trail Facilities "): (i) appropriate trail surfaces, foot bridges 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 t
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
Grantors shall cooperate in good faith with Holder in obtaining any necessary construction
and/or development permits. Holder shall give Grantors thirty (30) days written notice before
commencing construction of the Trail and Trail Facilities.
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(d) Holder shall be solely responsible for all repair and maintenance of the
Trail, Trail Facilities, and Greenway; provided, however, that Grantors shall reimburse Holder
j 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 Grantors or Grantors' 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 limit public use of and access to the Trail.
Page 2 TRAIL AND GREENWAY EASEMENT •-- Elliott
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5. Grantors' Use of Easement Area Grantors shall retain the right to access, use,
and enjoy the Easement Area for its purposes consistent with the rights granted herein.
Grantors are 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 Grantors 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) Blocking, 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;
(t) 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;
(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
0) 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 forms of pollution.
5. Enforcement In addition to any other remedies available at law or in equity,
Holder may compel Grantors 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
Page 3 TRAIL AND GREEVWAY EASEMENT — Elliott
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restoration of the Trail, Trail Facilities, and Greenway destroyed or altered as a result of
Grantors' violation of this Easement; and 1.
(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.
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7. Hazardous Substances Grantors represent and warrant to the best of their €
knowledge that they have 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 Grantors are not attempting to convey, transfer, or assign any
such liability herein.
8, Taxes Grantors shall pay when due all real property taxes, assessments, and
other charges against the Property, including the Easement Area. There shall be no right 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 Grantors 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 Grantors 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. Holder shall indemnify, defend, and hold
harmless Grantors against all losses and litigation expenses resulting from property damage
and/or personal injuries that occur or are alleged to occur as a result of Holder's installation or
maintenance of the Trail, Trail Facilities, or Greenway, except to the extent caused by the
negligent or wrongful acts or omissions of Grantors. Grantors agree to indemnify, defend,
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 Grantors, or Grantors' contractors, agents,
employees, tenants, guests, invitees, or anyone else entering the Property by, through, or
- under the express or implied invitation of Grantors, or (c) structures, facilities, or
improvements within the Easement Area, other than the Trail Facilities installed by Holder.
As used in this Section, the word "losses" means any liability, loss, claim, settlement
payment, cost and expense, interest, award, judgment, damages (including punitive damages),
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diminution in value, fines, fees, and penalties or other charge other than a litigation expense.
j 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.
Page 4 TRAIL AND GREENWAY EASEMENT —Elliott
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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 Grantors: James R. and Sherry D. Elliott
9740 SW Tigard Street
Tigard, OR 97223
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 97232 -2736
11. Title Warranty
(a) Grantors represent and warrant that Grantors own the entire fee simple
interest in the Property, and have 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. Grantors further represent and warrant that the
Property is not subject to any other liens and encumbrances except as otherwise set forth on
the attached Exhibit C .
12. Entire Agreement This Easement is the final and complete agreement between
the parties concerning 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.
13. 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. F
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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, Grantors
acknowledge that Holder's rights under this Easement are assignable and that Grantors hereby
consent to Holder's assignment of all of their right, title, and interest and Holder's delegation
of all of Holder's 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 Grantors 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
Page 5 TRAIL AND GREENWAY EASEMENT — Elliott
way be construed as releasing Holder's successors and assigns from any obligations to
Grantors created by this Easement.
IN WITNESS WHEREOF, the parties have executed this Easement as of the date first set
forth above.
METRO, GRANTORS:
an Oregon municipal corporation
P R Michae Jordan, ame . Elliott
Chief Operating /Cer
� Date: 3 /�
Date:
S D✓ lliott
Date: 53
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
Waltorneykonfidenlia1116 MadMens.2006\04 Acquisiticns116 Fanno Creck Linkases\16.064 ElliottOliott Fasoment Final032410.doa
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Page 6 TRAIL AND GREENWAY EASEMENT— ElIiott
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State of OREGON
County of C� atvt6
This instrument was acknowledged before, me on � l,� «' 2010 b i
Fames R. Elliott. E
OFFICIALSEAL
ckv�o 0 rt � CARRl1= MiCHELI.E RED3FER
� NDTARY PliBL1C-0AC -Ea0P]
'�—••- COMMISSION N0, 445757 �
Notary Public _ State of Or on MYCO�IMI lONEf{PIBE5JANliARY�,2094
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State of OREGON
County of
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This instrument was acknowledged before me on �j�`` , 2010, by
Sherry D. Elliott,
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OFFI(MLSEa
CARRIE MICHELLE REDIFER
# NOTARY PUBUC- OREGON
Notary Public - State O Or on COMMISSION NO. 445757
NIY C0MMIS510N EXPIBES JANtIAiiY 20, 20i4
State of OREGON
County of MULTNOMAH �
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This instrument was acknowledged before me on r! , 2010 by
Michael Jordan as Chief Operating Officer of Metro.
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e OFFICIAL SEAL
KAYLENE L KIRCHEM
# my NOTARY PUBUG- OREGON
Notary ublic - State of Oregon COMMISSION NO.406947
COMMISSION EXPIRES JUNE 7, 209 p
Page 7 TRAIL, AND GREENWAY EASEMENT — Elliott
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EXHIBIT A
ProM* Legal Description
Parcel I:
Part of Lots 21 and 60, Amended Plat of North Tigardville Addition, in the City of Tigard, ,
Washington County, Oregon, described as follows:
Commencing at the Northwest corner of Lot 60; thence South 64 °49' East along the Northerly
line of said Lot, 105.0 feet; thence South 15 °28' West 40.6 feet to the Southerly line of
County Road No. 767 and the true point of beginning; thence South 15 °28' West 345.0 feet;
thence North 64 °49' West 90.2 feet; thence South 15 °28' West 104.8 feet to the Southwest
corner of the Palmer H. Olson Tract in Lot 21, North Tigardville Addition, Amended Plat, as
described in deed recorded October 24, 1957, Book 399, Page 204, Deed Records; thence
South 76 °43' East 90.5 feet to a point on the Southerly line of said Lot 21; thence Easterly
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along the Southerly line of said Lot 21 to the Southwest corner of said Lot 60; thence
following the Southerly line of Lot 60, along the old channel of Fanno Creek, in a Southerly,
Easterly and Northerly direction, to the Southeast corner of said Lot 60; thence North 16 °00'
East along the Easterly line of said Lot 60, 100 feet, more or less, to a point that is South 16°
00' West 240 feet from the Southerly line of County Road No. 767; thence North 64 °49' West
140 feet to the most Westerly corner of tract described in deed to Gilbert G. Anderson,
recorded June 18, 1953, Book 346, of Deed Records, Page 85; thence North 20 1 46' East 237
feet to the most Northerly corner of said Anderson Tract and the Southerly line of County
Road No. 767; thence North 64 °49' West along the Southerly line of said County Road 113.4
feet to the true point of beginning.
Parcel II:
A portion of those tracts of land described in Book 486, Page 32 and Document Number
83015320 situated in the Northwest quarter of Section 2, Township 2 South, Range 1 West,
Willamette Meridian, in the City of Tigard, Washington County, Oregon, being more
particularly described as follows:
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Beginning at a point on the East line of Lot 60, NORTH TIGARDVILLE ADDITION
AMENDED PLAT, said point bearing South 16 °00'00" West, 221.50 feet from the
intersection of the Southerly right of way line of SW Tigard Street and the East line of said
Lot 60, the South right of way litre being 30 feet distant from the centerline thereof; thence
along said East line of Lot 60, South 16 °00'00" West, 8.34 feet to the Southeast corner of that
tract of land described in Book 486, Page 32; thence along the South line thereof, and
continuing along the South line of that tract of land described in Document Number
83015320, North 64 °49'00" West, 113.79 feet; thence leaving said line, parallel with and 10
feet distant from the South edge of an existing building, South 89 °00'17 "East, 112.76 feet to
the point of beginning.
Page 8 TRAIL AND GREENWAY EASEMENT T Exhibit A
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EXHIBIT B- I
Easement Area Legal Description
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A parcel of land lying in the northwest one - quarter of Section 2, Township 2 South, Range 1 West, I
W. M., City of Tigard, Washington County, Oregon, and being a portion of that property described in
the Statutory Bargain and Sale Deed to James R. Elliot and Sherry D. Elliot, recorded March 31, 2000
as Document No- 2000025272, 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 and the Trite Point of Beginning; thence continuing North 85
08'02" West, a distance of 1.45.09 feet to a 518" iron rod; thence North 85"49'07" West, a distance of
170.45 feet to a 518" iron rod.
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page 9 TRAIL AND GREENWAY EASEMENT— Exhibit B -1 F
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EXHIBIT B -2 +
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Depiction of Easement Area
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Page IO TRAIL AND GREENWAY EASEMENT —Exhibit B -2
EXHIBIT C
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Permitted Liens and Encumbrances
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1. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document;
Granted to: City of Tigard
Purpose: Sewer line
Recorded: July 3, 1964, Book 516, Page 493.
Affects: A.10 -foot strip of land in the Southerly portion of the premises.
Reference is made to said document for full particulars
Restrictions on the use, by the owners of said land, of the easement area as set forth in the easement
document shown hereinabove.
Reference is made to said document for full particulars.
2. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document;
Granted to: Unified Sewerage Agency of Washington County
Purpose: Sewer r
Recorded: May 16, 1972, Book 867, Page 569.
Affects: Exact location cannot be determined
Restrictions on the use, by the owners of said land, of the easement area as set forth in the easement
document shown hereinabove.
Reference is made to said document for full particulars.
3. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document;
Granted to: City of Tigard
Purpose: Sewer line
i Recorded: February 14, 1985, Recorder's No. 85005501.
Affects: A 15 -foot strip in the Easterly portion of the premises.
Reference is made to said document for full particulars.
Restrictions on the use, by the owners of said land, of the easement area as set forth in the easement
document shown hereinabove.
Reference is made to said document for full particulars.
Page I l TRAIL AND GREENWAY EASEMENT —Exhibit C
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EXHIBIT C
Permitted Liens and Encumbrances
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4. Easeinent(s) for the purpose(s) shown below and rights incidental thereto as granted in a document;
Granted to: City of Tigard
Purpose: Sewer line
Recorded: February 14, 1985, Recorder's No. 85005503.
Affects: A 15 -foot strip in the Easterly portion of the premises
Reference is made to said document for full particulars.
Restrictions on the use, by the owners of said land, of the easement area as set forth in the easement
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document shown hereinabove. i
Reference is made to said document for full particulars.
5. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document;
Granted to: Portland General Electric Company
Purpose: , Electric power line
Recorded: July 5, 1994, Recorder's No. 94063996. '
Affects: An 8 -foot strip in the Easterly portion of the premises
6. Leases and/or tenancies, if any.
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Page 12 TRAIL AND GREENWAY EASEMENT — Exhibit.0
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