RES NO. 2017-23 INITIATING THE VACATION OF DISPUTED STREET (DUANE LANE)RESOLUTION NO. 2017-23
A RESOLUTION of the City Council of Bainbridge Island,
Washington, initiating the vacation of a disputed street.
WHEREAS, at its November 28, 2017, meeting, the City Council approved an
Agreement for Improvement to Public Trail and Processing of Vacation of Disputed
Street ("Agreement") to resolve a right-of-way dispute between the City and several
landowners in exchange for construction of a public trail connection between Sportsman
Club Road and Weaver Road; and
WHEREAS, under the terms of the Agreement, the City agreed to initiate a street
vacation process for certain City right-of-way at the first City Council meeting following
the execution of that agreement; and
WHEREAS, the date of the first City Council meeting following the execution of
the Agreement is December 5, 2017; and
WHEREAS, the City Council desires to initiate the street vacation process
related to the City right-of-way proposed to be vacated in the Agreement; and
WHEREAS, the City Council -initiated street vacation procedure is set out in
Chapter 12.34 BIMC and Chapter 35.79 RCW; and
WHEREAS, BIMC 12.34.020 and RCW 35.79.010 authorize the City Council to
initiate a street vacation by resolution, and BIMC 12.34.060 requires that such resolution
sets the time for a public hearing on the street vacation.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE
ISLAND DOES RESOLVE AS FOLLOWS:
Section 1. Initiation.
Pursuant to BIMC 12.34.020 and RCW 35.79.010, the City Council resolves to
initiate the street vacation process for the City right-of-way proposed to be vacated by the
Agreement, an executed copy of which is attached hereto as Exhibit A and incorporated
herein by this reference as if set forth in full.
Section 2. Hearing Set.
Pursuant to BIMC 12.34.060, the date and time of February 6, 2018, at 7:00 PM,
or as soon thereafter as the matter may be heard, is hereby established as the date on
which the Bainbridge Island City Council will hold a public hearing to consider the
proposed street vacation. The hearing will be held in the Council Chambers at Bainbridge
Island City Hall.
Page 1 of 2
Section 3. Notice.
The City Clerk, or the Public Works Director acting under the direction and
supervision of the City Clerk, is hereby directed to give at least 20 days' notice of the
date, time, and location of the public hearing by: (a) publishing notice in the City's
official newspaper; (b) posting placards at each end of the street to be vacated; (c)
mailing written notice to abutting property owners; and (d) posting written notice in three
prominent public places throughout the city.
PASSED by the City Council this 5th day of December, 2017.
APPROVED by the Mayor this 5th day of Decen
am
ATTEST/AUTHENTICATE:
By61�n�e
Ch Brown, City C er
FILED WITH THE CITY CLERK: December 1, 2017
PASSED BY THE CITY COUNCIL: December 5, 2017
RESOLUTION NO. 2017-23
Exhibit A: Agreement for Improvement to Public Trail and Processing of Vacation of
Disputed Street
Page 2 of 2
Exhibit A
AGREEMENT FOR IMPROVEMENT TO PUBLIC TRAIL AND PROCESSING OF
VACATION OF DISPUTED STREET
THIS AGREEMENT FOR IMPROVEMENT TO PUBLIC TRAIL AND PROCESSING
OF VACATION OF DISPUTED STREET ("Agreement") is made and entered into by and
between the City of Bainbridge Island, a Washington municipal corporation ("City"), and Gary
and Susan Ohrt, a married couple ("Ohrt"), CCHD LLC, a Washington limited liability
company ("CCHD"), and Mattis Consulting Group LLC, a Washington limited liability
company ("Mattis") (each a "Party" and together the "Parties"). The effective date ("Effective
Date") of this Agreement shall be the date of complete execution hereof.
RECITALS
A. Mattis is the consulting company working with DeNova Northwest LLC, a Washington
limited liability company ("DeNova") regarding its approved 12 -lot preliminary plat
subdivision (Project No. PLN 50622 SUB) located at 7340 Finch Road NE ("The
Reserve at Winslow"). Mattis also worked with DeNova on its 19 -lot recorded final
subdivision (Kitsap County Recording No. 201704260172) at 7629 Weaver Road
("Winslow Grove").
B. The Reserve at Winslow has received preliminary plat approval, but it has not yet
received final plat approval and it has not been recorded. The preliminary plat approval
requires DeNova to dedicate a 20 -foot public trail easement along the north boundary of
The Reserve at Winslow, and to build a trail between the western boundary of the
easement and the western boundary of Tract A (open space tract), as described in the
preliminary plat approval.
C. The Winslow Grove subdivision has received final plat approval and has been recorded.
At the time the Winslow Grove subdivision was recorded, DeNova dedicated a 15 -foot
public trail easement to the City, which is located along the south boundary of Winslow
Grove. DeNova has constructed a trail in that easement between Weaver Road NW and
the western edge of the cul-de-sac within the Winslow Grove subdivision.
D. The locations of the anticipated trail easement and trail previously required to be
constructed at The Reserve at Winslow and the existing trail easement and built trail at
Winslow Grove are shown on the attached Exhibit A, titled "Trail Connection." Because
the trail easement for The Reserve at Winslow runs along the northern edge of the
development, and the trail easement for Winslow Grove runs along the southern edge of
that development, such that the two easements meet only at the point at which the two
developments meet (i.e., the property corners), a contiguous trail is not possible without
the acquisition of additional property or an easement to join the two trail easements.
E. Thomas and Vivienne Alpaugh ("Alpaugh") own that certain property located at 8411
NE Lightmoor Court (Tax Parcel No. 27250220422000) ("Alpaugh Property"). The
Alpaugh Property abuts the northern boundary of Tract A of The Reserve at Winslow,
which is an open space tract. See attached Exhibit A. Alpaugh has agreed to grant the
City an easement over a small portion of the southeast corner of the Alpaugh Property in
103432191,DOCX;5 ) Page 1 of 6
order to provide sufficient land to physically connect the public trails at The Reserve at
Winslow and Winslow Grove. Alpaugh is agreeing to provide the easement only if the
trail located south of the Alpaugh Property is moved further to the south, as shown in
Exhibit A. Alpaugh's consent to provide the easement is attached hereto as Exhibit D.
F. CCHD is the consulting company working with Ohrt, the applicant for the proposed 8 -lot
Madison Grove subdivision (Project No. PLN50667 SUB) ("Madison Grove Project")
and forthcoming Townhouse project ("Townhouse Project"). Both the Madison Grove
Project and the Townhouse Project will occur on property located between Madison
Avenue N. and Nakata Avenue NW in the City of Bainbridge Island. The Madison Grove
subdivision is planned to include tax parcels 27250211262001, 27250211402003,
27250211412002, and 27250212142004 ("Madison Grove Property"). The Townhouse
project is planned to include tax parcels 27250210662003, 27250210212007, and
27250210222006 ("Townhouse Property").
G. A dispute has arisen between the Parties regarding whether an unopened public street
exists over the Madison Grove Property ("Dispute"). Ohrt maintains that no public street
was ever effectively dedicated and that the City previously has communicated the same
in writing and issued permits and approvals that are in conflict with the existence of a
public street. The City maintains that some previous communications from City staff
were in error regarding the subject street, that the street exists based on the chain of title
related to the properties at issue including, but not limited to, a short subdivision recorded
in 1983, and that because the street was never vacated, it exists today.
H. The Parties have identified a resolution of the Dispute which involves, among other
things, the City initiating and processing, as described below, a vacation of the
subject/alleged public street on the Madison Grove Property in exchange for Ohrt
obtaining permits and then engineering, designing, and constructing a public trail
between Sportsman Club Road and Weaver Road. The proposed trail would require the
permitting and construction of a bridge over Hirawaka Creek. Once completed, the public
trail would provide an approximately 1,241 -foot uninterrupted extension of the
Bainbridge Island Parks Foundation's planned Winslow to Gazzam Trail.
1. The Parties are entering into this Agreement to set forth the terms and conditions under
which the Dispute is resolved to their mutual satisfaction.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and considerations set
forth below and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. City Initiation and Processing of Street Vacation. At the first City Council
meeting following execution of this Agreement, the Council, pursuant to BIMC 12.34.020, will
initiate a street vacation to vacate the area depicted as "29.41' Dedicated to City of Winslow for
Street Purposes," in that certain Fryer Short Plat, recorded under Kitsap County Recording No.
8312080074, a copy of which is attached as Exhibit B-1 hereto, and variously described as a
10343219LDOCX;5 y Page 2 of 6
private road, "road right-of-way," "street," and "perpetual easernent," in the chain of title for the
properties at issue, as shown in Exhibits B-2 through B-5 (the "Disputed Street"). Attached as
Exhibit E is a map showing the location of the Disputed Street and the owners of the abutting
properties. The City agrees to make a good faith effort to prioritize the processing of the
vacation. At its discretion, the City may approve or reject the proposed vacation. If the City
approves the vacation, it reserves the right, as provided in BIMC 12.34.110, to retain an
easement for construction, repair, and maintenance of existing and future utilities and services.
However, if the City fails to initiate the vacation within 30 days of the Effective Date, fails to
vote on the vacation within 90 days of the Effective Date, or rejects the vacation, then this
Agreement shall terminate and Olirt shall have no obligation to complete the Trail Improvements
described in paragraph 4. If the City approves the vacation, then Ohrt agrees to pay the costs of
recording the certified copy of the ordinance vacating the Disputed Street. Pursuant to BIMC
12.34.130(B), in that the vacation as described would be initiated by the City, the owners of
property abutting the Disputed Street, including Ohrt, shall not be required to pay compensation
for the area vacated.
2. Consent to Vacation of Disputed Street by Abutting Property Owners. Ohrt owns
the property abutting the Disputed Street with the exception of the west approximately 125.02
feet, where the abutting owners are the City to the north and Ricardo and Jean Ann V.H.
Fleischfresser ("Fleischfresser") to the south. Ohrt, as an abutting property owner, hereby
consents to the vacation of the Disputed Street. Fleischfresser's consent to the vacation of the
Disputed Street is attached as Exhibit C.
3. Minor Amendment or Alteration to Preliminary Plat for Tile Reserve at Winslow
and Confirm Compliance with Certain Conditions of ARproval.
a. Miner Amendment or Alteration. Immediately following the execution of
this Agreement, Mattis will seek to amend or alter, as applicable, the approved
preliminary plat for The Reserve at Winslow including, as applicable, related to
amending existing State Environmental Policy Act ("SEPA") conditions, to
reduce the trail easement width along the north boundary from 20 feet to 15 feet,
which is the trail width existing along the southern boundary of the Winslow
Grove subdivision. Exhibit A shows the existing and proposed trail easement
widths.
b. Compliance with Certain Existing Plat Conditions. The City confirms that
the following conditions of approval for The Reserve at Winslow shall be met as
provided below and no amendment to the SEPA conditions or preliminary plat
approval for The Reserve at Winslow is necessary related to these conditions:
i. The location of the public trail substantially as shown on Exhibit
A meets the requirement stated in SEPA Condition 1(A) for
providing a "non -motorized trail for the length of the north
property boundary."
103432191.DOM5 f Page 3 of 6
ii. The location of the private trail between Lots 4 and 5, as depicted
on Exhibit A, meets the requirement stated in SEPA Condition
1(B) for providing a "southern non -motorized trail connection to
Tract A ... between the south cul-de-sac and the open space tract."
The trail shall be 5 feet in width as provided in SEPA Condition
1(B)(3).
iii. The 10 -foot "Building to Trail" setback described in condition 12
shall. be met by setting back the homes constructed on Lots 4 and 5
10 feet from the edge of the required 5 -foot trail.
The City will process the preliminary plat amendments and SEPA amendment(s) described
herein following the execution of this Agreement and upon submittal of a complete application
by the applicant. The processing and approval of such amendments is not contingent upon any
other action by the Parties and, if this Agreement is terminated after the amendments have been
approved, such termination will have no effect on the effectiveness of the amendments. The City
agrees to make a good faith effort to prioritize the processing and approval of the amendments
described in this paragraph 3 and to prioritize the processing and decision on the final plat for
The Reserve at Winslow. If the City denies any or all of the amendments described in this
paragraph 3, then Ohrt may in Ohrt's sole discretion elect to terminate this Agreement by
providing written notice of the same to the City Manager within 14 days following such denial or
the conclusion of any administrative appeal of such denial, whichever comes later in time.
4. CCI -ID to Seek Permits for Trail Connection Work. Immediately following the
City's approval of the amendments described in paragraph 3 above and expiration of all
applicable appeal periods, Ohrt will diligently pursue the permits necessary to construct a gravel
trail not less than 6 -feet wide between Sportsman Club Road and Weaver Road in the location
shown in Exhibit A and described as "449' Proposed Trail (Gap Area)," which includes a bridge
over Hirawaka Creek ("Trail Improvements"). Ohrt shall be responsible for the permitting
costs and costs of constructing the Trail Improvements, but the City shall be responsible for any
mitigation required in conjunction with said permits. Ohrt understands that the City may choose
not to approve the vacation of the Disputed Street and Ohrt is incurring costs pursuing the Trail
Improvement permits at his own risk.
5. Ohrt to Complete Trail Connection Work. Upon recordation of a certified copy of
the ordinance vacating the Disputed Street and upon receipt of the necessary permits and
approvals, including approval of the bridge pursuant to the City's Special Use Review process
which applies to critical areas, Ohrt shall diligently pursue to completion the construction of the
Trail Improvements, and Ohrt shall be solely responsible for the costs of such construction. Ohrt
shall complete the gravel portion of the Trail Improvements no later than 60 days after receiving
final permits from the City. Ohrt shall complete the bridge portion of the Trail Improvements no
later than 60 days after receiving final permits for the bridge work from the City and the
Washington State Department of Fish and Wildlife. The City shall grant Ohrt permission to do
such work within the City's easement areas pursuant to a written instrument detailing such
permission. A performance security device, in the form of a surety or cash bond, shall be
required for the completion of such work and the City shall not unreasonably withhold its
acceptance of the Trail Improvements after they have been constructed. Upon completion, the
{03432191 DOCX;5 f Page 4 of 6
City, or its designee, shall be solely responsible for the maintenance and upkeep of the trail.
6. Cooperation. The Parties agree to cooperate and work together in good faith and
without delay to take the actions and issue the approvals described in this Agreement.
7. Attorneys' Fees. In any court proceeding brought to enforce or interpret this
Agreement, the substantially prevailing party (as determined by the court) shall recover from the
other party its costs and reasonable attorneys' fees, including costs and fees on appeal.
8. Governing Law. This Agreement shall be governed and interpreted in accordance
with the laws of the State of Washington. In any action brought to enforce or interpret the
provisions of this Agreement, venue shall be exclusively in Kitsap County Superior Court.
9. Time. Time is of the essence for all provisions of this Agreement.
10. 1 -leading. The headings contained in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
11. Binding Effect. This Agreement shall be binding on and inure to the benefit of the
parties and their respective successors and assigns.
12. Entire Agreement. Amendment. This Agreement represents the entire agreement
of the Parties and supersedes any prior communications, written or oral. This Agreement is the
product of negotiation and shall not be construed against either party as the drafter hereof. No
amendment, modification, or waiver of any rights hereunder shall be binding unless in writing
and signed by the party or parties potentially adversely affected hereby.
13. Counterparts. This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one instrument.
14. Authoritv. Each party signing this Agreement, whether signing individually or on
behalf of an entity, represents that he/she has full authority to sign this Agreement on behalf of
himself/herself or such entity.
15. Reouired Permits and other land Use Approvals. This Agreement in no way
waives or limits the permits and other land use approvals that must be obtained by the Parties to
this Agreement pursuant to the Bainbridge Island Municipal Code, state law, and other
applicable regulations and laws related to the activities described in this Agreement.
16. Waiver of Claims and—Potential Claims. The Parties desire to avoid the expense,
inconvenience, uncertainty, and potential litigation associated with resolving the Dispute. The
Parties therefore have entered into this Agreement in an effort to resolve their dispute, and
resolve all potential claims, causes of action, and any lawsuit which could be asserted by Ohrt,
CCHD, and Mattis against the City related to the Dispute. Upon recordation of a certified copy
of the ordinance vacating the Disputed Street upon the terms provided in this Agreement, the
City, Ohrt, CCHD, and Mattis shall be deemed to have waived all potential claims, causes of
action, and any lawsuit which could be asserted against the City, Ohrt, CCHD, and/or Mattis
related to the Dispute, as "Dispute" is defined in Recital G above. Notwithstanding such waiver,
{03432191 DOCX;5 I Page 5 of 6
the terms of this Agreement shall remain in full force and effect until the completion of the
Parties' obligations described herein, and the Parties shall retain their rights to enforce all
provisions of this Agreement, including related to breach of contract.
EXECUTED by the Parties on the dates set forth below.
CITY: OHRT:
The City of Bainbridge Island, a Gary and Susan Ohrt, a married couple
Washin tion municipal corporation
By:
Print n me: �04,, Y211-1 SCAU&— Gary On
Its:
Date signed: I`4 7 Date signed:
•
Date signed. 11 -Al -l7'
CCHD: MATTIS:
CCHD, a Washington limited liability Mattis, a Washington limited liability
company company
By: By:
Print name: Lanya Mc ttrick Print name: fodd McKittrick
Its: Manager Its: Manager
Date signed: Date signed: I I / Z °i -7
103432191.DDCX;5 E Page 6 of 6
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Exhibit C
Consent of Fleischfresser to Vacation of Disputed Street
1. We, Ricardo and Jean Ann V.H. Fleischfresser ("Fleischfresser"), are the owners of that
certain property located at 932 Nakata Ave NW, Kitsap County Tax Parcel No.
27250211382007 (the "Fleischfresser Property"), which abuts the southern side of the
west 125.02 feet of the area depicted as "29.41' Dedicated to City of Winslow for Street
Purposes" in that certain Fryer Short Plat, recorded under Kitsap County Recording No.
8312080074 ("Disputed Street").
2. Approximately 28 years ago, the City of Bainbridge Island ("City") issued building
permits and our home was constructed over a portion of the Disputed Street.
3. By signing below, we are notifying the City that we consent to the vacation of the
Disputed Street, provided that we are not made responsible for any costs or expenses
related to the vacation.
Ricardo Fleischfresser Jean Anne V.H. Fleischfresser
Exhibit C
(03429853.DOCX;l }
Exhibit D
Alpaugh Consent to Grant Easement to City in Exchange for
Moving Trail away from South Boundary of Alpaugh Property
1. We, Thomas and Vivienne Alpaugh ("Alpaugh") own that certain property located at
8411 NE Lightmoor Court, Bainbridge Island, Washington (Tax Parcel No.
27250220422000) ("Alpaugh Property"), which abuts the north boundary of that certain
property located at 7340 Finch Road NE (Tax Parcel No. 272502-2-026-2000) ("The
Reserve at Winslow").
2. Exhibit A to the Agreement for Improvement to Public Trail and Processing of Vacation
of Disputed Street ("Trail and Alpaugh Easement Exhibit") depicts the location of the
planned and existing public trails near the Alpaugh Property.
3. Alpaugh agrees to grant an easement to the City of Bainbridge Island ("City") at the
southeast corner of the Alpaugh Property in order to allow the connection of the planned
and existing public trails shown on the Trail and Alpaugh Easement Exhibit, provided
that the following conditions are met:
a. The trail south of the Alpaugh Property is moved away from the south boundary
of the Alpaugh Property as shown in the Trail and Alpaugh Easement Exhibit.
b. Alpaugh shall have no responsibility for the costs and expenses incurred to draft
the paperwork and record the easement over the Alpaugh Property and any
expenses incurred to changing the location of the trail south of the Alpaugh
Property.
c. The easement agreement between Alpaugh and the City will include the City's
indemnification of Alpaugh for liability related to the use of the trail by the City,
its employees, contractors, assignees and the public.
d. The easement will have substantially the same location and dimensions as shown
on the Trail and Alpaugh Easement Exhibit.
Thomas Alpaugh Vivienne Alpaugh
(03432422.DOCX;1 )
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