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RES 2004-01 ERICKSEN AVENUE AIRSPACERESOLUTION NO. 200401 A RESOLUTION of the City of Bainbridge Island, Washington, approving and authorizing the issuance of an airspace use permit to The Winslow I LLC, for a portion of the airspace above Ericksen Avenue. WHEREAS, The Winslow I LLC ("The Winslow") is the owner of certain real property located in Bainbridge Island, Kitsap County, Washington, which real property is located at the northeast comer of the intersection of Ericksen Avenue and Winslow Way ("Property"); and WHEREAS, The Winslow is improving the Property to include a condominium building called "The Winslow, a Condominium" ("Condominium") which includes a cantilevered section located on the exterior second floor of the building for purposes of constructing and installing a bay window; and WHEREAS, the above -referenced cantilevered section of the building, while not constructed on ground level, extends into the air space of Ericksen Avenue ("Encroachment"), and; WHEREAS, the Encroachment imposes a defect upon title to the Condominium and an unpermitted use of Ericksen Avenue, which the City and The Winslow desire to resolve; and WHEREAS, the City has determined that the Encroachment does not obstruct utilities or thoroughfare on Ericksen Avenue; and WHEREAS, the City agrees to issue to The Winslow an airspace use permit for the airspace above Ericksen Avenue which is occupied by the Encroachment for this occurrence in acknowledgement of the circumstances of the project development, now, therefore THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND HEREBY RESOLVES AS FOLLOWS: Section 1. The City Council finds that the granting of an airspace permit for the Condominium in accordance with the provisions, covenants, terms and conditions of the Airspace Use Permit attached hereto and incorporated by this reference, is in the City's and public's best interest. Resolution 2004-01 - Page 1 of 2 Winslow I LLC Airspace Permit 94700 1061270622.01 5st@01!. DOC Section 2. The mayor is hereby authorized to sign on behalf of the City said Airspace Use Permit. PASSED by the City Council this jjkh day of January _,2004 Darlene Kordonowy, Mayor ATTEST/AUTHENTICATE: 91 SAN P. KASPER, City Clerk FILED WITH THE CITY CLERK: January 7, 2004 PASSED BY THE CITY COUNCIL: January 1#, 2004 RESOLUTION NO. 2004-01 Resolution 2004-01 Page 2 of 2 Winslow I LLC Airspace Permit 94700 1 106 1 270622.011 sst@O1 !.DOC CITY OF BAINBRIDGE ISLAND, WASHINGTON ERICKSEN AVENUE AIRSPACE USE PERMIT THIS ERICKSEN AVENUE AIRSPACE USE PERMIT ("Permit") is issued to THE WINSLOW I LLC, a Washington limited liability company, ("Permitee") by the CITY OF BAINBRIDGE ISLAND, WASHINGTON ("City") as of the date indicated below and subject to the following terms, covenants, and conditions. Recitals A. Permitee is the owner of certain real property located in Bainbridge Island, Kitsap County, Washington, legally described on Exhibit A attached hereto and incorporated herein by this reference ("Property"). B. Permitee is improving the Property to include a condominium building called "The Winslow, a Condominium" ("Condominium"). Towards this end, on or about September 23, 2002, Permitee's predecessors in interest, AMD Properties, LLC and MJM Family Investments, LLC, obtained from the City's Planning and Community Development Department Building Permit No. 11807COM for the proposed Condominium ("Building Permit"). The Building Permit approved as part of the building design a cantilevered section located on the exterior second floor of the building for purposes of constructing and installing a bay window. C. The above -referenced cantilevered section of the building, while not constructed on ground level, extends into the air space of Ericksen Avenue ("Encroachment") approximately 2.43 feet for a length of 21.92 feet. Such Encroachment was known by the City and Permitee at the time of the Building Permit issuance. The Encroachment imposes a defect upon title to the Condominium and an unpermitted use of Ericksen Avenue, which defect the City and Permitee desire to resolve. D. Attached hereto as Exhibit B is a survey drawing and legal description for the Encroachment. E. The City has determined that the Encroachment does not obstruct utilities or thoroughfare on Ericksen Avenue, and the City agrees to issue to Permitee an airspace use permit for the airspace above Ericksen Avenue which is occupied by the Encroachment, as depicted on Exhibit B hereto. NOW, THEREFORE, in consideration of the mutual terms and conditions set forth herein, the parties agree as follows: Winslow I LLC Airspace Permit Page I of 6 947001106 270597.01 5ssl01!.DOC (1/7/04) 1. Permit Granted. The City hereby grants to Permitee the right to use the airspace depicted and described on Exhibit B hereto for purposes of constructing and maintaining the cantilevered building section approved in the Building Permit. Permitee's rights hereunder shall be limited to that airspace currently occupied by the Encroachment as constructed as of the issuance date of this Permit and as depicted and described on Exhibit B hereto, and may not be expanded in dimension or use without the express written consent of the City. 2. Permit Term. This permit is granted for the life of the Condominium building, as constructed pursuant to the Building Permit, and shall automatically expire without further action by either party upon the demolition, destruction, removal or renovation of greater than seventy-five percent (75 %) of the total square footage of the Condominium building; provided, that the City may earlier terminate this Permit as provided in Paragraph 3 below. 3. Revocation of Permit. 3.1 Revocation. The City may revoke this Permit prior to the expiration of its term set forth in Paragraph 2 above based on any of the following occurrences: 3.1.1 Illegal or Impermissible Use: Use of the Condominium for multi -family purposes becomes illegal or impermissible under the applicable zoning codes and/or other local, state or federal law; provided, that this Subparagraph 3.1 shall not apply to the extent that such use continues to be permissible pursuant to the applicable grandfather ordinances. 3.1.2 Zoning and Permit Violations: Permitee violates any zoning or permit conditions applicable to this Permit. 3.1.3 Abandonment: Permitee abandons the Condominium. For purposes of this Permit, Permitee shall be deemed to have abandoned the Condominium if Permitee discontinues all use of the Condominium for six or more months. 3.1.4 Interference with or Impediment to Utilities or Public Thoroughfare: The City determines that the Encroachment materially interferes with or impairs the City's ability to use the designated airspace for utilities and/or public thoroughfare purposes, and no reasonable alternate airspace is available for such utilities and/or public thoroughfare. 3.1.5 Violation of Applicable Law: Permitee fails to comply with the laws, regulations and rules applicable to this Permit. 3.1.6 Failure to Pay Permit Fees: Permitee fails to pay to the City as due the permit fee required pursuant to Paragraph 4 below. Winslow I LLC Airspace Permit Page 2 of 6 94700 106 270597.01 5ssl01!.DOC (1/7/04) 3.1.7 Encroachment Deemed Dangerous: The Encroachment is determined to pose a dangerous condition and/or a serious threat to the safety and well-being of the public. 3.2 Opportunity to Cure. The City shall give Permitee written notice of its intent to revoke this Permit pursuant to Subparagraph 3.1 above, and shall allow Permitee sixty (60) days from receipt of such notice to cure any occurrence or violation upon which the revocation is premised; provided, that, if Permitee undertakes reasonable and diligent efforts to cure the occurrence or violation within the 60 days, but such cure cannot be fully accomplished within this time period, the City shall reasonably extend this deadline to allow Permitee to fully cure the occurrence or violation. If Permitee fails to cure, or to take reasonable and diligent measures to cure, the occurrence or violation within 60 days, the City may revoke this Permit upon written notice to Permitee, and such revocation shall be effective immediately and without further right to cure. 3.3 Requirements Upon Revocation. If this Permit is revoked, Permitee, upon written request by the City, shall remove the Encroachment at Permitee's sole cost and expense. Upon such removal, Permitee shall take reasonable and necessary steps to protect adjoining properties from adverse impacts of the removal or work associated therewith, and shall obtain all necessary building, construction and/or demolition permits. 4. Permit Fee. Permitee shall pay a permit fee for the use of the airspace and the placement and use of the Encroachment. The permit fee shall be ONE HUNDRED THIRTY DOLLARS AND NO/100THS ($130.00) per year, and shall be paid by Permitee on or before the 3151 day of December of each year for the duration of this Permit. The permit fee may be increased by the City from time to time, subject to the following restrictions: (a) the permit fee shall only be modified as a result of the City's regular fee review process; and (b) the permit fee shall be consistent with any regular permit fee schedule generally applicable in the City for the use of airspace within a public right of way. Notwithstanding the foregoing, any annual increase in the permit fee shall not exceed two percent (2%) per annum ("Permit Fee Cap Rate"). 5. Transfer/Assignment. This Permit shall run with the Condominium and shall be transferable or assignable by Permitee to any subsequent owner(s) of the Condominium, including a condominium association or board established by Permitee in accordance with Chapter 64.34 RCW; provided, that Permitee shall not transfer or assign this Permit to any individual or entity not having an ownership or governing interest in the Condominium. Any transfer or assignment of this Permit shall be in a form acceptable for recording by the Kitsap County Auditor and shall be so recorded. Conformed copies of the recorded transfer or assignment shall be filed with the City Clerk for the City. Permitee and any successor in interest or assignee of this Permit acknowledge that all rights under this Permit are subject to the City's regulatory authority and other police power regulations applicable to the use of the Ericksen Avenue right-of-way, including any improvements placed thereon. Winslow 1 LLC Airspace Permit Page 3 of 6 94700 106 270597.01 5ssl01!. DOC (1/7/04) 6. Use of the Encroachment. Permitee shall use the Encroachment only for purposes of constructing and maintaining the cantilevered section of the building as a bay window. Permitee shall pay all taxes and assessments associated with or related to the Encroachment. 7. Indemnification. Permitee agrees to hold and save harmless the City, its officers, agents and employees from any and all claims, liabilities, expenses and costs (including reasonable attorney's fees), damages and suits of any nature whatsoever arising from or related to the construction, use, maintenance or repair of the cantilevered section of the building within the Encroachment area. 8. Miscellaneous. 8.1 No Waiver. No waiver by either party of any term or condition of this Permit shall be deemed or construed as a waiver of any other term or condition of this Permit, nor shall a waiver of any breach of this Permit be deemed to constitute a waiver of any subsequent breach, whether of the same or a different provision of this Permit. 8.2 Final Agreement. This Permit merges and supercedes all prior negotiations, representations and agreements between the parties hereto relating to the subject matter hereof and constitutes the entire agreement between the City and Permitee. 8.3 No Third Party Rights. This Permit is not intended, nor shall be construed, to create any rights in third parties. 8.4 Notices. All notices, demands, consents, approvals and other communications which are required or desired to be given by either party to the other hereunder shall be in writing and shall be hand delivered or sent by United States regular mail, postage prepaid, return receipt requested, addressed to the appropriate party at its address set forth below, or at such other address as such party shall have last designated by notice to the other. Notices, demands, consents, approvals, and other communications shall be deemed given when delivered or three days after mailing to the following addresses: To City: Attn: City Administrator 280 Madison Avenue North Bainbridge Island, Washington 98110 (206)842-2545 (206)780-8600 facscimile To Permitee: The Winslow I LLC c/o Foster Pepper & Shefelman PLLC Attn: Marco J. Magnano, Jr. 1111 Third Avenue, Suite 3400 Seattle, Washington 98101 (206)447-8901 Winslow I LLC Airspace Permit Page 4 of 6 94700 1 106 1 270597.01 5ssl01!.DOC (1/7/04) (206)447-9700 8.5 Binding Effect. This Permit applies to, inures to the benefit of, and is binding on not only the parties hereto, but on their heirs, devisees, legatees, administrators, executors and assigns. 8.6 Attorney's Fees. In the event of any dispute, including mediation, arbitration or litigation concerning this Permit or if this Permit is otherwise placed with an attorney for action, then the prevailing party shall be awarded all litigation costs and expenses, and reasonable attorney fees. In the event of trial, the amount of the attorney fees shall be fixed by the court. The venue of any such suit shall be Kitsap County, Washington. DATED at Bainbridge Island, Washington, as of the dates written below: THE CITY: City of Bainbridge Island, Washington, a Municipal corporation PERMITEE: The Winslow I LLC, a Washington limited liability company 156§11, M®RI STATE OF WASHINGTON ) ) ss COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that s V the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument as the _)m 04/1 O-� on behalf of The Winslow I LLC, a Washington limited liability company, pu ant to the provisions of the Limited Liability Company Agreement of said company, and acknowledged it to be the free and voluntary act of said company for the uses and purposes mentioned in the instrument. © n: I , J Winslow 1 LLC Airspace Permit 94700 1 106 1 2705 97.01 1 5ss101!. DOC (1/7/04) DATED: (2—A4 • Z 3. 2, O y NAME: l 1ki<1 �< l �LtiQrf (Print Name) Page 5 of 6 Notary Public in and for the State of Washington. Commission Expires: L/—/— 6 -g-- \STATE OF WASHINGTON ) ss COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that DAO&VF– j11Dbjo#)y" is the person who appeared before me, and said person acknowledged that s/he signed this instrument, on oath stated that s/he was authorized to execute the instrument, and acknowledged it as the N4)1010, of City of Bainbridge Island, Washington to be the free and voluntary act of such entity for the uses and purposes mentioned in the instrument. DAT 09:e--U� /le 7* oZ 00/l 'OV, tljD F• 3V NAME: S4154t) P. I<,'.#ISPAIF;e (Print Name) Notary Public in and for the State of Washington. Commission Expires: S//9 /O6 This Permit is authorized by Resolution No. 2004-01 adopted by the Bainbridge Island City Council on the day of :E4 1V /Ly , 2004. ATTEST: 6P A4411r�� usan Kasper, City Clerk Winslow 1 LLC Airspace Permit Page 6 of 6 9470011061270597.0115ssl01!.DOC (1/7/04) MACLEARNSBERRY, INC. I and Surveyors o Planners o Civil Engineers o Environmental Scientists 159 Wyatt Way NE P.O. Boa 65382 Bainbridge I.bmd, WA 98110 Port L.Xl , WA 98365 206 842-5514 (a 360 437-0430 -Cx k-+ a t --r- �5. Ilse Winslow Condominium Erichsen Avenue Air Space Use Area Legal Description That portion of the following described parcel lying between elevations 106.0 and 117.5, NAVD88 1991: Beginning at the southwest corner of the north half of the southwest quarter of Section 26, Township 25 North, Range 2 East, W.M. in Kitsap County, Washington, from which the west quarter corner of said subdivision bears North 1'21'42" East 1325.50 feet; thence South 889944" East, along the southerly limits of said subdivision, 1004.00 feet to a point on the southerly prolongation of the easterly limits of Ericksen Avenue as established by document recorded under Auditor's File No. 200301100467: thence North 1'21'42" East, along said prolongation and easterly limits, 85.33 feet to the True Point of Beginning; thence North 88139'44" West 2.43 feet; thence North 1'20'16" East 21.92 feet; thence South 43°39'44" East 2.44 feet to a point on said easterly limits; thence South 1'2 V42" West, along said easterly limits, 21.92 feet to the True Point of Beginning. facsimile: 206 780-2408 a-maib geodai.ia@&AL m 'y5 1 building wall elevation 87.. 25' CD back of walk elevation 87.6 m E 3 moo£ eco MJ N 88°39'44" W n 2.44' ...... centerline el Nation 87.5 x w face of curb el ...................................... face of curb f centerline e LYAUI ion 85.4 I ion 86.0 N 8°3944" W' LU 2.43' ILU back of walk elevation 86.1 building wall elevation 86.0 W N � N OA area between elevations ) & 117.5 NAVD88 1991 is ;ct to an airspace permit 1004.00' Scuthwest corner of north half of southwest quarter of Sec. 26, T 5N, R2E, W.M. 25' x ih M N CD NAVD88 1991 City of Bainbridge Island Bench Mark No. 0435 038 \ DATE: v W Il S LO V U WAY N 88039'44" W 0''O� MACLEAI.'NSB�ERRY, Inc. The Winslow 1 LLC Land .Surveyors o C," A EAfineers o Planners The Winslow Condominium " �.u�a ea Airspace Use Permit 159 Wyatt Way NE Oaihb dge )and, WA 98110 phone: (206) 842-5514" ,ji..i": (206) 780-2408 DRAWN By CAA OATS Jsnuary 5, 2004 AIB NO 3021 C MBY BAM SM V=20' SMB 7 I OE I MACLEARNSBERRY, INC. Land Surveyors 0 Planners c Civil Engineers o Environmental Scientists 159 Wyatt Way NE P.O. Box 65382 Bainbridge Island, WA 98110(0 Port Ludlow, WA 98369 206 842-5514 360 437-0430 Exhibit A The Winslow Condominium Site Legal Description That portion of the northwest quarter of the southwest quarter of Section 26, Township 25 North, Range 2 East, W.M., in Kitsap County, Washington, described as follows: Beginning at a point 170 feet North and 999 feet East of the southwest corner of said subdivision; thence North 50 feet; thence East to the top of the Ravine as defined by that certain survey dated December 2, 1908 by Josiah Gideon and A.S. Bates for Kitsap County Superior Court Case No. 1768; thence southerly along said top of the Ravine to a point East of the True Point of Beginning; thence West to the True Point of Beginning; ALSO that portion of said subdivision described as follows: Beginning at a point 999 feet East of the southwest comer of said subdivision; thence North 170 feet; thence East 100 feet to the True Point of Beginning; thence continuing East 100 feet, more or less, to said top of the Ravine; thence Southerly along said top of the Ravine 50 feet; thence West to a point South of the True Point of Beginning; thence North to the True Point of Beginning; ALSO the west 100 feet of that portion of said subdivision described as follows: Beginning at a point 999 feet East of the southwest corner of said subdivision; thence North 170 feet; thence East 200 feet, more or less, to said top of the Ravine; thence Southerly along said top of the Ravine 50 feet; thence West to a point 100 feet east of the westerly limits of said property; thence South 120 feet to a point East of the True Point of Beginning; thence West 100 feet to the True Point of Beginning; EXCEPT that portion conveyed to the town of Winslow in deed recorded February 5, 1953, under Auditor's File No. 571405; AND EXCEPT those portions conveyed to the City of Bainbridge Island by Right -of -Way Dedications recorded under Auditor's File Nos. 200301100466 and 200301100467. Eaccimile: 206 780-2408 e-mail: geodaisia@aol.com