AFTER RECORDING, MAIL TO:
H. Clay Keene
Keene & Currall
540 Water Street, Suite 302
Ketchikan, Alaska 99901
FOR RECORDATION IN THE PETERSBURG RECORDING DISTRICT
TEMPORARY ENCROACHMENT EASEMENT AGREEMENT
This Temporary Encroachment Easement (herein, “Easement Agreement”), is made effective this ____ day of ______2012, between the City of Coffman Cove, an Alaska municipal corporation (herein referred to as “Grantor"), and Brian G. Wilson, Sr. and Roxanne Wilson, husband and wife, doing business as The Riggin Shack, of Post Office Box 18042, Coffman Cove, Alaska 99901 (herein referred to as “Grantee").
WHEREAS, Grantor is the owner of that certain real property (herein referred to as the “Grantor Property”), situated within the City of Coffman Cove, which is more particularly described as follows:
Being a portion of U.S. Survey No. 10099, as shown on the plat titled “Subdivision of U.S. Survey 10099 Forest Service Administrative Site,” plat number 2003-1 Petersburg Recording District, situated on the Easterly shore of Coffman Cove on the Prince of Wales Island, within Township 67 South, Range 81 East of the Copper River Meridian, Alaska described as follows:
Beginning at Corner No. 2 of U.S. Survey 10099; thence South 10° 12’ West (based on the bearing and distance shown on plat 2003-1 Petersburg Recording District), a distance of 57.54 feet to a 5/8 inch by 3 foot aluminum rod with 3 inch U.S. Forest Service cap; thence South 74° 30’ East, a distance of 629.10 feet along the northerly right-of-way of Forest Road 3030-295 to a 5/8 inch by 3 foot aluminum rod with 3 inch aluminum cap on the Easterly line of U.S.Survey 10099, as shown on plat 2003-1 Petersburg Recording District; thence South 9° 52’ East, a distance of 73.04 feet to Corner 17 of said U.S. Survey; thence North 74° 04’ West, a distance of 543.88 feet to Corner 16 of said U.S. Survey, thence South 44° 15’ West, a distance of 46.86 feet to a monument on the common boundary of U.S. Survey 10099 and Block 10 Alaska State Land Survey (ASLS) No. 86-163 as shown on plat 2003-1 Petersburg Recording District; thence South 44° 15’ West, a distance of 244.86 feet along the common boundary of U.S. Survey 10099 and Block 10 ASLS No. 86-163 to Corner 15A of said U.S. Survey; thence South 44° 38’ West a distance of 101.64 feet along the common boundary of U.S. Survey 10099 and Block 10 ASLS No. 86-163 to Corner 15 of said U.S. Survey; thence South 85° 34’ West a distance of 418.44 feet along the common boundary of U.S. Survey 10099 and Tract B ASLS No. 96-60 to Corner 14 of said U.S. Survey; thence North 47° 23’ West a distance of 107.58 feet along the common boundary of U.S. Survey 10099 and Tract B ASLS No. 96-60 to Corner 13 of said U.S. Survey; thence North 25° 52’ West a distance of 94.38 feet along the common boundary of U.S. Survey 10099 and Tract B ASLS No. 96-60 to Corner 12 of said U.S. Survey; thence South 65° 17’ West a distance of 213.84 feet along the common boundary of U.S. Survey 10099 and Tract B ASLS No. 96-60 to Corner 11 of said U.S. Survey and the line of mean high tide of Coffman Cove; thence along the line of mean high tide the following record courses of said U.S. Survey;
North 27° 13’ West, 135.96 feet;
North 5° 05’ East, 89.10 feet;
North 45° 06’ East, 82.50 feet;
North 9° 04’ East, 40.26 feet;
North 89° 48’ West, 178.20 feet;
North 63° 22’ West, 135.30 feet;
North 44° 54’ West, 79.86 feet;
North 19° 47’ West, 195.36 feet;
North 7° 48’ East, 64.02 feet;
to Corner 10 of said U.S. Survey; thence North 89° 45’ East a distance of 203.28 feet along the common boundary of U.S. Survey 10099 and Tract CC-3 of the Coffman Center Subdivision plat number 2003-2 Petersburg Recording District, to Corner 9 of said U.S. Survey; thence continuing along said boundary South 81° 39’ East a distance of 277.20 feet to Corner 8 of said U.S. Survey; thence South 7° 09’ East a distance of 310.86 feet along the common boundary of U.S. Survey 10099 and Tracts CC-4 and CC-7 of the Coffman Center Subdivision plat 2003-2 Petersburg Recording District to Corner 7 of said U.S. Survey; thence East a distance of 292.38 feet along the common boundary of U.S. Survey 10099 and Tract CC-7 of the Coffman Center Subdivision plat 2003-2 Petersburg Recording District to Corner 6 of said U.S. Survey; thence North 15° 56’ East a distance of 101.64 feet to Corner 5 of said U.S. Survey; thence South 74° 51’ East a distance of 126.06 feet to Corner 4 of said U.S. Survey; thence North 9° 18’ East a distance of 116.16 feet to Corner 3 of said U.S. Survey; thence South 71° 51’ East a distance of 363.66 feet to Corner 2 of said U.S. Survey, the Point of Beginning.
Containing 12.99 acres more or less, situated within the Petersburg Recording District, First Judicial District, State of Alaska.
WHEREAS, the Grantor Property was conveyed in 2012 to the City of Coffman Cove by the United States of America, acting by and through the Forest Service, U.S. Department of Agriculture (herein referred to as the “USFS”) pursuant to the Omnibus Public Land Management Act of 2009, approved March 30, 2009 as Public Law 111-11, 123 Stat. 991, referred to herein as “Public Law 111-11.”
WHEREAS, under Public Law 111-11, Grantor is obligated to use the Grantor Property for “public purpose,” as stated in Title III, Subtitle D, Section 3301(b)(4) of Public Law 111-11. The Grantor Property is subject to a reversionary interest in the USFS of any portion of the Grantor Property if such property ceases to be used for “public purposes.”
WHEREAS, Grantee is the owner, as tenants by the entirety, of that certain parcel of real property within the City of Coffman Cove (herein referred to as the “Grantee Property”), that adjoins a portion of the above-described Grantor Property, and is more particularly described as follows:
Lot CC-7 of Coffman Center Subdivision, according to the plat thereof filed March 10, 2004 as Plat No. 2004-5 of the Petersburg Recording District, First Judicial District, State of Alaska.
WHEREAS, prior to the USFS conveying title of the Grantor Property to Grantor, a portion of a building constructed by Grantee and used as a for-profit business location for Grantee’s business, the Bait Box, encroached on the Grantor Property as more particularly shown by the illustration delineating the encroachment, which illustration has been attached to this Easement Agreement as Appendix A, and by this reference made a part hereof.
WHEREAS, for purposes of this Easement Agreement the portion of the Bait Box structure that encroaches on the Grantor Property is herein referred to as the “Easement Area,” as shown on the illustration marked for identification purposes as Appendix A, hereto.
WHEREAS, both Grantor and Grantee wish to resolve amicably the encroachment of that portion of the Bait Box structure that is currently situated within the Grantor Property so to enable and facilitate transfers of their respective properties, provided Grantee’s use of the Easement Area fully satisfies the “public use” restrictions of the Grantor Property mandated under Public Law 111-11.
THEREFORE, in consideration of the above recitals, the covenants and promises made by the parties as set forth in this Easement, and such other good and valuable consideration, the parties agree as follows:
1. Recitals. The above recitals and representations are acknowledged by Grantor and Grantee to be true, correct, and material to this Easement Agreement, and by this reference are incorporated and made a part hereof by this reference.
2. Temporary Encroachment Easement. Grantor hereby grants, assigns, and conveys to Grantee, its successors, and assigns, a temporary encroach easement (herein, “Encroachment Easement”) over, across, and within the Easement Area which area is more particularly described as follows:
That 10’ x 24’ area of land of the Grantor Property, consisting of approximately 240 square feet, which is more particularly delineated on the illustration attached hereto as Appendix A.
3. Encroachment Easement. The purpose of the Encroachment Easement is to is to allow Grantee to occupy the Easement Area with that portion of the Bait Box structure presently situated thereon, and to enable Grantee to repair and maintain the structure in a good, clean, and safe condition.
4. Run With the Land. The provisions of this Easement Agreement shall operate as a covenant running with both parcels of land described above for the duration of the life of the encroaching structure presently situated within the Easement Area. When and if the encroaching structure is destroyed, removed, or exceeds its useful life, this Easement Agreement and all rights granted to Grantee herein, shall terminate and thereupon become null and void. For purposes of this Easement Agreement, destruction of the structure situated within the Easement Area shall be construed to mean any damage, whether by weather, force majeure, fire, rot, disrepair or otherwise, necessitating repair of more than fifty percent (50%) of the structure. Useful life of the encroaching structure shall be defined as repairs in excess of $10,000.00, being required to maintain the dock in a safe and presentable fashion. Grantee expressly acknowledges that Grantee shall have no right or entitlement to construct, build, or place within the Easement Area or any portion of the Grantor Property, a new structure that is later constructed or placed upon the Grantee Property to replace, enlarge, or supplement the structure currently situated on the Grantee Property from which the encroachment is a part.
5. Responsibilities, Obligations, and Hold Harmless. Grantee shall defend, indemnify, and hold Grantor harmless from any and all claims arising out of the existence and use of the Easement Area. Grantor shall insure that its customers, guests, and invitees, know that use of the Grantor Property is prohibited, and shall not allow access to the Grantor Property from that portion of the structure of the Bait Box situated within the Easement Area. Grantee shall be responsible for and covenants that at all times during this Easement Agreement, Grantee shall maintain the Easement Area and the structure situated therein, in a safe, clean, and good condition. Grantee, its successors, and assigns, shall not conduct any activity within the Easement Area that violates any federal, state, or municipal law or regulation; and Grantee shall indemnify and hold Grantor harmless from any and all claims, demands, and causes of action that may arise from, or relate to the use of the Easement Area, including, but not limited to, damage to property and injury or death to persons.
6. Binding Agreement. This agreement shall bind both parties hereto and their respective heirs, executors, administrators, and assigns.
7. Severability. If any provision of this Agreement or any application thereof shall be invalid or unenforceable, the remainder of this Agreement and any other application of such provision shall not be affected thereby.
8. Governing Law. This Agreement shall be construed and interpreted in accordance with, and governed and enforced in all respects by, the laws of the State of Alaska.
9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all said counterparts shall together constitute one and the same Agreement, binding all of the parties hereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart.
10. Dispute, Attorney Fees. If an action or proceeding is brought in connection with this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney's fees, court costs, and other reasonable fees and costs incurred in that action or proceeding (whether at trial, on appeal, and/or in a bankruptcy or similar proceeding) and in enforcing any judgment rendered thereon, in addition to any other relief to which it may otherwise be entitled. Any action or proceeding brought by one party against the other as concerns this Easement Agreement, shall be filed before the Superior Court for the State of Alaska at Ketchikan.
11. Special Condition Re: Public Law 111-11. Grantee acknowledges that Grantee has not relied on any representation or guaranty from Grantor that Grantee’s use and occupancy of the Easement Area satisfies the “public use” restrictions of Public Law 111-11. In the event the USFS should prohibit Grantee occupancy and use of the Easement Area for the purposes stated in this Easement Agreement, Grantee agrees to immediately remove all structures from within the Easement Area, at Grantee’s sole expense; and, Grantee further acknowledges that Grantee shall not be entitled to reimbursement or payment of any costs, damages, losses incurred or resulting therefrom to Grantee. Grantee assumes all risks of loss that the activities, use, and possession of the Easement Area satisfy the “public use” restrictions of Public Law 111-11.
12. Prohibited Activity. Grantee shall not enter upon any portion of the Grantor Property not otherwise situated exclusively within the Easement Area, for any purpose, without the express written consent of Grantor; and shall not remove trees, brush, bushes, rocks, or gravel from the Grantor Property, or excavate within the Easement Area without Grantor’s written consent.
13. Integration. The parties to this Agreement acknowledge and agree that this Easement Agreement, including Appendix A and the Recitals, are incorporated and made part of this instrument by reference, constitute the entire Easement Agreement among the parties named herein relating to the Encroachment Easement, and supersede all prior agreements, representations, and understandings, oral or written, with respect to its subject matter.