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School MitigationBrink, Terry From: Rocky Birkland [ebirkland@ycs.wednet.edu] Sent: Thursday, May 08, 2003 11:45 AM To: Tbrink@gth-law.com Subject: Mitigation Agreement Agreement.da Mr. Brink, Attached is a copy of the most current mitigation agreement used by the school district. After recording_return to: Yelm Community Schools District No. 2 P. O. Box 476 Yelm, WA 98597 Attn: Erling M. Birkland MITIGATION AGREEMENT #3514042 Reference No: Kaminski/Graver, LLot020805, Thurston County Grantor: 1. Terry Kaminski, Co-Owner PO Box 1257 Yelm, WA 98597 Grantee: 1. Yelm Community Schools District No. 2 Legal Description: A portion of Sec. 19, TWP. 16N, RGE. 2E, WM Assessor's Property Tax Parcel Number/Account Number: 22619440100 THIS MITIGATION AGREEMENT ("Agreement") is made this _ of , 2003, between the YELM COMMUNITY SCHOOLS DISTRICT NO. 2, Yelm, Washington (the "District") and Kaminski/Graver (the "Developer"). RECITALS A. The Developer has submitted an application to Thurston County for the construction of a 41ot subdivision Yelm, Wash. (the "Project"). The Project is located on property that lies within District boundaries, more particularly described on Exhibit A, attached hereto and incorporated herein by reference. B. The State Environmental Policy Act, Chapter 43.21C RCW ("SEPA"), provides processes and procedures whereby major actions by state and local agencies, including, but not limited to, plat or PUD approval or the issuance of building permits, may be reviewed to determine the nature and extent of their impact on the environment. Impacts on public services, including schools, are environmental impacts for the purposes of SEPA. SEPA requires the mitigation of adverse environmental impacts. C. The District's student population and growth projections indicate that the Project will have an impact on the District, when cumulative impacts of other projects are considered. D. RCW 82.02.020 authorizes the District to enter into a voluntary agreement with the Developer for payment to mitigate the impact of the Developer's Project. E. Pursuant to Resolution No. 12-16-93-05, it is the policy of the District to recommend that the direct impact of development be voluntarily mitigated by the payment of fees and/or other mitigation measures where appropriate. F. The Developer has agreed to mitigate, on a voluntary basis, the adverse impact of the Project on the District. AGREEMENT NOW, THEREFORE, in consideration of the above recitals and the mutual promises and covenants below, the District and the Developer agree as follows: 1. The Developer acknowledges and agrees that there is a direct impact on the District as a result of the Developer's Project and that this Agreement is necessary as a result of that impact. 2. The Developer acknowledges and agrees that in order to mitigate the direct impact of the Project, the Developer has offered to pay the District the following sum of money: One Thousand Six Hundred Forty Five and no/100 Dollars ($1,645.00 for each lot in the subdivision or the total sum of Six Thousand Five Hundred Eighty and no/100 Dollars ($6,580.00) (the "Mitigation Payment") for the 41ots of the subdivision. The amount referenced by this paragraph is subject to change pursuant to paragraph 4 below. 3. Any extension, renewal, modification or amendment to the Project that results in an adjustment in the number of lots shall result in a corresponding pro rata adjustment in the Mitigation Payment. 4. The Developer agrees that the payment of the full Mitigation Payment (in the amount of One Thousand Six Hundred Forty Five and no/100 Dollars ($1,645.00) per dwelling unit or Six 'Thousand Five Hundred Eighty and no/100 Dollars ($6,580.00) for the project, shall be a condition of building permit issuance for each single family dwelling in the project. If building permit issuance does not occur within Five (5) years from the date of this Agreement, the amount due for mitigation, as stated in paragraph 2 above, shall be modified to the amount reflected in the then most recent mitigation agreement to which the District is a party. A copy of such agreement shall be made available to Developer upon request. 5. The District agrees to record this Agreement after it has been executed by the parties. 6. The Developer acknowledges and agrees that the Mitigation Payment is authorized to be used for capital improvements to the following facilities: Southworth Elementary School, Mill Pond Intermediate School, Yelm Middle School, and/or Yelm High School and/or any other facilities that may be affected by the Project and/or the purchase of portable facilities and/or school buses. 7. The Developer agrees that the District has five (5) years from the payment date to spend the Mitigation Payment for the capital improvements or expenditures described in paragraph 6. In the event that the Mitigation Payment is not expended within those five years, the moneys will be refunded with interest at the rate applied to judgments to the property owners of record at the time of refund; however, if the Mitigation Payment is not expended within five years due to delay which is attributable to the Developer, the Payment shall be refunded without interest. 8. The Developer waives and relinquishes its right to protest or challenge the payment of the Mitigation Payment pursuant to this Agreement and hereby covenants and undertakes that it forever refrains and desists from instituting, asserting, filing or bringing any lawsuit, litigation, claim, or challenge or proceeding to challenge this Agreement, claim any repayment or reimbursement of funds, performance or improvements provided for therein, or any of its terms and conditions, on any ground or basis whatsoever. 9. The District hereby waives any objection to the Project as presently proposed. 10. The District and the Developer agree that the Mitigation Payment will be full and complete mitigation for the impact of the Project as presently proposed on the District. 11. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and assigns of both of the Developer and the District. 12. If an action must be brought to enforce the terms of this Agreement, such action shall be brought in Thurston County Superior Court. 'The prevailing party shall be entitled to payment of its costs and reasonable attorneys' fees. 13. This Agreement constitutes the entire agreement between the parties and any other agreement either written or oral shall be null and void. EXHIBIT A LEGAL DESCRIPTION General Location 16300 Vail Rd. SE, Yelm, WA Section 19 Township 16N Range 2E Land Area 45.53 acres Tax Parcel Number: 22619440100 YELM COMMUNITY SCHOOLS DISTRICT N0.2 DATED: STATE OF WASHINGTON ) )SS COUNTY OF THURSTON ) By: Alan Burke Its Superintendent I certify that I know or have satisfactory evidence that Alan Burke is 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 and acknowledged it as the Superintendent of the Yelm Community Schools District No. 2 to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. GIVEN under my hand and official seal this day of , 2003 NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires: DATED: STATE OF WASHINGTON ) )SS COUNTY OF THURSTON ) By: Terry Kaminski Its I certify that I know or have satisfactory evidence that Terry Kaminski is 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 and acknowledged it as the applicant for this subdivision to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. GIVEN under my hand and official seal this day of , 2003 NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires: