20131011103114637.pdfRECIPROCAL EASEMENT AGREEMENT
BETWEEN
BRIAR DEVELOPMENT COMPANY LLP
and
HAGGEN, INC.
and
DICK'S DRIVE-INS, LTD., L.P.
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2/11/11
TABLE OF CONTENTS
Section
Page
ARTICLE1
.................................................................................................................................I
DEFINITIONS............................................................................................................................
l
1.1
Lot...........................................................................................................................1
1.2
Floor Area...............................................................................................................2
1.3
Occupant.................................................................................................................2
1.4
Party........................................................................................................................2
1.5
Permittee..........................................................................................................
1.6
Person......................................................................................................................3
1.7
Shopping Center......................................................................................................3
1.8
Site Plan..................................................................................................................3
1.9
Access Road............................................................................................................3
1.10
Common Area.........................................................................................................3
ARTICLE2
.................................................................................................................................4
EASEMENTS.............................................................................................................................4
2.1
Ingress and Egress...................................................................................................4
2.2
Utilities....................................................................................................................6
2.3
Storm Drainage & the Storm Water Detention Facility..........................................7
2.4
Landscape Alteration and Management Easement.................................................9
2.5
Limitation..............................................................................................................10
ARTICLE3
...............................................................................................................................10
CONSTRUCTION....................................................................................................................10
3.1
General Requirements...........................................................................................10
3.2
........................
Improvements on Lot 2................................................. ................11
3.3
Building Improvement..........................................................................................12
3.4
Heavy Construction Activity Black -out Period....................................................12
ARTICLE4
...............................................................................................................................13
MAINTENANCE AND REPAIR............................................................................................13
4.1
Utilities.................................................................................................................13
4.2
Building Improvements........................................................................................13
4.3
Access Drives........................................................................................................14
ARTICLE5
...............................................................................................................................14
OPERATIONS
OF SHOPPING CENTER..............................................................................14
5.1
Uses............................................................................................................ ....14
5.2
Insurance...............................................................................................................17
5.3
Liens......................................................................................................................18
ARTICLE6
...............................................................................................................................19
MISCELLANEOUS
............................................ .....19
6.1
Default...................................................................................................................19
6.2
Interest...................................................................................................................20
6.3
Notices..................................................................................................................20
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6.4
Approval Rights....................................................................................................21
6.5
Binding Effect.......................................................................................................22
6.6
Singular and Plural.........................................................................................
6.7
Counterparts and Signature Pages........................................................................22
6.8
Negation of Partnership........................................................................................22
6.9
Not a Public Dedication........................................................................................22
6.10
Excusable Delays..................................................................................................23
6.11
Severability.............................................................................. ................23
6.12
Amendments.........................................................................................................23
6.13
Captions and Capitalized Terms...........................................................................23
6.14
Minimization of Damages.....................................................................................23
6.15
Agreement Shall Continue Notwithstanding Breach............................................24
6.16
Time......................................................................................................................24
6.17
Non Waiver...........................................................................................................24
ARTICLE7
...............................................................................................................................24
TERM.......................................................................................................................................24
7.1
Tenn of this Agreement........................................................................................24
EXHIBIT A
Legal Description of Lot 2
EXHIBIT B
Legal Description of Lot 1
EXHIBIT C
Site Plan
EXHIBIT D
Diek's Approved Building Plans
EXHIBIT F
Form. Easement Agreement
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211.,:1
RECIPROCAL EASEMENT AGREEMENT
THIS RECIPROCAL EASEMENT AGREEMENT ("AGREEMENT" or "REA") is
made and entered into as of the day of , 2011,
between BRIAR DEVELOPMENT COMPANY LLP, a Washington limited liability
partnership ("Briar"), HAGGEN, INC., a Washington corporation ("Haggen") and DICK'S
DRIVE-II\TS, LTD., L.P., a Washington limited partnership ("Dick's"). Briar and Haggen are
collectively referred to herein as the "Haggen Parties".
WITNESSETH
WHEREAS, Dick's is acquiring from Briar that certain parcel of undeveloped land
located in the City of Edmonds, Snohomish County, Washington, more particularly described on
Exhibit A attached hereto and made a part hereof ("Lot 2");
WHEREAS, Lot 2 is part of a short plat consisting of two parcels recorded under
Snohomish County Auditor's File 200307295008 (the "Short Plat"). Haggen, Briar's
affiliate, has a leasehold interest in Lot 1, as identified on the Short Plat and more particularly
described on Exhibit B attached hereto and made a part hereof ("Lot I"), upon which it operates
a TOP Food and Drug store;
WHEREAS, Lot I and Lot 2 (collectively, the "Lots") are contiguous and adjacent as
shown on the Short Plat;
WHEREAS, Dick's intends to develop and operate Lot 2 and in order to effectuate the
common use of the Lots as integral parts of a retail shopping complex and to prevent material
adverse effects to Lot 1 and Lot 2 as a result of the development, use, and operation of Lot I
and Lot 2, the parties desire to enter into certain agreements;
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter
set forth and in furtherance of the parties understanding, it is agreed as follows:
ARTICLE 1.
DEFINITIONS
1.1 Lot
"Lot" shall mean either Lot 1 or Lot 2 or such further subdivisions thereof as may
occur in the future.
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1.2 Floor Area
"Floor Area" shall mean the actual number of square feet of space contained on each
floor within a building, as measured from the exterior faces of the exterior walls and/or the
center of any common walls; provided however, that space used for building utilities or
mechanical equipment shall not be included in such calculations.
1.3 Occupant
"Occupant" shall mean any Person from time to time entitled to the use and occupancy
of any portion of a building on Lot 1 or Lot 2 under an ownership right or any lease, sublease,
license, concession, or other similar agreement.
1.4 Party
"Party" shall mean each signatory hereto and, after compliance with the notice
requirements set forth below, their respective successors and assigns. Until the notice
requirement is complied with, the transferring Party shall (for the purpose of this Agreement
only) be the transferee's agent. Each Party shall be liable for the performance of all
covenants, obligations and undertakings herein set forth with respect to the Lot owned or
occupied by it which accrue during the period of such ownership or occupancy, as applicable,
and such liability shall continue with respect to any portion transferred until the notice
requirement set forth below is complied with, at which time the transferring Party's liability
for future obligations shall terminate. The transferee Party shall automatically become liable
for all obligations, performance requirements and amounts which arise subsequent to
compliance with the notice requirement. A Party transferring all or any portion of its interest
in a Lot shall give notice to all other Parties of such transfer and shall include therein at least
the following information:
(i) the name and address of the transferee; and
(ii) in the case of a transfer of a portion of a Lot, a copy of the legal
description of the portion thereof transferred.
Nothing contained herein to the contrary shall affect the existence, priority, validity or
enforceability of any lien pennitted hereunder which is placed upon a Lot prior to receipt of
the notice.
1.5 Pernittee
"Pernittee" shall mean all Occupants and the officers, directors, employees, agents,
collators, customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and
contractors of Occupants insofar as their activities relate to the intended use of a Lot. Among
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others, Persons engaging in the following activities on the Lots will not be considered to be
Pernittees:
(i) Exhibiting any placard, signs or notice;
(ii) Distributing any circular, handbill, placard, or booklet;
(iii) Soliciting memberships or contributions;
(iv) Parading, picketing, or demonstrating; or
(v) Failing to follow regulations relating to the use of the Lots.
1.6 Person
"Person" shall mean any individual, partnership, firm, association, corporation, trust,
or any other form of business or government entity.
1.7 Shopping Center
The "Shopping Center" shall mean the area encompassed by the Lots.
1.8 Site Plan
Attached hereto as Exhibit C is the "Site Plan" which illustrates the agreed initial
locations of the buildings, access drives, parking layout and other improvements to be
developed on Lot 2, which Site Plan was approved by Briar pursuant to the terns of the Real
Estate Purchase and Sale Agreement dated October 12, 2010 for the sale of Lot 2 from Briar
to Dick's (the "REPSA" ).
1.9 Access Road
"Access road" shall mean those roads or driveways that provide direct access to Lot 2
from any county or public road as shown on Exhibit C.
1.10 Common Area.
"Common Area" shall mean all areas within the exterior boundaries of the Shopping
Center, exclusive of where buildings exist or are from time to time constructed and all
abutments and dedicated patio areas thereof
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ARTICLE 2,
EASEMENTS'
2.1 Ingress and Egress
During the tern of this REA as set forth in Article 7, and perpetually thereafter with
respect to the HaggettEasement (as defined in paragraph 2.1(vi)), each Party hereby grants
and conveys to the other Party for its use and for the use of its Pennittees, in common with
others entitled to use the same, a non-exclusive easement for ingress and egress for the
passage of vehicles over and across the parking and driveway areas of the other Patty's Lot as
the same may from time to time be constructed and maintained for such use and for the
passage and accommodation of pedestrians over and across the parking, driveways and
sidewalk areas of the Party's Lot as the same may from time to time be constructed and
maintained for such use. Such easement rights shall be subject to the following reservations
as well as other provisions contained in this REA:
(i) Except as otherwise provided, only the owner of Lot 1 shall
allow its Peimittees to use any portion of Lot 1 for parking purposes and only
the owner of Lot 2 shall allow its Pennittees to use any portions of Lot 2 for
parking purposes, and each Party recognizes and agrees that no Party shall be
deemed to have an easement or any other right to use any portion of another
Party's Lot for parking purposes. Notwithstanding the above or anything to
the contrary: (a) both Parties understand and acknowledge that Lot 2 is not
large enough to provide all of the parking for Lot 2 Permittees required by
current ordinances and regulations for the type of fast food restaurant that
Dick's plans to build on Lot 2. Accordingly, for so long as a fast food
restaurant is operated thereon, Lot 2 is hereby granted a parking easement,
along with the corresponding ingress and egress therefor, over Lot I to
provide, along with the parking spaces on Lot 2, the minimum number of
parking spaces required for Dick's to obtain its building permit from the City
of Edmonds and to remain in compliance therewith, which the Parties currently
understand to be approximately 20 parking spaces. In the event parking spaces
on Lot 1 need to be designated for the benefit of Lot 2, the Owner of Lot I will
designate them froze among those parking spaces on Lot I situated closest to
Lot 2. Provided further that such parking on Lot 1 shall not be utilized for
employee parking for Lot 2. Such easement shall be separately recorded upon
finalization of the construction on Lot 2 and each Party agrees to sign the
necessary documents to finalize the easement and (b) except to the extent
authorized by the foregoing parking easement, the Parties also understand that
"cross parking" may happen with common patrons or "overflow" parking may
take place on occasion, Each Party agrees to use its reasonable best efforts to
prevent its Permittees from violating this provision, such measures to include
but not be linlited to appropriate notice and signage of this parking restriction.
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In the event overflow parking occurs with any regularity, the owner of the lot
whose Permittees are violating this provision shall pay for the installation of
adequate signage on the other party's lot inforining Permittees of the parking
restrictions of this agreement (e.g. "no restaurant" or "no supermarket parking"
as the case may be located in the problem areas). Parties may also take
necessary self-help measures to enforce the provisions of this paragraph
including, without limitation, towing violating vehicles provided the parties
agree to notify the on -site manager of the other party before implementing a
towing program but will not be required to provide notice on an individual
incident basis. The intent of the provisions of this section is to control parking
abuses and repeat parking offenders and not patrons of either establishment
who on occasion or inadvertently park in the wrong location. Provided,
however, that if a Party has exercised its reasonable best efforts as required by
this paragraph and nevertheless its Permittees continue to violate this
provision, such violations shall not be considered a default by said Party under
this REA nor form the basis of a claim for damages by any other Party.
(ii) Except for situations specifically provided for in the following
subparagraphs, no fence or other barrier which would unreasonably prevent or
obstruct the passage of pedestrian or vehicular travel for the purposes herein
permitted shall be erected or permitted within or across the aforesaid easement
areas; provided, however, that the foregoing provision shall not prohibit the
installation of convenience facilities (such as mailboxes, public telephones,
benches or public transportation shelters), landscaping, berms or planters, nor
of limited curbing and other forms of traffic controls.
(iii) In connection with any construction, reconstruction, repair or
maintenance on its Lot, each Party reserves the right to create a staging and/or
storage area in the Common Area on its Lot at such location as will not
unreasonably interfere with access between such Lot and the other areas of the
Shopping Center.
(iv) Each party further reserves the right to close off its portion of
the Common Area for such a reasonable period of time as may be legally
necessary or agreed among the parties to prevent the acquisition of prescriptive
rights by any third party. Provided, however, that prior to closing off any
portion of the Common Area, as herein provided, such Party shall give written
notice to each other Party of its intention to do so, and shall attempt to
coordinate such closing with each other Party so that no unreasonable
interference in the passage of pedestrians or vehicles shall occur.
(v) Each Party reserves the right at any time and from time to time
to exclude and restrain any Person who is not a Permittee from using its
Common Area.
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(vi) Notwithstanding the tennination date of this Agreement, the
Haggen Parties hereby agree to grant a perpetual ingress and egress easement
for pedestrian, vehicular, and utility access, maintenance, and repair as shown
on the Site Plan (the "Haggen Easement"). Such easement shall be consistent
with this REA and separately recorded upon finalization of the construction on
Lot 2 and each Party agrees to sign the necessary documents to finalize the
easement, which shall be substantially in the form attached hereto as Exhibit
"E" and made a part hereof.
2.2 Utilities
A. Each Party hereby grants and conveys to each other Party non-
exclusive perpetual easements in, to, over, under, along and across those portions of the
Common Area (exclusive of any portion located within any building, patio, or abutment
thereof) located on the Pal ty's Lot necessary for the installation, operation, flow, passage, use,
maintenance, connection, repair, relocation, and removal of lines or systems for the following
utilities, as currently exist or may be installed in the future, serving the Party's Lot: sanitary
sewers, water, irrigation, gas, electrical, telephone and communication lines. Except with
respect to ground mounted electrical transformers at the rear of a building or as may be
necessary during periods of construction, repair, or temporary service, all utilities shall be
underground unless required to be above ground by the utility providing such service. Prior
to exercising the right granted herein for any utility line not in service as of the date hereof,
the Party requiring access shall first provide the other Party with a written statement
describing the need for such easement, a survey and proposed final working drawings and
specifications for construction of the proposed utility line, and an architect's or engineer's
report that contains all information the other Party may reasonably request in connection with
the proposed utility line and all other work to be performed in connection therewith, shall
identify the proposed location of the utility, and shall furnish a certificate of insurance
showing that its contractor has obtained the minimum insurance coverage required by Section
5.2 B hereof. Any Party installing utilities pursuant to the provisions of this subparagraph
shall pay all costs and expenses with respect thereto and shall cause all work: in connection
therewith (including general clean-up and proper surface and/or subsurface restoration) to be
completed as quickly as possible and in a manner so as to minimize interference with the use
of the Common Area.
B. The initial location and width of any utility not in service as of the date
hereof shall be subject to the prior written approval of the Party whose Common Area is to be
burdened thereby, such approval not to be unreasonably withheld, conditioned, or delayed.
The easement area shall be no larger than whatever is necessary to reasonably satisfy the
utility company as to a public utility or five feet (Y) on each side of the centerline as to a
private line. Upon request, the Grantee shall provide to the Grantor a copy of an as -built
survey showing the location of such utility. The Grantor shall have the right at anytime to
relocate a utility line upon thirty (30) days' prior written notice, provided that such relocation:
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(vi) Notwithstanding the termination date of this Agreement, the
Haggen Parties hereby agree to grant a perpetual ingress and egress easement
for pedestrian, vehicular, and utility access, maintenance, and repair as shown
on the Site Plan (the "Haggen Easement"). Such easement shall be consistent
with this REA and separately recorded upon finalization of the construction on
Lot 2 and each Party agrees to sign the necessary documents to finalize the
easement, which shall be substantially in the form attached hereto as Exhibit
"E" and made a part hereof.
2.2 Utilities
A. Each Party hereby grants and conveys to each other Party non-
exclusive perpetual easements in, to, over, under, along and across those portions of the
Common Area (exclusive of any portion located within any building, patio, or abutment
thereof) located on the Pat ty's Lot necessary for the installation, operation, flow, passage, use,
maintenance, connection, repair, relocation, and removal of lines or systems for the following
utilities, as currently exist or may be installed in the future, serving the Party's Lot: sanitary
sewers, water, irrigation, gas, electrical, telephone and communication lines. Except with
respect to ground mounted electrical transformers at the rear of a building or as may be
necessary during periods of construction, repair, or temporary service, all utilities shall be
underground unless required to be above ground by the utility providing such service. Prior
to exercising the right granted herein for any utility line not in service as of the date hereof,
the Party requiring access shall first provide the other Party with a written statement
describing the need for such easement, a survey and proposed final working drawings and
specifications for construction of the proposed utility line, and an architect's or engineer's
report that contains all information the other Party may reasonably request in connection with
the proposed utility line and all other work to be performed in connection therewith, shall
identify the proposed location of the utility, and shall furnish a certificate of insurance
showing that its contractor has obtained the minimum insurance coverage required by Section
5.2 B hereof Any Party installing utilities pursuant to the provisions of this subparagraph
shall pay all costs and expenses with respect thereto and shall cause all work: in connection
therewith (including general clean-up and proper surface and/or subsurface restoration) to be
completed as quickly as possible and in a manner so as to minimize interference with the use
of the Common Area.
B. The initial location and width of any utility not in service as of the date
hereof shall be subject to the prior written approval of the Party whose Common Area is to be
burdened thereby, such approval not to be unreasonably withheld, conditioned, or delayed.
The easement area shall be no larger than whatever is necessary to reasonably satisfy the
utility company as to a public utility or five feet (Y) on each side of the centerline as to a
private line. Upon request, the Grantee shall provide to the Grantor a copy of an as -built
survey showing the location of such utility. The Grantor shall have the right at anytime to
relocate a utility line upon thirty (30) days' prior written notice, provided that such relocation:
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(i) shall not interfere with or diminish the utility services to the
Grantee;
(ii) shall not reduce or unreasonably impair the usefulness or
function of such utility;
(iii) shall be performed without cost or expense to Grantee;
(iv) shall be completed using materials and design standards which
equal or exceed those originally used; and
(v) shall have been approved by the utility company and the
appropriate governmental or quasi -governmental agencies having jurisdiction
thereover.
Documentation of the relocated easement area shall be the Grantor's expense and shall be
accomplished as soon as possible. Grantee shall have a right to require an as -built survey of
such relocated utility be delivered to it at Grantor's expense.
2.3 Storm Drainage & the Storm Water Detention Facility
A. The Parties acknowledge that, as of the date of this REA, the stormwater
runoff from the impervious surfaces on Lot 1 and Lot 2 runs into a common storm drainage
system that currently serves both Lot 1 and Lot 2 (the "Storm Drainage System") including a
Storm Detention Vault (hereafter the "SDV") that is located on both Lot 1 and Lot 2. Dick's
and the Haggen Parties shall not construct any building over the Storm Drainage System;
provided, however, that Dick's may at its sole expense construct a concrete patio over the
SDV (so long as the existing access points to and into the SDV remain accessible for repair
and maintenance work) and/or relocate within Lot 2 all or portions of the Stonn Drainage
System on Lot 2 to remove the system from a building footprint or to otherwise accommodate
construction on Lot 2, as long as the replacement facilities function as well as the facilities
they replace and as long as all relevant governmental agencies approve the relocation without
imposing any conditions on Briar or Lot 1.
B. Dick's hereby grants to Briar a nonexclusive perpetual easement for the
use, operation, maintenance, repair, replacement, alteration and improvement of the portion of
the Storm Drainage System that is located on Lot 2 (together with the right of ingress and
egress across Lot 2 necessary to accomplish the same), in the location where the systern now
exists or in the location where it may exist in the future as provided herein, and the Haggen
Parties hereby grant to Dick's a nonexclusive perpetual easement for the use, operation,
maintenance, repair, replacement, alteration, and improvement of the portion of the Storm
Drainage System that is located on Lot I (together with the right of ingress and egress across
Lot 1 necessary to accomplish the same), in the location where the system now exists or the
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location where it may be relocated in the future (collectively the "Storm Drainage
Easements"); provided, however, that:
(i) If, when Dick's seeks to construct building or site
improvements on Lot 2, the physical or engineering constraints of the Storn
Drainage System or the regulatory requirements of the City of Edmonds or any
other governmental authority with jurisdiction over the Lots make it necessary
to construct improvements or additions to the Storm Drainage System to
accommodate stormwater runoff from Lot 2 following construction of such
building or site improvements (including but not limited to improvements or
additions to the Storm Drainage System to provide improved or increased
conveyance, detention, retention, or water quality treatment), Dick's shall be
responsible, at its sole cost and expense, for constructing the necessary
improvements or additions to the Storm Drainage System. All detention,
retention, or water quality treatment facilities required, as a physical,
engineering or regulatory matter, to accommodate stormwater runoff from Lot
2 shall be located on Lot 2 unless Briar, in its reasonable discretion, gives its
consent for such facilities to be located on Lot 1. If it is not possible to
segregate the stormwater runoff from Lot 2 and Lot 1, and detention, retention,
or water quality treatment facilities required for purposes of accommodating
stormwater runoff from Lot 2 must therefore also accommodate stormwater
runoff from Lot 1, Dick's shall still be responsible, at its sole cost and expense,
for constructing the necessary improvements or additions to the Storm
Drainage System notwithstanding that the improvements or additions will
accommodate runoff from both Lots. In this situation, Dick's must still obtain
Briar's consent, in Briar's reasonable discretion, for any detention, retention,
or water quality treatment facilities to be located on Lot 1.
(ii) If, under the regulations of the City of Edmonds or any other
governmental authority with jurisdiction over the Lots, the construction of
building or site improvements on Lot 2 triggers a requirement to construct
improvements or additions to the Storm Drainage System (whether on Lot I or
Lot 2) for purposes of accommodating stormwater runoff from Lot 1
(including but not limited to improvements or additions to the Storm Drainage
System to provide improved or increased conveyance, detention, retention, or
water quality treatment), Dick's shall be responsible, at its sole cost and
expense, for constructing the necessary improvements or additions to the
Storm Drainage System. Dick's must obtain Briar's consent, in Briar's
reasonable discretion, for any detention, retention, or water quality treatment
facilities to be located on Lot 1.
(iii) Prior to any relocation of the Storm Drainage System on Lot 2,
or to the construction of any improvements or additions to the Storrs Drainage
System on either Lot, Dick's shall submit to Briar detailed plans for the work.
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Briar must approve such plans prior to commencement of construction, said
consent not to be unreasonably withheld, conditioned or delayed.
C. Each Party shall repair and maintain in first-class condition any portion of
the Storm Drainage System located on its Lot; provided however that the Haggen Parties
shall, maintain, repair and alter as needed or required by legitimate government authority, the
SDV with each Party sharing the costs of such, maintenance, repair, or alteration based on the
proportion that each Party's lot bears to the collective size of both Lots; and provided further
that if the SDV ever needs to be substantially or completely replaced, it will be abandoned in
place so as to minimize the disruption to Lot 2 and Dick's business, and the replacement SDV
shall be constructed on Lots 1 and/or Lot 2 where it will be least disruptive and intrusive to
both Parties' business operations, If the Parties cannot agree on this location, the matter shall
be submitted to an arbitrator appointed by Snohomish County Superior Court. The decision
of the arbitrator shall be final and judgment on the arbitration award may be filed by either
party with Snohomish County Superior Court. All work by a Party in conjunction with
maintenance, repair or alteration of the Storm Drainage system including the SDV shall be
performed so as to minimize to the extent that is commercially reasonable the disruption to
the other Party's business operations; and unless it is an emergency or Dick's gives its prior
consent (which consent shall not be unreasonably withheld, conditioned or delayed), all work
performed on the SDV by any one of the Haggen Parties or any of their agents shall be
scheduled with Dick's no less than thirty (30) days in advance, and to the extent Dick's
requires any such work to be commenced, completed, or cleaned up between the hours of 2:30
AM to 10AM local time, or on Thanksgiving Day or Christmas Day, Dick's will pay the
additional expense for work performed during those times and/or days to the extent the labor
charge exceeds the then prevailing rate for daytime non -holiday labor..
2.4 Landscape Alteration and Management Easement
There currently exists a portion of Lot I that exists cast of Lot 2 between Lot 2 and SR
99, between the two existing access drives to SR 99, that is maintained as a landscaped area
and biofiltration swale (the "Landscape Strip"). Some of the larger vegetation in the
Landscape Strip may block the visibility of the building and/or signage proposed to be
developed on Lot 2. The Haggen Parties hereby grant Dick's an easement to enter into the
Landscape Strip to have the right to cut, remove and replace of any and all trees or other
vegetation in the Landscape Strip which limit the visibility of the improvements on Lot 2, so
long as any landscaping that is removed or altered is replaced with Iandscaping of a quality
consistent with that maintained elsewhere on Lot I and Dick's makes whatever alterations
may be reasonably necessary to the existing irrigation system for such replacement
landscaping to become established and be maintained in a healthy condition. Prior to making
any cutting or removing any landscaping, Dick's shall secure any and all approvals required
from the City of Edmonds for such work. Provided further that Dick's shall not make any
alterations to vegetation, topography or drainage that would negatively impact the operation
and maintenance of the biofiltration Swale that exists in the Landscape Strip.
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2.5 Limitation
No Party shall grant any easement for the benefit of any property not within the
Shopping Center; provided, however, that the foregoing restriction on the granting of
easements shall not prohibit the granting or dedicating of utility easements by a Party on its
Lot to governmental or quasi -governmental authorities or to public utilities.
ARTICLE 3.
CONSTRUCTION
3.1 General Requirements
A. The Parties agree that all construction activities perfonned by any one of
them on Lot 1 or Lot 2, as the case may be, shall be performed in compliance with all laws,
rules, regulations, orders, and ordinances of the city, county, state, and federal governments,
or any department or agency thereof, with jurisdiction over the improvements constructed
within the Lots.
B. Each Party further agrees that its construction activities shall not
unreasonably interfere with the use, occupancy or enjoyment of any part of any other Party's
Lot by the other Party or its Permittees.
C. Each Party agrees to defend, indemnify and hold harmless the other Parties
from all claims, actions, proceedings and costs incurred in connection therewith (including
reasonable attorneys' fees and costs of suit) resulting from any accident, injury or loss or
damage whatsoever occurring to any Person or to the property of any Person arising out of or
resulting from the perfonnance of any construction activities performed or authorized by it
except for claims, actions, proceedings, or costs caused by the negligence or willful act or
omission of another Party, its licensees, concessionaires, agents, servants, invitees, Permittees,
or employees, or the agents, servants, or employees of any licensee or concessionaire thereof.
D. Prior to constructing, reconstructing, remodeling, or enlarging a building
on a Lot, the owner and tenant of the Lot subject to the foregoing shall give the other Parties
at least fifteen (15) days` prior notice of the proposed location of any staging and storage area.
All storage of materials and the parking of construction vehicles, including vehicles of
workers, shall occur only on the Lot where the work is to be situated unless the other Parties
provide prior written consent to also use a specific portion of its Lot. If substantial work is to
be performed, the Party engaging in such work shall, at the request of any of the other Parties,
fence off the staging and storage area.
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3.2 Improvements on Lot 2
A. Upon its election to construct improvements upon Lot 2, Dick's shall cause
Lot 2 to be initially improved substantially as shown on the Site Plan with substantial
completion of such improvements to be no later than the ninetieth (90'b) day following the
date the business on Lot 2 opens for business with the public. Such work shall be done in a
good and workmanlike manner and in accordance with good engineering standards.
B. The parking area of Lot 2, as augmented by the supplemental and overflow
parking easement described above in paragraph 2.1, shall contain sufficient ground level,
standard automobile size, parking spaces in order to comply with the following minimum
requirements unless otherwise approved by the Haggen Parties:
(i) for retail uses, five (5) parking spaces for each one
thousand (1,000) square feet of Floor Area;
(ii) for each cinema or theater, .35 parking spaces for each
patron seat provided;
(iii) for each motel, one (1) parking space for each motel
residential unit;
(iv) for each apartment building, 1.5 parking spaces for each
apartment dwelling unit;
(v) for each professional office or medical center, seven (7)
parking spaces for each one thousand (1,000) square feet of Floor Area;
(vi) for each congregate care center, one (1) parking space for
each bed in the facility;
(vii) if a business use contains a drive -up unit (such as remote
banking teller or food ordering/dispensing facility), then there shall also
be created space for stacking not less than five (5) automobiles for each
drive -up unit; and
(viii) for each single restaurant which has less than five
thousand (5,000) square feet of Floor Area, then five (5) additional
parking spaces for each one thousand (1,000) square feet of Floor Area
devoted to such use; or
(ix) for each single restaurant which has five thousand (5,000)
square feet of Floor Area or more, then ten (10) additional parking spaces
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for each one thousand (1,000) square feet of Floor Area devoted to such
use;
The foregoing requirements as well as all governmental regulations, ordinances and similar
orders relating to parking shall be satisfied throughout the term of this Agreement and, except
for the parking spaces available through the overflow parking easement described in
paragraph 2.1 above, without reliance on the parking spaces that may be available on Lot 1.
In the event of a condemnation of part of Lot 2 or sale or transfer in lieu thereof that reduces
the number of usable parking spaces below that which is required, Dick's shall use its best
efforts (including using proceeds from the condemnation award or settlement) to restore
and/or substitute parking spaces in order to comply with the parking requirements set forth
above. If such compliance is not possible, Dick's shall not be deemed in default hereunder,
but shall not be permitted to expand the amount of Floor Area located upon Lot 2. If such
Floor Area is thereafter reduced, then it may not subsequently be increased unless the parking
requirement is satisfied.
C. The Parties acknowledge that, as of the date of this REA, the landscape
irrigation system on Lot 2 is connected to the landscape irrigation system on Lot 1. At such
time as Dick's constructs site improvements on Lot 2, Dick's shall provide a landscape
irrigation system on Lot 2 that is connected to the water meter for Lot 2 so that Dick's pays
for the cost of the irrigation on Lot 2.
3.3 Building Improvement
A. Dick's agrees that the initial building construction on Lot 2 shall be
substantially in accordance with the plans attached hereto as Exhibit D which have been
approved by the Haggen Parties. Approval of Plans by the Haggen Parties shall not constitute
assumption of responsibility for the accuracy, sufficiency, or propriety thereof, nor shall such
approval constitute a representation or warranty that the Plans comply with applicable laws.
B. No building or other structure on Lot 2 shall exceed 25 feet in height,
unless otherwise approved by the Haggen Parties. No penthouse, parapet mechanical
equipment or similar appurtenance located on the roof of such building shall extend upward
above the top of the building more than twelve (12) feet.
3.4 Heavy Construction Activity Black -out Period
Except as may be required for emergency repairs or in connection with construction
pursuant to Dick's Site Plan, no Party shall engage in excavation, other earth work, or any
other construction activity that involves use of heavy equipment on or across the Access
Drives, or Shopping Center drive aisles, or the Common Area of another Party during the
following periods: (i) from November 17, 2011 through November 24, 2011 and December
18, 2011 through December 25, 2011; and (ii) from November 1 st to the following January
15t" of any year after 2011.
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ARTICLE 4.
MAINTENANCE AND REPAIR
4.1 Utilities
A. Each Party shall repair and maintain in first-class condition all utility
facilities, lines, and systems located on its Lot except as otherwise provided by this
Agreement or unless the same are maintained by a public or quasi -public utility or authority.
B. Each Party shall maintain and repair at its cost any facilities installed
pursuant to the easements which exclusively serve its Lot unless the same are granted or
dedicated to and accepted by a utility or a governmental agency which agrees to maintain and
replace the same. Any maintenance and repair by Dick's of non -dedicated utilities located on
Lot 1 shall be performed only after two (2) weeks' notice to the Haggen Parties (except in an
emergency where the work may be initiated with reasonable notice) and shall be performed in
such a manner as to cause as little disturbance in the use of Lot 1 as is practicable under the
circumstances. Dick's agrees to promptly pay all costs and expenses associated therewith to
diligently complete such work as quickly as possible and to promptly clean the area and
restore the affected portion of Lot 1 to a condition equal to or better than the condition which
existed prior to the commencement of such work.
C. Regardless of the provisions of Section 2.3 above, any hazardous
materials (as defined under any and all applicable State, Federal or local law or regulation)
contained in the Storm Drainage System prior to the date of mutual execution of this
Agreement shall be the responsibility of the Haggen Parties. Otherwise, the responsibility
shall remain the responsibility of the owner of the Lot from which such hazardous materials
were released except to the extent caused by another Party or Pernittee thereof where such
Party or Pennittee(s) shall then be responsible.
4.2 Building Improvements
In the event any of the building improvements on any Lot are damaged by fire orother
casualty (whether insured or not), each party immediately shall remove the debris resulting
from such event and provide a security barrier and within a reasonable time thereafter shall
either (i) repair or restore the building improvements so damaged, such repair or restoration to
be performed in accordance with all provisions of this Agreement, or (ii) erect other building
improvements in such location, provided all provisions of this Agreement are complied with,
or (iii) demolish the damaged portion of such building improvements and restore the area to
an attractive condition. Each Party shall have the option to choose which of the foregoing
alternatives to perform, but each party shall be obligated to perform one of such alternatives.
Each Party shall give notice to the other party within ninety (94) days from the date of such
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casualty of which alternative it elects, but in no event shall the selection of one alternative
preclude a Party's ability to subsequently switch to another alternative.
4.3 Access Drives
The Haggen Parties shall maintain the access drives located on the portions of Lot 1
that provide access to Lot 2 ("Access Drives") in smooth and evenly covered condition and
repair, including snow removal, painting lines on the Access Drives, maintaining traffic signs
in the Access Drives, resurfacing and other maintenance and repairs to the surface of the
Access Drives. Dick's shall reimburse the Haggen Parties its proportionate share (based on
the total square footage of Floor Area on Lot 2 divided by the total square footage of Floor
Area on Lots 1 and 2 combined) of the costs incurred or paid by the Haggen Parties in
maintaining the Access Drives as set forth in this paragraph. Notwithstanding the foregoing,
in the event that, maintenance or repairs are needed as a result of the negligence or willful
misconduct of either party, a breach of this Agreement by either party or by construction
activity on either Lot, then the responsible party shall be solely responsible for the cost of
such repairs. The responsible party shall promptly pay its share of the costs of maintaining and
repairing the Access Drives within thirty (30) days after receipt of an invoice setting forth the
total amount paid and the responsible party's share. If the responsible party fails to pay its
proportionate share when due, the unpaid amounts together with all accrued interest that the
responsible party owes the other party pursuant to, this section shall constitute a lien upon the
responsible party's right, title and interest in and to its Lot to secure repayment of such
amounts, fi-om the date the payment is made until paid in full. The injured party shall have the
right, but not the obligation, to record its lien. The responsible party shall execute such
instruments as the other party may reasonably request to permit the recordation of such lien.
Each party hereby irrevocably designates the other as its attorney-irr-fact for the purpose of
recording its Iien pursuant to this section. The injured party shall have the right to foreclose
such lien in the manner provided by law. The injured patty may charge interest pursuant to
Section 6.2 below, from the date paynnent is overdue.
ARTICLE 5.
OPERATIONS OF SHOPPING CENTER
5.1 Uses
A. No part of Lot 2 shall be used for other than retail sales or services, or
commercial purposes. Retail service uses shall mean food and beverage service, financial
institutions, real estate and stock brokerage offices, travel or insurance agencies and similar
uses providing services directly to the public for retail fees.
B. The following uses shall not be permitted on Lot 2, without the prior
written consent of the Haggen Parties:
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(i) Any use which emits an obnoxious odor, noise, or sound which
can be heard or smelled outside of any building on Lot 1 (excluding odors
typically generated by restaurants);
(ii) Any operation primarily used as a warehouse operation and any
assembling, manufacturing, distilling, refining, smelting, agricultural, or
mining operation;
(iii) Any "second hand" store or "surplus" stole;
(iv) Any mobile home park, trailer court, labor camp, junkyard, or
stockyard (except that this provision shall not prohibit the temporary use of
construction trailers during periods of construction, reconstruction, or
maintenance);
(v) Any dumping, disposing, incineration, or reduction of garbage
(exclusive of garbage compactors located in the rear of any building);
(vi) Any fire sale, bankruptcy sale (unless pursuant to a court order)
or auction house operation;
(vii) Any central laundry, dry cleaning plant, or Laundromat;
provided, however, this prohibition shall not be applicable to on -site service
oriented to pickup and delivery by the ultimate consumer, including nominal
supporting facilities, as the same may be found in first-class retail shopping
districts in the Edmonds, Washington metropolitan area;
(viii) Any automobile, truck, trailer or recreational vehicle sales,
leasing, display or repair;
(ix) Any bowling alley;
(x) Any skating rink;
(xi) Any living quarters, sleeping apartments, or lodging rooms;
(xii) Any veterinary hospital or animal raising facilities (except that
this prohibition shall not prohibit pet shops);
(xiii) Any mortuary;
(xiv) Any establislxment selling or exhibiting pornographic materials;
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(xv) Any bar, tavern, restaurant or other establishment whose
reasonably projected annual gross revenues from the sale of alcoholic
beverages for on premises consumption exceeds fifty percent (50%) of the
gross revenues of such business;
(xvi) Any health spa;
(xvii) Any theatre;
(xviii) Any flea market, amusement arcade, pool or billiard hall, car
wash, or any other place of arnusernent or recreation such as dance hall, game
room, exercise facility, massage parlor, bingo parlor, or teen night club;
(xix) Any health care facilities such as a clinic, medical office, dental
office, chiropractic office or optometric office;
(xx) Any unlawful or illegal purpose;
(xxi) Any use that is a public or private nuisance;
(xxii) Any supermarket, meat market or department, grocery market
or department, vegetable produce market or department, fruit produce market
or department, bakery or bakery department, dairy store or department,
delicatessen or delicatessen department, or any other store or business
establislrrnent selling food (except for pernitted restaurants), whether at retail
or wholesale. Notwithstanding the foregoing restriction, a fast food restaurant
may be developed and operated on Lot 2, provided that in no event shall the
allowance of such restaurant permit the operation of a delicatessen on Lot 2;
(xxiii) Any facility for the sale of health and beauty products,
including prescription drugs and medications;
(xxiv) The use of more than ten percent (10%) of the Floor Area for
office purposes provided that support office space serving an on -site retail or
restaurant facility shall not be considered use for "office purposes" under this
limitation.
C. The name "Haggen" or "Top" shall not be used to identify Lot 2 or any
business or trade conducted on Lot 2 without the Haggen Parties' prior written authorization
with may be withheld in their sole and absolute discretion, provided, however, that Dick's
may describe its Edmonds location as being "in the N.E. corner of the Top Food & Drug
parking lot on Highway 99 at 220`" in Edmonds".
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D. No portion of Lot 1, as may be subsequently subdivided, shall be used for a
fast food hamburger restaurant or quick service hamburger restaurant, which prohibition
includes without limitation a McDonalds, Burger King, Wendy's, Fat Burger, Red Mill
Burgers, Red Robin, Burgermaster, Kidd Valley, Zips, and the like.
5.2 Insurance
A. Each Party shall maintain or cause to be maintained in full force and effect
Comprehensive Public Liability Insurance in such amounts as that Party determines in its sole
discretion. Such insurance shall include the following provisions:
(i) shall provide that the policy may not be cancelled or materially
reduced in amount or coverage without at least thirty (30) days prior written
notice by the insurer to each insured and any additional insureds;
(ii) shall name the other Parties as additional insureds;
(iii) shall provide for severability of interests;
(iv) shall provide that an act or omission of one of the 'insureds or
additional insureds which would void or otherwise reduce coverage, shall not
reduce or void the coverage as to the other additional insureds of the insured,
respectively; and
(v) shall provide for contractual liability coverage with respect to
the indemnity obligation set forth below.
Dick's covenants and agrees to indemnify, defend and hold harmless the Haggen
Parties and the owner of Lot 1 from and against all claims, costs, expenses and liability
(including reasonable attorney's fees and cost of suit incurred in connection with all claims)
including any action or proceedings brought thereon, arising from or as a result of the injury
to or death of any Person, or damage to the property of any person which shall occur on Lot 2,
except for claims caused by the negligence or willful act or omission of the Haggen Parties,
its licensees, concessionaires, agents, servants, invitees, Permittees, or employees, or the
agents, servants, or employees of any licensee or concessionaire thereof.
The Haggen Parties covenant and agree to indemnify, defend and hold harmless
Dick's and the owner of Lot 2 from and against all claims, costs, expenses and liability
(including reasonable attorney's fees and cost of suit incurred in connection with all claims)
including any action or proceedings brought thereon, arising from or as a result of the injury
to or death of any Person, or damage to the property of any person which shall occur on Lot
1, except for claims caused by the negligence or willful act or omission of Dick's, its
licensees, concessionaires, agents, servants, invitees, Permittees, or employees, or the agents,
servants, or employees of any licensee or concessionaire thereof.
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B. Prior to commencing any construction activities on its Lot, the constructing
Party shall obtain or require its contractor to obtain and thereafter maintain so long as such
construction activity is occurring, at least the minimum insurance coverages set forth below:
(i) Workers' Compensation - statutory limits
(ii) Employers Liability - $100,000
(iii) Comprehensive General and Comprehensive Auto Liability as
follows:
(a) Bodily Injury - $1,000,000 per occurrence;
(b) Property Damage - $1,000,000 per occurrence;
(e) Independent Contractors liability or Owner's. Protective
Liability; same coverage as set forth in (a) and (b) above;
(d) Products/Completed Operations Coverage which shall
be kept in effect for two (2) years after completion of work;
(e) "XCU" Hazard Endorsement, if applicable;
(f) "Broad Form" Property Damage Endorsement;
(g) "Personal Injury" Endorsements;
(h) "Blanket Contractual Liability" Endorsement.
If the construction activity includes another Party's Lot, then the owner of said Lot
shall be an additional named insured and such insurance shall provide that the�same shall not
be canceled without at least thirty (30) days prior written notice to the named insureds. If
such insurance is canceled or expires then the constructing Party shall immediately stop all
work on or use of the other Party's Lot until either the required insurance is reinstated or
replacement insurance obtained.
5.3 Liens
In the event any mechanic's lien is filed against a Party's Lot as a result of services
performed or materials furnished for the use of the other Party's Lot, the Party causing the lien
agrees to cause such lien to be discharged prior to entry of final judgment (after all appeals)
for the foreclosure of such lien and further agrees to indemnify, defend, and hold harmless
and indemnify the other Party against liability, loss, damage, costs or expenses (including
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reasonable attorneys' fees and cost of suit) on account of such claim of lien. Upon request of
the Party whose Lot is affected, the other Party agrees to promptly cause such lien . to be
released and discharged of record, either by paying the indebtedness which gave rise to such
Iien or by posting bond or other security as shall be required by law to obtain such release and
discharge. Nothing herein shall prevent the Party causing the lien fi-om contesting the validity
thereof in any planner it chooses so long as such contest is pursued with reasonable diligence.
In the event such contest is determined adversely (allowing for appeal to the highest appellate
court), Party causing the lien shall promptly pay in full the required amount,'together with any
interest, penalties, costs, or other charges necessary to release such lien.
ARTICLE 6.
MISCELLANEOUS
6.1 Default
A. If a Party fails to comply with any provision herein, (the "Non-Perfonning
Party"), then the other Parties may, upon forty-five (45) days' prior written notice to the Non -
Performing Party, proceed to cure the default (and shall have a license to do so) by the
payment of money or performance of some other action for the account of the Non -
Performing Party. The foregoing right to cure shall not be exercised if within the forty-five
(45) day notice period (i) the Non -Performing Party cures the default, or (ii) if the default is
curable, but cannot reasonably be cured within that time period, the Non -Performing Party
begins to cure such default within such time period and diligently pursues such action to
completion. The forty-five (45) day notice period shall not be required if, using reasonable
judgment, a Party deems that an emergency exists which requires immediate attention. In the
event of such an emergency, the Parties shall give whatever notice to the Non-Perfonning
Party as is reasonable under the circumstances.
B. Within ten (10) days of written demand (including providing copies of
invoices reflecting costs) the Non-Perfonning Party shall reimburse the other Parties for any
sum reasonably expended by them to cure the default in accordance with this Agreement,
together with interest thereon. The Non-Perfonning Party hereby grants to the other Parties
non-exclusive easements over and under any and all parts of their respective Lot for all
purposes reasonably necessary to enable the Parties (or their agents, contractors or
subcontractors) to perfonn any of the terns, provisions, covenants, or conditions of this
Agreement that the Non -Performing Party is obligated to perform but has failed to perform
after notice and time to cure pursuant to this Section 6.1.
C. The unpaid amounts together with all accrued interest that the Non -
Performing Party owes the other Parties pursuant to this section shall constitute a lien upon
the Non-Perfonning Party's right, title and interest in and to the Non -Performing Party's Lot to
secure repayment of such amounts. The Parties shall have the right, but not the obligation, to
record its lien. The Non-Perfonning Party shall execute such instruments as the other -Parties
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may reasonably request to permit the recordation of such lien. The Non -Performing Party
hereby irrevocably designates the other Party as the Non -Performing Party's attorney -in -fact
for the purpose of recording its lien pursuant to this section. The other Party shall have the
right to foreclose such lien in the manner provided by law.
D. In the event any Party shall institute any action or proceeding against
another Party relating to the provisions of this Agreement, or if any default hereunder, or to
collect any amounts owing hereunder, or if an arbitration proceeding is commenced by
agreement of the Parties to any dispute, the unsuccessful litigant in such action or proceeding
shall reimburse the successful litigant therein for costs and expenses incurred by the
successful litigant in connection with such action or proceeding and any appeals therefrom,
including attorneys' fees and court costs.
E. All remedies are cumulative and shall be deemed additional to any and all
other remedies to which the Parties may be entitled in law or in equity. The Parties shall also
have the right to restrain by injunction any violation or threatened violation by a Party of any
of the terms, covenants, or conditions of this Agreement, or to obtain a decree to compel
performance of any such terms, covenants, or conditions, it being agreed that the remedy at
law for a breach of any such term, covenant, or condition (except those, if any, requiring the
payment of a liquidated sum) is not adequate.
6.2 Interest
Wherever and as often as a Party shall not have paid any sum payable hereunder to
any other Party within five (5) days of the due date, the Party to make payment shall pay
interest on such amount from the due date to and including the date such payment is received
by the payee, at the lesser of:
A. The highest rate permitted by law to be paid on such type of obligation; or
B. Three percent (3%) per annum in excess of the prime rate fi-om time to
time publicly announced by U.S. Bank, or its successor.
6.3 Notices
All notices, demands, statements, and requests (collectively the "notice") required or
permitted to be given under this Agreement must be in writing and shall be deemed to have
been properly given or served as of the date hereinafter specified: (i) on the date of personal
service upon the person to whom the notice is addressed or if such person is not available the
date such notice is left at the address of the person to whore it is directed, (ii) on the date the
notice is postmarked by the United States Post Office, provided it is sent prepaid, registered or
certified mail, return receipt requested, and (iii) on the date the notice is delivered by a courier
service (including Federal Express, Express Mail, Emery or similar operation) to the address
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of the person to whom it is directed, provided it is sent prepaid, return receipt requested. The
address of the signatories to this Agreement is set forth below.
Dick's: Dick's Drive -Ins, Ltd., L.P.
4426 -- 2"d Avenue N.E.
Seattle, WA 98105
Attn: Jim or Walt Spady
With a copy to: Lasher Holzapfel Sperry & Ebberson PLLC
601 Union Street, #2600
Seattle, WA 98I01
Attn: Eugene W. Wong
Haggen Parties: Briar Development Company LLP
P.O. Box 489
Bellingham, Washington 98227
Attn: Gary Hall
With a copy to: GordonDerr, LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
Attn: Joel M. Gordon
Each Party shall have the right from time to time and at any time, upon at least ten
(10) days' prior written notice thereof in accordance with the provisions hereof, to change its
respective address and to specify any other address within the United States of America;
provided, however, notwithstanding anything herein contained to the contrary, in order for the
notice of address change to be effective it must actually be delivered. Refusal to accept
delivery of a notice or the inability to deliver a notice because of an address change which
was not properly communicated shall not defeat or delay.the giving of a notice.
6.4 Approval Rights
Unless otherwise herein provided, whenever a Party's approval or consent is required,
such approval or consent shall not be unreasonably withheld, conditioned, or delayed. Unless
provision is made for a specific time period, approval shall be given or withheld within thirty
(30) days of the receipt of the request for approval. If disapproval is not given within the
required time period, the relevant Party shall be deemed to have given their approval or
consent. If a Party shall disapprove, the reasons therefor shall be stated. Except with respect
to an approval given by lapse of time, all approvals and disapprovals shall be in writing. The
"right to approve" herein reserved by the Haggen Parties shall be assignable, but only to a
maximum. of two (2) Parties and such Parties must either own or lease the majority of the
Floor Area of Lot 1 as originally configured on the date of this Agreement. Dick's may
assign its "right to approve" but only to a new Party that either owns or leases Lot 2 in its
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entirety. Each successor assignee, in turn, may also assign such "right to approve" to a
maximum of one (1) Party on the same condition. If the holder of the "right to approve"
transfers its entire ownership interest prior to assigning such "right to approve", then the
transferee Party shall immediately become vested with such "right to approve".
6.5 Binding Effect
The terms of this Agreement and all easements granted hereunder shall constitute
covenants running with the land and shall inure to the benefit of and be binding upon the
signatories hereto and their respective successors and assigns who become Parties hereunder.
This Agreement is not intended to supersede, modify, amend, or otherwise change the
provisions of any prior instrument affecting the land burdened hereby.
6.6 Singular and Plural
Whenever required by the context of this Agreement, the singular shall include the
plural, and vice versa, and the masculine shall include the feminine and neuter genders, and
vice versa..
6.7 Counterparts and Signature Pages
This Agreement may be executed in several counterparts, each of which shall be
deemed an original. The signatures to this Agreement may be executed and notarized on
separate pages, and when attached to this Agrcement shall constitute one complete document.
6.8 Negation of Partnership
None of the terms or provisions of this Agreement shall be deemed to create a
partnership between or among the Parties in their respective businesses or otherwise, nor shall
it cause them to be considered joint venturers or members of any joint enterprise. Each Party
shall be considered a separate owner, and no Party shall have the right to act as an agent for
another Party, unless expressly authorized to do so herein or by separate written instrument
signed by the Party to be charged.
6.9 Not a Public Dedication
Nothing herein contained shall be deemed to be a gift or dedication of any Lot or
portion thereof to the general public, or for any public use or purpose whatsoever. Except as
herein specifically provided, no right, privileges or immunities of any Party hereto shall inure
to the benefit of any third -party Person, nor shall any third -party Person be deemed to be a
beneficiary of any of the provisions contained herein.
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6.14 Excusable Delays
Whenever performance is required of any Party hereunder, that Party shall use
all due diligence to perform and take all necessary measures in good faith to perform;
provided, however, that if completion of performance shall be delayed at any time by reason
of acts of God, war, civil commotion, riots, strikes, picketing or other labor disputes,
unavailability of labor or materials, damage to work in progress by reason of fire or other
casualty, or any cause beyond the reasonable control of a Party, then the time for performance
as herein specified shall be appropriately extended by the amount of the delay actually so
caused. The provisions of this section shall not operate to excuse any Party from the prompt
payment of any monies required by this Agreement.
6.11 Severability
Invalidation of any of the provisions contained in this Agreement, or of the application
thereof to any person by judgment or court order shall in no way affect any of the other
provisions hereof or the application thereof to any other person and the same shall remain in
frill force and effect.
6.12 Amendments
This Agreement may be amended by, and only by, a written agreement signed by all
of the then current Parties and shall be effective only when recorded in the county and state
where the Lots are located. No consent to the amendment of this Agreement shall ever be
required of any Occupant or Person other than the Parties, nor shall any Occupant or Person
other than the Parties have any right to enforce any of the provisions hereof.
6.13 Captions and Capitalized Terms
The captions preceding the text of each article and section are included only for
convenience of reference. Captions shall be disregarded in the construction and interpretation
of the Agreement. Capitalized terms are also selected only for convenience of reference and
do not necessarily have any connection to the meaning that might otherwise be attached to
such tern in a context outside of this Agreement.
6.14 Minimization of Damages
In all situations arising out of this Agreement, all Parties shall attempt to avoid and
minimize the damages resulting from the conduct of any other Party. Each Party hereto shall
take all reasonable measures to effectuate the provisions of this Agreement.
Ya1VP`.[iSDMONDSAA S•REA G.DOC
�tl IA1
23
6.15 Agreement Shall Continue Notwithstanding Breach
It is expressly agreed that no breach of this Agreement shall (i) entitle any Party to
cancel, rescind or, otherwise terminate this Agreement, or (ii) defeat or render invalid the lien
of any mortgage or deed of trust made in good faith and for value as to any part of the Lots.
However, such limitation shall not affect in any manner any other rights or remedies which a
Party may have hereunder by reason of any such breach.
6.16 Time
Time is of the essence of this Agreement.
6.17 Non Waiver
The failure of a Party to insist upon strict performance of any of the terms, covenants
or conditions hereof shall not be deemed a waiver of any rights or remedies which they may
have hereunder or at law or equity and shall not be deemed a waiver of any subsequent breach
or default in any of such terms, covenants or conditions.
ARTICLE 7.
TERM
7.1 Tern of this Agreement
This Agreement shall be effective as of the date Dick's becomes the fee simple owner
of Lot 2 and shall continue in full force and effect until 11:59 p.m. on December 31, 2059. In
the event Dick's does not become the fee simple owner of Lot 2 pursuant to the REPSA, this
Agreement shall become void ab initio. Upon termination of this Agreement, all rights and
privileges derived from and all duties and obligations created and imposed by the provisions
of the Agreement, shall terminate and have no further force or effect; provided, however, that
the termination of this Agreement shall not limit or affect the Haggen Easement, the Storm
Drainage Easements, or any remedy at Iaw or in equity that a Party may have against any
other Party with respect to any liability or obligation arising or to be performed under this
Agreement prior to the date of such termination.
V:`WK1iTDMONDS`-1)ICK-,%.REA G.DOC
2f11.11
[Intentional Page Break]
24
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
effective as of the day and year specified in Section 7.1 above.
DICK'S:
HAGGEN PARTIES:
DICK'S DRIVE-INS, LTD., L.P., a BRIAR DEVELOPMENT COMPANY
Washington limited partnership LLP, a Washington limited liability
partnership
By
_ By
Its Its
Date Date
HAGGEN, INC.,
a Washington corporation
By
Its
Date
]':iGVP,H`LDMONUS,DICK'Si.t LEA G.DOC
2111111
25
STATE OF WASHINGTON )
ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that signed this
instrument, on oath stated that he was authorized to execute the instrument and acknowledged it
in his capacity as the of Briar Development Company LLP to be the free and
voluntary act of such partnership for the uses and purposes mentioned in the instrument.
Dated this day of )2010.
(Signature)
(Printed Name)
Notary Public in and for the State
of Washington, residing at
My commission expires
STATE OF WASHINGTON )
ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that signed this
instrument, on oath stated that he was authorized to execute the instrument and acknowledged it
in his capacity as the of Haggen, Inc. to be the free and voluntary act of such
partnership for the uses and purposes mentioned in the instrument.
Dated this day of , 2010.
(Signature)
(Printed Name)
Notary Public in and for the State
of Washington, residing at
My commission expires
1':`lVl*JitED?vFpNU$`.DICK'S`dLGA G.11oC
_'11A 1
26
STATE OF WASHINGTON )
ss.
COUNTY OF }
I certify that I know or have satisfactory evidence that signed this
instrument, on oath stated that he was authorized to execute the instrument and acknowledged it
in his capacity as the of Dick's Drive -Ins, LTD., L.P., to be the free and
voluntary act of such company for the uses and purposes mentioned in the instrument.
Dated this day of 52010.
(Signature)
(Printed Name)
Notary Public in and for the State
of Washington, residing at
My conunission expires
Y^%VP-H'PDMONDS',DICK'SUtGA (LDOC
2r1 Il11
27
EXHIBIT A TO REA
LEGAL DESCRIPTION OF LOT 2
Parcel No. 005807-000-040-08
LOT 2
THAT ROOT IvUK Or 't'gACY 40, SOLMER' S i i VE ACRE TRACTS, A CORD i N6 TO
THE PLAT TFBFWFOF �REOQRO `D iN '00LWIAE 7 OP FLAT55, PA'� E 25, RECORDS
Ctr SROHOMiSK CGtiEli~TY. '4tka;iINi3T0h OESCRIBFD� kS FQGl.,OW
COPMENC I NSC AT TKs MTE:;RSErTI ON OF THE t�Q RTH LINE OF TRACT
b. WiTkt TkE WESTERLY RIGHT 01� WAY MAPG4N OF STATE MIQFAVA.Y SR 'sib
H. NL . I i : THENCE SOUTH 2g" ��' 2t3" WEST 1`.+.L030 SAID 'kv6F3TFRLY
MARG,'NJ A UtSTANCF 037 9.R.47 4:EET TO A POIN+F'Y ON A Cut VP- TO TH5 t_EPT
FROM WH€CAI THE „ENTER DEAR-,' SOUTF? 65-130'55�" Vot'-,%T 'c5,00 rl��T
DISTANT: THENCE NORTHNESTEFLY ALONG THE ARC CF SAID CURVE TFtF,t3WH
A CEO TPAL ANGLE OF 3a'47' 0' FOR AN ARC t FMGTH Or 17.36 WEFT TO A
F'O i NY 4r IANGENCY; THENCE MORT:H 644(6' 2. 1 " WF.57 A [3 t STAQGE )F
1 6 . fi7 F F"T TO THC POINT OF BEG I MN i NG ; THENCE ,0 NT N N V I K NORTH
C 4' i 6' 3 s" '1t ErT A D I $TARCE OF 4e,42 FEET TO THE BEG ; 4 N I N13 Oft A
Y,"TTT ;CMT CtIkN/C TO TK LEFTY, HAVING A RA'01U$ CIF 50,OD EEE s t THENCE
WESTER!, Y ALGN'{r NiaE . Ph, tli` SA H) %R5.'7Vr= TKFhOUMH A C-EMT RAE AIJGIKE
24',54'00" FOR A" A''C LENGTH OF 21.7� FEET TQ A. POtNT Of TANCENCYI
WHENCE NORTH EM'?Q'?,i WE$r A DISTAKE Of 163 •S5 rEET; THENCE
50V T H 25'43' 2B" AIEST A DISTANCE OF I C'6 . ti4 FFZT i TfdEMi�F. 300TH
64' € 6 ' 11 ' EAST Ar DISTANCE OF M.29 FEET 1-0 THE E FRd € MN MG OF A
T.410EJ3T (',uRVE TO T.HE RIGHT HAVING A ("iAOIlFS 4F 17.50 FEET; TFNENCE
$Q071 EASTFM,.'Y ALONG THE RC, OF SAtb C:EfRVi TN#RiC}UGH .A CENTRAL ANGLE
OF K7'41%' 40" f0k AN FiRC LiWNtiTH OF e.49 «EV TO A r•Oi NT OF
'3`,7lGENPC , THENCE Srtt1714 EAST !i 'Di�-TAWCZ OF 8-53 FEET;
7HENCE 'MiTH 42'�4'0'-A" 8A%T A bI5`}'1'AK,: OF 12.I4 r ET TO A POINT
ON A CUPVE '1O tHf� LEFT FRCdE W141,H TF1F CE,N@TFIR E�EARI� PORTH
42'01 ' )$- WF-' Tr $t,54• FEET DISTANT: THENCt NCtNtt•KLASr` RLY ALON10 TFiE
ARC OF SAID CURVE THROUGH A CENv'TRAI, A.N;:e.!< OF 2"16 1 Fi' � 6 •. FOP AN A-P.0
L.EFiCiTH OF 3-5.452 FEET TO A POINT evr TAMCy144i.Yj THENCE %'OP`'r{
=5'dt� - EAST A DISTANCE irF 972.0,2� FEET TO "Nip Rofw' OP
BEG? NN I NG ,
EXHIBIT B TO RE, A
LEGAL DESCRIPTION OF LOT 1
LOT 1, CITY OF EDMONDS SHORT PLAT RECORDED UNDER AUDITOR'S FILE
NUMBER 200307295008, RECORDS OF SNOHOMISH COUNTY, WASHINGTON,
BEING A PORTION OF TRACTS 40,41 AND 42, SOLNER'S FIVE ACRE TRACTS,
ACCORDING TO THE PLAT THEREOF, RECORDED IN VOLUME 7 OF PLATS, PAGE
25, RECORDS OF SNOHOMISH COUNTY, WASHINGTON, LOTS 4 THROUGH 9,
BLOCK I AND LOTS 6 THROUGH 11, BLOCK 2, PINE -LAND ADDITION,
ACCORDING TO THE PLAT THEREOF, RECORDED IN VOLUME 13 OF PLATS,
PAGES 50 AND 51, RECORDS OF SAID COUNTY, LOTS 6 THROUGH 11, WILLERS
ADDITION, ACCORDING TO THE PLAT THEREOF, RECORDED IN VOLUME 14 OF
PLATS, PAGE 13, RECORDS OF SAID COUNTY, AND PORTIONS OF VACATED
219TH STREET S.W. AND VACATED 218TH STREET S.W.
SITUATE IN THE COUNTY OF SNOHOMISH, STATE OF WASHINGTON.
EXHIBIT C TO REA
SITE FLAN
File: Dicks—aASEdwg Dote: 30—Nov-10 5:41:07pm
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EXHIBIT D TO REA
DICK'S APPROVED PLANS
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EXHIBIT E TO REA
FORM EASEMENT AGREEMENT
[To be inserted]
rCr I fi"n re FO
ATTORNEYS AT LAW' `P
Joel M. Gordon
February 11, 2011
Development Services Department
City of Edmonds
121 - 5th Avenue North
Edmonds, WA 98020
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
Phone: 206.382.9540
Fax: 206.626.0675
www.Gordon Derr.eom
Re: Dick's Drive -In Permit Applications — Reciprocal Easement Agreement
To Whom. It May Concern:
This office represents Briar Development Company LLC ("Briar"), the current property
owner of the parcel which is subject to permit applications for the development of a new Dick's
Drive -In Restaurant ("Dick's) near the intersection of Highway 99 and 220"' in the City oI'
Edmonds. Dick's has entered into a Purchase and Sale Agreement with Briar for the acquisition
of the parcel that is subject to the development applications.
The attached Reciprocal Easement Agreement between the parties has been fully
negotiated and agreed to by the parties. As a result, the parties are contractually committed to
enter into the Reciprocal Easement Agreement upon the closing of Dick's acquisition of the
parcel. This letter is being issued to provide the City of Edmonds with the assurance that the
attached easement will be in place in conjunction with the development of the properly.
If you have any questions, please do not hesitate to contact me.
JMG:Ikl
Enclosure
cc: Gary Hall
Glen Foresman
Eugene Wang