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Highway_99-21910-Dicks_Drive_In-Water_easement.pdfAfter Recording Return To: City Clerk City of Edmonds 121 —5 1h Avenue N. Edmonds, WA 98020 Grantors: Grantee: Legal Description: Tax Parcel Nos.: Reference No.: {0650517330786.©OC} NO CE REQUIRED OCT24 Z011 ; ,11EVFRS, Gnohoi� cGunty Ireasurot I IIII III IIBaI III III Ib III III IIII II'IIIIIII II 201110240649 Q PGS 1012412011 06r RAO WATERLINE EASEMENT AGREEMENT BRIAR DEVELOPMENT COMPANY LLP a Washington limited liability partnership HAGGEN, INC. a Washington corporation DICK'S DRIVE -TNS, LTD., L.P. a Washington limited partnership CITY OF EDMONDS a Municipal corporation LOTS I AND 2, CITY OF EDMONDS SHORT PLAT RECORDED UNDER AUDITOR'S FILE NO. 200307295008 r 3/-)C' 40/vr-1-j '�- c Q 005807-000-040-07; and 005807-000-040-08 N1A WATERLINE EASEMENT AGREEMENT This WATERLINE EASEMENT AGREEMENT (the "Agreement") is made this day of October, 2011, by and between BRIAR DEVELOPMENT COMPANY LLP, a Washington limited liability partnership ("Briar"), HAGGEN, INC., a Washington corporation ("Haggen"), DICK'S DRIVE-INS, LTD., L.P., a Washington limited partnership ("Dick's") (Briar, Haggen, and Dick's collectively referred to as "Grantor"), and the CITY OF EDMONDS, a Municipal corporation ("COE" or "Grantee") (Briar, Haggen, Dick's, and COE may hereinafter be referred to individually as a "party" or collectively as the "parties"). RECITALS A. Briar is the owner of the property situated in Snohomish County, Washington and legally described in Exhibit "A" attached hereto and made a part hereof (the "Briar Property"). B. Haggen has a leasehold interest (the "Haggen Lease") in the Briar Property, upon which it operates a TOP Food and Drug store. C. Dick's is the owner of the property situated in Snohomish County, Washington and legally described in Exhibit "B" attached hereto and made a part hereof (the "Dick's Property"). D. In connection with the construction of improvements upon the Dick's Property, COE requires a utility easement across the Briar Property and Dick's Property to install, operate, and maintain an underground waterline for the Dick's Property. E. Briar, Haggen, and Dick's are willing to grant such an easement in accordance with this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows: 1. Grant of Easement. Briar, Haggen, and Dick's do hereby grant and convey to COE and its successors and assigns, a permanent non-exclusive easement for: the installation, operation, and maintenance of an underground waterline for the benefit of the Dick's Property over, across, through, and below the Briar Property and Dick's Property, but only to the extent of those portions legally described and diagrammed in Exhibit "C" attached hereto and incorporated herein by this reference (the "Easement Area"), and the further right to remove trees, bushes, undergrowth, and other obstructions interfering with the location, construction, and maintenance of said underground waterline, together with the right of reasonable access to the Easement Area for the stated purposes. Notwithstanding the foregoing or anything in this Agreement or otherwise to the contrary, Grantor shall have the right to use the Easement Area for any use not inconsistent with the purposes of this Agreement. (0005IT330786.nOC) 2 2. Costs of Construction and Maintenance. COE has already, at COE's cost and expense (pursuant to an earlier agreement with Dick's) installed the underground waterline within the Easement Area (the "Waterline"). If Briar, Haggen, or Dick's gives COE notice of reasonable maintenance that needs to be performed on the Waterline, Easement Area, Briar Property, or Dick's Property as a result of normal wear and tear, failure of, or defects with the Waterline and COE does not perform such maintenance or repair within thirty (30) days from the date of said notice (or sooner as reasonably necessary in the case of an emergency), Briar, Haggen, and/or Dick's will be entitled to perform such maintenance or repair and COE will be liable to such respective party for the costs of such maintenance or repair. 3. Relocation of Waterline. Each Grantor has the right at any time to relocate that portion of the Waterline within the Easement Area upon a minimum of forty-five (45) days' prior written notice, provided that such relocation: a. Will not interfere with or diminish the utility services to Dick's or the Dick's Property; utility; b. Will not reduce or unreasonably impair the usefulness or function of such C. Is performed without cost or expense to the other parties; d. Will be completed using materials and design standards which equal or exceed those originally used; and e. Shall have been approved by the owner of the Dick's Property (such approval not to be unreasonably withheld or delayed) as well as any utility company and the appropriate governmental or quasi -governmental agencies having jurisdiction thereover. Documentation of the relocated easement area shall be the relocating party's expense and shall be accomplished as soon as possible. Dick's shall have a right to require an as - built survey of such relocated utility be delivered to it at the expense of the party that relocated or caused the relocation of the Waterline. 4. Compliance with Laws and Rules. The parties shall at all times exercise their rights herein in accordance with all applicable statutes, orders, rules and regulations of any public authority having jurisdiction or claiming jurisdiction over the subject easement or Waterline. 5. Work Standards. All work to be performed on the Briar Property, Dick's Property, or Waterline pursuant to this Agreement shall be in a careful and workmanlike manner, free of claims, and liens. Upon completion of any maintenance work on the Waterline, the party causing the work to be performed shall remove (or cause to be removed) all debris and restore the surface of the Easement Area as nearly as possible to the condition in which it was at the commencement of such work. It is specifically acknowledged that the party performing or �06505M 10786. DOC) 3 causing any such work will not unnecessarily hinder or impact the ingress, egress, or use of the Briar Property, Dick's Property, or the Easement Area, and will provide a minimum of seventy- two (72) hours advance written notice (or notice after the fact in case of an emergency) to Briar, Haggen, and Dick's of access to the Easement Area and/or Waterline. 6. Release and lndemity. Each party does hereby release, indemnify, and promises to defend and save the others harmless from and against any and all liability, loss, damage, expense, actions, and claim, including costs and reasonable attorneys' fees, incurred by any of the other parties in defense thereof, asserted or arising directly or indirectly on account of or out of acts or omissions of a party and/or the party's employees or agents in the exercise of the rights or the performances of the duties contained herein, including, but not limited to those resulting from any personal injury, death, property damage, water pollution, hazardous waste contamination, hazardous substances contamination, damage to fish or wildlife, or fish or wildlife habitat, damage to natural resources, or, environmental harm, arising out of or in connection with the Waterline and use of or access to the Briar Property, Dick's Property, or Easement Area. 7. Duration. The term of said easement shall be indefinite and shall continue until revoked by the mutual agreement of Briar, Dick's, and COE or their respective heirs, successors, or assigns. Said easement is intended to and shall run with the land and the benefits and burdens of the easement herein created shall pass to the heirs, successors and assigns of the parties in and to their respective properties benefited and burdened by these casements. 8. Specific Performance. If any party shall default in its obligations under this Agreement, the parties each acknowledge that it would be extremely difficult to measure the resulting damages. Accordingly, any nondefaulting party, in addition to any other rights or remedies, shall be entitled to restraint by injunction of a violation, or attempted or threatened violation, or any condition or provision of this Agreement, or to a decree specifically compelling performance of any such condition or provision. In such event, all parties hereto each expressly waive their defense that a remedy in damages or at law would be adequate. 9. Liens. COE shall not allow any mechanics, laborers, materialmen's, or any other lien of any type or nature whatsoever to be placed against the Easement Area, Briar Property, or Dick's Property arising out of any activity thereon by COE or its agents or employees. If any lien is placed against the Briar Property, Dick's Property, or Easement Area as a result of or incident to any such activity, COE shall within ten (10) days of notice from Briar, Haggen, or Dick's to either: (i) cause the same to be released and discharged of record; or (ii) at COE's expense, cause a title insurance company acceptable to the affected party to issue insurance to said party and any lender designated thereby insuring over such lien, whether pursuant to deposit or bond. 10. Invalidation. If any provision of this Agreement is held to be invalid by any court, the invalidity of such provision shall not affect the validity of the remaining provisions. 11. 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 (06505rF330786.DQC) 4 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 whom 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 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 ---- 2nd Avenue N.E. Seattle, WA 98105 Attn: Jim or Walt Spady With a copy to: Lasher Holzapfel Sperry & Ebberson PLLC 601 Union Street, 42600 Seattle, WA 98101 Attn: Eugene W. Wong Briar: Briar Development Company LLP P.O. Box 29060 Bellingham, WA 98228-1060 Attn: Gary Hall With a copy to: GordonDerr, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 Attn: Joel M. Gordon Haggen: Haggen, Inc. 2211 Rimland Drive Bellingham, WA 98226 Attn: C.E.O. & C.F.O. With a copy to: Akerman Senterfitt One SE Third Avenue, #2500 Miami, FL 33131 Attn: Carl D. Roston & Martin G. Burkett COE: City of Edmonds 121 —5 1h Avenue N. Edmonds, WA 98020 Attn: City Clerk {065051T330786.D0C} 5 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. 12. Cost and Attorneys' Fees. If any party hereto shall bring any suit, arbitration or other action against another for relief, declaratory or otherwise, arising out of this Agreement, the prevailing party shall have and recover against the other party, in addition to all costs and disbursements, such sum as the Court, or arbiter may determine to be a reasonable attorneys' fees. 13. 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 tenns, covenants, or conditions. 14. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any of the other lot or a 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. 15. 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. Haggen shall remain a party until such time as the Haggen Lease is terminated or otherwise expires by its terms or Haggen is otherwise released from its obligations thereunder. This Agreement is not intended to supersede, modify, amend, or otherwise change the provisions of any prior instrument affecting the land burdened hereby. 16. 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. 17. 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 Agreement shall constitute one complete document. 18. Documents. Each party to this Agreement shall perfonn any and all acts and execute and deliver any and all documents as may be necessary and proper under the (065051T330786.DOC) 6 circumstances in order to accomplish the intents and purposes of this Agreement and to carry out its provisions. 19. No Merger. It is the express intent of the parties that the easement granted hereunder shall not merge with the fee interest in the Briar Property or Dick's Property. The terms of this Agreement, to the extent specifically inconsistent with other agreements or respective rights of the parties, shall supersede such inconsistencies. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly signed as of the day and year first above written. BRIAR: BRIAR DEVELOPMENT COMPANY LLP a )Vashington limited lia ility partnership Y^kk, Its: HAGGEN: HAGGEN, INC. a Washington corporation t By� s m Its: Q DICK'S: DICK'S DRIVE-INS, LTD., L.P. a Washington limited rtnership Its:' ­W LE [NOTARY BLOCKS ON FOLLOWING PAGE} {06505/T330786.D0C} 7 STATE OF WASHINGTON ) } ss. COUNTY OF �T } I certify that I know or have satisfactory evidence that ;R;QM .9signed this instrument, on oath stated that he/she was authorized to execute twe instrument and acknowledged it in his/her capacity as the 4<.a 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 fz day of October, 2011. OTA 1, Ug A1C' 10 2SA61E6ii1l9����� STATE OF WASHINGTON ) ) ss. COUNTY OF }hal } (Signature) (Printed Name); Notary Public in and for the State of Washington, residing at My commission expires 4 - [q • 2,t)j I certify that I know or have satisfactory evidence that �� �5kcv�.n5, signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it in his/her capacity as the C" F 0 of HAGGEN, INC. to be the free and voluntary act of such company for the uses and purposes mentioned in the instrument. Dated this I � ,, day of October, 2011. ,����uuitiurrrr� C MB ,,NON ®, B 66 G OF tl1lt11tH11t0 (Signature) (Printed Name) L-7) . Scir)-,kjpr skr Notary Public in and for the State of Washington, residing at di My commission expires p-7- n {06505IT330786.DOC} 8 STATE OF WASHINGTON) ) ss. COUNTY OFP. :F I certify that I know or have satisfactory evidence that f' y, signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it in his capacity as the V�� �pj� C 011<P of DICK'S DRIVE-INS., LTD., L.P. to be the free and voluntary act of such limited partnership for the uses and purposes mentioned in the instrument. �r Dated this a day of October, 2011. N©tary Public State of WashingtOn JEAN MILLER My ppointmeot Expires M.ar 1, 2014 STATE OF WASHINGTON ) ss. COUNTY OF �aem�Qec; (Sig at re)' (Pru t Name) Notary Public in and for the St to of Washington, residing at My commission expires I certify that I know or have satisfactory evidence that signed this instrument, on oath stated that he was authorized to execute t e in trument and acknowledged it in his capacity as the of the CITY OF EDMONDS to be the free and voluntary act of such municipalit for the uses and purposes mentioned in the instrument. zw- Dated this Iq day of October, 2011. ( ignature) (Printed Name)c J/�1,114 � Notary Public in and for the State of Washington, residing at evq- Cn YCCXa My commission expires 9--/ �- 1,5 {06505,T330786.DOCj 9 EXHIBIT "A" (Briar Property) LOT 1, CITE'' 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 FLATS, PAGE 25, RECORDS OF SNO140MISH COUNTY, WASHINGTON, LOTS 4 THROUGH 9, BLOCK 1 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. [END OF EXHIBIT "A"I {065o5rr330786. DOC; to EXHIBIT 'B" (Dick's Property) LOT 2, 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 FLATS, PAGE 25, RECORDS OF SNOHOMISH COUNTY, WASHINGTON, LOTS 4 THROUGH 9, BLOCK 1 AND LOTS 6 THROUGH 11, BLOCK 2, PINE -LAND ADDITION, ACCORDING TO THE PLAT THEREOF, RECORDED IN VOLUME 13 OF PLATS, PAGES 50 ANIS 51, RECORDS OF SAID COUNTY, LOTS 6 THROUGH 11, WILLER'S 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 21 STH STREET S.W. SITUATE IN THE COUNTY OF SNOHOMISH, STATE OF WASHINGTON. [END OF EXHIBIT "B"I 065051T330786.BOC } 1 EXHIBIT "C" (Easement Area) GF -,DT ?, C;7,1 JF E-WO-ND5 PLA,' PECORD' ED UNIEER AI-DIMR'S ?-ILE .'10AEq SNChOMSH A5 r THE PAf; oHL 2 FNE �PUOWUSVG CGU SE ANIO D15;4hCES- 1442',T40 -3'W 12 14 FEF; r�4VVCE rfj HAW.'6 A RA&.VS U.' 17.9 - FaTT RG A PNNT Of' IANG;�Xy. y".E.Vff 24 N -!W- A WAIEM�,.'Iqt� .RANTED FO I-YhE CI -r OF E17SWIVEIP5, r:C'UrV,� LC EiEG OP AFORESAID LOT S25'1000'lv 8-.77 REP-; Mzucz- 'V,,* FEr—, r X FEFr. r��-,W,"E 1. HEh E X fo FHL: PIJPII� OF A�I�JNIVAIII, 'HA' CF -10T. 2. C"Ty -"F LDMONIDHbpf PLA, khGO60ED L-NDEP OP5,""WOED k--. F�7,,GIWF: ��9UU:'?:'N1 AT P?� ' "-- M C; N,Z fA5 F' CIF .-111013 L07 7.- 1-1.-�--`NCL Aj._CHTUE 11"vt OF SAD 1�07 2 7HE V CGVR547:; AN'D D,ETIAWCE�,, fY4,2'J4*0 J'� , ?4 72. .KHJ.3 FEff M A !:ijRvt- r-� F,4jS t.Eff �OVYN': A &.AOlu'S OF AND A;V AWC !t:!vf;")! H.49 F--eIf, A )IfYNIf Y N64'f6'J,"h' 121.2-4Ej�T 19 fhfE Oz: 9Er,;NM-VC AGR .4 WArEPUAIE 17A.:;FVF Ist f IVIY M R,,i;z)N YVF ORNWED TO THE �iTY OF f0U01,4DS, 5140HOM ? '.IU T ON AFDAE`kCD tO.-JI 2, N64 -60119'W 10OGI gfvT., ; MtNf!E :1 G., ,L; F M, -l!'t AI,OW YNE YM& U,'.f ME !YJUR-',;E' AM-, a15TAYrl�' 525'4529-1V 5C4'09'-z:C"E 227 FEELZ' rliflqCE Df-,9,JRP,qC jpi6 Sys J,W tZ..j;, f_EF't r`= ,, fe w, `_;F [BALANCE OF PAGE LEFT BLANK] f 1 12 ,05051330786J)OC: POW" (SE CORIVEr, 21, f7l 7� IL, I I CRONES & ASSOL I N-1 L JA LkND SURVEYORS r:47'j4 "'A -W �2 +.a' L2 14J627'3 1 -,v 39 jj, L5 "DIF 29.3L'' [END OF EXHIBIT "C"] �06505, 13 LOT I Lk.WX'l PREPAPEN �OP JjrAWN liv- CRA POW" (SE CORIVEr, 21, f7l 7� IL, I I CRONES & ASSOL I N-1 L JA LkND SURVEYORS r:47'j4 "'A -W �2 +.a' L2 14J627'3 1 -,v 39 jj, L5 "DIF 29.3L'' [END OF EXHIBIT "C"] �06505, 13 LOT I