Loading...
HomeMy WebLinkAbout10-085 - CHA Southcenter LLC & Legacy Partners - Settlement Agreement / Right-of-Way Acquisition (Tukwila Urban Center Access)FINAL SETTLEMENT AGREEMENT 10 -085 Council Approval N/A This Settlement Agreement (the "Agreement is effective as of June 17, 2010 (the "Effective Date and is entered into by and between CHA Southcenter, LLC "CHA and the City of Tukwila "Tukwila and Legacy Partners I TUKWILA, LLC "Legacy CHA, Tukwila, and Legacy are sometimes collectively referred to as the "Parties." A. CHA is the fee simple owner of the following described real property situated in Tukwila, Washington: New Parcel B of Binding Site Plan for Outback Steak House, according to the plan thereof recorded in Volume 184 of Plans, page 36, recorded under Recording Numbers 9802041490 and 9802041491, in King County, Washington Street Address: 16500 Southcenter Parkway (the "Property B. Tukwila intends to construct the City of Tukwila Urban Center Access Project (the "Project and in connection with the Project, the City seeks to acquire a certain portion of land and land rights "Acquisition Area on the Property under imminent threat of condemnation. Funding for the Project includes grants and loans, and is expected to include assessments payable as a result of the formation of Local Improvement District No. 33. C. As a result of the Project, Legacy will lose rights to that certain Nonexclusive Roadway Easement dated April 5, 1975 between Parkway and Strander Associates and Southcenter Motor Hotel, Ltd. (King County Recording Number 7905030223). D. CHA is willing to grant Legacy a replacement easement (the "Easement for the easement that is being vacated by the Project in accordance with the terms set forth in this Agreement. Therefore, for good and sufficient consideration, the Parties agree as follows: 1. Agreement Effective. Except as provided in Section 3(c), this Agreement shall become effective upon full execution by the parties hereto. 2. Condemnation. The Parties hereby acknowledge this Agreement is being entered into under threat of and in lieu of condemnation proceedings. 3. Settlement Terms. a. Compensation. Within five (5) business days of the Effective Date of this Agreement, or as soon as practicable in terms of Tukwila check processing procedures, Tukwila will deposit into an escrow account the amount of $7,500 (the "Settlement Sum payable to CHA as full and final settlement between the Tukwila and CHA concerning the matters described herein. DWT 13302048v4 0088419- 000008 Page 1 FINAL b. Delivery of Documents. Within ten (10) business days of the Effective Date of this Agreement, CHA will deposit into escrow the document conveying the Easement, substantially in the form attached hereto as Exhibit A. c. Lender Approval. Within three (3) business days of the Effective Date of this Agreement, CHA will seek consent from its lender of certain debt secured by the improvements and related real property owned by CHA to convey the Easement to Legacy. This Agreement is subject to and contingent upon such lender approval. d. Payment. The Settlement Sum will be delivered to CHA immediately upon receipt of consent from CHA's lender to record the Easement. e. Recording. The Easement will be recorded upon the completion of the improvements to the Acquisition Area. f. Release of Claims. Legacy waives and releases any and all claims and causes of action against both CHA and Tukwila that may arise out of the extinguishment and vacation that certain Nonexclusive Roadway Easement dated April 5, 1979 between Parkway and Strander Associates and Southcenter Motor Hotel, Ltd (King County Recording Number 7905030223). 4. Breakdown of Costs Associated with Settlement Amount. The value of the Easement is $7,500.00. 5. Representations and Warranties. Tukwila represents and warrants to CHA and Legacy as follows: a. Organization. Tukwila is a duly organized municipal entity, validly existing under the laws of the State of Washington. Tukwila has all requisite power and authority to acquire the Property. b. Authoritv. Tukwila has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the parties. This Agreement has been duly executed and delivered by the parties and, assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes valid and binding obligations of Tukwila. Other than approval of this Agreement by the Tukwila City Council at an open public meeting, no consent, waiver, approval, order or authorization of, or registration, declaration or filing with, or notice to, any governmental entity, is required by or with respect to the parties in connection with the execution and delivery of this Agreement or the consummation by the parties of the transactions contemplated hereby or thereby. c. No Conflict. The execution and delivery by Tukwila of this Agreement and the consummation of the transactions contemplated hereby and thereby, do not and will not conflict with or result in any violation of or default under (with or without notice or lapse of time, or both) or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any benefit under (i) any provision of the charter of Tukwila, (ii) any DWT 13302048v4 0088419-000008 Page 2 FINAL material contract to which Tukwila is a party or to which it or any of its respective properties or assets (whether tangible or intangible) is subject or bound, or (iii) any Law applicable to Tukwila, except, in the case of (ii) or (iii), for such conflicts, violations or defaults as would not individually or in the aggregate reasonably be expected to have a material 'and adverse effect on the ability of Tukwila to consummate the transactions contemplated by this Agreement. 6. Renresentations and Warranties. CHA represents to Tukwila and Legacy as follows: a. Organization. CHA is a duly organized municipal entity, validly existing under the laws of the State of Washington. b. Authority. Except for the consent of CHA's lender, CHA has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement has been duly authorized by all necessary limited liability company action on the part of the parties. This Agreement has been duly executed and delivered by the parties and, assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes valid and binding obligations of the parties. c. No Conflict. The execution and delivery by CHA of this Agreement and the consummation of the transactions contemplated hereby and thereby, do not and will not conflict with or result in any violation of or default under (with or without notice or lapse of time, or both) or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any benefit under (i) any provision of the operating agreement of CHA, (ii) and except for the applicable loan agreements encumbering the Property, any material contract to which CHA is a party or to which it or any of its respective properties or assets (whether tangible or intangible) is subject or bound, or (iii) any Law applicable to CHA, except, in the case of (ii) or (iii), for such conflicts, violations or defaults as would not individually or in the aggregate reasonably be expected to have a material and adverse effect on the ability of CHA to consummate the transactions contemplated by this Agreement. 7. Representations and Warranties. Legacy represents and warrants to Tukwila and CHA as follows: a. Organization. Legacy is a duly organized Delaware limited liability company validly existing under the laws of the State of Washington. b. Authority. Legacy has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement has been duly authorized by all necessary limited liability company action on the part of the parties. This Agreement has been duly executed and delivered by the parties and, assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes valid and binding obligations of the parties. c. No Conflict. The execution and delivery by Legacy of this Agreement and the consummation of the transactions contemplated hereby and thereby, do not and will not conflict with or result in any violation of or default under (with or without notice or lapse of time, or DWT 13302048 v4 0088419- 000008 Page 3 FINAL both) or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any benefit under (i) any provision of the operating agreement of Legacy, (ii) any material contract to which Legacy is a party or to which it or any of its respective properties or assets (whether tangible or intangible) is subject or bound, or (iii) any Law applicable to Legacy, except, in the case of (ii) or (iii), for such conflicts, violations or defaults as would not individually or in the aggregate reasonably be expected to have a material and adverse effect on the ability of Legacy to consummate the transactions contemplated by this Agreement. 8. AS -IS. CHA has not made and does not make, any representations, warranties or covenants of any kind or character whatsoever, whether express or implied, with respect to the quality or condition of the property underlying the Easement, the suitability of the Easement for any and all activities and uses which Legacy may conduct thereon, compliance with any laws, rules, ordinances or regulations of any applicable governmental authority or habitability, merchantability or fitness for a particular purpose, and specifically, CHA does not make any representations regarding hazardous waste, as defined by the laws of the state in which the property is located and any regulations adopted pursuant thereto or the U. S. Environmental Protection Agency regulations at 40 c.f.r., part 261, or the disposal of any hazardous waste or any other hazardous or toxic substances in or on the property. The Parties agree to accept the Easement in its present as is condition with all faults. 9. Indemnification. Each party to this Agreement (each an "Indemnitor agrees to protect, indemnify, and hold harmless the other party and its agents, employees, directors and affiliates (each an "Indemnitee from and against (a) any and all damages, claims, liabilities and costs (including attomeys' and expert witness fees) resulting from any injury to the person or property of a third party that is primarily attributable to the negligent or willfully wrongful acts of the Indemnitor, and its employees, agents, consultants, or subcontractors in the performance of this Agreement or construction of the Project, and (b) any and all damages, losses and costs (including attorneys' and expert witness fees) suffered by Indemnitee that are solely and exclusively attributable to a breach of this Agreement by Indemnitor. 10. Knowing and Voluntary. The Parties represent that they have read and fully understand this Agreement and the settlement terms provided herein constitute valuable consideration. The Parties have had full opportunity to consider this Agreement and consult with legal counsel and that they are not executing this Agreement in reliance on any promises or representations other than those contained in the Agreement, and that they are executing this Agreement voluntarily. 11. Severabilitv. If any term or provision of this Agreement is determined by a tribunal of competent jurisdiction to be unenforceable or contrary to any applicable law or policy, such term provision or provision shall be effective to the maximum extent permitted by law and the same shall not affect any other term or provision of this Agreement, which shall otherwise remain in full force and effect. 12. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the Project and conveyance of the Property and this Agreement supersedes any previous agreements or understandings between the Parties. DWT 13302048v4 0088419- 000008 Page 4 FINAL 13. Choice of Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Washington, without giving effect to its conflict of laws provisions. 14. Duplicate Originals. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. The Parties further agree that any and all such counterparts may be executed by facsimile signature, each such signature having the same binding effect as an original. 15. Attomevs' Fees and Costs for Enforcement of this Agreement. Nothing contained in this Agreement shall limit either of the Parties from bringing an action at law or in equity to enforce the terms of this Agreement. In the event that either Party resorts to legal action to enforce the terms and provisions of this Agreement, the prevailing party shall recover the reasonable costs of such action, including reasonable attorneys' and expert witness fees and costs. CHA SOUTHCENTER, LLC By: Its: THE CITY OF TUKWILA Its: LEGACY PARTNERS I TUKWILA, LLC By: Its: DWT 13302048v4 0088419- 000008 Page 5 FINAL 13. Choice of Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Washington, without giving effect to its conflict of laws provisions. 14. Duplicate Originals. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. The Parties further agree that any and all such counterparts may be executed by facsimile signature, each such signature having the same binding effect as an original. 15. Attorneys' Fees and Costs for Enforcement of this Agreement. Nothing contained in this Agreement shall limit either of the Parties from bringing an action at law or in equity to enforce the terms of this Agreement. In the event that either Party resorts to legal action to enforce the terms and provisions of this Agreement, the prevailing party shall recover the reasonable costs of such action, including reasonable attorneys' and expert witness fees and costs. CHA SO CENTER, LLC By )7 0 Itsa,�i% 4� I THE CITY OF TUKWILA LEGACY PARTNERS I TUKWILA, LLC By: Its: DWT 13302048v4 0088419- 000008 Page 5 l FINAL 13. Choice of Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Washington, without giving effect to its conflict of laws provisions. 14. Duplicate Originals This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. The Parties further agree that any and all such counterparts may be executed by facsimile signature, each such signature having the same binding effect as an original. 15. Attorneys' Fees and Costs for Enforcement of this Agreement. Nothing contained in this Agreement shall limit either of the Parties from bringing an action at law or in equity to enforce the terms of this Agreement. In the event that either Party resorts to legal action to enforce the terms and provisions of this Agreement, the prevailing party shall recover the reasonable costs of such action, including reasonable attorneys' and expert witness fees and costs. CHA SOUTHCENTER, LLC By: Its: THE CITY OF TUKWILA By: Its: LEGAC, PART NERS I TUILA, LLC By: Its: DWT 13302048v4 0088419- 000008 n Page 5 DWT COMMENTS 6/7/10 AFTER RECORDING PLEASE RETURN To: CATHERINE C. CLARK LAW OFFICE OF CATHERINE C. CLARK PLLC 701 FIFTH AVENUE, SUITE 4785 SEATTLE, WA 98104 EASEMENT FOR INGRESS AND EGRESS AND JOINT MAINTENANCE AGREEMENT Grantor: CHA SOUTHCENTER, LLC, a California limited liability company Grantee: LEGACY PARTNERS I TUKWILA, LLC, a. Delaware limited liability company Abbreviated Legal Description: Tax Parcel ID No. (CHA PROPERTY) 262304 -9021 (Legacy Property) Reference No. of Document Released: Not Applicable Easement Page 1 of DWT 14817071v3 0088419- 077701 THIS INGRESS AND EGRESS EASEMENT AGREEMENT (the "Agreement is made this day of 2010, by and between CHA SOUTHCENTER, LLC, a California limited liability company "CHA and LEGACY PARTNERS I TUKWILA, LLC, a Delaware limited liability company "Legacy") based upon the following: RECITALS A. On or about May 15, 2009, the City of Tukwila initiated a lawsuit in eminent domain against Legacy in King County Superior Court under Cause No. 09 -2- 19459-9 KNT "Lawsuit The project for which the lawsuit was begun will eliminate an easement enjoyed by Legacy as recorded under King County Auditor's File Number 7905030223 "1979 Easement B. The Lawsuit was submitted to mediation and a settlement was reached. C. As a part of that settlement, CHA has agreed to an easement to replace the rights granted under the 1979 Easement. D. The parties are entering into the following agreement. A. IDENTIFICATION OF PROPERTIES The properties impacted by this Easement, along with their record owners, are described below. 1. CHA Property. CHA is the record owner of the below described property (the "CHA Property New Parcel B of Binding Site Plan for Outback Steak House, according to the plan thereof recorded in Volume 184 of Plans, page 36, recorded under Recording Numbers 9802041490 and 9802041491, in King County, Washington Street Address: 16500 Southcenter Parkway King County Tax Parcel Identification No. 2. Leaacv Property. Legacy is the record owner of the below described property: Easement Page 2 of DWT 14817071v3 0088419 077701 [TO BE FILLED IN] Street Address: 16500 Southcenter Parkway King County Tax Parcel Identification No. "Legacy Property B. GRANT AND SCOPE OF EASEMENT 1. Grant of Easement to Leeacv. CHA grants and conveys to Legacy, its successors and assigns, for the benefit of the Legacy Property, a non exclusive easement for vehicular and pedestrian ingress and egress over, across, through and upon that portion of the CHA Property legally described below (the "Easement Area A sketch of the Easement Area is attached hereto as Exhibit A and incorporated herein by this reference. "Easement Area 2. Condition Precedent. This Agreement is conditioned upon and shall be effective only upon the termination or vacation of the 1979 Easement, which shall occur, if at all, on or prior to C. ADDITIONAL AGREEMENTS The parties additionally agree as follows: 1. Appearance. The parties agree that the Easement Area shall maintain a similar appearance in landscaping and otherwise to the CHA Property. The parties agree to cooperate with the selection of landscaping materials and otherwise to maintain this similar appearance to each other. 2. Maintenance. Repair and Replacement of Easement Improvements. CHA shall maintain and repair the Easement Area. CHA and Legacy shall each bear one half of the cost and expense of maintenance, repair and replacement of the Easement Area. Legacy shall pay CHA its share of costs and expenses within thirty (30) days of written request from CHA. Easement Page 3 of DWT 14817071v3 0088419 -077701 [INSERT LEGAL DESCRIPTION HERE] In the event that any improvement located within the Easement Areas is damaged by one of the parties, its .guests, agents, vendors and the like, then that party shall be responsible for the full repair costs to restore the Easement Area to the condition it was in prior to the damage occurring. 3. Condition of Easement Area. The easement granted herein is expressly subject to existing encumbrances, regulatory requirements, and other matters of record affecting the Easement Area. CHA does not warrant title to the Easement Area and shall not be liable for defects thereto or failure thereof. CHA makes no representation as to the present or future conditions of the Easement Area and its fitness for the use described in this Agreement. 4. Indemnification and Limitation of Liability. CHA and Legacy shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) (collectively "Losses arising from the indemnifying party's breach of any term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying party or its agents, employees or contractors in or about the Easement Area. The duties described in this Section 4 shall survive the termination of this Agreement. 5. Choice of Law: Venue. The Agreement shall be governed by the laws of the State of Washington. Any litigation or arbitration arising out of or in connection with this Agreement shall be conducted in King County, Washington. 6. Enforcement. In addition to any other remedy, either party shall have the right to obtain injunctive relief for any violation of the easements and covenants in this Agreement. The failure to enforce any of the easements or covenants shall not bar enforcement. The rights provided in this Agreement shall be in addition to any rights provided at law or equity. 7. Severability. The invalidation of any reservation, covenant, restriction, limitation or agreement herein contained shall in no way affect any of the other provisions hereof and the same shall remain in full force and effect. 8. Runs with the Land. This Agreement constitutes a covenant running with the land. The rights and obligations herein shall be binding upon and inure to the benefit of the respective owners, and their successors and assigns. 9. Attorneys' Fees. If any party brings a legal proceeding to enforce or obtain a declaration of its rights under this Agreement, including an action to recover monies due hereunder the prevailing party in such legal proceeding shall be entitled to recover its Easement Page 4 of DWT 14817071v3 0088419 -077701 actual attorneys' fees and costs from the nonprevailing party, whether incurred in arbitration, at trial or on appeal Dated this day of 2010. CHA SOUTHCENTER, LLC, a California LEGACY PARTNERS I TUKWILA, LLC, limited liability company a Delaware limited liability company By: By: Its: Its: STATE OF WASHINGTON COUNTY OF KING Easement Page 5 of DWT 14817071v3 0088414 077701 ss: On this day of 2010, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared to me known to be the of CHA SOUTHCENTER, LLC, a California limited liability company, which executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument. DATED: 2010. (Use this space for notarial stamp /seal) STATE OF WASHINGTON COUNTY OF KING Easement Page 6 of DWT 14817071v3 0088419 -077701 ss: Print Name: NOTARY PUBLIC in and for the State of Washington, residing at My Appointment expires: On this day of 2010, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared to me known to be the. respectively of LEGACY PARTNERS I TUKWILA, LLC, a Delaware limited liability company, a California limited liability company, the corporation that executed the foregoing instrument, and acknowledged that said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that authorized to execute the said instrument and that the seal affixed is the corporate seal of said corporation. DATED: 2010. (Use this space for notarial stamp /seal) Easement Page 7 of DWT 14817071v3 0088419 077701 Print Name: NOTARY PUBLIC in and for the State of Washington, residing at My Appointment expires: Easement Page 8 of DWr 14817071v3 0088419-077701 Exhibit A Sketch of Easement Area [Attached]