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HomeMy WebLinkAbout08-048 - Museum of Flight / King County - Pedestrian Bridge EasementReturn Address: Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101 Attention: Michael A. Barrett Document Title(s) (or transactions contained therein): I Pedestrian Bridge Easement Agreement 2. Reference Number(s) of Documents assigned or released: (on page of documents(s)) Grantor(s) (Last name first, then first name and initials): 1. Museum of Flight Foundation, a Washington non profit corporation 2. King County Museum of Flight Authority, a Washington public authority 3. City of Tukwila, a Washington municipal corporation 4. 0 Additional names on page of document. Grantee(s) (Last name first, then first name and initials): 1. King County, a Washington municipal corporation 2. The Public 3. 0 Additional names on page of document. Legal description (abbreviated: i.e. lot, block, plat or section, township, range) 0 Full legal is on Exhibit A of document. Assessor's Property Tax Parcel /Account Number 09901 -0001 /LEGAL 14102970.3 o8odb' FILE COPY 5/24/08 09901 -0001 /LEGAL 14102970.3 Oe A pprvoc4ki CcL.,,' PEDESTRIAN BRIDGE EASEMENT AGREEMENT 3 THIS PEDESTRIAN BRIDGE EASEMENT AGREEMENT (this "Easement Agreement dated and effective as of this day of 2008, is made by and among the MUSEUM OF FLIGHT FOUNDATION, a Washington non profit corporation (the "Museum the KING COUNTY MUSEUM OF FLIGHT AUTHORITY, a Washington public authority (the "Authority THE CITY OF TUKWILA (the "City a Washington municipal corporation, and KING COUNTY (the "County a Washington municipal corporation. RECITALS: A. The Authority owns certain real property located in the City of Tukwila, County of King, State of Washington, which is more fully described in the legal description attached hereto as Exhibit A (the "Property"). East Marginal Way South runs through the Property and is a major arterial in the City (the "Arterial B. The Authority has leased the Property to the Museum pursuant to that certain Lease Agreement between the Authority and the Museum dated April 30, 1986, as amended (the "Ground Lease for the purpose of developing, managing and operating the Museum of Flight, a first class air and space museum (the "MOF The original term of the Ground Lease is ninety -nine (99) years. The Ground Lease contains one (1) additional ninety -nine (99) year renewal option. The Ground Lease requires that the Authority approve in writing any material improvements to be made to the Property. C. The Museum desires to construct a pedestrian bridge over the Arterial that will provide improved pedestrian access to the MOF buildings on the Property, which are located on both sides of the Arterial, as well as provide improved access for the general public to cross the Arterial (the "Bridge The Museum also desires to construct additional improvements related to the Bridge, which shall be included in the definition of the "Bridge" for the purposes of this Agreement. The Authority granted the Museum permission to construct the Bridge on the Property and to negotiate such easements as may be necessary to access the Bridge and to operate, maintain, and repair the Bridge. D. The airspace over the portion of the Arterial in which the Museum intends to construct the Bridge is owned by the City. The Museum and the City have executed that certain Airspace Lease, pursuant to which the City has granted the Museum use of its airspace for the purpose of constructing and maintaining the Bridge (the "Airspace Lease The initial term of the Airspace Lease is fifteen (15) years. The Airspace Lease contains fifty (50) additional two -year renewal options. E. To construct the Bridge, the State of Washington, King County and private donors granted the Museum funds. The Museum also applied for Federal Transit -2- Administration funds through the County (the "FTA Funds In 2005, the County received the FTA Funds. The County and the Museum entered into that certain Museum of Flight Pedestrian Bridge and Other Transportation Facilities 2006 Funding Agreement dated December 29, 2006, in part, to memorialize the terms under which the County would administer and the Museum would use the FTA Funds (the "Funding Agreement F. The Funding Agreement requires, among other things, that the County maintain "satisfactory continuing control" of the Bridge for its useful life to ensure the right of access to and use by the public of all or a portion of the Bridge. In order to satisfy such requirement, the Museum, the Authority, and the City desire to grant to the County and the Public certain easements on, over and through their respective property interests in and to the Bridge. G. The Museum, the Authority, the City and the County (together, the "Parties now desire to enter into this Easement Agreement in order to more fully describe the terms and conditions under which the Museum, the Authority and the City will grant easements to the County for the use and, in the circumstances provided below, the operation, maintenance, repair and replacement of the Bridge, and to the Public for use of the Bridge. 1. Construction of the Bridge AGREEMENT: The Museum shall design and construct the Bridge in accordance with the Funding Agreement and the conceptual plan attached hereto as Exhibit B and all applicable laws, building permits and other approvals. A portion of the cost of designing and constructing the Bridge will be paid for in accordance with the Funding Agreement. 2. Grant of Easements from the Museum 2.1 County Easement The Museum hereby grants, conveys and quitclaims to the County, for its benefit and the benefit of its elected officials, employees, agents and contractors, a non- exclusive easement on, over and across (a) the Bridge and the portions of the Property on which the Bridge is located, (b) such limited portions of the Property immediately adjacent to the Bridge as may be necessary for use by the County in operating and maintaining, repairing and replacing the Bridge as provided below, and (c) the stairs, ramps, elevators, sidewalks and other paved pathways located on the Property that provide direct access to the Bridge from the public sidewalks that adjoin the Arterial; provided, however, that the easement area shall not include landscaped areas surrounding the portions of the Property on which the Bridge is located or portions of the Property not necessary for direct access to 09901 -0001 /LEGAL 14102970.3 3 the Bridge. The easement granted by this Section 2.1 shall be for the purpose of providing access to and egress from the Bridge and for the purpose of maintaining, repairing and replacing the Bridge as necessary, as provided below. 2.2 Public Easement The Museum hereby grants, conveys and quitclaims to the Public, a non- exclusive easement on, over and across (a) the Bridge and the portions of the Property on which the Bridge is located and (b) the stairs, ramps, elevators, sidewalks and other paved pathways located on the Property that provide direct access to the Bridge from the public sidewalks that adjoin the Arterial; provided, however, that the easement area shall not include landscaped areas surrounding the portions of the Property on which the Bridge is located or portions of the Property not necessary for direct access to the Bridge. The easement granted by this Section 2.2 shall be for the purpose of providing pedestrian access to and egress from and over the Bridge so that the Public may cross the Arterial. The right to use such easement shall be limited to the hours of MOF operation. 3. Grant of Easements from the Authority 3.1 County Easement The Authority hereby grants, conveys and quitclaims to the County, for its benefit and the benefit of its elected officials, employees, agents and contractors, a non- exclusive easement on, over and across the portions of the Property (a) on which the Bridge is located, (b) such limited portions of the Property immediately adjacent to the Bridge as may be necessary for use by the County in operating and maintaining, repairing and replacing the Bridge as provided below and (c) the stairs, ramps, elevators, sidewalks and other paved pathways located on the Property that provide direct access to the Bridge from the public sidewalks that adjoin the Arterial; provided, however, that the easement area shall not include landscaped areas surrounding the portions of the Property on which the Bridge is located or portions of the Property not necessary for direct access to the Bridge. The easement granted by this Section 3.1 shall be for the purpose of providing access to and egress from the Bridge and for the purpose of maintaining, repairing and replacing the Bridge as necessary, as provided below. 3.2 Public Easement The Authority hereby grants, conveys and quitclaims to the Public, a non- exclusive easement on, over and across (a) the portions of the Property on which the Bridge is located and (b) the stairs, ramps, elevators, sidewalks and other paved pathways located on the Property that provide direct access to the Bridge from the public sidewalks that adjoin the Arterial; provided, however, that the easement area shall not include landscaped areas surrounding the portions of the Property on which the Bridge is located 09901 -0001 /LEGAL 14102970.3 -4- or portions of the Property not necessary for direct access to the Bridge. The easement granted by this Section 3.2 shall be for the purpose of providing pedestrian access to and egress from the Bridge so that the Public may cross the Arterial. The right to use such easement shall be limited to the hours of MOF operation. 4. Grant of Easements from the City 4.1 County Easement The City hereby grants, conveys and quitclaims to the County, for its benefit and the benefit of its elected officials, employees, agents and contractors, a non- exclusive easement (a) in and through the portion of the airspace above the Arterial in which the Bridge is located and (b) on, over and across such limited portions of the Arterial immediately below and adjacent to the Bridge as may be necessary for use by the County in maintaining, repairing and replacing the Bridge as provided below. The easement granted by this Section 4.1 shall be for the purpose of providing access to and across and egress from the Bridge and for the purpose of maintaining, repairing and replacing the Bridge as necessary, as provided below. 4.2 Public Easement The City hereby grants, conveys and quitclaims to the Public, a non- exclusive easement in and through the portion of the airspace above the Arterial in which the Bridge is located. The easement granted by this Section 4.2 shall be for the purpose of providing pedestrian access to and across and egress from the Bridge so that the public may cross the Arterial. The right to use such easement shall be limited to the hours of MOF operation. 5. Term The easements granted in Sections 2, 3 and 4 above shall collectively be referred to herein as the "Easements." The Easements shall become effective on the date that the Museum completes construction of the Bridge and opens the Bridge to the general public, and shall remain in effect until the last day of the initial term of the Airspace Lease (the "Term 6. Extent of Easements Granted Each of the Easements is granted to the full extent of the interest held by the grantor in and to the real property affected by such Easement, whether a fee, leasehold or other interest, at the time that this Easement Agreement is executed. 09901 -0001 /LEGAL 14102970.3 -5 7. Relation of Easements to Ground Lease and Airspace Lease The Easements granted to the County and the Public herein are in addition to the rights in the property affected thereby that have been granted to the Museum under the Ground Lease and the Airspace Lease. If and to the extent the grant of such Easements are in conflict with any terms of either the Ground Lease or the Airspace Lease giving the Museum exclusive possession and control of the property demised by the Ground Lease or the Airspace Lease, all such conflicts are hereby waived by the Museum and the Museum, solely to the extent necessary to eliminate such conflicts, hereby relinquishes the exclusivity of the possession and control granted to it under the Ground Lease and the Airspace Lease. 8. Exercise of Rights under Easements The County shall only exercise its rights under the Easements granted to it hereunder as provided in Section 9.2 below and, in such event, the County shall only exercise such rights for the purposes stated herein and not for any other purpose or over any other parts of the Property. The Public shall only exercise its rights under the Easements granted to it hereunder for the purposes stated herein and not for any other purpose or over any other parts of the Property. The Parties shall at all times exercise all rights granted hereunder in accordance with all applicable laws and in compliance with, to the extent applicable, the Airspace Lease, the Ground Lease, and the Funding Agreement. The Museum may adopt reasonable rules and regulations from time to time governing the use of the Bridge, which the County and the Public shall observe. 9. Maintenance of the Bridge 9.1 Maintenance Obligations of the Museum The Museum shall operate and maintain the Bridge as required by the Airspace Lease, the Ground Lease, and the Funding Agreement. The costs of operating and maintaining the Bridge shall by the Museum, as provided in the Funding Agreement. 9.2 County Authority to Maintain Bridge If the Museum defaults in the performance of its obligations to operate and maintain the Bridge according to the Funding Agreement, and in order that the County may maintain satisfactory continuing control of the Bridge for its Useful Life to ensure the right of access to and use by the Public of all or a portion of the Bridge, the County shall have the right, upon prior notice to the Museum and a reasonable opportunity for the Museum to cure such default, to perform such obligations and, in connection therewith, to exercise the Easements granted to it herein. 09901 -0001 /LEGAL 14102970.3 6 10. Other Compatible Uses. Each of the Parties granting an Easement to the County and the Public hereunder reserves the right to continue the current uses of its respective property interests and to commence new uses to the extent that such uses are compatible with the full enjoyment of the Easements and rights granted to the County and the Public herein. No fences or barriers of any kind shall be constructed or placed in the Easement areas, except as may be reasonably necessary to guide and control pedestrian traffic during non -use hours and during periods of maintenance and repair. 11. Liens If the County exercises its rights under Section 9.2 above, it shall, as between itself, on one hand, and the Museum, the Authority and the City, on the other hand, pay all costs and expenses it incurs for services, labor and material so as to prevent the imposition of liens against any property or interests of the Museum, the Authority or the City and any liens imposed against any property or interests of the Museum, the Authority or the City by reason of the acts or omissions of the County shall be promptly paid and discharged of record by the County. Nothing in this Section 11 shall modify or limit the rights of the County against the Museum under the Funding Agreement in the event the County exercises its rights under Section 9.2 above by reason of a default by the Museum. 12. Indemnification by the County To the fullest extent permitted by law, the County shall indemnify, defend and hold the other Parties, and their officers, directors, agents and employees, harmless from and against any and all losses, costs, claims, suits, liabilities, causes of action and expenses of any kind or nature (including reasonable attorneys' fees) arising out of, related to, or incurred by reason of the exercise of rights or the performance of obligations under this Easement Agreement by the County or its elected officials, employees, agents or contractors. The County's obligations under this Section 12 shall not include losses, costs, claims, suits, liabilities, causes of action and expenses to the extent arising from the negligence or willful misconduct of any of the other Parties. Nothing in this Section 12 shall modify or limit any indemnity obligations of the Museum to the County or the other Parties under the Ground Lease, the Airspace Lease or the Funding Agreement. 13. Amendment This Easement Agreement may not be modified, amended or terminated except by a written instrument signed by each of the Parties. 09901 -0001 /LEGAL 14102970.3 7 14. Notices All notices given under this Easement Agreement "Notices shall be in writing and sent by UPS, Federal Express or other reputable overnight courier service, personally delivered or mailed registered or certified mail, return receipt requested, to the following addresses: 09901 -0001 /LEGAL 14102970.3 If to the Museum: Museum of Flight Foundation 9404 East Marginal Way South Seattle, WA 98101 Atten.: President and CEO If to the Authority: King County Museum of Flight Authority 9040 East Marginal Way South Seattle, WA 98108 Atten.: President If to the City: City of Tukwila 6200 Southcenter Blvd. Tukwila, WA 98188 Atten.: ?11b 600e,ccr. CAN-Ni 6 i y 'c If to the County: Department of Transportation KSC -TR -0815 King Street Center 201 S. Jackson Street Seattle, WA 98104 -38565 Atten.: Director and: Community and Human Services Exchange Building, Suite 500 821 2nd Avenue Seattle, WA 98104 Atten.: Director Notices shall be deemed given upon receipt or refusal of delivery at such address. 15. Governing Law This Easement Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 8 16. Attorneys' Fees The Parties contemplate that they will resolve voluntarily any disputes that may arise under this Easement Agreement. However, if any arbitration, suit or other proceeding is instituted by one of the Parties arising out of or pertaining to this Easement Agreement, the substantially prevailing party as determined by the arbitrator or court shall be entitled to recover its reasonable attorneys' fees and all costs and expenses incurred relative to such suit from the substantially nonprevailing Party or Parties, as the case may be. 17. Entire Agreement There are no written, verbal or other agreements which modify or affect this Easement Agreement, which constitutes the full and complete understanding of the parties with respect to the subject matter hereof. 18. Counterparts This Easement Agreement may be executed in counterparts, all of which together shall be deemed to be one original. 19. Successors The rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors and assigns. 20. Easements Run With the Land The Easements and other provisions of this Easement Agreement shall run with the land or respective property interest of the Parties, as the case may be, and shall bind, be obligatory upon and benefit the Parties named herein. 21. No Public Dedication Nothing herein contained shall be deemed to be a gift or dedication of any portion of the property interests which are affected by this Easement Agreement to or for the general public or for any public purpose whatsoever except as specified herein. 22. No Joint Venture Nothing contained in this Easement Agreement shall create any partnership, joint ventures or other joint or equity -type agreement between or among the Parties. 09901 -0001 /LEGAL 14102970.3 9 23. Severability In the event any term, covenant, condition or provision contained in this Easement Agreement is held to be invalid, void or otherwise unenforceable, by any court of competent jurisdiction, such holding shall in no way affect the validity or enforceability of any other term, covenant, condition or provision contained herein. 24. Recording When the construction of the Bridge is completed, the Parties shall execute and record an amendment to this Easement Agreement to describe the actual location of the Bridge and the Museum shall cause such amendment to be recorded in the official Records of King County, Washington. Such amendment shall also recite the actual date upon which the Bridge will be or was opened to the public. 09901 -0001 /LEGAL 1 4102970.3 [Signatures on Following Pages] 10- The Parties have executed this Easement Agreement as of the date first above written. STATE OF WASHINGTON ss. COUNTY OF K On this 7 day of c.-/ as 2008, before me, the undersigned, a the Public in and for h e State of hington, duly commissioned and sworn, personally appeared-., to me known to be the person who signed as d G 0 of the MUSEUM OF FLIGHT FOUNDATION, the non profit corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said non profit corporation for the uses and purposes therein mentioned, and on oath stated that 5L was duly elected, qualified and acting as said officer of the non profit corporation, that was authorized to execute said instrument on behalf of said non profit corporation. IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written. 09901 -0001 /LEGAL14102970.3 Museum: MUSEUM OF FLIGHT FOUNDATION, a Washington non profit corporation By: rrw rr— Name: le k t 31 ukh Title: PH sf efe.44 r r.,w,( /-6 (Signature of Notary) C�. ,��a ►-cL l6 C e_Dczcc, fie. (Print or stamp name of Notary) NOTARY PUBLIC in and for the State of Washington, residing at My appointment expires: t— STATE OF WASHINGTON 09901 -0001 /LEGAL 14102970.3 ss. 1 .sio►v t t Fto oNO 0 UBUC c c O F WASY;‘‘Iiii Authority: KING COUNTY AUTHORITY, a By: N Ti COUNTY OF On this ,2-v? day of It 2008, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared c r CC."' to me known to be the person who signed as Cl rte- of the KING COUNTY MUSEUM OF FLIGHT AUTHORITY, the public authority that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said public authority for the uses and purposes therein mentioned, and on oath stated that H6 e_ was duly elected, qualified and acting as said officer of the public authority, that was authorized to execute said instrument on behalf of said public authority. IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written. 12 OF FLIGHT public authorit, (Signature of Notary) (Print or stamp name of Notary) NOTARY PUBLIC in and for the State of Washington, residing at, C.0 My appointment expires: l o o c 4 eV) STATE OF WASHINGTON COUNTY OF C� 09901 -0001 /LEGAL 14102970.3 ss. City: CITY OF TUKWILA, a Washington municipal corporation On this 4 da of J u N Q 2008, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared tNr 1 actc p r`tian) to me known to be the person who signed as t r of the CITY OF TUKWILA, the municipal corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said m cipal corporation for the uses and purposes therein mentioned, and on oath stated that was duly elected, qualified and acting as said officer of the municipal corporation, that kQ was authorized to execute said instrument on behalf of said municipal corporation. IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written. 13 CiFietlAD (Signature of rotary) (Print or stamp name of Notary) NOTARY PUBLIC in and for the State of Washington, residing at S t rnnl r My appointment expires: R -c la STATE OF WASHINGTON ss. COUNTY OF 09901 -0001 /LEGAL 14102970.3 County: KING COUNTY, a Washington municipal corporation By: Name: Title: On this day of 2008, 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 person who signed as of the KING COUNTY, the municipal corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation for the uses and purposes therein mentioned, and on oath stated that was duly elected, qualified and acting as said officer of the municipal corporation, that was authorized to execute said instrument on behalf of said municipal corporation. IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written. 14- (Signature of Notary) (Print or stamp name of Notary) NOTARY PUBLIC in and for the State of Washington, residing at My appointment expires: Exhibit A Legal Description of the Property Parcel No. 5624201034 Legal Description: MOORES FIVE ACRE TRS "REVISED LOT A" TUKWILA BOUNDARY LINE ADJUSTMENT NO BLA- 01- 002REC NO20010803900001 AFFIDAVIT OF CORRECTION REC NO. 20020215001703 WCH IS POR OF SE 1/4 OF SW 1/4 AND POR OF SW 1/4 OF SE 1/4 STR 33 -24 -04 Parcel No. 3324049019 Legal Description: THAT POR OF THE SE QTR OF SEC 33 TWP 24 N RNG 4 E WM IN KING COUNTY WA DESCRIBED AS FOLLOWS COMMENCING AT THE SE COR OF SD SUBD TH N 88 -04 -53 W A DIST OF 1314.13 FT ALG S LN THOF TO NELY MGN OF E MARGINAL WY S AND POB TH ALG SD MGN N 88 -04 -53 W A DIST OF 37.35 FT TH CONT ALG SD MGN N 22 -31 -55 W A DIST OF 997.62 FT TH DEPARTING SD MGN S 87 -49 -39 E A DIST OF 77.07 FT TH N 22 -49 -02 W A DIST OF 23.50 FT TH S 87 -49 -39 E A DIST OF 89.83 FT TH S 02 -11 -39 W A DIST OF 42.19 FT TH S 88 -43 -46 E A DIST OF 290.49 FT TH S- 28 -43 -46 E A DIST OF 89.25 FT TH S 88 -18 -47 E A DIST OF 164.78 FT TO A LN THAT IS 500 FT FR AND PLW C/L RUNWAY 13R -31L TH ALG SD LN S 28 -43 -34 E A DIST OF 658.80 FT TH S 67 -28 -05 W DIST OF 596.64 FT TO POB PER CITY OF TUK BLA NO L 02 -058 REC #20030115900002. 09901 -0001 /LEGAL 14102970.3 15 09901-0001/LEGAL14102970.3 Exhibit B Conceptual Plan a ei PEDESTRW4 BRIDGE 4 )11 =WO or Mort Tobias. 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