Loading...
HomeMy WebLinkAbout1998 - Storm Sewer Easement and Maintenance Allocation Agreement - CSM Lodging / Tukwila Station - 9806041802• t THIS INSTRUMENT DRAFTED BY AND UPON RECORDING OF THIS INSTRUMENT PLEASE RETURN TO: David J. Yung Attorney at Law 2575 University Avenue West Suite 150 St. Paul, MN 55114 RECITALS STORM SEWER EASEMENT AND MAINTENANCE ALLOCATION AGREEMENT THIS STORM SEWER EASEMENT AND MAINTENANCE ALLOCATION AGREEMENT ( "Agreement ") is made effective as of this 20 f day of a , 1998, by and between CSM LODGING, L.L.C., a Delaware limited liability dompany (herein, "Grantor" or "CSM ") and TUKWILA STATION, L.L.C., a Washington limited liability company (herein, "Grantee" or "TSLLC "). FIRST: Grantor is the fee owner of the real property located in the City of Tukwila, King County, Washington which is legally described in EXHIBIT A attached hereto and incorporated herein by reference (the "CSM Parcel "); SECOND: Grantee is the fee owner of the real property located in the City of Tukwila, King County, Washington, which is legally described in EXHIBIT B attached hereto and incorporated herein by reference (the "TSLLC Parcel "); THIRD: Grantor and Grantee are or will be the grantees and benefitted parties under the following easement agreements: (i) STORM SEWER EASEMENT AGREEMENT between the Estate of Helen B. Nelsen, as grantor, and CSM and TSLLC, as co- grantee, (ii) STORM SEWER EASEMENT 9806041802 AGREEMENT between KOAR - SEATAC PARTNERS, L.P., as grantor and CSM and TSLLC, as co- grantee, and (iii) AGREEMENT AND EASEMENT FOR STORM SEWER (the "PSE Easement ") between PUGET SOUND ENERGY, INC. ( "PSE "), as grantor, and CSM and TSLLC, as co- grantee (collectively, the "Easement Agreements "). The storm sewer easement area granted to Grantor and Grantee pursuant to the Easement Agreements is depicted in EXHIBIT C attached hereto, legally described in EXHIBIT C -1 attached hereto and is referred to herein as the "Adjacent Easement Area ". The storm sewer lines and system installed or to be installed within the Adjacent Easement Area are collectively referred to herein as the "Adjacent Storm Sewer Lines ". 4i FOURTH: Grantor and Grantee desire to (i) establish an easement for underground storm sewer purposes under and across the CSM Parcel for the benefit of the TSLLC Parcel, and (ii) allocate among Grantor and Grantee, and their respective successors and assigns, (a) responsibility for performing and paying for the installation, operation, maintenance and repair of the Storm Sewer System (defined herein), and (b) the consideration payable to PSE for PSE Easement, all upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by Grantor and Grantee, the parties hereby agree as follows: AGREEMENT 1. Easement Parcel. Grantor, for itself, its successors and assigns, does hereby grant, convey and quit claim unto Grantee, its successors and assigns, a perpetual, non - exclusive, appurtenant easement (the "Easement ") for the installation, operation, maintenance, repair and replacement of an underground storm sewer line (the "Storm Sewer Line ") under and across that part of the CSM Parcel in approximately the location depicted EXHIBIT D attached hereto and incorporated herein by reference and legally described in EXHIBIT D -1 attached hereto and incorporated herein by reference (the "Easement Parcel "). Except for the rights expressly granted herein to Grantee, there is hereby reserved unto Grantor, its successors and assigns as owner of the CSM Parcel (i) the right to grant additional easements over and under the Easement Parcel to third parties, including but not limited to similar utility easements, provided that such easements do not interfere with Grantee's use of the Easement Parcel, (ii) the right to connect to or tap into and utilize the Storm Sewer Line for storm water drainage from the CSM Parcel, and (iii) all rights in and to the surface and subsurface area of the Easement Parcel, including without limitation, use of the surface and subsurface area of the Easement Parcel for installation of curbing, parking areas, drive aisles and landscaping, and any other uses and purposes of any nature whatsoever that do not materially interfere with Grantee's usage of the Easement Parcel. 2. Scope and Use of Easement Parcel. Grantor and Grantee acknowledge and agree that the sole purpose of the Easement shall be to provide Grantee, its agents, employees and contractors (collectively, "Authorized Users ") with the right to install, operate, maintain, repair, and replace an eighteen inch (18 ") underground storm sewer line within the Easement Parcel ( "Permitted Use "). The Easement Parcel shall not be utilized by Grantee or its Authorized Users for any other purpose other than the Permitted Use, except with the prior written consent of Grantor given in its sole and absolute discretion. Except as may be reasonably necessary to perform installation, construction, maintenance or repair work within the Easement Parcel, Grantee and its Authorized Users shall be not drive semi - trailers, straight trucks, or construction vehicles, equipment or machinery on or over the CSM Parcel, and storage of any such trucks, vehicles or machinery on or within the CSM Parcel is expressly prohibited. Grantee further agrees not to erect, install or maintain any barriers, fences, curbs, walls, ditches, barricades or other surface improvements, structures or obstacles on or anywhere within the Easement Parcel or the CSM Parcel. Grantee shall give Grantor not less than forty-eight (48) hours prior written notice prior to entry upon the CSM Parcel for any Permitted Use hereunder. 2 Grantee agrees to repair, replace and restore any damage or disturbance of any curbing, paving, landscaping, signs, utility lines or other property or improvements now or hereafter located on or under the CSM Parcel to the extent caused by Grantee or its Authorized Users during any installation, maintenance, repair, replacement, or removal of the Storm Sewer Line, to substantially the same condition as existed immediately prior to such work. All work performed by or through Grantee on the CSM Parcel shall be performed expeditiously and in a first class manner. 3. Installation, Maintenance and Repair of Storm Sewer Line and Adjacent Storm Sewer Lines. a. Installation. Grantee shall be responsible for initial installation of the Storm Sewer Line and Adjacent Storm Sewer Lines (collectively, the "Storm Sewer System ") within the Easement Parcel and Adjacent Easement Area. Upon consummation of the Easement Agreements and full execution of this Agreement, Grantee shall proceed with reasonable due diligence to install the Storm Sewer System in accordance with plans and specifications agreed upon between the parties. Upon completion of installation of the Storm Sewer System and restoration of the surrounding area by Grantee, Grantor shall reimburse Grantee for one -half (1/2) of the costs incurred by Grantee in performing such installation work, provided that Grantee delivers reasonably satisfactory evidence to Grantor substantiating costs incurred by Grantee for such work. b. Operation, Maintenance, Repair and Replacement. After initial installation of the Storm Sewer System and restoration of the surrounding area by Grantee, all operation, maintenance, repair and replacement of the Storm Sewer System shall be performed by Grantor, provided, however, that Grantee shall reimburse Grantor for one half (1/2) of the costs of any such work, payable promptly upon Grantor's completion of any such work and delivery to Grantee of reasonably satisfactory evidence substantiating costs incurred by Grantor for such work. 4. Allocation of PSE Costs. Grantor and Grantee agree that any consideration or costs payable to PSE for or pursuant to the PSE Easement shall be divided equally (50/50) between the parties, and if one of the parties pays PSE in full, then the other party shall promptly remit its share of such costs to the paying party upon receipt of written demand for payment. Notwithstanding the foregoing, each party shall be responsible for any costs arising from its own actions or omissions. 5. Nature of Easement. The Easement created herein shall be appurtenant to the TSLLC Parcel, and any conveyance of fee title to the TSLLC Parcel; or any part thereof, shall be deemed to include a conveyance of the Easement appurtenant to and for the benefit of the TSLLC Parcel, regardless of whether the Easement is specifically identified in the instrument of conveyance. The covenants and obligations of the parties set forth in this Agreement shall benefit and burden both the TSLLC Parcel and the CSM Parcel and shall run with the land and shall be perpetual in duration. Nothing contained herein shall constitute a dedication of any interest in the Easement Parcel or the CSM Parcel to the general public or for the general public's use. 6. Self -Help Remedies. If either party shall default with respect to any of its obligations set forth herein (including but not limited to its installation or maintenance obligations) and shall fail within fifteen (15) days after receipt of written notice from the non - defaulting party to cure such default, then the nondefaulting party shall have the right, at its election, but not the obligation, and in addition to such other rights and remedies as may be available at law or in equity, to cure such default for the account of the defaulting party, and shall be reimbursed by the defaulting party for the reasonable costs and expenses so incurred within ten (10) days of receipt of written demand for 3 payment from the non - defaulting party, together with reasonable documentation substantiating such costs and expenses. The fifteen (15) day cure period shall be extended in cases where the default cannot be cured within fifteen (15) days but can be cured during a longer time, so long as the defaulting party commenced cure within the initial fifteen (15) day period and is diligently pursuing such cure. In the event of an emergency, no prior notice shall be required to be given by the nondefaulting party prior to exercising its remedies hereunder so long as the nondefaulting party provides written notice of such emergency to the defaulting party promptly upon completion of cure. 7. Indemnification and Hold Harmless. Grantee, on behalf of itself, its respective heirs, administrators, legal representatives, successors, devisees and assigns in title to the TSLLC Parcel, and its Authorized Users, hereby agrees to indemnify, defend and hold harmless Grantor, its officers, directors, shareholders, members, managers, employees, agents, successors and assigns, and any holder of a mortgagee or deed of trust now or hereafter of record against the CSM Parcel, from and against any and all damages, liability, fees, penalties, costs and claims, including without limitation, those for personal injury, wrongful death or property damage (collectively, "Liabilities ") asserted against or incurred by the owner of the CSM Parcel arising out of or related to the actions or omissions of Grantee or its Authorized Users on or about the CSM Parcel. Grantee shall not permit and shall promptly discharge of record any claim, lien or other encumbrance filed against the Easement Parcel or the CSM Parcel that arises from use of the Easement Parcel or work performed on the CSM Parcel by or through Grantee or its Authorized Users. 8. Insurance. At all times during entry upon the CSM Parcel, Grantee shall keep and maintain in full force and effect a policy of commercial general liability insurance for at least one million dollars ($1,000,000) written on an occurrence basis insuring Grantee, and naming Grantor and any designated management agent or holder of a mortgage or deed of trust against the CSM Parcel as additional insureds, to cover all claims for death, personal injury and property damage and the cost of defending the same arising out of the actions or omissions of Grantee or its Authorized Users on or within the Easement Parcel and the CSM Parcel. Prior to commencing installation of the Storm Sewer Line, and thereafter upon request of Grantor, Grantee shall provide Grantor with a copy of said policy or certificate(s) evidencing such insurance coverage. 9. Arbitration. All disputes concerning this Agreement shall be resolved by binding arbitration under the Rules of the American Arbitration Association. In any such action or proceeding brought to enforce any of the terms of this Agreement, including the indemnification terms, the prevailing party shall be entitled to an award of its costs and disbursements, including reasonable attorneys' fees and costs. 10. Notices. All notices and demands given or required to be given by either party hereto to the other party, shall be deemed to have been properly given if and when delivered in person, sent by facsimile (with verification of receipt), or one (1) business day after having been deposited for overnight delivery with a reputable commercial courier, addressed as follows (or sent to such other address as either party shall specify to the other party pursuant to the provisions of this Section): TO GRANTOR: CSM LODGING, L.L.C. ATTN: Director of Property Management 2575 UNIVERSITY AVE. W., #150 TO GRANTEE: TUKWILA STATION, L.L.C. ATTN: Evan Zefkeles 600 WEST LAKE NORTH ST. PAUL, MN 55114 -1024 PHONE: 612/646 -1717 FAX: 612/646 -2404 CAROLYN McCUNE NOTARY PUBLIC:- MINNESOTA My Comm. Expires Jan. 31, 2000 c:1wpS 1 \agrceltukwila2.eas tary Publ tary Public The foregoing instrument was acknowledged before me this 20 ( day of /day 1998, by /Lf`rrai goe the i/ite. ?WSJ of CSM Properties, Inc, a Minnesota corporation, the Manager of CSM Lodging, L.L.C., a Delaware limited liability company, on behalf of the corporation. The foregoin instrument was acknowledged before me this ) ? day of MA-7 1998, by / n, S Y! . Z e Fle e / ei the i1fc� >, .;Ns them b f Tukwila Station, L.L.C:; a Washington limited liability company, on aehalf of the company. 44 BURC,,). f s ' NOTARY N : L • — *— N ' PUBLIC of 2 . J► '. p o ° 0 � • l i7j 1. 9• Z t ♦♦♦ • .• Op WAs � p I' The undersigned, TOSCO MARKETING COMPANY, a division of TOSCO CORPORATION, a Nevada corporation, the Beneficiary under that certain DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING dated November 24, 1997 (Recording No. 9712110617), which was executed by TUKWILA STATION, L.L.C., a Washington limited liability company as Grantor, and encumbers the TSLLC Parcel described in the foregoing Storm Sewer Easement Agreement, does hereby join in the execution of the foregoing Storm Sewer Easement Agreement for the purpose of evidencing its consent thereto and recognizing that its interest in the TSLLC Parcel is subject to the covenants, terms and conditions created therein. STATE OF OJR COUNTY OF k4 ij G-i CONSENT OF BENEFICIARY "BENEFICIARY" TOSCO MARKETING COMPANY, a division of TOSCO CORPORATION By: Its: 1)12. PAoFiT rE4.1 The foregoing instrument was acknowledged before me this 5 day of , 1998, by •Jrrvv Hu51-1g60t. , the (IK. PeOPir of TOSCO TING COMPANY, a division of TOSCO CORPORATION, a Nevada corporation, on behalf of the corporation. 7 `iitati■-■ No Public The undersigned, WASHINGTON MUTUAL BANK, a Washington corporation, d/b /a Enterprise Bank, the Beneficiary under that certain DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING dated October 30, 1996 (Recording No. 9611010435), and that certain DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING dated October 30, 1996 (Recording No. 9611010437), each of which was executed by TUKWILA STATION, L.L.C., a Washington limited liability company as Grantor, and encumbers the TSLLC Parcel described in the foregoing Storm Sewer Easement Agreement, does hereby join in the execution of the foregoing Storm Sewer Easement Agreement for the purpose of evidencing its consent thereto and recognizing that its interest in the TSLLC Parcel is subject to covenants, terms and conditions created therein. STATE OF OAS ti r \lc Gn COUNTY OF k CONSENT OF BENEFICIARY )ss. sselm,,� b t , S Ar eu • L . p NOTARY ,9N • • #— i .. = s PUBLIC c ? _ %v.:04R 9.1.' ••q Op WAso to. "BENEFICIARY" WASHINGTON .L AL BANK By: Its: t• The foroing trument was acknowledged before i e this I'1 �f h day of YYI'- , 1998, by rGoldL. b e - , the (Alec PresieJC. -r7 of WASHINGTON MUTUAL BANK, a Washington corporation, on behalf of the corporation. tary Public i z EXHIBIT A • LEGAL DESCRIPTION OF CSM PARCEL T hat portion of the Donation Land Claim of the Heirs at Law of Henry Meader, Deceased, Designated as Claim No 46, being parts of Sections 24 and 25 in Township 23 North, Range 4 East '. 'W.M., Lying Easterly of the Easterly Margin of State Road No. 181 as conveyed under Deed recorded under Recording No 984951 and as widened by Superior Court Cause No 592029; lying Westerly of the Puget Sound Electric Railway Right -of -Way; Lying Northerly, of the City of Seattle Bow Lake Pipeline as conveyed by Deed recorded under Recording No. 4151067; and lying Southerly of a line 446.38 feet South and parallel, when measured at right angles to the South line of. South 158th Street (Also known as a portion of Boundary Line Adjustment No 88 -4 -BLA recorded under Recording No.. 8809301116); Situate iri the. City of Tukwila, County of King, State of. Washington. EXHIBIT B LEGAL DESCRIPTION OF TSLLC PARCEL That portion of Government Lots 2 and 11 of Henry Meader Donation Land Claim No. 46, all in Section 25, Township 23 North, Range 4 East, W.M., in King County, Washington, described as follows: Beginning at the intersection of the centerline of the West Valley Highway also known as State Road No. 181, with the North line of the South 210 feet of said Government Lot 11, and its Westerly prolongation; thence South 87 degrees 47 minutes 19 seconds East along said North line 40.76 feet to the East margin of said Highway and the point of beginning; thence North 8 degrees 51 minutes 30 seconds West along said Easterly Highway Margin 808.08 feet to the South line of the City of Seattle's Bow Lake Pipeline Right of Way; thence South 87 degrees 13 minutes 12 seconds East along said. South Right of Way line 273.28 feet to the Westerly line of. a 100 foot Right of Way conveyed to Puget Sound Power & Light Company by Deeds recorded under Recording Numbers 2629432 and 2644020, formally known as Puget Sound Electric Railway Right of Way; thence South 1 degree 13 minutes 24 minutes East along said Westerly Right of Way line 791.76 feet to the North l ine of the South 210 feet of said Government Lot 11; thence North 87 degrees 47 minutes 19 seconds West along said North line 165.55 feet to the point of beginning; Except that portion lying South of a line parallel with and distance of 5 feet North, . measured at right angles from the following described line: Beginning at the point of intersection of the South line of the Henry Meader Donation Claim No. 46 and the Centerline of West Valley Highway, also known as State Road No. 181; thence North 8 degrees 52 minutes 29 seconds West a distance of 48.98 feet d. along said Highway Centerline; thence South 85 degrees 30 minutes 26 seconds East 41.14 feet to CD (.0 the Easterly Margin of said Highway and true point of beginning of this described line; thence O continuing South 85 degrees 30 minutes 26 seconds East 227.79 feet, more or less, to the Westerly Margin of said Puget Sound Electric Railway Right of Way and the terminus of this described line. (NOTE: The above described real property has been platted as "Lots 1 and 2 of Short Plat Number L97- 0053" recorded on April 21, 1998 as Recorders Certificate Number 9804219002) ® 41 W ! EsIe" rtot ~) • . ;' A f 01io 61-11 et R r r 4 /r - ae •. ■ /Bf; le • eh r a go • s 158TH 57 • II e MUMS DEPICTION OF ADJACENT EASEMENT AREA • do" 1 I I r ,� . 1 1� • 1 W 1 • C.5 M t oTEL -- :5 114 a . :IS' I? , f cnf 4.5"11 /•;ss'r✓ 1 1 0 45' amen eAceaseebvf • • V1 Z0. A • h • /o aas� • • • u u a z. 0 -' Z d a: El u) J yT 0. • 0 4 EXHIBIT C -i LEGAL DESCRIPTION OF ADJACENT EASEMENT AREA (Page 1 of 2) The Easterly 15.00 feet of the South 100.00 feet and the East 10.00 feet less the South 100.00 feet of the following described property: That portion of Henry Meader Donation Claim No. 46 in the Southeast Quarter of the Southwest Quarter of Section 24, Township 23 North, Range 4 East, W.M., in King County, Washington, described as follows: Commencing on the 2M line survey of Primary State Highway No. 1 Green River Interchange at Highway Engineer's Station 2 -M 149 +25.97 P.O.T. "Y" 0 +00; thence North 87 degrees 07 minutes 32 seconds East along said "Y" line 418.74 feet to an intersection with the Westerly margin of the Puget Sound Electric Railway right of way; Thence Southerly along said Westerly right of way margin to a point 20 feet South of measured at right angles to the Easterly production of the above described "Y" line; Thence North 87 degrees 08 minutes 04 seconds East 100.00 feet to the Easterly margin of said Puget Sound Electric Railway right of way and the true point of beginning; Thence continuing North 87 degrees 08 minutes 04 seconds East 124.74 feet to the Westerly margin of the Chicago, Milwaukee, St. Paul Railroad right of way; Thence South 03 degrees 40 minutes 04 seconds West along said Westerly right of way margin 327.11 feet; Thence South 87 degrees 08 minutes 04 seconds West 95.59 feet to the Easterly margin of said Puget Sound Electric Railway right of way; Thence North 01 degrees 26 minutes 34 seconds West along said Easterly right of way margin 325.10 feet to the true point of beginning. Embassy Suites Property Tax Lot 31 AND A strip of land ten (10) feet in width over that portion of Puget Sound Energy's (formerly Puget Sound Power & Light Company) Right of Way (formerly known as Puget Sound • Electric Railway Right of Way) located in the Henry Meader Donation Claim No. 46 in Section 25, Township 23 North, Range 4 East, W.M. King County, Washington, described as follows: Commencing at the intersection of the Northerly line of the Seattle Bow Lake Pipeline Right of Way with the Westerly margin of said Puget Sound Energy Right of Way; thence North 01° 22' 22" West a distance of 25.00 feet to the True Point of Beginning; thence South 87° 11' 44" East a distance of 100 feet more or less to the Easterly margin of said Puget Sound Energy Right of Way; thence Northerly along said Easterly margin a distance of 10.03 feet; thence North 87° 11' 44" West a distance of 100 feet more or less to the Westerly margin of said Puget Sound Energy Right of Way; thence South 01° 22' 22" East a distance 10.03 feet to the True Point of Beginning. Puget Sound Energy Property Tax Lot 8 AND Nelson's Property Tax Lot 12 EXHIBIT C -1 LEGAL DESCRIPTION OF ADJACENT EASEMENT AREA (Page 2 of 2) The North 10 feet of the South 35 feet and the East 10 feet of the following described property: That portion of the Henry Meader Donation Claim No. 46 lying in the Southwest Quarter of Section 24, Township 23 North, Range 4 East, W.M., and the Northwest Quarter of Section 25, Township 23 North, Range 4 East, W.M., lying Westerly of the Chicago, Milwaukee, and St. Paul Railroad Right of Way (also known as Union Pacific Railroad) and lying Easterly of Puget Sound Power and Light Company 100 -foot wide right of way, and lying Northerly of the Seattle Bow Lake Pipeline Right of Way, less that portion lying Northerly of the following described line: Beginning at a point of intersection of the Southerly right of way line of South 158th Street (also known as Longacres Way) and the Westerly line of said Puget Sound Power and Light Company 100 -foot wide right of way; thence Easterly in a straight line along the extension of said Southerly right of way line of South 158th Street to the Easterly line of said Puget Sound Power and Light Company right of way; thence Southerly along the said Easterly line of Puget Sound Power and Light Company right of way a distance 325.10 feet to the point of beginning of the herein described line; thence North 87 degrees 09 minutes 10 seconds East a distance of 95.59 feet to the Westerly line of Chicago, Milwaukee and St. Paul Railroad right of way and termination of the herein described line. EXHIBIT D -1 LEGAL DESCRIPTION OF EASEMENT PARCEL The East fifteen (15), feet of the South thirty-five (35) feet of the following described property: That portion of the Donation Land Claim of the Heirs at Law of Henry Meader, Deceased,. Designated as Claim No 46, being parts of Sections 24 and 25 in Township 23 North, Range 4 East W.M, Lying Easterly of the Easterly Margin of State Road No 181 as conveyed under Deed recorded under Recording No 984951 and as widened by Superior Court Cause No 592029; lying Westerly of the Puget Sound Electric Railway Right -of -Way; Lying Northerly of the City of Seattle Bow Lake Pipeline as conveyed by Deed recorded under Recording No 4151067; and. lying Southerly of a line 446.38 feet South and parallel, when measured at right angles to the South line of South 158th Street (Also known as a portion of Boundary Line Adjustment. No. 88 =4 -BLA recorded under Recording No 8809301116); Situate in the City of Tukwila, County of King,. State of Washington.