HomeMy WebLinkAbout1993 - Permit Agreement - McLeod Development Company / City of Seattle - 9305182054RECEIVED
JUN 0 81999
COMMUNITY
SEATTLE WATER DEPT DEVELOPMENT
710 - 2nd AVE. 1Gth FLA.
S EATTLE, WA u� 86104
9305182051
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PERMIT AGREEMENT
THIS AGREEMENT is entered into by and between THE CITY OF
SEATTLE, a municipal corporation of the State of Washington,
hereinafter called "City ", McLEOD DEVELOPMENT COMPANY, a
Washington corporation, and STUART McLEOD, collectively
hereinafter called "Permittee ", for and in consideration of the
mutual benefits and terms and conditions hereinbeiow set forth,
to provide for the use by the Permittee of certain real property
owned by the City.
WHEREAS, the City owns the Cedar River Pipeline No 4
(_formerly Bow Lake Pipe Line) Right-of-Way (CR.PL /4 R /W) which
abuts Permittee'a property; and
WHEREAS, Permittee ground leases and x:aJ acquire Parcel 1.
and owns Parcel 2, and is developing Parcels : and 2 of the
following described real pr. ?pert:
PARCEL 1:
THAT PORTION OF HENRY MEADER DONATION CLAIM O. 46 IN
SECTIONS 24 AND 25, TOWNSHIP 23 NORTH, RANGE 4 EAST
W.M., LYING WEST OF THE BURLINGTON - NORTHERN RAILROAD
RIGHT -OF -WAY, FAST OF THE OREGON - WASHINGTON RAILROAD
AND NAVIGATION COMPANY RIGHT -OF -WAY AND SOUTH OF A LINE
137 FEET SOUTH OF THE NORTH LINE OF SAID DONATION CLAIM
AND NORTH OF THE CITY OF SEATTLE BOW LAKE PIPELINE
RIGHT -OF -WAY;
SITUATE IN THE CITY OF TUKWILA, COUNTY OF KING, STATE
OF WASHINGTON
PARCEL 2:
ALL THAT PORTION OF GOVERNMENT LOT 11 AND ALL THAT
PORTION OF HENRY MEADER DONATION CLAIM NO. 46 IN THE
NORTH 1/2 OF 1HE NORTHWEST 1/4 AND THAT PORTION OF THE
SOUTHEAST 1/4 OF THE NORTHWEST 1/4 ALL SITUATED IN
SECTION 25, TOWNSHIP 23 NORTH, RANGE 4 EAST W.M.,
BOUNDED AS FOLLOWS:
ON THE WEST THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY
MAIN TRACK CENTERLINE AS LOCATED AND CONSTRUCTED;
ON THE EAST BY A LINE DRAWN PARALLEL WITH AND DISTANT
50 FEET WESTERLY MEASURED AT RIGHT ANGLES TO BURLINGTON
NORTHERN RAILROAD COMPANY'S OLD MAIN LINE TRACK
CENTERLINE AS NOW LOCATED AND CONSTRUCTED;
ON THE SOUTH BY A LINE DRAWN PARALLEL WITH AND DISTANT
330 FEET SOUTHERLY AT RIGHT ANGLES TO TEE SOUTH LINE OF
SAID GOVERNMENT LOT 11;
ON THE NORTH BY THE SOUTH MARGIN OF. THE CITY OF
SEATTLE'S 30 -FOOT WIDE BOW LAKE PIPELINE RIGHT - OF-WAY,
AS CONVEYED TO THE CITY OF SEATTLE, BY DEED RECORDED
UNDER RECORDING NO. 4131067;
EXCEPT THAT PORTION THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF SAID DONATION
CLAIM AND THE EAST MARGIN OF THE CHICAGO, MILWAUKEE,
ST. PAUL & PACIFIC RAILROAD RIGHT -OF -WAY;
THENCE EASTERLY A DISTANCE OF 120 FEET ALONG SAID SOUTH
LINE OF SAID DONATION CLAIM;
THENCE NORTHERLY MEASURED AT RIGH`. ANGLES TO SAID SOUTH
LINE A DISTANCE OF 80 FEET;
Sys _903
ci16?AXNol REQU{RED
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9305182054
THENCE WESTERLY PARALLEL WITH SAID SOUTH LINE TO SAID
EASTERLY MARGIN OF SAID CHICAGO, MILWAUKEE, ST. PAUL 6
PACIFIC RAILROAD RIGHT -OF -WAY;
THENCE SOUTHERLY ALONG SAID RAILROAD RIGHT -OF -WAY TO
THE POINT OF BEGINNING;
EXCEPT ALL COAL AND MINERALS AND THE RIGHT TO EXPLORE
FOR AND MINE THE SAME, AS CONVEYED BY DEEDS RECORDED
UNDER KING COUNTY RECORDING NOS. 84040509C3 AND
8404050909:
SITUATE IN THE CITY OF TUKWILA, COUNTY OF KING, STATE
OF WASHINGTON
to provide for the construction of commercial structures together
with attendant parking areas (the "Project ").
WHEREAS, Permittee desires to provide pedestrian crossings
and landscaping over the City's pipeline right-of-way in a manner
consistent with the development concept of tha Project; and
WHEREAS, the use by Permittee of said right -of -way will not
interfere unreasonably with the use by the City of said right of
way for water pipeline of other purposes; and
WHEREAS, responsibility for the care and a:aint•:nance of th_
surface of said pipeline right -of -way shall be tha prime
consideration and compensation for said uses;
NOW, THEREFORE, it is mutually agreed t;y C:.ty and Permittee
as follows:
1. City hereby grants to Permittee permission and
authority to use for a period of forty (40) years the following
described portion of the City's Cedar River Pipeline No. 4 Right -
of -Way in the City of Tukwila, County of Xing, State of
Washington:
A PORTION OF THE 30 FOOT WIDE CRPL #4 R/W
(FORMERLY BOW LAXE PIPE LINE) DESCRIBED AS;
LYING EAST OF THE UNION PACIFIC RAILROAD AND J
WEST OF THE BURLINGTON NORTHERN RAILROAD IN ?
THE NORTHWEST 1/4, SECTION 2, TOWNSHIP 23
NORTH, RANGE 4 EAST, W.M., EXCEPT THE EAST 30
FEET OF THE WEST 40 FEET AND THE WEST 90 FEET
OF THE EAST 115 FEET.
upon the terms and conditions set forth herein. The effective
date of this Permit shall be 3jNE / If93 , and this Permit
shall be for a forty (4') year term ending /474y 3 , 2033 .
Provided Permittee has performed in accordance with the terms and
conditions of this Permit, and the partied find the terms and
conditions to continue to be mutually agreeable, this Permit
shall be extended for an additional thirty (30) year term at
expiration of the initial forty (40) year term. If Permittee
desires to extend this Permit, Permittee shall give notice to
City at least one year prior to expiration of the initial forty
(40) year term.
2. The•rent for the use of the above - described area shall
be at an annual rate of Four Hundred Five Dollars ($405), to
which shall be added the State Leasehold Excise Tax (currently
12.84$) in the amount of $52.00, making a total payment of
$457.00, payable on or before TurJE / of each year. On
each five (5) year anniversary of SuN E 1
1993! the annual rent shall be increased twenty -five percent
(251) of the base annual rate (exclusive of State Leasehold
Excise Tax), and such increased amount (together with applicable
State Leasehold Excise Tax) sha"1 be payable for the next five
years on or before / of each year.
9305182054
3. It le understood and agreed that the permit area will
be used by Permittee to provide for pedestrian crossings to and
from the property abutting both s des of the permit area, and to
provide ,for landscapes, pursuant to plans, approved by the City
of Tukwila, to be reviewed and approved by the Superintendent of
Water. It is further agreed that no other changes in the use of
the permit area, and no structures of any kind oi• any additional
landscaping shall be placed or permitted to remain within the
permit area by Permittee, except by prior written permission from
the City's Superintendent of Water. Permittee agrees to maintain
the permit area in a neat, clean and safe condition at all times.
No heavy loads or equipment shall be permitted within the permit
area without the prior written permission of the Superintendent
of Water. ,Permittee shall request such permission at least
thirty (30) days prior to the scheduled date for bringing heavy
loads or equipment into the permit area. In addition, three (3)
days' notice shall be given to City Water Department's Operations
Division prior to bringing such heavy loads or equipment onto the
permit area.
4. The City reserves to itself the right to grant other
permits within the permit area for any other purposes; prcvid@1
howeveX that any such grant shall not materially interfere with
the landscaping and pedestrian crossings.
5. Permittee agrees that no change, in the existing grade
of the permit area shall be made, and that no buildings,
structures, pipes, cablea, conduits, light standards, fences,
walls, plants, signs or other facilities or improvements shall be
erected, installed or permitted to remain within thn permit area
except with the prior approval in writing from the Superintendent
of Water.
6. The City shall at all times have free access to the
permit area by yehicles, equipment and personnel for the
operation, maintenance, repair and replacement of its pipeline
facilities or for any other purposes, including the construction
of additional facilities, and if any parts of the permit area
shall be not conveniently accessible to the City from the
intersecting public roads because of Permittea's use or other
permitted improvements within the permit area, Peroittea hereby
expressly grants to the City permission to cross Permittee's
adjacent property, along routes reasonably sot to provide the
least possible interference with said uses by Permittee, in order
to reach such parts of the permit area. Permittee shall not be
entitled to payment for damages for any lose of use of the permit
area during such maintenance, repair, alteration, reconstruction
or construction of additional facilities, except to the extent
arising from City's negligence, willful misconduct, or breach of
the provisions of this Agreement.
7. Permittee shall indemnify, save harmless, and release
the City and its officers, employees, and agents from all claims,
actions, liability, losses, and damages of any nature arising out
of the use of the permit area by the Permittee, its employees,
agents, subcontractors, or invitees (other than the City, its
officers, employees, or agents) except to the extent arising from
City's negligence, willful misconduct or breach of the provisions
of this Agreement. Any costs to the City or liability to third
parties incurred by the City in connection with any remedial
action undertaken by the City or the Permittee pursuant to .
Sectinne 17 or el of this Agreement shall be paid by the
Permittee, provided, however, Permittee shall not be responsible
to pay such costs or liability to the extent, if any, that the
City, its employees or agents negligently or intentionally
created the conditions which the remedial action was aimed to
address. Permittee shall pay any request for payment pursuant to
this provision promptly upon receiving a bill from the City and
reasonable evidence of costs incurred. If not paid within thirty
(30) days, ouch amount shall bear interest at the prejudgment
rate of interest in effect as of the date of billing, from the
date of said billing until paid.
9305182054
8. If a claim (filed or ur,filed) or legal action, arising
out of the use of the permit area by the Permittee, its
employees, agents, subcontractors or invitees (other than the
City, its officers, employee, agents or contractors), is asserted
or brought against the City, its officers; or employees, which
claim is subject to the indemnification set forth in Paragraph 7
hereof, Permittee shall pay any and all reasonable legal expenses
that the City of Seattle shall incur in connection with such
claim or action. The right to choose which attorneys shall
represent the City in any such claim or legal action shall be at
the sole discretion of the City; provided however, that City
shall first tender defense of such claim to Permittee and if
Permittee accepts such ter.9er, Permittee may select attorneys for
the defense of such claim. Permittee shall pay all reasonable
legal expenses that the City may incur in prosecution of any
claim or legal action to enforce any and all provisions of this
Permit arising out of breach of this Agreement by Permittee or
subject to the indemnification set forth in Eeragranh 7,
including this provision, if the City "substantially prevails" in
such claia or action. Whether the City "substantially prevails"
shall be determined based on the standards established by the
federal courts under 15 U.S.C. S 26. Such determination shall be
deemed to arise under the iurisdicticn of the eir.th Circuit Court
of Appeals. The term "' -ea1 expenses" e. and in this
provision shall include, out not be limited to, reasonable
attorneys fees, and reasonable and necessary paralegal and legal
support staff expenses, costs of arbitration, zediation, expert
witnesses, exhibits, investigations, and reimbursement for
reasonable and necessary time, expense, and overhead of all City
personnel or consultants assisting in the defense or prosecution
of legal action or in responding to or investigating a claim or
demand. It is agreed that if any part of this provision is held
to be unenforceable or invalid by a court of law, that all other
parts shall be unaffected and valid and enforceable as written.
9. Permittee agrees at all tines to maintain for the
protection of the City a liability insurance policy, such policy
and the insurer to be subject to approval by the City, naming
the City as an additional insured, with minimum limits of
51,000,000 combined single limit for property damage and personal
injury and $1,000,000 annual aggregate, insuring against loss or
damage arising out of or resulting from the use and occupancy of
the permit area by Permitted, or frcm any defect or condition
upon such permit area or in maintenance of the permit area, and
to furnish the City's Superintendent of Water with certificates
evidencing that such policies are in effect, and that the
coverage afforded the city of Seattle under such policy shall not
br reduced, terminated or cancelled until ten (10) days after
receipt notice thereof by the Superintendent of Water. Should
such insurance policy not be maintained in effect or be
cancelled, the Superintendent of Water may revoke this permit
immediately.
10. City may, from time to time, upon written notice to
Permittee, increase or otherwise alter the insurance coverages
required under paragraph 2, as reasonably required in order to
maintain substantially equivalent levels of protection for the
activities contemplated under this permit.
11. Permittee has inopected and examined the physical
condition of the permit area including improvements thereon, and
accepts the permit area in its present condition, and any expense
incurred in mutually agreed upon alterations, improvements or
repairs by Permittee, in said permitted area shall be borne by
Permittee. Permittee covenants that no representations,
statements or warranties, express or implied, have been made by
or on behalf of City with renpect to the condition of the permit •
area or the use or occupancy that may be made thereof, and that
the City shall in no event be or become liable to Permittee for
latent or patent defects in the permit area.
930518205/
12. Permitted shall be liable for, and pay throughout the
term of this permit, all taxes on the property of the Permittee
inotalled, operated and maintained on City's property, any taxes
on any property interest deemed by the King County Assessor, or
other official of the State of Washington, King County, or other
taxing entity responsible therefor, created by this permit and
shall otherwise fulfill all fiocal obiigationc required by law.
13. This permit is transferrable only upon prior written
approval of City's superintendent of Water.ewhich approval shall
not be unreasonably withheld. INotwithetanding the foregoing,
Poreitteee may encumber Permittee's interest in this Permit under
one or more mortgagee, deeds of trust and /or security agreements
( "Mortgages ") in favor of one or more mortgagees ( "Mortgagees ");
provided that City's interest in this Permit shall not be
subordinated or subject to any Mortgagee. If Grantee provides
the name and address of any Mortgagees to City, City shall
provide a copy of any notice required or permitted to be given
hereunder to such Mortgagees and any such notice shall not be
effective until copies are provided to the Mortgagees. From and
after such notice has been given to Mortgagees, such Mortgagees
shall have the same period, after the giving of ouch notice upon
them, for remedying any default or acts or omie::icns which are
the subject matter of such notice or causing the same to be
remedied, as le given Grantee hereunder. City shall accept such
performance by or at the instigation of ouch Mortgagees as of the
same had been done by Grantee. The City shall not terminate this
permit during auch time as any Mortgagee, within thirty (30) Jaye
after City's notice of default to such Mortgagee, commences and
thereafter continuously and diligently prosecutes the curo of
such defaults which can reasonably be cured without obtaining
possession and as to ether defaults commences and thereafter
continuously and diligently prosecutes appropriate proceedings
for foreclosure or other enforcement of the liens securing such
mortgage loan and, upon obtaining possession or appointment of a
receiver, promptly commences and thereafter diligently prosecutes
the cure of any such defaults. Nothing herein shall limit City's
right of. immediate revocation under Paracsaoh 9. If any
Mortgagee shall boccmo the holder of the interest of Permittee
hereunder, or if such interests are sold by reason of
foreclosure or other proceeding brought to enforce the Mortgage,
then this Permit shall continue in full force and effect as e
direct Permit between the then holder of Permittoe's rights
hereunder and the City, except neither the Mortgagee or any such
other holder of the rights of Permittee uhail be: (a; liable for
any act or emission of, or the performance of any obligation of,
any prior Permittee or, (b) subject to any offsets cr defenses
which City might have against any prior Permittee.
14. Any notice required or permitted to be given hereunder
shall be in writing and shall be delivered personally or sent by
first class united States Mail, postage prepaid, to the address
of the party to be notified. Notice shall be effective when
received. For purpoaee of notice, the addresses of the parties
shall, until a change is hereinafter provided, be ao follows:
If to City:
Seattle Water Department
Attn: Real Property Services
710 Second Avenue
Dexter Horton Building, 10th Floor
Seattle, Washington 98104
If to Permittee: McLeod Development Company
213 Lake Street South
Kirkland, Washington 98033
with a ccpy to any Mortgagee whose address has been provided to
City. Either party at any time may change their respective
addresses, by providing written notice to the other party.
9305182051
15. This permit may be terminated upon sixty (60) days
prior notice to City by Permittee or at any other time mutually
acceptable to the parties hereto.
16. At thn expiration or termination of this Permit
Agreement, Permittee agrees to quit and surrender the permit area
in as good a state or condition as now exists, ordinary wear arl
tear excepted, and if so directed by the superintendent of Water,
to remove from said area all property of Permittse, and to
restore that portion of said area affected by Permittee's
facilities to a condition at least equal to that existing prior
to the construction of Perm£ttee's facilities, all subject to the
approval of the City's Superintendent of Water.
17. The agreements and covenants of the Parmittee herein
aro the considerations for the granting of this permit. If a
default or failure of performance cf the Permittee in performance
of any term or condition is not of an emergency nature or does •
not pose an immediate or short term threat to the safety or
security of the pipeline facilities, the Pernittoe shall have
thirty (30) days after written notice to Peraittee by the Water
Department to cure the default or failure; however, if the cure
cannot be reasonably completed within such thirty (30) day
poziod, Psrmittee shall have such longer period as is reasonably
necessary to effect the cure so long as Peraittae commences the
cure within the thirty (30) day period and them_ completes
the cure with due diligence. If the Paroittee fails to cure such
a default within the thirty (30) day pericd or with due diligence
in any longer period as is applicable, tlee Superintendent of
Water may at his option terminate this permit and /or take
reasonable remedial action to correct such default or failure at
the expense of Permittee.
18. If a default or failure of performance of the Permittee
in performance of any term or condition is of an emergency
nature, at hie option, the Superintendent of Water may take'
reasonable remedial action to correct the condition at the
expense of Poreittee or order that the Permittee take such
action. Further, if the Superintendent determines that any
activity of the Permittee, or any structure placed or work done
by the Permittee in the permit area, poses an immediate or short
term threat to the safety or security of pipeline facilities, the
Superintendent may order the Permittee to cease and desist from
such activity, and, at his option, the Superintendent of Water
mey order that the Parmittee take action to remove such threat
at the expense of Permittee. If the Permittee fails to
materially comply with orders of the Superintendent issued
pursuant to this provision, the Superintendent may terminate thie
permit upon written notice to the Permittee.
19. The Permittee agrees to conduct all activities within
the permit area described herein in a manner which assures fair,
equal and nondiscriminatory treatment of all persons without
respect to race, creed, national or ethnic origin or sex. .
20. This Agreement is subject to the approval of the
Seattle City Council, which the Water Department will (leek to
obtain, and the Agreement shall have no lesal effect until so
approved.
peraLapa -6-
9305182054
IN WITNESS WHEREOF, pursuant to tho provisions of Ordinance
No. /16 6, 7 % of the City of Seattle, said City has caused this
instrument to be executed by its Superintendent of water.
ACCEPTED E7:
MCLEOD DEVELOPMENT COMP
By:
• •T CLEO'
President 1
ST
ART
CL
STATE OF WASHINGTON )
COUNTY OF XING
Ora'.
APPROVED BY:
SEATTLE WATER DEPARTMENT
By:
R0B +►► P. GRON• HACK
Superintonden of Water
r r, _ �S
On this /G day of ~= �i l ,. boforo mo, a
Notary Public in and for the State oP Washington, personally
appeared STUART MCLEOD, personally known to ma (or proved to me
on the basis of satisfactory evidence) to be the parson who
executed thin instrument, on oath stated that he Has authorized
to execute the instrument, and acknowledged it as the President
of MCLEOD DEVELOPMENT COMPANY to be the free and voluntary act
and deed of said corporation for the uses and purposes mentioned
in the instrus.ant-
IN WITNESS WHEREOF, I have hereunto set my had add.otfdc'ial
seal the day and year first above written.
:40 TAR': XJHLIC In and for '-the• State
of Washington, residing ate >4 /E -2
My appointment expires
•
STATE OF WASHINGTON )
SG.
COUNTY OF KING ) ,r
7,' -F
On this /b day of c6i, -o 199,2, before me, a
n
Notary Public and for the State4.f Washington, personally
appeared STUART MCLEOD, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person who
executed this instrument and acknowledged it to be his free and
voluntary act and deed for the uses and purposes mentioned in the
instrument.
IN WITNESS WHEREOF, I have hereunto at my hand'•aud.bfficial
Beal the day and year first above written.
NoT PUBLIC in and for the' State
of Washington, residing at A{L f.0
My appointment expire
.:
STATE OF WASHINGTON )
COUNTY OF KING )
BB.
I certify that I know or•havo satisfactory evidence that
ROBERT P. GRONCZNAcX signed this .instrument, on oath stated that
he wan authorized to execute the instrument and acknowledged it
as the Superintendent of Water of THE CITY OF SEATTLE to be the
free and voluntary act of said municipal corporation for the uaea
and purposes mentioned in this instrument.
Date frn ) 17, 1993
LAhBi" �. ,:z
OTARY PUBLIC in and for t SE e•
of Waohington, residing at Jl
My appointment expires
4-
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