HomeMy WebLinkAboutCFA _ WA _ Rainier Ave & 3rd (#04249) _ Temporary Construction and Utility Easement (Fred Meyer) [Executed]38075092
Prepared by and after recording return to:
Troutman Sanders LLP
600 Peachtree Street NE
Suite 3000
Atlanta, Georgia 30308
Attn: Michael H. Wall, Esq.
TEMPORARY CONSTRUCTION AND UTILITY EASEMENT AGREEMENT
Grantor:Fred Meyer Stores, Inc., an Ohio corporation
Grantee:Chick-fil-A, Inc., a Georgia corporation
Abbreviated Legal:a portion of Lot 1, City of Renton Amended Short Plat
No. LUA-000254
Full legal descriptions on Exhibits A and B
Tax Parcel Nos:000720-0149 (benefitted parcel)
000720-0151 (benefitted parcel)
000720-0215 (benefitted parcel)
000720-0209 (burdened parcel)
Reference No. N/A
THIS TEMPORARY CONSTRUCTION AND UTILITY EASEMENT AGREEMENT (this
"Agreement") is entered into as of this ____day of ______________, 2019, by and between FRED MEYER
STORES, INC., an Ohio corporation ("Grantor"), and CHICK-FIL-A, INC., a Georgia corporation
("Grantee").
RECITALS:
A.Grantor is the owner of the real property described on Exhibit "A", attached hereto and
incorporated herein (the "Grantor Property").
B.Grantee is the ground tenant of the real property described on Exhibit "B", attached hereto
and incorporated herein (the "Grantee Property"), pursuant to that certain Ground Lease dated February 9,
2018, between Nelson Gould LLC, a Washington limited liability company, as landlord, and Grantee, as
tenant, as such Ground Lease has been, or as it may in the future be, amended from time to time (the
"Lease").
C.In connection with Grantee's planned development of the Grantee Property, Grantor has
agreed to grant certain easements over portions of the Grantor Property on the terms and conditions
contained in this Agreement.
December18th
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NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00), the premises, the
mutual benefits to be derived by the provisions of this Agreement, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are acknowledged by the parties to this
Agreement, Grantor and Grantee hereby covenant and agree as follows:
1.Recording and Condition. This Agreement will be binding on Grantor and Grantee as of
the date that this Agreement is fully executed, but the effectiveness of the terms and provisions of this
Agreement, including the grant of the Construction Easement and Utility Easement (as defined below), is
conditioned on the commencement of the Lease (the "Commencement Date"). This condition will be
automatically satisfied upon the recording of a short form lease or memorandum of lease relating to the
Lease in the real property records of King County, Washington (the "Records"). After recording the short
form lease or memorandum of lease, Grantee is authorized to record this Agreement in the Records. If the
Commencement Date does not occur on or before December 31, 2020, this Agreement automatically will
expire and be of no further force or effect.
2.Temporary Construction Easement. Grantor hereby grants and conveys to Grantee, for the
benefit of the Grantee Property, a temporary construction easement (the "Construction Easement") over and
across the portion of the Grantor Property identified as the "Temporary Easement Area"on Exhibit "C"
for the purpose of paving, resurfacing and/or improving the drive aisle in the Temporary Easement Area
(the "Paving Work"). Grantee agrees that any such construction shall be performed at Grantee's sole cost
and expense and in a good and workmanlike manner so as to minimize any interference with the business
on the Grantor Property. The Construction Easement provided in this Section 2 will terminate on the earlier
of (i) the completion of the Paving Work, or (ii) one (1) year after the Commencement Date.
3.Utility Easement. Grantor hereby grants and conveys to Grantee, for the benefit of the
Grantee Property, a non-exclusive easement under, over and across the portion of the Grantor Property
identified as the "Utility Easement Area" on Exhibit "D"for the purpose of installing, operating,
maintaining, repairing and replacing one (1) water line to serve the improvements located on the Grantee
Property (the "Utility Easement"). The Utility Easement will include the right to tie into any water lines
and facilities that presently exist in the Utility Easement Area. Grantee agrees that any work within the
Utility Easement Area shall be performed in a good and workmanlike manner so as to minimize any
interference with the business on the Grantor Property. Grantee will coordinate the timing of the
performance of any work within the Utility Easement Area with Grantor. In no event shall Grantee block
off Grantor’s access to and from the Grantor Property via Renton Center Way in connection with Grantee's
use of the Utility Easement. Additionally, Grantee will restore any improvements on the Grantor Property
that are disturbed by the work performed by Grantee in the Utility Easement Area to the condition in which
they existed prior to such work being performed.
4.Running with the Land. Subject to the termination provisions in Section 2, the easements
established in this Agreement are intended to and shall run with the land, and the benefits and burdens of
the easements shall pass to the heirs, successors and assigns of the parties, in and to their respective
properties burdened and benefitted by the easements. Any and all use of the Temporary Easement Area
and Utility Easement Area by Grantee shall be in accordance with applicable laws, codes, regulations and
ordinances.
5.Indemnity.
(a)Grantee shall not permit any mechanic's or materialmen's lien to be filed against
the Grantor Property as a result of the work performed or materials furnished by Grantee in connection with
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the Construction Easement or Utility Easement, and shall defend, indemnify and hold Grantor harmless for,
from and against any claim, loss, or liability on account of any such claim of lien.
(b)Grantee shall defend, indemnify and hold Grantor harmless for, from, and against
any claim, loss, or liability to the extent arising out of or resulting from (i) Grantee’s (or its employee’s,
agent’s, tenant’s, contractor’s or invitee’s) use of the Temporary Easement Area and Utility Easement Area;
or (ii) Grantee’s failure to comply with the terms of this Agreement.
6.Insurance. Grantee shall procure and maintain, or cause to be procured and maintained,
commercial general liability insurance against claims for personal injury (including contractual liability),
death, or property damage, with single limit coverage of not less than an aggregate of Three Million Dollars
($3,000,000.00) including umbrella coverage, if any, and naming Grantor as additional insured. The
coverage required in this Section 6 may be subject to a self-insured retention or may be satisfied via self-
insurance, so long as the self-insuring party maintains a tangible net worth of at least One Hundred Million
Dollars ($100,000,000.00). On the Commencement Date and when requested by Grantor thereafter,
Grantee shall provide, or cause to be provided, to Grantor an insurance certificate evidencing the insurance
requirements above. The insurance may not be cancelled without thirty (30) days prior written notice to
Grantor.
7.Miscellaneous. If any legal proceeding is instituted by either of the parties to this
Agreement arising out of or pertaining to this Agreement, including but not limited to arbitration, and
appeals and collateral actions relative to such suit or proceeding, the substantially prevailing party shall be
entitled to recover its reasonable attorneys’ fees and all costs and expenses from the substantially non-
prevailing party, in addition to such other available relief. This Agreement may not be modified or amended
without the prior written approval of both parties hereto, or their respective successors and assigns. This
Agreement shall be interpreted and construed under and governed by the internal laws of the State of
Washington without regard to choice of laws provisions. This Agreement may be executed in counterparts,
and each counterpart hereof shall be deemed to be an original instrument, but such counterparts together
shall constitute but one agreement.
[Signatures commence on following page]
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EXHIBIT "A"
DESCRIPTION OF THE GRANTOR PROPERTY
LOT 1, CITY OF RENTON SHORT PLAT SHPL FILE NO. LUA16-000254, RECORDED NOVEMBER
8, 2016 IN VOLUME 353 OF SHORT PLATS, PAGES 282-283, AS RECORDING NO.
20161108900006, AS AMENDED BY INSTRUMENT RECORDED DECEMBER 12, 2016 UNDER
RECORDING NO. 20161212900010, IN KING COUNTY, WASHINGTON.
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EXHIBIT "B"
DESCRIPTION OF THE GRANTEE PROPERTY
PARCEL I:
A TRACT OF LAND SITUATED IN THE SOUTHEAST QUARTER OF SECTION 18, TOWNSHIP 23
NORTH, RANGE 5 EAST OF THE WILLAMETTE MERIDIAN, IN KING COUNTY, WASHINGTON,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT OF INTERSECTION OF THE CENTER LINE OF STATE HIGHWAY NO.
5 AND THIRD AVENUE IN THE CITY OF RENTON PRODUCED WESTERLY;THENCE
SOUTHERLY, ALONG THE CENTERLINE OF SAID STATE ROAD, 288.18 FEET;THENCE SOUTH
75°53'00" WEST 223.15 FEET TO THE TRUE POINT OF BEGINNING;THENCE SOUTH 19°56'20"
EAST 224.70 FEET;THENCE AT RIGHT ANGLES THERETO, NORTH 70°03'40" EAST 41.31 FEET;
THENCE NORTH 19°56'20" WEST 219.37 FEET;THENCE SOUTHWESTERLY 41.65 FEET TO THE
TRUE POINT OF BEGINNING.
PARCEL II:
LOT 2, CITY OF RENTON SHORT PLAT SHPL FILE NO. LUA16-000254, RECORDED NOVEMBER
8, 2016 IN VOLUME 353 OF SHORT PLATS, PAGES 282-283, AS RECORDING NO.
20161108900006, AS AMENDED BY INSTRUMENT RECORDED DECEMBER 12, 2016 UNDER
RECORDING NO. 20161212900010, IN KING COUNTY, WASHINGTON.
PARCEL III:
A TRACT OF LAND SITUATED IN THE SOUTHEAST QUARTER OF SECTION 18, TOWNSHIP 23
NORTH, RANGE 5 EAST OF THE WILLAMETTE MERIDIAN, IN KING COUNTY, WASHINGTON,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT OF INTERSECTION OF THE CENTER LINE OF THIRD AVENUE IN
THE CITY OF RENTON PRODUCED WESTERLY AND STATE HIGHWAY NO. 5;THENCE SOUTH
21°31'00" EAST ALONG THE CENTER OF SAID STATE HIGHWAY NO. 5, A DISTANCE OF 86.48
FEET;THENCE SOUTH 75°53'00" WEST 197.18 FEET;THENCE SOUTH 14°07'00" EAST 200 FEET
TO THE TRUE POINT OF BEGINNING OF THE TRACT HEREIN DESCRIBED;THENCE NORTH
75°53'00" EAST 192.90 FEET TO THE WESTERLY MARGIN OF SAID STATE HIGHWAY;THENCE
SOUTH 19°56'20" EAST ALONG SAID WESTERLY MARGIN 100.00 FEET TO A POINT WHICH
BEARS SOUTH 19°56'20" EAST 388.18 FEET AND SOUTH 77°25'10" WEST 30.25 FEET FROM THE
POINT OF INTERSECTION OF THE CENTER LINES OF SAID THIRD AVENUE PRODUCED
WESTERLY AND STATE HIGHWAY NO. 5;THENCE SOUTH 70°03'40" WEST AT RIGHT ANGLES
TO SAID STATE HIGHWAY, 150.00 FEET;THENCE AT RIGHT ANGLES AND PARALLEL WITH
SAID STATE HIGHWAY SOUTH 19°56'20" EAST 100.00 FEET;
THENCE AT RIGHT ANGLES SOUTH 70°03'40" WEST 41.31 FEET TO A POINT FROM WHICH
THE TRUE POINT OF BEGINNING BEARS NORTH 19°56'20" WEST;
THENCE AT RIGHT ANGLES AND PARALLEL WITH SAID STATE HIGHWAY NORTH 19°56'20"
WEST 224.70 FEET TO THE TRUE POINT OF BEGINNING.
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EXCEPT THAT PORTION CONVEYED TO THE STATE OF WASHINGTON FOR HIGHWAY
PURPOSES, BY DEED RECORDED JANUARY 28, 1960, UNDER RECORDING NO. 5125876.
ALSO EXCEPT THAT PORTION CONVEYED TO THE CITY OF RENTON BY WARRANTY DEED
RECORDED JUNE 20, 2011 AS RECORDING NO. 20110620001118.
FURTHER EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT OF INTERSECTION OF THE CENTER LINE OF STATE HIGHWAY NO.
5 AND THIRD AVENUE IN THE CITY OF RENTON PRODUCED WESTERLY;THENCE
SOUTHERLY, ALONG THE CENTERLINE OF SAID STATE ROAD, 288.18 FEET;THENCE SOUTH
75°53'00" WEST 223.15 FEET TO THE TRUE POINT OF BEGINNING;THENCE SOUTH 19°56'20"
EAST 224.70 FEET;THENCE AT RIGHT ANGLES THERETO, NORTH 70°03'40" EAST 41.31 FEET;
THENCE NORTH 19°56'20" WEST 219.37 FEET;THENCE SOUTHWESTERLY 41.65 FEET TO THE
TRUE POINT OF BEGINNING.
A.P.N.000720-0151-06 and 0007200149 and 0007200215
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EXHIBIT "C"
DEPICTION OF TEMPORARY EASEMENT AREA
[See attached]
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EXHIBIT "D"
DEPICTION OF UTILITY EASEMENT AREA
[See attached]
38075092