20100177 Rec Rd & Drain Main Agree 122704i Document 4 of 4 == Order: 2063452 == Page 1 of 10
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WHEN RECORDED RETURN T0:
Real Estate Law Division
Safeway Inc.
5918 Stoneridge Mall Rood
Pleasanton CA 94588-3229
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Road and Dratnage Maintenance Agreement
This Road and Drainage Maintenance Agreement is made as of the _ day of
December, 2004 by and between SAFEWAY INC., a Delaware Corporation ("Safeway") and
John Lubbesmeyer, Chuck Lubbesmeyer and Pamela Lubbesmeyer, husband and wife, and~Paul
Lubbesmeyer, andlor their successors and assigns (collectively, "Developer").
WHEREAS, Safeway is the owner of certain property in a shopping center (the
"Shopping Center") in the City of Yelm, Washington, The Shopping Center is described in, and
govenued by, that certain Declaration of Easements with Covenants and Restrictions Affecting
Land dated January 22, 2001 and recoxded under Recording N o. 3 332544, o fffcial records o f
Thurston County (the "Declaration"). The Safeway Property is more particularly descnibed in
Exhibit A attached hereto.
WHEREAS, simultaneously with the execution hereof, Developer is acquiring from
Safeway certain real property adjacent to the Shopping Center, more particularly described in
Exhibit B attached hereto (the "Developer Property"),
WHEREAS, the Developer Property was created by Binding Site Plan recorded
December 27, 2001 as Instrument No. 3401454, of£rcial records of Thurston County, which
created certain access and drainage easements between the parties, and in connection therewith, a
Road and Arainage Maintenance Covenant for Safeway, Yelm Multi-Family was recorded
December 27, 2001 as Instrument No. 3401452, official records of Thurston County (the
"Existing Covenant").
WHEREAS, the parties wish to set forth certain agreements respecting the roadway and
drainage facilities serving their properties, which agreements shall supersede in full the Existing
Covenant.
NOW, THEREFORE, the parties agree as follows:
1. Driveway. The parties hereby grant and confirm to :each other, their respective
successors and assigns, a perpetual non-exclusive easement for ingKess and egress and related
maintenance purposes over that property so described in the Binding ite Plan (the "Driveway").
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The Driveway will serve as the primary access for the Developer Property when the same
is improved, and serves as secondary access for the Shopping Center.
Developer covenatts to maintain the Driveway in good condition and repair, at
Developer's sole expense.
Developer shall also maintain commercial liability insurance, naming Safeway an
additional insured, with coverage of $1,000,000 per occurrence and $2,000,000 in the aggregate.
Developer shall famish Safeway upon Safeway's written r equest, c ertificates evidencing s uch
coverage. Developer shall indemnify, defend and hold Safeway harmless from and against any
loss, cost, liability or expense (including attorneys' fees and expenses) suffered or incurred by
Safeway on account of the use of the Driveway by any person.
2. Drainage Facilities. Certain storm drainage facilities serving the Safeway
Property are located underneath the Driveway surface. To the extent such facilities may be
located on the Developer Property and solely serve the Safeway PGOperty, Developer grants and
confirms to Safeway, its successors and assigns, a perpetual excIuspve easement to maintain such
facilities, t ogether with a r fight o F access to r epair and r eplace the s erne from time t o time at
Safeway's sole cost (the "Drainage Easement'. If Safeway's use of the Drainage Easement is
disruptive to Developer's Property, then during the period that Safeway uses the Drainage
Easement, Safeway agrees to minimize the disruption as much as is commercially reasonable and
feasible, and agrees to restore the Driveway to its original condition at the completion of any
repairs or replacements to the Drainage Easement.
3. Secondary Access. Pursuant to the Binding Site Plan, the Developer Property is
granted an easement over the Safeway Property for secondary access (the "Secondary Access").
Safeway covenants to maintain Ute Secondary Access in good condition and repair, at Safeway's
sole expense. If either party at its option, should so request of the other, the parties shall
reasonably cooperate with each other to petition the City of Yehn to allow the Secondary Access
over the Safeway Property to be terminated. The requesting pasty shall bear the expense of
effectuating the termination.
4. Landscapine. Developer shall, at its sole expense, install and maintain
landscaping (including sprinklers) to screen the back of Safeway's store from the apartments to
be constructed on the Developer Property, and to visually identify the Driveway as the primary
entrance to the Developer Property, substantially in accordance witlh the Landscaping Plan which
was agreed to by parties prior to Developer's purchase of Developer's property.
5. Covenants and Easements running with the Land. The easements and covenants
contained herein shall be deemed to be easements and covenants benefiting and burdening each
party's respective Property, shall run with the land and shall be binding upon any person
acquiring any interest in any part of the Safeway or Developer Property.
6. Attorneys' Fees. Tn the event any party hereto: brings or commences legal
proceedings to enforce any of the terrns of this Agreement, the sj~ccessful party in such action
shall then be entitled to receive and shall receive from the othe~Y party, in every such action
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commenced, a reasonable sum as attorney's fees, court costs, investigation expenses, discovery
costs and costs of appeal incurred by it in the litigation.
IN WI'T'NESS WIiEItBOP. the parties have executed this Agreement as of the day and
Safeway Inc., a Delaware corporation
By~ ~~
__ _ .
ss~st ce/PJre nt
Assistant Secretary
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STATE OF CALIFORNIA
COUNTY OF ALAMEDA
ACKNOWLEDGMENT
) ss.
On December 21, 2004, before me, Janice M. Palmer, Notary Public, personally
appeared Sharman Braff and Linda S. MacDonald, personally known to me (or proved
on the basis of satisfactory evidence) to be the persons whose names are subscribed to
the within instrument and acknowledged to me that they executied the same in their
authorized capacities, and that by their signatures on fhe instrument, the persons or the
entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
n ture
JANlCE id. PALMER
„Ch1Mlu^sSON 1678888
NOTiViY PU~LIGCN.IhOpN1A'~
nI.AR1EDA COUNTY
M(aomn4akn otyc Beet fB,4dCe~
(Seal)
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Exhibit A
Safeway Property
Lot 1 of Binding Site Plan Subdivision No. BSP 018275-YT. as recorded December 27,
200I under Auditor's File No. 3401453 and as delineated on map recorded under Auditor's File
No. 3401454.
In Thurston County WA
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Docnment 4 0£ 4
_= Order; 2063452 =_
STATE OF WASHINGTON SS
COUNTY OF PIERCE.-
~' i~2 i'L~ // // /_
ON THIS /J DAY OF l/it ~~ ~'~{ 2004
BEFORE ME, THE UNDERSIGNED, A NOTARY PUBLIC IN AND FOR THE
STATE OF WASHINGTON, DULY COMMISSIONED AND SWORN, PERSONALLY
APPEARED PAUL LUBHESMEYER, JOHN LUBBESMEYER, CHUCK
LUBBESMEYER, AND PAMELA LUBHESMEYER KNOWN TO ME TO BE THE
INDIVIDUAL(S) DESCRIBED IN AND WHO EXECUTED THE WITHIN
INSTRUMENT AND ACKNOWLEDGED THAT THEY SIGNED AND SEALED THE
SAME AS THEIR FREE AND VOLUNTARY ACT AND DEEP, FOR THE USES
~a PURPOSES~HEREIN MF,NmrnNFn
NOTARY SIGNA URE
PRINTED NAME: CHERYL RENEE STEINER.
NOTARY PUBLIC IN AND FOR THE STATE OF WASHINGTON
RESIDING AT SPANAWAY.
MY COMMISSION EXPIRES ON ].0-3-05.
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Exhibit
' Developer Fro~erty
j Lot 2 of Binding Site Pian Subdivision No. BSF 018275-YL as recorded December 27,
2001 under Auditor's File No. 3401453 and as delineated on map recorded under Auditor's File
No. 3401454.
In Thurston County WA
STATE OF WASHINGTON ) ~ ~~j„
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)ss.
County o _ ) '
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I certl that I know or have atisfactory evidence ad:~~~~ I,LI
the person wh appeared before ma, id, pe x~ ackno ledged that
instrument, on th stated that [ orized execute
acknowledged it as e o f
the free and volun ct of such party for uses and purposes ntione<
DATED this day of 20
(Type/Print Na
Notary P Iic in
State of Washin n, residing at
My appointment expires:
for
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IS
i i his
and
to be
II I II 3698223
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STATE OF WASHINGTON
County of
)
)ss.
I certify that 1 know or have satisfactory evidence that is
the person who appeared before me, and said person acknowledged that [he][she] signedthis
insttwnent, on oath stated that [he][she] was authorized to execute the insttwnen ~ be
acknowledged it as the of
the free and voluntary act of such party for the uses and proposes mentioned in the instrument.
DATED this _ day of
STATE OF WASHINGTON
County of
20
(Type/Print Name
Notary Public in and
State of Washington, residing at _,__
My appointnent expires:
}ss.
}
above)
for the
I certify that I know or have satisfactory evidence that is
the person who appeazed before me, and said person acknowledged that jhe][she] signed this
instrument, on oath stated that [he][she] was authorized to execute the instrumentt be
acknowledged it as the of
the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED this _ day of
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20
(Type/Print Name
Notary Public in and
State of Washington, residing at
My appointment expires:
above)
for the
Pa~a s2o to
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STATE OF WASHINGTON
County of
)
)ss.
I certify that I know or have satisfactory evidence that is
the person who appeared before me, and said person acknowledged that [he][site] signed this
instrument, on oath stated that [he}[sheJ was authorized to execute the instrumentt be
acknowledged it as the of
the free and voluntary act of such party far the uses and purposes mentioned in the instrument.
DATED this ~ day of > 20-
(Type/Print Name above)
Notary Public in and for the
State of Washington, residing at
My appointment expires:
STATE OF CALIFORNIA )
)ss.
County of )
I certify that I know or have satisfactory evidence that is
the person who appeazed before me, and said person acknowledged that [he}[she} signed this
instrument, bn oath stated that [he][shej was authorized to execute the instrumentt be
acknowledged it as the of
the free and voluntazy act of such party for the uses and purposes mentioned in the insttwnent.
DATED this ~ day of , 20_.
(Type/Print Name above)
Notary Public in and for The
State of California, residing at
My appointment expires:
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STATE OF CALIFORNIA
County of
)
)ss.
I certify that I know or have satisfactory evidence that is
the person who appeared before me, and said person acknowledged that [he][she] signed this
instrument, on oath stated that [he][she] was authorized to execute the instrument be
acknowledged it as the of
the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED this , day of
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(Type/Print Name above)
Notary Public in and for the
State of California, residing at
My appointment expizes;
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