HomeMy WebLinkAboutEC17-206 - Original - Marquee on Meeker - Phase I - Real Estate Purchase & Sale Agreement with Lease Option to Purchase - 05/05/2017 400 Kecords Ma,,all, 'ement,
WAS H INGTO N Document
C . ent
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name: Marquee on Meeker LLC
Vendor Number:
ID Edwards Number
Contract Number: r
This is assigned by City Clerk's Office
Project Name: Riverbend Par 3 PSA
Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ❑ Contract
® Other: Real Estate Purchase & Sale Agmt w/Lease/Option to Purchase
Contract Effective Date: .5/5/17 Termination Date: n/a
Contract Renewal Notice (Days): n a
Number of days required notice for termination or renewal or amendment
Contract Manager: Kurt Hanson Department: ECD
Contract Amount: 5 250 000 subject to adjustments
Approval Authority: ❑ Department Director ® Mayor ® City Council
Detail: (i.e., address, location, parcel number, tax id, etc.):
Riverbend Par 3 - See Exhibit A
As of: 08/27/14
REAL ESTATE PURCHASE AND SALE AGREEMENT WITH
LEASE/OPTION TO PURCHASE
This REAL ESTATE PURCHASE AND SALE AGREEMENT WITH LEASE/OPTION
TO PURCHASE ("Agreement") is made as of this 5th day of May, 2017, by and between THE
CITY OF KENT, a Washington municipal corporation ("Seller"), and MARQUEE ON
MEEKER LLC, a Washington limited liability company ("Buyer"). Buyer and Seller are from
time to time collectively referred to herein as the "Parties."
RECITALS
A. Seller is the owner of real property located in Kent, Washington, which is legally
described on attached Exhibit A (the "Land"). The Land is approximately 24 acres in size and
presently consists of one (1) legal lot. Currently,the Seller uses the Land for a golf driving range
approximately 4 acres in size ("Driving Range") and for a Par 3 golf course approximately 20
acres in size (the "Golf Course"). Seller intends to retain the Driving Range portion of the Land
and to sell and convey the Golf Course portion of the Land to Buyer pursuant to this Agreement.
The('golf Course portion of the Land is referred to herein as the"Property."
B. The Parties intend that Buyer shall, as a condition to Closing (as defined herein)
complete a short plat ("Short Plat") of the Land as follows: (i) the Golf Course (or Property
herein) shall be divided into five (5) or more parcels; and (ii)the Driving Range shall be divided
into three (3) parcels, all as generally shown in the site plan attached hereto as Exhibit B (the
"Site Plan"). Buyer presently intends to acquire and develop the Property in two phases (a
"Phase" or collectively the "Phases"), with each phase consisting of approximately one-half of
the land area or square footage of the Property as further described in Section 2 below.
Accordingly, subject to completion and recording of the Short Plat of the Land, Buyer agrees to
purchase, and Seller agrees to sell, approximately one-half of the Property (referred to herein as
the "Phase I Property" and further described below) at the first closing hereunder, and at such
first closing the Parties shall enter into a separate lease with option to purchase (the
"Lease/Option Agreement") for the remainder of the Property (referred to herein as the "Phase II
Property" and further described below) on the terms, conditions and contingencies set forth and
in the Lease/Option Agreement.
C. Concurrent with the mutual execution and delivery of this Agreement, Buyer and
Seller are negotiating the terms of a development agreement for Buyer's contemplated
development of the Property, including both of the Phase I Property, the Phase II Property and all
necessary improvements and infrastructure ("Development Agreement"), including any and all
on-site and off-site infrastructure associated with the Project that is dedicated or to be dedicated
to the City of Kent or other governmental or quasi-governmental entity (herein "Public
Infrastructure") (collectively, the "Project"). The approval by the Kent City Council (and
expiration of all applicable appeal periods) of the Development Agreement in a form acceptable
to Buyer is a condition to the Parties' respective obligations as described in Section 6 below.
The Parties agree as follows:
2841/86 05/05/17 1 - pse v19
tread111A1.1Riverbend Joint Venture
1. Property Description. The "Phase I Property" is generally depicted in the Site
Plan. Pursuant to the Buyer's application for the Short Plat of the Land as further described in
Section 6.5.1 below, the Parties shall agree on the final boundaries of the Phase I Property and
the Phase II Property and the legal descriptions therefor and shall execute an amendment to this
Agreement setting forth the agreed-upon final boundaries and legal descriptions.
The Phase I Property shall include all right, title and interest of Seller in the following, as
they relate to the Phase I Property: buildings, easements, appurtenances, rights, privileges and
improvements; water rights; mineral rights; utility rights; rights-of-way, rights of ingress or
egress or other interests in, on, or to, any land abutting or adjoining the Phase 1 Property;
governmental licenses, permits and approvals; development rights; plans, specifications and
drawings; soils and engineering studies; surveys; and inspection reports and other reports and
studies in the possession of Seller, if any.
2. Purchase Price; Adjustment to Purchase Price. Subject to adjustments and
prorations provided for herein, the purchase price (the "Purchase Price") for the Phase I Property
is Five Million Two Hundred Fifty Thousand Dollars ($5,250,000). Closing of the Phase I
Property, referred to in this Agreement as the "Closing," is subject to the contingencies and
conditions to Closing set forth in Section 6 below. Buyer's acquisition of the Phase II Property
shall be on the terms and conditions set forth in the Lease/Option Agreement, including the
option purchase price of Five Million Two Hundred Fifty Thousand Dollars ($5,250,000),
subject to adjustments and prorations as set forth herein and in the Lease/Option Agreement
("Option Purchase Price").
Notwithstanding the foregoing, if following the Short Plat recording and approval of the
Development Agreement either: (i) the square footage of the Phase I Property exceeds 51% of
the total area of the Property, or (ii) the number of residential units approved for the Phase I
Property exceeds 51% of the total residential unit count for the Property, then the Purchase Price
for the Phase I Property shall be increased such that the percentage of the total purchase price of
the Property (i.e., $10,500,000) allocated to the Phase I Property at Closing shall equal the
rg_eater of(i) the percentage of the total Land area for the Phase I Property, or (ii) the percentage
of the total residential unit count that is located on the Phase I Property, with a corresponding
reduction in the Option Purchase Price for the Phase 11 Property. By way of example only, if
sixty percent (60%) of the total residential unit count approved in the Development Agreement is
allocated to the Phase I Property, then the Purchase Price for the Phase I Property shall be
$6,300,000 and the Option Purchase Price shall be $4,200,000, subject to further adjustments and
pro-rations provided for herein and in the Lease/Option Agreement.
3. Payment of Purchase Price. The Purchase Price shall be payable to Seller as
follows:
3.1 Earnest Money Deposit. Within three (3) business days following the
full execution and delivery of this Agreement, Buyer shall deposit with Escrow Agent (as
defined in Section 3.3) Five Hundred Thousand Dollars ($500,000) (the "Earnest Money
Deposit"). The Earnest Money Deposit shall be held and disbursed as provided in this
Agreement. No portion of the Earnest Money Deposit shall be applicable to the Purchase Price
payable at the Closing and instead, concurrent with the Closing, the Earnest Money Deposit shall
2841/86 05/05/17 -2- psa v19
treadll IAL\Riverbend Joint Venture
be converted to the Option Payment due under the Lease/Option Agreement pursuant to the
terms of the Lease/Option Agreement.
3.2 Cash to Close. On or before the Closing Date (as defined in Section 12.1
below), Buyer shall deposit cash or immediately available funds with Escrow Agent in the
amount of the Purchase Price due and payable at Closing, less any adjustments and prorations
provided for herein.
3.3 Escrow Aptent. The Escrow Agent shall be First American Title
Insurance Company/Laura Lau, located at 818 Stewart Street, Suite 800, Seattle, Washington
98101.
4. Title and Survey Matters.
4.1 Title Commitment. Seller has provided Buyer with a commitment for an
owner's title insurance policy issued by First American Title Insurance Company (the "Title
Company") (order no. 839539-WA1, second report, dated March 7, 2017) describing the Land,
showing all matters pertaining to the Land and listing Buyer as the prospective named insured,
together with copies of all documents (the "Title Documents") referred to in such title
commitment as conditions or exceptions to title to the Land (such title insurance policy
commitment and the Title Documents are collectively referred to herein as the "Title
Commitment").
4.2 Title Review. Buyer has approved the title exceptions listed on attached
Exhibit D ("Approved Exceptions"). Only the Approved Exceptions, together with the
Development Agreement, taxes to be prorated at Closing, the Short Plat, and any easements,
encumbrances or other obligations imposed upon the Phase I Property in connection with the
Short Plat, the Development Agreement, the Project Agreements (as defined in Section 6.3
below) and other exceptions approved by Buyer pursuant to the terms of this Section 4, shall
constitute Permitted Exceptions, as that term is defined below. After the mutual execution and
delivery of this Agreement, if any new title exceptions are identified in updated Title Documents
that are not Approved Exceptions, then Buyer within ten (10) business days after receipt of the
updated Title Documents shall notify Seller if Buyer objects to any new title exceptions that are
not Approved Exceptions. if Buyer timely notifies Seller of any such objection, then Seller shall
notify Buyer within ten (10) business days after receipt of Buyer's objection notice if Seller is not
able or willing to clear all such objectionable exceptions from title (or cause Title Company to
insure over) at or prior to Closing; Seller's failure to reply to Buyer within this ten (10) business
day period shall be deemed to be Seller's refusal to clear all such exceptions at or prior to
Closing. If Seller notifies Buyer that Seller is not able or willing to clear such title exceptions at
or prior to Closing, such notification shall be deemed a failure of a condition precedent to
Closing, and shall entitle Buyer to either (i) terminate this Agreement (including but not limited
to any rights or obligations of the Parties set forth herein with respect to the Lease/Option
Agreement or Phase 11 Property) by written notice to Seller, and receive a return of the Earnest
Money Deposit, which Escrow Agent shall return without further confirmation or action by
Seller immediately upon Buyer's demand; or (ii) waive its objection to such exception and close.
The Approved Exceptions and any other exceptions that Buyer approves in writing shall be
referred to hereinafter as the "Permitted Exceptions."
2841/86 05/05/17 -3- psa v 19
tread\HA1ARiverhend Joint Venture
4.3 Title Policy. As a condition to Buyer's obligation to close this
transaction, the Title Company shall irrevocably commit to issue to Buyer at Closing an Owner's
Standard Coverage Title Insurance Policy (ALTA Form 2006) ("Title Policy"). The Title Policy
shall be issued in the amount of the Purchase Price paid at Closing for the Phase I Property and
shall insure fee simple, indefeasible title to the Phase I Property in Buyer, subject only to the
Permitted Exceptions. At Buyer's request and expense, the Title Policy shall be issued in the
form of extended coverage and shall contain such other endorsements as Buyer may request and
Title Company is willing to issue, but issuance of such coverage and/or endorsements shall not
be a condition to Closing. Buyer's obligation to close this transaction shall be contingent on
Buyer's receipt of such Title Policy.
4.4 Survey. Buyer may, at its expense, obtain a current ALTA/ASCM survey
(the "Survey") of the Property prepared by a licensed or registered surveyor.
5. Property Information. Seller has delivered or otherwise made available to
Buyer full and complete copies of all of the following documents in the possession of Seller as
they relate to the Property: (i) existing surveys and topographical maps of the Property; (ii)
government permits, licenses, approvals, development applications and submittals, development
approvals and related significant correspondence; (iii) easements, leases, licenses, covenants,
conditions, restrictions, concomitant agreements, utility agreements, or other agreements,
regardless of purpose or use, associated with the Property and not contained in the Commitment;
and (iv) studies or other reports and information in the possession of Seller which pertain in any
way whatsoever to the Property, including without limitation, the condition thereof and/or any
present or potential development and/or use of the Property, all material documents, contracts,
plans, specifications and drawings related to the construction and development of the Property,
geotechnical reports, environmental studies, appraisals, traffic studies, and market research and
specifically including the draft "Meeker Street Corridor Plan" previously supplied to Buyer. In
addition, Seller has advised Buyer of a source for information relating to the condition of the
Green River levee systems in place adjacent to the Property. During the term of this Agreement,
Seller shall provide to Buyer within three (3) business days of Seller's receipt such additional
materials described above (or supplements thereto) as come into Seller's possession during the
term of this Agreement. All items and information described in this Section 5, together with
subsequent additions to or revisions of such documents(collectively,the"Property Information")
are being supplied to Buyer without representation or warranty of any kind whatsoever as to
accuracy or completeness and solely for informational purposes and are not intended for reliance
by Buyer.
6. Contingency Period; Closing Conditions.
6.1 Contingency Period. The "Contingency Period" shall begin with mutual
execution of this Agreement, and end at 5 p.m. local Pacific time on September 1, 2017,
provided that if on such date any project approval described in Section 6.2 below remains subject
to an appeal period, or if any such project approval is then subject to a pending appeal, then the
Contingency Period shall be extended until the first business day following the date on which all
appeal periods have expired without an appeal being taken, or if any appeal was taken within an
applicable appeal period, then until all such appeals have been resolved on terms satisfactory to
Buyer.
2841/86 05/05/17 -4- psa v19
treadMAIARiverbend Joint Venture
Buyer and its employees and agents shall have the right and permission from the
date of this Agreement through the Closing Date (or earlier termination of this Agreement) and
upon 48 hours prior notice to Seller to enter upon the Property or any part thereof at all
reasonable times and from time to time for the purpose of making all soil and other tests, studies
or investigations under the provisions of this Agreement, all at Buyer's sole cost and expense and
in Buyer's sole discretion. In the event Buyer fails to close this transaction, Buyer shall restore
the Property to its previous condition existing prior to the commencement of such testing or
studies. If Buyer elects not to proceed with this transaction, before or after the Contingency
Period, Buyer shall provide to Seller all test results, surveys, drafts, preliminary plat drawings,
and all other documents or information pertaining to the condition or development of the
Property. Notwithstanding anything to the contrary in this Section 6.1, no invasive drilling,
investigations, testing, or sampling shall be conducted without Seller's prior written and specific
approval, which approval shall not unreasonably be withheld, but may be reasonably conditioned
so as to protect the Property. Any environmental assessments of the Property shall be subject to
obtaining Seller's prior approval of the plan for performing the environmental assessments,
which approval Seller shall not unreasonably withhold or delay. If any environmental
assessments are performed, upon the written request of Seller, Buyer shall cause to be prepared
at no cost to Seller,a written report of the results thereof certified to Seller.
Buyer acknowledges and agrees that (i) whether the Property will be satisfactory
to Buyer is unknown, (ii) Buyer's efforts to inspect and investigate the Property shall be at its
sole risk, cost and expense and (iii) if this Agreement is terminated for any reason other than
Seller's default, Buyer will not be reimbursed by Seller for any costs and expenses incurred in
evaluating and investigating the Property or otherwise in preparing to purchase or finance the
Property. Buyer shall indemnify, defend, and hold Seller harmless from any lien, liability, claim,
demand, injury, loss, expense or damage arising out of Buyer's inspections and/or Buyer's
agent's, consultant's or other representative's entry onto the Property, provided that Buyer shall
not be responsible to Seller for the consequences of Buyer's mere discovery of a latent defect or
pre-existing condition (such as the presence of contaminated soils or groundwater) at the
Property.
6.2 Buyer's Contingencies. Buyer has inspected and approved of the
physical condition and development potential of the Property, including, without limitation,
conducting of soil tests (including borings), toxic and hazardous waste studies, surveys,
engineering, historical use, traffic and access studies, and review of zoning, fire, safety and other
compliance matters, as Buyer desires. Buyer has also reviewed and approved the Property
Information. However, Buyer's obligation to purchase the Property remains subject to and
contingent upon Buyer's satisfaction with, or waiver of, the following matters prior to Closing,
all at Buyer's expense and in Buyer's sole discretion: the Kent City Council shall have approved
the Development Agreement, the mitigated determination of non-significance, and the shoreline
substantial development permit for the Project, all on terms satisfactory to Buyer, all appeal
periods with respect to all such approvals shall have expired without an appeal, or if any appeal
is so taken, any and all such appeals so taken shall have been resolved on terms satisfactory to
Buyer, and the Parties shall have executed and recorded the Development Agreement.
6.3 Mutual Contingency. In addition to the other conditions set forth herein,
the obligations of Seller, on the one hand, and Buyer, on the other hand, to consummate the
2841/86 05/05/17 -5- psa V19
treadWAIARiverhend Joint Venture
transactions contemplated hereunder shall be subject to their agreement, prior to the end of the
Contingency Period, on the form and contents of(a) an option to repurchase agreement between
Buyer and Seller ("Option to Repurchase Agreement") and a recordable memorandum thereof
("Memorandum of Option to Repurchase Agreement"); (b) a guaranty of completion and
performance from FNW, Inc. in favor of Seller ("Completion Guaranty"); (c) the Lease/Option
Agreement and a recordable memorandum thereof(the "Memorandum of Lease/Option"); (d) an
agreement concerning transfer and encumbrance restrictions on the Phase I Property (the
"Negative Pledge") and a recordable memorandum thereof (the "Memorandum of Negative
Pledge"); and (e) a development schedule satisfactory to Buyer and Seller for Buyer's submittal
of applications for, and for Seller's processing and approval of, entitlements and permits required
for Buyer's development of the Property. The documents described in clauses (a) through (e)
above are collectively referred to herein as the "Project Agreements." The Project Agreements, in
each case, must contain the fundamental business terms set forth in Exhibit C attached hereto and
such additional terms, conditions, representations and warranties as any of the parties thereto
may reasonably require.
6.4 Failure of Continaeney Period Condition. If each party does not
provide written notice to the other party of satisfaction or waiver of the conditions applicable to
such party set forth in Sections 6.2 and 6.3 above prior to the end of the Contingency Period, the
Escrow Agent shall return the Earnest Money Deposit to Buyer, and this Agreement shall
terminate and neither party shall have any further obligations hereunder except as specifically set
forth herein. If the Parties provide such written notice prior to the end of the Contingency
Period, then this Agreement shall continue in effect and Escrow Agent shall release the Earnest
Money Deposit to Seller.
Notwithstanding Buyer's written satisfaction or waiver of the conditions set forth
in Sections 6.2 and 6.3 above, Buyer reserves the right at any time during the term of this
Agreement to terminate the Agreement by written notice to Seller. In such instance, all Buyer's
obligations hereunder under this Agreement shall terminate (except for those that expressly
survive Closing), and if the termination is made after the satisfaction or waiver of the
contingencies in Section 6.2, then the Earnest Money Deposit shall be retained by Seller, except
in case of termination due to Seller's default, and except as otherwise expressly provided herein.
6.5 Additional Closing Conditions. In addition to the conditions stated in
Sections 6.2 and 6.3 above, the following conditions that must be satisfied as of Closing (unless
some other date is specified below), unless waived in writing by the applicable party at or prior
to Closing:
6.5.1 Buyer's Conditions.
(a) All representations and warranties of Seller contained
herein shall be true, accurate and complete in all material respects at the time of the Closing as if
made again at such time;
(b) Seller shall have performed all obligations to be performed
by it hereunder on or before Closing (or, if earlier, on or before the date set forth in this
Agreement for such performance);
2841/86 O905/17 -6- psa v19
treadUWARivabend Joint Venture
(c) At Closing, Title Company shall deliver title to the Phase I
Property in the condition required by Section 4 of this Agreement;
(d) Buyer's application for the Short Plat shall have been
approved for recording in a final form acceptable to the Parties and shall have been recorded at
or before Closing;
(e) Buyer's application for a multifamily tax exemption for the
Phase I Property pursuant to RCW Chapter 84.14, which shall be submitted by Buyer to Seller
not fewer than ninety (90) days prior to Closing, shall have been approved by Seller in a form
acceptable to the Parties (Seller agrees not to unreasonably withhold its approval of Buyer's
multifamily tax exemption application for the Phase 11 Property when that application is
submitted);
(f) At Closing, the physical condition of the Property shall be
the same as on the date hereof, excluding only ordinary wear and tear and changes caused by
Buyer or its agents or contractors and subject to the provisions of Section 11 below; and
(g) All of the parties to the various Project Agreements have
approved the final forms of the Project Agreements for execution and, where applicable,
recording at Closing.
6.5.2 Seller's Conditions.
(a) All representations and warranties of Buyer contained
herein shall be true, accurate and complete in all material respects at the time of Closing as if
made again at such time;
(b) Buyer shall have performed all obligations to be performed
by it hereunder on or before Closing, including, without limitation, Buyer's obligation to pick up
and pay for permits under Section 11 below(unless some other date is specified herein);
(c) The Kent City Council shall have approved the
Development Agreement, any appeal period with respect to such approval shall have expired
without an appeal, or if any appeal is so taken, any and all such appeals so taken shall have been
resolved on terms satisfactory to Buyer, and the Parties shall have executed and recorded the
Development Agreement;
(d) All of the parties to the various Project Agreements have
approved the final forms of the Project Agreements for execution, and, where applicable,
recording at Closing; and
(e) Buyer's application for the Short Plat shall have been
approved for recording in a final form acceptable to the Parties and shall have been recorded at
or before Closing.
6.6 Failure of Additional Closing Conditions. So long as a party is not in
default hereunder, if any condition to such party's obligation to proceed with Closing has not
2841/86 05/05/17 -7. psa v 19
treadMAIARiverkrid Joint Venture
been satisfied as set forth in Section 6.5, then such party may elect to terminate this Agreement,
in which event the Earnest Money Deposit shall be returned to Buyer in all cases save for
termination due to Buyer's default.
7. Lease/Option Agreement. At Closing Seller and Buyer shall execute the
Lease/Option Agreement, and the Earnest Money Deposit shall be converted to be the Option
Payment described in the Lease/Option Agreement pursuant to the terms of the Lease/Option
Agreement.
8. Representations and Warranties. In order to induce each other to enter into this
Agreement, the Parties hereby make the following representations and warranties as of the
"Closing Date."
8.1 Seller's Representations and Warranties.
8.1.1 Authorization. Seller has or will have, subject to Kent City
Council approval, full power and authority to enter into, execute, deliver and perform this
Agreement and all agreements and documents contemplated hereby. All documents to be
delivered by Seller at Closing will be, authorized and properly executed and constitutes, or will
constitute, as appropriate, the valid and binding obligation of Seller enforceable in accordance
with their terms. Neither the execution of this Agreement nor its performance by Seller will
conflict with or result in the breach of any statute, regulation, ordinance, covenant, agreement, or
other undertaking to which Seller is a party or by which Seller is bound.
8.1.2 Litigation. Seller has received no notice of, there is no pending,
or, to Seller's knowledge, threatened, litigation, condemnation, investigation or other legal
proceeding affecting the Property or any portion thereof, and there are no actions, suits,
proceedings, orders, administrative proceedings or investigations pending or threatened against
or affecting the Property, which might adversely affect (a) Seller's performance under this
Agreement; or (b) the current zoning status of the Property; and there are no pending or
threatened public improvements in, about, or outside the Property which have resulted in or
might result in the imposition of any assessment, lien, or charge against the Property.
8.1.3 Compliance with Law. Except as delivered to Buyer as part of
the Property Information, Seller has not received any notification from any governmental
authority requiring any work to be done on the Property or advising of any condition (including,
without limitation, hazardous substances or wastes) that would adversely affect the use or
development of the Property. To Seller's knowledge, there are no hazardous substances or waste
present in, on or under the Property in any manner or quantity that would violate any applicable
law or regulation.
8.1.4 Service Contracts. There are no service or maintenance contracts
or any other contracts, licenses or permits affecting the Property (the "Service Contracts") not
provided to Buyer as part of the Property Information.
8.1.5 Defaults. Seller is not in default and there has occurred no
uncured event that, with notice, the passage of time or both would be a default, under any
2841186 05/05/17 -8- psa v19
1read\HA1.\Riverbend Joint Venture
material contract, agreement, lease, encumbrance, or instrument pertaining to the Property which
will be binding on Buyer or the Property after Closing.
8.1.6 Non-Foreign Person. Seller is not a "foreign person" as defined
in Section 1445 of the Internal Revenue Code of 1986,as amended, and any related regulations.
8.1.7 Assumption of Liabilities. Except for those obligations expressly
assumed by Buyer under the terms of this Agreement or any other agreement executed by Buyer
and delivered at Closing, Buyer, by virtue of the purchase of the Phase 1 Property, will not be
required to satisfy any obligation of Seller with respect to the Phase 1 Property arising prior to
the Closing Date. Other than such obligations so expressly assumed by Buyer or any liens or
other obligations with respect to the Property that result from any action or activities by or on
behalf of Buyer, Seller will pay and discharge any and all liabilities of each and every kind
arising out of or by virtue of the possession, ownership or use of the Property prior to the Closing
Date,and shall indemnify, defend and hold Buyer harmless therefrom.
8.1.8 Multifamily Tax Exemption. Seller has caused the Property to be
designated as a residential targeted area pursuant to RCW 84.14.040.
As used herein, the term "Seller's knowledge" shall mean the current actual
knowledge, without any duty of investigation or inquiry, of Kurt Hanson, Ben Wolters, and Tom
Brubaker, all of whom are employees of Seller, and shall not be construed to refer to any other
employee or agent of Seller.
8.2 Buyer's Representations and Warranties. As a material inducement to
Seller to execute this Agreement and consummate this transaction, Buyer represents and
warrants to Seller that:
8.2.1 Power and Authority. Buyer has been duly organized and validly
existing. Buyer has the full right and authority and has obtained any and all consents required to
enter into this Agreement and to consummate or cause to be consummated the transactions
contemplated hereby. This Agreement has been, and all of the documents to be delivered by
Buyer at the Closing will be, authorized and properly executed and constitutes, or will constitute,
as appropriate, the valid and binding obligation of Buyer, enforceable in accordance with their
terms.
8.2.2 Conflicts and Pending Action. There is no agreement to which
Buyer is a party or to Buyer's knowledge binding on Buyer which is in conflict with this
Agreement. There is no action or proceeding pending or, to Buyer's knowledge, threatened
against Buyer which challenges or impairs Buyer's ability to execute or perform its obligations
under this Agreement.
8.2.3 Compliance with Anti-Terrorism, Embargo and Anti-Money
Laundering. (i) None of Buyer or any Person who owns any direct equity interest in or
controls Buyer currently is identified on the OFAC List or otherwise qualifies as a Prohibited
Person and (ii) none of Buyer or any Person who owns any direct equity interest in or controls
Buyer is in violation of any applicable laws relating to anti-money laundering or anti-terrorism,
including, without limitation, any applicable laws related to transacting business with Prohibited
2841/86 05/05/17 -9- psa v19
treadkIIALARiverhend Joint Vcnturc
Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and
the related regulations issued thereunder, including temporary regulations, all as amended from
time to time. For purposes hereof. (1) the term "Person" shall mean any individual, corporation,
limited liability company, partnership,joint venture, estate, trust, unincorporated association, any
federal, state, county or municipal government or any bureau, department or agency thereof and
any fiduciary acting in such capacity on behalf of Buyer; (2) the term "Prohibited Person" shall
mean any Person identified on the OFAC List or any other Person with whom a U.S. Person may
not conduct business or transactions by prohibition of Federal law or Executive Order of the
President of the United States of America; (3) the term "OFAC List" shall mean the list of
specially designated nationals and blocked persons subject to financial sanctions that is
maintained by the U.S. Treasury Department, Office of Foreign Assets Control and accessible
through the internet website www.treas.gov/ofac/t11 sdn.pdf.
8.3 General Provisions Regarding Representations and Warranties.
8.3.1 Survival. The representations and warranties set forth in this
Section 8 are made as of the Date of this Agreement. Such representations and warranties shall
not be deemed to be merged into or waived by the Deed, but shall survive the delivery of the
Deed and the Closing.
8.3.2 Update of Representations and Warranties Prior to Closing. From
time to time after the Date of this Agreement through the Closing, a party may deliver written
notice to the other party that updates or otherwise modifies the representations and warranties in
this Agreement. If any such update or modification causes a representation or warranty of a
party to be materially inaccurate and the party has not elected to cure such inaccuracy within ten
(10) business days of delivery of such written notice (the Closing Date shall be extended
accordingly if the party elects to cure), then the other party may terminate this Agreement by
written notice to the other party, in which event the Earnest Money Deposit shall be immediately
returned to Buyer and neither party shall have further obligations hereunder; provided, however,
that in the event of an update or modification that causes a representation or warranty of Buyer to
be materially inaccurate following Buyer's satisfaction with or waiver of the Contingency Period
conditions was caused by an act or omission of Buyer, then Seller shall be entitled to retain the
Earnest Money Deposit and neither party shall have further obligations hereunder save for those
obligations that survive termination; and provided further, however, that in the event of an
update or modification that causes a representation or warranty of Seller to be materially
inaccurate that was caused by an act or omission of Seller, then Buyer shall be entitled to
terminate this Agreement and exercise its remedies under Section 19.2 below. If the Electing
Party does not elect to terminate this Agreement, then the Electing Party shall be deemed to have
waived its right to terminate this Agreement on account of such inaccuracies and the other
party's representations and warranties shall be deemed to have been remade with the changes set
forth in such written notice.
8.3.3 Certificate at Closing. At Closing each party shall execute and
deliver a certificate stating that the representations and warranties made by such party herein are
true and correct in all material respects as of the Closing Date, except as to facts, if any, which
were previously disclosed in writing to the other party as described herein.
2841/86 05/05/17 - 10- psa v19
tread\HAL\Riverbend Joint Venture
9. Disclaimer and Waiver of Claims. BUYER IS PURCHASING THE PROPERTY,
INCLUDING ']'HE PERSONAL PROPERTY AND ALI, BUILDINGS, STRUCTURES AND'
IMPROVEMENTS, "AS IS", "WHERE IS", "WITH, ALL FAULTS", IN ITS PRESENT
CONDITION. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS
OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT" TO, AND SHALL HAVE NO
LIABILITY FOR: (A) THE CONDITION OF THE PROPERTY,INCLUDING THE PERSONAL
PROPERTY AND ALL BUILDINGS, STRUCTURES AND IMPROVImENTS, OR '['HE
SUITABILITY, SALEABILITY, HABITABILITY, MERCHANTABILFrY, OR FITNESS
THEREOF FOR BUYER'S, INTENDED USE; (B) ANY APPLICABLE BUILDING, ZONING OR
OTHER LAWS, ORDINANCES OR REGULATIONS OR WITH RESPECT 'To COMPLIANCE
THEREWITH OR WITH RESPECT TO THE, EXISTENCE, AVAILABILITY OR ADEQUACY
OF, OR COMPLIANCE WITH, ANY ENTITLEMENTS, PERMITS, LICENSES, Oil
APPROVALS; (C) THE AVAILABILITY, ADEQUACY OR EXISTENCE OF ANY WATER,
SEWER OR ANY OTHER UTILITIES OR ANY RIGI-l"I'STHERE'ro; (D) ,fIIE PRESENCE OF
ANY THREATENED OR ENDANGERED SPECIES OR CRITICAL AREAS OR ANY
HAZARDOUS SUBSTANCES ON, AT OR UNDER THE PROI-,FR-rY, INcl,UDING THE
PERSONAU PROPERTY AND ALI, BUILDINGS, STRUCTURES AND IMPROVEMENTS,,
INCLUDING WITHOUT LIMITATION ASBESTOS OR UREA-FORMALDEHYDE, OR THE
PRESENCE OF ANY ENVIRONMENTALLY HAZARDOUS WASTES OR MATERIALS
THEREON OR THEREUNDER; OR (E) ANY OTHER MATTER OR CONDITION RELATING
TO THE PROPERTY, INCLUDING THE PERSONAL PROPERTY AND ALL BUILDINGS,
STRUCTURES AND IMPROVEMENTS, WITIlour LIMITING THE GENERALITY OF THE
FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER SHALL HAVE NO LIABILITY
WITH RESPECT TO THE CONDITION OF THE PROPERTY, INCLUDING THE PERSONAL
PROPERTY AND ALI., BUILDINGS, STRUCTURES AND IMPROVEMENTS, UNDER
COMMON LAW, OR ANY FEDERAL, STATE, OR LOCAL LAW OR REGULATION,
INCLUDING BUT NOT LIMITED 'TO 'I'HE HE COMPREHENSIVE ENVIRONMENTAL
RESIlONSE, COMPENSATION AND LIABILITY ACT OF 1980 AS AMENDED, 42 U.S.C.A.
SECTIONS 9601 ET SEQ. ORTHE MODEL TOXICS CONTROL ACT, AS CODIFIED IN RCW
70.105D. BUYER ACKNOWLEDGES THAT BUYER WILL HAVE FULLY INSPECTED THE
PROPERTY, INCLUDING I I HE PERSONAL 1-111OPERTY AND ALL BUILDINGS,
STRUCTURES AND IMPROVEMENTS,THE PROPERTY INFORMATION AND ALL OTHER
ASPECT'S OF PROPERTY, INCLUDING 'THE PERSONAL PROPERTY AND ALL
BUILDINGS, STRUCTL)T RES AND IMPROVEMENTS, AND IS NOT RELYING ON ANY
REPRESENTATIONS OR WARRANTIES EXCEPT" FOR AS SET FORT11 IN SECTION 8
ABOVE. BUYER ASSUMES THE RESPONSIBILITY AND RISKS OF ALL DEFECTS AND
CONDITIONS, INCLUDING,WITHOUT LIMITATION, SUCH DEFECTS AND CONDITIONS,
IF ANY, THAT CANNOT BE OBSERVED BY CASUAL INSPECTION. BUYER HEREBY
SPECIFICALLY ACKNOWLEDGES THAT BUYER HAS CAREFULLY REVIEWED THIS
SECTION, AND DISCUSSED ITS MEANING WITH LEGAL COUNSEL OF ITS CHOICE, IS
FULLY AWARE OF 11 1 S CONSEQUENCES, AND THAT TRE PROVISIONS OF THIS
SECTION ARE A MATFRIAL PART OF THIS AGREEMENT AND ARE INTENDED TO BE
BINDING ION Bt EIZ AND rrs SUCCESSORS AND ASSIGNS. THIS SECTION SHALL
SURVIVE N
Buyer's Initials:
10. Se er Disclosure Statement. Waiver of Right to Receive Seller DiSCIOSUre
Statement and Waiver of Right to Rescind. PLTSUANTTO RCW Cll. 64.06 AS AMENDED
294118605/05/17 psa V19
Vcnturc
BY CHAPTER 64, LAWS OF 2010, BUYER HEREBY WAIVES ITS RIGHT TO RECEIVE
THE SELLER DISCLOSURE STATEMENT REFERRED TO THEREIN WITH RESPECT TO
THE PROPERTY. THIS WAIVER DOES NOT EXTEND 'rO THE SECTION OF THE
DISCLOSURE STATEMENT ENTITLED "ENVIRONMENTAL".
10.1 Environmental Section Only. Seller shall provide to Buyer with the
"Environmental" section of the Seller Disclosure Statement during the Contingency Period, and
by executing this Agreement, Buyer waives its right to receive the balance of the completed
Seller Disclosure Statement with respect to the Property.
10.2 No Reliance. Buyer further agrees that any information discovered by
Buyer concerning the Property shall not obligate Seller to prepare and deliver to Buyer a revised
or updated Seller Disclosure Statement. Buyer hereby waives any right to receive an updated or
revised Seller Disclosure Statement, regardless of the source of any new information. Buyer
further warrants that it is a sophisticated buyer who is familiar with the ownership and
development of real estate projects similar to the Property and Buyer has or will have adequate
opportunity to complete such independent inspections of the Property it deems necessary, and
will acquire the Property solely on the basis of and in reliance upon such examinations and not
on any information provided in any Seller Disclosure Statement or otherwise provided or to be
provided by Seller or by anyone acting or claiming to act by, through or under or on Seller's
behalf.
10.3 Waiver of Right to Rescind. BUYER HEREBY WAIVES, TO THE
FULLEST EXTENT PERMISSIBLE BY LAW, THE RIGHT TO RESCIND THIS
AGREEMENT PURSUANT TO ANY PROVISION OF RCW 64.06, AS IT MAY BE
AMENDED FROM TIME TO TIME. IT IS THE INTENT OF BUYER THAT ANY SELLER
DISCLOSURE STATEMENT PROVIDED BY SELLER WILL NOT BE RELIED UPON BY
BUYER, AND SHALL GIVE BUYER NO RIGHTS WITH RESPECT TO SELLER OR
UNDER THIS AGREEMENT. THIS WAIVER OF THE RIGHT TO RESCIND APPLIES TO
THE SELLER DISCLOSURE. STATEMENT PROVIDED TO BUYER DURING THE
INSPECTION PERIOD AND APPLIES PROSPECTIVELY TO ANY UPDATED OR
REVISED SELLER DISCLOSURE STATEMENTS THAT MAY BE PROVIDED BY
SELLER TO BUYER, THE PROVISIONS OF THIS SECTION 10.3 SHALL SURVIVE THE
CLOSING.
11. Operations Pending Closing. Seller shall maintain the Property in substantially
the condition existing as of the mutual execution date of this Agreement, and Seller shall make
no material alterations to the Property or any portion thereof nor record any encumbrance
binding on the Property prior to Closing without Buyer's consent except as contemplated herein;
provided, however, that Seller, in Seller's sole discretion, may elect to remove, relocate or
demolish prior to Closing the existing Par 3 modular building now in place on the Property.
Seller shall terminate all existing leases and licenses regarding the Property at or prior to the
Closing Date, and shall cause all tenants and other occupants to have vacated the Property as of
the Closing Date.
2841/86 05/05/17 -12- psa 09
treadlHAIARiverbend Joint Venture
Seller will provide to Buyer complete copies of all service contracts currently affecting
the Property as part of the Development Documents. Seller will terminate as of Closing any
service contracts affecting the Property.
Following mutual execution of this Agreement, Buyer shall use good faith, diligent
efforts to apply for, process and complete all grade, fill and mainline civil construction permits
for the Phase I Property and the Phase II Property, i.e., all on-site and off-site public and private
mainline infrastructure, including water, storm water, sanitary sewer utilities, traffic/pedestrian
improvements, and including all "Meet Me on Meeker" improvements, and including permits for
Phase I Property geo-piers and the Phase I podium building foundation permit. Seller shall
cooperate with Buyer's efforts to apply for, process and obtain these permits. Buyer shall be
required to pick up and pay for the permits described in this paragraph by March 15, 2018.
12. Closing and Escrow.
12.1 Closing Date. "Closing" shall occur when the deed to Buyer is recorded
for the Phase I Property and the Purchase Price payable at the Closing is delivered to the Escrow
Agent for delivery to Seller. The date on which Closing occurs is referred to herein as the
"Closing Date." The Closing shall be held at the offices of the Escrow Agent, and will occur on
or before April 2, 2018.
12.2 Documents to be Delivered by Seller. For and in consideration of, and
as a condition precedent to, the payment to Seller of the Purchase Price payable at Closing, Seller
shall execute and deliver to Escrow Agent for Closing the following documents (all of which
shall be duly executed and acknowledged where required):
12.2.1 Deed. A bargain and sale deed ("Deed") for the Phase I Property
in the form of attached Exhibit E and subject only to the Permitted Exceptions.
12.2.2 Title Documents. All required excise and transfer affidavit(s)
required by applicable state and local law to be filed by Seller in connection with conveyance of
the Phase I Property.
12.2.3 General Assignment. Seller shall provide Buyer with a general
assignment in the form of attached Exhibit F (the "Assignment").
12.2.4 Nonforeign Affidavit. An affidavit by Seller confirming that
Seller is not a foreign person within the meaning of 26 U.S.C. § 1445 and the regulations issued
thereunder.
12.2.5 Proieet Agreements. The final forms of the Project Agreements.
12.2.6 Closing Certificate. The closing certificate required by Seller
pursuant to Section 8.3.3.
12.2.7 Development Agreement. The final form of the Development
Agreement.
2841/86 05/05/17 -13- psa v19
tread\ JAI ARiverbend Joint Venture
12.2.8 Additional Documents. Such additional documents as might
reasonably be required by Title Company for Closing.
12.3 Deliveries by Buyer. Buyer shall deliver to Seller at Closing the
Purchase Price payable for the Closing, together with an executed real estate excise tax affidavit,
Assignment, the Development Agreement, the Project Agreements, the closing certificate
required by Buyer pursuant to Section 8.3.3 and any other documents reasonably required by
Title Company for Closing.
12.4 Payment of Costs. At Closing, Seller and Buyer shall pay their own
respective costs incurred with respect to the consummation of the purchase and sale of the
Property including, without limitation, attorneys' fees. Notwithstanding the foregoing, Seller
shall pay the standard coverage portion of the premium for the owner's Title Policy to be issued
by Title Company to Buyer and the fee to record the Deed. Buyer shall pay the extended
coverage portion of the premium for the owner's Title Policy, the costs of the Survey and any
endorsements requested by Buyer. Seller and Buyer shall each pay one-half(%2) of the escrow
fee. Seller agrees to pay the real estate excise tax, if any.
12.5 Prorations. The real property taxes and assessments shall be prorated
using the most recent tax information available. In the event that the Property has been placed in
a forestry, agricultural or open space tax classification, Seller agrees to remove the Property from
said classification and Escrow Agent shall pay any previously unpaid back taxes due from the
Seller's proceeds at Closing. Escrow Agent shall be responsible for reporting the Closing to the
Internal Revenue Service pursuant to Section 6045 of the Internal Revenue Code.
12.6 Monetary Liens. Seller shall pay or cause to be satisfied at or prior to
Closing all monetary liens on or with respect to all or any portion of the Property, including, but
not limited to, mortgages, deeds of trust, security agreements, assignments of leases, rents and/or
easements, judgment liens, tax liens (other than those for taxes not yet due and payable) and
financing statements.
12.7 Deposit with Escrow Agent and Escrow Instructions. This Agreement
shall serve as the instructions to Escrow Agent for consummation of the purchase and sale
contemplated hereby. Seller and Buyer agree to execute such additional and supplementary
escrow instructions as may be appropriate to enable the Escrow Agent to comply with the terms
of this Agreement; provided, however, that in the event of any conflict between the provisions of
this Agreement and any supplementary escrow instruction, the terms of this Agreement shall
control.
At Closing, Escrow Agent shall record the Deed, the Development Agreement,
the Memorandum of Option to Repurchase Agreement, the Memorandum of Lease/Option, and
the Memorandum of Negative Pledge.
12.8 Right to Waive. Buyer reserves the right, in its exclusive discretion, to
waive all contingencies and any Buyer conditions to Closing.
13. Possession. Seller shall deliver possession of the Property to Buyer on the
Closing Date subject only to the Permitted Exceptions.
2841/86 05/05/17 - 14- psa v14
tread\HAURlverbend Joint Venture
14. Condemnation. In the event of the commencement of any proceedings in
eminent domain or condemnation (collectively, "Condemnation") respecting the Property or any
portion thereof, Buyer may elect, by written notice to Seller, to terminate this Agreement and the
escrow created pursuant hereto and be relieved of its obligation to purchase the Property. If
Buyer makes such election, the Earnest Money Deposit and other sums delivered to Escrow
Agent or Seller by Buyer promptly shall be returned to Buyer and neither Buyer nor Seller shall
have any further liability to the other and shall be relieved of all obligations hereunder. If Buyer
fails to make such election prior to the Closing Date, this Agreement shall continue in effect,
there shall be no reduction in the Purchase Price, and Seller shall, prior to the Closing Date,
assign to Buyer, by an assignment agreement in form and substance satisfactory to Buyer, its
entire right, title and interest in and to any condemnation award or settlement made or to be made
in connection with such Condemnation proceeding. Buyer shall have the right at all times to
participate in all negotiations and dealings with the condemning authority and approve or
disapprove any proposed settlement in respect to such matter. Seller shall forthwith notify Buyer
in writing of any such Condemnation respecting the Property.
15. Casualty. If any earthquake, windstorm or other casualty occurs and materially
affects all or any portion of the Property on or after the date of this Agreement and prior to the
Closing, Seller shall promptly give Buyer written notice of any damage to the Property and
Buyer may elect, within ten (10) days of receipt of Seller's notice, to terminate this Agreement
by written notice to Seller and be relieved of its obligation to purchase the Property. If Buyer
makes such election, the Earnest Money Deposit and other sums delivered to Escrow Agent or
Seller by Buyer promptly shall be returned to Buyer and neither Buyer nor Seller shall have any
further liability to the other and shall be relieved of all obligations hereunder. if Buyer fails to
timely make such election, this Agreement shall continue in effect, the Purchase Price shall be
reduced by the amount of loss or damage occasioned by such casualty not covered by insurance,
and Seller shall, prior to the Closing Date, assign to Buyer, by an assignment agreement in form
and substance satisfactory to Buyer, its entire right, title and interest in and to all insurance
claims and proceeds to which Seller may be entitled in connection with such casualty.
16. Notices. Unless applicable law requires a different method of giving notice, any
and all notices, demands or other communications required or desired to be given hereunder by
any party (collectively, "notices") shall be in writing and shall be validly given or made to
another party if delivered either personally or by Federal Express or other overnight delivery
service of recognized standing, or if deposited in the United States Mail, certified, registered, or
express mail with postage prepaid, or if sent by electronic mail. If such notice is personally
delivered, it shall be conclusively deemed given at the time of such delivery. If such notice is
delivered by Federal Express or other overnight delivery service of recognized standing, it shall
be deemed given the next business day after the deposit thereof with such delivery service. If
such notice is mailed as provided herein, such shall be deemed given two (2) business days after
the deposit thereof in the United States Mail. If such notice is given by electronic mail, it shall
be deemed given on the date shown on the electronic confirmation of transmission. Each such
notice shall be deemed given only if properly addressed to the party to whom such notice is to be
given as follows:
2841/86 05/05/17 - 15- psa 09
tread\]ALlRiverbend Joint Venture
To Seller: City of Kent
220 Fourth Avenue South
Kent, WA 98032
Attn: Tom Brubaker and Kurt Hanson
Email: trubaker@kentwa.gov and
khanson@kentwa.gov
With a copy to: Foster Pepper PLLC
1 I I 1 Third Avenue, Suite 3000
Seattle, WA 98101-3299
Attn: Beth Clark
Email: beth.clark@foster.com
To Buyer: Marquee on Meeker LLC
c/o Landmark Development Group
2711 West Valley Highway North
Suite 200
Auburn, WA 98001
Attn: Brett Jacobsen
Email: bjacobsen@fnw-inc.com
With a copy to: Marquee on Meeker LLC
Attn: Jonathan Manheim
HAL Real Estate Inc.
2025 First Avenue, Suite 700
Seattle, WA 98121
Email: jmanheim@halrealestate.com
and: Alston, Courtnage & Bassetti LLP
Attn: Tom Read
1420 5t"Avenue, Suite 3650
Seattle, WA 98101-4011
Email: tread@alcourt.com
Any party hereto may change its address for the purpose of receiving notices as herein provided
by a written notice given in the manner aforesaid to the other party hereto.
17. Survival of Representations and Warranties. All representations, warranties,
covenants and agreements of the Parties contained in this Agreement, or in any instrument or
other writing provided for herein, shall survive the Closing.
18. Finders' or Brokers' Fees. Each of the Parties represents and warrants that it has
not dealt with any broker, finder or consultant other than Matt Kemper of Jones Lang LaSalle to
which a commission, consultant fee or other fee is due in connection with any of the transactions
contemplated by this Agreement and insofar as it knows, no other broker, consultant or other
person is entitled to any commission, charge or finder's fee in connection with the transactions
contemplated by this Agreement. Seller shall be responsible for any fee due to Matt Kemper of
2841/86 05/05/17 -16- psa 09
tread\HAL\Riverbend Joint Venture
Jones Lang LaSalle. The Parties each agree to indemnify, defend and hold harmless the other
party against any loss, liability, damage, cost, claim or expense, including interest, penalties and
reasonable attorneys' fees, that the other party shall incur or suffer by reason of a breach by the
first party of the representation and warranty set forth above.
19. Event of Default.
19.1 Seller's Remedies. In the event of a failure by Buyer to complete Closing
without legal excuse, Seller shall be entitled to terminate this Agreement and retain the Earnest
Money Deposit as liquidated damage as Seller's sole and exclusive remedy for any failure by
Buyer to close; provided, however, that the foregoing shall be in addition to, and not limit
Buyer's indemnification obligations herein. For any other breach or default by Buyer under this
Agreement, Seller's remedy shall be limited to bringing an action for actual damages, provided
that Seller shall not be able to recover consequential damages or lost profits.
19.2 Buyer's Remedies. In the event of any default by Seller without legal
excuse, Buyer shall be entitled, at Buyer's option and as Buyer's sole and exclusive remedy,
either to: (a) terminate this Agreement, in which event the Earnest Money Deposit shall be
returned to Buyer (at which time this Agreement shall be null and void and neither party shall
have any rights or obligations under this Agreement except for those rights and obligations
which by their terms survive any such termination), and Seller shall reimburse Buyer for Buyer's
actual out-of-pocket third party costs incurred in connection with Buyer's prospective purchase
and development of the Property and substantiated in backup documentation reasonably
acceptable to Seller; provided that in no event shall the reimbursement for Buyer's out-of-pocket
third party costs exceed $1,500,000; or (b) maintain an action for specific performance of
Seller's obligations to execute and deliver the documents required to transfer and convey the
Property to Buyer, provided that any action for specific performance must be brought within
thirty (30) business days of the scheduled Closing Date.
19.3 Opportunity to Cure. Except for the failure to close without legal
excuse, which shall constitute an immediate default under this Agreement, with respect to the
breach of any other covenant, representation or warranty under this Agreement, a party shall not
be entitled to declare a default and pursue its rights and remedies for breach and default under
this Agreement until and unless notice of the breach has been given to the breaching party and
the breaching party fails to cure such breach within ten(10)days after receiving such notice.
20. Miscellaneous.
20.1 Applicable Law. This Agreement shall in all respects be governed by the
laws of the State of Washington.
20.2 Further Assurances. Each of the Parties shall execute and deliver any
and all additional papers, documents and other assurances, and shall do any and all acts and
things reasonably necessary in connection with the performance of its obligations hereunder, to
carry out the intent of the Parties.
20.3 Modification or Amendment. No amendment, change or modification of
this Agreement shall be valid, unless in writing and signed by all of the Parties.
2841/86 05/05/17 -17- psa v 19
tread\HAURiverbend Joint Venture
20.4 Assignment. Neither party may assigns its rights under this Agreement to
a third party without first obtaining the prior written approval of the other party, provided, that
no such approved assignment shall operate to release the assigning party from its obligations
hereunder. Notwithstanding the foregoing, following notice to Seller, Buyer may assign its
rights under this Agreement to an entity that is controlled, or under common control with, Buyer
or its principles.
20.5 Entire Agreement. This Agreement constitutes the entire understanding
and agreement of the Parties with respect to its subject matter and any and all prior agreements,
understandings or representations with respect to its subject matter are hereby canceled in their
entirety and are of no further force or effect.
20.6 Attorneys' Fees. Should either party bring suit to enforce this
Agreement, each party shall be responsible for its own attorneys' fees and costs and expert
witness fees, if any, incurred in connection with such lawsuit.
20.7 Headings. The captions and paragraph headings used in this Agreement
are inserted for convenience of reference only and are not intended to define, limit or affect the
interpretation or construction of any term or provision hereof.
20.8 Section 1031 Exchange. Seller and/or Buyer may wish to effect an IRC
Section 1031 tax-deferred exchange, and each party agrees to cooperate with the other to
facilitate such an exchange; provided, however, neither party shall be required to incur additional
cost or expense on the other party's behalf, nor shall either party be required to advance or
deposit monies in excess of amounts required by this Agreement for purchase of the subject
Property, and such exchange shall not cause any delays in the time periods or Closing Date
specified in this Agreement. The exchange must occur at such time and place as will conform to
IRC Section 1031, as may be amended from time to time.
20.9 Time. If any time period under this Agreement expires on a Saturday,
Sunday, or day when the recording office in the county where the Property is located is closed,
then the time period shall automatically be extended to the next weekday when such office is
open for business.
20.10 Counterparts; Email Signatures. This Agreement may be executed in a
number of identical counterparts. If so executed, each such counterpart shall be deemed an
original for all purposes, and all such counterparts shall collectively constitute one agreement,
but in making proof of this Agreement it shall not be necessary to produce or account for more
than one such counterpart. Signed copies of this Agreement may be transmitted by electronic
mail, and each copy so signed and transmitted shall be deemed an original hereof.
[signatures appear on following page]
2841/86 05/05/17 IS- psav19
tread\HAL\Riverbend Joint Venture
SELLER: BUYER:
CITY OF I EN'T MARQUEE TEEKE X
By: The Mis 'n Iri1 LLC, is manager
By:
By:
Its: LIL
Date: May 5, 2017 Date: May 5, 2017
Exhibits
Exhibit A Legal Description of the Land
Exhibit B - Site flan Depicting Approximate Boundaries Of Phase I Property and Please It
Property and Approximate Boundaries of Short flat
Exhibit C; - Fundamental Business Terms—Project Agreements
Exhibit D - Approved Exceptions
Exhibit E - Form of Deed
Exhibit I~ - Form of Assignment
2841186 05/05117 -19- psa V 19
treat\l IAL.R iverhenrl Joint ve114rlrc
EXHIBIT A
Legal Description of the Land
LEGAL DESCRIPTION:
PARCEL A:
THOSE PORTIONS OF GOVERNMENT LOTS 4 AND 5 IN THE SOUTHWEST QUARTER OF SECTION 23,TOWNSHIP
22 NORTH,RANGE 4 EAST,W.M., IN KING COUNTY,WASHINGTON,AND THAT PORTION OF THE SOUTHEAST
QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 23,ALL LYING SOUTHERLY OF SECONDARY STATE
HIGHWAY NUMBER 5-A AND WESTERLY OF JOHN DOWNEY ROAD NUMBER 722 (54TH PLACE SOUTH).
EXCEPT PORTION THEREOF PLATTED AS COLONY PARK CONDOMINIUMS AS RECORDED IN VOLUME 31 OF
CONDOMINIUMS, PAGES 55 THROUGH_57, INCLUSIVE, IN KING COUNTY,WASHINGTON;
AND EXCEPT THAT PORTION OF GOVERNMENT LOT 5 IN SECTION 23,TOWNSHIP 22 NORTH, RANGE 4 EAST,
W.M.,IN KING COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
BEGINNING ON THE CENTERLINE OF SECONDARY STATE HIGHWAY NUMBER 5-A AT HIGHWAY ENGINEER'S
STATION 163+00.00 BACK, 163+48.2 AHEAD AS SHOWN ON THE STATE HIGHWAY MAP BEARING DATE OF
APPROVAL OF JANUARY 29, 1957, REVISED MARCH 19, 1957,THE CENTERLINE OF WHICH IS ALSO SHOWN OF
RECORD IN VOLUME 1, PAGE 32 OF HIGHWAY PLATS,IN KING COUNTY, WASHINGTON;
THENCE NORTH 630 53'30" EAST,ALONG THE CENTERLINE OF SAID HIGHWAY 549.68 FEET;
THENCE SOUTH 140 51' 10" EAST, 301.01 FEET;
THENCE SOUTH 750 08' 50"WEST,60.00 FEET;
THENCE SOUTH 140 51' 10" EAST, 119.73 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING SOUTH 140 51' 10" EAST, 166.14 FEET;
THENCE NORTH 060 23' 25" EAST,55.20 FEET;
THENCE NORTH 140 51' 10"WEST, 76.19 FEET;
THENCE NORTH 420 18' 10"WEST, 43.69 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL B:
A NON-EXCLUSIVE EASEMENT FOR INGRESS, EGRESS AND UTILITIES AS DESCRIBED BY RECORDING NO.
9502040945.
2841/8605/05/17 • I - p5a V19
tread\HALlRiverbend Joint Venturc
EXHIBIT
Site Plan Depicting Approximate Boundaries
Of Phase I Property and Phasell Property
Cf Z
2841/86 05/05/17 Ina v 19
tread\l WARiverbend Joint Venture
,
1 L i n u
✓ r _
ui
LL
HIM
_ (D Lu
xo , �...
4n go
uj
Y F Q w
LU
FO-
UJas
� t
F
-20
° Q
( tv
L y/
a
... LL k
.::. n
HIM Lu
,._a.. cn 0 a
tn
� Ni -
CV
lun)' L
A 1 M
�y
�✓ n
EXHIBIT C
Fundamental Business Terms—Project Agreements
CITY OF KENT/RIVERBEND
PSA EXHIBIT C - FUNDAMENTAL BUSINESS TERMS
1. Repurchase Agreement:
A. Repurchase Agreement granting City rights to repurchase Phase 1 Property (together
with an assignment of all of Buyer's right,title and interest in and to all designs,drawings,
engineering work, surveys, professional reports, permits, entitlements and other approvals
relating to Buyer's planned project on the Phase l and Phase 2 Property (the "Project")to be
executed at closing of Phase 1 Property sale to Buyer,and a memorandum of the Repurchase
Agreement will be recorded at such closing. Repurchase Agreement terminates as provided in
Section B(iii) below.
B. City shall have right to repurchase the Phase 1 Property if-
(i) Infrastructure Permits not picked up/paid for by Buyer within 15 calendar days of the
later of: City notice that they are ready for issuance or closing of the Phase 1 Property
(ii) Buyer fails to "commence construction" within 30 calendar days of the later of: the
date Buyer picks up/pays for Infrastructure Permits or closing of the Phase 1 Property;
(iii) For the period following Buyer's commencement of construction pursuant to
Infrastructure Permits and extending until date on which Buyer provides reasonable evidence to
the City that Buyer has paid at least$15,000,000 in connection with Buyer's purchase, financing,
design,engineering, entitlement, permitting and construction of the development on Phase 1 and
Phase 2 Property, if construction of Project is stopped for in excess of 90 consecutive days,
subject to Force Majeure.
"Infrastructure Permits" as used herein means all grade, fill and mainline civil
construction permits for Phase l Property and Phase 2 Property on-site and off-site public and
private mainline infrastructure, including water, storm water,sanitary sewer utilities and
traffic/pedestrian improvements, and including all Phase 1 and Phase 2 Property "Meet Me on
Meeker" improvements,and including permits for Phase I Property geo-piers and Phase I
podium building foundation permit.
"Commencement of Construction" as used herein means at minimum commencement of
substantial work on Phase 1 Property and Phase 2 Property pursuant to Infrastructure Permits
with notice to Buyer's general contractor to proceed and commencement of actual on-site
construction activities on a continuous basis as permitted under the Infrastructure Permits;
provided,however,that the foregoing work with respect to Phase 2 Property may commence, in
Buyer's discretion, not later than 12 months after the Phase l closing.
2841/86 05/05/17 1 - psa v19
treadlHALlRiverbend Joint Venture
C. Repurchase Price:
(i) Under B(i) and (ii) above, the Repurchase Price to be paid by City shall equal the
purchase price paid by Buyer to City (i.e., presently $5,250,000 for Phase 1),minus City's cost
to cure or remove any liens,encumbrances or other matters that exist on title to the Phase 1 or
Phase 2 Property that did not exist when title to the Phase 1 Property originally transferred to
Buyer;
(ii) Under B(iii) above, the Repurchase Price to be paid by City shall equal the greate
of (X) the appraised fair market value of the Phase 1 Property, in its "as is"condition as of the
date of repurchase, including the value of all permits, entitlements,agreements (including the
Development Agreement), plus the value, if any, of installed infrastructure and improvements
constructed on the Phase 1 Property as of the repurchase date as certified by an agreed MAI
appraiser, and(Y) the appraised fair market value of the Phase 1 Property in a vacant, "raw" and
unimproved condition as of the date of repurchase, including the value of all permits,
entitlements, agreements (including the Development Agreement). In the case of either X or Y,
the repurchase price shall be minus City's cost to cure or remove any liens,encumbrances or
other matters that exist on title to the Phase 1 or Phase 2 Property that did not exist when title to
the Phase 1 Property originally transferred to Buyer.
(iii) On the closing date of City's repurchase, City shall pay the Repurchase Price, as
adjusted above, and Buyer shall (i) convey title to the Phase 1 Property and the Project to City;
(ii) assign to City without additional compensation (to the extent assignable and without
representation or warranty), all of Buyer's right, title and interest in and to all development
approvals (including the Development Agreement)and all other permits, entitlements, licenses,
approvals,plans, specifications, studies, condominium documents, and similar documents and
materials associated with the Project; (iii)at Buyer's sole cost, remove all liens, encumbrances
and other matters that exist on title to the Property (or applicable phase) and the Project that did
not exist when title thereto was originally conveyed by City to Buyer(including,without
limitation,any liens in favor of any construction lender) except those encumbrances,easements,
covenants and other matters that are required under the short plat,the Development Agreement
or other approvals related to Buyer's development of the Phase 1 and Phase 2 Property in
accordance with City requirements; and(iv)execute and deliver such other documents,
certificates and instruments reasonably necessary in order to effectuate the repurchase described
herein or otherwise customarily delivered in connection with the conveyance of property and
improvements in King County, Washington(including a closing statement, excise tax affidavits,
escrow instructions, and affidavits and documents required by any title or escrow company).
Buyer shall pay all closing costs incurred in connection with City's repurchase of the Property.
2. Buyer Negative Pledge:
A. Buyer Negative Pledge. Until expiration or termination of the Repurchase
Agreement, Buyer shall not create, incur, allow, permit, assume,or suffer to exist any Lien(as
defined below),of any kind or nature, on all or any portion of the Property. For this purpose,
"Lien" means any residential lease, or any sublease, mortgage, deed of trust,security interest,
2841/86 05/05/17 -2- psa 09
treadlHAURiverbend Joint Venture
pledge, assessment, charge, assignment, hypothecation, encumbrance, attachment, garnishment,
execution, mechanics', or other voluntary or involuntary lien upon or affecting all or any portion
of the Property, except (a) liens for taxes which are not delinquent or which remain payable
without penalty and (b)dedications, easements, rights-of-way, and other similar Project-related
encumbrances and agreements contemplated by the Development Agreement.
B. Limited Sale/Transfer Restriction. Until later of(i) substantial completion of the
podium structure on the Phase 1 Property,or(ii) 24 months after the Phase 1 Property closing,
Buyer shall not, directly or indirectly, sell,transfer or convey all or any portion of the Property or
any ownership interest in the Property(including, directly or indirectly, selling, transferring or
conveying, in one or more transactions, 50% or more of the membership interests in Buyer),
except (a) leases of individual residential units; (b) leases of individual retail and commercials
spaces; and (c) dedications,easements, rights-of-way, and other similar Project-related
encumbrances and agreements contemplated by the Development Agreement; provided,
however, that this Limited Sale/Transfer Restriction shall be deemed expired in any event upon
the tenth (10"') anniversary of the closing of the Phase 1 Property regardless of whether the
events in(i) or(ii)above have occurred. This Limited Sale/Transfer Restriction shall be
expressly subordinate to a first-priority security interest in the Property or Project granted by
Buyer to any institutional bank or lender(which is not affiliated with or related to Buyer or its
principals or any affiliates or subsidiaries of the Buyer, its principals or their family members)
that has provided financing to Buyer for the construction of the Project which bank or lender is
actively involved in commercial real estate construction financing(a"Permitted Construction
Lien"). This Limited Sale/Transfer Restriction shall be terminated in the event of a foreclosure
of a Permitted Construction Lien.
3. Completion Guaranty:
• Needs to apply to lien-free completion of Phase 1 Project plus all work under
Infrastructure Permits on both phases consistent with all permits and Development
Agreement
• To be executed by FN W, Inc.
• Consistent with terms and conditions of completion and payment guaranty to be given to
construction lender; outside date of completion consistent with completion guaranty
given to construction lender
• Guarantor financial covenants—minimum net worth/amount of liquidity
MISCELLANEOUS AGREEMENTS/ASSUMPTIONS INTEGRAL TO ABOVE AND TO
BE INCLUDED IN OTHER PROJECT AGREEMENTS AS APPLICABLE:
4. Development Agreement:
• Shall be recorded as a covenant running with the land with a 10-year term expiring as of
expiration date of Development Agreement binding on Buyer and City and their
respective successors, heirs, legatees, representatives, receivers, trustees, successors,
transferees and assigns, including but not limited to any construction lender
2841/86 05/05/17 -3- psa v19
tread\HAIARiverbend Joint Venture
• Project construction lender to execute acknowledgment of priority of Development
Agreement over lien of construction loan
5. Lease/Option Agreement for Phase 2 Property: Lease/Option Agreement to be executed at
Phase 1 Closing shall include following terms:
A. Lease/Option automatically terminates if:
(i) Any of events outlined in Section I.B. (i) or(ii) above occurs
(ii) Buyer closes a sale of Phase I Property prior to Buyer's substantial completion of
Phase 1 podium or otherwise violates Buyer's negative pledge or Buyer's limited sale/transfer
restriction
(iii) Buyer fails to commence construction of Phase 2 infrastructure by no later than 12
months after the Phase 1 closing
(iv) Construction on Phase 1 Property is stopped for in excess of 180 consecutive days,
subject to Force Majeure.
B. Conditions to City's obligation to convey Phase 2 Property to Buyer(any of which is
waivable in City's sole discretion):
(i) Phase I podium building is fully framed
(ii) All mainline infrastructure for Phase 1 Property and Phase 2 Property pursuant to
Infrastructure Permits complete and ready for acceptance by/dedication to City as applicable
(iii) No outstanding defaults by Buyer under any Project permits
(iv) No outstanding defaults by Buyer under Development Agreement
(v) Completion Guaranty for Phase 2 Property construction in favor of City executed and
delivered by Buyer
6. Certificate of Occupancy for Phase 1 Property Podium: City will not issue Certificate of
Occupancy for Phase 1 podium until all mainline infrastructure for Phase 1 Property and Phase 2
Property pursuant to Infrastructure Permits complete and ready for acceptance by/dedication to
City as applicable.
2841/86 0.5/05/17 -4- psa v19
treaMAURiverbend Joint Venture
EXHIBIT D
Approved Exceptions
1. Real estate taxes levied but not yet due and payable.
2. Facility Charges, if any, including but not limited to hook-up, or connection charges and
latecomer charges for water or sewer facilities of City of Kent as disclosed by
instruments recorded as recording nos. 8005160282 and 8108050318. None due or
owing at Date of Policy.
3. Easement, including terms and provisions contained therein:
Recording Information: November 8, 1961, Recording No. 5350942
In Favor of: County of King, a municipal corporation
For: River protection
4. Easement, including terms and provisions contained therein:
Recording Information: April 25, 1962, Recording No. 5417461
In Favor of: County of King, a municipal corporation
For: River protection
5. Easement, including terms and provisions contained therein:
Recording Information: January 22, 1964, Recording No. 5690275
In Favor of: Puget Sound Power&Light Company
For: Maintain, replace, remove and use an electric line,
including all necessary poles, anchor, wires and fixtures
6. Easement, including terms and provisions contained therein:
Recording Information: 7904240940
For: Ingress, egress and utilities
Affects: as described therein
7. Terms, covenants, conditions and restrictions as contained in recorded Lot Line
Adjustment(Boundary Line Revision):
Recorded: February 16, 1995
Recording Information: 9502160277
8. A document entitled "Amended and Restated Grant of Easements and Levee Easement
Agreement", executed by and between City of Kent and King County Flood Control
Zone District recorded August 22, 2008, as Instrument No. 20080822000569 of Official
Records.
Said instrument amends and restates that agreement recorded under Recording No.
20050813001810.
9. Easement, including terms and provisions contained therein:
Recording Information: 8411160550
In Favor of: Puget Sound Power& Light Company
For: Underground electric system
2841/86 05/05/17 1 - psa v l 9
trcadMAL\Riverbend Joint Venture
10. Easement, including terms and provisions contained therein:
Recording Information: 9502020945
For: Ingress, egress, vehicle and equipment parking and utilities
Affects: As described therein
Please note a Release of First Right of Refusal was recorded under Recording No.
20110523000167.
11. Easement, including terms and provisions contained therein:
Recording Information: 9502020946
For: Building setback, parking and turnaround for construction,
operation and maintenance of carport structures
Affects: as described therein
12. Any question that may arise due to the shifting and/or changing in the course of Green
River.
13. Any prohibition or limitation on the use, occupancy or improvements of the land
resulting from the right of the public or riparian owners to use any waters which may
cover the land or to use any portion of the land which is now or may formerly have been
covered by water.
14. Paramount rights and easements in favor of the United States for commerce, navigation,
fisheries and the production of power.
15. Rights of the general public to the unrestricted use of all the waters of a navigable body
of water not only for the primary purpose of navigation, but also for corollary purposes;
including (but not limited to) fishing, boating, bathing, swimming, water skiing and other
related recreational purposes, as those waters may affect the tidelands, shorelands or
adjoining uplands and whether the level of the water has been raised naturally or
artificially to a maintained or fluctuating level,all as further defined by the decisional law
of this state. (Affects all of the premises subject to such submergence)
16. Regulatory Control by the State Supervisor of Flood Control through the establishment of
a Flood Control Zone No. 2 inclusive within the boundaries thereof these premises and
other property as lying within a flood basin. Control being exercised by issuance of
regulatory orders and permits affecting the planning, construction, operation and
maintenance of any structure of any structure of improvement, public or private, to be
erected or built, or to be reconstructed or modified. (RCW 86.16.010 et seq.)
17. Relinquishment of all existing and future rights to light, view and air, together with the
rights of access to and from the State Highway constructed on lands conveyed by
document in favor of the State of Washington:
Recorded: April 12, 1985
Recording No.: 8504120861
18. The terms and provisions contained in the document entitled "Ordinance No. 3294"
recorded August 8, 1996 as Recording No. 9608080144 of Official Records.
2841/86 05/05/17 -2. psa v19
treadM WARiverbend Joint Venture
19. The terms and provisions contained in the document entitled "Ordinance No. 33354"
recorded November 6, 1997 as Recording No. 9711061187 of Official Records.
2841/86 05/05/17 -3- psa v19
treadMIARimbend Joint Venture
EXHIBIT E
Form of Deed
WHEN RECORDED RETURN TO:
Thomas W.Read
Alston,Courtnage& Bassetti LLP
1420 Fifth Avenue,Suite 3650
Seattle,Washington 98101-4011
Document Title: BARGAIN AND SALE DEED
Grantor:
Grantee:
Legal Description:
Abbreviated Legal Description:
Full Legal Description: See Exhibit A attached.
Assessor's Tax Parcel Nos.:
Reference Nos. of Documents Released or Assigned:
BARGAIN AND SALE DEED
THE GRANTOR, , for and in consideration of Ten ($10.00)
Dollars and other good and valuable consideration in hand paid, bargains, sells and conveys to
, the real estate, situated in King County, Washington, and legally
described on attached Exhibit A, subject to the matters described on attached Exhibit B.
2841/86 05/05117 - I - psa v19
treadlHALlRiverbend Joint Venture
The Grantor, for itself and its successors in interest, does by these presents expressly limit
the covenants of the deed to those herein expressed, and excludes all covenants arising or to arise
by statutory or other implication, and does hereby covenant that against all persons whomsoever
lawfully claiming or to claim by, through or under said Grantor and not otherwise, Grantor will
forever warrant and defend the said described real estate.
DATED: , 201
GRANTOR:
2841/86 05/05/17 -2- psa v19
treadMAURiverbend Joint Venture
STATE OF WASHINGTON )
)ss.
COUNTY OF KING }
On this day of , 201 , before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn personally appeared
, known to me to be the of
the that executed the foregoing instrument,
and acknowledged the said instrument to be the free and voluntary act and deed of said limited
liability company, for the purposes therein mentioned,and on oath stated that he/she was authorized
to execute said instrument.
I certify that I know or have satisfactory evidence that the person appearing before me and
making this acknowledgment is the person whose true signature appears on this document.
WITNESS my hand and official seal hereto affixed the day and year in the certificate above
written.
Signature
Print Name
NOTARY PUBLIC in and for the State of
Washington,residing at
My commission expires
2841/86 05/05/17 •3 psa 09
9
tread\HAL\Riverbend Joint Venture
Exhibit A
to
Bargain and Sale Warranty Wgganty Deed
Legal Description
2841/86 05/05/17 -4- psa v19
treadWAURiverhend Joint Venture
Exhibit B
to
Bargain and Sale Deed
Permitted Exceptions
2841186 05/05/17 -5- psa v19
treadWAL\Riverbend Joint Venture
EXHIBIT F
Form of Assignment
THIS GENERAL ASSIGNMENT (this "Assignment") is entered into as of the _ day of
201_, by and between The City of Kent ("Assignor"), and
("Assignee"),who agree as follows:
1. Pro e . The "Property" means the real property located in the City of Kent, and
legally described in Exhibit A attached to this Assignment, which Property is the subject of that
certain Real Estate Purchase and Sale Agreement with Lease/Option to Purchase between Assignor
and Assignee.
2. Assignment. For good and valuable consideration received by Assignor, the receipt
and sufficiency of which is hereby acknowledged, Assignor hereby grants, transfers and assigns to
Assignee the entire right, title and interest (to the extent transferrable) of Assignor in and to the
following, as they relate to the Property: water rights; mineral rights; utility rights; rights-of-way,
rights of ingress or egress or other interests in, on, or to, any land abutting or adjoining the
Property; governmental licenses, permits and approvals; development rights; plans,
specifications and drawings; soils and engineering studies; surveys; and inspection reports and
other reports and studies in the possession of Assignor or its agents (the "Assigned Property").
3. Assumption. Assignee hereby assumes the covenants, agreements and
obligations of Assignor under the Assigned Property which are applicable to the period and
required to be performed from and after the date of this Assignment. No person or entity other
than Assignor shall be deemed a beneficiary of the provisions of this Section 3.
4. Legal Expenses. If either party to this Assignment brings suit or otherwise
becomes involved in any legal proceedings seeking to enforce the terms of this Assignment, or to
recover damages for their breach, the prevailing party shall be entitled to recover its costs and
expenses (including fees of attorneys, expert witnesses, accountants, court reporters and others)
incurred in connection therewith including all such costs and expenses incurred: (a) in trial and
appellate court proceedings, (b) in connection with any and all counterclaims asserted by one
party to this Assignment against another whether or not such counterclaims arise out of or are
otherwise related to this Assignment, (c) in bankruptcy or other insolvency proceedings, and (d)
in post judgment collection proceedings.
S. Successors and Assigns. This Assignment shall be binding upon and inure to the
benefit of Assignor and Assignee and their respective successors and assigns.
6. Governing. This Assignment and the rights of the parties hereto shall be
governed by and construed in accordance with the internal laws of the State of Washington
without regard to any choice of law principles.
7. Power and Authority. Each party represents and warrants to the other that it is
fully empowered and authorized to execute and deliver this Assignment, and the individual
2841/86 05/05/17 -I - psa v19
tread\1.1AL\Riverbend Joint Venture
signing this Assignment on behalf of such party represents and warrants to the other party that he
or she is fully empowered and authorized to do so.
8. Counterparts. This Assignment may be executed in counterparts, each of which
shall be an original, and all of such counterparts together shall constitute one and the same
instrument.
[Signatures appear on following page.]
2841/86 05/05/17 -2- psa v19
treadWAURiverbend Joint Venture
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment as of the day and year first above written.
ASSIGNOR: ,
a
By:
Name:
Its:
ASSIGNEE: ,
a
By:
Name:
Its:
2841/86 05/05/17 -3- psa v19
treadlHALlRiverbend Joint Venture
r
EXHIBIT A
LEGAL DESCRIPTION
2841186 05/05/17 -4- psa vi9
tread\HAL\Riverbend Joint Venture