HomeMy WebLinkAboutEC17-206 - Other - Marquee on Meeker - Phase I - Closing Documents - 04/02/2018 City of Kent, a Washington municipal corporation("Seller")
Marquee on Meeker LLC, a Washington limited liability company ("Buyer")
April 2, 2018
1. Closing Instructions March 30, 2018
2. Bargain and Sale Deed for the Property
3. Real Estate Excise Tax Affidavit
4. Lease (with Option to Purchase)with respect to Lots 3, 4 and 5 of the Short Plat
("Lease")(showinje Buyer's initials on Para 14 thereofl
5. Memorandum of Lease(with Option to Purchase)
6. General Assignment
7. FIRPTA Certificate
8. Option to Repurchase Agreement
9. Memorandum of Option to Repurchase Agreement
10. Completion and Performance Guaranty executed by FNW Inc. as guarantor and by Brett
Jacobsen and John W. McKenna
11. Limited Sale and Transfer Restriction
12. Memorandum of Limited Sale and Transfer Restriction
13. Seller's Closing Statement approved and executed by Seller
14. Public Pedestrian Trail Easement executed by Buyer
15. Buyer's Certificate
16. Seller's Certificate
17. Real Estate Property Tax Acknowledgment
53014100 1
FOSTER PEPPER. Direct Phone (206)447.8893
Direct Facsimile (206)7494916
beth.clark@foster.com
March 30, 2018
VIA M, LAGER
First American Title Insurance Company
818 Stewart, Suite 800
Seattle, WA 98101
Attn: Moniqueje Schmitt-Johnson
LaVonne Bowman
Re: Escrow No. NCS-839539-WAI
City of Kent/Marquee On Meeker LLC
Dear Moniqueje and LaVonne:
We represent the Seller, the City of Kent, ("Seller") in connection with the above-
referenced escrow. These are our closing instructions.
1. Definitions. The following definitions apply in these instructions.
1.1 Seller. The City of Kent, a Washington municipal corporation.
1.2 Seller's Attorney. Foster Pepper PLLC, I I I I Third Avenue, Suite 3000,
Seattle, Washington 98101, Attention: Beth A. Clark, facsimile(206) 749-1916.
1.3 Purchase Agreement. Real Estate Purchase and Sale Agreement With
Lease/Option to Purchase dated as of May 5, 2017, and amended by that certain Amendment to
Real Estate Purchase and Sale Agreement With Lease/Option to Purchase dated on or about
September 20, 2017(the "Purchase Agreement").
1.4 Purchaser. Marquee On Meeker LLC, a Washington limited liability
company("Purchaser').
1.5 Property. The real property referenced in the Purchase Agreement as the
"Phase 1 Property"and consisting of Lots 1 and 2 of that certain City of Kent Short Plat No. SP-
2017-1 recorded March 21, 2018 under King County recording no. 20180321900004 (the"Sale
Property"). The Sale Property is the subject of your preliminary commitment for title insurance
dated as of March 19, 2018. Eighth Report, Order no. NCS-839539(the "Title Commitment").
L L11 Third Avenue,Surte 3000 Seattle. MISPInglun 96101 3�149 100 ?Ob 341 97UG
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First American Title Insurance Company
March 30, 2018
Page 2
1.6 Closing. Closing of this escrow is scheduled to occur on or before April 2, 2018
(the actual date on which CIosing occurs being referred to herein as the "Closing Date").
2. Identification of Documents. You have or will be receiving originals of the
following documents to be executed, where necessary, by Seller and Purchaser in this
transaction. All of the documents shall be identical to the models attached to these instructions
(including exhibits where applicable) or otherwise approved by Seller. You are to obtain
signatures of Seller and Purchaser (and any other applicable party) on these documents,
including acknowledged signatures where required. Please date the undated docuuments for the
date you obtain signatures.
2.1 Evidence of recorded short plat referenced in Section 1.5 above (the
"Short Plat") (provided to you for informational purposes only; no signatures required)
2.2 Bargain and Sale Deed for the Property(Deed)
2.3 Real Estate Excise Tax Affidavit("REETA")
2.4 Lease (with Option to Purchase)with respect to Lots 3, 4 and 5 of the
Short Plat("Lease") (showing Buyer's initials on Para 14 thereon
2.5 Memorandum of Lease (with Option to Purchase) ("Lease Memorandum")
2.6 General Assignment("General Assignment")
2.7 FIRPTA Certificate ("FIRPTA")
2.8 Option to Repurchase Agreement("Repurchase Option")
2.9 Memorandum of Option to Repurchase Agreement("Repurchase Option
Memorandum")
2.10 Completion and Performance Guaranty executed by FN W Inc, as
guarantor and by Brett Jacobsen and Jahn W. McKenna("Guaranty")
2.11 Limited Sale and Transfer Restriction ("Transfer Restriction")
2.12 Memorandum of Limited Sale and Transfer Restriction ("Transfer
Restriction Memorandum")
2.13 Seller's Closing Statement approved and executed by Seller("Seller's
Closing Statement")
2.14 Public Pedestrian Trail Easement executed by Buyer("Trail Easement")
2.15 Buyer's Certificate
2.16 Seller's Certificate
2.17 Real Estate Property Tax Acknowledgment
3. Conditions to Close of Escrow. These instructions do not authorize you to close.
When you are prepared to perform as required below, you are instructed to do the following:
by you. 3.1 Deliver to Seller's Attorney a copy of these Closing Instructions, accepted
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First American Title insurance Company
March 30, 2018
Page 3
3.2 Confirm that First American Title Insurance Company is prepared to
issue: to Purchaser the owner's policy of title insurance in the amount of$6.146,341.46; and (ii)
to Seller the Owner's-Seller's policy as reflected in the approved Seller's Closing Statement (the
"Purchase Price").
3.3 Confirm that all documents referenced in Section 2 above have been dated
as of the Closing Date,executed by all parties thereto, acknowledged where applicable, all
exhibits have been attached and all documents to be recorded as instructed herein are otherwise
in recordable form.
3.4 Confirm that you have received funds from Purchaser sufficient to pay the
Purchase Price together with all closing costs and other payments for which Purchaser is
responsible.
3.5 Confirm that you have received from Seller and Purchaser such other
documents as you reasonably require to close this escrow as instructed.
3.6 Confirm that you have received verbal authorization from Seller's
Attorney and Purchaser's Attorney to close this escrow as instructed.
4. Close of Escrow. When and only when all of the conditions to Closing set forth
in Section 3 have been satisfied, you shall close this escrow by taking the following steps in the
following order:
4.1 Record the Deed, the Lease Memorandum, the Repurchase Option
Memorandum, the Transfer Restriction Memorandum and the Trail Easement.
4.2 File the Real Estate Excise Tax Affidavit.
4.3 Disburse the net funds due Seller as set forth in Seller's Closing Statement
in accordance with Seller's wiring instructions delivered to you separately. All funds due Seller
shall be disbursed on the Closing Date.
4.4 Within seven (7)days after recordation of the Deed, mail to Seller's
Attorney: (i) the final Seller's Closing Statement; (ii)conformed recorded/tiled copies of the
Deed, the Lease Memorandum, the Repurchase Option Memorandum, the Transfer Restriction
Memorandum and the Trail Easement; and (iii) originals of the fully executed Lease, General
Assignment, Repurchase Option, Guaranty and Transfer Restriction.
5. Expiration of Instructions. You are to proceed with the closing of this transaction
as soon as you have all of the required items. Closing must occur on or before April 2, 2018.
These instructions will expire if they have not been complied with on or before April 3, 2018 or
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First American 'Citle Insurance Company
March 30, 2018
Page 4
such later date to which they may be extended by written approval of Seller's Attorney and
Purchaser's Attorney.
Sincerely,
FOSTER PEPPER PLLC
I
Beth . Clar
Seller's Attorney
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Accepted this�_day of � , 201 8.
FIRST AMERICAN TITL INSURANCE COMPANY
By:
Its:
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instrument Number: 20180402(1()0935 Document:D Rec:S78.00 Page-1 ors
Excise Does:2922405 Selling Price:S0.00 Tax Amount:S10.00 Record Date:41212018 2:25 PM
Electronically Recorded King Count}.WA
WHEN RECORDED RETURN TO:
Thomas W.Read
Alston,Courtnage&Basseth LLP
1420 Fifth Avenue,Suite 3650
Seattle,Washington 981014011
Document Title: BARGAIN AND SALE DEED
Grantor: CITY OF K[NT
Grantee: MARQUEE ON MEEKER LLC I ST Alwo
Legal Description: v'&-13ys39'`MA4
Abbreviated Legal Description: Lots 1-2,Kent SP No. SP-2017-1.
Rcc. 20180321900004
Full Legal Description: See Exhibit A attached.
Assessor's Tax Parcel Nos.: Portion oi-232204-9011-01
Reference Nos. of Documents Released or Assigned: N/A
BARGAIN AND SALE DEED
GRANTOR. the CTTV OF KEN1T, a Washington municipal corporation, for and in
consideration of Ten($10.00) Dollars and other good and valuable consideration in hand paid,
bargains, sells and conveys to MARQUEE ON MEEKER LLC, a Washington limited
liability company, the real estate, situated in King County, Washington,and legally described
on attached Exhibit A,subject to the matters described on attached Exhibit B.
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.
2841/086 03127/18 I- bargain wW sate deed v3
IrradU WRiverbend Joint VcnturcU'hasc I Closing Doo
Instrument•Number:20180402000935 Document:D Rec:S78.00 Page-2 of S
Record Datc:4/2/2018 2:25 PM Kink County,WA
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DATED: hpttl Z.� 2018.
GRANTOR:
CITY OF KENT,a Washington
municipal corporation
Dana Ralph,Mayor
STATE OF WASHINGTON }
t ss.
COUNTY OF KING 1
On this day of j 4 . 2018, before me, the undersigned, a Notary
Public in and for the State of Washington. duly commissioned and s\vorn personally appeared
Dana Ralph, known to nie to he the Mayor of the CITY OF KENT, the Washington municipal
corporation that executed the foregoing instrument,and acknowledged the said instrument to be
the flee and voluntary act and deed of said corporation, for the purposes therein mentioned, and
on oath stated that she was authorized to execute said instrument.
I certity that I know or have satisfactory evidence that the person appealing before me
and making this acknowledgment is the person whose tnic signature appears on this document.
W'ITNT'SS my hand and official seal hereto affixed the day and year in the certificate
above Written.
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�, .`gylOkFtp4 y .,� Al�!SON MA1?0
o `' Print Name
s NOTARY PUBLIC in and I•or the State i,f'
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Instrument'Number:20180402000935 Document:D Rec:S78.00 Page-3 of 5
Record Datc:4/2/2018 2:25 PM King County,WA
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Exhibit A
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Legal Description !
LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED UNDER
RECORDING NO.20180321900004, IN KING COUNTY,WASHINGTON,
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Instrument Number: 20180402000935 Document.D Rec:S78.00 Page-3 of 5
Record Date:4/2/2018 2:25 PM King County,WA i
Exhibit B
Permitted Exceptions
1, Real estate taxes levied but nut yet due and payable
2. Facility Charges, if any, including bul 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 rccurdim, nos. 8005160282 and 81080503 18.
3. Lasement, including terms and provisions contained therein:
Recording lnforrnation: November 8, 1961
Recording No, 5350942
1n Favor of: C:oultty of King, a municipal corporation
For' River protection
4. Easerttent, including terms and provisions contained therein:
Recording Information. April 25, 1962 1
Recording No. 5417461 j
in Favor of: County ol'King, a municipal corporation
For: River protection
5. 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
lone District recorded August 22.. 2008, as instrument No. 20080822000569 of
Off icial Records.
Said instrument amends and restates that agreciuent recorded under Recording No.
20050813001810,
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6. Relinquishment of all existing and future rights to light, view and air,together with the
rights of access to and from the State I lighway constructed on lands conveyed by
document in flav-or ofthe State of Washington:
Recorded: April 12, 1985
Recording No.: 8504120861 i
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7. 'i'hc terms and provisions contained in the ductunent entitled "Ordinance No. 3294" E �
recorded August 8, 1996 as Recording No.9608080144 of Official Records.
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8. The terms and provisions contained in the document entitled "Ordinance No. 33354"
recorded November 6, 1997 as Recording No. 971 1061187 of 0flicial Records.
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Instrument Number: 20180402000935 Document:D Rec: S78.00 Page-5 of 5
Record Date:4/2/2018 2:25 PM King County,WA
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9. l'otential charges, for the Icing County Sewage 'treatment Capacity Charge, as
authorized under RCW 35.58 and King County Code 28.84.050. Said charges could
apply for any property that connected to the King County Sewer Service area on or
after February 1, 1900.
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10. Fhe term, and provisions contained in the document entitled "Declaration of
Stormwater Facility Maintenance Covenant" recorded March 9. 2018 as
20180309000110 of Official Records.
11. The tem,s and provisions contained in the document entitled "Development
Agreement"recorded March 14, 2018 as 20180314000845 of Official Records.
2. Restrictions, conditions, dedications. notes, easements and provisions, if any, as
contained and/or delineated on the face of the City of Kent Shout Plat No. SP-2017-1
recorded Marc'n 21, 2018 as 201 8032 1 900004, in King County, Washington.
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284INSC 03/'WI E +. bu vam aad vl:deed ?
lteWIIAL'Jt;verLead Ju;ir vejumc dime I Closmg r7exs
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Revere ere REAL ESTATE EXCISE TAX AFFIDAVIT
wifshfvtO^SO1r 'Thu form is your receipt
PLEASE TYPE OR PRINT CH"TER 82 45 RCW-CHAPTER 45"1 A WAC when stamped by cashier.
THIS AFFIDA VTT W ILL NOT OF ACCEPTED UNLESS ALL AREA ON AI.L PAGES ARE FUUM COMPI XIT.D
(Sec bale of lan page rot inssn coons)
Check box It D/n111 safe of property if multiple owners,lest vaccrltage of oAmahip ncxl to came.
Name City of Kent,a Municipal corporation of the Name: Marquee on Meeker LLC,a Washington limited
State of Washington liability company
a Mailing Address 220 Fourth Avenue South y Mailing Add.. c/o Landmark Development Group2711
crtyl5talcl7ip Kent,WA 98032 ceee City/5taitizip Auburn WA 96001
Phone No.(including area code) Phone No.(including area code)
tend all property tar rartemenernce ra a Same n D.yc*rG.n Liu ill sal ad(entrain prassny u.partcl uoovat Lill assessed vWuc(s)
eumbers<brek bo%if prnrankl propany
Name 232204-9011-01 (� 0.00
Mailing AddresS^ 0.00
Cityl5ak2ip—
Prrane No.(including acts code) IS25
Strict address of property: Lots 1-2,Kent SP No.SP-2017-1,(Phase I),Kent,WA
This ptoperry is located in Kent
❑Check bass if any of the listed parcels arc being segtegared from another parcel,are pat Of a boundary line adjustment or parcels being merged
Legal description of mopcny(if more span is needed,you may attach a uparale shtel to each page of the affidavit)
LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO.SP-2017-1,RECORDED UNDER RECORDING NO.20260321900004,
IN KING COUNTY,WASHINGTON.
Select Land Use Cod s: List all personal properly(tangible and intangible)included in selling
91 price.
=let any additional codes. NONE
(Ste back of last page of imswcuorrs) YES NO
Was the seller rccciv,ng a property tax exemption or deferrad ❑ QX
under chapters 1436,94.37.of 34.33 RCW(nonpfo6t
organization,senior citizen,or disabttd person,honrtonnet with y�
limited inuNne)? V
YES NO if claiming an exemption,list WAC number and mason for exemption:
Is this property designated as forest land per chapter 94,33 RCW'+❑ Q
Is Nis properly ciusirred as current use(open spa",farts and ❑ D WAC No(Sectiod5ubseetim) 4SN-6IA-205f2VRCW 92,45.010
agfieuhatal,of timber)land per Chapter 84.34 RCW?
is this p:operty receiving special valuatian as historical property ❑ ® Reasnn for exemption GOVERNMENT TRANSFER
Pei chapter 11416 RCW7
If any answers art yes,complete as imtructed below.
(1)NOTICE OF CONTINUANCE(FOREST LAND OR CURRENT LSE) Type or Document BARGAIN AND SALE DEED
NEW OWNER(S) To continue the current designation as forest land or
classification ra cunerd use(Open Spate,farm and ag,tcullure,at umber)land,you Date of Document2018
must slga on(3)below. The county assessor muss thtr.determine if the land
transferred MhAueS to qualify and will indicate by signing below. If the Land no Gross Selling Price S 6,140,341.46
longer quns)res or you do not wish to conimuc the designation of dAssifre86011,it *Personal Property(deduct) S
will be removed and she compensating of additional taxes will be due and payable Ecemplion Claimed(deduct) S 6,146,341.46
by the seller or translowt At the lime of sale. (RCW 94.33.140 or RCW
5434,101). Prot to signing(3)below.you may contact your local countyu atssar Taxable Selling Price S
for mate rrifonntaion racist Tess State S
This land ❑ dots Q does .at Qualify for comm�uanee O Local S
'DeLnqucnl Interest. State S
DEPUTY ASSESSOR DATE trical S
(2)NOTICE.OF COMPLIANCE(HISTORIC PROPFATI) 'Delinquent Penalty S
NEW OWNER(S).To eonlinre speciat valuation As historic property,alga(3) Sublotal S S.00
below If she new owsser(s)does nil wish to caamuc,all Additional tat ealcutmtd
pursuanl to chapter$4.26 RCW,shall be due and payable by the scticr of tramfum 'Stare Technology Fee $ S.00
at the time of lsk- •AMelavii Processing Fee S
(3)OH'NER(S)SIGNATURE Toss)Due S
PRINT NAME__---- A MINIMUM OF S10.00 S DUE I .F(S)ANDIOR TAX
*SEE STRUCT'10
ICERTIFI'UNDERPENAI:rYOFPERJURYTHATTHFFOREGOINGISTRUE D -OR CF.
Stgnalumof Su8na acaf /p _
Granlor of Graillor's AgeAl
Nametpnm) T_ Namc(prml) lJ/'ei� Jut S� ll��
Date R city of signing Kent Data k city of signing �f. G �''1Stame
Perjury: Pcryuty is a class C felony which is punrshabic by imprisonment in the state correctional institution for a maximum term of itot store than five years,or
by a fine in in amount fixed by the court ornot more than me thousand dollars($5,000.00),or by both imprisonment and find(RCW 9A,20.020(I C))
REV g4 0001n(06114) THIS SPACE-TREASURER'S USE ONLY COUNTY TREASURER
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2841/086 03/27/18 -3- Imse(with uplion to purchasc)0
trea(rd 1ADRiverbend Joint Venturelphasc 1 Closing Uocs
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TABLE OF CONTENTS
Page
1. Incorlioration of Recitals: Definitions......................................................................2. ............2
Leased-Premises ............. ..... .................................6
3. Term_ ......................................................................................................................................7
4. Rent ......................................................................................................................................9
5. Taxes and Utilities .................................................................................................................9
6. Use of Leased Premises:Permitted Use...............................................................................10
A. Use of Leased Premises,• Permitted Use ......................................................................10
7- 1.icns....................................................................................................................................I
8. Development Agreement.....................................................................................................12
9. Insurance and Indemnification...........................................................................................12
10. C-ondenation- of the Property........................................................................................16
- -------m------
11. Assignment: Subletting....................................................................................................16
A. Ass'
gments and other-'ITransfers During-Term of Lease ...........................................16
B. Transfers of Interest in Developer...............................................................................17
C. Definition of Transfer..................................................................................................17
12. T_itletoI.eased Premises...................................................................................................17
13. Representations.... t
A. City Representations....................................................................................................19
B. Developer Reoresentations................ ............20
14. "AS-IS" Sale....................................................................................................................21
15. Conditions Precedent to De-v_elor)er's Exercise of Option to Purchase-the I-eased_
Premises............... .................. .......... 'A•_.. _Compliance by Developer. .........................................................................................22
B. Correctness of Representations.................
C. No Bankruptcy.............................................................................................................22
B. Correctness of Representations...................................................................................23
C. Condition oCPropertv...................................................................................................23
I). 1Fitle Policv...................................................................................................................23
17. Option to Purchase Leased Premises................................................................................24
A. Option tp Purchase......................................................................................................2a
13- Lxercise of Option...........- 24
C. Payment of Option Price..............................................................................................24
18, Closing of Purchase of Leased Premises........................................................................24
— A. Closing_1'rogL ures......................................................................................................24
B. Delivery by Citv...........................................................................................................25
C. Delivery by Developci.................................................................................................25
D. C.it_v's Closing Costs.................................. .. .25
........................
E. Developer's Closing Costs..........................................................................................25
F. P_r_orations.........................................................................................................................26
G_ Recordation and Deliver � .of Documents...................................................................
---- --- 26
11. Notification: Closing Statements..................................................................................26
1. Possession..................................................... .....16
19. Default ..........................................................................................................................27
2841'086 0327/18 -i- Imsc(with optiot:to Purchase)v3
treadlW-,Rtverbend Joint Venturc'Phsse 10owty Doc>
A. Dev_elto er Default........................................................................................................27
.B. City Remedies—upon—Developer F-vent ofDefault........................................................28
C. City Default; Remedies.............................................................................................28
D. Waiver of Consequential and Punitive Damages.......................................................28
- - ---- -- ------- ------ -
I . Rights and Remedies Cumulative................................................................................29
20. Hazardous Substances.....................................................................................................29
21. Time of the Essence.........................................................................................................29
22. C:ity's Right to Enter the Leased Premises.......................................................................30
A. Conditior......................................................................................................................30
B. Notice_s .........................................................................................................................30
23 Notices ............................................................................................................................10
24. Surrender..........................................................................................................................31
25. Miscellaneous..................................................................................................................32
A. Entire Aarcemcnt.........................................................................................................32
B. Non-Waiver..........................................................................—.....................................32
C. Construction_.................................................................................................................32
D. Severabilitti
E. Neutral Authotshig.......................................................................................................32
F. Nature of Relationship....................................................................................................33
G. No Brokers. .................................................................................................................33
f I. Sill-viva] .......................................................................... ....33
. . . ....... . . ..............
1. Recording of Memorandum ............................................................................................33
J. Covenants to Run with the Land...................................................................................33
K. Nondiscrimination.........................
L. No Third Party Rights..................................................................................................34
M. Non-Waiver of Governmental Riehts..........................................................................34
N. Further Assurance........................................................................................................34
O. Authoritv......................................................................................................................334
P. WAIVER OF JURY 1'It1AI............................................................................................34
— - - -Q. Conflicts of'Interests...................................................................................................34
R. Non-Liability of City-Officials Fm-ploy ss, and Agents.............................................34
S. Applicable Law...............................................................................................................35
- - ---
T. Countelparts.................................................................................................................35
U. Attorneys' Fees.............................................................................................................35
EXHIBITS
Exhibit A - Legal Description of Land
Fxhibit B -Approved Phasing Plan
Exhibit C - Legal Description of Lease Premises
Exhibit D -Map of Property
Exhibit E Legal Description of Phase 1 Property
Exhibit F - Bargain and Sale Deed
28-11,086 U3427113 - Ica:c(%suh option to purchase)%3
tread'd1AIARnvcthcnd Joint VenlnrclPhxvc I Chisine Oo s
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Exhibit G - List of Permitted Exceptions
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Exhibit H-Pro Fonna Title Policy
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2841/086 0327/18 -iii- Icase(with option to purchase)0 �.
ircadUALWiverbcnd Joint VcnturcWhase 1 Closing Docs
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LEASE.
(with option to purchase)
"Phis LEASE (WITH OP'CION TO PURCHASE) ("Lease") is made and entered into as
of April,Z�2018 (the "111fective Date") by and between the CITY OF KENT, a Washington
municipal corporation, hereinafter called "City", and MARQUEE ON MEEKER LLC, a
Washington limited liability company, hereinafter called "Developer", with reference to the
followinu facts:
RECITALS
A. City has p1muied a revitalization of its downtown area to create a high quality
comprehensive integrated retail, commercial, and residential anchor for downtown, provide
additional housing downtown in close proximity to the Kent commuter rail and bus transit center,
increase pedestrian activity downtown and thereby directly and indirectly improve public safety
in the downtown retail core, improve the economic vitality of City, expand and diversify City's
tax base. increase tax revenues, create jobs and thereby enhance other City investments and
assets,and achieve multiple City objectives.
13. City is the owner of certain real property located generally at 2030 W. Meeker
St., Kent, WA 98032 and more particularly described on Exhibit A attached hereto and by this
reference incorporated herein(the"Land"), The Land is the site of City's existing Riverbend par
3 golf course and within the City's planned revitalization area described in Recital A above. The
Land is approximately 30 acres in size,consisting of a 6-acre(approximately)golf driving range
area that City shall retain and a 24-acre (approximately) Par 3 golf course area that City has
agreed to sell and convey to Developer (herein the "Property") pursuant to that certain Real
Estate Purchase and Sale Agreement with Lease/Option to Purchase made as of May 5,2017 by
and between City and Developer, as amended by Amendment to Real Estate Purchase and Sale
Agreement with Lease/Option to Purchase dated as of September 20, 2017 (as amended, the
"Purchase Agreement").
C. Pursuant to that certain Development Agreement approved by the Kent City
Council on August 15, 2017 with an effective date of August 23. 2017 (the "Development
Agreement"), City and Developer have also agreed on the terms and conditions of Developer's
contemplated design and development of the Property including necessary major public and
private improvements and infrastructure,mitigation,dedications and other terms, conditions and
standards associated therewith(the "Project").
1). The Project is a mixed-use retail/multi-family residential community consisting
of approximately 492 residential apartment units together with certain accessory uses, totaling
approximately 12,000 square feet of commercial/retail as more frilly described in the
Development Agreement. The residential units will be contained in two podium style buildings
and multiple three story urban style walk-up buildings. The podium buildings are anticipated to
have four levels of wood frame residential construction over concrete podium decks containing
approximately 6.000 SF of restaurant/retail space including adjacent exterior lifestyle patios and
approximately 240 stalls of parking. The Project will also contain surface parking, presently
anticipated for an additional 510 stalls for a total of 750 stalls.
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truad`l IAL Rivenccud Joint Ven"uc Phase l C'loang I)"c%
E. Developer presently intends to construct the Project in two (2) phases (each a
"Phase" herein), with each Phase comprising approximately one-half of the land area of the
Property and with roughly half of the residential, coin nicreialh-etai I and accessory parking in
each Phase. 'rhe agreed-upon phasing plan for the Project is attached hereto as Exhibit B.
Developer, at Developer's election, may elect to construct the entire Project in a single Phase;
provided. however, that notwithstanding anything to the contrary set forth herein, if the
Developer elects to develop the Project in two Phases. the first Phase construction shall in any
event include construction of on-site and off-site public and private mainline infrastructure,
including water,storm water,sanitary sewer utilities and traffic/pedestrian improvements for the
entire Project and "Meet Me oil Meeker" improvements For the entire ProJect(i.e., both Phases).
F. In order to facilitate Developer's phased development of the Project, City mid
Developer have agreed pursuant to the Purchase Agreement that City shall sell and convey
approximately one-half' of the Property to Developer (herein the "Phase I Property") and
concurrent therewith City and Developer shall enter into a lease with of the remaining one-half
of the Property (defined herein as the "Phase 2 Property" or the "Leased Premises") as legally
described on attached Exhibit C. Pursuant to the Lease,Developer will have access to the Leased
Premises for purposes of making certain site and int'ra%tructure improvements to the Leased
Premises as agreed to in the Development Agreement or as otherwise required pursuant to
Project pen-nits prior to Developer's purchase of the I.eased Premises.
G. Lease of the Leased Premises shall be at the rent and other terms and conditions
set forth below. City has further agreed to grant Developer an option to purchase the Leased
Premises subject to satisfaction of certain conditions precedent, at an option price and on other
terms and conditions hereinafter set Fordi,
NOW, THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and sufficiency ofwhich is hereby acknowledged. the parties
agree as follows:
AGREEMENT
1. Incorporation of Recitals: Definitions. Each recital set Ibrth above is
incorporated into this Lease as though fully set forth herein. As used herein,the following terms
shall have the following meanings:
"Additional Rent" means any monetary surn, required to be paid by Developer to
City Under the provisions of this Lease (other than Rent).
"Business Day" means a day other than Saturday. Sunday, any federal or
Washington State holiday. any date on which banks located in the state of Washington are
authorized or obligated to close or any dale on which the King County Recorder's office is closed.
"City"means the City of'Kent.a Washington municipal corporation.
"Closing" means the date when Developer and City have delivered to Escrow
Agent all of the documents and funds required to be delivered by them to complete the purchase
284 1-o 86 03,271118 .2- lease(%V1111 Option 1E,purchase)0
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and sale of the Leased Premises (if Developer exercises its Option) in accordance with the
provisions of Sections 17 and 18 hereof.
"Closing Date"means the date on which the Closing occurs.
"Construction Lender"means North Cascades Bank,a division of Glacier Bank,
or some other state or national bank, insurance company,pension fund or other major financial
institution which has agreed to make a construction loan to Developer to construct the
Project with a credit rating substantially similar to,or exceeding, that of North Cascades Bank.
"Construction Permits" means the civil construction permits and building
permits for the Project.
"Developer Parties" means individually and collectively. Developer's agents,
employees, officers, consultants, contractors and subcontractors, guests, licensees or other
invitees of Developer.
"Development Agreement" means that certain Development Agreement
approved by the Kent City Council on August 15,2017 with an effective date of August 23,2017
by and between City and Developer for development of the Project.
"Discretionary Permits" means City's design review approval process and any
other permit other than Construction Permits required to build the Project.
"Effective Date" means the date this Lease has been fully executed.
acknowledged, and delivered by City and Developer.
"Environmental Laws" means, as amended from time to time, the Federal
Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
§9601 et.seq.. Federal Hazardous Material Transportation Control Act, 49 U.S.C. § 1801 et
seq., Federal Clean Air Act, 42 U.S.C, § 7401 et seq.. Federal Water Pollution Control Act,
33 U.S.C. § 132 I, Federal Water Act of 1977, 93 U.S.C. § 1251 et.seq.„Federal Insecticide,
Fungicide and Rodenticide Act, Federal Pesticide Act of 1978. 7 U.S.C. § 136et seq.,Federal
Toxic Substances Control Act, 15 U.S.C. §2601 et seq., Federal Sate Drinking Water Act, 42
U.S.C. §300f et seq., Washington Water Pollution Control Act, RCW ch.90.48, Washington
Clean Air Act, RCW ch.70.94. Washington Solid Waste Management Recovery and Recycling
Act, RCW ch. 70,95, Washington Hazardous Waste Management Act, RCW ch. 70.105,
Washington Iazardous Waste Fees Act, RCW ch. 70.95F. Washington Model Toxics Control
Act, RCW ch. 70.105D. Washington Nuclear energy and Radiation Act. RCW ch. 70.98.
Washington Radioactive Waste Storage and Transportation Act of 1980, RCW ch. 70.99.
Washington Underground Petroleum Storagc"Tanks Act, RCW ch. 70.148 and any regulations
promulgated thereunder.
"Escrow Agent"means First American 'Title Insurance Company which shall
provide escrow services and issue the 'I-itle Policy to be delivered to Developer in connection
with the('lasing.
2x4)IflSh 03:2718 Imsc 0Aith option to purchusc)0,
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"Events of'Dcfault"has the meaning set forth in Section 19 ofthis Lease.
"Expiration Date" means the earliest of: (i)the date which is two(2)years after
the closing date of Developer's purchase of the Phase I Property(which closing date is of even
date with the Effective Date),subject to extension in accordance with the provisions of Section 3
below: (ii)the Closing Date; (iii)any date on which this Lease terminates in accordance with its
terms; provided, however, that in no event shall the Expiration Date be a dale which is later than
two(2)years after the Iffective Date.
"Final Completion" or "Final Completion of the Project" means that (a)
construction of the portion of the Project located on the Leased Premises is substantially
complete as evidenced by a certificate of substantial completion issued by the Project architect,
and(b)City has issued a temporary certificate of occupancy for the portion ofthe Project located
on the Leased Premises.
"Force Majeure" means extraordinary natural events or conditions such as war,
riot, labor disputes,abnormally extreme weather,or other causes beyond the reasonable control
of the obligated party. City's or Developer's inability to fund,or decision not to fund,any of its
obligations shall not be a Force Mai cure event hereunder.
"Governmental Approvals" means all land use and other permits, licenses and
approvals necessary to build the Project on the Property or Leased Premises.
"Governmental Authority" means any court or tribunal in any jurisdiction within
the United States or any federal, state, tribal, municipal or local government or other
governmental body. agency, authority, department, commission, board, bureau, or
instrumentality.
"Hazardous Substances" means any material, waste, substance, industrial waste.
toxic waste, chemical contaminant, petroleum, asbestos. polychlorinated biphenyls or other
substances regulated or classified by Environmental Laws as hazardous,toxic or lethal to persons
or property.
"Initial Infrastructure" means all Phase 1 Property and Phase 2 Property (i.e.. the
Phase 1 Property and Leased Premises) on-site and off-site puhlic and private mainline
infrastructure. including water, storm water. sanitary sewer utilities and traffic/pedestrian
improvements and including all "Meet Me on Meeker" improvements for the Project and
including Phase I Property "geo-piers" and podium building foundations.
"initial Infrastructure Permits" means all grade, fill and mainline civil
construction pcnnits for the Initial Infrastructure.
"Initial Term" means the earliest of: (i) the date wluch is two (2) years after the
Effective Date; (ii) the. Closing Date; or (iii) any date on which this [.ease terminates in
accordance with its tcnns.
"KCC"means the Kent City Code as amended from time to time.
284 b086 03127r 18 1 lcanv(%rnh optwn to purha.c)c3
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"Laws" means any constitution, statute, ordinance, regulation. rule, resolution,
judicial decision, administrative order, or other requirement of any federal, state, county.
municipal, or other Governmental Authority having_jurisdiction Liver the parties or the Leased
Premiscs, or both, in effect either at the time of execution of this Lease or at any time during the
Term, including without limitation, any regulation or order of a quasi-official entity or body
(e.g., board of fire examiners or public utilities) including, but not limited to Environmental
Laws and all rules, laws and regulations issued thereunder. as the same may be amended from
time to time.
"Leased Premises" means that portion of the Property which will be leased to
Developer pursuant to this Lease which is legally described on Exhibit C attached hereto and by
this reference incorporated herein and wliich is depicted on the site plan attached hereto as
Exhibit D and by this reference incorporated herein.
"Liens" means any lien, charge, security interest or encumbrance accruing or
imposed upon the Leased Premises for the period commencing on the Effective Date.
"Option"means Developer's option to purchase the Leased Premises as provided
in Section 17 of this Lease.
"Option Price" means the purchase price for the Leased Premises payable to
City in cash on the Closing Date as described in Sections 17 and 18 ofthis lease.
"Phase I Property" means that portion of the Property which is legally described
on Exhibit E attached hereto and incorporated herein.
"Project Agreements"means(a)the option to repurchase agreement between City
and Developer of even date herewith; (b) the guaranty of'completion and performance from
FNW, inc. in favor of City; (c) the agreement concerning transfer and encumbrance restrictions
oil the Phase 1 Property of even date herewith(the "Limited Sale and Transfer Restriction"); (d)
the development schedule for the Project for Developer's submittal of applications for and City's
processing of entitlements and permits for the Project and(c)the Development Agreement.
"Purchase Agreement" means that Real Estate Purchase and Sale Agreement
between City and Developer dated as of May 5, 2017. as amended by that certain Amendment
to Real Estate Purchase and Sale Agreement with Lease/Option to Purchase dated as of
September 20, 2017, for the purchase and sale of the Phase 1 Property.
"Rent" means the amount payable by Developer to City pursuant to Section 4
below For the lease of'thc Leased Premises, and includes Additional Rent.
"Requirements of Law" means all requirements relating to land and building
construction (including those specifically applicable to the contemplated use of the Leased
Premises for the Project), including, without limitation, planning, zoning, subdivision, the
American with Disabilities Act, as amended, environmental, air quality. flood hazard, fire
safety, accessibility and other governmental approvals, permits, licenses and/or certificates as
may be necessary from time to time to comply with all of the foregoing and other applicable
statutes, rules, orders, regulations, laws, ordinances and covenants. conditions and restrictions
2841,00 03i27/I8 > !case(with option to purchuc)0
lrcad\}IX.tRiverhrnd Joint YeatureTbaw I Closing[hers
which apply to and/or affect the design, construction, existence, intended use, operation and/or
occupancy of the Leased Premises or any part thereof.
""faxes" means all real and personal property taxes, surface water management
charges and assessments (including assessments for public improvements), charges for public
utilities which if unpaid may become a lien on the Leased Premises,leasehold excise taxes,other
excise taxes, levies, sales, use and occupancy taxes, any tax or charge assessed against the
Taxable Rent as defined in RCW Chapter 82.29A or fair market value of the Leased Premises
and any taxes levied or assessed in addition to or in lieu of, in whole or in pan, such taxes,
assessments or other charges (including any leasehold excise taxes which may be from time to
time levied on the leasehold estate created by this Lease)and all other governmental impositions
and charges of every kind and nature, general and special, ordinary and extraordinary, foreseen
and unforeseen of every character (including interest and penalties thereon) which at any time
from and after the Effective Date of this Lease may be imposed. levied upon or assessed against
or which arise with respect to or constitute a lien upon the Leased Premises(or any part thereof),
the leasehold estate created by this Lease or any part thereof-, or any estate, right or interest
therein, or any occupancy. use or possession of or activity conducted on the leased Premises or
any part thereof.
"Tenn" means the period beginning on the Effective Date and ending on the
Expiration Dale.
"Title Company" means first American 'Title Insurance Company, which will be
issuing the Title Policy.
"Title Policy"has the meaning set forth in Section 12.13 below.
"i utilities"means all public or private utilities and services furnished to the Leased
Premises, if any.
2. Leased Premises.
A. Leased Premises. City, in consideration of the Rent herein payable by
Developer to City and the terms, covenants, and conditions of this Lease to be kept and
performed by Developer, hereby demises and leases to Developer, and Developer hereby hires
and leases fro n City.the Leased Premises.
B. Title to and Condition of Leased Premises. Developer has had an
opportunity to investigate the Leased Premises and is knowledgeable and familiar with the
present condition of title and the present condition and state of repair of the Leased Premises.
Developer shall have the right to obtain a leasehold owner's policy of title insurance at its sole
cost and expense as of the F11'ective Date and, if Developer exercises its Option, an owner's
policy of title insurance from the Title Company with respect to the Leased Premises in
accordance with the provisions of Section 12 hereof. The Leased Premises are leased to
Developer by City in their present condition and state of'repair on an "AS IS" basis and without
2R41/086 03!27/18 n Iraw(with option to purdtas.)s•_
ttcad%IAl%Ri%-cnccnd Joint Venture,Yhase I l lusim:Ducs
any representation or warranty of any kind by City, express or implied, other than as set firrth
herein, and subject to (a)the existing condition of title(except for those title exceptions.if any,
that City has agreed to remove as set forth in Exhibit F);(b)all applicable Requirements of'Law
now or hereafter in effect, (c)any liens,exceptions or encumbrances created by or arising by or
through Developer during the 'Perm of the Lease; and (d) any exceptions or encumbrances on
the Leased Premises as a result of the Discretionary Permits, the Development Agreement or
otherwise consented to in writing by Developer. Developer shall have the right to use, remove,
sell or dispose of all existing improvements on the Leased Premises, including any and all
personal property and equipment located therein. at Developer's sole cost and expense.
Developer hereby accepts the Leased Premises subject to all of the foregoing and without any
representation or warranty by City,express or implied, except as set forth lierein, and expressly
without recourse to City as to the physical condition of the Leased Premises or the suitability
of the Leased Premises for Developer's intended purposes.
C. Seller Disclosure Statement, Waiver of Riaht to Receive Seller
Disclosure Statement. PURSUANT TO RCW CH. 64.06. AS AMENDED BY CHAPTER
64, LAWS OF 2010, DEVELOPER HEREBY WAIVES ITS RICH f TO RtiCI?IVE THE
SELLER DISCLOSURE STATEMENT REFERRED TO THEREIN WITH RESPECT TO
THI: LEASED PREMISES. THIS WAIVER DOTS NOT EXTEND TO THE.•. SECTION OF
TILE DISCLOSURE STATEMENT ENTTTLL-.D "ENVIRONMENTAL". Developer
acknowledges receipt of the "Environmental" section of the Seller Disclosure Statement and
by executing this Lease, Developer waives its right to receive the balance of the completed
Seller Disclosure Statement with respect to the Leased Premises. Developer further agrees
that any information discovered by Developer concerning; the Leased Premises shall not
obligate Developer to prepare and deliver to Developer a revised or updated Seller Disclosure
Statement. Developer hereby waives any right to receive an updated or revised Seller
Disclosure Statement, regardless of the source of any new information, either at the time of
discovery of such new information or, if Developer exercises its Option to purchase the
Leased Premises.at Closing. Developer acknowledges that it is a sophisticated party familiar
with the ownership and development of real estate projects similar to the leased Premises
and Developer has or will have adequate opportunity to complete such independent
inspections of the Leased Premises as it deems necessary, and will elect whether to exercise
its Option to acquire the Leased Premises 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 City or by anyone acting or claiming to act by,
through or under or on City's behalf'. As provided in RCW 64.06.013(2), the real property
transfer disclosure statement shall be for disclosure purposes only and shall not be considered
part of this Lease or the Option to Purchase set forth in Section 17 hereof.
3. Term.
A. Initial I'erm. This Lease shall commence on the Effective Date and
shall expire on the Expiration Date, unless sooner terminated as provided herein, or unless
The Initial Term is extended pursuant to the remainder of this Section 3.
2x4 U0Xfi 03r2711 R .7 lecgc Iwah option i"purchase)v3
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B. Option to Extend Because of Appeal of Governmental Approvals. So
long as there exists no Event of Default by Developer (or any other responsible party as
applicable) under this Lease or other Project Agreements and there is no event of default under
any of the foregoing or that would otherwise, with the giving of notice, the passage of time.or
both, constitute an Event of Default by Developer under this Lease, Developer shall have the
right to extend the Initial Perm of this Lease and its Option to purchase the Leased Premises for
up to nine(9)months if Developer has not satisfied all of the conditions precedent to Developer's
exercise of its Option to purchase the Leased Premises solely because of a timely appeal to City's
approval of the issuance of the Discretionary Permits for the portion of the Project located on
the Leased Premises;provided, however. that if any such appeal is not finally concluded within
nine (9) months following City's approval of the issuance of the Discretionary Permits, as
applicable,then City shall have the right to terminate this Lease (and the Option to purchase the
Leased Premises set forth in Section 17)without liability to Developer upon sixty(60)days prior
written notice to Developer.
C. Option to Extend for Force Maieure Events. If Developer has been unable
to satisfy all conditions precedent to Developer's exercise of its Option to purchase the Leased
Premises prior to the Expiration Date solely because of the occurrence of one or more Force
Majeurc events,then provided(i)that there is no Event of Default by Developer tinder this Lease
or Project Agreements and no event that with the giving of notice, the passage of time or both,
would constitute a default thereunder or an Event of Default by Developer under this Lease,and
(ii) Developer provides City with written notice and evidence in form reasonably satisfactory to
City of the occurrence of such Force Majeure event no later than sixty(60)days prior to the then
Expiration Date, Developer shall have the right to extend the Term of this Lease and its Option
to purchase the Leased Premises for the duration of such Force Majeure event not to exceed three
(3) months.
D. Outside Expiration Date. In no event shall the Tenn of this Lease, as it
may be extended pursuant to the provisions of Suction 3.13 or 3.0 above be extended to a date
which is more than nine(9)months after the Initial 1-erm.
E. Developer's Termination Right. Developer shall have the right upon
thirty(30)days prior written notice to City to tenminate this Lease prior to the Expiration Date
without any further liability or obligation to City hereunder or otherwise in connection with
the Leased Premises, with the exception of payment of Liens, any and all Rents due for the
period prior to the effective date of termination or other charges that are Developer's
responsibility hereunder, or performance of any indemnification obligations set forth in this
Lease for the period arising or accruing for the period prior to Developer's termination of the
Lease pursuant to this Section 3.E. termination of this lease under this Section 3.17 shall
automatically terminate Developer's Option to purchase the Leased Premises.
284 Utl8h 0 3.3T1 R R- leasc(with option to purchase)0,
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4. Rent.
A. Rent. City acknowledges receipt of the sum of One Dollar($1.00) which
represents prepaid Rent for the Initial Term. Developer shall pay City Additional Rent for any
extension of the Term as provided in Section 3 above. Rent is fully earned once paid and is
nonrefundable.
B. Leasehold Excise Tax. In addition to prepaid Rent, Developer shall pay
City leasehold excise tax on Taxable Rent as defined in RCW 82,29A (currently 12.84% of
Taxable Rent)commencing as of the Effective Date. Leasehold excise taxis also payable on any
rental payments made during any extension term of the Lease. Notwithstanding anything to the
contrary contained herein, Developer shall be solely responsible fior and shall indemnify and
hold City harmless from the total amount or any and all leasehold excise tax on the Leased
Premises, including but not limited to any additional leasehold excise taxes,interest or penalties
dUc and owing in connection with the lease of the I.,eased Premises pursuant to a department of
revenue taxable rent computation under RCW 82.29A.020(2)(g).
C. Additional Rent. All amounts which Developer is required to pay to
City pursuant to this Lease (other than prepaid Rent) shall constitute additional rent
("Additional Rent") whether or not the same be designated as Additional Rent in this Lease.
Except as otherwise expressly provided herein, Developer shall perform all of its obligations
under this Lease at its sole cost and expense, and shall promptly pay all Additional Rent.
Developer shall also promptly pay to all third parties any other sums required to be paid by
Developer under this [,ease, when the same shall be due and payable and in all events prior to
delinquency.
1). Absolute Triple Net Lease, This Lease is intended to be and shall be
construed as an absolutely t r i p I c net lease Pursuant to which City shall not, except as
other-wise expressly provided in this Lease, under any circumstances or conditions, whether
presently existing or hereafter arising, or whether beyond the present conternplation of the
parties, be expected or required to make any payments of any kind whatsoever or be under
any other obligation or liability, except as otherwise expressly provided in this Lease. and
Developer shall make any and all payments required hereunder,
5- Taxes and i.iLilifies.
A. Payment of Taxes by Developer. With the exception of leasehold excise
tax which shall be paid to City as provided in Section 4.13 above. Developer shall pay all Taxes
directly to the applicable governmental agency prior to delinquency and shall provide proof of
such payment promptly to City upon request. To the extent Taxes or other charges can be paid
in installments,Developer may pay such Faxes in installments and shall only be liable for
Taxes which accrue from and after the Fffective Date. With respect to any general or special
28411086 03Q7118 9. lease 11%vith option to purOiasc)v3
treadU iALR;vcrhcrjd.1mra VVItUfOP111hL I Closing
assessments which may be levied against or upon the Leased Premises,or which under the Laws
then in force may be evidenced by improvements or other bonds or may be paid in annual
installments, only the amount of such annual installment, and interest due thereon, shall be
included within the computation of Taxes. Developer's obligation to pay such Taxes shall
survive the expiration or earlier termination of(his Lease-
B. Personal Property Taxes. Developer shall pay prior to delinquency all
personal property taxes, if any, assessed against and levied upon all personal property located
on the Leased Premises, if any. Developer shall cause all such property to be assessed and billed
separately from the Leased Premises.
C. Utilities. City shall not be responsible for the cost of providing any
Utilities to the Leased Premises and shall not be liable for any loss, injury or damage to person
or property caused by or resulting from any variation, interruption, or failure of utilities due to
any cause whatsoever. and Rent shall not abate as a result thereof. Developer shall be solely
responsible for determining whether available Utilities. if any, and their capacities will meet
Develolwr's needs during the Term of this Lcase. In addition. Developer shall be solely
responsible for and shall pay separately for all charges for Utilities used or consumed on the
Leased Premises. It is understood that City shall not be required to provide any Utilities to
Developer,and Developer shall make any necessary arrangements to have all such Utilities billed
directly to and paid for directly by Developer.
6. Use off-eased Premises, Permitted Use,
A. Use of Leased Premises, Permitted Use. Developer shall have the right
to use the Leased Premises for construction of the initial infrastructure only pursuant to the Initial
Infrastructure Permits, for construction staging related to Developer's construction of the portion
of the Project located on the Phase l Property, for temporary parking, for erecting signs that
comply with City's sign ordinance, and ("or any pre-construction activities related to the Project
as authorized by City in writing, all at Developer's sole cost and expense (the"Permitted Use")
and for no other purpose Without the prior written consent of City, which consent shall not
unreasonably be withheld.
B. Quiet Enjoyment. Upon payment by Developer of Rent as herein
provided and upon the observance and performance of the covenants, terms and conditions on
Developer's part to be observed and performed, Developer shall peaceably and quietly hold and
enjoy the Leased Premises for the Term hereby demised without hindrance or interruption by
City or any person or persons lawfully or equitably claiming, by, through or tinder City, except
for the rights of parties under Permitted Exceptions.
2831 U86 U32� (8 . W- lease iwith option to purchase)0
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C. No Insurance Cancellation. Developer shall not do, bring, or keep
anything in or about the leased Premises that will cause a cancellation of any insurance required
by Developer to have in place for the Leased Premises.
1). No Unlawful Use, Waste, Nuisance or Damage. Developer shall
maintain the Leased Premises in a clean and orderly condition remove all debris and rubbish
and maintain construction fencing or other construction barricades or screening when required by
law and otherwise in good condition and repair. Developer shall not allow the Leased Premises
to be used for any unlawful purpose,nor shall Developer use the Leased Premises in any manner
that will constitute waste of the Leased Premises or a nuisance.
E. Compliance with laws. Developer shall comply with all Laws
concerning the Leased Premises and Developer's use of the Leased Premises, including without
limitation,Environmental i.aws. So long as no Event of Default has occurred and is continuing,
Developer shall have the right to contest at its sole cost and expense and after prior notice to
City, by appropriate legal proceedings conducted in good faith and with due diligence, any
Law. Tax, rule,order, ordinance,regulation or other requirement affecting the Leased Premises
and to postpone compliance with the same during the pendency of such contest provided that
the enflorcement of such Law. Tax, rule, order,ordinance, regulation or other requirement is
stayed during the pendency of such contest and the contest will not subject City to criminal or
civil penalty or fine or jeopardize title to the Leased Premises. City shall cooperate with
Developer in such contest at no cost to City and shall execute any documents or provide such
information as Developer may reasonably request in furtherance of such proceedings.
Developer shall proceed diligently and in good faith to resolve such contest and shall not
postpone compliance with any Law, rule, order, ordinance, regulation or other requirements
if the same shall invalidate any insurance required by this Lease. Developer shall indemnify,
protect., defend and hold City, the Property and the Leased Premises harmless From any Lien or
liability with respect to such Law.Tax, rule, order. ordinance, regulation or other requirement
or contest thereof, including all cost and expenses related thereto.
7. Liens.
A. Covenant Against Liens. Except as pcnnitted under Section 7.8,
Developer covenants and agrees that it shall not suffer or permit any Liens to be attached to,
upon or against the Property the Leased Premises or any portion thereof or any Rent payable
under this Lease arising out of Developer's possession, use,occupancy, repair,maintenance or
construction of the Initial Infrastructure or otherwise in connection with Developer's activities
on the Leased Premises, or by reason of the furnishing of labor, services, materials or
equipment to the Leased Premises or to Developer or any of the Developer Parties (other
than Liens arising through the actions of City not consented to by Developer). Developer
agrees to indemnify, protect, defend and hold City harmless from and against all liabilities,
losses; damages, expenses and costs (including reasonable attorncy's fees and costs) incurred
in connection with any such Llen(ti) arising during the 'term of this Lease (other than Liens
28-1 U086 o3/27/18 I Intw(with option to pindrsr)0
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arising through actions of City not consented to by Developer). Developer's obligations
pursuant to this Section TA shall survive the expiration or earliertennination oftlus lease.
13. Covenant to Remove Developer Liens. Developer will promptly. and
in all events within thirty (30)days following the attachment of same,remove and discharge any
and all liens(other than liens arising through actions of City not consented to by Developer)
which attach to, upon or against the Property. the Leased Premises or any portion thereof.
Developer reserves the right to contest the validity or amount of any such Liens in good faith;
provided that within thirty (30) days after the filing of such Liens,Developer discharges said
Liens of record or records a bond which complies with the requirements of RCW 60,04.161
eliminating said Liens as an encumbrance against the Property and/or the Leased Premises.
in the event Developer shall fail to so remove any such Liens, City may take such action as
City shall reasonably detennine to remove such Liens and all costs and expenses incurred
by City including, without limitation, amounts paid in good faith settlement of such Liens and
attorneys' fees and costs shall be paid by Developer to City as Additional Rent, together with
interest thereon at the rate of eight percent (8%) interest per annum from the date advanced
until paid. Developer's obligations pursuant to this Section 7.B shall survive the expiration or
earlier termination ofthis Lease.
C. Disclaimer of Liability by City. Nothing contained in this Lease shall be
construed as the consent or request of City,express or implied,for the performance by Developer
of any labor or services or for the furnishing of any materials or equipment for any construction,
alteration,addition.repair to the Property or the Leased Premises(or any part thereof). NOTICE
IS HEREBY GIVEN CITY WILL NOT BE LIABLE FOR ANY LABOR, SERVICES,
MATERiALS OR EQUIPMENT FURNISHED OR TO BE FURNISIIED TO DI VF..LOPER
OR ANYONE HOLDING ANY INTEREST IN `1'H[ PROPERTY OR THE' LEASED
PREMISES OR ANY PART THEREOF TIIROUGH OR UNDER DEVELOPER AND NO
MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES, MATERIAL OR
EQUIPMENT SHALL ATTACH TO OR AFFECT 'i-HE INTEREST OF CITY iN THE:
LEASED PREMISES OR THI: PROPERTY.
8. Development Agreement. In case of a conflict between the terms of this Lease
and the ternis of the Development Agreement regarding development of the Project, the terms
of the Development Agreement shall control.
9. Insurance and Indemnification.
A. Insurance. Developer shall procure and maintain, at a minimum, for
the Term of this Lease, the following insurance against claims for injuries to persons or
damage to property which may arise from. or in connection with the performance of work
hereunder by Developer. or any of the Developer Parties. The cost of such insurance shall
be paid by Developer or the Developer Parties. Coverage shall be at least as broad as:
28411086(0,27119 . 12. 1ca+c(Ncith option to purch�.cc)%
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(i) General Liability: Insurance Services Office form number(CGOO
00 1)covering Commercial General I-iabililv, with a limit of not less than $2,000,000 combined
single limit per occurrence, $2,000,000 aggregate.
(ii) [Intentionally omitted]
(iii) Automobile Liability: Insurance Services Office form number
(CA 00 0 1)covering Business Automobile Coverage, symbol I "any auto"; or the combination
ol'symbols 2, 8, and 9, with a limit of not less than $1,000,000 combine(] single limit per
occurrence, $2,000,000 aggregate.
(iv) Workers' Compensation: Workers' Compensation coverage, as
required by the Industrial Insurance Act of the State of Washington, statutory limits.
(a) Deductibles and Self-Insured Retentions. Any deductibles
or self-insured retentions must be declared to and approved by City, which approval shall not
be unreasonably withheld or delayed. The deductible and/or self-insured retention of the
policies shall be the sole responsibility of Developer.
(b) Other Insurance Provisions. The insurance policies
required by this Lease are to contain or be endorsed to contain the 1161lowing provisions where
applicable:
(A) Liability Policies:
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294 1,'086 6 V2711X 13 lease(with option to purchasc)%3
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(1) City, its officers, officials, employees and
agents are to be covered as additional insureds as respects: liability arising out of activities
performed by or on behalf of 1)cveloper or any of the Developer Parties in connection Willi
this Lease.
(i1) Developer's insurance coverage shall be
primary insurance as respects City, its ofrcers, officials, employees and agents. Any insurance
and/or self-insurance maintained by City, its officers, officials, employees and/or agents shall
not contribute with Developer's insurance or benefit Developer in any way.
(iii) Developer's insurance shall apply
separately to each insured against whom a claim is made and/or lawsuit is brought, except
with respect to the limits of the insurer's liability.
(iv) fay requiring such minimum insurance.
City shall not be deemed to, or construed to. have assessed the risks that may he applicable
to Developer associated with this Lease. Developer shall assess its own risks and, if it deems
appropriate and/or prudent, maintain greater limits or broader coverage.
(v) Insurance required under this Lease may
be covered under a blanket policy of insurance so long as such blanket policy of insurance
meets the minimum amounts of insurance required hereunder.
(B) All Policies. Coverage shall not be canceled until
after thirty (30) days' (1 p days' for non-payment) prior written notice has been given to City.
(C) Acceptability of Insurers.
(i) Untess otherwise approved by City, or its
risk manager, insurance is to be placed with insurers with a Best's rating of no less than A:VIII.
or, if not rated by Best's, with minimum surpluses the equivalent of Best's surplus size VIII.
All insurance companies providing insurance under this Lease shall be authorized to do
business in the State of Washington.
(ii) If.at any time,any of the foregoing policies
shall fail to meet the above mininimn standards, Developer shall,upon notice to that effect from
City, promptly obtain a new policy. and shall submit the same to City, with certificates and
endorsements. for approval.
2841 M6 OiVA 8 I d- IM C(will/option tt purchaa)0,
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(D) Verification of Coverage. Developer shall
furnish City with evidence oC the 'insurance required by this Lease. City reserves the right
to require Developer to deliver complete certified copies of all required policies at any time.
H. Indemnification.
(i) By Developer. Developer shall protect, defend, indemnify. and
save harmless City, and its officers, officials, employees and agents, from any and all claims,
demands.suits,penalties.losses,damages,judgments.or costs of any kind whatever(hereinafter
"Claims"), to the extent such Claims arise directly or indirectly out of or in any way result from
the acts or omissions ol'Developer, or any of the Developer Parties or their respective officers.
employees, agents, contractors and/or subcontractors of all tiers, in the performance of its
obligations under this [.ease. Developer's obligations tinder this Section 93 shall include. but
not be limited to:
(A) The duty to promptly accept tender of defense and
provide defense to City at Developer's own expense.
(B) The duty to indemnify and defend City from any Claim
brought by or on behalf of any of the Developer Parties or any of their respective agents or
employees. The foregoing duty is specifically and expressly intended to constitute a waiver of
Developer's immunity under Washington's Industrial Insurance Act, RCWTitic 51, as respects
City only, with a full and complete indemnity and defense of Claims made by employees of
Developer or any of the Developer Parties. The parties acknowledge that these provisions%A'CrC
mutually negotiated and agreed upon by them,
(C) In the event City incurs any judgment, award, and/or
costs arising therefrom. including attorneys' f'ees, to enforce the provisions of Section 9.B,
all such fees, expenses. and costs shall be paid by, Developer.
Notwithstanding the provisions contained in Subsection 9.B, Developer's obligation to
indemnify City shall not extend to any Claim, to the extent caused by the negligence of City or
any of-its officers, officials, employees or agents, or by breach of this Lease by City.
(ii) By, City. To the extent permitted by law. City shall protect,
defend, indemnify, and save harniless Developer and its officers, officials, employees and
agents, from any and all Claims, to the extent such Claims arise out of or in any way result from
the negligent acts,omissions or willful misconduct of City in the performance of its obligations
under this Lease. City's obligations under this Section 93 shall include. but not be limited to:
(A) The duty to promptly accept tender of defense and
provide defense to Developer at City's own expense.
2N-ITiOR603127/IX Inse kivith option to Ism-chme)0
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(B) 'llic duty to indemnity and defend Developer tram any
Claim brought by or on behalf of City's agents or employees. The foregoing duty is specifically
and expressly intended to constitute a waiver of City's immunity under Washington's Industrial
Insurance Act, RCW 'title 51, as respects Developer only, with a full and complete indemnity
and defense of Claims made by employees of City. *rhc parties acknowledge that these
provisions were mutually negotiated and agreed upon by them.
(C) In the event Developer incurs any judgment, award,
and/or costs arising therefrom, including attorneys' fees. to enforce the provisions of this
Section 9.13, all such fees, expenses, and costs shall be paid by City.
Notwithstanding the provisions contained in Subsection 9.13 above, City's
obligation to indemnify Developer shall not extend to any Claim to the extent caused by the
negligence of Developer or any of the Developer Parties, or by breach of this Lease by
Developer.
10. Condemnation of the Property.
A. Entire Condemnation. If the I-eased Premises are subject to a taking in
whole by eminent domain. or conveyed under a threat of condemnation, this Lease shall
automatically terminate:as of the earlier of the date title vests in the condemning authority or the
condemning authority first has possession of the Leased Premises and all Rent and other
payments shall be paid to that date. City shall be entitled to the entire award from the
condemning authority attributable to the value of the Leased Premises and Developer shall make
no claim for the value of its leasehold.
B. Partial Condemnation. If less than all or substantially all of the Leased
Premises shall be taken as a result of the exercise of the power of eminent domain, then
Developer may, at its option, terminate this Leasc by written notice to the City. If the Lease is
so terminated. the Option Payment shall be returned to Developer. If the Lease is not so
terminated,this Lease shall continue in full force and effect as to the remaining Leased Premises
and (here shall be no abatement ol'Rent or adjustment of the Purchase Price,
11. Assignment: Subletting.
A. Assignments and other Transfers During Term of'Lease. Developer shall
not assign, transfer, mortgage, pledge. hypothecate or encumber this Lease or any interest
thereon, including. but not limited to its Option to purchase the Leased Premises, or sublet
the Leased Premises or any part thereof. without City's prior written consent in each instance.
294 1/081%W 271ig ]b 1cim:i with option to purchase) 3
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which consent may be withheld by City in its sole discretion; provided, however, that
Developer may assign or transfer its interest under this Lease to an affiliated entity that: (i) is
under common ownership and control with Developer and/or the principals of Developer: and
(ii)assumes in writing all obligations of Developer under this Lease and all Project Agreements.
Any request by Developer for such consent shall be in writing, which shall set forth the
details as to the proposed assignment, transfer, mortgage, pledge, encumbrance or subletting
and have armexed thereto a copy of the proposed mortgage, assignment or sublease. Any
attempted assignment, transfer, mortgage,encumbrance or subletting without such consent shall
be void and shall constitute a breach of this Lease.
B. Transfers of Interest in DeveloMi. Developer acknowledges that City is
relying upon the personal knowledge,expertise and experience of Developer and its principals,
and City would not have entered into this Lease or granted Developer an Option to purchase the
Option Property, but for the personal knowledge, expertise and experience of John McKenna
and Brett Jacobsen,and John McKenna's and Brett Jacobsen's continued ownership of an interest
in Developer. Accordingly. the persons holding direct or indirect beneficial interests in
Developer other than John McKenna and Brett Jacobsen may transfer,convey or assign interests
in Developer so long as John McKenna and Brett Jacobsen shall continue to hold the same
proportionate interest in Developer and John McKenna and Brett Jacobsen shall continue to have
a material and active involvement in the on-going management and development of the Project
until Final Completion of the Project.
C. Definition of Transfer. As used herein, a "transfer" includes any
mortgage, pledge or sale, transfer. conveyance, assignment or other disposition of fifty-one
percent(51%)or more of the total outstanding voting membership interests in Developer(each,
a "Controlling Interest"), whether voluntary or involuntary, by operation of law or otherwise,
including transfers to a trustee in bankruptcy. receiver or assignee for the benefit of creditors,
any merger,consolidation,liquidation or dissolution of Developer and includes the sale,transfer,
merger,
mortgage, pledge or encumbrance of a Controlling Interest in Developer. The term "transfer"
shall also include a transfer of interest by.lobn McKenna or Brett.facobscn that violates the terms
of Section I I.B. above.
12. Title to Leased Premises.
A. Title to Leased Premises. City shall execute and deliver to Developer at
Closing a bargain and sale deed in the tiorni attached hereto as Exhibit F ("Deed") which
shall be accepted by Developer, conveying fee title to the Leased Premises subiect to the
Permitted Exceptions determined in accordance with Sections B and C below.
B. Title Insurance. On the Closing Date, City shall cause the Title
Company to issue Developer a standard coverage Owner's Policy of Title Insurance (the"Title
Policy"),with liability in the amount of the Option Price insuring fee simple title to the Leased
Premises in Developer, against any loss or damage by reason of detects in City's title to (lie
29-11/080 0312 N 8 lease(,A ith option to purchase)0
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Leased Premises other than the Permitted Exceptions. Developer may, at its sole cost and
expense, request extended coverage or endorsements to the Title Policy, but the availability of
such extended coverage or endorsements shall not be a condition precedent to Closing.
Developer, at Developer's sole cost and expense, may further elect to obtain a leasehold
policy of title insurance insuring its interests in the Leased Premises during the Term.
C. Title Review. Developer acknowledges that the Title Company has
provided Developer with a preliminary commitment for title insurance for the entire Property
under First American Title Insurance Order No. 4209-2374009 dated August 8, 2016 as
thereafter supplemented ("Title Commitment"), Developer has approved all of the special
exceptions set forth in Exhibit G attached hereto (the "Permitted Exceptions").
(i) Updated Title Report. Developer shall have the right to order
a supplement to the Title Commitment at any time. Developer shall advise City what
exceptions to title, if any, in addition to the Permitted Exceptions, will be accepted by
Developer within ten(10)days following Developer's receipt of the supplement to the Title
Commitment; provided. however, that Developer shall not be entitled to object to
agreements and easements that are required under the terms of any Governmental
Approvals required to build the Project: or easements, liens or other exceptions arising
through Developer or any of the Developer Parties or Project Agreements, and City shall
be responsible for removing or terminating any additional exceptions to title created by or
through City without the consent of Developer after the Effective Date. If Developer fails
to object in writing to any such additional exceptions within such ten (10) day period,
Developer shall be deemed to have disapproved the same as Permitted Exception(s).
(ii) City's Notice. City shall have ten (10) days after receipt of
Developer's notification within which to notify Developer whether or not it elects to cure
or remove any of the disapproved exceptions (as limited by subsection 12.C.(i) above) of
which City receives timely notice pursuant to Section 12.C(i). City's failure to so notify
Developer shall constitute City's election to not remove all such exceptions. Notwithstanding
the foregoing, City shall remove all exceptions it is required or otherwise elects to remove
on or before the Closing Date for Developer's purchase of the Leased Premises.
(iii) Developer's Election. If City does not elect to remove all
exceptions disapproved by Developer under Section 12.C(i) (with the exception of any
exceptions City is required to remove thereunder), Developer may elect to terminate this Lease
and Option by written notice to City given within ten (10) days following City's notice,
whereupon this Lease and Option each shall automatically terminate, and except as otherwise
expressly provided herein, neither party hereto shall have any further rights, duties or
obligations under this Lease. If Developer does not elect to terminate this Lease within the time
frame set lbrth herein, disapproved exceptions that City has not elected to remove (and is not
required to remove)shall become Permitted Exceptions for the Leased Premises.
(iv) Title Not insurable. if title is not insurable subject only to the
Permitted FAceptiuns determined in accordance with this Lease, Developer may elect to proceed
with the Closing of the purchase of the Leased Premises despite such noninsurahility, thereby
841,OP6 u1!27 1% . t 5- lease(wish option to purcha c)0
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accepting any such matters as Permitted Exceptions, or Developer may terminate this Lease by
written notice to City in which event this Lease and Option shall automatically terminate, and
except as otherwise expressly provided herein,neither party hereto shall have any further ri ghts,
duties or obligations under this Lease. In addition, if City fails to remove any additional
exception that City is required to remove hereunder, City shall be in default hereunder and the
terms of Section 19.0 below shall apply.
11 Representations. In order to induce each other to enter into this Lease and
the transactions contemplated hereby, City and Developer make the following representations
as of the Effective Date and. if Developer exercises the Option to purchase the Leased
Premises. as of the Closing Date:
A. City Representations. City represents to Developer as follows:
(i) Authority. City is a municipal corporation duty organized and
existing under the laws of the State of Washington. Pursuant to City Council motion dated
August 15,2017,the City Council authorised its Mayor or Mayor pro tern to execute and deliver
this Lease on behalf of City. No other authorizations or approvals of the City Council are
required for City to lease the Leased Premises to Developer or sell the Leased Premises (if
Developer exercises the Option to purchase the Leased Premises) to Developer.
(ii) No Conflicts. Neither the execution, delivery nor perl'orniance
by City of its obligations under this Lease nor the consummation of the transactions
contemplated hereunder will constitute a breach of any contract, evidence of indebtedness or
other financing agreement to which City is a party or by which City is bound.
(iij) Title. To City's Knowledge, there are no liens. enctuiibrances or
other matters affecting title to the Leased Premises except as disclosed in the Title Commitment.
City has not entered into any agreement granting any person the right to use or lease all or any
portion of the Leased Premises. other than execution of this Lease with Developer, nor has City
granted any option or otherwise committed itself to sell the Leased Premises or any portion
thereof-to any party other than Developer.
(iv) No Litigation. There is no litigation pending or. to City's
Knowledge.threatened against the Leased Premises.
(v) No Condemnation. There are no condemnation proceedings
pending or, to City's Knowledge, threatened against the Leased Premises.
(vi) Compliance with Law. FAcept as delivered to Developer pursuant
to the Purchase Agreement as part of the Property Information,City has not received any written
notification from any governmental authority requiring any work to be done on the Leased
Premises or advising of any condition (including, without limitation, hazardous substances or
wastes) that would adversely affect the use or development of the Leased Premises. To City's
knowledge. there are no hazardous substances or waste present in, on or under the Leased
Premises in any manner or quantity that would violate any applicable law or regulation.
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(vii) Defaults. City 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 material
contract, agreement,lease,encumbrance,or instrument pertaining to the Leased Premises which
will be binding on Developer or the Leased Premises after the Closing described in Section 18
below.
(viii) City's Knowledge, As used herein, the term "to City's
Knowledge" means the current actual knowledge of Kurt Hanson, Economic Development
Manager, and Ben Wolters, Director, Economic&Community Development. for City.
In the event that after the Effective Date and prior to the Closing Date,
City becomes aware of the existence of any fact(including a fact revealed by Developer and not
known to City as of the Effective Date),. that makes any of the representations set forth above no
longer true and correct, City shall promptly notify Developer of the same. if and to the extent
of disclosure by City of any such change in its representations, Developer may elect to terminate
this Lease on or before the date that is the later of (i) fourteen (14) Business Days after
Developer's receipt of such notice, or(ii) if Developer has exercised the Option to purchase the
Leased Premises,the Closing Date,and the Closing Date shall be extended.if required to provide
Developer with a minimum of fourteen (14) Business Days to evaluate such additional
information. If a representation by City is no longer true and accurate due to a material breach
by City, Developer shall also have the rights described in Section 19.0 below.
B. Developer Representations: Developer represents to City as follows:
(i) authority. Developer is a limited liability company duly
organized and validly existing under the la,.vs of the state of Washington and has the power
to carry on its business as now conducted. All corporate or other action on the part of
Developer and its directors and shareholders necessary for the execution, delivery and
performance of this Lease has been duly taken and Developer has full corporate power and
authority to enter into, execute and deliver this Lease and perform its obligations under this
Lease.
(ii) No Conflicts. Neither the execution, delivery or performance
by Developer of its obligations under this Lease nor the consummation of the transactions
contemplated hereunder(including the purchase of the Leased Premises if Developer exercises
the Option granted under Section 17 hereof) will constitute a breach of any contracts or
agreements of any kind to which Developer is a party or by which Developer is bound, including
but not limited to any evidence of indebtedness or other financing agreement to which Developer
is a party or by which Developer is bound.
(iii) All Consents Obtained. No consents, approvals, permissions,
authorizations, orders or licenses of any person or of any Governmental Authority is necessary
2841i086 03;27/I8 -'_0- lease(with option to purchase)0
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in connection with the execution, delivery and performance of this Lease or any transaction
contemplated hereby. ']'here is no provision in Developer's governing documents that would be
contravened by the execution and delivery of this Lease or the performance of any provision,
condition, covenant or other terns required to be performed by Developer under this Lease.
(iv) No Litigation. There is no pending or,to Developer's Knowledge,
threatened litigation, tax claim. action, dispute or other proceeding of any nature whatsoever
affecting Developer which could have a material adverse effect on the legal existence,power or
operations of Developer or the financial condition of Developer or the ability of Developer to
perform its obligations under this Lease. and Developer is not in default with respect to any
Requirements of Law that might result in any such effect.
(v) Development of Proiect. Developer represents and agrees that it'
Developer exercises the Option to purchase the Leased Premises. the Leased Premises will be
used solely (Err the purposes of timely development of the Project and not held by Developer
for speculation.
(vi) Developer's Knowledge. As used herein, the term "Developer's
Knowledge" means the current actual knowledge of John McKenna and Brett Jacobsen.
In the event that after the Effective Date and prior to the Closing Date,
Developer becomes aware of the existence of any fact that makes any of the representations set
forth above no longer true and correct. Developer shall promptly notify City of the same. If and
to the extent of disclosure by Developer of any such change in its representations.City may elect
to terminate this Lease(and the Option to purchase the Leased Premises contained herein)on or
before the date that is the later of(i) fiourteen (14) Business Days after City's receipt of such
notice,or(ii)if Developer has exercised the Option to purchase the Leased Premises,the Closing
Date, and the Closing Date shall be extended, if'required to provide City with a minimum of
fourteen (14) Business Days to evaluate such additional information.
14. "AS-IS"Sale. If Developer exercises the option to purchase the Leased Premises.
Developer acknowledges that it has had an opportunity to and has conducted a thorough
investigation of the i.eased Premises and is in all respects knowledgeable and familiar with the
present condition and state of repair of the Leased Premises. Developer acknowledges that it
will he concluding the purchase of the Leased Premises based solely upon Developer's inspection
and investigation of the Leased Premises and that the Leased Premises is being sold to Developer
in an "AS-IS" condition and state of repair,and with all faults,of any kind or nature and without
any representations or warranties. express, implied or statutory, EXCEPT AS SPECIFICALLY
SET f ORTI t IN "PHIS LEASE, THI✓ PURCHASE AND SALE AGREFMEN'I' AND THE
DEVELOPMENT AGREF.MI ENT. ary MAKES NO REPRESENTATIONS OR
WARR.ANTIIS WHATSOEVER WITH RFSPEC:T TO THE PHYSICAL CONDITION OR
VALUE OF THE LEASED PREMISES,THE PRESENCE OR ABSENCE OF HAZARDOUS
SUBSTANCES ON THE' I.fl.ASI D PREMISES, SOiLS CONDITIONS, OR OTIEER
PHYSICAL CHARACTERISTIC OF THE LEASED PREIVIISE.S OR TiIE SVITABILITY OF
2V 1;086 0311'7/18 :! ]caw oNill,option it)purchaac)0
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THE LEASED PREMISES FOR DEVELOPER'S INTENDED DEVELOPMENT. CITY
MAKES NO REPRESENTATION WHATSOEVER REGARDING THE FINANCIAL
FEASIBILITY OF THE PROPOSED REDEVELOPMENT OF THE LEASED PREMISES.
Except as specifically set firth in this Lease or in the Purchase and Sale Agreement, upon
recording of the Deed to the Leased Premises, Developer shall be deemed to have accepted the
Leased Premises in its"AS-iS. WHERE-IS"condition and state of repair and does hereby waive
and release City, its officials, officers, employees and agents from any and all claims for
damages, losses, liabilities, costs and expense whatsoever (including, without limitation.
reasonable attorneys' fees and costs), whether direct or indirect. known or unknown, foreseen or
unforeseen,which may arise on account of or in any way arising out of or in connection with the
physical or enviroiunental condition of the Leased Premises or any Requirements of Law
applicable thereto. DLVELOPER HEREBY SPECIFICALLY ACKNOWLEDGES THAT
DEVELOPER HAS CAREFULLY REVIEWED THIS SECTION AND DISCUSSED ITS
MEANING WITH LEGAL COUNSEL OF ITS CHOICE. THAT DEVELOPER 1S FULLY
AWARE' OF ITS CONSEQUENCES, AND "CHAT THE PROVISIONS OF THIS SECTION
ARE A MATERIAL PART OF THIS AGREEMENT AND ARE INTENDED TO BE
BINDING UPON DEVELOPER AND ITS SUCCESSORS AND ASSIGNS NOW AND AT
CLOSING. THIS SECTION SIIAI L SURVIVE CLOSPNG.
Developer's Initials: �;''�
15. Conditions Precedent to Developer's Exercise of Option to Purchase the Leased
Premises. As conditions precedent to City'% obligation to sell the Leased Premises to
Developer and Developer's exercise of its Option to purchase the Leased Premises, the
following conditions must be met to the reasonable satisfaction of City:
A. Compliance by Developer. Developer shall have materially performed,
Observed and complied with (and shall be in current compliance with) all of the covenants,
agreements, obligations and conditions required by this Lease as required to be performed,
observed and complied with by it prior to or as of the Closing Date.
B. Correctness of Representations. The representations of Developer set
forth in this Lease shall be true: and correct in all material respects on and as of the date the
Option is exercised and the Closing Date.
C. No Bankruptcy. Developer shall not have: (a j applied for or consented to
the appointment of a receiver, custodian or trustee for any of his or its property, (b) become
insolvent. (c) failed generally or admitted in writing its inability to pay its debts as they become
due.(d) been consolidated,liquidated or dissolved,(c)filed a petition or action for relief relating
to any federal or state bankruptcy, reorganization, insolvency, moratorium or similar statute or
any other law or laws for the relief or of relating to debtors, or (f) made an assignment for the
benefit of its creditors or entered into an agreement of composition with its creditors, nor(g)had
a petition been filed against Developer under any federal or state bankruptcy, reorganization,
insolvency,moratorium or similar statute,or any other law or laws for the relief of or relating to
debtors.
2841iU46 03Q7'18 2?- lm-x(with opiion to pttrchasc)v'
(reacH1A1.Ri%-cncvnd loini Vamure,Phccc 1 Ciosim.,iNN,
D. !1�ect Agreements. Developer shall have materially performed,
observed and complied with (and shall be in current compliance with) all of the covenants,
agreements,obligations and conditions required of it pursuant to the Project Agreements and any
other permits or approvals for the Project or other agreements with City appertaining to the
Property, or Leased Premises, including but not limited to any and all discretionary or
construction-related permits.
G. Other. in addition to the foregoing:
0) The podium building on the Phase I Property shall be fully framed
in.
(ii) All Initial Infrastructure for the Phase 1 Properly and the Leased
Premises pursuant to the Initial Infrastructure Permits shall be complete and accepted or
dedicated to City, as applicable.
(iii) A guaranty of completion and performance by FNIAI, Inc. to City
for that portion of the Project on the Leased Premises in form and substance substantially similar
to the guaranty of completion and perfz'rmance for the Phase t Property shall have been executed
and delivered to City.
The foregoing conditions contained in this Section 15 are solely for the benefit of
City. If any of the foregoing conditions are not satisfied, City shall have the right, at its sole
election, to waive the condition and proceed with the sale of the Leased Premises.
16. Developer's Conditions Precedent to Closing of Purchase of Leased Premises.
It' Developer elects to exercise the Option granted under Section 17 hereof, Developer's
obligations to close the sale of the leased Premises arc subject to satisfaction of- each of
the following conditions, each of which is for the benefit of Developer and any or all of
which may be waived by Developer in writing at its option.-
A. Compliance by City. City shall have materially performed, observed
and complied with all of the covenants, agreements. obligations and conditions required by
this Lease to be performed, observed and complied with by it prior to the Closing Date.
B. Correctness of Representations. The representations of City set forth in
this Lease shall be true and correct in all material respects on and as of the date the Option is
exercised and the Closing Date.
C. Condition of Property. City shall he in a position to deliver possession of
the Leased Premises at Closing free and clear of all leases, liens and other exceptions
(except for the Permitted Exceptions) and except for encumbrances created by or through
Developer.
D. Title Policy. The Title Company shall be in a position to issue Developer
the'title Policy in accordance with Section 14 and the Pro Forma Title Policy attached hereto as
Exhibit H.
2841/0H6 03,27/18 23- k-6c M1111 option to purchase)v i
;rcudMA1A%iverbcnd JointVcntureiYh.sc i :'Gum'Pj,cs
The foregoing conditions contained in this Section 16 are solely for the benefit
of Developer. If any or the foregoing conditions are not satisfied, Developer shall have the
right, at its sole election, to waive the condition and proceed with the sale orthe Leased Premises.
17. Option to Purchase Leased Premises.
A. Option to Purchase. Provided that Developer is not in default under this
Lease (including payment of any Additional Rent then due and owing), and Developer has
satisfied all of the Conditions Precedent to Developer's exercise of its Option to Purchase the
Leased Premises set forth in Section 15,Developer shall have the option to purchase the Leased
Premises (the "Option")and thereby terminate this Lease at any time prior to the Expiration Date
by giving notice of its election to exercise the Option,paying the Option Price set forth in Section
17.0 and delivering the documents required under Section 18 of this Lease.
B. Exercise ol'Op&n. Developer shall give written notice of its election to
exercise its Option to purchase the Leased Premises by delivery of written notice to City prior to
the Expiration Date as it may be extended hereunder.
C. Pavinent of Option Price. The Option Price shall be$10,500,000,less the
purchase price paid by Developer on the Phase I Property Closing, payable in cash on the
Closing Date. Developer's earnest money deposit of $500,000 made under the Purchase
Agreement shall serve as an option payment tinder the Option and shall be applicable to the
Option Price at Closing. The entire amount of the option payment is nonrefundable to Developer,
except as otherwise provided in the Purchase Agreement,or in this Lease.
18. Closing of Purchase ot'Leased Premises.
A. Closing Procedures.
(i') "Closing" shall occur when the Deed conveying title to the
Leased Premises to Developer is recorded, the Option Price has been disbursed to City and
Developer has executed and delivered the documents required under Section I&C below to
City. The Closing shall he held at the offices of Escrow Agent. The Closing Date shall be on
a date designated by Developer which shall be on a Business Day not less than thirty (30)days
nor more than ninety (90) days following exercise of the Option. Such date may not be
extended Without the written approval of City and Developer except as otherwise expressly
provided in this Lease. All documents shall be deemed delivered on the date the Deed is
recorded.
(ii.) In the event the Closing does not occur on or before the Closing
Date, Escrow Agent shall, unless It is ii0hFied by both parties to the contrary within rive (5)
days after the Closing Date. return to the depositor thereof items which may have been
deposited hereunder. Any such return shall not, however, relieve either party hereto of any
liability it may have for its wrongl'ul flailure to close.
2MV086 101127,'1 X -24 lusc(with option to pll%hascl%3
tTvid"H'Ad 'RiVCTknd kint VC111UN PhMt I ('111SM10 110Cs
B. Delivery by City. On or prior to the Closing Date,City shall deposit with
Escrow Agent, and shall deliver copies to Developer to the extent not previously delivered
prior to the ('losing, the following:
(i) The Deed to the Leased Premises in the form attached hereto as
Exhibit F executed by City in recordable form conveying fee simple title to the Leased
Premises free and clear of all liens and encumbrances, except for the Permitted Exceptions,
together with a duly executed real estate affidavit,
(i 1) Affidavit executed by City which satisfies the requirements of
Section 1445 of the Unites States Internal Revenue Code regarding foreign investors; Policy;
(iii) City shall cause the Title Company to issue Developer the Tide:
(iv) Such resolutions, authorizations, certificates or other corporate
documents or agreements relating to City as shall be reasonably required by Developer or the
Title Company in connection with this transaction; and
(v) City's share of Closing Costs.
C. Delivery by Developer. Oct or before the Closing Date, Developer shall
deposit with Escrow Agent the Option Price (less any adjustments authorized tinder this Lease)
and shall deposit the following:
(i) The Deed duly CXMITed by Developer in recordable form,
together with a duly executed real estate excise tax affidavit,
(i i) Such resolutions, authorizations, certificates or other ordinances
or agreements relating to Developer as shall be reasonably required by City or the Title Company
in connection with this transaction; and
(iii) Developer's share of Closing Cost,.,.
1). City's Closing Costs. In connection with the Closing. City shall pay
the real estate excise tax, if any, the cost of the Title Policy with liability in an arnount equal
to the Option Price to the extent of the premium for standard owner's coverage, one-half of
the escrow fees and City's attorney's fees.
1;
Developer's Closing Costs. In comiection with the Closing, Developer
shall pay the cost of the Title Policy to the extent in excess of the premium for standard
owner's coverage together with all endorsements to the Title Policy requested by Developer,the
cost ol'any survey required by Title Company in connection with the Title Policy, one-half of
284 11096 03 271 IS Icw.c!with option it)purchase)0
tTc.id"IIAL',ItiveihLn(I.I(lint Ventut011hase I Closin.L Hoes
the escrow fees,all recording fees,all costs associated with Developer's financing, including title
premiums and recording costs and Developer's attorney's flees.
F. Prorations. All revenue and all expenses of the Leased Premises (other
than real property taxes) to the extent not otherwise payable by Developer under this Lease
shall be prorated as of the Closing Date. Because City is exempt from real property taxes, no
proration of real property taxes, special assessments or surface water management charges is
required; however, Developer shall be responsible for payment of all property taxes, including
special assessments and surface water management charges which affect the Leased Premises
from and after the Closing Date.
G. Recordation and Delivery of Documents. Provided that Escrow Agent
has not received prior written notice from either party that any condition set forth elsewhere
in this Lease has not been fulfilled, Escrow Agent is authorized and instructed to take the
following actions and record the following documents in the official records of King County,
Washington on the Closing Date pursuant io.joint escrow instructions to be executed by City
and Developer:
(i) Record the Deed;
(ii) Deliver the affidavit described in Section 18.11(vi)to Developer;
(iii) Deliver the documents described in Section 18.13 to Developer
and deliver the documents described in Section 18.(-'to City,
H. Notification, Closing Statements. If Escrow Agent cannot comply with
the instructions herein and to be provided within the time period set by the parties, Escrow
Agent is not authorized to cause the recording of the foregoing documents. If Escrow Agent is
unable to cause the recording, Escrow Agent shall notify City and Developer at the addresses
set forth in Section 23 below and shall.. upon five (5) days prior written notice. retitrn
automatically all documents and monies to the parties depositing the same, whereupon Escrow
Agent shall be released from all further obligations as escrow agent hereunder. Promptly
following the Closing Date. all closings statements and documents to be delivered to City and
Developer shall be delivered to City and Developer at the address set lJorth in Section 23 below.
1. Possession. Developer shall be entitled to possession of the Leased
Preniises,on Closing, free and clear of all liens, leases, encumbrances and exceptions other than
the Permitted Exceptions and all liens, encumbrances or other exceptions arising through the
actions of Developer or any of the Developer Parties or any of their respective agents,employees
or consultants.
2M POM 0.3127118 lea-sr(with oplion to purchasr)0
trk:ad1RA,0Rivetbcnd Joint Venturv\1,imso 1 nosing r)oo
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19. Default.
A. Developer Default. The following events will constitute an "Fvent of
Default" by Developer:
(i) Developer fails to pay Rent, Additional Rent or Taxes prior to
delinquency, permitting or other fees payable to City in connection with obtaining any
Government Approvals required to construct the Project, Fails to maintain insurance that
substantially complies with Section 9, or fails to pay any other amount required to be paid by
Developer under this Lease within ten (10)days of the date when due;or
(i i) Developer (or any other responsible party as applicable) fails to
perform any material obligation under this Lease or other Project Agreements, or
(iii) Developer assigns, pledges or encumbers its rights, duties or
obligations Linder this Lease in violation of this Lease; or
(iv) Any representation made by Developer set forth in Section 13.11
is untrue or breached in any material respect and Developer fails to notify City as required
therein, or
(v) A petition for bankruptcy is filed by or against Developer or if
Developer makes a general assignment for the benefit of his or its creditors, or if a receiver is
appointed on account of his or its insolvenc), and any such petition or appointment is not
dismissed within sixty(60) days: or
(vi) Any Initial Infrastructure Permits are not picked up and paid R)r
by Developer within fifteen (15) calendar days of the later of. the closing date of the Phase I
Property or City notice to Developer that the Initial Infrastructure Permits are ready for issuance;
or
(vii) Developer fails to "commence construction" within thirty (30)
calendar days of the later of. the closing date of the Phase I Property or the date Developer picks
up/pays for the Initial Infrastructure Permits (the term "commence construction" as used herein
shall mean at a minimum the commencement of substantial Project work on the Phase I Property
and Phase 2 Property pursuant to the Initial Infrastructure Permits with notice to Developer's
general contractor to proceed and commencement of actual on-site construction activities on a
continuous basis as permitted tinder the Initial Infrastructure Permits, provided, however, that
the foregoing work with respect to the Phase 2 Property only may commence, in Developer's
discretion, not later than twelve (122)months after the closing date of the Phase I Property), or
S 2',41 MO 03;27/18 -27- lewse(wilh option to litirchaic)v3
1read\1?A]'.R ivcihcnd Inint Vcvlijrr-lIlhaic I Clomn-1 Dues
(viii) Developer closes.on the sale and conveyance of the Phase I
Property,in whole or in part.prior to Developer's substantial completion of the podium building
on the Phase I Propem, or otheii,6se violates any term or condition of the Negative Pledge
Agreement; or
(ix) Construction on the Phase I Property is halted for in excess of 180
consecutive calendar days, subject to Force Majeure.
B. Ci
ty, Remedies upon Developer Event of Default. Upon any Event of
Default by Developer, City shall give Developer written notice of the same, whereupon
following receipt Of such written notice Developer shall have thirty (30) days within which to
commence all necessary action to cure any such Event of Default (and if such cure is
commenced,proceed to diligently complete such cure within a reasonable period of time),except
with respect to Events of Default set forth in Section 19.A(i), (iii),(iv),(v),(vi),(vii)or(viii)for
which no cure period exists beyond the time period stated therein. In the event Developer fails
to cure such Event of Default within the time period set forth above, then City may elect to take
either Or both of the following actions: (a)recover Rent.Additional Rent,Taxes,permitting and
application fees and any and all other monetary charges then due and payable by Developer
under this Lease or other Project Agreements, together with interest thereon at the rate of eight
percent (8%) per annum from the date due until paid in full; mid/or (b) terminate this Lease
(including the Option to purchase the Leased Premises) by giving Developer thirty (30) days
prior written notice of such termination as its sole and exclusive remedies for such default.
C. City Default; Remedies. If City fails without legal excuse to perform
any material obligation under this Lease,or Linder the Development Agreement,Developer shall
give City written notice of same, whereupon following receipt of such written notice,City shall
have thirty (30) days within which to commence all necessary action to cure any such failure
(and if cure is commenced with such thirty('30)day period, proceed to diligently complete such
cure within an additional period of thirty (30)days). In the event City fails to cure such failure
within the time period set forth above and provided Developer is not in default hereunder,
Developer shall have the right as its sole and exclusive remedy to either(i)terminate this Lease
by giving City written notice oi'such termination and receive a refund of the Option Payment or
(ii)seek and obtain specific performance of the City's obligations hereunder;provided,however,
that in the event Developer elects the remedy of specific performance but such remedy is not
available to Developer bCCaLi1W Of the City's prior sale or conveyance of rights in and to the
Leased Premises to a tl-drd party, then Developer shall be entitled to bring suit against the City
for Developer's actual, out-of-pocket third party costs incurred in connection with Developer's
lease of and option to purchase the [-eased Premises, including without limitation Developer's
costs incurred in constructing and installing Initial Infrastructure, if any,all of which costs must
be substantiated in back-up documentation reasonably acceptable to City, and provided further
that in no event shall Developer's recovery of such costs from City exceed the sum of One
Million Five Hundred Thousand Dollars(51,500.000).
D. Waiver of Consequential and Punitive Damages. Each of City and
Developer waive any right to sue the other party ftir consequential, incidental or punitive
2841,1086 DY-771 8 (case oviih option ic)purchagei v3
Iread'd 1AFARiver1wnd Joint VentiotcTlimc I Clokirlit Vor<
damages. The provisions of this Section 19.D shall survive Closing or termination of this Lease,
Nothing contained herein is intended to waive either parry's right to indermlification under
Section 9, City's right to recover Rent. Additional Rent,Taxes, pcn-nitthig and application fees
or any other amount which Developer is obligated to pay, whether characterized as Rent,
Additional Rent or otherwise, under this Lease or the Development Agreenielli.
E. Rights and Remedies Cumulative. Except as otherwise expressly stated
in this Lease, the rights and remedies of the parties are cumulative, and the exercise or failure to
exercise one or more of such rights or remedies by either party shall not preclude the exercise by
it, at the same time or different times, of any right or remedy for the same default or any other
default by the other party.
20. Hazardous Substances. Except in accordance with Environmental Laws,
Developer shall not cause or permit any llazardous Substances to be brought upon. kept orused
in or about the Leased Premises by Developer, any of the Developer Parties or any of their
respective agents.employees, contractors or invitees, without the prior written consent of City.
If Developer breaches its obligations set forth above or if the presence offlazardous Substances
on or about the Leased Premises caused orpermitted by Developer or any of the Developer Parties
results in contamination of the Leased Premises, then Developer shall protect, defend.
indemnify and hold City harmless from and against any and all claim.-;,judaments, damages,
penalties, firtes, costs, liabilities or losses (including,without limitation,diminution in value or
the Leased Premises, damages arising from any adverse impact on marketability of other
properties owned by City, and sums paid in settlement of'claims,attorney's fees,consultant flees
and expert fees) which arise during or after the Term of this Lease as a result of such
contamination. If the presence of any Hazardous Substance on or about the Leased Premises
caused or permitted by Developer or any or the Developer Parties results in any contamination
of the Leased Premises, or causes the Leased Premises to be in violation of any Environmental
Laws.Developer shalt promptly take at its sole expense all actions necessary to return the Leased
Premises to the condition existing prior to the introduction of such I lazardous Substance and in
compliance with applicable Environmental Laws. provided that City's approval shall first be
had and obtained, which approval shall not be unreasonably withheld so lone, as such actions
would not potentially have any material adverse long-term or short-term eflect on the Leased
Premises. This indemnification shall survive the expiration or other termination of this Lease
and/or the Closing and recording of the Deed. Nothing contained in this Section 20 shall be
deemed to constitute or create all obligation of either party to indemnify the other party for
Hazardous Substances existing on the Leased Premises prior to the Effective Date of this Lease
nor shall either party be required to reniediate any Hazardous Substances existing on the
Leased Premises prior to the Effective Date of this Lease as part of its obligations to the other
party under this Lease. Developer shall promptly notify City in writing if it discovers
Hazardous Substances on the Leased Premises.
21. Time of the Essence, -]-he parties agree that time is of the essence in the
performance of every covenant, term, condition, and obligation to be performed hereunder. All
periods of tlliie referred to herein shall. unless otherwise expressly provided herein, include
Saturdays, Sundays and legal holidays in the State of Washington, except that ifthe last day of
2841/086 0312 V i 8 lcasc ovilh(1plion to p1m:h1vio V_
1readMA1%Riveri,cnd himt VcimircWhitic I I lniju Ooes
any period falls on any SatUrday.Sunday or Such holiday,the period shall be extended to the next
Business Day.
22. City's Right to linter the Leased Premises. City reserves and shall have the right
to enter the Leased Premises at reasonable times for the below listed purposes, following prior
reasonable notice to Developer. City shall not be liable in any manner for any inconvenience.
annoyance or disturbance to Developer or for any other damages arising out of City's entry onto
the Leased Premises as provided in this Section 22, provided City will exercise its rights in a
manner so as to minimize interference with Developer's operations at the Leased Premises:
A. Condition. To determine whether the Leased Premises are in good
condition and whether Developer is in compliance with its obligations under this Lease.
B. Notices. *ro serve,post or keep posted any notices required or allowed
under the provisions of this Lease.
23. Notices. Any notices or other communication which City or Developer shall
desire or be required to give pursuant to the provisions of this Lease shall be in writing and
shall be personally delivered or sent by regular mail and registered or certified mail or by
facsimile transmission. The giving of such notices shall be deemed complete on the third (3rd)
Business Day after the same is deposited in a United States Post Office with postage charges
prepaid or on the date when delivered or fixed(provided the fax machine has issued a printed
confirmation of receipt). All notices shall be addressed to the persons intended to be given
such notice at the respective addresses set forth below or to such other address as such party
may theretofore have designated by notice pursuant to this Section 23
Address of City: City of Kent
400 W. Gowe Street
Kent, Washington 98031
Attention: Kurt Hanson, Economic Development Director
Facsimile: (253) 856-6454
With a copy to: City of Kent
226Fourth Avenue South
Kent, Washington 98031
Attention: City Attorney
Facsimile: (253) 856-5706
And to: Foster Pepper 1111C
I I I I 'Mird Avenue. Suite 3000
Seattle, WA 98 101
Attention: Beth A. Clark
Facsimile; (.206) 749-1916
28-it,'096 03r17118 Icase(with option to putchasel 0
Ires(INHAIAlivahetid Joint VcMurelPhivic 1 ('10,14112 DMS
Address of Developer: Marquee on Meeker LLC
Attn: Brett Jacobsen
2711 West Valley Highway North, Suite 200
Auhunt, WA 98001
HAL Real Estate Inc.
Atin: Jonathan Maniteini
2025 First Avenue,Suite 700
Seattle, WA 98121
And to: Alston,Courtnage& I3assetti LLI'
1420 Fifth Avenue, Suite 3650
Seattle, WA 981014011
Attm: Thomas W.Read
Facsimile: (206)623-1752
Any party may change the address to which notices shall be sent by notice to the other
party hi the manner and with the effect set forth in this Section 23.
24. Surrender.
A. Surrender. Developer shall,on the last day of the Term of this Lease or
upon any earlier termination of this Lease (except any termination as a result of Developer's
exercise of its Option to purchase the Leased Premises), surrender and deliver possession of
the Leased Premises to City,free and clear of all Liens other than those existing on the date
of this Lease and those, if any, created or consented to by City.
B. Failure to Surrender. If Developer tails to surrender the Leased Premises
to City on the Expiration Date, Developer shall pay City monthly rent in an amount equal to
one hundred fifty percent (150%) of the then fair market rental value for the Leased Premises
as reasonably detennined by City. tiothing contained herein shall constitute the consent,
express or implied, of City to the holding over of Developer after the expiration or earlier
termination of this Lease.
C. Holding Over. I f Developer,with City's consent remains in possession
of the Leased Premises after expiration or termination of the"fern,or after the date in any notice
given by City to Developer terminating this Lease, such possession by Developer shall be
deemed to be a month-to-month tenancy terminable on twenty (20) days prior written notice
Given at any time by either party. During such month-[o-month tenancy. Developer shall gay
all Rent in an amount cgLuil to the fair market rental value Ior the Leased Premises as reasonably
detennined by City. All provisions of this Lease, except those pertaining to 'fern and the
Option to purchase the Leased Premises, shall apply to the month-to-month tenancy.
783 t/0R6 03/27/1 S lease(will]uptr(n W Purchase)v3
ttcadtEiAL-Xtvcnccnd Dint VentureThase I(,,tusine Doo
25. Miscellaneous.
A. Entire Agreemcilt, This Lease and any exhibits or attachments hereto
and forming a part hereof. set forth the entire agreement of Developer and City concerning
the Leased Premises (includes the Option to purchase the Leased Premises) and there are no
other agreements or understandings, oral or written, between Developer and City concerning
Developer's lease of the Leased Premises,except as may be set forth in the Pro.ject Agreements,
Discretionary Permits or other Governmental Approvals. Any subsequent modification of this
Lease shall be binding upon Developer and City only if reduced to writing and signed by the party
hitended to be bound.
B. Non-Waiver. No waiver of any breach by either party of any term.
covenant, condition or agreement herein and no failure by either party to exercise any right or
remedy in respect to any breach hereunder, shall constitute a waiver or relinquishment for the
future of any such term,covenant, condition or agreement or of any subsequent breach of any
such term,covenant, condition or agreement,nor bar any right or remedy of such party in respect
of any such subsequent breach, nor shall the receipt of any Rent, or any portion thereof by City
operate as an accord and satisfaction or a waiver of the rights of City to enforce the payment of
any other Rent then or thereafter in default, or to terminate this Lease, or to recover possession
of the Leased Premises or to invoke any other appropriate remedy which City may select as
herein or by law provided. No waiver of any term, covenant, condition, provision or
agreement under this Lease shall be deemed to have been made unless in writing and signed by
such party.
C. Construction. Fach agreement, term, and provision of this Lease to be
performed by Developer or City shall be construed to be both a covenant and a condition. Each
party will carry out its obligations under this Lease diligently and in good faith. Section captions
contained in this Lease are included for convenience of reference only and form no part of the
agreement between the panties. As used in this Lease, the masculine shall include the feminine
and neuter, the feminine shall include the masculine and neuter, the neuter shall include all
genders, the singular shall include the plural and the plural shall include the singular, as the
context may require.
D. Severability. 11'any provision of this Lease or the application thereof
to any person or circumstance shall to any extent be invalid or unenforceable. the remainder of
this Lease, or the application of' such provision to persons or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby, and each provision
of this Lease shall be valid and enforceable to the fullest extent permitted by law.
E. Neutral Authorship. The provisions of this Lease shall be construed as
a whole according to their common meaning and not strictly for or against any party and
consistent with the provisions contained herein in order to achieve the objectives and purposes
2$41/086 O3R7,11S -32, least(with option to purchase)v,3
[Teafl[AbRiverhend.loint VentureTh2se 1 Cloiinp Dck"
of this Lease. Each party hereto and its counsel has reviewed and revised this Lease and agrees
that the normal rules of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be construed in the interpretation of this Lease.
F. Nature of Relationship. The relationship between City and Developer
Linder this Lease shall be solely that of landlord and tenant and seller and buyer of real property
(if the Option is exercised). It is not intended by this Lease to, and nothing contained in this
Lease or the Option to purchase the Leased Premises granted herein shall, create any
partnership,joint venture or other arrangement between Developer and City-
G. No Brokers. City and Developer each represent to the other that
neither is represented by any broker, agent or finder with respect to this Lease(or the Option to
purchase the Leased Premises contained herein) in any manner with the exception of Matt
Kemper of Jones Lang LaSalle with respect to his representation of'City. Each party agrees to
indemnify and hold the other party harmless from and against any and all liability, costs,
damages, causes of action or other proceedings instituted by any broker, agent or finder,
licensed or otherwise, claiming through,under or by reason of the conduct of the indemnifying
party in any manner whatsoever hi connection with this Lease or the option to purchase the
Leased Premises contained herein,which indemnification shall Survive the expiration or earlier
termination of this Lease, or the Closing of the sale of the Leased Premises and recording of
the Deed.
H. Survival. All provisions ofthis Lease which involve obligations, duties
or rights which have not been determined or ascertained as of the Closing Date and all
representations, warranties, covenants,agreements and indemnifications made in or pursuant to
this Lease shall survive the expiration or termination of this Lease or the Closing of the sale of
the Leased Premises and the recording of the Deed.
I. Recordinp, ol' Memorandum. Neither City nor Developer shall record
this Lease without the written consent of the other party; provided, however, that either City or
Developer shall have the right to record a Memorandum of this Lease in a form reasonably
acceptable to both parties.
J. Covenants to Run with the Land. 'rhe terms, covenants, agreements
and conditions herein contained are and shall be deemed to be covenants running with the land
and the estate created by this Lease and. subject
ject to 1he provisions of Section I I hereof, shall
bind and inure to the benefit of the par-ties hereto and their respective successors and permitted
assigns.
K. Nondiscrimination. Developer will not discriminate and shall ensure
that all contractors engaged by Developer in connection with the Project comply with all
applicable federal, state and local discrimination la%%s,rules and regulations.
PW 1/086 W/27/18 -.13- ICH.W(W11h 01)IiL,n to purchase)0
frca&HAURivctbcnd Joint VcntureThusc 1 Cloiiiii,Does
L. No Third Party Rights. The provisions of this Lease are intended solely
for die benefit of, and may only be enforced by,the parties hereto and their respective successors
and permitted assigns. None of the rights or obligations of the panties herein set forth(or implied)
is intended to confer any claim, cause of action,remedy, defense, legal justification, indemnity,
contribution claim, set-off,or other right, whatsoever upon or otherwise inure to the benefit of
any contractor, architect, consultant, subcontractor, worker, supplier, mechanic, architect,
insurer, surety, lender, investor, guest, tenant, member of the public, or other third parties
having dealings with any of the parties hereto or involved, in any manner. in the Property.
M. Non-Waiver of Govenimeiggi Rights. Nothing contained in this Lease
shall require City to take any discretionary action relating to development of the improvements
to be constructed on the Leased Premises as part of the Project, including, but not limited to,
zoning and land use decisions,permitting,design review or any other governmental approvals.
N. Further Assurance. Each party hereto agrees that it will execute or
furnish Such documents and further assurances to the other or to proper authorities as may be
necessary for the full implementation and consummation of this Lease and the transactions
contemplated hereby.
O. Authority, Each of the persons signing below represent and warrant
that they have the requisite authority to bind the party on whose behalf they are signing.
P. WAIVER OF JURY TRIAL. CITY AND DEVELOPER HERE-BY
WAIVE ANY RIGHT 'TO TRIAL BY JURY OF ANY CLAIM ARISING OUT OFTHIS
LEASE, WHETHER NOW OR HEREAFTER ARISING AND WHE FHER SOUNDING IN
CONTRACT, TORT OR O*F]-TrRWISE AND HEREBY CONSENT AND AGREE THAT
ANY SUCH CLAIM SHALL BE DECIDED BY TRIAL WITI IOUT A .11 JRY. ANY PARTY
HERETO MAY FI-Ll-,', AN ORIGINAL COUNTERPART OR COPY OF THIS SECTION
WITH ANY COURT AS WRITTEN EVII)[','NCI.-' OF ]'HE WAIVER AND AGREEMENT'
CONTAINED HEREIN.
Q. Conflicts of Interests. No member, official or employee Of City shall
make any decision relating to this Lease which aflecis his or her personal interests or the
interests of any corporation,partnership or association in which he or she is directly or indirectly
interested.
R, Non-Liability of City Officials Employees, and Agents. No member,
Official,employee or agent of City shall be personally liable to Developer., or any successor
in interest, in the event of any default or breach by City or for any amount which may become
due to Developer or such successor or on any obligation under the terins Of This lease.
2 94 11086 0127/18 lease.(with opliot)to purch&qv)V3
Joint Venitirvq'imsc I Clusitiv Docs
17;
S. Applicable Law. This Lease shall be construed and enforced in
accordance with the laws of the State of Washington, without regard to principles of conflicts
of laws, and venue of any action brought to enforce this Lease shall lie exclusively in King
County Superior Court. The parties hereto consent to the jurisdiction of the King County
Superior Court and waive the right to file suit elsewhere.
T. Counterparts. This Lease may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be all original instrument,
but all such counterparts together shalt constitute but one agreement.
U. Attorneys' Fecs. Except as otherwise expressly provided herein, each
party shall he responsible for payment of the legal fees of its counsel in the event of any
litigation or other proceeding brought to enforce or interpret or otherwise arising Out of this
Lease.
[Remainder of page intentionally left blank. Signature page follows.]
2841/086 03/27118 -35- lease(%Ab option to purchase)0
lrcatj\l IAI'Ri�crbenil Joint Ventuie'llhase I Closing Dao,
CITY
CITY OF KENT,a Washington
municipal corporation
Dana Ralph,Mayor C11
DEVELOPER
MARQUEE ON MEEKER LLC, a Washington
limited liability company
By: The Missing Links LLC, a
Washington I urrited liability company,
its Manager
Brett Jacobsen,Manager
STATE OF WASH]Nc;roN )
)ss.
COUNTY OF KING
-On this 1dav of Jl
2018, before me.. the undersigned, a Notary
Public in and for die State of Washington, duly commissioned and sworn personally appeared
Dana Ralph, known to me to be the Mayor of the CITY OF KENT.,the Washington municipal
corporation that executed the foregoing instrument, and acknowledged the said instrument to be
the free and voluntary act and deed of'said corporation,for the purposes therein mentioned,and on
oath stated that 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 sea] hereto affixed the day and year in the certificate
above written.
\SON V4
4,
F4- OTA.9 'p
0
rf
V,
C,JBL\ 11rhit Name
:;k C)
-7 11"'71 lj�S k the State of
,X -09- NOTARY PUBLIC' in and for
Washington,residing at
My commission expires
2.44 IM86 03 1127118 3- Icnsc(with option to putchae)ti3
1re:id11IAMi%cfbeiid.1(siut VcntutcTh&sc I Closaig Does
CITY
CITY OF KEN'r,a Washington
municipal corporation
Dana Ralph, Mayor
DEVELOPER
MARQUEE ON MEEKER LLC, a Washington
limited liability company
By: The%Missing Links LLC, a
ItVaWngton_limited liability company,
its Manag -
01
ob
Breit b en, Manager
STATF OF WA�.,SJ'INGTON
)ss.
COUNTY OF KING
On this day of 2018, before me, the undersigned. a Notary
Public in and for theState of Washington,duly commissioned and sworn personally appeared Dana
Ralph, known to me to be the Mayor of the CITY OF KENT, the Washington municipal
corporation that executed the foregoing instrument,and acknowledged the said instrument to be the
free and voluntary act and deed of said corporation,for the purpose.,;therein mentioned..and on oath
stated that 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 pen-on 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
28411096 1XV2 7?1 q 36 icxw(with oplion to purchase)VJ
1rcad\11A1.kRiv0wad Jona VentureTimsc I Closine Ducs
S FA FE OF WAS]IING FON
COUNTY OF Kl'NG
On this day of _�0.rC\-'1 2018, before me, the widersigned, a Notary
Public in and for the State of Washington,duly commissioned and sworn personally appeared Brett
Jacobsen, known to me to be the Manager ofThe Missing Links LLC,the Manager of MARQUEE
ON MEEKER 1A.C, the limited liability company 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 was authorized to execute
said instrument.
I certi 1v 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.
APE r
Z signature
:7 9AQ 13 C—Ck
Print Name
0
NOTARY PUBLIC in and forj c State of
1.29 T Washington,residing at
OF My commission expires
294 l,'09(,10 27/1 8 It asc(w1h 4iption to purchase)v
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EXHIBrr B
APPROVED PHASING PLAN
NEW
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W env or MY
opo) is SHM MAY
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toy .�Iq6 g�yG 5•P� cal• ,c,,��':'r"`a�"r ° 1
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PARCEL A'
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2841'086 ON27il8 1 - Icttsc twirh option to purchasc.)v-,
rrc-AVLAURir'ctbcnd Joint Venture lum 1(•I.sm^Do,
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EXHIBIT C
LEGAL DESCRIPTION OF LEASED PREMISES
LOTS 3,4 AND 5 OF CITY OF KENT SHORT PLAT NO. SP-2017-1,RECORDED UNDER
RECORDING NO.20180321900004,IN KING COUNTY,WASHINGTON.
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2841/086 03/27/18 -I- [case(with option to purchase)v3
trcad&WARivcrbcnd Joint VcnturcThasc I Closing Does
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EXHIBIT D
MAP OF PROPERTY
LTAArnlu 01,Pilb
CA
( Di nET) Tj
I inch -200 fL
,!,p46 AREA TO a
.e-to Phase 11 IM cm a)
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Opol OVA
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or on"x
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284 P086 03,,27/18 lease(,witliq3tion to porch-mc)0
kmad'..)IAI.'Rivcib,-ud Joint VcmtjrcWh,.sc 1 Closmu Doc;
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EXHIBIT E i
LEGAL DESCRIPTION OF PHASE 1 PROPERTY
LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED UNDER I i
RECORDING NO.20180321900004,IN KING COUNTY,WASHINGTON.
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2841/086 03/27/18 t- lease(with option to purchase)v3
ticaMALOverbend Joint Venturcftase 1 ClosinG Does
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EXHIBIT F
BARGAIN AND SALE DEED
WHEN RECORDED RETURN TO:
Thomas W.Read
Alston,Courtnage& Hassetti LLP
1420 Fifth Avenue,Suite 36511
Seattle,Washington 98101-4011
Document Title: BARGAIN AND SALE DEED
Grantor: CITY OF KENT
Grantee: MARQUEE ON MEEKER L.I.0
Legal Description:
Abbreviated Legal Description:
Full Legal Description: See Exhibit A attached.
Assessor's Tax Parcel Nos.:
Reference Nos. of Documents Released or Assigned: N/A
BARGAIN AND SALE DEED
GRANTOR, the Cl'['V OF KENT, a Washington municipal corporation, for and in
consideration of Ten ($10.00) Dollars and other good and valuable consideration in hand paid,
bargains,sells and conveys to MARQUEE ON MEEKER LLC,,1 Washington limited liability
company,the real estate, situated in King County.Washington.and legally described on attached
Exhibit A, subject to the matters described on attached Exhibit 13.
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 exclude,-,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.
284 P096 03i"-,7/18 . I - leak(%%ah upliurl to purchase)V3
trcad'J1A1AiVCTbcnd print Venture Phtic I cloonLt 1)(,,-%
DATED: col
GRANTOR:
CITY OF MNT,a Washuigton
municipal corporation
By:
Its:
STATE OF WASHING-1ON )
ss.
COUVI'Y OF KING )
On this day of , 201_, before me, the undersigned, a Votary
Public in and for the State of Washington, duly commissioned and sworn personally appeared
known to me to be the of
CITY OF KENT,the Washington municipal corporation that executed the foregoing instrument,
and acknowledged the said instrument to be the fee 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 instnument.
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 PI JRLIC in and for the State of
Washington,residing at
My commission expires
2841i086 031270418 -2- lease Iw)th option to Purchase vS
tread\1tA1.4Rieerbeod Dint Venlurr'.I'hase I Closing IN)o
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EXHIBIT G
LIST OF PERMITTED EXCEPTIONS
1. Real estate taxes levied hill not yet due and payable.
2. Potential charges,for the King County Sewage Treatment Capacity Charge.as authorized
under RCW 35.58 and King County Code 28.84.050. Said charges could apply for any
property that connected to the King County Sewer Service area on or after February 1,
1990. None due or owing at the 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& Eight Company
For: Electric lines
6. Easement, including terms and provisions contained therein:
Recording Information: 7904240940
For: Ingress,egress and utilities
Affects: As described therein
7. Easement, including terms and provisions contained therein:
Recording Information: 8411160550
In Favor of: Puget Sound Power& Light Company
For: Underground electric system
8. 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
2R•11 O86(13,17;15 -I - lease(with optmn to purchase)v!
trcad',, IM'Rivencmndknnr 1'cnlnrr.'f`hasc I ('losing 1)n"s
9. Easement, including terms and provisions contained therein:
Recording Inflon-nation: 9502020945
For: Ingress, egress, vehicle and equipment parking and
utilities
Affects: As described therein
Note a Release of First Right of Refusal was recorded under Recording No.
20110523000167.
10. 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
11. Terms, covenants, conditions and restrictions as contained in recorded Lot Line
Adjustment(Boundary Line Revision*) Ll.-94-29:
Recorded: February 16. 1995
Recording Information: 9502160277
12. 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 tinder Recording No.
20050813001810.
13, The terms and provisions contained in the document entitled"Declaration of Stormwater
Facility Maintenance Covenant"recorded March 9,2018 as 20180309000110 of Official
Records,
14. The terms and provisions contained in the document entitled "Development Agreement"
recorded March 14, 2018 as 201803 14000845 of'Official Records.
15. Restrictions, conditions, dedications, notes, easements and provisions, if any, as
contained and/or delineated on the face of the City of Kent Short Plat No. SP-2017-1
recorded March 21-2018 as 20180321900004. in King County. Washington.
16. Survey by dated job no. discloses the
following: to be completed upon receipt and review of survey.
28411080 03/27M lease(with opiinn to purchase) i
tread\)JA.Overhend Joint VenturcIlhase I ( losing Poo
l
EXHIBIT H
PRO FORMA TITLE POLICY
I Owner's Polity of Title Insurance — !
First American , ISSUED 9Y
First American Title Insurance Company
l Paua nart411ER
Owner's Policy 15011453-898220
Any notice of claim and any other notice or statement In wrlUng required to be given to tho Company under this policy must be
given to the Company at the address shown In Section 18 of the Conditions.
COVERED RISKS
SUEUECT TO THE EXCLUSIONS FRCM COVERAGE, THE EXCEPTIONS FROM CCNFRAGF CDNTAINFD IN SCHEDULE t1, AND THE CONDI I1ONS,
FIRST AMERICAN TITTLE INSURANCE COMPANY,a Nebraska ccrporatlon(the'Ctunpany`)insures,as of Date of Wicy and,to the extent
stated h Covered Risks 9 and 10,after Date of PaUq,against toss or damage,not exceeding the Arrnt nt of Insurance,susiafn--d or incurred try the
Insured by reason of:
1. Tolle being vested other than as stated in Schedule A.
1. Any defect In or Yen or encumbrance on the Tithe.This Covered&P.urtludcs b=ut is rx-4 flmkrd to insurance against loss from
(a) A defect In the Title caused by
() forgery,fraud,undue influence,duress,incompetency,incapacity,or impeisoratia7;
(a) failure of any person or Emily to have authorized a transfer or conveyance;
(sio a document affecling Title not properly neared,executed,walmnsed,scaled,acknowledged,notarized,or delivered;
(iv) failure to Perform those acts necessary to create a document by electroric means authorised by law;
(v) a document executed tinder a falsified,expired,or oihenviu:invalld Parser of arorney;
(vh) a document rat properly flied,recorded,or indexed in the Pudic Reradc including 4adurp In t e.dmm tlxse acts by e.m1rcnie
means autltoraad by law;cr
(vti)a defective judicial or adrrinistrative Pviceee.ing
(b) The lien of real estate taxes or acsr_tsmrnts imposed on the Tithe by a governmental authority due of Payable,but unpaid.
(r.) Any encroa hmmit,encumbrance,violation, variation, or adverse crcumstance affecting the'Title that wookl be disclosed by art
arcurate and complete lard survey of the Lard.Trip-term"encraachrrenr mcluaes encruarhments of existing improvrntents;oca•-c: j
on the Land onto adjoining lend,and encroachments onto the Land of existing Improvements located on adjoining land.
3. Unmarketable'rttle.
4. No vghr of access to and from the Land.
(Covered Risks Continued on Page 2)
In Witress Wherect,First American Title Insurance Company has caused Its criporate vane to he hereunto mixed by its auNlorinxl officers as of
Date of Polky shown in Schedule A.
First American Title Insurance Company
21cnN11S J ;a i11YXe
GvrgqKsoOont gyp
,iea�sy S Hebrr:xn
'�luanarr j
(TNs lbt cy it vaH aNy who,SU,edlxos A and 9—ulteene6! This Jacket was crated eloeteonketly and constitutes an origlml of a cant
C'4ar+akc aads•aooe an.a.,csn t..,a nsr.Asw..s.rraa.wx.yw.++.v..r,nit.uv d�.w-.:.,..,.�m N-�co.v.o,,.�u to m.,r.n.ers�r:�a M.�m.d,+.d,:,�.
N she usa as vaGr Ud.Fic;7k7d wrJcr clams f c-the s+,e4a.Ur d lode/=vatiim
resist 501145.(7-1-14) 'Page 1 cf 9 I AI TA Ovmer's Policy of,Title Irsuran_ce(6•17.06
` Washingt
2841l086 03 2;11 S I - lase imiji option to purchase)s3
IrcadtNAURivcrhend Joint VentureWhase I Closing Uocs
COVERED IRISKS(Continued)
3. are vVallon of enforcement of any 6w,ordinance,permit,cir governmental regulation(including thou relating to building and Inning)
resWing,reguWing,prohibiting,or relating to
(a) the occupancy,use,or enjoyment of the land;
(b) the character,dimensions,or location of any Imptcvement erected cn the Land;
W the subdivLsion of!and;or
(d) environmental protection
it a notice,describing any pare at!be land,is recorded in the Public Records Setting forth the vitiation or intention to enfoice,but uWy to
the extent of the violation or enforcement referred to in that notice.
6. An enforcement ackri based on the exercise of a governmental police power not covered by Covered Risk 5 if a W.Ica or the enforcement
action,dewrlNng any part of the Land,is recorded in tire Public Remelts,but only to the extent of the enforcement referred to is that
notice.
The exercise of the rights of eminent domain If a notice at the exercise,describing any part of the Land,is recorded in the Public Records.
8. Any taking by a governmental LwWy thift,has occurred ono is binding on the rights of a purchaser for vague withome Knowledge.
9. Title being vested ctb.-r than if.,;mated if,Schedule A or being defective
(a) as a result of the avoidance in who!e of in part,at from a court order providing an alternative remedy,of a transfer of all of any pail
of the btle W of any interest in the Lard occurring prior to the transaction vesting Title as shown In Schedule A because that prior
transfer constituted is fraudulent of preferential t1drisfer under federal bankruptcy,state Insolvency,or similar creditors'rights laws;or
(b) bemuse the instrument of trdmfr.r vesting rAfe as shown in Schedule A constitutes a preferential transfer under federal bankruptcy,
state insolvency,or similar crediLurs'iwyhts laws by reason tithe failure of its recerch"in the PLblic Records
(1) to he timely,or
(1) to impart notice of its existence to a purchaser for value of to d judgment an.ben creditor,
10. My defect in or lien or encumbrance an the I"itle or other initter litcluded in Coveted Risks I throtigh 9 that has been created o,at'achea
or has been filec of recorded!n the PLblic Records subsecuent to Date of Policy and prior to the recording of the deed or otiLt instiumew
or transfer in the Public Recoil that vests Title aS shorn in Schedule A.
I he Company 01;also pay the costs,attorneys'fees,and expenses incurred in defense of any matter insw,ed against by this Policy,tut only to
the extent piovided In the Canditium.
EXCLUSIONS FROM COVERAGE
Records at Date of Puky,bill Known to the Insured Cdimant
the follovoitV matters are expressly excluded from the coverage of
this policy, and the Company wi'l not pay Im or damage,costs, and not disclosed in writing to the Company by the Insured
atto-neys'fees,or expenSes that arise by reason of- Claimant prior to the date the Insured Claimant became an
I (a) Any law, ardirance, permit, or governmental regulation Insured under this pof.cy;
(including those renting to titiWing and zoning)re-svicthtg, (c) resulting in no loss at damage to the Insured Claimant;
iegulatirig,prohibiting,or relating to, (d) attaching or created Subsequent to Date of Policy(however,
(I) Lhe occupancy,use,or eirjoynient of the.I and; this does not modify or limit the coverage provided under
(6) thin. character, dim"ions, or locattin of Any Covered M 9 and 10);or
improvement erected an the Land; (e) resulting in loss or damaue that would net have been
(it) the subdivision of'.and;a- sustained if the Insurer:Claimant had paid value for the Title.
(iv) criviionrrienta protecting; 4, Any claim,by reason of the ciperaffan of federal bankruptcy,state
or the effect of any violation or these laws,orelinancm,to inscivency, or similar creditors'rights laws, that the vairisaction
goycrinmertall regulations. This Exclusion 1(a) does not vesting die Title as shown in Schedge A,is
rectify or limit thre.r.rvrtagc picrvOed under Covered Rlsk (a) a fraudulent conveyanrr.of Im le udunt transfer:or
5. (b) a preferential transfer for any reason not sited in Cover(A
(L) Any govemmental police power. This Excusion I(b)does
W modify or limit the coverage prowded under Covered Risk 9 of INS Fnl cy.
5 Any iien or,the Title for it-A whale IdZeb W 15,W51411entS imposed
R4 6. by gicivernmentai autLority and created or attaching b~cn Date
2. rtidrfts of eminent ilLiniam. This Exclusion does not modify fit of Policy and the date of recortIng of the deed or ether instrument
Breit die coverage provided under Covered Risk 7 at B. of transfer in he Ntlic Records that vests Title as shown in
3 Defects,iians,encumbrances,adverse claim,at other matters Schedule A.
(a) rreAmd,suffered, ds%rried,or agreed to by Wt Insured
Claimant;
(,,) nr.t known to the Crxnpar.y,rlre accorded in the pubic.
Form 5011453 �e 2-cf 9 ALI'A Owner's Pohl of I de Insurarlor.(6 17-C6
------ - I -- — I — — --- I iiiiiashl- *-
2841108603r-718 2 lewc t with option to putchasc 10
Irc-ddk11A[.'%Rtvcrhcnd Joint VentuTOPhasc I Closinizf)vci
CONDITIONS
1. DEFINITION OF TERMS notice of antlers teladna to rea:property to purchasers for
the followling terms when used us airs policy mean: value and wilhuut Knoiriedue.With revert to Coveted Risk
(a) "Amount of Insurance': The amount stated sit Schedule A, 5(d), "Public Records" dials also Include en yTrinmentai
as may be increased or decreased by endorsement to ths protection Hens filed in the records of the clerk,of the United
policy,increased by Section R(h),or decreased by Sections States Cirstria Court for the dmncir where the Land is located.
10 and 11 of these Conditrons. "Tide.";The estate at Interest described In Schedule A.
(b) -Date of Polley":The date designated as"Date of Policy'in (k) 'Unmarketable rille" Title a'Mided by an alleged or apparent
Schedule A. matter that vvauld permit a prospective puichisnier ur lessee of
(c) 'Entity": A corprordtkiri, partnership, trust, limited hatll)ty the THlic or tender an the Tide to be released from it*
company,or other simVer legal entity. obligation to purchase,lease,or land if doe is a contractual
(d) "insured":Thr Insured ramirc:in Schedule A condition requiring the delivery of marketable Gte.
(I) The terns'Insured"also wcludi-,s 2. CONTINUATION Of INSURANCE
(A) successors to the fibs of the Insured by The coverage of this puficy shall crrhnue in fare as or Dale of
operahon of law as distinquisred from purchase, Policy in favor of an Insured, but chrity so long as the Insivect
irsiduiffirg hefts, devisees, survivors, personal retains an estate or interesi in the Land,or lads an irthligaucir
representatives,or next of kin; secured by a ptsr&ase money Mortgage given by a purchases,from
(B) successors to an Insured by dl&&Yuucsn,merger, the Insured,or only so long as the Insured shalt have liability by
consolidation,d.stributtion,or iecurAnizistinn; reason of warranties In any Lrdrisfer at conveyance of the Tit:r_
(C) successors to an Insured by its conversion to This policy shall not conshinile in force in favor of any purchaser
another kind of Entity; from the Insured of either(i)an estate or Interest In the Land,or
(D) a grantee of an Insured under a deed delivered (b)an obligation secured by a purchase money Mortgage given to
mtk,out payment of actual va"e csrsns'deiallon 1:1,io Insured.
tcsnveying the Tide 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT
(1) if the stock,shares,membersiNips,or Alser The Insured shall notify the Company promplIty in writing (I)in
truinty, iniefeii,ts of site grantee are wholly- case of any litigation as set forth in Secition 5(13) of these
oymed by the named Isrssxcd, Conditions, (F) In case Krinviedigr shall come to an Insured
(2: f the grantee wholly owns the named riereunder of any cl sit tine at interest that rq adverse to the.
Intuited, r2k,as Insured,and that might cause"or det"idge for which
(3) it the grantee is who!-y-crivrted by an rl-e Company may be l6ble by virts.r at tris policy,or (41)If the
affiliated Entity of the ramea Insured, I Me,as Insured,Is rejected as Unmarketable Rile.it the Company
previded the affiliated Emily,and the.named is prejudiced by the failure of the Insured Claimant :a provide
insured are both whotto-owned try the sarric prom;A Notice, the Company's liability to the Insisted Claimant
person or Entity,or under the policy shall be reduced in the Went of the prejudice.
(4) it the grantee Is a trustee or berseliciaty of a 4. PROOF OF LOSS
trust created by a writters, instrument In the event the Company is unaW W determine the amount of
established by the Insured named in lass or damage, the Company may,at Its ciptoin, require as a
Schedule A for estate planning purpa%Ls. condition of paytrient that the Insured Claimant fi.1111hiSh d skp*d
(n) Widi regard to (A), (B), (C), and (D) reserving, pront of losi. The proof tit loss must dcwxft the defect, Hen,
however,all tights;and defenses as to any SJWM" encumbrance,rr other matter in"ed against by this onficy that
Oidt. the Ccmpany would have had dgalust any constitutes On Irdsis of loss or damage and stall state, to the
predecessor Insured, extent possible,the basis of citiculating the amount of the loss or
(e) "Insures:Claimant":An Insured Claiming bri;oi rmmage. damage-
(f) "KnriwlcdlgK' n, "Knrim": Actual knnityltridgr, not S. DEFENSE AND PROSECUTION OF ACTIONS
canstruttvie knowledge or notice that may I*itropuned to (a) Upon written request by the Insured, and subject to the.
an Insured by redstia of the Public Recvd--ur dity other opUriiiii. contained In Section 7 of these Conditiors, Elm
records ttsat Impart constructive notice of matters affecting Company,at its own cost and without unreasonable May,
the Tiln. shalt firrivide for the defense of an Insured In litigation in
(U) "Land": The [arid descr.bird in S&iedule P, and affixed which any third party asserts a claim covered by this policy
improvements that by 6w constitute real propwtV lhe adverse to the Insured,Phis obligation is limited to only those
term"I and'does not include day property beyond the NnCS stated causes of action alleging matters insured aga-irst by
of the area descritised in Sched-.ile A, not any right, title, this policy The Company stub have the right to select
Interest, estate, or easement In abutting streets, roads, counsel of its diatce(subject to the right of the Insured in
avenues,al",14"s,voey.%u iralcrwoy5, but Uils doe, ubited for reasonable cause)to felirestist(tit his-41ird as to
W modify or limit the extent that a right of access to and those stated causes of actirm.It shall not be liable for and Wit
from Me LAM is insured N this policy. rot pay the fees of any other counsel.The Company Mil not
(h) 'Manage':Mortgage,deed of trust,trust deed,or attics- pay any tem,costs,or expersies Incurred by the Insured in
security instrurrvrit,including sine nVAcriced by elprlrmic the defense of those catises of aeort that allege matters net
means autharited by law. msuieL against by this policy.
(1) 'r1sublir.Kecrsrds*: Records estabieslied under state statutes
at Date of Policy for the purpose of tmpa.siir,g constrtif.uve
AA.TA Owner's Policy of Tide IraLranoc(6,-L7,001
Washjngtor
le.Lse livith option;o purcha%e)0
184 1 M96 0.111211111
tread\I-WARiverbend Joint Vcnluit:`,j1jiipit: I Citisisil;[)ocv
CON DMONS(Continued)
(I,) Tow. Crvvvi;any shall have Ue right, In adiftor, to the 7. OPTIONS To PAY OR OTHERWISE SETTLE CLAIMS;
options centitined in Sectiun 7 of these Conditions, at its TERMINATION OF LIABILITY
own vog, to Institute and prosecute any action or in case o!a claim under this pabry,the company shall have the
Proceeding or to do any other act that in its opinion may tit follovang additional options:
necessary or desirable to cwal:Wri the Title,as Insured,or (a) To Pay or Tender Payment of the Amount of Insurance.
to prevent a-reduce less or damage to the Irsured.The To pay or tender payineir of the Amount of Insurance under
Company may take any appropriate action under the lertre, this policy, trigethet with any costs, 4ttocneys' F"5, acid
of this;policy, vAieIrW or not R shall be llalxt tic, the expenses incuried by die Insured Catmant that were
Insured. Tle exert!-e a( ifie-u- rights Oiall no: be an
vtsior of this tereinr ri payment and that the Company is ollFgattrif to pay.
admis*r a'Nabilirly, or warm, of any tire author-red by the Company up to the ems of rayment or
satiny, If the Company exercises its rights under this
subsection,it must Co so diligently. Upon the exercise.by the Company of this otitior,all liability
(c) Whenever the Company lyirGq an action or asserts d and nWilgatiums at the Company to the insured uncles ors
defense. As required or permitted by this policy, the litilicy, other than to make the payment required in this
Crimparry may pursue the IligaLlon to a final determination subsedlan,shag tom nirate,Including any liabillifty or obilgation
by a couil of conarvelpril Pin-Airtion, and It expressly to defend,prmerute,or continue any litigation.
reserves 0tv right, in its We discretion, to Vpeal any (b) To Pay at Offiverwiser S01r. With Parties Cithef Thari die
adverse judgment or o(dei. Inoutcd or With the Insured Clalmdril.
6, DUTY OF INSURED CLAIMANT TO COOPERATE (I) To pay or otherwise selte with other parliLr,for or in the
nary of an!inured Claimant any claim insured against
a) In all cases viticre this policy petmits or irtuiruites Itw
Cripparly to prosecute or foray'die for the defense of any under theo policy.It,acklilvii,the Company will pay any
action or proceeding and any appeals, the Insured shall costs, attLineys' fees, and expenses ricurved by the
secure to the Company the right to so prosecute or prictirlde Insured Uairriant that were authorized by the Company
deliense in 6e accion or proceeding,Incluji1mg the right to up to the tivile(f payment all that lie Company is
use,at its option,the name of the Insured fen this purpose. Libikj?Itv,:l1 to pay;0-
Whenever requested by the Company,ft insured,at the (11) To pay or othermte settle with the Iristrad CIdinkant the
Company's cKpow.,shall Om the Company all reasonable loss or damage proviied for undfr this DrAicy,together
aid (1) in staining evidence, obtaining witnesses, with any costs,attorneys'Ices,and mipereses Incurred
Prosecuting or deferid" the action at proceediN, or by the Insured Claimant that were jUlityved by the
,e1&rtjtrxj settlement,and(IP,in any other LwXtjl act that it, Lunipury up to the titne of payment and that the
the opirtion of the Compairry row be iteciessary odesirabk-
ta establish die*nt$--oo any other matter as Insured.If Me Company is obfigatml to pary.
Company ts prejudiced by the taiiure of the Insured to up-an the exercise by the Company of euticir of ft options
famish the required cooperation,the Company's obligations provided for in subsections (bX&) ct (C) the Company's
to the Insured under the policy shall terrylivate, including obligations to the Insured under this pole;for the claimed
any liability at Rillgation to defend,prosecute,or continue less Of damage, other than the payments requited to be
any litigation, with legart: to the matter cc matters made,shall terminate,mcholfrig any itabitty or obligation to
requiring such cooperation. cefend,prosecute,or continue any litigation.
(b) The Company may reasonably require the Inswed Claimant S. DETERMINATION AND EXTENT OF LIABILITY
to submit to examination under oath by any authortred This policy is a coltbrirt of loderrivilty against actual monetary loss
repro-wntative of the Company and to produce for or damage sustaired at incurred by the Insured Claimant who has
examination,Inspection,arid copying, at such reasonable suffered loss or obviate by reason of MilL-CIS Insured acaling by
turite,and pIdLr%as inlay be designated by the authorimil this Po!;Ly
representative of the ConVaivy, all records, In whatever (a) The extent of hability o' the Company for less or damage
medium maintained, urch ding books, ledges, checks, under this policy shall rin:exceed the loser of
memoranda,comesporidence,reports,e-mails,&W,Miles, () We Amount of Insurance;at
and videos whether beart.N a date before or after Date of (H) the difference lieMetrn Ine value.0 the Tlile as insured
Policy, that reasonably pertain to the loss or damoVe, and the value at the Title 5utifeL, to die risk imured
Further, if rffluested by any authored represtsitative of agallist by this sulky.
thr- Comrany, the Insured Clairriant shai giant Its, �b) If the Compilarv,puisum iv cgiil�uncer Section 5 of these
pc-mission,in wilbrig,for any authorized representative of
the Cempainy to"amire, inspect, and copy di of thv-w Conditions and is unsuccessful In esta-lisniN the Tice, as
records in tt-e cushordy or coMd of a third party that pristird,
reasonably pettain to I I tie kiss ur carnage.AJI Information (f) 11w.Aninwit of Insurance shall be.",creased by 10%,and
designated a, "infl&ntini air the Insured Claimant (I.) fhr 11-1-d CallTh.11t shall '..0 tr"i OUbt to have the
Iravulecl to the Company pursuant to this qtrfxvn 4WI not lc&s or damage dewmilied ether as of tie date the
be disclosed to others un!v,.s5,in t1v reasonable judquent dium was mack.by[he In5i.tird Claimant or as at the
of the Contfiduy,'it is necessary In the ad-ninistration rif Ibe date it is settled and paid
dalm. Failure of the IreorreJ Cainorit to -,ubmTlr it,( (C) In addition,to the extent of hati,l.ty undo (a) and(b), the
examination under oadi,produce any reastineHy requester) Company will &o pay those costs, attorneve fees, and
information, at grant permission, to secure reeort4hty, expenses mcuried in omxi.clancr men Sections 5 and 7 of
rvecies,,avy IrIturration from third parties as;frecuired In this tt!.xA Ciin":tinns.
st.ftecticin, unless lo-chilAti) by law or governmental
regulation, sh3l terminate am, ibbd,ty of the Cornpanv
undex this po1;N as to that ciaim.
Furni'501-1433(7-1-11L4) r 4 of q ALTA r.)me;'.s Pclic.y of litle Insurance(6-17-06 age livashkigton� ,
2841/06 032,1118 4 IU;IIC I With UptiLln 10 purchase)v.l.
tread'illAIARivetberld.10LI'll VVIIWA:'Vhase I Closing Dvcs
CONDITIONS(Continued)
9. LIMITATION OF UABIUTY Association("Riles').Except as provided in the Rules,there shall
(a) If the Company establishes the Title, of removes the be no)mdei or consdFJahon with claims a* conroversies of
alleged defer_,hen,or encumbrance,or cures the lack of airier persons.Arhttrable matters may indude,but are not tmited
a right of access to or from the land,or aria the claim 10, any controversy of claim between the Company drd the
of Unmarketable Tale, all as insisted, in a reosonably, Insuitd arising out cf or relating to this policy,any seev;ce Its
01ji ent manner by any method, inrAring litiganm and connection with its Issuance or the breach of a policy provision,
Itte completion cf any appeab, R stall huvr Fully at to any olfne cxramversy or dafm ansiriq out of the trdrsaekh
performed its obi atiorr with respect to that matter and givrig rise to this pofry All arbitrable matters when M:r Amami
shall not be Gable for any lass or darnage Caused to the of Insurance is 62,1N0,000 ur less shall be arbitrated at the
insured. uptitn of either the Company is the Insred. All adhihable
(b) in the emrst cf duty str.,abon,inck,oing Iiticialion by the matters when the Amount of Insurance a in excess of
Company or with the Canpartys co ment,the Company T2,00,0f10 shall be arbitrated only when agreed to by both the
shag have no Qabillty for toss rx damage until there has Company and the Insured.Arbitration pursuant to this parry and
been a final determination by a court of eunpetent under the Rules shall be bincing upon fftc parties.)udgmcrt
jirisiiithnn,aful dtspesition of all appears,at)vei%e Ir:the upon the award rendered by thR Arbitrator(s)may be erntesed in
Title,as insured ony cos rt of competent junst fiction.
Ic) the Company shall not be liable for loss or damage to the 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE
Insured far liability voluntarily assumed by the Insured in CONTRACT
setting any da!m or sull without the prior written consent (a) This po'icy together with an endorsements,if dny,altdthted
of the Corn pany. to It by the Company Is the entire rohcy and contract
10. REDUCTION OF INSURANCE; REDUCTION OR between the Insured and the Company. In Interpreting any
TERMINATION OF LIABILITY provision of taus policy,this policy shill be rmstr ed as a
411 payments under this policy, except payments made fcr 4ate.
rests,attorneys'fees,and expenses,shad reduce the Amc+:nt (b) Any claim of loss or ddrnage that arise cut:if the status of
of Insurance by the arraunt of the payrrert the idle or by any action assertng such dafm stall be
11. LIABILITY NONCUMULATIVE restricted to this policy.
The Amount of Insurance steal be seduced ty any amount the {c) Any amencroent of or eridosemerd to this pit ey mua he in
Company pays under any policy insuring a Mortgisge to which writing and ald henricated by an a Atswcax person, cis
exrepton is ta►en in Schedule 0 or to which the insured has cKpirmsty incorporated by Schedule A of Mvs g"I y
agreed,assumed,or taken subtecr•or which is emoted by an (d) Fath endorsement to this policy Issued at arty time is made
Insured after Date of policy and which is a charge or lien on a part of this Penh and Is sub}ect to all of rs terms arth
the Title,and the amount so paid shall W deemed a payment provisions. Except as the endorsement expressly states, it
to the Insured under this policy. does not(i)modify any of the tertm and provisions of the
12, PAYMENT OF LOSS policy,(b)modify any prior endorsement, (Ili)extend the
When liability and the extent of loss or damage have. beer. Date of ivhky,ar(tv)imurase the Amount ct Insurance.
defntey AKed in accordance with louse Conditions, the 16. SEVERABILITY
payment shall be made within 30 days. In the event any pnnisirm of this pn!icy,in whho'e as in part,is
13. RIGHTS OF RECOVERY UPON PAYMENT OR held nvdlid or unenforceable under apldrablr raw, the policy
SETTLEMENT shall be deemed not to include that provision or st.ch par,held to
(a) Whenever the Company shall have aettleo and paid a be Invalid,but an alter provisons shall rcrnain in ft.11.rrnre aril
claim under this pa5cy,it shall be subrogated and entitled effect.
to the rights of the Irexucc Claimant in We Trite and al 17, CHOICE OF LAW;FORUM
other rights and remedies in respect to the claim that the a Choice of Law:The Irsure c acisnnwhd the Cam
{ } ges pang has
htsuied Claimant has against any person or property,to underwritten the r'sks rove.red by this fide, and
the extent of the a milit of any less,costs,attorneys' deter rind the pnardun dwIsel therefor in reliance upon
fees,and expenses paid by the Company.If requested by the law affecting interemts in real property and applicable to
the Company, the insured Clalmonh shall excwte the mrerprefation, nghts, remedies, w erfurtelnr-iit if
drxurivrim to evrdeice the transfer to the Company of policies of title insurance of the jurisdiction where the Land
trimr rights and remedies. The Insured Claimant shall 4'arated.
permit the Conr,Any to sue,cornpranae,or settle in the Therefore,the court or an arbitrator shall aLwly the law of
name at the Insured Claimant and to use the name of the the jurisdiction where the land is locatec to cetermine the
Insired Claimant in any transaction or htiganon involving validity of clams against the Title that ate adverse to the
U�ese rights and remedies. Invited and to interpret and enforce the terms it bus
If a payrnera on dcccunt of a cLokn item nut hly cove policy.In neither case shall the court w arbitrato,zapply,u
rho.loss of the Inured Claumanl,the Carnpdny shall defer conflicts cf aw principles to de!evmire tie applicable law.
he exvcise of its right to recom until dnri the:hewed (b) C-hhia.or Forum:Any Iragatron or other prixmling brrxxyil
Ca mant shall have tmovered its loss. try tut Invited against the Company must be fi+rl nrly In n
(h) T'ne Company's riqht of subrogation*Judas tic rights of state as federal(court within the United States of Arrrrira or
tlx:Insured to ridemrtilies,g;rdrantles, other politics of its terrtorles having appropriate jurisdiction.
insurance, a• burids, notwithstanding any terms or 18. NOTICES,WHERE SENT
conditions contained m thaw instruments that address Any notice of claim and any other slice a tdatenetnT In mnina
%Vogatten lights. required to be given to the Company undo this Policy nwst be
14. ARBITRATION given to the Company at First American Title Insurance
Either the tbmparry cr the lrsurerd may demand that the claim Company, Altnt Claims National inmke Center, 1 First
rr controversy shall he s.kunitted.to artutraben pursuant to the American Way;Santa Ana, CA 92707. Phase:868-632-
T,tle Ins«ranee Artihaticn Rules cf the American Land Title 1642.
Fenn SGI1a53(7-1-19) age 5 0;9 At 7A Cwner's Policy c Titre 1nsurarur(b(
_ �--- Washkhgtau
ZNJ 1;US6 031271I R (ease l with oplum to pilrunasel y+
tread',IiAI.Rncrbent !oral Vcnturr',Phase I C lei-;ittylhiz•:
�
Owner's Policy of Title Insurance
First American
ISSUED BY
First American Title Insurance Company
Schedule A Pro forma no. 1
POLICY NUMBER -
W _ 898220
Name and Address of Title Insurance Company:
First American Title Insurance Company,1 First American Way,Santa Ana,CA 92707.
File No.: NCS-898220-WAI
Address Reference:Vacant Land,Kent,WA Amount of Insurance:$TBD
Premium:$TBD Date of Policy:Date and time of recording
1. Name of Insured:
TBD
2. The estate or interest in the Land that is insured by this policy is:
Fee Simple
3. Tide is vested in:
TBD
4. The Land referred to in this policy is described as follows:
LOTS 3,4 AND 5 OF CITY OF KENT SHORT PLAT NO.SP-2017-1,RECORDED UNDER
RECORDING NO.20180321900004,IN KING COUNTY,WASHINGTON,
APN:232204-9011-01
Fwm SG]1953 7-t 1T age 6 of 9 ALtA Owner's Policy of TiUe.ruuraace(6.17-06
28-11,086 0372711E 6 lease(with option to purchase)0
ncadlilAl�Rivcrhrnd Joint VcnwruAlhaas I Closing Docs
Owner's Policy of Title Insurance T
I First American -
r.. - ISSUED R"
First American Title Insurance Company
Schedule 6 PO11CYMHOER
898220
EXCEPTIONS FROM COVERAGE
File No.;NCS-898220-WAI
This policy does not insure against loss or damage,and the Company will not pay costs,attorneys'fees,
or expenses that arise by reason of:
1. This Rem has been intentionally deleted.
2. General Taxes for the year 2018.
Tax Account No.: 232204-9011-01
Amount Billed: $ 284,296.70
Amount Paid: 5 0,00
Amount Due: $ 284,296.70
Assessed Land Value: $ 22,125,600.00
Assessed Improvement Value: $ 760,500.00
Affects: The land and other property.
3. Potential charges,for the King County Sewage Treatment Capacity Charge,as authorized under
RCW 35.58 and King County Code 28.84.050.Said charges could apply for any property that
connected to the King County Sewer Service area on or after February 1,1990.None due or
owing at the Date of Poliv,.
4. This Rem has been intentionally deleted.
S. 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
6. 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
7. Easement,including terms and provisions contained therein:
Recording Information- January 22,1964 as 5690275
In Favor of: Puget Sound Power&Light Company
For: Electric lines
8. Easement,including terms and provisions contained therein:
Forth 5071453(7-1-34) —Kaye]Kaye c"SS —AMA 0wrwT's Pcl'cy of Title Insu:arce(6.17-06i
Washlrgto
28,119)96 03/17/13 lea;c(svrth aplinn to purcbax j v3
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Recording Information: 7904240940
For: Ingress,egress and utilities
Affects: As described therein
9. Easement,including terms and provisions contained therein:
Recording Information; B411160550
In Favor of: Puget Sound Power&Light Company
For: Underground electric system
10. 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
11. Easement, including terms and provisions contained therein;
Recording Information; 9502020945
For: Ingress,egress,vehicle and equipment parking and utilities
Affects: As described therein
Note a Release of First Right of Refusal was recorded under Recording No.20210523000167.
12. 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
13. Terms,covenants,conditions and restrictions as contained in recorded Lot Line Adjustment
(Boundary Line Revision)LL-94-29 :
Recorded: February 16, 1995
Recording Information: 9502160277
14. This item has been intentionally deleted.
is. This item has been intentionally deleted.
16. 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.20080622000S69 of Official Records.
Said instrument amends and restates that agreement recorded under Recording No.
20050813001810.
17. The terms and provisions contained in the document entitled"Declaration of Stormwater Facility
Maintenance Covenant"recorded March 9, 2018 as 20180309000110 of Official Records.
18. The terms and provisions contained in the document entitled"Development Agreement"
recorded March 14,2018 as 20180311000845 of Official Records.
19. Restrictions,conditions,dedications, notes, easements and provisions,if any,as contained
and/or delineated on the face of the City of Kent Short Plat No.SP-2017-1 recorded March 21,
2018 as 20180321900004,in King County,Washington,
Form 5011453(7-1-14
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Instrument Number: 20180402000936 Document:MEMO Rec: S79.00 Page-1 of
Record Date:4/2/2018 2:25 PM
Electronically Recorded King County,WA
WHEN RECORDED RETURN TO:
Foster Pepper PLLC
1111 Third Avenue, Suite 3000
Seattle, WA 98101 ORIGINAL
Attention: Beth A. Clark Electrouicapy Recorded
I ST Aft
Document Title: Memorandum of Lease(with option to purchase)
Grantor: City of Kent �&5— WNW-PJ6q
Grantee: Marquee on Meeker LLC
Legal Description:
Abbreviated Legal Descriptlon: Lots 3, 4 and 5, Kent SP
No. SP-2017-1, Rec. 20180321900004
Full Legal Description: See Exhibit A attached
Assessor's Tax Parcel Nos.: Ptn of 232204-9011-01
Reference Nos. of Documents Released or Assigned: Not applicable
MEMORANDUM OF LEASE (with option to purchase)
THIS MEMORANDUM OF LEASE (with option to purchase) (the
"Memorandum") is executed this day of 1':/ , 2018, by and between
Marquee on Meeker LLC, a Washington limited liability company ("Optionee"), and
the City of Kent, a Washington municipal corporation ("Optionor").
1. Lease/Option. Optionor has leased certain real property located in the
City of Kent, Washington, and more particularly described in Exhibit A attached
hereto (the "Property") to Ophonee pursuant to that certain Lease (with option to
purchase) of even date herewith (the "Lease/Option Agreement"). Optionor has
also granted Optionee an option to purchase the Property for a price and on the
terms and conditions set forth in the Lease/Option Agreement.
2. Purpose of Memorandum. This Memorandum is prepared for purposes
of giving notice of the Lease/Option Agreement and does not set forth all of the terms
and conditions set forth in the Lease/Option Agreement. If there is any conflict
between the terms and conditions of the Lease/Option Agreement and this
Memorandum, the Lease/Option Agreement shall control.
3. Termination, This Memorandum shall automatically terminate and be
released as a lien on title to the Property without further action of the parties upon the
earlier of (i) the Closing of the sale of the Property pursuant to the Lease/Option
Agreement, or (ii) termination of the Lease/Option Agreement in accordance with its
terms. Without limiting the automatic termination set forth above, Optionee agrees,
upon the request of Optionor after the earliest to occur of the foregoing events, to
execute such documentation as may be reasonably requested by Optionor in order to
fully release this Memorandum from title to the Property.
This Memorandum is made as of the date first written above.
OPTIONOR:
CITY OF KENT, a
Washington municipal corporation
Dana Ralph, Mayor
OPTIONEE:
MARQUEE ON MEEKER LLC, a Washington
limited liability company
By: The Missing Links LLC, its Manager
Brett Jacobsen, Manager
2
3. Termination. This Memorandum shall automatically terminate and be
released as a lien on title to the Property without further action of the parties upon the
earlier of (i) the Closing of the sale of the Property pursuant to the Lease/Option
Agreement, or (ii) termination of the Lease/Option Agreement in accordance with its
terms. Without limiting the automatic termination set forth above, Optionee agrees,
upon the request of Optionor after the earliest to occur of the foregoing events, to
execute such documentation as may be reasonably requested by Optionor in order to
fully release this Memorandum from title to the Property.
This Memorandum is made as of the date first written above.
OPTIONOR:
CITY OF KENT, a
Washington municipal corporation
Dana Ralph, Mayor
OPTIONEE:
MARQUEE ON MEEKER LLC, a Washington
limited liability company
By: The si g Li s LLC, its Manager
C.
Brett Jac
bsen, Manager
-z-
52977517 1
STATE OF WASHINGTON)
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Dana Ralph is the person who
appeared before me, and said individual acknowledged that she signed this instrument
as Mayor and acknowledged it to be her free and voluntary act of the City of Kent for
the uses and purposes mentioned in the instrument
Given under my hand and official seal this 001 day of and') , 2018,
V\S0IV M�r���i
_ = 1+
G° .0r,4R '�%Z: [Print N ] SoN Mk(Zn
`• 1 -ANOTAR PUBLIC in and for the state
GDOC' of Washington, residing in
�, a,�•os_Zt,� per_ My appointment expires I I �1 2/�i/1Io��ASH\NG``
STATE OF WASHINGTON)
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Brett Jacobsen is the person who
appeared before me, and said individual acknowledged that he signed this instrument
as the Manager of The Missing Links LLC, the Manager of Marquee on Meeker LLC
and acknowledged it to be his free and voluntary act for the uses and purposes
mentioned in the instrument.
Given under my hand and official seal this day of . 2018.
[Print Name]
NOTARY PUBLIC in and for the state
of residing in
My appointment expires
3
STATE OF WASHINGTON)
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Dana Ralph, is the person who
appeared before me, and said individual acknowledged that she signed this instrument
as Mayor and acknowledged it to be her free and voluntary act of the City of Kent for
the uses and purposes mentioned in the instrument.
Given under my hand and official seal this day of 2018.
[Print Name]
NOTARY PUBLIC in and for the state
of Washington, residing in
My appointment expires
STATE OF WASHINGTON)
COUNTY OF KING }
I certify that I know or have satisfactory evidence that Brett Jacobsen is the person who
appeared before me, and said individual acknowledged that he signed this instrument
as the Manager of Marquee on Meeker LLC and acknowledged it to be his free and
voluntary act for the uses and purposes mentioned in the instrument.
Given under my hand and official seal this 30 day of �ka 6ll 2018.
�-�JG4` `APET�f ill
-% ii 0;'ew [Print Name]
NOTARY PUBLIC in and for the state
ofresiding in S�'��= My appointment expires 11a4 1'zj.--A
�OF W�
52977517 1 -3-
Exhibit A
Legal Description of Lease/Option Property
LOTS 3, 4 AND 5 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED
UNDER RECORDING NO. 20180321900004, IN KING COUNTY, WASHINGTON.
Exhibit A
52977517 1
GENERAL ASSIGNMENT (J�
THIS GENERAL ASSIGNMENT this "Assignment") is entered into as of th day of
April,2418,by and between CITY OF KENT, a Washington municipal corporation("Assignor"),
and MARQUEE ON MEEKER LLC, a Washington limited liability company ("Assignee"), who
agree as follows:
1. Pro 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 dated as of May 5,
2017,as amended,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.
5. 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 Law. 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 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.
2841/086 03/27/18 I - general assignment v3
veaMAURiverbend Joint VenturcTha se 1 Closing Docs
8. Count
erparts. 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
is
[Signatures appear on following page.]
2841/086 0327/18 -2- general assignment v3
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IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment as of the day and year first above written.
ASSIGNOR: CITY OF KENT, a Washington
municipal corporation
1
Dana Ralph,Mayor
ASSIGNEE: MARQUEE ON MEEKER LLC,a
Washington limited liability company
By: The Missing Links I.I_C, its manager
Brett Jacobsen, Manager
2941/086 03/27/18 3• general assignment v3
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IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment as of the day and year first above written.
ASSIGNOR: CITY OF KENT,a Washington
municipal corporation
Dana Ralph,Mayor
ASSIGNEE: MARQUEE ON MEEKER LLC,a
WashingtTvlimited liability company
By: The Miffing Li s LLC, its manager
((1" -0'--
Brett Jaco sen, Manager
2841/086 03/27/18 -3- general assignment v3
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EXHIBIT Art
LEGAL DESCRIPTION
LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1,RECORDED UNDER
RECORDING NO.20180321900004,IN KING COUNTY,WASHINGTON.
7.
2941/086 03f27118 -4- general assignment A
treaMHAUPLiverbend Joint VentureThase 1 Closing Docs
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property
interest must withhold tax if the transferor is a foreign person. To inform the transferee that
withholding of tax is not required upon the disposition of a U.S. real property interest by the
undersigned Seller,the undersigned hereby certifies the following:
1. Seller is not a foreign person, foreign corporation, foreign partnership, foreign trust,
or foreign estate (as those items are defined in the Internal Revenue Code and
Income Tax Regulations);
2. Seller's Identification Number is:
3. Seller's address is:
City of Kent
220 Fourth Avenue South
Kent, Washington 98032
The undersigned understands that this certification may be disclosed to the Internal Revenue
Service by transferee and that any false statement contained herein could be punished by fine,
imprisonment,or both.
Under penalties of perjury, the undersigned declares that he has examined this certification
and to the best of his knowledge and belief it is true,correct and complete.
DATED as of Aprd 2,2018.
SELLER: THE CITY OF KENT,
a Washington municipal corporation
By:
Its: Dana Ralph, Mayor
Slzasrn.l
OPTION TO REPURCHASE AGREEMENT
THIS 0,PTION TO REPURCHASE AGREEMENT(this"Agreement") is made effective
as of April 4�2018 (the"Effective Date"), by and between MARQUEE ON MEEKER LLC, a
Washington limited liability company, and its successor and assigns (collectively, "Buyer"), and
CITY OF KENT,a Washington municipal corporation,and its successor and assigns(collectively,
"Seller").
RECITALS
A. Seller and Buyer entered into a Real Estate Purchase and Sale Agreement with
Lease/Option to Purchase dated as of May 5, 2017, as amended by Amendment to Real Estate
Purchase and Sale Agreement with Lease/Option to Purchase dated as of September 20, 2017 (as
amended, "Purchase and Sale Agreement"), for the sale by Seller, and the purchase by Buyer,
of certain real property located in King County, Washington, legally described on Exhibit A-I
attached hereto (the "Phase I Property") and for the lease with option to purchase by Seller, as
landlord, and the lease with option to purchase by Buyer, as tenant, of certain adjoining real
property located in King County, Washington, legally described on Exhibit A-2 attached hereto
(the"Phase 2 Property"), The Phase I Property and the Phase 2 Property are collectively referred
to herein as the "Properties.-
B. Concurrently with the execution of this Agreement, Seller is conveying the Phase
I Property to Buyer pursuant to the terms of the Purchase and Sale Agreement.
C. Concurrently with the execution of this Agreement, Seller is leasing the Phase 2
Property to Buyer pursuant to the terms of that certain Lease (with Option to Purchase) of even
date herewith by and between Seller and Buyer(the"Phase 2 Lease Agreement").
D. As a condition to the sale of the Phase I Property and lease of the Phase 2 Property
by Seller to Buyer. Seller required Buyer to enter into this Agreement.
E. All capitalized terms are defined in the Purchase and Sale Agreement and Phase 2
Lease Agreement unless specifically defined herein.
AGREEMENT
NOW, THEREFORE, in consideration of the sale and lease of the Properties by Seller to
Buyer and the mutual covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer
hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 "Commence Construction" or "Commencement of Construction"
means, at a minimum, commencement of substantial work on the Phase I Property and the Phase
2 Property pursuant to the Infrastructure Permits with notice to Buyer's general contractor to
29411086 03/27/18 apt to repurchase agr Q
tread\HAURiverbend Joint VenturcWhase 1 Closing wes
proceed with such work under the construction contract(s) for such work and the 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 the Phase 2 Property may
commence, in Buyer's discretion, not later than 12 months after the Effective Date.
Commencement of Construction shall not include preliminary inspections,borings,test,or surveys
needed to evaluate the feasibility or method of installing any improvement or work, activities to
secure the Properties,construction staging,initial grading, or site preparations.
1.2 "Development Agreement"means that certain Marquee on Meeker Project
Development Agreement, by and between Seller and Buyer related to the Project,as approved by
the City of Kent Council on August 15, 2017, and effective as of August 23, 2017.
1.3 "Force Majeure" means an act of God or the elements, extreme or severe
weather conditions, explosion, fire, cpidemic, landslide, mudslide, sabotage, terrorism, lightning,
earthquake, flood or similar cataclysmic event, an act of public enemy, war, blockade, civil
insurrection,riot,civil disturbance or strike or other labor difficulty suffered by a party beyond the
reasonable control of such party. Financial cost alone or as the principal factor shall not constitute
grounds for a claim of Force Majeure. The affected party shall use commercially reasonable efforts
to avoid or remove such causes of nonperformance, to mitigate the duration of any delay in
performance, and shall continue performance hereunder to the extent permissible by the event of
Force Majeure or whenever such causes are removed. A Force Majeure shall not excuse any
obligation to pay any amounts when due and owing. A party claiming a delay due to an event of
Force Majeure shall give written notice to the other party of the circumstances supporting such
claim within five (5) business days after the impact of the event of Force Majeure is reasonably
known.
1.4 "Infrastructure Permits" means all grade, fill and mainline civil
construction permits for the Phase 1 Property and the 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 "Meet Me on Meeker" improvements for the
Phase 1 Property and the Phase 2 Property,and including,without limitation,permits for the Phase
I Property geo-piers and the Phase I podium building foundation permit.
1.5 "Person" means any individual, sole proprietorship, limited partnership,
joint venture,unincorporated organization, institution, partnership, corporation, association,trust,
limited liability company,or other legal entity.
1.6 "Project" means the Phase 1 Property, Phase 2 Property and Project
Improvements.
1.7 "Project Improvements" means all improvements and on-site and off-site
utility and other infrastructure improvements contemplated and permitted under the Development
Agreement for the full development of the Properties.
1.8 "Repurchase Price" means:
2841/086 03r27/18 -2- opt to repurchase ag7 0
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1.8.1 In the event Seller exercises the Right of Repurchase under Section
2(i),an amount equal to the purchase price paid by Buyer to Seller for the Phase 1 Property,
minus Seller's cost to cure or remove any liens, encumbrances or other matters that exist
on title to the Phase l Property or Phase 2 Property that did not exist when title to the Phase
1 Property originally transferred to Buyer.
1.8.2 In the event Seller exercises the Right of Repurchase under Section
2 ii an amount equal to the greater of: (X)the appraised fair market value of the Phase 1
Property,in its"as is"condition as of the date of Seller's exercise the Right to 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 I Property as of the date of Seller's exercise the Right to
Repurchase as certified by an agreed-upon licensed independent 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 Seller's exercise of the Right to Repurchase,including the value
of all permits, entitlements, agreements (including the Development Agreement) as
certified by an agreed-upon licensed independent MAI appraiser. In the case of either X
or Y, the Repurchase Price shall be minus Seller's cost to cure or remove any liens,
encumbrances or other matters that exist on title to the Phase 1 Property or Phase 2 Property
that did not exist when title to the Phase 1 Property originally transferred to Buyer.
2. RIGHT TO REPURCHASE. 1f(i)Buyer fails to Commence Construction within
thirty (30) calendar days after the Effective Date (the "Outside Construction Commencement
Date"); or (ii) construction of the Project is stopped in excess of ninety (90) consecutive days,
subject to Force Majeure, for the period following Buyer's Commencement of Construction and
extending until the date on which Buyer provides reasonable written evidence to Seller that Buyer
has paid at least Fifteen Million Dollars ($15,000,000) in connection with Buyer's purchase,
financing, design, engineering, entitlement, permitting, and construction of the development on
the Phase 1 Property and the Phase 2 Property, then, in the case of each of subsection (i) and/or
(ii), Seller shall have the right, in Seller's sole discretion, at any time thereafter, to purchase the
Project and to terminate the Phase 2 Lease Agreement (the "Right to Repurchase") for the
Repurchase Price, which Right to Repurchase must be exercised by written notice delivered to
Buyer, in the event of subsection (i) above, after the Outside Construction Commencement Date
and before Commencement of Construction; and in the event of subsection (ii) above, after
construction of the Project has been stopped in excess of ninety (90) consecutive days, subject to
Force Majeure. If the Right to Repurchase has not been previously exercised by Seller,the Right
to Repurchase shall expire on the earlier of following(the"Repurchase Right Expiration Date"):
(a) the date on which Buyer provides reasonable written evidence to Seller that Buyer has paid at
least Fifteen Million Dollars ($15,000,000) in connection with Buyer's purchase, financing,
design, engineering, entitlement, permitting, and construction of the development on the Phase 1
Property and the Phase 2 Property and (b)ten(10) years after the Effective Date.
3. DETERMINATION OF REPURCHASE PRICE.
3.1 In the event Seller exercises the Right of Repurchase under Section 26),
within thirty (30) days, Seller shall send Buyer a determination of the Repurchase Price together
2841/086 03/27/18 -3- opt to repurchase agr v3
trcad\HAL\Rivcrbcnd Joint VentureThase I Closing Does
with Seller's calculation of the cost to cure or remove any liens, encumbrances or other matters
that exist on title to the Phase 1 Property or Phase 2 Property that did not exist when title to the
Phase I Property originally transferred to Buyer, together with supporting documentation.
3.2 In the event Seiler exercises the Right of Repurchase under Section 260,
within thirty (30) days: (a) Seller shall send to Buyer, Seller's calculation of the cost to cure or
remove any liens,encumbrances or other matters that exist on title to the Phase 1 Property or Phase
2 Property that did not exist when title to the Phase I Property originally transferred to Buyer and
(b) the parties shall retain a licensed independent MAI appraiser to determine the Repurchase
Price,which determination shall be made by the MAI appraiser within ten(10)business days after
such MAI appraiser is retained,unless the parties agree to a longer time period. The determination
of the MAI appraiser shall be binding on the parties and non-appealable absent manifest error. The
fees and costs of the MAI appraiser shall be paid by Buyer. Within thirty (30) days after the
determination of the Repurchase Price by the MAI appraiser is provided to the parties, Seller shall
have the right to elect by written notice to Buyer,in Seller's discretion,to terminate its election to
exercise the Right of Repurchase by written notice to Buyer. If Seller elects to terminate its
election to exercise the Right of Repurchase by written notice to Buyer, Seller's Right of
Repurchase shall be deemed terminated and null and void. If Seller does not elect to terminate its
election to exercise the Right of Repurchase, the parties shall close the sale of the Project in
accordance with Section 4 below.
4. TRANSFER PROTECT. If Seller exercises the Right to Repurchase and does not
elect to terminate its election to exercise the Right of Repurchase under Section 3.2 above,then:
4.1 The closing shall occur on the date that is ninety (90) days after the
determination of the Repurchase Price is delivered to the parties (or the next business day if such
date falls on a Saturday, Sunday or holiday) (the"Repurchase Closing Date").
4.2 On the Repurchase Closing Date, Buyer shall (i) convey title to the
Properties and the Project to Seller(or to any Person designated by Seller); (ii)assign to Seller(or
to any Person designated by Seller), 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 Properties and the Project that did
not exist when title thereto was originally conveyed by Seller 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 t Property and Phase 2 Property in
accordance with Seller's 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
2841/086 03/27118 -4- opt to repurchase agr v3
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shall pay all closing costs incurred in connection with Seller's repurchase of the Properties and the
Project hereunder.
4.3 On the Repurchase Closing Date, Seller shall pay the Repurchase Price into
escrow with a reputable title insurance company with instructions to release the Repurchase Price
to Buyer upon satisfaction of the conditions set forth in Section 4.2 above and Section 5 below and
such other reasonable conditions as Seller may request.
4.4 The deed and other conveyance and assignment documents will be in
substantially the same form as used to originally convey the Properties and Project from Seller to
Buyer.
5. CLOSING COSTS RELATED TO REPURCHASE. At closing, Buyer shall
pay (or, at Seller's election, such amounts will be paid by Seller or the title company closing the
repurchase and deducted from the Repurchase Price due to Buyer except to the extent previously
deducted from the Repurchase Price) all of the following (collectively, the "Buyer Repurchase
Costs"): (i) all excise taxes and sale, use and personal property taxes payable in connection with
the conveyance,transfer and assignment of the Properties and the Project;(ii)the cost of removing
all liens, encumbrances and other matters on title to the Properties and/or the Project (including,
without limitation,removing all deeds of trust,lines and encumbrances in favor of any construction
lender); (iii) all real estate taxes and assessments and utilities costs related to any period of time
prior to the Repurchase Closing Date;and(iv)all reasonable attorneys'and consultants' fees,costs
and expenses and any other out-of-pocket costs incurred by Seller in connection with exercising
or enforcing the Right to Repurchase and repurchasing the Properties and the Project. To the
extent that the Buyer Repurchase Costs exceed the Repurchase Price,Buyer shall immediately pay
such deficiency to Seller in immediately available funds. Buyer shall indemnify,defend and hold
harmless Seller from and against the Buyer Repurchase Costs and any associated liabilities,claims,
damages and expenses(including reasonable attorneys' fees and costs)to the extent exceeding the
Repurchase Price due to Buyer under this Agreement.
6. NEGATIVE PLEDGE. Until the Repurchase Right Expiration Date,Buyer shall
not, and shall not have right to, grant, create, incur, allow, permit, assume, or suffer to exist any
Lien,of any kind or nature,on the Properties and/or the Project or any portion thereof. For purpose
of this Section 6, "Lien" means any lease, sublease, mortgage, deed of trust, security interest,
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 Properties or the Project,except(a)I iens for taxes which are not delinquent or which remain
payable without penalty, (b) dedications, easements, rights-of-way, and other similar Project-
related encumbrances and agreements contemplated by the Development Agreement, and (c)
commercial leases for individual commercial spaces to be constructed in the portion of the Project
located on the Phase 1 Property (with tenants that are not affiliated with nor related to Buyer or
any of its principals or any affiliates or subsidiaries of the Buyer, any of its principals or their
family members) that expressly contain a unilateral termination right in favor of Seller (without
reimbursement or payment of any penalties, fees or other amounts to the commercial tenant of any
terminated commercial lease)if Seller closes a repurchase of the Property pursuant to Seller's Right
to Repurchase. In the event Seller exercises the Right to Repurchase, on the closing of the
2941/086 03/27/19 -5- opt to repurchase agr v3
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repurchase. without any payment to the holder of any Lien or interest in any Lien,each Lien shall
be deemed to be automatically released,reconveyed,terminated,and removed from the Properties
and the Project and, without limiting the foregoing, each holder of any Lien or interest any Lien
shall, at the request of Seller, provide any documents requested by Seller to fully document such
release,reconveyance, termination,and removal of its interest and/or the Lien.
7. AUTHORIZATION. The individuals executing this Agreement each wan-ant and
represent that this Agreement was duly authorized by all individuals or entities whose
authorization was required for this Agreement to be effective and binding on Buyer.
8. SUCCESSORS AND ASSIGNS. Buyer hereby agrees and declares that all of the
Properties and the Project shall be held, sold, leased, used, and conveyed subject to the terms,
covenants,conditions,and restrictions in this Agreement(the"Covenants"). The Covenants shall
inure to the benefit of Seller and its successors and assigns-, shall burden the Properties and the
Project; shall run with the land; and shall apply to and be binding upon all parties now or hereafter
having or acquiring any right, title, or interest in the Properties and/or the Project or any part
thereof and their heirs,successors and assigns.
9. 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,postage
prepaid. 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, postage prepaid. 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:
Seller: City of Kent
220 Fourth Avenue South
Kent, WA 98032
Attn: Pat Fitzpatrick and Kurt Hanson
Email: pfitzpatrick@kentwa.gov
khanson@kentwa.gov
With a copy to: Foster Pepper PLLC
I I I I Third Avenue, Suite 3000
Seattle, WA 98101-3299
Attn: Beth Clark
Email: beth.clark@foster.com
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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
c/o HAL Real Estate Inc.
2025 First Avenue, Suite 700
Seattle, WA 98121
Attn: Jonathan Manheim
Email: jmanheim@halrealestate.com
and: Alston Courtnage & Bassetti LLP
1420 50' Avenue, Suite 3650
Seattle, WA 98101-4011
Attn-. Tom Read
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.
10. SUBORDINATION OF LIENS AND INTERESTS. Any Lien or interest now
or hereafter placed upon or granted in the Properties and/or the Project, or any portion thereof,
including any amendments,replacements, renewals and extensions thereof,shall be subject to and
subordinate to this Agreement,as the same may be amended from time to time,including,without
limitation, subject to and subordinate to Seller's rights and remedies under this Agreement.
11. AMENDMENT, WAIVER. No modification, termination or amendment of this
Agreement may be made except by written agreement of the parties. No failure by Seller or Buyer
to insist upon the strict performance of any covenant, agreement, or condition of this Agreement
or to exercise any right or remedy shall constitute a waiver of any such breach or any other
covenant, agreement, term or condition. No waiver shall affect or alter this Agreement, and each
and every covenant, agreement, term and condition of this Agreement shall continue in full force
and effect with respect to any other then existing or subsequent breach thereof.
12. HEADINGS; ENTIRETY. The article and paragraph headings of this Agreement
are for convenience only and in no way limit or enlarge the scope or meaning of the language
hereof. This Agreement embodies the entire agreement between the parties and supersedes all
prior agreements and understandings relating to the subject matter hereof.
13. NO JOINT VENTURE; NO THIRD PARTY BENEFICIARY. It is not
intended by this Agreement to, and nothing contained in this Agreement shall, create any
partnership,joint venture or other arrangement between Buyer and Seller. No term or provision
of this Agreement is intended to be, or shall be, for the benefit of any person, firm, organization
2841/086 0327118 -7- opt to repurchase agr Q
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or corporation not a party hereto,and no such other person, firm,organization or corporation shall
have any right or cause of action hereunder.
14. COSTS AND EXPENSES. In the event of any lawsuit, mediation, arbitration or
legal proceeding is brought to enforce any of the terms hereof, each party shall be responsible for
its own costs and expenses incurred in connection with such action or proceeding (including any
appeals therefrom) including its own attorneys' and court fees and costs.
15, SEVERABILITY. If any one or more of the provisions of this Agreement,or the
applicability of any such provision to a specific situation, shall be held invalid or unenforceable,
such provision shall be modified to the extent necessary to make it or its application valid and
enforceable, and the validity and enforceability of all other provisions of this Agreement and all
other applications of any such provision shall not be affected thereby.
16. CONSTRUCTION. Seller and Buyer acknowledge that it and its counsel have
reviewed and revised this Agreement and that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the interpretation
of this Agreement (including the exhibits) or any amendments thereto, and the same shall be
construed neither for nor against Seller or Buyer, but shall be given a reasonable interpretation in
accordance with the plain meaning of its terms and the intent of the parties.
17. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement shall be governed by and construed in accordance with the internal laws of the state of
Washington. The venue of any judicial proceedings related to this Agreement shall be in Kent,
Washington, unless otherwise mutually agreed in writing by the parties. Each party irrevocably
submits to the exclusive jurisdiction of the federal or state courts located in Kent, Washington.
EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW TRIAL BY
JURY OF ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT.
18. TIME. "Day"as used herein means a calendar day and"business day"means any
day on which national banks in the location where the Properties are located are generally open
for business. Unless otherwise specified, in computing any period of time described herein, the
day of the act or event after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included at,unless such last day is a Saturday,
Sunday or legal holiday for national banks in the location where the Properties are located, in
which event the period shall run until the end of the next day which is neither a Saturday, Sunday,
or legal holiday. The last day of any period of time described herein shall be deemed to end at
5:30 p.m. (Pacific). Time is of the essence in the performance of this Agreement.
19. MEMORANDUM. Concurrently with execution of this Agreement, Buyer will
execute and deliver to Seller a memorandum of this Agreement in a form required by Seller, duly
executed,acknowledged and in recordable form (together with any necessary excise tax affidavits
or other transfer tax forms). Seller shall have the right to record the memorandum against the
Project at Buyer's sole cost and expense (including the payment of any required excise taxes),
Upon Buyer's request on or after the Repurchase Right Expiration Date, Seller will promptly
execute and record a full termination of any memorandum of this Agreement that is recorded.
2841/096 03/27/19 .8- Opt to repurchase agy v3
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20. EXECUTION. This Agreement may be executed in counterparts and, when
counterparts of this Agreement have been executed and delivered by both parties,this Agreement
shall be fully binding and effective, as if both parties had executed and delivered a single
counterpart of this Agreement. Without limiting the manner in which execution of this Agreement
may be accomplished, execution by either party may be effected by facsimile transmission of a
signature page of this Agreement executed by such party. Any party who effects execution by
facsimile transmission of a signature page shall also promptly deliver to the other party an original
counterpart signed by such party, but the failure of any party to furnish such original counterpart
shall not invalidate the execution of this Agreement effected by facsimile transmission. This
Agreement shall not be binding upon or effective as to either Buyer or Seller until it has been
executed by both Buyer and Seller.
[signatures on following page]
2841/086 03/27/18 -9- opt to repurchase agr 0
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IN WITNESS WHEREOF,the parties have executed this Option to Repurchase Agreement
effective as of the Effective Date first hereinabove written.
BUYER:
MARQUEE ON MEEKER LLC,a Washington
limited liability company
By: T�e Miss' inks LL a
Washin Ii ited liability company,
Brettk
kob en, Manager
SELLER: �-
CITY OF KENT,a Washington
municipal corporation
Dana Ralph, Mayor
29411086 03127/18 -10- opt to repurchase agr 0
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|N VY|7lN[98 \VUEKG( |:. the parties have cxccuted this Option to Repurchase
/\uczmcntdlic(ive its u[thcEO'eohvc Date first hc,cinu6nvcwritten,
BUYER:
MARQUEE ON MEEKER LLC' u Washington
limited liability company
Bv- llx: K4iein� Links LLC. o
Washington |hnhcd |iubi|itycompany.
its Manager
8ncKJucohuon. Manager
SELLER:
CITY OF K8NT. 0 VVushiuotmu
municipal corporation
Dana Ralph. Mavor
zww.x^wznS
EXHIBIT A-1 ?'
Legal Description of Phase 1 Property
LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED I
UNDER RECORDING NO.20180321900004,IN KING COUNTY, WASHINGTON.
�i
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k'
i
i
2841/086 MOM opt to repurchase agr v3
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i
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EXHIBIT A-2 j
�a
f
Legal Description of Phase 2 Property
LOTS 3, 4 AND 5 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED UNDER
RECORDING NO.20180321900004,IN KING COUNTY,WASHINGTON.
2941/086 030/18 -12- apt to repurchase agrv3
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i '
Instrument Dumber:20180403000433 Document:MEMO Rec:$79.00 Page-1 of
Record Dale:4/312018 11:34 AM
Electronically Recorded King County,WA
WHEN RECORDED RETURN TO:
Foster Pepper PLLC ORIGINAL
1111 Third Avenue, suite 3000 Efectronleady Recorded
Seattle,WA 98101
Attention: Beth A. Clark
Document Title: Memorandum of Option to Repurchase Agreement
Grantor: Marquee on Meeker LLC «fE�� AM
J 1 0
Grantee: City of Kent f /"Una
Legal Description: Na_ fms3f--kv I
Abbreviated Legal Description: Lots 1-2, Kent SP No,
SP-2017-1, Rec.20180321900004
Full Legal Description: See Exhibit A attached
Assessor's Tax Parcel Nos.: Pin of 232204.9011-01
Reference Nos. of Documents Released or Assigned: Not applicable
MEMORANDUM OF OPTION TO REPURCHASE AGREEMENT
THIS MEMORANDUM OF OPTION TO REPURCHASE AGREEMENT
(the "Memorandum") is executed this 2#X day of /�pr;/ , 2018, by
and between Marquee on Meeker LLC, a Washington limited liability company
("Developer"), and the City of Kent, a Washington municipal corporation
("City").
1. Option to Repurchase. City conveyed to Developer certain real
property located in the City of Kent, Washington, and more particularly described
in Exhibit A attached hereto (the"Property") pursuant to that certain Real Estate
Purchase and Sale Agreement with Lease/Option dated as of May 5, 2017, as
amended (the "Purchase Agreement'. The conveyance of the Properly to
Developer pursuant to the Purchase Agreement was subject to Developer's grant
to City of an option to repurchase the Property pursuant to the terms and
conditions of ar Option to Repurchase Agreement of even date herewith (the
"Option Repurchase Agreement").
2, Purpose of Memorandum. This Memorandum is prepared for
purposes of giving notice of the Option Repurchase Agreement and does not set
forth all of the terms and conditions set forth in the Option Repurchase
Agreement. If there is any conflict between the terms and conditions of the
Option Repurchase Agreement and this Memorandum, the Option Repurchase
Agreement shall control.
727714IG I
3. Termination. This Memorandum shall automatically terminate and be
released as a lien on title to the Property without further action of the parties upon the
earlier of (i) the Closing of the sale of the Property to City pursuant to the Option
Repurchase Agreement, or (ii) expiration of the Option Repurchase Agreement in
accordance with its terms. Without limiting the automatic termination set forth above,
City agrees, upon the request of Developer after the earliest to occur of the foregoing
events, to execute such documentation as may be reasonably requested by
Developer in order to fully release this Memorandum from title to the Property.
This Memorandum is made as of the date first written above.
CITY:
CITY OF KENT, a
Washington municipal corporation
Dana Ralph, Mayor
DEVELOPER:
MARQUEE ON MEEKER LLC, a Washington
limited liability company
By: The Missing Links LLC, its Manager
Brett Jacobsen, Manager
2-
3. Termination. This Memorandum shall automatically terminate and be
released as a lien on title to the Property without further action of the parties upon the
earlier of (i) the Closing of the sale of the Property to City pursuant to the Option
Repurchase Agreement, or (ii) expiration of the Option Repurchase Agreement in
accordance with its terms. Without limiting the automatic termination set forth above,
City agrees, upon the request of Developer after the earliest to occur of the foregoing
events, to execute such documentation as may be reasonably requested by
Developer in order to fully release this Memorandum from title to the Property.
This Memorandum is made as of the date first written above.
CITY:
CITY OF KENT, a
Washington municipal corporation
Dana Ralph, Mayor
DEVELOPER:
MARQUEE ON MEEKER LLC, a Washington
limited liabili company
By: The Mi L ks LLC, its Manager
Bre c sen, Manager
-2-
52977616 1
STATE OF WASHINGTON)
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Dana Ralph is the person who
appeared before me, and said individual acknowledged that she signed this instrument
as Mayor and acknowledged it to be her free and voluntary act of the City of Kent for
the uses and purposes mentioned in the instrument.
Given un > �hmd and official seal this 2q day of 34001 2018.
.SON ART
r g
r Q J.0
�.. • z [Print Na J AwMw to IN
NOTARY PUBLIC in and for the state
, �''���,,��it��o9 ti-'���= of Washington, residing in
/,'11,'IF'o „\NPI" ,�
My appointment expires 1 Z
STATE OF WASHINGTON)
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Brett Jacobsen is the person who
appeared before me, and said individual acknowledged that he signed this instrument
as the Manager of The Missing Links LLC, the Manager of Marquee on Meeker LLC
and acknowledged it to be his free and voluntary act for the uses and purposes
mentioned in the instrument.
Given under my hand and official seal this day of 2018.
[Print Name]
NOTARY PUBLIC in and for the state
of , residing in
My appointment expires
-3-
STATE OF WASHINGTON)
COUNTY OF KING
I certify that I know or have satisfactory evidence that Dana Ralph is the person who
appeared before me, and said individual acknowledged that she signed this instrument
as Mayor and acknowledged it to be her free and voluntary act of the City of Kent for
the uses and purposes mentioned in,the instrument.
Given under my hand and official seal this day of 201&
(Print Name)
NOTARY PUBLIC in and for the state
of Washington, residing in
My appointment expires
STATE OF WAS H I N GTO N)
COUNTY OF KING
I certify that I know or have satisfactory evidence that Brett Jacobsen is the person who
appeared before me, and said individual acknowledged that he signed this instrument
as the Manager of The Missing Links LLC, the Manager of Marquee on Meeker LLC
and acknowledged it to be his free and voluntary act for the uses and purposes
mentioned in the instrument.
Given under my hand and official seal this 3 day of ��'T=r�n _, 2018,
k P
[Print Name]
NOTARY PUBLIC in and for the state
of residing in
My appointment expires k I7
X,
OF W 'ZI
,3,
Exhibit A
Legal Description of Property
LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED
UNDER RECORDING NO. 20180321900004, IN KING COUNTY, WASHINGTON.
Exhibit A
52977616 1
COMPLETION AND PERFORMANCE GUARANTY
THIS COMPLETION ANQ PERFORMANCE GUARANTY (this "Guaranty") is made
and given effective as of April 2018 (the "Effective Date"), by FNW INC., a Washington
corporation ("Guarantor"), to and in favor of CITY OF KENT, a Washington municipal
corporation ("Seller").
RECITALS
A. Seller and Marquee on Meeker LLC, a Washington limited liability company
("Buyer")entered into a Real Estate Purchase and Sale Agreement with Lease/Option to Purchase
dated as of May S, 2017,as amended by Amendment to Real Estate Purchase and Sale Agreement
with Lease/Option to Purchase dated as of September 20, 2017 (as amended, the "Purchase and
Sale Agreement"), for the sale by Seller, and the purchase by Buyer, of certain real property
located in King County, Washington,legally described on Exhibit A-1 attached hereto(the"Phase
I Property") and for the lease with option to purchase by Seller, as landlord, and the lease with
option to purchase by Buyer. as tenant,of certain adjoining real property Iocated in King County,
Washington, legally described on Exhibit A-2 attached hereto (the "Phase 2 Property"). The
Phase 1 Property and the Phase 2 Property are collectively referred to herein as the"Properties."
B. Concurrently with the execution of this Guaranty, Seller is selling the Phase 1
Property to Buyer pursuant to the terms of the Purchase and Sale Agreement.
C. Concurrently with the execution of this Guaranty, Seiler is also leasing the Phase 2
Property to Buyer pursuant to the terms of that certain Lease (with Option to Purchase) of even
date herewith by and between Seller and Buyer(the"Phase 2 Lease Agreement").
D. As a condition to the sale of the Phase 1 Property and lease of the Phase 2 Property
by Seller to Buyer, Seller required Guarantor to enter into this Guaranty.
E. Guarantor acknowledges that Guarantor will receive a direct or indirect material
benefit from the sale of the Phase l Property,and lease of the Phase 2 Property,to Buyer and therefore
is willing to enter into and provide this Guaranty.
F. Except where otherwise provided in this Guaranty,all initially-capitalized terms used
herein shall have the meanings ascribed to them in the Purchase and Sale Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the sale and lease of the Properties by Seller to
Buyer and for other good and valuable consideration,the receipt and sufficiency of which is hereby
acknowledged, Guarantor, for itself, its successors and assigns, hereby covenants and agrees as
follows:
2841/086 03/26/13 I • completion and perform guaranty v2
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1. DEFINITIONS. For purposes of this Guaranty:
1.1 "Development Agreement"means that certain Marquee on Meeker Project
Development Agreement, by and between Seller and Buyer related to the Project, as approved by
the City of Kent Council on August 15, 2017, and effective as of August 23,2017.
1.2 "Person" means any individual, sole proprietorship, limited partnership,
joint venture, unincorporated organization, institution,partnership,corporation, association, trust,
limited liability company, or other legal entity.
1.3 "Phase I Project Improvements" means all improvements contemplated
and permitted under the Development Agreement for the full development of the Phase 1 Property,
but not including the Project Infrastructure.
1.4 "Project" means the Phase 1 Property, Phase 1 Project Improvements and
Project Infrastructure.
1.5 "Project Agreements"means the Purchase and Sale Agreement,the Phase
2 Lease Agreement, the Development Agreement, and the Option to Repurchase Agreement.
1.6 "Project Infrastructure" means (a) all public and private on-site and off-
site utility and other infrastructure improvements, including, without limitation, water, storm
water, sanitary sewer utilities and traffic/pedestrian improvements, required to support the full
development of the Phase 1 Property, all as contemplated under the Development Agreement,
including, without limitation,the"Meet Me on Meeker" improvements and Phase 1 Property geo-
piers and (b) all public and private on-site and off-site mainline utility and other infrastructure
improvements, including, without limitation, mainline water, storm water and sanitary sewer
utilities, and traffic/pedestrian improvements, required to support the full development of the
Phase 2 Property, all as contemplated under the Development Agreement, including, without
limitation,the"Meet Me on Meeker"improvements, but, for clarification,not including the Phase
2 Property geo-piers or foundation work.
1.7 "Substantial Completion" or "Substantially Completed" means, with
respect to any improvement or work,such improvement or work has been completed in accordance
with all applicable permits and laws and has been inspected and approved by the appropriate
authorities as evidenced by a certificate of occupancy for all residential portions of the Project,
subject only to minor punch-list items (minor details of construction, decoration and mechanical
adjustments)that do not interfere with use and operation of the improvement or work in question.
2. GUARANTY. Guarantor hereby unconditionally and absolutely warrants and
guarantees to Seller that: (a) construction of the Project shall be Substantially Completed on or
before the date that is thirty (30) months after the date on which Buyer commences construction
of the Project; (b) the Project shall be constructed and completed in accordance with the
Development Agreement, without substantial deviation therefrom unless approved by Seller in
writing; (c) except for a first-priority deed of trust or security interest in the Project granted to
Buyer's construction lender(that is any institutional bank or lender which is not affiliated with or
2841/086 03/26/18 .2. completion and perform guaranty v2
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related to Buyer or any of its principals or any affiliates or subsidiaries of the Buyer, any of its
principals or their family members), the Project will be constructed and completed free and clear
of all liens and encumbrances, including without limitation all mechanics' liens, materialmen's
liens,and equitable liens; and (d)all costs of constructing and completing the Project will be paid
when due. The obligations described in preceding clauses (a) — (d) are referred to herein as the
"Guaranteed Obligations".
If the Project shall not be constructed and completed as provided above, Guarantor shall:
(a) diligently proceed to cure such default and procure completion of the Project at Guarantor's
sole cost and expense in compliance with all of the requirement provided above;(b) fully pay and
discharge all claims for labor performed and material and services furnished in connection with
the construction of the Project; and (c) pay such amounts as may be necessary to release and
discharge all claims of stop notices, mechanics' liens, materialmen's liens, and equitable liens, if
any,that may come into existence in connection with the construction of the Project.
3. NO REDUCTION OR DISCHARGE OF GUARANTEED OBLIGATIONS.
Guarantor hereby consents and agrees to each of the following, and agrees that Guarantor's
obligations under this Guaranty shall not be released,diminished, impaired, reduced,or adversely
affected by any of the following,and waives any common law,equitable, statutory or other rights
(including, without limitation, rights to notice) which Guarantor might otherwise have as a result
of or in connection with any of the following:
3.1 Any waiver or release by Seller of any of the terms, provisions, conditions,
obligations, and/or agreements constituting all or any part the Guaranteed Obligations or any of
the Project Agreements.
3.2 The direct or indirect, voluntary or involuntary, sale, conveyance,
assignment, lease,or other transfer of any interest in Buyer,all or any portion of the Properties(or
any improvement thereon from time to time) and/or any of the Project Agreements.
3.3 Any amendment, modification of. or supplement to any of the Project
Agreements,or any assignment or transfer thereof.
3.4 Any exercise or non-exercise of any right, power, remedy or privilege, or
granting extension of time, under this Guaranty or any of the Project Agreements or any waiver,
consent,extension,renewal, or modification thereof.
3.5 Any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or similar law or proceeding related to Buyer or any other Person or any of
their respective assets and/or any order of any court, government or agency thereof purporting to
reduce, amend, or otherwise affect any obligation or liability of Buyer under any of the Project
Agreements.
3.6 Any release or discharge of Buyer or any other guarantor or any other Person
in any receivership,bankruptcy,winding up,or other creditor proceedings.
2941/086 03/26/18 -3- completion and perform guaranty v2
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3.7 Any change in the name,purposes,capitalization,ownership,management,or
organization of Buyer.
Without limiting the foregoing, Seller may amend or modify any of the Project Agreements
and otherwise may deal with Buyer and its successors and assigns or any other guarantor or any other
Person, without notice to or consent of Guarantor, and without affecting, diminishing, or otherwise
impairing the liability of Guarantor hereunder.
4. NATURE OF GUARANTY. The liability of Guarantor under this Guaranty is an
absolute and unconditional guaranty of payment and of performance and not of collectability. The
liability of Guarantor hereunder is primary and coextensive with that of Buyer and its successors and
assigns and is joint and several. This Guaranty shall be a continuing guaranty. No action or
proceeding brought or instituted under this Guaranty and no recovery in pursuance thereof shall be a
bar or defense to any further action or proceeding which may be brought under this Guaranty by
reason of any further default or defaults hereunder or in the performance and observance of any of
the terms, covenants, conditions, and provisions in this Guaranty and/or any of the Project
Agreements. Guarantor's performance of a portion,but not all,of the Guaranteed Obligations, shall
in no way limit, affect, modify or abridge Guarantor's liability for that portion of the Guaranteed
Obligations which is not completed as required under this Guaranty. Without in any way limiting the
generality of the foregoing, in the event that Seller is awarded a judgment in any suit brought to
enforce Guarantor's covenant to perform a portion of the Guaranteed Obligations, such judgment
shall in no way be deemed to release Guarantor from its covenant to perform any other portion of the
Guaranteed Obligations which is not the subject of such suit. Seller shall not be obligated to exhaust
its recourse against Buyer, or any other guarantor or any other Person,or any security it may have for
the satisfaction of the obligations hereby guaranteed before being entitled to performance by
Guarantor of each and every one of the obligations hereby guaranteed. Seller may, at its sole
discretion and to the extent permitted by law, exercise its rights under this Guaranty either prior to,
concurrently with,or after,the exercise of its remedies for default against Buyer or any other Person
and in this regard, Guarantor hereby expressly waives any limitations on a concurrent exercise of
remedies under this Guaranty which may be imposed under any applicable laws. This Guaranty is in
addition to and not in substitution for any other guaranties held or which may hereafter be held by
Seller, and Guarantor is jointly and severally liable with any such other guarantors for the payment
and performance of the Guaranteed Obligations.
S. RIGHTS AND REMEDIES. If Guarantor shall fail to perform promptly as
provided in this Guaranty within thirty(30)days after written notice from Seller, Seller shall have
the following rights and remedies:
5.1 Perform Guaranteed Obligations. Seller, at its option, but without any
obligation to do so,may proceed to perform on behalf of Guarantor any and all work on the Project
and any of the other Guaranteed Obligations and to pay any costs incurred in connection with the
work and performance. Guarantor, upon Seller's demand, shall promptly pay to Seller all such
sums expended.
5.2 Cure Defaults. Seller, at its option, but without any obligation to do so,
may cure any defaults, including without limitation, paying any unpaid bills and liens, including,
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without limitation, those for construction, labor,and materials. Guarantor. upon Seller's demand.
shall promptly pay to Seller all such sums expended.
5.3 Specific Performance. From time to time and without first requiring
performance on the part of Buyer, to require Guarantor specifically to perform Guarantor's
obligations under this Guaranty, by action at law or in equity or both,and further,to collect in any
such action, compensation for all loss, cost, damage, injury and expense sustained or incurred by
Seller as a direct or indirect consequence of Buyer's or Guarantor's failure to perform.
5.4 Other Rights and Remedies. In addition, Seller shall have and may
exercise any or all of the rights and remedies it may have available at law, in equity, or otherwise.
6. FINANCIAL COVENANTS. The following financial covenants, based on the
definitions shown below, must be maintained by Guarantor during the term of this Guaranty.
Compliance with the following financial covenants shall be measured semi-annually as of the
following dates: March 3151 and September 30"'. Guarantor shall certify that it is in compliance
with the following financial covenants by delivering a certificate of compliance in form reasonably
requested by Seller, along with supporting documentation (e.g., schedule of assets and liabilities
and bank and brokerage statements), which certificate of compliance shall be provided within
thirty (30) days after the end of each semi-annul period; provided, however, that if a particular
certificate of compliance signed by Guarantor is not received by Seller by the required deadline,
Seller reserves the right to determine Guarantor's compliance with the terms hereof based on other
information available to Seller.
Notwithstanding the foregoing paragraph, Guarantor may satisfy the Minimum Adjusted
Net Worth requirement in Section 6.2 below by aggregating Guarantor's Adjusted Net Worth
together with the Adjusted Net Worth of each of Brett Jacobsen and John W. McKenna, Jr.
(collectively, the "Shareholders"). Each of the Shareholders is a shareholder in Guarantor and
shall only be considered a Shareholder under this Guaranty as long as they remain a shareholder
in Guarantor, If Guarantor elects to aggregate the Adjusted Net Worth of the Shareholders with
that of Guarantor for purposes of satisfying the Minimum Adjusted Net Worth covenant in Section
6.2 below,Guarantor shall provide to Seller the same type of supporting documentation concerning
the Shareholders' net worth as Guarantor is required to provide pursuant to the preceding
paragraph. For avoidance of doubt, if Guarantor elects to aggregate the Shareholders' Adjusted
Net Worth with that of Guarantor for purposes of satisfying the Minimum Adjusted Net Worth
covenant in Section 6.2 below. the Shareholders will not become guarantors hereunder and will
not assume the obligations of Guarantor hereunder. The current Shareholders shall each execute
the joinder provision at the end of this Guaranty to acknowledge their consent to Guarantor
providing to Seller supporting information concerning the Shareholders' Adjusted Net Worth, in
the event that Guarantor elects to aggregate the assets of the Shareholders with those of Guarantor
as described in this paragraph.
Failure by Guarantor to satisfy each of the following financial covenants shall constitute a
default under this Guaranty. Terms used in such financial covenants are as defined below.
6.1 Minimum Liquidity. Guarantor shall maintain a total Unencumbered
Liquidity of not less than $3,000,000.
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6.2 'Minimum Adjusted Net Worth. Guarantor and Shareholders shall
maintain an aggregate minimum Adjusted Net Worth of not less than $10,000,000.
6.3 'Definitions. For purposes of the foregoing financial covenants, the
following terms shall have the following meanings:
"Debt" means, for Guarantor or any Shareholder, as applicable, all liabilities,
whether now or hereafter existing, voluntary or involuntary, due or not due,
liquidated or unliquidated.
"Adjusted Net Worth" means, for Guarantor or any Shareholder, such party's
total assets, excluding (1) intangible assets (i.e., goodwill, trademarks, patents,
copyrights, organizational expenses, and similar intangible items, but including
leaseholds and leasehold improvements), (2) treasury stock, (3)cash held in a
sinking or other similar fund established for the purpose of redemption or other
retirement of capital stock, (4)reserves for depreciation, depletion, obsolescence,
or amortization of properties and other reserves for appropriations of retained
earnings that have been or should be established in connection with such party's
business, and (5)any revaluation or other write up in book value of assets
subsequent to the fiscal year of such party; less Debt.
"Unencumbered Liquidity"means the sum of cash,marketable stocks and bonds,
and other near-cash investments held by Guarantor and immediately available with
unimpaired value;but not including pledged assets or IRA,401(k),annuity,or trust
accounts.
6.4 Construction Lender Requirements. Notwithstanding the Minimum
Liquidity and the Minimum Adjusted Net Worth of requirements set forth in Sections 6.1 and 6.2
above, if any lender providing the construction loan to Buyer for the construction of the Project
requires a greater Minimum Liquidity amount and/or a greater Minimum Adjusted Net Worth amount
(and/or any similar financial covenant) applicable to Guarantor, any Shareholder and/or any other
person or party providing a guaranty for completion of the Project construction and/or repayment of
the Project construction loan, then concurrent with the closing of such construction loan Guarantor
and,if applicable, Shareholders agree to increase the Minimum Liquidity and/or Minimum Adjusted
Net Worth of this Guaranty(or provide such similar financial covenant required by the construction
lender),as applicable,to match the greater sum required under the Project construction loan.
7. WAIVERS. To the maximum extent permitted by law,Guarantor hereby waives the
following: (a) notices of the acceptance of this Guaranty; (b) any statute of limitations affecting
Guarantor's liability hereunder or the enforcement thereof;(c)all defenses based upon any insolvency
or disability of Buyer and any and all other waivable defenses; and(d)all principles or provisions of
law which conflict with the terms of this Guaranty. Moreover,Guarantor agrees that its obligations
shall not be affected by any circumstances which constitute a legal or equitable discharge of a
guarantor or surety.
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S. SUBROGATION. Guarantor agrees that until such time as all the obligations of
Buyer and its successors and assigns under the Project Agreements have been fully and irrevocably
paid and discharged, no payment by Guarantor pursuant to any provision hereof shall entitle
Guarantor, by subrogation or otherwise,to the rights of Seller under any of the Project Agreements.
Guarantor further agrees that,to the extent the waiver of its fight of subrogation as set forth herein is
found by a court of competent jurisdiction to be void or voidable for any reason, any rights of
subrogation Guarantor may have against Buyer or its successor and assigns shall be junior and
subordinate to all rights that Seller has under the Project Agreements, including, without limitation,
the right of Seller to exercise the right of repurchase under the Option to Repurchase Agreement.
9. TERMINATION OF GUARANTY/REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. This Guaranty shall continue until (A) the Project has been Substantially
Completed in accordance with the Development Agreement, without substantial deviation
therefrom unless approved by Seller in writing and free and clear of all liens and encumbrances as
provided above, and (B) all obligations of Guarantor to Seller under this Guaranty have been
performed in full. If at any time any payment of the amount payable by Buyer or its successor or
assigns to Seller under any of the Project Agreements or is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of Buyer or any other Person or
otherwise, the Guarantor's obligations hereunder with respect to such payment shall be reinstated
as though such payment has been due but not made at such time. The covenants and terms
contained in this Section 9 shall survive the payment and performance of the Guaranteed
Obligations and any termination of this Guaranty.
10. REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Seller that:
10.1 Guarantor now has and will continue to have full and complete access to
any and all information concerning the Properties and Buyer, Buyer's financial status and Buyer's
ability to pay and perform the obligations owed to Seller under the Project Agreements. Guarantor
has reviewed and approved copies of the Project Agreements. So long as Guarantor's obligations
hereunder remain unsatisfied or owing, Guarantor shall keep fully informed as to all aspects of
Buyer's financial condition and the performance of said obligations.
10.2 No consent of any other person,including,without limitation,any creditors
of Guarantor, and no license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is required by such
Guarantor in connection with this Guaranty or the execution, delivery, performance, validity, or
enforceability of this Guaranty and all obligations required hereunder. This Guaranty has been
duly executed and delivered by Guarantor,and constitutes the legally valid and binding obligation
of Guarantor enforceable against Guarantor in accordance with its terms.
10.3 The execution, delivery and performance of this Guaranty will not violate
any provision of any existing law or regulation binding on Guarantor, or any order,judgment,
award or decree of any court,arbitrator or governmental authority binding on Guarantor, or of any
mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which
Guarantor is a party or by which Guarantor or any of Guarantor's assets may be bound, and will
not result in, or require, the creation or imposition of any lien on any of Guarantor's property,
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assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or
other agreement, instrument or undertaking.
10.4 Neither Seller nor any other Person has made any representation, warranty
or statement to Guarantor in order to induce Guarantor to execute this Guaranty.
10.5 As of the Effective Date, and after giving effect to this Guaranty and the
contingent obligation evidenced hereby, Guarantor is and will be solvent and has and will have
assets that, fairly valued, exceed Guarantor's obligations, liabilities (including contingent
liabilities) and debts, and has and will have property and assets sufficient to satisfy and repay
Guarantor's obligations and liabilities.
11. AUTHORIZATION. The individuals executing this Guaranty each warrant and
represent that this Guaranty was duly authorized by all individuals or entities whose authorization
was required for this Guaranty to be effective and binding on Guarantor.
12. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon Guarantor,
its successors and assigns and shall inure to the benefit of and shall be enforceable by Seiler and its
successors and assigns. This Guaranty may be assigned in whole or in part by Seller and it successors
and assigns.
13. 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,postage
prepaid. 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, postage prepaid. 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:
Seller: City of Kent
220 Fourth Avenue South
Kent, WA 98032
Attn: Pat Fitzpatrick and Kurt Hanson
Email: pfitzpatrick@kentwa.gov
khanson@kentwa.gov
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With a copy to: Foster Pepper PLLC
I I I I Third Avenue, Suite 3000
Seattle, WA 98101-3299
Attn: Beth Clark
Email: beth.clark@foster.com
Guarantor: FNW Inc,
c/o Landmark Development Group
2711 West Valley Highway North Suite 200
Auburn, WA 98001
Attn: Brett Jacobsen
Email: bjacobsen@ffiw-inc.com
With a copy to: HAL Real Estate Inc.
2025 First Avenue, Suite 700
Seattle, WA 98121
Attn: Jonathan Manheim
Email: jmanheim@halrealestate.com
and: Alston Courtnage& Bassetti LLP
1420 5th Avenue, Suite 3650
Seattle, WA 981014011
Attn: Tom Read
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.
14. AMENDMENT, WAIVER. No modification, termination or amendment of this
Guaranty may be made except by written agreement of the parties. No failure by Seller to insist
upon the strict performance of any covenant, agreement, or condition of this Guaranty or to
exercise any right or remedy shall constitute a waiver of any such breach or any other covenant,
agreement, term or condition. No waiver shall affect or alter this Guaranty, and each and every
covenant, agreement, term and condition of this Guaranty shall continue in full force and effect
with respect to any other then existing or subsequent breach thereof.
15. HEADINGS; ENTIRETY. The article and paragraph headings of this Guaranty
are for convenience only and in no way limit or enlarge the scope or meaning of the language
hereof. This Guaranty embodies the entire agreement between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof.
16. COSTS AND EXPENSES. In the event of any lawsuit, mediation, arbitration or
legal proceeding is brought to enforce any of the terms hereof,the prevailing party shall be entitled
to recover its costs and expenses incurred in connection with such action or proceeding(including
any appeals therefrom) from the non-prevailing party, including reasonable attorneys' and court
fees and costs.
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17. SEVERABILITY. If any one or more of the provisions of this Guaranty, or the
applicability of any such provision to a specific situation, shall be held invalid or unenforceable,
such provision shall be modified to the extent necessary to make it or its application valid and
enforceable, and the validity and enforceability of all other provisions of this Guaranty and all
other applications of any such provision shall not be affected thereby.
18. CONSTRUCTION. Guarantor acknowledges that it and its counsel have
reviewed and revised this Guaranty and that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the interpretation
of this Guaranty (including the exhibits) or any amendments thereto, and the same shall be
construed neither for nor against Seller or Guarantor,but shall be given a reasonable interpretation
in accordance with the plain meaning of its terms and the intent of the parties.
19. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. This
Guaranty shall be governed by and construed in accordance with the internal laws of the state of
Washington. The venue of any judicial proceedings related to this Guaranty shall be in Kent,
Washington, unless otherwise mutually agreed in writing by the parties. Guarantor irrevocably
submits to the exclusive jurisdiction of the federal or state courts located in Kent, Washington.
GUARANTOR WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW TRIAL BY
JURY OF ALL DISPUTES ARISING OUT OF OR RELATING TO THIS GUARANTY.
20. TIME. "Day"as used herein means a calendar day and"business day"means any
day on which national banks in the location where the Properties are located are generally open
for business. Unless otherwise specified, in computing any period of time described herein, the
day of the act or event after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included at, unless such last day is a Saturday,
Sunday or legal holiday for national banks in the location where the Properties are located, in
which event the period shall run until the end of the next day which is neither a Saturday, Sunday,
or legal holiday. The last day of any period of time described herein shall be deemed to end at
5:30 p.m. (Pacific). Time is of the essence in the performance of this Guaranty.
21. EXECUTION. Without limiting the manner in which execution of this Guaranty
may be accomplished,execution may be effected by electronic mail or facsimile transmission of a
signature page of this Guaranty executed by Guarantor. If Guarantor effects execution by
electronic mail or facsimile transmission of a signature page,Guarantor shall also promptly deliver
to Seller an original counterpart signed by Guarantor, but the failure of Guarantor to furnish such
original counterpart shall not invalidate the execution of this Guaranty effected by electronic mail
or facsimile transmission.
[signature on following page]
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777-7
IN WITNESS WHEREOF, the undersigned has executed this Completion and
Performance Guaranty effective as of the Effective Date first hereinabove written.
GUARANTOR:
FNW IN .,at 9t n orporation
rBy:
Nam 6
Its:
Joinder:
The undersigned Shareholders, Brett Jacobsen and John W. McKenna, Jr., are executing this
Guaranty for purposes of consenting to the provisions of Section 6 of this Guaranty, by which
Guarantor may provide Seller with evidence of the Adjusted Net Worth of each Shareholder in
order to satisfy the Minimum Adjusted Net Worth covenant of Guarantor in Section 6.2 above.
Eph;i�f the 'the igned Shareholders agrees to furnish such financial schedules and statements
ariti, r i orma ion to Guarantor as required for Guarantor to provide Seller the supporting
docipen i -to stablish such Shareholder's Adjusted Net Worth.
Brett/fac: s
J h W. enna,Jr.
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1
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EXHIBIT A-1 t
Legal Description of Phase 1 Property
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LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED UNDER
RECORDING NO. 20180321900004, IN KING COUNTY, WASHINGTON.
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is
EXHIBIT A-2
Legal Description of Phase 2 Property
LOTS 3, 4 AND 5 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED UNDER
RECORDING NO. 20180321900004, IN KING COUNTY,WASHINGTON.
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LIMITED SALE AND TRANSFER RESTRICTION
THIS LmTEDALE AND TRANSFER RESTRICTION (this "Agreement") is made
effective as of Apri1Z,2018(the"Effective Date"),by and between MARQUEE ON MEEKER
LLC, a Washington limited liability company, and its successor and assigns (collectively,
"Buyer"), and CITY OF KENT, a Washington municipal corporation, and its successor and
assigns (collectively, "Seller").
RECITALS
A. Seller and Buyer entered into a Real Estate Purchase and Sale Agreement with
Lease/Option to Purchase dated as of May 5, 2017, as amended by Amendment to Real Estate
Purchase and Sale Agreement with Lease/Option to Purchase dated as of September 20,2017 (as
amended, "Purchase and Sale Agreement"), for the sale by Seller, and the purchase by Buyer,
of certain real property located in King County, Washington, legally described on Exhibit A-1
attached hereto (the "Phase I Property") and for the lease with option to purchase by Seller, as
landlord, and the lease with option to purchase by Buyer, as tenant, of certain adjoining real
property located in King County, Washington, legally described on Exhibit A-2 attached hereto
(the"Phase 2 Property"). The Phase I Property and the Phase 2 Property are collectively referred
to herein as the "Properties."
B. Concurrently with the execution of this Agreement, Seller is conveying the Phase
I Property to Buyer pursuant to the terms of the Purchase and Sale Agreement.
C. Concurrently with the execution of this Agreement, Seller is leasing the Phase 2
Property to Buyer pursuant to the terms of that certain Lease (with Option to Purchase) of even
date herewith by and between Seller and Buyer(the"Phase 2 Lease Agreement").
D. As a condition to the sale of the Phase I Property and lease of the Phase 2 Property
by Seller to Buyer, Seller required Buyer to enter into this Agreement.
E. All capitalized terms are defined in the Purchase and Sale Agreement and Phase 2
Lease Agreement unless specifically defined herein.
AGREEMENT
NOW, THEREFORE, in consideration of the sale and lease of the Properties by Seller to
Buyer and the mutual covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer
hereby agree as follows:
I DEFINITIONS. For purposes of this Agreement:
1.1 "Development Agreement"means that certain Marquee on Meeker Project
Development Agreement, by and between Seller and Buyer related to the Project, as approved by
the City of Kent Council on August 15, 2017. and effective as of August 23, 2017.
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1.2 "Project" means the Phase I Property, Phase 2 Property and Project
Improvements.
1.3 "Project Improvements" means all improvements and on-site and off-site
utility and other infrastructure improvements contemplated and permitted under the Development
Agreement for the full development of the Properties.
1.4 "Substantial Completion" means, with respect to any improvement or
work, such improvement or work has been completed in accordance with all applicable permits
and laws and has been inspected and approved by the appropriate authorities,subject only to minor
punch-list items (minor details of construction, decoration and mechanical adjustments) that do
not interfere with use and operation of the improvement or work in question.
2. LIMITED SALE AND TRANSFER RESTRICTION. Until later of (i)
Substantial Completion of the podium structure on the Phase 1 Property as described in the
Development Agreement and (ii) twenty-four (24) months after the Effective Date (the
"Restriction Period"), Buyer covenants and agrees to not, directly or indirectly, sell, transfer or
convey all or any portion of the Properties or the Project or any ownership interest in the Properties
or the Project(including, directly or indirectly, selling, transferring or conveying, in one or more
transactions,fifty percent(50%)or more of the membership interests in Buyer(the"Restriction"),
except(a) leases of individual residential units in the ordinary course of business after substantial
completion of the residential units in question; (b) leases of individual retail and commercials
spaces in the ordinary course of business after substantial completion of the retail and commercials
spaces in question;and(c)dedications,easements,rights-of-way,and other similar Project-related
encumbrances and agreements contemplated by the Development Agreement,provided,however,
that the Restriction shall be deemed expired in any event upon the tenth (IO'h) anniversary of the
Effective Date regardless of whether the Restriction has been previously violated(the"Restriction
Outside Expiration Date"). Any sale, transfer or conveyance that violates the Restriction shall
constitute a default under this Agreement and,at the election of Seller,in Seller's sole and absolute
discretion,be null and void.
3. SUBORDINATION. This Agreement is subordinate to a First-priority deed of
trust or security interest in the Properties or Project granted by Buyer to any institutional bank or
lender(which is not affiliated with or related to Buyer or any of its principals or any affiliates or
subsidiaries of the Buyer.any of its principals or their family members)that has provided financing
to Buyer for the construction of the Project which bank or unaffiliated lender is actively involved
in commercial real estate construction financing (a "Permitted Construction Lien"). The
Restriction shall be terminated in the event of a foreclosure of a Permitted Construction Lien.
4. AUTHORIZATION. The individuals executing this Agreement each warrant and
represent that this Agreement was duly authorized by all individuals or entities whose
authorization was required for this Agreement to be effective and binding on Buyer.
5. SUCCESSORS AND ASSIGNS. Buyer hereby agrees and declares that all of the
Properties and the Project shall be held, sold, leased, used, and conveyed subject to the terms,
covenants,conditions.and restrictions in this Agreement(the"Covenants"). The Covenants shall
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inure to the benefit of Seller and its successors and assigns; shall burden the Properties and the
Project; shall run with the land; and shall apply to and be binding upon all parties now or hereafter
having or acquiring any right, title, or interest in the Properties and/or the Project or any part
thereof and their heirs, successors and assigns.
6. 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,postage
prepaid. 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, postage prepaid. 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:
Seller: City of Kent
220 Fourth Avenue South
Kent, WA 98032
Attn: Pat Fitzpatrick and Kurt Hanson
Email: pfitzpatrick@kentwa.gov
khanson@kentwa.gov
With a copy to: Foster Pepper PLLC
I I I 1 Third Avenue, Suite 3000
Seattle, WA 98101-3299
Attn: Beth Clark
Email: beth.clark@foster.com
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
c/o HAL Real Estate Inc.
2025 First Avenue, Suite 700
Seattle, WA 98121
Attn: Jonathan Manheim
Email:jmanheim@halrealestate.com
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and: Alston Courtnage& Bassetti LLP
1420 5"Avenue, Suite 3650
Seattle, WA 981014011
Attn: Tom Read
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.
7. AMENDMENT, WAIVER. No modification, termination or amendment of this
Agreement may be made except by written agreement of the parties. No failure by Seller or Buyer
to insist upon the strict performance of any covenant, agreement, or condition of this Agreement
or to exercise any right or remedy shall constitute a waiver of any such breach or any other
covenant,agreement, term or condition. No waiver shall affect or alter this Agreement, and each
and every covenant, agreement, term and condition of this Agreement shall continue in full force
and effect with respect to any other then existing or subsequent breach thereof.
8. HEADINGS; ENTIRETY. The article and paragraph headings of this Agreement
are for convenience only and in no way limit or enlarge the scope or meaning of the language
hereof. This Agreement embodies the entire agreement between the parties and supersedes all
prior agreements and understandings relating to the subject matter hereof.
9. NO JOINT VENTURE; NO THIRD PARTY BENEFICIARY. It is not
intended by this Agreement to, and nothing contained in this Agreement shall, create any
partnership,joint venture or other arrangement between Buyer and Seller. No term or provision
of this Agreement is intended to be, or shall be, for the benefit of any person, firm, organization
or corporation not a parry hereto,and no such other person, firm,organization or corporation shall
have any right or cause of action hereunder.
10. COSTS AND EXPENSES. In the event of any lawsuit, mediation, arbitration or
legal proceeding is brought to enforce any of the terms hereof, each party shall be responsible for
its own costs and expenses incurred in connection with such action or proceeding (including any
appeals therefrom)including its own attorneys' and court fees and costs.
11. SEVERABILITY. If any one or more of the provisions of this Agreement,or the
applicability of any such provision to a specific situation, shall be held invalid or unenforceable,
such provision shall be modified to the extent necessary to make it or its application valid and
enforceable, and the validity and enforceability of all other provisions of this Agreement and all
other applications of any such provision shall not be affected thereby.
12. CONSTRUCTION. Seller and Buyer acknowledge that it and its counsel have
reviewed and revised this Agreement and that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the interpretation
of this Agreement (including the exhibits) or any amendments thereto, and the same shall be
construed neither for nor against Seller or Buyer, but shall be given a reasonable interpretation in
accordance with the plain meaning of its terms and the intent of the parties.
2841/086 03/29/18 -4- limited sale and transfer restriction 0
treaMAURiverbend Joint Ventureftase I Closing Does
13. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement shall be governed by and construed in accordance with the internal laws of the state of
Washington. The venue of any judicial proceedings related to this Agreement shall be in Kent,
Washington, unless otherwise mutually agreed in writing by the parties. Each party irrevocably
submits to the exclusive jurisdiction of the federal or state courts located in Kent, Washington.
EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW TRIAL BY
JURY OF ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT.
14. TIME. "Day"as used herein means a calendar day and"business day"means any
day on which national banks in the location where the Properties are located are generally open
for business. Unless otherwise specified, in computing any period of time described herein, the
day of the act or event after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included at,unless such last day is a Saturday,
Sunday or legal holiday for national banks in the location where the Properties are located, in
which event the period shall run until the end of the next day which is neither a Saturday,Sunday,
or legal holiday. The last day of any period of time described herein shall be deemed to end at
5:30 p.m. (Pacific). Time is of the essence in the performance of this Agreement.
15. MEMORANDUM. Concurrently with execution of this Agreement, Buyer will
execute and deliver to Seller a memorandum of this Agreement in a form required by Seller,duly
executed,acknowledged and in recordable form(together with any necessary excise tax affidavits
or other transfer tax forms). Seller shall have the right to record the memorandum against the
Project at Buyer's sole cost and expense (including the payment of any required excise taxes).
Upon Buyer's request on or after the Restriction Outside Expiration Date, Seller will promptly
execute and record a full termination of any memorandum of this Agreement that is recorded.
16. EXECUTION. This Agreement may be executed in counterparts and, when
counterparts of this Agreement have been executed and delivered by both parties,this Agreement
shall be fully binding and effective, as if both parties had executed and delivered a single
counterpart of this Agreement. Without limiting the manner in which execution of this Agreement
may be accomplished, execution by either party may be effected by facsimile transmission of a
signature page of this Agreement executed by such party. Any party who effects execution by
facsimile transmission of a signature page shall also promptly deliver to the other party an original
counterpart signed by such party, but the failure of any party to furnish such original counterpart
shall not invalidate the execution of this Agreement effected by facsimile transmission. This
Agreement shall not be binding upon or effective as to either Buyer or Seller until it has been
executed by both Buyer and Seller.
[signatures on following page]
2941/096 03/28/18 -5- limited sale and transfer restriction v3
treaMALlRiverbend Joint venturelPhase I Closing Does
7
IN WITNESS WHEREOF, the parties have executed this Limited Sale and Transfer
Restriction effective as of the Effective Date first hereinabove written.
SELLER:
MARQUEE ON MEEKER LLC, a Washington
limited liability company
By: The Missing Links LLC, a
hington ed liability company,
its M r
Brett Jaki en, Manager
BUYER:
CITY OF KENT,a Washington
municipal corporation
Dana Ralph, Mayor
29411086 03/28/18 .6- limited sale and transfer restriction v3
treadAlAbRiverbend Joint VeniureThase I Closing Does
IN WITNESS WHEREOF, the parties have executed this Limited Sale and Transfer
Restriction effiective as ofthe Effective Date first hereinabove written.
SELLER:
MARQUEE ON MEEKER LLC. a Washington
limited liability company
13 V: 'rhe missim, Links 1.1,C. a
Washington limited liability company.
its Manager
Brett Jacobsen. NIanauer
BUYER:
CITY OF KENT. a Washington
municipal corporation
Dana Ralph. Mayol,
I;is 0 9,1 R 3
JjL!jj&jj.-\j,lWelIVIld 10111t VtIIUITC'P11J11: I ('1D1111"I)"C'
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EXHIBIT A-1
i�
Legal Description of Phase 1 Property
LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED .
N
UNDER RECORDING NO.20180321900004, IN KING COUNTY,WASHINGTON.
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2841/086 03/28/18 limited sale and transfer restriction v3
tread\1 ALIRiverbend Joint venturewhase l Closing Does
EXHIBIT A-2 i.
Pi
Legal Description of Phase 2 Property j
LOTS 3, 4 AND 5 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED UNDER :
RECORDING NO. 20180321900004, IN KING COUNTY, WASHINGTON. j
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2941/096 030/18 -8- limited sale and transfer restriction A
treaMAURiverbend Joint VenturcWhase I Closing Does
Instrument Number: 20190402000937 Document:MEMO Rec.579.0()Page-1 or6
Record Datc:41212018 2:25 PM
Electronically Recorded King County,WA
WHEN RECORDED RETURN TO:
Foster Pepper PLLC
1111 Third Avenue, Suite 3000
Seattle,WA 98101
Attention: Beth Clark ORIGINAL
Electronically Recorded
Document Title: Memorandum of Limited Sale and Transfer Restrictio[L
Grantor: Marquee on Meeker LLC
Grantee: City of Kent I Aflv
Legal Description: A/6-5-- 93CIS-31- Wc4-1
Abbreviated Legal Description: Lots 1-2, Kent SP No, SP-
2017-1, Rec. 20180321900004
Full Legal Description: See Exhibit A attached
Assessor's Tax Parcel Nos,: Ptn of 232204-9011-01
Reference Nos. of Documents Released or Assigned: Not applicable
MEMORANDUM OF LIMITED SALE AND TRANSFER RESTRICTION
THIS MEMORANDUM OF LIMITED SALE AND TRANSFER RESTRICTION
(the "Memorandum") is executed this dfid day of Afr."I , 2018, by and
between Marquee on Meeker LLC, —i—Washington limited liability company
("Developer"), and the City of Kent, a Washington municipal corporation ("City").
1. Limited Sale and Transfer Restriction, City conveyed to Developer
certain real property located in the City of Kent, Washington, more particularly
described in Exhibit A attached hereto (the 'Property") pursuant to that certain Real
Estate Purchase and Sale Agreement with Lease/Option dated as of May 5, 2017, as
amended (the "Purchase Agreement"). As a condition of the conveyance of the
Property to Developer pursuant to the Purchase Agreement, City required Developer
to enter into certain restrictions on Developers sale, transfer or conveyance of any
portion of the Property, improvements constructed thereon or membership interests
in Developer, pursuant to the terms and conditions of the Limited Sale and Transfer
Restriction between Developer and City of even date herewith (the "Limited Sale
and Transfer Restriction").
2. Purpose of Memorandum. This Memorandum is prepared for purposes
of giving notice of the Limited Sale and Transfer Restriction and does not set forth all
of the terms and conditions set forth in the Limited Sale and Transfer Restriction. If
there is any conflict between the terms and conditions of the Limited Sale and
Transfer Restriction and this Memorandum, the Limited Sale and Transfer Restriction
shall control.
3. Termination. This Memorandum shall expire and have no further force
or effect according to the terms for expiration set forth in Section 2 of the Limited Sale
and Transfer Restriction, and upon satisfaction of such terms for expiration, City and
Developer shall execute such documentation as may be reasonably requested by
Developer in order to fully release this Memorandum from title to the Property.
This Memorandum is made as of the date first written above.
CITY.
CITY OF KENT, a
Washington municipal corporation
eDa�2[L,
Dana Ralph, Mayor
DEVELOPER:
MARQUEE ON MEEKER LLC, a Washington
limited liability company
By: The Missing Links LLC, its Manager
Brett Jacobsen, Manager
2
of the terms and conditions set forth in the Limited Sale and Transfer Restriction. If
there is any conflict between the terns and conditions of the Limited Sale and
Transfer Restriction and this Memorandum, the Limited Sale and Transfer Restriction
shall control.
3. Termination. This Memorandum shall expire and have no further force
or effect according to the terms for expiration set forth in Section 2 of the Limited Sale
and Transfer Restriction, and upon satisfaction of such terms for expiration, City and
Developer shall execute such documentation as may be reasonably requested by
Developer in order to fully release this Memorandum from title to the Property.
This Memorandum is made as of the date first written above.
CITY:
CITY OF KENT, a
Washington municipal corporation
Dana Ralph, Mayor
DEVELOPER:
MARQUEE ON MEEKER LLC, a Washington
limited liability company
By: (4"' Links LLC, its Manager
Breft obsen, Manager
-2-
5I977617 1
STATE OF WASHINGTON)
COUNTY OF KING }
I certify that I know or have satisfactory evidence that Dana Ralph is the person who
appeared before me, and said individual acknowledged that she signed this instrument
as Mayor and acknowledged it to be her free and voluntary act of the City of Kent for
the uses and purposes mentioned in the instrument.
Given under my hand and official seal this A day of 2018.
\.\SON Mq it
[Print N mej PWOW Ivt/ 1Pi
NOTARY PUBLIC in and for the state
a Z ;.
7 r� _ of Washington, residing in
G��- My appointment expires 1 Z
/IIIIO 11WA S`\� '
STATE OF WASHINGTON)
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Brett Jacobsen is the person who
appeared before me, and said individual acknowledged that he signed this instrument
as the Manager of The Missing Links LLC, the Manager of Marquee on Meeker LLC
and acknowledged it to be his free and voluntary act for the uses and purposes
mentioned in the instrument.
Given under my hand and official seal this day of 2018.
[Print Name]
NOTARY PUBLIC in and for the state
of , residing in
My appointment expires
a
STATE OF WASHINGTON)
COUNTY OF KING
I certify that I know or have satisfactory evidence that Dana Ralph is the person who
appeared before me, and said individual acknowledged that she signed this instrument
as Mayor and acknowledged it to be her free and voluntary act of the City of Kent for
the uses and purposes mentioned in the instrument.
Given under my hand and official seal this_day of 2018,
[Print Name]
NOTARY PUBLIC in and for the state
of Washington, residing in
My appointment expires
STATE OF WASHINGTON)
COUNTY OF KING
I certify that I know or have satisfactory evidence that Brett Jacobsen is the person who
appeared before me, and said individual acknowledged that he signed this instrument
as the Manager of The Missing Links LLC, the Manager of Marquee on Meeker LLC
and acknowledged it to be his free and voluntary act for the uses and purposes
mentioned in the instrument.
Given under my hand and official seal this 04 day of �km'vc�- , 2018.
JGP AP'L
[Print Name]
z = NOTARY PUBLIC in and for the state
0
Of\Ucow--Vqz�y�-
residing in SedeoA.
My appointment expires— k/2Ag I-L-o
-3-
529776171
Exhibit A
Legal Description of Property
LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED
UNDER RECORDING NO. 20180321900004, IN KING COUNTY, WASHINGTON.
Exhibit A
52977617.1
First.Americ rr 7Ydelrastrrxace Coinp n),
TVa tio-m a.l C6.,rn rae rci al Services
818 Stewart Sheet,Suite 800,Seattle,WA 98101
Offico« hone:(206)728-0400 Office r=ax:(206)448-6248
Sell r'5 E"stlraa ated Settlement tiaraterracrrt
Pile No. f4CS-839539-WA1
Escrow Officer; Laura Lau/11
Estimated Settlement Cate: 04/02/2018
Disbursement fate.
Property.
Lots 1-2, Kent SP No. SP-20117-1, (Phase 1), Kent,WA
Buyer:
Marquee on Meeker LL
c/o Landmark Development Group,2711 West Valley Hwy N.
ste 200,Auburn, WA 98001
Salter.
City of Kent, a Municipal corporation
220 Fourth Avenue South, Kent, WA 98032
L7escrilation Seller Charge Seller Credit
Consideration
..
TotaP Consideration 6,148,3"�1.46
Proratlons
cYai C17prci ?w2dt t St➢1 1 01 04/02118 to 07101118 2�qq Vyr 73�t9
ommission
3rciker Jranes Lan L Salle
I l stag ornnlissierr 122,126 83
TftPei �rzawa Cl arc. _w_._.
_w. .
t foslncd E e m pan h50/50$ ,700.narc ales Tax: 2.be,0 _m. .,_..m. _. _ _ ..__..,
87r to First American Titles 1„48F.35
urance to .yw Nal Services
�006� Owner's$7 �950 Sales Tax.8802.95 Nr7 First AmericanTitte 8,752..95
Insurarnc� .... _
Cernmercr�ui Ser r�cos
Polley-Standard ALTA 2006 Owner's-Se8errsnpolicy`590.00 Sales Tax $59 59 to First 649.59
Arnerdcan Title Insurance
�stl roto�i!)ta wYr�ia�ntary T oTpan y National ernmerca Services
r nstcrTay L r eill
.... __ ._,.,..,..m..,..
10.00
isbursernents Paid
Property Tax Check
1st half 2098dSlaacYxrf9harges/2,322,04 9011 01 to Klrj Ceur7ty Treasurer 149.03
Cash(X To)( From)Seller 6,012,440.20
Totals 6,146,4 14.95 8,146,.414.95
Settlernent Staternerjt Page 1 of 2
Print Date:03/2912018, 153 PIVI
Seller's Estimated Settlement Statement
Settlement Date: File No: NCS-839539-WAI
Officer: Laura Lau/II
PLEASE NOTE: A modification of money-transfer or disbursement Instructions can be a red flag for Online Banking Fraud and
could be a trap for the unwary. Should we knowingly receive such a modification,In the interest of prudence,we may consider
it suspect and call a known and trusted phone number to verify its authenticity and accuracy. Your awareness and
cooperation in taking appropriate steps to prevent fraud Is greatly appreciated.
Notice—This Estimated Settlement Statement Is subject to changes,corrections or additions at the time of final computation of
Escrow Settlement Statement.
See Attached Signatures
Settlement Statement Page 2 of 2
Print Date:03/29/2018.3:53 PM
Sellet•'s Estim aced Settlement Statement
Settlement Date: File No: NCS-839639-VWAl
Officer: Laura Lau/fl
SELLFR(S):
City of Kent, a Municipal corporation of the
State of Washington
BY:
Narlie: Gana Ralph
Title: Mayor
&gnature rage 1 of 1
'rant Late O W29J2c18,3:53 P
Instrument Number, 20180402000938 Document:EAS Rec:S82.00 Page-1 of 9
Record Date:4/2/2018 2.25 PM
Electronically Recorded King County,WA EXCISE TAX NOT REQUIRED BY KAREN GREAGOR,DEPUTY
Recorded at the Request of and
after Recording Return to:
City of Kent
c/o Public Works Department
220 Fourth Avenue South ORIGINAL
Kent, WA 98032 Electronically Recorded
I ST AMA)
AA,57- 9.�FS_3-7_
Document Title: GRANT OF EASEMENT FOR PUBLIC PEDESTRIAN TRAIL
GrajitoT/Declarant: MARQUEE ON MEEKER LLC, a Washington limited liability
company
Grantee: CITY OF KENT,a Washington municipal corporation
Legal Description: Abbreviated Legal Description: Lots 1-2, Kent SP No. SP-2017-1,
Rec,20180321900004
Official legal description on Exhibit A attached
Assessor's Tax Portion of 232204-9011-01
Parcel ID#:
Rcfci-cncc 4 N/A
(if applicable):
GRANT OF EASEMENT
FOR PUBLIC PEDESTRIAN TRAIL
Marquee on Meeker 11C, a Washington limited liability company ("Owner"), is
owner of the real property described in Exhibit A attached hereto and incorporated herein by
this reference(the"Property"),
2841/08603/N/18
public Irdl casment 0
ireaffLU'Riverknd Joint VaiturcThase I Closing Dos
Owner acquired the Property from the City of Kent, a Washington municipal
corporation ("City") pursuant to the terms and conditions of that certain Real Estate Purchase
and Sale Agreement with Lease/Option to Purchase dated as of May 5, 2017 (the "Purchase
Agreement"). As a condition of the Purchase Agreement, Owner and City entered into that
certain Development Agreement dated as of August 23, 2017 (the "Development
Agreement") for the purpose of governing the design, development, permitting, mitigation of
environmental impacts and uses associated with development of a mixed-use retail/multi-
family residential community on the Property to be known as the Riverbend Gateway Project
(herein the"Project").
As a requirement of the Development Agreement, and in particular Section 16 thereof,
Owner and City have agreed that the Project shall provide for a public pedestrian and non
motorized vehicle trail easement over and across the Property for the benefit and use of the
members of the general public for public access from Meeker Street to the Green River Trail.
Accordingly, Owner hereby grants, dedicates and quit claims to City, as a perpetual
covenant running with the land, a nonexclusive public pedestrian and non-motorized vehicle
use and access easement for the purposes and subject to the conditions hereinafter mentioned,
over and across the Property, initially in the location and configuration as depicted in the
survey attached hereto as Exhibit B and incorporated herein by this reference (herein the
"Trail Easement"), and City hereby accepts such grant on the terms and conditions set forth
herein.
l. P_ umose. The Trail Easement is granted for the purpose of providing the public
with pedestrian and non-motorized vehicle access and entry for the use and enjoyment of the
Green River Trail connection within the Project and for no other use. Owner shall be
responsible far all costs of permitting, design and construction of the Trail Easement and any
improvements or amenities associated therewith (e.g. signage) as may be required by the City,
including but not limited to compliance with ADA (Americans with Disabilities Act)
guidelines and requirements for outdoor trails_
2. Owner's Use of Trail Easement. Owner and its assignees, lessees, tenants and
invitees shall have the right to use of the Trail Easement consistent with the rights of the
public use as described herein and for any other purpose not inconsistent with the rights
granted herein. Use of the Trail Easement may be closed to the public from time to time on a
temporary basis for the purpose of construction, repairs and/or maintenance of the Trail
Easement. Owner may impose reasonable controls on uses of such portion of the Trail
Easement that are likely to have an adverse effect on the Project occupants/tenants reasonable
enjoyment and use of the Project, so long as such controls are consistent with City policies
and guidelines for public trail use or as otherwise approved or in effect by the City.
2941/086 03/28/18 -2. public trail easement Q
treadIlAURirrerhend Joint Venturc\Phase I Closing(lots
3. Maintenance. Owner shall at all times and at its sole cost and expense
maintain the Trail Easement area and improvements lying within in good repair and
condition.
4. Modification. The alignment of any portion of the Trail Easement and the
easement rights granted herein pertaining to such portion may be modified by mutual
agreement of Owner and the City if the Project development for the Property, or if the
location of the Trail Easement improvements, once constructed in accordance with City-
approved plans, is altered such that an alternate location within the Property would be more
desirable for location of the Trail Easement. In such event the parties shall execute and
record an amendment to this Trail Easement terminating the present alignment and providing
for the new alignment of the Trail Easement.
5. Liability. Pursuant to the provisions of RCW 4.24.200 and 4.24.210, neither
Owner nor any of its affiliates, officers, agents, representatives or employees, shall be
responsible for or held liable for unintentional injury or damage to persons or property arising
from or occurring as a result of public use of the Trail Easement as provided for in RCW
4.24.200 and 4.24.210.
6. Successors and AssiNs. The terms and provisions of this Grant of Easement
shall be binding upon and inure to the benefit of the successors and assigns of the parties
hereto. By recordation of this dedication, easement, and agreement, to the maximum extent
allowed by law, this agreement shall encumber the Property as an easement and dedication to
the general public for the public trail uses set forth herein.
7. Record Notice. This Grant of Easement shall be recorded with the King
County Department of Records and Elections.
8. Time of Essence. Owner agrees that time is of the essence,and City shall have
non-exclusive standing to enforce the provisions of this dedication, easement,and agreement.
2941/086 03/28/18 -3- public trail easement v3
trcad\HAL\Riverbcnd Joint VenturePhasc:I Closing Docs
DATED this-24day of April, 2018.
GRANTOR: MARQUEE ON MEEKER LLC, a
Washington limited liability company
By: iss' inks LLC, its manager
Brett Ja bsen, Manager
GRANTEE: CITY OF KENT,
a Washington municipal corporation
Dana Ralph, Mayor
2841/086 03/28/18 -4. public trail casement v3
trea&HALlRivcrbend Joint VentureThasc I Closing Docs
DATED this.7-A4 day of April,2018.
GRANTOR: MARQUEE ON MEEKER LLC, a
Washington limited liability company
By: The Missing Links LLC, its manager
Brett Jacobsen,, Manager
GRANTEE: CITY OF KENT,
a Washington municipal co oration
Dz:
Dana Ralph, Mayor
2841/086 03/28/18 -4- public trail casement v3
tread\HAL\Riverbend Joint Venture%Phasc I Closing Does
STATE 01, WASHINC31"ON
COUNTY OF
I certify that I know or have satisfactory evidence that Brett Jacobsen is tare person
who appeared Before nee, and said person acknowledged that said person signed this
instrument, on oath stated that said person was authorized to eXecrrte the instrument and
acknowledged it as the Manager of The Missing Links LLC;, manager of Marquee on Meeker
LLCM, a Washington limited liability company, to he the free and vohrntary act of such limited
liability company for the uses and purposes mentioned in the instrument.
N�,. ittitt atj r
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• '� � L`aig a rtaarc aat Nuunr}t
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�ttt mm Notary public In and for the state of Washington.
resid
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r es �
1AIµ OF WASHfNGTON
ss.
COUNTY OF
I certify that I know or have satisfactory evidence that liana Ralph, is the person who
appeared before me, and said person acknowledged that said person signed this instrument, on
oath stated that said person was authorized to eXeCLIte the instrument and acknowledged it as
the Ma-
yor of the CITY OF KENT. a Washington municipal corporation, to be the free and.
voluntary act of such, corporation for the uses and purposes mentioned in the instrument,
Dated tfrrs day of 2018.
4:4a�ne ltaz�aaf NaaR tr4'I
(tupilt) 11nm or stannatn NVatatie of NotaryV
Notary public in and for the state of Washington,
residing at
MY appointment expires
2841/086 03128/18 -;- public trail cawcntcnt 0
trC,t (rlr1l WPCiwcrlrc¢ro rtairrt Venturckl'ha,se I Closing flocs
-f- Z
STATE OF WASHINGTON
ss.
COUNTY OF
I certify that I know or have satisfactory evidence that Brett Jacobsen is the person
who appeared before me, and said person acknowledged that said person signed this
instrument, on oath stated that said person was authorized to execute the instrument and
acknowledged it as the Manager of The Missing Links LLC, manager of Marquee on Meeker
LLC,a Washington limited liability company, to be the free and voluntary act of such limited
liability company for the uses and purposes mentioned in the instrument.
Dated this day of 2018.
(Signature of Notary)
(Legibly Print or Stamp Name or Notary)
Notary public in and for the state of Washington,
residing at
My appointment expires
STATE OF WASHINGTON
COUNTY OF r-1 N tl SS.
I certify that I know or have satisfactory evidence that Dana Ralph, is the person who
appeared before me, and said person acknowledged that said person signed this instrument,on
oath stated that said person was authorized to execute the instrument and acknowledged it as
the Mayor of the CITY OF KENT, a Washington municipal corporation, to be the free and
voluntary act of such corporation for the uses and purposes mentioned in the instrument.
Dated this yI day of IMM C,�/l
2018,
W`SON A#A 49�t111 (Si-=
turcofNolary)
%V-, S ON AW So N MAgn M
(Legibly Print or Stamp Name of Notary)
0 4P Notary public in and for the state of Washington,
residing at VW1-0
U A uso ;F 0
A V1, ), *;F K My appointment expires lljqj,?f
//I,,lop WA'S't?��
2841/086 03128/18 -5 public trail casement v3
IrcadVIA[Alliverbend Joint VcmureTliasc 1 closing mcs
EXHIBIT A
Legal Description of Property
LOTS I AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1, RECORDED UNDER
RECORDING NO.20180321900004, IN KING COUNTY,WASHINGTON.
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2841/086 03/29118 public trail casement Y3
tread\HAL\RiveTbend Joint Ventureftase 1 Closing Does
EXHIBITB
Trail Easement
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BUYER'S CERTIFICATE
The undersigned ("Buyer") certifies to CITY OF KENT, a Washington municipal
corporation ("Seller"), that all of the representations and warranties of the undersigned contained
in Section 8.2 of the Real Estate Purchase and Sale Agreement with Lease/Option to Purchase
between the undersigned Buyer and Seller with respect to the real property located in the City of
Kent, and legally described in Exhibit A attached to hereto are true and correct in all material
respects as of the date hereof.
MARQUEE ON MEEKER LLC. a
Washingto limited liability company
By: �T—the M i Link LLC, its manager
Brett Jac bsen, Manager
Date Signed: 2018
Place Signed: Sc-L4 ffb , WA
2941/086 03/2811 8 buyer closing certificate v3
treadMAL\Riverbend Joint ventureThase I Closing Docs
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Exhibit A y
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LOTS 1 AND 2 OF CITY OF KENT SHORT PLAT N0. SP-2017-1, RECORDED UNDER
RECORDING NO.20180321900004,IN KING COUNTY,WASHINGTON. i
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3 2941/086 0328/18 -2- buyer closing certificate v3
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SELLER'S CERTIFICATE
The undersigned ("Seller") certifies to MARQUEE ON MEEKER LLC, a Washington
limited liability company ("Buyer"), that all of the representations and warranties of the
undersigned contained in Section 8.1 of the Real Estate Purchase and Sale Agreement with
Lease/Option to Purchase between the undersigned Seller and Buyer with respect to the real
property located in the City of Kent, and legally described in Exhibit A attached to hereto are
true and correct in all material respects as of the date hereof.
CITY OF KENT,a Washington
municipal corporation
Dana Ralph, Mayor
Date Signed: 2 2018
Place Signed: WA
2841/086 03128/18 sel ler closine certificate A
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Exhibit A
Legal Description
jLOTS 1 AND 2 OF CITY OF KENT SHORT PLAT NO. SP-2017-1,RECORDED UNDER
RECORDING NO.20180321900004, IN KING COUNTY, WASHINGTON.
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2841/086 03/28/18 -2- seller closing certificate v3
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REAL ESTATE PROPERTY TAX ACKNOWLEDGMENT
PROPERTY ADDRESS: Lots 1.2, Kent SP No. SP-2017-1, Kent WA (Phase 11
TAX ACCOUNT NO.: 232204-9011-01
ESCROW NO.: 839539LL
We, the undersigned, hereby acknowledge that we(seller) are exempt from paying property taxes
on the above captioned property and that the Surface Water Management is paid through
7/1/18.
The Seller is a political entity exempt from payment of real estate taxes.
Upon close of escrow, the local taxing authority will prorate the taxes as of the date of transfer,all
taxes due and owing after that date will be the buyer's responsibility. Any amounts owing must
be paid in full up to and including the date of transfer. If applicable, any amount paid in advance
will be refunded to the seller after closing by the local taxing authority provided the prorated
amount is reasonable and the cost to issue a check for refund of amounts paid in advance does
not exceed the prorated amount. Refunds can take up to 18 months for processing.
We further acknowledge that we understand First American Title Insurance Company shall not be
responsible for payment or refund of any property taxes due after closing.
Seller: City of Kent, a Municipal corporation of the State of Washington
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Buyer:
Marquee on Meeker LLC
By:The Missing Links LLC. its Manager
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DATE
Its:
REAL ESTATE PROPERTY TAX ACKNOWLEDGMENT
PROPERTY ADDRESS: Lots 1-2, Kent SP No. SP-2017-1, Kent WA (Phase 1)
TAX ACCOUNT NO.: 232204-901 1-01
ESCROW NO.: 839539LL
We, the undersigned, hereby acknowledge that we(seller) are exempt from paying property taxes
on the above captioned property and that the Surface Water Management is paid through
7/l/18.
The Seller is a political entity exempt from payment of real estate taxes.
Upon close of escrow, the local taxing authority will prorate the taxes as of the date of transfer, all
taxes due and owing after that date will be the buyer's responsibility. Any amounts owing must
be paid in full up to and including the date of transfer. If applicable, any amount paid in advance
will be refunded to the seller after closing by the local taxing authority provided the prorated
amount is reasonable and the cost to issue a check for refund of amounts paid in advance does
not exceed the prorated amount. Refunds can take up to 18 months for processing.
We further acknowledge that we understand First American Title Insurance Company shall not be
responsible for payment or refund of any property taxes due after closing.
Seller: City of Kent,a Municipal corporation of the State of Washington
By:
DATE
Its:
Buyer:
Marquee on Meeker LLC
By: issirl�IS
LLC, its Manager
By:11
DATE
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