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PK18-260 - Original - YMCA - Morrill Meadows-Development - 06/29/2018
KENT Records Management Document CONTRACT COVER SHEET _110011 , This is to be completed by the Contract Manager prior to submission to the City Clerk's Office. All portions are to be completed. If you have questions, please contact the City Clerk's Office at 253-856-5725. ❑ Blue/Motion Sheet Attached ® Pink Sheet Attached Vendor Name: The Young Men's Christian Association of Greater Seattle Vendor Number (JDE): Contract Number (City Clerk): Category: --hoose an item. Development Agreement Sub-Category (if applicable): _'hoose an item. Project Name: YMCA at Morrill Meadows Contract Execution Date: 6/29/18 Termination Date: N/A Contract Manager: Julie Parascondola Department: Parks Contract Amount: N/A Approval Authority: ❑ Director ❑ Mayor ® City Council Other Details: DEVELOPMENT AGREEMENT Between THE CITY OF KENT, WASHINGTON ("City") and THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER SEATTLE a Washington public benefit corporation ("Developer") Kent YMCA Project Dated as of June 29, 2018 Development Agreement Table of Contents 1. Definitions........................................................................................................................... 1 1.1. Architect.........................................................................................................................2 1.2. City.................................................................................................................................2 1.3. City-Caused Delay......................................................................................................... 2 1.4. City Land........................................................................................................................2 1.5. Community Benefits....................................................................................................... 2 1.6. Construction Contracts................................................................................................... 2 1.7. Conveyance Agreement .................................................................................................2 1.8. Costs Resulting from City-Caused Delay...................................................................... 3 1.9. CPI.................................................................................................................................. 3 1.10. Design Development Drawings...................................................................................... 3 1.11. Detailed Specifications................................................................................................... 3 1.12. Developer....................................................................................................................... 3 1.13. Developer Obligation Date............................................................................................. 3 1.14. Environmental Laws....................................................................................................... 3 1.15. Existing Hazardous Substances.......................................................................................3 1.16. Existing Hazardous Substances Costs.............................................................................3 1.17. Final Acceptance............................................................................................................ 3 1.18. Frontage Improvements..................................................................................................4 1.19. General Construction Contract.......................................................................................4 1.20. General Contractor.........................................................................................................4 1.21. Ground Lease Improvements.........................................................................................4 1.22. Hazardous Substances....................................................................................................4 1.23. Initial Occupancy Date...................................................................................................4 1.24. Kent YMCA................................................................................................................... 5 1.25. Kent YMCA Operating Agreement ...............................................................................5 1.26. Kent YMCA Project....................................................................................................... 5 1.27. Kent YMCA Land.......................................................................................................... 5 1.28. Laws ...............................................................................................................................5 1.29. Permits............................................................................................................................5 1.30. Permitted Use................................................................................................................. 5 1.31. Preliminary Plans and Outline Specifications................................................................ 5 1.32. Project.............................................................................................................................5 1.33. Project Budget................................................................................................................ 5 1.34. Project Contingency....................................................................................................... 6 1.35. Project Costs...................................................................................................................6 1.36. Project Land ................................................................................................................... 6 1.37. Project Lease.................................................................................................................. 6 1.38. Project Schedule............................................................................................................. 6 1.39. Punch List....................................................................................................................... 6 1.40. Significant Unexpected Underground Conditions ......................................................... 6 1.41. Requirements of Law ..................................................................................................... 6 1.42. Unavoidable Delays ....................................................................................................... 7 -i- ND: 20274.002 4841-9518-4649v24 1.43. Warranty Period ............................................................................................................. 7 2. Development of the Project................................................................................................ 7 (a) Develop Responsibility.................................................................................................. 7 (b) Community Benefits....................................................................................................... 7 (c) Diligent Efforts; Relationship of the Parties ..................................................................9 (d) Mutual Cooperation....................................................................................................... 9 (e) Term............................................................................................................................ 10 (f) Significant Unexpected Underground Conditions ...................................................... 10 3. Project Financing; Federal New Market Tax Credits....................................................... 10 4. Project Design/Preconstruction Phase.............................................................................. 1 1 (a) City Review................................................................................................................. 1 1 (b) Resubmittals................................................................................................................. 11 (c) Permit and Construction Documents............................................................................ 11 5. Construction Management Services ................................................................................. 12 (a) Construction Contracts................................................................................................. 12 (b) Review of Work........................................................................................................... 12 (c) Ground Lease Improvements; City Approval.............................................................. 12 (d) Progress Reports........................................................................................................... 12 (e) Coordination of Work .................................................................................................. 12 6. Permits.............................................................................................................................. 12 (a) Responsibility for Obtaining Permits........................................................................... 12 (b) Costs............................................................................................................................. 13 (c) Schedule and Delays .................................................................................................... 13 7. Construction...................................................................................................................... 13 (a) Commencement of Construction.................................................................................. 13 (b) Delays........................................................................................................................... 13 (c) Construction Contracts................................................................................................. 15 (d) Protection of Persons and Property.............................................................................. 15 (e) Insurance During Construction .................................................................................... 16 (f) Use of Project Contingency.......................................................................................... 16 (g) Warranties .................................................................................................................... 16 (h) Correction of Work ...................................................................................................... 17 (i) Developer Default........................................................................................................ 17 8. Changes to the Work......................................................................................................... 17 (a) No Changes Without City Approval............................................................................ 17 (b) Developer Approved Changes in the Work ................................................................ 17 (c) Review and Inspection................................................................................................. 17 9. Other Services by Developer............................................................................................ 18 10. Completion of the Project................................................................................................. 18 (a) Final Acceptance.......................................................................................................... 18 11. Developer Representations; Warranties............................................................................ 19 12. Indemnification.................................................................................................................20 13. Representatives.................................................................................................................21 (a) Developer Representatives........................................................................................... 21 H (b) City Representative...................................................................................................... 21 (c) Change in Representative............................................................................................. 21 14. Accounting, Inspection and Audit.................................................................................... 21 (a) Accounts....................................................................................................................... 21 (b) Inspection and Audit .................................................................................................... 21 (c) Preservation of Records................................................................................................ 21 15. Damage and Destructionl Condemnation.......................................................................... 21 (a) Damage and Destruction.............................................................................................. 21 (b) Condemnation .............................................................................................................. 22 16. Payment of Taxes and Assessments ................................................................................. 22 (a) Real Property Taxes .................................................................................................... 22 (b) Other State and Local Taxes ......................................................................................... 22 17. Default................................................................................................................................ 22 (a) Developer Default........................................................................................................ 22 (b) City Remedies upon Developer Event of Default........................................................ 23 (c) City Default.................................................................................................................. 24 (d) Developer Remedies upon City Event of Default........................................................ 24 (e) Remedies Not Exclusive .............................................................................................. 24 18. Disputes.............................................................................................................................24 19. Modifications....................................................................................................................25 20. Miscellaneous ...................................................................................................................25 (a) Waiver..........................................................................................................................25 (b) Neutral Authorship....................................................................................................... 25 (c) Severability...................................................................................................................25 (d) Relationship of Parties.................................................................................................. 25 (e) Reasonableness............................................................................................................. 26 (f) No Third Party Rights.................................................................................................. 26 (g) Assignment; Encumbrance or Pledge...........................................................................26 (h) Notices..........................................................................................................................26 (i) Entire Agreement ......................................................................................................... 27 0) Time is of the Essence.................................................................................................. 27 (k) Employees of Developer.............................................................................................. 27 (1) Exhibits.........................................................................................................................27 (m) Governing Law; Venue................................................................................................ 27 Exhibits: A Legal Description of Morrill Meadows and East Hill Park Land B Legal Description of Kent YMCA Land C Legal Description of City Land D Project Budget E Schedule of Preliminary Plans and Specifications F Project Schedule G Required Insurance iii DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") dated as of June 29, 2018, is by and between THE CITY OF KENT, a Washington municipal corporation ("City"), and THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER SEATTLE, a Washington public benefit corporation ("Developer"). RECITALS A. The City is the owner of the real estate known as the Morrill Meadows and East Hill Parks, described on Exhibit A and located in the City of Kent, King County, Washington. B. The City has completed a boundary line adjustment to create a parcel (the "Kent YMCA Land") within a portion of the City's Morrill Meadows and East Hill Parks, more specifically described in Exhibit B, to be conveyed pursuant to the "Quit Claim Deed with Grantee Covenants, Releases and Indemnity,"dated June 29, 2018 ("Conveyance Agreement") on which the City, in consideration for conveying the Kent YMCA Land to Developer, desires that the Developer, at its cost, construct a multi-purpose community facility including, among other things, a gymnasium, community meeting rooms, and a six-lane, twenty-five yard swimming pool, all pursuant to the Preliminary Plans and Outline Specifications (the"Kent YMCA Project"), and provide the community benefits described in this Agreement. C. The City is the lessor under that certain Ground Lease dated June 29, 2018 ("Ground Lease"), pursuant to which City leases that certain real property located in the City of Kent, King County, Washington("City Land") more specifically described in Exhibit C, attached. D. A Project Lease Agreement between the parties, dated this same date,provides for the construction on the City Land of parking for 250 vehicles, a storm drainage system, outdoor multi-use sport courts, lawn and dog park areas, and other park and site improvements, including additional frontage improvements beyond those otherwise required of Lessee as a condition of developing the Kent YMCA Land, also pursuant to the Preliminary Plans and Outline Specifications and pursuant to this Agreement ("Ground Lease Improvements"). E. The Developer will construct, or cause to be constructed, the Kent YMCA Project and the Ground Lease Improvements as a single construction project pursuant to this Agreement to achieve efficiencies in cost and time (the "Project"). NOW, THEREFORE, in order to fulfill the foregoing objectives, City and Developer desire to enter into this Agreement and proceed in accordance with its terms. 1. Definitions. The following terms used in this Agreement shall have the following meanings: 1 "Architect" collectively means the architects employed by the City for preliminary Project design and employed by the Developer for final Project design. The Developer's final design architect for the Project is Miller Hayashi Architects, LLC, supported by landscape architect MacLeod Reckord, PLLC, with civil architectural and engineering work for undergrounding and some street frontage, PACE Engineers, Inc. "City" means the City of Kent, Washington, a Washington municipal corporation, its successors and permitted assigns. "City-Caused Delay" means any period of delay in the overall progress of design, construction, and completion of the Project (not including any delay by the City of Kent acting in its capacity as permitting authority), that is caused by City-initiated change orders to the General Construction Contract after that Contract is executed, or the City's failure to approve, disapprove, decide,or otherwise respond to Developer with respect to a particular item under this Agreement or the General Construction Contract that requires a timely City response, or the City's failure to timely deliver plans, information, specifications, or other information within the time frames required under this Agreement or the General Construction Contract. "Any period of delay," as used in this definition, means a delay that impacts the Project's critical path, meaning that a material portion of the Project work could not continue because of the City-caused Delay. However, City-Caused Delay will not include delay to the extent caused by the existence of reasonable cause to suspect that construction of the Project or any other services provided by Developer have not been performed in accordance with the Construction Contracts and other requirements, in which case City-Caused Delay will not include the amount of additional time the City reasonably needed to determine whether construction or other services conform to all requirements, so long as the City proceeds with all reasonable diligence to make its determination. Nothing in this definition alters the parties' responsibilities and obligations established under Section 6.3, "Significant Unexpected Underground Conditions," of the Ground Lease. "City Land" means the real property leased to Developer under the Ground Lease and leased back to the City under the Project Lease (described in Exhibit C). "Community Benefits" means, in addition to creating approximately 150 local jobs, from entry-level part-time positions to full-time executive and management positions, and serving approximately 22,000 local residents annually with a variety of services, including housing, health and wellness, counseling, education, case management, child care, and sports programs, the specific Project enhancements and services required to be provided for the benefit of Kent residents under Section 2(b) of this Agreement. "Construction Contracts" means (i)the General Construction Contract and (ii) all other contracts for construction services entered into between Developer and any contractor, including General Contractor, for construction of any portion of the Project not covered by the General Construction Contract. "Conveyance Agreement" means the "Quit Claim Deed with Grantee Covenants, Releases and Indemnity" through which the City conveyed to Developer the Kent YMCA Land. 2 "Costs Resulting From City-Caused Delay" means the incremental increase in costs of constructing the Project resulting from City-Caused Delay. "CPF' means the Seattle-Tacoma-Bellevue Consumer Price Index for All Urban Consumers (CPI-U). "Design Development Drawings" means drawings that are a consistent development of the Schematic Drawings and further define and describe all important aspects of the Project. The Design Development Drawings will serve as the basis for the construction drawings. "Detailed Specifications" means all written detailed requirements for materials, equipment, construction systems, standards and workmanship for the construction of the Project. "Developer" means The Young Men's Christian Association of Greater Seattle, a Washington public benefit corporation, and its successors and permitted assigns. "Developer Obligation Date" means August 26, 2019, as may be extended to the extent of (i)Unavoidable Delays; (ii)City-Caused Delays; (iii) delays resulting from Significant Unexpected Underground Conditions; and(iv)permit-related delays as set forth in Section 6(c). "Environmental Laws" means, as amended from time to time, the Federal Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.,Federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., Federal Hazardous Materials Transportation Control Act, 42 U.S.C. Section 1801 et seq., Federal Clean Air Act, 42 U.S.C. Section 7401 et seq., Federal Water Pollution Control Act, Federal Water Act of 1977, 93 U.S.C. Section 1251 et seq., Federal Insecticide, Fungicide and Rodenticide Act, Federal Pesticide Act of 1978, 7 U.S.C. Section 136 et seq., Federal Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., Federal Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., Washington Water Pollution Control Act, RCW Chapter 90.48, Washington Clean Air Act, RCW Chapter 70.94, Washington Solid Waste Management Recovery and Recycling Act, RCW Chapter 70.95, Washington Hazardous Waste Management Act, RCW Chapter 70.105, Washington Hazardous Waste Fees Act, RCW Chapter 70.95E, Washington Model Toxics Control Act, RCW Chapter 70.105D, Washington Nuclear Energy and Radiation Act, RCW Chapter 70.98, Washington Radioactive Waste Storage and Transportation Act of 1980, RCW Chapter 70.99, Washington Underground Petroleum Storage Tanks Act, RCW Chapter 70.148. "Existing Hazardous Substances" means any Hazardous Substances existing on, in or under the Project Land, structures on the Project Land or the soil and groundwater under the Project Land, excluding any Hazardous Substances which may have been brought on site by Developer or contractor(s)during construction. "Existing Hazardous Substances Costs" means any and all costs of every type and description relating to Existing Hazardous Substances, including without limitation, costs included in the Project Costs for remediation of Existing Hazardous Substances. "Final Acceptance" means the City's written approval and concurrence that certain events, more fully defined in Section 10 of this Agreement, have occurred. 3 "Frontage Improvements" means those improvements to 248th Street to improve a portion of that street in the vicinity of the Project, under City of Kent regulatory requirements, including sidewalk improvements, undergrounding of utilities, street lighting, signage, striping and lane markings, and other required street improvements. "General Construction Contract" means the agreement between Developer and the General Contractor for construction of the Project. "General Contractor" means J.R. Abbott Construction, Inc., a Washington corporation. "Ground Lease Improvements" means the design and construction of parking for 250 vehicles, a storm drainage system, outdoor multi-use sport courts, lawn and dog park areas, and other park and site improvements, including additional Frontage Improvements beyond those otherwise required of Lessee as a condition of developing the Kent YMCA Land, to be completed pursuant to this Agreement. "Hazardous Substances" means any material, waste, substance, industrial waste, toxic waste, chemical contaminant, petroleum, asbestos, polychlorinated biphenyls, radioactive materials or other substances regulated or classified by Environmental Laws as hazardous, toxic or lethal to persons or property. "Initial Occupancy Date" means the date upon which each of the following events shall have occurred such that the Developer may begin its occupancy of the Kent YMCA, the City may begin its occupancy of the Ground Lease Improvements, and the City may begin receiving the Community Benefits: (a) General Contractor shall have notified Developer in writing that the Project is ready for occupancy, in accordance with the Construction Contracts, subject only to the completion of normal Punch List items (except that City and Developer may mutually agree to delayed completion of Frontage Improvements after the Initial Occupancy Date); (b) The City of Kent shall have issued a Certificate of Occupancy such that Developer and the City are permitted to and could, pursuant to such issued Certificate of Occupancy, physically occupy the Kent YMCA (in the case of the Developer) and the Ground Lease Improvements (in the case of the City) for Permitted Uses (if Frontage Improvements are not completed by the Initial Occupancy Date, a Temporary Certificate of Occupancy for the rest of the Project will suffice); (c) General Contractor (and to the extent required by City, any subcontractors) shall have issued, with respect to the Project, its partial and/or conditional release of lien for work performed prior to the date of the Initial Occupancy Date in a form satisfactory to Developer, with City concurrence(except as may apply to Frontage Improvements); and (d) Developer, with City concurrence that will not be unreasonably delayed, shall have accepted the Kent YMCA as ready for occupancy, and City shall have accepted the Ground Lease Improvements as ready for occupancy, subject to completion of the Punch List items and any remaining Frontage Improvements the parties agreed could be performed at a later date. 4 "Kent YMCA" means the community center facility to be constructed on the Kent YMCA Land. The Kent YMCA will contain a multi-purpose community facility including, among other things, a gymnasium, community meeting rooms, and a six-lane, twenty-five yard swimming pool, as more fully described in the Preliminary Plans and Outline Specifications, and includes all HVAC, electrical and other building systems. "Kent YMCA Operating Agreement" means the fifty year Kent YMCA Operating Agreement, dated June 26, 2018, between City (as City under the Kent YMCA Operating Agreement) and the Developer(as YMCA under the Kent YMCA Operating Agreement) for the cooperative operation and maintenance of the Kent YMCA and the Ground Lease Improvements. "Kent YMCA Project" means the project to design and construct the Kent YMCA. "Kent YMCA Land" means the real property and improvements described on Exhibit B. "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 agency or authority having jurisdiction over the parties or the Project, or both, in effect at the time of execution of this Agreement, including without limitation, any regulation or order of a quasi-official entity or body (e.g., board of fire examiners or public utilities) and all rules, laws and regulations issued thereunder, as the same may be amended from time to time. "Permits" means all land use approvals,permits and approvals required for construction of the Project include on site and off site permits required by any agency with jurisdiction over the Project. "Permitted Use" means the intended use of the Kent YMCA Project by Developer as a community center and the Ground Lease Improvements by the City for any lawful use. "Preliminary Plans and Outline Specifications" are the Project plans and associated specifications (i.e., Grade and Fill Plans as last submitted for permit review on May 8, 2018, Civil Construction Plans as last submitted for permit review on March 20, 2018, and Building Plans as last submitted for permit review on May 14, 2018). A list of Project plan submittals is attached as EXHIBIT E and these plans and associated specifications are incorporated in this Agreement by this reference. "Project" means the total design and construction, including demolition of existing improvements on the Project Land, all professional design services, and all labor, materials and equipment used or incorporated in such design and construction of the Project. The Project shall include work consistent with and reasonably inferable from the approved Preliminary Plans and Outline Specifications as necessary to produce the intended results. "Project Budget" means the budget for the Project attached to this Agreement as EXHIBIT D, as revised from time to time in accordance with this Agreement. 5 "Project Contingency" means the contingency by that name set forth in the Project Budget. "Project Costs" means all costs for the completion of the development, design, permitting and construction of the Project, including without limitation, all demolition costs, all site work, including Frontage Improvements, utility relocation and installation of utilities as required to serve the Project, all permit fees, all costs of the Kent YMCA Project, the Ground Lease Improvements, HVAC, electrical and other building systems, all costs of fixtures, furnishing and equipment described in the Construction Contracts, all costs of architectural services provided by the Architect under the Architect's Agreement, all other professional design and other services provided by contractors or other professionals engaged by the Developer or the General Contractor, all amounts paid to General Contractor under the General Construction Contract including all labor, material, and equipment used or incorporated in such design and construction, all amounts paid to other contractors and subcontractors, if any, under any other Construction Contract or subcontract entered into by Developer in connection with the Project, including all labor, material, equipment used or incorporated in such design and construction, services provided by engineers, environmental consultants, surveyors and other professionals and consultants retained by Developer in connection with the Project, insurance, bonds, real estate brokerage and leasing commissions, if any, art work approved by City under any City of Kent public arts policy or program, applicable state and local retail sales, and business and occupation and other taxes. "Project Land" means, together, the real property and improvements consisting of the Kent YMCA Land and the City Land, as more particularly described on Exhibits B and C. "Project Lease" means the twenty year Project Lease Agreement, dated June 29, 2018, between City (as tenant under the Project Lease) and the Developer (as landlord under the Project Lease)for occupancy of the City Land. "Project Schedule" means the schedule for development and construction of the Project as set forth on EXHIBIT F to this Agreement, as revised from time to time in accordance with this Agreement, provided, however, that in no event shall the Project Schedule provide for the Initial Occupancy Date to occur later than the Developer Obligation Date without written concurrence of City under this Agreement and the City as tenant in accordance with the Project Lease. "Punch List" means a list of items required to be completed prior to Final Acceptance that are minor items which do not affect the parties' ability to use the applicable portion of the Project for the Permitted Use. "Significant Unexpected Underground Conditions" means unexpected underground conditions (such as discovery of archeologically significant materials, Existing Hazardous Substances not reflected in City's soil studies, or other unexpected underground conditions) that cause the total Project Budget to increase by more than ten percent or delay the Project Schedule by more than six months. "Requirements of Law" means all requirements relating to land and building construction (including those specifically applicable to parties' contemplated use of the Project 6 for the Permitted Use, including, without limitation, planning, zoning, subdivision, 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 the foregoing and other applicable statutes, rules, orders, regulations, laws, ordinances, and covenants, conditions and restrictions, which now apply to and/or affect the design, construction, existence, intended use, operation and/or occupancy of the Project Land or any part of the Project Land. "Unavoidable Delays" means any delay in the performance by Developer or the General Contractor of its obligations with respect to construction of the Project caused by strikes (other than those directly caused by Developer's acts, omissions or failure to negotiate in good faith), acts of God, force majeure, unusually severe weather conditions, unavoidable casualties, acts of the public enemy, acts of terrorists, governmental embargo restrictions, or causes beyond the reasonable control of Developer or the General Contractor, which, after the exercise of due diligence to mitigate the effects thereof, delay construction of the Project. Unavoidable Delays will entitle Developer to an extension of the Developer Obligation Date but will in no way entitle Developer to compensation from the City. Nothing contained in this Agreement shall prevent Developer from allocating the Project Contingency to increased costs of constructing the Project caused by Unavoidable Delays. "Warranty Period" shall mean (i) as to the General Contractor's warranty pursuant to Section 7(h) below that period commencing on the Initial Occupancy Date and expiring one (1) year thereafter and (ii) as to manufacturer warranties, that period commencing on the Initial Occupancy Date and expiring two (2) years thereafter unless otherwise specified in the Construction Contracts. However, if the parties agree to allow a later completion date for Frontage Improvements, the Warranty Period for those Frontage Improvements will start on the agreed date those Frontage Improvements are completed. 2. Development of the Project. (a) Developer Responsibility. In consideration for the conveyance of the Kent YMCA Land pursuant to the Conveyance Agreement and the City Land pursuant to the Ground Lease, Developer agrees to oversee and manage design, permitting, entitlement and construction phases of the Project in accordance with the terms and conditions of this Agreement. Developer agrees to perform development and construction management services, including but not limited to oversight and management of all design, entitlement, permitting and construction in connection with the Project, all in accordance with the terms and conditions of this Agreement. Developer warrants that it will achieve the Initial Occupancy Date on or before the Developer Obligation Date, constructed in a good and workmanlike manner and in substantial accordance with the Construction Contracts, free and clear of all liens. All Project Costs shall be paid by Developer. The City shall not be liable for payment of any portion of the Project Costs. (b) Community Benefits. In further consideration for the conveyance of the Kent YMCA Land pursuant to the Conveyance Agreement, and the City Land pursuant to the Ground Lease, the Developer shall provide the Community Benefits following Final Acceptance and thereafter as follows: 7 (i) Completing the Kent YMCA Project, at a cost of approximately Twenty-Eight Million dollars, and all Ground Lease Improvements, including additional Frontage Improvements beyond those otherwise required of Developer as a condition of developing the Kent YMCA Land, at a cost of approximately Eight Million Five Hundred Thousand dollars, at the Developer's sole cost and risk of liability, except for Significant Unexpected Underground Conditions and Costs Resulting From City-Caused Delay. (ii) Constructing a larger aquatics center than the Developer normally would build in a facility of this size so that the Kent YMCA can absorb the uses of the aging Kent-Meridian Pool (the City will pay a portion of the cost of operating the Kent YMCA pool pursuant to the Kent YMCA Operating Agreement). (iii) Obtaining at least a Leadership in Energy and Environmental Design ("LEED") Silver certification from the U.S. Green Building Council for the Kent YMCA Project. (iv) Operating the Kent YMCA for a term of fifty years, at Developer's sole cost except as expressly set forth in the Kent YMCA Operating Agreement, providing increased health and recreation services in the community and providing an indoor, year-round aquatics facility to help meet the community's aquatics needs, including water safety, aquatic fitness activities, therapeutic aquatics programs, high school swim teams, recreational swimming, and job training in aquatics-related careers. (v) Providing (and reporting at least annually to the City) the following financial assistance, free passes and free or reduced fee public and City access to the Kent YMCA for a period of at least fifty years: (A) At least $1 million annually (adjusted annually based on CPI) in financial assistance provided by Developer to low- and moderate-income Kent residents, to ensure membership access to the Kent YMCA regardless of household income level. (B) At least $14,000 annually (adjusted annually based on CPI) in financial assistance provided by Developer to low- and moderate-income Kent residents, for swim lessons to ensure access regardless of household income level. (C) Free passes valued at an amount equal to at least $100,000 annually to encourage Kent residents to find new ways to exercise and engage in healthy lifestyle behaviors. The minimum value of $100,000 per year (adjusted annually based on CPI) is calculated based on the rate Developer charges for an adult member guest, which at signing was $17 per day. These free passes will be provided by the Developer through a targeted mailing to households within the City who are, at the time of mailing, under represented in the Developer's business plan. Developer will report annually to the City the number, redemption value, and under represented households targeted with that year's free pass mailings. (D) Access to the Kent YMCA pools through City of Kent Parks and Recreation Department programs at no cost to the City(e.g., adaptive swim, day camp swim sessions, etc.), with a value calculated based on 10 participants of at least$18,000 annually (adjusted annually based on CPI). 8 (E) Free/reduced cost community swims hosted at least twice a month, at hours accessible and convenient for the public, with a value of at least $14,000 annually,(adjusted annually based on CPI). . (F) City access to the community resources in the community wing (e.g. community meeting rooms, etc.) of the Kent YMCA and (depending upon availability), no less than eight (8) hours per month, City use of the community meeting room at no cost, with a value of at least$1,900 annually (adjusted annually based on CPI). (vi) Constructing and operating indoor restrooms that will be available to park users for no charge during Kent YMCA operating hours. (vii) Providing no-cost or highly subsidized social services that provide true value to Kent residents such as: (A) school-based enrichment programs for low-income students; (B) licensed mental health counseling ; (C) licensed drug& alcohol treatment; (D) student feeding programs; (E) school-aged childcare programs at reduced rates for low- income families; (F) young adult violence prevention programs (gang prevention); (G) community health programs; and (H) chronic disease prevention programs (diabetes, childhood obesity, etc.). (c) Diligent Efforts; Relationship of the Parties. Developer accepts the relationship of trust and confidence established with City by this Agreement and agrees that in providing the services set forth in this Agreement, Developer shall use its diligent efforts and shall furnish its skill and judgment and shall cooperate with, coordinate, manage, direct and oversee the General Contractor, Architect, all other contractors, all other engineers, design consultants, managers and other persons retained in connection with the design, permitting, development and construction of the Project so as to achieve Initial Occupancy Date on or before the Developer Obligation Date in an expeditious and economic manner consistent with the best interests of City, and otherwise in a good and workmanlike manner and in substantial accordance with the Construction Contracts, free and clear of all liens. (d) Mutual Cooperation. Developer and City shall fully and in good faith cooperate with each other to accomplish each of the activities provided in this Agreement, 9 including, without limitation, obtaining permits and third-party rights and approvals for the design,permitting, development and construction of the Project. (e) Term. The rights and obligations of the Developer and City under this Agreement shall commence on the date of execution of this Agreement and shall continue until the latest date on which Developer is required to provide Community Benefits under Section 2(b) (fifty years). (f) Significant Unexpected Underground Conditions. The Developer has reviewed and analyzed soil conditions, including geotechnical studies, on the Project Land to determine the existence (or not) of underground conditions or Hazardous Substances that could affect the Project Schedule and/or the Project Budget. Based on this review, Developer has determined that soil conditions on the Project Land are acceptable and has developed the Project Budget and Project Schedule. However, in the event of a Significant Unexpected Underground Conditions, the City will be solely responsible for the incremental increase in Project Costs caused by the Significant Unexpected Underground Conditions in excess of ten percent of the Project Budget. The City will either (1) pay the incremental increase in Project Costs caused by the Significant Unexpected Underground Conditions in excess of ten percent of the Project Budget by entering into a City-initiated change order or (2) agree to suspend, modify, or terminate the Project. The Developer will provide notice of any Significant Unexpected Underground Conditions as provided in Section 7(b). 3. Project Financing; Federal New Market Tax Credits. City would not have entered into the Conveyance Agreement, the Ground Lease or this Agreement but for the agreement by Developer to undertake, at Developer's sole cost and expense, the construction of the Project, including without limitation obtaining all financing for the Project and paying all Project Costs. Accordingly, with no part of the cost of construction of the Project becoming an obligation of the City, Developer shall diligently cause the Project to be designed, constructed and prosecuted to completion in a good and workmanlike manner and in accordance with the provisions of this Agreement, free and clear of all liens and otherwise in accordance with the requirements of this Agreement. The Developer intends to apply for federal New Market Tax Credits to provide up to Five Million dollars of funding for the Project. In the event that the Developer is successful in securing federal New Market Tax Credits in connection with the Project, the equity contribution of the tax credit investors shall be applied as mutually agreed by the Developer and City to pay Project costs or to add components to the Project, including any bid alternate items not accepted in the original bid award to General Contractor. If the Developer and City are not able to mutually agree on how to allocate the equity contribution to pay Project costs or to add components to the Project, then the equity contribution will be applied proportionately as follows: Developer share: 75% to be applied as directed by the Developer; City share 25% to be applied as directed by the City (for example to reduce its obligation to pay Monthly Rent under the Project Lease as set forth in the Project Lease). 10 4. Project Design/Preconstruction Phase. Developer and City will cooperatively work with the Architects to complete Project design, plans, and Detailed Specifications. The Developer's use of all Project designs and plans will be deemed acceptance and approval of those designs, plans, and Detailed Specifications. (a) City Review. City may, at its sole discretion, participate in any and all design meetings with Developer, Architect, and other design professionals as appropriate in the course of the development of the construction documents. The City will provide, or cause to be provided, final design and construction documents for the Ground Lease Improvements and the Frontage Improvements for Developer's acceptance. The Developer may reject or modify the final design and construction documents for the Ground Lease Improvements and the Frontage Improvements, in consultation with and agreement by the City, if the cost for the Ground Lease Improvements and the Frontage Improvements exceeds the target amounts outlined in the Project Budget. Upon Developer's acceptance, Developer will incorporate the Ground Lease Improvements and the Frontage Improvements into the Project Budget, Project Schedule and Preliminary Plans and Outline Specifications. Developer shall submit the final Project Budget, Project Schedule and all final construction drawings and Detailed Specifications to the City for its review and approval. City shall promptly review the final Project Budget, final Project Schedule and all final construction drawings and Detailed Specifications and shall give Developer written notice within seven (7) business days following its receipt of the Project Budget and/or construction drawings, Project Schedule and Detailed Specifications of its approval or disapproval thereof, specifying in the case of its disapproval, its reason therefore. City shall have the right to disapprove the final Project Budget, final Project Schedule or construction drawings and Detailed Specifications which (i)do not meet the Preliminary Plans and Outline Specifications, (ii)do not comply with Requirements of Law. If no objections or comments are received within such seven (7) business day period, then the submittals shall be deemed approved. (b) Resubmittals. If objections or comments are submitted in writing within the time frame and in accordance with the requirements set forth in the preceding Section, Developer shall cause the Architect to make changes in the construction drawings and/or Detailed Specifications consistent with reasonable objections or comments made by the City and shall resubmit the same to City in accordance with the foregoing schedule for further review. The process of resubmittal and review shall continue until the submittals have been approved by all the parties. There shall be no change to the final construction drawings and Detailed Specifications that have been approved by City except as set forth in Section 8 below. (c) Permit and Construction Documents. Developer shall cause the Architect and other design professionals to prepare construction documents as required for submittal of the building permit and other permit applications in accordance with Section 6, and as required for construction of the Project. 11 5. Construction Management Services. Developer shall provide all construction administration and construction management services necessary to cause the Initial Occupancy Date to occur on or before the Developer Obligation Date, all in a good and workmanlike manner and in substantial accordance with the Construction Contracts, including, without limitation,the following: (a) Construction Contracts. Developer shall administer all Construction Contracts for the Project. Developer shall notify and consult with City regarding any material breaches or defaults by any party to a Construction Contract relating to the Project. (b) Review of Work. Developer shall oversee the course of construction and shall conduct such inspections of the course of construction and testing of work to insure that the work of each contractor is being performed in substantial accordance with the requirements of the Construction Contracts in a good and workmanlike manner, free of defects and deficiencies in work, and free and clear of all liens. With respect to the Ground Lease Improvements and Frontage Improvements, Developer shall, with City concurrence, reject all work which does not conform to the requirements of the Construction Contracts and cause corrective action to be taken. (c) Ground Lease Improvements; CityApproval. With respect to the Ground Lease Improvements including the Frontage Improvements, Developer shall provide shop drawings, product data, samples and other submittals for City approval. The City must approve these submittals as soon as reasonably possible, but in not less than seven (7) calendar days, unless Developer and City agree to a different time period for review and approval. If the City does not approve any of these submittals, Developer may take up to seven (7) calendar days, unless the parties otherwise agree, to resubmit the disapproved submittal. If necessary, this submittal process will repeat until Developer obtains City's approval on the submittal. (d) Progress Reports. Developer shall record the progress of the Project. Developer shall cause the General Contractor to submit written monthly progress reports to City and Developer, including information on each Contractor and each Contractor's work, as well as the entire Project, showing percentages of completion. Developer shall maintain at the Project site or at Developer's offices at 909 Fourth Avenue, Seattle, Washington for City one record copy of all Construction Contracts, all drawings, specifications, addenda, change orders and other modifications, in good order and marked currently to record changes and selections made during construction together with approved shop drawings, product data, samples and similar required submittals. (e) Coordination of Work. Developer shall cause the General Contractor to coordinate the correction and completion of the work, including all Punch List items, and shall evaluate the completion of the work of the Contractors when the Project or any designated portion has achieved Final Acceptance. 6. Permits. (a) Responsibility for Obtaining Permits. Developer shall obtain all Permits necessary to construct the Project, with the exception of the grade and fill permit and the civil 12 construction permit, which the City will obtain prior to the commencement of Project construction. For those Permits yet, to be acquired as of the date of the execution of this Agreement, City may request in writing to review any Permit application Developer intends to submit. City failure to object to terms or conditions of a Permit application shall not be construed as approval of the same but shall constitute City authorization for Developer to submit the Permit application. For those Permit applications already submitted by Developer prior to the execution of this Agreement, City shall receive a copy upon request. Developer shall pursue issuance of such Permits with all due diligence. (b) Costs. All costs associated with issuance of the Permits (except the grade and fill permit and the civil construction permit, which the City will obtain), including the cost of any required off-site improvements, shall be Project Costs. (c) Schedule and Delays. City and Developer anticipate issuance of Permits by the City of Kent and Commencement of Construction within the time set forth in the Project Schedule set forth in Exhibit F. The Project Schedule shall be updated from time to time as reasonably required to reflect the current status of the Project. In the event that Permits are not obtained as anticipated in the Project Schedule, through no fault of City, Developer, General Contractor or any entity for which they are responsible, Developer shall be entitled to an extension of the Developer Obligation Date by a number of days equal to the number of days the Permit, or Permits, is delayed beyond the anticipated issuance date reflected in the Project Schedule. 7. Construction. (a) Commencement of Construction. Developer shall cause the completion of the Project such that the Initial Occupancy Date is achieved on or before the Developer Obligation Date, in a good and workmanlike manner, free from defects in work or materials and in substantial accordance with the Project Agreements and Construction Contracts, and free and clear of all liens. As soon as reasonably practical following issuance of the Permits, Developer shall cause commencement of construction of the Project and shall diligently and continuously prosecute such work to Final Acceptance. Developer shall coordinate the sequencing of all construction and shall cause all other contractors to commence construction of that portion of the work covered under their respective Construction Contracts and diligently and continuously prosecute such work to Final Acceptance. (b) Delays. (i) The Developer Obligation Date shall be extended to the extent of (i)Unavoidable Delays; (ii)City-Caused Delays, (iii) delays from Significant Unexpected Underground Conditions; and(iv) permit related delays as set forth in Section 6(c) above. (A) Unavoidable Delays. Developer shall provide City with written notice immediately upon commencement of any condition Developer believes may result in Unavoidable Delays. Developer acknowledges and understands that excessive rain and occasional strong winds or snow are a common occurrence in the region, that those conditions can be expected to occur during Project construction, and accordingly, they will not be cause for 13 Unavoidable Delay. If extremely severe weather conditions beyond those described in the preceding sentence occur, then those conditions may be cause for Unavoidable Delay. Developer shall notify City in writing as soon as possible but in no event later than ten (10) days after learning of any extremely severe weather conditions that may have caused an Unavoidable Delay and provide the data supporting the Unavoidable Delay together with an explanation of how the conditions delayed Developer's construction progress. City shall respond within ten (10) calendar days as to whether City accepts or disagrees with Developer's position. Any disagreements that cannot be resolved by Developer and City shall be resolved in accordance with Section 18, but work shall continue pending resolution of the dispute. (B) City-Caused Delays; Delays from Significant Unexpected Underground Conditions. To facilitate timeliness in City communications with Developer over matters relating to design or construction of the Project and to minimize the possibility of City- Caused Delay and incremental increases in Project Costs caused by Significant Unexpected Underground Conditions, Developer shall alert City to deadlines for approvals, decisions or other responses City must provide under this Agreement, including, among other methods, attachment of "deadline cover sheets" on any submissions to City that require response by a particular deadline or distribution of weekly calendars that show deadlines imposed on City. If Developer at any time believes that an instance of City-Caused Delay or a Significant Unexpected Underground Condition has occurred that has directly caused or will directly cause an increase in Project Costs or extension of the Developer Obligation Date, Developer shall send a written notification to City within ten (10) calendar days of learning of the occurrence of such alleged City-Caused Delay or Significant Unexpected Underground Condition explaining the alleged event that constituted such City-Caused Delay or Significant Unexpected Underground Condition, specifying the period of alleged City-Caused Delay or delay from a Significant Unexpected Underground Condition, describing how the alleged City-Caused Delay or Significant Unexpected Underground Condition adversely impacted the Project Schedule and identifying any incremental increase in Project Costs that are identifiable or reasonably foreseeable as a direct result of such City-Caused Delay or Significant Unexpected Underground Condition. Any increase in Project Costs incurred as a direct result of such City-Caused Delay shall be the responsibility of the City who shall issue a change order for the increased costs and/or time extension. (Increases in Project Costs incurred as a result of a Significant Unexpected Underground Condition are addressed under Section 2(f)). Any disputes between Developer and City over Project Costs attributable to City-Caused Delay or a Significant Unexpected Underground Condition shall not be a reason to stop or delay construction of the Project and shall be resolved by the parties as expeditiously as possible, either by mutual agreement of the parties or in accordance with the dispute resolution mechanisms described in Section 18. (ii) Liquidated Damages. Time is of the essence for this Agreement. The City considers it imperative that the Developer substantially complete all work by the Developer Obligation Date. The Developer's commitment to completing these tasks on time comprises valuable consideration for entering into this Agreement. If the Developer fails to complete the Project (except for all required frontage improvements) by the Developer Obligation Date, the Developer will be in breach, and the City, as representative of the public in general, its citizens, property owners and businesses, will suffer damages as a 14 result of this breach. Without limiting the foregoing, among the damages that these persons and entities will suffer include loss of valuable park and recreational use and programming activities at the Morrill Meadows/East Hill Park. Because the parties find it extremely difficult or impractical to calculate the actual cost of this delay, the Developer will pay liquidated damages as follows: (A) If the Developer completes the Project (excluding required frontage improvements) at any time within the six-month period after the Developer Obligation Date, the City will receive a fifteen percent rent reduction on the monthly rent due for each month the Project is not complete. (B) If the Developer completes the Project (excluding required frontage improvements) at any time more than six months after the Developer Obligation Date, the City will receive a thirty percent rent reduction on the monthly rent due for each month the Project is not complete. The parties have used their best efforts to fix this amount of liquidated damages as a reasonable forecast of just compensation for the harm that will be caused from the breach; it is not intended as a penalty. (c) Construction Contracts. All Construction Contracts shall include recitations or provisions requiring the following: (i) All Contractors and subcontractors employed on the Project shall pay the prevailing rate of wages as defined in Chapter 39.12 of the Revised Code of Washington. (ii) Provisions for initiating, maintaining, and providing supervision of safety precautions and programs in connection with construction of the Project. (iii) Provisions for indemnifying City and Developer for claims arising out of the negligence or willful misconduct of such contractor and its employees, agents and subcontractors. In addition, City shall have the right to review and approve the process for, and selection of, public art to be installed on the City Land, which approval shall not be unreasonably withheld; provided, however, that Developer may condition or withhold approval for the installation of any public art on the City Land if it would have a material and adverse effect on the construction of the Project or on the Project Schedule. (d) Protection of Persons and Property. (i) Developer shall oversee General Contractor's responsibility for initiating, maintaining and providing supervision of safety precautions and programs in connection with the construction of the Project. 15 (ii) Developer shall or shall cause the General Contractor to take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (1) all persons working on the Project construction site and all other persons who may be affected thereby; (2) the Project and materials and equipment to be incorporated therein; and (3) other property at or adjacent to the site. (iii) Developer shall or shall cause the General Contractor and all other Contractors to give notices and comply with all applicable laws, ordinances, rules, regulations, and orders of public authorities bearing on the safety of persons and property and their protection from damage, injury or loss. (iv) Developer shall be liable for all damage or loss (other than damage or loss insured under the property insurance)to the Project. (e) Insurance During Construction. Developer will obtain and maintain insurance of the types and in the amounts attached in Exhibit G, and will require the General Contractor to maintain the same types and limits of insurance, naming the City as an additional insured. (f) Use of Project Contingency. G) The amounts set forth in the various line items of the Project Budget are estimates only of Project Costs to be incurred. Developer has allocated the Project Contingency for the Kent YMCA Project and for the Ground Lease. Improvements (including Frontage Improvements). The General Construction Contract addresses the use of a Project Contingency of approximately four percent of the Project Budget (ii) To the extent the actual Project Costs in any line item of the Project Budget exceed the amount shown for such line item, Developer shall first allocate amounts in other line items, in which the actual known Project Costs shall have been less than the amount in the Budget,to the line item in which the excess Project Cost(s) has occurred. (iii) Following the allocation by Developer with respect to all line items, Developer shall be fully entitled to draw upon the Project Contingency line item of the Project Budget to cover the Project Costs upon notice and approval by the City of the YMCA's intended Contingency allocation. (iv) Any Project Contingency remaining after Project completion will be reflected in a reduction in the City's Monthly Rent as provided in Section 4.1 of the Project Lease,proportionate to the City's share of the total Project costs. (g) Warranties. Developer shall cause the General Contractor to secure all warranties and guarantees of the work by Contractors, suppliers and manufacturers of components of the Project. Upon Final Acceptance, Developer shall cause the General Contractor to assign such warranties to Developer. After Final Acceptance of the Project and during the Warranty Period, Developer shall enforce any warranties or guarantees with respect to the Project upon request. The General Construction Contract shall provide a warranty of 16 materials and workmanship with respect to each major component of the work for the Warranty Period. (h) Correction of Work. During the Warranty Period, Developer shall promptly correct or cause to be corrected work properly rejected by Developer or known by Developer to be defective or failing to conform to the Construction Contracts, whether observed before or after Final Acceptance and whether or not fabricated, installed or completed, and shall correct or cause to be corrected work found to be defective or non-conforming within the Warranty Period. (i) Developer Default. If Developer defaults or neglects to carry out the work in accordance with the Construction Contracts and fails within ten (10) calendar days after receipt of written notice from City to commence and continue correction of such default or neglect with diligence and promptness, then City may, without prejudice to other remedies City may have, act to correct such deficiencies at the cost of the Developer. Such action by the City shall be without prejudice to any other rights or remedies to which City may be entitled under this Agreement or applicable law. 8. Changes to the Work. (a) No Changes Without City Approval. Following approval of the construction documents by City there shall be no changes in the work except in accordance with this Section 8. Changes in the work covered by the General Construction Contract and approved by City shall be processed in accordance with the General Construction Contract. (b) Developer Approved Changes in the Work. It is anticipated that there will be field orders and change orders which shall result in changes to the scope of work. Developer shall use its reasonable efforts to apprise City of proposed changes in the work, Developer's recommendations regarding them, and obtain the City's approval concerning those proposed changes prior to any action being taken. It is anticipated that it may not always be possible to receive City's prior approval to these changes in a timely manner. Therefore, field orders and change orders may be approved by the Developer, without prior City approval, but only if the changes authorized by these field orders and change orders shall not have the effect of extending the Developer Obligation Date, the City's prior approval to any field order or change order is not feasible under the circumstances, and the field orders and change orders do not materially alter the work. As soon as practical, Developer shall provide City with all field orders and/or change orders approved by Developer. For the purposes of this Section an alteration shall be deemed to be "material" if it would reduce the intended quality of the Project, result in a significant increase in operational costs over time, or result in a substitution of any of the systems in the Project (including but not limited to HVAC, plumbing, electrical, elevators, roofing, fire and life safety, security systems, landscaping, earthwork, and infrastructure components). In the case of either a material alteration or a change that would result in failure to achieve the Initial Occupancy Date by the Developer Obligation Date, prior written approval by the City of the proposed change must be received. (c) Review and Inspections. City shall have the right, but not the obligation, to actively engage in the construction process, including attending construction meetings, 17 visiting the site as desired, monitoring construction, and participating in discussions concerning resolution of construction issues, so long as the City's engagement efforts do not interfere with or delay construction of the Project. In addition, the City may, through its staff or independent consulting architects, engineers or any other appropriate consultants retained and paid by the City (not as a Project Cost), inspect the construction work as it progresses and to review the Construction Contracts. Such inspections shall be coordinated with Developer so as to not interfere with or delay construction of the Project. If during the course of such construction City shall determine that the construction is not proceeding in accordance with the Construction Contracts, City shall give notice in writing to Developer that includes City best efforts to specify the particular deficiency or omission and Developer shall thereupon take, or cause to be taken, all steps necessary to correct same. The failure to give such notice shall not give rise to any liability for City and shall not be considered a waiver of any right of City under this Agreement, including, without limitation, the enforcement of the representations and warranties of Developer under this Agreement and the requirements with respect to construction of the Project in accordance with the Construction Contracts. 9. Other Services by Developer. Services may be performed by the Developer at the written request of City that are not included as part of the Project. Such services shall be performed and paid pursuant to a separate written agreement between City and Developer. 10. Completion of the Project. (a) Final Acceptance. Developer shall give notice in writing to City at least thirty (30) days prior to the date upon which the Project shall be ready for Final Acceptance; however, the parties may, by mutual agreement, exempt the completion of the Frontage Improvements from Final Acceptance for the remainder of the Project and address completion and acceptance of Frontage Improvements by an amendment to this Agreement. "Final Acceptance" means that each of the following items shall have occurred with respect to the Project: (i) The City of Kent, Washington has issued a certificate of occupancy for the Project and the City will have approved final completion of all Ground Lease Improvements; (ii) General Contractor shall have signed its "Certificate of Substantial Completion" together with its "Affidavit of Payment of Debts and Claims" (AIA Forms 706 and 706A) together with final waivers and releases of lien in form satisfactory to Developer from contractors and all subcontractors who have performed work on site; (iii) All Punch List items shall have been completed. (iv) General Contractor shall have submitted its application for final payment together with evidence reasonably satisfactory to City that all construction costs for the Project have been paid in full including evidence of full payment for any personal property installed on the Project Land as part of the Project Costs. (v) The period for filing construction liens has expired or releases or discharges of construction liens in form and substance satisfactory to Developer have been 18 obtained by the Developer from all contractors in accordance with all Construction Contracts and from such laborers, contractors and subcontractors performing work on site as Developer may require; (vi) The General Contractor shall have issued a certificate that(1) the Project has been finally completed in substantial accordance with the Construction Contracts, and (2) no Hazardous Substances as defined in said certificate were incorporated into the structure of the Project; (vii) Developer shall have delivered to City a written report showing the allocation of Project Costs among the categories of the Project Budget, including specifically between the Ground Lease Improvements and the Kent YMCA Project, and the remaining specified dollar amount of the Project Contingency (and the allocation of the Project Contingency between the Kent YMCA Project and the Ground Lease Improvements); (viii) No action shall have prevented Developer from receiving an endorsement to its Title Policy dated as of and issued on the date of Final Acceptance, which shall insure Developer (1) against any liens for labor or materials, whether or not of record, which may have arisen in connection with the construction of the Project, and (2) show no additional exceptions to the Title Policy other than those approved by or arising through Developer; (ix) Developer shall have delivered to City its affidavit that the Construction Contracts for the Project required the contractors under those contracts and their subcontractors to pay the prevailing wage; (x) Developer shall have submitted all applications, supporting documents, and other materials needed to obtain at least a LEED Silver certification; and (xi) Developer shall have completed and delivered the matters set forth in Section 11. 11. Developer Representations; Warranties. Prior to Final Acceptance of the Project, Developer shall represent and warrant as follows: (a) The Project has been completed in substantial accordance with the Construction Contracts (as revised by Project change orders set forth in Section 8) and is, and at all times during the Warranty Period shall be, free from defects in workmanship and materials in connection with the construction thereof. (b) Developer has no knowledge of any structural defects, latent defects or building systems defects within the Project. (c) The Project has been constructed in accordance with all Requirements of Law, all Permits and all insurance laws, regulations and requirements in effect at the time of construction of the Project. 19 (d) The Ground Lease linprovements (including the Frontage Improvements) are served by water, storm and sanitary sewage facilities, telephone, electricity, fire protection and other required public utilities adequate to serve the Ground Lease Improvements (including the Frontage Improvements). (e) The General Contractor, Architect, and all Contractors, suppliers, material suppliers and consultants have been paid in full for work related to construction of the Project billed to date and there are no liens, encumbrances or other defects affecting title to the Project Land which has been or will be filed against the Project Land with respect thereto. (f) Developer is not aware of any physical defect in the Project Land or Frontage Improvements that would affect use for the Permitted Use. (g) To the best of Developer's knowledge and except as disclosed in writing there are no condemnation, zoning or other land use regulation proceedings currently instituted which could detrimentally affect the use and operation of the Project for its intended purpose. Subject to Existing Hazardous Substances, if during the term of this Agreement any such proceedings have been instituted, Developer shall have used its best efforts and due diligence to resolve them prior to Final Acceptance of the Project. (h) Except as disclosed to City in writing, there is no litigation pending, or to the best knowledge of Developer, threatened, with respect to the Project for matters undertaken by Developer under this Agreement. (i) To the best of Developer's knowledge and except as disclosed in writing, (i) no Hazardous Substances have been released following the date of this Agreement on the Project Land, (ii) any such Hazardous Substance which has been so released has been remediated in accordance with applicable law, and (iii) no Hazardous Substances have been incorporated into the structure of the Project except as may be required in construction of the Project and only then to the extent permitted by applicable law. 0) To the best of Developer's knowledge, after due and diligent inquiry, all Permits necessary for the construction, use and occupancy of the Project have been obtained and are in full force and effect. 12. Indemnification. In any and all causes of action and/or claims or third party claims arising out of or in connection with the terms, activities, use and/or operations of this Agreement, including the Project Land and the Project, Developer and City shall each be responsible to the other only to the extent of its own comparative fault in causing the alleged damages or injuries, to the extent permitted by law. As to any and all causes of action and/or claims or third-party claims arising from the sole fault of a party to this Agreement, the indemnifying party shall have the duty to defend, save and hold the other party harmless and upon failure to do so, the indemnifying party shall pay reasonable attorneys' fees, costs, and expenses incurred by the other party to this Agreement in defense of said claims and/or actions. Nothing contained within this Section 12 shall affect and/or alter the application of any other provision contained within this Agreement. 20 13. Representatives. (a) Developer Representatives. Developer shall consult with City on initial assignments of personnel assigned to the Project. The Developer's representative with overall responsibility for the work for the Project will be Nathan Phillips. (b) City Representative. City designates Julie Parascondola as City's Representative authorized to act on the City's behalf with respect to the Project. City shall promptly render decisions to avoid delay in the orderly process of design and construction of the Project. City shall communicate with the Contractor and the Architect only through Developer or with Developer's permission. (c) Change in Representative. In the event either Developer or City change representatives, the other party will, to the extent within that party's control, provide at least ten (10) days' advance written notice of that change. 14. Accounting, Inspection and Audit. (a) Accounts. Developer shall keep such full and detailed accounts as may be necessary for proper financial management under this Agreement. (b) Inspection and Audit. City may, at its sole discretion, from time to time whether before or after Final Acceptance or termination of this Agreement inspect all books and records of Developer or any Contractor relating to the Project and/or elect to have an audit conducted to verify Project Costs through the date of the latest progress payment. If City so elects to conduct such an audit, it shall give three (3) days written notice to Developer, and such audit shall be conducted as soon as is reasonably feasible thereafter, but progress payments to Developer shall not be delayed pending the outcome of the audit. Such audit shall be conducted by an auditor selected by City, and City shall pay the cost of such audit provided, however, that such auditor shall not be retained on a contingent fee basis. Developer agrees to cooperate with the auditor and make available for examination at its principal office all of its books, records, correspondence and other documents deemed necessary to conduct the audit by the auditor. (c) Preservation of Records. Developer shall preserve all Project development records for a period of six years after Final Acceptance. 15. Damage and Destruction; Condemnation. (a) Damage and Destruction. After the happening of any casualty to the Project, Developer shall give City prompt written notice thereof generally describing the nature and cause of such casualty and the extent of the damage or destruction to the Project. Developer and City acknowledge, agree and assign all insurance proceeds which Developer may be entitled to receive prior to Final Acceptance of the Project with respect to damage or destruction to the Project. Developer and the insurance carrier are irrevocably instructed in accordance with this Section. Such insurance proceeds shall be used to pay Project Costs, including increases in the Project Costs caused by such casualty, and in that event, Developer shall proceed diligently to reconstruct and restore the Project in accordance with the Construction Contracts and the 21 provisions of this Agreement. All costs of such repair or restoration of the Project exceeding the amount of the insurance proceeds shall be paid by Developer. (b) Condemnation. In the event of a partial condemnation of the Project to the extent that the Project may still be constructed in accordance with the Construction Contracts, or may be constructed in accordance with the Construction Contracts as modified by changes acceptable to City and Developer, Developer shall proceed diligently to construct the Project in accordance with the Construction Contracts, as modified, if applicable. Any such partial condemnation proceeds shall be applied to pay Project Costs. In the event of a condemnation of all of the Project or so much thereof that the Project may no longer be constructed in accordance with the Construction Contracts, this Agreement shall terminate and the parties shall have no further obligations under this Agreement. 16. Payment of Taxes and Assessments. (a) Real Property Taxes. Prior to Final Acceptance any and all real property taxes and assessments (including leasehold excise tax) levied against the Project Land and the Project or any portion thereof shall be paid by Developer. Following Final Acceptance, any and all real property taxes and assessments levied against the Kent YMCA Land and the Kent YMCA Project or any portion thereof shall be paid by Developer, and any and all real property taxes and assessments levied against the Ground Lease Improvements and the City Land shall be paid as provided under the Ground Lease and Project Lease. (b) Other State and Local Taxes. Developer shall pay any and all state and local taxes assessed in connection with the Project, including, but not limited to, state and local retail sales taxes and business and occupation taxes. Developer shall complete all necessary tax returns relating to such taxes and file the same with the applicable state or local governmental agency and remit, on or before the date such tax payment is due, payment of such state and local taxes to the proper taxing authority. 17. Default. (a) Developer Default. The following events shall constitute an "Event of Default"by Developer: (i) If Developer shall fail to perform any material obligation under this Agreement; (ii) If Developer persistently or repeatedly refuses or fails to cause to be supplied to the Project enough properly skilled workers or proper materials reasonably necessary to complete the Project, or if Developer ceases work on the Project for a period of fourteen (14) consecutive days (unless due to Unavoidable Delays, City-Caused Delays or Significant Unexpected Underground Conditions); (iii) If Developer misappropriates any funds received by Developer pursuant to the provisions of this Agreement; 22 (iv) If Developer persistently disregards and fails to comply with laws, ordinances or rules, regulations or orders of a public authority having jurisdiction over the Project. (v) If, due to the actions of Developer, any Permit required for construction of the Project shall be revoked or canceled; (vi) If there shall occur any lien or other encumbrance on the Project Land or the Project caused by Developer which is not bonded and removed within thirty (30) days; (vii) If there shall have occurred defective workmanship or materials within the Kent YMCA Project which is not cured within the time period provided in Section 7(h)of this Agreement; (viii) If Developer shall have assigned, pledged or encumbered its rights, duties or obligations under this Agreement in violation of this Agreement; (ix) If any warranty made by Developer under this Agreement shall be untrue or breached in any material respect; or (x) If Developer files a petition for bankruptcy or if it makes a general assignment for the benefit of Developer's creditors, or if a receiver is appointed on account of Developer's insolvency and any such petition or appointment is not dismissed within sixty(60) days. (b) City 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 not to exceed sixty(60) days), except with respect to Events of Default set forth in Section 17(a)(iii) and (viii)for which the cure period shall be ten (10) business days, or Section 17(a)(x) for which no cure period exists beyond the time period stated therein; provided however, that such cure period shall not apply to failure of Developer to achieve the Initial Occupancy Date on or before the Developer Obligation Date for the Project. In the event Developer fails to cure such Event of Default within the time period set forth above, City shall be entitled to the following remedies: (i) In addition to a claim for damages for such breach or default, and in addition to and without prejudice to any other right or remedy available under this Agreement or at law or in equity, to commence an action for specific performance of this Agreement; or (ii) To bring an action for damages; or (iii) To terminate this Agreement upon ten (10) days written notice; or 23 (iv) If the City determines that no other available remedies are sufficient to make it whole, and as a remedy of last resort: (A) To take over and complete the Project. City is irrevocably appointed attorney-in-fact (the appointment being coupled with an interest) to incur obligations, enforce contracts or agreements made by Developer and to do any and all things that are necessary and proper to complete the Project; or (B) To terminate the Ground Lease and cause the Kent YMCA Land to revert to the City, or its assigns, free and clear of any claims of the grantee under the Conveyance Agreement and, in the sole discretion of the City, to require the Developer to remove improvements thereon at its cost. (c) City Default. The following shall constitute an "Event of Default" by City: (i) City shall have assigned, pledged or encumbered its rights, duties or obligations under this Agreement in violation of this Agreement; or (ii) City shall have failed to perform any other material obligation under this Agreement. (d) Developer Remedies upon City Event of Default. Upon any Event of Default by City, Developer shall give City written notice of the same. Upon receipt of such written notice, City shall have ten (10) business days to cure any such Event of Default. In the event City fails to cure such Event of Default within said ten (10) business day period, Developer shall be entitled to the following remedies: (i) In addition to a claim for damages for such breach or default, and in addition to and without prejudice to any other right or remedy available under this Agreement or at law or in equity, to commence an action for specific performance of this Agreement; or (ii) To bring an action for damages; or (iii) To stop all work relating to the Project. (e) Remedies Not Exclusive. No remedy conferred upon either party in this Agreement is intended to be exclusive of any other remedy under this Agreement or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or later existing at law or in equity or by statute. 18. Disputes. City and Developer agree to follow the independent resolution process set forth in this Section 18 to resolve disputes regarding preparation of the construction drawings and Detailed Specifications, and changes to construction documents, in an economic and time efficient manner. 24 (a) In resolving disputes, the guiding principles shall be that: (i) the documents conform to the requirements of this Agreement, (2) the Project Schedule is not adversely impacted, and (3) the Project will satisfy the original purpose and intent provided for in the Preliminary Plans and Outline Specifications. (b) In the event that a dispute arises between City and Developer during the design or construction of the Project, the parties shall attempt to resolve such dispute as expeditiously as possible and shall cooperate so that the progress of the design and construction of the Project is not delayed. (c) If, however, the parties are unable to resolve the dispute within three (3) business days, either party may, by delivering written notice to the other, refer the matter to a dispute resolution mediator, which will be non-binding but a condition precedent to having the dispute decided in court. If the dispute is not resolved pursuant to the following procedures within thirty (30) days, the parties may proceed with any remedy available at law or equity. The City and Developer will mutually designate a mediator to assist them in negotiating a resolution to the dispute. The mediator is to act impartially and independently in the consideration of facts and conditions surrounding any dispute; however, the mediator's recommendations to the parties concerning any such dispute are advisory only. The Mediator's recommendations shall be based on the pertinent provisions of this Agreement, and the facts and circumstances involved in the dispute. The fees charged by the Mediator shall be shared equally by the parties. 19. Modifications. This Agreement may only be modified by mutual, written agreement, signed by both parties. 20. Miscellaneous. (a) Waiver. Any waiver by either of the parties of any breach of any covenant under this Agreement contained to be kept and performed by the other party shall not be deemed or considered as a continuing waiver, and shall not operate to bar or prevent the damaged party from declaring a forfeiture for any succeeding breach, either of the same condition or covenant or otherwise. (b) Neutral Authorship. In connection with the execution and delivery of this Agreement, each party has been represented by counsel. Each of the provisions of this Agreement has been reviewed and negotiated, and represents the combined work product of both parties. No presumption or other rules of construction which would interpret the provisions of this Agreement in favor of or against the party preparing the same shall be applicable in connection with the construction or interpretation of any of the provisions of this Agreement. (c) Severability. If any portion or portions of this Agreement is declared void or unenforceable, it shall not affect the other provisions of this Agreement. (d) Relationship of Parties. Developer and City shall not be construed as joint venturers or general partners, and neither shall have the power to bind or obligate the other party except as set forth in this Agreement. Nothing in this Agreement shall be construed as reserving to City the right to control Developer's business. Nothing contained in this Agreement 25 shall be construed as granting or conveying to Developer any interest in or possession of or to the Land, or any portion of the Land. (e) Reasonableness. If the approval or consent of City or Developer is required by any provision of this Agreement, such approval or consent shall not be unreasonably withheld, conditioned or delayed unless the provision specifies that the decision to grant such approval or consent is in the sole discretion of the party making the decision or otherwise states that a reasonableness standard does not apply. (f) No Third Party Rights. The provisions of this Agreement are intended solely for the benefit of, and may only be enforced: (i)by the parties and their respective successors and assigns, including, as to City, and (ii) with respect to rights expressly granted to City as tenant under the Project Lease in this Agreement, by the City as tenant. None of the rights or obligations of the parties under this Agreement 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, subcontractor, worker, supplier, mechanic, architect, insurer, surety, guest, member of the public, or other third parties having dealings with either of the parties or involved, in any manner, in the Project. (g) Assignment; Encumbrance or Pledge. Neither this Agreement nor any rights or duties under this Agreement nor any benefits derived from this Agreement may be assigned, delegated,pledged or encumbered to any other person or entity by either party without the express written consent of the other, which consent may be withheld by either in the exercise of its absolute discretion. (h) Notices. Any notices or other communications required or permitted by this Agreement or by law to be served on, given to, or delivered to either party by the other party, shall be in writing and shall be deemed duly served, given, or delivered when personally delivered to the party to whom it is addressed or in lieu of such personal service, three (3) days after it is deposited in the United States mail, first-class postage prepaid, certified or registered, return receipt requested, addressed as follows, or sent via e-mail, or sent via facsimile transmission with received invoice followed by a "hard copy" mailed, regular mail, within one (1)business day to the fax number listed as follows: City: City of Kent Attention: Parks, Recreation and Community Services Director 220 Fourth Ave S. Kent,WA 98032 26 Developer: YMCA of Greater Seattle Attention: SKC Regional Vice President 900 4`h Avenue Seattle,WA 98104 Either party may change its address for the purposes of this section by giving written notice of such change to the other party in the manner provided in this Section. (i) Entire Agreement. This Agreement (and the exhibits referred to in this Agreement) constitute the entire agreement between the parties with respect to the subject matter of this Agreement and may be amended only in writing signed by both parties. 0) Time is of the Essence. Time is of the essence of this Agreement. (k) Employees of Developer. Developer is acting under this Agreement as an independent contractor and nothing in this Agreement contained, or any acts of Developer or City, nor any other circumstances, shall be construed to establish Developer as an agent of City. Developer shall be responsible for each of Developer's employees or other persons performing services to be performed by Developer under this Agreement and for determining the manner and time of performance of all acts to be performed by Developer under this Agreement. Developer shall maintain all required industrial and worker's compensation insurance for all employees of Developer and shall cause all Contractors, Architect and all design professionals and other persons, firms and corporations employed to perform services in connection with the Project to provide worker's compensation and similar insurance with respect to their respective employees. (1) Exhibits. The Exhibits to this Agreement are: Exhibit Description A Legal Description of Morrill Meadows and East Hill Park Land B Legal Description of Kent YMCA Land C Legal Description of City Land D Project Budget E Schedule of Preliminary Plans and Specifications F Project Schedule G Required Insurance (m) Governing Law; Venue. This Agreement and all provisions of this Agreement shall be interpreted in accordance with the laws of the State of Washington in effect on the date of execution of this Agreement. The Superior Court of King County, State of Washington shall have exclusive jurisdiction and venue over any legal action arising under this Agreement. 27 DATED the day and year first above written. CITY: THE CITY OF KENT a Washington municipal corporation By: t Name: Dana Ralph Its: Mayor ATTEST: qqv"A -11V Kent City Jerk DEVELOPER: THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER SEATTLE a Washington public benefit corporation B : Y Name: Its: 1Fres(dcn4 C-''O 28 Exhibit A Legal Description of Morrill Meadows and East Hill Parks Lots 25, 26 and 27, R.O. Smith's Orchard Tracts Addition to Kent, according to the plat thereof recorded in Volume 12 of Plats, page 27, records of King County, Washington; EXCEPT that portion of said Lot 27, described as follows: BEGINNING at the Northwest corner of said Lot 27; THENCE South 89017'25" East along the North line of said Lot 27, for a distance of 14.08 feet; THENCE South 3°30'06" East along an existing fence for a distance of 126.34 feet; THENCE North 89°1T25" West for a distance of 24.05 feet to the West line of said Lot 27; THENCE North 01 001'23" East along said West line for a distance of 126.00 feet to the Point of Beginning; EXCEPT the South 1.5 feet thereof conveyed in Deed under Recording No. 9809303437; TOGETHER WITH that portion of 108th Avenue Southeast, as vacated by City of Kent Ordinance No. 3766, under Recording No. 20060110000426, being the east 30.00 feet of the southeast quarter of the southeast quarter of the northwest quarter of Section 20, Township 22 North, Range 5 East, W.M., in King County, Washington, EXCEPT that portion lying with within Southeast 248th Street; Together with that portion of South half of the South half of the Northeast quarter of Section 20, Township 22 North, Range 5 East, W.M., in King County, Washington, lying west of the following described line: COMMENCING at the Southeast corner of said Northeast quarter; THENCE North 89'17'11" West along the South line of said Northeast quarter, a distance of 1919.02 feet; THENCE North 00026'03" East, a distance of 30.00 feet, to the North margin of Southeast 248th Street and the TRUE POINT OF BEGINNING; THENCE continuing North 00°26'03" East, along an existing fence, a distance of 629.08 feet, to the North line of said South half of the South half. AND EXCEPT That portion of the southwest quarter of the southwest quarter of the northeast quarter and that portion of 108th Avenue Southeast, as vacated by City of Kent Ordinance No. 3766, under Recording No. 20060110000426 in the southeast quarter of the southeast quarter of the northwest quarter all in Section 20, Township 22 North, Range 5 East, W.M. and of Lot 25 of R. O. Smith's Orchard Tracts Addition to Kent as recorded in Volume 12 of Plats, page 27, in King County Records more particularly described as follows: Commencing at the east quarter corner of said Section 20, Township 22 North, Range 5 East, W.M.; Thence North 88'43'15" West, along the south line of the north half of said Section 20, a distance of 2355.69 feet; Thence North 1°16'45" East, perpendicular to said south line, 30.00 feet to the north margin of Southeast 248th Street, and the Point of Beginning; Thence, continuing, North 1°16'45" East, 323.00 feet to the north line of the south 353.00 feet of the north half of Section 20; Thence North 88'43'15" West, along said north line, 297.28 feet; Thence South 1°16'45" West, perpendicular to said south line, 213.00 feet, to the north line of the south 140 feet of the north half of Section 20; Thence South 88043"5" East, along said north line, 252.28 feet; Thence South 1°16'45" West, perpendicular to said south line, 110.00 feet, to the north margin of Southeast 248th Street; Thence South 88'43'15" East along said north margin 45.00 feet to the Point of Beginning. Situate in the City of Kent, King County, Washington. Containing 938,800 square feet or 21.551 acres April 9, 2018 RSA n r d 32429 SAL LA1� Exhibit B Legal Description of Kent YMCA Land That portion of the Southwest quarter of the Southwest quarter of the Northeast quarter in Section 20, Township 22 North, Range 5 East, W.M., and of Lot 25 of R.O. Smith's Orchard Tracts Addition to Kent as recorded in Volume 12 of Plats, page 27, in King County, Washington, and that portion of 108th Avenue Southeast, as vacated by City of Kent Ordinance No. 3766, under Recording No. 20060110000426 more particularly described as follows: COMMENCING at the East quarter corner of said Section 20, Township 22 North, Range 5 East, W.M.; THENCE North 88043'15" West, along the South line of the North half of said Section, a distance of 2,355.69 feet; THENCE North1°1645" East, perpendicular to said South line, 30.00 feet to the North margin of Southeast 248th Street, and the Point of Beginning; THENCE, continuing, North 1°16'45" East, 323.00 feet to the North line of the South 353.00 feet of the North half of Section 20; THENCE North 88°43'15" West, along said North line, 297.28 feet; THENCE South 1°16'45" West, perpendicular to said South line, 213.00 feet, to the North line of the South 140 feet of the North half of Section 20; THENCE South 88°43'15" East, along said North line, 252.28 feet; THENCE South 1016'45" West, perpendicular to said South line, 110.00 feet, to the North margin of Southeast 248th Street,- THENCE South 88°43'15" East along said North margin 45.00 feet to the Point of Beginning; (ALSO KNOWN AS Lot A, City of Kent Lot Line Adjustment No. LL-2018-2, recorded under Recording No. 20180613001395, being a correction of Recording No. 20180601000444). Situate in the County of King, State of Washington. Exhibit C Legal Description of City Land THAT PORTION OF LOTS 25 AND 26, R.O. SMITH'S ORCHARD TRACTS ADDITION TO KENT, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 12 OF PLATS, PAGE 27, RECORDS OF KING COUNTY, WASHINGTON AND THAT PORTION OF THE SOUTH HALF OF THE SOUTH HALF OF THE NORTHEAST QUARTER SECTION 20, TOWNSHIP 22 NORTH, RANGE 5 EAST, W.M., IN KING COUNTY, WASHINGTON, BEING MORE PARTICULARY DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST QUARTER CORNER OF SAID SECTION 20, THENCE N88°43'15"W ALONG THE SOUTH LINE OF THE NORTHEAST QUARTI=R OF SAID SECTION 1919.02 FEET; THENCE LEAVING SAID SOUTH LINE N00°59'59"E, 30.00 FEET TO THE NORTH RIGHT OF WAY LINE OF SOUTHEAST 248T" STREET, AND THE TRUE POINT OF BEGINNING; THENCE ALONG SAID NORTH RIGHT OF WAY LINE N88°43'15"W, 709.24 FEET, THENCE N01°53'30"E, 1.50 FEET, THENCE N88°43'15"W, 98.04 FEET; THENCE LEAVING SAID NORTH RIGHT OF WAY LINE N13°02'18"E, 58.74 FEET; THENCE N64°33'29"W, 70.29 FEET, THENCE S89°52'14"W, 235.82 FEET, THENCE N80°59'14"W, 155.87 FEET; THENCE N09°00'46"E, 20.00 FEET; THENCE N71°57'49"E, 256.71 FEET, THENCE S34°27'34"E, 89.26 FEET, THENCE S87°56'17"E, 118.54 FEET, THENCE N70°40'05"E, 44.20 FEET; THENCE N07°28'12"E, 202.72 FEET; THENCE N64°30'41"W, 71.36 FEET; THENCE N32°48'10"E, 80.77 FEET; THENCE N61°14'38"E, 78.32 FEET; THENCE N17°29'18"E, 147.42 FEET TO AN INTERSECTION WITH THE NORTH LINE OF THE SOUTH HALF OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF SAID SECTION 20, THENCE ALONG SAID NORTH LINE S88°43'50"E, 681.60 FEET TO AN EXISTING FENCE LINE, THENCE ALONG THE EXISTING FENCE LINE S00°59'59"W, 629.71 TO THE TRUE POINT OF BEGINNING; EXCEPT THE FOLLOWING DESCRIBED TRACT OF LAND: COMMENCING AT THE EAST QUARTER CORNER OF SAID SECTION 20, THENCE N88°43'15'W ALONG THE SOUTH LINE OF THE NORTHEAST QUARTI=R OF SAID SECTION 2355.69 FEET, THENCE N01°16'45"E, 30.00 FEET TO THE NORTH RIGHT OF WAY LINE OF SOUTHEAST 248T" STREET, AND THE TRUE POINT OF BEGINNING OF SAID EXCEPTION, THENCE CONTINUING N01°16'45"E, 323.00 FEET, THENCE N88°43'15"W, 297.28 FEET, THENCE S01°16'45"W, 213.00 FEET; THENCE S88°43'15"E, 252.28 FEET, THENCE S01°08'18"W, 110.00 FEET TO SAID NORTH RIGHT OF WAY LINE; THENCE ALONG SAID RIGHT OF WAY LINE S88°43'15"E, 45.00 FEET TO THE TRUE POINT OF BEGINNING OF SAID EXCEPTION. CONTAINING 447,958 SQUARE FEET MORE OR LESS June 12 2018 �`1 o Rwn Fyil�O 11 t� `i2429 ��AL LAB Exhibit D Project Budget Consolidated Project Budget YMCA/ Morrill Meadows Park 6-2-2018 np YMCA City of Kent TOTAL Design Architectural $ 1,407,640 1 $ 1,407,640 LEED Consulting & Commissioning $ 169,497 1 $ 169,497 $ 1,577,137 $ - $ 1,577,137 Construction Costs (including mark-ups and taxes) Building Construction $ 20,661,287 $ 20,661,287 Site Construction $ 358,355 $ 6,908,686 $ 7,267,041 Right of Way& Frontage $ 791,226 $ 1,201,924 $ 1,993,150 Owner's Contingency $ 616,756 $ 240,389 $ 857,145 $ 22,427,625 $ 8,350,998 $ 30,778,623 Other Costs Permits $ 718,767 $ 145,000 $ 863,767 Testing,Soils, Concrete, Steel $ 61,862 $ 61,862 Soils Study $ 18,500 $ 18,500 Traffic Study $ 6,500 $ 6,500 Title & Legal $ 12,000 $ 12,000 Builders Risk Insurance $ 49,910 $ 49,910 Fixtures, Furnishings, and Equipment $ 1,052,190 $ 1,052,190 Utility Hook Ups, Studies, Etc $ 44,510 $ 44,510 $ 1,964,239 $ 145,000 1 $ 2,109,239 TOTALS $ 25,969,001 $ 8,495,998 $ 34,464,999 EXHIBIT E Schedule of Preliminary Plans and Outline Specifications • Grade and Fill Plans as last submitted for permit review on May 8, 2018; • Civil Construction Plans as last submitted for permit review on March 20, 2018; • Building Plans as last submitted for permit review on May 14, 2018; and • And associated specifications. Exhibit F-Project Schedule .m zt j'2g e e u.a v's S m., v-o S&8 5 a t G&3 8 m m m d n�a 9 2 9 M�:2 p g 8a:�r a.�,v-o m�...W v- - &o —W +®® +W ®++ttt ®+®++ + +0, +++W «<tt«t<,+++ +cccccc ® c C®®®+®t 8 i s� � %°at sA °:Sa mm dal t i$ •- � �° �� % fi j° i 8 3 0 8� z j_ _N ea N ce_ a F-ma"e-m IT t3 ss-"1st e S S S e See S e S 4 e a&' a S <sa<3srsi3assssssss3ass'ssssa$3$ss3xaas�aaaa$has'sssaa$assasaaa3xss3iasissas$3 - ° 'a... 3m__ ,: @._c,asaemg� Eaaa_-y'a==_�evee ----=- - 4C_m "-ele � gg�dg $e g m m € s. ".ssa "ssss� ssss se -ann mIgIs s v N N@ - a �� 's Ne `%'=go sea $ aam 's a N 3 sex a as a 3„� x �� a 3a ate, _ s�se ms sx 2 a 9 � • v L m v- � N yQ & S �o- 8 NN "'"' � ^+ S e � e zAa a a� a s gN sera as � s s B gt5 a=ggai;Lg�aga;L�yL�LLay gYg;S;s�L�++L tat���gYg gag taygY aaa;gi gB LALaaAL'R2aRaAa�a tYLRL+L RSa2mgY'a3 gY gY�o o,�L�'-'Y8 a 93�bS�oo339�3 s:3 ��'�?9§4€33�3038§�'03�'�'g€93333�3�3�9954�43�4��0£9€��39€€o€3e€�� 3. . . 65:55 : . ..mas:. > _. .m > v'o s @ a 3 a" 0 R y r ' :r 44 a eSVse _Sf �e�N a �e as - .a c� •� - _ - ~N. s �' §$ 0 E �3 S b $P �3 g2 e $o EXHIBIT G Required Insurance Developer's Insurance. By the date of the execution of this Agreement, Developer shall procure and maintain, at a minimum, for the duration of this Agreement the following insurance against claims for injuries to persons or damages to property which may arise from, or in connection with the performance of work hereunder by the Developer, its agents, representatives, employees and/or subcontractors. Developer shall ensure that Contractor procures and maintains insurance as specified in Sections 16(a)(i) through 16(a)(iv) herein. The cost of the following insurance set forth below shall be borne by Developer. Coverage shall be at least as broad as: 1. General Liability: Insurance Services Office form number (CG0001) covering Commercial General Liability, including coverage for contractual liability, with a limit of not less than; $5,000,000 combined single limit per occurrence, $5,000,000 aggregate. A combination of Commercial General Liability and umbrella or excess coverages may be used to meet this Commercial General Liability requirement. A. Contractor's Commercial General Liability policy shall include coverage for completed operations/product liability and contractual liability, with minimum limits as required in Section 16(a)(i)herein. 2. Automobile Liability: Insurance Services Office form number (CA 00 01) covering Business Automobile Coverage, symbol 1 "any auto"; or the combination of symbols 2, 8, and 9, with a limit of not less than; $1,000,000 combined single limit per occurrence. 3. Workers' Compensation: Workers' Compensation coverage, as required by the Industrial Insurance Act of the State of Washington, statutory limits. 4. Employer's Liability or "Stop Gap": The protection provided by the Workers' Compensation Policy, Part 2 (Employer's Liability) or, in states with monopolistic state funds, the protection provided by the "Stop Gap" endorsement to the General Liability Policy in the amount of at least $1,000,000. 5. Builders Risk Insurance: No later than commencement of construction of the Project, Developer shall maintain Builders All Risk Coverage written on an "all-risk" or equivalent policy form covering all work to be done on the Community Center Project for the full 100% replacement cost of all such improvements until the Initial Occupancy Date. All Risk Coverage shall be provided and shall include coverage for(i)the perils of earth movement and flood; (ii)resultant damage from errors in design, plans, specifications, faulty workmanship, materials and construction, (iii)"extra expense"; (iv)all materials to be stored offsite and while in transit to the jobsite; (v) "cold testing" of all building systems; (vi) loss of use of the Community Center Project due to delays in Project completion caused by covered peril losses to the Community Center Project, including loss of income and rents for up to twelve (12) months and soft costs; and 1 (vii)the increased cost of construction, debris removal and demolition due to the operation of building laws and code upgrades. Required coverages may be sublimited as agreed. The policy shall include a waiver of subrogation provision, shall grant permission for partial occupancy of the facilities without having a detrimental effect on the coverage provided, and shall contain coverage for debris removal. The Builder's Risk Policy shall include Developer as Named Insureds and the City, the General Contractor and its subcontractors, as Additional Named Insureds. The deductible and/or self-insured retention of such policy shall be the responsibility of Developer. Developer will be responsible for risk up to limits as required. 6. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. 7. Other Insurance Provisions. The insurance policies required by this Agreement are to contain or be endorsed to contain the following provisions where applicable: A. Liability Policies: (1) City, Tenant, their 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 Developer in connection with this Agreement. (2) To the extent of Developer's negligence, Developer's insurance coverage shall be primary insurance as respects City, Tenant, their officers, officials, employees and agents and shall include a severability of interests (cross liability). Any insurance and/or self-insurance maintained by City and/or Tenant their officers, officials, employees and/agents shall not contribute with Developer's insurance or benefit Developer in any way. (3) 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. B. All Policies. Coverage shall not be canceled until written notice has been given to Insureds as per the terms of the Policies. C. Acceptability of Insurers. (1) Unless otherwise approved by City and Tenant, 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 a rating in one of the two highest categories maintained by Standard&Poor's Ratings Services and Moody's Investors Service. 2 (2) If, at anytime, any of the foregoing policies shall fail to meet the above minimum 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. D. Verification of Coverage. Developer and General Contractor shall furnish City with certificates of insurance and endorsements required by this Agreement. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer. The certificates are to be on standard insurance industry Accord form, with required endorsements attached and are to be received and approved by City prior to the commencement of activities associated with this Agreement. City reserves the right to require Developer to deliver complete copies of the Builders Risk Insurance Policy. E. Occurrence. Each insurance policy shall be written on an "occurrence" form, excepting that insurance for professional liability, errors and omissions, when required,may be acceptable on a"claims made"form. F. Subcontractors. General Contractor may include all subcontractors as insureds under its policies, or may furnish separate certificates of insurance and policy endorsements from each subcontractor. The limits of liability required to be carried by any subcontractor shall be determined by the General Contractor, subject to the approval of City and Developer. G. For All Coverages. (1) By requiring such minimum insurance, City and/or Tenant shall not be deemed to, or construed to, have assessed the risks that may be applicable to Developer associated with this Agreement. Developer shall assess its own risks and, if it deems appropriate and/or prudent, maintain greater limits or broader coverage. (2) Nothing contained within these insurance requirements shall be deemed to limit the scope, application and/or limits of coverage afforded, which coverage will apply to each insured to the full extent provided by the terms and conditions of the policy(ies). Nothing contained within this provision shall affect and/or alter the application of any other provision contained within this Agreement. City's Insurance. By the date of the execution of this Agreement between the City and the Developer, the City shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from, or in connection with the performance of work hereunder by the City, its agents, representatives, employees and/or subcontractors. The cost of such insurance shall be paid by the City. Coverage shall be at least as broad as: 3 A. General Liability: Insurance Services Office form number (CG0001 Ed. 11-88) covering Commercial General Liability, with a limit of not less than: $5,000,000 per occurrence, $5,000,000 aggregate. B. Workers' Compensation: Workers' Compensation coverage, as required by the Industrial Insurance Act of the State of Washington, statutory limits. Waiver of Subrogation. Developer, and City agree that with respect to any loss or claim which is covered by insurance then carried by City, Contractor or Developer, (a) the party carrying such insurance and suffering such loss releases the other party of and from any and all claims with respect to such loss to the extent of the insurance proceeds with respect thereto and specifically excepting from such release any deductible required; and (b) their respective insurance companies shall have no right of subrogation against the other or their respective agents, contractors, employees, licensees or invitees on account thereof. With respect to Builders Risk, Developer, City, and Contractor waive all rights against each other and any of their subcontractors, agents and employees for damages caused by fire or other perils to the extent covered by Builders Risk Insurance obtained pursuant to this Section 16., except such rights each may have to proceeds of such insurance, and whether they would otherwise have a duty of indemnification, contractual or otherwise. 4 AC RO o® CERTIFICATE OF LIABILITY INSURANCE DAT / Y) �,. o6/27s/z�/zo1 2018 s THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: _ Parker,Smith&Feek,Inc. PHONE 425-709-3600 FAX 425-709-7460 2233 112th Avenue NE A/c No Ezt: A/c No): _ E-MAIL Bellevue,WA 98004 ADDRESS: INSURERS AFFORDING COVERAGE NAIC# INSURERA: United States Fire Ins.Co. INSURED INSURERS: YMCA of Greater Seattle 909 4th Avenue INSURER C: Seattle,WA 98104 INSURER D: INSURER E INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE :ADDL��SUBR POLICY EFF POLICY EXP LIMITS LTR POLICY NUMBER MWDDIYYYY MMIDD A GENERAL LIABILITY 5068939203 6/1/2018 6/1/2019 EACH OCCURRENCE $ 1,000,000 DAMAGE T RENTED X COMMERCIAL GENERAL LIABILITY X X PREMISES Ea occurrence 1,000,000 $ CLAIMS-MADE FXI OCCUR MED EXP(Any one person) $ 10,000 PERSONAL&ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 3,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 1,000,000 POLICY F7 PRO X LOC MBI $ A AUTOMOBILE LIABILITY 5068939203 6/1/2018 6/1/2019 Eaaccid.nnS EUMIT 1,000,000 X ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS AUTOS NON-OWNED Per accident PROPERTY D $AMAGE HIRED AUTOS AUTOS � ' A UMBRELLA LIAB X OCCUR 5821104015 6/1/2018 6/1/2019 EACH OCCURRENCE $ 4,000,000 )( EXCESS LIAB CLAIMS-MADE AGGREGATE $ 4,000,000 DED X RETENTION$ NIL $ WORKERS COMPENSATION 5068939203 WC STATU- X OTH- A AND EMPLOYERS'LIABILITY YIN '. 6/1/2018 6/1/2019 T Y I IT ANY PROPRIETOR/PARTNER/EXECUTIVE �WA Stop Gap E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? ❑ NIA (Mandatory in NH) E.L.DISEASE-EA EMPLOYE $ 1,000,000 If yes,describe under 1,000,000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,if more space is required) All Operations.City of Kent is an additional insured and coverage is primary and non-contributory on the general liability policy per the attached endorsements/forms.Waiver of subrogation applies on the general liability policy per endorsements/forms to be issued by carrier.$25,000 GL BI/PD Deductible. Notice of Cancellation for the general liability policy applies per the attached form. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Kent THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Attm Parks. Recreation and Community ACCORDANCE WITH THE POLICY PROVISIONS. Services Director 220 Fourth Ave S AUTHORIZED REPRESENTATIVE Kent,WA 98032 ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25(2010/05) The ACORD name and logo are registered marks of ACORD -3 �. 5068939203 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EARLIER NOTICE OF CANCELLATION AND NON-RENEWAL PROVIDED BY US This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM BUSINESS AUTO PHYSICAL DAMAGE COVERAGE FORM COMMERCIAL GENERAL LIABILITY COVERAGE FORM COMMERCIAL INLAND MARINE COVERAGE FORM COMMERCIAL PROPERTY COVERAGE FORM CRIME AND FIDELITY COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this endorsement,the provisions of the Coverage Form apply unless modified by the endorsement. SCHEDULE Number of Days' Notice for Cancellation 6 t Number of Days'Notice for Nonrenewal 6 0 For any statutorily permitted reason other than nonpayment of premium, the number of days required for notice of cancellation, as provided in paragraph 2. of either the CANCELLATION Common Policy Condition or as amended by an applicable state cancellation endorsement, is increased to the number of days shown in the Schedule above. For any statutorily permitted reason, the number of days required for notice of nonrenewal is increased to the number of days shown in the Schedule above, or to the number of days required by an applicable state cancellation andior nonrenewal endorsement,whichever is greater. If no entry appears in a blank above,and the information is not shown in the QggLaration5,the number of days for cancellation or nonrenewal shall be governed by the applicable state requirement,if any. FM 303.0.14 08 07 Page 1 of 1 POLICY NUMBER: 5068939203 COMMERCIAL GENERAL LIABILITY CG 20 26 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Any person or organization whom you are required to add as an Additional Insured to this policy by written contract or agreement, unless such contract or agreement is executed after the date of loss. i I Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to B. With respect to the insurance afforded to these include as an additional insured the person(s) or additional insureds, the following is added to organization(s) shown in the Schedule, but only Section III—Limits Of Insurance: with respect to liability for"bodily injury", "property damage" or "personal and advertising injury" If coverageprovided to the additional insured is required by a contract or agreement, the most we caused, in whole or in part, by your acts or will pay on behalf of the additional insured is the omissions or the acts or omissions of those acting amount of insurance: on your behalf: 1. In the performance of your ongoing operations; 1. Required by the contract or agreement; or 1 or 2. Available under the applicable Limits of 2. In connection with your premises owned by or Insurance shown in the Declarations; rented to you. whichever is less. However: This endorsement shall not increase the 1. The insurance afforded to such additional applicable Limits of Insurance shown in the insured only applies to the extent permitted by Declarations. law; and 2. If coverage provided to the additional insured is I required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to �. provide for such additional insured. CG 20 26 04 13 C Insurance Services Office, Inc., 2012 Page 1 of 1 i