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Res 08-522 RESOLUTION NO. D8.t;dJ- ORIGINAL A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AUTHORIZING THE CITY MANAGER TO EXECUTE A MULTI-FAMILY HOUSING LIMITED PROPERTY TAX EXEMPTION AGREEMENT WITH UNITED PROPERTIES-SYMPHONY, LLC WHEREAS, the City has, pursuant to Chapter 84.14 of the Revised Code of Washington ("RCW"), designated a City Center Residential Target Area for the allowance of a limited property tax exemption for new multi-family residential housing; and WHEREAS, the City has, through Ordinance No. 03-438, enacted a program whereby property owners in the Residential Target Area may qualify for a Final Certificate of Tax Exemption which certifies to the King County Assessor/Treasures that the owner is eligible to receive a limited property tax exemption; and WHEREAS, on December 11, 2007, the City and United Properties-Symphony, LLC, ("United Properties") entered into a Real Property Purchase and Sale Agreement ("Agreement") regarding real property located at 31600 20th Avenue South, Federal Way, W A, Tax Parcel No. 09- 21049021 (the "Property"); and WHEREAS, the Property is located in the City's Residential Target Area; and WHEREAS, the Agreement provides that United Properties intends to divide the Property into five (5) separate parcels and construct one mixed use residential and retail tower on each of the four parcels and a public park on the fifth parcel (the "Project"); and WHEREAS, the Agreement provides that the Project will consist of approximately 900 RES # Of - s;Id- , Page 1 residential units, of which a minimum of approximately 650 housing units shall be "ownership" units; and WHEREAS, these units will provide housing for individuals and small families; and WHEREAS, on December 21, 2007, United Properties submitted a Multi-family Tax Exemption Application (the "Application") to the City; and WHEREAS, the Application provides that a minimum of 20% of the total units will be affordable to moderate-income households; and WHEREAS, the Community Development Services Department has determined that the Project, if developed as proposed, will meet the requirements for the exemption; and WHEREAS, on March 4, 2008, the Director of the Community Development Services Department approved United Properties' Application based on the criteria set forth in FWCC 14- 236; and WHEREAS, the City's tax exemption program requires United Properties to enter into an agreement with the City regarding the terms and conditions of the Project. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, RESOLVES AS FOLLOWS: Section 1. Authorization to Execute Multi-Family Housing Limited Property Tax Exemption Agreement. That the City Manager of the City of Federal Way is hereby authorized to execute a Multi-Family Housing Limited Property Tax Exemption Agreement with United Properties, substantially in the form of the agreement attached hereto as Exhibit A, which agreement shall provide for the development of the above-described Project in accord with certain terms and conditions, in consideration for which the Property developed with the new multi-family housing RES # rP; -S~ , Page 2 will be certified by the City as qualifying for a ten-year limited property tax exemption, pursuant to Chapter 84.14 RCW. Section 2. Severability. If any section, sentence, clause or phrase of this resolution should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this resolution. Section 3. Corrections. The City Clerk and the codifiers ofthis resolution are authorized to make necessary corrections to this resolution including, but not limited to, the correction of scrivener/clerical errors, references, resolution numbering, section/subsection numbers and any references thereto. Section 4. Ratification. Any act consistent with the authority and prior to the effective date of this resolution is hereby ratified and affirmed. Section 5. Effective Date. This resolution shall be effective immediately upon passage by the Federal Way City Council. RESOLVED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON this (S6 dayof (]~) CITY OF FEDERAL WAY ,2008. RES # 6Jk. 5;;;:;)- , Page 3 ATTEST: crr!iI:lUJ. fsilAip.(lhJ) ff. CITY ERK, LAURA HAT \.wAY, CMC APPROVED AS TO FORM: f~a~ CITY ATTORNEY, PATRICIA A. RICHARDSON FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO.: ~ K:\Resolution\2008\Property Tax Exemption Contract.doc RES # Olf .~ , Page 4 MULTIFAMILY HOUSING LIMITED PROPERTY TAX EXEMPTION AGREEMENT THIS MULTIFAMILY HOUSING LIMITED PROPERTY TAX EXEMPTION AGREEMENT (herein this "Agreement") is entered into as of the date of mutual execution hereof, by and between UNITED PROPERTIES - SYMPHONY, LLC, a Washington limited liability company (herein the "Al1plicant"), and the CITY OF FEDERAL WAY, a Washington municipal corporation (herein the "Citv") (collectively referred to as the "Parties") with regard to the following. RECITALS A. The Applicant has applied for a limited property tax exemption as provided for in Chapter 84.14 RCW and Federal Way City Code (FWCC) Chapter 14, Article VII for multifamily residential housing in the Residential Targeted Area, as designated in FWCC 14-232, and the Director of Community Development of the City has approved the application; and B. The Applicant has submitted to the City preliminary site plans and floor plans for new multifamily residential housing to be constructed as part of a Phased, mixed-use project (the "Proiect") to be located at 31600 20th Avenue South, Federal Way, Washington, and which is legally described on Exhibit A hereto (herein the "Property"). The City has determined that the Property is "located in the urban area of the City and zoned CC-C; such zoning is within the designated residential targeted area as defined in FWCC 14- 231(6) and FWCC 14-232; and C. The City is the current owner of the Property. The Applicant has entered into a Purchase and Sale Agreement (the "P&SA") with the City dated effective December 11, 2007, for the purchase, sale and development of the Property; and D. No existing rental housing building that contained four or more occupied dwelling units was demolished on the Property within 12 months prior to the Applicant's submission of its application for limited property tax exemption; and E. The Parties contemplate that the Project will incorporate a binding site plan to divide the Property into five parcels and that Buyer shall thereafter develop the Project in four Phases: (i) Phase 1 will consist of the construction of one of four mixed-use towers on one of the parcels within the Project, and a portion of the parking garage with enough parking to satisfy the minimum parking requirements for the first tower, as well as a public park on one of the parcels (herein "Symphony Park"), which shall be dedicated to the City pursuant to the P&SA, and (ii) Phase 2, Phase 3 and Phase 4 will each consist of the construction of one of the remaining towers on other parcels platted from the Property, and the construction of an additional portion of the parking garage. Such construction will be accomplished in accordance with the terms and conditions of the P&SA for the Property. Each of the Phases of the Project (Phases 1 through 4) will be referred to herein individually as a "Phase". The four towers to be constructed are identified as: (i) "Tower A" (the structure to be located upon the parcel platted from the south-west comer of the Property), and -1- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC (ii) "Tower B" (the structure to be located upon the parcel platted from the south-east comer of the Property), and (iii) "Tower C" (the structure to be located upon the parcel platted from the northwest comer of the Property), and (iv) "Tower D" (the structure to be located upon the parcel platted from the northeast comer of the Property). The tower to be constructed during each Phase may be adjusted or modified as mutually agreed upon for the purposes of facilitating this Agreement; and F. The City recognizes that the Project Phases will require approximately seven (7) years to complete, due to external market forces that compel phasing rather than complete, up- front project financing. Therefore, the Applicant will not complete the entire Project within three years of approval of this Agreement. The City anticipates that it will issue multiple extension(s) of the Conditional Certificate of Acceptance of Tax Exemption as defined in FWCC 14-236(d) (the "Conditional Certificate") following expiration of the initial three-year approval for those Phases that have not been substantially completed within the three year period. Provided, the Applicant must demonstrate fulfillment of the extension criteria of FWCC 14-238 for each such Phase. Furthermore, the City acknowledges that the ability to secure only phased financing to construct the Project constitutes "market forces outside the control of the Applicant" with regard to completion of the Project within the initial three-year approval period; and G. The Applicant has submitted a complete application for exemption under FWCC 14-235 and RCW 84.14.050 and has committed to provide a minimum of fifty percent (50%) of the space for permanent residential occupancy (the "Multifamilv Housing Component"); and H. As defined inRCW 84.14.010, the Applicant agrees that: (1) for any Phase of the Project that is intended by Applicant exclusively for rental units or a combination of rental and owner occupancy units, Applicant [or its successor] shall rent or sell at least twenty percent (20%) of the multifamily housing units within each such Phase of the Project as affordable housing units to low and moderate-income households, and (2) for any Phase of the Project that is intended by Applicant [or its successor] exclusively for owner occupancy, Applican,t shall sell at least twenty percent (20%) of the multifamily housing units within each such Phase of the Project as affordable housing units to moderate- income households; and I. The City has determined that each Phase of the Project will, if completed, occupied, and owned or leased substantially as proposed, satisfy the requirements for a Final Certificate of Tax Exemption as defined in FWCC 14-239; and J. The Parties understand and agree that the Applicant intends to create condominium units designated for separate ownership within the Project and that the rights, duties, and obligations of this Agreement and the Conditional Certificate and Final Certificates of Tax Exemption will benefit each such condominium unit and will be assigned to each of the successor owners of each condominium unit. Further, the Applicant intends to include within the Condominium Declaration an obligation for each successor owner of each condominium unit to designate a third party to undertake to comply with the continuing obligations of this Agreement, including by way of example and not -2- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC limitation, the reporting and certification requirements pursuant to Section 5 herein. The City agrees that in such circumstances, it will accept that report and certification on behalf of the owners of the condominium units; and K. The Parties understand and agree that the Applicant intends to create rental units within the Project. The rights, duties, and obligations of this Agreement and the Conditional Certificate and Final Certificate of Tax Exemption for the Tower containing the rental units will continue to be the responsibility of the Applicant until such time as the Tower containing the rental units are sold, at which time the rights, duties, and obligations of this Agreement and the Final Certificate of Tax Exemption will be assigned to each of the successor owners ofthe Tower containing the rental units; and L. The Parties understand and agree that tax exemption for each Phase of the Project shall be for a period of ten years beginning January 1 st of the year immediately following the calendar year of issuance of the Final Certificate of Tax Exemption for the Phase, except that the tax exemption shall be ended immediately upon cancellation for cause as specified in FWCC 14-241. NOW, THEREFORE, in consideration of the mutual promises herein, the City and the Applicant do mutually agree as follows: 1. Conditional Certificate of Acceptance of Tax Exemption. The City agrees, upon execution of this Agreement following approval by resolution of the City Council, to issue a Conditional Certificate for the Project, which Conditional Certificate shall expire three (3) years from the date of approval of this Agreement by the Council; provided, the Director may grant extensions the Conditional Certificate for multiple periods of two (2) years as specified in FWCC 14-238(a). The City understands that Applicant may transfer ownership of all or a portion of the Project, and that the Conditional Certificate shall apply to the Project in whole regardless of ownership. The Applicant understands and agrees that this Agreement and the Conditional Certificate based thereon pertain to the Project complying with the eligibility requirements of FWCC Chapter 14, Article VII and Chapter 84.14 RCW and that in the event that a Phase of the Project ceases to comply with those requirements or conditions of the land use or building permit approvals, this Agreement shall not be binding on the Parties as to such non-complying Phase and any Conditional Certificate issued for such non-complying Phase pursuant to this Agreement shall be cancelled in the manner specified in FWCC 14-241. 2. Agreement to Construct Multifamily Housing. 2.1 The Applicant agrees to construct the Project on the Property, including the Multifamily Housing, substantially as described in the site plans, floor plans, and elevations attached hereto as Exhibit B, subject to such modifications thereto as may be required to comply with applicable codes and ordinances, including the design review process and the terms of the P& SA). The Project shall include approximately 900 residential units. -3- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC 2.2 The Applicant agrees to construct the Project on the Property, including the Multifamily Housing, and to comply with all applicable zoning requirements, land use regulations, and building and housing code requirements contained in the FWCC. The Applicant further agrees that approval of this Agreement by the City Council, its execution by the Director of Community Development, or issuance of a Conditional Certificate by the City pursuant to FWCC 14-236 is for the sole purpose of authorizing issuance of a Final Certificate of Tax Exemption for each Phase of the Project and in no way constitutes approval of proposed improvements on the Property with respect to applicable provisions of the FWCC or obligates the City to approve proposed improvements. Issuance of a Final Certificate of Tax Exemption by the City pursuant to or under authority of this Agreement, FWCC Chapter 14, Article VII, or Chapter 18.14 RCW, shall NOT constitute or be construed as a representation or warranty, express or implied, by the City that such improvements comply with applicable laws and no liability shall attach to the City, it officers and officials (elected and appointed), employees, or agents with respect thereto. 2.3 The Applicant agrees that the Multifamily Housing Component of the Project will be completed as soon as reasonably possible from the date of approval of this Agreement by the Council; the parties contemplate that the Conditional Certificate will be extended by the Director for cause as provided in FWCC 14-238 to accommodated the phased construction of the Project. The Applicant has indicated a final Project completion date of approximately September 2014. The City anticipates the issuance of extension(s)of the Conditional Certificate following expiration ofthe initial three-year approval for those Phases that have not been completed by that time, provided the Applicant demonstrates fulfillment of the extension criteria of FWCC 14-238. Furthermore, the City acknowledges that the ability to secure only Phased financing to construct this Phased Project constitutes "market forces outside the control of the Applicant" with regard to completion ofthe Phases of the Project within the initial three-year approval period. 2.4 The Applicant agrees that (1) for any Phase of the Project that is intended by Applicant exclusively for rental units or a combination of rental and owner occupancy units, Applicant [or its successor] shall rent or sell at least twenty percent of the Multifamily Housing units within each such Phase of the Project as affordable housing units to low and moderate- income households as defined in RCW 84.14.010; and (2) for any Phase of the Project that is intended by Applicant [or its successor] exclusively for owner occupancy, Applicant shall sell at least twenty percent of the Multifamily Housing units within each such Phase of the Project as affordable to moderate-income households as defined in RCW 84.14.010. The units in each Phase of the Project shall continue to meet affordability requirements noted above for a period of ten years following issuance of the Final Certificate of Tax Exemption for each such Phase. 3. Requirements for Final Certificate of Tax Exemption. The Applicant may, upon completion of the Multifamily Housing Component of each Phase of the Project and upon issuance by the City of a temporary or permanent certificate of occupancy for that Phase, request a Final Certificate of Tax Exemption for any such Phase of the Project as described in Section I of the Recitals. The request shall be in writing directed to the City's Department of Community Development and at a minimum be accompanied by the following: -4- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC a. A statement of expenditures made with respect to each Multifamily Housing unit and the total expenditures made with respect to the entire Project; b. A description of the completed work and a statement of qualification for the eX,emption; c. Documentation that the work was completed within the required three-year period or any authorized extensions and in compliance with the terms of this Agreement; d. A fee in the amount of$50.00 to cover the City's administrative costs; e. Any such further information that the Director of Community Development deems necessary or useful to evaluate eligibility for the Final Certificate of Tax Exemption. 4. Agreement to Issue Final Certificate. The City agrees to file a Final Certificate of Tax Exemption for each Phase of the Project applied for with the King County Assessor within thirty (30) days of submission of all materials required by Section 3 hereof, if the Applicant has: . a. Successfully completed the Multifamily Housing Component of such Phase in accordance with the terms of this Agreement and FWCC Chapter 14, Article VII; b. Filed a request for a Final Certificate of Tax Exemption with the Community Development Department and submitted the materials described in Section 3 hereof; c. Paid to the City a fee to cover the Assessor's administrative costs as specified in FWCC 14-239(b); and d. Met all other requirements provided in FWCC 14-239 for issuance of the Final Certificate of Tax Exemption. 5. Annual CertificationlReport. 5.1 Within thirty (30) days after the first anniversary of the date the City filed the Final Certificate of Tax Exemption for each Phase of the Project and each year thereafter for a period of ten (10) years, the Applicant (or its successors) shall file a certification or declaration with the Director of Community Development, verified upon oath or affirmation, with respect to the accuracy of the information provided therein, containing the following with regard to each . Phase: i. A statement of the occupancy and vacancy of the Multifamily Housing units during the previous year; -5- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC ii. A certification that the Multifamily Housing units within the specified Phase has not changed use since the date of filing of the Final Certificate of Tax Exemption, and that such Phase continues to be in compliance with the contract with the City and the requirements of Chapter 14, Article VII of the FWCC; and 111. A description of any improvements or changes to the specified Phase of the Project made after the filing ofthe Final Certificate or the previous certification; and iv. Any such further information that the Director of Community Development deems necessary or useful. 5.2 Pursuant to RCW 84.14.100, by December 31 of each year the City is required to report annually to the Department of Community, Trade, and Economic Development certain information related to the use and occupancy of each Phase of the Project. In order to facilitate such reporting, the owner or assigned designee for each Phase agrees to file with the Director of Community Development by no later than November 30th of each year during the duration of the exemption, a certification or declaration verified upon oath or affirmation, with respect to the accuracy ofthe information provided therein, containing the following. i. The actual development cost of each multiunit housing produced within the Phase for which the report is issued; and ii. The total monthly rent or total sale amount of each unit of multiunit housing produced within the Phase for which the report is issued; and 111. The income of each renter household at the time of initial occupancy and the income of each initial purchaser of owner-occupied units of multiunit housing within the Phase for which the report is issued at the time of purchase for each of the units receiving a tax exemption and a summary of these figures. 6. No Violations for Duration of Exemption. For the duration of the exemption granted under FWCC Chapter 14, Article VII, the Applicant agrees that each Phase of the Property will have no violations of applicable zoning requirements, land use regulations, and building code requirements contained in the FWCC for which the Department of Community Development or its functional successor shall have issued an order to cease activity (OTC), or notice of violation and order to correct (NOV) that are not resolved by a voluntary correction agreement, vacation by the hearing examiner, or action of the property owner in compliance with the applicable code requirements as determined by the Director, within the time period for compliance provided within such OTC or NOV, and any extension of the time period for compliance granted by the Director. The rights of one Phase shall not be negatively affected by the failings or breaches of any duties owed or obligations to be performed by any other Phase(s) of the Project. -6- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC 7. Notification of Change in Use. The Applicant agrees to notify the Director of Community Development and the King County Assessor within sixty (60) days if the Applicant intends to convert the Multifamily Housing on the Property to another use, or if the owner intends to discontinue compliance with the affordable housing requirements as described in RCW 84.14.020. The Applicant acknowledges that such a change in use may result in cancellation of the tax exemption and imposition of additional taxes, interest and penalty pursuant to State law. 8. Cancellation of Tax Exemption - Appeal. 8.1 The City reserves the right to cancel the Final Certificate of Tax Exemption for any of the Phases ofthe Project if at any time the Multifamily Housing for such Phase, no longer complies with the terms of this Agreement or with the requirements of FWCC Chapter 14, Article VII, or the use of the Phase is changed to a use that is other than residential or for any other reason no longer qualifies for an exemption. 8.2 If the exemption as to a Phase of the Project is canceled for non-compliance, the Applicant acknowledges that RCW 84.14.110 requires that an additional real property tax is to be imposed in the amount of: (1) the difference between the tax paid and the tax that would have been paid if it had included the value of the non-qualifying improvements, dated back to the date that the improvements became non-qualifying; (2) a penalty of 20% of the difference calculated under section (1) of this paragraph; and (3) interest at the statutory rate on delinquent property taxes and penalties, calculated from the date the tax would have been due without penalty if the improvements had been assessed without regard to the exemptions provided by Chapter 84.14 RCWand FWCC Chapter 14, Article VII. The Applicant acknowledges that, pursuant to RCW 84.14.n 0, any additional tax owed, together with interest and penalty, become a lien on the Phase of the Property for which the exemption has been cancelled and attach at the time the Property or portion of the Property is removed from multifamily use or the amenities no longer meet applicable requirements, and that the lien has priority to and must be fully paid and satisfied before a recognizance, mortgage, judgment, debt, obligation, or responsibility to or with which the Property may become charged or liable. The Applicant further acknowledges that RCW 84.14.110 provides that any such lien may be foreclosed in the manner provided by law for foreclosure of liens for delinquent real property taxes. 8.3 Upon determining that a tax exemption for a Phase of the Project is to be canceled, the Director, on behalf of the City Council, shall notify the property owner(s) of the Phase by certified mail, return receipt requested. The property owner(s) may appeal the determination in accordance with FWCC 14-241. 9. Amendments. No modification of this Agreement shall be made unless mutually agreed upon by the Parties in writing and unless in compliance with the provisions of FWCC 14-237 and Chapter 84.14 RCW. If the City Council amends FWCC 14, Article VII to extend the period of eligibility for tax exemption, this Agreement may be amended to allow the same period of tax -7- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC exemption. For example, as ofthe date ofthis Agreement, RCW 84. 14.020(1)(a)(ii)(b) presently specifies that the period of eligibility is for twelve (12) years. If the provisions of FWCC 14, Article VII is so amended to extend the term from ten (10) years to any period of longer duration, this Agreement may be amended to provide for the longer period of eligibility for tax exemption. The provisions ofRCW 84.14.020(1)(a)(ii)(b) extend to the Applicant the right to apply for an eight (8) year period of the tax exemption based upon the construction of Multifamily Housing units in the Residential Targeted Area, as designated in FWCC 14-232. This eight-year tax exemption is not dependent upon the sale or rental to either low or moderate-income households. Therefore, in the event Applicant [or its successors] intends to sell or rent one or more of the Multifamily Housing units in one or more Phases with the result that the Phase of the Project in which such Multifamily Housing unit(s) is/are located, will cease to qualify for, or be eligible for the tax exemption provided pursuant to this Agreement, Applicant [or its successors] shall be entitled to convert the tax exemption applicable to such Phase ofthe Project from the tax exemption provided pursuant to this Agreement to the eight-year tax exemption under Chapter 84.14 RCW, or such other period established by State law and the FWCC. The ability to convert to such shorter duration tax exemption period shall be conditioned upon Applicant [or its successors] complying with all requirements for the eight-year tax exemption. The conversion of the duration of the tax exemption shall require the parties to agree to an amendment to this Agreement, which agreement shall not be unreasonably delayed or conditioned. As a condition to such Amendment, Applicant [or its successors] shall notify the City prior to ceasing to be eligible for the tax exemption provided pursuant to this Agreement. 10. Binding Effect. The provisions, covenants, and conditions contained in this Agreement are binding upon the Parties hereto and their legal heirs, representatives, successors, assigns, and subsidiaries; provided that, as to each condominium unit created, the obligations herein shall be limited to the individual ownership interest( s) created. 11. Recording of Agreement. The Director shall cause to be recorded, or require the Applicant to record, in the real property records of the King County Department of Records and Elections, this Agreement and any other documents as will identify such terms and conditions of eligibility for exemption as the Director deems appropriate for recording, including requirements under this chapter relating to affordability. 12. Audits and Inspection of Records. The Applicant understands and agrees that the City has the right to audit or review appropriate records to ensure compliance with this Agreement and FWCC Chapter 14, Article VII and to perform evaluations of the effectiveness of the Multifamily Tax Exemption program. The Applicant agrees to make appropriate records available for review or audit upon seven days' written notice by the City. -8- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC 13. Incorporation of Recitals. The Recitals to this Agreement are an integral part of the agreement between the parties and are incorporated herein by this reference. 14. Headings. The headings of the Articles, Sections and Paragraphs in this Agreement are inserted solely for indexing and convenience and are not a part of and are not intended to amplify or restrict the contents of the respective paragraphs or sections or to govern, limit or aid in the construction of any term or provision hereof. 15. Notices. All notices to be given pursuant to this Agreement shall be in writing and shall be deemed given when hand-delivered within normal business hours, when actually received by facsimile transmission, or two business days after having been mailed, postage prepaid, to the parties hereto at the addresses set forth below, or to such other place as a party may from time to time designate in writing. APPLICANT: Primary United Properties - Symphony, LLC C/O Inslee Best PO Box C-900 16 Bellevue, W A 98009 Phone: (604) 736 3864 Fax: (604) 736 3811 Attn.: David Setton Secondary United Properties, Ltd. 2608 Granville Street, Suite 550 Vancouver, BC V6H 3V# Phone: (604) 736 3864 Fax: (604) 736 3811 Attn: Director CITY: City of Federal Way Department of Community Development Services PO Box 9718 Federal Way, W A 98063-9718 Phone: (253) 8352611 Fax: (253) 835-2609 Attention: Director 16. Requirements Binding on Successors. The covenants, agreements, restrictions, and requirements contained herein shall run with the land and be binding upon all subsequent owners, successors, and assigns of Applicant. This -9- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC Agreement expires three (3) years from the date of approval of this Agreement by the Councilor after any extension authorized under FWCC 14-238. 17. Indemnification. The Applicant acknowledges that it is aware of the potential tax liability that may be imposed if and when one or more Phases cease to be eligible for the incentive provided pursuant to this Agreement. Such liability may include the imposition of additional real property tax, penalties and interested pursuant to RCW 84.14.nO. The Applicant, for itself [for so long as it is the fee owner of any unit in the Phase that is subject to the additional property tax liability pursuant to RCW 84.14.110], and the successors, designees, assigns, and all subsequent owners of such Phase, shall protect, defend, indemnify and hold harmless the City, from and against any and all third party claims, actions, causes of action, demands, damages, liabilities, losses, costs and expenses ("Liability"), including reasonable attorney's fees and costs arising from any mediation, arbitration and litigation (through all appeals), commenced due to a determination that one or more Phases ceases to be eligible for the incentive provided pursuant to this Agreement; provided, the Applicant's obligation under this Section [and that of its successors, designees and assigns] shall not require such defense, protection or indemnification from Liability that arises from the negligent, unlawful, erroneous or improper acts or omissions by the City, its officers, officials, employees or agents that directly or indirectly results, causes or initiates the imposition ofthe potential tax liability. 18. Attorneys' Fees. In any controversy, claim or dispute arising out of, or relating to this Agreement or the method and manner of performance thereof or the breach thereof, except as otherwise set forth in Section 17, the prevailing party shall be entitled and awarded, in addition to any other relief, to a reasonable sum as litigation expenses. If neither party wholly prevails, the party that substantially prevails, shall be awarded a reasonable sum as litigation expenses. 19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and with the same effect as if all parties hereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof it shall only be necessary to produce one such counterpart. The signature pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature. The date upon which the last of all of the parties have executed a counterpart of this Agreement shall be the "date of mutual execution" hereof. 20. Severability. In the event that any term or clause ofthis Agreement conflicts with applicable law, such conflict shall not affect other terms of this Agreement which can be given effect without the conflicting terms or clause, and to this end, the terms of the Agreement are declared to be severable. -10- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date of mutual execution hereof as indicated below. CITY OF FEDERAL WAY, a political subdivision of the State of Washington NEAL BEETS, City Manager Dated this _ day of March, 2008 ATTEST: City Clerk, Laura Hathaway, CMC APPROVED AS TO FORM: City Attorney, Patricia A Richardson -11- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC APPLICANT: UNITED PROPERTIES-SYMPHONY, LLC, a Washington limited liability company By: DVS Symphony, Inc., a Washington corporation Its: Managing Member By: David Setton, its President Dated this _ day of March, 2008 STATE OF WASHINGTON ) ) ss. COUNTYOF~G ) On this day personally appeared before me DAVID SETTON, known me known to be the PRESIDENT of DVS Symphony, Inc., a Washington corporation, the managing member of United Properties-Symphony, LLC that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this _ day of ,2008. (typed/printed name of notary) Notary Public in and for the State of Washington. My commission expires -12- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Parcel 5 of the Federal Way Binding Site Plan Number BSP , as recorded under King County Recording number 2008 , Records of King County, which Parcel is a portion of the real property formally known as: Lot 1, King County Short Plat Number 182027, according to the short plat recorded under recording number 8403140752, Records of King County EXCEPT that portion condemned in King County Superior Court Cause Number 03-2-18100-5KNT for the construction, operation and maintenance of the Regional Express Federal Way Transit Center and related facilities, AND EXCEPT that portion described as follows: Beginning at the Southwest comer of said Lot 1; Thence along the Wes~ line of said Lot North 01l20'/23" East 28.21 feet; thence parallel withthe South line of said Lot South 88/16'19" East, 413.57 Feet to the East line of said Lot; Thence along said East line South 01l29'/00" West, 28.21 feet to the South line of said Lot; thence along said South Line North 88116'19" West, 413.50 feet to the Point of Beginning. Also known as Parcel A of City of Federal Way Boundary Line Adjustment No BLA 06-1 061 I l-SU, Recorded under recording Number 20061229900009 -13- C:\Documents and Settings\default\Desktop\Prop. Tax Exemption Contract 3.21.08.DOC BAllY'S HEAl TlI CLUB \ \ "- ./ I '., \\ _d-1 EXECum ~~_~=, : ~~~k=:;-;::':ittsJJ~j;::~-,;,,:;l If .' , , , ~: i I I I @@@@@@@88@88@@@@@@@@@@@@@@@@@@@eee888eee p n p !! n till i Ii! i III ~ ~ I I ! II I i I I i Ii! E I I !~ i I i I ! I ! ~ ! ! 'I ~ ! I i I ~ ! ! ~ I.~ ! ! I f II i ! ! ! i I ! ! , II~ I n Iq ;pl: ! !Iii P l !i'iH!'i'" i P ~~ 'I' I! !' ! i i~ ill! , ~ < , ,il, < ! ! !., i , I ' I ' . . o () PARK.&RIOE . -GARAGE i'l 1\, 1 !II !il/, ~m L~~ L'f/"G) >< . -, m:E: n I-~ II ~ i I b~ ~. I r- ! 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