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AG 17-122 - Ottone-Salinas, INC
RETURN TO: EXT: CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM . ORIGINATING DEPT./DIV: Law ORIGINATING STAFF PERSON: PQ�[_ U n EXT: TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E. ❑ PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT (REAL ESTATE DOCUMENT ❑ ORDINANCE ❑ CONTRACT AMENDMENT (AG #): ❑ OTHER 3. DATE REQ. BY: G., RFB, RFP, RFQ) ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ MAINTENANCE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ RESOLUTION ❑ INTERLOCAL . PROJECT NAME _CX ba5e d1r \Q • NAME OF CONT C OR: CA# �r�; - _, t r . S _Q1C. ADDRESS: cJ 3 inxi m '1- S+�F, l9C:01 Sa ti 5 E -MAIL: CRr e* lc -kc11 SIGNATURE NAME: TELEPHONE FAX: TITLE • EXHIBITS AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS /CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT /AMENDMENTS • TERM: COMMENCEMENT DATE: COMPLETION DATE: TOTAL COMPENSATION $ cG { I Ut 1 1 J% . °° (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED ❑ YES ❑ NO IF YES, $ RETAINAGE: RETAINAGE AMOUNT: PAID BY: ❑ CONTRACTOR ❑ CITY ❑ RETAINAGE AGREEMENT (SEE CONTRACT) OR ❑ RETAINAGE BOND PROVIDE ❑ PURCHASING: PLEASE CHARGE TO: 0. DOCUMENT /CONTRACT REVIEW INITIAL / DATE REVIEWED INITIAL / DATE APPROVED ❑ PROJECT MANAGER ❑ DIRECTOR ❑ RISK MANAGEMENT (IF APPLICABLE) ❑ LAW 1. COUNCIL APPROVAL (IF APPLICABLE) COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE: °Vern .— 2. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE (Include dept. support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) AW DEPARTMENT IGNATORY (MAYOR OR DIRECTOR) ❑ CITY CLERK ASSIGNED AG# SIGNED COPY RETURNED :OMMENTS: INITIAL / DATE SIGNED AG# —i2 DATE SENT: $ 2/8 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (the "Agreement ") is entered into by and between Ottone -Salinas, Inc., a California Corporation, as Buyer, and the City of Federal Way, a Washington State municipal corporation, as Seller; jointly referred to as the Parties. AGREEMENT FOR AND IN CONSIDERATION of the mutual promises and covenants contained herein, the sufficiency of which is unconditionally acknowledged by Buyer and Seller, the parties hereto agree as follows: 1. The Property. Seller agrees to sell and Buyer agrees to purchase from Seller real property that is a portion of King County tax parcel no. 0921049166 located in Federal Way, WA, and legally described in Exhibit A and depicted in Exhibit B, both attached and incorporated herein (the "Property "). 2. Purchase Price and Payment. The purchase price is Two Million, One Hundred Eighty -Seven Thousand, Seven Hundred Fifty -Six Dollars and No /Cents ($2,187,756.00) (the "Purchase Price "). The Purchase Price shall be payable as follows: One Hundred Thousand Dollars and No /Cents ($100,000.00) Earnest Money to be deposited with the Escrow Company upon execution of this Agreement by both parties ( "Mutual Acceptance "), with the balance of the Purchase Price to be deposited in Escrow at Closing. The Earnest Money shall be applicable to the Purchase Price at Closing and refundable as provided herein. 3. Contingencies. This Agreement and the obligations of Buyer and Seller hereunder are contingent upon satisfaction or written waiver of all conditions as hereinafter set forth. a. Period of Examination. Upon Mutual Acceptance of this Agreement, Buyer may examine the Property and conduct such studies of the Property and the Title and encumbrances thereto as the Buyer shall deem necessary, which shall be conducted at Buyer's sole cost, and which investigations shall include, without limitation, the suitability (economic or otherwise) of the Property, in Buyer's sole discretion, for Buyer's intended purposes (the "Period of Examination ") Buyer's studies may include such environmental assessments of the Property as Buyer deems appropriate, at its sole cost and expense. The Period of Examination shall end fifteen (15) days after Mutual Acceptance, unless otherwise extended per this Agreement. i. Notice of Intent. On or before the close of the Period of Examination and any extension thereof, Buyer shall provide Seller with Written Notice of Buyer's intent to purchase the Property or terminate this Agreement (the "Notice of Acceptance /Termination "). Failure to provide such written Notice of Acceptance as required herein shall be conclusively deemed waiver by Buyer of its right to purchase the Property, this Agreement shall immediately become null and void, and the Earnest Money shall immediately be returned to Buyer. ii. Documents. The parties acknowledge that Seller has, prior to Mutual Acceptance, made available to Buyer true and correct copies of all documents, instruments, and materials relating to the Property including, but not limited to, any existing surveys, soils reports, contracts, documents, instruments or papers of significance to the Property or which might assist Buyer during the Period of Examination. iii. Right of Entry. Buyer, its agents and its contractors, shall be entitled to reasonable access to the Property at any time during the Period of Examination and, if Buyer decides to purchase the Property, prior to Closing, to conduct its studies. To the extent Buyer has actual knowledge, it shall use reasonable efforts to timely notify Seller whenever Buyer, its employees, agents or contractors, enter the Property. Buyer may disturb the Property as may be required for its tests and studies on condition that to the extent possible such tests and studies shall be nondestructive and Buyer shall repair any damage done. Buyer shall indemnify and hold Seller harmless from any liability arising out of Buyer's performance of such tests and studies. However, it is specifically agreed that Buyer shall not be responsible for any cleanup costs, claims, liabilities, or obligations relating to any hazardous waste contamination at the Property that Buyer may uncover during its pre - closing inspections, and Sellers shall indemnify and hold Buyer harmless from any such costs, claims, liabilities, or obligations. The obligations set forth in this section shall survive expiration or termination of this Agreement. b. Title and Survey. This Agreement is contingent on Buyer's acceptance of title and the survey pursuant to Section 4 of this Agreement. c. Financing. This Agreement is contingent on Buyer securing financing for the Property in an amount sufficient to pay the Purchase Price in full at Closing and otherwise on terms and conditions acceptable to Buyer in Buyer's sole and absolute discretion. "Financing" for purposes of this Agreement includes all sources of funding that Buyer may choose to pursue and utilize in Buyer's sole and absolute discretion. Buyer shall notify Seller within thirty (30) days of Mutual Acceptance, unless otherwise extended per this Agreement, that this Financing Contingency has been satisfied or waived. Failure to provide such written Notice of Financing as required herein shall be conclusively deemed waiver of the contingency by Buyer of its right to purchase the Property, this Agreement shall immediately become null and void, and the Earnest Money shall immediately be returned to Buyer. d. City Council Approval. This Agreement is contingent on approval by the Federal Way City Council. e. Binding Site Plan. This Agreement is contingent on the Seller obtaining approval and completing a Binding Site Plan to create the area known as the Property. f. Hotel Brand. The City issued a Request for Proposal, which Buyer responded to, asking for proposal to build a hotel on the Property (the "Hotel "). The Hotel shall be operated as an "upscale hotel" comparable to a Hilton Garden Inn or higher tier product, a Hilton Double Tree or higher tier product, Hyatt Place or higher tier product, or Hyatt House or higher tier product. This Agreement is contingent on Buyer obtaining a commitment for a Franchise with a national hotel brand operator acceptable to Seller for operation of the Hotel on the Property within 60 days of Mutual Acceptance. g. Waiver. Buyer, at any time or times on or before Closing, at its sole election, in order to close, may waive conditions 3.(a) —(c) hereunder, but any such waiver shall be effective only if contained in a writing signed by Buyer and delivered to Seller. Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Page 2 4. Title. a. Title Commitment. Buyer shall, at Buyer's sole cost and within five (5) days of the Mutual Acceptance of this Agreement, order a Preliminary Title Report from the Title Insurance Company of its choice (hereinafter "Title Company "), to be delivered directly to Buyer (the "Report "), for the Property together with copies of all documents supporting exceptions (the "Exceptions ") set forth in the Report. Buyer shall provide Seller with a copy of the Report. Buyer may, at Buyer's sole cost and expense, order an ALTA survey of the Property, certified to Buyer and Title Company, having all corners marked and all other easements and utilities delineated in the Survey (the "Survey "). After execution of this Agreement, Seller shall not alter the condition of title except as to remove any defects of title in its election or as requested by Buyer. Buyer's Survey must be ordered within five (5) days of Mutual Acceptance. b. Title Exceptions. Buyer shall have fifteen (15) calendar days from receipt of the Report and any Survey within which to give written notice to Seller of Buyer's disapproval of any Special Exceptions (the "Objection Notice ") For purposes of this Agreement, "Special Exceptions" means the special exceptions to title set forth in the Report or the Survey, which relate to restrictions, conditions, defects or other matters, which would interfere with Buyer's intended use of the Property. The written notice shall state with specificity those Special Exceptions to which objection is being made. Buyer's failure to specifically enumerate such Special Exceptions within such written notice or Buyer's failure to timely provide such written notice shall be conclusively deemed Buyer's waiver and/or approval of all Special Exceptions. Buyer hereby approves those standard exceptions commonly and ordinarily found in commitments or title binders for standard coverage fee owner policies. c. Seller's Cure of Objections. Seller shall have sixty (60) calendar days from delivery of the Objection Notice to cure such objections to Special Exceptions, or to commence action to cure such objections that require more than sixty (60) calendar days, or have the Special Exceptions waived or removed by the Title Company issuing the commitment. If, within such period, Seller fails to cure, commence cure and diligently pursue it thereafter, and/or have waived such objections to Special Exceptions, or within such period Seller delivers written notice to Buyer that it will not so cure, then, within ten (10) calendar days from the delivery of such notice or the end of the period for cure, whichever is first, Buyer shall have the option to: i. Agree in writing to extend the period of time in which Seller may cure such Objections and /or Exceptions; or ii. Elect in writing to purchase the Property subject to such objections to Special Exceptions with no diminution in the Purchase Price; or iii. Terminate this Agreement, in which event all sums paid or deposited by Buyer, including the Earnest Money, shall immediately be returned to Buyer. Buyer's failure to respond to Seller in writing shall be conclusively deemed an election of its right to terminate this Agreement pursuant to this subsection. d. Condition of Title. Seller covenants to convey the Property in a condition to be insured by the Title Company, as hereinafter provided. Closing shall be conditioned upon the Title Company issuing or committing to issue to Buyer a standard form owner's Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Page 3 policy, or an extended coverage policy of title insurance issued by the Title Company in the amount of the Purchase Price, insuring Purchaser's a fee interest in the Property free and clear of all matters except the following: 1. Special Exceptions permitted or waived by Buyer, ii. the lien of current real property taxes not yet due and payable, iii. those matters excluded from coverage by the printed exceptions and exclusions in the form of title insurance policy required herein, iv. the covenants to be recorded against the property in section 11(a), the Option to Purchase in section 12, and the Shared Access Easement in section 5(e) of this Agreement, and v. the Operation Easement Agreement, as Amended, Recorded under King County Recorder's Office number 8612191598, modified by documents with King County recording numbers 8704071270, 20101222000937, and 20050718000838. Prior to Closing, Buyer shall be entitled to obtain a date -down Report confirming compliance with this Agreement. 5. Closing. a. Escrow. Closing this Purchase and Sale Agreement shall occur through an escrow (the "Escrow ") with the Title Company /Escrow Company (which shall appoint and identify to the parties a "Closing Agent ") when the Title Company is in a position to issue the Title Policy and all documents and funds have been deposited with the Title Company. b. Closing Date. Unless an earlier date is a reed to in writing by th e arties, the "Closing Date" shall be on or before 3trhy 28, 40.U. {` 1 Zp ►% c. Deposit of Closing Documents. i. Seller. On or before the Date of Close of Escrow, Seller shall duly execute and deposit into Escrow with Closing Agent: 1. A Statutory Warranty Deed (the "Deed "), in form and substance consistent with the terms of this Agreement together with an accompanying Real Estate Excise Tax Affidavit; and 2. An Affidavit of Non - Foreign Status required by Title Company in connection with section 1445(e) of the Internal Revenue Code. section 5(e). the following: Escrow. 3. Executed documents to be recorded by the Escrow Company in ii. Buyer. On or before the Date of Close of Escrow, Buyer shall deposit 1. The Purchase Price, less Earnest Money already deposited with Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Page 4 2. Additional cash in an amount necessary to pay Buyer's share of closing costs, title insurance, and prorations set forth herein. 3. Executed documents to be recorded by the Escrow Company in section 5(e). 4. Additional cash in the amount of $8,080.00 to pay for up to 80 hours of City staff time at $101.00 per hour (as adopted in the City's current fee schedule) as may be required to expedite City staff review for section 3.(e) prior to Closing. The City shall use this additional cash as a deposit from which to bill for review. d. Closing Costs and Prorations. The Parties represent that no brokers have been hired to negotiate or facilitate this transaction. At Closing, Seller shall pay the Real Estate Excise Tax. Buyer shall pay for a standard owner's policy of title insurance benefitting Buyer, and at Buyer's discretion, Buyer shall purchase extended coverage for the owner's title insurance policy and a lender's title insurance policy. Buyer and Seller shall each pay half of all other closing expenses including Escrow fees and charges and the cost of recording the Deed. All real property taxes and utilities shall be prorated between Seller and Buyer as of Closing and shall be paid as part of Closing. e. Procedure. Closing Agent shall close Escrow as follows: i. Prepare a Real Estate Excise Tax Affidavit and record the Deed with instructions for the county recorder to deliver the recorded Deed to the Buyer; and ii. Pay the Purchase Price to Seller, reduced by prorations and any existing encumbrances and /or liens in order to provide clear title to the Buyer pursuant to section 4; and iii. Record the Restrictive Covenants in Exhibit C attached and incorporated herein; iv. Record a Parking Covenant release from Seller pursuant to section 11(b) below; and v. Deliver the executed Affidavit of Non-Foreign Status to Buyer; and vi. Record a shared access easement for vehicle and pedestrian traffic as attached and incorporated herein as Exhibit D; and vii. Record a Release of Seller's interest in the Operation and Easement Agreement recorded under King County Recorder's Office number 8612191598, modified by documents with King County recording numbers 8704071270, 20 I 01222000937, and 20050718000838; and viii. Forward to Buyer and Seller, in duplicate, a separate accounting of all funds received and disbursed for each party and copies of all executed and recorded or filed documents deposited into Escrow, kvith such recording and filing date endorsed thereon. Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Page 5 f. Incorporation of Escrow Instructions. This Agreement shall serve as escrow instructions, and an executed copy of this Agreement shall be deposited by Buyer with Closing Agent following Mutual Acceptance hereof. The Parties may execute additional escrow instructions, provided such additional instructions do not change the terms of this Agreement. 6. Possession. Buyer is entitled to possession of the Property on the date of Closing. 7. Seller's Representations. Seller, to the best of its knowledge, represents the following to Buyer: a. Seller has the power, right, and authority to make this Agreement with Buyer; b. Seller is not in default and will not during the term of this Agreement default or permit a default to exist on any of its obligations under any real estate contract, lease, mortgage, or deed of trust affecting any portion of the Property; c. Seller is and shall be entitled to terminate on or before the date of Closing and without breach of any agreement the rights of all parties who are not a party to this Agreement and who are entitled to possession of any part of the Property; d. Seller has good and marketable title to all of the Property; e. There are no pending zoning changes of the Property or any change to utilities relating to the Property; f. There are no material defects in the Property; g. All persons and corporations supplying labor, materials, and equipment to Seller for the Property have been paid and there are no claims of liens; h. Other than those shown in the Preliminary Title Report, there are no current assessments for public improvements against the Property or any local improvement district or other taxing authority having jurisdiction over the Property in the process of formation; i. There are no claims, defects, or boundary disputes affecting the Property; and no person claims any right to possession to the Property or any portion thereof adverse to Seller. The representations set forth in this section will be deemed to have been made again, on the Date of Closing, and will continue to be true, complete, and correct as of the Closing. 8. Hazardous Material Provisions. a. Definition. The term "hazardous waste or materials or substances" as used in this Agreement is used in its very broadest sense and includes, but is not limited to, materials and substances designated as hazardous under any federal, state, or local act or ordinance. Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Page 6 b. Seller's Representations. Seller represents that it has not received notification of any kind from any agency suggesting that the Property is or may be targeted as a Superfund or cleanup site. Seller represents that, Seller does not keep, use, or dispose of, and Seller has not permitted anyone else to keep, use, or dispose of, whether permanently or temporarily, on the Property, any hazardous waste or materials or substances, and has no reason to believe or suspect that Seller or any other person or entity has kept, used, or disposed of, either temporarily or permanently, any hazardous waste or materials or substances on the Property. Seller represents that Seller has not conducted any test or studies to specifically determine whether any hazardous waste or materials or substances existed on the Property prior to Seller's ownership or as of the date of this Agreement. 9. Buyer Representations. Buyer, to the best of its knowledge, represents the following to Seller: a. Construction Schedule. 1. The Parties agree that the construction schedule for Buyer's development of the Property is essential to this Agreement as Buyer's development will compliment and support Seller's construction and operation of its Performing Arts and Event Center ( "PAEC ") on Seller's real property, King County tax parcel no. 0921049166 ("Seller's Property "). Therefore, Buyer represents that it shall commence construction on the Property on or before June 1, 2018 and have the Hotel be open and operating on or before December 1, 2019. Commencing construction shall be defined as obtaining a building permit and commencing earth moving activities. ii. Should construction not commence on or before June I, 2018, Seller has the option of exercising its Option to Purchase attached and incorporated as Exhibit E, collecting from Buyer Twenty -Five Thousand Dollars and No /Cents ($25,000.00) for each week of delay, or agreeing with Buyer to a modified Construction Schedule. iii. Should the Hotel not be open and operating on or before December 1, 2019, Seller has right to collect from Buyer Twenty -Five Thousand Dollars and No /Cents ($25,000.00) for each week of delay, unless the Property has been re- purchased by Seller pursuant to Section 9(a)(i1) above. iv. Buyer shall not be deemed to be in default of the deadlines above if Buyer's performance is prevented or delayed by Acts of God, including landslides, lightning, forest fires, storms, floods, freezing and earthquakes, terrorism, civil disturbances, acts of the public enemy, wars, blockades, public riots, explosions, governmental restraint or other causes, whether of the kind enumerated or otherwise, that are not reasonably within the control of the Buyer, and are not the result of the willful or negligent act error or omission of the Buyer; and that could not have been prevented by the Buyer through the exercise of reasonable diligence ( "Force Majeure"). The Buyer's obligations under this Agreement shall be suspended, but only with respect to the particular component of obligations affected by the Force Majeure and only for the period during which the Force Majeure exists. The following events do not constitute Force Majeure: strikes, other than nationwide strikes or strikes that by virtue of their extent or completeness make the particular goods or services effectively unavailable to the Buyer; work stoppages or other labor disputes or disturbances occurring with respect to any activity performed or to be performed by the Buyer; accidents to machinery, Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Page 7 equipment, or materials; unavailability of required materials or disposal restrictions; or general economic conditions. b. Authority. Buyer has the power, right, and authority to make this Agreement with Seller. c. Construction Period Mitigation. Buyer acknowledges that noise and debris during construction of the Hotel will have a negative impact on the PAEC. Buyer agrees to the following measures to mitigate for said impact during construction on the Property: i. Cleaning and Dust Control: If, in the City's sole determination, construction activities on the Property are the cause of dust or other debris that must be cleaned from the City's PAEC site on King County tax parcel no. 0921049017, the City may charge Buyer for the cost of cleaning and removing same. Buyer agrees to pay for these costs within thirty (30) days of receiving an invoice from the City. ii. Construction Hours: The parties agree contractually that all construction activities on the Property shall be done between Monday and Friday, 7:00 AM to 5:30 PM. Any exceptions to this contractual agreement, may be sought by Buyer pursuant to the procedures in FWRC 19.105.040(2) —(6). d. Disclosure Form. Buyer waives receipt of the disclosure form required for commercial property under section 64.06.013 of the Revised Code of Washington ( "RC W "). 10. SEPA Review. Seller represents that it has completed review under the State Environmental Policy Act ( "SEPA ") for the Property as part of a Planned Action adopted by Ordinance No. 07 -552 and amended by Ordinance No. 16 -811. Environmental review is included in the City of Federal Way City Center Planned Action Final Environmental Impact statement ( "FEIS ") issued September 2006, four Addendums thereto, and City of Federal Way City Center Planned Action Supplemental EIS issued December 2015. The parties acknowledge that if Buyer's development of the Property qualifies under FWRC section 14.15.060 as a planned action project then Buyer's development of the Property will not require a threshold determination or EIS under SEPA. 11. Development Restriction and Covenants. a. Restrictive Covenants. Buyer agrees to have the Restrictive Covenants attached as Exhibit C recorded against the Property at Closing. b. PAEC Parking. The Property is currently encumbered by a site development condition for the PAEC that requires eighty (80) parking spots for the PAEC to be located on King County tax parcel 0921049017. At Closing, Seller shall record a covenant that releases the Property from this parking encumbrance. c. Operation and Easement Agreement. Seller owns real property benefitted by the Operation and Easement Agreement recorded under King County Recorder's Office number 8612191598, modified by documents with King County recording numbers 8704071270, 20101222000937, and 20050718000838, which burden the Property. Seller agrees to execute a release of Seller's interest in the Operation and Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Page 8 Easement Agreement as modified and have the same recorded at Closing. The consideration for said release is included in the Purchase Price. 12. Option to Purchase. The Option to Purchase attached as Exhibit E shall be recorded against the Property at Closing. 13. 1031 Tax Exchange. The Property is part of a section 1031 of the Internal Revenue Code exchange for Buyer. Seller agrees to cooperate with Buyer at no additional cost or liability to Seller, by executing the documents necessary to complete Buyer's 1031 exchange transaction. The parties acknowledge that the Property was originally contemplated to be approximately 25% of the total size of the King County tax parcel no. 0921049166, and that it was the original intent of the parties to have the lot that is the Property created prior to March 1, 2017 to enable Buyer to designate the Property in Buyer's section 1031 exchange designation. 14. Attorneys' Fees. In the event of any litigation regarding the rights and obligations of the parties under this Agreement, the prevailing party shall recover its costs and attorneys' fees, including such costs and attorneys' fees for appeals. 15. Remedies. a. Seller's Default. In the event Seller defaults in fulfilling its obligations under this Agreement, Buyer shall be entitled to all remedies at law or equity including without limitation the right to enforce specific performance of this Agreement against Seller. b. Buyer's Default. In the event Buyer fails, without legal excuse, to complete the purchase, or otherwise defaults under the terms of this Agreement, the Earnest Money shall be forfeited to the Seller as the sole and exclusive remedy available to the Seller for such failure and default. 16. Risk of Loss, Insurance. Risk of loss of or damage to the Property shall be borne by Seller until the date of Closing. Thereafter, Buyer shall bear the risk of loss. In the event of material loss of or damage to the Property prior to the date of Closing, Seller shall not be obligated to restore the Property nor pay damages to Buyer by reason of such loss or damage, and Buyer may terminate this Agreement by giving notice of such termination to Seller and Closing Agent, and such termination shall be effective and the Earnest Money shall be refunded ten (10) days thereafter; provided, however, that Buyer may elect to purchase the Property in the condition existing on the date of Closing and on Closing Seller shall assign to Buyer the proceeds of any policy of insurance carried by or for the benefit of Seller covering any loss or damage to the Property occurring after the date hereof and prior to the Closing date. Seller will submit an insurance claim and use its best efforts to obtain insurance proceeds. On Closing, Seller will pay to Buyer, outside of escrow, the entire amount of insurance proceeds received from such claim. 17. Notices. Except as specifically set forth herein, any demand, request or notice which either party hereto desires or may be required to make or deliver to the other shall be in writing and shall be deemed given when personally delivered, or when delivered by private courier service (such as Federal Express), or three days after being deposited in the United States Mail first class, postage prepaid and addressed as follows: (a) Seller's Addresses: Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Page 9 City of Federal Way City Attorney's Office 33325 8th Avenue South Federal Way, WA 98003 (b) Buyer's Address: Ottone- Salinas, Inc. 295 Main Street, Suite 600 Salinas, CA 93901 The foregoing addresses may be changed by written notices to the other party as provided herein. 18. Buyer's Period of Acceptance. Buyer shall have two (2) days from the date of delivery of this instrument to Buyer with Exhibits A — E attached to accept this offer by written signature. In the event Buyer does not accept this offer within the 2 -day period, the offer will be considered withdrawn, and this Agreement will be null and void. Seller, and only Seller, may waive this 2 -day limitation. 19. Time. Time is of the essence in every provision of this Agreement. 20. Survival of Representations. The terms, covenants, and representations contained in this Agreement shall not merge with the deed of conveyance, but shall continue and survive Closing. 21. Entire Agreement. The parties acknowledge protracted negotiations of the terms of this Agreement. This Agreement contains the entire understanding between the Parties and supersedes any prior understandings and agreements between them regarding the subject matter hereof. There are no other representations, agreements, or understandings, oral or written, between the parties hereto relating to the subject matter of this Agreement. No amendment of, or supplement to, this Agreement shall be valid or effective unless made in writing and executed by the Parties hereto. The Restrictive Covenant attached as Exhibit C includes terms and exhibits to which Buyer must comply with for Hotel construction. The Parties acknowledge that the terms and exhibits in the Restrictive Covenant are not approvals for the Hotel by the City in its municipal capacity. Buyer's Hotel project shall vest to the development regulations in place at the time a complete application is filed, and will be required to comply with all applicable federal, state and city codes. The Restrictive Covenant is a contractual agreement between Seller and Buyer and does not supersede the City's authority as a permitting authority. 22. Seller's Covenants Pending Closing. Seller covenants for the benefit of and agrees with Buyer that, pending Closing, Seller shall not do or permit to be done any of the following other than in the ordinary course or operation of the Property and without in each case securing Buyer's prior written consent, which consent shall not be withheld unreasonably; enter into any lease or rental agreement for the Property; make any agreements or commitments relating to the maintenance, repair, replacement or operation of the Property for a period extending beyond Closing; or commence or continue any construction affecting the improvements other than ordinary maintenance and repair. Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Page 10 23. Governing Law/Venue. This Agreement shall be controlled by and interpreted under Washington law, without application or consideration of any choice of law principles. Venue shall be in the State or Federal Courts located in King County. 24. Binding Agreement. This Agreement shall inure to the benefit of and be binding upon the heirs, personal representative, successors, and assigns of the parties hereto. 25. Assignment. This agreement is assignable by Buyer upon written approval by Seller, which shall not unreasonably be delayed or withheld. IN WITNESS WHEREOF, the parties hereto have executed one or more copies of this Agreement to be effective on the date of final signature. Dated: -/q - 7 Dated: I —' / S -/ APED -{or City Attorney Purchase and Sale Agreement Federal Way and Ottone Salinas, Inc. Pagel 1 BUYER: OTTONE SAL 1 AS, INC. By: " Printed Name: /fl4i771 -2 Or /ale Its: S e[.2 7-4at/ SELLE' - TY OF F ' ERAL WAY By: Pri ame: 37,-.Y'+(e Its: /V1 0/011-, LEGAL DESCRIPTION: A PORTION OF LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000-SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDAIN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 81,028 SQUARE FEET (1.86 ACRES), MORE OR LESS. PSA - EX. A BINDING SITE PLAN NO. 7 A 5 a0 WICi _Luna K9ONAOi igt° iR s AZ nn 13314i 2 i 2 u sY ata 5g I COINS O. &,05 I sx ,61211 3.COALI N I�.mccl ,anl Ew I II -J 8 „ = II G g I; 11-1=" -9'V.4; I I I I �� II' uP to U U ale io4 `c '41 ti R PSA - EX. B Return To: City of Federal Way Attn: City Attorney's Office 33325 8th Avenue South Federal Way, WA 98003 -6325 Grantor(s): Ottone Salinas, Inc., a California corporation Grantee: City of Federal Way, a municipal corporation Abbreviated Legal Description of Property: Additional Legal(s) on: Exhibit RC -A Assessor's Tax Parcel ID #: RESTRICTIVE COVENANTS Ottone Salinas, Inc. ( "Grantor ") is the owner of real property legally described in Exhibit RC -A attached and incorporated hereto ( "Grantor's Property "). The City of Federal Way, a municipal corporation ( "City ") is the owner of real property legally described in the attached and incorporated Exhibit RC -B ( "City's Property ") in consideration of mutual benefits, Grantor agrees to the following Restrictive Covenants burdening Grantor's Property and benefitting the City's Property. 1. Use Restrictions. For a period of Twenty -five (25) years after recording of these Restrictive Covenants, or for so long as the City's Property is used for its Performing Arts & Entertainment Center ( "PAEC), whichever is longer. a. Grantor may only develop the southern half of Grantor's Property as a hotel accommodating at least 90 rooms (the "Hotel Use Restriction "). EX. C -1 b. The following uses are not allowed on Grantor's Property: (i) Group Homes; (ii) Social service transitional housing; (iii) Vehicle service stations or car wash; (iv) Retail - Tire store; (v) Storage units; (vi) Retail providing limited medical manufacturing services including dental labs, optical services, prosthetic labs; (vii) Hospitals, convalescent care or nursing homes; (viii) Drug rehabilitation centers; (viiii) Church, or other place of religious worship; (x) No more than three (3) Retail — barber/beauty; and (xi) Fast food restaurant. 2. Design. Grantor's Hotel shall be designed and maintained in harmony with the City's design for the PAEC. The PAEC uses wood, metal and glass for the modern style building depicted in Exhibit RC -C attached and incorporated hereto. Grantor was chosen by the City to purchase Grantor's Property based on Grantor's response to a Request for Proposal in which Grantor submitted a design for the Hotel that harmonized and was similar in design to the PAEC and furthered the City's vision to create a Town Center. For so long as the Hotel Use Restriction encumbers the Grantor's Property, the initial design of the Hotel, maintenance, and any subsequent alterations shall maintain the harmony and similarity with PAEC building. a. For initial construction of the Hotel, the parties agree to coordinate design from Mutual Acceptance of the Purchase and Sale Agreement dated , 2017 between the EX. C -2 parties until the time the City sends out its Request for Bid for the Grand Staircase, and agree to site coordination from the start of constructing the Grand Staircase through substantial completion of same. b. The Hotel's major building materials, and finishes shall be substantially as depicted in Exhibit RC -D attached hereto, to the extent allowed by the Federal Way Revised Code ( "FWRC "). In the event changes are necessary to Exhibit RC -D Grantor must receive prior written approval from the City, which shall not be unreasonably delayed or withheld. c. Pedestrian connectivity between the Grantor's Property and the City's Property must be constructed and maintained through the use of sidewalks, plazas, patios and other means approved by the City and as may be authorized and required under the FWRC. Any alterations to the same must receive prior written approval from City, which shall not be unreasonably delayed or withheld. d. The parties have coordinated the use of a vehicular turnaround to be used by both the City's Property and the Grantor's Property and to be located in the southeast corner of the City's Property and the southwest corner of the Grantor's Property (the "Turnaround "). Joint use of the Turnaround is governed by the Mutual Access Easement For Vehicular and Pedestrian Ingress and Egress executed on even date. Each party shall pay for construction and maintenance of the portion of the Turnaround on its Property. The Turnaround shall be constructed substantially as depicted in Exhibit RC -E and Exhibit RC -F to the extent allowed by the FWRC. Prior to and during hotel construction, pedestrian and vehicular access to the Turnaround shall be maintained. 3. Hotel Brand. The Hotel shall be operated as an "upscale hotel" comparable to a Hilton Garden Inn or higher tier product, a Hilton Double Tree or higher tier product, Hyatt EX. C -3 Place or higher tier product, or Hyatt House or higher tier product. In the event that the Hotel brand changes from that initially approved by the City, Grantor must receive prior written approval from City, which shall not be unreasonably delayed or withheld. 4. Hotel Amenities. For so long as the Hotel Use Restriction encumbers Grantor's Property the Hotel shall include a fitness center, business center, small to medium meeting rooms, and restaurant with lounge. 5. Job Creation. Federal funds used in conjunction with the Grantor's Property require that the development of Grantor's Property meet certain job creation targets for moderate to low income persons. Grantor must make at least Fifty -one (51) percent of the positions created by the operation of the hotel available to low to moderate income residents of the City. Low - income and moderate - income are defined as being at or below 80 percent of Area Median Income ( "AMI ") for households, as specified and published annually by the U.S. Department of Housing and Urban Development. Determination of eligible income shall be based upon the total income of all members of the employee's household. Grantor agrees to document the creation, availability, recruitment, hiring, and retention of these jobs, on forms provided by the City, through semi - annual reporting to the City during the first three years of operation of the hotel. 6. Construction. During the term of these Restrictive Covenants in Section 1, Grantor agrees to the following measures to mitigate for construction impacts on the City's Property during any construction on the Property: (i) Cleaning and Dust Control: If in the City's sole determination, construction activities on the Property are the cause of dust or other debris that must be cleaned from the City's PAEC site on King County Tax Parcel No. 0921049017, the City EX. C -4 may charge Buyer for the cost of cleaning and removing same. Buyer agrees to pay for these costs within thirty (30) days of receiving an invoice from the City. (ii) Construction Hours: The parties agree contractually that all construction activity on the Property shall be done between Monday and Friday, 7:00 AM to 5:30 PM. Any exceptions to this contractual agreement may be sought by Buyer pursuant to the procedures in FWRC 19.105.040(2) —(6) or as hereafter amended or replaced in the FWRC. 7. Notice. Any notice or approval required to be given by one party to the other under the provisions of this Restrictive Covenant shall be effective upon personal delivery to the other party, or after three (3) business days from the date that the notice or approval is mailed to the current address on record of each Party. The parties shall promptly notify each other of any change of address. 8. Attorneys' Fees. In the event of litigation between or among the parties hereto, declaratory or otherwise, in connection with or arising out of this Restrictive Covenant the prevailing party shall recover from the non - prevailing party all costs, including reasonable attorneys' fees, paralegals' fees and other professional or consultants' fees expended or incurred in connection therewith, as set by the court, including for appeals, which shall be determined and fixed by the court as part of the judgment. 9. Miscellaneous. a. The laws of the state of Washington shall govern the interpretation of these Restrictive Covenants. Any action brought pursuant to these Restrictive Covenants shall be brought in the Superior Court for King County, Washington. EX. C -5 b. These Restrictive Covenants may be terminated or modified by execution of a written agreement by the Grantor and the City and said agreement shall be recorded with the King County Recorder's Office. c. These Restrictive Covenants shall run with the land and be binding upon Grantor's and the City's successors and assigns. Dated this day of , 2017. GRANTOR: OTTONE SALINAS, INC. By Title GRANTEE: CITY OF FEDERAL WAY By Title NOTARY ACKNOWLEDGMENT FOR GRANTOR: STATE OF CALIFORNIA COUNTY OF On ) ss. before me, [insert name and title of the officer] personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal EX. C -6 NOTARY ACKNOWLEDGMENT FOR GRANTEE: STATE OF WASHINGTON COUNTY OF KING I certify that I know or have satisfactory evidence that signed this instrument and, on oath, stated that she/he was authorized to execute the instrument and acknowledged it as the of the City of Federal Way, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated this day of , 2017. (SEAL) Printed Name: Notary Public in and for the State of My commission expires: EX. C -7 EXHIBIT A PARCEL B: A PORTION OF LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000-SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDAIN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88 °18' 18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 81,028 SQUARE FEET (1.86 ACRES), MORE OR LESS. LEGAL DESCRIPTION: LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921 - 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON EXCEPT: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 135,493 SQUARE FEET (3.11 ACRES), MORE OR LESS. RC - EX. B RC - EX. C METAL PANEL GLASS STUCCO SOUTH ELEVATION RC - EX. D SOUTH DINING PATIO & PLAZA CONNECTS TO PAEC EAST ELEVATION RC - EX. E RC - EX. F Return Address: City of Federal Way 33325 8th Ave. S. Federal Way, WA 98003 ATTN: City Attorney's Office Grantor: City of Federal Way Ottone Salinas, Inc. Grantee: Ottone Salinas, Inc. City of Federal Way Legal Description: Abbreviated Legal: Tax Parcel Identification Number: Reference Numbers of Related Documents: MUTUAL ACCESS EASEMENT FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS This Mutual Access Easement Agreement for Vehicular and Pedestrian Ingress and Egress ( "Agreement ") is made and entered into this day of , 2017 between the CITY OF FEDERAL WAY, a Washington Municipal Corporation ( "City "), and OTTONE SALINAS, INC., a Californiaa corporation ( "Developer "), singularly referred to herein as "Party," and together as the "Parties." For and in consideration of One Dollar ($1.00) and other valuable consideration, the receipt of which is hereby acknowledged, the City grants, conveys and warrants to Developer, for the purposes hereinafter set forth, a non - exclusive access easement across and EX. D -1 over certain real property ( "City Property ") located in Federal Way, Washington, legally described as follows: See Exhibit A attached and incorporated herein. For and in consideration of One Dollar ($1.00) and other valuable consideration, the receipt of which is hereby acknowledged, Developer grants, conveys and warrants to the City, for the purposes hereinafter set forth, a non - exclusive access easement across and over certain real property ( "Developer Property") located in Federal Way, Washington, legally described as follows: See Exhibit B attached and incorporated herein. The City Property and the Developer Property shall be referred to together as the "Properties." 1. Purpose. The Parties, their agents, permittees, designees, tenants, patrons, and /or assigns shall have the right, without prior notice to the other Party, to access over and across the Properties for the following limited purposes: a. Vehicular ingress, egress, circulation, and passage over and across the travel lanes and driveway areas as the same may from time to time be constructed, altered, and maintained for such use; and b. Pedestrian ingress, egress, circulation, and passage, over and across the parking, driveways, plaza, and sidewalk areas as the same may from time to time be constructed, altered, and maintained for such use. 2. Access. The Parties shall have the right of both vehicular and pedestrian access for the limited purposes set forth in this Agreement and this Agreement shall not be construed to confer any additional rights or property interests. 3. Obstructions. The Parties shall not permit obstructions to the ingress, egress, circulation, and passage of the Properties without prior written notice to the other Party. In the event that a requesting Party requires obstruction of an ingress or egress path, the requesting Party shall provide an alternate ingress or egress path for the duration of the obstruction, at the other Party's election. The temporary, short term loading and un- loading of vehicles, service vehicles, or trucks shall not be considered an obstruction for the purposes of this Agreement. 4. Use of Easement. The Parties reserves the right to use their respective Property for any purpose not inconsistent with the granted rights. The Parties shall not permit damages, alterations, improvements, or any other modifications to the other Party's Property without express written permission. EX. D -2 5. Maintenance. The Parties agree that they are solely responsible for all maintenance activities and costs on their respective Property, except that each Party is responsible for all repairs and remediation due to an act by the other Party, its agents, permittees, designees, tenants, patrons, and /or assigns which damages, alters, or otherwise modifies the other Party's property. 6. Indemnification. The Parties agrees to indemnify, defend, and hold each other, their elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions, and liabilities (including costs and all attorneys' fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Agreement. 7. Successors and Assigns. The rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. DATED THIS day of , 20_ CITY OF FEDERAL WAY: OTTONE SALINAS, INC.: Marwan Salloum, PE Public Works Director STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) Name: Its: (Title) On this day personally appeared before me Marwan Salloum, to me known to be the Public Works Director of the municipal corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that he or she was authorized to execute said instrument. GIVEN my hand and official seal this day of , 20_. Name: Notary Public in and for the State of Washington. My commission expires: EX. D -3 NOTARY ACKNOWLEDGMENT FOR GRANTOR: STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On before me, [insert name and title of the officer] personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal EX. D -4 LEGAL DESCRIPTION: LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON EXCEPT: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 135,493 SQUARE FEET (3.11 ACRES), MORE OR LESS. EAS - EX. A LEGAL DESCRIPTION: A PORTION OF LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDAIN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 81,028 SQUARE FEET (1.86 ACRES), MORE OR LESS. EAS - EX. B Return Address: City of Federal Way Attn: 33325 8th Avenue South Federal Way, WA 98003 -6325 Grantor(s): Ottone Salinas, Inc. Grantee: City of Federal Way, a municipal corporation Abbreviated Legal Description of Property: Additional Legal(s) on: Exhibit A Assessor's Tax Parcel ID #: OPTION TO PURCHASE THIS OPTION TO PURCHASE is made this day of , 20, by and between OTTONE SALINAS, INC. (hereinafter "Grantor "), a California corporation, and the CITY OF FEDERAL WAY, a Washington municipal corporation in King County, State of Washington (hereinafter "City "). 1. Grantor is the owner of real property legally described in Exhibit A (the "Property"). 2. For and in consideration of mutual consideration, receipt of which is hereby acknowledged, Grantor agrees that in the event Grantor does not Commence Construction on the Property by October 1, 2017, the City shall have the right, but not the obligation, to purchase the Property from the Grantor on the terms set forth herein. Commencing Construction shall be defined as obtaining a building permit and commencing earth moving activities. 3. If Construction has not commenced on or before October 1, 2017, the City shall have thirty (30) calendar days to determine whether it will exercise its rights under this Option to Purchase. During this thirty (30) calendar day period, the City shall be permitted reasonable access EX. E -1 to the Property. If the City decides to purchase the Property it must send Grantor notice of its intent to purchase ( "Notice of Intent ") at the address provided below on or before the expiration of the 30- day period. 4. If the City fails or neglects to tender the Notice of Intent, this Option to Purchase shall fully and completely terminate without any further liability to Grantor, City, or Grantor's purchaser. 5. If the City properly tenders a Notice of Intent, the City shall purchase the Property from Grantor at the same purchase price as the City sold the Property to Grantor pursuant to the Purchase and Sale Agreement dated , 2016 and any Addendum to same ( "Purchase Agreement). 6. Other terms of the City's purchase under this Option to Purchase shall also the same as terms in the Purchase Agreement on Title in Section 4; Possession in Section 6; Hazardous Materials Provisions in Section 8; Attorney's Fees in Section 14; Remedies in Section 15; Risk of Loss, Insurance in Section 16; Notices in Section 17; Time in Section 19; Seller Covenants in Section 22; Governing Law in Section 23; and Binding Agreement in Section 24. 7. Closing of the sale to the City shall occur through an escrow (the "Escrow ") with a Title Company chosen by the City (which shall appoint and identify to the parties a "Closing Agent ") when the Title Company is in a position to issue the Title Policy and all documents and funds have been deposited with the Title Company. Unless an earlier date is agreed to in writing by the parties, the "Closing Date" shall be within sixty (60) days from the date the City sends the Notice of Intent. 8. This Option to Purchase shall be a covenant running with the land, binding Grantor's heirs, successors and assigns. 9. Except as specifically set forth herein, any demand, request or notice which either party hereto desires or may be required to make or deliver to the other shall be in writing and shall be deemed given when personally delivered, or when delivered by private courier service (such as Federal Express), or three days after being deposited in the United States Mail first class, postage prepaid and addressed as follows: a) Grantor Ottone Salinas, Inc. 295 Main Street, Suite 600 Salinas, CA 93901 EX. E -2 b) City City of Federal Way Attn: 33325 8th Avenue South Federal Way, WA 98003 -6325 IN WITNESS WHEREOF, the parties have executed this Option to Purchase on the day and year first above written. OTTONE SALINAS, INC.: CITY OF FEDERAL WAY: By: By: Its: Its: Date: Date: APPROVED AS TO FORM: City Attorney EX. E -3 STATE OF CALIFORNIA ) COUNTY OF ) ss. On before me, [insert name and title of the officer] personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) On this day personally appeared before me , to me known to be the of The City of Federal Way, the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the 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. WITNESS my hand and official hereto affixed the day and year first above written. Name: Notary Public in and for the State of Washington. My commission expires EX. E -4 LEGAL DESCRIPTION: A PORTION OF LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDAIN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 81,028 SQUARE FEET (1.86 ACRES), MORE OR LESS. 02P - EX. A FIRST ADDENDUM PURCHASE AND SALE AGREEMENT WHEREAS, Ottone- Salinas, Inc., a California Corporation, as Buyer, and the City of Federal Way, a Washington State municipal corporation, as Seller; jointly referred to as the ( "Parties ") entered into a Purchase and Sale Agreement ( "Agreement ") effective June 15, 2017; and WHEREAS, in the Agreement, Seller agreed to sell and Buyer agreed to purchase from Seller certain real property that is currently a portion of King County tax parcel no. 0921049166, located in Federal Way, WA ( "Property"); and WHEREAS, the Property was previously a portion of King County tax parcel no. 0921049017 until said boundaries were modified per a Boundary Line Adjustment recorded on June 13, 2017 as King County record number 20170613900004 ( "BLA "); and WHEREAS, the Agreement does not reference the tax parcel number previously relating to the Property prior to the BLA; and WHEREAS, the Parties desire to amend the Agreement; NOW, THEREFORE, for and in consideration of good and valuable consideration, the Parties agree as follows: a. That paragraph 1 of the aforesaid Purchase and Sale Agreement is hereby modified to read: 1. The Property. Seller agrees to sell and Buyer agrees to purchase from Seller real property that is currently a portion of King County tax parcel no. 0921049166 (previously a portion of King County parcel no. 0921049017 until said boundaries were modified per the Boundary Line Adjustment recorded on June 13, 2017 as record number 20170613900004) located in Federal Way, WA, and legally described in Exhibit A and depicted in Exhibit B, both attached and incorporated herein (the "Property "). b. That paragraph 13 of the aforesaid Purchase and Sale Agreement is hereby modified to read: 13. 1031 Tax Exchange. The Property is part of a section 1031 of the Internal Revenue Code exchange for Buyer. Seller agrees to cooperate with Buyer at no additional cost or liability to Seller, by executing the documents necessary to complete Buyer's 1031 exchange transaction. The parties acknowledge that the Property was originally contemplated to be approximately 25% of the total size of King County tax parcel number 0921049017, and that it was the original intent of the parties to have the lot that is the Property created prior to March 1, 2017 to First Addendum to Purchase and Sale Agreement Federal Way and Ottone- Salinas, Inc. Page 1 enable Buyer to designate the Property in Buyer's section 1031 exchange designation. c. That. except as herein modified, the Purchase and Sale Agreement shall remain in full force and effect. IN WITNESS WHEREOF. the parties hereto have executed one or more copies of this Agreement to be effective on the date of final signature. Dated: �9 -a 7 - 1 -% Dated: APPROVED AS TO FORM: 1' City Attorney First Addendum to Purchase and Sale Agreement Federal Way and Ottone- Salinas. Inc. Page BUYER: OTTONE- SALINAS, INC. By: Printed Name: py1A"'-rit) �J& Its: (0>(2-R7•24 rg Fr_2c TA/[ SELLE QTY 0 EDERAL WAY By: Printed Name: T w • - l Its: M 470 r SECOND ADDENDUM PURCHASE AND SALE AGREEMENT WHEREAS, Ottone- Salinas, Inc., a California Corporation, as Buyer, and the City of Federal Way, a Washington State municipal corporation, as Seller; jointly referred to as the ( "Parties ") entered into a Purchase and Sale Agreement effective June 15, 2017, and First Addendum effective June 29, 2017, collectively the "Agreement "; and WHEREAS, in section 3.a. of the Agreement, Buyer has a feasibility period of fifteen (15) days from Mutual Acceptance for a Period of Examination after which Buyer will provide Seller with written notice of Buyer's intent to purchase the Property or terminate the Agreement; and WHEREAS, the Parties have agreed to extend the Period of Examination to July 5, 2017 and Buyer is providing Seller with its notice of intent to proceed with purchasing the Property under the terms of the Agreement; and WHEREAS, the Parties desire to amend the Agreement and Buyer desires to provide Notice of Acceptance; NOW, THEREFORE, for and in consideration of good and valuable consideration. the Parties agree as follows: a. That paragraph 3.a. of the Agreement is amended to extend the Period of Examination to July 5, 2017. b. That pursuant to paragraph 3.a.i, Buyer is hereby giving Seller its Notice of Acceptance to purchase the Property under the terms of the Agreement. c. That, except as herein modified, the Agreement shall remain in full force and effect. IN WITNESS WHEREOF. the parties hereto have executed one or more copies of this Second Addendum to be effective on the date of final signature. Dated: / i c l t 1 Second Addendum to Purchase and Sale Agreement Federal Way and Ottone- Salinas, Inc. Page 1 BUYER: OTTONE - SALINAS, INC. By: Printed Name: MAIM It0.2 110i-4 Its: CO2-2 e i2ATC S teat- A2// Dated: 7 /s/i'7 APPROVED AS TO FORM: a-p_e,LL City Attorney z.V4.1aA. CA Second Addendum to Purchase and Sale Agreement Federal Way and Ottone- Salinas, Inc. Page 2 SELLER: Y OF FE 1 RAL WAY By: Print ame: Its: IMaA or THIRD ADDENDUM TO PURCHASE AND SALE AGREEMENT WHEREAS, OTTONE - SALINAS, INC., a California Corporation, as Buyer, and the CITY OF FEDERAL WAY, a Washington State municipal corporation, as Seller; jointly referred to as the ( "Parties "), entered into a Purchase and Sale Agreement effective June 15, 2017, and First and Second Addendums effective June 29, 2017 and July 5, 2017, respectively, collectively the "Agreement "; and WHEREAS, section 5.b. of the Agreement, provides for a Closing Date of August 1, 2017; and WHEREAS, the Parties have agreed to extend the Closing Date to August 3, 2017; and WHEREAS, the Parties desire to amend the Agreement; NOW, THEREFORE, for and in consideration of good and valuable consideration, the Parties agree as follows: a. That paragraph 5.b. of the Agreement is amended to extend the Closing Date to August 3, 2017. b. That, except as herein modified, the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed one or more copies of this Third Addendum to be effective on the date of final signature. Dated: July (c , 2017. Third Addendum to Purchase and Sale Agreement Federal Way and Ottone - Salinas. Inc. Page I BUYER: OTTONE -SA 'NAS, INC. By: jd Printed Name: /)141't9-k Its: Ser-ocrita- Dated: Ju1yP %, 2017. SELL ITY • FEDERAL WAY d Name: 'IA., Fe reel/ Its: Al a j of APPROVED AS TO FORM: Ai City Attorney J R I., 6,11 Third Addendum to Purchase and Sale Agreement Federal Way and Ottone - Salinas, Inc. Page 2 FOURTH ADDENDUM TO PURCHASE AND SALE AGREEMENT WHEREAS, OTTONE-SALINAS, INC., a California Corporation, as Buyer, and the CITY OF FEDERAL WAY, a Washington State municipal corporation, as Seller; jointly referred to as the (-Parties"), entered into a Purchase and Sale Agreement effective June 15, 2017, and First, Second, and Third Addendums effective June 29, 2017, July 5, 2017, and July 26, 2017, respectively, collectively the "Agreement"; and WHEREAS, section 5.b. of the Agreement, provides for a Closing Date of August 1,2017; and WHEREAS, the Parties previously agreed to extend the Closing Date to August 3.2017; and and WHEREAS, the Parties now agree to extend the Closing Date to August 4, 2017; WHEREAS, the Parties desire to amend the Agreement; NOW, THEREFORE, for and in consideration of good and valuable consideration, the Parties agree as follows: a. That paragraph 5.b. of the Agreement is amended to extend the Closing Date to August 4, 2017. b. That, except as herein modified, the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed one or more copies of this Fourth Addendum to be effective on the date of final signature. Dated: August 3 , 2017. BUYER: OTTONE-SALINAS, INC. Fourth Addendum to Purchase and Sale Agreement Federal Way and Ottone-Salinas. Inc. Page 1 By: Printed Name: inA7711643 Ortakez--- Its: Dated: August 3 , 2017. SELLE•CITY Q FEDERAL WAY By: Prin d Name: Fe reel! Its: Mayor APPROVED AS TO FORM: ifilti -roe City Attorney T. R 14% 64 Fourth Addendum to Purchase and Sale Agreement Federal Way and Ottone- Salinas, Inc. Page 2 20170804001223 001 Instrument Number: 20170804001223 Document:WD Rec: 577.00 Page -1 of 4 Record Date:8 /4 /2017 3:55 PM King County, WA in II II 111 'F 1II IM III' IiJ III IIFII 1 • 20170804001223 Return Address: Ottone - Salinas, Inc. 295 Main Street, Suite 600 Salinas, CA 93901 FIRST AMERICAN )�(+ —1� WARRANTY DEED Rec: S77.00 8/412017 3:65 PM KING COUNTY, WA E2881625 EXCISE TAX AFFIDAVITS 8/412017 3:44 PM KING COUNTY, WA Tax Amount:S10.00 STATUTORY WARRANTY DEED Grantor: City of Federal Way Grantee: Ottonc- Salinas, Inc. Legal Description (abbreviated): 16- 104921- 000 -SU SEC 09 TOWN 21 RANGE 04 NW Additional Legal(s): Exhibit A Property Tax Account No.: 092104 - 9166 -03 iu THE GRANTOR, CITY OF FEDERAL WAY, a Washington municipal corporation, for and inconsideration of Ten Dollars ($10.00) and other good and valuable consideration, receipt of which is hereby acknowledged, conveys and warrants to OTTONE - SALINAS, INC., a California corporation, GRANTEE, all of its right, title and interest, and any alter- acquired interest therein, in and to the real property described in Exhibit A herewith attached and made a part hereof, situated in King County, Washington, subject to the exceptions set forth in Exhibit B, attached hereto and incorporated by this reference. DATED this I day of August. 2017. CITYOF FEDERAL WAY STATE OF WASHINGTON COUNTY OF KING On this day personally appeared before me Jim Ferrell, to me known to be the Mayor of the City of Federal Way that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said limited liability company. DATED this pt day okki,10��,�1q�7i 1 � *M1E D � Dp ' Q .a,,,,,,,, ' / r X44 rr nt+'N Aye 1 +°144,, 4 • 11 :1. =WORM ra < ary Public in and for the State of Was ington. ti°t Residing at: Peeeee tclPr % L A % - It 4et.' : . My commission expires: ,27 -2U2 -1 '�ltto,tWAStAN ,: Instrument Number: 20170804001223 Document:WD Rec: `677.00 Page -2 of 4 2010804001223002 Record Date:8 /4/2017 3:55 PM King County, WA EXHIBIT A LEGAL DESCRIPTION: A PORTION OF LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000 -SU, RECORDED UNDER RECORDING NUMBER 20170613900004 LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M., CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON, BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A, A DISTANCE OF 465.00 FEET; THENCE NORTH 88 °18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A, A DISTANCE OF 191.00 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88 °18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88 °18'18" EAST ALONG SAID NORTH LINE, A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. Instrument Number: 20170804001223 Document:WD Rec: S77.00 Page -3 of 4 20170804001223003 Record Date:8 /4/2017 3:55 PM King County, WA EXHIBIT B EXCEPTIONS: Covenants, conditions, restrictions and /or easements; but deleting any covenant, condition or restriction indicating a preference, limitation or discrimination based on race, color, religion, sex, handicap, family status, or national origin to the extent such covenants, conditions or restrictions violate Title 42, Section 3604(c), of the United Stales Codes: Recording Information: 4772705 2. Covenants, conditions, restrictions and easements in the document recorded November 21, 1980 as Recording No. 8011240578 of Official Records, but deleting any covenant, condition or restriction indicating a preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, marital status, ancestry, source of income or disability, to the extent such covenants, conditions or restrictions violate Title 42, Section 3604(c), of the United States Codes. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status. 3. Conditions, notes, easements, provisions and/or encroachments contained or delineated on the face of the Survey recorded under Recording No. 8108119001. 4. Conditions, notes, easements, provisions and/or encroachments contained or delineated on the face of the Survey recorded under Recording No. 8612129019. 5. Operation and Easement Agreement and the terms and conditions thereof: Between: Dayton Hudson Corporation And: BCE Development, Inc. Recording Information: 8612191598 Modification and/or amendment by instrument: Recording Information: 8704071270 and 20101222000937 We note Termination and Release of Purchase Option Rights recorded July 18, 2005 under recording no. 20050718000838. We note Termination of Operation and Easement Agreement (As to Lot 3 Only) recorded December 22, 2010 under recording no. 20101222000936. Affects: Lot 4 of Survey 8612129019 6. Thetermsandprovisions contained in the document entitled "Storm Drain Easement Agreement" Recorded: July 15, 1987 Recording No.; 8707150886 7. Easement. including terms and provisions contained therein: Recorded: September 14, 1987 Recording Information: 8709140815 In Favor Of: Pugct Sound Power and Light Company For: Electric and/or gas transmission and /or distribution system -3- Instrument Number: 20170804001223 Document:WD Rex: 877.00 Page -4 of 4 20170804001223.004 r Record Date:8 /4 /2017 3:55 PM King County, WA 8. Easement, including terms and provisions contained therein: Recording Information: 8803280350 In Favor of: Federal Way Water and Sewer District For: Water facilities 9. Easement, including terms and provisions contained therein: Recording Information: 8804130853 In Favor of: Federal Way Water and Sewer District For: Water facilities 10. Easement, including terms and provisions contained therein: Recording Information: 8903130453 and 8903130454 In Favor of: Federal Way Water and Sewer District For: Sewer facilities I I. The terms and provisions contained in the document entitled "Easement Agreement" recorded December 24, 1998 as 9812240445 of Official Records. 12. Covenants, Conditions, Restrictions and/or Easements: Recorded: October 24, 2006 Recording No.: 20061024000518 13. Covenants, Conditions, Restrictions and/or Easements: Recorded: September 27, 2007 Recording No.: 20070927002037 14. Conditions, notes, easements, provisions and /or encroachments contained or delineated on the face of the Survey recorded under Recording No. 20101221900001. 15. The terms and provisions contained in the document entitled " "Declaration of Reciprocal Access Easement and Maintenance Agreement" Recorded: December 22, 2010 Recording No.: 20101222000939 16. Agreement and the terms and conditions thereof Between: Lakchaven Utility District, King County, a municipal corporation of the State of Washington And: The City of Federal Way Recording Information: 20151124000661 17. Terms, covenants, conditions, restrictions, easements, boundary discrepancies and encroachments as contained in recorded Lot Line Adjustment (Boundary Line Revisions): Recorded: June 13,2017 Recording Information: 20170613900004 -4- 20170804001224 001 Instrument Number: 20170804001224 Document:COV Rec: S83.00 Page -1 of 10 Record Date:8 /4 /2017 3:55 PM King Count), WA Return To: City of Federal Way Attn: City Attorney's Office 33325 8th Avenue South Federal Way, WA 98003 -6325 FIRST AMERICAN-2� lIl1!I IllhJII JII 1111111111 Ii( III Iill IlII !IIItllltiI IA 20170804001224 COVENANT Rec: 589.00 8/4/2017 3:55 PM KING COUNTY, WA RESTRICTIVE COVENANTS Grantor: Ottone - Salinas, Inc. Grantee: City of Federal Way Abbreviated Legal Description: POR OF LOT 3A CITY OF FEDERAL WAY BOUNDARY LINE ADJUSTMENT NO 16- 104921 -00 -SU RECORDING NO 20170613900004 (BEING A PORTION OF NE QTR SW QTR STR 09- 21 -04) Additional Legal Description: Exhibit A Assessor's Tax Parcel ID #: 092104-9166-03 Ottone - Salinas, Inc. ( "Grantor ") is the owner of real property legally described in Exhibit A attached and incorporated hereto ( "Grantor's Property "). The City of Federal Way, a municipal corporation ( "City ") is the owner of real property legally described in the attached and incorporated Exhibit B ( "City's Property ") in consideration of mutual benefits, Grantor agrees to the following Restrictive Covenants burdening Grantor's Property and benefitting the City's Property. I. Use Restrictions. For a period of Twenty -five (25) years after recording of these Restrictive Covenants, or for so long as the City's Property is used for its Performing Arts & Event Center ( "PAEC "), whichever is longer. RESTRICTIVE COVENANTS . I Instrument Number: 201708040(11224 Document:COV Rex: S83.00 Page -2 of 1�lzosoaootzza.00z Record Date:8 /4/2017 3:55 PM King County, WA a. For the development of the southern half of the Grantor's Property, Grantor may only develop a hotel accommodating at least 90 rooms (the "Hotel Use Restriction "). b. The following uses are not allowed on Grantor's Property: (i) Group Homes; (ii) Social service transitional housing; (iii).Vehicle service stations or car wash; (iv) Retail - Tire store; (v) Storage units; (vi) Retail providing limited medical manufacturing services including dental labs, optical services, prosthetic labs; (vii) Hospitals, convalescent care or nursing homes; (viii) Drug rehabilitation centers; (viiii) Church, or other place of religious worship; (x) No more than three (3) Retail — barber/beauty; and (xi) Fast food restaurant. 2. Design. Grantor's Hotel shall be designed and maintained in harmony with the City's design for the PAEC. The PAEC uses wood, metal and glass for a modern style building. See Section 10 below for reference to the depiction of PAEC design. Grantor was chosen by the City to purchase Grantor's Property based on Grantor's response to a Request for Proposal in which Grantor submitted a design for the Hotel that harmonized and was similar in design to the PAEC and furthered the City's vision to create a Town Center. For so long as the Hotel Use Restriction encumbers the Grantor's Property, the initial design of the Hotel, maintenance, and any subsequent alterations shall maintain the harmony and similarity with PAEC building. RESTRICTIVE COVENANTS • 2 0170804001224 003 Instrument Number: 2017080400122.1 Document:COV Rec: S83.00 Page-3 of 1 Record Date:8 /4/2017 3:55 PM King Count-, WA a. For initial construction of the Hotel, the parties agree to coordinate design from Mutual Acceptance of the Purchase and Sale Agreement dated June 15, 2017, between the parties until the time the City sends out its Request for Bid for the Grand Staircase, and agree to site coordination from the start of constructing the Grand Staircase through substantial completion of same. b. The Hotel's major building materials and finishes shall be substantially as referenced in Section 10 below, to the extent allowed by the Federal Way Revised Code ( "FWRC "). In the event changes are necessary Grantor must receive prior written approval from the City, which shall not be unreasonably delayed or withheld. c. Pedestrian connectivity between the Grantor's Property and the City's Property must be constructed and maintained through the use of sidewalks, plazas, patios and other means approved by the City and as may be authorized and required under the FWRC. Any alterations to the same must receive prior written approval from City, which shall not be unreasonably delayed or withheld. d. The parties have coordinated the use of a vehicular turnaround to be used by both the City's Property and the Grantor's Property and to be located in the southeast corner of the City's Property and the southwest comer of the Grantor's Property (the "Turnaround "). Joint use of the Turnaround is governed by the Mutual Access Easement for Vehicular and Pedestrian Ingress and Egress executed on even date. Each party shall pay for construction and maintenance of the portion of the Turnaround on its Property. The Turnaround shall be constructed substantially as referenced in Section 10 below, to the extent allowed by the FWRC. Prior to and during hotel construction, pedestrian and vehicular access to the Turnaround shall be maintained. RESTRICTIVE COVENANTS . 3 Instrument Number: 20170804001224 Document:COV Rec: S83.00 Page -4 of 10170804001224.004 Record Date:8 /4 /2017 3:55 PM King County, WA 3. Hotel Brand. The Hotel shall be operated as an "upscale hotel" comparable to a Hilton Garden Inn or higher tier product, a Hilton Double Tree or higher tier product, Hyatt Place or higher tier product, or Hyatt House or higher tier product. In the event that the Hotel brand changes from that initially approved by the City, Grantor must receive prior written approval from City, which shall not be unreasonably delayed or withheld. 4. Hotel Amenities. For so long as the Hotel Use Restriction encumbers Grantor's Property the Hotel shall include a fitness center, business center, small to medium meeting rooms, and restaurant with lounge. 5. Job Creation. Federal funds used in conjunction with the Grantor's Property require that the development of Grantor's Property meet certain job creation targets for moderate to low income persons. Grantor must make at least Fifty -one (51) percent of the positions created by the operation of the hotel available to low to moderate income residents of the City. Low - income and moderate - income are defined as being at or below 80 percent of Area Median Income ( "AMI ") for households, as specified and published annually by the U.S. Department of Housing and Urban Development. Determination of eligible income shall be based upon the total income of all members of the employee's household. Grantor agrees to document the creation, availability, recruitment, hiring, and retention of these jobs, on forms provided by the City, through semi - annual reporting to the City during the first three years of operation of the hotel. 6. Construction. During the term of' these Restrictive Covenants in Section 1, Grantor agrees to the following measures to mitigate for construction impacts on the City's Property during any construction on the Property: RESTRICTIVE COVENANTS • 4 Instrument Number: 20170804001224 Document:COV Rec: 583.00 Page -5 of 1 20170804001224 005 Record Date:8 /412017 3 :55 PM King County, WA �/ (i) Cleaning and Dust Control: If in the City's sole determination, construction activities on the Property are the cause of dust or other debris that must be cleaned from the City's PAEC site on King County Tax Parcel No. 0921049017, the City may charge Buyer for the cost of cleaning and removing same. Buyer agrees to pay for these costs within thirty (30) days of receiving an invoice from the City. (ii) Construction Hours: The parties agree contractually that all construction activity on the Property shall be done between Monday and Friday, 7:00 AM to 5:30 PM. Any exceptions to this contractual agreement may be sought by Buyer pursuant to the procedures in FWRC 19.105.040(2)—(6) or as hereafter amended or replaced in the FWRC. 7. Notice. Any notice or approval required to be given by one party to the other under the provisions of this Restrictive Covenant shall be effective upon personal delivery to the other party, or after three (3) business days from the date that the notice or approval is mailed to the current address on record of each Party. The parties shall promptly notify each other of any change of address. 8. Attorneys' Fees. In the event of litigation between or among the parties hereto, declaratory or otherwise, in connection with or arising out of this Restrictive Covenant the prevailing party shall recover from the non - prevailing party all costs, including reasonable attorneys' fees, paralegals' fees and other professional or consultants' fees expended or incurred in connection therewith, as set by the court, including for appeals, which shall be determined and fixed by the court as part of the judgment. RESTRICTIVE COVENANTS - 5 170804001224.006 Instrument Number: 20170804001224 Document:COV Rec: $83.00 Page -6 of 1 Record Date:8/4/2017 3:55 PM King County, WA 9. Miscellaneous. a. The laws of the state of Washington shall govern the interpretation of these Restrictive Covenants. Any action brought pursuant to these Restrictive Covenants shall be brought in the Superior Court for King County, Washington. b. These Restrictive Covenants may be terminated or modified by execution of a written agreement by the Grantor and the City and said agreement shall be recorded with the King County Recorder's Office. c. These Restrictive Covenants shall run with the land and be binding upon Grantor's and the City's successors and assigns. 10. Graphic Depictions /Exhibits. a. A depiction of the PAEC described in Section 2 above is found as Exhibit C to the Restrictive Covenant in the records of the City of Federal Way at "AG 17 -122," and also found in the City Clerk's records for the July 5, 2017, City Council regular meeting where the Purchase and Sale Agreement for the Property was approved. b. A depiction of the Hotel materials and finishes referenced in Section 2.b. above is found as Exhibit D to the Restrictive Covenant in the records of the City of Federal Way at "AG 17-122," and also found in the City Clerk's records for the July 5, 2017, City Council regular meeting where the Purchase and Sale Agreement for the Property was approved. c. Depictions of the Turnaround described in Section 2.d. above is found in Exhibit E and Exhibit F to the Restrictive Covenant in the records of the City of Federal Way at "AG 17 -122," and also found in the City Clerk's records for the July 5, 2017, City Council regular meeting where the Purchase and Sale Agreement for the Property was approved. RESTRICTIVE COVENANTS - 6 20170804001224 007 Instrument Number: 201 70804001224 Document:COV Rec: S83.00 Page -7 of 10 Record Date:8 /4 /2017 3:55 PM King County, WA DATED this 3►tt day of ,4v -045. f , 2017. GRANTOR: OTTONE - SALINAS, INC. By Title GNAT- trtrto (9rTa1E, SL (Z A r GRANTEE: CITY OF FEDERAL WAY RESTRICTIVE COVENANTS - 7 29170804001224 008 Instrument Number: 20170804001224 Document:COV Rec: $83.00 Page -8 of 1u Record Date:8/4/2017 3:55 PM King County, WA NOTARY ACKNOWLEDGMENT FOR OTTONE - SALINAS, INC.: STATE OF CALIFORNIA ) ss. COUNTY OFrA.Q4kv�,t On A u 3 1 before me, ,c6c1 [insert name and title of the officer] personally appeared � '\:.P.ts1 D *Pit) , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 961O1kQ (Seal) SUZANNE BROCKEI7 1 COMM. #2189599 > Notary Public•Califomla Eg County of Monterey — My Comm. Exp. May 1, 2021 1 NOTARY ACKNOWLEDGMENT FOR CITY OF FEDERAL WAY: STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) I certify that I know or have satisfactory evidence that Jim Fare!' signed this instrument and, on oath, stated that elie& was authorized to execute the instrument and acknowledged it as the NIA jOr of the City of Federal Way, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated this de day of 1 D CQ tiff , 2017. RESTRICTIVE COVENANTS - 8 d am N Wry Public in an for the State of W &tiunn3iv►'t My commission expires: Otf 27 -2021 Instrument Number: 20170804001224 Document:COV Rec: 583.00 Page -9 of 1 0170804001224.009 Record Date:8 /4/2017 3:55 PM King County, WA EXHIBIT A PARCEL B: A PORTION OF LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDAIN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88 °18' 18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 81,028 SQUARE FEET (1.86 ACRES), MORE OR LESS. RESTRICTIVE COVENANTS - 9 Instrument Number: 20170804001224 Document:COV Rec: S83.00 Page -10 of 1'070804001224.010 Record Date:8 /4/2017 3:55 PM King County, WA EXHIBIT B PARCEL A: LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON EXCEPT: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01°29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 135,493 SQUARE FEET (3.11 ACRES), MORE OR LESS. RESTRICTIVE COVENANTS - 10 20170804001225.001 Instrument Number: 20170804001225 Document:OPT Rec: S78.00 Page -1 of 5 Record Date:8 /4/2017 3:55 PM King County, WA Return Address: City of Federal Way Attn: City Attorney's Office 33325 8th Avenue South Federal Way, WA 98003 -6325 _. FIRS? AMERICAN lli1111111 IIII I�lll iI I Illll E II111Il11 II111111i11� Ill III IIII Ill 20170804001225 OPTION TO PURCHASE Rec: $78.00 814/2017 9:55 PM KING COUNTY, WA OPTION TO PURCHASE Grantor: Ottone - Salinas, Inc. Grantee: City of Federal Way Abbreviated Legal Description: POR OF LOT 3A CITY OF FEDERAL WAY BOUNDARY LINE ADJUSTMENT NO 16- 104921 -00 -SU RECORDING NO 20170613900004 (BEING A PORTION OF NE QTR SW QTR STR 09- 21 -04) Additional Legal Description: Exhibit A Assessor's Tax Parcel ID #: 092104- 9166 -03 Reference Number(s) of Related Documents: N/A THIS OPTION TO PURCHASE is made this 3.GQ day of , 2017, by and between OTTONE - SALINAS, INC. (hereinafter "Grantor "), a California corporation, and the CITY OF FEDERAL WAY, a Washington municipal corporation in King County, State of Washington (hereinafter "City "). 1. Grantor is the owner of real property legally described in Exhibit A (the "Property "). 2. For and in consideration of mutual consideration, receipt of which is hereby acknowledged, Grantor agrees that in the event Grantor, its heirs, successors, and assigns does not Commence Construction on the Property by June 1, 2018, the City shall have the right, but not the obligation, to purchase the Property from the Grantor, its heirs, successors, and assigns on the terms set forth herein. Commencing Construction shall be defined as obtaining a building permit and commencing earth moving activities. 3. If Construction has not commenced on or before June 1, 2018, the City shall have thirty (30) calendar days to determine whether it will exercise its rights under this Option to Purchase. During this thirty (30) calendar day period, the City shall be permitted reasonable access Instrument Number: 20170804001225 Document:OPT Rec: S78,00 Page -2 of 5 20170804001225 002 Record Date:8 /4 /2017 3:55 PM King County, WA to the Property. If the City decides to purchase the Property it must send Grantor notice of its intent to purchase ("Notice of Intent ") at the address provided below on or before the expiration of the 30- day period. 4. If the City fails or neglects to tender the Notice of Intent, this Option to Purchase shall fully and completely terminate without any further liability to Grantor, City, or Grantor's purchaser. 5. If the City properly tenders a Notice of Intent, the City shall purchase the Property from Grantor at the same purchase price as the City sold the Property to Grantor pursuant to the Purchase and Sale Agreement dated June 15, 2017, and any Addendum to same ( "Purchase Agreement "). 6. Other terms of the City's purchase under this Option to Purchase shall also be the same as terms in the Purchase Agreement on Title in Section 4; Possession in Section 6; Hazardous Materials Provisions in Section 8; Attorney's Fees in Section 14; Remedies in Section 15; Risk of Loss, Insurance in Section 16; Notices in Section 17; Time in Section 19; Seller Covenants in Section 22; Governing Law in Section 23; and Binding Agreement in Section 24. 7. Closing of the sale to the City shall occur through an escrow (the "Escrow ") with a Title Company chosen by the City (which shall appoint and identify to the parties a "Closing Agent ") when the Title Company is in a position to issue the Title Policy and all documents and funds have been deposited with the Title Company. Unless an earlier date is agreed to in writing by the parties, the "Closing Date" shall be within sixty (60) days from the date the City sends the Notice of Intent. 8. This Option to Purchase shall be a covenant running with the land, binding Grantor's heirs, successors and assigns. 9. Except as specifically set forth herein, any demand, request or notice which either party hereto desires or may be required to make or deliver to the other shall be in writing and shall be deemed given when personally delivered, or when delivered by private courier service (such as Federal Express), or three days after being deposited in the United States Mail first class, postage prepaid and addressed as follows: a) Grantor Ottone- Salinas, Inc. 295 Main Street, Suite 600 Salinas, CA 93901 Instrument Number: 20170804001225 Document:OPT Rec: $78.00 Page -3 of 5 20170804001225.003 Record Date:8 /4/2017 3:55 PM King County, WA b) City City of Federal Way Attn: City Attorney's Office 33325 8th Avenue South Federal Way, WA 98003 -6325 IN WITNESS WHEREOF, the parties have executed this Option to Purchase on the day and year first above written. OTTONE - SALINAS, INC.: CITY OF FEDERAL WAY: By: Its: Stegt.T4mY Date: 0241-7 y :1; w, a.30e Date: 10,7 APPROVED AS TO FORM: Au City Attorney) I. Ar, ca. II Instrument Number: 20170804001225 Document:OPT Rec: 578.00 Page -4 of 5 20170804001225 004 Record Date:8 /4/2017 3:55 PM King County, WA STATE Of CALIFORNIA ) COUNTY OF Vvt o ►74_,■If ) ss. 5 U2_aan)r.1e. B v-r_ }e--• Crr4o On %}i ,sT 3,Lv /7 before me, [insert name and title of the officer] personally appeared 1- }a," t-T1- ") cfrzto pJ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature STATE OF WASHINGTON ) COUNTY OF KING ss. On this day personally appeared before me known to be the map of The City of Federal Way, the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and volunta act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated tha was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. SUZANNE BROCKETT F' COMM. #2189599 > Seal < �: ^' Notary Public- Califomla �► County of Monterey Comm. May 1, 2QZt Jim Fer(e 11 ,tome WITNESS my hand and official hereto affixed the day and year first above written. e: .s Lt. WairaMdi Notary Public n and for the State of Was ington Residing at: 1SCree Court-hi r WA My commission expires: 04 -27.2021 Instrument Number: 20170804001225 Document:OPT Rec: S78.00 Page -5 of 5 20170804001225.005 Record Date:8 /4/2017 3:55 PM King County, WA EXHIBIT A LEGAL DESCRIPTION: A PORTION OF LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921 - 000-SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDAIN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01°29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 19L00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88 °18' 18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 81,028 SQUARE FEET (1.86 ACRES), MORE OR LESS. 20170804001226 001 Instrument Number: 20170804001226 Document:R Rec: $76.00 Page -1 of 3 Record Date:8 /4 /2017 3:55 PM King County, WA • WHEN RECORDED RETURN TO: City of Federal Way Attn: City Attorney's Office 33325 8`h Avenue South Federal Way, WA 98003 -6325 CD 1 --11 FIRST AMERICAN IigiIdV !!W1dIWRNIY6M41iV9V 20170804001226 RELEASE Rec: $76.00 8!4!2017 3:55 PM KING COUNTY, WA RELEASE OF PARKING COVENANT Grantors: City of Federal Way Grantee: City of Federal Way Abbreviated Legal Description: POR OF LOT 3A CITY OF FEDERAL WAY BOUNDARY LINE ADJUSTMENT NO 16- 104921 -00 -SU RECORDING NO 20170613900004 (BEING A PORTION OF NE QTR SW QTR STR 09- 21 -04) Additional Legal Description: Exhibit A Assessor's Tax Parcel ID #: 092104- 9166 -03 Reference Number(s) of Documents assigned or released: N/A THIS RELEASE OF PARKING COVENANT ( "Release ") is made and declared the date signed below by the City of Federal Way, a Washington municipal corporation, ( "Grantor ") having required as part of the Land Use Approval dated July 24, 2015 (File Nos. 14- 100496 -UP and 15- 103435 -CO), that eighty (80) parking stalls for the Performing Arts & Event Center be located on adjacent real property ( "Parking Covenant "). Grantor approved a Parking Revision, File No. 17- 102647 -AD, on June 13, 2017, and a clarification of same on July 21, 2017, that eliminated the requirement for the Parking Covenant on the real property legally described and incorporated herein on the attached Exhibit A. Grantor hereby releases the Parking Covenant from the real property described in Exhibit A attached hereto. DATED this day of RELEASE OF PARKING COVENANT - 1 ,2017. CITY OF FEDERAL WAY Instrument Number: 20170804001226 Document:R Rec: $76.00 Page -2 of 3 Record Date:8 /4 /2017 3:55 PM King County, WA 20170804001226.002 STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) 1 certify that I know or have satisfactory evidence that Jlm Feat/1 before me personally appeared, to me known to be the Mayor , of the corporation that executed the within and foregoing instrument, and acknowledged 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 lte was authorized to execute said instrument. DATED this 2ndday of ALIOUSt� RELEASE OF PARKING COVENANT - 2 , 2017. No ry Public in and for the state of Washington Residing at: Reece_ Coll i4i,s, WA My appointment expires: 04-771,2.021 Instrument Number: 20170804001226 Document :R Rec: S76.00 Page -3 of 3 Record Date:8 /4 /2017 3:55 PM King County, WA 20170804001226 003 EXHIBIT A A PORTION OF LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDAIN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 81,028 SQUARE FEET (1.86 ACRES), MORE OR LESS RELEASE OF PARKING COVENANT - 3 20170804001227 001 Instrument Number: 20170804001227 Document:EAS Rec: 579.00 Page -1 of 6 Record Date:8 /4/2017 3:55 PM King County, WA EXCIS Kin By Return Address: City of Federal Way 33325 8th Ave. S. Federal Way, WA 98003 ATTN: City Attorney's Office FIRST AMERICAN 5 295 ilNi'IilVtlilY1 IMillIn111111011111111 20170804001227 EASEMENT Rec: 579.00 81412017 3:55 PM KING COUNTY, WA MUTUAL ACCESS EASEMENT FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS Grantor: City of Federal Way Ottone- Salinas, Inc. Grantee: Ottone- Salinas, Inc. City of Federal Way Abbreviated Legal Description: POR OF LOT 3A CITY OF FEDERAL WAY BOUNDARY LINE ADJUSTMENT NO 16- 104921 -00 -SU RECORDING NO 20170613900004 (BEING A PORTION OF NE QTR SW QTR STR 09- 21 -04) Assessor's Tax Parcel ID #: 092104- 9166 -03 Additional Legal Description: Exhibits A and B Reference Number(s) of Related Documents: N/A This Mutual Access Easement Agreement for Vehicular and Pedestrian Ingress and Egress ( "Agreement ") is made and entered into this aid day of /ti 4.6 , 2017, between the CITY OF FEDERAL WAY, a Washington Municipal Corporation ( "City "), and OTTONE- SALINAS, INC., a California corporation ( "Developer "), singularly referred to herein as "Party," and together as the "Parties." For and in consideration of One Dollar ($1.00) and other valuable consideration, the receipt of which is hereby acknowledged, the City grants, conveys and warrants to Developer, for the purposes hereinafter set forth, a non - exclusive access easement across and over certain real property ( "City Property ") located in Federal Way, Washington, legally described as follows: See Exhibit A attached and incorporated herein. For and in consideration of One Dollar ($1.00) and other valuable consideration, the receipt of which is hereby acknowledged, Developer grants, conveys and warrants to the T • ► OT R • (WIRED ' r .... ...... Deputy Instrument Number: 2017080- 1001227 Document:EAS Rec: 579.00 Page -2 of ( 20170804001227 002 Record Date:8 /4/2017 3:55 PM King County, WA City, for the purposes hereinafter set forth, a non - exclusive access easement across and over certain real property ( "Developer Property ") located in Federal Way, Washington, legally described as follows: See Exhibit B attached and incorporated herein. The City Property and the Developer Property shall be referred to together as the "Properties." 1. Purpose. The Parties, their agents, permittces, designees, tenants, patrons, and /or assigns shall have the right, without prior notice to the other Party, to access over and across the Properties for the following limited purposes: a. Vehicular ingress, egress, circulation, and passage over and across the travel lanes and driveway areas as the same may from time to time be constructed, altered, and maintained for such use; and b. Pedestrian ingress, egress, circulation, and passage, over and across the parking, driveways, plaza, and sidewalk areas as the same may from time to time be constructed, altered, and maintained for such use. 2. Access. The Parties shall have the right of both vehicular and pedestrian access for the limited purposes set forth in this Agreement and this Agreement shall not be construed to confer any additional rights or property interests. - 3. Obstructions. The Parties shall not permit obstructions to the ingress, egress, circulation, and passage of the Properties without prior written notice to the other Party. In the event that a requesting Party requires obstruction of an ingress or egress path, the requesting Party shall provide an alternate ingress or egress path for the duration of the obstruction, at the other Party's election. The temporary, short term loading and un- loading of vehicles, service vehicles, or trucks shall not be considered an obstruction for the purposes of this Agreement. 4. Use of Easement. The Parties reserves the right to use their respective Property for any purpose not inconsistent with the granted rights. The Parties shall not permit damages, alterations, improvements, or any other modifications to the other Party's Property without express written permission. 5. Maintenance. The Parties agree that they are solely responsible for all maintenance activities and costs on their respective Property, except that each Party is responsible for all repairs and remediation due to an act by the other Party, its agents, permittees, designees, tenants, patrons, and /or assigns which damages, alters, or otherwise modifies the other Party's property. 6. Indemnification. The Parties agrees to indemnify, defend, and hold each other, their elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions, and liabilities (including costs and all attorneys' fees) to or by any and all persons or entities, including, without limitation, their respective agents, Instrument Number: 2017080. 1001227 Document:EAS Rec: S79.00 Page -3 of 6 20170804001227 003 Record Date:8 /4/2017 3:55 PM King County, WA licensees, or representatives, arising from, resulting from, or connected with this Agreement. 7. Successors and Assigns. The rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. DATED this 3' day of Avesi (rSt , 2017. CITY OF FEDERAL WAY: OTTONE - SALINAS, INC.: Name: jrfA ©TfcNC Its: S Et(5 r-,t,4 y (Title) NOTARY ACKNOWLEDGMENT FOR CITY OF FEDERAL WAY: STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) On this day personally appeared before me Jim Ferrell, to me known to be the Mayor of the City of Federal way, the municipal corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that he ex—she-was authorized to execute said instrument. GIVEN my hand and official seal this a day of �.�`'01E\D ty0'tlr� h. sill = ♦ OT �/1,4�4 y� �- • • ,. cm N e. s r0 vF1WASN`e� 11/ /t , 2017. .l i No ary Public in and for the State of i ashington Residing at: Qj cne Court , W A My commission expires: 014-2,1 Instrument Number: 20170804001227 Document:EAS Rcc: S79.00 Page -4 of 6 20170804001227 004 Record Date:8 /4/2017 3:55 PM King County, WA NOTARY ACKNOWLEDGMENT FOR OTTONE - SALINAS, INC.: STATE OF CALIFORNIA ) ss. COUNTY OF On � —1 , 1-01.1 before me, ' IJ r , i - €' 1T [insert name and title of the officer] personally appeared Yy\ )(v (A) (7 T R r , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature SUzANNE BROCKETT COMM. #2189599 > ✓: Notary Public - California b < ' County of Monterey MyComm.,FaMay1,2021 Instrument Number: 20170804001227 Document:EAS Rec: 579.00 Page -5 of 6 20170804001227 005 Record Date:8 /4/2017 3:55 PM King County, WA EXHIBIT A LEGAL DESCRIPTION: LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921 - 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON EXCEPT: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88 °18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 135,493 SQUARE FEET (3.11 ACRES), MORE OR LESS. Instrument Number: 20170804001227 Document:EAS Rec: 579.00 Page -6 of 6 20170804001227 .006 Record Date:8 /4/2017 3:55 PM King County, WA EXHIBIT B LEGAL DESCRIPTION: A PORTION OF LOT 3A AS S1 -IOWN ON TI -IE CITY OF FEDERAL WAY BLA 16- 104921- 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDAIN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01°29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 81,028 SQUARE FEET (1.86 ACRES), MORE OR LESS. 20170804001228 001 Instrument Number: 20170804001228 Document:REAS Rec: S77.00 Page -1 of 4 Record Date:8 /412017 3:55 PM King Count}, OVA • WHEN RECORDED RETURN TO: City of Federal Way Attn: City Attorney's Office 33325 8th Avenue South Federal Way, WA 98003 -6325 vCD o a.— :,MER1CA ► I IIIIih//IihIIlIihIlllhIllihIhllhII/I/hflhIIj///jJ/,flhjJ/J///J/ 2017080400p 218 S/4/2017 3:55 PM KING COUNTY, WA RELEASE OF OPERATION AND EASEMENT AGREEMENT Grantors: City of Federal Way Grantee: City of Federal Way Abbreviated Legal Description: POR OF LOT 3A CITY OF FEDERAL WAY BOUNDARY LINE ADJUSTMENT NO 16- 104921 -00 -SU RECORDING NO 20170613900004 (BEING A PORTION OF NE QTR SW QTR SIR 09- 21 -04) Additional Legal Description: Exhibit A Assessor's Tax Parcel !MI: 092104 - 9166 -03 Reference Number(s) of Related Documents: 8612191598, 8704071270, 20101222000937, and 20050718000838 THIS RELEASE OF OPERATIONS AND EASEMENT AGREEMENT ( "Release ") is made and declared the date signed below by the City of Federal Way, a Washington municipal corporation ( "Grantor "). Grantor owns real property benefitted by the Operation and Easement Agreement recorded under King County Recorder's Office number 8612191598, modified by documents with King County recording numbers 8704071270, 20101222000937, and 20050718000838 ( "O &E Agreement "), which burdens the real property legally described and incorporated herein on the attached Exhibit A. Grantor's real property benefiting from the O &E Agreement is legally described in Exhibit 13 attached and incorporated herein. Grantor hereby releases the O &E Agreement from the real property described in Exhibit A attached hereto. RELEASE OF OPERATING AND EASEMENT AGREEMENT - I EXCI Ki OT QUIRED Divis'on Deputy Instrument Number: 20170804001228 Document:REAS Rec: `77.00 Page -2 of 4 0170804001228.002 Record Date:8 /4 /2017 3:55 PM King County, WA DATED this ?` day of STATE OF WASHINGTON ) COUNTY OF KING ) ss. , 2017. CITY OF FEDERAL WAY • I certify that I know or have satisfactory evidence that I'M FrrrCll before me personally appeared, to me known to be the Niatjor , of the corporation that executed the within and foregoing instrument, and acknowledged 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 Oshe -was authorized to execute said instrument. DATED this _ day of Al t4$ t ,20I7. na e: ry Public in a d for the state of Washi gton Residing at: Rote Courtly , wA My appointment expires: 04!- 27 -2011 RELEASE OF OPERATING AND EASEMENT AGREEMENT - 2 0170804001228 003 Instrument Number: 20170804001228 Document :REAS Rec: S77.00 Page -3 of Record Date:8 /4/2017 3:55 PM King County, WA EXHIBIT A LEGAL DESCRIPTION: A PORTION OF LOT 3A AS SHOWN ON THE CITY OF FEDERAL WAY BLA 16- 104921- 000 -SU LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDAIN, CITY OF FEDERAL WAY, KING COUNTY, WASHINGTON BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 3A; THENCE SOUTH 01 °29'05" WEST ALONG THE EAST LINE OF SAID LOT 3A A DISTANCE OF 465.00 FEET; THENCE NORTH 88°18'18" WEST ALONG THE SOUTH LINE OF SAID LOT 3A A DISTANCE OF 191.00 FEET; THENCE NORTH 01°29'05" EAST A DISTANCE OF 286.01 FEET; THENCE SOUTH 88°18'18" EAST A DISTANCE OF 43.50 FEET; THENCE NORTH 01 °29'05" EAST A DISTANCE OF 178.99 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3A; THENCE SOUTH 88°18'18" EAST ALONG SAID NORTH LINE A DISTANCE OF 147.50 FEET TO THE POINT OF BEGINNING. CONTAINING 81,028 SQUARE FEET (1.86 ACRES), MORE OR LESS RELEASE OF OPERATING AND EASEMENT AGREEMENT - 3 0170804001228 004 Instrument Number: 20170804001228 Document:REAS Rec: S77.00 Page -4 of Record Date:8 /4/2017 3:55 PM King County, WA EXHIBIT B LEGAL DESCRIPTION: LOT 4 SHOWN ON RECORD OF SURVEY RECORDED IN VOLUME 52 OF SURVEYS, PAGES 220 AND 220A, UNDER RECORDING NUMBER 8612129019, IN KING COUNTY, WASHINGTON; EXCEPT THAT PORTION CONVEYED TO KING COUN I Y FOR SOUTH 316TH STREET BY DEED RECORDED UNDER RECORDING NUMBER 20020429001853. EXCEPT: THAT PORTION OF SAID LOT 4 BEING FURTHER DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 4; THENCE SOUTH 88'18'18" EAST ALONG THE NORTH LINE OF SAID LOT 4 A DISTANCE OF 147.50 FEET; THENCE SOUTH 0129'05' WEST A DISTANCE OF 540.00 FEET TO A POINT ON THE SOUTH LINE OF SAID LOT 4; THENCE NORTH 88'18'18" WEST ALONG SAID SOUTH LINE LOT 4 A DISTANCE OF 147.50 FEET; THENCE NORTH 01'29'05' EAST ALONG THE WEST LINE OF SAID LOT 4 A DISTANCE OF 540.00 TO THE POINT OF BEGINNING. CONTAINING 246,240 SQUARE FEET, MORE OR LESS (5.66 ACRES) RELEASE OF OPERATING AND EASEMENT AGREEMENT - 4