HomeMy WebLinkAboutAmended and Restated Development Rights Agreement - Mel's LotAFTER RECORDING RETURN TO:
Lexi, LLC
c/o Michael John Klein, CPA
30300 Agoura Road, Ste. 270
Agoura Hills, CA 91301
AMENDED AND RESTATED DEVELOPMENT RIGHTS AGREEMENT
Grantor: CITY OF AUBURN, and
AUBURN PROFESSIONAL PLAZA, LLC, a Washington
limited liability company
Grantee: LEXI, LLC, a Washington limited liability company
Legal Description: Parcel A of City of Auburn Declaration of Lot Combination
BLA 19-0005, recorded May 9, 2019 under King County
recording number 20190509000812, also known as Block 7,
Map of L.W. Ballard's Park Addition to Slaughter, according
to the Plat Thereof recorded in Volume 3 of Plats, Page 91,
records of King County, Washington; together with the
vacated West 10 feet of Silver Street (now "A" Street NW)
adjoining, except that portion conveyed to the City of
Auburn by Deed recorded November 18, 2009 under King
County recording number 20091118001497.
Tax Parcel Nos.: 0492000460, 0492000461 and 0492000463
Related Documents: 20100514000044 q
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AMENDED AND RESTATED
DEVELOPMENT RIGHTS AGREEMENT
This AMENDED AND RESTATED DEVELOPMENT RIGHTS AGREEMENT
("Agreement") is entered into as of January , 2020, by and between THE CITY OF
AUBURN, a code city of the state of Washington ("City"), AUBURN PROFESSIONAL
PLAZA, LLC, a Washington limited liability company ("APP"), and LEXI, LLC, a
Washington limited liability company ("Lexi"), with reference to the following facts:
INTRODUCTION
I. On May 14, 2010, a Development Rights Agreement was entered into by and
between the City, as Grantor, and APP, as Grantee, which Development Rights Agreement
was recorded under King County recording number 20100514000044 ("Original DRA").
II. On January 31, 2019, APP assigned all of its right, title, powers and interest as
Grantee under the Original DRA to Lexi, as reflected in the Assignment of Grantee's
Interest in Development Rights Agreement recorded under King County recording number
20190131000785.
III. On February 1, 2019, a Memorandum of Exercise of Grantee's Rights Pursuant to
Development Rights Agreement was recorded under King County, Washington recording
number 201902013000726.
IV. Notwithstanding its assignment referenced in Introduction II, APP retained rights as
a Condo Unit Owner in the APP Parking Spaces.
V. The City, APP and Lexi wish to amend the Original DRA and restate it, with
changes, in its entirety.
RECITALS
A. A Parking Easement Agreement was entered into as of November 17, 2009 by and
between APP, as Grantor, and APP, as Grantee, and recorded under King County,
Washington recording number 200911.18001355 ("PEA").
B. The PEA granted to APP an easement and right to use one hundred twenty (120)
automobile parking spaces (the "Parking Spaces") on the "Grantor Property," commonly
referred to as the Mel's Property. The Mel's Property is now legally described as Parcel A
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of City of Auburn Declaration of Lot Combination BLA 19-0005, recorded May 9, 2019
under King County recording number 20190509000812, also known as Block 7, Map of
L.W. Ballard's Park Addition to Slaughter, According to the Plat Thereof recorded in
Volume 3 of Plats, Page 91, records of King County, Washington; together with the
vacated. West 10 feet of Silver Street (now "A" Street NW) adjoining, except that portion
conveyed to the City of Auburn by Deed recorded November 18, 2009 under King County
recording number 20091118001497. The Mel's Property is listed by the King County Tax
Assessor as Assessor's Parcel Nos. 0492000460, 0492000461 and 0492000463.
C. The "Grantee Property" described in the PEA, together with the appurtenant
easement rights granted to that real property in the PEA, was submitted by APP on May
12, 2010 to condominium status in a Condominium Declaration for One Main Street
Professional Plaza, a Condominium, under King County recording number
20100512000511 (the "One Main Declaration"), together with a Survey Map and Plans
recorded under King County recording number 20100512000510. Article 8 of the One
Main Declaration assigned the one hundred twenty (120) parking spaces that were the
subject of the PEA as Limited Common Elements to specific Units in the One Main Street
Professional Plaza Condominium in Schedule B to the One Main Declaration, as amended.
D. On May 14, 2010, the City acquired fee simple title to the Mel's Property from
APP in a Statutory Warranty Deed under King County recording number
20100514000042. Also, on May 14, 2010, the Original DRA was entered into by and
between the City, as Grantor, and APP, as Grantee. Among other things, the Original DRA
granted to APP the right to reacquire and develop the Mel's Property "in any manner that
Grantee shall determine in its sole judgment," subject to the provisions of the Original
DRA and applicable law.
E. On August 28, 2013, in conjunction with the sale by the City to APP of what was
then -designated as Unit 380 described in the One Main Declaration, seven (7) of the one
hundred twenty (120) Limited Common Element parking spaces that were the subject of
the PEA and were assigned to City -owned Units in the One Main Street Professional Plaza
Condominium were reassigned to APP -owned Unit 162 in the One Main Street
Professional Plaza Condominium. (See Warranty Deed recorded under King County
recording number 20130828001054 and Amendment No. 1 to Condominium Declaration
for One Main Street Professional Plaza a Condominium, King County recording number
20130828001056.) These seven (7) parking spaces are referred to as the "APP Parking
Spaces," the remaining one hundred thirteen (113) parking spaces assigned to City -owned
Units in the One Main Street Professional Plaza Condominium are referred to as the "City
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Parking Spaces" and, together the APP Parking Spaces and the City Parking Spaces are
referred to as the "Condo Parking Spaces."
F. On October 2, 2017, APP filed with the City a Completed Environmental Checklist
Application, a Preliminary Stormwater Site Plan including a Preliminary Geotechnical
Engineering Report, a Traffic Impact Analysis, a Rough Grading and TESC Plan, and
related submittals for that certain First Street Plaza Medical Office & Parking Garage
project ("First Street Plaza") on the Mel's Property, consisting of site preparation and
construction of a four-story private parking structure for approximately 204 vehicles and a
separate, three-story approximately 42,000 square foot medical office building. On
September 17, 2018, the City issued Notice of Application (NOA) and Mitigated
Determination of Non -Significance (MDNS) First Street Plaza Medical Office & Parking
Garage SEP17-0018. No appeals were timely filed and the MDNS became the final
decision of the City.
G. On November 1, 2018, APP filed Application No. MIS 18-0016 with the City for
Design Review approval of First Street Plaza. Based on supporting documents and
revisions filed in January, February and April 2019, the project consisted of site
preparation and construction of a four-story private parking structure for approximately
192 vehicles and a separate, three-story approximately 42,000 square foot medical office
building on the Mel's Property.
H. On January 30, 2019, APP notified the City of its election to exercise its rights
under Paragraphs 1 and 2 of the Original DRA. Paragraph 1 of the Original DRA relates to
development of the Mel's Property. Paragraph 2 of the Original DRA relates to providing
Substituted Property for the 120 parking spaces on the Mel's Property,
1. On January 31, 2019, APP assigned all of its right, title, powers and interest as
Grantee under the Original DRA to Lexi, as reflected in the Assignment of Grantee's
Interest in Development Rights Agreement under King County recording number
20190131000785. On February 1, 2019, a Memorandum of Exercise of Grantee's Rights
Pursuant to Development Rights Agreement was recorded under King County recording
number 201902013000726.
J. On February 14, 2019, Lexi filed Building Permit Application File No. BLD19-
0021. On March 14, 2019, the City advised Lexi that the Building Permit Application File
No. BLD19-0021 was complete and, subject to fulfillment of other conditions, could be
approved.
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K. On February 14, 2019, Lexi notified the City that the initial development of the
Mel's Property would consist of two tall decorative railroad signs as more particularly
described in Building Permit Application File No. BLD19-0021, with additional
development consisting of First Street Plaza, and requested that the City convey fee simple
title to the Mel's Property to Lexi as provided in the Original DRA. The February 14,
2019 notice identified the Substituted Property proposed to be provided by Lexi pursuant
to Paragraph 2 of the Original DRA, consisting of the "Alley Lots" (also known from time
to time as the "A Street Parcels,)" the "C Street. Parcel," and the "Auburn Way North
Parcel."
L. On February 14, 2019, Lexi filed applications to develop parking lots on the Alley
Lots (FAC 19-0009), the C Street Parcel (FAC 19-0008) and the Auburn Way North Parcel
(FAC19-0007). On February 15, 2019, the City advised Lexi that those applications were
complete. (On April 12, 2019, Lexi notified the City that it intended to withdraw its
application to develop a parking lot on the Auburn Way North Parcel and was adding
additional contiguous parcels to the C Street Parcel "C Street Parcels").)
M. On or about February 18, 2019, Lexi filed applications for deferral of half. -street
improvements for the Alley Lots (SDR19-0006) and the C Street Parcels (SDR19-0005).
On March 1, 2019, the Auburn City Engineer issued decisions denying Lexi's requests.
N. On February 28, 2019, the Central Puget Sound Regional Transit Authority
("Sound. Transit") adopted Resolution No. R2019-05 authorizing Sound Transit's chief
executive officer to acquire the Mel's Property and all property rights therein by purchase
or condemnation proceedings, and to reimburse eligible relocation and reestablishment
expenses, for the purpose of constructing a new parking garage on the Mel's Property for
Sound Transit's Auburn Station Parking and Access Improvements Project.
O. On March 4, 2019, the City responded to Lexi's February 14, 2019 notice and
request, indicating that the City was unable to convey title at that time because (i) Building
Permit BLD19-0021 was not yet issued or ready for issuance, (ii) an assignment or
dedication of funds to pay for the development had not yet been provided, and (iii) permits
for development of the Substituted Property under Paragraph 2 of the Original DRA were
not yet issued or ready for issuance,
P. On March 29, 2019, Lexi appealed the City Engineer's March 1, 2019 decisions
denying deferral of half -street improvements for the Alley Lots (SDR19-0006) and the C
Street Parcels (SDR19-0005). On April 19, 2019, the City's Director of Public Works
issued decisions affirming and modifying the City Engineer's March 1, 2019 decisions
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denying deferral of half -street improvements. On May 17, 2019, Lexi appealed the April
19, 2019 decisions of the City's Director of Public Works to the City Hearing Examiner.
Those appeals are pending as of the date of this Agreement (the "Pending Appeals").
Q. On July 26, 2019, the City's Director of Community Development issued a Notice
of Decision on Application No. MIS 18-0016 approving the Design Review for First Street
Plaza, subject to conditions. No appeals were timely filed and the Notice of Decision
became the final decision of the City.
R. On July 30, 2019, the City issued Building Permit BLD19-0021 to Lexi.
S. On November 25, 2019, Sound Transit indicated by letter that it will provide 120
parking spaces to replace the Condo Parking Spaces in the new parking garage it proposes
to construct on the Mel's Property.
AGREEMENT
In consideration of the covenants and promises contained in this Agreement and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Lexi, APP and the City enter into this Amended and Restated Development
Rights Agreement, as follows:
1. Conveyance of Mel's Property. Within ten (10) days after the date of City Council
approval of this Agreement, the City shall submit into escrow an executed Statutory
Warranty Deed in the form attached as Exhibit A, conveying title to the Mel's Property to
Lexi. Title to the Mel's Property will be conveyed to Lexi subject only to the PEA and the
Title Exceptions attached as Exhibit B. Lexi shall pay all applicable real estate transfer
excise tax (if any), recording and escrow fees, and title insurance premiums. Subject to the
PEA and the Title Exceptions, Lexi will be entitled to possession of the Mel's Property on
closing.
2. Development of the Mel's Property. As part of its fee ownership, Lexi shall have
the exclusive right from time to time to develop and redevelop the Met's Property as First
Street Plaza or in any other manner that Lexi shall determine in its sole judgment, subject
to; (a) the provisions of this Agreement; (b) the provisions of the PEA; and (c) compliance
with all applicable governmental codes, laws, and regulations. In connection with any such
development or redevelopment of the Mel's Property Lexi may leave the Condo Parking
Spaces in their current locations or change their locations on the Mel's Property. In any
such development or redevelopment in which the Condo Parking Spaces are not intended
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to remain in their current locations, Lexi shall, except as otherwise provided hereinafter, at
its expense, relocate from time to time the Condo Parking Spaces within any such
development or redevelopment on the Mel's Property. The City and APP, as owners of
Units in the One Main Street Professional Plaza Condominium to which the City Parking
Spaces are assigned, shall provide written consent to all necessary or appropriate
development applications and related documents submitted by Lexi to governmental
authorities. Provided, that nothing in this Agreement shall obligate the City to exercise any
of its regulatory powers in favor of Lexi, and Lexi is not relieved of its obligations to
obtain any necessary permits. The City, APP and Lexi shall from time to time execute an
amendment to this Agreement showing the relocation of the Condo Parking Spaces, and
once the replacement Condo Parking Spaces have been completed, the parties shall amend
the PEA to reflect the relocated Condo Parking Spaces and to set forth terms and
provisions pertaining to operating expenses, management, insurance and indemnity
comparable to those set forth herein. Further, the City, APP and/or Lexi, as applicable, as
members of the owners association of One Main Street Professional Plaza, a
Condominium, shall also from time to time execute and record amendments to the
Condominium Documents of One Main Street Professional Plaza necessary to show the
relocated Condo Parking Spaces that are associated with the affected. Units in said
Condominium. Neither the City nor APP shall have the right to develop the Mel's
Property while Lexi is the fee owner.
3. Deposit of Funds. Within five (5) days after the date of City Council approval
hereof, Lexi shall deposit the sum of fifteen thousand and no/100 dollars ($15,000.00) into
a segregated bank account at Umpqua Bank, Auburn, Washington branch to cover the
anticipated costs to construct the development authorized under Building Permit
Application File No. BLD19-0021. Lexi shall cause Umpqua Bank to provide the City
with an Assignment of Funds on the City's standard form in connection with the bank
account, evidencing that the funds are on deposit and cannot be withdrawn absent City
written consent.
4. Deletion of Paragraph 2 of the Original DRA, and Withdrawal of Election Under
Original DRA ¶2. Paragraph 2 (along with the entirety) of the Original DRA has been
deleted effective as of the date of recordation of this Agreement. Further, the City
acknowledges that, as of the effective date of this Agreement, APP's January 30, 2019
election to exercise its rights under Paragraph 2 of the Original DRA is withdrawn and of
no further effect. APP'S election to exercise its rights under Paragraph 1 of the Original
DRA remains effective except as modified by this Agreement.
5. Amendment of Parking Easement Agreement. On approval of this Agreement by
the Auburn City Council, the parties shall execute and submit into escrow an amendment
to the PEA in the form attached as Exhibit C.
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6. Operations. If there are more parking spaces in the development on the Mel's
Property than the one hundred twenty (120) Condo Parking Spaces required to be provided by
Lexi for the benefit of the City and APP as owners of the Condo Units under this Agreement,
the term "Parking Lot" shall mean the parking garage or facility in that development or on the
property. Lexi shall reasonably determine the portion of the Operating Expenses allocable to
the Parking Lot and the parties shall share such costs based upon the number of parking
spaces allocated to each of Lexi, the City and. APP.
(a) "Operating Expenses" means all costs and expenses incurred in
connection with: (i) all utility services provided to the Parking Lot; (ii) all permits,
licenses and certificates necessary to operate, manage, maintain and repair the Parking
Lot; (iii) all Insurance Costs; (iv) the purchase or rental of supplies, tools, equipment
and materials to the extent they are used in connection with the use, operation,
maintenance, repair or restoration of the Parking Lot; (v) expenses incurred in order to
comply with any laws, regulations or governmental requirements of any kind; (vi)
wages, salaries and other compensation and benefits for all persons, only to the extent
that they were engaged in connection with the operation, maintenance, repair, or
restoration of, and providing security services for the Parking Lot, including
employer's Social Security taxes, unemployment taxes or insurance, and any other
taxes which may be levied on those wages, salaries, compensation and benefits; (vii)
all Property Taxes; (viii) all operating costs of the Parking Lot and all systems and
equipment servicing the Parking Lot and component services, including, but not
limited to, janitorial service, security, trash removal, cleaning, management,
maintenance, repair and replacement of lighting, gates, fences, barriers, signs,
walkways, driveways, curbs, security and access equipment, devices, and systems, and
drainage facilities; (ix) resurfacing, repair, repaving and re -striping of the Parking Lot
and the surrounding areas and sidewalks providing access thereto; (x) removal of ice
and snow from the Parking Lot and its entrances and exits; and (xi) any service or
maintenance contracts related to the operation, maintenance, repair, or restoration of
the Parking Lot.
(b) "Property Taxes" means all federal, state, county or local
governmental or municipal taxes, assessments, levies, fees, charges or other
impositions of every kind and nature levied against the Parking Lot including, without
limitation, real and personal property taxes, general and special assessments, transit
taxes, water and sewer rent or other similar taxes, fees or changes in taxes assessed in
lieu of any of the foregoing. If the Property Taxes for Condo Parking Spaces are
separately assessed against Lexi, and the remainder of the Mel's Property is separately
assessed, then Property Taxes shall not be part of Operating Expenses that are to be
paid proportionately. The parties each agree to cooperate with the other, including
attending meetings with the tax assessor, to facilitate such separate assessment or an
accurate billing and calculation of Property Taxes as contemplated by this Agreement.
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(c) "Insurance Costs" means all property and liability insurance premiums
with respect to the Parking Lot required to be carried by Lexi as provided below,
including any deductibles incurred in connection with any covered loss.
(i) Lexi shall maintain or cause to be maintained, subject to
reasonable deductibles as Lexi may determine, property insurance on the
Parking Lot in an amount not less than 100% of the full replacement cost of
such improvements, without deduction for depreciation, including the cost of
debris removal, insuring against loss or damage by fire and such other risks as
may be covered from time to time by a "Causes of Loss—Special Form" policy
or its equivalent and those other insurable hazards and containing those
additional coverages and endorsements as the parties or their respective
lenders may request from time to time. The property insurance may cover
loss due to earthquake, earth movement and/or flood, as determined by
Lexi. Lexi may maintain this property insurance in whole or in part under
blanket policies. The cost of the property insurance, including any deductibles
paid and. any earthquake, earth movement and/or flood insurance premiums,
shall be included as part of the Operating Expenses; provided the cost of any
additional coverages and endorsements requested by the City or APP shall not
be part of Operating Expenses, but paid solely by the requesting party.
(ii) Lexi, on behalf of the parties, shall at all times, at its sole cost
and expense, keep in full force and effect a policy of commercial general
liability insurance insuring against claims or liability arising out of the use
or maintenance of the Parking Lot in an amount which is not less than Two
Million Dollars ($2,000,000.00) per occurrence, covering bodily injury to
persons, including death, and damage to property, and including automobile
liability coverage and contractual liability endorsement; shall insure the
hazards of the insured party's operations on the Parking Lot, including the
acts of its independent contractors; and shall name the other parties to this
Agreement as an "additional insured." Notwithstanding the foregoing, if a
party is the City of Auburn, (the "Governmental Owner") insurance for all
of the Condo Parking Spaces may be completely met by the Governmental
Owner's membership in the Washington Cities Insurance Authority
("WCIA"), a municipal insurance pool. So long as the Governmental
Owner is providing the insurance for all of the Condo Parking Spaces,
through WCIA, the Governmental Owner will not be required to provide
policies or certificates of insurance, and will not be required to name Lexi,
APP or any other party or person as an "additional insured", "additional
named insured", "named insured," "loss payee," or any similar designation.
The Governmental Owner shall provide reasonable evidence of its
continued participation in WCIA on request of another party.
(iii) The parties, in the exercise of their commercial business
judgment, acknowledge that the use of insurance is the best way to protect
against the risk of loss to their respective properties and economic interests.
Accordingly, (a) the City hereby waives its right of recovery, claims, actions
or causes of action against APP and Lexi for loss or damage to the Mel's
Property or the Parking Lot, or any personal property therein belonging to the
City and its officers, employees, and agents (collectively, the "City Parties")
to the extent of any insurance proceeds paid to the party suffering the loss and
any additional insurance proceeds that would have been paid to the party
suffering the loss had the insurance required under this Agreement been
carried by such party; (b) Lexi hereby waives its right of recovery, claims,
actions or causes of action against the City and APP for loss or damage to the
Mel's Property or the Parking Lot, or any personal property therein belonging
to Lexi and its officers, employees, members, and agents ("Lexi Parties") to
the extent of any insurance proceeds paid to the party suffering the loss and
any additional insurance proceeds that would have been paid to the party
suffering the loss had the party obtained the same insurance coverage required
under this Agreement had been carried, and (c) APP hereby waives its right of
recovery, claims, actions or causes of action against the City and Lexi for loss
or damage to the Mel's Property or the Parking Lot, or any personal property
therein belonging to APP and its officers, employees, members, and agents
("APP Parties") to the extent of any insurance proceeds paid to the party
suffering the loss and any additional insurance proceeds that would have been
paid to the party suffering the loss had the party obtained the same insurance
coverage required under this Agreement had been carried. Each party shall
cause any insurance policy obtained by it (including the insurance required
under this Article 6) to provide that the insurance company waives all right to
recover by way of subrogation against the other.
(d) Subject to the waiver of claims hereinabove provided, (i) the City
shall defend, indemnify and hold harmless Lexi and APP from and against all claims,
demands, losses, liabilities, damages, actions, proceedings, expenses and costs
(including reasonable attorneys' fees and costs of suit) of any nature whatsoever
brought by third parties and arising out of or resulting from the City's use of the
Parking Lot, or from any other activity, work, or thing done, permitted or suffered by
the City in, on or about the Mel's Property; (b) Lexi shall defend, indemnify and hold
harmless the City and APP from and against all claims, demands, losses, liabilities,
damages, actions, proceedings, expenses and costs (including reasonable attorneys'
fees and costs of suit) of any nature whatsoever brought by third parties and arising
out of or resulting from Lexi's use of the Parking Lot, or from any other activity,
work, or thing done, permitted or suffered by the Lexi in, on or about the Mel's
Property, and (c) APP shall defend, indemnify and hold harmless the City and Lexi
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from and against all claims, demands, losses, liabilities, damages, actions,
proceedings, expenses and costs (including reasonable attorneys' fees and costs of
suit) of any nature whatsoever brought by third parties and arising out of or resulting
from APP'S use of the Parking Lot, or from any other activity, work, or thing done,
permitted or suffered by the Lexi in, on or about the Mel's Property. In the event of
concurrent negligence, the indemnifying party shall only be liable for that portion of
liability related to the percentage of its respective negligence or misconduct.
7. Condemnation. If Sound Transit or another governmental authority acquires the
Mel's Property by eminent domain or otherwise, Lexi, as the fee owner, shall have the sole
right and authority to negotiate with Sound Transit regarding the price and terms of
acquisition and the sole right to establish, through agreement or litigation, the amount of
just compensation to be paid for the Mel's Property. Provided, however, that the City and
APP shall have the right to establish through negotiation, agreement, or litigation with
Sound Transit the amount to be paid. to each of them for any damages to the value of their
respective Condominium Units.
If Sound Transit or another governmental authority acquires the Mel's Property by eminent
domain or otherwise and constructs a parking garage on the Mel's Property and provides a
total of one hundred twenty (120) parking spaces in that garage as replacement parking
under the PEA for the benefit of APP and the City as Condo Unit Owners, the parties agree
to modify the Condo Declarations so that the City shall be assigned one hundred thirteen
(113) and APP shall be assigned seven (7) parking spaces in the garage to replace the
existing Condo Parking Spaces.
If Sound Transit or another governmental authority acquires the Mel's Property through
eminent domain or otherwise and provides one hundred twenty (120) replacement parking
spaces on the Mel's Property, all compensation of any kind or nature paid or given by
Sound Transit for and/or in connection with any acquisition of the Mel's Property, other
than provision to the City of one hundred thirteen (113) and to APP of seven (7) parking
spaces on the Mel's Property and any compensation paid for damages to the value of the
City's and. APP's respective Condominium Units, shall be payable to Lexi alone and the
City and. APP shall have no right, claim or interest in that compensation.
If Sound Transit or another governmental authority acquires the Mel's Property through
eminent domain or otherwise but does not provide one hundred twenty (120) replacement
parking spaces on the Mel's Property and instead provides such replacement parking
spaces in a location other than the Mel's Property that is of lesser value to the City and
APP for their intended use, then the compensation paid by Sound Transit or such other
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condemning authority for the diminished value to the Condominium Units and for any
other damages to the Condominium Units resulting from relocation of the parking spaces
shall be paid ninety-four percent (94%) to the City and six percent (6%) to APP, in
proportion to their respective shares of the 120 Condo Parking Spaces, and all other
compensation paid for the taking of the Mel's Property shall be paid to Lexi.
If Sound Transit or another governmental authority acquires the Mel's Property through
eminent domain or otherwise but does not provide one hundred twenty (120) replacement
parking spaces on the Mel's Property or elsewhere, then the compensation paid by Sound
Transit or such other condemning authority for the cost to secure replacement parking
spaces elsewhere and the diminished value to the Condominium Units and for any other
damages to the Condominium Units resulting from relocation of the parking spaces shall
be paid ninety-four percent (94%) to the City and six percent (6%) to APP, in proportion to
their respective shares of the 120 Condo Parking Spaces, and all other compensation paid
for the taking of the Mel's Property shall be paid to Lexi.
8. Further Approvals and Documentation. This Agreement shall become effective on
the effective date of approval by the City Council and signature of the parties. The parties
will execute and deliver those other and further documents reasonably required to carry out
the intent of this Agreement.
9. Suspension and Dismissal of Pending Appeals. The parties agree to suspend the
Pending Appeals pending approval of this Agreement by the Auburn City Council and to
jointly notify the Hearing Examiner of the agreement and request. On approval of this
Agreement by the Auburn City Council, Lexi will promptly dismiss the Pending Appeals
and release the City from all claims related to the Pending Appeals, in the form attached as
Exhibit D.
10. Construction. This Agreement was negotiated, drafted, and approved by the
Parties. Any rule that would otherwise require an ambiguity in this Agreement to be
construed against the drafting party is waived.
11. Attorneys' Fees. In connection with this Agreement and its performance, Lexi,
APP and the City shall each pay their own attorney's fees. If there is any default or other
breach by a party to this Agreement, the prevailing party shall be entitled to recover
attorney's fees in any action to enforce the provisions of this Agreement. "Attorney's fees"
means all reasonable legal fees and charges, including but not limited to appellate fees and
charges, paralegal fees and charges, court, filing, and process fees, marshal's and sheriffs'
fees and charges, investigative fees and charges, and all other related sums.
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12. Force Majeure. Any delay in the performance of any obligation under this
Agreement shall be excused, if and so long as the performance of the obligation is
prevented, delayed or otherwise hindered by any act not within the control of a party (other
than lacy or inability to procure money to fulfill its commitments and obligations under this
Agreement) such as fire, earthquake, flood, explosion, actions of the elements, war, riots,
mob violence, inability to procure labor, equipment, facilities, materials or supplies in the
open market, failure of transportation, strikes, lockouts, actions of labor unions,
condemnation, court orders, operation of laws, orders of governmental or military
authorities.
1.3. Severability. If any one or more of the provisions of this Agreement, or the
applicability of any provision to a specific situation, shall be held invalid or unenforceable,
that provision shall be modified to the extent necessary to make it or its application valid
and enforceable, and the validity and enforceability of all other provisions of this
Agreement and all other applications of any such provision shall not be affected.
14. Governing Law. This Agreement shall be governed and interpreted solely by the
laws of the State of Washington. Venue for any action shall solely be in King County,
Washington.
15. Recitals and Captions. The Introduction and Recitals are an integral part of this
Agreement and are incorporated herein for the purpose of interpreting this Agreement.
Captions of Sections and subsections of this Agreement are for convenience only and shall
not be considered in resolving any questions of interpretation or construction of any term,
covenant or provision.
16. Time. Time is of the essence of this Agreement and of each and very provision
hereof.
17. Agreement Supersedes the Original DRA. This Amended and Restated
Development Rights Agreement supersedes and replaces the Original DRA in its entirety,
and contains the complete agreement of the parties with respect to the subject matter of the
Agreement.
18. Non -Waiver. No covenant, term or condition of this Agreement (including breach)
shall be deemed waived unless expressly waived in a written instrument executed by the
waiving party specifically reciting the covenant, term or condition (including breach) being
13
waived, and any waiver of one covenant, term, condition or breach, shall not be deemed to
be a waiver of any preceding or succeeding, covenant, term, condition, or breach.
19. Notices. All notices and other communications given pursuant to this Agreement
shall be in writing and shall be deemed properly served if delivered in person to the party
to whom it is addressed or two (2) business days after deposit in the U.S, mail, postage
prepaid, certified or registered mail, return receipt requested at the following addresses:
Lexi: Lexi, LLC
P.O. Box 1294
Auburn, Washington 98071-1294
Attn: President
With concurrent copies to:
.And to:
Lexi LLC c/o Michael John Klein. CPA
30300 Agoura Road, Suite 270
Agoura Hills, California 91301
Lexi LLC c/o Anthony L. Rafel, Esq.
Rafel Law Group PLLC
4126 E. Madison St. Ste. 202
Seattle, Washington 98112
APP: Auburn Professional Plaza, LLC
P.O, Box 1294
Auburn, Washington 98071-1294
Attn: President
With concurrent copies to:
Auburn Professional Plaza, LLC c/o Michael J Klein. CPA
30300 Agoura Road, Suite 270
Agoura Hills, California 91301
And to:
Auburn Professional Plaza, LLC c/o Anthony L. Rafel, Esq.
Rafel Law Group PLLC
14
City of Auburn:
4126 E. Madison St. Ste. 202
Seattle, Washington 98112
City of Auburn
25 West Main Street
Auburn, Washington 98001-4998
Attention: Mayor
With concurrent copies to:
And to:
City of Auburn
25 West Main Street
Auburn, Washington 98001-4998
Attention: Director of Administration
City of Auburn
25 West Main Street
Auburn, Washington 98001-4998
Attention: City Attorney
or to any other or additional addresses as any party may from time to time designate by
providing notice in writing to the other parties.
[This page ends here.]
9
15
IN WITNESS WHEREOF, Lexi, LLC, Auburn Professional Plaza, LLC and the
City of Auburn have duly executed this Agreement as of the day and year first written
above.
LEXI, LLC
a Washington limited liability company
By: Oliphant Real Estates Services, Inc.
a Washington corporation
its manager and managing member
By: 4e' e�4� /<3'
e ey L.,�B iphant, President
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF ( %Ah ► tv G- 0i,4
COUNTY OF
On —A n H u aR 094 2020, before me,
--T E.kr, A a Notary Public, personally appeared Jeffrey
L. Oliphant, satisfactorily pro en to me to be the person whose name is subscribed to the
within instrument and acknowledged that he executed the same in his authorized capacity,
and that by his signature on the instrument the person(s), or the entity upon behalf of which
he acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
W rA.S h ncc7-to ay that the foregoing paragraph is true and correct.
ter' NOTA9y00
<-�C
go
�...,..
00
Rj
to; IAIA
WITNESS my hand and official seal.
i C-1�4
SIGNATURE OF NOTA
16
1 � 64),QLCy
AUBURN PROFESIONAL PLAZA, LLC
a Washington limited liability company
By: Oliphant Real Estates Services, Inc.
a Washington corporation
its manager and managing member
By:
eJ L. O! ' hant, President
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF L,94-d%h, q 4111
COUNTY OF
_—, On A 4 , 2020, before me,
I e'221 I. n , Notary Public, personally appeared Jeffrey
L. Oliphant, satisfactorily roven to me to be the person whose name is subscribed to the
within instrument and acknowledged that he executed the same in his authorized capacity,
and that by his signature on the instrument the person(s), or the entity upon behalf of which
he acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of
L-5 r that the foregoing paragraph is true and correct.
�`C`�••20836��� Cl II,I
go
o� pUBL1C ti s
s10
of EXPIRES ��1� �2?
����� ;WASH �•••
WITNESS my hand and official seal.
". b� 6""
GNATURE OF NOTARY/
17
THE CITY OF AUBURN, WASHINGTON
a municipal corporation
IL 'In
By:
Nancy ac us, Mayor
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF Uj7'T
COUNTY OF K.tr'tCJ�
On 2 2020, before me,
Notary Public, personally appeared Nancy
Backus, satisfactorily proven to me to be the person whose name is subscribed to the
within instrument and acknowledged that she executed the same in her authorized capacity,
and that by her signature on the instrument the person(s), or the entity upon behalf of
which she acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
4A that the foregoing paragraph is true and correct.
5LACI{�,j,i����i
O
203917 ; Z
/ i q CJUB
i
\WAS���`�
WITNESS my hand and official seal.
(;e ,t, wm)GC.y'C a
SIGNATURE OF NOTARY
18
EXHIBIT A
[Statutory Warranty Deed from City to Lexi]
da03esOlgr
Return Address:
City of Auburn
City Clerk
25 West Main
Auburn, WA 98001
Above this line reserved for recording information.
STATUTORY WARRANTY DEED
Reference # (if applicable): 20091118001497; 20091118001355
Grantor: City of Auburn, a Washington Municipal Corporation
Grantee: Lexi, LLC, a Washington Limited Liability Company
Abbreviated Legal Description: PTN SE 1/4, NE 1/4, SEC. 13, T2 IN, R4E, WM
Assessor's Tax Parcel ID#: 049200-0460;049200-0461;049200-0463
For and in consideration of the sum of TEN DOLLARS ($10.00) and other good
and valuable consideration, receipt of which is hereby acknowledged, Grantor, the City of
Auburn, a municipal corporation of the State of Washington conveys and warrants to Lexi,
LLC, a Washington limited liability company ("Grantee"), its successors and assigns, the
property legally described as follows:
BLOCK 7 IN L.W. BALLARD'S PARK ADDITION TO SLAUGHTER, ACCORDING
TO THE PLAT THEREOF, RECORDED IN VOLUME 3 OF PLATS, PAGE 91, IN
KING COUNTY, WASHINGTON;
TOGETHER WITH THE VACATED WEST 10 FEET OF SILVER STREET (NOW "A"
STREET N.W.) ADJOINING;
EXCEPT THAT PORTION CONVEYED TO THE CITY OF AUBURN BY DEED
RECORDED NOVEMBER 18, 2009, UNDER RECORDING NUMBER
20091118001497.
SUBJECT TO that Parking Easement Agreement dated November 17, 2009 under
Recording Number 20091118001355, as amended by the Development Rights Agreement
dated May 14, 2010 under Recording Number 20100514000044, and the First Amendment
to the Parking Easement Agreement dated , 2020 under Recording Number
2020
City of Auburn/Lexi
DRAFT 01.03.20
Page 1 of 2
IN WITNESS WHEREOF, the Grantor has caused this instrument to be executed
by its proper officer(s) this day of , 2020.
Grantor:
CITY OF AUBURN,
WASHINGTON
a Washington municipal corporation
By: Nancy Backus, Mayor
STATE OF WASHINGTON)
) ss.
County of King )
On this _ day of , 2020, before me personally appeared Nancy
Backus, to me known to be the Mayor of the city of Auburn, Washington, the entity that
executed the within and foregoing instrument, and acknowledged said instrument to be the
free and voluntary act and deed of said entity, for the uses and purposes therein mentioned,
and on oath stated that she was authorized to execute said instrument on behalf of said
entity.
In Witness Whereof I have hereunto set my hand and affixed my official seal the
day and year first above written.
Dated
Notary Public in and for the State of
Washington, residing at
My commission expires
0
City of Auburn/Lexi
DRAFT 01.03.20
Page 2 of 2
[Title Exceptions]
q
da03esOlqr
CHICAGO TITLE COMPANY OF WASHINGTON COMMITMENT NO. 193924 -TC
SCHEDULE B, PART II
EXCEPTIONS
(continued)
SPECIAL EXCEPTIONS
Covenants, conditions, restrictions, recitals, reservations, easements, easement provisions, dedications, building
setback lines, notes, statements, and other matters, if any, but omitting any covenants or restrictions, if any,
including but not limited to those based upon race, color, religion, sex, sexual orientation, familial status, marital
status, disability, handicap, national origin, ancestry, or source of income, as set forth in applicable state or federal
laws, except to the extent that said covenant or restriction is permitted by applicable law, as set forth on survey:
Recording No: 20040322900011
Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document:
Granted to: Puget Sound Energy, Inc.
Purpose: Electric transmission and/or distribution system and sale of electricity
Recording Date: October 27, 2009
Recording_No,: 20091027001708
Affects: the North 13.00 feet of the East 15.00 feet of Parcel C
3. Parking Easement Agreement and the terms and provisions thereof:
Executed by: Auburn Professional Plaza LLC, a Washington limited liability company
Recording Date: November 18, 2009
Recording No.: 20091118001355
Storm Water Easement and Maintenance Agreement and the terms and provisions thereof:
Executed by: City of Auburn, a municipal corporation and Auburn Professional Plaza. LLC
Recording Date: November 18, 2009
Recording. Nod ._......_.20Q91.11.80014W93
Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document:
Granted to:
City of Auburn
Purpose:
Water line and appurtenances
Recording Date:
November 18, 2009
Recording_No.: ___
20091118001494
Affects:
portion on easterly portion of Parcel C as described and delineated in said document
This page is only a part of a 2018 ALTA® Commitment for Title Insurance Issued by Chicago Title Insurance Company, This Commitment is not valid without the
Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; Schedule B, Part II -Exceptions; and a
- - - - counter -signature -by the Company or its -issuing -agent that maybe In electronic form. - - - - - - --
�Y
Copyright American Land Title Association. All rights reserved.
AMERICAN
ASSQI'IA'1'ION.
The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use.
All other uses are prohibited. Reprinted under license from the American Land Title Association.
ALTA Commitment for Title Insurance (08/01/2016) Printed: 10.07.19 @ 06:36 PM
Page 8 WA-CT-FBCM-02150.620753-SPS-1-19-193924-TC
CHICAGO TITLE COMPANY OF WASHINGTON COMMITMENT NO. 193924 -TC
SCHEDULE B, PART II
EXCEPTIONS
(continued)
6. Local Improvement District No Protest Agreement and the terms and provisions thereof:
Executed by: City of Auburn, a municipal corporation and Auburn Professional Plaza, LLC
Recording Date: November 18, 2009
Recording No.: 20091118001495
7. Agreement for Deferral of Improvements and the terms and provisions thereof:
Executed by: City of Auburn, a municipal corporation and Auburn Professional Plaza, LLC
Recording Date: November 18, 2009
Recording No.: 20091118001496
8. Revocable License for Pedestrian and Vehicular Access
Recording Date: February 18, 2010
Recording No.: 20100218000151
9. Development Rights Agreement and the terms and provisions thereof:
Executed by: City of Auburn and Auburn Professional Plaza LLC, a Washington limited liability company
Recording Date: May 14, 2010
Recording No,, 20100514000044
The right, title and interest of Auburn Professional Plaza LLC in said agreement was assigned to Lexi, LLC, a
Washington limited liability company by instrument recorded under reoor� ding number 20190131000785.
Memorandum of exercise of grantee's rights pursuant to development rights agreement
Recording Date: February 13, 2019
Recordin No.: 20190213000726
10. Covenants, conditions, restrictions, recitals, reservations, easements, easement provisions, dedications, building
setback lines, notes, statements, and other matters, if any, but omitting any covenants or restrictions, if any,
including but not limited to those based upon race, color, religion, sex, sexual orientation, familial status, marital
status, disability, handicap, national origin, ancestry, or source of income, as set forth in applicable state or federal
laws, except to the extent that said covenant or restriction is permitted by applicable law, as set forth on survey:
Recordin No: 20190122900008
This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Chicago Title Insurance Company This Commitment is not valid without the
Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; Schedule B, Part II -Exceptions; and a
- - - - - -counter-signature-by the Company or -its -issuing -agent that -may be in -electronic -form, - - - - - - - - - - - - -
r�r
AMERICAN
Copyright American Land Title Association. All rights reserved. WNr,.TT.1tr
A55't>l'IA'I'ItIN
The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use.
All other uses are prohibited. Reprinted under license from the American Land Title Association.
ALTA Commitment for Title Insurance (08/01/2016) Printed: 10.07.19 @ 06:36 PM
Page 9 WA-CT-FBCM-02160.620753-SPS-1-19-193924-TC
I
CHICAGO TITLE COMPANY OF WASHINGTON
SCHEDULE B, PART II
EXCEPTIONS
(continued)
COMMITMENT NO. 193924 -TC
11. Covenants, conditions, restrictions, recitals, reservations, easements, easement provisions, dedications, building
setback lines, notes, statements, and other matters, if any, but omitting any covenants or restrictions, if any,
including but not limited to those based upon race, color, religion, sex, sexual orientation, familial status, marital
status, disability, handicap, national origin, ancestry, or source of income, as set forth in applicable state or federal
laws, except to the extent that said covenant or restriction is permitted by applicable law, as set forth on
Declaration of Lot Combination:
Recording, Ncr20190509000812
12. The property herein described is carried on the tax rolls as exempt. However, it will become taxable on the date of
the execution of a conveyance to a taxable entity and subject to the lien of real property taxes for the balance of
the year from that date:
13.
14.
Tax Account Numbers: 049200-0460, 049200-0463 and 049200-0461
Levy Code: 0133
Conservation and other special taxes and charges, payable February 15, delinquent if first half unpaid on May 1,
second half delinquent if unpaid on November 1 of the tax year (amounts do not include interest and penalties):
Year:
Tax Account No.
Levy Code:
General and Special Taxes:
Billed:
Paid:
Unpaid:
Affects:
2019
049200-0460
0133
$14.74
$14.74
$0.00
Portion of herein described premises
Conservation and other special taxes and charges, payable February 15, delinquent if first half unpaid on May 1,
second half delinquent if unpaid on November 1 of the tax year (amounts do not include interest and penalties):
Year:
Tax Account No.:
Levy Code:
General and Special Taxes:
Billed:
Paid:
Unpaid:
Affects:
2019
049200-0463
0133
$14.64
$14.64
$0.00
Portion of herein described premises
This page is only a part of a 2016 ALTA@ Commitment for Title Insurance issued by Chicago Title Insurance Company. This Commitment is not valid without the
Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; Schedule B, Part ll -Exceptions; and a
- - counter -signature by the Company or its is -suing agent that maybe in electronic form, - - - - - - - - - - - - - - - -
AMERICAN
Copyright American Land Title Association. All rights reserved. ,,,N„I„ ,y
ASSI1l'IA'1'I�N
The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. i
All other uses are prohibited. Reprinted under license from the American Land Title Association.
ALTA Commitment for Title Insurance (08/01/2016) Printed: 10.07.19 @ 06:36 PM
Page 10 WA-CT.FBCM-02150.620753-SPS-1-19-193924-TC
CHICAGO TITLE COMPANY OF WASHINGTON COMMITMENT NO. 193924 -TC
SCHEDULE B, PART II
EXCEPTIONS
(continued)
15. Conservation and other special taxes and charges, payable February 15, delinquent if first half unpaid on May 1,
second half delinquent if unpaid on November 1 of the tax year (amounts do not include interest and penalties):
Year:
2019
Tax Account No.;
049200-0461
Levy Code:
0133
General and Special Taxes:
Billed:
$14.65
Paid:
$14.65
Unpaid:
$0.00
Affects: Remainder of herein described premises
16. Liability for Sewer Treatment Capacity Charges, if any, affecting certain areas of King, Pierce and Snohomish
Counties. Said charges could apply to property connecting to the metropolitan sewerage facilities or reconnecting
or changing its use and/or structure after February 1, 1990.
Please contact the King County Wastewater Treatment Division, Capacity Charge Program, for further information
at 206-296-1450 or Fax No. 206-263-6823 or email at CapChargeEscrow(d,)kingcount r.gov.
* A map showing sewer service area boundaries and incorporated areas can be found at:
http://www.kingcounty.gov/services/gis/Maps/vmc/Utilities.aspx
Unrecorded Sewer Capacity Charges are not a lien on title to the Land.
NOTE: This exception will not appear in the policy to be issued.
17. The search did not disclose any open mortgages or deeds of trust of record, therefore the Company reserves the
right to require further evidence to confirm that the property is unencumbered, and further reserves the right to
make additional requirements or add additional items or exceptions upon receipt of the requested evidence.
18. Any unrecorded leaseholds, right of vendors and holders of security Interests on personal property installed upon
the Land and rights of tenants to remove trade fixtures at the expiration of the terms.
END OF SCHEDULE B, PART II
This page is only a part of a 2016 ALTA@ Commitment for Title Insurance issued by Chicago Title Insurance Company. This Commitment is not valid without the
Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I -Requirements; Schedule B, Part II -Exceptions; and a
- - counter -signature by the Company or -its issuing agent that -may -be -in electronic form, - - - - - - - - - - -- -- - -
AMERICAN
Copyright American Land Title Association. All rights reserved. I.AN[)7:YU_E
AMCIAI'M
The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. It
All other uses are prohibited. Reprinted under license from the American Land Title Association.
ALTA Commitment for Title Insurance (08/01/2016) Printed: 10,07.19 @ 06:36 PM
Page 11 WA-CT-FBCM-02160.620753-SPS-1-19-193924-TC
q
EXHIBIT C
[Amendment to Parking Easement Agreement]
da03esOlgr
AFTER RECORDING RETURN TO:
Auburn Professional Plaza LLC
c/o Michael John Klein, CPA
30300 Agoura Road, Suite 270
Agoura Hills, CA 91301
FIRST AMENDMENT TO PARKING EASEMENT AGREEMENT
Grantor: CITY OF AUBURN; and
LEXI, LLC, a Washington limited liability company
Grantee: AUBURN PROFESSIONAL PLAZA LLC,
a Washington limited liability company; and
ONE MAIN STREET PROFESSIONAL PLAZA OWNERS
ASSOCIATION, a Washington nonprofit corporation
Legal Description: Parcel A of City of Auburn Declaration of Lot Combination
BLA19-0005, recorded May 9, 201.9 under King County recording
number 20190509000812, also known as Block 7, Map of L.W.
Ballard's Park Addition to Slaughter, according to the Plat Thereof
recorded in Volume 3 of Plats, Page 91, records of King County,
Washington; together with the vacated West 10 feet of Silver
Street (now "A Street NW) adjoining, except that portion
conveyed to the City of Auburn by Deed recorded November 18,
2009 under King County recording number.20091118001497
Tax Parcel Nos.: 0492000460, 0492000461 and 0492000463
Related Documents: 20091118001355, 20100512000511, 20100512000510
1
FIRST AMENDMENT TO
PARKING EASEMENT AGREEMENT
This FIRST AMENDMENT TO PARKING EASEMENT AGREEMENT ("First
Amendment") is entered into as of January _, 2020, by and between THE CITY OF
AUBURN, a code city of the state of Washington ("City"), LEXI, LLC, a Washington limited
liability company ("Lexi"), ONE MAIN STREET PROFESSIONAL PLAZA OWNERS
ASSOCIATION, a Washington nonprofit corporation ("One Main"), and AUBURN
PROFESSIONAL PLAZA LLC, a Washington limited liability company ("APP"), with
reference to the following facts:
RECITALS
A. A Parking Easement Agreement was entered into as of November 17, 2009 by and.
between Auburn Professional Plaza LLC, as Grantor, and Auburn Professional Plaza LLC, as
Grantee, and recorded under King County recording number 20091118001355 ("PEA").
B. The PEA granted to APP an easement and right to use one hundred twenty (120)
automobile parking spaces on the "Grantor Property," commonly referred to as the "Mel's
Property." The Mel's Property is legally described as Block 7, Map of L.W. Ballard's Park
Addition to Slaughter, According to the Plat Thereof recorded in Volume 3 of Plats, Page 91,
records of King County, Washington; together with the vacated West 10 feet of Silver Street
(now "A" Street NW) adjoining, and is listed as King County Tax Assessor's Parcel Nos.
0492000460,0492000461 and 0492000463.
C. The "Grantee Property" described in the PEA, together with the appurtenant easement
rights granted to that real property in the PEA, was submitted by APP on May 12, 2010 to
condominium status in a Condominium Declaration for One Main Street Professional Plaza, a
Condominium, recorded under King County recording number 20100512000511 (the "One Main
Declaration"), together with a Survey Map and Plans recorded in the official records of King
County, Washington under recording number 20100512000510. Article 8 of the One Main
Declaration assigned the 120 parking spaces that were the subject of the PEA as Limited
Common Elements to specific Units in the One Main Street Professional Plaza Condominium in
Schedule B to the One Main Declaration, as amended.
D. On May 14, 2010, the City acquired fee simple title to the Mel's Property from APP in a
Statutory Warranty Deed recorded under King County recording number 20100514000042.
Also, on May 14, 2010, a Development Rights Agreement was entered into by and between the
City, as Grantor, and APP, as Grantee, and recorded in the official records of King County,
2
Washington under recording number 20100514000044 ("Original DRA"). The Original DRA
granted to APP the right to reacquire and develop the Mel's Property "in any manner that
Grantee shall determine in its sole judgment," subject to the provisions of the Original DRA and
applicable law.
E. On August 28, 2013, in conjunction with the sale by the City to APP of what was then -
designated as Unit 380 described in the One Main Declaration, seven (7) of the one hundred
twenty (120) Limited Common Element parking spaces that were the subject of the PEA and
were assigned to City owned Units in the One Main Street Professional Plaza Condominium
were reassigned to APP -owned Unit 162 in the One Main Street Professional Plaza
Condominium. (See Warranty Deed recorded under King County recording number
20130828001054, and Amendment No. 1 to Condominium Declaration for One Main Street
Professional Plaza a Condominium, recorded under King County recording number
20130828001056.) These seven (7) parking spaces are referred to as the "APP Parking Spaces,"
the remaining one hundred thirteen (113) parking spaces assigned to City owned Units in the
One Main Street Professional Plaza Condominium are referred to as the "City Parking Spaces,"
and together the City Parking Spaces and the APP Parking Spaces are referred to as the "Condo
Parking Spaces."
F. On January 30, 2019, APP notified the City of its election to exercise its rights under the
Original DRA.
G. On January 31, 2019, APP assigned all of its right, title, powers and interest as Grantee
under the Original DRA to Lexi, LLC, a Washington limited liability company ("Lexi"), as
reflected in the Assignment of Grantee's Interest in Development Rights Agreement recorded
under King County recording number 20190131000785. On February 1, 2019, a Memorandum
of Exercise of Grantee's Rights Pursuant to Development Rights Agreement was recorded under
King County recording number 201902013000726. Notwithstanding this assignment, APP
retained ownership rights in the APP Parking Spaces on the Mel's Property.
H. On January _, 2020, Lexi and the City entered into an Amended and Restated
Development Rights Agreement, which supersedes and replaces the Original DRA in its entirety.
NOW, THEREFORE, in consideration of the covenants and promises contained in this
Agreement and the Amended and Restated Development Rights Agreement Lexi, APP, and the
City amend the PEA as follows:
1. Section 3.1 is amended by adding the following sentences at the end of the section:
3
No Party shall have the right to use the Parking Spaces allocated to it in any manner that
would materially impact the other Parties' use of the Grantor Property under this
Easement.
2. Section 3.2 is deleted in its entirety.
3. The following new subsections are added to Article 3:
3.6 Restricted. Access System. Grantor or Grantee may implement an access card,
sticker or other identification or entrance system; provided (i) the access system does not
restrict continuous access to the Parking Lot by the Grantee Parties designated by
Grantee and (ii) if applicable, Grantor promptly provides Grantee with sufficient parking
identification, key -cards, or other access devices (including temporary passes and
replacements for lost or stolen identification, cards or devices) necessary for continuous
access. Grantor or Grantee may impose a reasonable charge for providing identification,
cards, or devices, provided that charge does not exceed the actual out-of-pocket
administrative and replacement cost incurred in obtaining, operating, managing and
otherwise producing such identification, cards or devices.
3.7 Other Easements, Grantor shall have the right to grant other persons easement
rights on or across the Grantor Property only if those easement rights do not interfere
with the easements and rights granted to Grantees under this Agreement or the rights
granted to Lexi under that certain Amended and Restated Development Rights
Agreement between the City of Auburn and Auburn Professional Plaza, LLC, as Grantor,
and. Lexi, LLC, as Grantee.
4. Article 4 is deleted in its entirety.
5. Section 6.7 is deleted in its entirety.
6. Section 7.1 is amended to delete the following words from the first sentence thereof: "or
Grantor provides Substitute Property in which the Parking Spaces are in a garage".
7. Section 8.3 is deleted in its entirety and replaced with the following new Section 8.3:
8.3 Condemnation Award. Grantee and/or Unit Owners in One Main Street Professional
Plaza, a Condominium, the Declaration of which was recorded under King County
recording number 201.00512000511, as their interests may appear, are entitled to receive
and keep all damages, awards or payments resulting from any loss or damage to
4
Grantee's and/or Unit Owners' rights under this Agreement, as provided in this
Agreement and. the Amended and Restated DRA. Grantee (and/or Unit Owners) may file
a separate claim with the condemning authority for any loss of or damage to Grantee's
(or Unit Owners') rights under this Agreement and the Amended and Restated DRA. If
the condemning authority does not enter separate awards for the taking of the Grantor
Property on the one hand and the taking of the Parking Easement on the other hand, or
does not allocate the award between the Grantor Property on the one hand and the
Parking Easement on the other hand, Grantee and/or Unit Owners may request the court
make an allocation of the award as provided in the Amended and Restated DRA.
8. Section 10.4 is deleted in its entirety and replaced with the following new Section 10.4:
10.4 Notices. All notices and other communications given pursuant to this Agreement
shall be in writing and shall be deemed properly served if delivered in person to the party
to whom it is addressed or two (2) business days after deposit in the U.S. mail, postage
prepaid, certified or registered mail, return receipt requested at the following addresses:
APP: Auburn Professional Plaza, LLC
P.O. Box 1.294
Auburn, Washington 98071-1294
Attn: President
With concurrent copies to:
And to:
City of Auburn:
Auburn Professional Plaza, LLC c/o Michael J Klein. CPA
30300 Agoura Road, Suite 270
Agoura Hills, California 91301
Auburn Professional Plaza, LLC
c/o Anthony L. Rafel, Esq.
Rafel Law Group PLLC
4126 E. Madison St. Ste. 202
Seattle, Washington 98112
City of Auburn
25 West Main Street
Auburn, Washington 98001-4998
Attention: Mayor
5
Lexi:
With concurrent copies to:
And to:
City of Auburn
25 West Main Street
Auburn, Washington 98001-4998
Attention: Director of Administration
City of Auburn
25 West Main Street
Auburn, Washington 98001-4998
Attention: City Attorney
Lexi, LLC
P.O. Box 1294
Auburn, Washington 98071-1294
Attn: President
With concurrent copies to:
And to:
One Main:
Lexi, LLC c/o Michael John Klein. CPA
30300 Agoura Road, Suite 270
Agoura Hills, California 91301
Lexi, LLC c/o Anthony L. Rafe], Escl,
Rafel Law Group PLLC
4126 E. Madison St. Ste. 202
Seattle, Washington 98112
One Mahn Street Professional Plaza Owners Association
P.O. Box 1.294
Auburn, Washington 98071-1294
Attn: President
With concurrent copies to:
6
And to:
And to:
One Main Street Professional Plaza Owners Association
c/o Michael John Klein. CPA
30300 Agoura Road, Suite 270
Agoura Hills, California 91.301
Anthony L. Rafel, Esq.
Rafel Law Group PLLC
4126 E. Madison St. Ste. 202
Seattle, Washington 98112
City of Auburn
25 West Main Street
Auburn, Washington 98001-4998
Attention: City Attorney
or to such other or additional addresses as any party may from time to time designate by
providing written notice to all other parties.
9. Section 10.5 is deleted in its entirety and replaced with the following new Section 10.5:
10.5 Construction. This Agreement was negotiated, drafted, and approved by the
Parties. Any rule that would otherwise require an ambiguity in this Agreement to be
construed against the drafting party is waived.
10. Except as expressly modified in this Amendment, the PEA shall remain in full force and
effect.
[This page ends here.]
7
IN WITNESS WHEREOF, the parties have duly executed this First Amendment as of
the day and year first written above.
AUBURN PROFESSIONAL PLAZA LLC
a Washington limited liability company
By: Oliphant Real Estates Services, Inc.
a Washington corporation
its manager and managing member
By:
Jeffrey L. Oliphant, President
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF
NL1109a MM a
On 2020, before me,
Notary Public, personally appeared Jeffrey L.
Oliphant, satisfactorily proven to me to be the person whose name is subscribed to the within
instrument and acknowledged that he executed the same in his authorized capacity, and that by
his signature on the instrument the person(s), or the entity upon behalf of which he acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY
8
THE CITY OF AUBURN, WASHINGTON
a municipal corporation
LE
Nancy Backus, Mayor
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF
COUNTY OF
On 2020, before me,
Notary Public, personally appeared Nancy
Backus, satisfactorily proven to me to be the persons whose name is subscribed to the within
instrument and acknowledged that she executed the same in her authorized capacity, and that by
her signature on the instrument the person(s), or the entity upon behalf of which she acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY
9
LEXI, LLC
a Washington limited liability company
By: Oliphant Real Estates Services, Inc.
a Washington corporation
its manager and managing member
Jeffrey L. Oliphant, President
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
S'T'ATE OF
COUNTY OF
On 2020, before me,
Notary Public, personally appeared Jeffrey L.
Oliphant, satisfactorily proven to me to be the person whose name is subscribed to the within
instrument and aclulowledged that he executed the same in his authorized capacity, and that by
his signature on the instrument the person(s), or the entity upon behalf of which he acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY
10
ONE MAIN STREET PROFESSIONAL PLAZA
OWNERS ASSOCIATION
a Washington corporation
Jeffrey L. Oliphant, President
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF
COUNTY OF
On 2020, before me,
Notary Public, personally appeared Jeffrey L.
Oliphant, satisfactorily proven to the to be the person whose name is subscribed to the within
instrument and acknowledged that he executed the same in his authorized capacity, and that by
his signature -on the instrument the person(s), or the entity upon behalf of which he acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
that the foregoing paragraph is true and correct.
WITNESS my hand and official seat.
SIGNATURE OF NOTARY
EXHIBIT D
[Withdrawal of Appeal and Release]
da03es01gr
WITHDRAWAL OF APPEAL
AND RELEASE
For good and valuable consideration spelled out in more detail in the Amended and Restated
Development Agreement between the City of Auburn, Lexi LLC, and Auburn Professional Plaza, LLC
dated -'\A
N� A R 'u the receipt of which is acknowledged, Lexi, LLC, its affiliates, successors, and
assigns, agrees as follows:
1. Except as set forth herein, the permit applications designated on Attachment 1 hereto related to the
development of parking lots on Auburn Way North, C St. NW, and A St., all in the city of Auburn, are
withdrawn as of the date of this document. All other permit applications by or on behalf of Lexi, LLC
on file with the City of Auburn shall remain active and shall be processed in the ordinary course of
business.
2. All appeals related to the permit applications designated on Attachment 1 hereto are withdrawn, and
Lexi agrees to prepare and submit a joint motion to dismiss the appeals with prejudice not later than 10
working days after the effective date of the Amended and Restated Development Rights Agreement.
3. Lexi, LLC releases and forever discharges the City, its officials, attorneys, employees, and agents from
every claim, demand, and cause of action whatsoever, of every kind and nature, whether presently
known or unknown, suspected or unsuspected, arising or alleged to have arisen as a result of or in
connection with the permits designated on Attachment 1 hereto, whether based in tort, contract, civil
rights, delay of development, and/or any other theory of recovery, and excepting only the obligations
created by the Amended and Restated Development Agreement.
4. Lexi, LLC reserves the right and neither the withdrawal of the permit applications designated on
Attachment 1 hereto, the dismissal of the appeals referenced in paragraph 2 hereto, nor anything herein
shall prohibit Lexi, LLC from filing with the City new future applications (and associated requests for
permits, variations, deviations and the like) concerning the Alley Lots and/or the C Street Parcels, that
contain requests that were part of the withdrawn permit applications and dismissed appeals, and the
foregoing release (Paragraph 3) shall not apply to such new future applications. Any such new future
filing shall be governed by the laws and regulations in effect at the time of such filing.
Lexi, LLC by
1212-127.) Z�
Attachment 1
°9 f6UaZ0 REVIEW RETURNED LEXI LLC: C. STREET PARKING LOT Project Description FACILITYEXTEN 150 ST NW AUBURN
ryrgrapnp;;{ IN REVIEW LEXI, LLC: NEW SURFACE PARKING LOT Project Description MISCELLANEOUS 16 C ST NW AUBURN
5QUl--ftgZp,� DENIED LEXI LLC: C STREET PARKING Project Description STREET DELAY REQUEST 15 C ST NW AUBURN
�DW4SlSR VOID/WITHDRAWN LEXI, LLC: C STREET LOTS Project Description STREET DELAY REQUEST 15 OST NW AUBURN
OfW19h0017 APPROVED C ST PARKING DRIVEWAY LOCATION Proiect Descrintlon DEVIATION 16 C ST NW AUBURN
jyt192:M IN REVIEW LEXI, LLC: NEW SURFACE LOT PARKING
LQ t ,,n L4 DENIED LEXI LLC AUBURN WAY PARKING LOT
REVIEW RETURNED LEXI LLC: A -STREET PARKING LOT
MJ2,Qgng IN REVIEW LEXI, LLC: NEW SURFACE PARKING LOT
;;t•;{),�,;1n17t);;, IN REVIEW LEXI, LLC: NEW SURFACE PARKING LOT
o t� -no0 VOID/WITHDRAWN LEXI, LLC: ALLEY LOTS
Project Description MISCELLANEOUS 206 AUBURN WAY N AUBURN
Project Description STREET DELAY REQUEST 206 AUBURN WAY N AUBURN
Project Description FACILITYEXTEN 222 A ST SW AUBURN
Project Description MISCELLANEOUS 222 AST SW AUBURN
Project Description SEPADETERMINATION 222 A ST SW AUBURN
Project Description STREET DELAY REQUEST 222 A ST SW AUBURN
Prolect Description DEVIATION 222 A ST SW AUBURN