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HomeMy WebLinkAbout4878 RESOLUTION NO 4 8 7 8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF AUBURN AND ORION INDUSTRIES FOR THE SALE OF REAL PROPERTY TO ORION INDUSTRIES WHEREAS, to expand the Auburn Municipal Airport, the City must provide for increased surface water drainage capacity and insure that the property surrounding the airport is free from objects that would impede navigation and air flight of aircraft using the airport; and WHEREAS, the City of Auburn has agreed to purchase from King County property adjacent to the Auburn Municipal Airport for the purpose of conveying it to Orion Industries, for which it would receive an avigation easement; and WHEREAS, the purchase and sale agreement that the City has negotiated with Orion Industries would result in Orion Industries granting the City an avigation easement and a surface water storage and drainage easement to the City, both of which shall improve the development and expansion potential of the municipal airport; and WHEREAS, it is in the public interest for the City to sell to Orion Industries the property it is acquiring from King County according to the terms and conditions negotiate by the parties. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, HEREBY RESOLVES as follows. Section 1. That the Agreement for Purchase and Sale of Real Property, a copy of which is attached hereto, marked as Exhibit A and incorporated herein Resolution No 4878 October 30, 2012 Page 1 of 2 CITY OF ri ADBURNPeter B. Lewis, Mayor WASHINGTON 25 West Main Street * Auburn WA 98001-4998 * www.cuburnwa.gov * 253-931-300( Ms. Laura Lau, LPO Senior Commercial Closing Officer First American Title Insurance Company 818 Stewart Street, Suite 800 Seattle, WA 98101 Re: Seller- City of Auburn Purchaser Orion Industries Property- Parcel A of Auburn Park and Ride BLA#12-0003 Escrow No. 358026 Dear Ms. Lau, First American Title Insurance Company ("FATiCO") has been nominated by City of Auburn, a Washington municipal corporation ("Seller"), and the Orion Industries, a Washington non-profit corporation ("Purchaser"), to act as the escrow agent to consummate a transaction between these palsies. These joint escrow instructions shall not be amended except by written amendment signed by legal counsel for Orion Industries and the City of Auburn, respectively This transaction involves the sale by Seller to Purchaser of certain real property located in the City of Auburn, County of King, State of Washington (the "Property"), which Property is more particularly described in that certain Commitment for Title Insurance, issued by FATICO and dated September 25, 2012, under Order No. NCS-358026-WAI (the "Commitment'). Such transaction is to be consummated pursuant to a Real Estate Purchase and Sale Agreement between Seller and Purchaser dated November 27, 2012, and its exhibits and attachments (collectively, the "Sale Agreement') Terms defined in the Sale Agreement shall have the same meaning when used herein. This transaction is to be consummated on or before the close of business on January 31, 2013 In the event that closing has not occurred by 5:00 p.m. local Seattle time on January 31, 2013, you are instructed to take no further action in this escrow without the further written joint instructions of the Orion industries and City of Auburn. A. On or before the date of closing, Seller shall deliver the following documents into escrow with you: 1 Original of a Bargain and Sale Deed (special warranty deed) for the Property (the "Deed") executed by Seller 2. Original of a Real Estate Excise Tax Affidavit (the "Excise Tax Affidavit") to be filed with the Deed, which has been executed by or on behalf of Seller AJJ1;1J11N - MORNTi [AN YOU IMAGINED 3 Filly executed original Bill of Sale and Assignment (the "Bill of Sale"). 4 Fully executed original of a Certificate of Non-Foreign Status (the "FIRPTA"). 5 Fully executed Seller's Estimated Closing Statement. 6. Final documentation of the City's BLA #12-0003 7 Any other documents, approvals or consents necessary to consummate this transaction. B. On or before the date of closing, Purchaser shall deliver or cause to be delivered to you the following into escrow with you under Escrow Account No. 358026: 1 Cash placed in trust with FATICO in the amount of the purchase price of $1,566,500.00, plus cash in an amount sufficient to pay all closing costs, as indicated on the Seller's and Purchaser's Estimated Closing Statements. 2. Original of the Deed, executed by Purchaser 3 The Excise Tax Affidavit, executed by or on behalf of Purchaser 4 Fully executed Purchaser's Estimated Closing Statement. 5 Fully executed Avigation Easement and Drainage Easement. 6. Any other documents, approvals or consents necessary to consummate this transaction. C. You are hereby instructed to close this escrow only when the following conditions precedent have occurred. 1 You have received from Seller the items referred to in Section A above. 2. You have received from Purchaser the items referred to in Section B 3 Seller and Purchaser have approved their respective closing statements. 4 You have signed-off on these instructions and have returned a fully signed copy to the undersigned via email or facsimile. 5 FATICO is irrevocably committed to issue Purchaser an ALTA Owner's Extended Coverage Policy of Title Insurance in the amount of $1,566,500 00 (the "Owner's Policy"), insuring Purchaser that fee simple title to the Property is vested in Purchaser, subject only to General Exceptions A through H, inclusive, and Special Exceptions 2 and 11, listed in Schedule B of the Commitment. Instructions Escrow No. 358026 Auburn — Orion Industries Purchase &Sale January 10, 2013 Page 2 6. A deed has been recorded transferring parcel 0000800026 from Aliza Incorporated to Orion Industries through Order No. 571951 D. You are hereby instructed to consummate this transaction by effecting the following in the exact order stated 1 Make sure that all closing documents are dated as of the closing date (unless otherwise dated), properly signed and notarized where appropriate and have all relevant exhibits attached (excluding those noted as on file with the parties), and assemble any counterpart signature pages. Hand-write or otherwise insert the BLA number (12-0003) in the blank on the upper right-hand margin of the Easement document pages as necessary 2. Record the Deed. 3 Assess closing costs between Seller and Purchaser, in accordance with the Sale Agreement, including discharge of all outstanding fees or taxes, if any, attributable to Seller and noted in Special Exception 2 listed in Schedule B to the Commitment. 4 Prepare final closing statements for all parties. 5 Deliver the net proceeds of sale to King County 6. Deliver to Purchaser, in care of the undersigned, a take-off copy of recorded BLA #12-0003, a take-off copy of the recorded Deed, with the recorded original to follow; the Bill of Sale; the FIRPTA, and a certified Final Purchaser's Closing Statement. 7 Deliver to Seller a take-off copy of the recorded Deed, with the recorded original to follow; and a certified Final Seller's Closing Statement. 8 Issue the Owner's Policy to Purchaser E. Closing Contingencies. The actions specified in Section D of this letter shall be taken when, but only when. I You have confirmed that FATICO holds in its possession a sum sufficient to pay in full all closing costs, recording, title insurance premiums and escrow fees, and all other charges or expenses payable to you or any other party in connection with escrow 358026-WA1 and this escrow 2. You have in your possession the City of Auburn's final documentation for the City's BLA #12-0003, ready to be recorded. 3 You have in your possession all other necessary closing documents, fully executed and acknowledged (as applicable) by the appropriate parties, ready to be filed or recorded as appropriate. Instructions Escrow No. 358026 Auburn - Orion Industries Purchase & Sale January 10, 2013 Page 3 F General Instructions. I Please advise the undersigned at your earliest convenience if any other documents must be prepared by you or by FATICO in order to close on the contemplated transaction. 2. If Closing Funds (defined to mean the funds identified in paragraph B 1 of this letter) are held overnight following closing you are instructed to invest such funds with interest accruing for the account of Orion Industries. 3 Please notify the undersigned of the recording information of all documents as soon as possible after recording 4 Please provide to Purchaser's Closing Statement to Purchaser the day prior to the date of closing. G. Conflicting Instructions. If any party to this transaction gives you escrow instructions that conflict with these instructions or if you otherwise become aware of any matter that will prevent closing in accordance herewith, please contact the undersigned immediately, and do not proceed without disclosing such terms and obtaining each party's approval. H. Acceptance and Compliance. The closing documents identified in Sections A and B of this letter and the Closing Funds are delivered to you as escrow agent subject to your compliance with the instructions set forth in this letter Please acknowledge receipt and acceptance of these instructions by printing and signing this letter and return a fully signed copy to the undersigned via email or facsimile. Thank you. If you have any questions about these instructions, please let us know right away CITY OF AUBURN Q ORION INDUSTRIES By i-l-- By Douglas Ruth, Assistant City Attorney FIRST AMERIC ITLE INSURANCE CO By Laura Lau, Senior Commercial Closing Officer Instructions Escrow No. 358026 Auburn - Orion Industries Purchase &Sale January 10, 2013 Page 4 First American Title Insurance Company National Commercial Sensices 818 Stewart Street,Suite 800 Seattle,WA 98101 1 heresy certify that this is a true And exact copy of the original. Sellers Final Settlement StatemeRAST AMERICAN TITLE COMPANY _tee Property 101 15th Street NE, Auburn, WA File No: NCS-358026a-LL Officer Laura Lau[LB New Loan No: Settlement Date: 01/24/2013 Disbursement Date: 01/24/2013 Print Date: 01/25/2013, 10:30 AM Buyer- Orion Industries, Address: 33926 Ninth Avenue South,Federal Way, WA 98003 Seller The City of Auburn Address: 25 West Main Street,Aubum, WA 98001 Charge Description Seller Charge Seller Credit Consideration: Total Considerauun - ._- -- -- "- - -- ---- 1,566,500.00 Prorations: Spectal Charges 01/01/13 to 01/24/13 (a�$12.24/yr 0.77 " ' --- ---- -- Title/Escrow Charges to: REET — — Fee mFirst American Title Insurance Company National Commercial Services_ 10.00 Disbursements Paid: — — Funds to Purchase/KC Escrow to Escrow 358026 1,566,489.23 Totals 1,566,500.00 1,566,500.00 r. First American Title Insurance Company National Commercial Services 818 Slewan Street,Smie 800 Seanle,WA 98101 M Seller's Estimated Settlement Statement Property 101 15th Street NE,Auburn,WA File No: NCS-358026a-LL Officer Laura Lau/II New Loan No: Estimated Settlement Date: 01/24/2013 Disbursement Date: Print Date: 01/18/2013,4:10 PM Buyer, Orion Industries, Address: 33926 Ninth Avenue South,Federal Way,WA 98003 Seller- The City of Auburn Address: 25 West Main Street,Auburn,WA 98001 Charge Description Seller Charge Seller Credit Consideration: -Total Considemlmn 1,566,50000 Prorations: Special Charges 01101/13 to 01/24/13 r)$12 24/yr 077 Title/Escrow Charges to: REF.T 1'ee to First American Talc Insurance Company Mom.]Cummercml Se,ees 10.00 Cash(X To)( From)Seller 1,566,48923 Totals 1,566,50000 1,566,500.00 Notice - This Estimated Settlement Statement is subject to changes corrections or additions at the time of final computation of Escrow Settlement Statement SELL (S): The ity cipal corporation By page I of I by this reference, be approved, and the Mayor is authorized to execute the agreement in substantially the same form as Exhibit A, and such action in furtherance thereof is hereby ratified. Section 2. That the Mayor is authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Dated and Signed this day of ^u�h �aZ� 2012. CI F A PE ER B LEWIS MAYOR ATTEST ( ` Danielle E. Daskam, City Clerk APP VED S TO FORM: Daniel B ftd, titv Attorney ---------------------------- Resolution No. 4878 October 30, 2012 Page 2 of 2 REAL ESTATE PURCHASE AND SALE AGREEMENT THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("Agreement's) is made and entered into by and between ORION INDUSTRIES, a Washington nonprofit corporation (the "Buyer") and THE CITY OF AUBURN, a municipal corporation and noncharter code city with a council-mayor form of government organized pursuant to RCW Title 35A (the "Seller"). Buyer and Seller are sometimes referred to herein individually as a"Party and collectively as the `Parties. RECITALS A. Seller has entered into an agreement with King County to purchase certain real property located in the City of Auburn, County of King, State of Washington, of that certain subdivision recorded under King County Recording No. the legal description of which is attached hereto as Exhibit A (the "Property") and incorporated herein by this reference. B. The Property is a portion of the Auburn Park and Ride and was previously owned by King County, who made significant investments in the Property for benefit of the Park-and- Ride. C. King County's historical and continuing use of the remaining portion of the Park- and-Ride for public transportation and mass transit purposes are dependent on the improvements made on the Property to continue to operate in a good and reliable condition. D The Property also adjoins the Auburn Municipal Airport, which is subject to land use restrictions imposed by the Federal Aviation Administration, and Auburn s expansion of the Airport is dependent upon the restricted use of a portion of the Property E. Seller desires to sell the Property, upon purchase from King County, and Buyer desires to purchase the Property F As a condition of the real estate transaction between Buyer and Seller regarding the Property, and in partial consideration of the promises, covenants, conditions and restrictions set forth herein, Seller requires easements over the Property so that Seller may perform its planned expansion of the airport. G. As a condition of the real estate transaction between Buyer and Seller regarding the Property, and in partial consideration of the promises, covenants, conditions and restrictions set forth herein, Buyer desires to operate, maintain, and repair the improvements made by King County upon the Property for benefit of the Auburn Park-and-Ride, as now existing or hereafter configured, and to do so consistent with all applicable laws, rules, and orders, and in addition Buyer is willing to allow King Countv to perform such duties in the event that Buyer fails to do SO. H. As a condition of the real estate transaction between Buyer and Seller regarding the Property, and in further consideration of the promises, covenants, conditions and restrictions set forth herein, Seller requires that Buyer restrict and Buyer is willing to so restrict Buyers use of the Property to those uses and purposes that are compatible with King County's continued use of and reliance on the improvements previously made by King County and located thereon for benefit of the Auburn Park-and-Ride. AGREEMENT Now, THEREFORE, in consideration of the promises and mutual covenants contained herein, and other valuable consideration, receipt and sufficiency of which are hereby acknowledged, the Parties hereto covenant and agree as follows: ARTICLE 1 PURCHASE AND TRANSFER OF ASSETS 1.1. PROPERTI'TO BE SOLD. Subject to and upon the terms and conditions set forth in this Agreement, by bargain and sale deed substantially in the form of Exhibit B-1 attached hereto, Seller shall sell, convey assign, transfer and deliver to Buyer on the Closing Date (as defined in Section 10.1 of this Agreement) and Buyer shall buv assume and accept from Seller on the Closing Date the following assets and properties: (a) All the Seller's right, title and interest in the Property, as described in Exhibit A, except easements for (1) continuous and uninterrupted public ingress and egress for transit purposes, and (2) storm water and surface water drainage system use and access, all as described in Exhibit B-2, attached hereto and incorporated herein by this reference; (b) All of Seller's right, title and interest in improvements and structures located on the Property if any; (c) All of Sellers right, title and interest in and to tangible personal property, if any, owned by the Seller and attached, appurtenant to or used in connection with the Property ("Personal Property'); and (d) All of Seller's tenements, hereditaments, easements and rights appurtenant to the Property including but not limited to, all of the Seller s right, title, and interest in and to streets, alleys or other public ways adjacent to the Property, easements for public utilities, all sewers and service drainage easements, all rights of connection to the sewers, and all rights of ingress and egress, and all leases, licenses, government approvals and permits affecting the Property 1.2 Hereinafter, the items listed in Section 1 1 are collectively referred to as the `Purchased Assets." 1.3 STORMwATER SYSTEM DEVELOPMENT CREDITS. Pursuant to Auburn City Code 13 41.050, Seller shall grant Buyer credits in the amount of fifty-two thousand dollars ($52,000.00) toward the systems development charge for development occurring on the Property or on parcel no. 0000800026, according to the terms and conditions contained in Auburn City Code chapter 13 41 14 EFFECTIVE DATE. The Effective Date of this Agreement shall be the date of the latest execution of the purchase and sale agreement between Seller and King County by their respective councils or chief executive. ARTICLE 2. PURCHASE PRICE AND OTHER CONSIDERATION 2.1 PURCHASE PRICE AND PAYMENT In consideration of the sale, transfer, conveyance, assignment and delivery of the Purchased Assets, Buyer shall pay to Seller on the Closing Date a total purchase price of One million, five hundred sixty-six thousand, five hundred dollars ($1,566,500.00) (the "Purchase Price'). 2.2. ALLOCATION OF PURCHASE PRICE. Seller and Buyer agree that the entire Purchase Price is allocable to real property and that the value of the Personal Property if any, is de minimis. 2.3 ASSUMPTION OF SELLER'S OBLIGATIONS TO KING COUNTY In consideration for the sale, transfer, conveyance, assignment and delivery of the Property Buyer agrees and covenants to hereafter accept, assume, and perform all obligations, responsibilities, and duties of Seller, whether pursuant to covenant or agreement, that are contained in the Real Estate Purchase and Sale Agreement between King County and the City of Auburn concerning the Property and the Public Transportation Easement and Restrictive Covenant, (Recording No. a0/30/a jFD d7 0, including all indemnification provisions, as if' Buyer had executed the agreement and easement with King County itself. The Real Estate Purchase and Sale Agreement and the Public Transportation Easement and Restrictive Covenant are attached as Exhibit E and B-2, respectively and are both incorporated herein by this reference. 2.3.1 Obligations. Buyer's assumption of Seller's obligations and duties shall include, but not be limited to, the following obligations: Buyer s obligation to erect at its expense a security chain-link fence on the boundary between the Property and King County's Park and Ride Lot within thirty (30) days of the date of closing as provided in the Public Transportation Easement and Restrictive Covenant; Buyers obligation to disconnect from King County's electrical service power to light poles that are located north of the south boundary line of the Property (not including those that are located on the south boundary line) within ninety (90) days of the date of closing as provided in Public Transportation Easement and Restrictive Covenant; Buyer's obligation to, within ninety (90) days of closing, disconnect that the portion of fourteen (14) days. Buyer's response shall state whether Buyer intends to perform the Work and the estimated calendar date by which the Work will be undertaken and completed. If Buyer's response states that Buyer will not perform the Work, or if the notifying agency reasonably believes that Buyer will not satisfactorily complete the Work within the time frames required by the Public Transportation Easement and Restrictive Covenant then King County or Seller may perform the relevant portion of the Work after fourteen (14) days notice to Buyer that the agency, or its designees, intends to perform the Work and invoice Buver for the cost to perform the Work. King County or Seller whichever agency performs the work, shall invoice Buyer for all reasonable fees, costs, and expenses associated with the Work, including but not limited to the cost of the agency s staff time to prepare the Notice and to develop and implement any procurement, plans, permitting, or project documentation necessary for the Work (collectively the "Work Costs"). The invoice shall be accompanied by documents supporting and justifying the Work Costs. Buyer shall pay the Work Costs to king County or Seller, whichever performed the work, within forty-five (45) days of receipt of the invoice. Buyer shall pay a late fee of five percent (5%) to any Work Costs invoice not timely paid. If any Work Costs invoice remains outstanding ninety (90) days after receipt, the agency performing the work may send it to collections. 2.4 GRANT OF AvIGATION EASEMENT TO SELLER. In consideration for the sale, transfer, conveyance, assignment and delivery of the Property Buver agrees to grant and execute for the benefit of Seller, within ten (10) days of Closing, the Avigation Easement and Restricted Covenant described in Exhibit F concerning both the Property and parcel 0000800026, to preserve for the use and benefit of the public free and unobstructed flight for aircraft taxiing, landing upon, taking off from, or maneuvering about the Auburn Municipal Airport. 2.5 GRANT OF DRAINAGE EASEMENT TO SELLER. In consideration for the sale, transfer, conveyance, assignment and delivery of the Property Buyer agrees to grant and execute for the benefit of Seller, within ten (10) days of Closing the Drainage Easement and Restricted Covenant described in Exhibit G concerning parcel 0000800026, to use, repair, maintain, and improve for draining, storing, and channeling surface or storm water 2.6 SURVIVAL OF RIGHTS, Duins, AND OBLIGATIONS. The Parties' rights, duties, covenants, and obligations referenced in Sections 2.4 and 2.5 shall survive Closing and the expiration or earlier termination of this Agreement. ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE PARTIES 3.1. WARRANTIES AND REPRESENTATIONS OF SELLER. As of the Closing date, Seller represents and warrants as follows: 3.11 Definition of Seller The Seller is a municipal corporation and noncharter code city duly organized, validly existing and in good standing under the laws of the State of Washington. Seller has all requisite corporate power and authority to carry on its business as it is now being conducted in the place where such businesses are now conducted. 3.1.2. Execution, Delivery and Performance of Agreement, Authority The execution, delivery, and performance of this Agreement by Seller (i) is within the powers of Seller as a municipal corporation, (ii) has been or will be on or before the Closing Date, duly authorized by all necessary action of the Seller's legislative authority, and (iii) does not and will not violate any provision of any law rule, regulation, order writ, judgment, decree or award to which the Seller is a party or which is presently in effect and applicable to Seller This Agreement constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with the terms hereof. 3.1.3. Litigation. There is no pending, or to the best of Seller's knowledge, threatened lawsuit or material claim against or relating to Seller with respect to the Property, which shall impede or materially affect Seller s ability to perform the terms of this Agreement. There is no pending or to the best of Seller's knowledge, contemplated condemnation or similar proceeding with respect to the Property or any part thereof 3.1 4 Assessments. There is no pending, or to the best of Seller's knowledge, contemplated local improvement district or other special assessment or charge with respect to the Property except as may be disclosed in the Title Commitment described below 3.1.5 Full Disclosure. To the extent of Seller's knowledge as defined herein, no representation or warranty by Seller in this Agreement or in any instrument, certificate or statement furnished to Buyer pursuant hereto, or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of a material fact or fails to state a material fact which is necessary to make the statements set forth therein not false or misleading. As used in this Agreement, the phrase "Seller's knowledge" or any derivation or variation thereof shall mean the actual knowledge of the following persons, based on their reasonable inquiry in the file locations where the relevant information would normally be filed: (a) Doug Lein, Auburn Economic Development Manager, (b) Kevin Snyder, Auburn Planning and Development Department Director, and (c) Dennis Selle, City of Auburn City Engineer 3.1.6 No Broker No broker, finder, agent or similar intermediary has acted for or on behalf of Seller in connection with this Agreement or the transactions contemplated hereby, and no broker finder, agent or similar intermediary is entitled to any broker's, finder's or similar fee or commission in connection with this Agreement based on an agreement, arrangement or understanding with Seller or any action taken by Seller 3.1 7 Contracts. There are no contracts or other obligations outstanding for the sale, exchange, transfer, lease, rental or use of the Property or any portion thereof. 3.1.8 Future Agreements. From and after the Effective Date, and unless this Agreement is terminated in accordance with its terms, Seller shall not without the prior written consent of Buyer (a) Enter into any agreement, contract, commitment, lease, easement or other transaction that affects the Property in any way; or (b) Sell, dispose of or encumber any portion of the Property 3.1.9 Condition of the Property (a) Except as specifically set forth in this Agreement, Seller has not made, does not make, and specifically negates and disclaims any representations, warranties, promises, covenants, contracts or guarantees of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, of, as to, concerning, or with respect to the value, nature, quality, or condition of the Property including, without limitation: (i) The water, soil and geology; (ii) The income to be derived from the Property; (iii) The suitability of the Property for an),and all activities and uses that Buyer or anyone else may conduct thereon; (iv) The compliance of or by the Property or its operation with any laws, rules, ordinances or regulations of any applicable governmental authority or body (v) The habitability, merchantability, marketability profitability or fitness for a particular purpose of the Property (vi) The manner or qualitv of the construction or materials, if any, incorporated into the Property or (vii) Any other matter with respect to the Property (b) Seller has not made, does not make, and specifically disclaims any representations regarding compliance with any environmental protection, pollution, zoning or land use laws, rules, regulations, orders, or requirements, including the existence in or on the Property of hazardous materials or substances. (c) Without limitation, Seller does not make and specifically disclaims any warranties, express or implied, any warranties or representations with respect to the structural condition of the Purchased Assets, the area of land being purchased, the existence or non- existence of any Hazardous Substances or underground storage tanks, or the actual or threatened release, deposit, seepage, migration or escape of Hazardous Substances, from or into the Purchased Assets, and the compliance or noncompliance of the Purchased Assets with applicable federal, state, county and local laws and regulations, including, without limitation, environmental laws and regulations and seismic/building codes, laws and regulations. For purposes of this Agreement, the term 'Hazardous Substances" shall mean: `hazardous substance" as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"); 'hazardous waste" as defined by the Resource Conservation and Recovery Act of 1976 ("RCRA") as amended; hazardous wastes, hazardous materials, hazardous substances, toxic waste, toxic materials, or toxic substances as defined in state or federal statutes or regulations: asbestos-containing materials, polychlorinated biphenyls; radioactive materials, chemicals known to cause cancer or reproductive toxicity petroleum products, distillates or fractions; any substance the presence of which is prohibited by statute or regulation, and any substance for which any statute or regulation requires a permit or special handling in its use, collection, storage, treatment or disposal. (d) Notwithstanding anything in the foregoing to the contrary Seller represents and warrants that it has not received any written notice that all, or any part, of the Property is in violation of any environmental, flood or other applicable laws, rules, regulations, ordinances or statutes of any local, state or federal authorities or any other governmental entity having jurisdiction over the Property (e) All provisions of this Section 3 1.9 shall survive Closing and the expiration or earlier termination of this Agreement. 3.1.11. Foreign Person. Seller is not a foreign person and is a 'United States Person" as such term is defined in Section 7701 (a) (30) of the Internal Revenue Code of 1986, as amended, and Seller shall deliver to Buyer prior to the Closing an affidavit, as set forth in Exhibit D,evidencing such fact, and such other documents as may be required under the Code. 3.2. REPRESENTATIONS AND WARRANTIES OF BUYER. As of the closing date, Buyer represents and warrants as follows: 3.2.1 Organization. Buyer is a Washington State nonprofit corporation duly organized, validly existing and in good standing under the laws of the State of Washington. Buyer has all requisite corporate power and authority to carry on its business as it is now being conducted in the place where such businesses arc now conducted. 3.2.2. Execution, Delivery and Performance of Agreement, Authority, The execution, delivery and performance of this Agreement by Buyer (i) is within the powers of Buyer as a nonprofit corporation, (ii) has been or will be on or before the Closing Date, duly authorized by an agent of the nonprofit corporation having authoritv, under law, to bind the corporation, and (iii) does not and will not violate any provision of any law, rule, regulation, order, writ, judgment, decree or award to which the Buyer is a party or which is presently in effect and applicable to Buyer This Agreement constitutes the legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with the terms hereof 3.2.3. Litigation. There is no pending or, to the best of Buyer's knowledge, threatened lawsuit or material claim against or relating to Buyer that shall impede or materially affect Buyer's abilitv to perform the terms of this Agreement. 3.2.4. Full Disclosure. No representation or warranty by Buyer in this Agreement or in any instrument, document, certificate or statement furnished to Seller pursuant hereto, or in connection with the transactions contemplated hereby contains or will contain any untrue statement of a material fact. 3.2.5. Condition of Property (a) Buver acknowledges and accepts Seller's disclaimer of the Property condition in Section 3 1 9 of this Agreement. (b) Buyer further acknowledges and agrees that, having been given the opportunity to inspect the Property, Buyer is relying solely on its own investigation of the Property and not on any information provided or to be provided by Seller Buyer further acknowledges and agrees that any information provided or to be provided with respect to the Property was obtained from a variety of sources and that Seller has not made any independent investigation or verification of such information and makes no representations as to the accuracy or completeness of such information and no emplovee or agent of Seller is authorized otherwise. Buyer further acknowledges and agrees that Seller is not liable or bound in any manner by any verbal or written statements, representations, or information pertaining to the Propertv, or the operation thereof, furnished by an),real estate broker agent, employee, servant or other person, and, to the maximum extent permitted by law the sale of the Propertv as provided for herein is made on an "AS-IS" condition and basis with all faults. It is understood and agreed that the sale price reflects that the Property is sold by Seller to Buyer subject to the foregoing. (c) Buyer acknowledges that, within the Due Diligence Period as defined in Section 4 1.2 of this Agreement, Buyer will have conducted a physical inspection and made all investigations that Buyer deems necessary in connection with its purchase of the Purchased Assets, and that, as of the Effective Date hereof, Seller has provided Buver with copies of all reports in Seller's possession that have been requested by Buyer Upon waiver or satisfaction b) Buyer of its contingencies pursuant to Article 5, Buyer will be deemed to have approved the physical condition of the Property and agrees to accept and purchase the same AS 1S, WHERE IS" including, without limitation, the existence or non-existence of any pollutants, contaminants, hazardous waste, dangerous waste, toxic waste, underground storage tanks or contaminated soil, or the actual or threatened release, deposit seepage, migration or escape of such substances at, from or into the Property and the compliance or noncompliance of the Property with applicable federal, state, county and local laws and regulations including, without limitation, environmental laws and regulations. Buyer acknowledges and agrees that, except to the extent of Seller s representations and warranties in Section 3 1 of this Agreement, and to the extent of any fraud or deliberate misrepresentation by Seller Seller shall have no liability for and that Buyer shall have no recourse against the Seller for anv defect or deficiency of any kind whatsoever in the Property including without limitation those relating to Hazardous Substances, without regard to whether such defect or deficiency was discovered or discoverable by the Buyer or Seller Buyer agrees to perform a `Phase I" environmental assessment investigation of the Property prior to the expiration of the Due Diligence period and to provide the results of that investigation to Seller Buyer understands, acknowledges, and agrees that this requirement is a material consideration for Seller s execution of this Agreement. Buyer further understands, acknowledges, and agrees that Buyer shall be in material breach of this Agreement, if Buyer fails to timely perform the requirements of this section. 3.2.6. No Broker No broker finder agent or similar intermediary has acted for or on behalf of Buyer in connection with this Agreement or the transactions contemplated hereby, and no broker, finder agent, or similar intermediary is entitled to any broker's, finder's or similar fee or commission in connection with this Agreement based on an agreement, arrangement, or understanding with the Buyer or any action taken by the Buyer 3.2.7 Indemnification. From and after Closing, and for a period of ten (10) years from the Closing Date, Buyer shall indemnify defend and hold Seller, its officers, agents and employees harmless from and against any and all claims and agency orders or requirements relating to or arising out of, directly or indirectly the Property, except to the extent caused by the negligence or willful misconduct of either Seller or King County This Section 3.2.7 shall survive Closing and the expiration or earlier termination of this Agreement. ARTICLE 4. TITLE MATTERS 4.1 TITLE. 4.1.1. Title Commitment. Buyer or its designee shall obtain a current ALTA form of commitment for an owner s policy of title insurance (the Title Commitment") issued by First American Title Insurance Company, Inc. (the Title Company'), describing the Property listing Buyer as the prospective named insured and showing as the policy amount the total Purchase Price for the Property At such time as the Title Company causes the Title Commitment to be furnished to Buyer Buyer may in Buyer s sole discretion determine whether to cause the Title Company to furnish to Buyer legible copies of all instruments referred to in the Title Commitment as restrictions or exceptions to title to the Property 4.1.2. Survey Prior to the expiration of the Due Diligence Period as defined in this Section 4 1.2 of this Agreement, Buyer shall have the option, at its sole cost and expense, to conduct a survey (the 'Survey") of the Property prepared by a licensed public surveyor The Survey shall be certified to Buyer, Seller and the Title Company shall be satisfactory to the Title Company so as to permit it to issue an owner s title policy identify the Property by legal description and shall set forth the number of square feet contained within the Property, show all natural monuments, existing fences, drainage ditches and/or courses, flood plain limits, any building or other site improvements and/or objects, any rights-of-way for streets, existing driveways, alleys or highways, easements and other restriction lines existing and/or proposed which shall affect any portion of the Property and such other items as may be required by Buyer For purposes of this Agreement, "Due Diligence Period" means the sixty (60) day period beginning on the day after the Effective Date of this Agreement. 4.1.3 Review of Title Commitment and Survey (a) Buyer shall have until the expiration of the Due Diligence Period in which to notify Seller of any objections Buyer has to any matters shown or referred to in the Title Commitment or Survey and of anv title insurance endorsements required by Buyer Any exceptions or other items that are set forth in the Title Commitment or the Survey and to which Buyer does not object shall be deemed to be permitted exceptions ("Permitted Exceptions"). Rights reserved in federal patents or state deeds, building or use restrictions general to the district, and building or zoning regulations or provisions shall also be deemed Permitted Exceptions. (b) If Buyer notifies Seller of objections, Buyer shall provide Seller with those documents that Buyer references or bases its objections upon, including any survey and title report, and shall give Seller unrestricted right to reproduce and disclose those documents to King County (c) With regard to items to which Buyer does object, Seller shall notify Buyer within fourteen (14) days after Seller receives Buyer's notice of objections of any exceptions to title or items on the Survey which Seller is not able to remove or otherwise resolve and any endorsements that Seller is not able to provide following Buyer's request, and Buyer may, at Buver's option, either waive the objections not cured or Buyer may terminate this Agreement by notice to Seller 4.2. OWNER'S TITLE INSURANCE POLICI At Closing, Buyer shall cause an owner s extended coverage policy of title insurance to be issued by the Title Company in the full amount of the total Purchase Price, effective as of the Closing Date, insuring Buver that the fee simple title to the Property is vested in Buyer, subject only to the Permitted Exceptions, to the usual printed exceptions contained in such title insurance policy to the additional matters approved by Buyer as provided in Section 4 1.3, and to any other matters approved in writing by Buyer The obligation of Buyer to provide the title policy called for herein shall be satisfied if, at the Closing, the Title Company has given a binding commitment, in a form reasonably satisfactory to Buyer, to issue the policies in the form required by this Section 4.2. Buyer shall pay any sum owing to the Tide Company for the preparation of the preliminary and binding commitments generated by the Title Company 4.3. CONVEIANCE. At Closing, Seller shall convey to Buyer the title to the Property b) bargain and sale deed in the form attached hereto as Exhibit B-1, subject only to the Permitted Exceptions, the further matters identified in Section 4.2, the easements and restrictive covenants set forth in Exhibit B-2, and such other encumbrances as may be created by Buyer or caused to be created by Buyer from and after the Effective Date. ARTICLE 5. CONTINGENCIES 5.1. DUE DILIGENCE INSPECTION AND FEASIBILITY Buyer shall satisfy itself by investigation and inspection, at its sole cost and expense and in its sole and absolute discretion, that the condition of the Property for Buyers contemplated use meets with Buyers approval. If Buyer approves of the condition of the Property, Buyer agrees to notify Seller, in writing, thereby removing this contingency Buyer shall make such determination within the Due Diligence Period defined in Section 4 1.2. In the event Buyer does not waive this contingency or notify Seller that the contingency is satisfied within the Due Diligence Period, then Buyer may terminate this Agreement upon written notice to Seller on or before the expiration of the Due Diligence Period, and neither Party shall have any further rights or obligations to the other hereunder If Buyer fails to provide Seller with any written notice regarding this Section 5 1 during the Due Diligence Period, then this Agreement shall be deemed terminated and neither Party shall have any further rights or obligations to the other hereunder If Buyer provides written notice of termination or no notice to Seller, it shall provide to provide Seller with a description of the conditions of the Property it finds unsatisfactory all documents that Buyer references or bases its finding upon, including any survey and title report, and shall give Seller unrestricted right to reproduce and disclose those documents to King County (except to the extent such reproduction or disclosure is prohibited by the terms of the relevant document). 5.1.1. Inspections. During the Due Diligence Period, Buyer, its designated representatives or agents shall have the right at Buyer's expense to: (a) Perform any and all tests, inspections, studies, surveys or appraisals of the Property deemed necessary, on any subject, by the Buyer (subject to the limitations set forth below and Paragraph 5 1.2 Right of Entry); (b) Obtain a Phase I or Phase If Environmental Assessment on the Property and perform any and all tests, inspections and studies deemed necessary therewith; (c) Examine all Due Diligence materials that Buyer may reasonably request from Seller that are not subject to attorney-client privilege or that the Seller is not otherwise prohibited from disclosing by law; (d) Determine to its satisfaction whether approvals, permits and variances can be obtained under applicable land use and zoning codes for Buyer's proposed use of the Property; and (e) Determine whether Buyer's proposed development of the Property is economically feasible. 5.1.2. Conditional Right of Entry Upon three days advance written request by Buyer Seller shall perform all necessary conditions to gain a conditional license to enter the Property and Seller hereby appoints Buyer as its representative for purposes of entering the Property to conduct the tests, investigations and studies set forth in this Article 5, provided that such right of entry will be limited to those times and dates that will not substantiallv disrupt operations and activities on the Property Invasive tests of the Property, such as drilling or excavation, shall be subject to Seller s prior written approval, which shall not be unreasonably withheld, conditioned or delayed. Buyer and Buyer s designated representatives may not undertake activities that would damage the Purchased Assets or any other king County-owned property or personalty In connection with such inspections, Buyer agrees to hold harmless, indemnify and defend Seller its officers, agents, or employees, from and against all claims, losses, or liability for injuries, sickness, or death of persons, including employees of Buyer, to the extent caused by or arising out of any act, error or omission of Buyer, its officers, agents, contractors, subcontractors or employees in entering the Property for the above purposes, except to the extent caused by or arising out of any act, error or omission of Seller, its officers, agents, or employees. Buyer shall repair any damage caused by invasive testing and shall restore the Propertv to its pre-existing condition. 5.2 THIRD PARTY SALE CONTINGENCI 5.2.1 Simultaneous Closing on Third-Party Sale. Seller has represented to Buyer that Seller intends to conduct a separate closing simultaneous with the Closing on the Property and that the cash for the separate closing to buy the Propertv from a third party shall be the proceeds of the sale contemplated by this Agreement. Therefore, Seller s and Buyer's respective duty to close on the Property as set forth in this Agreement is contingent on Seller s successful simultaneous closing with a third party for the purchase of the Property such that Seller is able to deliver fee title to the Property to Buyer and 5.2.2 No Duty to Close if Third Party Sale Fails. If the contingency in Section 5.2.1 should fail then Seller and Buyer shall have no dutv to proceed with Closing and this Agreement shall automatically terminate as of the Closing Date, all closing documents and funds shall be returned to the Party that provided them to escrow each Party shall bear its own costs and expenses up to and including the Closing Date, and neither Partv shall have any further right, duty, or obligation to the other under this Agreement. 5.3 SUBDIVISION CONTINGENCY No Duty to Close if Propertv Not Divided. Seller shall complete the process to lawfully divide the Auburn Park-and-Ride into two separate parcels, receive administrative approval of the division, and perform all other tasks necessary for the division to be recorded with the King County Recorder's Office on the Closing Date, including all possible appeals or challenges to the proposed division of the Auburn Park-and-Ride. If Seller is unable to complete the process to lawfullv divide the Auburn Park-and-Ride by recording all necessary documents with the King County Recorder s Office on the Closing Date such that Seller is able to convey fee title to the Property, to Buyer, then Seller and Buyer shall have no duty to proceed with Closing, and this Agreement shall automatically terminate as of the Closing Date, each Part} shall bear its own costs and expenses up to and including the Closing Date, and neither Party shall have any further right, duty, or obligation to the other under this Agreement. 5.4 FTA APPROVAL CONTINGENCY 5.4.1. Need for FTA Approval. Seller has represented to Buyer that the Federal Transit Administration (FTA) must approve Seller's proposed purchase of the Property by Seller Seller has represented to Buyer that such FTA review and approval is necessary to proceed with the transaction contemplated in this Agreement. Therefore, Sellers duty to Close is contingent on FTA review and written approval of the proposed transaction. 5.4.2 No Duty to Close Absent FTA Approval. If the FTA does not approve the proposed transaction regarding the Property within ninetv (90) days of the Effective Date of this Agreement, then Seller shall provide written notice to Buyer and this Agreement shall terminate upon such written notice from Seller to Buyer each Party shall bear its own costs and expenses up to and including the date of Seller's notice to Buyer and neither Party shall have any further right, duty or obligation to the other under this Agreement. ARTICLE 6. COVENANTS OF SELLER PENDING CLOSING 6.1 CONDUCT, NOTICE OF CHANCE. Seller covenants that between the Effective Date and the Closing, Seller shall take all such actions as may be necessary to assure that Seller's representations and warranties set forth in Article 3 hereof will be true and complete as of the Closing Date (except such representations, warranties and matters which relate solely to an earlier date), and all covenants of Seller set forth in this Agreement which are required to be performed by it at or prior to the Closing shall have been performed at or prior to the Closing as provided for in this Agreement. Seller shall give Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made by Seller in Article 3 or elsewhere in this Agreement which occurs prior to the Closing Date. ARTICLE 7 COVENANTS OF BUYER PENDING CLOSING 71 CONDUCT, NOTICE OF CHANGE. Buyer covenants that between the Effective Date and the Closing, Buyer shall take all such actions as ma) be necessary to assure that Buver's representations and warranties set forth in Article 3 hereof will be true and complete as of the Closing Date (except such representations, warranties and matters which relate solely to an earlier date), and that all covenants of Buyer set forth in this Agreement which are required to be performed by it at or prior to the Closing shall have been performed at or prior to the Closing as provided in this Agreement. Buyer shall give Seller prompt written notice of any material change in any of the information contained in Buyer's representations and warranties made in Article 3 or elsewhere in this Agreement which occurs prior to the Closing Date. ARTICLE 8. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS All obligations of Buver hereunder are subject to Seller's fulfillment of each of the following conditions at or prior to the Closing, and Seller shall exert its best efforts to cause each such condition to be fulfilled: 8.1 DELIVER\ OF DOCUMENTS. Seller shall have delivered to Buyer at or prior to closing all documents required by the terms of this Agreement to be delivered to Buyer 8.2. REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations, warranties and covenants of Seller contained herein or in any document delivered pursuant hereto shall be true and correct in all material respects when made and as of the Closing Date. 8.3. OBLIGATIONS. All obligations required by the terms of this Agreement to be performed by Seller at or before the Closing shall have been properly performed in all material respects. 8.4. TITLE. Any and all matters shown or referred to in the Title Commitment to which Buyer has objected within the time specified in Section 4 1, shall have been cured by Seller, unless Seller has notified Buyer that Seller will not cube, and Buyer has waived its objections. 8.5 APPROVAL OF COUNSEL. Seller s legal counsel shall have approved this document as to form as evidenced by such counsel's signature on this Agreement. 8.6. CONDEMNATION. No portion of the Purchased Assets shall have been taken or damaged by anv public or quasi-public body, and Seller shall not have transferred any portion of the Purchased Assets to any such body in lieu of condemnation except with Buyer s written assent. 8.7 APPROVAL BV THE AUBURN CITI COUNCIL. The Auburn City Council shall have taken all legislative action necessary to authorize Seller to enter into the transaction contemplated in this agreement. ARTICLE 9. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS All obligations of Seller to close on the Closing Date are subject to Buyer's fulfillment of each of the following conditions at or prior to the Closing, and Buyer shall exert its best efforts to cause each such condition to be so fulfilled: 91 REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations, warranties and covenants of Buyer contained herein or in any document delivered pursuant hereto shall be true and correct in all material respects when made and as of the Closing Date. 9.2. OBLIGATIONS. All obligations required by the terms of this Agreement to be performed by Buyer at or before the Closing shall have been properly performed in all material respects. 9.3. DELIVERS of DOCUMENTS. Buyer shall have delivered to Seller at or prior to Closing all documents required by the terms of this Agreement to be delivered to Seller 94. TITLE. Buyer shall have caused the Tide Company to be committed to issue an owner s policy of title insurance for the full amount of the Purchase Price, effective as of the Closing Date, containing no exceptions other than the Permitted Exceptions and such other matters as Buyer may authorize in writing. 9.5 APPROVAL BY THE CORPORATION. Buyer shall have taken all corporate action necessary to authorize Buyer to enter into the transaction contemplated in this Agreement. 9.6 EXECUTION OF AvIGATION EASEMENT The Buyer shall execute the Avigation Easement and Restrictive Covenant substantially in the form of Exhibit F attached hereto. 97 EXECUTION OF DRAINAGE EASEMENT The Buyer shall execute a Drainage Easement and Restrictive Covenant substantially in the form of Exhibit G, attached hereto. ARTICLE 10. CLOSING 10.1. CLOSING/CLOSING DATE, 'Closing" means the consummation of the transaction contemplated in this Agreement. The Closing shall take place thirty (30) days after expiration of the Due Diligence Period, as defined in Section 4 1 2, or such other date as may be mutually agreed upon by the Parties, but not later than January 31 2013, unless extended pursuant to a separate written agreement executed by Buyer and Seller Upon execution of this Agreement, the Parties agree to set up an escrow account with First American Title Insurance Company in Seattle, Washington (the 'Escrow Agent"). The Escrow Agent shall serve as closing agent for the transaction contemplated herein and the Closing shall occur in the offices of Escrow Agent in Seattle, Washington. Subject to the Permitted Exceptions and the easements and restrictive covenants set forth in Exhibit B-2, attached hereto, all title, right of possession and interest to the Purchased Assets shall pass to Buver upon Closing and thereafter the risk of loss thereof shall be the responsibility of Buyer 10.2. PRORATIONS. All prorations, unless otherwise specifically provided for herein, shall be made as of the Closing Date. 10.2.1 Closing Costs. Buyer shall pay the cost of the escrow fee charged by the Escrow Agent for the sale of the Purchased Assets to Buyer, any real estate excise or other transfer tax due on the sale of the Purchased Assets to Buyer, the full cost of the preliminary and binding title commitments from the Tide Company, the full cost of all recording fees, and all of its own attorneys' fees. Except as otherwise provided in this Section 10.2, all other expenses hereunder shall be paid by the Party incurring such expenses. 10.3. SELLER'S DELIVER\ OF DOCUMENTS AT CLOSING. At the Closing, Seller will deliver to Buyer the following properlv executed documents: (a) A Bargain and Sale Deed conveying the Property and substantially in the form of Exhibit B-1 attached hereto, (b) A Bill of Sale and Assignment duly executed by the Seller and substantially in the form of Exhibit C, attached hereto for the Personal Property if any and (c) Seller s Certificate of Non-Foreign status substantially in the form of Exhibit D, attached hereto. (d) Excise tax certificate. (e) An executed Systems Development Charge Credit agreement, 10.4. BUYER'S DELIVERY OF Doc UNI ENTS AND PURCHASE PRICE AT CLOSING. At the Closing, Buver will deliver to Seller the following properly executed documents: (a) Cash or immediately available funds in the full amount of the Purchase Price; and (b) An Avigation Easement and Restrictive Covenant, and Drainage Easement and Restrictive Covenant, both substantially in the form of Exhibit F and G, respectively ARTICLE 11. TERMINATION 11 1 TERMINATION BY EITHER PARTY In addition to Buyers right of termination during the Due Diligence Period, and in addition to termination for failure of anv of the contingencies set forth in Sections 5 2, 5.3, and 5.4 of this Agreement, either Party may also terminate this Agreement effective upon written notice to the other Party if a condition to its obligation to consummate the transactions contemplated by this Agreement as set forth in Articles 8 and 9 has not been satisfied by the Closing Date. In that event, if neither Party is in default under this Agreement, the Parties shall have no further obligations or liabilities to one another, all documents and funds delivered into escrow shall be returned to the appropriate Party and each Party shall bear its own costs and expenses up to and including the date of termination. ARTICLE 12. MISCELLANEOUS PROVISIONS 12.1 NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Subject to amendment pursuant to Section 12.5 of this Agreement, each statement, representation, warranty, indemnity, covenant, and agreement made bN Seller and Buyer in this Agreement or in any document, certificate or other instrument delivered by or on behalf of Seller or Buyer pursuant to this Agreement or in connection herewith shall be deemed a representation, warranty, indemnitv, covenant and agreement between Seller and Buver and shall survive the Closing Date unless a different time period is expressly provided for in this Agreement and all such statements are made only to and for the benefit of the Parties hereto, and shall not create any rights in other persons or entities. 12.2. DEFAULT In the event of default by either Party to this Agreement, the non-defaulting Party shall have the right to bring an action for specific performance or, in the alternative, actual damages, provided that any such cause of action shall be brought within twelve (12) months of the Effective Date, or be forever waived. The Parties shall have no right, claim, or cause of action for consequential damages, and each Party expressly and specifically waives any claim or cause of action for the same, whether at law or in equity 12.3. TIME IS OF THE ESSENCE. Time is of the essence in the performance of this Agreement. 12.4. NOTICES. Any and all notices or other communications required or permitted to be given under any of the provisions of this Agreement shall be in writing and shall be deemed to have been duly given upon receipt when personally delivered or sent by overnight courier, or three (3) days after deposit in the United States mail if by first class, certified or registered mail, return receipt requested. Notice may also be provided b} email or other means of electronic transmittal, provided that receipt of the email or transmittal content can be confirmed by the sender, with time of receipt being the uniform time the e-mail or other transmittal enters the information processing system that the recipient has designated or uses for the purpose of receiving email or other form of transmittal. All notices shall be addressed to the Parties at the addresses set forth below or at such other addresses as any Parties may specify by notice to all other Parties and given as provided herein: If to Buyer- Orion Industries 33926 Ninth Avenue South Federal Way, WA 98003-6708 With a cop),to K&L Gates LLP Attn: Charles Royce 925 Fourth Avenue, Suite 2900 Seattle, WA 98104 If to Seller- Office of the Mayor City of Auburn 25 West Main St. Auburn, WA 98001 With a copy to Auburn City Attorney's Office City of Auburn 25 West Main St. Auburn, WA 98001 12.5. ENTIRE AGREEMENT AND AMENDMENT This writing (including the Exhibits attached hereto) constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any prior agreement or understanding, whether written or oral. This Agreement may not be modified or amended except by a written agreement specifically referring to this Agreement and signed by all Parties hereto. 12.6 SEVERABILM In the event any portion of this Agreement shall be found to be invalid by any court of competent jurisdiction, then such holding shall not impact or affect the remaining provisions of this Agreement unless that court of competent jurisdiction rules that the principal purpose and intent of this contract should and/or must be defeated, invalidated or voided. 12.7 WAIVER. No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party giving such waiver and no such waiver shall be deemed a waiver of any prior or subsequent breach or default. 12.8 BINDING EFFECT Subject to Sections 12.12 and 12.14 below this Agreement shall be binding upon and inure to the benefit of each Partv hereto, its successors and assigns. 12.9 LEGAL,RELATIONSHIP The Parties to this Agreement execute and implement this Agreement solely as Seller and Buyer No partnership,joint venture or joint undertaking shall be established by or construed from this Agreement. This Agreement creates no right, privilege, duty, obligation, or cause of action in any person or entity not a party to it. 12.10 CAPTIONS. The captions of any articles, paragraphs or sections contained herein are for purposes of convenience only and are not intended to define or limit the contents of said articles, paragraphs or sections. 12.11 COOPERATION. Prior to and after Closing each Party shall cooperate, shall take such further action and shall execute and deliver further documents as may be reasonably requested by the other Party in order to carry out the provisions and purposes of this Agreement. 12.12 GOVERNING LAN; VENUE. This Agreement and all amendments thereof shall be governed by and construed in accordance with the laws of the State of Washington applicable to contracts made and to be performed therein, without giving effect to its conflicts of law provisions. The Superior Court of King County Washington shall be the sole venue for any litigation between the Parties that arises under or relates to this Agreement or the transaction contemplated herein. 12.13 NON-NIERGER. The terms and provisions of this Agreement will not merge in, but will survive, the closing of the transaction contemplated under this Agreement. 12.14 AssIGNMENT Buyer shall not assign this Agreement or any rights hereunder without Seller's prior written consent, which may be withheld or conditioned at Seller's sole and absolute discretion. 12.15 NEGOTIATION AND CONSTRUCTION. This Agreement and each of its terms and provisions are deemed to have been explicitly negotiated between the Parties, and the language in all parts of this Agreement will, in all cases, be construed according to its fair meaning and not strictly for or against either Party Both Parties acknowledge and represent, as an express term of this Agreement, that they have had the opportunity to obtain and utilize legal review of the terms and conditions outlined in this Agreement, although each Party must determine if they wish to obtain and pay for such legal review Each Party shall be and is separately responsible for payment of any legal services rendered on their behalf regarding legal review of this Agreement. TERMS AND CONDITIONS CONTINUE ON FOLLOWING PAGE 12.16 EXHIBITS. The following Exhibits described herein and attached hereto are fully incorporated into this Agreement by this reference: Exhibit A Legal Description of Property Exhibit B-I Bargain and Sale Deed Exhibit B-2 Public Transportation Easement and Restrictive Covenant Exhibit C Bill of Sale and Assignment Exhibit D Certificate of Non-Foreign Status Exhibit E Real Estate Purchase and Sale Agreement between King Co. and the City of Auburn Exhibit F Avigation Easement and Restrictive Covenant Exhibit G Water and Storm Drainage Easement EzP.cunr i) by the Parties as of the dates set forth below SELLER. Name: _ Title: Date: /APPROVI?D AS TO t � ^ (\S/1 y 1 l(f/1 vlC` BUYER.. Name: Title: S Date: NOTARY BLOCKS APPEAR ON FOLLOWING PAGE STATE OF WASHINGTON ss. COUNTY OF KING On this day personally appeared before mr-Z-� a ,Se n to me known to be the CJ� o of ORION INDUSTRIES, the Washington nonprofit corporation that executed the foregoing instrument, and acknowledged such instrument to be the free and voluntary act and deed of such nonprofit corporation, for the uses and purposes therein mentioned, and on oath stated that he was duly authorized to execute such instrument. GIVEN UNDER MY HAND AND OFFICIAL SEAL this.:X��m day of 2012. \`�,,.a\\stetgtpl ;'�v�•CAlyp''n,� r3 Pr a ime 2- -� yo�� NoTA2v PUni.IC in and for the Slate of Washington, residing at a \V s i My Commission Expires 1 2-10\l0 �i��Njy4t�t q_0(j 1rO�= = iirr94n1 tM.aw,\ \,\ls STATE'Mmtt�it� 9 TON 1 )} ss. COUNTY OF KING On this day personally appeared before me;��� \ , to me known to be the , c,-\ of the CITY OF AUBURN that executed the foregoing instrument, and acknowledged such instrument to be [his/her] free and voluntary act and deed of said city for the uses and purposes therein mentioned, and on oath stated that [he/she] was duly authorized to execute such instrument. GIVEN UNDER Ml'HAND AND OFFICIAL SEAL this day of ���\ •� \.e 2012. S��sV�\�jAaY 'y Printed Name e. � - \ 2` N' NOTARY PUBLIC in and for the State of was ineton. residing at My Commission Expires �l ' Ck / amt to Jill I KUW622TDWMU0199 eHRV0199A 3FN EXHIBIT A. Legal Description of Property THAT PORTION OF THE SOUTH HALF OF JOSEPH BRANNAN DONATION LAND CLAIM NO 38, SITUATED IN THE WEST HALF OF SECTION 7, TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M.; AND THE EAST HALF OF SECTION 12, TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M., IN THE CITY OF AUBURN, KING COUNTY WASHINGTON, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS. COMMENCING AT 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT-OF-WAY OF 15T"STREET N.E. WITH THE CENTERLINE RIGHT-OF-WAY OF 'D' STREET N.E. AS SHOWN ON RECORD OF SURVEY, RECORDING NUMBER 7701179008, RECORDS OF SAID COUNTY, FROM WHICH, A 3INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT-OF- WAY OF SAID 15'"STREET N.E. WITH THE CENTERLINE RIGHT-OF-WAY OF 'A' STREET N.E., BEARS NORTH 89°30'04" WEST, 980.32 FEET, THENCE ALONG THE CENTERLINE OF SAID 'D' STREET N.E., NORTH 00°41'08" EAST, 360.38 FEET TO A 1-1/2 INCH DIAMETER BRASS SURFACE MONUMENT, THENCE CONTINUING ALONG SAID CENTERLINE NORTH 00°41'08" EAST, 130 42 FEET TO THE SOUTH LINE OF AUBURN MUNICIPAL AIRPORT AS SHOWN ON SAID SURVEY, THENCE ALONG SAID SOUTH LINE NORTH 89°04'44" WEST 691.73 FEET TO THE SOUTHWEST CORNER OF SAID AIRPORT PROPERTY AND THE TRUE POINT OF BEGINNING,THENCE ALONG THE SOUTHERLY EXTENSION OF THE WEST LINE OF SAID AIRPORT PROPERTY SOUTH 00°39'48" WEST, 143.93 FEET, THENCE SOUTH 89°30'49" EAST 40.36 FEET, THENCE SOUTH 00°30'04" WEST, 170.04 FEET, THENCE NORTH 89°42'06" WEST, 299.66 FEETTO THE EAST MARGIN OF 'A' STREET N.E., THENCE ALONG SAID MARGIN NORTH 00°39'20" EAST, 614.85 FEET TO THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND AS SHOWN ON SAID RECORD OF SURVEY;THENCE ALONG THE NORTH LINE OF SAID PARCEL SOUTH 89°30'04" EAST, 258.89 FEET TO THE WEST LINE OF SAID AIRPORT PROPERTY, THENCE ALONG SAID WEST LINE SOUTH 00°39'48" WEST 299.84 FEETTO THE TRUE POINT OF BEGINNING. CONTAINING 3.81 ACRES, MORE OR LESS SUBJECT TO EASEMENTS, CONDITIONS, AND RESTRICTIONS )'�t / J, IRAS-A'/ IST ' � o fU�'AL LAt4 S I. I II I _ . I \ .S89°30'04'E 258.89'i , \ \ N ik,• I \ � a�•' I I t m a 't t TRUE POINT OF BEGINNING 1 in (7 I. m t I w ` N N89'0444V 691.73' o SDO°3 1 �43.93 r 569`30'49°E 40.36 z' t. � :NDD°4P08°E ZI 13D.ai IR01V PARCELA .Iy AREA=166.941':SO.FTv < 3.81'AC. o o I m q AP T P zj Z, y N89°4708 299.65 h I m w 1b q 4 3133 X47 I i to I. C18TE8F' J4'. TAr1Ds -- �--= --J, ------ 589'30'047E 980.32'(BASIS OF BEARING) - ----- 15TH ST_NE ParametriX' Dare ewi 0;r a�nmimlw n. CITY OF•AUBURN -KING COUNTY METRO'B.L.A. D N 200• PARCEL A SCALE IN FEET' EXHIBIT B-1. Bargain and Sale Deed AFTER RECORDING RETURN TO Orion Industries 33926 Ninth Avenue South Federal Way, WA 98003-6708 BARGAIN AND SALE DEED Grantor City of Auburn, Washington, a municipal corporation Grantee Orion Industries, a Washington non-profit corporation. Tax Parcel Numbers. Lot "A" of the subdivision recorded under King County Recording No , The Grantor, the CITY OF AUBURN, a municipal corporation and noncharter code city for and in consideration of ten dollars ($10.00) in hand paid and other consideration as set forth in that certain Real Estate Purchase and Sale Agreement dated November 26, 2012 and authorized by City of Auburn Ordinance No 4878, does hereby bargain, sell and convey unto the Grantee, Orion Industries, a non-profit Washington corporation, the following described real estate situated in King County, Washington, and the Grantee hereby accepts the same. Legal Description THAT PORTION OF THE SOUTH HALF OF JOSEPH BRANNAN DONATION LAND CLAIM NO 38, SITUATED IN THE WEST HALF OF SECTION 71 TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M., AND THE EAST HALF OF SECTION 12. TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M., IN THE CITY OF AUBURN, KING COUNTY, WASHINGTON, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS COMMENCING AT A 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT-OF-WAY OF 15TH STREET N.E. WITH THE CENTERLINE RIGHT-OF-WAY OF 'D' STREET N.E, AS SHOWN ON RECORD OF SURVEY, RECORDING NUMBER 7701179008, RECORDS OF SAID COUNTY, FROM WHICH, A 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHI-OF-WAY OF SAID 15TH STREET N.E. WITH THE CENTERLINE RIGHT-OF-WAY OF 'A' STREET N.E., BEARS NORTH 89 30' 04"WEST, 980.32 FEET, THENCE ALONG THE CENTERLINE OF SAID 'D' STREET N.E., NORTH 00 41'08" EAST, 360.38 FEET TO A 1-1/2 INCH DIAMETER BRASS SURFACE MONUMENT, THENCE CONTINUING ALONG SAID CENTER-LIN'E NORTH 00 41' 08" EAST, 130 42 FEET TO THE SOUTH LINE OF AUBURN MUNICIPAL AIRPORT AS SHOWN ON SAID SURVEY, THENCE ALONG SAID SOUTH LINE NORTH 89 04' 44" WEST, 691 73 FEET TO THE SOUTHWEST CORNER OF SAID AIRPORT PROPERTY AND THE TRUE POINT OF BEGINNING; THENCE ALONG THE SOUTHERLY EXTENSION OF THE WEST LINE OF SAID AIRPORT PROPERTY SOUTH 00 39' 48"WEST, 143.93 FEET, THENCE SOUTH 89 30' 49" EAST 40 36 FEET, THENCE SOUTH 00 30- 04" WEST, 170 04 FEET, THENCE NORTH 89 42' 06"WEST, 299.66 FEET TO THE EAST MARGIN OF W STREET N.E., THENCE ALONG SAID MARGIN NORTH 00 39' 20" EAST, 614 85 FEET TO THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND AS SHOWN ON SAID RECORD OF SURVEY, THENCE ALONG THE NORTH LINE OF SAID PARCEL SOUTH 89 30' 04" EAST, 258.89 FEET TO THE WEST LINE OF SAID AIRPORT PROPERTY, THENCE ALONG SAID WEST LINE SOUTH 000 39' 48" WEST 299.84 FEET TO THE TRUE POINT OF BEGINNING. SUBJECT TO all rights, conditions, covenants, obligations, limitations and reservations of record for said real estate. Executed by CITY OF AUBURN this aZs day of 2013. GRA GRANTEE CITY F ORION INDUSTRIE BY BY ` TITLE. M AYo� TITLE. STATE OF WASHINGTON ) ss COUNTY OF PIERCE ) On this 3° day ofd 2013, before me personally appeared PETER B LEWIS, to me known to be the MAYOR of the municipal corporation that executed the 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 he was authorized to execute said instrument and that seal affixed is the corporate seal of said corporation. "�re4 + %MWIPER MY HAND AND OFFICIAL SEAL thisQl'-6 day of�c ,.` 2013. :`� CAlb�p "##� � � r 1, up� � -ONX Notary Public in and for the State of Washington 2_ _ CA My Commission Expires: 0 F 1 E STATE OF WASHINGTON ) ) ss COUNTY OF PIERCE ) On this day personally appeared before me ^- 4 , to me known to be the C40ru of ORION INDUSTRIES, the Washington nonprofit corporation that executed the foregoing instrument, and acknowledged such instrument to be the free and voluntary act and deed of such nonprofit corporation, for the uses and purposes therein mentioned, and on oath stated that he was duly authorized to execute such instrument. GIVEN UNDER MY HAND AND OFFICIAL SEAL this 23x.1 day of . 2013. ,M'Q 'I�:,,I� u =Notary Public in and for the State of Washington NOTAWRY twoy Z_My Commission Expires: : N PUBLIC : :A �. .,� 0 'tell W, EXHIBIT B-2. Public Transportation Easement and Restrictive Covenant RECORDING REQIJL'STED BY AND .WliEN REC6RDED RLT111Ud 'I'0' Document '1'itle, Ptiblic'Transportation Easement and Restrictive Covenant Gra Tito r(s): City of Auburn Grantee, King County Abbreviated Legal Description: Lots A and 13 of BLA 11 Additional Legal Description is on Page l cliihlls"A"Ind"13' Assessor's Tax Parcel Number(s): Tms PUBLIC TRANSI'OIt'I'ATION EASEMENT AND RESTRICTIVE COVENANT' is gr_anted'by TI.IE CITY OF AUBURN, a municipal corporation and noncharler code city with Ii council-mayor fonn of government organized pursuant to RCW Title 35A ("Grnnmr') to KING COUNTY a home rule charter county and political subdivision of the Stale of \Vashington ("Grantee"), Grantor and Grantee arc sometimes 'referred to herein individually as a 'Pan ty"and collectively as the "Parties." PUB IAC TRANSPORTATION EASEMENT AND RES'T'RICTIVE COVGNAN_I' WHEREAS, Grantee is a home rule charter county and a political subdivision of the State of Washington; and WHEREAS, Grantee for decades has owned, operated and maintained a public transportation and mass transit facility known as the Auburn Park-and-Ride Lol, with a 'street address of IU1 151h St NL, Aubm6, \Vashington (taw"P&R Lot"): au id WHI;RLAS, in connection with IlIcT&R Lot, and in furtherance of Grantees mass transit system, salcty and efficiency considerations require that Gr.intee's buses anif other vehicles must enter and exit the MR Lol from "A Sheet NE, and be provided sufficient physical space and tanning radios within the P&R Lot to safely maneuver around and liage 1 i Public Traiispouatiun Fas6oen4 Auburn Park nnil-Ride Lot A of nLA ft. bi lween Guhicics partied there in order to enter and exit thc'[ &R Lot frenn "A'' Sueel NE, .arid WHEREAS,,the .P Q R Lot operates twenty-four hours a day, seven [lays a week, .and as 'such I-,, res sufficiciit;uul ade__ quate lighting Cor'liulilie safety as well as sole ,operation;UiSrantee s buses and other vehicles, and Wlll?REAS, in 2012, I'of Graiilai's oGm piirp6ses�ancl uses, and tv.ith Granlco s i peimission, Grantor subdivided the P&R Lot into two (2) parcels pursuant to that certain i boundary line adju'sbrlent illu`stratad in Exhibit C altachod'hc clo;.aiid WPILRGAS;'Grhntoc retains title to what is flow tax 1parcel _ , which is the recon( gurcd.l'KR'Lot.("Lot,13"),.and,Gran tot hits ncquircdlax.paicel no, C`Lol A")*f6r its own scpartitc purposes and uses, and WHEREAS, Giatitor;acknowledges that over iniu y years•Grintee blade sigilificalit investtitcnts in hnprovenienls to 'Lots A .and 'B Cot benefit of,tlie :PgR Lot, and that 'Grantee's histoiical and.coniirtiiing tisc .of Lot B andi a portion 'of Lot :A for ptiblie fraiisportation and liiAss trah-sit liurp(5scs are•depe6detit,6i). tole mgroJemehts;continuiitg ,to functioii iii a guod.a6d Felizble conilitidit,aiicl WIINRF.AS, as a condiliowof.the larger-real estate lrmisactimt behvecn Grantor acid .Granite, and in further consideration of the promises, covenants, ,c•oitditidiis aaid rt'eshi6tions set Iorlh herein,•Gi'a6tec requires an easefitent over' a portimi of hill A s6 that the Giaince's•buses and other vehicles'may continue to access, ciitcr,.iuid exit-Lot A from "A" Strect NE and to safely manctiver•upon Loi A, and so that.Grantee muy"coutinue to ,irsc, iiiai stain,rcjiair, r"aplaoc and bogradc.lighting on a portion of Lot A in coiiricctioii with .Grantee's ,public,transportation and inass 166sif access there, anal G_ ranter pis willing to grant the safnd; a6d i WHEREAS,EREAS, as a condition of the larger eeat estate transaction bahJeen Grantor and GrEOnee, and in 'further consiclerition of the promises„ cbi ,eimiits, conditions and restrictions set lorlh herein, Grantee roquires,th.il'Granlor resirict and Grantor is.willing to `,so roslrict '(3riiilhr s 'use pf a portion of Lot A to tliose uses and purliitses. that tiro compatible with.Grantee's continued use of and reliance on bus and'other.ychicular access I tit anti from "A Stieet. 4E and' over, across,dint lhi6ugh I.ot A I m its public traiisporlation and mass transit activities on and in connection with,tlic MR Loll afnd WHBRBASrstoi¢iwater.and surface water front a- pprtioh of.the P. K.R, Lot is- collected in the existing storni.drains on Lots.A and B and'is discliarged from Ihosc chains into the existing ret6ntionkletention pond on.Loi B, which p6nd.discharges into Grantee's existing conveyanec lute thtit'nins northerly over Grantor's sepatatc pr6perly�ide6tified as tax parrccl No. 000080-'0011, .which conveyance line is authori-ied unifier that certaiii easement recorclM ai King Couniy Recording No,.7608310816, all as sho'Wfi in that certain plan set ninnikr&I.' 11 1 189 and, dated [F-6hruary '10; 1978, as modified dry' ipagas C301 2 arzuis I I .Public'1'_rursporta tin n'Easement r\uburim park-and-Ride Lot A of 6LA n through C304 of that certain Contract No. C75 134'q, dated lily 1997 (Tile NOs—E80, 681, 'G82),tcopies,of which documents are.oti file with Giatitor and Grantee; and t 'WHEREAS,as a condition df the larger real estate transaction between Grantor and Gr_mtee, Anil in, further consideration of tlic promises, c6vcntuits, ,conditions and resyictions set.fgrth herein,Grantee requires an additional.casement over a portion of Lot 'N so that Grtinlee,may c6ritinue'to use the existing drtiinage sys`teni inipiovcmerils to drain stornnvater andsurf'ice water from ;the I? d'„ R Lot as now or'hcietiner configured, and Grantor is willing to gr.Ant the same; NOW, T11Ii FTORE, as partial consideration for the Overall real properly transaction of which this Easement and Restrictive Cotenant is an element,.and in further consideration of,the,litntual covenants, conditions, restrictions, and agreements hereinafter set for"th, the ad'ficiency and adequacy of which.is hereby a cic'nowledged,'Grciniin• Anil ,Grantee hereby agree as follows: 1, EASEMENT A. Defined"I'crins. In addition ,lo the terms defined in the Recitals above, ,which .Recitals are hereby inc6ij5. titecl as if fully set fortfi herein, and in ailditioii to such 011ie],terms as may be defined in the body of this document: 1 .7'he ;physical portion of f-i t A 'legally described in ERhilAt .A is Lite "Easement urea." Lot A is described in Exhibit B-1 ,2. lot 'B together ivith Grantee s easement rights :iri that liortioii of Lot A desedbed'in Exhibit 11-2 are the"13enefilted Property-" 3 'This-Public Transportation Acccss Easotiie it and Rcsthctivp 'Co`vchtinl is the`tEaseineril." 4 "Lighting Improvements" means pt BM mansporlatip-o-clatcd improycments tin `the P&,R Lot silualc8, tv,ilhin .twenty (20) feet -of the southern most boundary lino of Lot A, including; but IOol liniitc'd to, overhead lights; 'light poles, footings, foundations, .untlergiotn.d and I overhead wires, utility ducts, -vaults, -indilioles, liccess hatches, 'vents, mcters, monitoring equipment, cabinets, containers, ,coniluils, -wiles, unit 1 other neccsstiry and con venient 'equipment and, appui�tcnanccs including, but root limited ,io, all dighting.and ;oilier 411provcmcrits and.:cquipmerit servicing §aid lighting as slioivn in that cel:taili lilini-set lnunbered'b11489 .and dated February 10, 1978;,as,i$odilicd,by pages E101 tluough•LIQ3 of that ocrtain Contract NO. 'C65t)46C, dated 'Ocfober 1996, and.as •hither modified by ,pages 0301 through ,0304 of.`that certain 'Contract No. .C75134C dated Judy 1997 (File Nos. E90; E81; 182), copies of which documents the on lilc,with Grantor and Gantee (hereinafter the 'Tlans•-�. 1 i 3 mrsrn i Public'I'rimsponalion t:'ascmart Aublirn Pork-and-k ule Lot A oFH1,A 11 i 'S "Purchase and Sale Agrceriient" means .t_hat ccrt5in purchase. grid sale � aercefi eni executed by King County and the'City of Aubm wregaiding L_ot •A,as.authorized by King'C60tuy ordinance 116. and Oily of Auburn ordiiiancc no. 'Grant of i?asementiRivhfs. ;Grantor hereby grants and coirveys, confirms, and rc- i affirms"to Grantee,.the l'ollorving,perpetutil cascment rights in'I-ot A' I 1 A permanent access cas ipelit in, ;on, over, ,across;, and through the Easement Aiea for 'Granle-e's continued public •Iransliotation 'and mass i transit purposes in connection'With the use and operation of the &R LoLas now configured or hereafter in6dified, aspr bre frilly described in Paragraph 3'of ihis'Section I.l;. When bb Lit A,•Cifahtce's'buses 'luld other public Transportation or mass transitvchicics shall have iiglit of way,over all other vehicles in the l axeiircnt Area. All other vehicles shall yield tZi-Ol'antee s -buses and other public ttanspggatitin or .brass Aramsit vehicles when j Grantee s vORlcs are in motidn: 'Grantee may-paiiit, stNpc,,signahze, or ' otherwise iniprove the Laserneit Aioa lo.ensure`thul Gratilee s buses'and other public iransportation,oi inassdransit vehicles may free]'/ enlcrand exit i,or A. TROVIDED, that nothing in this Section IRI shall ciperale Iq .t_ellevc [lie.drivers ol7.Grantec's vehicles from the duty to 'drive with due regard for the safey of all persons on Lot A. { 2: A perhanent, non-exclusive .construction 'easement through Lot A For ingress zncl.egress to and from Lot•A for personnel, vehicles and equilimcnt as reasonably necessary or incidental to Grantee's maint_eiiance, repair and ieplacenicnt.of'the Lighting 7mjrrove1lienls. till as lnofe filly described in I'enngtuph'3 of this Section LB. I 3 Subject to the Further terms arid conditions 61"ithis Easelnoiu,;Grantoc shall 11 ave 'tile right ki use the Basement Area for all purposes necessary ;or incidental to public tansporlati6n or mass transit vehicle access over, ingress.to, and egress fron5 Lot A via "A" Siteot'NL, inchiiditig-htit not ,limited ;to 'Grantee's use, ,operation, maintenance, inspection, repair, { eptubeiiterit, of all or any paving, pavement mHci ig; ,traffic signals or controls, curbs, cub chits, gutters, sidewalks, crosswalks, pedestrian aocess routes, wellCways,.railings,.or fences within'Fasement Areti,as'G'anlee.may snow oi`her after deer lippropriate, including the removal or ieplacerucnt of same; either in tvliolc or in�parl ltvitfi like size f ngrovenierus poi facilities, 'these iml3r6veuietits, together with ihe•Lighting improvements, are referred '.to'Ifercii�5s'tlie"Transportation.liiiprovenients." i ,I The !Following cascment rights related,.ttr stoniiwater and surface water ;ch'ainage iinprovcmeiits on Lgt'A. (a) A .perranenl stUrmwater and,surfince-water draiinage eaveliiciil in, on, over under, across, and through Lot A for Grantee's use end i f .4 WWI? II i Public i'ransportnticfn p5semcnl •Auburi Park tint(-Ride -Lot A ul'L9LA 1t________ I I operation ;of the existing titontiwatcr and surface .water drainage system as shown in ihe'Plans or hereafter modified; 4(b) A iminaiietil, icon-exclusive coiisti-bution easement twenty'(20) 1'ect wide, centered on the aligliilient of the +existing drainage system improvements, as shown iri the Plans, togetlier witli a right of access in, on acid through Lot A for in&ss and egress to and from the Lot ATor j ersoiitief;vehicles and,ccjitijinient,tis reasonably iicccssary or +incidental to 'Grantee's installation, emisnilction, liiailitenancc, repair and replacement of drainage systein, ihibroycindnis. :(c) Subject to the..fiirthcr 'tcniis, and conditions of this Phs6nicnl, 'Ghiineii shall haveahe right to use ,lhis efiscipcnt lift' ill pullimus necessary or hicidental to the drainage of stoimwater acid "surface water from the Benclitted 'Prolierty, iieluding but not liinitcd to, Grantee's iise, operaiitin, rnaintenanc_e, inspection, repair,_ rq,pIacefneiit, �iecoli'struction, and t6ifioval of all or aiiy Araihagc- i related Easement Tmpr6vemenls.as Gninlee inity now o"r dereafter cieaiwtipptopriatc, including the addition, removal or replaceinetit cif same at Grantee's cicction,,either in,whole of in part with either like :br different'size improveiiients or facilities. and the installation of additiotial-iinprov61ncnts, utilities find other facilities find equilinicnt Within the construction easement afea. 5 Collectively the easenicnl inyirpveinents dcscribed .in 'Ibis Scction l.fl ate referred to hcrcin,as the"Lascment Ilirpmvemcnts." C. Benefit ohl?asement.Tliis Easenchi ismppurtefiant to and for.ihc benefit cif the Benclitted. Property and till other land, real prbperty..or;property interests nrov oidtied of hereafle-aciluircd•by Grantee aittl .that constittitcs a. portioh of or is j 'served by the Easement Iniprovemeins,or Giantce s,pii,bH transportation and tiiass transit system as7tow eonfigured or hereafter modified. i D 'Owti6-ship of laseineut Lnfwo3etiients. The. Parties agree that the Easement Improvements on Lot Aare owned by and belong to Grantor, including without limitation the Lightin-g Lnpro"veiiienis. The Parties agree that airy' anti till other Eas'inonE In provemc ris.or.fulure;iniprovemenls or,bettermcnts to the _Easement mlinncinews oii Lot A, including.bul riot lunit6d.to paving, curbs and gtitters, Iciices, barriers, landscdpuig, shcllei:s, ,cahinou, .pipes or conduits, related strticlincs, materials, facilities, mecliariic?I and cicctricfil syslctiis, utilities, equipinent, furnishings m improvefients br'hcltdrnicnts of,any 1666, that are notv,or hereafter acquifccl, constructed or iiistallecl within the Easeirienl ,'Area for' public transportation or mass transit purposos %hall upon substantial,coiiiplction become, and shall,thereafter at till times reintiiii,.the,property of.Q antoi• Fok purposes pf this Easement Iie.term"substalitial cofnpletion".mcaps: .5 mrzin? I i I 'Public Tiuntpoitntimi Pm,semenl Atiburn Park-:ind-1<idc Lot -A of BEAIl i Giantce has full and unrestricted use and bcncfit 'of the silhjccl, work for the pulpose uiteixied, 2. All the systems and'parts of thc.srihject n%ork are functiolial; I 3. Utilities are conncbted.and operate nonhally; .4 Only minor incidental work 'or dorr&iion or repair remains to complete the sub'ect.wmic; and 5 To the extent applicable, all -occupancy, Purniits, inspection permits, and tcmporary'construclimt casement releases have.beeli provided. Il. Duh'to Maintain Lasement Improvements On Lot A. L- Grantor covenants to mailitain-repair and replaccrthc Easement Impiovgrnegts in their.cxisling locations so,as to provide at laist'the'levcl, exient'jilni quality, offunction specified in the plans. (a) Grantor further covenants that within the Easement Aiea .vfs defined in j -Exhibit 13-2 attached hereto, Gi'aotitt shall OrC-krve lighting equal .lq or better that that which exists on the Easement Area as of the Closing Date,as dermed,in the P4chase aiid Sale Agrccincht("Closirig.Date"). (li) Grantor covenants to 'crect, at,its sole expense, a security chain=link fence on the boundtiry'between Lot A and Grantee's P&li Lot within thirty (30) days of the date of closing. Provided,.that Grantor's security fence shall not i»tci'ferc ivitlt Gr'antee's right or ingress tiiid egress unklei this,Easelircht. (c) Grantor covenatts to -disconnect from Grantee's electrical -xivice, according lo law and at Grantor'!s sole expense, power to all the light poles that rue located noith.of the south'boundaiy,line of Lot A (not including thgse that are'166ated on,the south f 'boundary'linc) within nineiy (90) days o the Closing Datc. (d) Glaiit61,edvehants to,disconnect 11rom the irrigation "ystemaliat scr'vcs the P&R Lot the portion'ol'.1be iri'igation'systein that Selves.that landscaping localod oolitplete_ly gitliin Lot A. Grantor shall•cmiyilete this work,withiii .niticty(9O) days of the Closing Pate. Grahtoi-,('urlhcr covpliaits to tiiainiain an operalionil irrigation system 't_ci scive the landscaping that .is located xoiiipletcly within Loi At i(c) Grantor shall undertake an<I fulfitI the duties .iinposH-ut lcr.tliis .Seciion I.E 1 at Gi-afit'oi's sole cost andxxppiise; and such post and czhrcnse shall ,never lloc6ne 'a lien oil or against the Benefitled Property iii' othelivise I become Grantees tiability.gro.blig?tion. ,�rz,nz i 6 i I i Public 9lanspcirl:tlinn Fwwment Aubum f_iiik and-Ride Qait A of BLAB 2. 'Grantor covenants that except as set forth 'in Section .I_E.1; the existing ltaseiricnt InprdGcriients shall iiot,be changed, rhodifcii, or Pclocated except .with Graniee's prior written approval, which.approval may be withheld, in Grantee's sole and absolute discretion. Grantor fuith.er coventinls thud so long as this 1 a_sement is in effect, the lighting Improvements shall 'never 'bc relocated; altered, modified, gr changed in aiiymannct that ivodld reduce the level,extent, or qualiiv of lighling below that which is specified in the Plans. 3 Ndtivitlistanding_Paragrtiphs 1 and 2 of this Section LF if the I-cdcral Aviation Administralinit (•'FAn")pr its successor requires Gitiint(ir to i haAge the existing i lighting Improvements then the Panics shall negotiate as to howGranfor.may accommodate such re(juiremenl while nicctnig the standard set forth in Section 1.E,I, and such_ negotiation shall.be,subject Qo dispute resolution under Section 111.B of this Agreement. -F Graitee's Discretioii3i-y Right to Maintain Li Ig Ititig`Iriiprovciireuts. d Grantor and Graiitee agree3liat the. Lighting impioyeii)entsary critical to the safe and efficient opetatiomof Granfeo .s public transportation system and mass transil aclivifies tipoii the PKR Lot and the Casement Alen, Grantor understands, acknowledges, and agrees'lhat the Lighting Irnprovemenis must be ina ill lained to iilect the standard set 161111 in Section 1.L at all limes, and that any 'nrcded rep�iirs.or repkiccmems shall be treated as a matter of pulilic safety and shrill be afforded the highest priority To that end, Grantor covenants that Grantee shall have the right,;but not the duly„to maintain; repair, or replace the lrghting)linprovements pursuant to tliis Section ILF I 2. If Grantce, in its,reasonable discretion, believes that Grantor has not Inc( its duty to maintain thc1ighting Improvements to the standard in Section I.E,.then Grantee may nolify:Granloi of the iveik needed anii the proposed maintenance, repair or replacement (collcciively the "Work ') in sufficient ,dcqul that stin Grantor could,ctafe the' cost•of the labor and niaierials needed to coirrpleie the Work '11'wilhin.sevenly-tvo hours Grantor has not either (a) iiiilialed the (voi-k'oi provided Cmarnce-a wntlen proposal ofequivalent maintcnance"lepaii of replacement, which Gr:nrtec may at its sole discretion api3mve or deny,or(b) ,conipIctcd the %v6rk, or approved equivalcin„then'Grantee rimy undertake such maintenance, repaii,dr replacement, PROVIDED,that'Grantee sliall iiiake a. good faith effort oto.,provide Grantor with .twenty-tour- '(2a) .hours .advance written no lice 'of intent to perform the Work. Such notices may be by Telephone, fax; email kith,confinination of delivery, ostmy li oans specified in 'Section IILB ofrthis Easement'. 3 'Il-Grarace per Forms the Work, it shall invoice Grainot for all fces,.cosls,-and expenses associate([ with -the 1Vork, iiieluding but not Iinoiicd to the cost of i I 7 rzinz I Public Timisimilation Eaticmcul Aubwn Nrk-and-Kids Lot A ol'nLA 11 Grantee's staff tiliic'to lirepare Grantee's Notice and to develop and implement any procurement, plans, pemiitting, or projeel documentation necessary for the \)toile (collectively, the "Work.Cdisls"). Grantor shall pav the Work Costs to Grantee within forty-five (4)) days of receipt.or Grantee's invoice. Grantee shall add a late fee of five percent (5%4) to any Work Costs invoice not timely paid. df any Work Costs invoice remains outstanding ninety (90) days after receipt, Granlce may send it to collections. G. Grantee's Discretionary 12iLlit to Maintain Other Easement Improvements. 1 Subject to the notice .requirements set forth in this Section I G, Grantor covenants that Grantee shrill havo the right, but not the obligation, to maintain, repair, or replace Lill Casement Improvements on or in the Basement Arca. This Section I.G does not apply to the Lighting Improvements, which are nddrcssed in Section I.F 2. If Grantee believes that the Isasemgnit Improvements require substantial repair niamicnance, or replacement, then Grantee shall notify Grantor in writing consistent tvitlt Section IILL of this Easement ("Grantee's Notice".). Grantee's Notice shall specify the work needed in sufficient detail for Grantor to tdcleiininc .Nvhclhcr the proposed work is acccptlible. Grantee negd not provide .advance written notice of minor or ordinary repair or maintenance work, and may perform such work in Grantee s sole discretion. 3. Grantor shall respond) to Grantee's Notice within thirty,(30) days. Grantee's respodse shall stale whethcr'.Ihe proposed work and schedule is acceptable to Grantor If the work or schedule is not acceptable to Grantor thch the Parties shall engangc in dispute resolution under Section IILB rof this Basement. 11. Emergency 11'ork. In addition to Grantee's discretionary right to nminlain, repair, ,pr replace the Easement Improvements under Sections 1.P and LG of this Casement, Grantee shall also have the discretionary right, but not the duty, to perform emergency maintenance, repair, or replacement of the Easement Improvements. Grantee shall tiinke a.good faith effort to provide Grantor with twenty-four (24) hours advance written notice of such emergency work Such notice may be by fax, 'criiail with confirmation of delivery, or any means specified in Section 111.13 of this Easenicnil. ''ro the extent feasible under the circumstances, Grantee's notice under ,this Section Lfi shall describe the emergency and the proposed ma ill let repair 'or replacement in detail. Gr.mte_c s cmcrgcncy repairs to Easement ,improvements din the Easemchl Area shall not be subject, to dispute resolntion under SCCiiOn 111.13. L Grantee's Iliscretimtary Right to Propose Upgn_ades to Easement Improvements. 8 loam? Public Transportation Ritsemeni Auburn 1'arkadi d=Ride Lot A of RLAN F :In addition to Grantee's rights under paragraphs E, 17, 'G, :and fl of this Section I Grantee shall have the right; bui not the obligation or duty to propose betterments or upgrades to the Easement Improvements-on the Easement Area,Wld to construct and install such betterments ormpgrades at its own expense, PRGVIDED, that Grantee shall not undertake any such betterment or tipgrade of the Easement Improvements without first submitting Grantee's proposal to 'Grantor for review and approval, and Grantor shall not unreasonably withhold,condition,Or delay its approval. .2. If Grantor approves Grantee's proposed betteniient or upgrade then Grantee may consbtict or install it, and the betlerinenl or upgrade shall become Grantor's prolierty.upon substantial completion as defined in Section LD of this Eascliienl, and thereaflet the Parties' respective rights, duties and obligations as to such betterment or upgrade shall be governed by this Lasement. If Grantor does not upprove Grantee's proposed betterment or upgrade tbor the .Parties shall 'Undertake dispute rosglution puesliaint to Section HLB ofthis Basement. 3. Glamor's review and approval of Grantee's plans and specifications under this Section I.G shall be strictly limited to the facilities ana/or excavation shown on the•plans and specifications submitted to Grafitor and shall in no event constitute or be construed as a certification of the adequacy or sufficiency of Grantee's plans and specifications nor whether Grantee's construction, work or activity complies with other applicable laws, building codes and other governmental rules and regulations. I Granter's Restnrnlion of Easement kre'u. Whcncycr Grantce undelakcs any maintenance, repair, replacement, betterment, or upgradc of any Easement Imlirovenlents pursuant to Sections I.P through 1.1 of this Basement, them LlOon completion of such work Grantee shall remove any debris and restore the surface of any disturbed portion of the Lasement Area to it condition reasonably approximating that which existed at the commencement of such wok. K. Grantee's Abandonment of Easement, 1 Grantee may at any lime, in its sole. and absolute discretion, pennancntly abandon this Easement or any portion thereof,•but only by recording an express written notice of' such abandonment. Mere nonuse or disuse of the Easement Area, the Eascmcnt Itnprovcnncrils, or the rights granted iii this Easement shall not constitute or be deenncddo amslitulc legal abandonment. 2. In addition to recording a notice of abandonment, Grantee only, at its sole and absoluite discretion„execute aid record a fill or partial reconveyancc or release of this Easement, whereupon this Easement or the relevant portion thereof, and all related rights, duties and obligations of the Parties thereunder, in whole or in 9 iore+na i Publ i e'rnmsportat ion'I:aticnicn l Auburn Nark and-Ridc Cot A ,nr LA W pail, shall nllomalically,tcriiiinatc.,Such rcconJcyaincc sli;ilt bc'in ilic'6-m of ai gi,i1cl5im,dccd unilaterally cxemacdlby Grantee. 3: Grantee,'s.actions under this Section i.K me not subject to disiiule. resolution under Section Iit.C3 i L. Grantcc im.Coinply.with Applicable TAA Stifety Requiremerits. .Grantee ccfvcnants iliat in exercising its rights and ,privileges -as to the ,Lascrii6nt lipprovdfllcnts 'on the Eascnlcht Arca,'(u,aiitcc'shall comply with aipj?licaiblc FAA lsafety rc direriienls,, in6itding but not limited to vertical 'height resd•ictions, ho--rizoutal setbacks-or clearahce requnciire'nts, aiidl ii_andatory fcircing, stgnago; nraiking, or lightingliniitatibns or requireiiranls, inchnlinA, tq the e.ctent applicable, Ihat,cerlain clear zone (aJiCation) casement rccgrdcd at King'Couirtv,!Rccording N6..6696709 II R.ES•1'RIC1IVE' COVENANTS A. Grunt of Restrictive Covenant. Grantor hereby grains and.conveys, conlirnts; and re-affirms to Grantee, tile following perocival restrictive covcniints.in the Lot A. I Grantor covenants that it'shall-use WA foi.no purpose that will impede, interfere with, obstruct orendanger Grant6c s easement rights under.Article I of this Easement. I Grantor .covenants, thitt Lot A 'shall not be subdivided, developed, demolished, rcdcveloped, r.ec'oli-Iiguied, modified, used, cicaircd or graded, or•othewise altered, or improved in any rii fit ner:that would interfere with Grantee s cascnrcin rights under Atticic I -of ithis 8asemcnt, tit be inconsistent Cvith Ihe.purposc and iirtenL of this Easepont. '3. Grantor covenants that:Grantbe's'buses fuld.6thei public uansportitignroi' fiats .Uansil ,vehicles shall riol.be 'required to stop at, rind shall.have Brea pdssagc through, over; under, ,around„ and across any 'fencing, gate, .guardhouse, checkpoint, chictine, or any,othcr security feature that may be erected Eon, about; or in connection with Lot •A. PROVIDED, that this Section ILA.3 shrill not appil •Inxalse.oGa specific,:docomented, credible 11 lhreait•to airy facility pr enterprise that nray'constiu.ctcd,Or operaled,on Lot, A, or if tlic tGovern6r of the State of Washington declares .a stale cif emergency or martial Iaw or as nray be required-try FedeHl law•pertaining j to national security ,I 6rinlot shall not convey I'cc'title to,.dr any Icsser interest pr,privilcgc tit; Lol.A or any portion of.it; cuepl iry.itisU'iimenL expressly referencing this Easemedt by its title (`;Public 7Yansportati6 n Easement and 'Restrictive Covenant") and rceording ritimbcr a 0 nvv i I I "NUhlic�'rnnsprir7atirinlriscrimnl Auburn P:uk 110(1-hide Lnt A ul'HLA tl' • i S. :Grantor shall'lfold harmless, indctiinify, and-defend'Grantee Uoin any and all cost, 'linbility, glaiins, jh8gt5ieiits, administrative actions, litigation, or other obligations arisilig out ofoi• relating-to the dischargc,of po'llittaiils.or Hazardous Substances (as defined in'Scction:3 1:9 of(he'Purchase anti'Sale Agreement) iii ariy stonnivater,rsu fitce water, runoff; or any other form of discharge or release from Lot A' into tiny ofthe,storniivatcr facilities that j serve the P&R.Lot. •(. k3cginning cigliti;en (18) nwiiths iiftcr the Closing Dale, and each c;ileiidnr ycar'thercatter fix so long as'Granlor owns Lot A.•upoti'Granlee s written dediand Giaiilor,sNill Pay hd Grantee it share of Grantees anniizilized cost-to li\aintain those certain stormwater facilities that serve both the P&R Lot and ,a portion of Lot,A (the"Mint Use Facilities"), Grantor's share of Grantee's aimilalized .cost shall Abe dcterinincil 'by anulliplying Grantee's annualized cost to maintain the Joint Use Tai ilities by it fraction, the numerator of which is the squaee footage{of the Lot A ;area served by !!)c Joint Use i futilities, and the dehofninator of which is that saine Lot A aiea lihis the syuarc footage ofthc 4l2'Lo1 area served,by the Joint Use,liacililies. 7 If the Lot•A arcs served by the. loins Use Facilities, which area is shown in 1r aliibit 1), is ei•er iadeveloped;or•iinli!Z3ed .for ariy puiposc,other thin a vehicle parki»g lot, then 'hefore commencing construction or such iecle4lopntcnt or iniproJement'Grantor.or Grantor srsucccs'sor, assigti,•ur designee shall discomiect Lot A's stm'uiwatei or surface water system fidill the, Joint Use .Facilities. The Panics agree that, Exhibit :ll shall riot.be iccorded but sha)l rennin on rile-with the Partics: R. if.Graniec ever redevelops the P&R Lot, then the City or Auburn shall,lintit its drainage,revieiv and approval (if any) to.11iose sinface water or stopri water imPitcts,arising out,of or relatedto drainage from the P&R.Lol, and without reference to or consideration of any surface walcr.or stornlwtiler discharge from Lot A. i ! B, Ruin avith_tlic_Land. Gi-anttir a€;rocs that the benefit of these restrictive covcliants runs with tlic=land and read pIoperty interests Ihat make tip the Bencfitted Pro pct'ty and .vtith Gftintee's estate 'in the 'B nt; tted P.toperty grantor agrees that the :bin'den of llieseaestrietive covenants nuns with the land that makes up Lot A and with _Grantor's.estate,iii Lot A. The Parties agree that these roslrictive covenants shall bebinding`upon and inure to their respective successors and assigns. G. Toiich and Oiiiccrn. The Parties agiee that the bendfits of lhcse,respittive cbvenaois snitch and c�ncern'Giantce's:fee title in Lot'B and Granter's easement in Lot A, in that thuy,pelpctuate the,existing public transportation and tit a§s'.tansit rcgit is on Ilse'BcncfiticdTfoperty and ensure Grantee's ability to continuc'ti use_ j i 4'1 ogmz J 1 I i I'ubl is Ti nnnporlatinn hacmcnl Auhurn Park:md-'Ride Lot'!A of 13 LAH i the 13enefitted Property for public transportation rind mass transit purposes. The •Parties agree that the'burdens-of' those restrictive covenants ,touch and.concern Grunlo?'s fee title in Lot Agin that they limit the uses to which'Lot A nlay�be pit and Ilse acts.lhat may be,iIone there. D, Disliute iiesolution. Any disputes between the Parties regarding these restictive •citveliaints'shall be stibleet to the dispute resolutio,il process S6 forth in Section -III B. E. Egaiithhle Rclicl'. The I.arlios agree ilia( if dispute resolution is not,successful in resolving a dispute regarding These restrictive covenants,•Ilien eitherTarly:may seek any remedy,at law or equity, including but not limited to temporary restraining orders or other forms of injunctive relief, 1 IF Tei•mimition of Coienahts 11.A:5-8_Upon Further Property-Ti.,insaetion. the covenants in paragraphs numbered 5;6,.7,•and'8.of-thi§'Section ILA shall lerminate aiid lhareafter shell lie of no ftothei' force bi affect beginning.ujion such disc as the King.Coomy Recorder's Uflice may recol;d a deed,fro m'King.Cot nly w the Citv'ol' .Aliflurn com%eying the real properly on which is located dlie stohmi,ter retention/delention.pond setting-the P&,R Lot and Lot A. '111. '(;ENERAL TERW AND 6-ON'DITIONS I I A. Grantor's'Use.of Property I Suliiect to Artidles'I and II of this Easement, Grantgr-rescrvcs the right to uie,Liri A andlor to grant otlicr easameriL'liceose.or ose rights lo'Lot A fur an'v•jngpcise not incolisisleiil dvith the nights herein granted to Grantee so i lor`nt as such use or use n lght5 do not iliterferc .with, obshvcl,or,cudangcr either or.both of[lie following: e. Grantee's use of thed3ene5ited Plopcily for.poblic h'alisporlation alid mass IranSibaccess, ingress,and egress purposes; or b. 'rho maintenance, repair relilacement; inlprgy6niclit; or lbettenlicril of any Lasbillent Lnprovenicnls iiocv yr hercatler constructed, installed, used; operated or,mabitained in tfie _Easement Po'ea pursuant to this L•aseitient. 2. t_'rior tr linty activity 6y GrairtoF in the Eeisi rieiit Aron-drat eztmtds,to•wifhin len IO]i feet or-any of Easement lntprovements coninined therein or which, changes the coini>ressi6n (gads im or to thc'I ilcial supliixt fm tiny naicli Lascmclil Imj)-ovcmcnls, (iranlfar shall notify Uraulcc in writing and shall ,provide Grantee with a caipv of all plans arid* specifications for such proposed activity fir review at lust fbrly-five I(45) days ,prior .to the con5n cnt:eutcnVul's fch.acli\ily 'Grantor sliall not cofiiincncc.such activity i I 12 612 T11 Plante'rlansPOnotloa Famincin Auburn Park-and-RW Lot"A .of B LA 8 1. it iiless and pistil it has. rcceivgil Grail fee s..prior-written consent that the '(it.ant Of's.liropo3cd.consnuctioii,•%v6 k 6r-a6dVil' kvill not•i6terfere vvi(h the Giailwe s rights under this Laseiticnt, iJhich Grantee hercpy conliriits,will, nol be unreasonably williheld. I 3. (irantee,s:review and,appioval d-eirSnfor s plans and specifications shall be strictly litinU to the facilities find/or excavation shown oil the plans and specilictitions subtiiit(ed to.Grantee and shrill in no event constitute or.bc egnstrticd' as a certificatign of the adequacy Or.SLAIIciency 6f'Grantot s plans and specillcalions nbr -wlfether .GrdruA`s co»slnlction, wot,k or activity cotnlilies with Other applicable laws, Wilding.codes and oth.6 govcrtnncntal rules acid rcgtilatioirs. B il)ispute Resolution. 'Except as otherwise specified in this Easement, and subject Iq.Paragraph G of this Sectiod'111-.13, all disputes a icing finder of related to this rasemciut shall be subject'16 lire lollowiug dispute resolution process: I Grultonand,Grimtcc shrill each cyilhin Acti (10) business days, designate a. senior bf cer or director to meet to -attempt to resolve the dispiile j ('Management Escalation"). The designated individuals shall iii.&I within twenty'(20)'business days.after their designation. Any dispute resolved through tho •Maiiageffl8ht Escalation .process shall be d6c6piented by appropriate written docunicntation'exectrted by till.participating rtics. ?. if Managentefit Escalation fails to resolve tlte-d-isputc,,then inediatinn may be requested by eiihcr Party and shall bq art 0llitcd;pri6i-•IWillY liiigalioti arising 6ider .or related to ,this 'fasement. Within ten (16)_•days. or a nrediatiom,requesi, :each Party shall deslgtiale, 'in lvriting, 'not ,tiiorc,than tluce (3) candidates tIwact as a Lion-binding mediator 'Candidates -shrill b.c proposed fioni Judicial Ai6ilration -anti M-edithion Set ,iccs (JAMS) or Judicial Dispute Resoluliai (Jl)R) or their sticcesstirs, or shgill be a neutral; independent and recognized-expert iwthe field in which the dispute arises. if the.Parties cannot agree on one of the niedialors from the combined list within five (5)clays of.exchanging lists,dhen the Parries shall promptly.mcct and select tt mediator by blind thaw .fiom a pool .eonsistiug of all six candidates selected by the Parties. 3 Upon selection of the mediator, thc'Ptiriies.shall within ihirty.(30) days, or j as soon thereafter as practicable, inset and ciigage in.a inedialion of the j dispute with the assistance of the mctliator Each'Party shall be responsible for its'ownv costs and expenses, including attorneys' fees, incurred pursuant to this section. ,Costs .of the mcdiaior.imd other,coAfnion costs shalL'be divided equally between the TaPties. 'The ineciintpi• shall determine ;reasonable procedures. i I 13 104111] I Nblm'llvisporlation Easement Auburn Psik :ind-R:ilc 1.61 A -,)ltBLA 8 I i 4. The Parties agree that'if 1116Y arc unable to resolve their dispute ffi ougli Management Escalation or inecliation, tnid for all matters not.subfeet .to disptitc resoliition, King Counly,Superior Court,shall have'the authority to decide ,the•clispulc. 'Juriskliction.sluill lie with.the King County Supericir i Court and 'venue shall:be King County Superiur Court in Kern Washingibn, unless the King 'County`SuperiorlCourt local rules woold,'place�voridg in Seattle,Wasfiington, in which case venue shall be in Seattle,'Washingt6ii. S. The dispute restilinidn'proceduTes shall .lot rptcjuctice Ihc'Panics, legal or equitable rights. At the request ofeilher party, the Parties shall enter iitto,In agrcchtent.lo toll the Slatuie of limiiations with respecl lo the subject Aia lter of a'ihsputc while [tic-Part ies pursue the dispute MSbilltion ill ros ess set Cot ill in this Sectioil 111.13 'I'oskion-S expressed, responses given, and irifoniiatiori submitted in any dispute resolution process und& this Seulioii 111,F3 'shall not be admissible las cJWCJlcc in .any subsequent -disliutc- resolution„ litigation, or other legal proceeding: j 6: If a Party reasonably detennities that circumstances require immediate action to prcvcht or mitigate significant damage to or loss of lhe.B6ncfitted Property, the Basement Arca;or the Easement Imprgj,ements, ol"Ihit delay in ulitititidg or proscct ing a claim in'litigation would irrevbcafily prejudice that Pariy then after givim; the other Party potice ofthe dispute the affected Pally linty inuriedialely •iiuiStie any remedy available at' law or in equity Without Ibllnwiug the disliute,resoltition p{ncedures-in this Section-111.13 C, insurance. i i The Parties shall each maintain' commercially reasonable irisiiranc-Z to protect their respeetiJe interests. 'This il&rance requirciriont niay'be,met through a program of self-insurance or pakicipalioh its a risk-sliariiig pobl. Each 41arty Shall provide written .liioof of cominercially reasonable insurance upon demand of the otlicr P.arfy 2 The Patties shall.rcquire.lhcir ciaivaciors mid 'subecnnrac:,tors or all tiers io name coclt of the Parkes as additional insured pll any insurance policy that' may apply to any cyork perfoitnud on the Lascmcnt Arca. The Panics may each recIpest cerlilicales of insurance or copies of insurance politics (iom anyc"ontrnctors.ond subcontractors of all tiers that lierform work on ,the :Fasemenl Area. I i 14 mnAU i fubltc"I'nmspcirlati<in F.uscmcnl Aubuin Pwk und'Iti lc Lot A ol'ULA R i 3 The insurance-related obligations ,cpnlaincil in this. Section 111;C shall surviJe dlic czj iration, abaYidoniiictit or termination of.this Easonienl and life cascment- ighis and restrictive covenants granted hereunder D, Indenrnificaiion. I Grantor and Grantee each agrees'for itself, its successors, and assigns to protect', defend, itidcnmify and Mild harmless -tile othcl, .and' the other's apj,ointe(l.and elected officials and employees From and againsrliabilit), Rif all claims, demands, siiils, and judgnienls, including costs of defense thereof, for injury to poisons, death -or prolicrty, clam_Ige (collectively, "Claiiiis") maised liy or arising out of,thc Gi5litor's 9r Grantee's own nets or omissions, respectively, and those of Iheir-respeclivie agents, employees or coidi$etors within or about the Easernent Areit'or that is otherwise cymsect 'by, or arises out of their exercise gf.the rights and .liricileges reslicctively i ,granted by-or iese rived udder this Easement, including without limitation 'liability from the products contained in,'fns rxferred through, released cif escalied 'froin .their respcctive .iuijllNivemcrus .or otherwise .introduced by Grantor or Grantee, iespectivcly, or their respective agents, employees or ccinlraciors within or about the 13asembid Arta. The Parties' obligations .tinder this Section II143,shill include: i a. Indemnification for such Claims whetherror not they'arisc foul the Pa_rtie t;\vii acts or;omissions, the concurrent negfigencc cif b6th PaTtics pr a.third pirty,.Ovthe acts.or omissions of the Partics' ciwn cbntiactprs,, subcontractors, or dhe acts of, omissions of one or more'thii-d ,parties under the direction or control of Grantor or Graotce,rospeciivaly; t b. "I'he duty to promptly accept tender iif detcnse and priMclegiefense to the.indeninifiel Party at'the indeiritifying Party's own exjtcnse, C. htdciimification of'C°I iii ills made by the pnrtic-s own employees or agents, d; \vaivbr.of inunmiity uiidci, the industrial insurance Of of Title 5 L RCW brit only to tile extent necessary .fcn.Grantoi and Grantee to indemnify each other against Clafi is 4ubject to Title 51 RCW which waiver has been'nnnually negotiated by 1he,Parlies,.and e. fn&imificalion'for Claims that are submitted by the indeiunified Patty's i contractor or subcontractors.and .arise from'the indemnifying-Patty's iniprovcnielits within 5r ubout,the Easement Area. 2. Paragraph of This Section 111,f) Grantcc-shall .have-n6 15 ,Pala r i I Public Trunslioruifl(;n Lasemcnl Aubwo Park-and-1_6dc Lol"A"of BLA'# i obligation udder this Section-111:D to indemnify and hbld-harpd6ss Grantor for Upirns arising from the sole +Iegligence or willfid' niiscoitdiict of Grantor, its appointed mill elected o_ificials and employees, and Grantor shall have no Sbiigatibn tindei this Sectioh 'Ill.D to i 6nrnify.a6d hold harmless Grantee forClain,s arising from the sole negligence or willful misconduct of:Gron(ec, its appointed and ulecled officials and'en,ployees, 3 Grantor and Grantec,.agrce that if a court of competent jiuisdiction dcicrinincs .ihal RCW 424.115 applies, to this Easement, or to any,Claim arising hereunder, Ihen Qralll61 gild Grantee shall each defchd, hold harness and, indemnify the, other to the milximurn estelit permitted thereunder,arid'specifically'foi'thcir.ownmegligence c6ricurieil with that of ,the other Party, to the-full cktenl of Grantor's of Grantee's.owli negligence. j 4, 'Grantor .arid Gralitco shall .give each other timely written notice of the uiliking of any Claim of-0-f the conihicticer,ent or Tiny such action,-suiL or ,other proceeding covered by the indemnity in (his Section th.b. Ifany such Clain 31ises,.lh6ri the'iiiden„iificd Party shall tender the defensedheinof.to- the inilejubifying Party fmd-lhe,indemnif'ying:llaity shall have the duty tci ilefelid; 'set(le, of •comproi.uisc ,wry Claims .arising her&wder and the -indemnified Party shall epoper ate 'fully therein. The indenu,itied Parly's failure to timely notify the,inctemi,ifying.Party of such a Claim br action, however, shall not constitute ;a defense to the indemnity set Out in this Seclibil Ili-D, ekcept to.the,ex tent-of actual prejudice to the indenurifyiirg Party 5 Tile 'i6ilemriification, ,piotection, defense and save 'harmless ,obligalitms contained in this,Scetion 11LD shall stnwive,the ekpimtion, libhuclonment or termination of this Easement and the casement .rights and restrictive covcnai,ts gl'antcd hcieiu,der I L. Nntfces. I�xcept for'Granlce's.noticc of work uniltr Sections 0: and 1.11 any notices required heroin shall'be in writing and shall he deemed,to.11 licen duly 1. giver, and received on the-date of per:sorial service,.or one day alter deposit wild a reputable national 'overnight delivccy service; or4wo days after.deposll with the IUAj:ted States Postal ;Service, sent by registered .m' certified mail, rcttu`n receipt requested, postage-prepaid. Notice may also,be providce l by cmail.or other means of cicetronic transmittal, provided that rcceipt•of.the email or transmittal coi,tent .call be confirmed'by the sender with time of re ccipt.ticiug.thc unifmiin'timc the c- ps iu i ther'Ira isnuttal enters the ill foi Illation processing system that the recipleut has designated or uses for the purpose iof rccciving ciiudl 'or other form of 'trai,smiltal. :In all,cases notice•stiall be sent .lq'the addresses ',listed below or as dlcreafter updated by'theParties bV a;ritlen notice iis,set.foith in this Section 1111 I u?vrz SIG I l I Public Tninhjn6taliun h:n.,cnient .Arum Park-mid-Ride ' Lot"A 9f•BLA N TO CItANTOR: T(? GRANTf?1? Office of the Mayor Manager's Office Ciq+,of.Aubuni Ilansit Divjsipn 2S \Vest Main.Strcel King Comity Dcpartmu:nt ol'Transportation Aubrii�r,'\A'A 9"I)ll l 201 S king Strcel Seattle WA 98104 WITH A COPY TO" WITH A CORY TO: Anbnrn City Attorney's Office King County Prosecutor's 011ice City ofAuburi Kiirg.Count yCou (house,'W400 25 \Vest Main Street 516 Thiid /VVennC nr A wm(ii Seattle, WA 98104-2388 Alln: Chief Civil Deputy 1 Rcpiescinlulions. Grai)Im represents (hit it is the lawful owner of,Lot A and has the Icgal authority to grant and.epirvcy this Easement to Grantee: G. 'Successors and Assigns;ixgal Relations. 1 Grantee,limy assign its rights wider .this Lascmew, iri whole or in part, avithot t approval'pr conseinhof Grantor Grantor 'shall hol convey or arssign any iight,'title, inicfesi, or license in Loi A useelil by instrument shecificail1y refercricing this EasemePil by its title and iccgrtling number as required undct'Section'II.A%4 ?. Nothing.111 this Easement shall make, or be'dconied to inake, Grantor and Grantee a partner of one muxher This Easement shall not be construed as creating a partnership w'joint venture. This`$a'sement shall create no right, i privilege, duty, ohliga(ioin, qr cause of acti0h in any person or eutityanot a pally to.jt. 3 Nothing contained in this Easement shall dirbinish or`bc construed to diminish the ggverimiental ory6licle powers of Grantor or.Giahtce. 'H. Force iA111t, ijra 1' "Force Mtijeme_ tvent" meads any act or event that prevents a,purty f-bin peil'Cwming its ohhgatiofis-Aiider this Agreement, it' such'arct or ev6r( is l 'beyond the reasonable control, and not the result ofahe fault or negligence, ,of the alTccted Panty and such NMV is tiriable to overcome such.acl m event f 17 rmzlm i Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# with die exercise of due diligence (including the expenditure of reasonable sums). Subject to the foregoing definition, Force Majeure Event may include natural phenomena, such as storms, hurricanes, floods, lighting or earthquakes; explosions or fires,arising from causes unrelated to the acts or omissions of the Party seeking to be excused from performance;acts of wa'r, civil unrest,public disorder, sabotage, epidemic, rebellion,riot, or terrorism or war. Force Majeu-rc Events shall not include equipment failures or acts or omissions of agents, suppliers, contractors or subcontractors of any tier, except to the extent that such acts,or omissions arise from a Force Majeure Event as defined in this'Paragraph 111.1-1.1 2. Except as provided in Paragraph III.H.1 or otherwise specifically provided in this Easement neither Party shall be considered in breach -of this Easement or liable for any delay or failure to comply with this Easement, if and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure Event. Provided,that the Party claiming relief based on A Force Majerire Event shall: a. Promptly notify the other Party in writing of.the existence and name of the Force Majeure Event; b. Exercise all reasonable efforts to minimize delay caused by such Force Majeure Event; c. Notify the other Party in writing of the cessation of such Force Majeure Event; and -d Resume perfor n mace of its obligations under'this Easement as soon as practicable thereafter. 3. Obligations to pay for services already,provided shall not be excused by a Force'Majenre Event. I: Construction. All of the Recitals set forth above are incorporated into this Easement as though fully set forth herein. The'headings contained in this Easement are for convenience"of reference purposes only and shall not in any way affect the meaning•or interpretation'hereof, nor serve as evidence of the intention ofdhe parties hereto. Whenever the context hereof shall -so require the singular shall include the plural. J Entire Agreement. This Easement sets forth the entire Agre6ment of the Parties as to the subject matter hereof and supersedes all prior•discussions and understandings between them. This Easement may not be modified, except'by an instrument in writing signed by a duly authorized officer or representative of each party hereto. dC. Severability In case any one or more of the provisions contained in this Etnsement shall for any reason be held to.be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any oth'ci provision ,18 ionuiz to 'FL CJ E8: -tz 'a '.t. 7-- M > OD. tZ 7 b y b4 P t = - > '1) 0 cn tD i Public Transportation Easement '.Auburn Pm k-and-Ride Lot`W'of BLA# N. > ihibits. The following exhibits and record documents are incorporated by this reference as if fully set forth-herein: Exhibit A Legal'DescEption of Easement Area Exhibit R-,]' Legal Description of Lot A Exhibit�1372 Legal Desct'iption ofBeneCdled Property ,Exhibit C illustration oFBoutidaiy.Line Adjusnnent Exhibit D: Illustration of'Propeity Area.Seived by, Joint Use 'Facilities (not recorded;copies on P6 with the Parties) --t Plan_Set No.tl 11189;dated February,]0,,'1978,as modified by pages Eltil throu gh-E]03 of that ceiiaiti',C6ntract No. C65046C, dated October 4996, and as fiirther modified by;pages 0301 through C304 of that certain Contract No.•C75134C, dated Judy 1997 (File Nos. E80, E81,•ES2); (not attached or recorded; copies•on file with ,the ` 1'aiiies) EXEGUTFD AND EFFECTfVE as of the date last signed below FOR'GRANT ft FOR GRANTEE: i 1 Peter,Lewis,Mayor Steve Salyer,Manager City of Auburn Real Estate Services'Section Kung County'Dep't of 1xecutive Services i DATE. DATE. Approved as to Fonn: Approvcd as to Forma: B�2Ia�P6. By Deputy City Attorney Deputy Prosecuting Attorney i -NOTARY BLOCKS APPEAR ON FOLLOWING PAGE i 20 aauiz I i i TublicTransportaLion Easement ,Auburn Park-a_nd-Ride_ 'Lot,"A"of BLA#_ ,STATE OF-WASHINGTON ) )55. i COUNTY OP KING ) i On this day,personelly appeared before me _ - —_- to nie k_nbwir ,to 'be the _ Of 'KING COUNTY, •the _ that executed the wit6iii and foregoing instrument;aiid`aeknowled. d.the said instrument to be the free and voluntary act rued decd of KING�COUNTY, for the uses arid:pucpo`ses •therein mentioned,and on oath stated that he/she was abthorized to execute the said inch irtnebt. Dated: Notary Public j `Print Name :My ooinfnission expires � (Use this space for notaral stamp/seal) '1 ! STATE OF WASHINGTON ) )ss. COUNTY-Of kING ) I On this day personally appeared before in_e { to me knou%m.to be the _ _ of TOU, CITY Oi��AUttuRN, the that executed the within and foregoing his trumenl;.and acknowledged the said instrument'to be the free and voluntar y act and deed of THE CITY,oe AUBURN, for the uses and purposes therein tilentioned, and on oath stated that,he/slre ivas,auth_o_rizid to exccute'thc said iiislrument. Dated: Notary Pidilic Print Nam'c , My eommis`sion expires i -(Use this space Tor notarial stamp/seal) ' I 21 orzu,z i i g Public Transportation P..asement Auburn Palk-and-Ride Lot"A"of BLA# EXHIBIT A Legal Description of Easement Area THAT SOUTH PORTION OF PARCEL"A"OF BLA NO. ,THE TRUE POINT OF BEGINNING COMMENCING AT THE SOUTH-EASTERLY CORNER OF PARCEL"A",THENCE N 89° 42'06' W 299.66 FT,THENCE N 00039 20"E 170.04 FT,THENCE S 89 04Z 06"E APPROXIMATELY 299.60 FT,l HENCE S 00'30'04"W 170.04 FT TO THE TRUE POINT OF BEGINNING,CONTAINING APPROXIMATELY 50,954 SO FT i i ,t Public Transportation Casement Aubm n Park-and-Ride Lot A"of Ri.A# BXIIIBIT B-I Legal Description of Lot A I i i cerzaiz LEGAL 1?E-SCRIPT ION FARO A THAT PORTION OF THR SOUTH HALF Or JOSEPH BRANNAN DONATION LAND CLAIM NO.38,SITUATED IN THE W EST HALF 47F SECTION 7,TOWNSHIP 21 NORTH,RANGE 5 EAST,W-M.;AND THE EAST HALF OF SECTION 12rTOWNSHIP 21 NORTH,RANGE4 EAST,W M,IN THE CITYOF AUBURN,KING COUNTY, WASHINGTON,BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A 31NCH DIAMETER BRASS D(SK IN CONCRETE,IN CASE,MARKING THE CENTERLINE RIGHT-OF-WAY OF 15TH STREET N,E,WITH THE CENTERLINE R1GHT-OF-WAY OF`D'STREET N.E,AS SHOWN ON RECORD OF SURVEY,RECORDING NUMBER,771M.79008,OCORDS OF SAID C.gUNTY;FROM WHICH,A3 INCH 41AMETER BRASS DISK IN CONCRETE,IN CA5E,MARKING THE CENTERLINE RIGHT-OF WAY OF SAID 1ST 980 32 F ET HIENCE ALONG THE.CENTERLINE 4 SAIOF D''STREET N .NORTH 8T3O'P4"WEST., 00°41'08" EAST,360.98 FEEL"TO A 1-9{2 INCH DIAMETER BRASS SURFACE MONO MENT;THENCE CONTINUING ALONG SAID CENTERLINE NORTH 00°41'08" EAST,130.42 FEET TO THE 50UTH LINE OF AUBURN MUN(CIPALAIRPO(ITAS SHOWN ON SAID SURVEY;THENCE ALONG SQIEt SOUTH LINE NORTH gg*04'44"WESTt 691.73 FEETTO THE SOUTHWEST CORNER OF SAID AIRPORT PROPFRTYANRTNETRUE POINT OP BEGIII[NINCii THENCE ALONG THE SOUTHERLY ETENSI ON OF THE WE5T LINE OF SAID AIRPORT PROPERTY SOUTH CEALON 714T 43.93 FEET;THFNCE SOUTH 89°30'49"EAST40,36 FEET; THENCE5o L.THOD°30'04"WESfi,170.04FEET;THENCENORTH89°42'06"WESi,299,66FEET, fHE EAST MARGIN OK FA'STREET N.[,;7HENCE ALONG SAID MARGIN NORTH 00°39'20"EASTt 64,85 FEET TO TH E NORTHW EST CORNER OF THAT CERTA IN PARCEL OF LAND AS SHOWN ON SAID RECORD OF SURVEY,THENCEALONGTHE NORTH LINE OF SAID PARCEL SOUTH 89 030'04"EAST,258.89 FEET TO THE WEST LINE OF SAID AIRPORT PROPERTY;THENCEALONG SAID WEST LINE SOUTH 00°3948"WEST 299.84 FEET TO THE TRUE POINT OF BEGINNING, CONTAINING 3,81ACRES,MORE ORLESS - ,, �' SUB?EC7T0EASEMENTS,CONDITIONS,ANDT{ES(RICTIONS � ., �4....� 1ti?�Sgf<� •' '&4 Y �•'944,W •S.. ' St0 LANp III Public Transportation IIasement Auburn Park-and-Ride Lot"A"of BLA IF _ EXHIBIT B-2 Legal Description of Bene6tted Property I i I i osrzrvtn I LEGAL DESCRIPTION OF A PORTION OF KING e0.UNTY METRO [LARK AND RIDETO CITY OF AUBURN AIRPORT THAT PORTIONOFTHE SOUTH HALFOf-JOS>PFI BRANNAN DONATION LAND CLAIM NO.38,SITUATED IN THE WEST'HALF 6F SECTION 7,TOWNSHIP 71 NORTH,MNG505 EAST;OFTHE WILLA1NETf8. MERIDIAN,-CITY OF AUBURN,KING COUNTY,WASHINGTON,BEING MORE PARTICULARLY DESCRIBED AS 'FOLLOWS. CQMMENCING ATA 3 INCH DIAMETER BRASS DISK IN CONCRETEf IN CASE,MARKING THE CENTERLINE RIGHTCIF-WAYOP1G"STREETN.E.WITfITHE.CENTBRLINERio IT-OE-WAYOF'D'STREETN.E,AS 'SHOWN ON RECORD OF SURVEY,RECORDING NUM,8ER 7702.179008,RECORDS OF.SAID COUNTY,'.FROM WHICH A B INCH DIAMETER BRASS LASK'IN CONCRETt,IN CASE,MARKMG.THF CENTFRLINE RIGHT-OF- .WAY•OF SAID 15TH STREET N.E.WITH T HE CENTERLINE RIGHT-or-WAY OF'A'STREET N.E„BEAR9,NdRTH 89°30'04"WEST,980.32 FEET;THENCE ALONG THE CENTERLINE OF,5AIO'p'STREET.N.C.,NORTH O6°41'98"EAST,360,9,8 FEETTO A 14/2 INCH DIAMETER BRASS SURFACE MONUMENT;THENCE CONTINUING ALONG SAID CENTERLNE NORTH 00 041'08"EAST,130,42 FEET TOTHESOUTHLINE OF AUBURN MUNICIPAL AIRPORT A5 511OW N ON SAID SURVEY;TH€NCE ALONG SAI D SO UTH LINE,NORTH 83°04'44"WEST,325.23 FEETTO THE NORTHEAST CORNER OF PARC[L'C!AS SHOWN ON CITYUF AUBURN SHORT PLAT 15-77,RECORDINQ NUMBER 7709280757 RECORDS OF SAID COUNTY AND THE TRUE POINT OF BEGINNING,THENCE SOUTH 00°39'48,"WEST ALONG THE EAST.LINE OF SAID PARCEL C, 208.72 FEET,THENCE LEAVINGSAID EAST LINE NORTH 89 620'06"WEST,246,1A.FEET;THENCE NORTH 06°17'57')EAST,66.81 FEET;THENCE NORTH 89'30'49°WEST,119,96 FEET TO THE SOUTHERLY EXTENsibN bF"fHE WEST LINE OFSAID AIRPOATPROPERTY;THE NORTH 00 600'E`ASTALONG THE EXTENSION OF5'A10W t$TLINE,$9i93'FEETTQ THE CENTr o A5/8 INCH 11OLEINA6INCH 'SQUARE CONCRETE MONUMENT,SAID MONUMENT BEING'ACCEPTED A'S'FFIE SOUTHWEST CORN ER OF SAID A1RP•ORTPROPERTY; THENCEALONG THESOUTH LIKEOFSAID PR0PERTY50UTH 89 W44°EAST, '366,50 FEETTO THE TRUE POINT OF BEGINNING. 'SUBJFCT TO EASEMENTS,CONDITIONS AND RESTRICTIONS .COb TAINING68,790SQUARFFEETOR1.58 ACRES,MORE ORLESS ,.0�I -r14+ Ip } d5 C y � b ry C {IJ 0 C � O a r� 6O a a W � J 5 N D J U 4 C DC o a w w 0 0 h 'TRUE POINT Or BSGINNING' _ _zt i4 ,-_ SaV3D 49M 143.93 40:3B N00° 430A2 41,inla"IS � i, PARCELA > AREA=1 eS":SQ.Fr 3-81 AG. NS914206W299.66' t. mss ciTy of AUBJRN- 10MG COUNTY.JMTRO E3-LA. ol AN 207 PARG5LA SUAL.EINFEET I Public Transportation Casement Auburn Park-and-Ride Lot W of BLA N I;XIIIBIT ID Illustration of Property Area Send by Joint Use Facilities i I I I e� Y rY'r s 7 � '1� � AA` ♦ '* C1v F{ �� �.'F�''k .. .°> �z•` ���:� v. y - .q d `J . ,° ,!ry ll��qqx,,!f� s S�° 4t of.. •�J'Lt P Ah, ! r• J a YR 5 � 6 P tf' J• ��tub a P-areal i� ,� ',. 1>' rC W P r �itl £ •. t �P +yr,3 yy° ` ,z q S ri 4 x- ° JA 3' ! , 4 +t3 )fr�i•. �2.J3° k (r }(4 l jp x• ° �n �x c '�� �' B° � _ °•.` e(`iY.+' ill .P '6i; � t:r �' " r��� N r � r s.. ��7 � = " .. ° .r. s, .o l..°.R .., �_M ,{�_.-7 .., j; i �,-i- } •`e"E'�.d '{�,�. .t•%".PS, h�± ,.F.'�.��" 'is{. iY"�.^ ;C, � -- ° �{�=��'�� ! 1 )�f�*i�.l�' �IP• r.Je �'�'7{l,t'il� ptf.{ t t ® ^ �• ' o f�gg`a4A_ppe '•p !�: �aOMb s !' oI .�77, '!FY�OB HILc7 ({' }�`, +s• �' l D P:+i►`}l��_A i �' !' O�v :� •ii[i'�YS•�+. J"f�iiFY���F.S�f-T i -w-yt• �.. yA 3 ,: GIaL�I ��'°t �• 1,�`" a. q° ��'�K...;,.'-. 'fs-...iM]]1 Fw:� �t�:l{X': �YrN'{ t) I•FY I.t�« 1� p.t P •''' � }•C'+.>�?t._'�t't•`i�1•lF/��,1{s. �4, �"�l]i?�,i7'J�f{L �.�,'�if:"l� �i� '. i V-1.•',liF. ''.'!i - . � J t�y;' t r i • ,{c. �n#"'i� , A �t E ' (pat• �+ �, �a. J �.y, '' •w. ,L;'i .h'.- S v"' r til+.r' j.:. -�r's.: x `x,"t 3E5`''S��, pjw :h 'C.IY%✓�'i:.i�.rpytY;i�;.� u<s y. t. y,,, 'irr � 'j+'{Tt•.P''i r t1, - .I� -5,, 2 i•� y i' P Ll,�b' O y' {'P-'zr-'JC" ,. ' :1, ..;�� ....5:.'S•i��;lq•2w;(5:ti' :;,' ea°.�+�J• �'}•-�'i;',i��. ��•.'�P°,Y }t'�!L�1 '"l;ssti.e �� ..:.r }. '�'q,j H,F" y' '',pr � 'K}t � n.�� •'�..s r°. e:r,.--_umy a.ti+�'•rr�.. 'J']d�`.,,..,1^b.,r .-.:a, thy( ,Sy'y�''`I :.°uf,�.:5.>��..-' :�•ti�....:. "' .ar 9$1�3.�`1t�w°�..�tari.'},LO>�o.�.."+i��:: � s�.i?�+°<f.s___ ��}} '.�:_".'_T?'a?'v� ;a EXHIBIT C. Form of Bill of Sale and Assignment. BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE is made as of this 27 day of OovAE;tsM- 2012, by the CITY OF AUBURN, a municipal corporation of the State of Washington ("Seller") in favor of ORION INDUSTRIES, a Washington nonprofit corporation (`Buyer"), with reference to the following facts. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Seller does hereby absolutely and unconditionally give, grant, bargain, sell, transfer, set over, assign, convey, release, confirm and deliver to Buyer all of Seller's right, title and interest in and to any and all equipment, furniture, furnishings, fixtures and other tangible personal property owned by Seller (the "Personalty") that is attached, appurtenant to or used in connection with the real property legally described on the attached Exhibit A. Seller represents and warrants that it is the sole owner of, and has good title to, the Personalty, and has full right and authority to transfer and deliver the same, and will defend the sale hereby against each and every person claiming otherwise. The sale of the Personalty is made on an "AS-IS" condition and basis with all faults. It is understood and agreed that the sale price reflects that the Personalty is sold by Seller to Buyer subject to the foregoing sentence. Seller expressly and specifically disclaims and negates any guarantee or warranty of the Personalty for any use or purpose, whether expressed or implied, and whether in writing or otherwise, and including but not limited to any warranty of merchantability or habitability Upon Buyer's acceptance of the Personalty, Buyer will be deemed to have accepted the Personalty"AS IS, WHERE IS,"with all faults and defects. IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the date first above written. SEL By- Its: LLQAL);iESCRLJ�TICRN PAROL A THAT PORTION OF THE SOUTH HALF QFSOSEPH BRANNAN DONAiIQMLAND CLAIM NO.39,SITUATED IN THE WEST HAS FQF SECTION 71 TOWNSHIP 21'NOR TH,RANGES EAST,W.M,;AND THE EAST'HALF OF SECTION 12;TOWNSHIP 21 NORTH,RANGE4 EAST,W,M,,IN THE CITY OF AUBURN,KING COUNTY, WASHINGTDN,BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS1 COMMENCING AT A S INCH DIAMETER BRASS DISK IN CONCRETE,IN CASE,MARKING THE CENTERLINE RIGHT-OF-WAY OF le STREET N,E,WITH THE CENTERLINE RIG1iT-OF WAY DF`D'STREET N E,AS SHOWN ON RECORD OF SURVEY,R ECORDING NUMBER 770?17900,RECORDS of SAID COUNTY;FRo m WHICH,A 3 ING1i g1AMETER BRASS DISK1N CONCRETE, IN CAS€,MARKING THE CLNTERLINERIGHT-QF- WAY OFS,AICI 151H STREET N.E,WITHTHE CENTERLINE RIGHT-OF-WAY OF'A'STREffr 0 E.,.BEARS NORTH 85"30'04°WEST.,980.32 FEET;THENCE ALONG THECENTE.RLINE OFSAID'D'STREET NXVNQRTH Do%V0$!'EAST,360.8$FEEJ•TOA 1-V2 INCH DIAMETER BRTASSSURFACE MONUMENT,THENCE CONTINUING ALONG SAID CENTERLINE NORTH 00°41'08"WT,130.42 FEETTO TOE e TH LINE qF AUBURN MUNICIPAL.AIRPORTASSHoWN ON SAID SURVEY;THENCE ALONG SAID SOUTH LINE NORTH' 89°04,44++WEST,691.73FEETTQTHPSOUTHWE5TCORNER 0 F SAJ 0 AIRPORT PROPERTY AND THE TRUE POINT OF BEGINNING;THEJVGE ALdIVGTHE50UTHERLY EXTENSION QF THE iNEST LINI OF SAIo AIRPORT PRbP61ttY SOU I H Op°.39'4$"WEST,1,43.93 FEET;THENCE SOUTIk89'30'49"EAST40,36 FEET; THENCE SOUTH OD°30'04°WESIT,170.04FEET,THENCE NORTH 89°42!06"WESIi2S9.66 FEETTO THE EAST MARGIN OF%!STRLET N.E,;THENCE ALONG SAID MARGIN NORTH 00°39120"FAST+6�4.89 FEET TO THE NORTHWESTCORNER OF THAT CERTAIN PARCEL OF LAND A$SHAWN ON SAID RECORD OF SURVEY;THENCEALQNGTHE NORTH LINE OF SAID PARCEL SOUTH 89°30'04" EAST,258.89 FEET TO THE WLSTLINE OF SAID AIRPORT PROPERTY;THENCE ALONG SAID WEST LINE SOUTH 00°89148"W EST 299,84 FEET T 0 THETRUE PQINTOFBEGINNING. CONTAINING 3.81 ACRES,MORE OR LESS SUBJECTTO EASEMENTS,CONDITION$,AND RESTWa(ONS ? i „© EXHIBIT D. CERTIFICATE OF NON-FOREIGN STATUS Section 1445 of the Internal Revenue Code provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon the disposition of a United States real property interest by the CITY OF AUBURN ("Transferor"), the undersigned hereby certifies the following on behalf of Transferor• I Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate(as those terms are defined in the Internal Revenue Code and Income Tax Regulations); and Transferor's United States employer identification number is 91-6001228, and 2. Transferor's office address is Economic Development Division, 25 West Main St., Auburn WA, 98001 Transferor understands that this certification may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of Transferor DATED this 27 day of N 6 ls+�(bF(L 12012 TRANSFEROR: F A By- Title: Print Name: �Qc_�_ Exhibit E. Real Estate Purchase and Sale Agreement between King Co. and the City of Auburn Oct. 22, zolz Sponsor: von Reichbauer nw Proposed No. 2012-0390.2 1 AMENDMENT TO PROPOSED SUBSTITUTE ORDINANCE 2012-0390 2 VERSION 2 3 On page 3,delete Attachment A,Real Estate Purchase and Sale Agreement, and insert 4 Attachment A,Real Estate Purchase and Sale Agreement(rev Oct. 22, 2012). 5 EFFECT Replaces the original Attachment A with a revised version. 1 [Blank Page] Real Estate Purchase and Sale Agreement (rev Oct. 22, 2012) Attachment A to Ordinance Real Estate Purchase and Sale Agreement Auburn Park and Ride [Blank Page] REAL ESTATE PURCHASE AND SALE AGREEMENT THIS REAL. ESTATE PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered into by and between KING COUNTY, a home rule charter county and political subdivision of the State of Washington (the "Seller') and THE CITY OF AUBURN, a municipal corporation and noncharter code city with a council-mayor form of government organized pursuant to RCW Title 35A (the 'Buyer"). Buyer and Seller are sometimes referred to herein individually as a 'Party" and collectively as the"Parties. RECITALS A. Seller is the owner of that certain real property located in the City of Auburn, County of King, State of Washington, commonly identified as a portion of the AUBURN PARK- AND-RIDE, also known as Lot A" of that certain subdivision that has been applied for and is expected to be recorded, the legal description of which is attached hereto as Exhibit A (the 'Property")and incorporated herein by this reference. B. Seller has for decades owned, operated and maintained a public transportation and mass transit facility at the Auburn Park-and-Ride. C. Over many years Seller made significant investments in the Property for benefit of the Auburn Park-and-Ride, and Seller's historical and continuing use of the Park-and-Ride for public transportation and mass transit purposes are dependent on those improvements continuing to operate in a good and reliable condition. D Seller desires to sell the Property and Buyer desires to purchase the Property E. As a condition of the real estate transaction between Buyer and Seller regarding the Property and in partial consideration of the promises, covenants, conditions and restrictions set forth herein, Seller requires easements over the Property so that Seller may continue to use and rely upon improvements located there that serve the Auburn Park-and-Ride, and Buyer is willing to grant the same. F As a condition of the real estate transaction between Buyer and Seller regarding the Property and in partial consideration of the promises, covenants, conditions and restrictions set forth herein, Buyer desires to operate, maintain, and repair the improvements made by Seller upon the Property for benefit of the Auburn Park-and-Ride, as now existing or hereafter configured, and to do so consistent with all applicable laws, rules, and orders, and in addition Buyer is willing to allow Seller to perform such duties in the event that Buyer fails to do so. G. As a condition of the real estate transaction between Buyer and Seller regarding the Property and in further consideration of the promises, covenants, conditions and restrictions set forth herein, Seller requires that Buyer restrict and Buyer is willing to so restrict Buyer s use Auburn Park-&-Ride West Purchase and Sale Agreement Page 2 of the Property to those uses and purposes that are compatible with Seller's continued use of and reliance on the improvements previously made by Seller and located thereon for benefit of the Auburn Park-and-Ride. AGREEMENT Now, THEREFORE, in consideration of the promises and mutual covenants contained herein, and other valuable consideration, receipt and sufficiency of which are hereby acknowledged,the Parties hereto covenant and agree as follows: ARTICLE 1. PURCHASE AND TRANSFER OF ASSETS I.I. PROPERTY TO BE SOLD. Subject to and upon the terms and conditions set forth in this Agreement, by bargain and sale deed substantially in the form of Exhibit B-1 attached hereto, Seller shall sell, convey, assign, transfer and deliver to Buyer on the Closing Date (as defined in Section 10.1 of this Agreement) and Buyer shall buy, assume and accept from Seller on the Closing Date the following assets and properties: (a) All the Seller's right, title and interest in the Property, as described in Exhibit A, except Seller's reserved easements for (1) continuous and uninterrupted public ingress and egress for transit purposes, and (2) storm water and surface water drainage system use and access, all as described in Exhibit B-2, attached hereto and incorporated herein by this reference; (b) All of Seller's right, title and interest in improvements and structures located on the Property, if any; (c) All of Seller's right, title and interest in and to tangible personal property, if any, owned by the Seller and attached, appurtenant to or used in connection with the Property ("Personal Property"); and (d) All of Seller's tenements, hereditaments, easements and rights appurtenant to the Property including but not limited to, all of the Seller's right, title, and interest in and to streets, alleys or other public ways adjacent to the Property, easements for public utilities, all sewers and service drainage easements, all rights of connection to the sewers, and all rights of ingress and egress, and all leases, licenses,guverrunent approvals and permits affecting the Property 1.2 Hereinafter,the items listed in Section 1 1 are collectively referred to as the "Purchased Assets." 1.3 EFFECTIVE DATE. The Effective Date of this Agreement shall be the date of the latest approval of this Agreement by the Parties' respective councils. Auburn Park-&-Ride West Purchase and Sale Agreement Page 3 ARTICLE 2. PURCHASE PRICE AND OTHER CONSIDERATION 2.1. PURCHASE PRICE AND PAYMENT. In consideration of the sale, transfer, conveyance, assignment and delivery of the Purchased Assets, Buyer shall pay to Seller on the Closing Date a total purchase price of One million, five hundred sixty-six thousand, five hundred dollars ($1,566,500.00) (the"Purchase Price"). 2.2. ALLOCATION OF PURCHASE PRICE. Seller and Buyer agree that the entire Purchase Price is allocable to real property and that the value of the Personal Property, if any, is de minimis. 2.3 BUYER'S POST-CLOSING OBLIGATIONS. 2.3.1. Security Fencing. In further consideration for the sale, transfer, conveyance, assignment and delivery of the Property, Buyer covenants to erect, at its sole expense, a security chain-link fence on the boundary between the Property and Seller's park and ride lot within thirty (30) days of the date of closing. Provided, that Buyer's security fence shall not interfere with Seller's right of ingress and egress as set forth in the Public Transportation Easement and Restrictive Covenant attached hereto as Exhibit B-2. 2.3.2 Lighting. In further consideration for the sale, transfer, conveyance, assignment and delivery of the Property, Buyer covenants to disconnect from Seller's electrical service, according to law and at Buyer's sole expense, power to all the light poles that are located north of the south boundary line of the Property (not including those that are located on the south boundary line) within ninety (90) days of the date of closing. Buyer further covenants that within the Easement Area as defined in Exhibit B-2 attached hereto, Buyer shall preserve lighting equal to or better than that which exists on the Easement Area as of the Closing Date, and Buyer shall additionally grant an easement to Seller for purposes of maintaining the same. Buyer's covenant to preserve lighting in the Easement Area and Seller's lighting easement shall be included in the Public Transportation Easement and Restrictive Covenant attached hereto as Exhibit B-2. 2.3.3 Irrigation. In further consideration for the sale, transfer, conveyance, assignment and delivery of the Property, Buyer covenants to disconnect from the irrigation system that serves Seller's Park-and-Ride Lot the portion of the irrigation system that serves that landscaping located completely within the Property Buyer shall complete this work within ninety (90) days of closing Buyer further covenants to maintain an operational irrigation system to serve the landscaping that is located completely within the Property Buyer's covenant to disconnect Seller's irrigation system and maintain an operational irrigation system on the Property shall be included in the Public Transportation Easement and Restrictive Covenant attached hereto as Exhibit B-2. Auburn Park-&-Ride West Purchase and Sale Agreement Page 4 2.3.4 Drainage. (a) In further consideration for the sale, transfer, conveyance, assignment and delivery of the Property, Buyer shall grant Seller an easement over the Property to use, repair, maintain, and improve those portions of the existing stormwater or surface water drainage system located on the Property The easement shall be included in the Public Transportation Easement and Restrictive Covenant attached hereto as Exhibit B-2. (b) In further consideration for the sale, transfer, conveyance, assignment and delivery of the Property, Buyer, on behalf of itself and its successors and assigns, covenants and agrees as follows: (i) Buyer shall hold harmless, indemnify, and defend Seller from any and all cost, liability, claims,judgments, administrative actions, litigation, or other obligations arising out of or relating to the discharge of pollutants or Hazardous Substances (as defined in Section 3 1.9 of this Agreement) in any stormwater, surface water, runoff, or any other form of discharge or release from the Property into any of the stormwater facilities that serve the Auburn Park-and-Ride. (ii) Beginning eighteen (18) months after the Closing Date, and each calendar year thereafter for so long as Buyer owns the Property, upon Seller's written demand Buyer shall pay to Seller a share of Seller's annualized cost to maintain those certain stormwater facilities that serve both the Auburn Park-and-Ride and a portion of the Property (the "Joint Use Facilities"). Buyer's share of Seller's annualized cost shall be determined by multiplying Seller's annualized cost to maintain the Joint Use Facilities by a fraction, the numerator of which is the square footage of the Property area served by the Joint Use Facilities, and the denominator of which is the square footage of the Auburn Park-and=Ride area served by the Joint Use Facilities. (iii) If the Property area served by the Joint Use Facilities, which area is shown in Exhibit B-3 attached hereto, is ever redeveloped or improved for any purpose other than a vehicle parking lot, then before commencing construction of such redevelopment or improvement Buyer or Buyer's successor, assign, or designee shall disconnect the Property's stormwater or surface water system from the Joint Use Facilities. (iv) If Seller ever redevelops the Auburn Park-and-Ride,then the City of Auburn shall limit its drainage review and approval (if any) to those surface water or storm water impacts arising out of or related to drainage from the Auburn Park-and- Ride, and without reference to or consideration of any surface water or stormwater discharge from the Property (c) The covenants in paragraph (b)of this Section 2.3.4 shall terminate and thereafter shall be of no further force or effect beginning upon such date as the King County Recorder's Auburn Park-&-Ride West Purchase and Sale Agreement Page 5 Office may record a deed from Seller to Buyer conveying the real property on which is located the stormwater retention/detention pond serving the Auburn Park-and-Ride and the Property (d) The text of paragraphs (b)(i), -(ii), -(iii), -(iv), and (c) of this Section 2.3 4 shall be included in the Public Transportation Easement and Restrictive Covenant attached hereto as Exhibit B-2, which shall be binding on Buyer's successors and assigns, and shall also run with the land that makes up the Property 2.3.5 Covenants Material. Buyer understands, acknowledges, and agrees that Buyer's covenants in Sections 2.3.1, 2.3.2, 2.3.3, and 2.3.4 are a material consideration for Seller's execution of this Agreement. Buyer further understands, acknowledges, and agrees that Buyer shall be in material breach of this Agreement if Buyer or Buyer's designee fails to timely perform the duties required under those covenants. 2.3.6 Seller Review and Approval of Buyer Work; Remedies for Nonperformance. (a) Seller shall have final right of approval of Buyer's proposed plans to fulfill the covenants in Sections 2.3.1, 2.3.2, and 2.3.3, and Seller shall also have final right of approval of er's plans and Buyer's actual constructed improvements to fulfill those covenants (together, Buy constructed improvements to satisfy the covenants in Sections 2.3 1, 2.3.2, and 2.3.3 are referred to herein as the "Work"). Seller shall have the right to reject Work or to require repair or replacement of Work not meeting Seller's approval,but in any case Seller's approval shall not be unreasonably withheld. (b) Buyer shall reimburse Seller for the cost and expense of Seller's staff time to review and approve Buyer's proposed plans for and construction of the Work, based on the actual hours reasonably expended at the rate charge then in effect for Seller's staff. (c) Buyer and Seller agree to cooperate in good faith to complete,review, and inspect the plans for and construction of the Work. (d) If Seller reasonably believes that Buyer will not timely undertake or complete the Work, then Seller shall notify Buyer in writing consistent with Section III.E of this Easement ("Seller's Notice"). Seller's Notice shall specify the basis for Seller's belief that Buyer is in breach or is likely to breach its covenants under this Section 2.3.1 Buyer shall respond to Seller's Notice within fourteen (14) days. Buyer's response shall state whether Buyer intends to perform the Work and the estimated calendar date by which the Work will be undertaken and completed. If Buyer's response states that Buyer will not perform the Work, or if Seller reasonably believes that Buyer will not satisfactorily complete the Work within the time frames required by Sections 2.3 1, 2.3.2, and 2.3.2,respectively, then Seller may notify Buyer that Seller intends to perform the Work and invoice Buyer for Seller's cost to perform the Work. Seller shall provide such notice at least fourteen (14) days in advance of the date that Seller intends to begin the Work. Seller shall invoice Buyer for all reasonable fees, costs, and expenses associated with the Work, including but not limited to the cost of Seller's staff time to prepare Seller's Notice and to develop and implement any procurement, plans, permitting, or project Auburn Park-&-Ride West Purchase and Sale Agreement Page 6 documentation necessary for the Work (collectively, the "Work Costs"). The invoice shall be accompanied by documents supporting and justifying the Work Costs. Buyer shall pay the Work Costs to Seller within forty-five (45) days of receipt of Seller's invoice. Seller shall add a late fee of five percent (5%) to any Work Costs invoice not timely paid. If any Work Costs invoice remains outstanding ninety (90)days after receipt, Seller may send it to collections. 2.4 COVENANT AGAINST RESALE FOR PROFIT. Buyer covenants that for a period of twenty-four (24) consecutive months from and after the Closing Date, Buyer shall not re-sell or otherwise convey the Property or the Purchased Assets in exchange for a cash amount greater than the Purchase Price, or any other consideration of greater value than the Purchase Price. During such 24-month period Buyer shall document the sale price of Property or the Purchased Assets or the appraised value of consideration received in exchange for the Property or the Purchased Assets and shall notify Seller of such price or value. If, during such 24-month period, Buyer sells or otherwise conveys the Property or the Purchased Assets in exchange for a cash amount greater than the Purchase Price, or any other consideration of greater value than the Purchase Price, then Buyer shall promptly pay to Seller an amount equal to the cash value of the difference between the price that Buyer paid to Seller and the price that Buyer received for the Property or the Purchased Assets. 2.5 SURVIVAL OF RIGHTS, DUTIES, AND OBLIGATIONS. The Parties' rights, duties, covenants, and obligations under Sections 2.3 and 2.4 shall survive Closing and the expiration or earlier termination of this Agreement. ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE PARTIES 3.1. WARRANTIES AND REPRESENTATIONS OF SELLER. As of the Closing Date, Seller represents and warrants as follows: 3.1.1. Definition of Seller The Seller is a home rule charter county and political subdivision of the State of Washington duly organized, validly existing and in good standing under the laws of the State of Washington. Seller has all requisite corporate power and authority to carry on its business as it is now being conducted in the place where such businesses are now conducted. 3.1.2. Execution,Delivery and Performance of Agreement, Authority The execution, delivery and performance of this Agreement by Seller (i) is within the powers of Seller as a home rule charter county, (ii) has been or will be on or before the Closing Date, duly ...) authorized by all necessary action of the Seller's legislative authority, and(iii) does not and will not violate any provision of any law, rule, regulation, order, writ,judgment, decree or award to which the Seller is a party or which is presently in effect and applicable to Seller. This Agreement constitutes the legal,valid and binding obligation of Seller enforceable against Seller in accordance with the tenns hereof. 3.1.3. Litigation. There is no pending, or to the best of Seller's knowledge, Aubum Park-&-Ride West Purchase and Sale Agreement Page 7 threatened lawsuit or material claim against or relating to Seller with respect to the Property, which shall impede or materially affect Seller's ability to perform the terms of this Agreement. There is no pending or, to the best of Seller's knowledge, contemplated condemnation or similar proceeding with respect to the Property or any part thereof. 3.1.4 Assessments. There is no pending, or to the best of Seller's knowledge, contemplated local improvement district or other special assessment or charge with respect to the Property, except as may be disclosed in the Title Commitment described below 3.1.5 Full Disclosure. To the extent of Seller's knowledge as defined herein, no representation or warranty by Seller in this Agreement or in any instrument, certificate or statement famished to Buyer pursuant hereto, or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of a material fact or fails to state a material fact which is necessary to make the statements set forth therein not false or misleading. As used in this Agreement, the phrase "Seller's knowledge" or any derivation or variation thereof shall mean the actual knowledge of the following persons, based on their reasonable inquiry in the file locations where the relevant information would normally be filed: (a) Steve Salyer, Manager, Real Estate Services Section, Facilities Management Division,King County Department of Executive Services; (b) Kate Donley, Project Program Manager IV, Real Estate Services Section, Facilities Management Division,King County Department of Executive Services; and (c) Paul Eng, P.E., Engineer VI, Transit Division, King County Department of Transportation. 3.1.6 No Broker No broker, finder, agent or similar intermediary has acted for or on behalf of Seller in connection with this Agreement or the transactions contemplated hereby, and no broker, finder, agent or similar intermediary is entitled to any broker's, finder's or similar fee or commission in connection with this Agreement based on an agreement, arrangement or understanding with Seller or any action taken by Seller. 3.1.7 Contracts. To the extent of Seller's knowledge as defined in Section 3 1.5, there are no contracts or other obligations outstanding for the sale, exchange, transfer, lease, rental or use of the Property or any portion thereof. 3.1.8 Future Agreements. From and after the Effective Date, and unless this Agreement is terminated in accordance with its terms, Seller shall not without the prior written consent of Buyer- (a) Enter into any agreement, contract, commitment, lease or other transaction that affects the Property in any way; or (b) Sell, dispose of or encumber any portion of the Property Auburn Park-&-Ride West Purchase and Sale Agreement Page 8 3.1.9 Condition of the Property (a) Seller has not made, does not make, and specifically negates and disclaims any representations, warranties, promises,covenants, contracts or guarantees of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, of, as to, concerning, or with respect to the value, nature, quality, or condition of the Property, including, without limitation: (i) The water, soil and geology; (ii) The income to be derived from the Property; (iii) The suitability of the Property for any and all activities and uses that Buyer or anyone else may conduct thereon; (iv) The compliance of or by the Property or its operation with any laws, rules, ordinances or regulations of any applicable governmental authority or body; (v) The habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Property; (vi) The manner or quality of the construction or materials, if any, incorporated into the Property; or (vii) Any other matter with respect to the Property (b) Seller has not made,does not make, and specifically disclaims any representations regarding compliance with any environmental protection, pollution, zoning or land use laws, rules, regulations, orders, or requirements, including the existence in or on the Property of hazardous materials or substances. (c) Without limitation, Seller does not make and specifically disclaims any warranties, express or implied, any warranties or representations with respect to the structural condition of the Purchased Assets, the area of land being purchased, the existence or non- existence of any Hazardous Substances or underground storage tanks, or the actual or threatened release, deposit, seepage, migration or escape of Hazardous Substances, from or into the Purchased Assets, and the compliance or noncompliance of the Purchased Assets with applicable federal, state, county and local laws and regulations, including, without limitation, environmental laws and regulations and seismic/building codes, laws and regulations. For purposes of this Agreement, the tern "Hazardous Substances" shall mean: "hazardous substance" as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended("CERCLA"); "hazardous waste" as defined by the Resource Conservation and Recovery Act of 1976 ("RCRA') as amended; hazardous wastes, hazardous materials, hazardous substances, toxic waste, toxic materials, or toxic substances as defined in state or federal statutes or regulations; asbestos-containing materials, polychlorinated biphenyls; radioactive materials, chemicals known to cause cancer or reproductive toxicity; petroleum Auburn Park-&-Ride West purchase and Sale Agreement Page 9 products, distillates or fractions; any substance the presence of which is prohibited by statute or regulation; and any substance for which any statute or regulation requires a permit or special handling in its use, collection, storage,treatment or disposal. (d) All provisions of this Section 3.1.9 shall survive Closing and the expiration or earlier termination of this Agreement. 3.1.10. Risk of Loss. Until the Closing Date, the risk of loss relating to the Property shall rest with the Seller. Risk of Loss shall be deemed to include any property damage occurring as a result of an "Act of God," including, but not limited to, earthquakes, tremors, wind,rain or other natural occurrence. 3.1.11. Foreign Person. Seller is not a foreign person and is a "United States Person" as such tern is defined in Section 7701 (a) (30) of the Internal Revenue Code of 1986, as amended, and Seller shall deliver to Buyer prior to the Closing an affidavit, as set forth in Exhibit D,evidencing such fact, and such other documents as may be required under the Code. 3.2. REPRESENTATIONS AND WARRANTIES OF BUYER. As of the Closing Date, Buyer represents and warrants as follows: 3.2.1. Organization. Buyer is a municipal corporation and noncharter code city duly organized, validly existing and in good standing under the laws of the State of Washington. Buyer has all requisite corporate power and authority to carry on its business as it is now being conducted in the place where such businesses are now conducted. 3.2.2. Execution, Delivery and Performance of Agreement,Authority The execution, delivery and performance of this Agreement by Buyer (i) is within the powers of Buyer as a municipal corporation, (ii)has been or will be on or before the Closing Date, duly authorized by all necessary action of the Buyer's legislative authority, and(iii) does not and will not violate any provision of any law, rule, regulation, order, writ,judgment, decree or award to which the Buyer is a parry or which is presently in effect and applicable to Buyer. This Agreement constitutes the legal,valid and binding obligation of Buyer enforceable against Buyer in accordance with the terns hereof. 3.2.3. Litigation. There is no pending or, to the best of Buyer's knowledge, threatened lawsuit or material claim against or relating to Buyer that shall impede or materially affect Buyer's ability to perfonn the terms of this Agreement. 3.2.4. Full Disclosure. No representation or warranty by Buyer in this Agreement or in any instnnnent, document, certificate or statement furnished to Seller pursuant hereto, or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of a material fact. Auburn Park-&-Ride West Purchase and Sale Agreement Page 10 3.2.5. Condition of Property (a) Buyer acknowledges and accepts Seller's disclaimer of the Property condition in Section 3.1.9 of this Agreement. (b) Buyer further acknowledges and agrees that,having been given the opportunity to inspect the Property, Buyer is relying solely on its own investigation of the Property and not on any information provided or to be provided by Seller. Buyer further acknowledges and agrees that any information provided or to be provided with respect to the Property was obtained from a variety of sources and that Seller has not made any independent investigation or verification of such information and makes no representations as to the accuracy or completeness of such information and no employee or agent of Seller is authorized otherwise. Buyer further acknowledges and agrees that Seller is not liable or bound in any manner by any verbal or written statements, representations, or information pertaining to the Property, or the operation thereof, furnished by any real estate broker, agent, employee, servant or other person, and, to the maximum extent permitted by law, the sale of the Property as provided for herein is made on an "AS-IS" condition and basis with all faults. It is understood and agreed that the sale price reflects that the Property is sold by Seller to Buyer subject to the foregoing. (c) Buyer acknowledges that, within the Due Diligence Period as defined in Section 4.1.2 of this Agreement, Buyer will have conducted a physical inspection and made all investigations that Buyer deems necessary in connection with its purchase of the Purchased Assets, and that, as of the Effective Date hereof, Seller has provided Buyer with copies of all reports in Seller's possession that have been requested by Buyer. Upon waiver or satisfaction by Buyer of its contingencies pursuant to Article 5, Buyer will be deemed to have approved the physical condition of the Property and agrees to accept and purchase the same "AS IS, WHERE IS",including, without limitation,the existence or non-existence of any pollutants,contaminants, hazardous waste, dangerous waste, toxic waste, underground storage tanks or contaminated soil, or the actual or threatened release, deposit seepage, migration or escape of such substances at, from or into the Property and the compliance or noncompliance of the Property with applicable federal, state, county and local laws and regulations including, without limitation, environmental laws and regulations. Buyer acknowledges and agrees that, except to the extent of Seller's representations and warranties in Section 3 1 of this Agreement, and to the extent of any fraud or deliberate misrepresentation by Seller, Seller shall have no liability for, and that Buyer shall have no recourse against the Seller for, any defect or deficiency of any kind whatsoever in the Property including without limitation those relating to Hazardous Substances, without regard to whether such defect or deficiency was discovered or discoverable by the Buyer or Seller. 3.2.6. No Broker No broker, finder, agent or similar intermediary has acted for or on behalf of Buyer in connection with this Agreement or the transactions contemplated hereby, and no broker, finder, agent, or similar intermediary is entitled to any broker's, finder's or similar fee or commission in connection with this Agreement based on an agreement, arrangement, or understanding with the Buyer or any action taken by the Buyer. Auburn Park-&-Ride West Purchase and Sale Agreement Page 11 3.2.7 Indemnification. From and after Closing, and for a period of ten (10) years from the Closing Date, Buyer shall indemnify, defend and hold Seller, its officers, agents and employees harmless from and against any and all claims and agency orders or requirements relating to or arising out of, directly or indirectly, the Property This Section 3.2.7 shall survive Closing and the expiration or earlier termination of this Agreement. ARTICLE 4. TITLE MATTERS 4.1. TITLE. 4.1.1. Title Commitment. Buyer or its designee shall obtain a current ALTA form of commitment for an owner's policy of title insurance (the "Title Commitment") issued by First American Title Insurance Company, Inc. (the "Title Company"), describing the Property, listing Buyer as the prospective named insured and showing as the policy amount the total Purchase Price for the Property At such time as the Title Company causes the Title Commitment to be furnished to Buyer, Buyer may in Buyer's sole discretion determine whether to cause the Title Company to furnish to Buyer legible copies of all instruments referred to in the Title Commitment as restrictions or exceptions to title to the Property 4.1.2. Survey Prior to the expiration of the Due Diligence Period as defined in this Section 4.1.2 of this Agreement, Buyer shall have the option, at its sole cost and expense, to conduct a survey (the "Survey") of the Property prepared by a licensed public surveyor. The Survey shall be certified to Buyer, Seller, and the Title Company, shall be satisfactory to the Title Company so as to permit it to issue an owner's title policy, identify the Property by legal description and shall set forth the number of square feet contained within the Property, show all natural monuments, existing fences, drainage ditches and/or courses, flood plain limits, any building or other site improvements and/or objects, any rights-of-way for streets, existing driveways, alleys or highways, easements and other restriction lines existing and/or proposed which shall affect any portion of the Property, and such other items as may be required by Buyer For purposes of this Agreement, "Due Diligence Period" means the ninety (90) day period beginning on the day after the Effective Date of this Agreement. 4.1.3 Review of Title Commitment and Survey (a) Buyer shall have until the expiration of the Due Diligence Period in which to notify Seller of any objections Buyer has to any matters shown or referred to in the Title Commitment or Survey and of any title insurance endorsements required by Buyer Any exceptions or other items that are set forth in the Title Commitment or the Survey and to which Buyer does not object shall be deemed to be permitted exceptions ("Permitted Exceptions"). Rights reserved in federal patents or state deeds, building or use restrictions general to the district, and building or zoning regulations or provisions shall also be deemed Permitted Exceptions. (b) With regard to items to which Buyer does object, Seller shall notify Buyer within Auburn Park-&-Ride West Purchase and Sale Agreement Page 12 ten (10) days after Seller receives Buyer's notice of objections of any exceptions to title or items on the Survey which Seller is not able to remove or otherwise resolve and any endorsements that Seller is not able to provide following Buyer's request, and Buyer may, at Buyer's option, either waive the objections not cured or Buyer may terminate this Agreement by notice to Seller. 4.2. OWNER'S TITLE INSURANCE POLICY At Closing, Buyer shall cause an owner's policy of title insurance to be issued by the Title Company in the full amount of the total Purchase Price, effective as of the Closing Date, insuring Buyer that the fee simple title to the Property is vested in Buyer, subject only to the Permitted Exceptions, to the usual printed exceptions contained in such title insurance policy, to the additional matters approved by Buyer as provided in Section 4.1.3, and to any other matters approved in writing by Buyer. The obligation of Buyer to provide the title policy called for herein shall be satisfied if, at the Closing, the Title Company has given a binding cotmnitment, in a form reasonably satisfactory to Buyer, to issue the policies in the form required by this Section 4.2. Buyer shall pay any sum owing to the Title Company for the preparation of the preliminary and binding commitments generated by the Title Company 4.3. CONVEYANCE. At Closing, Seller shall convey to Buyer the title to the Property by bargain and sale deed in the form attached hereto as Exhibit B-1, subject only to the Permitted Exceptions, the further matters identified in Section 4.2, the easements and restrictive covenants set forth in Exhibit B-2, and such other encumbrances as may be created by Buyer or caused to be created by Buyer from and after the Effective Date. ARTICLE 5. CONTINGENCIES 5.1. DUE DILIGENCE INSPECTION AND FEASIBILITY. Buyer shall satisfy itself by investigation and inspection, at its sole cost and expense and in its sole and absolute discretion, that the condition of the Property for Buyer's contemplated use meets with Buyer's approval. If Buyer approves of the condition of the Property, Buyer agrees to notify Seller, in writing, thereby removing this contingency Buyer shall make such determination within the Due Diligence Period defined in Section 4.1.2. In the event Buyer does not waive this contingency or notify Seller that the contingency is satisfied within the Due Diligence Period, then Buyer may terminate this Agreement upon written notice to Seller on or before the expiration of the Due Diligence Period, and neither Party shall have any further rights or obligations to the other hereunder. If Buyer fails to provide Seller with any written notice regarding this Section 5 1 during the Due Diligence Period, then Buyer shall be deemed to have waived this contingency for all purposes and this contingency shall be deemed removed. 5.1.1. Inspections. During the Due Diligence Period, Buyer, its designated representatives or agents shall have the right at Buyer's expense to: (a) Perform any and all tests, inspections, studies, surveys or appraisals of the Property deemed necessary, on any subject, by the Purchaser(subject to the limitations set forth below and Paragraph 5 1.2 Right of Entry); Auburn Park-&-Ride West Purchase and Sale Agreement Page 13 (b) Obtain a Phase I or Phase II Environmental Assessment on the Property and perform any and all tests, inspections and studies deemed necessary therewith; (c) Examine all Due Diligence materials that Buyer may reasonably request from Seller that are not subject to attorney-client privilege or that the Seller is not otherwise prohibited from disclosing by law; (d) Determine to its satisfaction whether approvals, permits and variances can be obtained under applicable land use and zoning codes for Buyer's proposed use of the Property; and (e) Determine whether Buyer's proposed development of the Property is economically feasible. 5.1.2. Conditional Right of Entry Buyer and Buyer's designated representatives or agents shall have and Seller hereby grants to Buyer and Buyer's designated representatives a conditional license to enter the Property and to conduct the tests, investigations and studies set forth in this Article 5 upon three (3) days advance written notice; provided that such right of entry will be limited to those times and dates that will not substantially disrupt Seller's use of, or Seller's operations and activities on, the Property Invasive tests of the Property, such as drilling or excavation, shall be subject to Seller's prior written approval. Buyer and Buyer's designated representatives may not undertake activities that would damage the Purchased Assets or any other King County-owned property or personalty In connection with such inspections, Buyer agrees to hold harmless, indemnify and defend Seller, its officers, agents, or employees, from and against all claims, losses, or liability for injuries, sickness, or death of persons, including employees of Buyer,to the extent caused by or arising out of any act, error or omission of Buyer, its officers, agents, contractors, subcontractors or employees in entering the Property for the above purposes, except to the extent caused by or arising out of any act, error or omission of Seller, its officers, agents, or employees. Buyer shall repair any damage caused by invasive testing and shall restore the Property to its pre-existing condition. 5.2 THIRD PARTY SALE CONTINGENCY. 5.2.1 Simultaneous Closing on Third-Party Sale. Buyer has represented to Seller that Buyer intends to conduct a separate closing simultaneous with the Closing on the Property, and in that separate closing to sell the Property to a third party for cash, and to use the proceeds of that sale to pay the Purchase Price to Seller Therefore, Seller's and Buyer's respective duty to close on the Property is contingent: (a) On Buyer's successful simultaneous closing with a third party for the purchase and sale of the Property; and (b) On Buyer's receipt of cash or cash equivalents sufficient to allow Buyer to pay the Purchase Price to Seller in cash at Closing. Auburn Park-&-Ride West Purchase and Sale Agreement Page 14 5.2.2 No Duty to Close if Third Party Sale Fails. If either contingency 5.2.1(a) or (b) or both should fail then Seller and Buyer shall have no duty to proceed with Closing and this Agreement shall automatically terminate as of the Closing Date, all closing documents and funds shall be returned to the Party that provided them to escrow, each Party shall bear its own costs and expenses up to and including the Closing Date, and neither Party shall have any further right, duty,or obligation to the other under this Agreement. 5.3 SUBDIVISION CONTINGENCY. 5.3.1. Need for Division of Property Buyer has represented to Seller that prior to Closing, and at Buyer's sole cost and expense, Buyer shall have received administrative approval of boundary line adjustments to divide the Auburn Park-and-Ride into two separate legal parcels and shall have obtained all necessary signatures on the Inylar that will be recorded. Buyer has represented to Seller that the creation of two separate legal parcels is necessary to support Buyer's intended use of the Property and the third-party sale contemplated in Section 5.2. Therefore, Seller's and Buyer's respective duty to Close is contingent on Buyer receiving lawful approval of the boundary line adjustments of the Auburn Park-and-Ride into two separate legal parcels as illustrated in Exhibit E attached hereto. 5.3.2 No Duty to Close if Property Not Divided. Buyer shall complete the process to lawfully divide the Auburn Park-and-Ride into two separate parcels, receive administrative approval of the division, and perform all other tasks necessary for the division to be recorded with the King County Recorder's Office on the Closing Date, including all possible appeals or challenges to the proposed division of the Auburn Park-and-Ride. If Buyer is unable to complete the process to lawfully divide the Auburn Park-and-Ride by recording all necessary documents with the King County Recorder's Office on the Closing Date, then Seller and Buyer shall have no duty to proceed with Closing, and this Agreement shall automatically terminate as of the Closing Date, each Party shall bear its own costs and expenses up to and including the Closing Date,and neither Party shall have any further right, duty,or obligation to the other under this Agreement. 5.4 FTA APPROVAL CONTINGENCY 5.4.1. Need for FTA Approval. Seller has represented to Buyer that the Federal Transit Administration (FTA) must approve Seller's proposed sale of the Property to Buyer. Seller has represented to Buyer that such FTA review and approval is necessary to proceed with the transaction contemplated in this Agreement. Therefore, Buyer's duty to Close is contingent on FTA review and written approval of the proposed transaction. 5.4.2 No Duty to Close Absent FTA Approval. Prior to Closing, and at Seller's sole cost and expense, Seller shall take such steps as may be necessary to secure FTA review and approval of the proposed transaction regarding the Property and provide Buyer written documentation of such approval reasonably acceptable to Buyer. Seller shall secure FTA approval not later than thirty (30) days prior to the Closing Date, including all possible appeals or challenges to FTA review and approval. Provided, that Seller and Buyer may agree in writing to extend the Closing Date for such reasonable period or periods of time as may be required to Auburn Park-&-Ride West Purchase and Sale Agreement Page 15 complete FTA review and approval. If the FTA ultimately does not approve the proposed transaction regarding the Property, then Seller shall have no duty to proceed with Closing, this Agreement shall terminate upon written notice from Seller to Buyer, each Party shall bear its own costs and expenses up to and including the date of Seller's notice to Buyer, and neither Party shall have any further right,duty, or obligation to the other under this Agreement. ARTICLE 6. COVENANTS OF SELLER PENDING CLOSING 6.1 CONDUCT, NOTICE OF CHANGE. Seller covenants that between the Effective Date and the Closing, Seller shall take all such actions as may be necessary to assure that Seller's representations and warranties set forth in Article 3 hereof will be true and complete as of the Closing Date (except such representations, warranties and matters which relate solely to an earlier date), and all covenants of Seller set forth in this Agreement which are required to be performed by it at or prior to the Closing shall have been performed at or prior to the Closing as provided for in this Agreement. Seller shall give Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made by Seller in Article 3 or elsewhere in this Agreement which occurs prior to the Closing Date. ARTICLE 7 COVENANTS OF BUYER PENDING CLOSING 7.1 CONDUCT, NOTICE OF CHANGE. Buyer covenants that between the Effective Date and the Closing, Buyer shall take all such actions as may be necessary to assure that Buyer's representations and warranties set forth in Article 3 hereof will be true and complete as of the Closing Date (except such representations, warranties and matters which relate solely to an earlier date), and that all covenants of Buyer set forth in this Agreement which are required to be performed by it at or prior to the Closing shall have been performed at or prior to the Closing as provided in this Agreement. Buyer shall give Seller prompt written notice of any material change in any of the information contained in Buyer's representations and warranties made in Article 3 or elsewhere in this Agreement which occurs prior to the Closing Date. ARTICLE 8. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS All obligations of Buyer hereunder are subject to Seller's fulfillment of each of the following conditions at or prior to the Closing, and Seller shall exert its best efforts to cause each such condition to be fulfilled: 8.1. DELIVERY OF DOCUMENTS. Seller shall have delivered to Buyer at or prior to closing all documents required by the terms of this Agreement to be delivered to Buyer. 8.2. REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations, warranties and covenants of Seller contained herein or in any document delivered pursuant hereto shall be true and correct in all material respects when made and as of the Closing Date. Achum Park-&-Ride West Purchase and Sale Agreement Page 16 8.3. OBLIGATIONS. All obligations required by the terms of this Agreement to be performed by Seller at or before the Closing shall have been properly performed in all material respects. 8.4. TITLE. Any and all matters shown or referred to in the Title Commitment to which Buyer has objected within the time specified in Section 4 1, shall have been cured by Seller, unless Seller has notified Buyer that Seller will not cure, and Buyer has waived its objections. 8.5 APPROVAL OF COUNSEL. Seller's legal counsel shall have approved this document as to form as evidenced by such counsel's signature on this Agreement. 8.6. CONDEMNATION. No portion of the Purchased Assets shall have been taken or damaged by any public or quasi-public body, and Seller shall not have transferred any portion of the Purchased Assets to any such body in lieu of condemnation except with Buyer's written assent. 8.7 APPROVAL BY THE KING COUNTY COUNCIL. The Metropolitan King County Council shall have taken all legislative action necessary to authorize seller to enter into the transaction contemplated in this agreement. ARTICLE 9 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS All obligations of Seller to close on the Closing Date are subject to Buyer's fulfillment of each of the following conditions at or prior to the Closing, and Buyer shall exert its best efforts to cause each such condition to be so fulfilled: 9.1. REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations, warranties and covenants of Buyer contained herein or in any document delivered pursuant hereto shall be true and correct in all material respects when made and as of the Closing Date. 9.2. OBLIGATIONS. All obligations required by the terms of this Agreement to be performed by Buyer at or before the Closing shall have been properly performed in all material respects. 9.3. APPROVAL OF COUNSEL. Buyer's legal counsel shall have approved this document as to form as evidenced by such counsel's signature on this Agreement. 9.4. DELIVERY OF DOCUMENTS. Buyer shall have delivered to Seller at or prior to Closing all documents required by the terms of this Agreement to be delivered to Seller. 9.5. TITLE. Buyer shall have caused the Title Company to be committed to issue an owner's policy of title insurance for the full amount of the Purchase Price, effective as of the Closing Date, containing no exceptions other than the Permitted Exceptions and such other matters as Buyer may authorize in writing. Auburn Park-&-Ride West Purchase and Sale Agreement Page 17 9.6. APPROVAL BY THE AUBURN CITY COUNCIL. The Auburn City Council shall have taken all legislative action necessary to authorize Buyer to enter into the transaction contemplated in this Agreement. ARTICLE 10. CLOSING 10.1. CLOSING/CLOSING DATE. "Closing" means the consummation of the transaction contemplated in this Agreement. The Closing shall take place thirty (30) days after expiration or waiver of the Due Diligence Period, as defined in Section 4.1.2, or such other date as may be mutually agreed upon by the Parties, but not later than January 31, 2013, unless extended pursuant to a separate written agreement executed by Buyer and Seller. Upon execution of this Agreement, the Parties agree to set up an escrow account with First American Title Insurance Company (the "Escrow Agent"). The Escrow Agent shall serve as closing agent for the transaction contemplated herein and the Closing shall occur in the offices of Escrow Agent in Seattle, Washington. Subject to the Permitted Exceptions and the easements and restrictive covenants set forth in Exhibit B-2 attached hereto, all title,right of possession and interest to the Purchased Assets shall pass to Buyer upon Closing and thereafter the risk of loss thereof shall be the responsibility of Buyer. 10.2. PROBATIONS. All prorations, unless otherwise specifically provided for herein, shall be made as of the Closing Date. 10.2.1. Closing Costs. Seller shall pay the cost of one-half('/z) of the escrow fee charged by the Escrow Agent for the sale of the Purchased Assets to Buyer, one-half('/z) of any real estate excise or other transfer tax due on the sale of the Purchased Assets to Buyer, and all of its own attorneys' fees. Buyer shall pay one-half('/2) of the escrow fee charged by the Escrow Agent for the sale of the Purchased Assets to Buyer, one-half ('/z) of any real estate excise or other transfer tax due for the sale of the Purchased Assets to Buyer, the full cost of the preliminary and binding title commitments from the Title Company, the full cost of all recording fees, and all of its own attorneys' fees. Except as otherwise provided in this Section 10.2, all other expenses hereunder shall be paid by the Party incurring such expenses. 10.3. SELLER'S DELIVERY OF DOCUMENTS AT CLOSING. At the Closing, Seller will deliver to Buyer the following properly executed documents: (a) A Bargain and Sale Deed conveying the Property and substantially in the form of Exhibit B-1 attached hereto; (b) A Bill of Sale and Assignment duly executed by the Seller and substantially in the form of Exhibit C, attached hereto for the Personal Property, if any; and (c) Seller's Certificate of Non-Foreign status substantially in the form of Exhibit D,attached hereto. 10.4. BUYER'S DELIVERY OF DOCUMENTS AND PURCHASE PRICE AT CLOSING. At the Auburn Park-&-Ride West Purchase and Sale Agreement Page 18 Closing,Buyer will deliver to Seller the following properly executed documents: (a) Cash or immediately available funds in the full amount of the Purchase Price; and (b) A Public Transportation Easement and Restrictive Covenant substantially in the form of Exhibit B-2 attached hereto. ARTICLE 11. TERMINATION 11.1. TERMINATION BY EITHER PARTY. In addition to Buyer's right of termination during the Due Diligence Period, and in addition to termination for failure of any of the contingencies set forth in Sections 5.2, 5.3, and 5 4 of this Agreement, either Party may also terminate this Agreement effective upon written notice to the other Party if a condition to its obligation to consummate the transactions contemplated by this Agreement as set forth in Articles 8 and 9 has not been satisfied by the Closing Date. In that event, if neither Party is in default under this Agreement, the Parties shall have no further obligations or liabilities to one another,all documents and funds delivered into escrow shall be returned to the appropriate Party, and each Party shall bear its own costs and expenses up to and including the date of termination. ARTICLE 12. MISCELLANEOUS PROVISIONS 12.1. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Subject to amendment pursuant to Section 12.5 of this Agreement, each statement, representation, warranty, indemnity, covenant, and agreement made by Seller and Buyer in this Agreement or in any document, certificate or other instrument delivered by or on behalf of Seller or Buyer pursuant to this Agreement or in connection herewith shall be deemed a representation, warranty, indemnity, covenant and agreement between Seller and Buyer and shall survive the Closing Date unless a different time period is expressly provided for in this Agreement and all such statements are made only to and for the benefit of the Parties hereto, and their successors and assigns,and shall not create any rights in other persons or entities. 12.2. DEFAULT. In the event of default by either Party to this Agreement, the non-defaulting Party shall have the right to bring an action for specific performance or, in the alternative, actual damages, provided that any such cause of action shall be brought within twelve (12) months of the Effective Date, or be forever waived. The Parties shall have no right, claim,or cause of action for consequential damages or any other form or type of damages arising out of or relating to default under this Agreement, and each Party expressly and specifically waives any claim or cause of action for the same, whether at law or in equity 12.3. TIME IS OF THE ESSENCE. Time is of the essence in the performance of this Agreement. 12.4. NOTICES. Any and all notices or other communications required or permitted to Auburn Park-&-Ride West Purchase and Sale Agreement Page 19 be given under any of the provisions of this Agreement shall be in writing and shall be deemed to have been duly given upon receipt when personally delivered or sent by overnight courier; or three (3) days after deposit in the United States mail if by first class, certified or registered mail, return receipt requested. Notice may also be provided by email or other means of electronic transmittal, provided that receipt of the email or transmittal content can be confirmed by the sender, with time of receipt being the uniform time the e-mail or other transmittal enters the information processing system that the recipient has designated or uses for the purpose of receiving email or other form of transmittal. All notices shall be addressed to the Parties at the addresses set forth below or at such other addresses as any Parties may specify by notice to all other Parties and given as provided herein: If to Buyer- Office of the Mayor City of Auburn 25 West Main Street Auburn,WA 98001 With a copy to. Auburn City Attorney's Office City of Auburn 25 West Main Street Auburn,WA 98001 If to Seller- Manager's Office Transit Division King County Department of Transportation 201 S King Street Seattle WA 98104 With a copy to. Manager Real Estate Services Section 500 4`h Avenue,Room 830 Seattle, WA 98104 With a copy to Chief Civil Deputy King County Prosecuting Attorney's Office 5163 d Avenue,Room W400 Seattle, WA 98104 12.5. ENTDdE AGREEMENT AND AMENDMENT. This writing (including the Exhibits attached hereto) constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any prior agreement or understanding, whether written or oral. This Agreement may not be modified or amended except by a written agreement specifically referring to this Agreement and signed by all Parties hereto. Auburn Park-&-Ride West Purchase and Sale Agreement Page 20 12.6 SEVERABILITY In the event any portion of this Agreement shall be found to be invalid by any court of competent jurisdiction, then such holding shall not impact or affect the remaining provisions of this Agreement unless that court of competent jurisdiction rules that the principal purpose and intent of this contract should and/or must be defeated, invalidated or voided. 12,7 WAIVER. No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any prior or subsequent breach or default. 12.8 BINDING EFFECT. Subject to Sections 12.12 and 12.14 below,this Agreement shall be binding upon and inure to the benefit of each Party hereto, its successors and assigns. 12.9 LEGAL.RELATIONSHIP The Parties to this Agreement execute and implement this Agreement solely as Seller and Buyer. No partnership,joint venture or joint undertaking shall be established by or construed from this Agreement. This Agreement creates no right,privilege, duty, obligation,or cause of action in any person or entity not a party to it. 12.10 CAPTIONS. The captions of any articles, paragraphs or sections contained herein are for purposes of convenience only and are not intended to define or limit the contents of said articles,paragraphs or sections. 12.11 COOPERATION. Prior to and after Closing each Party shall cooperate, shall take such further action and shall execute and deliver further documents as may be reasonably requested by the other Party in order to carry out the provisions and purposes of this Agreement. 12.12 GOVERNING LAW; VENUE. This Agreement and all amendments thereof shall be governed by and construed in accordance with the laws of the State of Washington applicable to contracts made and to be performed therein, without giving effect to its conflicts of law provisions. The Superior Court of King County, Washington shall be the sole venue for any litigation between the Parties that arises under or relates to this Agreement or the transaction contemplated herein. 12.13 NON-MERGER. The terms and provisions of this Agreement will not merge in,but will survive,the closing of the transaction contemplated under this Agreement. 12.14 ASSIGNMENT. Buyer shall not assign this Agreement or any rights hereunder without Seller's prior written consent, which may be withheld or conditioned at Seller's sole and absolute discretion. 12.15 NEGOTIATION AND CONSTRUCTION. This Agreement and each of its terms and provisions are deemed to have been explicitly negotiated between the Parties, and the language in all parts of this Agreement will, in all cases,be construed according to its fair meaning and not strictly for or against either Party Both Parties acknowledge and represent, as an express term of this Agreement, that they have had the opportunity to obtain and utilize legal review of the Auburn Park-&-Ride Nest Purchase and Sale Agreement Page 21 terms and conditions outlined in this Agreement, although each Party must determine if they wish to obtain and pay for such legal review Each Party shall be and is separately responsible for payment of any legal services rendered on their behalf regarding legal review of this Agreement. TERMS AND CONDITIONS CONTINUE ON FOLLOWING PAGE Auburn Park-&-Ride West Purchase and Sale Agreement Page 22 12.16 EXHIBITS. The following Exhibits described herein and attached hereto are fully incorporated into this Agreement by this reference: Exhibit A Legal Description of Property Exhibit B-1 Bargain and Sale Deed Exhibit B-2 Public Transportation Easement and Restrictive Covenant Exhibit B-3 Illustration of Property Area served by Joint Use Facilites Exhibit C Bill of Sale and Assignment Exhibit D Certificate of Non-Foreign Status Exhibit E Illustration of Property Subdivision EXECUTED by the Parties as of the dates set forth below SELLER. Name: Steve Salver Title: Manager, Real Estate Services Section Date: APPROVED AS TO FORM: By DEPUTY PROSECUTING ATTORNEY BUY Name: Peter Lewis Title: Mayor City of Auburn Date: PiW C my APPROVED AS TO FORM: BY- DEP I"ITY ATTORNEY NOTARY BLOCKS APPEAR ON FOLLOWING PAGE Auburn Park-&-Ride West Purchase and Sale Agreement Page 23 STATE OF WASHINGTON 1 )} ss. COUNTY OF KING On this day personally appeared before me to me known to be the of KING COUNTY, the home rule charter county and political subdivision of the State of Washington that executed the foregoing instrument, and acknowledged such instrument to be the free and voluntary act and deed of such county, for the uses and purposes therein mentioned, and on oath stated that he was duly authorized to execute such instrument. GIVEN UNDER MY HAND AND OFFICIAL SEAL this day of 12012. Printed Name NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires STATE OF WASHINGTON 1 )} ss. COUNTY OF KING n l On this day personally appeared before me 10' f/ � ' S > to me known to be the yY,j a of the CITY OF AUBURN that executed the foregoing instrument, and acknowledged such Instrument to be [his/her] free and voluntary act and deed of said city for the uses and purposes therein mentioned, and on oath stated that [he/she] was duly authorized to execute such instrument. / GIVE Y HAND AND OFFICIAL SEAL this /O day of 12012. QP`;�pIREg q�O /i// Printed Name ���iG CrS Z&=2� Y 11 V0 /i NOTARV PUBLIC in and for the State of Washington, Ljj APR O LA; Z residing at Lk l, ,y J s w O 2 S My Commission Expires oa // �h4n��oo"�•e Ct � //�tgOttt STA-0' EXEMPT A. 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Bargain and Sale Deed AFTER RECORDING RETURN TO: Attn: BARGAIN AND SALE DEED Grantor-- King County, Washington Grantee—- City of Auburn Legal ---- Tax Acct.- The Grantor, KING COUNTY, a home rule charter county and political subdivision of the State of Washington, for and in consideration of ten dollars ($10.00) in hand paid and other consideration as set forth in that certain Real Estate Purchase and Sale Agreement dated and authorized by King County Ordinance No. does hereby bargain, sell and convey unto the Grantee,the CITY OF AUBURN, a municipal corporation of the State of Washington, the following described real estate situate in King County, Washington, and the Grantee hereby accepts the same: Legal Description: SUBJECT TO all rights, conditions, covenants, obligations, limitations and reservations of record for said real estate. Executed by King County this day of. ,20 GRANTOR GRANTEE KING COUNTY CITY OF AU -J. BY BY Page 1 of 3 Auburn Park and Ride Lot"A Bargain&Sale Deed/page 2 of 3 TITLE TITLE Date ACKNOWLEDGEMENTS APPEAR ON,PAGE 3 Auburn Park and Ride Lot"A" Bargain&Sale Deed/page 3 of 3 NOTARY BLOCK FOR KING COUNTY STATE OF WASHINGTON �SS COUNTY OF KING ) I certify that Stephen L. Salyer signed this instrument, on oath stated that he was authorized by the King County Executive to execute the instrument, and acknowledged it as the Manager of Real Estate Services Section of King County,Washington to be the free and voluntary act of said County for the uses and purposes mentioned in the instrument. Dated NAME NOTARY PUBLIC in and for the State ofWashington Washington, residing at 20 My appointment expires — NOTARY BLOCK FOR CITY OF AUBURN STATE OF WASHINGTON �SS COUNTY OF KING /� ) 6 �e``J s signed this instrument, on oath stated that she I certify that or he was authorized by 64 A l°a - I to execute the instrument, and acknowledged it as the J A 5 _ of the City of Auburn, Washington, to be nu the free and voluntary act of{said 'City for the uses and purposes mentioned in the instrument. Dated ``gyp. M Z � NAME 4 wi-i/(rte C�c� ;F LLj=o 'r ' �� � m NOTARY PUBLIC in and for the State of U�ii oti , �N' Washington, residing at n u0 Washington o v ^°J _= My appointment expires /OAS- 20-ZL- ghv'fb0�,,,S-TI" � F,NiHBIT B-2. Public Transportation Easement and Restrictive Covenant RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO' Document Title: Public Transportation Easement and Restrictive Covenant Grantor(s): City of Auburn Grantee: King County Abbreviated Legal Description. Lots A and B of BLA# Additional Legal Description is on Page: Exhibits"A' and`B" Assessor's Tax Parcel Number(s): THIS PUBLIC TRANSPORTATION EASEMENT AND RESTRICTIVE COVENANT is granted by THE CITY OF AUBURN, a municipal corporation and noncharter code city with a council-mayor form of government organized pursuant to RCW Title 35A ("Grantor") to KING COUNTY, a home rule charter county and political subdivision of the State of Washington ("Grantee"). Grantor and Grantee are sometimes referred to herein individually as a"Party"and collectively as the"Parties." PUBLIC TRANSPORTATION EASEMENT AND RESTRICTIVE COVENANT WHEREAS, Grantee is a home rule charter county and a political subdivision of the State of Washington; and WHEREAS, Grantee for decades has owned, operated and maintained a public transportation and mass transit facility known as the Auburn Park-and-Ride Lot, with a street address of 101 15th St NE,Auburn,Washington(the"P&R Lot"); and WHEREAS, in connection with the P&R Lot, and in furtherance of Grantee's mass transit system, safety and efficiency considerations require that Grantee's buses and other vehicles must enter and exit the P&R Lot from "A" Street NE, and be provided sufficient physical space and turning radius within the P&R Lot to safely maneuver around and Page 1 Public Transportation Easement Auburn Park-and-Ride Lot A of BLA# between vehicles parked there in order to enter and exit the P&R Lot from "A Street NE, and WHEREAS, the P&R Lot operates twenty-four hours a day, seven days a week, and as such requires sufficient and adequate lighting for public safety as well as safe operation of Grantee s buses and other vehicles; and WHEREAS, in 2012, for Grantor's own purposes and uses, and with Grantees permission, Grantor subdivided the P&R Lot into two (2) parcels pursuant to that certain boundary line adjustment illustrated in Exhibit C attached hereto; and WHEREAS, Grantee retains title one parcel, which is the reconfigured P&R Lot ("Lot B"), and Grantor has acquired the other parcel ("Lot A") for its own separate purposes and uses; and WHEREAS, Grantor acknowledges that over many years Grantee made significant investments in improvements to Lots A and B for benefit of the P&R Lot, and that Grantee's historical and continuing use of Lot B and a portion of Lot A for public transportation and mass transit purposes are dependent on those mprovements continuing to function in a good and reliable condition; and WHEREAS, as a condition of the larger real estate transaction between Grantor and Grantee, and in further consideration of the promises, covenants, conditions and restrictions set forth herein, Grantee requires an easement over a portion of Lot A so that the Grantee's buses and other vehicles may continue to access, enter, and exit Lot A from A" Street NE and to safely maneuver upon Lot A, and so that Grantee may continue to use, maintain, repair replace and upgrade lighting on a portion of Lot A in connection with Grantee's public transportation and mass transit access there, and Grantor is willing to grant the same; and WHEREAS, as a condition of the larger real estate transaction between Grantor and Grantee, and in further consideration of the promises, covenants, conditions and restrictions set forth herein, Grantee requires that Grantor restrict and Grantor is willing to so restrict Grantors use of a portion of Lot A to those uses and purposes that are compatible with Grantee s continued use of and reliance on bus and other vehicular access to and from A" Street NE and over across, and through Lot A for its public transportation and mass transit activities on and in connection with the P&R Lot; and WHEREAS stormwater and surface water from a portion of the P & R Lot is collected in the existing storm drains on Lots A and B and is discharged from those drains into the existing retention/detention pond on Lot B, which pond discharges into Grantee's existing conveyance line that runs northerly over Grantor's separate property identified as tax parcel No. 000080-0011, which conveyance line is authorized under that certain easement recorded at King County Recording No. 7608310816, all as shown in that certain plan set numbered I 1 1 189 and dated February 10, 1978, as modified by pages C301 2 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# through C304 of that certain Contract No. C75134C, dated July 1997 (File Nos. E80, E81, E82),copies of which documents are on file with Grantor and Grantee; and WHEREAS, as a condition of the larger real estate transaction between Grantor and Grantee, and in further consideration of the promises,. covenants, conditions and restrictions set forth herein, Grantee requires an additional easement over a portion of Lot A so that Grantee may continue to use the existing drainage system improvements to drain stormwater and surface water from the P & R Lot as now or hereafter configured, and Grantor is willing to grant the same; NOW, THEREFORE, as partial consideration for the overall real property transaction of which this Easement and Restrictive Covenant is an element, and in further consideration of the mutual covenants, conditions, restrictions, and agreements hereinafter set forth, the sufficiency and adequacy of which is hereby acknowledged, Grantor and Grantee hereby agree as follows: 1. EASEMENT A. Defined Terms. In addition to the terms defined in the Recitals above, which Recitals are hereby incorporated as if fully set forth herein, and in addition to such other terms as may be defined in the body of this document: 1. The physical portion of Lot A legally described in Exhibit A is the "Easement Area." Lot A is described in Exhibit B-1. 2. Lot B together with Grantee's easement rights in that portion of Lot A described in Exhibit B-2 are the"Benefitted Property" 3 This Public Transportation Access Easement and Restrictive Covenant is the"Easement." 4 "Lighting Improvements" means public transportation-related improvements on the P&R Lot situated within twenty (20) feet of the southern most boundary line of Lot A, including, but not limited to, overhead lights, light poles, footings, foundations, underground and overhead wires, utility ducts, vaults, manholes, access hatches, vents, meters, monitoring equipment, cabinets, containers, conduits, wires, and other necessary and convenient equipment and appurtenances , including, but not limited to, all lighting and other improvements and equipment servicing said lighting as shown in that certain plan set numbered 111189 and dated February 10, 1978, as modified by pages E101 through E103 of that certain Contract No. C65046C, dated October 1996, and as further modified by pages C301 through C304 of that certain Contract No. C75134C, dated July 1997 (File Nos. E80, E81, E82), copies of which documents are on file with Grantor and Grantee(hereinafter the"Plans"). 3 10121/12 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# 5 "Purchase and Sale Agreement" means that certain purchase and sale agreement executed by King County and the City of Auburn regarding Lot A as authorized by King County ordinance no. and City of Auburn ordinance no. B Grant of Easement Rights. Grantor hereby grants and conveys, confirms, and re- affinns to Grantee,the following perpetual easement rights in Lot A. 1. A permanent access easement in, on, over, across, and through the Easement Area for Grantee's continued public transportation and mass transit purposes in connection with the use and operation of the P&R Lot as now configured or hereafter modified, as more fully described in Paragraph 3 of this Section I.B. When on Lot A, Grantee's buses and other public transportation or mass transit vehicles shall have right of way over all other vehicles in the Easement Area. All other vehicles shall yield to Grantee's buses and other public transportation or mass transit vehicles when Grantee's vehicles are in motion. Grantee may paint, stripe, signalize, or otherwise improve the Easement Area to ensure that Grantee's buses and other public transportation or mass transit vehicles may freely enter and exit Lot A. PROVIDED, that nothing in this Section I.B.1 shall operate to relieve the drivers of Grantee's vehicles from the duty to drive with due regard for the safety of all persons on Lot A. 2. A permanent, non-exclusive construction easement through Lot A for ingress and egress to and from Lot A for personnel,vehicles and equipment as reasonably necessary or incidental to Grantee's maintenance, repair and replacement of the Lighting Improvements, all as more fully described in Paragraph 3 of this Section I.B. 3 Subject to the farther terms and conditions of this Easement, Grantee shall have the right to use the Easement Area for all purposes necessary or incidental to public transportation or mass transit vehicle access over, ingress to, and egress from Lot A via "A" Street NE, including but not limited to Grantee's use, operation, maintenance, inspection, repair, replacement, of all or any paving, pavement marking, traffic signals or controls, curbs, curb cuts, gutters, sidewalks, crosswalks, pedestrian access routes, walkways, railings, or fences within Easement Area as Grantee may now or hereafter deem appropriate, including the removal or replacement of same, either in whole or in part with like size improvements or facilities. These improvements, together with the Lighting Improvements, are referred to herein as the"Transportation Improvements." 4 The following easement rights related to stornwater and surface water drainage improvements on Lot A. (a) A permanent stormwater and surface water drainage easement in, on, over, under, across, and through Lot A for Grantee's use and 4 10/11/12 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# operation of the existing stormwater and surface water drainage system as shown in the Plans or hereafter modified; (b) A permanent, non-exclusive construction easement twenty (20) feet wide, centered on the alignment of the existing drainage system improvements, as shown in the Plans,together with a right of access in, on and through Lot A for ingress and egress to and from the Lot A for personnel, vehicles and equipment as reasonably necessary or incidental to Grantee's installation, construction, maintenance, repair and replacement of drainage system improvements. (c) Subject to the further terms and conditions of this Easement, Grantee shall have the right to use this easement for all purposes necessary or incidental to the drainage of stormwater and surface water from the Benefitted Property, including but not limited to Grantee's use, operation, maintenance, inspection, repair, replacement, reconstruction, and removal of all or any drainage- related Easement Improvements as Grantee may now or hereafter deem appropriate, including the addition, removal or replacement of same at Grantee's election, either in whole or in part with either like or different size improvements or facilities, and the installation of additional improvements, utilities and other facilities and equipment within the construction easement area. 5. Collectively, the easement improvements described in this Section I.B are referred to herein as the"Easement Improvements." C. Benefit of Easement.This Easement is appurtenant to and for the benefit of the Benefrtted Property and all other land, real property or property interests now owned or hereafter acquired by Grantee and that constitutes a portion of or is served by the Easement Improvements or Grantee's public transportation and mass transit system as now configured or hereafter modified. D Ownership of Easement Improvements. The Parties agree that the Easement Improvements on Lot A are owned by and belong to Grantor, including without limitation the Lighting Improvements. The Parties agree that any and all other Easement Improvements or future improvements or betterments to the Easement Improvements on Lot A, including but not limited to paving, curbs and gutters, fences, barriers, landscaping, shelters, cabinets, pipes or conduits, related structures, materials, facilities, mechanical and electrical systems, utilities, equipment, furnishings or improvements or betterments of any kind that are now or hereafter acquired, constructed or installed within the Easement Area for public transportation or mass transit purposes shall upon substantial completion become, and shall thereafter at all tunes remain, the property of Grantor. For purposes of this Easement the term"substantial completion"means: 10121112 5 Public Transportation Easement Auburn Park-and-Ride Lot A"ofBLA# 1. Grantee has full and unrestricted use and benefit of the subject work for the purpose intended; 2. All the systems and parts of the subject work are functional; 3. Utilities are connected and operate normally; 4 Only minor incidental work or correction or repair remains to complete the subject work; and 5. To the extent applicable, all occupancy permits, inspection permits, and temporary construction easement releases have been provided. E. Duty to Maintain Easement Improvements On Lot A. 1. Grantor covenants to maintain, repair, and replace the Easement Improvements in their existing locations so as to provide at least the level, extent, and quality of function specified in the Plans. (a) Grantor further covenants that within the Easement Area as defined in Exhibit B-2 attached hereto, Grantor shall preserve lighting equal to or better than that which exists on the Easement Area as of the Closing Date as defined in the Purchase and Sale Agreement("Closing Date"). (b) Grantor covenants to erect, at its sole expense, a security chain-link fence on the boundary between Lot A and Grantee's P&R Lot within thirty (30) days of the date of closing. Provided,that Grantor's security fence shall not interfere with Grantee's right of ingress and egress under this Easement. (c) Grantor covenants to disconnect froin Grantee's electrical service, according to law and at Grantor's sole expense, power to all the light poles that are located north of the south boundary line of Lot A (not including those that are located on the south boundary line) within ninety (90) days of the Closing Date. (d) Grantor covenants to disconnect from the irrigation system that serves the P&R Lot the portion of the irrigation system that serves that landscaping located completely within Lot A. Grantor shall complete this work within ninety (90) days of the Closing Date. Grantor further covenants to maintain an operational irrigation system to serve the landscaping that is located completely within Lot A. (e) Grantor shall undertake and fulfill the duties imposed under this Section I.EA at Grantor's sole cost and expense; and such cost and expense shall never become a lien on or against the Benefitted Property or otherwise become Grantee's liability or obligation. 6 10121112 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# 2. Grantor covenants that except as set forth in Section I.E.1, the existing Easement hnprovements shall not be changed, modified, or relocated except with Grantee's prior written approval, which approval may be withheld in Grantee's sole and absolute discretion. Grantor further covenants that so long as this Easement is in effect, the Lighting Improvements shall never be relocated, altered, modified, or changed in any manner that would reduce the level, extent,or quality of lighting below that which is specified in the Plans. 3 Notwithstanding Paragraphs 1 and 2 of this Section LE, if the Federal Aviation Administration("FAA")or its successor requires Grantor to change the existing Lighting Improvements then the Parties shall negotiate as to how Grantor may accommodate such requirement while meeting the standard set forth in Section I.E.1, and such negotiation shall be subject to dispute resolution under Section III.13 of this Agreement. F Grantee's Discretionary Right to Maintain Lighting Improvements. 1. Grantor and Grantee agree that the Lighting Improvements are critical to the safe and efficient operation of Grantee's public transportation system and mass transit activities upon the P&R Lot and the Easement Area. Grantor understands,acknowledges,and agrees that the Lighting Improvements must be maintained to meet the standard set forth in Section I.E at all times, and that any needed repairs or replacements shall be treated as a matter of public safety and shall be afforded the highest priority To that end, Grantor covenants that Grantee shall have the right,but not the duty, to maintain, repair, or replace the Lighting Improvements pursuant to this Section I.F 2. If Grantee, in its reasonable discretion, believes that Grantor has not met its duty to maintain the Lighting Improvements to the standard in Section I.E, then Grantee may notify Grantor of the work needed and the proposed maintenance, repair, or replacement (collectively, the "Work") in sufficient detail that Grantor could estimate the cost of the labor and materials needed to complete the Work. If within seventy-two hours Grantor has not either (a) initiated the work or provided Grantee a written proposal of equivalent maintenance, repair, or replacement, which Grantee may at its sole discretion approve or deny, or(b) completed the work, or approved equivalent, then Grantee may undertake such maintenance, repair, or replacement. PROVIDED, that Grantee shall make a good faith effort to provide Grantor with twenty-four (24) hours advance written notice of intent to perform the Work. Such notices may be by telephone, fax, email with confirmation of delivery, or any means specified in Section III.E of this Easement. 3 If Grantee performs the Work, it shall invoice Grantor for all fees, costs, and expenses associated with the Work, including but not limited to the cost of 1=1112 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# Grantee's staff time to prepare Grantee's Notice and to develop and implement any procurement, plans, permitting, or project documentation necessary for the Work (collectively, the "Work Costs"). Grantor shall pay the Work Costs to Grantee within forty-five (45) days of receipt of Grantee's invoice. Grantee shall add a late fee of five percent (5%) to any Work Costs invoice not timely paid. If any Work Costs invoice remains outstanding ninety (90) days after receipt, Grantee may send it to collections. G. Grantees Discretionary Right to Maintain Other Easement Improvements. 1. Subject to the notice requirements set forth in this Section I.G, Grantor covenants that Grantee shall have the right, but not the obligation, to maintain, repair, or replace all Easement Improvements on or in the Easement Area. This Section I.G does not apply to the Lighting Improvements,which are addressed in Section 1.17 2. If Grantee believes that the Easement Improvements require substantial repair, maintenance, or replacement, then Grantee shall notify Grantor in writing consistent with Section ULE of this Easement ("Grantee's Notice"). Grantee's Notice shall specify the work needed in sufficient detail for Grantor to determine whether the proposed work is acceptable. Grantee need not provide advance written notice of minor or ordinary repair or maintenance work, and may, perform such work in Grantee's sole discretion. 3 Grantor shall respond to Grantee's Notice within thirty(30) days. Grantor's response shall state whether the proposed work and schedule is acceptable to Grantor. If the work or schedule is not acceptable to Grantor then the Parties shall engage in dispute resolution under Section III.B of this Easement. H. Emergency Work. In addition to Grantee's discretionary right to maintain,repair, or replace the Easement Improvements under Sections I.F and I.G of this Easement, Grantee shall also have the discretionary right, but not the duty, to perform emergency maintenance, repair, or replacement of the Easement Improvements. Grantee shall make a good faith effort to provide Grantor with twenty-four (24) hours advance written notice of such emergency work. Such notice may be by fax, email with confirmation of delivery, or any means specified in Section III.E of this Easement. To the extent feasible under the circumstances, Grantee's notice under this Section I.H shall describe the emergency and the proposed maintenance,repair, or replacement in detail. Grantee's emergency repairs to Easement Improvements on the Easement Area shall not be subject to dispute resolution under Section III.B. I. Grantee's Discretionary Right to Propose Upgrades to Easement Improvements. $ 1021112 zMzrm 6 U!io alogM ui `iapunaiagl sailuud Oql jo suoiltSilgo put sollnP `sll2ii paltiai IIt put `3oaiagl uoiluod Iuunaiai agI io Iuawastg siyl uodnaiayM `IUamastg siy13O astajai io OOUtFanuoow Itiliud io lln3 t pi000i put olnooxa `uoilaiosip alnjosgt put Ojos sli It fuw aalutiiD juouiuoputgt 3o ooilou t 21ip10001 01 u0111PPt ul Z -luounuopuuqu juSol alnlilsuoo of pawaap oq io opgpsuoo Iou Iltls Iuawastg sigl ui palutiS sjg2u 3q1 io `sluawanoiduq luawasug aqI `13axv luawasug oqj jo osnsip io asnuou NOW 'luoumopuuqu yans to aailou ualliiM ssaidxo ut Suipioow 6q Xluo Inq 3oazayl uopiod Xuu io IuaulOsug siyl uopu13gt Alluoutuuod `uoilaiosip alnjosqu put Ojos sli of `auyl 4uu le ,itui 03luui0 I •luamaseg;o;uamuoputgd s4aaluta0 x •JIioM Bons 3o IuQLu0Ouaunuo0 0111113 Palsixa goigM ItII Sullumixoiddu Alquuostai uoilipu0O 13 of 13aud Iuamas13g 3111 3O uoiliod paganlsip ,Cut 3o 00133 ins agl azolsai puu sugop,Am OAOmai Iltys OalutiD JIuoM gons 3o uoiloldwoo uodn uayl `luawasug siyl 3O I'I l2nougl 3I suoijOOS Ol luunsmd sluaucanoiduil luawasug AM 3o apui2 ma dn io `;uouuOjjoq `juaoBldoi `n13dai `aoutualuitm luu soNEliapun aaluti0 ianauOgM 'ua V ;uatuasua ;o uolluio;sag s,aaluta0 f •suoiltin2oi puu saliu j9lu3unuan02 iaylo put sapOO SuiPjinq`sMtj olquoilddu Saylo glint soildwoa Aj!AIIOt 10 J JOM `uoilanulsuoO s,a3luui0 iaglagM iou suoiluOilioods put suuld s,aajuuii� ;o Somiog;ns .io Aounbopu aqI 3o uoiltogi JQO t su panilsuoo aq uo alnlilsuoO luana ou ui llugs puu ioluu-TO of polliuilns suoquoigioods puu sutld oql uo uMogs uoilun13ox0 io/pu13 sa1111 iOu3 aql Ol Poliuiil ,Agaiils oq llugs D-1 uoilaaS sigl iapun suoiltogioods put suuld s,aalutii�3o Itnoidd13 put Mainai s,iolu13iJ £ •luamastg siy13O g'III uoilaaS of lutnsind uoilnlosoi alndsiP aNuliopun I11311s sailiud aqI uagl opm2dn io Iuauuolloq pasodozd s,aaluti0 anouddt Iou saoP 'OlubJD 3I 'luauzastg sigl Aq pauuOA02 oq Iitys opui2dn :io luouuallaq gons of su suoilu2jlgo puu sailnp `sllSii aniloadsai ,sailiud Oq1 iaguaiagl puu `luawasug sigl 3O Q I uoilaaS ul paw3ap su uoil3ldwoo juilutlsgns uodn fpodoid s,ioluwD aw000q llugs opmBdn uo luauivallaq agl Pu13 `1i T IMI JO lanulsuoo Atui aalu13i0 uogl apuuSdn io juouuallaq pasodozd s,aaluuu0 SOAOidd13 ioluti0 3I Z j13AOiddt sIi Ctlap xo `uoilipuoo `plogglim Ajquuostauun lou hugs ioluui0 puu `Itnoiddu puu Mainau io3 TOIuLJD of I13sodoid s,aaluu-D Suillnugns Isu3 Inoglim sluamanoidwl luawasug aql 3o optiSdn io luauualloq yans fut aJjtliopun Iou llugs oolong IBM `QgQIAO-dd `osuadxo umo sli lu sopwBdn io sluauuallaq yans iltlsui put IOnulsuOO OT pu13 `tazy luawasug agl uo sluawanoiduq luawasug ayl of sopmgdn io sluauuallaq osodoid of `Ainp io uoilu2ijgo all jou lnq `1lSii all oA13g ljuls 03lu13i0 `I uoilaaS siyl 3O H puu `D `g g sgd13iS13iud uapun slgSiu s,39lut10 01 uoillPPu ul I #d783o.ld 107 opl-a-puu-died wngny luomoseg uogeliodsuezy oilgnd Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# part, shall automatically terminate. Such reconveyance shall be in the form of a quitclaim deed unilaterally executed by Grantee. 3 Grantee's actions under this Section I.K are not subject to dispute resolution under Section III.B. L. Grantee to Comply with Applicable FAA Safety Requirements. Grantee covenants that in exercising its rights and privileges as to the Easement Improvements on the Easement Area, Grantee shall comply with applicable FAA safety requirements, including but not limited to vertical height restrictions, horizontal setbacks or clearance requirements, and mandatory fencing, signage, marking,or lighting limitations or requirements, including, to the extent applicable, that certain clear zone (avigation) easement recorded at King County Recording No. 6696709 II RESTRICTIVE COVENANTS A. Grant of Restrictive Covenant. Grantor hereby grants and conveys, confirms, and re-affirms to Grantee, the following perpetual restrictive covenants in the Lot A. I Grantor covenants that it shall use Lot A for no purpose that will impede, interfere with, obstruct or endanger Grantee's easement rights under Article I of this Easement. 2. Grantor covenants that Lot A shall not be subdivided, developed, demolished, redeveloped, reconfigured, modified, used, cleared or graded, or otherwise altered or improved in any manner that would interfere with Grantee's easement rights under Article I of this Easement, or be inconsistent with the purpose and intent of this Easement. 3 Grantor covenants that Grantee's buses and other public transportation or mass transit vehicles shall not be required to stop at, and shall have free passage through, over, under, around, and across any fencing, gate, guardhouse, checkpoint, chicane, or any other security feature that may be erected on, about, or in connection with Lot A. PROVIDED, that this Section II.A.3 shall not apply- In case of a specific, documented, credible threat to any facility or enterprise that may constructed or operated on Lot A, or if the Governor of the State of Washington declares a state of emergency or martial law; or as may be required by Federal law pertaining to national security 4 Grantor shall not convey fee title to, or any lesser interest or privilege in, Lot A or any portion of it, except by instrument expressly referencing this Easement by its title ("Public Transportation Easement and Restrictive Covenant") and recording number. 10 100112 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# 5 Grantor shall hold harmless, indemnify, and defend Grantee from any and all cost, liability, claims, judgments, administrative actions, litigation, or other obligations arising out of or relating to the discharge of pollutants or Hazardous Substances (as defined in Section 3 1.9 of the Purchase and Sale Agreement) in any stormwater, surface water, runoff, or any other form of discharge or release from Lot A into any of the stormwater facilities that serve the P&R Lot. 6. Beginning eighteen (18) months after the Closing Date, and each calendar year thereafter for so long as Grantor owns Lot A, upon Grantee's written demand Grantor shall pay to Grantee a share of Grantee's annualized cost to maintain those certain stormwater facilities that serve both the P&R Lot and a portion of Lot A(the"Joint Use Facilities"). Grantor's share of Grantee's annualized cost shall be determined by multiplying Grantee's annualized cost to maintain the Joint Use Facilities by a fraction, the numerator of which is the square footage of the Lot A area served by the Joint Use Facilities, and the denominator of which is that same Lot A area plus the square footage of the P&R Lot area served by the Joint Use Facilities. 7 If the Lot A area served by the Joint Use Facilities, which area is shown in Exhibit D, is ever redeveloped or improved for any purpose other than a vehicle parking lot, then before commencing construction of such redevelopment or improvement Grantor or Grantor's successor, assign, or designee shall disconnect Lot A's stormwater or surface water system from the Joint Use Facilities. The Parties agree that Exhibit D shall not be recorded but shall remain on file with the Parties. S. If Grantee ever redevelops the P&R Lot, then the City of Auburn shall limit its drainage review and approval (if any) to those surface water or storm water impacts arising out of or related to drainage from the P&R Lot, and without reference to or consideration of any surface water or stormwater discharge from Lot A. B. Run with the Land. Grantor agrees that the benefit of these restrictive covenants runs with the land and real property interests that make up the Benefitted Property and with Grantee's estate in the Benefitted Property Grantor agrees that the burden of these restrictive covenants runs with the land that makes up Lot A and with Grantor's estate in Lot A. The Parties agree that these restrictive covenants shall be binding upon and inure to their respective successors and assigns. C. Touch and Concern. The Parties agree that the benefits of these restrictive covenants touch and concern Grantee's The title in Lot B and Grantee's easement in Lot A, in that they perpetuate the existing public transportation and mass transit regime on the Benefitted Property and ensure Grantee's ability to continue to use 11 10/21112 Public Transportation Easement Auburn Park-and-Ride Lot"A of BLA# the Benefitted Property for public transportation and mass transit purposes. The Parties agree that the burdens of these restrictive covenants touch and concern Grantor's fee title in Lot A, in that they limit the uses to which Lot A may be put and the acts that may be done there. D. Dispute Resolution. Any disputes between the Parties regarding these restrictive covenants shalt be subject to the dispute resolution process set forth in Section III.B. E. Equitable Relief. The Parties agree that if dispute resolution is not successful in resolving a dispute regarding these restrictive covenants,then either Party may seek any remedy at law or equity, including but not limited to temporary restraining orders or other forms of injunctive relief. F Termination of Covenants II A 5-S Upon Further Property Transaction. The covenants in paragraphs numbered 5, 6, 7, and 8 of this Section ILA shall terminate and thereafter shall be of no further force or effect beginning upon such date as the King County Recorder's Office may record a deed from King County to the City of Auburn conveying the real property on which is located the stormwater retention/detention pond serving the P&R Lot and Lot A. III. GENERAL TERMS AND CONDITIONS A. Grantor's Use of Property 1 Subject to Articles I and II of this Easement, Grantor reserves the right to use Lot A and/or to grant other easement, license or use rights to Lot A for any purpose not inconsistent with the rights herein granted to Grantee so long as such use or use rights do not interfere with, obstruct or endanger either or both of the following: a. Grantee's use of the Benefitted Property for public transportation and mass transit access, ingress, and egress purposes; or b. The maintenance, repair, replacement, improvement, or betterment of any Easement Improvements now or hereafter constructed, installed, used, operated or maintained in the Easement Area pursuant to this Easement. 2. Prior to any activity by Grantor in the Easement Area that extends to within ten (10) feet of any of Easement Improvements contained therein or which changes the compression loads on or to the lateral support for any such Easement Improvements, Grantor shall notify Grantee in writing and shall provide Grantee with a copy of all plans and specifications for such proposed activity for review at least forty-five (45) days prior to the commencement of such activity Grantor shall not commence such activity 12 IW1112 Public Transportation Easement Auburn Park-and-Ride Lot A"of BLA# unless and until it has received Grantee's prior written consent that the Grantor's proposed construction, work or activity will not interfere with the Grantee's rights under this Easement, which Grantee hereby confirms will not be unreasonably withheld. 3 Grantee's review and approval of Grantor's plans and specifications shall be strictly limited to the facilities and/or excavation shown on the plans and specifications submitted to Grantee and shall in no event constitute or be construed as a certification of the adequacy or sufficiency of Grantor's plans and specifications nor whether Grantor's construction, work or activity complies with other applicable laws, building codes and other governmental rules and regulations. B. Dispute Resolution. Except as otherwise specified in this Easement, and subject to Paragraph 6 of this Section III.B, all disputes arising under or related to this Easement shall be subject to the following dispute resolution process: 1. Grantor and Grantee shall each within ten (10) business days, designate a senior officer or director to meet to attempt to resolve the dispute ("Management Escalation"). The designated individuals shall meet within twenty (20) business days after their designation. Any dispute resolved through the Management Escalation process shall be documented by appropriate written documentation executed by all participating parties. 2. If Management Escalation fails to resolve the dispute, then mediation may be requested by either Party, and shall be attempted prior to any litigation arising under or related to this Easement. Within ten (10) days of a mediation request, each Party shall designate, in writing, not more than three (3) candidates to act as a non-binding mediator. Candidates shall be proposed from Judicial Arbitration and Mediation Services (JAMS) or Judicial Dispute Resolution (JDR) or their successors, or shall be a neutral, independent and recognized expert in the field in which the dispute arises. If the Parties cannot agree on one of the mediators from the combined list within five(5)days of exchanging lists,then the Parties shall promptly meet and select a mediator by blind draw from a pool consisting of all six candidates selected by the Parties. 3. Upon selection of the mediator, the Parties shall within thirty (30) days, or as soon thereafter as practicable, meet and engage in a mediation of the dispute with the assistance of the mediator. Each Party shall be responsible for its own costs and expenses, including attorneys' fees, incurred pursuant to this section. Costs of the mediator and other common costs shall be divided equally between the Parties. The mediator shall determine reasonable procedures. 13 1001112 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA h 4 The Parties agree that if they are unable to resolve their dispute through Management Escalation or mediation, and for all matters not subject to dispute resolution, King County Superior Court shall have the authority to decide the dispute. Jurisdiction shall lie with the King County Superior Court and venue shall be King County Superior Court in Kent,Washington, unless the King County Superior Court local rules would place venue in Seattle,Washington, in which case venue shall be in Seattle,Washington. 5. The dispute resolution procedures shall not prejudice the Parties' legal or equitable rights. At the request of either party,the Parties shall enter into an agreement to toll the statute of limitations with respect to the subject matter of a dispute while the Parties pursue the dispute resolution process set forth in this Section III.B. Positions expressed, responses given, and information submitted in any dispute resolution process under this Section III.B shall not be admissible as evidence in any subsequent dispute resolution, litigation, or other legal proceeding. 6. If a Party reasonably determines that circumstances require immediate action to prevent or mitigate significant damage to or loss of the Benefitted Property, the Easement Area, or the Easement Improvements, or that delay in initiating or prosecuting a claim in litigation would irrevocably prejudice that Party, then after giving the other Party notice of the dispute the affected Party may immediately pursue any remedy available at law or in equity without following the dispute resolution procedures in this Section III.B. C. Insurance. 1. The Parties shall each maintain commercially reasonable insurance to protect their respective interests. This insurance requirement may be met through a program of self-insurance or participation in a risk-sharing pool. Each Party shall provide written proof of commercially reasonable insurance upon demand of the other Party 2. The Parties shall require their contractors and subcontractors of all tiers to name each of the Parties as additional insured on any insurance policy that may apply to any work performed on the Easement Area. The Patties may each request certificates of insurance or copies of insurance policies from any contractors and subcontractors of all tiers that perform work on the Easement Area. 14 ,M,1,2 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# 3. The insurance-related obligations contained in this Section III.0 shall survive the expiration, abandonment or termination of this Easement and the easement rights and restrictive covenants granted hereunder. D Indemnification. 1 Grantor and Grantee each agrees for itself, its successors, and assigns to protect, defend, indemnify and hold harmless the other, and the other's appointed and elected officials and employees from and against liability for all claims, demands, suits, and judgments, including costs of defense thereof, for injury to persons, death or property damage (collectively, "Claims") caused by or arising out of the Grantor's or Grantee's own acts or omissions, respectively, and those of their respective agents, employees or contractors within or about the Easement Area or that is otherwise caused by or arises out of their exercise of the rights and privileges respectively granted by or reserved under this Easement, including without limitation liability from the products contained in, transferred through, released or escaped from their respective improvements or otherwise introduced by Grantor or Grantee, respectively, or their respective agents, employees or contractors within or about the Easement Area. The Parties' obligations under this Section 111.13 shall include: a. Indemnification for such Claims whether or not they arise from the Parties' own acts or omissions,the concurrent negligence of both Parties or a third party, or the acts or omissions of the Parties' own contractors, subcontractors, or the acts or omissions of one or more third parties under the direction or control of Grantor or Grantee, respectively; b. The duty to promptly accept tender of defense and provide defense to the indemnified Party at the indemnifying Party's own expense; c. Indemnification of Claims made by the Parties' own employees or agents; d. Waiver of immunity under the industrial insurance provisions of Title 51 RCW, but only to the extent necessary for Grantor and Grantee to indemnify each other against Claims subject to Title 51 RCW, which waiver has been mutually negotiated by the Parties; and e. Indemnification for Claims that are submitted by the indemnified Party's contractor or subcontractors and arise from the indemnifying Party's improvements within or about the Easement Area. 2. Notwithstanding Paragraph I of this Section III.D, Grantee shall have no 15 1M1112 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# obligation under this Section III.D to indemnify and hold harmless Grantor for Claims arising from the sole negligence or willful misconduct of Grantor, its appointed and elected officials and employees; and Grantor shall have no obligation under this Section III.D to indemnify and hold harmless Grantee for Claims arising from the sole negligence or willful misconduct of Grantee, its appointed and elected officials and employees. 3 Grantor and Grantee agree that if a court of competent jurisdiction determines that RCW 4.24.115 applies to this Easement, or to any Claim arising hereunder, then Grantor and Grantee shall each defend, hold harmless and indemnify the other to the maximum extent permitted thereunder, and specifically for their own negligence concurrent with that of the other Party,to the full extent of Grantor's or Grantee's own negligence. 4 Grantor and Grantee shall give each other timely written notice of the making of any Claim or of the cormnencement of any such action, suit, or other proceeding covered by the indemnity in this Section III.D. If any such Claim arises, then the indemnified Party shall tender the defense thereof to the indemnifying Party, and the indemnifying Party shall have the duty to defend, settle, or compromise any Claims arising hereunder; and the indemnified Party shall cooperate fully therein. The indemnified Party's failure to timely notify the indemnifying Party of such a Claim or action, however, shall not constitute a defense to the indemnity set out in this Section III.D, except to the extent of actual prejudice to the indemnifying Party 5 The indemnification, protection, defense and save harmless obligations contained in this Section IILD shall survive the expiration, abandonment or termination of this Easement and the easement rights and restrictive covenants granted hereunder. E. Notices. Except for Grantee's notice of work under Sections I.F and I.H, any notices required herein shall be in writing and shall be deemed to have been duly given and received on the date of personal service, or one day after deposit with a reputable national overnight delivery service, or two days after deposit with the United States Postal Service, sent by registered or certified mail, return receipt requested, postage prepaid. Notice may also be provided by email or other means of electronic transmittal, provided that receipt of the email or transmittal content can be confirmed by the sender, with time of receipt being the uniform time the e- mail or other transmittal enters the information processing system that the recipient has designated or uses for the purpose of receiving email or other form of transmittal. In all cases notice shall be sent to the addresses listed below or as hereafter updated by the Parties by written notice as set forth in this Section III.E. 16 iarzvis Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# TO GRANTOR. TO GRANTEE: Office of the Mayor Manager's Office City of Auburn Transit Division 25 West Main Street King County Department of Transportation Auburn,WA 98001 201 S King Street Seattle WA 98104 WITH A COPY TO: WITH A COPY TO: Auburn City Attorney's Office King County Prosecutor's Office City of Auburn King County Courthouse,W400 25 West Main Street 516 Third Avenue Auburn, WA 98001 Seattle,WA 98104-2388 Attn: Chief Civil Deputy F. Representations. Grantor represents that it is the lawful owner of Lot A and has the legal authority to grant and convey this Easement to Grantee. G. Successors and Assigns- Legal Relations. 1 Grantee may assign its rights under this Easement, in whole or in part, without approval or consent of Grantor. Grantor shall not convey or assign any right, title,interest,or license in Lot A except by instrument specifically referencing this Easement by its title and recording number as required under Section II.A.4 2. Nothing in this Easement shall make, or be deemed to make, Grantor and Grantee a partner of one another This Easement shall not be construed as creating a partnership or joint venture. This Easement shall create no right, privilege, duty, obligation, or cause of action in any person or entity not a party to it. 3 Nothing contained in this Easement shall diminish or be construed to diminish the governmental or police powers of Grantor or Grantee. H. Force Maieure. I "Force Majeure Event" means any act or event that prevents a Party from performing its obligations under this Agreement, if such act or event is beyond the reasonable control, and not the result of the fault or negligence, of the affected Party and such Party is unable to overcome such act or event 17 1=1112 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# with the exercise of due diligence (including the expenditure of reasonable sums). Subject to the foregoing definition, Force Majeure Event may include natural phenomena, such as storms, hurricanes, floods, lightning or earthquakes; explosions or fires arising from causes unrelated to the acts or omissions of the Party seeking to be excused from performance; acts of war, civil unrest, public disorder, sabotage, epidemic, rebellion, riot, or terrorism or war. Force Majeure Events shall not include equipment failures or acts or omissions of agents, suppliers, contractors or subcontractors of any tier, except to the extent that such acts or omissions arise from a Force Majeure Event as defined in this Paragraph III.H.1 2. Except as provided in Paragraph III.11.1 or otherwise specifically provided in this Easement neither Party shall be considered in breach of this Easement or liable for any delay or failure to comply with this Easement, if and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure Event. Provided,that the Party claiming relief based on a Force Majeure Event shall: a. Promptly notify the other Party in writing of the existence and nature of the Force Majeure Event; b. Exercise all reasonable efforts to minimize delay caused by such Force Majeure Event; c. Notify the other Party in writing of the cessation of such Force Majeure Event;and d Resume performance of its obligations under this Easement as soon as practicable thereafter. 3 Obligations to pay for services already provided shall not be excused by a Force Majeure Event. I. Construction. All of the Recitals set forth above are incorporated into this Easement as though fully set forth herein. The headings contained in this Easement are for convenience of reference purposes only and shall not in any way affect the meaning or interpretation hereof, nor serve as evidence of the intention of the parties hereto. Whenever the context hereof shall so require the singular shall include the plural. J. Entire Agreement. This Easement sets forth the entire agreement of the Parties as to the subject matter hereof and supersedes all prior discussions and understandings between them. This Easement may not be modified, except by an instrument in writing signed by a duly authorized officer or representative of each party hereto. K. Severability In case any one or more of the provisions contained in this Easement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision 18 10/21112 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# hereof, and this Easement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. L, Waivers. No waiver of any right under this Easement shall be effective unless contained in a writing signed by a duly authorized officer or representative of the party sought to be charged with the waiver and no waiver of any right arising from any breach or failure to perform shall be deemed to be a waiver of any future right or any other right arising under this Easement. M. Governing Law Venue for Litigation. This Easement shall be governed by and construed and enforced in accordance with the laws of the State of Washington, without reference to its choice of law rules or conflicts of law provisions. The Superior Court of King County, Washington, shall be the sole venue for any litigation between the Parties that arises under or relates to this Easement. TERMS AND CONDITIONS CONTINUE ON FOLLOWING PAGE 102viz 19 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# N. Exhibits. The following exhibits and record documents are incorporated by this reference as if fully set forth herein: Exhibit A Legal Description of Easement Area Exhibit B-1 Legal Description of Lot A Exhibit B-2 Legal Description of Benefitted Property Exhibit C Illustration of Boundary Line Adjustment Exhibit D Illustration of Property Area Served by Joint Use Facilities (not recorded; copies on file with the Parties) Plan Set No. 111189,dated February 10, 1978, as modified by pages E101 through E103 of that certain Contract No. C65046C, dated October 1996, and as further modified by pages C301 through C304 of that certain Contract No. C75134C, dated July 1997 (File Nos. E80, E81, E82), (not attached or recorded; copies on file with the Parties) EXECUTED AND EFFECTIVE as of the date last signed below FOR GRANTOR: FOR GRANTEE. Peter Lewis,Mayor Steve Salyer,Manager Real Estate Services Section City of Auburn King County Dept of Executive Services DATE. NOV 6 2012 DATE: A roved as to Form: Approved as to Form: _. By Deputy City Attorney Deputy Prosecuting Attorney NOTARY BLOCKS APPEAR ON FOLLOWING PAGE 20 10/21112 Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# STATE OF WASHINGTON ) ss. COUNTY OF KING ) On this day personally appeared before me of KING COUNTY, the to me known to be the that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of KING COUNTY, for the uses and purposes therein mentioned,and on oath stated that he/she was authorized to execute the said instrument. Dated: Notary Public Print Name My commission expires (Use this space for notarial stamp/seal) STATE OF WASHINGTON ) )ss. COUNTY OF KING ) On this day personally appeared before me I e to d "I to me own to be the p AVo YL Of THE CITY OF AUBURN, the p / that executed the within and foregoing instrument, and acknowledged the said i strument to be the free and voluntary act and deed of THE CITY OF AUBURN, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute the said instrument. Dated: —1-012— 1 It pp,. .ov,nn Notary Public GJ=F o PrintName�Gtvu���� �. =w m N's 3 My commission expires TU L�dy7 1111- O a O _ N (Use this space Tor-arfa stamp/ cal) 21 M21112 Public Transportation Basement Auburn Park-and-Ride Lot"A"of BLA# EXHIBIT A Legal Description of Easement Area THAT SOUTH PORTION OF PARCEL"A"OF BLA NO. THE TRUE POINT OF BEGINNING COMMENCING AT THE SOUTH-EASTERLY CORNER OF PARCEL"A",THENCE N 890 42'06"W 299.66 FT,THENCE N 00°39 20"E 170.04 FT,THENCE S 89°42'06"E APPROXIMATELY 299.60 FT,THENCE S 000 30'04"W 170.04 FT TO THE TRUE POINT OF BEGINNING,CONTAINING APPROXIMATELY 50,954 SO FT Public Transportation Easement Auburn park-and-Ride Lot"A"of BLA# 7EXHIBIT B-1 Legal Description of Lot A MRO/12 LEGAL RE-SCRIP71ON PARCEL A THAT PORTION 9F THE SOUTH HALF'OF JOSEPH BRANNAN DONATION LAND CLAIM NO.3B,SITUATED IN THE WEST HALF OF SECTION 7r TOWNSHIP 21 NORTH,RANGE 5 EAST,W.M.;ANDTHE EAST HALF OF SECTION 12xTOWNSHIP 21 NORTH,RANGE4 EAST,W,M•,IN THE CITY OF AUBURN,KING COUNTY, WASHINGTON,BEING MORE PARTICULARLY DESCRIBED A5 FOLLOWS, COMMENCING ATA3INCHDIAMETERBRASSD15KINCONCRETB,INCASE,MPRKINTREE CENTERLINE RIGHT-OF 15T"STREET N,E,WITH THE CENTERLINE RIGHT-OF-WAY OF`D'STREET N,E,AS SHOWN ON RECORD OF SURVEY,RECORDING NUMBER•7701. 7900$,RECORDS OF SAID COUNTYi FRbM WHICH,A 3 INCH DIAMETER BRASS DISK IN CONCRETE,IN CASE,MARKING THE CENTERLINERIGH7-OF WAY OF•5711D 1ST"STREETN.E,WITH THE CENTERLINE RIGHT OF-WAY OF'A!STREET N.E.,BI ARS NORTH 891b'04"WEST,980.32 FEET;THENCE ALONG THE CENTERLINE OFSAia'D'STREET N,E,NORTH bq°4108° EAST,060.98 FEET TO A 14/2 INCH DIAMETER 1111A55 SURFACE MONUMENT;THENCE CONTINUING ALONG SAID CENTERLIN E NORTH 00°41,'08"EAST, FEET TO THE SOUTH LINE OF AUBURN MUNICIPAL AIRPORTA5 SHOWN ON SAID$URVEY;THENCE ALONG SAIC!SOUTH L{NE NORTH 89 604'44°WEST,691.73 FEET TO THE SOUTHWEST CORNEA OF SAID AIRPORT PROPERTY AND THE TRUE POINT OF BEGINNING;THENCE ALQNG THESOUTHE',LY EXTENSION OF THE WEST LIN'OF SAID AIRPORT PROPERTV SOUTH OV39'48"WEST,143,93 FERT;THENCE 5OUTH89°30'49"EAST40,36 FEET; THENCE SOUTH 00'30'g4"WEST,170.04 FEET;THENCE NORTH 8'9°42'06"WEST,299.66 FEETTQ THE EAST MARGIN OK`A'STREET N,E,;THENCE ALONG SAID MARGIN NORTH 00°39'2()"EAST,614,85 FEET TO THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND A$SHOWN ON SAID RECORD OF SURVEY;THENCE ALONG THE NORTH LINE OF SAID PARCEL SOUTH 89"3q'04"EAST,258.89 FEET TO THE W55VLINEOP SAID AIRPORT PROPERTY;THENCE ALONG SAID WESTLINI SOUTH()0°89'48 WEST 299.84 FEET TOTHETRUE POINT OF.BEGINNING. CONTAINING 3,81 ACRES,MORE OR LESS 1Z SUB)ECTTO EASEMENTS,CONDITION,AND R.ESTRICT10N5 QJ Ss��4L LA11A•���. Pubtic Transportation Basement Auburn Pack-and-Ride Lot"A"of BLA# EXHIBIT B-2 Legal DescriULlOn of Benefitted Property oMCV12 LEGAL DESCRIPTION OF A PORTION OF KING COI7LNTY METRO PARK ARID P,IDETO eITYc)F AU51IRAI AIRPORT THAT PORTIDNOF THE SOUTH HALF OPIOSEPH BRANNO DONATION LAND CLAIM NO,38,SITUATED IN THE WEST'HALF OF-SECTION 7,TOWNSHIP 21 NORTH,RANGE 05.EAST,OFTHE WILLAMETTE MERIDIAN;CITY OF AUBURN,KINQ COUNTY,WASHINGTON,BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING ATA 3 INCH DIAMETER BRASS DISK IN CQNCRETEIIN CASE,MARKING THE CENTERLINE RIGHT OF-WAY OF le STREET N•E.OT14THE CENTERLINE RIGHT-DF WAY OF'D'STREETN•E.AS SHOWN ON RECORD OF SURVEY,RECORDING NUMBER 7701179008,REGARDS OF SAID COUNTY,FROM WHICH A3 INCH DIAMETER BRASS DISK IN CONCRETE,IN CASE,MARKINGTHE CENTERLINERIGHT OF WAY()F SAID 75T"STREET N,E,WITH THE CENTERLINE RIGHT-OF-WAY OF`A'STREET N,E„BEARS NORTH 89'30'04"WEST,980.32 FEET;THENCE ALONG'ME CENTERLINE OE SAID`D'STREET ox.,NORTH 0Q°4l.'OAl`EAST,360.9.8 FFETTO A 1-1/21NCH DIAMETER BRASS SURFACE MONUMENT;THENCE CONTINUING ALONG SAID CENTERLINE NORTH 0o°41'08"EAST,13442 FEk FTO THESOU I. LINE R TH AUBURN MV.NICIPAL AIAPQRTAS SHOWN ON SAID SURVEY;THENCE ALONG SAID SOUTH LINE NOR 83°04'44"WEST,325.23 FEET TO THE NORTHEASTCORNER OF PARCEL VAS SHOWN ON CITY OF AUBURN SHORT PLAT 1S.-77,RECORDING NUMBER 7709280757 RECORDS OF SAID COUNTY AND THE TRUE POINT OF BEGINNING;THENCE SOUTH OG°39'48"WEST ALONG THE EAST LINE OF SAID PARCEL C, 208.72 FEET;THENCE LEAVING SAID EAST LINE NORTH 89 620'06"WEST,246.11FEET,THENCENdRTH 00°1T57"EAST,66.81 FEET;THENCE NORTH 89'30149°W EST 11986 FEET TO THE SOUTHERLY EXTENSION 05 THE WEST LINE OF SAID AIRPORTPROPERTV;THENCE NORTH 034'4$"EAST ALONG THE EXTENSION OF$'AID W EST LINE,143,93 FEET TO THE CENTER OFA 5/9 INCH HOLE IN A G INCH TED SQUARE CONCRETE MONUMENT,SAID MONUMENT BEING ACCEP L>S THE SQUTTWESTCORNER OF SAID AIRPURTPRdPERTY; 7HENCF ALONG THE SOUTH LIKE OF SAID PROVE RTYSOUTH89"44`44" EAST, 366,50 FEET TO THE TRUE POINT OF BEGINNING, SuBI EGT TO EASEMENTS,CONDIT[ONS AND RESTRICTfO NS CONTAIN ING(8,790SQUARE FEET OR1.58 ACRES,MORE ORLESS 5 �� plTA'$fjl O R. r / °. 9:1133 .Q '•�''' �L a; Public Transportation Basement Auburn Park-and-Ride Lot"A"of BLA# EXMIT C lllustration of Boundaru Line Adiustment 09/20/12 • 1 N e zsa: r�.N89°04'44'W. 691,,73''48"W_ 589°'3Q'49"H 43.93 40M I p. °c NQO°4ISoA2 tI �.ELlt r J �95,941:64-FP B1 AC, q 7 1 =7 1 N89°4206°W 299,66 J1 r TONAL TAS 580.32 BASFBEAR r -•• _s .._—__.. 15LR ST.NE. -- -- 3 CITY OF AUBURN -YdMOa COUNTY�KETF-'Q831PdOVPO @4POdd .6ATEM?V ,2mz F6e NEwLO77IXH B-L.A. = pARCE- .W 0 SCALE N FEET Public Transportation Easement Auburn Park-and-Ride Lot"A"of BLA# EXIT D Illustration of Propelty Proper Area Served by Joint Use Facilities t, r s +� ' A aAa'of+i* ,'f-{ 4 wr NN•+kF t{ L}f ity a+/r5� i1r Yla ya{<x{. 1 "'tiS �r4. �dYP " '�I t 4 to 'ti`�j+t' •a i v��i� in+� >s7h'+?ir'.k�.+ "''lu .�� 4 .,, rl L<r S:..jl ly{.:eX:1_�ff�i t� c''tf w• ' .1=. 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L --t II �r11 nl ♦7 t.+.'r Sr<�> .y �f+, ri ..N 42ry t� Y+ aF i i� rif♦ + ,. J„�.�j-vr�+-. _ C SS 1� . yC y ' wig¢. w �}StY•! 'II a 1 I 1 jri i,« 1 rt5 i yj yQ[: •�tt*i III �fr� e�.�+n-5 v!'`s„�F r A t °l� �„ �r le , 7.. E .L_ �I rlt sa�`ri,�t� r EXI�7l- Form of Bill of Sale and Assignment. BIM OF SAYE AND ASSIGNMENT day of_, 20_ by 1QNG THIS BILL OF SALE is made as of this — corporation of the State of CCOUNTY ("Seller"), in favor of CITY OF AUBURN, a municipal Washington(Buyer"),with reference to the following facts. ORE, for good and valuable consideration, the receipt and adequacy of NOW, THEREF which is hereby acknowledged, Seller does veyeb eleaseluconfirm and deliver to Buyer all of bargain, sell, transfer, set over, assign, convey, fixtures Seller's right, title and interest in and to any and all equipment, fmviture, { ?gsatta attached, and other tangible personal property owned by Seller (the `ers described at the attached appurtenant to or used in.connection with the real property Exhibit A. Seller represents and warrants that it is the sole owner of, and has good title to, the Personalty, and has full right and authority to transfer and deliver the same, and will defend the sale hereby against each and every person claiming otherwise. The sale of that the sale r Price reflects thatsthe condition on tyris sold by.Selle faults. Buyer understood and agreed subject to the foregoing Sentence- Seller expressly and specifically disclaims and negates any guarantee or warranty of the Personalty for any use or purpose, whether expressed or implied, and whether in writing of otherwise,and including but not limited to any warranty of merchantability or habitability Upon Buyer's acceptance of the Personalty,Buyer will be deemed to have accepted the personalty"AS IS,WHERE IS,"with all faults and defects. IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the date fast above written. SELLER. By- Its: EXi3M f D. Certificate of Non-Foreign Status. Certificate of Non-Foreign Status. Section 1445 of the Internal Revenue Code provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon the disposition of a United States real property interest by KING COUNTY ("Transferor"),the undersigned hereby certifies the following on behalf of Transferor, 1 Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); and Transferor's United States employer identification number is 91-6001327, and 2. Transferor's office address is King County Facilities Management Division, Real Estate Services Section, Room 800 King County Administration Building, 500 Fourth Avenue, Seattle,WA 98104 Transferor understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of Transferor. DATED this day of 20-- TRANSFEROR. KING COUNTY By Title Print Name: Exhibit E. Hjustration of Auburn Park-and-Ride subdivision lk I � 'TRUE POWY6P B'EGINMNG i W o ll ti CO LLI � � I a f � N89°0444"VV 691,73' } _��-- 1 m Sq0°39'48"V1�` i 143.63 408 { NDO°13Q 2 i`. ;9th IRO w fF, PARGELR AREA=166,94TSQ.FY c m Qom I- .3.81 AG. a 1 r-'---^----^-ice' LijI `� m :Z1 NB9°4208"W 299,r4. 3193 GISx1 9 I F Ia 569-°30'00."E 980:32'(BASiS'OF'BFARINGa. _ �' 15TH ST^NE. f ICA�P21II01@ffaHSS anmi Mara,awa ram:NEwmT+Exn s G3Tp �+ Y� OPr AUBURN �kC1411 G cOUNTY METRO B.L.A. 0 SCALF,INfEEf 1 1 Exhibit F. Avigation Easement and Restrictive Covenant RECORDING M QUESTED BY AND WHEN RECORDED RETURN TO Cite of Auburn City Clerk 25 West Main Auburn, WA 98001 Document Title- Public Avigation Easement and Restrictive Covenant Grantor(s): Orion Industries Inc. Grantee. C itv ol'Auburn Abbreviated Legal Description Assessor's Tax Parcel Number(s): # Tms AVICATION EASEMENT AND RFSTRICTIVE COVENANT is granted by ORION INDUSTRIES, a nonprolit Washington corporation (Grantor ') to CITY Of' AUBURN a municipal corporation and noncharter code city with a council-mayor form of government organized pursuant to RCW Title 35A (''Grantee '). Grantor and Grantee arc sometimes referred to herein individual1v as a "Party and collectively as the Parties. AVIGATION EASEMENT AND RESTRICTIVE COVENANT WHEREAS, Grantor is the owner in fee of that certain parcel of land situated in at Washington, and more particularly described as follows: (Insert legal description of property to be covered by easement) hereinafter called 'Grantors' Property" as outlined on the attached map (Exhibit A) and WHEREAS, Grantee for decades has owned, operated, and maintained a public municipal airport facility known as the Auburn Municipal Airport (the Airport"), which is situated on property with a street address of 400 23rd St NE Auburn. Washington, which is in close proximity to the Grantor's property; and Page I Awgation Easement Orion Industries Property #0000800022 and#0000800026 WHEREAS Grantee desires to preserve for the use and benefit of the public a free and unobstructed area for aircraft taxiing, landing upon, taking off from, or maneuvering about the Airport, and WHEREAS the City intends to construct a new taxiway on the west portion of the airport and, when such taxiwav is constructed, a portion of Grantor's Property will lay within the "taxiwav Object Free Area ("OFA ) of the taxiway, according to the proportions described in the Federal Aviation Administration s (`FAA ') Advisory Circular 150/5300- 15 "Airport Design and WHEREAS, once the taxiwav is constructed, such portions of' Grantor's property will be subject to the FAA's prohibition against locating any roads, parked airplanes, and other above ground objects in the OFA, except for objects that need to be located in the OFA for air navigation or aircraft ground maneuvering purposes; and WHEREAS once the taxiwav is constructed, such portions of Grantor's Property will be subject to the FAA s maximum grade for the land within the OFA, and WHERIIAS Grantee requires an easement oycr a portion of Grantor s Property so that if Grantee builds a new taxiway it will comply with FAA regulations regarding both obstructions located near the taxiwav and the slope of the adjacent ground, and Grantor is willing to grant the same; and WHEREAS, Grantee requires that Grantor restrict. and Grantor is willing to so restrict. Grantor s use of a portion of its property and allow the alteration of the property s slope compatible with Grantees intent to construct a new taxiwav in proximity to Grantor s property and NOW THEREFORE, as partial consideration for the overall real property transaction of which this Easement and Restrictive Covenant is an element, and in further consideration of the mutual covenants, conditions. restrictions, and agreements hereinafter set forth, the sufficiency and adequacy of which is hereby acknowledged, Grantor and Grantee hereby agree as follows: I. EASEMENT A. Defined Terms. In addition to the terms defined in the Recitals above, which Recitals are hereby incorporated as if' fully set forth herein, and in addition to such other terms as may be defined in the body of this document: I The physical portion of Grantor's property that is legally described in Exhibit B and shown on Exhibit 13-1 and the air space above that portion of Grantor s Property is the lasement Area." 2. This \vigation Easement and Restrictive Covenant is the -Easement. '� 11105112 Avigation Easement Orion Industries Property #0000800022 and #0000800026 3 "Purchase and Sale Agreement" means that certain purchase and sale agreement executed by Orion Industries, Inc. and the City of Auburn regarding parcels 0000800022, as authorized by City of Auburn Resolution no. 4878 5 The Auburn Municipal Airport. Parcel #0000800011 is the "Benefitted Property " which is legally described in Exhibit B-2. 6 "Easement Improvements" are air navigation systems, including below- ground electrical systems and ground maneuvering signs, installed in the Easement Area. B Grant of Easement Rights. In further consideration for the sale, transfer conveyance. assignment and delkery of property through the Purchase and Sale Agreement, Grantor hcrcbN grants and conveys, confirms, and re-affirms to Grantee for the use and benefit of the public, the following perpetual non-exclusive casement rights in the Easement Area. 1 A continuing right to have the Easement Area clear and free from any and all above ground objects, whether on the property or extending into it, including fences, walls, trees, poles, lights, buildings, vegetation, other than grass, and other obstructions of any kind or nature, except for objects that need to be located in the OFA for air navigation or aircraft ground maneuvering purposes; 2. A continuing right, at the Grantees option, to come upon the Easement Area and remove to ground level and object or all natural growths which are located on the Easemcnt Area, PROVIDED that nothing in this Section I.B.2 shall operate to create an obligation upon Grantee to remove any objects that violate this Easement. 3 Subject to the further terms and conditions of this Easement, a continuing right to install air navigation systems, including below-ground electrical systems, and ground maneuvering signs (`Easement Improvements') in the Easement Area, and to grade the Easement Area according to the FAA slope requirements in Airport Circular 150-5300-13 for slope of an OFA. 4 A continuing right of ingress to, egress from, and passage over the Easement Area for personnel, vehicles. and equipment as reasonably necessary or incident for the removing of obstructions. conforming the area to FAA regulations for an OF-\, ;md for constructing and installing Easement Improvements. C Benefit ol'Easernent. This Easement is appurtenant to and for the benefit of the Benefitted Property as described in Exhibit 13-2, and all other land, real propertv or property interests now owned or hereafter acquired by Grantee that constitutes a portion of its municipal airport. 11105/12 Avigation Easement Orion Industries Property 40000800022 and 110000800026 D Notice of Entry Except in cases of imminent danger to health, safely or welfare or where entry is required to maintain aviation safety the Grantee shall provide the Grantor at least 20 days advance written notice of its intended ingress to the easement for installation, construction or maintenance. E. Easement Improvements. The Parties agree that any Easement Improvements installed in the Easement Area shall be installed by Grantee and shall be owned by and belong to Grantee. Grantee shall construct, install and maintain, repair, and replace the Easement Improvements at Grantee s sole cost and expense; and such cost and expense shall never become a lien on or against the Burdened Property or otherwise become Grantor's liability or obligation. Grantee covenants to maintain, repair, and replace the Easement Improvements so that then remain operational, clean, and in good condition. E Notice of Easement Improvements. Grantee agrees to provide Grantor all construction or installation diagrams. plans, and as-built drawings of lighting and signage Easement Improvements 20 days prior to installation of the improvements in the Easement Area. G Grantee's Discretionary RiLht to Maintain Easement. 1 Grantor and Grantee agree that keeping the Easement Area clear of objects and vegetation other than grass is important for the safe and efficient operation of Grantee s public airport activities. Grantor understands, acknowledges, and agrees that the Easement Area must be kept clear at all times. To that end, Grantor covenants that Grantee shall have the right, but not the duty to maintain and clear the Easement Area pursuant to this Section 1.6 2. If Grantee, in its reasonable discretion, believes that Grantor has not met its dutv to maintain the Lighting Improvements to the standard in Section I.E, then Grantee may notify Grantor of the work needed and the proposed maintenance. If within seventy-two hours Grantor has not either initiated or completed the maintenance, then Grantee may undertake such maintenance. PROVIDED that Grantee shall make a good faith effort to provide Grantor with twenty-four (24) hours advance written notice of intent to perform the Work. Such notices may be by telephone, fax, email with confirmation of delivery or am means specified in Section III.E of this Easement. 3 If Grantee performs the Work, it shall invoice Grantor for all fees, costs, and expenses associated with the maintenance. Grantor shall pav the Work Costs to Grantee within forty-five (45) days of receipt of Grantee's invoice. Grantee shall add a late fee of five percent (5%) to any invoice not paid within sixty (60) days and may send any invoice to collections ninety (90) days after receipt. 1-1. Grantee's Restoration of Easement Area. Whenever Grantee undertakes any maintenance, repair, replacement, betterment, or upgrade of any Easement 4 11105112 Avigation Easement Orion Industries Property #0000800022 and 90000800026 Improvements pursuant to Sections I G through 1.1 of this Easement, then upon completion of such work Grantee shall remove any debris and restore the surface of any disturbed portion of the Easement Area to a condition reasonably approximating that which existed at the commencement of such work. 1. Grantee's Abandonment of Easement. 1 Grantee may at am time, in its sole and absolute discretion, permanently abandon this Easement or any portion thereof, but only by recording an express written notice of such abandonment. Mere nonuse or disuse of the Easement Arca, the Easement Improvements, or the rights granted in this Easement shall not constitute or be deemed to constitute legal abandonment. 2. In addition to recording a notice of abandonment, Grantee may, at its sole and absolute discretion, execute and record a full or partial reconvevance or release of this Easement, whereupon this Easement or the relevant portion thereof, and all related rights, duties and obligations of the Parties thereunder, in whole or in part, shall automatically terminate. Such reconveyance shall be in the form of a quitclaim decd unilaterally executed by Grantee. 3 If Grantee records a notice of abandonment, it shall remove all Lasement Improvements from the Easement Area and restore the surface of the Area to a condition reasonably approximating that which existed prior to installation of the improvements and/or disturbance of the Easement Area. 4 Grantee's actions under this section are not subject to dispute resolution under Section III.B II RESTRICTIVE COVENANTS A. Grant of Restrictive Covenant. Grantor for themselves, their heirs, administrators, executors. successors, and assigns, hereby gram and convey confirm, and re-affirm to Grantee, the following perpetual restrictive covenants in Grantor's Properly' I Grantor covenants that for and during the life of said easement and right-of- way, they will not erect, permit the erection or growth of, or permit or suffer to remain upon Grantor's property any building, structure, tree or other object, except grass, in the Easement Area or extending into that area. 2. Grantor covenants that it shall use the parcels for no purpose that will impede, interfere with, obstruct or endanger Grantee's easement rights under Article I of this Easement. 3 Grantor covenants that such parcels shall not be subdivided. developed, demolished, redeveloped, reconfigured, modified, used, cleared or graded, or otherwise altered or improved in any manner that would interfere with 5 1 U05112 Avigation Easement Orion Industries Properh, 00000800022 and 00000800026 Grantees easement rights under Article I of this Easement, or be inconsistent with the purpose and intent of this Easement. 4 Grantor shall not convey fee title to, or any lesser interest or privilege in, such parcels or any portion of them, except by instrument expressly referencing this Easement by its title ("Avigation Easement and Restrictive Covenant") and recording number B. Run with the Land. Grantor agrees that the benefit of these restrictive covenants runs with the land and real property interests that make up the Benefitted Property and with Grantee s estate in the Benefitted Property Grantor agrees that the burden of these restrictive covenants runs with the land that make up Grantor's Property The Parties agree that these restrictive covenants shall be binding upon and inure to their respective successors and assigns. C. Touch and Concern. The Parties agree that the benefits of these restrictive covenants touch and concern Grantee s fee title in the Benefitted Property in that theN increase the value of the land by facilitating and perpetuating the public aviation regime on the Benefitted Property and ensure Grantee s ability to expand the Benefitted Properly for public aviation purposes. The Parties agree that the burdens of these restrictive covenants touch and concern Grantor s fee title in Grantor s PropertN in that they limit the uses to which the property ma\ be put and the acts that may be done upon it. D. Dispute Resolution. Any disputes between the Parties regarding these restrictive covenants shall be subject to the dispute resolution process set forth in Section III.B E. Equitable Relicf. The Parties agree that if dispute resolution is not successful in resolving a dispute regarding these restrictive covenants, then either Party may seek any remedy at law or equity including but not limited to temporarN restraining orders or other forms of injunctive relief III. GENERAL TERMS AND CONDITIONS A. Grantor's Use of Property Subject to Articles I and II of this Easement, Grantor reserves the right to use Grantor s Property and/or to grant other easement, license or use rights to the property for any purpose not inconsistent with the rights herein granted to Grantee and Grantee's use of the Benefitted Property for public aviation. B. Dispute Resolution. 6 11105112 Avigation Easement Orion Industries Property #0000800022 and 90000800026 Except as otherwise specified in this Easement, and subject to Paragraph 6 of this Section III.13, all disputes arising under or related to this Easement shall be subject to the following dispute resolution process: 1 Grantor and Grantee shall each within ten (10) business days, designate a senior officer or director to meet to attempt to resolve the dispute ("Management Escalation '). The designated individuals shall meet within t%venty (20) business days after their designation. Any dispute resolved through the Management Escalation process shall be documented by appropriate written documentation executed bN all participating parties. 2. If Management Escalation fails to resolve the dispute, then mediation may be requested by either Party, and shall be attempted prior to any litigation arising under or related to this Easement. Within ten (10) days of a mediation request, each Party shall designate, in writing, not more than three (3) candidates to act as a non-binding mediator Candidates shall be proposed lion Judicial Arbitration and Mediation Services (.JAMS) or Judicial Dispute Resolution (JDR) or their successors, or shall be a neutral independent and recognized expert in the field in which the dispute arises. If the Parties cannot agree on one of the mediators from the combined list within live (5) days ofexchanging lists, then the Parties shall promptly meet and select a mediator bN blind draw from a pool consisting of all six candidates selected by the Parties. 3 Upon selection of the mediator, the Parties shall within thirty (30) days, or as soon thereafter as practicable, meet and engage in a mediation of the dispute with the assistance of the mediator Each Party shall be responsible for its own costs and expenses, including attorneys fees, incurred pursuant to this section. Costs of the mediator and other common costs shall be divided equally between the Parties. The mediator shall determine reasonable procedures. 4 The Parties agree that if they are unable to resolve their dispute through Management Escalation or mediation, and for all matters not subject to dispute resolution, King County Superior Court shall have the authority to decide the dispute. Jurisdiction shall lie with the King County Superior Court and venue shall be King County Superior Court in Kent, Washington, unless the King County Superior Court local rules would place venue in Seattle, Washington, in which case venue shall be in Seattle, Washington. 5 The dispute resolution procedures shall not prejudice the Parties legal or equitable rights. -At the request of either partv the Parties shall enter into an agreement to toll the .,tatUte of limitations with respect to the subject matter of a dispute while the Parties pursue the dispute resolution process 7 11105112 Avigation Easemcnt Orion Industries Property #0000800022 and #0000800026 set forth in this Section 11E13 Positions expressed, responses given, and information submitted in any dispute resolution process under this Section III B shall not be admissible as evidence in any subsequent dispute resolution, litigation, or other legal proceeding. 6 If a Party reasonably determines that circumstances require immediate action to prevent or mitigate significant damage to or loss of the Benelitled Property, the Easement Area, or the Easement Improvements, or that delay in initiating or prosecuting a claim in litigation would irrevocably prejudice that Partv then after giving the other Party notice of the dispute the affected Party may immediately pursue any remedy available at law or in equity Without following the dispute resolution procedures in this Section I11.13 C. Insurance, 1 The Parties shall each maintain commercially reasonable insurance to protect their respective interests. This insurance requirement may be met through a program of self-insurance or participation in a risk-sharing pool Each Party shall provide written proof of commercially reasonable insurance upon demand of the other Party These obligations shall survive the expiration. abandonment or termination of this Easement and the easement rights and restrictive covenants granted hereunder D Indemnification. 1 Grantor and Grantee each agrees for itself its successors, and assigns to protect, defend, indemnify and hold harmless the other and the other's appointed and elected officials and employees from and against liability for all claims, demands, suits, and judgments, including costs of defense thereof, for injury to persons, death or property damage (collectively "Claims") caused by or arising out of the Grantor's or Grantee's respective acts or omissions. and those of their respective agents, employees or contractors within or about the Easement Area or that is otherwise caused by or arises out of their exercise of the rights and privileges respectively granted by or reserved under this Easement, including without limitation liability from the improvements introduced by Grantee, or its agents, emplovees or contractors within or about the Easement Area, The Parties' obligations under this Section IILD-shall include- a. Indemnification for such Claims whether or not they arise from the Parties' own acts or omissions, the concurrent negligence of both Parties or a third party or the acts or omissions of the Parties' own contractors, subcontractors, or the acts or omissions of one or more third parties under the direction or control of Grantor or Grantee, respectively 8 11105112 Avigation Easement Orion Industries Property #0000800022 and 40000800026 b The duty to promptly accept tender of defense and provide defense to the indemnified Party at the indemnifying Party's own expense; c. Indemnification of Claims made by the Parties' own employees or agents; d. Waiver of immunity under the industrial insurance provisions of "Title 51 RCW, but only to the extent necessary for Grantor and Grantee to indemnify each other against Claims subject to Title 51 RCW which waiver has been mutual Iv negotiated by the Parties: and e Indemnification for Claims that are submitted by the indemnified Party's contractor or subcontractors and arise from the indemnifying Party's improvements within or about the Easement Area. 2. Notwithstanding Paragraph I of this Section IILD, Grantee shall have no obligation under this Section IILD to indemnify and hold harmless Grantor for Claims arising from the sole negligence or willful misconduct of Grantor its officials and cmplovees: and Grantor shall have no obligation under this Section III D to indemnify and hold harmless Grantee fur Claims arising from the sole negligence or willful misconduct of Grantee, its officials and employees. 3 Grantor and Grantee agree that if a court of competent jurisdiction determines that RCW 4.24 115 applies to this Easement, or to any Claim arising hereunder then Grantor and Grantee shall each defend, hold harmless and indemnify the other to the maximum extent permitted thereunder, and specifically for their own negligence concurrent with that of the other Part} to the full extent of-Grantor s or Grantee's own negligence. 4 Grantor and Grantee shall give each other timely written notice of the making of any Claim or of the commencement of any such action, suit, or other proceeding covered by the indemnity in this Section IILD If any such Clain arises, then the indemnified Party shall tender the defense thereof to the indemnifving Party, and the indemnifying Party shall have the duty to defend, settle, or compromise any Claims arising hereunder and the indemnified Party shall cooperate fully therein. The indemnified Party's failure to timely notify the indemnifying Party of' such a Claim or action, however shall not constitute a defense to the indemnity set out in this Section IILD, except to the extent of actual prejudice to the indemnifying Party 5 ]'he tndenmification. protection, defense and save harmless obligations 9 11/05112 Avigation Basement Orion Industries Property 80000800022 and 80000800026 contained in this Section IILD shall survive the expiration, abandonment or termination of this Easement and the easement rights and restrictive covenants granted hereunder E. Notices. Except for Grantee's notice of work under Section I.G.2, any notices required herein shall be in writing and shall be deemed to have been duly given and received on the date of personal service, or one clay alter deposit with a reputable national overnight delivery service, or two days alter deposit with the United States Postal Service sent by registered or certified mail, return receipt requested, postage prepaid Notice may also be provided by email or other means of electronic transmittal, provided that receipt of the email or transmittal content can be confirmed by the sender with time of receipt being the uniform time the e-mail or other transmittal enters the information processing system that the recipient has designated or uses for the purpose of receiving email or other form of transmittal In all cases notice shall be sent to the addresses listed below or as hereafter updated by the Parties by written notice as set forth in this Section III.E. TO GRANTOR. TO GRANTEE. Office of the Mayor City of Auburn 25 West Main Street ' Auburn, WA 98001 WITH A COPY TO- WITH A COPY TO- Auburn City Attorney s Office City of Auburn 25 West Main Street Auburn. WA 98001 F Representations. Grantor represents that it is the lawful owner of Grantor s Property and has the legal authority to grant and convey this Easement to Grantee. G Successors and Assigns; Legal Relations. 1 Grantee may assign its rights under this Easement, in whole or in part, without approval or consent of Grantor Grantor shall not convey or assign any right, title, interest, or license in Grantor s Property except bN instrument spectlical1v referencing this Easement by its title and recording number as required under Section 11 AA 10 +1105)12 Avigation Basement Orion Industries Property #0000800022 and #0000800026 2. Nothing in this Easement shall make, or be deemed to make, Grantor and Grantee a partner of one another This Easement shall not be construed as creating a partnership orjuint venture. This Easement shall create no right, privilege. dub obligation. or cause of action in anv person or entity not a party to it. 3 Nothing contained in this Easement shall diminish or be construed to diminish the governmental or police powers of Grantee. H. Force Majeure. 1 "Force Majeure Event' means any act or event that prevents a Party from performing its obligations under this Agreement, if such act or event is bcvond the reasonable control, and not the result of the fault or negligence. of the affected Party and such Pane is unable to overcome such act or event with the exercise of due diligence (including the expenditure of reasonable sums). Subject to the foregoing definition, Force Majeure Event may include natural phenomena. such as storms, hurricanes, floods, lightning or earthquakes: explosions or fires arising from causes unrelated to the acts or omissions of the Party seeking to be excused from performance; acts of war civil unrest, public disorder sabotage, epidemic, rebellion, riot, or terrorism or war Force Majeure Events shall not include equipment failures or acts or omissions of agents, suppliers, contractors or subcontractors of' anv tier except to the extent that such acts or omissions arise from a Force Majeure Event as defined in this Paragraph 111.1-1 1 2. Except as provided in Paragraph III H 1 or otherwise specifically provided in this Easement neither Part\, shall be considered in breach of this Easement or liable I'or am delav or failure to comply with this Easement, if and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure Event. Provided, that the Party claiming relief based on a Force Majeure Event shall. a. Promptiv notify the other Party in writing of the existence and nature of the Force Majeure Event; b Exercise all reasonable efforts to minimize delav caused by such Force Majeure Event, c Notifv the other Partv in writing of the cessation of such Force Majeure Event, and d Resume performance of its obligations under this Easement as soon as practicable thereatier 3 Obligations to pay for services alreadv provided shall not be excused by a Force Majeure Event. Il 1 vmnz Avigalion Easement Orion Industries Property 40000800022 and 90000800026 I Construction. All of the Recitals set forth above are incorporated into this Easement as though fully set forth herein. The headings contained in this Easement are for convenience of reference purposes only and shall not in anv way affect the meaning or interpretation hereof, nor serve as evidence of the intention of the parties hereto Whenever the context hereof shall so require the singular shall include the plural. J Entire Agreement. This Easement sets forth the entire agreement of the Parties as to the subject matter hereof and supersedes all prior discussions and understandings between them. This Easement may not be modified, except by an instrument in writing signed by a duly authorized officer or representative of each party hereto K. Severability In case any one or more of the provisions contained in this Easement shall for anv reason be held to be invalid, illegal or unenforceable in am, respect. such imalidity illegality or unenlorceability shall not affect anv other provision hereof, and this Easement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. L. Waivers. No waiver of anv right under this Easement shall be effective unless contained in a writing signed by a duly authorized officer or representative of the party sought to be charged with the waiver and no waiver of any right arising from any breach or failure to perform shall be deemed to be a waiver of anv future right or any other right arising under this Easement. M. Governing Law; Venue for Litigation. This Easement shall be governed by and construed and enforced in accordance with the laws of the State of Washington, without rcference to its choice of law rules or conflicts of law provisions. The Superior Court of King County Washington, shall be the sole venue for anv litigation between the Parties that arises under or relates to this Easement. TERMS AND CONDITIONS CONTINUE ON FOLLOWING PAGE 12 11105112 Avigation Easement Orion Industries Property 00000800022 and 90000800026 N Exhibits The following exhibits and record documents are incorporated by this reference as if fully set forth herein Exhibit A Legal Description of Grantor's Property Exhibit B Legal Description of Easement Area Exhibit B-1 Diagram of Easement Area Exhibit B-2 Legal Description of Benefitted Property ENECUTED AND EFFECTIVE as of the date last signed below FOR GRANT INTO It. FOR GRANTEE. Peter Lewis, Mayor Orion Industries Inc. City of Auburn DATE. /1 Zg DATE _\\ [�3 Q L Approved as to Form Approved as to Form �, 1 By B'1 ,� lq��et �-✓�F� Dep toy City Attorney NOT 0' BLOCKS APPEAR ON bOLLONVING PAGE. � i Avigation Easement Orion Industries Property 40000800022 and 40000800026 STATE OF WASHINGTON ) )ss. COUNTY OF KING ) On this day personally appeared before nr-"K'c§� 7" ,--,n to me known to be the S <-- `7 of OR►ON INDUSTRIES INC., the Washington non-profit corporation that executed the within and foregoing instrument, and a acknowledged the said instrument to be the free and voluntary act and deed of ORION INDUSTRIES INC., for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute the said instrument. Dated: \�?Z�� Z,_�,\1 (^' otary Public Print Name ¢ =23 ?�gOZARI zp�/y �% My commission expires y L o5 0 4-09�1rO� c /, 'IIIIIUNN\� (Use this +i stamp/seal) STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) On this day personally appeared before me to me known to be the �"�'�� ,�l of THE CITY OF AUBURN, the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of THE CITY OF AUBURN, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute the said instrument. Dated: ZOO OISS104,111"'l,O,,� Notary Public VO txOTgP Print Name mMy commission expires y I )cx / �o /i,/'O,p a lnn., „ �a•�`,�p�r= Ih �'A8MING (Use this space notarial stamp/seal) 14 11127112 EXHIBIT A Legal Description of Grantor's Properly THAT PORTION OF THE SOUTH HALF OF JOSEPH BRANNAN DONATION LAND CLAIM NO 38, SITUATED IN THE WEST HALF OF SECTION 71 TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M., AND THE EAST HALF OF SECTION 12., TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M., IN THE CITY OF AUBURN, KING COUNTY, WASHINGTON, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS COMMENCING AT A 3 INCH DIAMETER BRASS DISI{ IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT OF WAY OF 15TH STREET N.E. WITH THE CENTERLINE RIGHT-OF-WAY OP 'D' STREET N.E, AS SHOWN ON RECORD OF SURVEY RECORDING NUMBER 7701179008, RECORDS OF SAID COUNTY, FROM WHICH, A 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHI-OF-WAY OF SAID 15TH STREET N.E. WITH THE CENTERLINE RIGHT-OF-WAY OF 'A' STREET N.E., BEARS NORTH 89 30' 04" WEST, 980.32 FEET, THENCE ALONG THE CENTERLINE OF SAID 'D' STREET N.E., NORTH 00 41'08" EAST, 360.38 FEET TO A 1-1/2 INCH DIAMETER BRASS SURFACE MONUMENT THENCE CONTINUING ALONG SAID CENTER-LIN'E NORTH 00 41' 08" EAST, 130.42 FEET TO THE SOUTH LINE OF AUBURN MUNICIPAL AIRPORT AS SHOWN ON SAID SURVEY, THENCE ALONG SAID SOUTH LINE NORTH 89 04' 44" WEST, 691 73 FEET TO THE SOUTHWEST CORNER OF SAID AIRPORT PROPERTY AND THE TRUE POINT OF BEGINNING, THENCE ALONG THE SOUTHERLY EXTENSION OF THE WEST LINE OF SAID AIRPORT PROPERTY SOUTH 00 39' 48" WEST, 143.93 FEET, THENCE SOUTH 89 30' 49" EAST 40.36 FEET THENCE SOUTH 00 30' 04" WEST, 170 04 FEET, THENCE NORTH 89 42' 06" WEST, 299 66 FEET TO THE EAST MARGIN OF 'A' STREET N.E., THENCE ALONG SAID MARGIN NORTH 00 39' 20" EAST, 614 85 FEET TO THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND AS SHOWN ON SAID RECORD OF SURVEY, THENCE ALONG THE NORTH LINE OF SAID PARCEL SOUTH 89 30' 04" EAST, 258.89 FEET TO THE WEST LINE OF SAID AIRPORT PROPERTY, THENCE ALONG SAID WEST LINE SOUTH 000 39' 48" WEST 299.84 FEET TO THE TRUE POINT OF BEGINNING COMBINED WITH LOT A OF CITY OF AUBURN SHORT PLAT NO 005-90, AS RECORDED UNDER KING COUNTY RECORDING NO 9007091058, RECORDS OF KING COUNTY, STATE OF WASHINGTON, SAID SHORT PLAT BEING DESCRIBED AS FOLLOWS THAT PORTION OF THE SOUTH HALF OF THE JOSEPH BRANNAN DONATION LAND CLAIM NUMBER 38, SITUATED IN THE WEST HALF OF SECTION 7, TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M., IN KING COUNTY, WASHINGTON, AND THE EAST HALF OF SECTION 12, TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M., IN KING COUNTY, WASHINGTON DESCRIBED AS FOLLOWS iinenz BEGINNING AT THE POINT OF INTERSECTION OF THE EAST MARGIN OF "B" STREET NORTHWEST WITH THE NORTH LINE OF SAID SOUTH HALF OF SAID DONATION LAND CLAIM, THEN SOUTH 89 06' 01" EAST, ALONG SAID NORTH LINE A DISTANCE OF 1,090 76 FEET, TO A POINT 1,510.00 FEET WEST OF THE EAST LINE OF SAID DONATION LAND CLAIM, THENCE SOUTH 00 42' 32" WEST PARALLEL WITH SAID EAST LINE, A DISTANCE OF 329 70 FEET TO THE NORTH LINE OF A PARCEL BELONGING TO THE"METRO PARK AND RIDE", THENCE NORTH 89 29' 03" WEST, ALONG SAID NORTH LINE, A DISTANCE OF 258.55 FEET TO A POINT OF INTERSECTION WITH THE NORTHERLY PROJECTION OF THE EAT MARGIN OF "A" STREET NORTHEAST, THENCE SOUTH 00 40' 40" WEST ALONG SAID PROJECTION, A DISTANCE OF 268.43 FEET TO SAID MARGIN; THENCE NORTHWESTERLY ALONG SAID EAST MARGIN OF "A" STREET NORTHEAST AND CHANGING INTO THE NORTHERLY MARGIN OF 16TH STREET NORTHWEST, ALONG A CURVE TO THE LEFT WITH A RADIUS OF 330 04 FEET, A CENTRAL ANGLE OF 89 45' 30", AND ARC LENGTH OF 517 03 FEET AND CHORD WHICH BEARS NORTH 44 12' 02" WEST, 465 77 FEET, THENCE NORTH 89 04 50" WEST ALONG SAID NORTHERLY MARGIN OF 16TH STREET NORTHWEST, A DISTANCE OF 476.63 FEET, THENCE NORTH 44 11' 08" WEST A DISTANCE OF 38.13 FEET, TO THE EAST MARGIN OF SAID "B" STREET NORTHWEST, THENCE NORTH 00 42 35" EAST ALONG SAID EAST MARGIN, A DISTANCE OF 244 01 FEET TO THE TRUE POINT OF BEGINNING. 11/26/12 i Exhibit B Legal Description A portion of the West Half of Section 7,Township 21 North,Range 5 East,Willamette Meridian, lying within the Joseph Brannan Donation Land Claim Number 38 in the City of Auburn, King County, Washington, said portion being described as follows: Beginning at the northeast corner of Lot A of City of Auburn Short Plat SPL0005-90 recorded under recording number 9007091058, records of King County,Washington; Thence South 00°39'48"West along the east line of said Lot A and its southerly extension a distance of 773.0 feet; Thence North 89120'12" West a distance of 26.6 feet to a line parallel with said east line of said Lot A, said parallel line representing the Taxiway Object Free Area located 265 feet west of the runway centerline as identified on Staking Exhibit Map for Auburn Airport prepared by Reid Middleton&Associates file number 222012.002 in drawing dated January 26,2012 and shown on ALTA/ACSM Land Title Survey prepared by Parametrix for Latitude Development LLC,Job number 247-7075-001 dated July 9, 2012; Thence North 00 139'48"East along said parallel line a distance of 773 1 feet to the north line of said Lot A, Thence South 89 007'28" East along the north line of said Lot A a distance of 26.6 feet to the point of beginning. The basis of bearings for this description is NAD83-91 Washington North Zone as indicated in the ALTA/ACSM survey prepared by Parametrix referenced above. cc o��PT R;B(/9T o�ti A v � 22854 O J� s Farsr �• Q L LAND 6J 0ASURVEY\BLA SPL and PLTRevim\BLA12-0003 King County Park&Ride\Exhibil B.doex -11-21-2012 Exim31T 13-1 DiaVram of Casement Area Please see next page 11105112 I rd$p � d�i sF a LLoW I poop 6 pp _ Z m 3NI12J31N30 AVMNn6 tiy''o = W' 7 I I d' U D o.� i �)6`Y Z I L < 1 0 w I X Z �NO`� W w W F6m ° 'o N KF C N I I W O O o'o U) ZJZa in I Q N ma Wu zI 76 2aa F DaJV BBJj 30ifgO ApM!%D1 40 ell!l 4SiM 6J$ W CO ¢ ms `°$ id f b, q of RV Q i an Jo 7s ° H 6. J N W Wy F3 ar m¢o N QaN LU LL N j iQ 3N 133NLS ,d, — — - W z W / — _ _ o 3 w U ' I ° a p6-.ts 5 I � u CN111BIT 13-2 Legal Description of Benefilted Property THAT PORTION OF THE J BRANNAN DONATION LAND CLAIM NO 38 IN SECTION 7 TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M. IN KING COUNTY W \SHWGYON DESCRIBED 1S FOL1 OWS BEGINNING AT THE- NORTEIEAST CORNER OF TI IE J BRANNAN DONATION LAND CLAIM NO 38 THENCE NORTH 88049 52" WEST 430 01 VVI'l' THENCE SO[ITI10052'25" WEST 1320 42 FEFT TO THE "TRUE POINT OI` BEGINNING THENCE CONTINUING SOUTH 0 052'25" WEST 629 69 FEET THENCE NORTH 88 053 43" WEST 1080 00 FEET THENCE NORTH 0 052'25" EAST 629 69 FEET THENCE SOUTH 88 053 43" EAST 1080 00 FEET TO THE TRUE POINT OF BEGINNING 11105112 Exhibit G. Water and Storm Drainage Easement Return Address: City of Auburn City Clerk 25 West Main Auburn, WA 98001 Above this line reserved for recording information. WATER AND S'I'ORNI DRAINAGE EASEMENT FAC 10-0005 Reference 9(if applicable): N/A Grantor/Borrower Orion Industries, Inc. Grantee/Assignee/Beneficiary- City of Auburn Y'l. Sfk legal'Descrijit ion/STR. Assessor s Tax Parcel IN 0000800026 RECITALS City of Auburn is selling to Orion Industries a certain parcel of property through a purchase and sale agreement(the 'Purchase and Sale Agreement"), as authorized by City of Auburn Resolution no. 4878 The real property to be acquired is legally described on Exhibit A attached hereto (the "Acquired Property"). Orion Industries intends to develop and use the Acquired Property in conjunction with the real property legally described on Exhibit B attached hereto (the "Parent Parcel") for an aerospace supply facility The City of Auburn s Municipal Airport is located to the north and to the cast of the Parent Parcel and the Citv is interested in expanding the Airport facilities in the future in which case the Cite would need to increase sutllicc water drainage and retainage from the Airport property As a condition of the larger real estate transaction between City and Orion Industries, and in further consideration of the promises, covenants, conditions and restrictions set forth herein, the City requires that Orion Industries permit, and Orion Industries is willing to permit, the City's use of a portion of its Parent Parcel for surface water drainage and retention compatible with the City's intent to develop its municipal airport property in proximity to Orion Industries property Water and Slann Drainage I a,sement Paec 1 of GRANT OF EASEMENT For and in further consideration for the sale, transfer, conveyance, and delivery of the Acquired Property and the granting of system development credits of fifty-two thousand dollars ($52,000.00) pursuant to the Purchase and Sale Agreement, and other good and valuable consideration, receipt of which is hereby acknowledged, and for benefits to be derived by the Grantor herein, Orion Industries, hereby conveys and warrants to, Grantee herein, the City of Auburn, a municipal corporation of King County, Washington, its successors and assigns, a perpetual Nonexclusive Easement under over, through and across the following described real property ("Drainage Easement Area") for the purpose of installing and maintaining a surface water retention pond and drainage way across the Parent Parcel, including widening the existing drainage trench, said Drainage Easement Area being a portion of Parent Parcel, and shown in Exhibit C and described as follows: THE NORTH FORTY (40) FEET OF LOT A OF THE CITY OF ABURN SHORT SUBDIVISION NUMBER SPL 005-90, AS RECORDED UNDER RECORDING NUMBER 9007091058, RECORDS OF KING COUNTY Said Grantee shall, subject to the terms hereof, have the absolute right, at times as may be necessary, for immediate entry upon said Drainage Easement Area for the purpose of maintenance, inspection, construction, repair or reconstruction of the above improvements without incurring any legal obligation or liability therefore. Said Grantor shall not in any way block, restrict or impede access and egress to or from said Drainage Easement Area, and/or in any way block, restrict or impede full use of the real property within the above-described Drainage Easement Area by said Grantee for the above-described purposes. No building, wall, rockery, fence, trees or structure of any kind shall be erected or planted, nor shall any fill material be placed within the boundaries of said Drainage Easement Area, without the express written consent of Grantee. With Grantee's permission, which shall not be unreasonably withheld, Grantor may fence across said Drainage Easement Area and/or along the boundaries of said Drainage Easement Area, provided that a gate is constructed in said fence. Said gate shall be of sufficient length and location to allow the Grantee full use of, and access and egress to and from the Drainage Easement Area. If said gate is to be locked, keys shall be provided to the Grantee. No excavation shall be made within three (3) feet of said water or storm service facilities and the surface level of the ground within the Drainage Easement Area shall be maintained at the elevation as currently existing. Said Grantor agrees that it will not impede, interfere with, obstruct or endanger Grantee's easement rights under this Easement. Grantor shall not convey fee title to, or any lesser interest or privilege in, such parcels or any portion of them, except by instrument expressly referencing this Easement by its title ("Drainage Easement and Restrictive Covenant") and recording number. Said Grantor grants to the Grantee the right of ingress and egress to the Drainage Easement Area over and across all paved, graveled, or otherwise improved driveways or parking lots within the Parent Parcel. If direct access to the Drainage Easement Area is not available from such driveways or parking lots, the Grantee's right of ingress and egress Water and Storm Drainage Easement Page 2 of 8 shall include such other areas within the Parent Parcel as the Grantee reasonably determines are necessary to access the Drainage Easement Area from such driveways and parking lots or from the Parent Parcel's boundaries. In the case of any damage or disruption of the Parent Parcel, the Grantee shall return the property to a condition reasonably comparable to its condition as it existed immediately before entry and/or work was made thereon by the Grantee or its agents. Said Grantee agrees that, except in the case of an emergency, it will endeavor to provide Grantor at ]cast 24 hours prior notice of' any entry onto the Drainage Easement Area or the Parent Parcel and shall use commercially reasonable efforts to perform any work in the Drainage Easement area in a manner that minimizes interference and disruption to Grantor Grantors tenants and their respective employees, agents, contractors, customers and other invitees. Said Grantor agrees that any improvements installed in the Drainage Easement Area shall be installed by Grantee and shall be owned by and belong to Grantor Grantee shall construct, install and maintain, repair, and replace the improvements at Grantee's sole cost and expense, and such cost and expense shall never become a lien on or against the Parent Parcel or otherwise become Grantor s liability or obligation. Grantee covenants to maintain, repair and replace the improvements so that they remain operational, clean, and in good condition. Said Grantee agrees to provide Grantor all construction or installation diagrams, plans, and as-built drawings of lighting and signage Easement Improvements 30 days prior to installation of the improvements in the Drainage Easement Area. Said Grantor additionally grants to the Grantee, the temporary use of such additional area immediately adjacent to said Drainage Easement Area as shall be required for the construction, reconstruction, maintenance and operation of said water or storm facilities. The use of such additional area shall be held to a reasonable minimum and in the case of anv damage or disruption of the Parent Parcel, the Grantee shall return the property to a condition reasonably comparable to its condition as it existed immediately before entry and/or work was made thereon by the Grantee or its agents. In addition to the other restrictions herein, Grantor shall not convey to a third party any easement or other right of usage in the Parent Parcel that would impair or limit the Grantee s use of the Drainage Easement Area. This Easement shall be a covenant running with the Parent Parcel and burden said real estate, and shall be binding on the successors, heirs and assigns of all parties hereto IN WITNESS WHEREOF, s id corpora ' n has caused this instrument to be executed by its proper officer(s) this day of „z 20� �3 Orion Industries Inc. Water and Storm Drainage Easement Page 3 of 8 STATE OF WASHINGTON ) )ss. COUNTY OF KING ) I certifv that I knm% or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged as the (position) of Orion Industries, Inc., a corporation. to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. Dated Notate Public in and for the State of Washington Residing at My appointment expires Water and Storm Drainage Easement Page 4 of 8 Exhibit A THAT PORTION OF THE SOUTH HALF OF JOSEPH BRANNAN DONATION LAND CLAIM NO 38, SITUATED IN THE WEST HALF OF SECTION 7, TOWNSHIP 21 NORTH, RANGE 5 EAST W.M. AND THE EAST HALF OF SECTION 12, TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M., IN THE CITY OF AUBURN, KING COUNTY WASHINGTON, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS. COMMENCING AT A 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT-OF-WAY OF 15"'STREET N.E. WITH THE CENTERLINE RIGHT-OF-WAY OF'D' STREET N.E. AS SHOWN ON RECORD OF SURVEY, RECORDING NUMBER 7701179008, RECORDS OF SAID COUNTY, FROM WHICH,A 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT-OF WAY OF SAID 15r" STREET N.E. WITH THE CENTERLINE RIGHT-OF-WAY OF A STREET N.E., BEARS NORTH 89°30'04" WEST 980.32 FEET,THENCE ALONG THE CENTERLINE OF SAID 'D' STREET N.E., NORTH 00°41'08" EAST 360.38 FEET TO A 1-112 INCH DIAMETER BRASS SURFACE MONUMENT, THENCE CONTINUING ALONG SAID CENTERLINE NORTH 00°41'08" EAST 130 42 FEET TO THE SOUTH LINE OF AUBURN MUNICIPAL AIRPORT AS SHOWN ON SAID SURVEY, THENCE ALONG SAID SOUTH LINE NORTII 89°04'44" WEST, 691.73 FEET TO THE SOUTHWEST CORNER OF SAID AIRPORT PROPERTY AND THE TRUE POINT OF BEGINNING, THENCE ALONG THE SOUTHERLY EXTENSION OF THE WEST LINE OF SAID AIRPORT PROPERTY SOUTH 00°39'48" WEST, 143.93 FEET,THENCE SOUTH 89°30'49" EAST 40.36 FEET, THENCE SOUTH 00°30'04" WEST, 170.04 FEET, THENCE NORTH 89°42'06" WEST, 299.66 FEET TO THE EAST MARGIN OF 'A' STREET N.E., THENCE ALONG SAID MARGIN NORTH 00°39'20" EAST, 614.85 FEET TO THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND AS SHOWN ON SAID RECORD OF SURVEY; THENCE ALONG THE NORTH LINE OF SAID PARCEL SOUTH 89°30'04" EAST, 258.89 FEET TO THE WEST LINE OF SAID AIRPORT PROPERTY THENCE ALONG SAID WEST LINE SOUTH 00°39'48" WEST 299.84 FEETTO THE TRUE POINT OF BEGINNING. CONTAINING 3.81 ACRES, MORE OR LESS �� � L, SUBJECT TO EASEMENTS, CONDITIONS, AND RESTRICTIONS p %0 2 w � �A4L LAtil' Water and Storm Drainage Easement Page 5 o(8 Exhibit B Lot A of City of Auburn Short Plat No 005-90, as recorded under King County Recording No 9007091058, records of King County, State of Washington, said Short Plat being described as follows: That portion of the south half of the Joseph Brannan Donation Land Claim Number 38 situated in the west half of Section 7 Township 21 North, Range 5 East, W.M. in King County, Washington, and the east half of Section 12, Township 21 North, Range 4 Gast, W.M., in King County, Washington described as follows: Beginning at the point of intersection of the east margin of 'B" Street Northwest with the north line of said south half of said Donation Land Claim, then South 89 06' 01" east, along said north line a distance of 1,090 76 feet, to a point 1.510 00 feet west of the east line of said Donation Land Claim. thence South 00 42 32' west, parallel with said cast line, a distance of 329 70 feet to the north line of parcel belonging to the 'Metro Park and Ride" thence North 89 29' 03" west, along said north line, a distance of 258.55 feet to a point of intersection with the northerly projection of the eat margin of"A Street Northeast; thence South 00 40' 40" west along said projection, a distance of 268 43 feet to said margin, thence northwesterlh along said east margin of"A" Street Northeast and changing into the northerly margin of 16`" Street Northwest. along a curve to the left with a radius of 330 04 feet, a central angle of 89 45 30' and arc length of 517 03 feet and chord which bears north 44 12 02" west. 465 77 feet: thence North 89 04 50" west along said northerly margin of 16'h Street Northwest, a distance o1'476 63 feet, thence North 44 11 08" west a distance of 38 13 feet, to the east margin of said "B" Street Northwest, thence North 00 42 35" east along said east margin, a distance of 244 01 feet to the True Point of Beginning. Tax Parcel No 000080-0026 Water and Storm Drainage Basement Page 6 of 8 Exhibit C Please see nest page. Water and Storm Drainage Basement Page 7 of 8 X i6 ALTA/ACSM LAND TITLE SURVEY PORTIONS OF THE NW 1/4 AND THE SW 114 OF SECTIONS 7,TOWNSHIP 21 NORTH,RANGE 05 EAST AND THE NE1 14 AND THESE 114 OF SECTION 12,TOWNSHIP 21 NORTH,RANGE 04 EAST WILLAMETTE MERIDIAN,LYING WITHIN THE JOSEPH BRANNAN D.L.C.NO.37&38. CITY OF AUBURN, KING COUNTY WASHINGTON. RNREE K M'WautE Fl5EMd1[M MT FM At@RV p(PASO A "]G559'w". ___________ ________________________________ __________ HD Nmw[O FAt[uFxl lwM 'oE 11. C.o: PAi[i1 Fn G _ _ k _ .Z ;..'a4 ______—___—_—_ ______ -- _— — --- - _ - - _ - - _� ' Vrvp a9 .I 1 _�_—_—_—_—_—_---_—_— J f_co \awo-xc PLnanax Harr I I I ,I )rt, s 10'Hews eProm main. ' nrs arz s rmu¢wax Na 1ss wrx w wxnA.cBrtavE 1 ac 9mn wE n I I I ___�___ PARCELA _u 2 I C"OF AUBURN BIA 12L003 Z> TM Pw CEL NO 00008000E f >G, w'ABwE uwwr Nunn I W _ I i gDwuxe[LaBErn,A9 —_____—___—_—_—_ — —_—I----___—___—_____—_—_________—_______—_—___—_—_—_______—_____J - mr ar xs�w i 1 eimc we5mnw xsxi 1 I I I I w rsm[rmoTr R,TA} i CITYOFAUBURN )0 i I----",------------ se66 s"-- --------- I --------- ----------- AFN9007091058 —_—_____—_—_____—_—___ ___—___ 1 TA PAROELNO.00008U0016 B11 B72 IV m I LOT � - {,p LE kB I a - Bftlmr%LlSd[M 'A'RTREET N.E. a t h l0ul'ON ON 1 Y kC.FAS9IfN15 AB sxmm sea usBExr LaBmrt rWE /' \ we x )• allve9xaxE mwxn / I'_ :/ / LEGENII'(MIS PPGEOt4Y) 5 _ £ASEMENr11NE I � / / PBOPERIYLtl1E n� .PKM.OF.WAY LLVE O';,anr .xmuTCCIEO Em EwE SCALE IN FEET ]� nx 6EE PA4EI FOPGESCaPllox �t I R o ASSOCwreo Tme 0 40 80 REPOars e E � ' j 1�na�ilbef. I Sr AMO NCS— ��z6—�,r/cc.J• RIiCORDING REQUES•fED BY AND WHEN RECORDED RI-TURN TO- City of Auburn City Clerk I 25 West Main Auburn, WA 98001 IIII�II�II�III III�IIIII�11�1�111� � � 201310124001780 RGE-001 OF 0 I 164 00 K JUG 4COU,3 15:03 Document Tille• Public Avigation Easement and Restrictive Covenant GranIor(s): Orion Industries Inc. Grantee. �� 9r T�iZOl1I huA a� ,�0 3>� Abbreviated Legal Description. �+Ul qr; qg W O$ ll2e Ah9. 2'Q&Q12g000pbB Assessor's Tax Parcel Number(s): # r "Oslo-BdZ6-03 G(d P�wwNO=oDo spe6h-Of f OOOkOk-o7 TIlls AVIGATIO.N EASF01FNT AM) RESTRICTIVE COVENANT Is granted by ORION INDUSTRIES. a nonprolit Washington corporation (Grantor-*) to CITY OF AUBURN, a municipal corporation and noncharter code city with a council-mayor form of government organized pursuant to RCW Title 35A ("Grantee ). Grantor and Grantec are sometimes referred to herein individually as a "Party and collectively as the 'Parties. AVIGA,rION EASEMENT AND RESTRICTIVE COVENANT WHEREAS, Grantor is the owner in fee of that certain parcel of land situated in at Washington,and more pailicularly described as follows: (insert legal description of property to be covered by easement) hercinaltcr called "Grantors Properly as outlined on the attached map(Exhibit A): and WHEREAS. Grantee for decades has owned, operated, and maintained a public municipal airport facility known as the Auburn Municipal Airport (the Airport"), which is situated on property with a street address of 400 23rd St NG Auburn. Washington, which is in close proximity to the Grantor's property; and Page I Angation 1,asemcnl Orion Industries Properly 90000800022 and#0000800026 WHEREAS Grantee desires to preserve for the use and benefit of the public a free and unobstructed area for aircraft taxiing, landing upon, taking off from, or maneuvering about the Airport, and WHEREAS. the City intends to construct a new taxiway on the west portion of the airport and, when such taxiway is constructed, a portion of Grantor's Property will lay within the Taxiway Object Free Area ("Ol•A ') of the taxiway, according to the proportions described in the Federal Aviation Administration s ("FAA") Advisory Circular 150/5300- 15, `Airport Design and WHEREAS, once the taxiway is constructed, such portions of Grantor s Property will be subject to the FAA's prohibition against locating any roads, parked airplanes, and other above ground objects in the OFA, except for objects that need to be located in the OFA for air navigation or aircraft ground maneuvering purposes; and WHEREAS, once the taxiway is constructed, such portions of Grantor's Property will be subject to the FAA s maximum grade for the land within the OFA, and Wl-ll Rlr 4S, Grantee requires an easement over a portion of Grantor s Property so that if Grantee builds a new taxiwav it will comply with FAA regulations regarding both obstructions located near the taxiway and the slope of the adjacent ground, and Grantor is willing to grant the same; and WHEREAS, Grantee requires that Grantor restrict, and Grantor is willing to so restrict.Grantor's use of a portion of its property and allow the alteration of the property's slope compatible with Grantee's intent to construct a new taxiway in proximity to Grantor's property and NOW, THEREFORE, as partial consideration for the overall real property transaction of which this Easement and Restrictive Covenant is an element, and in further consideration of the mutual covenants, conditions. restrictions, and agreements hereinafter set forth, the sufficiency and adequacy ol' which is hereby acknowledged. Grantor and Grantee hereby agree as follows: 1. EASEMENT A. Defined Terms. In addition to the terms defined in the Recitals above, which Recitals are hereby incorporated as if fully set forth herein. and in addition to such other terms as mae be defined in the body of this document: I The physical portion of Grantor's Property that is legally described in ENhihit B and shown on Exhibit B-1 and the air space above that portion of Grantor s Properly is the 'Easement Area." 2. This \vigation Easement and Restrictive Covenant is the "Easement." 2 11/05/12 Avigation Easement Orion Industries Property 90000800022 and#0000800026 3 Purchase and Stile Agreement" means that certain purchase and sale agreement executed by Orion Industries, Inc. and the City of' Auburn regarding parcels 0000800022, as authorized by City of Auburn Resolution no. 4878. 5 The Auburn Municipal Airport, Parcel #0000800011 is the "Benefitted Property," which is legally described in Exhibit B-2. 6. "Easement Improvements" are air navigation systems, including below- ground electrical systems and ground maneuvering signs, installed in the Easement Area. B Grant of Easement Rights. In further consideration for the sale. transfer conveyance. assignment and dclivery of' property through the Purchase and Sale Agreement, Grantor hereby grants and conveys, confirms. and re-affirms to Grantee for the use and benefit of the public, the following perpetual non-exclusive easement rights in the Easement Area: I A continuing right to have the Easement Area clear and free from any and all above ground objects, whether on the property or extending into it, including fences, walls, trees, poles, lights, buildings, vegetation, other than grass, and other obstructions of any kind or nature, except for objects that need to be located in the OFA for air navigation or aircraft ground maneuvering purposes; 2. A continuing right, at the Grantee's option, to come upon the Easement Arca and remove to ground level any object or all natural growths which are located on the Easement Area: PROVIDED, that nothing in this Section I.B.2 shall operate to create an obligation upon Grantee to remove any objects that violate this Easement. Subject to the further terms and conditions of this Easement, a continuing right to install air navigation systems, including below-ground electrical systems, and ground maneuvering signs ("Easement Improvements") in the Easement Area, and to grade the Easement Area according to the FAA slope requirements in Airport Circular 150-5300-13 for slope of an OFA. 4 A continuing right of ingress to, egress from. and passage over the Easement Area for personnel. vehicles. and equipment as reasonably necessary or incident For the removing ol'obstructions. conforming the area to FAA regulations 11or an OFA. and fnr constructing and installing Basement Improvements. C. Benefit of Etisemcnt. This Easement is appurtenant to and for the benefit of the Benefitted Property as described in Exhibit 13-2, and all other land, real property or property interests now owned or hcreaRer acquired by Grantee that constitutes a portion or its municipal airport. 3 ,vna,2 Avigation Casement Orion Industries Property 40000800022 and 90000800026 D Notice of Entry I-xcept in cases of imminent danger to health, safety or wellare, or where cntry is required to maintain aviation safety, the Grantee shall provide the Grantor at least 20 days advance written notice of its intended ingress to the easement for installation, construction or maintenance. E. Easement Improvements. The Parties agree that any Easement Improvements installed in the Easement Area shall be installed by Grantee and shall be owned by and belong to Grantee. Grantee shall construct, install and maintain, repair, and replace the Easement Improvements at Grantee's sole cost and expense; and such cost and expense shall never become a lien on or against the Burdened Property or otherwise become Grantor's liability or obligation. Grantee covenants to maintain, repair, and replace the Easement Improvements so that they remain operational, clean, and in good condition. P Notice of Easement Improvements. Grantee agrees to provide Grantor all construction or installation diagrams. plans, and as-built drawings of lighting and signage Easement Improvements 20 days prior to installation of the improvements in the Easement Area, G. Grantee's Discretionary Right to Maintain Easement. I Grantor and Grantee agree that keeping the Easement Area clear of objects and vegetation other than grass is important for the safe and efficient operation of Grantee s public airport activities. Grantor understands, acknowledges, and agrees that the Easement Area must be kept clear at all times. To that end. Grantor covenants that Grantee shall have the right, but not the duty to maintain and clear the Easement Area pursuant to this Section I.G. 2. If Grantee, in its reasonable discretion, believes that Grantor has not met its duty to maintain the Lighting Improvements to the standard in Section LE, then Grantee may notify Grantor of the work needed and the proposed maintenance. If within seventy-two hours Grantor has not either initiated or completed the maintenance, then Grantee may undertake such maintenance. PROVIDED that Grantee shall make a good faith effort to provide Grantor with twenty-four(24) hours advance written notice of intent to perform the Work. Such notices may be by telephone, fax, email with confirmation of delivery, or any means specified in Section 111.E of this Easement. 3 If Grantee performs the Work, it shall invoice Grantor for all fees, costs, and expenses associated with the maintenance. Grantor shall pav the Work Costs to Grantee within forty-five (45) days of receipt of Grantee's invoice. Grantee shall add a late fee of five percent (5%) to any invoice not paid within sixty (60) days and may send any invoice to collections ninety (90) days after receipt. H. Grantee's Restoration of Easement Area, Whenever Grantee undertakes any maintenance, repair, replacement, betterment, or upgrade of any Easement 4 „Mz Avigation Basement Orion Industries Property #0000800022 and 90000800026 Improvements pursuant to Sections LG through 1.1 of this Easement, then upon completion of such work Grantee shall remove any debris and restore the surface of any disturbed portion of the Easement Area to a condition reasonably approximating that which existed at the commencement of such work. [. Grantee's Abandonment of Easement. 1 Grantee may at am time, in its sole and absolute discretion, permanently abandon this Easement or any portion thereof, but only by recording an express written notice of such abandonment. Mere nonuse or disuse of the Easement Area. the Easement Improvements, or the rights granted in this Easement shall not constitute or be deemed to constitute legal abandonment. 2. In addition to recording a notice of abandonment, Grantee may, at its sole and absolute discretion, execute and record a full or partial reconveyance or release of this Easement, whereupon this Easement or the relevant portion thereof, and all related rights,duties and obligations of the Parties thereunder, in whole or in part, shall automatically terminate. Such reconveyance shall be in the form of a quitclaim deed unilaterally executed by Grantee. 3 If Grantee records a notice of abandonment, it shall remove all Easement Improvements from the Easement Area and restore the surface of the Area to a condition reasonably approximating that which existed prior to installation of the improvements and/or dishubance of the Easement Area. 4 Grantee's actions under this section are not subject to dispute resolution under Section III.t3. 11 RESTRICTIVE COVENANTS A. Grant of Restrictive Covenant. Grantor for themselves, their heirs, administrators. executors. successors, and assigns, hereby grant and convey confirm, and re-affirm to Grantee, the following perpetual restrictive covenants in Grantor's Property I Grantor covenants that for and during the life of said easement and right-of= way, they will not erect, permit the erection or growth of, or permit or suffer to remain upon Grantor's property any building, structure, tree or other object, except grass, in the L"asement Area or extending into that area. 2. Grantor covenants that it shall use the parcels for no purpose that will impede, interfere with, obstruct or endanger Grantee's casement rights under Article I of this Easement. 3. Grantor covenants that such parcels shall not be subdivided, developed, demolished, redeveloped, reconfigured, modified, used, cleared or graded, or otherwise altered or improved in any manner that would interfere with 5 „mM,: Avigalion I nsement Orion Industries Properly il0000800022 and 0000080002h Grantee's casement rights under Article t of this Easement, or be inconsistent with the purpose and intent of this Easement. 4 Grantor shall not convey fee title to, or any lesser interest or privilege in, such parcels or any portion of them, except by instrument expressly referencing this Easement by its title (` Avigatton Easement and Restrictive Covenant") and recording number B. Run %vith the Land. Grantor agrees than the benefit of these restrictive covenants runs with the land and real propernv interests that make up the Benefitted Property and with Grantee s estate in the Benefitted Property Grantor agrees that the burden of these restrictive covenants runs with the land that make up Grantor's Property The Parties agree that these restrictive covenants shall be binding upon and inure to their respective successors and assigns. C. Touch and Concern. The Parties agree that the benefits of these restrictive covenants touch and concern Grantee s fee title in the Benefitted Property it) that they increase the value of' the land by facilitating and perpetuating the public aviation regime on the Benefitted Property and ensure Grantee s ability to expand the Benefitted Property for public aviation purposes. The Parties agree that the burdens of these restrictive covenants touch and concern Grantor's fee title in Grantor s Propertv in that they limit the uses to which the property may be put and the acts that may be done upon it. D. Dispute Resolution. Any disputes between the Parties regarding these restrictive covenants shall be subject to the dispute resolution process set forth in Section III.B. E. Equitable Relicf. 'Ihe Parties agree that if dispute resolution is not successful in resolving a dispute regarding these restrictive covenants, then either Party may seek any remedy at law or equity, including but not limited to temporary restraining orders or other forms of injunctive relief' 111. CFNERAL TERMS AND CONDITIONS A. Grantor's Use of Property Subject to Articles I and It of this Easement, Grantor reserves the right to use Grantor's Property and/or to grant other easement, license or use rights to the property for any purpose not inconsistent with the rights herein granted to Grantee and Grantee s use of the Benefitted Property for public aviation. B. Dispute Resohtliun. 6 11 nz Avigation 17asement Orion Industries Property #0000800022 and 90000800026 Except as otherwise specified in this Easement, and subject to Paragraph 6 of this Section 111.13, all disputes arising under or related to this Easement shall be subject to the following dispute resolution process: 1 Grantor and Grantee shall each within ten (10) business days, designate a senior officer or director to meet to attempt to resolve the dispute ("Management Escalation"). The designated individuals shall meet within twenty (20) business days after their designation. Any dispute resolved through the Management Escalation process shall be documented by appropriate written documentation executed by all participating parties. 1 If Management Escalation fails to resolve the dispute, then mediation may be requested by either Party, and shall be attempted prior to any litigation arising under or related to this Easement. Within ten (10) days of a mediation request, each Party shall designate, in writing, not more than three (3) candidates to act as it non-binding mediator Candidates shall be proposed from .Judicial Arbitration and Mediation Services (JAMS) or ,Judicial Dispute Resolution (JDR) or their successors, or shall be a neutral, independent and recognized expert in the field in which the dispute arises. If the Parties cannot agree on one of the mediators from the combined list within live (5) days of exchanging lists, then the Parties shall promptly meet and select a mediator by blind draw from a pool consisting of all six candidates selected by the Parties. 3 Upon selection of the mediator, the Parties shall within thirty (30) days, or as soots thereafter as practicable, meet and engage in a mediation of the dispute with the assistance of the mediator Each Party shall be responsible for its own costs and expenses, including attorneys' Pecs, incurred pursuant to this section. Costs of the mediator and other common costs shall be divided equally between the Parties. The mediator shall determine reasonable procedures. 4 The Parties agree that if they are unable to resolve their dispute through Management Escalation or mediation, and for all matters not subject to dispute resolution, King County Superior Court shall have the authority to decide the dispute. Jurisdiction shall lie with the King County Superior Court and venue shall be King County Superior Court in Kent, Washington, unless the King County Superior Court local rules would place venue in Seattle. Washington, in which case venue shall be in Seattle, Washington. 5. The dispute resolution procedures shall not prejudice the Parries' legal or equitable rights. -At the request of either party the Parties shall enter into an agreement to toll the statute of limitations with respect to the subject matter of a dispute while the Parties pursue the dispute resolution process 7 urostu Avigation Easement Orion Industries Property #0000800022 and 90000800026 set forth in this Section IILB Positions expressed, responses given, and information submitted in any dispute resolution process under this Section 11113 shall not be admissible as evidence in any subsequent dispute resolution, litigation, or other legal proceeding. 6. If a Party reasonably determines that circumstances require immediate action to prevent or mitigate significant damage to or loss of the Benefitted Property, the Easement Area, or the Easement Improvements, or that delay in initiating or prosecuting a claim in litigation would irrevocably prejudice that Party, then after giving the other Party notice of the dispute the affected Party may immediately pursue any remedy available at law or in equity without following the dispute resolution procedures in this Section I11.13 C. Insurance. I The Parties shall each maintain commercially reasonable insurance to protect their respective interests. This insurance requirement may be met through a program of self-insurance or participation in a risk-sharing pool. Each Party shall provide written proof of commercially reasonable insurance upon demand of the other Party These obligations shall survive the expiration, abandonment or termination of this Easement and the easement rights and restrictive covenants granted hereunder D Indemnification, I Grantor and Grantee each agrees for itself, its successors, and assigns to protect, defend, indemnity and hold harmless the other, and the other's appointed and elected officials and employees from and against liability for all claims, demands, suits, and judgments, including costs of defense thereof, for injury to persons, death or property damage (collectively, "Claims") caused by or arising out of the Grantor's or Grantee's respective acts or omissions, and those of their respective agents, employees or contractors within or about the Easement Area or that is otherwise caused by or arises out of their exercise of the rights and privileges respectively granted by or reserved under this Easement, including without limitation liability font the improvemcros introduced by Grantee. or its agents. employees or contractors within or about the Easement Area. The Parties' obligations under this Section I ILL shall include: a. Indemnification for such Claims whether or not they arise from the Parties' own acts or omissions, the concurrent negligence of both Patties or a third party, or the acts or omissions of the Parties' own contractors, subcontractors, or the acts or omissions of one or more third parties under the direction or control of Grantor or Grantee, respectively 8 it@Yt2 Avigxtion Easement Orion Industries Property #0000800022 and#0000800026 b The duty to promptly accept tender of defense and provide defense to the indemnified Party at the indemnifying Party's own expense: c. Indemnification of Claims made by the Parties' own employees or agents; d. Waiver of immunity under the industrial insurance provisions of Title 51 RCW, but only to the extent necessary tar Grantor and Grantee to indemnify each other against Claims subject to Title 51 RCW which waiver has been mutually negotiated by the Parties: and e. Indemnification for Claims that are submitted by the indemnified Party's contractor or subcontractors and arise from the indemnifying Party's improvements within or about the Easement Area, 2. Notwithstanding Paragraph 1 of this Section HID, Grantee shall have no obligation under this Section III.D to indemnity and hold harmless Grantor for Claims arising from the sole negligence or willful misconduct of Grantor its officials and employees: and Grantor shall have no obligation under this Section IILD to indemnify and hold harmless Grantee for Claims arising from the sole negligence or willful misconduct of Grantee, its oflicials and employees. 3 Grantor and Grantee agree that if a court of competent jurisdiction determines that RCW 4.24 115 applies to this Easement, or to any Claim arising hereunder, then Grantor and Grantee shall each defend, hold harmless and indemnify the other to the maximum extent permitted thereunder, and specifically for their own negligence concurrent with that of the other Party to the full extent of Grantor s or Grantee's own negligence. 4. Grantor and Grantee shall give each other timely written notice of the making of any Claim or of the commencement of any such action, suit, or other proceeding covered by the indemnity in this Section 111.1) If any such Claim arises, then the indemnified Party shall tender the defense thereof to the indemnifying Party, and the indemnifying Party shall have the duty to defend, settle, or compromise any Claims arising hereunder, and the indemnified Party shall cooperate fully therein. The indemnified Party's failure to timely notify the indemnifying Party of such a Claim or action, however, shall not constitute a defense to the indemnity set out in this Section JI1.D, except to the extent of actual prejudice to the indemnifying Party 5 The indemnification. pro!ection. defense and save harmless obligations 9 11*5112 Avigation Easement Orion Industries Property /10000800022 and#0000800026 contained to this Section IILD shall survive the expiration, abandonment or termination of this Easement and the easement rights and restrictive covenants granted hereunder E. Notices. Except for Grantee's notice of work under Section LG.2, any notices required herein shall be in writing and shall be deemed to have been duly given and received on the date of personal service, or one day after deposit with a reputable national overnight delivery service, or two days after deposit with the United States Postal Service, sent by registered or certified mail, return receipt requested, postage prepaid. Notice may also be provided by email or other means of electronic transmittal, provided that receipt of the email or transmittal content can be confirmed by the sender, with time of receipt being the uniform time the e-mail or other transmittal enters the information processing system that the recipient has designated or uses for the purpose of receiving email or other form of transmittal. In all cases notice shall be sent to the addresses listed below or as hereafter updated by the Parties by written notice as set forth in this Section III.E. TO GRANTOR: TO GRANTEE. Office ofthe Mayor I. 1 City of'Auburn 25 West Main Street Auburn, WA 98001 WITH A COPY TO: WITI4 A COPY TO- Auburn City Attorney's Office City of Auburn 25 West Main Street Auburn, WA 98001 F Representations. Grantor represents that it is the lawful owner of Grantor's Property and has the legal authority to grant and convey this Easement to Grantee. G Successors and Assigns; Legal Relations. I Grantee may assign its rights under this Easement, in whole or in part, without approval or consent of Gran(or Grantor shall not convey or assign any right, (itic, interest, or license in Grantor's Property except by instrument specifically referencing this Easement by its title and recording number as required under Section ILAA 10 '1AY12 Avigation Eascment Orion Industries Property #0000800022 and 40000800026 2. Nothing in this Easement shall make, or be deemed to make, Grantor and Grantee a partner of one another This Easement shall not be construed as creating a partnership or joint venture. This Easement shall create no right. privilege. duty obligation. or cause of action in any person or entity not a party to it. 3 Nothing contained in this Easement shall diminish or be construed to diminish the governmental or police powers of Grantee. H. Force Maicure. 1 "Force Majeure Event" means any act or event that prevents a Party from performing its obligations under this Agreement, if such act or event is beyond the reasonable control, and not the result of the fault or negligence, of the allbeted Party and such Party is unable to overcome such act or event with the exercise of due diligence (including the expenditure of reasonable sums). Subject to the foregoing definition. Force Majcurc Event may include natural phenomena, such as storms, hurricanes, floods, lightning or earthquakes; explosions or fires arising from causes unrelated to the acts or omissions of the Party seeking to be excused from performance; acts of war, civil unrest, public disorder, sabotage, epidemic, rebellion, riot, or terrorism or war Force Majeure Events shall not include equipment failures or acts or omissions of agents, suppliers, contractors or subcontractors of any tier, except to the extent that such acts or omissions arise from a Force Majeure Event as defined in this Paragraph 111.!1.1 2. Except as provided in Paragraph II1.H.1 or otherwise specifically provided in this Easement neither Party shall be considered in breach of this Easement or liable for any delay or failure to comply with this Easement, if and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure Event. Provided, that the Party claiming relief based on a Force Majeure Event shall a. Promptly notify the other Party in writing of the existence and nature of the Force Majeure Event; b. Exercise all reasonable efforts to minimize delay caused by such Force Majeure Event. C. Notify the other Party in writing of the cessation of such Force Majeure Event; and d Resume performance of its obligations under this Easement as soon as practicable thereafter 3 Obligations to pay for services already provided shall not be excused by a Force Majeure Event. Avigalion L'asement Orion Industries Property 90000800022 and N0000800026 1. Construction. All of the Recitals set forth above are incorporated into this Easement as though fully set fordi herein. The headings contained in this Easement are for convenience of reference purposes only and shall not in any way affect the meaning or interpretation hereof, nor serve as evidence of the intention of the parties hereto. Whenever the context hereof shall so require the singular shall include the plural. J Entire Agreement. This Easement sets forth the entire agreement of the Parties as to the subject matter hereof and supersedes all prior discussions and understandings between them. This Easement may not be modified, except by an instrument in writing signed by a duly authorized officer or representative of each party hereto. K. Severability In case any one or more of the provisions contained in this Easement shall for any reason be held to be invalid. illegal or unenforceable in any respect. such invalidity illegality or unenfnrceability shall not aflcct any other provision hereof and this Easement shall be construed as if such invalid. illegal or uncnlorecable provision had never been contained herein. L. Waivers. No waiver of any right under this Easement shall be effective unless contained in a writing signed by a duly authorized officer or representative of the party sought to be charged with the waiver and no waiver of any right arising from any breach or failure to perform shall be deemed to be a waiver of any future right or any other right arising under this Easement. M. GoverninL Law; Venue for Litigation. This Easement shall be governed by and construed and enforced in accordance with the laws of the State of Washington, without reference to its choice of law rules or conflicts of law provisions. The Superior Court of Ling County Washington, shall be the sole venue for any litigation between the Parties that arises under or relates to this Easement TERMS AND CONDITIONS CONTINUE ON FOLLOWING PAGE 12 +rrovn Avigation Easement Orion Industries Properly 0000800022 andOW00800026 N Exhibits. The following exhibits and record documents are incorporated by this reference as if filly set forth herein. Exhibit A Legal Description of Grantor's Property Exhibit B Legal Description of Easement Area Exhibit B-1 Diagram of Easement Area Exhibit B-2 Legal Description of Benefitted Property EXECUTED AND EFFECTIVE as of the date last signed below FOR GRANTOR. FOR GRANTEE.. Peter Lewi s, Mayor Orion Industries Inc. City of Auburn DATF. I"43 Z 1)ATr._\\j ca--t Approved as to Form. Approved as to Form. BY yr\ �U Deputy City Attomey NOTARY BLOCKS APPEAR ON FOLLOWING PAGE 1' 111011,17 Avigation Easement Orion Industries Property #0000800022 and#0000800026 STATE OF WASHINGTON ) )ss. COUNTY OF KING ) On this day personally appeared before to me known to be the C' !g-, -) Of ORION INDUSTRIES INC. the Washington non-profit corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of ORION INDUSTRIES INC., for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute the said instrument, Dated: \��� /;j-,xa "�aw�aae,pgl -'r1 „CN Mpe flit 1Z oN tart'Public �� ,51`,gg%O �X,p�a�!! Print Name 24 1p=otAgP V11 ; My commission expires v OS p xs V �4if 1114.09. �O (Use this 04 tm' stamp/seal) STATE OF WASHINGTON ) )ss. COUNTY OF KING ) On this day personally appeared before me to me known to be the of THE CIT) OF AUBURN, the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of THE CITY OF AUBURN, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute the said instrument. Dated: Notary Public _�o� aory�Ff�,mm Print Name C r, (Zl,e_\\ My commission expires y I �S /�rll��k'ASHINGtO��c (Use this space notarial stamp/seal) 14 11127112 EXHIBIT A Legal Description of Grantor's Property THAT PORTION OF THE SOUTH HALF OF JOSEPH BRANNAN DONATION LAND CLAIM NO 38, SITUATED IN THE WEST HALF OF SECTION 71 TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M.,AND THE EAST HALF OF SECTION 12., TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M., IN THE CITY OF AUBURN, KING COUNTY, WASHINGTON, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS COMMENCING AT A 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT OF WAY OF 15TH STREET N.E. WITH THE CENTERLINE RIGHT-OF-WA)'OF 'D'Sll2E1--7'N.E, AS SHOWN ON RECORD OF SURVEY, RECORDING NUMBER 7701 179008, RECORDS OF SAID COUNTY, FROM WHICH, A 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT-OF-WAY OF SAID 15TH STREET N.E. WITH THE CENTERLINE RIGHT-OF-WAY OF'A' STREETN.E., BEARS NORTH 89 30' 04" WEST, 980.32 FEET, THENCE ALONG THE CENTERLINE OF SAID 'D'STREET N.E.,NORTH 00 41'08" EAST, 360.38 FEET TO A 1-1/2 INCH DIAMETER BRASS SURFACE MONUMENT, THENCE CONTINUING ALONG SAID CENTER-L1N'E NORTH 00 41'08" EAST, 130.42 FEET TO THE SOUTH LINE OF AUBURN MUNICIPAL AIRPORT AS SHOWN ON SAID SURVEY, THENCE ALONG SAID SOUTH LINE NORTH 89 04'44" WEST, 691 73 FEET TO THE SOUTHWEST CORNER OF SAID AIRPORT PROPERTY AND THE TRUE POINT OF BEGINNING; THENCE ALONG THE SOUTHERLY EXTENSION OF THE WEST LINE OF SAID AIRPORT PROPERTY SOUTH 00 39'48" WEST, 143.93 FEET, THENCE SOUTH 89 30'49" EAST 40.36 FEET, THENCE SOUTH 00 30'04" WEST, 170.04 FEET, THENCE NORTH 89 42' 06" WEST, 299.66 FEET TO THE EAST MARGIN OF'A' STREET N.E., THENCE ALONG SAID MARGIN NORTH 00 39'20" EAST, 614.85 FEET TO THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND AS S14OWN ON SAID RECORD OF SURVEY, "THENCE ALONG THE NORTH LINE OF SAID PARCEL SOUTH 89 30'04" EAST, 258.89 FEET TO THE WEST LINE OF SAID AIRPORT PROPERTY, THENCE ALONG SAID WEST LINE SOUTH 000 39'48" WEST 299.84 FEET TO THE TRUE POINT OF BEGINNING. COMBINED WITH- LOT A OF CITY OF AUBURN SHORT PLAT NO 005-90, AS RECORDED UNDER KING COUNTY RECORDING NO 9007091058, RECORDS OF KING COUNTY, STATE OF WASHINGTON, SAID SHORT PLAT BEING DESCRIBED AS FOLLOWS. THAT PORTION OF THE SOUTH HALF OF THE JOSEPH BRANNAN DONATION LAND CLAIM NUMBER 38, SITUATED IN THE WEST HALF OF SECTION 7, TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M., IN KING COUNTY, WASHINGTON, AND THE EAST HALF OF SECTION I2, TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M., IN KING COUNTY, WASHINGTON DESCRIBED AS FOLLOWS 11 rz8g2 BEGINNING AT THE POINT OF INTERSECTION OF THE EAST MARGIN OF "B" STREET NORTHWEST WITH THE NORTH LINE OF SAID SOUTH HALF OF SAID DONATION LAND CLAIM; THEN SOUTH 89 06' 01" EAST, ALONG SAID NORTH LINE A DISTANCE OF 1,090.76 FEET,TO A POINT 1,510.00 FEET WEST OF THE EAST LINE OF SAID DONATION LAND CLAIM,THENCE SOUTH 00 42' 32" WEST, PARALLEL WITH SAID EAST LINE, A DISTANCE OF 329 70 FEET TO THE NORTH LINE OF A PARCEL BELONGING TO THE"METRO PARK AND RIDE';THENCE NORTH 89 29' 03" WEST, ALONG SAID NORTH LINE, A DISTANCE OF 258.55 FEET 1'0 A POINT OF INTERSECTION WITH THE NORTHERLY PROJECTION OF THE EAT MARGIN OF"A" STREET NORTHEAST, THENCE SOUTH 00 40' 40" WEST ALONG SAID PROJECTION, A DISTANCE OF 268.43 FEET TO SAID MARGIN;THENCE NORTHWESTERLY ALONG SAID EAST MARGIN OF"A" STREET NORTHEAST AND CHANGING INTO THE NORTHERLY MARGIN OF 16TH STREET NORTHWEST, ALONG A CURVE TO THE LEFT WITH A RADIUS OF 330.04 FEET,A CENTRAL ANGLE OF 89 45' 30", AND ARC LENGTH OF 517.03 FEET AND CHORD WHICH BEARS NORTH 44 12' 02"WEST,465.77 FEET, THENCE NORTH 89 04 50" WEST ALONG SAID NORTHERLY MARGIN OF 16TH STREET NORTHWEST, A DISTANCE OF 476.63 FEET, THENCE NORTH 44 11' 08" WEST A DISTANCE OF 38.13 FEET, TO THE EAST MARGIN OF SAID"B" STREET NORTHWEST, THENCF NORTH 00 42' 35" EAST ALONG SAID EAST MARGIN, A DISTANCE OF 244.01 FEET TO THE TRUE POINT OF BEGINNING. $1 v 2 Exhibit B Legal Description A portion of the West half of Section 7,Township 21 North,Range 5 East,Willamette Meridian,lying within the Joseph Brannan Donation Land Claim Number 38 in the City of Auburn,King County,Washington,said portion being described as follows: Beginning at the northeast comer of Lot A of City o-fAuburn Short Plat SPL0005.90 recorded under recording number 9007091058,records of King County,Washington; Thence South 00 139'48"West along the east line of said Lot A and its southerly extension a distance of 773.0 feet; Thence North'89°20'12"West a distance of 26.6 feet to a line parallel with said east line of said Lot A,said parallel line representing the Taxiway Object Free Area located 265 feet west of the runway centerline as identified on Staking Exhibit Map for Auburn Airport prepared by Reid Middleton&Associates file number 222012.002 in drawing dated January 26,2012 and shown on ALTA/ACSM Land Title Survey prepared by Parametrix for Latitude Development LLC,Job number 247-7075-001 dated July 9,2012; Thence North 00°39'48"East along said parallel line a distance of 773.1 feet to the north line of said Lot A, Thence South 89°07'28"East along the north line of said Lot A a distance of 26.6 feet to the point of beginning. The basis of bearings for this description is NAD83-91 Washington North Zone as indicated in the ALTAIACSM survey prepared by Parametrix referenced above. oO�PSfl;BlyT ON$ CC t1'b �tlti A 22954 J� S �GfSiE4�• Q s��NAC LANOSJ O:"SURVEMLA SPL and PLT RevimIBI.Al2.0003 King County Parka Rldaxhi5il6.d= 11-21-2W EXHIBIT 13-1 Diagram of Easement Area /'lease see next page 11105119 Exhibit B-1 EASEMENT AREA DIAGRAM NORTHEAST CORNER OF LOT A SP-0005-90 Rec. No. 0007091058 Point of Baginr I ZI ``ty g�Ce W co,c I cot Y P°c N°o` I 1 Rot 'd Z n ¢ u 26W t Z 11 � Y Y I 3 9t `o\ 26.6' EASEMENT AREA W I Z p s° I I yPEOF W2 � < R ip tl° H 22854 FQISIEP`Q Q I I s�OA'AL LANG S� Vd 15TH STREET P.E. I it �TYn= !1'R • CITY OF AUBURN Exhibit B-1 PUBLIC WORKS DEPARTMENT Oate_Nov.21,2012 EASEMENT AREA DIAGRAM WASHINGTON G\IIIIJIT 13-2 Legal Description of Benefitted Property TI-IA'r PORTION OF THE J. BRAMAN DONATION LAND CLAIM NO. 38 IN SECTION 7 TOWNS1-111121 NORTH, RANGE 5 EAST, W.M., IN KING COUNTY, WASHINGTON DI"SCRIBED AS FOLLOWS BEGINNING 1'I"1'F[I NORTHEAST CORNER OF THE J 13RANNAN DONATION LAND CLAIM NO 38. THENCE NORTH 88 049 52" WEST430.01 THENCE SOUTH 0 052'25" WEST 1320 42 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 0 052'25" WEST 629.69 FEET, THENCE NORTH 88°53'43" WEST 1080.00 FEET THENCE NORTH 0 052'25" EAST 629.69 FEET TI"IENCE SOUTH 88°53'43" EAST 1080.00 FEET TO THE TRUE POINT OP 131'_GINNING. 11*912 Exhibit G. Water and Storm Drainage Easement -VSO° AM Return Address: City of Auburn City A 25 West uburn,Clerk Main A 98001 20130124001781 FIRST AIIERICAN EAS 79 00 PAGE-601 OF 008 01/24/2013 1503 KING COUNTY, WA Above this line reserved for recording information. WATER AND STORM DRAINAGE EASEMENT FAC 1(1-[)005 Reference##(if applicable): N/A Grantor/Borrower Orion Industries, Inc. Grantee/Assignee/Beneficiary City of Auburn Legal Description/STR: 6°F" °f 04 pldf bpi oem-9� Fier 9'C)07v4zoSB Assessor s Tax Parcel IDN- 0000800026 RECITALS City of Auburn is selling to Orion Industries a certain parcel of property through a purchase and sale agreement (the"Purchase and Sale Agreement"),as authorized by City of Auburn Resolution no. 4878. The real property to be acquired is legally described on Exhibit A attached hereto (the"Acquired Property"). Orion Industries intends to develop and use the Acquired Property in conjunction with the real properly legally described on Exhibit B attached hereto (the "Parent Parcel") for an aerospace supply facility The City, of Auburn s Municipal Airport is located to the north and to the cast of the Parent Parcel and the City is interested in expanding the Airport facilities in the future in which case the Cite would need to increase surface water drainage and retainage from the Airport property As a condition of the larger real estate transaction between City and Orion Industries, and in further consideration of the promises, covenants, conditions and restrictions set forth herein, the City requires that Orion Industries permit, and Orion Industries is willing to permit, the City's use of a portion of its Parent Parcel for surface water drainage and retention compatible with the City's intent to develop its municipal airport property in proximity to Orion Industries property, Waier and Sturm Droinage Cascmcnt Page 1 nf8 GRANT OF EASEMENT For and in further consideration for the sale, transfer, conveyance, and delivery of the Acquired Property and the granting of system development credits of fifty-two thousand dollars ($52,000.00) pursuant to the Purchase and Sale Agreement, and other good and valuable consideration,receipt of which is hereby acknowledged, and for benefits to be derived by the Grantor herein, Orion Industries, hereby conveys and warrants to, Grantee herein,the City of Auburn, a municipal corporation of King County, Washington, its successors and assigns, a perpetual Nonexclusive Easement under, over, through and across the following described real property ("Drainage Easement Area") for the purpose of installing and maintaining a surface water retention pond and drainage way across the Parent Parcel, including widening the existing drainage trench, said Drainage Easement Area being a portion of Parent Parcel, and shown in Exhibit C and described as follows. THE NORTH FORTY(40)FEET OF LOT A OF THE CITY OF ABURN SHORT SUBDIVISION NUMBER SPL 005-90, AS RECORDED UNDER RECORDING NUMBER 9007091058,RECORDS OF KING COUNTY Said Grantee shall, subject to the terms hereof, have the absolute right, at times as may be necessary, for immediate entry upon said Drainage Easement Area for the purpose of maintenance, inspection, construction, repair or reconstruction of the above improvements without incurring any legal obligation or liability therefore. Said Grantor shall not in any way block, restrict or impede access and egress to or from said Drainage Easement Area, and/or in any way block, restrict or impede full use of the real property within the above-described Drainage Easement Area by said Grantee for the above-described purposes. No building, wall, rockery, fence, trees or structure of any kind shall be erected or planted, nor shall any fill material be placed within the boundaries of said Drainage Easement Area, without the express written consent of Grantee. With Grantee's permission, which shall not be unreasonably withheld, Grantor may fence across said Drainage Easement Area and/or along the boundaries of said Drainage Easement Area, provided that a gate is constructed in said fence. Said gate shall be of sufficient length and location to allow the Grantee full use of, and access and egress to and from the Drainage Easement Area. If said gate is to be locked, keys shall be provided to the Grantee. No excavation shall be made within three (3) feet of said water or storm service facilities and the surface level of the ground within the Drainage Easement Area shall be maintained at the elevation as currently existing. Said Grantor agrees that it will not impede, interfere with, obstruct or endanger Grantee's easement rights under this Easement. Grantor shall not convey fee title to, or any lesser interest or privilege in, such parcels or any portion of them,except by instrument expressly referencing this Easement by its title ("Drainage Easement and Restrictive Covenant")and recording number Said Grantor grants to the Grantee the right of ingress and egress to the Drainage Easement Area over and across all paved, graveled, or otherwise improved driveways or parking lots within the Parent Parcel. If direct access to the Drainage Easement Area is not available from such driveways or parking lots, the Grantee's right of ingress and egress Water and Storm Drainage Easement Page 2 of 8 shall include such other areas within the Parent Parcel as the Grantee reasonably determines arc necessary to access the Drainage Easement Area from such driveways and parking lots or from the Parent Parcel's boundaries. In the case of any damage or disruption of the Parent Parcel, the Grantee shall return the property to a condition reasonably comparable to its condition as it existed immediately before entry and/or work was made thereon by the Grantee or its agents. Said Grantee agrees that, except in the case of an emergency, it will endeavor to provide Grantor at least 24 hours prior notice of any entry onto the Drainage Easement Area or the Parent Parcel, and shall use commercially reasonable efforts to perform any work in the Drainage Gasemcnt Area in a manner that minimizes interference and disruption to Grantor, Grantor's tenants and their respective employees, agents, contractors,customers and other invitees. Said Grantor agrees that any improvements installed in the Drainage Easement Area shall be installed by Grantee and shall be owned by and belong to Grantor. Grantee shall construct, install and maintain, repair, and replace the improvements at Grantee's sole cost and expense and such cost and expense shall never become a lien on or against the Parent Parcel or otherwise become Grantor's liability or obligation. Grantee covenants to maintain, repair, and replace the improvements so that they remain operational, clean, and in good condition. Said Grantee agrees to provide Grantor all construction or installation diagrams, plans, and as-built drawings of lighting and signage Easement Improvements 30 days prior to installation of the improvements in the Drainage Easement Area. Said Grantor additionally grants to the Grantee, the temporary use of such additional area immediately adjacent to said Drainage Easement Area as shall be required for the construction, reconstruction, maintenance and operation of said water or storm facilities. The use of such additional area shall be held to a reasonable minimum and in the case of any damage or disruption of the Parent Parcel. the Grantee shall return the property to a condition reasonably comparable to its condition as it existed immediately before entry and/or work was made thereon by the Grantee or its agents. In addition to the other restrictions herein, Grantor shall not convey to a third party any easement or other right of usage in the Parent Parcel that would impair or limit the Grantee's use of the Drainage Easement Area. This Easement shall be a covenant running with the Parent Parcel and burden said real estate, and shall be binding on the successors, heirs and assigns of all parties hereto IN WITNESS WHEREOF s id corpor, n has caused this instrument to be executed by its proper officer(s) this day of 20V-. j3 Orion Industries Inc. Water and Storm Drainage ISWrmcm Page 3 of 8 STATE OF WASHINGTON ) )ss. COUNTY OF KING ) ��c" /) I certifv that I know y�c satisfactory evidence that s.)Wt1 50';se4 is the person who *Mx-a&#e1Ja me, and said person acknowledged that he/she signed this instrument. on oath stated that he/she was authorized to execute the instrument and acknowledged as the (position) GZ-'CP of Orion Industries, Inc., a J" rrc corporation, to be the free and voluntary act of such party for the uses and purposes frientioned in this instrument. Dated / 2-y 2v f (2%Y4�—W= — 4`,.�N`NStlMd a,,r Notary Public in and f the Stater Washington lrr+y6�4 Residing at z= 7\1e,go c� My appointment expires 424-'/f : 's 4 yb a A? ^_ Note Water and Storm Drainage Easement Pagc 4 of 8 Exhibit A THAT PORTION OF THE SOUTH HALF OF JOSEPH BRANNAN DONATION LAND CLAIM NO 38,SITUATED IN THE WEST HALF OF SECTION 7, TOWNSHIP 21 NORTH, RANGE 5 EAST W.M AND THE EAST HALF OF SECTION 12,TOWNSHIP 21 NORTH, RANGE 4 EAST,W.M. IN THE CITY OF AUBURN, KING COUNTY, WASHINGTON, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS. COMMENCING AT A 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT-OF-WAY OF 151"STREET N.E.WITH THE CENTERLINE RIGHT-OF-WAY OF'D' STREET N.E.AS SHOWN ON RECORD OF SURVEY, RECORDING NUMBER 7701179008, RECORDS OF SAID COUNTY, FROM WHICH,A 3 INCH DIAMETER BRASS DISK IN CONCRETE, IN CASE, MARKING THE CENTERLINE RIGHT-OF- WAY OF SAID 15'"STREET N.E.WITH THE CENTERLINE RIGHT-OF-WAY OF'A' STREET N.E., BEARS NORTH 89°30'04" WEST 980.32 FEET;THENCE ALONG THE CENTERLINE OF SAID 'D'STREET N.E. NORTH 00°41'08" FAST, 360.38 FEET TO A 1 1/2 INCH DIAMETER BRASS SURFACE MONUMENT, THENCE CONTINUING ALONG SAID CENTERLINE NORTH 00°41'08" EAST 130.42 FEET TO THE SOUTH LINE OF AUBURN MUNICIPAL AIRPORT AS SHOWN ON SAID SURVEY THENCE ALONG SAID SOUTH LINE NORTH 89°04'44" WEST, 691.73 FEET TO THE SOUTHWEST CORNER OF SAID AIRPORT PROPERTY AND THE TRUE POINT OF BEGINNING, THENCE ALONG THE SOUTHERLY EXTENSION OF THE WEST LINE OF SAID AIRPORT PROPERTY SOUTH 00°39'48"WEST, 143.93 FEET,THENCE SOUTH 89°30'49' EAST 40.36 FEET; THENCE SOUTH 00'30'04"WEST, 170.04 FEET,THENCE NORTH 89°42'06"WEST, 299.66 FEET TO THE EAST MARGIN OF 'A'STREET N.E.;THENCE ALONG SAID MARGIN NORTH 00'39'20" EAST,614.85 FEET TO THE NORTHWEST CORNER OF THAT CERTAIN PARCELOF LAND AS SHOWN ON SAID RECORD OF SURVEY;THENCE ALONG THE NORTH LINE OF SAID PARCEL SOUTH 89°30'04" EAST, 258.89 FEET TO THE WEST LINE OF SAID AIRPORT PROPERTY;THENCE ALONG SAID WEST LINE SOUTH 00°39'48' WEST 299.84 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 3.81 ACRES, MORE OR LESS 1 SUBJECT TO EASEMENTS, CONDITIONS, AND RESTRICTIONS Z1 IRON -s•slsa y`� � tPS °E'cvs?'�nF°•fie' fO�'4L LAWD 5 Water and Storm Drainage Easement Page 5 of 8 Exhibit B Lot A of City of Auburn Short Plat No. 005-90, as recorded under King County Recording No. 9007091058, records of King County State of Washington, said Short Plat being described as follows: That portion of the south half of the.loseph Brannan Donation Land Claim Number 38, situmed in the west half of Section 7, Township 21 North, Range 5 East, W.M., in King County, Washington, and the cast half of Section 12,Township 21 North, Range 4 Cast, W.M., in King County, Washington described as follows: Beginning at the point of intersection of the east margin of 'B" Street Northwest with the north line of said south half of said Donation Land Claim; then South 89 06' 01"east, along said north line a distance of 1,090.76 feet, to a point 1,510.00 feet west of the east line of said Donation Land Claim; thence South 00 42 32" west, parallel with said cast line, a distance of 329 70 feet to the north line of a parcel belonging to the"Metro Park and Ride", thence North 89 29' 03"west,along said north line, a distance of 258.55 feet to a point of intersection with the northerly projection of the eat margin of"A" Street Northeast; thence South 00 40' 40"west along said projection, a distance of 268.43 feet to said margin: thence northwesterh, along said cast margin of"A" Street Northeast and changing into the northerly margin of 16th Street Northwest. along it curve to the left with a radius of 330 04 feet, a central angle of 89 45 30", and are length of 517 03 feet and chord which bears north 44 12' 02" west. 465 77 feet: thence North 89 04 50" west along said northerly margin of 16`h Street Northwest, a distance ol'476.63 feet; thence North 44 11' 08" west a distance of 38.13 feet, to the east margin of said "13" Street Northwest, thence North 00 42' 35" east along said east margin, a distance of 244.01 feet to the True Point of Beginning. 'fax Parcel No. 000080-0026 Water and Storm Drainage Easement Page 6 or 8 Exhibit C Please see next page Water and Storm Drni nage Pnsement Page 7 of 8 I f s'. Y a ALTA/ACSM LAND:TITLE SURVEY ^0It11 oOF TIEMIAIWO WVAA OF 6FJ:I WGTJ0YIWM21 fp ,R E NMI iiimiVENEtN.UL1145Q WC48ECIlON T1 12TO"P11 WRTKFM EN WT,'M AVtE LIfIaW LY440VHiHINi11EJOSEPMEPNM4V 0 L 176 X.g OFA116 M Vh`� muoSWm,wnar"IcK l I: I o, I i I I Y I -- .1 1 1 � 1 _J -Y�`N'A I I I I _ Ii �'yto I'I / 8 y �rcmwu� S'N[W iFfl �A I I F CEO/