Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
ITEM III-B-1
CITY ~F . , ~ f. AGENDA BILL APPRQVAL FGRM v~AsHl~cTOr~ Agenda Subject: Purchase and Sale Agreement between the City of Date: January 13, 2010 Auburn and Safewa Department: Attachments: Budget Impact: Legal Resolution No. 4562 including Exhibit A Administrative Recommendation: City Council adopt Resolution No. 4562. Background Summary: The City of Auburn owns property on which it intends to locate a future facility ~"City Property"~, identified as King County Tax Parcel No. 2521049114, which has no direct access to a public right-of-way. The City owns a second property abutting "C" Street SIIII King County Tax Parcel No. 2521049115}, which is separated from the City Property by property owned by The Safeway Company, Inc. Pursuant to Council authorization in City of Auburn ordinance 6233, the City filed a condemnation action to obtain a 1.2 acre portion of the Safeway property to provide access to the City Property. The City and Safeway ha~~e negotiated a potential settlement of the condemnation, under which the City would purchase the 1.2 acre portion of the Safeway property and Safeway would retain an emergency access easement over a portion of the 1.2 acre parcel, Resolution No. 4562 authorizes the Mayor to enter into a purchase and sale agreement for the 1.2 acre parcel and to dismiss of the condemnation action to obtain that property authorized under ordinance 6233. A0119-1 A3.13.4 Reviewed by Cauncii & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&0 ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Sere. ❑ Finance ❑ Parks ❑ Human Services ❑ Planning & CD ❑ Fire ❑ Planning ❑ Park Board ❑Public Works ❑ Legal ❑ Police ❑ Planning Comm. ❑ Other ❑Public Works ❑ Human Resources ❑ Information Services Action; Committee Approval: ❑Yes ❑No Council Approval; ❑Yes ❑No Ca11 for Public Hearing I 1 Referred to Until I I Tabled Until I I Councilmember: Backus S#aff: Heid Nieetin Date: Janus 19, 201o Item Number: V111.B.6 ~~~~~~E~ RESOLUTION No. 4 5 6 2 A RESGLUTIGN GF THE CITY CGUNCIL CAF THE CITY GF AUBURN, WASHINGTaN, AUTHORIZING THE MAYGR AND CITY CLERK T4 EXECUTE AN AGREEMENT BETWEEN THE CITY GF AUBURN AND SAFEWAY, INC. FOR CITY PURCHASE OF PROPERTY FROM SAFEWAY, INC. IN LIEU GF CONDEMNATION WHEREAS, the City of Auburn owns property on which it intends to locate a future facility ~"City Property"}, identified as King County Tax Parcel No. 2521049114; and WHEREAS, the City Property has no direct access to a public right-of~ way; and WHEREAS, the City owns a second property abutting "C" Street SW King County Tax Parcel No. 2521049115}, which is separated from the City Property by property owned by The Safeway Company, Inc.; and WHEREAS, pursuant to Council authorization in City of Auburn Grdinance 6233, the City filed a condemnation action to obtain a 1.2 acre portion of the Safeway property to provide access to the City Property; and WHEREAS, the City and Safeway have negotiated a potential settlement of the condemnation, under which the City would purchase the 1.2 acre portion of the Safeway property and Safeway would retain an emergency access easement over a portion of the 1.2 acre parcel; and Resolution No, 4562 January 13, 2010 Paae 1 of 3 v V1IHEREAS, it is in the public interest for the parties to enter into a purchase and sale agreement for the 1.2 acre parcel, NGW, THEREFGRE, THE CITY CGUNCIL GF THE CITY GF AUBURN, KING COUNTY, VIIASHINGT~N, HEREBY RESOLVES as follows: Section The Mayor of the City of Auburn and the Auburn City Clerk are hereby authorized to execute a Purchase and Sale Agreement between the City of Auburn and Safeway, Inc., which agreement shall be in substantial conformity with the Purchase and Sale Agreement a copy of which is attached hereto, marked as Exhibit "A"and incorporated herein by this reference. Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation, including dismissal of the condemnation action authorized under Grdinance 6233. Section 3. This Resolution shall be in full force and effect upon passage and signatures hereon. Dated and Signed this day of , 2010. CITY ~F AUBURN PETER B. LEVVIS MAYOR Resolution No. 4562 January 13, 2010 Page 2 of 3 ATTEST: Danielle E. Daskam, City Clerk AP EVE S T~ FO a iel B. Hei , Ci y Atto ey Resolution No. 4562 January ~ 3, 20 ~ 0 PanP3nf3 . _ PURCHASE AND SALE AGREEMENT This PURCHASE AND SALE AGREEMENT this "Agreement"} is entered into as of the day of , 2010, by and between the CITY GF AUBURN, a Washington municipal corporation, as Purchaser thereinafter the "CITY"}, and SAFEWAY, INC., a Delaware corporation thereinafter the "SELLER"}. RECITALS A. The SELLER is the owner of certain real property and all improvements thereon located in the City of Auburn, County of King, Washington, at the Gammon address of 3520 Pacific Avenue South King County Tax Parcel Na.252104-9096} which is legally described as follows: That portion of the East half of Section 25, Township 21 North, Range 4 East, Willamette Meridian, King County, Washington, more particularly described as follows; Lot 1 of the City of Auburn Lot Line Adjustment No. LLA02-0015, as recorded under King county recording no. 20020725001632, B. The CITY desires to purchase from the SELLER a certain portion of the above described property legally described and depicted in Exhibit "A," to the warranty deed the "Acquired Property"}, said deed being attached hereto as Exhibit "A" and incorporated herein by this reference the "Deed"}. C. SELLER desires to sell the Acquired Property to CITY, on the terms and conditions set forth herein, retaining an easement over a portion thereof the "Easement Area"} legally described and depicted in Exhibit "B" to the Deed. Said easement being for Grantor's "emergency use," as that term is defined in the Deed, for ingress and egress to the property legally described and depicted in Exhibit "C" to the Deed tthe "Safeway Property"}. AGREEMENT NGW, THEREFGRE, for good and valuable consideration, the receipt and cuff ciency of which are hereby mutually acknowledged, SELLER and CITY hereby agree as follows: 1. Certain Defined Terms. For purposes of this Agreement, the terms set forth below shall have the meaning assigned to them: 1.1 "Closing" or "Close of Escrow" means the recordation of the Deed in the Dff cial Records and SELLER's receipt of the Purchase Price. 1 1.2 "Closing Date" means any mutually agreeable date on or before February 19, 2010. 1.3 "Escrow" means the escrow opened with Escrow Agent for the consummation of the transaction described in this Agreement. 1.4 "Escrow Agent" means Chicago Title Insurance Company Phone: X253) 945- 9140}. 1.5 "Official Records" means the off vial real property records of King County, Washington. 1.6 "Opening of Escrow" means the date a fully executed copy of this Agreement is deposited with Escrow Agent. 1.7 "Permitted Exceptions" has the meaning as set forth in Section ~.4 below. 1.S "Purchase Price" has the meaning as set forth in Section 3. 1.9 "Title Company" means Chicago Title Company. 1.1 ~ "Title Policy" means an ALTA ~ 197 Form B} extended coverage owner's policy of title insurance issued by the Title Company to CITY with coverage in the amount of purchase price, showing title to the Acquired Property vested in CITY sub j ect only to the Permitted Exceptions. Purchase and Sale. The SELLER agrees to sell to CITY, and CITY agrees to purchase from SELLER, the Acquired Property upon the terms and conditions set forth in this Agreement. 3. Purchase Price; Cash Payment. The total cash purchase price for the Acquired Property the "Purchase Price"} shall be one Hundred Thousand Dollars and Noll00's x$100,000.00}. The Purchase Price shall be paid to SELLER in cash at Closing. 4. Covenants, Conditions, Restrictions and Drainage Agreement. SELLER is obligated pursuant to the Drainage Agreement and by Covenants, Conditions, Easements and Restrictions ("CCER"} entered into between SELLER and Boeing an September 20, 2002, which is attached hereto as Exhibit "B," to assist with the maintenance and upkeep of various drainage easements. The parties specifically agree that the purchase price fully and completely compensates SELLER for the ongoing responsibility of associated maintenance and upkeep of the various drainage easements as described in the Drainage Easement. The parties agree to enter into an Agreement Regarding Drainage Agreement in substantially the same form as the agreement at Exhibit "C." PURCHASE AND SALE AGREEMENT Page 2 S. Earnest Money Deposit. On execution of this Agreement, CITY shall deposit with Escrow Agent One Thousand Dollars and No1100's Dollars x$1,000.00} in cash the "Deposit"}, which shall be held by Escrow Agent as an earnest money deposit hereunder. The Deposit shall be held in Escrow and applied or disposed of by Escrow Agent as provided herein. Escrow Agent shall place the Deposit in an interest-bearing account approved by CITY and SELLER and all interest earned thereon shall be added to and become a part of the Deposit. 6 Due Diligence. ~.1 Due Diligence Period. CITY shall have the right for a period of sixty X60} days from the date of this Agreement the "Due Diligence Period"} to conduct CITY's due diligence review, examination and inspection of all matters pertaining to its acquisition of the Acquired Property, including such inspections, tests, and surveys as CITY deems appropriate to determine the suitability of the Acquired Property for CITY's intended use. SELLER shall provide CITY and CITY's agents and consultants with reasonable access to the Acquired Property and, to the extent such information is in the possession or control of SELLER, shall provide reasonable access to appropriate information respecting the Acquired Property, subject to the terms and conditions of this Agreement. CITY's obligation to purchase the Acquired Property shall be contingent upon its approval of such property after conducting its due diligence review. If, based upon CITY's review, examination and inspection, CITY shall determine in its sole discretion that it intends to acquire the Acquired Property, then CITY shall promptly notify SELLER of such determination in writing prior to the expiration of the Due Diligence Period, whereupon CITY's due diligence contingency shall be deemed satisfied and waived, the Deposit shall become nonrefundable except as otherwise provided herein}, and CITY shall proceed to Closing. In the event that CITY shall fail to have delivered such notice to SELLER on or before the expiration of the Due Diligence Period, then this Agreement shall automatically terminate, the Deposit shall be returned to CITY, and CITY's rights under this Agreement shall be of no further force or effect. 6.2 Due Diligence Contingency Waived. CITY has conducted reviews of the site of the Acquired Property and has independently obtained and reviewed such documents as SELLER would normally provide as part of a due diligence review, and CITY has determined in its sole discretion that it intends to acquire the Acquired Property, and this Section 6.2 shall serve as notice to SELLER of such determination, CITY's due diligence contingency is hereby satisfied and waived. The Deposit is nonrefundable except as otherwise provided herein), and CITY shall proceed to Closing. 6.3 Title Commitment. Promptly after mutual execution of this Agreement, CITY shall obtain an extended preliminary title insurance commitment covering the Acquired Property from the Title Company the "Commitment"}, together with copies of all recorded documents listed as special exceptions therein. Approval by CITY of the exceptions to title set forth in the Commitment bother than as hereinafter set forth} shall PURCHASE AND SALE AGREEMENT Page 3 be a condition precedent to CITY's obligation to purchase the Acquired Property. Unless CITY gives written notice that it disapproves the exceptions to title shown on the Commitment bother than the exceptions to title approved by CITY and described in Section 6.4 below}, stating the exceptions sa disapproved, within thirty X30} days after the date of this Agreement, CITY shall be deemed to have approved such exceptions. If CITY disapproves any title exceptions, SELLER shall have a ten Ala} day period after its receipt of CITY's written notice of disapproval of the same within which to provide written notice to CITY as to which of such disapproved title exceptions the SELLER will remave far cause to be removed} from title; provided, however, that SELLER shall not be required to actually remove such exceptions} until Closing. If, for any reason, SELLER'S notice given pursuant to the immediately preceding sentence does not covenant to remave all of CITY'S disapproved title exceptions at or prior to Clasing, CITY shall have the right to terminate this Agreement by written notice to SELLER and Escrow Agent given within ten X10} days after the earlier of the expiration of such ten X14} day period or the date SELLER informs CITY that it does not intend to remove the disapproved items the "Termination Notice"}. CITY'S failure to deliver the Termination Notice within such ten ~ 10} day period shall be deemed CITY'S approval of any such previously disapproved title exception. If CITY delivers the Termination Native within such ten ~ 14} day period, the obligation of SELLER to sell, and CITY to buy, the Acquired Property as herein provided shall terminate and the Deposit shall be returned to CITY. CITY shall have the option to waive the condition precedent set forth in this Section 5.3 by written notice to SELLER. In the event of such waiver, such condition precedent shall be deemed satisfied. 6.4 Permitted Exceptions. In addition to such other exceptions to title as may be approved by CITY pursuant to the provisions of Section 6.3 above, CITY shall accept title to the Acquired Property subject to the following collectively, the "Permitted Exceptions"}: ~.4.I The printed exceptions which appear in the ALTA Form 1970B} farm extended coverage owner's policy of title insurance issued by Title Company in the State of Washington; and x.4.2 Items created by, or on behalf of, CITY. ~.5 No New Leases or Contracts. Prior to Closing, SELLER shall not enter into any new leases, contracts or agreements affecting the Acquired Property without the prior written consent of CITY, except the SELLER may enter into interim contracts or agreements in connection with the management, maintenance, repair ar preservation of the Acquired Property in the normal course of business if each such contract or agreement expires or is terminated at ar prior to Clasing. CITY'S Right of Entry. CITY, and its agents and consultants, at CITY'S sale expense and risk, may enter the Acquired Property during the term of this Agreement at PURCHASE AND SALE AGREEMENT Page 4 reasonable times scheduled in advance with SELLER for the purpose of CITY's due diligence study of the Acquired Property. CITY shall ~a} exercise care at all times on or about the Acquired Property, and fib} take precautions for the prevention of injury to persons or damage to property on or about the Acquired Property. CITY shall keep the Acquired Property free from all mechanics', materialmen's and other liens, and all claims thereof, arising from any work or labor done, services performed, or materials and supplies furnished in connection with CITY's actions in the exercise of its right of entry on the Acquired Property, and CITY shall indemnify and defend SELLER against and hold SELLER harmless from all such liens and claims. If this transaction fails to close for any reason other than a default by SELLER hereunder, CITY shall furnish SELLER with a copy of all such inspections, studies and surveys and shall assign or quitclaim all of CITY's right, title and interest in and to any permits, approvals, or permit or approval applications. 8. Closing. 8.1 Time for Closing. This purchase and sale shall be closed in the office of Escrow Agent on the Closing Date. CITY and SELLER shall deposit in Escrow with Escrow Agent all instruments, documents and monies necessary to complete the sale in accordance with this Agreement. Funds held in reserve accounts pursuant to escrow instructions shall be deemed, for purposes of this def nitian, as available for disbursement to SELLER. 8.2 Closing Costs. 8.2.1 SELLER's Costs. SELLER shall pay ~a} the premiums for the standard coverage portion of the Title Palicy, including applicable sales tax, fib} one-half of all escrow fees and costs, ~c} SELLER'S share of prorations, if any, and ~d} all assessments for local improvement or special benefit districts. This sale is being conducted in lieu of condemnation under King County Superior Court Cause No. 09-2-271 54-2KNT, and is exempt from real estate excise taxes under Washington Administrative Code Section 458-61A-206. 8.2.2 CITY's Costs. CITY shall pay ~a} one-half ~~/z} of all escrow fees and costs, fib} the recording fees for the Deed, ~c} CITY's share of prorations, if any, and ~d} any additional premium charged for extended coverage for the Title Policy and any additional endorsements or coverage CITY may require, including applicable sales tax. 8.2.3 tither Costs. CITY and SELLER shall each pay its own legal fees and fees of its own consultants. All other costs and expenses shall be allocated between CITY and SELLER in accordance with the customary practice of King County, Washington. 8.3 Real Property Taxation. SELLER shall be responsible far all real property taxes due and owing prior to the Closing. PURCHASE AND SALE AGREEMENT Page 5 8.4 Closing Documents. 8.4.1 SELLER'S Documents. At Closing, SELLER shall deliver to Escrow Agent the fallowing instruments and documents; 8.4.1.1 The executed and acknowledged Deed in the form attached hereto as Exhibit "A," conveying the Acquired Property to CITY; 8.4.1.2 The, executed real estate excise tax affidavit to accompany the Deed; and 8.4.1.3 An executed nanforeign person affidavit in the form required under Section 1445 of the Internal Revenue Cade. 8.4,2 CITY'S Documents. At Closing, CITY sha11 deliver to Escrow Agent the following funds, instruments and documents: 8.4,2.1 The balance of the Purchase Price in accordance with Section 3; 8.4.2.2 CITY'S share of costs and expenses as determined in accordance with Section 7.3; and $.4.2.3 The executed real estate excise tax affidavit referenced in Section $.4.1.2 above. 8.5 Possession. CITY shall be entitled to possession of the Acquired Property upon C osing. 9. Title Insurance. As soon as available after Closing, SELLER shall provide to CITY the Title Policy, dated as of the Closing Date, subject only to the Permitted Exceptions. 10. Conditions to Closing. 10.1 CITY'S Conditions to Closing. Notwithstanding anything to the contrary set Earth herein, CITY'S obligation to close hereunder is expressly subject to satisfaction or waiver by CITY in writing of each of the following conditions; 10.1.1 Execution and recording of the Maintenance and IndemnificatianRgreement. 10.1,2 written confirmation of the Washington State Department of Ecology's ~"WSDDE") consent to the sale as provided for in the Restrictive Covenant between Boeing and WSDQE dated September ~ 8, 2002. PURCHASE AND SALE AGREEMENT Page G 10.2 SELLER'S Conditions to Closing. Notwithstanding anything to the contrary set forth herein, SELLER'S obligation to close hereunder is expressly subject to satisfaction or waiver by SELLER in writing of each of the following canditions: 11, Representations and Warranties. 11.1 SELLER'S Representations and Warranties. In addition to any other representations or warranties of SELLER elsewhere in this Agreement, SELLER represents and warrants to CITY now, and as of the Date of Closing, that: 11.1.1 Authority. SELLER, and the person signing on behalf of SELLER, has full power and authority to execute this Agreement and perform SELLER'S obligations hereunder, and all necessary action to authorize this transaction has been taken, except as specifically provided herein, 11.1.2 Hazardous Substances. SELLER has not received notification of any kind from any governmental agency suggesting that the Acquired Property is or may be targeted for a Hazardous Substances cleanup; to the best of SELLER'S knowledge the Acquired Property has nat been used ~a} for the storage, disposal or discharge of oil, solvents, fuel, chemicals or any type of toxic, dangerous, hazardous or biological waste or substance collectively, "Hazardous Substances"}, or fib} as a landf 11 or waste disposal site; to the. best of SELLER'S knowledge the Acquired Property has not been contaminated with any Hazardaus Substances; and to the best of SELLER'S knowledge, there are no underground storage tanks on the Acquired Property. 11.1.3 Other Rights. No person or entity has any right to lease or purchase any interest in the Acquired Property or any part thereof. 11.2 CITY'S Representations and Warranties. In addition to any other representations and warranties of CITY elsewhere in this Agreement, CITY represents and warrants to SELLER now, and as of the Date of Closing, that ~a} CITY has full power to execute, deliver and carry out the terms and provisions of this Agreement, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement; and fib} the individual executing this Agreement on behalf of CITY has the authority to bind CITY to the terms and conditions of this Agreement. 11.3 "AS IS" CONDITION ~F PROPERTY. THE PURCHASE PRICE REFLECTS THAT THE ACQUIRED PROPERTY IS BEINCr PURCHASED BY CITY ON AN "AS IS" "WHERE IS" AND "WITH ALL FAULTS" BASIS, EXCEPT TO THE EXTENT OF REPRESENTATIONS AND WARRANTIES SPECIFICALLY MADE BY SELLER HEREIN OR IN THE WARRANTY DEED OR OTHER DOCUMENTS TO BE DELIVERED TO CITY AT CLOSING. CITY HEREBY WAIVES AND RELINQUISHES ALL RIGHTS AND PRIVILEGES ARISING OUT OF, OR WITH RESPECT T0, ANY REPRESENTATIONS, WARRANTIES OR COVENANTS, PURCHASE AND SALE AGREEMENT Page 7 WHETHER EXPRESS GR IMPLIED, WHICH MAY HAVE BEEN MADE GR GIVEN, OR WHICH MAY BE DEEMED TO HAVE BEEN MADE OR GIVEN, BY SELLER GR ITS REPRESENTATIVES, INCLUDING BUT NOT LIMITED TG ANY BROKER, EXCEPT FOR THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE EXECUTED AND DELIVERED BY SELLER AT CLOSING. EXCEPT TO THE EXTENT OF ANY REPRESENTATIONS OR WARRANTIES SET FORTH ELSEWHERE IN THIS AGREEMENT OR IN ANY DOCUMENTS TG BE EXECUTED AND DELIVERED BY SELLER AT CLOSING, CITY HAS NOT RELIED UPON AND WILL NOT RELY UPON, AND SELLER EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO, AND SHALL HAVE NO LIABILITY FOR: ~I~ THE CONDITION OF THE ACQUIRED PROPERTY OR ANY BUILDINGS, STRUCTURES OR IMPROVEMENTS LOCATED THEREON OR THE SUITABILITY THEREOF FUR HABITATION, OCCUPANCY OR FOR CITY'S INTENDED USE OR FOR ANY USE WHATSOEVER; III} ANY APPLICABLE BUILDING, ZONING OR FIRE LAWS OR REGULATIONS OR WITH RESPECT TO COMPLIANCE THEREWITH OR WITH RESPECT TO THE EXISTENCE OF OR COMPLIANCE WITH ANY REQUIRED PERMITS, IF ANY, OF ANY GOVERNMENTAL AGENCY; ~III~ THE AVAILABILITY OR EXISTENCE OF ANY WATER, SEWER OR UTILITIES, ANY RIGHTS THERETO, OR ANY WATER, SEWER OR UTILITY DISTRICTS; HIV} ACCESS TO ANY PUBLIC OR PRIVATE SANITARY SEWER SYSTEM; ~V} THE FACT THAT ALL OR A PORTION OF THE ACQUIRED PROPERTY MAY BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE; OR ~VI} EXCEPT AS SPECIFICALLY SET FORTH ABOVE, THE PRESENCE OF ANY HAZARDOUS SUBSTANCES IN ANY IMPROVEMENTS ON THE ACQUIRED PROPERTY, INCLUDING WITHOUT LIMITATION ASBESTOS OR FORMALDEHYDE, OR THE PRESENCE OF ANY ENVIRONMENTALLY HAZARDOUS WASTES OR MATERIALS ON OR UNDER THE ACQUIRED PROPERTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT TO THE EXTENT OF ANY REPRESENTATIONS OR WARRANTIES SET FORTH ELSEWHERE IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE EXECUTED AND DELIVERED BY SELLER AT CLOSING, SELLER SHALL HAVE NO LIABILITY TO CITY WITH RESPECT TC THE CONDITION OF THE ACQUIRED PROPERTY UNDER COMMON LAW, OR ANY FEDERAL, STATE, OR LOCAL LAW OR REGULATION, INCLUDING BUT NOT LIMITED TO THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980 AS AMENDED, 4~ U.S.C.A. SECTIONS 960I ET SEQ., AND THE WASHINGTON MODEL TOXICS CONTROL ACT ~"MTCA"}, RCW 70.105D. CITY HEREBY RELEASES AND WAIVES ANY AND ALL CLAIMS WHICH THE CITY HAS OR MAY HAVE AGAINST SELLER UNDER ANY OF THE FOREGOING LAWS OR WITH RESPECT TO THE CONDITION OF THE ACQUIRED PROPERTY, EXCEPT TO THE EXTENT OF ANY CLAIMS CITY MAY HAVE ARISING FROM ANY PURCHASE AND SALE AGREEMENT Page 8 EXPRESS REPRESENTATIONS, WARRANTIES OR COVENANTS OF SELLER UNDER THIS AGREEMENT OR ANY DOCUMENTS TO BE EXECUTED AND DELIVERED BY SELLER AT CLOSING. CITY ACKNOWLEDGES TO SELLER THAT CITY IS GIVEN THE OPPORTUNITY UNDER THIS AGREEMENT TO FULLY INSPECT THE ACQUIRED PROPERTY AND CITY ASSUMES THE RESPONSIBILITY AND RISKS OF ALL DEFECTS AND CONDITIONS, INCLUDING SUCH DEFECTS AND CONDITIONS, IF ANY, THAT CANNOT BE OBSERVED BY CASUAL INSPECTION, SUBJECT TO THE EXCEPTION OF RIGHTS EXPRESSLY SET FORTH ABOVE. SELLER: CITY: IF A PHASE I ENVIRONMENTAL SITE ASSESSMENT REPORT OR OTHER ENVIRONMENTAL STUDY OR REPORT COLLECTIVELY, THE "PHASE I REPORT"} HAS BEEN DELIVERED BY SELLER TO CITY, THEN, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BY CLOSING THE TRANSACTION AS CONTEMPLATED HEREIN, CITY AGREES THAT, EXCEPT TO THE EXTENT EXPRESSLY CONTRARY TO ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF SELLER SET FORTH IN THIS AGREEMENT: (A} CITY SHALL BE DEEMED TO HAVE ACCEPTED ALL RISK ASSOCIATED WITH ADVERSE PHYSICAL CHARACTERISTICS AND EXISTING ENVIRONMENTAL CONDITIONS THAT MAY OR MAY NOT HAVE BEEN REVEALED BY CITY'S INVESTIGATION OF THE PHASE I REPORT, AND ~B} AS BETWEEN SELLER AND CITY, CITY SHALL BE DEEMED TO HAVE ACCEPTED ALL COSTS AND LIABILITIES ASSOCIATED IN ANY WAY WITH THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE ACQUIRED PROPERTY. CITY ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE TRUTH, ACCURACY OR THOROUGHNESS OF THE INVESTIGATION, PREPARATION OR CONTENT OF THE PHASE I REPORT, OR THE COMPETENCE OR ABILITY OF THE PERSONS OR COMPANIES PREPARING SUCH REPORT. CITY AGREES THAT, BY CLOSING THE TRANSACTION CONTEMPLATED HEREIN, CITY WILL HAVE HAD AN OPPORTUNITY TO REVIEW THE ABOVE REPORT PRIOR TO THE CLOSING DATE IN ORDER TO MAKE AN INDEPENDENT VERIFICATION OF THE INFORMATION CONTAINED THEREIN, AND THAT CITY AND ITS ENVIRONMENTAL CONSULTANTS WILL HAVE HAD AN OPPORTUNITY TO CONDUCT TESTS ON THE ACQUIRED PROPERTY. 12. Maintenance of Property; Risk of Loss, Condemnation. 12.1 Maintenance of Property. From the date of this Agreement until the Closing Date for any earlier termination of this Agreement}, SELLER agrees to maintain the Acquired Property in substantially the same condition existing as of the date hereof, ordinary wear and tear, damage by casualty excepted. PURCHASE AND SALE AGREEMENT Page 9 12.2 Risk of Loss; Condemnation. Risk of loss of or damage to the improvements on the Acquired Property shall be borne by CITY at all times and no event of casualty or damage shall affect the parties' obligations hereunder or the Purchase Price, however, CITY shall have the right to receive any insurance proceeds due SELLER in connection with any casualty or damage and SELLER hereby covenants to maintain commercially reasonable casualty insurance in place with respect to the Acquired Property at all times prior to Closing. SELLER shall promptly notify CITY of any condemnation or eminent domain proceeding which affects the Acquired Property, and SELLER covenants and agrees not to commence or pursue any such action. In the event of any condemnation or eminent domain proceeding by any entity other than SELLER, or a deed in lieu or under threat thereof, which affects a material portion of the Acquired Property, CITY may elect either to terminate this Agreement, or to purchase the Acquired Property in the condition existing on the Closing Date without adjustment of the Purchase Price. If CITY elects to terminate this Agreement, the Deposit shall be returned to CITY, If CITY elects to purchase the Acquired Property, SELLER shall not be liable to restore same, and CITY shall be entitled to any condemnation award or payment in lieu thereof payable to SELLER in its capacity as the owner thereof. 13. Default. 13.1 Time of Essence. Time is of the essence of this Agreement. 13.2 SELLER'S Remedies for CITY'S Default and Failure to Close. If CITY fails, without legal excuse, to complete the purchase of the Acquired Property in accordance with this Agreement, SELLER'S sole and exclusive remedy shall be to retain the Deposit as liquidated damages. CITY expressly agrees that the retention of the Depasit by SELLER represents a reasonable estimation of the damages in the event of CITY'S default and failure to close hereunder, that actual damages may be difficult to ascertain and that this provision does not constitute a penalty. In this respect, CITY and SELLER acknowledge that these damages have been specifically negotiated between CITY and SELLER and are, inter olio, to compensate SELLER far delaying the eventual sale of the Acquired Property and to compensate SELLER for its casts and expenses associated with this Agreement, CITY hereby waives the rights and benefits of any law, rule, regulation or order now or hereafter existing that would allow CITY to claim a refund of the Depasit as unearned earnest money, a penalty or for any other reason except default by SELLER. 13.3 CITY'S Remedies for SELLER'S Default. If SELLER fails to complete the sale of the Acquired Property in accordance with this Agreement, CITY shall have and may enforce the following exclusive remedies: ~a) seek specific performance; ~b~ terminate this Agreement, receive a refund of the Depasit and recover from SELLER all of CITY'S actual third-party costs and expenses incurred by it in connection with the transaction and the Project; or ~c} seek rescission of this Agreement and receive a refund of the Deposit. PURCHASE AND SALE AGREEMENT Page 1 ~ 14. Notices. All notices, demands and other communications required or permitted to be given hereunder shall be in writing, and shall be sent by personal delivery including by means of professional messenger or courier service} or registered or certified mail, postage-prepaid, return~receipt requested. Notice shall be deemed to have been given if personally delivered, upon receipt, and if sent by mail, two ~2} days after duly deposited in the U.S. Mail. The parties' respective addresses for notices are as follows: If to City: City of Auburn Human Resources Department 25 West Main Street Auburn, WA 98~~ 1-4998 Attn: Planning Director With copies ta: City Attorney's Office City of Auburn 25 West Main Street Auburn, WA 980 1-4998 Attn: City Attorney If to SELLER: Safeway, Inc. Gary Slabaugh 1121 124t~ Ave NE Bellevue, WA 98005 With copies to: Sharman Braff Real Estate Law Safeway Inc. 591$ Stoneridge Mall Rd. Pleasanton, CA 94588 Notice of change of address shall be given by written notice in the manner detailed in this Section 14. 15. General. This is the entire agreement of CITY and SELLER with respect to the matters covered hereby and supersedes all prior agreements between them, written or oral. This Agreement may be modified only in writing, signed by CITY and SELLER. Any waivers hereunder must be in writing. No waiver of any right ar remedy in the event of default hereunder shall constitute a waiver of such right or remedy in the event of any subsequent default. This Agreement shall be governed by the laws of the State of Washington. This Agreement is far the benefit only of the parties hereto and shall inure to the benefit of and bind the heirs, personal representatives, successors and permitted assigns of the parties hereto. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. PURCHASE AND SALE AGREEMENT Page 11 This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 16. Commissions. SELLER represents to CITY that SELLER has engaged no broker, agent or finder in connection with the negotiations leading to this Agreement. CITY represents to SELLER that CITY has not engaged or in any way dealt with any broker, agent or finder in connection with the negotiations leading to this Agreement. Each party hereby agrees to indemnify, defend and hold the other party harmless from and against any claims for broker's, agent's, or finder's fees or commissions arising from or through the actions of the indemnifying party. 17. Attorneys' Fees. In the event suit or action is instituted to interpret or enforce the terms of this Agreement, the prevailing party therein shall be entitled to recover from the other party such sum as the Court may adjudge reasonable as attorneys' fees, including fees incurred at trial, on any appeal and in any petition for review. 18. Exclusivity. During the term of this Agreement SELLER shall not market nor list the Acquired Property for sale, nor accept any offers from third parties with respect to sale of the Acquired Property. 19. Reservation of Police Power. Notwithstanding anything to the contrary set forth herein, SELLER understands and acknowledges that the CITY's authority to exercise its police regulatory} powers in accordance with applicable law shall not be deemed limited by the provisions of this Agreement. 20. City Council Approval. The Seller acknowledges that this Agreement does not bind the City of Auburn until the City Council approves of the purchase Agreement and the Mayor executes the Agreement. Z 1. Exhibits. Exhibits "A," "B," and "C," attached hereto are incorporated herein as if fully set forth, PURCHASE AND SALE AGREEMENT Page 12 SYGNED in duplicate original as of the date first above written. CITY GF AUBURN SAFEwAY, INC. B y • Peter B, Lewis, Mayor Name Attest; T~tie ~S~,S Danielle Daskam, City Clerk By ame ~~~C/ A roved as to form. N ~ ~ Pp Title ~.~/S Daniel B. Herd, Auburn City Attorney ~x~r~TTs Exhibit A, warranty Deed Exhibit B, Declaration of Covenants, Conditions, Easements and Restrictions Exhibit C, Maintenance Agreement PURCHASE AND SALE AGREEMENT Page 13 SIGNED in duplicate original as of the date first above written. CITY GF AUBURN SAFEWAY, INC. By Peter B. Lewis, Mayor Name Attest: Title Danielle Daskam, City Clerk By Appr d a t Name ~ ~ Title niel B. id Auburn Cit~~Attorney EXHIBITS Exhibit A, Warranty Deed Exhibit B, Declaration of Covenants, Conditions, Easements and Restrictions Exhibit C, Maintenance Agreement PURCHASE AND SALE AGREEMENT Page 13 EH~B~T A -DEED Return Address: City of Auburn City Clerk 25 West Main Auburn, WA 9$001 Above this line reserved far recording information. WARRANTY DEED Reference # cif applicable): NIA GrantorlBorrower: Safeway Inc. GranteelAssigneelBeneficiary; City of Auburn Legal DescriptionlSTR; Portion of Sec. 25, Twp. 21 N. Rge. 4 E., WM Assessor's Tax Parcel tD#; 252104909b ~portian) Benefited Parcel - 2521049114 For and in consideration of the sum of TEN DGLLARS ($10.00} and other good and valuable consideration, receipt of which is hereby acknowledged, Grantor, SAFEWAY INC., a Delaware corporation, hereby conveys and warrants to the CITY aF AUBURN, Grantee herein, a municipal corporation of the State of ~ashingtan, its successors and assigns, the property legally described and depicted in Exhibit "A," attached hereto and incorporated herein by this reference (the "Acquired Property"}, reserving an access easement as set forth below. Grantor shall reserve anon-exclusive easement (the "Easement"} for Grantor's use and use by its heirs, assigns, successors, agents, employees, invitees and licensees, far the benefit of the Safeway Property, as described herein, over a portion of the Acquired Property, which Easement is legally described and depicted in Exhibit "B," attached hereto and incorporated herein by this reference (the "Easement Area"} under the following terms, a. The Easement Area shall be for Grantor's "emergency use," for ingress and egress to the property legally described and depicted in Exhibit "C," attached hereto and incorporated herein by this reference (the "Safeway Property"}, so long as Grantor's use does not restrict or curtail Grantee's use of the Easement Area, or interfere with Grantor's use of the Safeway Property. b. For the purposes hereof, "emergency use" by Grantor means a temporary use by Grantor of the Easement Area necessitated by either (i} a blockage of all other access routes available to Grantor to enter or exit Grantor's facilities on the Safewa y Property, where the blockage is caused by a public works project, an outside utility City of AuburnlSafeway Agreement Page 1 of 9 E~H~BIT A -DEED Return Address: City of Auburn City Clerk 25 Nest Main Auburn, wA 9 $001 Above this line reserved far recording information. WARRANTY DEED Reference # cif applicable}: NlA GrantorlBarrower: Safeway Inc. GranteelAssigneelBeneficiary: City of Auburn Legal DescriptionlSTR: Portion of Sec, 25, Twp. 21 N. Rge, 4 E., wM Assessor's Tax Parcel ID#: 2521049096 (portion) Benefited Parcel - 2521049114 For and in consideration of the sum of TEN DGLLARS ~$1 x.40) and other good and valuable consideration, receipt of which is hereby acknowledged, Grantor, SAFEWAY INC., a Delaware corporation, hereby conveys and warrants to the CITY QF AUBURN, Grantee herein, a municipal corporation of the State of Washington, its successors and assigns, the property legally described and depicted in Exhibit "A," attached hereto and incorporated herein by this reference the "Acquired Property"~, reserving an access easement as set forth below. Grantor shall reserve a nonexclusive easement the "Easement"} for Grantor's use and use by its heirs, assigns, successors, agents, employees, invitees and licensees, for the benefit of the Safeway Property, as described herein, over a portion of the Acquired Property, which Easement is legally described and depicted in Exhibit "B," attached hereto and incorporated herein by this reference the "Easement Area"} under the fallowing terms. a. The Easement Area shall be far Grantor's "emergency use," for ingress and egress to the property legally described and depicted in Exhibit "C," attached hereto and incorporated herein by this reference the "Safeway Property"}, so long as Grantor's use does not restrict or curtail Grantee's use of the Easement Area, or interfere with Grantor's use of the Safeway Property. b. Far the purposes hereof, "emergency use" by Grantor means a temporary use by Grantor of the Easement Area necessitated by either ~i} a blockage of all other , access routes available to Grantor to enter or exit Grantor's facilities on the Safeway Property, where the blockage is caused by a public works project, an outside utility City of AubunalSafeway Agreement Page 1 of 9 E~.I~IBIT A -DEED project or an unforeseen accident or event in the public right-of way or iii} a business necessity of Grantor's, provided that Grantor shall first request Grantee's permission for emergency use as a business necessity, which Grantee shall not unreasonably withhold, delay or condition. Grantor's right to use the Easement Area shall cease as soon as the blockage of any other access routes is removed or cleared or the business necessity no longer exists. c. Grantor may further use the Easement Area for regular non-emergency access to the Safeway Property if, and only if, Grantor makes, at its sole cost and expense, any necessary physical improvements and pays any transportation improvement costs or fees in accordance with applicable law at the time Grantor chooses to make regular non-emergency use of the Easement Area for access. Such regular non- emergency use and improvements shall not restrict or curtail Grantee's use of the Easement Area. d. Grantee agrees at such time as it modifies the existing fence on the Acquired Property, it will construct a fence, along the Southerly boundary of the Acquired Property, tying it into the existing fences extending to the South onto the Safeway Property. Said fence to be constructed of compatible materials to the existing fences and to include a manual, chain link gate at a location to be agreed upon, sized to allow 2-way truck traff c. All fence work shall be done in a manner that will maintain Safeway's security at all times. e. The Easement and its terms shall constitute a covenant running with the Safeway Property and burden the Acquired Property, and shall be binding on the successors, heirs and assigns of the parties hereto, for the benefit of the Safeway Property, as specified herein. For and in consideration hereof, THE PARTIES HERETO FURTHER AGREE as follows: City of AuburnlSafeway Agreement Page2of9 EXHIBIT A -DEED IN WITNESS WHEREOF, the parties have caused this instrument to be executed by its proper officers} this day of , 2010. Grantor: Grantee: Safeway Inc. The pity of Auburn By: By: Its: Assistant Vice-President Its: Date Signed: By• Its Assistant Secretary Date Signed: STATE QF } }ss. County of } I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that helshe signed this instrument, on oath stated that helshe was authorized to execute the instrument and acknowledged it as the of Safeway Inc., a corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. Dated Notary Public in and for the State of STATE aF wASHINGTQN } residing at }ss. My appointment expires County of King } I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that helshe signed this instrument, on oath stated that helshe was authorized to execute the instrument and acknowledged it as the of the City of Auburn, a Washington municipal corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. Dated Notary Public in and for the State of residing at My appointment expires City of AuburnlSafeway Agreement Page 3 of 9 EXHIBIT A -DEED EXHIBIT "A" THAT PORTION OF THE NORTHEAST QUARTER OF SECTION 25, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, KING COUNTY, WASHINGTON, MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE NORTH 430 FEET OF LOT 1 OF THE CITY OF AUBURN LOT LINE ADJUSTMENT NO. LLA02-0015, AS RECORDED UNDER RECORDING NO. 20020725001632, RECORDS OF SAID COUNTY, AS MEASURED PERPENDICULAR TO THE MOST NORTHERLY LINE OF SAID LOT 1, SAID MOST NORTHERLY LINE BEARING SOUTH 89° 12' 14" EAST, A DISTANCE OF 57.79 FEET. SAID PROPERTY BEING A PORTION OF KING COUNTY ASSESSOR' S TAX PARCEL N0.2521049096. City of AuburnlSafeway Agreement Page 4 of 9 EXHIBIT A ~ DEED S ~~~~2'~~" E ~~.~s' N V IQyU~r~L" r~~.3~' 1.~ Acre Safeway Parcel o W ~ ~ N ~ ~ a ~ " ~ ~ ~1 ~ ~ R= GC3.1 v ~-5~`J~'~3'~ S ~ 2' ~ ~ J 2~~.~2~ ~ o~ ~ao~ ~aof ~ 1 "=2aa' C~ QQ~~ ~Q~f ~ ~ ~ o ~ ~ ~ g~~ ~ ~ m a~° ~ °F ~~v ~ O~ A ti~ O (D ....Y i k .y i .~A , + YJ ' w y V ~ r r ~y • • ~ Y i ~ S THIS EXHIBIT MAP IS BASED ON CITY OF AUBURN ~~~L~,~a LQT LINE ADJUSTMENT LLA02-x015 REDORDED UNDER F..KPERES D~• D~• KING COUNTY RECORDING NUMBER 2002072500132 AND DOES NOT REPRESENT A BOUNDARY SURVEY. ~~T~`~x * Exhibit for 1.~ Acre Safeway Parcel EXH181T MAP To ACCOMPANY LEGAL aE~CRIPTIt3N wns ~ ~ n~~ror~ CITY 4F AUBURN PUBLIC WORKS 25 WEST MAIN STREET February 11, X00$ AUBURN, WA gaC01 EXHIBIT A -DEED EXHIBIT "B" LEGAL DESCRIPTION OF THE EMERGENCY ACCESS ROAD THAT PORTION OF LOT 1 OF CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLAD2-0015, RECORDED UNDER RECORDING NUMBER 20020725001632, RECORDS OF KING COUNTY, WASHINGTON, SAID PORTION BEING DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST NORTHERLY NORTHEAST CORNER OF SAID LOT 1; THENCE SOUTH 11°17'51" EAST ALONG THE EAST LINE OF SAID LOT 1 A DISTANCE OF 376.73 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 11 ° 17' 51" EAST ALONG SAID EAST LINE OF SAID LOT 1 A DISTANCE OF 63.03 FEET TO A LINE PARALLEL WITH AND 430.00 FEET SOUTH OF THE NORTH LINE OF SAID LOT 1; THENCE NORTH S9° 12' 14" WEST ALONG SAID PARALLEL LINE A DISTANCE OF 236.92 FEET TO THE WESTERLY EDGE OF SAID LOT 1 AND BEGINNING OF ANON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 643.11 FEET THE RADIUS CENTER OF SAID CURVE BEARS NORTH 57°25'35" WEST}; THENCE NORTHEASTERLY ALONG SAID WESTERLY EDGE OF SAID LOT 1 AND ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF S°51' 16" AN ARC LENGTH OF 93.20 FEET; THENCE LEAVING SAID WESTERLY EDGE SOUTH 7S°37'49" EAST A DISTANCE OF 82.17 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 395.00 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12°32'27" AN ARC LENGTH OF 86.46 FEET; THENCE NORTH SS°49'44" EAST A DISTANCE OF 14.13 FEET TO THE EAST LINE OF SAID LOT 1 AND THE TRUE POINT OF BEGINNING. THE ACCESS ROAD CONTAINS 14,406 SQUARE FEET X0.331 ACRES, MORE OR LESS. City of AuburnlSafeway Agreement Page 6 of 9 -ft. EXHIBIT A -DEED (THE BASIS OF BEARINGS FOR THIS DESCRIPTION IS CITY OF AUBURN LOT LINE ADJUSTMENT LL02-0015 RECORDED UNDER KING COUNTY RECORDING NUMBER 20020725001632.) City of Auburn/Safeway Agreement Page 7 of 9 THE M05T NORTHERLY NORTHEAST CORNER OF LOT 1 OF LLA02--0015 S 89'12'14" E 57,79' N 41'06'42" W 92.34' N o~ ~oo~ zoo o 1 "=100' ~ w ~ N 88'49'44" E 14.13 w~~ ~ ~N CURVE DATA ~ v~s L~ 8fi. 46 ~ ~ ~S~$~ R =395.00 „ ~ ~ ~=12 32 27 ~ rho ~=08'51' 1~6" $2. ~ o ~ R=603.11 S7$•37'4g» ~A=93.20' E b ~ ~ ~ Emer Rcad Access ~ ~ g TOTAL CURVE N 89' 12' 14" W 23fi.92' L_s3o.as' ~ R-~ fi03.11' 162 L1=59'5fi'03" 5~t~ OQ PO~~ ~o~ ~~E~ v~~ ~ R, g p,~~~p~~ Sp,~E UST ~ pF BOO ~~,.~aF was ti ~ ~ a : THIS EXHIBIT MAP IS BASED ON CITY OF AUBURN ~,~~FGrS~~P;~~~~~ LOT LINE ADJUSTMENT LLA02-0015 RECORDED UNDER pNq~ L~~yD KING COUNTY RECORDING NUMBER 20D20725001 fi32 AND DOES NOT REPRESENT A BOUNDARY SURVEY. ~,no~ * EXh~bit for Emergency Road Access EXHIBIT MAP TO ACCOMPANY LEGAL DESCRIPTIGhI ' WASHINGTON CITY OF AUBURN PUBLIC WORKS PART CF EXHIBIT B 25 WE5T MAIN STREET October ~2* 2049 AUBURN, WA 98001 EXHIBIT A -DEED EXHIBIT "C" BENEFITED PROPERTY LOT 1 OF CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA02-0015, RECORDED UNDER RECORDING NUMBER 20020725001632, RECORDS OF KING COUNTY, WASHINGTON, EXCEPT THE NORTH 430 FEET OF LOT 1 OF SAID CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA02-0015, AS RECORDED UNDER RECORDING NUMBER 20020725001632, RECORDS OF SAID COUNTY, AS MEASURED PERPENDICULAR TO THE MOST NORTHERLY LINE OF SAID LOT 1, SAID MOST NORTHERLY LINE BEARING SOUTH 89° 12' 14" EAST, A DISTANCE OF 57.79 FEET. City of AuburnlSafeway Agreement Page9of9 1 ~ ~ y►t xi } A PLEASE REC~~ ~E~ RECC~E~ , RETURN ~era~.d B~`G'S51o1zx~ Y~AWS~A~~aN ~q,~~ ~qcE of ~~3 ~~~iCe o~ the Cen~ra~ Counsel. ~91~0~~002 3~ ~~NG C~UN~'Y, ~ Thy Boe~.n~ Co~an~ F.C. fox 3'T~7, NBC ~.3-~08 Seat~~o, OVA 9814 ~ ~ ~-1 ~ DC~C~7NIEN`~ TITLE: ~e~~axat~a.on v~ Covenant Conditions, and ~ Res~x ~cta.ons RE~`ERE~CE ~'C~iBERS ~ELAT~L~ DQCUMEN''~S ~ CRANTo~t1B~~ROWER : The Boe.~ng Com~an~r and Eaf e~a~r Ync . CRANTEEIASSI~~EE~BE~E~'~C~ARY: ~ LEGAL DESCBZP~'z0~: Poxtions of Se~t~.ons 24 and ~5, T~~.~, ESE, ~ W . ~ . , in Ka.n~ Coup t~ ~ ~'a~h~ngton, ,as r~ox~e ~u~~~ desc~ihed in Exha~b~.ts A ana B, heg a.nn~.r~g on p~.ge . ASSESSOR' S PA~iCE~, ~C ~~~~.~~-~9t~69; ~4~1Q4~-~~q9; ~~~~,a~-~94~~, 24~~~4-9f~9~.; ~4~~~4~9q~2i ~42104~-9q~~; 2~~~~~-9D94; 2a~10~4~9~95; ~5Z1Q4-9035; ~S~~,D~--~~78; ~5~~a~~~asa; ~5~~.a~-9os~ r ~5~~a~-9a9~; ~5~a~a~-~9a9~; ~~~~a~-~~a~; ~~~~a~w9~.o5; ~~~~.a~~~~a~; ~~~~.a~~~lo~; ~n~ ~5~~a4-~.0~. f l~.fi~ ~dR R~COR~ A~' TNT R~~l}~5~' q~ ~RANSNA~ilg1~ T17~~ i~fSURANgE COi i ~ i 1 t[ 4 R ~ECLA►~'~QN QF ~~y~~.~N'~S, C~I~~~~Q~S, EASE~TS , ANA RF~'R1C`~I~~TS ~~~5 ~ECLARA'~IUN QF Q~}vE~A~~'S, C'Q~~'~~Q~S, EASE~E ~`S, A~~ RES'PR~C~`I~~'~ (thl~ ~ti~eC~.a~~at~.Oxi°' } IC1adP thx5 day elf ~ ~ ~2 , ~y aT~.d between $~E~~ CCN~PF~I~Y, a 1 ~e1a ire C~~p~rat~,t~n ~ 1~~C~~'~.n~rr ~ ~ and SA~"EG~~~` ~ a Le~,aWare cnrparat~.an 4 "Safeway'r } , cal~.ect~.~re~.y, the "Part~.eS, and each of the Parties ~.s accasiana~.ly here~.r~a~ter referred to as a „ Pax ty . " 1~EC~~'~S A. ,~oe~.ng ~.s the ov~mer of certain real property ~,ocated ~,n ding bounty, Washy n~tvn and legal. iy described on E~h~.~~. t A {the "hoeing Propertyr► ~ , Safeway ~s the owner of certain real property a~.sa ~.ocated in ~~nr~ County, Washi,n~tan, and ~.ega~.ly described an Exhib~~. t B f the "Safeway Praperty'► ~ . Saf ev~ay znten~s t~ ~ develop and in~ta.a~.1y ease the Safe~ray Praperty as a. warehouse ~ and di~tr~.~au.t~.on facility as appro~imate~.y dep~.cted Q~ thr~ S~.te p~a~ that 3.5 E~h i.~it C hereto ~ the "Site Plan" ~ . C ~ Boe~.n~, as the o~rnex of the Bve~n~ Property, aa~d Safeway, as the owner of the Safeway Property, have agreed to ~a~e the Boeing Praperty and the Safeway Property 4cal~.ecti~re~.y, the "S~.te" } ~u~a~ ect to certain co~re~rants, conditions and re5trzctian~ that shah. run, ~r~.th 51~ch hand ~'~ERE~`C~E, in cons~.derata,on of the f oxgosr~g and the ~CLUtL~a~, C~TI~d~.tl{~~'1,5 ~'le~e~.n~f ter C~nta~ned, th.e Part~.eS c~~ree a~ f~1~.aw~: 1. ~E~'Z~TY`~IC~S ADD P~JRPQSE. , Bui~.d~.ng eetr,~ctions , Al,l bui~,d~inge and other ~.mpraver~ents on the Site, or any part thereof and a~.~. pl.an~ for developent or redevel.apment of the Sate ar any part thereof shad. cvnfor~n to the regu~.r~e~nents of thti s Declarat,~oxa . 1.2 load and Street ~es~.gnat~.ans. ~esi~nat~.on,s o~ roads and stxeets in this DecZarati,on ~ha~.1 be deemed to app~.y to the Streets referred to herein as designated and la~.d out on the date hereof , p~~o~vided that this ~ec~.arat~.on shah. contint~~ t C 4 ` 4 ~ ~ t to a~p3.y to said stxeets and roads if called by a dzffBrent name at any t~.me in the future andlor if a~.igned dxf f erentLy xn the future f rorn their a~.ignment on the date hexeof . ~ 3 owners, ~,n "owner" is any party that owns fee t:~tle to any pox~tian of the Site and the ,►~wners" are alb of the fee owners of any pvrt~.on of the Site from t~.me tv t~.ame. Nothing in th~.s Declarata.an shah. prevent an Qwn.er fxom delegata.ng and ass~.gn~.~zg ,its nights and ob~.igations under this Dec.arat~.an to any party that leases all, or substant~.al.1y all of the portion of the S~.te owned by such ~wnex~ provided, fuxther, however, na such de~.e~at~.an sha~.~. d~.scharge ax re~.,ieve any ~wnex fxom ~.ts Qbligat~.ons hexeundex) . Any such deZegat~.on must be set f oath in a wr,it,ing executed by such dele~at~.ng ~wnex and recorded in the "Records" tas hexe~~natter def~.ned} l.~ Records. "Records" means the ~ffic~.al ~ecards of ~~.n,g county, Washington. TBRM. ~'he restrictions declared, reserved, gxanted and ~ established hereby shall continue in full foxce and effect in ~ e etu~.ty. This ~eclarat~.an may be terminated or modif~.ed p~ oa~1y by a wx~tten ~.nstxr~ent executed by a~.~. of the then ~ ~v+mers of the Site and recorded in the Records . ~ 3. ~~vBNAN~`S, C~ND~TZDNS, AND RESTRICTzC~NSR hoeing, with respect to the Boeing Property, and Safeway, w~.th respect to the Safeway Property, each covenants that the Site wi~,Z be used by the Part~,es and by all of the~.r respective successors- in--~.nterest, and by a~.l occupants of the S~.te in ca~npliance w~.t,h and subs eat to the following 3 ~ 1 permitted Uses; Proh~.bitian cif Certain Uses. C~n~.ess o therw~. se agreed in wr~.~ ta.ng by the owners , the S~. to shad. not be used for any purpose that ys not pe~~.tted Undex, or wou~.d be a n~nconf orming use under, the applicable ~onir~g ord~.nances and .and use regu~.at~.ons in effect from tame to time unless such ~~se is authorized by the applicable land use authority having ~ux~a.sdiction of the S~. to , Cinder no ca.rcurnstances sha11 the Site be used in any way far ax` in c:annect~.on with ta} the sa~.e or display of pornographic, obscene, or sa~~cal~.ed "adu~.t" 1~.teratux~e, per~.ad~.ca~.S, ~tovzes, videos, pa.Ctures, photographs, or the likei fib} the pa~esentat~.on of so-ca~.led "ddu~.t" elltertaZnm~nt ~ ~ C } tale aperat~.on ~f a strip c~.l~b, ~ t ~ gent~.emenrs club, or an establishment pra~riding enterta~.n~nent in the farm of table ox .ap dark a.ng or { d~ the sa~.e r di.stributlon, or d~,splay of parapherna~,xa that are ~~sed in connect~.an w~,th any i.lega~. dr~~g, ~o public ar pr~.~ate abno~ious use ar r~u i lance shall be per'm~.tted to e~~.st or operate upon the Site ~Q rubbish, trash, waste, resxduer brush, weeds, undergrowth, ar debr~.s of any kind ax character shall ever be placed or permuted tv accurr~u~.a.te upon the site, but the fere~eing is not intended to prohibit wet~.ands areas or nat~~ra~.i~ed ax'eas that may be regu~,red by a ga~rernmental authar~~ty or desired by an owner of a portion of the bite ~n connection with development of the S~.te. A1~. bu~,~.d~.ngs an the ~~.te shaZ~. be kept in goad repa~.r and candi.t~.an, 3 ~ ~oapexat~.on w~.th and No ~bj ection to ~'ormat~.or~ of ~ra~.nage Dxstr'ict or owners' Assoc~.atiar~. I~ the ~3wner of the Hoeing Property sha~.~ take action to farm an assaciat~.on of a~.l or so~te of the property ow~er~s ~rhase ra ert conducts ~ p y storm or surface water drainage into the dra~.na~e canal known as "Government ~anal'r 4whxc~, is ~.egal~.y described in ~ ~xhib~.t D} yr ~.f the Safeway Property xo used for p p inc~.us~.ox~ in a drainage d~.stxi,ct, local. improver~ent distr~ictr c~ or other public body having the purpose of manag~.ng all ox some storm. and surface water that drains into ~avernment ~ Gana., the Gwner of the Safeway Property shah. not abject to, F ~ and shall prav~.de goad faith coaperata.an in, the f ormatian of such assac~.ataan, dra~.nage d~.strict, local im raver~ent p dzstr~.ct, or public body {as the case may be, the "~ra~,nage Authorityr'} sa long as: ~a} the ~inaricia~ burden of the Drainage Authar~.ty a.s equa,tably apportioned among a~.~. of the property subject thereto (and an a~.~,oca~tion sha~.~. be deemed e~u.itable if xt material~.y equ~.va~.ent to the a~.locatian provided for in that certain I~rair~age Agr~ee~nent between Boeing and Safeway dated as of the date hereof and recorded in the Pecords the same day that taxis Declaration is recorded (the "Draiinage Agreer~ent" } ; {by the scheme for the ~tanageament and ad~m~,nistration of tie Drainage Authority, inc~.udzng the election of th.e baazd of directors thereof, is faa.r and equ~.table; and ~ ~ it ~ l the ccnstruct~.an of any impro~rements by the Brainage Authority wa 11 not materially and adverse:~y affect business ape~at~.ans of the Safeway Property. 3 ~ ~ Easements . Safeway, as the Owner of the Safeway Prape~'ty, hereby ~rar~ts Boe~.n~, as the ~wnex~ of the Boeing Property, the fvl~.owang easer~ents aver the Safeway Property far the benefit of the Owner or owners of the Boea~ng Praperty~ Each such easement shall be deemed to ~.ncl.ude the reasonab~.e right of ingress and egress over the Safeway Pr~aper~ty to perform the act~.~~.ta.es descra.bed in Sectiar~s ~ . ~ ~a} thxou~h (e} below. zn exeroa.s~,ng such nights, Boeing agrees to comply w~.th Safeway` s reasonable secura.ty measures, which, except w~.th respect to the right described zn Sect~.on ~ . ;3 (a} , sha~.:~ include one (1 } bus~.ness days prior written notice of entxy and Safeway's x~.ght to accompany Boeing's representatives on~ site, prav~.ded that ~n the case of an e~lexgency, Boe~.ng nay enter the Safeway Property w~.thout gi~v~.ng such nota.ce and without an acca~rpanying Safeway representative, but only for ~ such period as is necessary tQ deal w~.th such emergency. 'the ~ par~ta.es ac~now~.edge that certain utslity insta~.lations that ~ have been and nay con~.a~nue to be used by Boe~.ng~ may be or w~.ll be abandoned at some t~.me in the future. Such instal,~.ations ~ include w~,thaut limitation certain natural gas ~.i,nes and ~ certain f.iber~optzc lines. Such ~,nsta~.latians, when abandoned by Boeing { or by the a~pli cable ~ati~.i ty pur~reyar } may be lef t in p~.ace . ~a} Rail Easer~ent. An e~clus~.~re and perpetual. easement (the "Raiil Basement"} over the area the "Rail Basement Area" } described zn Exh~.b~.t ~ for the opezat~.vn and ma~.ntenance of a rail line ser~ra,ng the Boeing Propert~r. the Ral.l Easement Area shall be fenced off from the balance of the Safeway Property by Boeing pursuant to that certain Bemo~.ition Agreement between Boeing and Safeway dated as of the date hereof and such fence and related faci~l.a.ta.es shall. thexeaftex be maa..ntained by Boeing in good condition and repair by the Owner ar Qwner~s of the Boea.ng Prapexty at na expense to the Owners of the Safeway Property. Safeway reserves the rl.ght to enter on the Rax~. Basement Area to inspect the same and the fence between the Rail Easement Area. and the balance of the Safeway Property shah include ~.acked gates far 5af eway to use to access the Rail Easement Axea for such purposes, but, except in an emergency, Saf ewa~r shat not access the Raa~ Z 5 ~ ~ ~ ~ Easement Area fox such purpose without gi~ring the Qt~tner or Qwnex~s of the Boe~.ng Property not ~.ess than twentywfoux {~4 y hours telephonic or wx~~.tten notice of such entry. The t~wner ar Qwners of the Boeing Pr~aperty shah. have the r~.ght to acco~npan~ ~afeway's representati~res on~s~.te. Safewa~r and Bae~.ng each sha~,~. have keys, cort~inations or secur~.ty codes to such gates . Safeway shah. not interf ere with Boea~ng' s ~~se of the Ra~~ ~ra~E~z'C1ent Area. At Such ~f an~1'r that the xal~. line is abandoned by the Qwner or Qwnexs of the Boeing Property, said Qwne~~ ax owners shaZ1, at the~.x expense, remove such fencing, rema~re the ra~,Z :lines and the improvements appurtenant thereto, and shall r~o~zgh grade the fail Easement Area and qu~.tc~.aim its easement rights with respect to the Ra~.~. Easement Area to the owner of the Safeway Prvporty. Boeing may ter~ii~nate such fail Easement at ar~y tune by giving ~ written nota.ce of such te~rna.~aa.ta.on to the owner of the Safeway Pxopert~r! but Bae,ing sha~.~. not be deemed to have abandoned yr texm~.nated such ~a~i Easement un~.ess Boeing shall gave such wr~.tten notice of termination. {h~ wells A nonexclusive easement to enter the saf eway Property for the purpose of abtaa~ning readings from F } ~ monitoring wel~.s as shown on the Site Plan and tak~~ng samples fxa~n such wel~,s and fox the maa~ntenance, repa~,x, replacement, renewed., decommissiona~ng, and al~sa.ng of such we~.ls . Such easement sha~,~. term~.nate after the washingtQn state Department of Ecology { "DBE" ~ and the United Mates En~r~.ronmenta~. Protec~~on Agency ~ "l7SEPA") reFt1o'~l"~ ail requa.xements for the continuation. of such monitoring. Upon the xemava~. of ad.d. such r~equir~e~nents, the Qwxier or Qr~exs of the Boeing Property, at n~a expense to the Qwner of the Safeway Pxoper~ty, shad c~.ose and decommission a~.~ such test welds ~n accordance with applicable regulat~.ons, and upon such wed.d.s being so decommiss~.oned, such ease:~ent shad.l term~.nate. While the wel~.s axe d.ocated an the Safeway Property, they shall be maa~nta~.ned zn a good state of repair and operation in accc~~'dance wi, th applicabd.e legal, requirements by the Owner or Qwners of the Boeing Property at no expense to the owner of the Safeway Property upon request by Safeway, Boe~.ng shad.d. provide Safewa~r with the logs for such we~.~.s at no charge . the Qwners of the Boe~.ng Property shall. provide the Qwner~ of the Safeway Property with cop~.es of all reports prova,ded to the DBE andlor USEPA Frith respect to such wel~.s and mon~.to~ring activ~.ties and copes of any written commun~.cations r~ecei~red i ~ ~ ~ by the Owner of the Boe~.ng Property f ram DaB, UuEPA or any other gvvernmenta~. authox~.ty over such wel~.s tas the case may ber an "E11Vironnl~'nta~. Authar~,~ty" ~ with respect to such wells or test results . ~f an ~riv~ironmenta~, A~~thox~.ty orders, or a.ndicates ~.n wri.t~.ng that it may ordex, the insta~.lation of addit~.onal rnan~.taring we~.ls on the Safeway Prvpea~ty, the ~wnex oz~ ~wnexs of the Boeing Property sha~.~. gave the gwnez of the Safeway Property written nat%ce thereof as soon thereafter as ~.s reasonably possa.b~.e ~ So ~.ax~g as the proposed locations of such add~.t~.onal we1~.s and the manner of their installation sha~~. not unreasanab~.y xnter~fere w~.th either the business operations on the Safeway Pr~vpex'ty ar the planned deve~.opment ar rede~re~.opment of the Safeway Pxoperty, saf eway shall not unreasonably withhold its consent tQ the installation of such additiana~. wells. Notwithstanding the farego~,ng, if saf eway reasonably be~.ieves that the locat~.or~ of such additional we~.~.s wild. interfere wa,th either Safeway's business operatiions an ~ the Safeway Pxoperty ar the p~.anned deve~.apment ar ~ redevelopment of the Safeway Pxoperty, Safewa~r reserves the right to contest the particular ~,ocat~.on of any such we~.:~s, ~ and w~.th respect to such contest, the Owners of the Safeway Prapert~ shall hold the 4wnex~s of the Boeing Property free and harmless with respect thereto. Such contest sha1.~. be ~ conducted by advzsi.nq the Owner of the Boeing Property of ~ Saf eway' s ab~ ectians . Baeir~g sha~,~. provide such abj ect~.on.s to ~ the Bnv~,ronrnental Authaxxty and bath Safeway and Boe~.ng sha~,~. provide representatives why sha~.~. be present when such ab~ectxons are da.scussed wa~th the Env~.zonmental Authority. Upon the insta~.~.ata~an of such add~.tsana~. we11s, the Site Flan sha1~. be amended to ~nd~,cate the~.r locat~.ons by an amendment tv this peclaratioz~ that sha11 be reco~cded ~n the Records and the easement granted to the Owners of the Boe~.ng Pxoperty pursuant to this sect pan :3 4b~ sha~.~. be deemed tv apply tQ s~ach additional we~.ls. As contemplated by Section 1~..6 of that certain Agreement of Purchase and Sale dated Apr~a~l 18, X002 4 as amended, the Puxchas a Agr eement ~ made by and between Boe~.ng and Safeway, Boeing, and not Safeway, sha~.~. be responsib~.e for sat~.sfya~ng all cv~.d~.tions tinc~.udzng, but not limited to, paying the cost thereof ~ ~.r~posed in can~aection with cornp~.eting the teams and oond~.tions of that certain Agreed ~]rder o. ~E O1~W'~RNR~-~~~5, as amended by that certain Stipulated ~mend~ent No . 1 to Agreed Order Na ~ I7E 01BWTR~IR-~ X345, provided, however, safeway shah. not obstruct Boeing's efforts to satisfy such ter~rns and condi,t~.ons . Boeing' s ~ + ~ ~ obligations pursuant to the ~.mmed~ate~,y ~receda,ng sentence and ~ ii } the ~ux~chase Agreement shall not be terminated Qr 1i~t~.ted by Section ~ hereto. {c} ~7t~.l~.ty, ~`eiecommunicat.ion, data, and ether Lanes. ,An exc~.usive, ~ea~pe~~al easement over the areas de~ibed in E~hibi~ the ''C3t~.~.~ty Easement area" } fcr the instaz~.ation, use, maintena~.ce, repair, replacement, cr enhancement of ut~.lity, te~.eco~nunicat,iQn, data, and other service ~.~,nes ~.acated in the Ut~.~.ity Easement ,A,rea; prav~ded, howe~rer, a~f Safeway dedicates any portion of the Utility Easement Area along Street to the City of auburn or another govern~r~enta~. authcr~.ty, then the area of such easement along Street shah. mv~re to the west away from street by one foot fnr each foot dedicated, In the event of any such dedxcatian, either of the ~aart~.es shall have the r~.ght to have the legal. descrzptzon of the C~ti~.~ty Easement Area amended to reflect such ded~.cation and the app~.~.cat~.on of the preceding sentence . ~l~e owner or owners of the Eoei.ng Property may ~.zcex~se the ~.~se of said lines to th~,r~d parties without the ~ ~ay~ment of any fees, charges, or ether amounts to the owner or ~ owners of the Safeway property. ~ur~ng the term of this ~ec~.arat~.an, the t~ty~.ity Easement ~►rea, together with azl ~ facilities ~.nsta~.~.ed there~.n, sha~.~. be mainta~.ned in a good state of repaa~r and aeration in accordance with ap~~.icab~.e ~.egaZ reguixements by the Owner or Ownexs of the hoeing property at na expense to the 4w~~er of the Safeway Property. ~aeiz~g may terminate such easements at any time by giving wrz tten notzce of such termination to the O~r~xer~ of the Safeway Property, but ~aeing shah. not be deemed to have abandaneci or terminated such easements un~.ess Soe~.ng sha~..l gave such wr~.tten not~.ce of termination . ~3pon such term~.nat~.on, the util~.ty ~.nsta~.~.atians :~oeated in the ~~t~.~.ity basement ,area may be abandoned in place. €d3 N~onuments. ~n e~c~.usive, perpetual easement aver the areas described in E~hib~.t G (the "N~onument Eas~nent Aa~eas"; for the insta~.,at~.an, ma~.ntenance, re~alr, replacement, cr enhancement of monuments and assac~ated landscap~.ng ~ ~ura.ng the team of th~.s ~eelarat~.an, the onu~tent Easement Area, together w~.th all facili.txes instazzed. therein, sha~.~. be mainta~.ned in a goad, state of repa~.r and cperat~.on in accordance w~.th app~.~.cabZe legal, requirements by the Owner or Uwners of the ~aei,ng Property at no expense to 8 the awner~ of the Safeway Property. Boeing may terminate such easement at any ti.~ne by gLV~.ng wx~.tten notice of such termination to the owner of the Safe~ray Property, but Boe~.ng sha~.1 not be deemed to have abandoned ax terminated such easement unless Boeing shaZ~. gave such wx~.tten nat~.ce of terma~natzon. t~pan such termir~at~.on, the monuments ~.ocated in the Monument Easement Area may be abandoned in place. (e} Dra~.nage D~.ne. An exC1~xS~.ve, perpetual easement aver the area described ~,n Exhibit H the "Drainage Easement Area" y for the ~.nstal~,ata.on, use, ma~.ntenanoe, repair, replacement, ar enhancement of stogy and surface water dra~.nage fac~.~.atzes . Dux~.ng the term of th~.s Declarat~.an, the Drainage Easement Area, together with all fac~.lities i.nsta~.~.ed there~.n, sha1~, be mainta~.ned in a good state of repair and operation ~,n accordance with app~.icab~.e ~.ega~. regu~rements by the Owner or owners of the Boea.ng Property at no expense to ~ the Owner of the Safeway Property ~ The foregoing sha~.l. not be deemed to prevent, ~ xmit oz' restract the 1iab~.lity of the cam' owners o f the Safeway Property w~. th respect to the dra ~.nage o f ~ storm and surface water from the Safeway Property onto the ~ Boeing Property as prova~ded in the Drainage .Agreement. ~ The ~til~.ty Easement Area, the Monument Easement Area and the Drainage Easement area are apprax~.mate~.y depicted an the site ~ F~.an ~ Each of the easements granted to the owner of the Boeing Property hereby are appurtenant to the Baezng Property, are not ~.n gross, and may not be Sold or conveyed to any party except as part of the sa~.e ar conveyance of the Boe~.ng Property, ox same port~.on thereof, to such party (except that the pwner c~ the Boe~.ng Property may ~.~.cense or sublicense the right to use faci~,it ies or .insta~.lat.ians that are paced ~.n such easement areas descra~bed in Sections 3 ~a~ and ~c~ hereof so long as such faca.~.ities ax insta~.lat~.ans are consistent with the purposes for wh~.ch such easements are granted hereby} „ Notwithstanding the forego~.ng, ~.f any portion of the Boe~.ng Property is con~reyed to a third party by Boeing, Boeing need not convey the benefits of such easements, ~n who~.e or in part, as it nay e~,ect ~prvvided, however, the f gregaa,ng provision of th~.s sentence shall be construed to relieve the property conveyed to such grantee from the prov~.sians of th~.s Declaration}. Safeway, as grantor and for itself and its successors and assigns, reserves and retains the right to use the s~~rface of the ~~til~.ty Easement Area, Monument Basement ~ ~ e A d 4 + gavernmenta~, agency with zespect to any deve~,opment ar redevelopment on, ar proposed for, any other portion of the Site if such development ar redeve~.apment conf arms to the requa.rernents of th~.s Dec~,ax~at~.on so ~.ong as ~a) such development ax redevelopment conforms to the requirements of this ~ecl,arat~.an, and fib) the canda~tions to such development or x~edeve.lopment sha not materia~.~.y and adversely impact s~~ch Owner~S use and aperatlon of its property. ~b~,igata.ons Under Basement Deed» Boeing, at no expense to the Gwner of the Safeway Property, sha~.l discharge all obl~,gat~.vns imposed on the Owners of the Sate, or any port~.an thereof , puxsuant to that certain Basement deed recorded February 198, as Instrument No« 89~~.2~095 of the Recands, and sha~.l defend, protect, indemn~,fy and haid the ~lwrxex of the Safeway Property free and harmless with xespect thereto, u~x 3.8 ~b1~.gat,ic~ns Under Bnvxronntental N~a.tigation ~ Agreement . Boe~.ng, at no expense tv the Owner of the Safeway ~ Property, shall discharge all ob~.~,gations unposed ~~pon the Owners of the Sate, tv the extent that such ob~.igation~ rema.~n undischarged, pursuant. to that certain Bnv~.ronment M~.t~,~ata.on ~z c~ Agreement dated December 3~, :~9~0, a copy of wh~.ch is attached ~ as Bxhib~.t A to that Certaa.n Reso~.~ztion of the ~`ity Councz~l of ~ auburn, wash~,ngton recorded ~'anuary ~ , x.99 , as rnstr~ment Na . 9~.~~.~2~~. of the Retards and shall defend, protect, indemnify and haJ.d the Owner of the Safeway Property free and haxm~.ess with respect thereto. ~ . ~ Natlt~a~. ~aS LXn~~ . 'the ~3483.1'1C,~" ~rapeZ'ty lS s~'.r'~'~d by' natural. gas pipel~.nes on the Safeway Property, whzch are shown as easements ~1A, 21B, and 2~.C on Barghausen Harvey, drawa.ng No~ 1,~~g4, dated dune ~0~~, and which are ~.nsta~.led on the Safeway Property by virtue of a~n easement recorded in K~.r~g C.'ounty, Washington under Recording No . ~ 714 4 ~ ~ the ~'Oas Lines" } . rf p~.anned use or deve~.opment of the Safeway Property requires the Owner of the Safeway Pxoper'ty to rove or disrupt any of the Gas Lines, ar if any of the improvements an the Safeway property would be placed aver any of the Gas Lines, the Safeway Covenants that it w~l~. axrange for the relocat~.on of the Gas Lines at the expense of the owner of the Safeway Property Prior to relacat~.ng the Gas Lines, ~a} Safeway shall give the Gwner of the Boe~.ng Property 11 ~ ~ ~ ♦ r. written notice thereof and fib} the paxt~.es sha~,~, agree a vn p the rnar~ner ~n wh~.ch the ~.~npact of such re~.ocat~cn, includ~.n the momentary suspension of serv~,ce when the sw~tchaver ~.s made from tMe Cos Lines to the replacement lines, shall be ~min~.r~i~ed to the gxea~est e~te~t reasonably poss~.b~.e, ~hach agreement sha~.~. not be unreasonably w.ithhe~.d or de~.ayed. ~ . ~ND~NZ~~C~.'~l~N lN"~~A~'~S . ~ . zndemni f icat~.on of ~wrxers . each owner ~ ~n th~.s Sect~,on 4.1, the "Indernn~.fying party" } hereby a~ndemnifzes hoxds ha~~n~.ess and agrees to defend the other ~wnexs ~ in this Section ~ ,1, the ~nder~nif led Partle~" } from and against a1~. c~.aims, damages, expenses ~ includa.ng, witha~at 1~.r~.itation, atboxneys' tees and ~~easonab~,e ~.n~res~i~atzve and da.sco~rery casts} , ~.~.abila~ties ar~d j~~dgments on account of bod~.~.y injury tv persons, lass of life, or physical. damage to praperty occurring on the Site and on the was ~ ~ . ~eda.ately add azn~,ng h„~s ~he Cal~Sed by the aCtl"~e p~.S~lve n~~~.~7.gen~e pr r~:~ ~ wi~,~.fu~. n~~.~conduct of the ~ndemnlfying Pa~`ty, or its agents, ser~rants ar e~npl,oyees; pro~rided, howe~rer t he ~ndernn~fy~n~ party does not i.ndernni,fy the ~nde~nnif~.ed ~axty against any ~ boda.l~r ~.nj~~ry, ~.oss of l.~.fe ar h ' p ysica~. damage to the extent ~t is caused bar the active ar passive negligence ar w.~11fu~. misconduct of the Zndernnified ~arty~ ,cam ~ Q . ~ Liabx~.ity Insurance Coverage and L~,mits, each Owner agre+~s to ma~nta.in, and~ar cause to be ma~.nta.ined, at no cost to the other owners, 3~.aba.l~.ty ~.nsurance a~nsur.in.g ~.ts intexes~ts against clal.ms fc~r personal. ~.nju~y, hodzl, a.n'u ~r death and pxvpsrty damage a~~~.rr~.n,g an, ~.n or about the bite ar~d the gays ~.am~med.iately at~jaining the Site, with a pal.icy emit ~~o~rering personal injuxy ~.iabzlity, bod~.~ ~,n'ur Y ~ 1iah,~~.ity, death and propexty damage ~.iab~.~.ity} of not leis than ~'~.~re I~~.ll~.on ~aJ,~.axs ~0~, ~0~} fax tataZ c~.aams for any one occur~rer~ce ~ ~'he insurance l~.mits ~n this sect~.on shall be subject to increase from tame to tame by suc~a amounts as the owners may reasona~a~,.y agree is necessary or des~.rable, as may be ev~.denced by the pxacta~ce of sim~,~,arly s~.tuated properta.es . 4 ~ 3 ~ol~.cy Requ~ rements ~ insurance co~rexage required b th~.s ,agreement may cor~ta~.n the fa~.lowing e,tiements f so lon as g the required coverage is not d~.minisbed, the r~e~uired ix~its 1~ ~ * 1 5 the convenience of the parties hereto, aye not a art o~ this p beclaration, and sha~.~. not be used for the inter retat~.an or p determznatzon of the ~ral~.dity of this declaration ax an provision hereof . ~ ?.3 ~~hibits. the e~h~.blts attached hereto aye h~reb ineorpox~ated herein ~ this xef erence ~ ~ for aZl purposes. 7 , 4 walver~. ~~e wa~.ver or~ fai~.uxe to enf ~rce an prov~.sion of tha.s ~ec~.aratian sha~.~. not operate as a wa,i~rer of any future breach of any s~~ch pro~isa,on or any other prav~.s,ion hereof . 7 « ~ ~ppz~,cab~.e ~,aw. Th~.s ~eo~.arat~,on sha~.~. be ovexned ~ by and constxued in accordance w~,th the saws of the ~ fate of ~ashzn~ton, except for any cho~,ce~of-iaw pr~.nc~. ~.es tha ~ t pro~ride far the appi~catzon o~ the ~,as of ~;nother ~ura.sdzctzon. 7 ~ ~ ~nt~,rc A~xee~ent . Th~.s DeC~.ardtion ~1~C1~d.~n ~1~ e~hih~.ts attached hereto su ~ ~ persea~es any pr~lor~ agreements, ~ negvt~at~.ans and communicat~.ons, oral. ar wra.tten, reiat~n tv ~ thzs subs ect mattex and canta~.ns th ~ ~ e ent~.re agree~rnent between, and the f ina~. ~~pression af, ~oein~ ar~d oaf eway w~.th res ect ~ to the subject matter hereof p ~onstr~u~t~.on.. 'the parties hereto her~eb a ~ c ~now,~ ed~o and agree that ~a} each party hereto ~.s of e a1 bar ainin stren thr b each ~ ~ ~ ? such pasty has acti~rely part~.cipate~ in the dxaft~,n~t preparation and ne~otiat~.on of this ~ec~.arat~.a n, ~ c ~ each eu~h party has cons~xl t~c~ wz th such part ' ~ owe counsel., and such other rofesszo~.al ~ ~ adv~, sore as such party has dee~ed appropriate, re~.atin~ to an and alb. matters co:~templ,ated under th~,s ~ecl.arat~.an, {d} each s~~ch art and such party ~ s counsel anc~ p Y advisors have re~rzew~d this ~eC~.axatlon r ~ e ~ ~~Ch SuCrl ,party his d~reed to ~nt~r znt~ ~ h~.S ~eolarata~on fallowing s~~ch re~r~ew and the renderzn of suc advice, and (f an ru ~ h } y ~e of construction to the effect that ambi~u~, tapes aze to be resal~red agaa.nst the dxaft~.n ar ' shah, not ap l in the a.n ~ p t~.es p Y terpretation of this ~ec~.arat.io~,, or anY portions hereof, o~ any amendments hereto. 7 ~ 8 Severabi l i ty . In the e~rent tha ~ an ox~e ox nor y e pro~risions of this ~eclarat~.on are found to be unenfo rceab,~e, i4 f I + ~4 the r~exna~.ndex Qf the s Declaration shall nonetheless be and remain valid and enf azceab~,e, un~.ess tine bas~.c purposes of th~,s Dec~.axatzan are frustrated thereby. 7 . ~ wa~ . ~a wazver by ei thez party a f an def aul t under thzs Declarata.c~n b ~ y the other party sha~.~. be effecti~re or bindzng upon such party unless given in the form of a written instrument signed by such party, and no such waiver shad be ~,mpZied from any omission by s~xch party to take action with respect to such default. N'o express written waiver of any defau~.t sha~,l affect any other default or cover any period of tine other than the defau~.t and/or period of time specified in such express waiver, one or mare written waivers of any default under any provis~.an of this Dec~.aratian sha~,~, not be deemed to be a wazver of any subsec~a.ent default ~.n the performance of the same provis~.on or any vthe~r term or prova~szon conta~.ned ~.n this Dec~.aratzon , ~ 7.x.0 attorneys' Fees" In the e~rent either party hereto ~ fzeds ~t necessary to employ legal counsel ar to b " x~ng an ~ action at ~.aw or other proceedings against the other art to p Y enforce a~.y of the terms, covenants or condi tzons hereof , the ~ pre'~ailzng party in such action ar proceed~.n whether a t ~ tr~.a~. or upon appeal, shah. be paid all reasonable attorne s' fees, as determined b the caur y Y t, and iz~ the event any ~ ~~xdgment is secured by such prevailing part all such y ~ attorneys' fees shall be included ~.n any such dud ent in such act~.on ar proceedings. . wazver of ~Tuxy ~r~1al . the part~.,es desire and intend t~~at any dispute ox~ controversy arzsxng between them with. respect to ar in connect~.on wa.th this ~eclarat~.on be stxb~ect to e~ped~.tious resolution ~.n a court tri,a~. without a jur . Y Wherefore, each party ~.rxevacab~,y and uncanditsona~.~.y waives any right it may have to a txia~, by fury Uf any cause of acti,an, claim] counterclaim or cross-cvmp~.aint in an action y , prviceed~.ng or other hearing brought by any party against another party ar parties an any matter whatsaeve~c ax~.s~,n out g Of , ~r In any Wc~y c(~nnected w1th, t~']zs ~ec~axatl~~ ~ the relati©nsha.p of the parties concexn~,ng the subject matter of tha.s Declarat~.on or the documents related thereto ar any cla~.m of ~n~ury or damage, or the enforcement of any remedy under any statute, law, ax~d~,nance, rules or regulat~.on now ox hezeaf ter ~.n effect concerning this Declaration, each of the 2~ Ixv~,ne , CA 9 ~ G 1 ~ Facs~.m~.le: {949} '~90--~.9aG Boeing Law Department 3d ~~.aor, ~c ~.~~~8 7755 fast ~Iargina~ way S Seattle, wA 98.08 Fax. {4~5~ 9~5W8~30 ~otzces may also be given by facsa,m~.le so sang as the notice is concurrently given by vne of the above methods. Nat.ices given key ~acsimi~.e axe deemed g~,ven upon transmission so long as they are txansmitted duxa.x~g normal business hours {8,~0 a,rn. 5: 0D p.m, , ~Sonday through Fxxday, national, holidays exCluded~ at the xeczpzer~t' s ~acatian; facsimi~.e notices given after these hours sh~11, be deemed g~,ven the neat business day thereafter ~ A~.l other notices are effective upon receipt, ar upan attempted de~.ivery if de~.~.~rery ~.s xe~used ar zmposs.ible because o~ failure to prv~r~.de a reasonable means for ~ accomp~.a.sha.ng delivexy. ~ 7.1~ ~o obligations to Third ~art~.es, B,xcept as ~ otherwise express~.y prav~,ded herein, the execution and del.~.very of this Decieration shall not be deemed tc~ confex an Y ~ r~.ghts upon, nox obligate either of the part~,es to any person ' ox entity other than the other party M 71,4 Successors and Assigns. This Declar~tian sha~.l Inure to the benefit of and shall b~zrdex~ the successors and assigns of the part~,es . 7,1~ Canstructzan. This Declaration sha11 be l~,beralZy canstxued in axd~r to effectuate its purposes. The remainder of this page is left blank zntentic~nal.,~~r. ~ 7 / r ' ~ ~~~~s~ 'W~~K~(~~`, the ~a~t~.eS hc~~e ~~e~~te~ ~~1~,5 ~3eclax~atior~ as a~ ~h~ dad ar~~ dear ~i~st he~ea.nab~~rs set ~~rth. ~~'~V~AX TIC' . , ~3~~~~~ CC~~~A~ a ~e,~~ are ~orat~,~n a ~e~a~are ~arp~~~ti~~ ~3 Y+ g~. s spa t ~'i~e p~esa,c~ent arne~ title: Ass~.st ~ ataxy A~Dr~~P,c~ ~0~~ .~r~-- ~t~~~~~~~~, ~ai~~~~~~~, V~la~~~ gad, ~~P R~ y ~wfw ~Y 1 ~ SiM.ri r r~ ~ ~ ~ ~ ~N WITNESS ~1~E~Ea~', the Pa~t~.es have executed this ~ec~a~at~.on as of the da~r and ~reaz ~'~rst here~.nabove set ~or~th. S~~`EWAY INC . , TAE BOEING C4M~~N~' a Delaware ~axpoxat~.on a ~e~.awax~e coy za~ion ~y. ,~sexstant ~~.ce ~r~~~idex~t Name: Tile: Au~~~TZ~d I ~ a~: assistant Secretar~r uz a*~} 8 A y ~ State of Ca~~fox~ua bounty of (~~ange ~n ~e~tenaber~8, ~oo~, before nrae, ~ ~ we~tne~, Notary P~xb~~c, per~ona~~y appeased Stephen ~ ~a~~~cer, persona~l~ k~~own to me to be die pexsan, whose name ~s subscribed to the wcthin xnst~~ument and acknow~ed~cd tp nee fiat he executed the same his authorised ca aci , p ~Y and that by his s~~natu~e on the ~ns~ru,ment the person or the entzty upon behalf of which the pe~~son acted, executed ~e ~nst~ument ~ 7 ~ wERTM~~ '~N~S~ m hand and off coax seal ~ ~ ~omm~~lon ~ i3~~rn~ ~ ~ w No~~ Public • Cal ~ ~.v~ A~t~~~s ~ou~ ~ w' ,~..y~,n.,,.,«...u ~~~~N~ P~~~~Rr~r Those parlEcns of Seelaans Bnd fib, Townshr~ ~ 1 ~~Nth, ~e~ge ~ 1~li~~arrtetle ~llendlan, ~n Fyn ~d1~C1t~, vVs~t~lnc~~~n, ~~~~R~~~ ~5 fD1~pw~' ~ ~~~lN~liN~ at the aer~ter of seid Sec#c~n ~5; TH ~N~~ Sa~ih B9° tl~est, ~,7~€~3~ fe@t a1pn~ the Genter#~na of ~ St~V~~ue ~QUch lAlgarie load ; #e the ~asteriy r#ght~f~way of ~~~Ic~~a, Mi#waukes, S#. Pau# ~ Pac~~~ ~a~road~ ~ I T~I~N~~ Nvr~het~y~ten~ trie ~ec~tedyng~t~f~way+~fe~aid t~ilreed ss~r~ueyed bydeed~ warded under ~Ing Jaunty Re~rcting Nos. d~~7~~, ~~g7'B'~, ~U~7~~F ~Op~~g, d~~8~#~, ~~~~a~, and ~5 ~andemRed 1~ 3~Nn~ ~aun~y ~aper~r~ourt~eu~ Nc~. 5~~67' and a spy of 1ha treo of~lpPto~dation ding ~tarded under I~~ng ~a~tnky ~eoard~ng Na ~~~9, to the Sou#hwesteriy carnerof iha street ~r~vey~lt~ the ~if~r of Au~um by deed rv~o~ed underl~~r~ ~eu~ty Re~~'mg No~ ~1~~9~g, T~~N~~ Paster#y e~ang the Scih ~~~fin o1 ~aic~ conveyed str~el to #i~Q Sa~thess#erfy rx~rner ~hsreof; ~~~N~~ Sou#h 1~" ~astF ~,E~0,3~ het; ~ TH~~f C ~ a1nn~ ~ curve la the n~htwhase radius js 8~~. ~ 1 ~ee# thr~au ~ e cen#Te#et~ is o a dl~tanc~ of ~~~,~5 feet, ~ T~~~~~ Senth ~9° ~6' wea~,1~1 ~e~~ 'ter ~i~i~N~~ South Q~' ~D" If~fest, SQ~,~~ fae# to the PANT ~~~NN~NC; ~ ~C~~7' they ~n #her~c~1`~yi~g ~1n .Avenue ~e t~~one ~a~d} e~ ~s~~ls~~ ~n 11afu 3~ ' ~f Gar~mis~ion~fe ~eaa~~~ pad 5~T5; ~ p p~ ~ PSG ~d ~B~ haif of ~On 'T~Wns#tip Ned~~ ~ ~1lernene er~d~en, art ~in~ ~untyr V~as#tlr~gtar~, de~~ih~d as follows; ~~~11+tN1N~ at tiro lt~terssc#lan of Vvest rf~ht~rway ##na bf Iris Caun#y Road No, ~'G, dawn as i~~Tl~~ AY~ni~B, ~R~ the Sou~i tfne af8~k~ S~Ctlon ~5~ bald lnt~rser~,n bsl~ SoU~ ~8' $&"llllsst, 4~3~~~ far~# tmm the ~authea~ ~~C of Sid Sedi+ot~ i TC'~~N~~ Saulh ~9~ ~6` 55" ~1~'e<st,1,~~~,~~ feet along 5e1d ~0~1h ~i~e; t ~~~NC~ hiar#h Q~Q 9~'~~" ~ t,3~S feet` '#';~k~~IC~"~~Ai ~a{t~~h 3~1y' ~r~' ~`~s~, ~JB~~a feet to lt~e centerii~e of ~resnhatgi~ ~aad; ~r 1~i 7\n►Y~ ~11~~ VV~ ~M~ ~f" ~~~}r ~7v~~n~1 ieo# aiang sa#d ae~rterline t4 a brae ~1~~ at tha ~ntsr~ect;an of sold Gen~eri~ne with tl~e +centerline ofA#~or~a l~c~a~, Prc~e~ ~sm~ so~Ing Acb~r~ Pfcr~R ~ day' 8~ ~~p~ ~ ~Vv~~~th R+ e r P } ~~~I~ A J• ~ A ~ 1 TH~I~~E ~gNYiNU3N~ Noi#h ao" ~5' 47" Ea~lt 5q 01 feet, THENCE ~lorth 5~A fib' East, i~1 ~4 feet, THENCE along a 8Q31 ~Miavt rad~u~ curve to the tact having a r.~nlral angle of 31" S8' 55`' far ~ d~stariee of ~3~.fi5 f eat, THENCE NQrlh 57° ~T' i3" East 5p feet* WHENCE afong a ~Q3~i i-feat radius curYC~ !o the f hauing a cer~#raf angle of 59° 56' far a distance of 6~Q bb fee(, THENCC Narth 42° OS' Sa~Vlfest, g2 3~ feet; THENCE Nca~th 8g' d5' q5" East, 5?' feel, Tl*IENCE South ~2~ ~ Si" E~~t, b5 feak, THENCE ~QUlh U~° 3~"East, ?1S 85 ~~etf4 a point in #f~e W~~t right-af-way lute of sA~d ~~~r~ty Pond No ?b, ~rh~ch fs 5g7'.!~ feet I'ton~ She East +~uai#ur utter of paid Se~lion ~f~; THENCC C~NTII'ftllN~ South 0~° i~' ~3" Eas#, ~,G~S 5i feat to the ~'CINT ~F BEGINI~ttN~; ~CEPT the 8vutheasterty tertian cx~nvayed #o the Gl~ of Aubum by deed reevrded under Ding County Recording l~a.~ 82121 i2iB2; CEPT that ptirtic>y Chef des~t`bed es foflr~xs Ggi~~IENCINq ~t the Southeast t~~Qr of saki Section ~5, I T#~EN~F !•iprlh ~9' 3~' i~" 11~t'ast, alvnd the South tie of aa~~ 5autlteast quarter, a dtstarice of ~ 5~g #egt; T~ENGE l+farth 0~° Zs' S~" Est, ZD.40 t~eet to the PgfN'!' fit: BE~lN[~?1NG; c~ THENCE North 89~ 33' ~1~''1~'es#,1,4b3.~ feel, ~ WHENCE Nort#t ig" fast, ~,~~9 i7 feet, "FENCE North b9° ~Z' Sb" ~V~t, feet; T~EN~E North ~Q, fast, f~#, T~#~C~ Saulh 67~ b7" ~s~ ~82.~9 feet; ~ THENCE North 8B' 4b' E;a~l, ~?5.47 feel, rtI~ENCE Strulh A1' ~ast,175,~g #eelr ~ 'TN~NCtw Narth fib' ~D' ~4" Fait, ~+~et; i 7~t;NC~ North Q'~" 49' ~Voat:l,~~xg5 feel, l ~HE~C~ Nar#h S$~ d4' i3' ~ar~t, ~45~.g$1~9t t~ the b~g~nrtfng of a 553.1 ~wfant ~~fus CUB tag the feff ; TfiENCE wrong !ha arc of ~2id curve, ~ssing #h~nugh a certtr~t art~fa of b~` bar 4~", en an: dlstertca of fi30►8g twat! THf:NC~ North gi* 1tVes#, 83.34 f$a!; 7NENC~ ~oullr Si" fast, ~4'1.~~ feat #a ~av~est margin of S#reet Svut#~wes~ FENCE Sauth 15' Eaat, ~1cng nafd margin 3,2~~,2'~ Eger; "f~EN~E Sa~th 44° 43' DO* ~Ifest, bZ,+~~ feat tv #lre Pg1NT qF BEgIHN~N~, Prvjeiit Name, 8astr~g Aubum Plant t:i11Vd1altt 1~p~~1l,~#~~w~td Rag~~r~~ ~ t l ~ ~ ..,,,,r.,~.,,,.Y,.. Par~af A1~ tha# portran of the ~~uthwesl ~ua~e~ u1 S~~cf~an ~5, Tow~~hi~ Nadh, Rar~~e ~ ~~~t,1~til~ara~Rt~ ~er~d~an, ~n Kind ~a~r~ty, wash~ng~nt lying fast of the Mast ma~g~~ ~i the Ch~~ga, ~Iwa~k~~, St Paui ~ Pac~~~c trornpan~r'~ ri~hE~fway~ ~~~~PT the earth ~0 feet, the Sa~t~ U ic~~t, and tl~e ~a~t 0 foet thereof fox ~aud~, the! po~t~ot~ therao~ ta~vay~d t~ #ha C~fy of Afgo~a by deed ~o~~$d ~#r~~ ~n~ Rac;~rd~~~ t~~ T~~tje~~5~~, t~~Ct~P~' that ~or~aa thereat conveyed to the Mate o~ V1Ca~~~~~lon fad Stag l~~~d Rio SST b~ dads retarded under ~~n~ ~v~~ty Re~dmg f*las 7~~~~~~~~T3 ar~d ~~~~~~~~q~, A~~ ~C~~P~'' fat poflia~ thereat ~ndemned fhe State of tNa~t~~n~tat~ fay ~tata load Nv. ~ti7 ~n l~n~ ~o~tnfy S~Pednr ~~u~a Na 7~O~~d. c~ ~ E 1 s ~r~t~ct ~~me► B~~a~rtg A~~c~m P~~t~t May ~4~~ ~V~~~nth ~a~~as o~~r,v~ ~