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RESOLUTION NO. 4 5 6 2
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE AN
AGREEMENT BETWEEN THE CITY OF AUBURN
AND SAFEWAY, INC. FOR CITY PURCHASE OF
PROPERTY FROM SAFEWAY, INC. IN LIEU OF
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
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; and
WHEREA5, 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
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Resolution No. 4562
January 13, 2010
Page 1 of 3
WHEREAS, it is in the public interest for the parties to enter into a purchase and sale agreement for the 1.2 acre parcel,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows:
Section 1. 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
Ordinance 6233.
Section 3. This Resolution shall be in full force and effect upon
passage and signatures hereon.
Dated and Signed this If ~day of , 2010.
CITY OF AUBURN
,~PE ER B. LEWIS
MAYOR
Resolution No. 4562
January 13, 2010
Page 2 of 3
ATTEST:
Danielle E. Daskam, City Clerk
AP OVE S TO s
a iel B. Hei , Ci Atto ey
Resolution No. 4562
January 13, 2010
Page 3 of 3
PURCHASE AND SALE AGREEMENT
This PURCHASEALE AGREEMENT (this "AgreemenP") is entered into tkND as of the /~~day of 2010, by and between the CITY OF AUBURN, a
Washington municipal rporation, as Purchaser (hereinafter the "CITY"), and
SAFEWAY, INC., a Delaware corporation (hereinafter 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 common
address of 3520 Pacific Avenue South (King County Tax Parcel No. 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 Aubum 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 ingess and egress
to the property legally described and depicted in Exhibit "C" to the Deed (the "Safeway
Property").
AGREEMENT
NOW", THEREFORE, for good and valuable consideration, the receipt and
sufficiency 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:
11 "Closing" or "Close of Escrow" means the recordation of the Deed in the Official
Records and SELLER's receipt of the Purchase Price.
1
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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 AgenY" means Chicago Title Insurance Company (Phone: (253) 945-
9140).
1.5 "Official Records" means the official 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 6.4 below.
1.8 "Purchase Price" has the meaning as set forth in Section 3.
19 "Title Company" means Chicago Title Company.
1.10 "Title Policy" means an ALTA (1970 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 PropeRy vested in CITY subject only to the
Permitted Exceptions.
2. 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 No/100's
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 on 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
5. Earnest Money Deposit. On execution of this Agreement, CITY shall deposit
with Escrow Agent One Thousand Dollars and No/100's Dollars ($1,000.00) in cash (the
"DeposiY'), 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.
6.1 Due Diligence Period. CITY shall have the right For a period of sixty (60) 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.
63 Title Commihnent. 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 "CommitmenP'), 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 (other 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 (other than the exceptions to title approved by CITY and described in
Section 6.4 below), stating the exceptions so disapproved, within thirty (30) 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 0) day period after its
receipt of CITY's written notice of disapprova] of the same within which to provide
wri tten notice to CITY as to which of such disapproved title exceptions the SELLER will
remove (or cause to be removed) from title; provided, however, that SELLER shall not be
required to actually remove such exception(s) until Closing. If, for any reason,
SELLER's notice given pursuant to the immediately preceding sentence does not
covenant to remove all of CITY's disapproved title exceptions at or prior to Closing,
CITY shall have the right to terminate this Agreement by written notice to SELLER and
Escrow Agent given within ten (10) days after the earlier of the expiration of such ten
(10) 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 exceptioa If CITY delivers the Termination Notice within
such ten (10) 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 retumed 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"):
6.4.1 The printed exceptions which appear in the ALTA (Form 197013) form extended
coverage owner's policy of title insurance issued by Title Company in the State of
Washington; and
6.4.2 Items created by, or on behalf of, CITY.
6.5 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 or preservation of
the Acquired Property in the normal course of business if each such contract or
agreement expires or is terminated at or prior to Closing.
7. CITI"s Right of Entry. CITY, and its agents and consultants, at CITY's sole
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 (b) take precautions for the prevention of injury to
persons or damage to property on or about the Acquired Property. CITY shall keep the
Acquired PropeRy 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. CIT'Y 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 definition, as available for disbursement
to SELLER.
8.2 Closing Costs.
8.21 SELLER's Costs. SELLER shall pay (a) the premiums for the standard coverage
portion of the Title Policy, including applicable sales tas, (b) one-half (%z) 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 tases under Washington Administrative Code Section
458-61A-206.
8.2.2 CITY's Costs. CITY shall pay (a) one-half of all escrow fees and costs, (b)
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 Other 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.
83 Real Property Taxation. SELLER shall be responsible for 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
following 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 nonforeign person affidavit in the form required under
Section 1445 of the Internal Revenue Code.
8.4.2 CITY's Documents. At Closing, CITY shall 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
8.4.2.3 The executed real estate excise tax affidavit referenced in Section 8.4.1.2
above.
8.5 Possession. CITY shall be entitled to possession of the Acquired Property upon
Closing.
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 foRh
herein, CITY's obligation to close hereunder is expressly subject to satisfaction or waiver
by CITY in writing of each of the following conditions:
1011 Execution and recording of the Maintenance and Indemnification Agreement.
10.1.2 Written confirmation of the Washington State Department of Ecology's
("WSDOE") consent to the sale as provided for in the Restrictive Covenant between
Boeing and WSDOE dated September 18, 2002.
PURCHASE AND SALE AGREEMENT
Page 6
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 conditions:
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 Hazazdous Substances cleanup; to the best of SELLER's knowledge the Acquired
Property has not been used (a) for the storage, disposal or dischazge of oil, solvents, fuel,
chemicals or any type of toxic, dangerous, hazardous or biological waste or substance
(collectively, "Hazardous Substances"), or (b) as a landfill or waste disposal site; to the
best of SELLER's knowledge the Acquired Property has not been contaminated with any
Hazardous Substances; and to the best of SELLER's knowledge, there are no
underground storage tanks on the Acquired Property.
11.13 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 (b) the individual executing this Agreement on behalf of CI1'1' has the authority to
bind CITY to the terms and conditions of this Agreement.
11.3 "AS IS" CONDITION OF PROPERTY. THE PURCHASE PRICE REFLECTS
THAT THE ACQUIRED PROPERTY IS BEING 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 TO, ANY REPRESENTATIONS, WARRANTIES OR COVENANTS,
PURCHASE AND SALE AGREEMENT
Page 7
WHETHER EXPRESS OR IMPLIED, WHICH MAY HAVE BEEN MADE OR
GIVEN, OR WHICH MAY BE DEEMED TO HAVE BEEN MADE OR GNEN, BY
SELLER OR ITS REPRESENTATIVES, INCLUDING BUT NOT LIMITED TO 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 TO BE
EXECUTED AND DELNERED BY SELLER AT CLOSING, CITY HAS NOT
RELIED UPON AND WILL NOT RELY UPON, AND SELLER EXPRESSLY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANT[ES WITH RESPECT TO,
AND SHALL HAVE NO LIABILITY FOR: (I) THE CONDITION OF THE
ACQUIRED PROPERTY OR ANY BUILD[NGS, STRUCTURES OR
IMPROVEMENTS LOCATED THEREON OR THE SUITABILITY THEREOF FOR
HABITATION, OCCUPANCY OR FOR CITY'S INTENDED USE OR FOR ANY USE
WHATSOEVER; (II) 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; (IV)
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 DELNERED
BY SELLER AT CLOSING, SELLER SHALL HAVE NO LIABILITY TO CITY
WITH RESPECT TO 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, 42 U.S.C.A. SECTIONS 9601 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 GNEN 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: GITY:
IF A PHASE I ENVIRONMENTAL SITE ASSESSMENT REPORT OR OTHER
ENVIRONMENTAL STUDY OR REPORT (COLLECTIVELY, THE "PHASE I
REPORT") HAS BEEN DELNERED 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 PHYS[CAL 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 LIABILIT[ES 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
(or 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 bome 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 al] times
prior to Closing. SELLER shall promptly notify CITI' 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 retumed 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 Deposit 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 alia, to compensate SELLER for delaying the eventual sale of the
Acquired Property and to compensate SELLER for its costs 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 Deposit
as uneamed eamest money, a penalty or for any other reason except default by SELLER.
133 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 perfonnance; (b) terminate
this Agreement, receive a refund of the Deposit 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 10
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 de(ivery (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 aRer 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
Aubum, WA 98001-4998
Attn: Planning Director
With copies to: City Attorney's Office
City of Auburn
25 West Main Street
Aubum, WA 98001-4998
Attn: City Attorney
If to SELLER: Safeway, Inc.
Gary Slabaugh
1121 124th Ave NE
Bellevue, WA 98005
With copies to: Sharman Braff
Real Estate Law
Safeway Inc.
5918 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 or 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 for 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 Ageement. 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 agees 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. [n 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 mazket nor list
the Acquired Property far 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 acwrdance 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.
21. Exhibits. Exhibits "A," "B," and "C," attached hereto are incorporated herein as
if fully set forth.
PURCHASE AND SALE AGREEMENT
Page 12
SIGNED in duplicate original as of the date first above written.
CITY OF AUBURN SAFEWAY, INC.
BY OAW Z.Q,G
Pe er . Lewis, Mayor
U Name ~-/r~it/2. &~~io7/-
Attest:
Title
Damelle Daskam, City Clerk By I
Approued as t form: Name AlcnV>4~ i QA7'.(_1-
Title
/
Daniel B. d; AubuM City?.tt\ y
EXHIBITS
Exhibit A, Warranty Deed
Exhibit B, Declaration of Covenants, Conditions, Easements and Restrictions
Exhibit C, Maintenance Ageement
FoRm ApPRovEn SO
PURCHASE AND SALE AGREEMENT
Page 13
EXHIBIT A - DEED
Return Address:
City of Aubum
City Clerk
25 West Main
Aubum, WA 98001
Above [his lice reserved for recording information.
WARRANTY DEED
Reference # (if applicable): N/A
GrantorBorrower. Safeway Inc.
Grantee/AssigneeBeneficiary: City of Aubutn
Legal Description/STR: Portion of Sea 25, Twp. 21 N. Rge. 4 E., WM
Assessor's Tax Parcel ID#: 2521049096 (portion)
Benefited Pazcel - 2521049114
For and in consideration of the sum of TEN DOLLARS ($10.00) and other good
and valuable consideration, receipt of which is hereby acknowledged, Grantor,
SAFEWAY INC., a Delaware corporation, hereby conveys and warrants to the CITY
OF 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 non-exclusive 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 poRion 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 Safeway
Property, where the blockage is caused by a public works project, an outside utility
City of Auburn/Safeway Agreement
Page 1 of 9
EXHIBIT A - DEED
project or an unforeseen accident or event in the public right-of-way or (ii) 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 resh-ict 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 traffic. 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 Auburn/Safeway Agreement
Page 2 of 9
EXHIBIT A - DEED
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by its
proper oFficer(s) this day of , 2010.
Grantor: Grantee:
Safeway Inc. The City of Auburn
By: By:
[ts: Assistant Vice-President Its:
Date Signed:
By:
Its Assistant Secretary
Date Signed:
STATE OF )
)ss.
County of )
I certify that [ know 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 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 OF WASHINGTON ) residing at
)ss. My appoinhnent expires
County of King )
[ certify tha[ [ know 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 exewte [he instrument and acknowledged it as the
of the City of
Aubum, 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 Aubum/Safeway 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 NO. 2521049096.
City of Auburn/Safeway Agreement
Page 4 of 9
EXHIBIT A - DEED
5 89'72'14" E
57.79'
- N 01'06'42' W
92.34'
1.2 Acre Safeway Parcel >
T ~
.
J
Mh p N
L=630.88'
R=603.71' ~
A=59'56'03" S 89'12'14" E ~
236.92'
~
0' 200' 400'
m (p
-I
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b1h~ h 0p20~ 25~0 6~2 ~
0 2
~ S ~~NE~UMgER
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m ~ .
:o
m ' ¢ ooe
s PF,O, JQJ•~
THIS EXHIBIT MAP IS BASED ON CITY OF AUBURN LLFM~S
LOT LINE ADJUSTMENT LLA02-0015 REDORDED UNDER EXPiRESOJ-02•2009
KING COUNTY RECORDING NUMBER 20020725001632 AND DOES NOT REPRESENT A BOUNDARY SURVEY.
~,noFExhibit for 1.2 Acre Safeway Parcel
EXHIBIT MAP TO ACCOMPANY LEGAI DESCRIPTION
WASHINCTON
CITY OF AUBURN PUBLIC WORKS
25 WEST MAIN STREET Februery 11, 2008
AUBURN, WA 98001
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 LLA02-0015, RECORDED UNDER
RECORDING NUMBER 20020725001632, RECORDS OF KING
COUNTY, WASHINGTON, SAID PORTION BEING DESCRIBED AS
FOLLOWS:
COMMENCING AT THE MOST NORTHERLY NORTHEAST
CORNER OF SA[D LOT 1;
THENCE SOUTH 11°iT51" EAST ALONG THE EAST LINE OF
SAID LOT 1 A DISTANCE OF 376.73 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE CONTINUING SOUTH 11017' 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 89°12'14" WEST ALONG SAID PARALLEL LINE
A DISTANCE OF 236.92 FEET TO THE WESTERLY EDGE OF SAID
LOT 1 AND BEGINNING OF A NON-TANGENT CURVE TO THE
LEFT HAVING A RAD[US OF 603.11 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 8051' 16" AN ARC LENGTH OF 93.20 FEET;
THENCE LEAVING SAID WESTERLY EDGE SOUTH 78037'49"
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°3Y27" AN ARC LENGTH OF 86.46 FEET;
THENCE NORTH 88°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 (0.331
ACRES), MORE OR LESS.
City of Auburn/Safeway Agreement
Page 6 of 9
EXHIBIT A - DEED
(THE BASIS OF BEARINGS FOR THIS DESCRIPT[ON 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 MOST NORTHERLY NORTHEAST CORNER
OF LOT 1 OF LLA02-0015 . S 89' 7 2' 14" E .
57.79'
~
N 01'06'42" W
92.34'
N
0l 100, 200' p l '
M J
a ~
1 "=700'
N
J
N 88'49'44" E
14.13• . 'w~-~
CURVE DATA O ~a ~S~S~S R=395.00'
~ A=1232"27"\
0=08'51'16° 82.77' I % o
,~A=93 201 S7837 49'E
~ M •
Emerg Road Accesa n
TOTAL CURVE N 89'12'14" W 236.92' ~ . L=630.88' ~
A=59 56b3" j ~\N RPO~p2,~2~op16-52 ~
O~RN ~ N~M`~aP
o~ PGORQ~N SPFE 00~oFwasU9l0
C\Z'~ FLE ,7~1ER' e':1~ ro~ 2
~Pp2p0N5, p
vo \Q`\ry,~~ A: ~c oc o
OT LINEAIDJUSTMENBLLA02~0015 RE ~ CORDEDRUNDER ONq~LAN~SJe
I
KING COUNTY RECORDING NUMBER 20020725001632 ,
AND DOES NOT REPRESENT A BOUNDARY SURVEY. CmoF st . Exhibit for Emergency Road Access
EXHIBff MAP TO ACCOMPANY LEGAL DESCRIP110N
WASHINGTON PART OF EXHIBIT B
CITY OF AUBURN PUBLIC WORKS 25 WEST MAIN STREET Qctp~r 1Z 2009
AUBURN, WA 98001
EXHIBIT A - DEED
EXHIBIT "C°
BENEFITED PROPERTY
LOT 1 OF CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER
LLA02-0015, RECORDED LTNDER RECORDING NUMBER
20020725001632, RECORDS OF KING COLJNTY, WASHINGTON,
EXCEPT THE NORTH 430 FEET OF LOT 1 OF SAID CITY OF
AUBURN LOT LINE ADJUSTMENT NUMBER LLA02-0015, AS
RECORDED LTNDER RECORDING NUMBER 20020725001632,
RECORDS OF SAID COUNTY, AS MEASURED PERPENDICULAR
TO THE MOST NORTHERLY LINE OF SAID LOT I, SAID MOST
NORTHERLY LINE BEARING SOUTH 890 12' 14" EAST, A
DISTANCE OF 57.79 FEET.
City of Auburn/Safeway Agreement
Page 9 of 9
, s
EXHIBIT B - COVENANTS
a
PLEASE RECORD AND WHEN I
RECQRDED, RETURN T0: 200204w20001614
Gerald Bresslour TRRNSNiiTION TI OPC 91.00
09%2002002 12330
F
Office of the General Counsel KING COIJNTV, ua
The Boeing Company
P.O. Box 3707, MC 13-08
Seattle, WA 96124
~
cc
n DQCUMENT TITLE: Declaration of Covenant , Conditions, and
4
RestrLctions
REFERENCE NUMBERS OF RELATED DOCUMENTS:
cn
GRANTOR/BORROWER: The Boeing Company and Safeway Inc.
GRANTEE/ASSIGNEE/BENEP'ICIARY:
Q LEGAL DESCRIPTION: Postions of Sections 24 and 25, T21N, R4E,
,o
~ W.M., in King County, Washington, as more
fully described in Exhibits A and B,
beginning on page ZQ-.
ASSESSOR'S PARCEL NO(S).: 242104-9069; 242104-9089;
242104-9090; 242104-9091; 242104-9092; 242104-9093;
242104-9094; 292104-9095; 252104-9035; 252104-9078;
252104-9080; 252104-9082; 252104-9094; 252104--9096;
252104-9104; 252104-9105; 252104-9106; 252104-9107;
and 252104-9108.
FlLED FOR RECORD AT TNF REQUES7 OF
- iRANSNATION TITLH INSURANCE C0. -
T ~
EXHIBIT B - COVENANTS
DECLARATION OF COVENANTS, CONDITIONS,
EASEM TS, ANA RESTRICTIONS
THIS DECLARATION OF COVENANTS, CQNDITIONS, EASEME.UTS, AND
RESTRICTIQNS (this "Declaration") is made this day of
2002, by and between THE BpEING COMPANY, a
Dela'are corporation ("Boeing"), and SAFEWAY INC., a Delaware
corporation ("Safeway"), collectively, the "Parties, and each
of the Parties zs occasionally hereinafter refexzed to as a
nPaYt]/. ° .
RECITALS
A. Boeing is the owner of certain real property loCated
in King County, Washington and legally described on Exhibit A
(the "BOeing Propezty").
~ B. Safeway is the owner of certain real property also
located in King County, Washington, and legally described on
Exhibit B(the "Safeway Property"). Safeway intends to
.n-
° develop and initially use the Safeway Property as a warehouse
0
~s and distribution facility as approximately depicted on the
site plan that is Exhibit C hereto (the "Site Plan").
aa
g, as the owner of the Boeing Property, and
C. Boein
Safeway, as the ownex of the Safeway Property, have agreed to
make the Boeing Property and the Safeway Property
(collectively, the "Site") subject to certain covenants,
conditions and restrictions thaC shall run with such land
NOW, THEREFORE, in consideration of the forgoing and the
mutual conditions hezeinafter contained, the Parties agree as
follows:
1. DEFINITIONS AND PURPOSE.
1.1 Building Restrictions. All buildings and other
improvements on the Site, or any part thereof and all plans
for development or redevelopment of the Site or any part
thereof shall conform to the requirements of this Declaration.
1.2 Road and Street Designations. Designations of roads
and streets in this Declarati.on shall be deemed to apply to
the streets referred to herein as designated and 2aid out on
the date hereof, provided that this Declaration shall continue
2
~ t
• .
EXHIBIT B - COVENANTS
to apply to said streeCS and roads if called by a dafferent
name at any time in the future and/or if aligned dif£erently
in the future from their alignment on the date hereof.
1.3 Owners. An "Owner" is any party that owns £ee title
to any postion of the Site and the "Owners" are all of the fee
owners of any portion ot the Site from time to time. Nothing
in this Declaration sha11 prevent an Owner from delegating and
assigning its rights and obligations under this Declaration to
any party that leases all, or substantially all of the portion
of the Site owned by such Owner (provided, further, however,
no such delegation shall discharge or relieve any Owner from
its obligations hereunder). Any such delegation must be set
forth in a writing executed by such delegating Ownex and
recorded in the "Records" (as hereinafter defined).
1.4 Records. "Records" means the Official Records of
~ King County, Washington.
C° 2. TERM. The restrictions declared, reserved, granted and
m established hereby shall continue in fu11 force and effect in
0
c perpetuity. This Declaration may be terminated or modified
N, only by a written instrument executed by all of the then
Owners o£ the Site and recorded in the Records.
0
3. COVENANTS, CONDITIONS, AND RESTRICTIONS. Boeing, with
respect to the Boeing Property, and Safeway, with respect to
the Safeway Property, each covenants that the Site will be
used by the Parties and by all of their respective successors-
in-interest, and by all occupants of the Site in compliance
with and subject to the following:
3.1 Permitted Uses; Prohibition of Certain Uses. Unless
otherwise agreed in writing by the Owners, the Site shall not
be used for any purpose that is not permitted under, or would
be a nonconforming use under, the applicable zoning ordinances
and land use regulations in effect from time to time unless
such use is authorized by the applicable land use authority -
having 7urisdiction of the Site. Under no circumstances shall
the Site be used in any way for or in connection with (a) the
sale or display of pornographic, obscene, or so-called "adult"
1iterature, periodicals, movies, videos, pictures,
photographs, or the like; (b) the presentation of so-called
"adult" entertainment; (c) the operation of a strip club,
3
EXHIBIT B - COVENANTS
gentlemen's club, oz an establishment providing entertainment
in the torm of table or 1ap dancing or (d) the sale,
distribution, or display of paraphernalia that are used in
connection with any illegal drug. No public or private
obnoxious use or nuisance shall be permitted to exist or
operate upon the Site. No rubbish, trash, waste, residue,
brush, weeds, undergrowth, or debris of any kind oz character
shall ever be placed or permitted to accumulate upon the Site,
but the foregoing is not intended to prohibit wetlands areas
or naturalized areas that may be required by a governmental
authoriCy or desired by an Owner of a portion of the Site in
connection wiCh development of the Site. All buildings on the
Site shall be kept in good repair and condition.
3.2, Cooperation with and No Objection to Formation of
Drainage District or Owners' Association. If the Owner of the
Boeing Property shall take action to form an association oE
~ all or some of the property owners whose property conducts
storm or surface water drainage into the drainage canal known
T
o+ as "Government Canal" (which is legally described in
Q Exhibit D) or if the Safeway Psoperty is proposed for
inclusion in a drainage dzstrict, local improvement disCrict,
a~x or.other public body having the purpose of managing all or
° some storm and surface water that drains into Government
c+ Canal, the Owner of the Safeway Property shall not object to,
and shall provide good faith cooperation in, the.fo=mation of
such association, drainege district, local improvement
district, or public body (as the case may be, the "Drainage
Authority") so long as:
(a) the financial burden o£ the Drainage Authority
is equitably apportioned among all oE the property subject
thereto (and an allocation shall be deemed equitable if it is
materially equivalent to the allocation provided for in that
certain Drainage Agreement between Boeing and Safeway dated as
of the date hereof and recozded in the Records the same day
that this Declaration is recorded (the "Drainage Agreement");
(b) the scheme for the management and
administration of the Drainage Authority, including the
election of the board of directors thereof, is fair and
equitable; and
a
,
EXHIBIT B - COVENANTS
(c) the construction of any improvements by the
Drainage Authority will not materially and adversely affect
business operations of the Safeway Property.
3.3 Easements. Safeway, as the Owner of the Safeway
Propezty, hereby grants Boeing, as the Owner of the Boeing
Property, the follow3ng easements over the Safeway Property
for the benefit of the Owner or Owners of the Boeing Property.
Each such easement shall be deemed to include the reasonable
right of ingress and egreas over the Safeway Property eo
pertorm the activities described in Sections 3.3(a) through
(e) below. In exercising such rights, Boeing agrees to comply
with Safeway's reasonable security measures, which, except
with respect to the right described in Section 3.3(a), shall
include one (1) business day's prior written notice of entry
and Safeway's right to accompany Boeing's representatives on-
site, provided that in the case of an emergency, Boeing may
enter the Safeway Property without giving such notice and
~ without an accompanying Safeway zepresentative, but only for
~ such period as is necessary to deal with such emergency. The
~ parties acknowledge that certain utility installations that
o° have been and may continue to be used by Boeing may be or will
be abandoned at some time in the future. Such installations
m include without limitation certain natural gas lines and
certain fiber-optic lines. Such installatians, when abandoned
cv by Boeing (or by the applicable utility purveyor) may be left
in place.
.a..
(a) Rail Easement. An exclusive and perpetual
easement (the "Rail Easement^) over the area (the "Rail
Easement Asea") described in Exhibit E for the operation and
maintenance of a rail line serving the Boeing Property. The
Rail Easement Area shall be fenced off £rom the balance of the
Safeway Property by Boeing pursuant to that certain Demolition
Agreement between Boeing and Safeway dated as of the date
hereof and such fence and related facilities shall thereafter
be maintained by Boeing in good condition and repair by the
Owner or Owners of the Boeing Pzoperty at no expense to the
Owners of the Safeway Property. Safeway reserves the right to
enter on the Rail Easement Area to inspect the same and the
fence between the Rail Easement Area and the balance of the
Safeway Property shall include locked gates for Safeway to use
to access the Rail Easement Area for such purposes, but,
except in an emergency, Safeway shall not access the Rail
5
EXHIBIT B - COVENANTS
Easement Area for such purpose without giving the Owner or
Owners of the Boeing Property not less than twenty-four (24)
hours telephonic or written notice of such entry. The Owner
or Owners of the Boeing Property shall have the right to
accompany Safeway's representatives on-s5.te. Safeway and
Boeing eaoh shall have'keys, combinations or security codes to
such gates. Safeway shall not interfere with Boeing's use of
the Rail Easement Area. At such time, if any, that the rail
line is abandoned by the Owner or Owners of the Boeing
Property, said qwner or Owners shall, at their expense, remove
such fencing, remove the rail lines and the improvements
appurtenant thereto, and shall rough grade the Rail Easement
Area and quitclaim its easement rights with respect to the
~ Rail Easement Area to the Owner of the Safeway Property.
Boeing may terminate such Rail Easement at any time by giving
.II written notice of such termination to the Owner of the Safeway
`:IL
o: Property, but Boeing shall not be deemed to have abandoned or
C=1 terminated such Rail Easement unless Boeing shall give such
c.,,, written notice of termination.
m
m
(b) Wells. A nonexclusive easement to enter the
0`4 Safeway Property for the purpose of obtaining readings from
o, ,
monitoring wells as shown on the Site Plan and taking samples
av
from such wells and for the maintenance, repair, replacement,
renewal, decommissioning, and closing of such wells. Such
easement shall terminate after the Washington State Department
of Ecology ("DOE") and the United States Environmental
Protection Agency ("USEPA") remove a11 requirements for the
continuation of such monitoring. Upon the removal of all such
requirements, the Owner or Owners of the Boeing Property, at
no expense to the Qwner of the Safeway Property, shall close
and decommission all such test wells in accordance with
applicable regulations, and upon such wells being so
decommissioned, such easement shall terminate. While the
we11s are located on the Safeway Property, they shall be
maxntained in a good state of repair and operation in
accordance with applicable legal requirements by the Owner or
Owners of the Boeing Property at no expense to the Owner of
the Safeway Property. Upon request by Safeway, Boeing shall
provide Safeway with the logs for such wells at no charge.
The Owners of the Boeing Property shall.provide the Owner of
the Safeway Property with copies of all reports provided to
the DOE and/or USEPA with respect to such wells and monitoring
activities and copies of any written communications received
6
EXHIBIT B - COVENANTS
by the Owner of the Boeing Property from DOE, USEPA or any
other governmental authority over such wells (as the case may
be, an "Environmental Authority") with respect to such wells
or test results. If an Environmental Authority orders, or
indicates in writing that it may order, the installation of
additional monitoring we11s on the Safeway Property, the Owner
or Owners of the Boeing Property shall give the OwneY of the
Safeway Property written notice thereof as soon thereafter as
is reasonably possible. So long as the proposed locations of
such additional we11s and the manner of theiz installation
shall not unreasonably interfere with either the business
operations on the Safeway Pxoperty or the planned development
or redevelopment of the Safeway Property, Safeway shall not
unreasonably withhold its consent to the installation of such
additional wells. Notwithstanding the foregoing, if Safeway
reasonably believes that the location of such additional wells
will interfere with either Safeway's business operations on
the Safeway Property or the planned development or
~ redevelopment of the Safeway Property, Safeway reserves the ,
m right to contest the particular location of any such wells,
o and wikh respect to such contest, the Owners of the Safeway
~ Property shall hold the Owners of the Boeing Property free and
harniless with respect thereto. Such contest shall be
o conducted by advisinq the Owner of the Boeing Property of
~ Safeway's objections. Boeing shall•provide such objections to
~ the Environmental Authority and both Safeway and Boeing shall
. c~
•N provide representatives who shall be present when such
objections are discussed with the Environmental Authority.
Upon the installation of such additional wells, the Site Plan
shall be amended to indicate their locations by an amendment
to this Declaration that shall be recorded in the Records and
the easement granted to the Owners of. the Boeing Property
pursuant to this Section 3(b) shall be deemed to apply to such
additional wells. Rs contemplated by Section 11.6 of that
certain Agreement of Purchase and Sale flated April 18, 2002
(as amended, the "Purchase Agreement") made by and between
Boeing and Safeway, Boeing, and not Safeway, shall be
responsible for satisfying all conditions (including, but not
limited to, paying the cost thereof) imposed in connection
with completing the terms and conditions of that certain
Agreed Order No. DE 0IHWTRNR-3345, as amended by that certain
Stipulated Amendment No. 1 to Agreed Order No. DE OIHWTRNR-
3345, provided, however, Safeway shall not obstruct Boeing's
efforts to satisfy such terms and condi.ti.ons. Boeing's
7
EXHIBIT B - COVENANTS
obligations pursuant to (i) the immediately preceding sentence
and (ii) the Purchase Agreement shall not be terminated or
limi.ted by Section 6 hereto.
(c) Utility, Telecommunication, Data, and Other
Lines. An exclusive, perpetual easement over the areas
described in Exhibit F(the "Utility Easement Area") for the
installation, use, maintenance, repair, replacement, or
enhancement of utility, telecommunication, data, and other
service lines located in the Utility Easement Area; provided,
however, af Safeway dedicates any portion of the Utility'
Easement Area along "C" Street to the City of Auburn or
another qovernmental authority, then the aYea of such easement
along "C" Street shall move to the west away from "C" Street
by one foot for each Eoot dedicated. In the event of any such
dedication, either of the parties shall have the sight to have
the legal description of the Utility Easement Area amended to
~ reflect such dedication and the application of the preceding
sentence. . The Owner or Owners of the Boeing Property may
license the use of saifl lines to third parties without the
a payment of any fees, charges, or other amounts to the Owner or
c
Owners of the Safeway Property. During the term of this
~ Declaration, the Utility Easement Area, together with all
cn facilities installed therein, shall be maintained in a good
° state of repair and operation in accordance with applicable
c+ legal requirements by the Owner or Ownezs of the Boeing
Property at no expense to the Owner of the Safeway Property:
Boeing may terminate such easements at any time by giving
written notice of such termination to the Owner of the Safecvay
Property, but Boeing shall not be deemed to have abandoned or
terminated such easements unless Soea.ng shal-1 give suah
written notice of termination- Upon such ternunata.on, the
utility installations located in the Otility Easement Area may
be abandoned in place.
(d) Monuments. An exclusive, perpetual easement
over the areas described in Exhibit G(the "Monument Easement
Areas") for the installation, maintenance, repair,
replacement, or enhancement of monuments and associated
landscaping. During the term of this Declaration, tlie
Monument Easement Area, together with all facilities installed
therein, shall be maintained in a good state of repair and
operation in accordance with applicable legal requirements by
the Owner or Owners of the Boeing Property at no expense to
8
EXHIBIT B - COVENANTS
the Owner of the Safeway Property. $oeing may terminate such
easement at any time by giving written notice of such
termination to the Owner of the Safeway Property, but Boeing
shall not be deemed to have abandoned or terminated such
easement unless Boeing shall give suoh written notice of
termination. Upon such teYmination, the monuments located in
the Monument Easement Area may be abandoned in place.
(e) Drainage Line. An exclusive, perpetual
easement over the area described in Exhibit H(the "Drainage
Easement Area") for the installation, use, maintenance,
' repair, replacement, or enhancement of storm and surface water
drainage facalities. During the tezm of this Declaration, the
Drainage Easement Area, together with all facilities installed
therein, shall be maintained in a good state of repair and
operation in accordance with applicable legal requirements by
the Owner or Owners of the Boeing Property at no expense to
the Owner o£ the Safeway Property. The foregoing sha11 not be
deemed to prevent, limit os- restrict the liability of the
Owners of the Safeway Property with respect to the drainage of
~ storm and surface water fsom the Safeway Property onto the
0
c, Boeing Property as provided in the Drainage Rgreement.
~
Q, The Utility Easement Asea, the Monument Easement Area and the
° Drainage Easement Area are approximately depicted on the Site
ev Plan_ Each of the easements granted to the Owner of the
Boeing Property hereby are appurtenant to the Boeing Property,
o
C-4 are not in gross, and may not be sold or conveyed to any party
except as part of the sale or conveyance of the Boeing
Property, or some portion thereof, to such party (except that
the Owner of the Boeing Property may license or sublicense the
right to use facilities or installations that are placed in
such easement areas described in Sections 3[aj and [c] heYeof
so long as such facilities or installations are consistent
with the purposes for which such easements are granted
hereby). Notwithstanding the foregoing, if any portion of the
Boeing Property is conveyed to a third party by Boeing, Boeing
need not convey the benefits of such easements, in whole or in
part, as it may elect (provided, however, the foregoing
provision of this sentence shall. be construed to relieve the
property conveyed to such gzantee from the provisions of this
Declaration). Sateway, as grantor and for itself and its
successors and assigns, reserves and retains the right to use
the surface of the Utility Easement Area, Monument Easement
9
EXHIBIT B - COVENANTS
Area (to the extent not improved from time to time by Boeing's
permitted improvements thereon) and Drainage Easement Area;
provided, however, Safeway, as grantor and for itself and its
successors and assigns, agrees not to erect, place or maintain
any building or other structures thereon except walls, fences,
paving and parki.ng lots, landscaping and, with respect to' the
southeYn portion of the Drainege Easement Area, storm and
surface detention and drainage facilities. With respect Co
its use of the Utility Easement Area, Monument Easement Area
and Drainage Easement Area, Boeing shall not unreasonably
interfeze with the use thereo£ by Safeway or its successors or
assigns and in making any excavation on said property, Boeing
shall restore the surface of the ground to as near the same
condition as existed prior to such excavation as practicable.
3.4 Access to the Property. The Owner of the Safeway
Property shall not use Pacific Avenue as its primary point of
~ ingress to and egress from the Safeway Property by trucks
delivering goods to the SaPeway Property. The facility on the
c° Safeway Property shall be screened from view from Pacific
T
cm Avenue by evergreen trees that shall be planted, maintained
and replaced at the expense of the Owner of the Safeway
w Propezty. Any such trees initially planted or planted as
rn replacements therefor shall be at least six feet (61) in
° height.
c.i.
3.5 Release and Indemnity Regarding Development
Mitigation Costs Safeway, as the Owner of the Safeway
Property and for itself and its successors and assigns, and
Boeing, as the pwner of the Boeing Property and for itself and
its successors and assigns, each (in this Section 3.5, the
"Indemnitor") shall release the other Owner or Owners of any
other portion of the Site from, and shall indemnify and hold
harntless each such other Owner or pwners fzom and against, any
and all construction costs, fees, or charges associated with
the development or redevelopment of all or any portion of the
Site owned by Indemnitor, whether such obligation Cakes the
fozm of construction of public or private improvements, the
payment of mitigation or impact fees or the payment of
assessments levied by any improvement district formed to
finance the construction of any such improvements.
3.6 Objections Related to Development. The owner or
Owners of any portion of the Site shall not object to any
10
EXHIBIT B - COVENANTS
governmental agency with respect to any development or
redevelopment on, or proposed for, any other portion of the
Site if such development or redevelopment conforms to the
requirements of this Declaration so long as (a) such
development or redevelopment conforms to the requirements of
this Declaration, and (b) the conditions to such development
or redevelopment shall not materially and adversely impact
SllCll Owner's use and operation of its property.
3.7 Obligations Under Easement Deed. Boeing, at no
expense to the Owner of the Safeway Property, shall discharge
all obligations imposed on the Owners oE the Site, or any
portion thereof, pursuant to that certain Easement Deed
recorded I'ebruary 22, 1989, as Instrument No. 890222095 of the
Recoxds, and sha11 defend, protect, indemnify and hold the
Owner of the Safeway Property free and harmless with respect
thereto.
~
ea 3.8 Obligations Under Environmental Mitigation
Agreement. Boeing, aL- no expense to the Owner of the Safeway
o Property, sha11 discharge all obligations imposed upon the
° Owners of the Site, to the extent that such obligations remain
~ undischarged, pursuant. to that certain Environment Mitigation
~
o Agreement dated December 30, 1990, a copy of which is attached
m, as Exhibit A to that certain Resolution of the City Council of
~ Auburn, Washington recorded January 2, 1991, as Instrument No.
a" 91010241 of the Records and shall defend, protect, indemnify
and hold the Owner ot the Safeway Property free and harmless
with respect thereto.
3.9 Natural Gas Lines. The Boeing Property is served bynatural gas pipelines on the SaEeway Property, which are shown
as easements 21A, 21B, and 21C on Barghausen Suzvey, drawing
No_ 10094, dated June 11, 2002, and which are installed on the
Safeway Property by virtue of an easement recorded in King
County, Washington undex Recording No. 9207271443 (the "Gas
Lines"). If planned use or development of the Safeway
ProperCy requires the Owner of the Safeway Property to move or
disrupt any of the Gas Lines, or if any of the improvements on
the Safeway Property would be placed over any of the Gas
Lines, the Safeway covenants that it will arrange for the
relocation of the Gas Lines at the expense of the Owner of the
Safeway Property Prior to relocating the Gas Lines,
(a) Safeway shall give the Owner of the Boeing Property
11
EXHIBIT B - COVENANTS
written notice thereof and (b) the parties shall agree upon
the manner in which the impact of such relocation, including
the momentary suspension of service when the switchover is
made Erom the Gas Lines to the replacement lines, shall be
minimized to the greatest extent reasonably possible; which
agreement shall not be unreasonably withheld or delayed.
4. INDEMNIFICATION AND INSURANCE.
4.1 Indemnification of Owners. Each Owner (in this
Section 4.the "Indemnifying Party") hereby indemnifies;
holds harmless and agrees to defend the other Owners (in this
Section 4.1, the "Indemnified Parties•") from and against all
claims, damages, expenses (including, without limitation,
attorneys' fees and reasonable investigative and discovery
costs), liabilities and judgments on account of bodily injury
to persons, loss of life, or physical damage to property
~
occurring on the Site and on the ways immediately adjoining
~the Site, caused by the active or passive negligence or
cm wil7.fu1 misconduct of the Indemnifying Party, or its agents,
° servants or employees; yig
v. provided, however, the Indemnif n
Party does not indemnify the Indemnified Party against any
co bodily injury, loss of life, or physical damage to the extent
° it is caused by the active or passive negligence or willful
cv misconduat of the Indemnified Party.
,m
C=
`N a.2 Liability Insurance Covezage and Limits. Each Owner
agrees to maintain, and/or cause to be maintained, at no cost
to the other Owners, liability insurance insuring its
interests against claims for personal injury, bodily injury,
death and property damage occurring on, a.n or about the Site
and the ways immediately adjoining the Site, with a policy
limit (covering personal injury liability, bodily injury
liability, death and property damage liability) of not less
than Five Million Dollars ($5,000,000) for total claims for
any one occurrence. The insurance limits in this Section
shall be subject to increase from time to time by such amounts
as the Owners may reasonably agree is necessary or desirable,
as may be evidenced by the practice of similarly situated
properties.
4.3 Policy Requirements. Insurance coverage required by
this Agreement may contain the following elements, so long as
the required coverage is not diminished, the required limits
12
EXHIBIT B - COVENANTS
are not reduced, and the elements thereof are othenvise
commercially reasonable: blanket, layered, umbrella,
conventional and/or manuscript forms of policies, as we11 as
retention levels and loss reserves which are charged against
ea=nings or otherwise funded, and commercially reasonable
deductibles. Upon request, each Owner shall cause
certificates ot insvrance reasonably evidencing compliance
with the requirements of this Section 4 to be delivered to the
otheY Owners. The insuranee policies and certificates
required by this Section 4 shall require the insurance company
to furnish a11 Owners thirty (30) days prior written notice of
any cancellation or lapse, or the effective date of any
reduction in the amounts or scope of coverage below the level
of insurance required by Section 4.1.
5. ENFORCEMENT. Each Owner sha11 have the right to enforce
this Declaration by ohtaining initmctive relief and/or, by
~ other lawful means.
m-
ua
- 6. RELEASE FROM LIABILITY. Any pesson or entity acquiring
° fee or leasehold title to an
~ y portion of the Site shall be
° bound by this Declaration only as to the portzon thereof
av. acquired by such person or entity. Such person or entity
CP shall be bound by this Declaration only during the period such
person or entity is the fee or leasehold owner of such parcel
o.~
or portion thereof, except as to obligations, liabilities or
'c°•, responsibilities that accrue duzing said period. Although
persons or entities may be released under this Section 6, the
easements, covenants and restrictions in this Declaration
shall continue to be benefits and servitudes upon the 5ite
running with the land,
7. GENERAL PROVISIONS.
7.1 Runs with Land. The burden and benefits of the
covenants, conditions, easements and restrictions contained
herein with respect to the Safeway Property shall run with the
land described in Exhibit A. The burdens and benefits of the
covenants, conditions, easements, and restrictions containecl
herein with respect to the Boeing Property shall run with the
land described in Exhibit B.
7_2 Captions. Any captions to, or headings of, the
paragraphs or subparagraphs of this Declaration are solely for
13
EXHIBIT B - COVENANTS
. the convenience of the parties hereto, are not a part of this
Declaration, and shall not be used for the interpretatian or
determination o£ the validity of this Declaration or any
provision hereof.
7.3 Exhibits. mhe exhibits attached hereto are hereby
inaorporated herein by this reference for a11 purposes.
7.4 Waiver. The waiver or failure to enforce any
provision of this nec.Laration shall not operate as a waiver of
any future breach of any sizch provision or any other provision
hereof.
7.5 Applicable Law. This Declaration shall be governed
by and construed in accordance with the laws of the State of
Washington, except for any choice-of-1aw principles that
provide for the application of the laws of another
jurisdiction.
~
~ 7.6 Entire Agreement. This Declaration (including all
n- exhibits attached hereto) supersedes any prior agreements,
o negotiations and communications, oral or written, relating to
CW this sub7ect matter and contains the entire agreement between,
N. and the final eacpression of, Boeing and Safeway with respect
er; o to the subject matter hereof.
7.7 Constxvction. The parties hereto heseby aclcnowledge
and agree that (a) each party hereto is of equal bargaining
strength, (b) each such party has actively participated in the
drafting, preparation and negotiation of this Declaration,
(c) eaah such party has consulted wa.th such party's own counsel, and such other professionaZ advisors as such party
has deemed appropriate, relating to any and all matters
contemplated under this Declaration, (d) each such party and
such party's counsel and a8visors have reviewed this
AeclaraEion, (e) each such party has agreed to enter into this
' Declaration following such review and the rendering of such
aflvice, and (f) any rule of construction to the effect that
ambiguities are to be resolved against the drafting parCies
sha11 not apply in the interpretation of this Declaration, or
any portions hereof, or any amendments hereto.
7.8 Severability. In the event that any one or more
provisions of this Declaration are found to be unenforceable,
14
EXHIBIT B - COVENANTS
the zemainder of this Declaration shall nonetheless be and
remain valid and enforceable, unless the basic purposes of
this Declaration are irustrated thereby.
~
7.9 No Waiver. No wazver by either party of any default
under this Declaration by the other parCy shall be effective
or binding upon such party unless given in the form of a
written instrument signed by such party, and no such waiver
shall be implied from any omission by such party ko take
action with respect to such default. No express written
waiver o£ any default shall affect any other default or cover
any period of time other than the default and/or period of
time specified in such express waiver. One or more written
waivers o£ any default under any provision of this Declarakion
shall not be deemed to be a waiver ot any subsequent dePault
in the performance of the same proviaion or any other term or
provision contained in this Declaration.
~
~ 7.10 Attorneys' Fees. In the event either party hereto
~ finds it necessary to employ legal counsel or to bring an
¢ action at law or other proceedings against the other party to
enforce any of the terms, covenants or conditions hereof, the
~ prevailing party in such action or proceeding, whether at
o trial or upon appeal, shall be paid all reasonable attorneys'
fees, as determined by the court, and in the event any
7udgment is secured b such
y prevailing party, all such
attorneys' fees shall be included in any such judgment in such
action or proceedings.
7.11 Waiver of Jury Tsial. The parties desire and intend
that any dispute or controversy arising between them with
respect to or in connection with this Declarataon be subaect
to expeditious resolution in a court trial without a jury.
Therefore, each party isrevocably and unconditiorzally waives
any right it may have to a trial by jury of any cause of
action, claim, counterclaim or cross-complaine in any action,
proceeding or other hearing brought by any party against
another party or parties on any matter whatsoever arising out
of, or in any way connected with, this Declaration, the
relationship of the parties concerning the subject matter of
thas Declaration or the docvments related thereto or any claim
of injury or damage, or the enEorcement of any semedy under
any statute, law, ox•dinance, rules or regulation now or
hereafter in effect concerning this Declaration. Each of the
15
EXHIBIT B - COVENANTS
parties certifies and acknowledges that (a) it understands and
has considered the implications of such waiver, (b) it makes
such waiver voltmtarily, and (c) it has been induced to enter
into this Declaration by, among other things, the mutual
waiver and certifications set £orth in this Seation 7
7.12 Notices. Al1 notices, requests, demands, and other
communications hereunder (collectively, "notices") shall be in
writing and given by established express delivery service
(overnight os better) which maintains delivery records for
next business day delivery with all charges prepaid, or hand
delivery, to the Parties at the following adclress2s, or at
such other address as a Party may designate by notice to that
Party in the above manner:
To Safeway: Safeway Inc.
5918 Stoneridge Mall Road
- Pleasanton, CA 94588-3229
f° Attn: Legal Department
Q Re: Auburn, WA
0
c~ Facsimile: (925) 467-3224
cv
cr, With copies Safeway Inc.
° to: 5918 Stoneridge Ma11 Road
N Pleasanton, CA 94588-3229
Attn: Corporate Real Estate
Re: Auburn, WA
Facsimile: (925) 467-2007
and Safeway Inc.
5918 Stoneridge Mall Road
Pleasanton, CA 94588-3229
Attn: Construction ManageY
Facsimile: (925) 457-3506
To Boeing: The Boeing Company '
c/o Boeing Realty Corporation
2d Floor, MC 1F-58
7755 East Marginal Way S.
Seattle, WA 98108
Facsimile: (206) 662-1355
With copies to: Boeing Realty Corporation
15480 Laguna Canyon Road; Suite 200
16
EXHIBIT B - COVENANTS
Irvine, CA 92618
Facsimzle: (949) 790-1906
Boeing Law Department
3d Floor, MC 13-08
7755 East Marginal Way S
Seattle, WA 96106
Fax: (425) 965-8230
Notices may also be given by facsimile so long as the notice
is concurrently given by one of the above methods. Notices
given by facsimile are deemed given upon transmission so long
as they are transmitted during normal business hours (8:00
a.m. - 5:00 p.m., Monday through Friday, national holidays
excluded) at the recipient's location; facsimile notices given
after these hours shall. be deemed given the next bizsiness day
theseafter. All other notices are effective upon receipt, or
upon attempted delivery if delivery is refused or impossible
because of failure to provide a reasonable means for
a accomplishing delivery.
Q
C~ 7.13 No Obligations to Third Parties. Except as
cn othezwise expressly prpvided herein, the execution and
° delivery of this Declaration shall not be deemed to confer any
a rights upon, nor obligate either of the parties to any person
or entity other than the other party.
7.14 Successors and Assigns. This Declaration shall
inure to the benefit of and shall burden the successors and
assigns of the parties.
7.15 Construction. This Declaration shall be liberally
construed in order to effectuate its purposes.
[The remainder of this page is left blank intentionally.]
17
r r J •
EXHIBIT B - COVENANTS
IN WITNESS WHEREOF, the Parties have executed this
Declaration as of the day and year first hereinabove set
forth.
SAFEWAY INC., THE BOEING COMPANY
a Dela are . poration a Delaware corporation
By: g~,;
s sta t Vice President Name:
` Title:
BY!~Z! ~
AssistohE S etary
AODmVP.d aF t0 FOftlt
= Uu❑anue, Gailagnei, Wuods ood, uP
~a
Q By -
0
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~
~
~
18
EXHIBIT B - COVENANTS
IN WITNESS WHEREOF, the Parties have executed this
Declaration as of the day and year first hereinabove set
forth.
SAFfiWAY INC., THE BpFING COMPANY
a Delaware corporation a Delaware cor ration
Hy: gy,
Assistant Vice Preaident Name:
Title: AutharizedSignaYON
By:
Assistant Secretary
..~r
m
~
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18
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EXHIBIT B - COVENANTS
ACKNOWLEDGMENT
STAT'E OF CALIFORNIA )
)
County of Alameda ss.
)
On September 18, 2002 before me, Dma Gutierrez, Notary Public, personally
a
Hazrison and Steven J. Gou~g personally known to (or
me
me (or
Ppved eazed 7erome P.
to me on the basis of satisfactory ev~dence) to be the persons whose
names
aze subscnbed to the w'thin instr ument
and acknowledged to me
that they
executed the same m their authozized capacihes, aad that by their signatures on the
instrument the persons, or the entity upon behalf of w}uch the persons acted,
executed the mstrument.
bINA GUTIERREZ
WITNESS my hand and official seal, UoNMissioru ~a~2~a.e
~ NOfnH}c~B~~~~IFOfl141A
I b.MikDqCqUN1Y
. 'dyaxnnu~awnexp35oW 1Y2006
Signature (Seal)
10
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EXHIBIT B - COVENANTS
exHisir •n•
BOEING PROPERTY
Parcel "A"
Those porfions of SecUans 24 and 25, Townshrp 21 North, Range 4 East, Wiilametle Mandian, in Kmg
County, Washinglon, descri6etl as follows- ~
DEGINNING at lfie center of said SecUOn 25;
THENCESamhe9°46'OT"West,1,704.35feetalongthacenteAlneoflStAVenuaSouth(AtgonaRoad) lo the Eastedy dghEOf•way of Chtpgo, Mihuaukee, SI. PeW 8 Pacdic Railroad; I
TNENCE NortheAy along the Eastedynght-0f-way otsotd railroad escanveyed bydeeds recordatl under
King Caunry Recoroing Nos. 400786, 400787, -0o07ae, 400709, 40BSDD, 409801, and as condemned m
Kmg County Suponar Court Gauee No. 52367 and a copy of Ihe hecrao ofApproprlation being reeaMed
under King County RecordingNo 429949,fotheSouthwestertycomeroftheslraatooqvoyedtolheCity
of Aubum by deed recorded under King County ftecordmg No. 6160980;
~ THENCE Easledy ulong the South margin oisaid conveyed slreetto the SoulheastaNy comer Ihereof;
7HENCE Soulh 02° 13' 10" East 5,640,34 teek
"t THENCEalangacurvetolhenghtwhoseradlusis803.Nfeetthwugbacenlrotangleof31°60'S6"for
o. a distanca of 336.66 feet;
° TNENCE Soulh 09° 46' 07" West,121,20 foeh
Q THENCEE Soulh OB' 47' 00" West, 50,01 feet to the POINT OF 9EGINNING;
a.u
Q+ EXCEPTIhatportbnthareoflyingwithln1etAvenuaNorlh(NgonaRoad)usestpbtlshedlnVolume31 '
~ ot Commisslonerc Records, page 575,
ca
Ponionatparcel'D';
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A parcal of tend In the East half o(Sectlon 26, 7ownshlp 21 North, Rangn 4 Eest, Wiilamefle Meridlan,
m King CoUnty, lNaahington, do0crlbod as follows:
BEGINNINO at tho Intereactton ol Ute Wast dghboFway Ifna of the Couoty Rpad No. 76. known ea
Rallroud Avemue, and Ihe South Ifne oteak! SecUon 26, pald intorsedlpn being 5puth BB• 18' 66" Wes1,
483.85 faAt front the SoulhaaSt comgt of sad 3eqtoo 26;
THENCE Soulh 89° 16' 55" Wesl, 1,488.93 faet along sald Soulh Ilne; i
TWENGE North 009 1045" East, 1,318 11 faet;
THENCE Soulh 89' 31' 26' West, 658.25 feet to the oenlerlme oF Greenhelgh Road; I
THENCE Narth 00• 081470 Easl, 7.32131 feot afong seid cenlerllne lo a brase plug at the intorsedian
of said canterhne vnth the centerlme of Atgona Road,
ProJeG Neme Boeing Aubum PWnt ~
May B. 2002 t .
RWGWth '
900fl~I,Qt7mpd jeBge 9 Of 3
~
, .
EXHIBIT B - COVENANTS
State of CaIifonua
County of Orange
On Septemberl8, 2002, beFore me, T S Wertner, Notaiy PubLc, personally appeared
Stephen 7 Bar]cer, personally Imown to me to be Uie person whose name is subscnbed to the
within instrument and acknowledged to me that he executed the same m bis authonzed capacity,
and that by his signature on the mstrument the person or the entity upon behalf of which the
person acted, executed the mstrument
~
~a.
T
c ~ T s wE~NER WITNESS my hand and official seal
~ Comm~aeian 6 1349842 ~
~ i ~ Nofsry Publlc - CalHam~a
o Loa M9oba CouMy
My~m E~~resApr8~26~ a~ ~
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EXHIBIT B - COVENANTS ~
THENCE CON7INUING Notlh 00' 00' 47" East, 50 Ot feeL
THENCE North 89` 46' 07" East, 12120 feet,
THENCE along a 6031 t•fool ndius ourve to Ihe left having a cenltal angle a131° 58' 55" fw a distanee
01336.65 (eal,
THENCE Narih 57• 47' 13" East.1,2T2 50 lee4
THENCE along a 603,11-foot radius cunro !o Ihe IeR havmg a cenlral angle of 59° 56' 02" for a dislanca
of 630 88 feet,
THENCE Nodh 02° OS' SO" Wes1, 92 34 feet;
THENCE NbHh 89' 46' 06" East, 57 79 feet,
THENCE Soufh 12° -19' 51" Eest, 740 55 feet,
THENCE Soulh 02° 72' 33" East, 715 85 feetto a point m 1h0 West right-of-way Ilne of said County Road
No 76, which is 597.04 teei from Ihe 6ast qUadar corner of said Section 25: THENCE CONTINUING South 02° 12' 33" East, 2,626 SY teal to the POINT OF BEGINNING; EXCEPT ihe Southeastedy portion conveyed to the City ofAUbum by deed racorded under Kmg Caunty
Recording No. 92721 i2182;
EXCEPT that padlon ihereof dascnbed ea follows
COMMENCING at Ihe Soulheno cumorof sakl Sachon 25, ~
~ THENCE Narlh 89' 33' 10° Wast, alonp fhe South Ime ot said Soulheast quarter, a dfstance of
~ 6194Qfeet;
.r THENCE Norlh 00° 28' 50" East, 20.00 feet to Ihe POINT OP BEGINNING;a THENCE Narth 89°33' 10" West, 1,463.04 feel,
THENCE North 01° 72' 79" East, 1,20917 teet,
THENCE North 99° 22' SD" West, 639.18fee1;
cv THENCE Norlh 01• 90' 46" East, 734,47 feot,
a" THENCE SOUIh 67° 40' 67" Eaek 4B248 feeh
° THENCE Norih 88° 48' 30' Eas1,175.07 feet,
ev , THENCE South pi• 08' 16" East,175A0 faet ~
4 THENCE NoAh 86• 50' 44" Eeet, 502.22 Taet; ~
c°r+ THENCE Nodh 09' 98' 16' Waat,1,327.A6 feei, ~
THENCE Nodh 66° 4@' 13' Eaot, 453A8 teet to tha beglnning of a803.t1-(aot radlus ouroe ta the tefh
THENCE atong the am of said cucve, pasning lhrough a centrai angle ot 596 58' 03", an arc dfstenco oi
630.E8 feet;
THENCE Norlh 07• OB' 42° West, 82.34 feof;
THENCE Soulh 89• 1714" Ettst, 57.7J feeh,
THENCE Soulh 1i' 17' 61" Eaet, 741.88 feet to the Woat mergln of'C` Street Soulhwesk iFIENCE Soulh 010 16' y6" East, atong nWd merptn 3,296.27 feet;
THENCE Soulh 40° 43' 00" West, 52,40 faetto the POINT OF BEGINNING.
ProjectNama. BaeingAU6umPlanl
May 8, 2002
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EXHIBIT B - COVENANTS
Parcel'E"'
Ail thal porUon of the Soulhwesl quartef of Secllon 25, Township 21 Norih, Range 4 East, Wiilamelte
Mendian, m Kmg County, WashingWn, lYing Easl of the East margin of the Chrcago. Mdwaukao, St
Paui & pacilic Companyk dght-oF-wqy, EXCEPT the North 30 feei, the Sauth 30 foet, and the East 20 feat lhereo( for roads;
EXCEP7 Ihat portion thareaf wnveyed lo the City of Algona by deed recorded undm Kmg Counry
Recordmg No 7106750532,
EXCEPT that porLan thereof convayed to the Slata ot Washington far 5lato Road No 167 by deeds
reearded under Kmg County Recording Nas 7203140273 and 7203200301,
AND F3(CEP7'ihat portion lhereot c4fndemned by the Stata ot Washington for Slate Road No.107 m
I4ng County Supedor Court Cause No 740400.
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EXHIBIT B - COVENANTS
ExHiszr°B°
SAFEWAY PROPERTY:
• PARCEL ONE: .
THE WEST NALF OF THE WES7' HALF OF THE SOUTHWEST !/A OF THE SOUTHEAST 114 OF
SECTION 25, TOWNSHIP 21 NORTH, RANGE 4 EAST, W. M., IN KING COUNTY, WASHINGTON;
EXCEPT THE WEST 20 FEET CONVEYEp TO KIIVG COUNIY FOR ROAD BY DEED RECORDED UNDER
lQNG COU(0'iY RECORDING N0.2133635;
EXCEPT THE EAST 20 FEET OF THE WEST 40 FEET OF THE NORTH 400 FEET CONVEYED TO CITY
0F Al,GONA BY DEED RECORDED UNDER KING COUNN REGORDING ND. 7106150533;
D(CEPT THAT PORTiON LY►NG SOU7H OF NORTH LINE OF TRACT CONVtYED TO THE STATE OF
WASHINGTpfV BY DEED RECORDED UNDER IQNG CQUNTY RECORDING NO. 7106250394;
AND IXCEPT POR7ION DESCiUBED AS FOLLOWS:
~
~ BEGINNING AT TI1E SOllTH'/o CORNER OF SECTION ZS, TOWNSHIP 21 NORTH, RANGE 4 EAST, W.
M., IN KING COUNTY, WASHINGfON; • '
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° THENCB EASTERLY ALONG THE SOUTH LINE OF SAID SECTIDN, A DISTANGE OF 326 FEET, MDRE
Q OR LESS, TO AN INTERSECTI6N WITH THE WEST LINE OF THE EAST HAIF OF THE WEST HALF OF ~ THE BOUTHWEST 1/4 OF THE 50U7 HEAST 1/4 OF SAID SECT[ON;
~
TtiENCE NOR7HERLY ALONG SAID WEST LINE, A D15TANCE OF 340.38 FEET TO THE TRUE PO[NT'
~ OF BEGINNING;
•o
THENCE WESTERLY PARALLEL TO THE SOUTH UNE OF SAID SECTIpN 25, A DTSTANCE OF 110 ~ I
FEEI';
7HENCE NORTHERLY ALONG A LINE PARALLELTO SAID WEST LINE OF THE EASf HALF pF THE
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WEST HALF OFTHE SOU7HWEST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECT[ON 25, A DI5('ANCE I
OF 560.00 PBET; .
THENCE EASfERLY ALONG A l]NE PARALLEL TO THE SOUTH UNE OF SAID SECRON 25, A ~
D[STANCE OF 110 FEETTO AN INTERSECTION WITH THE SAID WEST LINE OF THE FAST HALF OF i
THE WEST HALF OF THE SOUTHWEST 1/4 OF1FiE SOUTHEAST 1/4 OF SAID SECI"ION 25;
THENCE SOUTHERLY TO THE 7RUE POINT OF BEGINNING. I
AND
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THE SOUTH 340.38 fEET OF THE EASI' HALF OF THE WEST HALF OF TFIG SOUTHWEST 114 OF THE
SOUTHEAST 1/4 OF SECi]ON 25, TOWNSHIP 21 NORTN, RANGE 4 EhSf', W. M, IN KING COUNIY,
WASHINGTON,
EXCEPT THE WEST 36 FEET TNEREOF,
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EXHIBIT B - COVENANTS
AND EXCEPT THAT PORTION 7HEf2E0F lYING SOUTHERLY OF THE NORTHERLY LINE OF THE
ELUNGSON EXTENSION OF SfATE HiGNWAY S.R. 167, AS CONVEYED TO THE STA7E OF
WASFfINGTON BY pEED RECORDED UNDER KING COUNTY RECORDING ND. 7112180296;
TOGETHER WITN THE iVORTH 45 FEET OF THE SOUTH 385,38 FE@'1' OF THE EAS7' 161 FEEf OF THE
EAST HAI.F OF THE W6ST HALF OF THE SOUTHWEST 1/4 OF THE SpUTHEAST 1/4 OF SAID
SEC'fION 25,
AND
LOT 1 OF CITY OF AUBURN LOT LINE AD3U5TMENT NO. LLA02-0015, RECORDED UND£R
RECOROING NO. 20020725001632, BQNG A pOR71pN OF THE SOU7HEAST Ya AND THE
NORTHEAST Ya OF SECTION 25, TOWNSHIP 23 NORTH, RANGE A EAST, W M.;
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EXCEPT ANY IMPROVEMENTS LYING UPQN SAIU PARCEL qNE.
SiTUA7E IN THE COUNTY OF KING, STATE OF WASHINGTON.
PARCEL TWO:
AN EASEMENT FOR AN OUTFALL SfORM SElNER LINE TOOETHER W17H THE RIGHT OF ACCESS
THERETO FOR THE pPERATION, MAiMENANCE, iMPROVEMENT, REPIACEMENT, REPR]R AND
~ INSPECTION OF THE SAME, AS ESTABLi$HEp IN INSTRUMENT FECaRDED UNDER R[COROING
Lo N0. 74f 226Q129i BEING MORE PAR7ICULqRLY DESCRIBED AS:
~
a A PARCEL IN THE NORTFi ttALf OF THE N4R7HWEST QUARTER OF SECTION 36, TOWNSHIP 21
o M1lORTF{, RANGE 4 EAST, W.M., IN K1NG COUNTY, WASHINGTON, DESCRiBED AS FOLLOWS:
~ 0E1NG A STRIP 60.00 FEET WIpE, 30.00 FEEf ON EACH SIDE pF THE FOLLOWING DESCRIBED cn L7NE WHICH BEGINS ON THE WESTERLY BOUNDqRY OF PACIFfC AVENUE WNICH IS406.16 FEEf
SOUTHERLY OF THE INTERSECTION OF THE WE5TERLY BOIINDARY OF PACIFIC AVEtVUE AND THE
N NORTHERLY BQUNDARY OF SECTION 36; ~
~ THENCE SOUTH 85025'34" WEST 1,593.79 FEET TO A POINT 80.00 FEET EAS7ERLY OF THE
. n, EASTERLY RIGHT OF WAY OF THE CHICAGO, MILWAUKEE, ST. PAUL AND PACSFIC RAILWAY; AND
A PARCEL IN LOTS 35,36 AND 43 OF C.D HIU.MAN'S PAClFIC CITY ADDITION TO THE CIIY OF SEATTLE, WASMIINGTON, DIVISION NO. 2 AS PER PLAT RECORDED IN VOI.l1ME 13, ON PAGE 49,
RECARDS OF KiNG COUNTY, WASHINGTON, DE5Cq1MD AS FOLLOWS:
eEiNG A STRIP 50,00 FEET WlDE, 25.00 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED
I.INE WHICH BEGINS AT A POINT ON THE NORTHERLY BOUNDARY OF SAID LOT 35, SAID POIfJT
6EIN6 139.50 FBEf EAST OF THE NORTHWEST CORNER OF SAID LOT 35, .
THENCE SoUTH 2057' EAST 336.03 FEEf TO A MANHOIE;
THENCE $OUTH 85°24' WEST 800.15 FEEf 70 THE WESTERLY BOUNDARY OF LO'I' 43;
SATD WESTERLY BOUNDARY BEING THE EASTERLY EDG6 qF PACIFIC AVENUE AND BEING 404.82
FEE7 SOUTH OF TFiE NORTH LINE OF SAiD SEGTION 36;
StTUATE IN THE COUNTY OF KING, STA7E OF WA5HINGTON
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7/.51/0= r=,W SAFEWAY SITE P@.A6V
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EXHIBIT B - COVENANTS
EXHiB17 "A"
LEGAL DESCRIPTIOM
GOVERNMENT CANAL
An assignabte, permanent, end perpetual eaaement for the exlsUng ouHall starm sewer hne ar
any repFacement thereof, fogether with a rlght o1 access thereto fot the operaQon, malntenance,
improvement, replacament, repalr, or inspection of such Ilne, over a strip of lantl described as
follows
A parcel in the Soulhwest quarter of Secllon 25, and m the West hatf of Secl(on 38,
Township 21 North, Range 4 East, Willamette Meridien, King County, Washington, and
the Northwast quarter of Secdon 1, Township 20 Norih, Range 4 East, Willemetie ~
Meridian, Pieroe County, Waehington, dascn6ed as a stdp 80.0U feet vnda, 40,00 Seet on ~
each side of ihe toilowlrtg dascdbed Ilne:
BEGINNINO at a polnt ort the 5outh right-ot-way Ilne ot Alpona Roatl, 40,00 faet
East oF the East right-of-way I(ne of Chicago, Mdwaukee, St Paul, and Peciflc
Raliroatl;
THENCE Soulh 7,358 feet more or less pa211e1 to seid Reiimed to a polnt
133.62 feet Soulh of the Notlh line of Lot 3, of C,D Htllman'e PaclBc Clty Addillon ~ to the Clty oF SeaHie. No. 3;
THENCE along a 160-foot•radlus curve to the IeR having a cenlral an91a of
o 89° 28' for a disWnce of 234.22 feel;
TMENCE North SB° 49' East,132 24 faei,
THENCE aiong a 150-foot-redfus curve to the right having a central angle ~ of 600 20' for a dfstanca af 167.05 feat; ;
o THENCE South 340 51' Eest,1,110.00 feet to the right-of-way of Vuntte River, ,
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August 1, 2002 I
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EXHIBIT B - COVENANTS
EXHIBI7 "E"
IEGAL DESCRIPTION
RAIL EASEMEtQS'AREA
All those portions of Lots 1 af Ctry of Aubum lot Lina Adjustment No. LLA02-0075, as racorded
under Recarding No, 20020725001832, Rocards of Kutg County, Washinglon, more particulaAy
dascnbed ae follows.
A stnp of IanB, 26 feet In wldth, lYuig 12 5 feet an each slde of the following descn6ed easement .
centerhne:
COMMENCING at iha Southeast comer o( Secllon 25, Township 21 Narth, Range 4 East,
WlOametta Merid19n,14ng County, Washinglon;
THENCE Norfh 89° 33' 70" West, along Ihe Soutfi dne of the Southeast quarter of said Section, a
distance of 619 AO feeN,
THENCE North 00° 26' 50" East, 20 00 teal,
'fHENCE NorUi 40° 42' 59` East, 52 40 teet to the West margin of °C` Street S.W.;
THENQB North 07° 10' 16" West, elong said margin 328527 tesl,
~ THENCE NoAh 71° 17' 5i° West, 563 75 feet to the POIN7 0F BEGINNING and the beginning of
a non-tangent curve to the nght, irom whlch polnt Ihe ratlius pofnt bears North 68° 45' 18° West,
~ 720 00 teet distant,
o THENCE Southwestedy along the arc of sald curva, passing through a cenhal angle of
160 20' 44", an aro distance of 192 84 feet, ;
o THENCE Soulh 381 35' 25' West, 759.79 feet to Ne beginning of a 720 00-foot-radius curve to ~
the nght:
THENCE along the ero of sald curvo, pasaing throagh a ceniral angle of 07° 45' 020, an arc
Q' distanceoF9740feek
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1I9ENCE South 44° 20' 28" Wesl, 361.22 teet ro ihe begmnfng of 730 00-fant•radms curve to lhe
c+. nght; ~
; o THENCE along the am of sald curve, passing through a eenlrel angle of 26° 27' 280, an arn
c~ distance of 324 35 {eet ro lhe West Iine of sald Lot 1 and the termmus of the hereln descnbed I
easement centedine. '
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Pro)ea Neme: Bosing Auburn Plent
August 1, 2002
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EXHIBIT B - COVENANTS
EXMIBlT "P"
IEGAL DESCRIPTION
. PROPOSED 20.FOOT•WIDB UT161TY EASEM5NT
Tha West 20 feat, the 8outh 20 feet, lhe Soulheesterly 20 feet, and the East 20 feet of Lot t, Clty
nf Aubum Lot Lme Adjustment No. LLA02-0015, as rernWed under Recording No.
20020726001632, Records of King Cnunty, Washington;
TOGE7IIER WITH a strip o! Iend, 20 feet in widlh, lying 10 feet on each s(de ot the following
descnbed easement centerlirte:
COMMENCING at the Soulheast corner of SecUon 25, Township 21 North, Range_4 Eas4
Willamefte Meridian, King Caunty, Washmglon; i
THENCE Norlh 89° 33' 10' West, atong the South Ilne of tha Southeastquerter o( 5aid Section, a
di5tance oF 519 40 feeG
77iENCE Notlh 00° 26' 50' East, ZO 0D (eet; .
THENCE North 89° 33' 10' West,1453 04 feet,
THENCE North 01° 12' 19• Easl, 1298.17 faet,
~ THENCE North 89°22' 60' West, 3.OD feat to the POINT OF BEOINNING;
~ THENCE North Ot° 08' 26' West, 724.39 feat to Ihe NoHh Ilna of sald Lot 7 and the terminus of
the herem descnbed easement centertme.
a
° TOGE7l-IER WlTH a sufp of land, 20 feet in vndth, fytng 10 feet on each stde n( tho following
° descnbod easemenlcenietlMe•
n
~a COMMENCINGattheSOUlheastcamerafsafdSection?b;
cn 7HENCE Norlh 88• 33' 10' Wesf, along the South Iine of satd Southeast quaAar ot said Secdon, i
a dlstance of 519,40 feet,
, o THENCE North 00° 28' bD' East, 20.OD feet, a THENCE Norlh 40° 4Y 59' East, 62.q0 feet; j
THENCE NorIh,019 10' 16' Woat, etong the West mergln of "C" Slreet S.W, e dfshance of ~
327627 feettotha POINTOF 8EGlNNING; !
THENCE SoUth 89° 21'i5" West, 62420 feet; I
THENCE South 440 20' 2B' West, 68 21 feet to tlie beginning of a 752 60-foot-radius cucve In lhe
nghh, i
7HENCE etong Iha aro of sald curve, passing Ihmugh s cantral angfa of 26° 42' 62', an aro
distance ot 342,10 feet to lhe Weat Ilne of sald Lot 1 and the tertntnus ot the herem tlescribed
easement centedine
The infent of thfs easement is to remaln 20 feet In wldth and remafn the Eest 20 feet o( tha
. Grantor's property along °C" 6treet S.W. end remain ad)acent to 'C" StreOt S.W. When and if addillanel righbo6way Is taken or dedicated, the easamant wlll move accortiingiy and remam In
force
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ProJed Neme. 6oeMg Aubum Plant '
August 1, 2002
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EXHIBIT B - COVENANTS
EXHlBIT "G"
LEGAL DESCRIaTION
PROPOSED EASTERLY MONUMENTSIGN AND fANDSCAPE EP,SEMEN7
All thasa paAlons of Iha Southeasi quarter of Seclipn 25, Townshtp 21 Norih, Range 4Eaef,
Wlltamette Metldlan, Kmg Counry, Washington, more particularly deseribed as folrows•
COMMBNCING at tha Soulheast carnar of said Seclton 25;
THENCE Narlh 89° 33' 10' West, along the Soulh Une of said Southeast quarter, a dlstartCe of
549 40 (ee1,
THENCE North 00° 26' SO' Eas[, 20.00 feel to the POINT OF BGOINNINO;
7HENCH Narth 884 33' 70" West,16.00 feet ,
THENCE Nofth 00• 28' 54' Easf, 19.96 fest,
7HENqE North 44° 38' 19' Easl, 41.02 feet;
TNENCE North 99° 49' 44' Eas4 20.00 feet to the Westeny margin of "C" Streat S.W.;
THENCE Soulh 01° 10' 16' Eack eionp sald margin 9 98 teel;
THENGESouth4o•42•69'Wesk52.40feetrothaPO1NTOFBEGINNING. ~
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EXHIBIT B - COVENANTS
EXWIBfT "G"
LEOAL DESCRIPTION
pROPOSED WESTERLY MONUMENT S1GN AND LANDSCAPE EA5EMENT
All lhat portion of the Soulheest querter of SecUOn 25. Township 21 North, Range 4' East,
Wlllamefte Merldian, King County, Washmpton, more paMlculary described as fallows
COMMENCING at tha South quarter cOmer of sa}d Secdon 26,
THENCE Soulh 89° 33' 10" East, along 1he Souih Ime of said Southeast quarter, a distance ot
328.78 Teel;
THENCE North 01° 11' 33' East, 3040 feetm the POIN7 oF BEGINNING;
THENCE CONTINUING Norlh 01° 1'!' 33' FaSt, 20 00 teat;
TNENCE Notth 89° 33' 10" West, 259.14 feeh
THENCE Norih 43° 35' 07' West, 42.11 feet;
THENCE North 88° 49' 14' West, 20.00 feel;
TNENCE South 010 10' 46" West, 26.79feat;
7HENCE South 44° 46' 06' East, 3512 feet
'
7HENCE South 89°33' 10' East, 283.85 feet to the POINT OF DEGINNING.
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ProJect Name: eaeing Aubum Plant I
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EXHIBIT B - COVENANTS
EXHI8IT "H'•
LEGA! D58CRlPTION
PROPQSED 20-F00T STORM ORAINAGE EASEMENT
Ali lhose porhons of Lot 1 of City o( Auburn l.ot Line Adjustrnent No LLA02•0015, as reCOfded
under Recordmg No 20020725009832, Records of King Counry, Washmgton, more padfcuYariy
descrlBed as follows.
A slrlp o( land, 20 feet m wldth, ying 10 feet on each slde of 14e folloxnng descrlbed eesement
eenterhne.
COMMENCING at ihe Southeast comer o} Sachon 25, Tawnshlp 21 North, Range 4 East,
Willametle Mendian, King County, Washington;
THENCE Norih 89° 33' 10° West, along the South line of ihe Soulheaet quacter of seid Sactlon, a
distance of 619 40 feek
THENCE Notth 001 26' 60' Eest, 20.00 feel,
7HENCE North 890 33' 10' Wes1,1311.29 feet to the POINT oF BEGINNING;
, THENCE Nortff 01' 10' 48' West, 185145 feet to the Norfh line of said Lot 1 and ihe terminua of I
Ihe herem described eeaemant centerhne
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EXHIBIT C
AGREEMENT
REGARDING DRAINAGE AGREEMENT
This AGREEMENT ("AgreemenY') is entered into as of the day of
, 2010, by and between the CITY OF AUBURN, a Washington
Municipal Corporation ("City") and SAFEWAY INC., a Delaware Corporation
("Safeway").
RECITALS
A. Safeway is the owner of certain real property and all improvements thereon (the
"Safeway Property") located in the City of Aubum, County of King, Washington, which
is legally described on Exhibit A attached hereto.
B. Simultaneously with the execution hereof, City is acquiring from Safeway a certain
por[ion of the Safeway Property (the "Acquired Property"). The Acquired Property is
legally described on Exhibit B attached hereto. City intends to develop and use the
Acquired Property in conjunction with its use and development of one or more properties
adjacent thereto, which adjacent properties are more particularly described in Exhibits C
and D attached hereto. All properties at any time used or developed in connection with
the Acquired Property are herein referred to as the "City Properties."
C. The Safeway Property, including the Acquired Property, is subject to a Drainage
Agreement (the "Drainage AgreemenY") entered into between Safeway and the Boeing
Company ("Boeing") dated September 18, 2002, which was recorded in the real property
records of King County, Washington as Instrument No. 20020920001615.
D. As contemplated in Section 1.4 of the Drainage Agreement, successors in interest to
the properties governed thereby shall be subject to its terms, but may allocate or delegate
between themselves the obligations that run with their respective properties. The parties
wish hereby to establish their respective obligations under the Drainage Agreement.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Safeway and the City agree as follows:
1. Defined Terms Capitalized terms used herein without definition shali have the
meanings given them in the Drainage Agreement.
2. Cost Allocation.
(a) Except for the obligations expressly assumed by Safeway herein, the parties
agree that the City's share of any costs or expenses owed by the Owner of the Safeway
Property pursuant to the Drainage Agreement shall be one percent (1%) of the costs
City of Auburn/Safeway Agreement
Page 1 of 8
EXHIBIT C
associated with the Safeway property as a whole; provided, that for purposes of Section
45 (Indemnification) of the Drainage Agreement, each paRy's responsibility shall be to
pay such costs as are associated with the Property that it owns.
(b) Safeway agrees to pay, without contribution from the City, all costs incurred
by Safeway in connection with (i) regular maintenance of the East Ditch, of the nature
and cost historically performed and paid for by Safeway to date under the Drainage
Agreement, and (ii) regular maintenance of the Government Canal performed by the
Owner of the Boeing Property and billed to the Owner of the Safeway Property, of the
nature and cost historically billed to Safeway by Boeing to date under the Drainage
Agreement.
3. DrainaQe of the City Properties.
As recited in the Drainage Agreement, the Safeway Property includes certain
appurtenant drainage easement rights, which rights were created pursuant to an
instrument recorded under Recording No. 7412260129, as described in Exhibit E to the
Drainage Agreement (the "Drainage Easement"). The conveyance of the Acquired
Property to the City does not include the Drainage Easement or any part thereof, all of
which are hereby disclaimed by the City. The City shall design and construct all
improvements on the Acquired Property and City Properties in such a manner as to not
allow storm or surface waters from the Acquired Property or City Properties to enter
the drainage systems described in the Drainage Ageement, absent an agreement from
the owner(s) or beneficiaries of the affected system (Safeway and Boeing as to the East
Ditch, Boeing as to the balance). Without limiting the foregoing, the City Properties
shall not divert or otherwise allow storm or surface waters to drain into any wetlands
areas, into any Boeing Canals, into the East Ditch or the Government Canal. Without
limiting the foregoing, the City shall observe the requirements of Sections 3.1 and 3.2
of the Drainage Agreement. Notwithstanding the foregoing, nothing herein shall
prohibit the City from continuing its existing use of storm drainage facilities serving the
City Property and unrelated to the Drainage Agreement, and/or making an agreement
with Boeing for the additional use of Boeing's Government Canal for the City's
drainage purposes.
4. Assumption and Acknowledeement bv the Citv.
The City acknowledges and agrees to be bound by all the terms and conditions of the
Drainage Agreement, including without timitation those matters set, forth in Section 4,
Environmental Matters.
5. Dispute Resolution and Remedies
The dispute resolution and remedies provisions of the Drainage Agreement, set foRh in
Sections 6(Default Resolution Procedure) and 7.16 (Waiver of Jury Trial) shall apply to
this Agreement and are incorporated herein by reference.
City of Auburn/Safeway Agreement
Page 2 of 8
EXHIBIT C
6. Agreement to Run with the Land
The obligations of Safeway and the City under this Agreement shall be binding upon, and
the rights of Safeway and the City under this Agreement shall inure to the benefit of, the
successors in title to and the lessees and occupants of the Safeway Property and the City
Properties,respectively.
7. Notice
All notifications under this Agreement shall be sent to the parties by an established
delivery service that maintains records of delivery, or shail be delivered by hand to the
following addresses, or to any address a party may designate:
To Safeway: Safeway Inc.
1121 124th Ave NE
Bellewe, WA 98005
Attn: Real Estate Director
With Copies to: Safeway Inc.
Rea1 Estate Law
5918 Stoneridge Mall Rd.
Pleasanton CA 94588-3229
Re: Auburn Distribution Center
To City of Auburn: City of Auburn
25 W. Main St.
ATTN: FaciliYies Management
Aubum, WA 98001
With Copies to: City of Auburn
25 W. Main St.
ATTN: City Attorney
Auburn, WA 98001
8. Construction
The parties agree that they have each been represented by counsel of their choosing and
that they have had equal say in drafting this Agreement. Therefore, this Agreement shall
be interpreted in accordance with general rules of construction and not against either
party as the drafter.
9. Venue
Venue for the resolution of any disputes under this Agreement shall be in the Superior
Court for King County, Washington. All other dispute resolution provisions of the
Drainage Easement remain in full force and effect.
City of Auburn/Safeway Agreement
Page 3 of 8
EXHIBIT C
10. Severabilitv
In the event that any provision of this Ageement is found to be unenforceable, the
remainder of the Agreement shall remain valid and enforceable.
1 I . Entire AQreement
This Agreement, including all exhibits hereto, supersedes any prior agreements,
negotiations, and communications, oral or written, related to this subject matter and
contains the entire agreement between the parties with respect to this subject matter.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date noted
above.
CITY OF AUBURN SAFEWAY INC.
By: By:
Peter B. Lewis, Mayor Its Assistant Vice-President
Attest: By:
Its Assistant Secretary
Dani Daskam, City Clerk
Approved as to Form:
Daniel B. Heid, Cit Attorne
City of Aubum/Safeway Agreement
Page 4 of 8
EXHIBIT C
EXHIBIT "A"
THAT PORTION OF THE EAST HALF OF SECTION 25, TOWNSHIP
21 NORTH, RANGE 4 EAST, WILLAMETTE MERID[AN, 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
N0.20020725001632.
City of Aubum/Safeway Agreement
Page 5 of 8
EXHIBIT C
EXHIBIT "B"
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 ADNSTMENT 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 NO. 2521049096.
City of Auburn/Safeway Agreement
Page 6 of 8
EXHIBIT C
EXHIBIT "C"
LEGAL DESCRIPTION U S GOVERNMENT SEVERANCE PARCEL A
A PARCEL OF U.S. GOVERNMENT LAND WITHIN THE NORTHEAST QUARTER
OF SECTION 25, TOWNSHIP 21 NORTH, RANGE 4 EAST W.M., SAID PARCEL
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER OF SAID SECTION 25 AS MONUMENTED BY
AN EXISTING BRASS DISC, FROM WHICH POINT THE WEST QUARTER
CORNER OF SAID SECTION BEARS NORTH 89°I1'20" WEST 2599.20 FEET
DISTANT AND FROM WHICH POINT THE SOUTH QUARTER CORNER OF SAID
SECTION BEARS SOUTH 0 10 10'46" WEST 264232 FEET DISTANT;
THENCE NORTH 01°10'46" EAST A DISTANCE OF 50.01 FEET;
THENCE SOUTH 89°11'20° EAST, A DISTANCE OF 121.20 FEET TO THE
BEGINNING OF A 603.11 FOOT RADIUS CURVE TO THE LEFT;
THENCE EASTERLY ALONG SAID CURVE, AN ARC DISTANCE OF 336.65
FEET, THROUGH A CENTRAL ANGLE OF 31°58'55";
THENCE NORTH 58°49'45" EAST A DISTANCE OF 547.73 FEET TO THE TRUE
POINT OF BEGINN[NG, SAID POINT LIES SOUTH 01°10'37" EAST 5634.74 FEET
DISTANT FROM A 6" X 6" CONCRETE MONUMENT ON THE SOUTH MARGIN
OF AN EASEMENT FOR 15TH STREET SOUTHWEST RIGHT-0F-WAY
CONVEYED TO THE CITY OF AUBURN BY INSTRUMENT RECORDED UNDER
RECORDING NUMBER 6160979;
THENCE NORTH 01°10'37" WEST A DISTANCE OF 671.78 FEET;
THENCE NORTH 88051'31" EAST A DISTANCE OF 333.47 FEET;
THENCE SOUTH 01 008'29" EAST A DISTANCE OF 14.47 FEET;
THENCE NORTH 88042'23" EAST A DISTANCE OF 527.94 FEET;
THENCE SOUTH 01°17'37" EAST A DISTANCE OF 2.58 FEET;
THENCE SOUTH 89°06'10" EAST A DISTANCE OF 22.29 FEET TO THE SOUTH
LINE OF SAID U.S. GOVERNMENT LAND AND A NON-TANGENT CURVE, THE
CENTER OF WHICH BEARS NORTH 68046'51" WEST 603.11 FEET DISTANT;
THENCE SOUTHWESTERLY ALONG SAID CURVE 395.89 FEET THROUGH A
CENTRAL ANGLE OF 37°36'36' ;
THENCE SOUTH 58°49'45" WEST A DISTANCE OF 724.60 FEET TO THE TRUE
POINT OF BEGINNING.
SITUATE IN KING COUNTY, WASHINGTON
CONTAINING 350,257 SQ. FT./ 8.04 ACRES.
City of Aubum/Safeway Agreement
Page 7 of 8
EXHIBIT C
EXHIBIT "D"
LEGAL DESCRIPTION U S GOVERNMENT SEVERANCE PARCEL B
A PARCEL OF U.S. GOVERNMENT LAND WITHIN THE NORTHEAST QUARTER
OF SECTION 25, TOWNSHIP 21 NORTH, RANGE 4 EAST W.M., SAID PARCEL
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER OF SAID SECTION 25 AS MONUMENTED BY
AN EXISTING BRASS DISC, FROM WHICH POINT THE WEST QUARTER
CORNER OF SAID SECTION BEARS NORTH 89°11'20" WEST 2599.20 FEET
DISTANT AND FROM WHICH POINT THE SOUTH QUARTER CORNER OF SAID
SECTION BEARS SOUTH 01°10'46" WEST 264232 FEET DISTANT;
THENCE NORTH 0 10 10'46" EAST A DISTANCE OF 50.01 FEET;
THENCE SOUTH 89011'20" EAST, A DISTANCE OF 121.20 FEET TO THE
BEGINNING OF A 603.11 FOOT RADNS CURVE TO THE LEFT;
THENCE EASTERLY ALONG SAID CURVE, AN ARC DISTANCE OF 336.65
FEET, THROUGH A CENTRAL ANGLE OF 31 °58'S5' ;
THENCE NORTH 58049'45" EAST A DISTANCE OF 547.73 FEET TO A POINT
WHICH LIES SOUTH 01°10'37" EAST 5634.74 FEET DISTANT FROM A 6" X 6" !
CONCRETE MONUMENT ON THE SOUTH MARGIN OF AN EASEMENT FOR
ISTH STREET SOUTHWEST RIGHT-OF-WAY CONVEYED TO THE CITY OF
AUBURN BY INSTRUMENT RECORDED UNDER RECORDING NUMBER
6160979;
THENCE NORTH 01 ° 10'37" WEST A DISTANCE OF 671.78 FEET;
THENCE NORTH 88051'31" EAST A DISTANCE OF 333.47 FEET;
THENCE SOUTH 01°08'29" EAST A DISTANCE OF 14.47 FEET;
THENCE NORTH 88°42'23" EAST A DISTANCE OF 527.94 FEET;
THENCE SOUTH 01°17'37" EAST A DISTANCE OF 2.58 FEET;
THENCE SOUTH 89°06'10" EAST A DISTANCE OF 22.29 FEET TO THE SOUTH
LINE OF SAID U.S. GOVERNMENT LAND AND A NON-TANGENT CURVE, THE
CENTER OF WHICH BEARS NORTH 68046'51" WEST 603.11 FEET DISTANT;
THENCE NORTHEASTERLY ALONG SAID CURVE 3.71 FEET THROUGH A
CENTRAL ANGLE OF 0021'10";
THENCE NORTH 88°42'23" EAST A DISTANCE OF 158.07 FEET TO THE TRUE
POINT OF BEGINNING;
THENCE NORTH °88°42'23" EAST A DISTANCE OF 73.72 FEET TO THE WEST
RIGHT-OF-WAY OF "C" STREET SOUTHWEST;
THENCE SOUTH 01°10'47" EAST, ALONG SAID RIGHT-OF-WAY A DISTANCE
OF 414.25 FEET;
THENCE NORTH 11°16'27" WEST A DISTANCE OF 420.61 FEET TO THE TRUE
POINT OF BEGINNING.
SITUATE IN KING COUNTY WASHINGTON
CONTAINING 15269 SQ. FT./ 0.35 ACRES.
City of Auburn/Safeway Agreement
Page 8 of 8