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HomeMy WebLinkAboutA 20060915000212 R V t , i 1. . �w Return Address: City Clerk's Office 20060915000212 City of Renton •CITY OF RENTON AG 1055 S. Grady Way PAGE001 OF 027 58.00 09/15/2006 09:24 Renton WA 98055 KING COUNTY, WA Please print or type information WASHINGTON STATE RECORDER'S Cover Sheet (Rcw 6104) Document Title(s)(or transactions contained therein):(all areas applicable to your document must be filled in) 1. Landing ngg Infrastructure Agreement 2. 3. 4. Reference Number(s) of Documents assigned or released: Additional reference#'s on page of document Grantor(s) (Last name,first name,initials) 1. Transwestern Harvest Lakeshore, TIC 2. City of Renton Additional names on page of document. Grantee(s) (Last name first,then first name and initials) 1. Transwestern Harvest Lakeshore, 2. City of Renton Additional names on page of document. Legal description(abbreviated: i.e.lot,block,plat or section,township,range) Lots 1, 2, 3 and 4 of the Boeing Lakeshore Landing Binding Site Plan, Recording No. 20041223000856, records of King County, Washington. Additional legal is on page of document. Assessor's Property Tax Parcel/Account Number El Assessor Tax#not yet assigned 0886600010, 0886600020, 0886600030, 0886600040 The Auditor/Recorder will rely on the information provided on the form. The staff will not read the document to. verify the accuracy or completeness of the indexing information provided herein. I am requesting an emergency nonstandard recording for an additional fee as provided in RCW 36.18.010. I understand that the recording processing requirements may cover up or otherwise obscure some part of the text of the original document. • Signature of Requesting Party • CERTIFICATE Y•°'' I,the undersigned City Clerk of the .. . City of Renton, Washington,certify/ • •--' • that this is a true and correct copy • '' �' - • the eenent zt �' . Subscril>�l��:k and sealed this 15 day ofJune 2Q , �' * / , City Clerk Bonnie I. Walton"'.,,,�• t`1•- AGREEMENT FOR IMPROVEMENTS TO PUBLIC INFRAS r tL FOR THE LANDING THIS AGREEMENT FOR IMPROVEMENTS TO PUBLICpi INFRASTRUCTURE("Agreement")is made and entered into as of this P day of 2006,by and between the CITY OF RENTON,a municipal corporation org and existing under the laws of the State of Washington("the City"),and TRANS WESTERN HARVEST LAKESHORE LLC,a Delaware limited liability company(`TILL"). RECITALS A. TEL is the owner of that certain real property comprising 46 acres,more or less,located within the municipal boundaries of the City in King County,Washington, and legally described on Molnar A attached hereto("the TEL Property"). B. TEL intends to develop the TEL Property as Phase 1 of a mixed-use retail/commercial and multi-family residential development to be known as "The Landing,"as more particularly described hereafter. THL is the successor in interest to The Boeing Company("Boeing")with respect to the THL Property. C. The THL Property is a portion of a larger assemblage of real property that is subject to,and enjoys rights vested under,certain written agreements,as follows: • Development Agreement Between The Boeing Company and the City of Renton for the Boeing Renton Aircraft Manufacturing Facility,dated June 28,2002,recorded under King County Recording No.20020802000224("the 2002 Development Agreement"); • Strander Agreement between The Boeing Company and the City of Renton,dated December 4,2002,recorded under King County Recording No.20060420001032("the Strander Agreement");and • Development Agreement Between The Boeing Company and the City of Renton for Redevelopment of a Portion of the Boeing Renton Aircraft Manufacturing Facility,dated December 1,2003,recorded under King • County Recording No.20031210001637("the 2003 Development • Agreement"). D. In November 2003 the City adopted amendments to its Comprehensive Plan designating the THL Property as Urban Center North. In November 2003 the City also reclassified(rezoned)the TEL Property and adjacent property to the Urban Center-North 1 zoning classification("UC-N1")under the City's adopted development regulations. Pursuant to the State Environmental Policy Act(SEPA),RCW ch.43.21C, Infrastructure Improvement Agreement for The Landing page 1 AGREEMENT FOR IMPROVEMENTS TO PUBLIC INFRAST1W POT E FOR THE LANDING THIS AGREEMENT FOR IMPROVEMENTS TO PUBLIC bi INFRASTRUCTURE("Agreement")is made and entered into as of this P day of , 2006, by and between the CITY OF RENTON, a municipal corporation org ' and existing under the laws of the State of Washington ("the City"), and TRANS WESTERN HARVEST LAKESHORE LLC,a Delaware limited liability company("THL"). RECITALS A. THL is the owner of that certain real property comprising 46 acres,more or less,located within the municipal boundaries of the City in King County, Washington, and legally described on Err A attached hereto("the THL Property"). B. THL intends to develop the THL Property as Phase I of a mixed-use retail/commercial and multi-family residential development to be known as 'The Landing,"as more particularly described hereafter. THL is the successor in interest to The Boeing Company("Boeing") with respect to the THL Property. C. The THL Property is a portion of a larger assemblage of real property that is subject to, and enjoys rights vested under,certain written agreements, as follows: • Development Agreement Between The Boeing Company and the City of Renton for the Boeing Renton Aircraft Manufacturing Facility, dated June 28, 2002, recorded under King County Recording No. 20020802000224 ("the 2002 Development Agreement"); • Strander Agreement between The Boeing Company and the City of Renton, dated December 4, 2002, recorded under King County Recording No. 20060420001032("the Strander Agreement"); and • Development Agreement Between The Boeing Company and the City of Renton for Redevelopment of a Portion of the Boeing Renton Aircraft Manufacturing Facility, dated December 1, 2003, recorded under King County Recording No. 20031210001637 ("the 2003 Development Agreement"). D. In November 2003 the City adopted amendments to its Comprehensive Plan designating the THL Property as Urban Center North. In November 2003 the City also reclassified (rezoned) the THL Property and adjacent property to the Urban Center-North 1 zoning classification ("UC-NI") under the City's adopted development regulations. Pursuant to the State Environmental Policy Act(SEPA), RCW ch. 43.210, Infrastructure Improvement Agreement The Landing Page 1 • {• the City issued an environmental impact statement(EIS) in 2003 analyzing the impacts of, and alternatives to,such comprehensive plan amendments, the implementing development regulations, and subsequent project development and buildout pursuant thereto. E. The UC-N1 designation envisions a broad range of redevelopment uses in a dense employment center, including but not limited to retail integrated into pedestrian-oriented shopping districts, theaters, and a range of urban-scale mixed-use residential,office, and commercial uses. THL's proposed uses of the THL Property are consistent with the UC-N1 designation. F. In December 2003 the City also adopted and approved a Conceptual Plan for Subdistrict 1A, which subdistrict includes the THL Property. That Conceptual Plan is Exhibit 5 to the recorded 2003 Development Agreement. In October 2004 the City amended that Conceptual Plan to permit a total of up to 800,000 square feet of retail or other commercial development, as well as office and multi-family residential development. G. In its Ordinance No. 5107, enacted in November 2004, the City further designated the planned redevelopment of the THL Property as a planned action under the State Environmental Policy Act(SEPA), RCW ch. 43.21C. H. THL intends to develop The Landing pursuant to and implementing the City's applicable adopted development regulations, and pursuant to and implementing the 2002 Development Agreement, the Strander Agreement, and the 2003 Development Agreement, all of which agreements remain in full force and effect. I. Accordingly, pursuant to Renton Municipal Code(RMC) § 4-9-200, and in accordance with the approved Conceptual Plan for Subdistrict lA (as amended), THL has applied to the City for approval of a Master Plan and a Site Plan for the THL Property, to allow development of the THL Property as a mixed-use project including a wide range of urban-scale mixed uses that will include the following: retail, commercial and multi-family housing; and may include office uses. The City has not yet approved the proposed Master Plan or Site Plan for the THL Property. However, the parties wish to provide for the timely installation of certain infrastructure improvements in the vicinity of the THL Property that will be required for future development of the THL Property. J. Pursuant to and in accordance with the 2003 Development Agreement, the City is obligated to construct substantial arterial public street improvements and other public infrastructure improvements in the vicinity of, and through, the THL Property, principally at the City's cost and expense, with contribution by THL of the costs and expenses of designing, engineering, and constructing certain left-turn storage lanes and traffic signalization at designated intersections serving the THL Property, as hereafter provided. K. Although not yet completed, the City has at its expense begun the design of such public infrastructure improvements. The parties now wish to establish a specific Infrastructure Improvement Agreement for The Landing page 2 rl , 4 j schedule for the City's completion of such design, together with a specific schedule for the City's completion of engineering and construction of such infrastructure improvements, to be diligently pursued by the City subject to the condition as set forth herein that THL must provide assurance to the City that THL has obtained sufficient commitments from retailers demonstrating the economically-viable development of The Landing Phase 1. NOW, THEREFORE, in consideration of the mutual agreements of the parties set forth herein, as well as other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby covenant and agree as follows. AGREEMENTS 1. City's Financing and Construction of Public Infrastructure Improvements. Consistent with Section 4 of the 2003 Development Agreement, the City agrees to pay the fees,costs, and expenses of designing, engineering, and constructing certain public infrastructure improvements (excepting a portion of such fees, costs, and expenses, which will be borne by THL as specified in Subsection 1.8 below), and thereafter to complete the design and engineer and construct such public infrastructure improvements to applicable City standards (including specified upgrades as agreed to by the parties), for the benefit of City residents and to support THL's intended development of The Landing. Such public infrastructure improvements are collectively termed"the City's Infrastructure Improvements" herein. The City's Infrastructure Improvements will be constructed in accordance with engineering plans and specifications approved by THL, which approval will not be unreasonably withheld. Further, the City's Infrastructure Improvements will be constructed in accordance with the schedule specified below. 1.1. City's Construction of Street Improvements. After performing any required environmental review and obtaining any required governmental permits or approvals, the City will design, engineer, and construct arterial street improvements, as follows, and as more particularly described on EXHIBIT B attached hereto: 1.1.1. Logan Avenue North—three vehicle travel lanes from Park Avenue North to North 8th Street; and four vehicle travel lanes from North 8th Street to North 6th Street; 1.1.2. Park Avenue North—five vehicle travel lanes from Logan Avenue to North 6th Street; 1.1.3. North 8th Street—five vehicle travel lanes from Garden Avenue to Logan Avenue; and 1.1.4. North 10th Street—three vehicle travel lanes and two vehicle parking lanes from Garden Avenue to Logan Avenue, with a Infrastructure Improvement Agreement for The Landing page 3 1 ' roundabout located between Logan Avenue and Park Avenue North. 1.2. City to Select Contractors. Construction of the City's Infrastructure Improvements will be undertaken by licensed contractors selected and retained at the City's sole discretion, and in accordance with applicable laws, regulations, and ordinances governing the bidding, award, and administration of public contracts for City improvements. All contracts for the City's Infrastructure Improvements to which the City is a party will contain provisions imposing substantial monetary penalties or disincentives on the contractor for such contractor's failure to complete construction of the applicable portion of the City's Infrastructure Improvements by the either of(1) the deadline specified in the contract; or (2)the deadlines specified in Exhibit C attached hereto. 1.3. City's Construction of Public Utilities. In accordance with Section 4 of the 2003 Development Agreement, the City will, as part of the City's Infrastructure Improvements, also install subsurface potable water mains and lines, sanitary sewer mains and lines, and stormwater conveyance lines, together with other necessary appurtenances and facilities, within the public rights-of-way listed in Subsection 1.1 above, and as more particularly described on ExmBrr B-hereto. Such improvements will be sized to serve at least the total following projected development on the THL Property, which development is consistent with the approved Subdistrict lA Conceptual Plan, as amended: 700,000+s.f. of retail, restaurant, and entertainment uses, 900 multi-family residential units; and 57,000 s.f. of office space; plus appurtenances. 1.4. Installation of Franchise Utilities. In accordance with Subsection 4.10 of the 2003 Development Agreement, the City and THL have signed a letter agreement dated February 27, 2006, with various Franchise Utilities. A copy of the letter agreement is attached as Exhibit D and incorporated herein. THL acknowledges the City will not be responsible for any delays to development of the property caused by the actions or non-actions of the Franchise Utilities, provided the City does agree to use its best efforts and jurisdictional authority over public right-of--ways to cause the utility to timely perform their responsibilities as set forth in the February 27, 2006 letter. 1.5. Construction Schedule for City's Infrastructure Improvements. The City will adhere to the schedule for construction of the City's Infrastructure Improvements set forth in Exuma C attached hereto and will use its best reasonable efforts to complete the City's Infrastructure Improvements even sooner than specified in that schedule, if reasonably feasible. Infrastructure Improvement Agreement for The Landing page 4 1.6. City to Complete Improvements in Timely Fashion. The parties understand and agree that timely completion of the City's Infrastructure Improvements is necessary in order for THL and its prospective mixed-use property purchasers and tenants to be able to open their retail and commercial businesses in accordance with their projected schedules. Accordingly, the City acknowledges its obligations pursuant to Subsection 4.1.8 of the 2003 Development Agreement to provide mutually acceptable interim access to the THL Property if the City fails to timely complete the City's Infrastructure Improvements before issuance of the first occupancy permit for a building in Phase I of The Landing. In addition, the parties will use their best efforts to complete their respective 2006 development activities on and adjacent to the THL Property by their scheduled completion dates, and to cooperate with one another in their respective development activities on and adjacent to the THL Property in accordance with Section 3 below. 1.7. THL's Payment for THL Street Improvements. THL will reimburse the City in full for the City's fees, costs, and expenses of designing, engineering, and constructing certain street improvements to be installed by the City pursuant to Subsection 1.1 above, all as more particularly described on Exmrr B hereto. Such reimbursement will be made in accordance with the following procedures: 1.7.1. Immediately after completion of the final design and engineering of the City's Infrastructure Improvements, which will include the THL Street Improvements, the City's engineers will prepare an "Engineer's Estimate"conforming to the industry standard and stamped by the responsible engineer and will deliver a copy of that Engineer's Estimate to THL. The Engineer's Estimate will contain a comprehensive list of pay items, quantities, prices, contingencies, and estimated costs to complete, including but not limited to the following: 1.7.1.1. An estimate of the fees, costs, and expenses of the street improvements covered by this Agreement and an estimate of each party's share thereof; 1.7.1.2. A construction schedule for all such improvements, which shall be consistent with the schedule attached hereto as Exxmrr C; 1.7.1.3. Procedures for THL's payment in equal monthly installments of its percentage share of the estimated fees, costs, and expenses of the street improvements covered by this Agreement, provided, however, that after construction of all such improvements has been Infrastructure Improvement Agreement for The Landing page 5 l completed, the total amount then paid by THL will be reconciled against THL's share of the actual fees, costs, and expenses of the street improvements covered by this Agreement, via copies of contractors' invoices or other documentation. Thereafter, the City will promptly refund to THL any amount already paid by THL in excess of THL's actual share, or alternatively, THL will promptly pay the City any shortfall in THL's actual share not already paid. 1.8. Sidewalks. The City will reimburse THL in full for THL's fees,costs and expenses of designing, engineering and constructing certain sidewalk improvements to be installed by THL, all as are particularly described on Exhibit B attached hereto. Such reimbursement will be made in the same manner as the procedure set forth in subsection 1.7.1 2. City's Infrastructure Construction Obligations Contingent on THL's Provision of Sufficient Evidence of Progress. Immediately upon execution of this Agreement, the City will diligently pursue its completion of the design of the City's Infrastructure Improvements, and will thereafter diligently pursue the engineering and construction of the City's Infrastructure Improvements. However, after June 12, 2006, the City's obligations to continue its work on the design, engineering, and construction of the City's Infrastructure Improvements, and in accordance with the schedule set forth in EXHIBIT C are conditioned and contingent upon THL's providing notice to the City, on or before June 12, 2006, of evidence that THL has made sufficient progress toward obtaining specified commitments by property purchasers or lessees, or prospective purchasers or lessees, of their participation in the future development of The Landing as an economically-viable mixed-use retail/commercial/residential project, as follows. 2.1. For purposes of this Agreement, such evidence of sufficient progress toward obtaining specified commitments will consist of at least all of the following (but only one of the two alternatives listed in Subsection 2.1.6), copies of which must be provided to the City along with THL's notice to the City described above: 2.1.1. Purchase and Sale Agreement executed by THL as seller and by a purchaser, evidencing THL's agreement to sell such purchaser a portion of the THL Property for subsequent development as a multi-family residential project; 2.1.2. Term sheet executed by a commercial bank or other lending institution of a loan to THL of approximately 75% of loan to value ratio of Phase 1 of The Landing; 2.1.3. Letter of intent, executed by THL as prospective seller and by a prospective purchaser, establishing the primary business terms for Infrastructure Improvement Agreement for The Landing page 6 i r { a sale by THL to such purchaser of a portion of the THL Property for subsequent development as a discount department store; 2.1.4. Letter of intent executed by THL as prospective lessor and a cinema theater operator as prospective lessee, establishing the primary business terms for a multiyear lease by THL to such operator of a portion of the THL Property for subsequent development as a multi-screen cinema theater. 2.1.5. Letter of intent executed by THL as prospective lessor and an established multi-location physical fitness retailer as prospective lessee,establishing the primary business terms for a multiyear lease by THL to such retailer of a portion of the THL Property for subsequent development as a physical fitness business; and 2.1.6. Either one of the following: 2.1.6.1. Letter of intent executed by THL as prospective lessor and a large-format anchor retailer as prospective-lessee, establishing the primary business terms for a multiyear lease by THL to such retailer of a portion of the THL Property for subsequent development as a large-format anchor retail store; or 2.1.6.2. Letters of intent executed by THL as prospective lessor and retailers as prospective lessees, establishing the primary business terms for multiyear leases by THL to such retailers of portions of the THL Property for subsequent development of at least 100,000 square feet of retail stores. 2.1.7. Submittal by May 1, 2006 of a site plan for Phase 1 of the THL Property. 2.2 If THL provides the City with such timely notice by June 12, 2006, including the evidence of sufficient progress specified above, then the City will be deemed to have conclusively determined that THL has obtained sufficient commitments from retailers for the viable development of The Landing Phase 1, and the City will thereafter diligently pursue the engineering and construction of the City's Infrastructure Improvements in accordance with the schedule set forth in Exhibit C. Notwithstanding the foregoing, the parties acknowledge that Section 4.1.5.4 and 4.1.5.5 of the 2003 Development Agreement are binding on the parties and if tax revenues fall short of those projected due to changes in the expected scope or timing of the retail activity projected from the commitments identified above,the City may delay infrastructure construction until the tax revenue shortfall is satisfactorily addressed. Infrastructure Improvement Agreement for The Landing page 7 L • 2.3 If THL does not provide the City with such timely notice by June 12, 2006, including the evidence of sufficient progress specified above, then the City will thereafter have no further obligation under this Agreement to pursue and complete the design,engineering, and construction of the City's Infrastructure Improvements in accordance with the schedule set forth in EmuBrr C; provided, however, that the City will nevertheless remain obligated to perform its duties from time to time as established in Section 4 of the 2003 Development Agreement; and provided further that such 2003 Development Agreement and all of the City's duties thereunder will nevertheless remain in full force and effect. 3. Parties' Cooperation in Development Process. THL and the City agree that they will use their best efforts to cooperate with one another to coordinate their respective development activities and other contemporaneous development activities on and in the vicinity of the THL Property, in order to minimize delays, interference, increased costs and expenses, or conflicts between and among such development activities that might arise unless anticipated and resolved. Without limitation, the parties agree to effectuate the agreement in the preceding sentence at least as follows: 3.1. Each of the parties agrees to appoint authorized representatives that will meet with the other party's authorized representatives from time to time, and at least weekly while such development is occurring on and in the vicinity of the THL Property, in order keep each party informed of the other party's then-current and forthcoming development activities, and to resolve potential conflicts in the parties' development activities. 3.2. The parties will cooperate with one another and use their best efforts, together with Boeing, to complete the processing and obtain City approval of an amended binding site plan that will further subdivide certain of the lots established in the Boeing Lakeshore Landing Binding Site Plan, King County Recording No. 20041223000856 ("the Boeing Binding Site Plan"), subject to the requirement that THL must first obtain Master Plan approval from the City pursuant to RMC § 4-9-200. 3.3. The parties will further cooperate with one another and with FF Realty LLC, the prospective purchaser of Lot 2A of the Boeing Binding Site Plan, consisting of approximately 7.82 acres, as such Lot 2A may be further subdivided in the amended binding site plan referred to in Subsection 3.2 above ("the FF Property"). The parties understand that if THL obtains Master Plan and Site Plan approval for The Landing Phase 1 from the City, then FF Realty intends to develop approximately 900 multifamily units on the FF Property contemporaneously with the parties' development activities described above. The parties will keep FF Realty Infrastructure Improvement Agreement for The Landing page 8 informed of the parties' then-current and forthcoming development activities, and will use their best efforts to resolve potential conflicts between FF Realty's development activities and the parties' development activities. 3.4. The parties will further cooperate with one another and with any prospective purchaser of the portion of Lot 3A of the Boeing Binding Site Plan, consisting of approximately 7.90 acres, as such Lot 3 may be adjusted in the amended binding site plan referred to in Subsection 4.2 above ("the Lot 3 Property"). The parties understand that if THL obtains Master Plan and Site Plan approval for The Landing Phase 1 from the City, then THL intends to sell the Lot 3 Property to a purchaser for development of a discount department store contemporaneously with the parties' development activities described above. If THL enters into a purchase and sale agreement with such a purchaser for its purchase of the Lot 3 Property and so notifies the City, then the parties will keep such purchaser informed of the parties' then-current and forthcoming development activities, and will use their best efforts to resolve potential conflicts between such purchaser's development activities and the parties' development activities. 4. Dispute Resolution Procedures; Further Remedies. The City and THL will each act in good faith and deal fairly in performing their respective obligations under this Agreement in order to accomplish their mutual objectives and avoid disputes. If a dispute arises with respect to a party's rights or obligations under this Agreement, then the parties agree to utilize the dispute resolution process contained herein, which will be non-binding but will be a condition precedent to having said dispute decided in court by a judge or jury. 4.1. Parties' Good Faith Obligation to Resolve Disputes. If a dispute arises between the City and THL with respect to any provision of this Agreement, then the parties will proceed in good faith to resolve such dispute as expeditiously as possible and will cooperate, so that the progress of the design, engineering, and construction of the City's Infrastructure Improvements and the THL Street Improvements are not delayed. Such cooperation will include notice to the other party describing the dispute, affording the other party a reasonable opportunity to cure any alleged default or cause of the dispute, and thereafter meeting in order to attempt to resolve the dispute. If, however, the parties are unable to resolve the dispute within three (3) business days after the first meeting between them to resolve it, then either party may refer the dispute to the Mediator as provided below. 4.2. Use of Mediator. For any dispute which cannot be resolved by the parties, the mediator hereunder("Mediator") must be an experienced mediator familiar with street design, engineering, and construction projects who is Infrastructure Improvement Agreement for The Landing page 9 mutually designated by the City and THL to resolve such dispute. The Mediator must act impartially and independently in considering the facts and conditions surrounding any dispute presented by the City and THL; provided, however, that the Mediator's recommendations concerning any such dispute are advisory only. The Mediator's recommendations must be based on the pertinent provisions of this Agreement and the facts and circumstances involved in the dispute. The Mediator's recommendations must be furnished in writing to the parties. 4.3. City's Duty to Furnish Documents to Mediator. The City must furnish the Mediator with one copy of all applicable plans, preliminary and final designs,engineering plans and specifications, contract documents, interpretative reports, progress schedule and updates, monthly progress reports, and any other documents pertinent to the performance of this Agreement and necessary to the performance of the Mediator's duties hereunder 4.4. THL's Duty to Furnish Documents to Mediator. THL must furnish the Mediator with one copy of all documents it might have,other than those furnished by the City, that are pertinent to the performance of the Mediator's duties hereunder. 4.5. Mediator's Fees to Be Paid Equally. The fees charged by the Mediator will be split equally between the two parties, and each party will promptly pay its share to the Mediator. The Mediator's compensation will include compensation for all materials, supplies, travel, office assistance and support, and incidentals necessary to provide the services described herein. Payment for services rendered by the Mediator will be at the Mediator's standard hourly rate as approved by the City and THL prior to commencement of the dispute resolution proceeding. 4.6. Mediator Not an Employee. The Mediator, in the performance of any duties described herein, will act in the capacity of an independent agent and not as an employee of either the City or THL. The parties agree to absolve the Mediator from, and not to bring any claim or cause of action against the Mediator for, any personal or professional liability to the parties arising from the Mediator's recommendations made hereunder, unless due to the Mediator's gross negligence or willful malfeasance. 4.7. Remedies After Mediation. After the Mediator has issued a written decision on any dispute referred by the parties to the Mediator, an aggrieved party may enforce its rights under this Agreement by bringing an action in court for damages, specific performance, declaratory judgment, injunctive relief, or any other remedy available at law or in equity. Infrastructure Improvement Agreement for The Landing page 10 d 4.8. Venue and Attorneys'Fees. Venue for any such court action will lie exclusively in King County Superior Court, King County, Washington. In any such action, the substantially prevailing party will be entitled to recover its reasonable costs and attorneys' fees,including fees and expenses incurred in the appeal of any order or judgment of a lower court. 5. Miscellaneous Provisions. 5.1. Time of the Essence. Time is of the essence of this Agreement and of every provision hereof, except all deadlines occurring prior to Sept 1 2006, as set forth in the Agreement are extended for thirty(30)days. 5.2. Entire Agreement. This Agreement is in addition to and in furtherance of the 2003 Development Agreement and contains the entire agreement between the parties with respect to the subject matter hereof. There are no other agreements, oral or written, except as expressly set forth herein. 5.3. Agreement Binding on Successors; Covenants Running with the Land. Except for the terms and conditions of Section 2 of this Agreement, which shall be nondelegable and binding only upon THL, the terms and conditions of this Agreement will be binding upon the parties and their successors and assigns. Except for the terms and conditions of Section 2 of this Agreement, the terms and conditions of this Agreement are intended to be and will constitute covenants running with the THL Property, for the benefit and burden thereof, and for the benefit and burden of the City and its rights of way. 5.4. Amendment. Any amendment or modification of this Agreement will be in writing and executed by both parties. 5.5. Authority. The persons executing this Agreement on behalf of a party represent and warrant that they have the authority of such party to enter into this Agreement on the terms and conditions herein stated. 5.6. Exhibits Incorporated. The exhibits attached to this Agreement are incorporated herein by this reference as if fully set forth. 5.7. Recording. This Agreement will not be filed for recording by either party. 5.8. Severability. If any section or subsection of this Agreement is adjudged to be invalid or unenforceable by a court of competent jurisdiction, the remaining sections and subsections hereof will be unaffected and will continue in full force and effect. 5.9. Interpretation. All parties were represented by counsel throughout the drafting and execution of this Agreement. The provisions of this Agreement will not be construed for or against any party. Infrastructure Improvement Agreement for The Landing page 11 1 i /I 6 S . 5.10. Headings. The headings of the various sections and subsections of this Agreement are inserted for convenience only and will not be deemed to expand, limit, or otherwise affect its terms and conditions. 5.11. Governing Law. This Agreement will be construed under the laws of the State of Washington. 5.12. No Continuing Waiver of Default. The waiver of any default under any provision of this Agreement does not constitute a waiver of any other default, whether of the same or of any other provision. 5.13. Notices. Any notice, demand, or request to a party required or permitted under this Agreement must be in writing, sent postage prepaid via U. S. mail,or hand-delivered, to the other party at the address set forth below (or at such other address and to such other recipient as will be designated by a party in a notice to the other parties). All such notices will,if mailed, be effective three(3)business days after deposit in an officially-designated U. S. mail receptacle, or, if hand-delivered,upon receipt. Notices will be given as follows: 5.13.1. If to the City: Jay B. Covington, Chief Administrative Officer City of Renton Renton City Hall 1055 South Grady Way Renton,WA 98055 with a copy to: Lawrence J. Warren, Renton City Attorney Office of the City Attorney P.O. Box 626 Renton, WA 98057 5.13.2. If to THL: Transwestern Harvest Lakeshore, LLC c/o Harvest Partners Attn: Tod Ruble 8214 Westchester Drive, Suite 650 Dallas, TX 75225 and Transwestern Harvest Lakeshore, LLC do Transwestern Investment Co., LLC Infrastructure Improvement Agreement for The Landing page 12 Attn: Dirk Degenaars,Managing Director 150 North Wacker Drive, Suite 800 Chicago, IL 60606 with a copy to: Richard R. Wilson and Jerome L. Hillis Hillis Clark Martin &Peterson, P.S. 500 Galland Building 1221 Second Avenue Seattle, WA 98101-2925 5.14. Delays for Force Majeure. If either party is delayed in the performance of its obligations under this Agreement due to Force Majeure, then performance of those obligations will be excused for the period of delay. As used herein, "Force Majeure" means extraordinary natural elements or conditions in the Puget Sound region of Washington, war, riots, labor disputes, or other causes beyond the reasonable control of the obligated party. 5.15. Indemnification. Each party will defend, indemnify, and hold the other party, and its officers, officials, and employees, from and against any and all claims, damages, losses or suits, including attorneys' fees, arising out of or resulting from such party's performance under this Agreement, except for damages or injuries caused by or resulting from the sole negligence of the other party. Infrastructure Improvement Agreement for The Landing page 13 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY OF RENTON T<P4 by KathylKeolker,Mayor Attest: .J Ct)aLtan- City Clerk Bonnie I. Walton `t tkl. La. • ' • Approved as to Form: �,e''••........•••c' Lawrence J. Warren, City Attorney TRANSWESTERN HARVEST LAKESHORE, LLC a Delaware limited liability company By: Harvest Lakeshore, Ltd. a Texas limited partnership,Manager By: Harvest Lakeshore Partners, LLC a Texas limited liability company By: Tod A. Ruble,Manager STATE OF TEXAS ss. COUNTY OF DALLAS On this day personally appeared before me Tod A. Ruble, to me known to be the Manager of Harvest Lakeshore Partners, LLC, the LLC that executed the foregoing instrument, and acknowledged such instrument to be the free and voluntary act and deed Infrastructure Improvement Agreement for The Landing page 14 4 : • of such LLC, for the uses and purposes therein mentioned, and on oath stated that he was duly authorized to execute such instrument. GIVEN UNDER MY HAND AND OFFICIAL SEAL this (dk-day of AS— , 2006. SC�Cge ti* 6,Ltufes.,,�` ' � Printed Nathe Qe6 e cca. CQ-t v • 0. t� • NOTARY PUBLIC in and for the State of Texas,residing at " s = TJc,,.ttas %m' q� My Commission Expires VS..j 2-00 6. V 20 • Infrastructure Improvement Agreement for The Landing page 1 S • • EXHIBIT A LEGAL DESCRIPTION OF THL PROPERTY (RECITAL A) Lots 1, 2, 3 and 4 of the Boeing Lakeshore Landing Binding Site Plan, Recording No. 20041223000856, records of King County, Washington. Infrastructure Improvement Agreement for The Landing page 16 • EXHIBIT B DESCRIPTION OF INFRASTRUCTURE IMPROVEMENTS FOR THL PROPERTY (SECTION 1) CITY'S PUBLIC STREET IMPROVEMENTS (SUBSECTION 1.1) • Roadways All roadways will include decorative roadway illumination poles/signals and stamped color concrete for intersection and crosswalks. Where on street parking is provided, parking stalls will be stamped color concrete. • Park Avenue North (South of N. 8th St. to Logan Ave.) Will be widened to include five-lane roadways section, with on street parking, landscape median, wide sidewalks with tree wells • Logan Avenue North (N. 6th St to Garden Ave) Will be constructed to include a three to four lane roadway section, bike path, landscape strip, and sidewalk • North 8th Street(Logan Ave. to Garden Ave.) Will be constructed to include a five-lane roadway section, landscape strips, and sidewalks • North 10th Street (Logan Ave. to Garden Ave.) Will be constructed to include a three-lane roadway, on street parking, decorative roundabout, raised pedestrian crossing, landscaping, and sidewalks CITY'S PUBLIC UTILITY IMPROVEMENTS (SUBSECTION 1.3) • Sewer Improvements Project will provide 12-inch sanitary sewer line in North 8th Street, North 10th Street and part of Park Avenue for connection to the King County 96 inch METRO line. Project includes lateral stub outs to the right-of-way line for point of connections needed by the development. • Water Improvements Project will provide 12-inch water line in North 8th Street, North 10th Street, Logan Avenue, and Park Avenue. Includes fire hydrants on the roadways and lateral stub outs to the right-of-way for point of connections needed by the development. Infrastructure Improvement Agreement for The Landing page 17 , • • . • Stormwater Improvements Project will provide stormwater conveyance within Logan Ave, and Park Ave. that serves runoff contributed by the City's roadways and the development property. Project also includes a collector system and water treatment facilities for the roadway stormwater runoff in all road sections. THL's STREET IMPROVEMENTS (SUBSECTION 1.7) • THL's Street Improvements THL is responsible for the costs of the roadway and portion of the cost of traffic signals necessary to support left turn movements into the Landing. The intersections of Logan Avenue and 8th Street, Logan Avenue and 10th St,Logan Avenue and Park Ave., Park Avenue and 10th Street, and Park Avenue and 8th Street are included. Planning level cost estimates for these improvements are as follows: 8th and Logan $24,000 10th and Logan $13,200 Park and Logan $25,200 10th and Park $26,400 8th and Park $27,600 THL's STREET IMPROVEMENTS (SUBSECTION 1.8) • THL's Sidewalk Improvements THL's contractor will install portions of sidewalk within City right-of-way for segments of Park Avenue and North 10`h Street, as shown in Exhibit B. Will also include installing tree grates, furnished by the City within the sidewalk location. Infrastructure Improvement Agreement for The Landing page 18 L 4 r i • EXHIBIT C CITY'S SCHEDULE FOR CONSTRUCTION OF STREET IMPROVEMENTS FOR THL PROPERTY (SUBSECTION 1.6) • April 26,2006 -Bid Advertisement • May 23, 2006 -Bid Opening • July 10,2006 - Construction Notice to Proceed • September 15,2007—Construction: Substantial Complete PROJECTED SCHEDULE FIRST BUSINESS IN THE LANDING PHASE 1 • October 15, 2007—Stores and cinema open Infrastructure Improvement Agreement for The Landing page 19 .• .10 I „ . .. . • . . 4 South Lake Washington , „„......_ .,, Roadway \ Improvements ,,, ..., . \ ' i_-,_ 0886600020 . _. ,_„,-,--.4.,:, (Exhibit B) ,,7/7-1-'' ,•• ..,• , : 0886600010 -. . II North 10th Street •fl if ,•••,1 2,: (;-', ''.:•'-:t—,--” • - 11 ' ,,,., a) ;• H , tl! : 0886600030 0886600040 , , 1 North 8th Street : -a,.:.,' ,',.),:..- , I e '1 ;-,i ;:• Al . . , , . . „ ,,,; •,i 1/ - 1 i 4 ill if • „ - 11 SEWER IMPROVEMENTS Page 1 of 4 1 I ' 11 .. 46. . , , • .v . , , • .. ... . ..... . ... South Lake Washington . ., . Roadway 7 : • Improvements .._,,, . ,,,,,,,p- , • • ,,,,,,,,- ,,„.,,...,.,.. :,..., . ,, (Exhibit B) „;,,, ,,,,..„. . .,...- - - - 0886600020 "?. 0886600010 North 10th Street .c• xi',... •„:',..). ,„ ,,,,,,,, ,. --- ----- - - 0) : .• 0 '-‘ 7 -,4,-1,- z ,-• ij . ../., , j ; CD • i ill i'l c ., :' . 0886600040 11 . :. !!.. .• > ' ' . 0886600030 ' til , North 8th Street : ,..... ,, ,.- . . .:.- . . ... . . 1 •; : . - 0 • ; ,.; .i. : .• iii# • f< .1 1 j WATER IMPROVEMENTS Page 2 of 4 .• • ., : . • . ... . . • ••• • - - ••- . . : r44' ' ' v .a ' South Lake Washington ,. .,„, . ' ' /14-.' -/ Roadway 4 . Improvements ,./r...r,�.. „.,::,, N. 0886600020 (Exhibit B) ,,,, ,,,„.„, . . ...,.,s, , , f' ., A ,' 0886600010 ., ,�. i, /° North 10th Street i \ - ., �`B', r,,, _ .. T ,�3� ,mow... „ ..,.,..� a� - itH Yi k/� C�\ _it i Q 3 0886600030 0886600040 � : ' North 8th Street . , 1, I^.. ,I.- I .,...,- ... .I„. hely :.I r ,:i f5 i l ,. .Y II , ii STORM IMPROVEMENTS a i= Page 3 of 4 u1 1 . • . i , ' , a 1 Y '1 South Lake Washington RoadwayImprovements Exhibit B 0886600020 0886600010 North 10th Street T I a) > 0886600030 0886600040 Q o� HARVEST PARTNERS SIDEWALK AREA Page 4 of 4 • , a• • .y •` Exhibit D February 27th, 2006 Robert P. Steen II, RCDD Sr. Design Engineer Qwest 23315 66th Avenue South Kent, WA 98032 Jacoline Stewart Major Accounts Executive Puget Sound Energy PO Box 97034 PSE-11N Bellevue, WA 98009-9734 Bill Walker Construction Coordinator Comcast 4020 Auburn Way North Auburn, WA 98002 Subject: The Landing—South Lake Washington Roadway Improvements Project Shared Joint Trench Issues Dear Mr. Steen, Ms. Stewart and Mr. Walker: The purpose of this letter is to confirm statements of both the City of Renton and the developer of The Landing, Transwestern Harvest Lakeshore LLC(THL), concerning public rights-of-way and sharing of joint trench costs for the project known as The Landing(also known as South Lake Washington Roadway Improvements). The following streets will be constructed in public right-of-way: • Logan Avenue North—from North 6`"Street to Garden Avenue North • Park Avenue North—from North 6'" Street to Logan Avenue North • North 8`"Street— from Logan Avenue North to Garden Avenue North • North 10'" Street—from Logan Avenue North to Garden Avenue North Logan Avenue North will be a new street that roughly parallels and is east of the existing street that is on The Boeing Company(Boeing)property. North 8`" Street will be a new street between Logan Avenue North and Park Avenue North, and the existing street will be widened east of Park Avenue North. North 10'"Street will be an entirely new street between Logan Avenue Robert P.Steen II,RCDD,Qwest Jacoline Stewart,Puget Sound Energy Bill Walker,Comcast February 27,2006 Page 2 of 3 North and Garden Avenue North. You have previously received mapping and plans of these street improvements. The City of Renton, by agreement with THL, will be reimbursed by THL for the costs of providing underground franchise utilities that are located within the public rights-of-way if our general contractor installs them. THL will have the right to review and approve these costs. The City and THL are currently finalizing the details of that agreement. Thus, the joint trench that has been shown on the plans in the public rights-of-way will be constructed by the City of Renton at no cost to you. The City's contractor will also install, using a contractor from your approved list, your conduits and will backfill the trench. The City contractor will also install any vaults that must be located within the City right-of-way. The installation of conduit, vaults (if any), and backfill will be performed at no cost to you. The City's contractor will also install necessary vaults on private property if they are located on easements immediately adjacent to the public rights-of-way and they are needed to terminate your conduit runs. All costs beyond that will be subject to your agreement with THL. We are proposing that you supply the conduits and vaults needed for your installation. In this manner, you will be assured that the materials meet your specifications. From the City's point of view, our contractor will be spared the necessity of procurement of those items. The City has arranged for a contractor staging and laydown area located in the southeast corner of North 8th Street and Park Avenue North. We believe that the area will be sufficient to provide room for storage of your materials. The costs of providing the vaults and basic conduits needed for The Landing project need to be part of your agreements with THL and should be billed directly to THL. Conduit needed for relocation of existing facilities required because of the new street construction, and conduit needed for future expansion of your facilities would, of course, be your responsibility. The current schedule for the roadway and infrastructure improvements calls for bid advertisement on Wednesday, April 5. To be able to get the City's contract to include the conduit and vault installation, the City needs your final (or nearly final)design plans by March 17, 2006. This will allow the City's design consultant to include your plans in the contract and to come up with bid quantities. We understand that some changes may still be needed but we need your best information to have a basis for obtaining bids. We hope to have a contractor in the field no later than June 12, 2006, with the City's roadway and infrastructure construction substantially complete by August 2007. Please contact our project manager, Rob Lochmiller,PE at 425-430-7303 if you have any questions. H:\DIV\TRANS\DE\ROB\DOEING REDEV\CORRES'2-20-06 JOINT UTILITY TRENCH LETTER FINAL P Robert P.Steen II,RCDD,Qwest Jacoline Stewart,Puget Sound Energy Bill Walker,Comcast February 27,2006 Page 3 of 3 Sincerely, City of Renton Transwestern Harvest Lakeshore LLC Planning/Building/Public Works Department a Delaware limited liability company By: Harvest Lakeshore, Ltd. a Texas limited partnership, Manager By: Harvest Lakeshore Partners, LLC a Texas limited liability company Ae 01,97-10/".- •-�._ _ By: By. Gregg Zimmerman, PE,Administrator Eliot B.Barnett, Manager cc: Peter Hahn,Interim Transportation Systems Director,City of Renton Ben Wolters,Economic Development Director,City of Renton Rich Perteet,Interim Transportation Design and Planning Supervisor,City of Renton Rob Lochmiller,Transportation Design Project Manager,City of Renton Tod Ruble,Partner,Harvest Partners Blaine Lee,Partner,Harvest Partners Rob King, RCCMI HADIV‘TRANS\DL:RO31BOE1NG REDEVICORRESI2-20-06 JOINT UTILITY TRENCH LETTER FINAL 701017Wricozi z_ A? t• The City of Renton's Consent and Certificate The undersigned(the"City")has entered into certain contracts and agreements including, but not limited to, those listed on Exhibit A attached hereto and made a part hereof(as the same may be amended or supplemented from time to time, the "Agreements") with Transwestern Harvest Lakeshore, L.L.C., a Delaware limited liability company ("Owner"), or its predecessors and assigns, pertaining to the development of, and construction of certain improvements (the "Improvements") on, the land (the "Land") more particularly described on Exhibit B attached hereto and made a part hereof. The City acknowledges that Owner will assign to Bank of America, N.A., a national banking association ("Agent"), as administrative agent for itself and other lenders ("Lenders"), for the benefit of Lenders, all of Owner's rights (but not Owner's obligations) in and to the Agreements as security for the obligations of Owner under an Amended and Restated Loan Agreement (the "Loan Agreement") to be entered into between Owner, Agent and Lenders. The City consents to and agrees to be bound by that assignment. The City further certifies to and agrees with Agent as follows: 1. The Agreements are in full force and effect, and neither Owner nor the City is in default under any of the Agreements. 2. If Owner defaults in making any payment or in performing any other obligation under any of the Agreements, or if any of the Agreements are terminated for any reason,the City will give Agent written notice of the default or termination. Prior to exercising any remedy available to the City under any of the Agreements as a result of a default, the City will afford to Agent a period of thirty(30)days within which to cure the default(it being acknowledged by the City that Agent shall have no obligation to cure any default by Owner). If any of the Agreements are terminated, the City, at the request of Agent, will enter into a new agreement with Agent upon substantially the same terms and conditions as set forth in the terminated Agreement. Any notice of default or termination will be delivered by personal delivery or by a nationally recognized overnight courier service or will be mailed by certified mail, return receipt requested,to the following address: Bank of America,N.A.—Real Estate Group 231 South LaSalle Street IL1-231-12-15 Chicago, Illinois 60697 Attention: Marilyn Weisbrodt Fax Number: (312) 828-2838 [Continued] The Landing-City of Renton Consent and Certificate(4).DOC I t i ti. A A � 1 With a copy to: Through June 30, 2007: Barack Ferrazzano Kirschbaum Perlman&Nagelberg LLP 333 West Wacker Drive, Suite 2700 Chicago, Illinois 60606 Attention: Howard J. Kirschbaum,Esq. Fax Number: (312) 984-3150 After June 30,2007: Barack Ferrazzano Kirschbaum Perlman&Nagelberg LLP 200 West Madison Avenue, Suite 3900 Chicago, Illinois 60606 Attention: Howard J. Kirschbaum,Esq. Fax Number: (312) 984-3150 3. In the event that Agent or any other party ("Owner's Successor") shall acquire title to the Land through foreclosure or deed in lieu of foreclosure, the City, if requested by Owner's Successor, will continue to perform its obligations under any of the Agreements, provided that any past due amounts owed to the City under such Agreement are paid to the City promptly following the request by Owner's Successor and provided that the City is thereafter compensated for its services, if any, as provided in the Agreement. If the City is not requested by Owner's Successor to continue to perform its obligations under any of the Agreements, then any continuation of such performance by the City shall be solely for the account of Owner, and the City will not assert any claim against Agent or Owner's Successor for any amounts owed to the City under such Agreement. 4. From time to time from and after the date hereof, the City shall execute and deliver such further consents and certificates as Agent may reasonably request to effectuate more fully the purposes and intent of this Consent and Certificate and to further perfect the rights and interests of Agent in and to the Agreements. 5. The City acknowledges that Agent and the Lenders will rely on this Consent and Certificate in making the loan to Owner that is contemplated by the Loan Agreement. [Signature Page to Follow] The Landing-Cityof Renton Consent and Certificate(4).DOC ( ) City has executed and delivered this Consent and Certificate on the alY day of L��t ti 2007. CITY: CITY OF RENTON By: Name: Kath Keolker Title: Mayor Attest: .)46e7 Bonnie I.Walto.d,City Clerk The Landing-City of Renton Consent and Certificate(4).DOC 4 EXHIBIT A CONTRACTS 1. Development Agreement for the Boeing Renton Aircraft Manufacturing Facility dated June 28,2002, by and between The Boeing Company("Boeing") and the City of Renton (the"City"),recorded as Document No. 20020802000224 2. Strander Agreement dated December 4,2002,by and between Boeing and the City, recorded as Document No. 20060420001032 3. Development Agreement for Renton Plant Development dated December 1, 2003,by and between Boeing and the City,recorded as Document No. 20031210001637 4. Agreement for Improvements to Pubic Infrastructure for The Landing dated June 8,2006, by and between the City and Transwestern Harvest Lakeshore,L.L.C. ("Transwestern") 5. Parking Garage Agreement for the Landing dated February 16, 2007,by and between the City and Transwestern 6. Parking Garage Operation and Easement Agreement,dated ,200_by and between the City and Transwestern [To be executed post-closing] The Landing-City of Renton Consent and Certificate(4).DOC EXHIBIT B LEGAL DESCRIPTION THE LAND PARCEL A: LOTS 1A AND 4A OF KING COUNTY LOT LINE ADJUSTMENT,RECORDED AUGUST 8,2006,UNDER RECORDING NO.20060808900001 IN KING COUNTY, WASHINGTON. PARCEL B: LOT 1 OF KING COUNTY SHORT PLAT,ACCORDING TO PLAT RECORDED OCTOBER 24,2006,UNDER RECORDING NO.20061024900005 IN KING COUNTY, WASHINGTON. SITUATE IN THE CITY OF RENTON,COUNTY OF KING, STATE OF WASHINGTON. TAX ACCOUNT NOS.: 088660-0010-04; 088660-0020-02; AND 088660-0029-03 The Landing-City of Renton Consent and Certificate(4).DOC