HomeMy WebLinkAbout09-161 - Bank of New York Mellon - Tukwila South Escrow09 -161
Council Approval 10/15/09
Escrow Agreement
Concerning Security for Developer Obligations under Development
Agreement
This Escrow Agreement is dated as of September 3 0 2009 (the
"Agreement and is among the City of Tukwila, Washington, a non charter optional
code Washington municipal corporation (the "City La Pianta LLC, a Washington
limited liability company "La Pianta and The Bank of New York Mellon Trust
Company, N.A., a national banking association, as escrow agent (the "Escrow Agent
WHEREAS, the City and La Pianta have entered into a "Development
Agreement by and between the City of Tukwila and La Pianta LLC, for the Tukwila
South Development" (the "Development Agreement a copy of which Development
Agreement is attached for reference purposes; and
WHEREAS, under the Development Agreement, the City has agreed to pay part
of the cost of, and to construct, certain specified infrastructure improvements to serve the
Tukwila South Project; and
WHEREAS, La Pianta has provided the City with several financial guarantees
related to costs of certain infrastructure improvements and City operating expenditures
related to the development area; and
WHEREAS, La Pianta's guarantees are secured by various letters of credit to be
drawn upon certain occurrences described in the Development Agreement; and
WHEREAS, consistent with the Development Agreement, the City and La Pianta
wish to place the letters of credit in the custody of an escrow agent that can draw upon
those letters of credit as instructed by the City, and hold and disburse the drawn funds
upon instructions from the City; and
WHEREAS, the Development Agreement also provides that La Pianta shall
provide the City with certain Deeds of Trust as additional security for La Pianta's
obligations under the Development Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, and for other good, fair and valuable considerations and reasonably equivalent
value, the receipt and sufficiency of which are hereby acknowledged by the parties
hereto, the Escrow Agent, the City and La Pianta agree as follows:
Section 1. Establishment of Escrow Account: Deposit of Instruments
and Letters of Credit
(a) Instruments Deposited with Escrow Agent. Consistent with this
Agreement, La Pianta shall deposit with the Escrow Agent, when and as required under
50997420 10
1
the Development Agreement, the following documents and instruments (collectively, the
"Instruments in each instance the Instrument being deposited by La Pianta,
accompanied with a confirmation from the City substantially in the form of Exhibit A -1:
50997420 10
(i) the statutory warranty deed described in Section 4.3.2 of the
Development Agreement "ROW Deed signed, acknowledged but undated by La
Pianta;
(ii) the right of way easement described in Section 4.3.2 of the Development
Agreement "ROW Easement signed, acknowledged and dated by La Pianta;
(iii) the pedestrian trail easement described in Section 4.5.1 of the
Development Agreement "Pedestrian Trail Easement signed, acknowledged and
dated by La Pianta;
(iv) the levee easement described in Section 4.5.3 of the Development
Agreement "Levee Easement signed, acknowledged and dated by La Pianta;
(v) the statutory warranty deed described in Section 4.6.2 of the
Development Agreement "Fire Station Deed signed, acknowledged and dated
by La Pianta; and
(vi) the deed of trust described in Section 4.8.4.1.3 of the Development
Agreement "Deed of Trust signed, acknowledged and dated by La Pianta.
The Escrow Agent shall accept custody of each of the Instruments upon its delivery
to the Escrow Agent, and shall hold each document pursuant to the terms of this
Agreement. La Pianta shall provide the City with each such Instrument for the City to
review and confirm that the submitted Instrument is satisfactory and meets all of the
requirements set forth in the Development Agreement. If the City determines that a
submitted Instrument meets all of the applicable Development Agreement requirements,
the City shall provide a confirmation, substantially in the form of Exhibit A -1, to the
effect that the Instrument meets those Development Agreement requirements and that the
Escrow Agent is to take custody of the Instrument consistent with this Section 1(a). La
Pianta shall then deposit the Instrument with the Escrow Agent together with the
confirmation from the City. In the event that the submitted Instrument is not satisfactory,
the City shall resolve the issue directly with La Pianta. The Escrow Agent shall have no
obligation to review or approve any of the Instruments except to acknowledge receipt of
the document.
(b) Deposit of Letters of Credit. The City and La Pianta hereby deposit, or
shall deposit with the Escrow Agent, when and as required under the Development
Agreement, the following letters of credit described in Section 4.8 of the Development
Agreement, in each instance the Letter of Credit being deposited by La Pianta,
accompanied with a confirmation from the City substantially in the form of Exhibit B -1.
The Escrow Agent shall accept custody of each of the Letters of Credit upon its delivery
2
to the Escrow Agent, as well as each replacement Letter of Credit as described below,
and shall hold each Letter of Credit pursuant to the terms of this Agreement.
50997420 10
(i) the irrevocable standby Operations and Maintenance Letter of Credit
"O &M LC described in Section 4.8.4.1 of the Development Agreement, issued
by Bank of America, N.A. in the face amount of $6,000,000;
(ii) the irrevocable standby Southcenter Parkway Letter of Credit "SCPW
LC described in Section 4.8.4.2 of the Development Agreement, issued by Bank
of America, N.A., initially in the face amount of $185,000;
(iii) the irrevocable standby Highline Work Letter of Credit "Highline
Work LC described in Section 4.3.4.1 and Section 4.8.4.3 of the Development
Agreement, issued by Bank of America, N.A. in the face amount to be determined
in accordance with the Development Agreement;
(iv) the irrevocable standby Puget Sound Energy Work Letter of Credit
"PSE Work LC described in Section 4.3.4.2 and Section 4.8.4.3 of the
Development Agreement, issued by Bank of America, N.A. in the face amount to
be determined in accordance with the Development Agreement; and
(v) the irrevocable standby Bridge Letter of Credit "Bridge LC described
in Section 4.5.2 and Section 4.8.4.3 of the Development Agreement, issued by
Bank of America, N.A. in the face amount of $500,000.
The O &M LC, the SCPW LC, the Highline Work LC, the PSE Work LC and the
Bridge LC, is each referred to below as a "Letter of Credit" and collectively are referred
to as the "Letters of Credit."
The Escrow Agent shall accept custody of each of the Letters of Credit upon its
delivery to the Escrow Agent, and shall establish and maintain a separate account (the
"Escrow Account therefor in its capacity as Escrow Agent pursuant to the terms of this
Agreement. The Escrow Agent shall establish separate subaccounts with respect to each
of the Letters of Credit in order to account for the draw, deposit and disbursement of
amounts drawn under any of those Letters of Credit.
(c) The City and La Pianta shall each furnish the Escrow Agent with a
completed Form W -8 or Form W -9, as applicable.
(d) Pursuant to the applicable provisions of the Development Agreement, the
City shall deliver to the Escrow Agent written notice in form and substance substantially
similar to Exhibit A -2. instructing the Escrow Agent to deliver an Instrument to the City,
or if expressly stated in the notice, to La Pianta or third party. If La Pianta disputes the
City's notice to the Escrow Agent to deliver an Instrument, the Escrow Agent shall
nevertheless follow the City's instructions, and La Pianta shall have no redress or
recourse against the Escrow Agent for having followed those City instructions. The City
3
(and not the Escrow Agent) shall be responsible to La Pianta for any such instructions
that are inconsistent with the terms of the Development Agreement.
Section 2. Draws upon Letters of Credit and Deposit and Disbursement of
Amounts Drawn
(a) In the event that the City determines that it is entitled to draw upon any of
the Letters of Credit under an applicable provision of the Development Agreement, the
City shall deliver instructions to the Escrow Agent in the appropriate form set forth in
Exhibit B -2, attached, instructing the Escrow Agent to present the relevant Letter of
Credit to its issuing bank, to draw upon that Letter of Credit and to deposit the amount
drawn in the appropriate subaccount of the Escrow Account. Except with respect to
draws described in subsection (b), below, the City shall be responsible for providing the
Escrow Agent with any information or certification necessary for the Escrow Agent to
make an effective Letter of Credit draw on behalf of the City. In its instructions to the
Escrow Agent in the form of Exhibit B -2, the City shall instruct the Escrow Agent to
remit the specified amount so drawn and deposited to the City and /or to hold the amount
drawn on deposit with the Escrow Agent (held and invested pursuant to instructions
under Section 3, below).
(b) At least 15 days prior to the expiration date of any Letter of Credit, La
Pianta shall provide a replacement Letter of Credit to the Escrow Agent, together with a
confirmation signed by the City that is substantially in the form of Exhibit B -1, attached.
The Escrow Agent shall not release an existing Letter of Credit for which it has received
a replacement until the earlier of (i) the existing Letter of Credit's expiration date, or (ii)
receipt of City confirmation in the form of Exhibit B -1.
If, at least 15 days prior to the expiration of a Letter of Credit, the Escrow Agent
has not received a replacement Letter of Credit for an existing Letter of Credit held by the
Escrow Agent (together with the City confirmation), the Escrow Agent shall, without the
need for any instructions from the City or La Pianta, on or before the 10 day prior to the
expiration date, draw upon that existing Letter of Credit and deposit the amount drawn in
the appropriate subaccount of the Escrow Account, to be held and administered in
accordance with this Agreement. It is the Escrow Agent's sole responsibility to monitor
the expiration dates of each of the Letters of Credit and to draw upon any expiring Letter
of Credit for which a replacement has not been timely provided.
If La Pianta provides a replacement Letter of Credit (together with City
confirmation) later than the deadline described in the previous paragraph but before the
Escrow Agent has drawn on the existing Letter of Credit, the Escrow Agent shall accept
the replacement and return to La Pianta the Letter of Credit being replaced. If La Pianta
provides a replacement Letter of Credit (together with City confirmation) after the
Escrow Agent has drawn on an existing Letter of Credit, any amount previously drawn
on the expiring Letter of Credit shall be refunded to La Pianta, except to the extent (if
any) that the City shall have drawn upon the deposit pursuant to the terms of the
Development Agreement.
50997420 10
4
Whenever, under this subsection (b) or subsection (c), below, La Pianta shall
provide the City with a proposed Letter of Credit or replacement Letter of Credit and
request that the City provide a confirmation regarding that Letter of Credit substantially
in the form of Exhibit B -1, the City shall promptly provide such confirmation, or reject
the proposed Letter of Credit or replacement, in any event within seven business days of
receipt of the proposed instrument.
(c) If either the City or La Pianta becomes aware that the bank issuing a Letter
of Credit has a long term debt rating lower than either A from Standard and Poor's
Corporation or Aa3 from Moody's Investors Service, the party that becomes so aware
shall inform the other party of that information. If the City gives written notice to the
Escrow Agent (with a copy to La Pianta) that the institution providing the Letters of
Credit has a long term debt rating lower than A from Standard and Poor's Corporation
and Aa3 from Moody's Investors Service, La Pianta shall provide a replacement Letter of
Credit from another institution having a long term debt rating meeting those
requirements, together with a City confirmation substantially in the form of Exhibit B -1.
If La Pianta fails to provide a replacement Letter of Credit within 90 days of such
notice together with City confirmation substantially in the form of Exhibit B -1, the City
may provide written instruction to the Escrow Agent (in substantially the form of Exhibit
B -2) to draw upon any downgraded Letter of Credit, and the Escrow Agent shall
promptly do so and deposit the amount drawn in the appropriate subaccount. The Escrow
Agent shall hold the amount drawn on deposit with the Escrow Agent (invested pursuant
to instructions under Section 3, below). If La Pianta provides a replacement Letter of
Credit (together with City confirmation) after the Escrow Agent has drawn on an existing
Letter of Credit, any amount previously drawn on the expiring Letter of Credit shall be
refunded to La Pianta, except to the extent (if any) that the City shall have drawn upon
the deposit pursuant to the terms of the Development Agreement.
(d) Under no circumstances shall the Escrow Agent draw on two Letters of
Credit representing the same security, or draw on a replacement Letter of Credit to the
extent a previous Letter of Credit has been drawn upon, with the cash of that draw still
held by the Escrow Agent.
(e) Upon instructions from the City consistent with the form attached at
Exhibit B -3, the Escrow Agent shall disburse to the City any amounts drawn upon Letters
of Credit and on deposit in a subaccount (including interest earnings) in the amounts
requested by the City in its instructions. It is the intention of the parties that, consistent
with the terms of the Development Agreement, the City (and not La Pianta) will be
responsible for instructing the Escrow Agent regarding the amounts to be disbursed.
However, the City (and not the Escrow Agent) may be responsible to La Pianta for any
such instructions that are inconsistent with the terms of the Development Agreement.
(f) If La Pianta disputes City instructions to the Escrow Agent to draw on a
Letter of Credit or to disburse amounts held on deposit, the Escrow Agent shall
50997420.10
5
nevertheless follow the City's instructions, and La Pianta shall have no redress or
recourse against the Escrow Agent for having followed those City instructions.
(g) It is anticipated that under the Development Agreement, at certain points
in time specific Letters of Credit will no longer need to be maintained on deposit with the
Escrow Agent. Upon receipt of instructions from the City, substantially in the form of
Exhibit B -4, the Escrow Agent shall release the designated Letter of Credit and deliver it
to La Pianta.
Section 3. Investments
(a) Funds held by the Escrow Agent in the Escrow Account shall be deemed
funds of La Pianta, subject to City withdrawal rights as set forth in this Agreement. The
Escrow Agent agrees to invest and reinvest funds in the Escrow Account, but only upon
written instructions signed by an authorized agent of La Pianta. Any investment by the
Escrow Agent among those listed below shall be deemed permitted:
50997420 10
(i) Direct obligations of, and obligations fully and unconditionally
guaranteed as to timely payment by, the United States government and any
agency, instrumentality, or establishment of the United States government
"Government Securities
(ii) Repurchase and reverse repurchase agreements collateralized with
Government Securities, including those of the Escrow Agent or any of its
affiliates.
(iii) Investment in money market mutual funds having a rating in the
highest investment category granted thereby from S &P or Moody's, including,
without limitation any mutual fund for which the Escrow Agent or an affiliate of
the Escrow Agent serves as investment manager, administrator, shareholder
servicing agent, and /or custodian or subcustodian, notwithstanding that (x) the
Escrow Agent or an affiliate of the Escrow Agent receives fees from funds for
services rendered, (y) the Escrow Agent collects fees for services rendered
pursuant to this Indenture, which fees are separate from the fees received from
such funds, and (z) services performed for such funds and pursuant to this
Indenture may at times duplicate those provided to such funds by the Escrow
Agent or an affiliate of the Escrow Agent;
(iv) Demand deposits, including interest bearing money market accounts,
time deposits, trust funds, trust accounts, overnight bank deposits, interest bearing
deposits, and certificates of deposit, including those placed by a third party
pursuant to an agreement between the Escrow Agent and La Pianta, or bankers
acceptances of depository institutions, including the Escrow Agent or any of its
affiliates, rated in the AA long -term ratings category or higher by S &P or
Moody's or which are fully FDIC insured.
6
(b) The parties recognize and agree that the Escrow Agent will not provide
supervision, recommendations or advice relating to either the investment of money held
in the Escrow Account or the purchase, sale, retention or other disposition of any
permitted investment.
(c) Interest and other earnings on permitted investments shall be added to the
Escrow Account. Any loss or expense incurred as a result of an investment will be borne
by the Escrow Account.
(d) Subject to Section 3(a), above, the Escrow Agent is authorized to execute
purchases and sales of permitted investments through the facilities of its own trading or
capital markets operations or those of any affiliated entity, and may charge its ordinary
and customary fees for such trades, including cash sweep account fees. The Escrow
Agent shall send statements to each of the parties hereto on a monthly basis reflecting
activity in the Escrow Account for the preceding month. Although the City and La Pianta
each recognizes that it may obtain a broker confirmation or written statement containing
comparable information at no additional cost, the City and La Pianta hereby agree that
confirmations of permitted investments are not required to be issued by the Escrow Agent
for each month in which a monthly statement is rendered. No statement need be rendered
for the Escrow Account if no activity occurred for such month.
(e) The City and La Pianta acknowledge and agree that the delivery of the
escrowed property is subject to the sale and final settlement of permitted investments.
Proceeds of a sale of permitted investments will be delivered on the business day on
which the appropriate instructions are delivered to the Escrow Agent if received prior to
the deadline for same day sale of such permitted investments. If such instructions are
received after the applicable deadline, proceeds will be delivered on the next succeeding
business day.
(f) If a Letter of Credit has been drawn upon, and the investment of amounts
held by the Escrow Agent with respect to that Letter of Credit cause the funds and
investments held to exceed the face amount of that Letter of Credit (or such other amount
designated jointly by the City and La Pianta in instructions to the Escrow Agent) then so
long as La Pianta is not in default on any obligation under this Agreement, the Escrow
Agent shall, on the first business day of each calendar quarter, remit to La Pianta the
amount in the Escrow Account with respect to that drawn Letter of Credit that is in
excess of the required amount. If a Letter of Credit has been drawn upon, and,
notwithstanding any investment of amounts held by the Escrow Agent with respect to
that Letter of Credit, the total held is less than the required amount of that Letter of
Credit, then on or before the first business day of each calendar quarter La Pianta shall
deposit an amount into the Escrow Account so that the funds held with respect to that
drawn Letter of Credit equals or exceeds the face amount of the Letter of Credit.
Investments shall be valued at market value. The Escrow Agent may rely on its trust
accounting system for market values.
50997420.10
7
Section 4. Concerning the Escrow Agent
Notwithstanding any provision contained herein to the contrary, the Escrow Agent,
including its officers, directors, employees and agents, shall:
(a) not be liable for any action taken or omitted under this Agreement so long
as it shall have acted in good faith and without gross negligence, provided that the
Escrow Agent's failure to timely draw upon an expiring Letter of Credit under Section
2(b), above shall, subject to the last paragraph of this Section 4, be deemed gross
negligence, and provided that such failure shall not be deemed gross negligence if the
Escrow Agent was not provided the required certifications or instructions under Section
3;
(b) have no responsibility to inquire into or determine the genuineness,
authenticity, or sufficiency of any Letters of Credit, Instruments, securities, checks, or
other documents or other instruments submitted to it in connection with its duties
hereunder;
(c) be entitled to deem the signatories of any documents or instruments
submitted to it hereunder as being those purported to be authorized to sign such
documents or instruments on behalf of the parties hereto, and shall be entitled to rely
upon the genuineness of the signatures of such signatories without inquiry and without
requiring substantiating evidence of any kind;
(d) be entitled to refrain from taking any action contemplated by this
Agreement in the event that it becomes aware of any disagreement between the parties
hereto as to any facts or as to the happening of any contemplated event precedent to such
action (except that awareness of a disagreement between the parties shall not entitle the
Escrow Agent to refrain from making a draw on a Letter of Credit under Section 2 of this
Agreement);
(e) have no responsibility or liability for any diminution in value of any assets
held hereunder which may result from any investments or reinvestment made in
accordance with any provision which may be contained herein;
(f) be entitled to compensation for its services hereunder as per Exhibit D
attached hereto, which is made a part hereof, and for reimbursement of its out -of- pocket
expenses including, but not by way of limitation, the fees and costs of attorneys or agents
which it may find necessary to engage in performance of its duties hereunder, all to be
paid by the City and La Pianta in equal shares, and the Escrow Agent shall have, and is
hereby granted, a prior lien upon any property, cash, or assets of the Escrow Account,
with respect to its unpaid fees and nonreimbursed expenses, superior to the interests of
any other persons or entities;
(g) be entitled and is hereby granted the right to set off and deduct any unpaid
fees and /or nonreimbursed expenses from amounts on deposit in the Escrow Account;
50997420.10
8
(h) be under no obligation to invest the deposited funds or the income
generated thereby until it has received a Form W -9 or W -8, as applicable, from the City
and La Pianta, regardless of whether such party is exempt from reporting or withholding
requirements under the Internal Revenue Code of 1986, as amended;
(i) be, and hereby is, jointly and severally indemnified and saved harmless by
the City and La Pianta from all losses, liabilities, costs and expenses, including attorney
fees and expenses, which may be incurred by it as a result of its acceptance of the Escrow
Account or arising from the performance of its duties hereunder, unless such losses,
liabilities, costs and expenses shall have been finally adjudicated to have resulted from
the willful misconduct or gross negligence of the Escrow Agent, and such
indemnification shall survive its resignation or removal, or the termination of this
Agreement;
(j) in the event that (i) any dispute shall arise between the parties with respect
to the disposition or disbursement of any of the assets held hereunder or (ii) the Escrow
Agent shall be uncertain as to how to proceed in a situation not explicitly addressed by
the terms of this Agreement whether because of conflicting demands by the other parties
hereto or otherwise, be permitted to interplead all of the assets held hereunder into a court
of competent jurisdiction, and thereafter be fully relieved from any and all liability or
obligation with respect to such interpleaded assets. The parties hereto other than the
Escrow Agent further agree to pursue any redress or recourse in connection with such a
dispute, without making the Escrow Agent a party to same.
(k) have only those duties as are specifically provided herein, which shall be
deemed purely ministerial in nature, and shall under no circumstance be deemed a
fiduciary for any of the parties to this Agreement. The Escrow Agent shall neither be
responsible for, nor chargeable with, knowledge of the terms and conditions of any other
agreement, instrument or document between the other parties hereto, in connection
herewith, including the Development Agreement (except the Letters of Credit
themselves, and except for Section 4.8.4 of the Development Agreement (attached hereto
as Exhibit E), all of which the Escrow Agent is chargeable with having knowledge of).
This Agreement sets forth all matters pertinent to the escrow contemplated hereunder,
and no additional obligations of the Escrow Agent shall be inferred from the terms of this
Agreement or any other agreement. IN NO EVENT SHALL THE ESCROW AGENT
BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (i) DAMAGES OR
EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER
THAN DAMAGES WHICH RESULT FROM THE ESCROW AGENT'S FAILURE TO
ACT IN ACCORDANCE WITH THE STANDARDS SET FORTH IN THIS
AGREEMENT, OR (ii) SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,
EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES;
(1) have the right, but not the obligation, to consult with counsel of choice and
shall not be liable for action taken or omitted to be taken by Escrow Agent either in
50997420 10
9
accordance with the advice of such counsel or in accordance with any opinion of counsel
to the City addressed and delivered to the Escrow Agent; and
(m) have the right to perform any of its duties hereunder through agents,
attorneys, custodians or nominees, and shall not be responsible for the misconduct or
negligence of such agents, attorneys, custodians and nominees appointed by it with due
care.
None of the provisions of this Agreement shall require the Escrow Agent to expend
or risk its own funds or otherwise to incur any liability, financial or otherwise, in the
performance of any of its duties hereunder. The Escrow Agent may conclusively rely
and shall be fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent, order,
approval or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Escrow Agent agrees to accept and act upon instructions or directions pursuant
to this Agreement sent by unsecured e -mail, facsimile transmission or other similar
unsecured electronic methods, provided, however, that each of the other parties hereto
desiring to provide such directions shall provide to the Escrow Agent an incumbency
certificate listing persons with authority to act hereunder, which incumbency certificate
shall be amended whenever a person is to be added or deleted from the listing. If the City
or La Pianta elects to give the Escrow Agent e -mail or facsimile instructions (or
instructions by a similar electronic method) and the Escrow Agent in its discretion elects
to act upon such instructions, the Escrow Agent's understanding of such instructions shall
be deemed controlling. The Escrow Agent shall not be liable for any losses, costs or
expenses arising directly or indirectly from the Escrow Agent's reliance upon and
compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. The City or La Pianta, as the case may
be, agrees to assume all risks arising out of the use of such electronic methods to submit
instructions and directions to the Escrow Agent, including without limitation the risk of
the Escrow Agent acting on unauthorized instructions, and the risk or interception and
misuse by third parties.
Any banking association or corporation into which the Escrow Agent may be
merged, converted or with which the Escrow Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Escrow
Agent shall be a party, or any banking association or corporation to which all or
substantially all of the corporate trust business of the Escrow Agent shall be transferred,
shall succeed to all the Escrow Agent's rights, obligations and immunities hereunder
without the execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
No printed or other matter in any language (including, without limitation,
prospectuses, notices, reports and promotional material) that mentions the Escrow
Agent's name or the rights, powers or duties of the Escrow Agent shall be issued by the
50997420 10
1 0
other parties hereto or on such parties' behalf unless the Escrow Agent shall first have
given its specific written consent thereto.
The Escrow Agent shall not be obligated to perform any obligation hereunder and
shall not incur any liability for the nonperformance or breach of any obligation hereunder
to the extent that it is delayed in performing, unable to perform or breaches such
obligation because of acts of God, war, terrorism, fire, floods, strikes, electrical outages,
equipment or transmission failures, or other causes reasonably beyond its control;
provided that the Escrow Agent shall use commercially reasonable efforts consistent with
accepted corporate trust industry practices to maintain performance without delay or
resume performance as soon as reasonably practicable under the circumstances
Section 5. Attachment of Escrow Fund; Compliance with Legal Orders
In the event that any escrow property shall be attached, garnished or levied upon by
any court order, or the delivery thereof shall be stayed or enjoined by an order of a court,
or any order, judgment or decree shall be made or entered by any court order affecting
the property deposited under this Agreement, the Escrow Agent shall provide notice to
the City and to La Pianta of the request for or the granting of any such order, judgment or
decree (if and only if an officer of the Escrow Agent with direct responsibility for the
administration of this Agreement has received written notice), and the Escrow Agent is
hereby expressly authorized, in its sole discretion, to obey and comply with all writs,
orders or decrees so entered or issued, which it is advised by legal counsel of its own
choosing is binding upon it, whether with or without jurisdiction, and in the event that the
Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable
to any of the parties hereto or to any other person, firm or corporation, by reason of such
compliance notwithstanding such writ, order or decree be subsequently reversed,
modified, annulled, set aside or vacated.
Section 6. Tax Matters
(a) Reporting of Income. The Escrow Agent shall report to the Internal
Revenue Service, as of each calendar year -end, and to La Pianta, all income earned from
the investment of any sum held in the Escrow Account, as and to the extent required
under the provisions of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder (the "Code
(b) Preparation and Filing of Tax Returns. La Pianta is required to prepare
and file any and all income or other tax returns applicable to the Escrow Account with the
Internal Revenue Service and all required state and local departments of revenue in all
years income is earned in any particular tax year as and to the extent required under the
provisions of the Code.
(c) Payment of Taxes. Any taxes payable on income earned from the
investment of any sums held in the Escrow Account shall be paid by La Pianta, whether
50997420.10
11
or not the income was distributed by the Escrow Agent during any particular year as and
to the extent required under the provisions of the Code.
(d) Unrelated Transactions. The Escrow Agent shall have no responsibility
for the preparation and /or filing of any tax or information return with respect to any
transaction, whether or not related to the Agreement or a related agreement, that occurs
outside the Escrow Account.
Section 7. Resignation or Removal of Escrow Agent
The Escrow Agent may resign as such following the giving of 60 days prior written
notice to the other parties hereto. Similarly, the Escrow Agent may be removed and
replaced following the giving of 60 days prior written notice to the Escrow Agent jointly
by the other parties hereto. In either event, the duties of the Escrow Agent shall terminate
60 days after receipt of such notice (or as of such earlier date as may be mutually
agreeable); and the Escrow Agent shall then deliver the balance of the moneys or assets
then in its possession to a successor escrow agent as shall be appointed by the other
parties hereto as evidenced by a written notice filed with the Escrow Agent.
If the other parties hereto have failed to appoint a successor prior to the expiration
of 60 days following receipt of the notice of resignation or removal, the Escrow Agent
may petition any court of competent jurisdiction for the appointment of a successor
escrow agent or for other appropriate relief, and any such resulting appointment shall be
binding upon all of the parties hereto.
Section 8. Termination
This Agreement shall terminate on June 10, 2024, unless sooner terminated by
written notice signed by both the City and La Pianta (including without limitation a
notice of termination being given as a result of the occurrence of the "Outside Approval
Date" as defined in the Development Agreement).
Upon receipt of a letter, in a form substantially similar to that attached hereto as
Exhibit C, signed on behalf of the City and La Pianta by authorized representatives
thereof, the Escrow Agent agrees to sell the investments held in the Escrow Account, to
pay the full balance and proceeds of the Escrow Account to the City or La Pianta or as
the City and La Pianta shall direct, and to close the Escrow Account.
Section 9. Notices
Any notice, consent or request to be given in connection with any of the terms or
provisions of this Agreement shall be in writing and be given in person, by facsimile
transmission, courier delivery service or by mail, and shall become effective (a) on
delivery if given in person, (b) on the date of delivery if sent by facsimile or by courier
delivery service, or (c) four business days after being deposited in the mails, with proper
postage for first -class registered or certified mail, prepaid.
50997420.10
12
Until notified in writing by the appropriate party of a change to a different address,
notices shall be addressed as follows:
50997420 10
(i) if to the City:
6200 Southcenter Boulevard
Tukwila, Washington 98199
Attention: City Administrator
Fax Number: (206) 433 -7191
(ii) if to La Pianta:
La Pianta LLC
P.O. Box 88028 (mail only)
Tukwila, Washington 98138
5811 Segale Park Drive C (deliveries)
Tukwila, Washington 98188
Attention: Mark A. Segale
Fax Number: (206) 575 -1837
(iii) if to the Escrow Agent:
The Bank of New York Mellon Trust Company, N.A.
601 Union Street
Suite 520
Seattle, Washington 98101
Attention: Corporate Trust
Fax Number: (206) 667 -8905
Section 10. Waiver of Trial by Jury
Each party hereto hereby agrees not to elect a trial by jury of any issue triable of
right by jury, and waives any right to trial by jury fully to the extent that any such right
shall now or hereafter exist with regard to this Agreement, or any claim, counterclaim or
other action arising in connection herewith. This waiver of right to trial by jury is given
knowingly and voluntarily by each party, and is intended to encompass individually each
instance and each issue as to which the right to a trial by jury would otherwise accrue.
Section 11. Governing Law, Counterparts
This Agreement shall be construed in accordance with the laws of the State of
Washington. It may be executed in several counterparts, each one of which shall
constitute an original and all collectively shall constitute but one instrument.
13
Section 12. Amendment, Modification or Waiver
This Agreement may be amended or modified and any term of this Agreement may
be waived if such amendment, modification or waiver is in writing and signed by all
parties.
Section 13. Assignments of Interests
No assignment of the interest of any of the parties hereto shall be binding upon the
Escrow Agent unless and until written evidence of such assignment in form satisfactory
to the Escrow Agent shall be filed with and accepted by the Escrow Agent.
Correspondingly, the Escrow Agent may not assign any of the duties expressly conferred
on it in this Agreement without the written approval of the other parties, or in accordance
with Section 7 or in accordance with the third paragraph from the end of Section 4.
IN WITNESS WHEREOF, the parties have been duly executed this Escrow
Agreement as of the date first above written.
50997420 10
The City of Tukwila, Washington
By
Haggerto
is Mayo
La Pianta LLC
t
By: Metro Land Development, Inc., Its
Manager
By
14
Its
By
M.A. Segale
Its President
The Bank of New York Mellon Trust
Company, N.A.,
As Escrow Agent
Section 12. Amendment, Modification or Waiver
This Agreement may be amended or modified and any term of this Agreement may
be waived if such amendment, modification or waiver is in writing and signed by all
parties.
Section 13. Assignments of Interests
No assignment of the interest of any of the parties hereto shall be binding upon the
Escrow Agent unless and until written evidence of such assignment in form satisfactory
to the Escrow Agent shall be filed with and accepted by the Escrow Agent.
Correspondingly, the Escrow Agent may not assign any of the duties expressly conferred
on it in this Agreement without the written approval of the other parties, or in accordance
with Section 7 or in accordance with the third paragraph from the end of Section 4.
IN WITNESS WHEREOF, the parties have been duly executed this Escrow
Agreement as of the date first above written.
50997420.10
The City of Tukwila, Washington
By
Jim Haggerton
Its Mayor
La Pianta LLC
By: Metro Land Development, Inc., Its
Manager
By �f
M.A. Sega
Its President
The Bank of New York Mellon Trust
Company, N.A.,
As Escrow Agent
By
14
Its
Section 12. Amendment, Modification or Waiver
This Agreement may be amended or modified and any term of this Agreement may
be waived if such amendment, modification or waiver is in writing and signed by all
parties.
Section 13. Assignments of Interests
No assignment of the interest of any of the parties hereto shall be binding upon the
Escrow Agent unless and until written evidence of such assignment in form satisfactory
to the Escrow Agent shall be filed with and accepted by the Escrow Agent.
Correspondingly, the Escrow Agent may not assign any of the duties expressly conferred
on it in this Agreement without the written approval of the other parties, or in accordance
with Section 7 or in accordance with the third paragraph from the end of Section 4.
IN WITNESS WHEREOF, the parties have been duly executed this Escrow
Agreement as of the date first above written.
50997420.10
The City of Tukwila, Washington
By
Jim Haggerton
Its Mayor
La Pianta LLC
By: Metro Land Development, Inc., Its
Manager
By
The Bank of New York Mellon Trust
Company, N.A.,
As Escrow Agent
By
14
M.A. Segale
Its President
eev, G c'Nd
Its e re lcIevt+
50997420.10
EXHIBIT A
FORMS OF INSTRUCTIONS TO ESCROW AGENT
REGARDING DEEDS OF TRUST AND EASEMENTS
15
CONFIRMATION REGARDING DEPOSITED DEED OF TRUST OR EASEMENT
Attention: Corporate Trust Division
Description of Instrument being deposited:
50997420 10
EXHIBIT A -1
[DATE]
The Bank of New York Mellon Trust Company, N.A.
[ADDRESS]
Re: Escrow Account No. among the City of
Tukwila, La Pianta LLC, and The Bank of New York Mellon Trust
Company, N.A., as Escrow Agent (the "Escrow Agent
The City of Tukwila, Washington confirms that the following [deed of
trust][easement] being deposited with the Escrow Agent in connection with the above
referenced Escrow Account, is consistent with the requirements of the applicable
provisions of the Development Agreement by and between the City of Tukwila and La
Pianta LLC, for the Tukwila South Project, dated June 10, 2009.
[Insert one or more descriptions from the following]
[The statutory warranty deed described in Section 4.3.2 of the Development
Agreement "ROW Deed signed, acknowledged but undated by La Pianta.]
[The right of way easement described in Section 4.3.2 of the Development
Agreement "ROW Easement signed, acknowledged and dated by La Pianta.]
[The pedestrian trail easement described in Section 4.5.1 of the Development
Agreement "Pedestrian Trail Easement signed, acknowledged and dated by La
Pianta.]
[The levee easement described in Section 4.5.3 of the Development
Agreement "Levee Easement signed, acknowledged and dated by La Pianta.]
[The statutory warranty deed described in Section 4.6.2 of the Development
Agreement "Fire Station Deed signed, acknowledged and dated by La Pianta.]
[The deed of trust described in Section 4.8.4.1.3 of the Development
Agreement "Deed of Trust signed, acknowledged and dated by La Pianta.]
16
50997420 10
Very truly yours,
The City of Tukwila, Washington
By
Name:
Title:
17
EXHIBIT A -2
INSTRUCTIONS TO RELEASE DEPOSITED DEED OF TRUST OR EASEMENT
[DATE]
The Bank of New York Mellon Trust Company, N.A.
[ADDRESS]
Attention: Corporate Trust Division
The City of Tukwila, Washington certifies that it is entitled to possession and use
of the following [deed of trust] [easement] held by the Escrow Agent in connection with
the above referenced Escrow Account. Please release to the City of Tukwila,
Washington, the following [deed of trust][easement] held in your custody:
50997420 10
Re: Escrow Account No. among the City of
Tukwila, La Pianta LLC, and The Bank of New York Mellon Trust
Company, N.A., as Escrow Agent (the "Escrow Agent
Please deliver to:
Very truly yours,
The City of Tukwila, Washington
By
Name:
Title:
18
50997420 10
EXHIBIT B
FORMS OF INSTRUCTIONS TO ESCROW AGENT
REGARDING LETTERS OF CREDIT
19
EXHIBIT B -1
CONFIRMATION REGARDING DEPOSITED LETTER OF CREDIT
[DATE]
The Bank of New York Mellon Trust Company, N.A.
[ADDRESS]
Attention: Corporate Trust Division
Re: Escrow Account No. among the City of
Tukwila, La Pianta LLC, and The Bank of New York Mellon Trust
Company, N.A., as Escrow Agent (the "Escrow Agent
The City of Tukwila, Washington confirms that the following Letter of Credit
being deposited with the Escrow Agent in connection with the above referenced Escrow
Account, is consistent with the requirements of the applicable provisions of the
Development Agreement by and between the City of Tukwila and La Pianta LLC, for the
Tukwila South Project, dated June 10, 2009.
Description of Letter(s) of Credit being deposited:
[Insert one or more descriptions from the following]
[An irrevocable standby Operations and Maintenance Letter of Credit
"O &M LC as described in Section 4.8.4.1 of the Development Agreement,
issued by [Bank of America, N.A.] in the face amount of [$6,000,000] and dated
50997420.10
[An irrevocable standby Southcenter Parkway Letter of Credit "SCPW LC
as described in Section 4.8.4.2 of the Development Agreement, issued by [Bank of
America, N.A.] in the initial face amount of [$185,000] and dated
[An irrevocable standby Highline Work Letter of Credit "Highline Work
LC described in Section 4.3.4.1 and Section 4.8.4.3 of the Development
Agreement, issued by [Bank of America, N.A.] in the face amount of
and dated
[An irrevocable standby Puget Sound Energy Work Letter of Credit "PSE
Work LC described in Section 4.3.4.2 and Section 4.8.4.3 of the Development
Agreement, issued by [Bank of America, N.A.] in the face amount of
and dated
20
50997420.10
[An irrevocable standby Bridge Letter of Credit "Bridge LC described in
Section 4.5.2 and Section 4.8.4.3 of the Development Agreement, issued by [Bank
of America, N.A.] in the face amount of $500,000 and dated
Very truly yours,
The City of Tukwila, Washington
By
Name:
Title:
21
Re: Escrow Account No. among the City of Tukwila, La Pianta LLC, and
The Bank of New York Mellon Trust Company, N.A., as Escrow Agent (the "Escrow
Agent
To: The Bank of New York Mellon Trust Company, N.A.
The City of Tukwila, Washington (the "City has determined that it is entitled to draw
upon one or more of the Letters of Credit described below, in the amount or amounts
described below, under an applicable provision of the Development Agreement described
in the heading to these instructions. Accordingly, the Escrow Agent is hereby directed to
promptly present the relevant Letter or Letters of Credit to its issuing bank, draw upon
that Letter of Credit and deposit the amount drawn in the appropriate subaccount of the
Escrow Account.
Relevant Letter or Letters of Credit:
The Operations and Maintenance Letter of Credit "O &M LC described
in Section 4.8.4.1 of the Development Agreement.
Amount of Draw:
The Southcenter Parkway Letter of Credit "SCPW LC described in
Section 4.8.4.2 of the Development Agreement.
Amount of Draw:
The Highline Work Letter of Credit "Highline Work LC described in
Section 4.3.4.1 and Section 4.8.4.3 of Development Agreement.
Amount of Draw:
The Puget Sound Energy Work Letter of Credit "PSE Work LC
described in Section 4.3.4.2 and Section 4.8.4.3 of the Development Agreement.
Amount of Draw:
The Bridge Letter of Credit "Bridge LC described in Section 4.5.2 and
Section 4.8.4.3 of the Development Agreement.
Amount of Draw:
City Statement of Purpose of Draw (i.e., information or certification necessary for the
Escrow Agent to make an effective Letter of Credit draw on behalf of the City):
50997420 I0
EXHIBIT B -2
INSTRUCTIONS TO DRAW ON LETTER OF CREDIT
(Escrow Agreement Concerning Security for Developer Obligations under
Development Agreement, Dated 2009)
22
City Instructions Regarding Disposition of Amount(s) Drawn:
[City here provides instructions to the Escrow Agent to disburse to the City the specified
amount(s) so drawn and /or to hold the amount(s) drawn on deposit with the Escrow
Agent in a subaccount or subaccounts specified by the City]
I certify that I am authorized to provide these instructions to the Escrow Agent on behalf
of the City of Tukwila, Washington.
DATED this
50997420.10
[City to provide information or certification language here]
day of ,20
The City of Tukwila, Washington
By
23
Its
50997420 10
EXHIBIT B -3
INSTRUCTIONS TO DISBURSE AMOUNTS ON DEPOSIT
(Escrow Agreement Concerning Security for Developer Obligations under
Development Agreement, Dated 2009)
Re: Escrow Account No. among the City of Tukwila, La Pianta LLC, and
The Bank of New York Mellon Trust Company, N.A., as Escrow Agent (the "Escrow
Agent
To: The Bank of New York Mellon Trust Company, N.A.
The City of Tukwila, Washington (the "City certifies that it is entitled to a
disbursement of the amount(s) described below, and accordingly instructs the Escrow
Agent to disburse to the City amounts on deposit in the subaccount described below, in
the amount or amounts described below, under an applicable provision of the
Development Agreement described above. Accordingly, the Escrow Agent shall
promptly disburse to the City the amount on deposit in the appropriate subaccount of the
Escrow Account.
Relevant Subaccounts and Disbursement Amount(s):
[Here City states name of subaccount(s) and amount(s) to be disbursed.]
Payment Instructions:
[Include instructions here]
I certify that I am authorized to provide these instructions to the Escrow Agent on behalf
of the City of Tukwila, Washington.
DATED this day of 20
The City of Tukwila, Washington
By
24
Its
50997420.10
EXHIBIT B -4
INSTRUCTIONS TO RELEASE DEPOSITED LETTER OF CREDIT
[DATE]
The Bank of New York Mellon Trust Company, N.A.
[ADDRESS]
Attention: Corporate Trust Division
Re: Escrow Account No. among the City of
Tukwila, La Pianta LLC, and The Bank of New York Mellon Trust
Company, N.A., as Escrow Agent (the "Escrow Agent
The City of Tukwila, Washington certifies that under the terms of the
Development Agreement by and between the City of Tukwila and La Pianta LLC, for the
Tukwila South Project, dated June 10, 2009, the following Letter(s) of Credit no longer
need to be held by the Escrow Agent in connection with the above referenced Escrow
Account. Please release and deliver to La Pianta LLC, the following Letter(s) of Credit
held in your custody:
Very truly yours,
The City of Tukwila, Washington
By
Name:
Title:
25
The Bank of New York Mellon Trust Company, N.A.
[ADDRESS]
Attention: Corporate Trust Division
Please sell all investments held in the Escrow Account and distribute the full
balance and proceeds thereof by (wire transfer) (cashier's check) to
(if wire transfer name of bank, bank's ABA number and
customer's account number for credit) or as shall otherwise
direct.
50997420 10
EXHIBIT C
INSTRUCTIONS TO SELL INVESTMENTS
[DATE]
Re: Escrow Account No. among the City of
Tukwila, La Pianta LLC, and The Bank of New York Mellon Trust
Company, N.A., as Escrow Agent (the "Escrow Agent
Very truly yours,
The City of Tukwila, Washington
By
Name:
Title:
La Pianta LLC
By
Name:
Title:
26
50997420.10
EXHIBIT D
SCHEDULE OF ESCROW AGENT FEES
27
f"
THE BANK OF NEW YORK MELLON
City of Tukwila (the "City and La Pianta LLC (the "Developer")
Concerning Security for Developer Obligations under Development Agreement,
The Bank of New York Mellon Trust Company, N.A. (the "Escrow Agent
Escrow Agent Fee Schedule
August 4, 2009
Upon appointment of BNYM as Escrow Agent, the City of Tukwila and La Pianta shall be
responsible for the payment of the fees, expenses and charges as set forth in this Fee
Schedule.
ACCEPTANCE FEE: $1,500.00
This one time charge of $1,500.00 is payable at the time of the closing and includes the
review and execution of the agreements and all documents submitted in support thereof,
acceptance of the escrow, establishment of procedures and controls and set -up of escrow
accounts. This Acceptance fee includes The Bank of New York Mellon legal counsel
review of documents.
ESCROW AGENT ADMINISTRATIVE FEE: $1,000.00
An annual fee of $1,000.00 covering the duties and responsibilities related to account
administration, which may include maintenance of accounts on various systems, establish
and maintain separate sub accounts with respect to each of the Letter of Credit and
additional assets as required. This fee is payable in advance for the year and shall not be
prorated.
LETTER OF CREDIT MAINTENANCE xEE (Per Letter of Credit) 500.00
Custody of the Letters of Credits, draw, deposit and disbursement of amounts drawn
under any of those Letters of Credit, monitor the expiration dates of each of the Letters of
Credit and to draw upon any expiring Letter of Credit for which a replacement has not
been timely provided.
INFORM ONLINE Included In Administrative Fee
This on -line system contains downloading capabilities into your Excel spreadsheets, to
aid in the preparation of your treasury reports including assets held with the escrow agent.
One of INFORM's most unique features is the scheduler function. The scheduler
function prints our monthly statements directly to our client's local printer without having
to log into our website to retrieve the statements. Furthering our commitment to providing
solutions to issuers we are offer our clients Internet access to review assets held with us
as escrow agent.
INVESTMENT COMPENSATION
With respect to investments in money market mutual funds, the investment maintenance
fee will be calculated at an annual rate of 0 basis points on average total monthly account
balances. With respect to investments in money market mutual funds for which BNYM
provides shareholder services BNYM (or its affiliates) may also receive and retain
additional fees from the mutual funds (or their affiliates) for shareholder services as set
OF NEW YORK MELLON
forth in e Authorization and Direction to BNYM to Invest Cash Balances in Money
Market Mutual Funds.
MISCELLANEOUS FEES
The fees for performing extraordinary or other services not contemplated at the time of
the execution of the transaction or not specifically covered elsewhere in this schedule will
be commensurate with the service to be provided and will be charged in BNYM's sole
discretion. These extraordinary services may include, but are not limited to supplemental
agreements, consent operations the preparation of special or interim reports, a one -time
fee to be charged upon termination of an engagement. Counsel, accountants, special
agents and others will be charged at the actual amount of fees and expenses billed.
OUT OF POCKET EXPENSES At Cost
Additional out -of- pocket expenses may include, but are not limited to, fees and expenses
of BNYM's representative(s) and Counsel for attending special meetings. Fees and
expenses of BNYM's representatives and Counsel will be charged at the actual amount of
fees and expenses charged and all other expenses will be charged at cost.
TERMS AND DISCLOSURES
TERMS OF PROPOSAL
Final acceptance of the appointment as Escrow Agent under the Escrow Agreement is
subject to approval of authorized officers of BNYM and full review and execution of all
documentation related hereto. Please note that if this transaction does not close, you will
be responsible for paying any expenses incurred. Fees may be subject to adjustment
during the life of the engagement.
MISCELLANEOUS
The terms of this Fee Schedule shall govern the matters set forth herein and shall not be
superseded or modified by the terms of the Escrow Agreement. This Fee Schedule shall
be governed by the laws of the State of California without reference to laws governing
conflicts. BNYM and the undersigned agree to jurisdiction of the federal and state courts
located in Los Angeles, State of California.
CUSTOMER NOTICE REQUIRED BY THE USA PATRIOT ACT
To help the US government fight the funding of terrorism and money laundering
activities, US Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person (whether an individual or organization) for which
a relationship is established. What this means to you: When you establish a relationship
with BNYM, we will ask you to provide certain information (and documents) that will
help us to identify you. We will ask for your organization's name, physical address, tax
identification or other government registration number and other information that will
help us to identify you. We may also ask for a Certificate of Incorporation or similar
document or other pertinent identifying documentation for your type of organization.
THE BANK OF NEW YORK MiLLON
Accepted By:
City of Tukwila
Signature
ca
1 }■Date:
Name:
Title
La Pianta LLC
Signature
Date:
Name:
Title
We appreciate this opportunity to and thank you for your assistance.
f O
v 06,5_e_z_tex,)
01
jQ
For BNYM:
August 4, 2009
Michael Jones
Vice President
4
THE BANK OF NEW YORK MELLON
We appreciate this opportunity to and thank you for your assistance.
Accepted By:
City of Tukwila
Signature
Date:
Name:
Title
La Pianta LLC
Title
Signature
Date:
/04 Of
Name: I c.Sf f
For BNYM:
August 4, 2009
Michael Jones
Vice President
50997420.10
EXHIBIT E
SECTION 4.8.4 OF THE DEVELOPMENT AGREEMENT
(Excerpts from Recorded Development Agreement)
28
Return Address:
City of Tukwila
City Clerks Office
6200 Southcenter Blvd
Tukwila. WA 98188
Please print or type information WASHINGTON STATE RECORDER'S Cover Sheet (RCW 65.04)
Document Title(s) (or transactions contained therein): (all areas applicable to your document must be filled in)
1. Ordinance No. 22
3. 4.
Reference Number(s) of Documents assigned or released:
Additional reference #'s on page of document
Grantor(s) Exactly as name(s) appear on document
1.
2.
Additional names on page of document.
Grantee(s) Exactly as name(s) appear on document
1.
i it 4'
I I I
h I_ I.
20090617000114
CITY OF TUKWIL ORD 167.00
PAGE001 OF 126
06/17/2009 08 :48
KING COUNTY, WA
2.
2.
Additional names on page of document.
Legal description (abbreviated: i.e. lot, block, plator section, township, range)
Additional legal is on page of document.
Assessor's Property Tax Parcel/Account Number Assessor Tax not yet
assigned
The Auditor/Recorder will rely on the information provided on this form. The staff will not read the document
to verify the accuracy or completeness of the indexing information provided herein.
"I am signing below and paying an additional $50 recording fee (as provided in RCW 36.18.010 and
referred to as an emergency nonstandard document), because this document does not meet margin and
formatting requirements. Furthermore, X hereby understand that the recording process may cover up or
otherwise obscure some part of the text of the original document as a result of this request."
Signature of Requesting Party
Note to submitter: Do not sign'above nor pay additional $50 fee if the document meets margin /formatting requirements
DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF TUKWILA 09 100
AND LA PIANTA LLC, FOR THE By Ordinance ante No. 2233
By Ordinance No. 2233 3
TUKWILA SOUTH DEVELOPMENT
THIS DEVELOPMENT AGREEMENT "Agreement is made and entered into this
10th day of June, 2009, by and between the CITY OF TUKWILA "CITY a non charter,
optional code Washington municipal corporation, and LA PIANTA LLC, a Washington limited
liability company "La Pianta").
I. RECITALS
WHEREAS, the Washington State Legislature has authorized the execution of
development agreements between a local government and a person having ownership or control
of real property within its jurisdiction and between a local government and a person owning real
property outside its boundaries as part of a proposed annexation, pursuant to RCW 36.70B.170
through RCW 36.70B.210.
WHEREAS, the "Tukwila South Project" (hereinafter defined) comprises approximately
512 acres of real property, which site is shown on the vicinity map attached hereto as Exhibit 1.
and La Pianta owns or controls approximately 503 of those acres, which is known as the
"Tukwila South Property" and legally described in Exhibit 2. The Tukwila South Project is
generally located between the boundaries of South 178 Street/South 180 Street on the north;
South 204 Street on the south; Orillia Road and Interstate -5 on the west; and the Green River on
the east. Approximately 259 acres will be annexed to the City pursuant to this Agreement.
WHEREAS, the Tukwila South Property is located within an Urban Growth Area and is
appropriate for urban development pursuant to the Growth Management Act, and the City's
adopted Comprehensive Plan. The City will provide public services to the Tukwila South
Property, with the exception of power and water.
WHEREAS, La Pianta intends to develop the Tukwila South Property consistent with the
Tukwila South Master Plan "Master Plan The Master Plan envisions the creation of a major
new employment and housing base on the Tukwila South Property. The plan calls for
approximately ten million square feet of development that would be accommodated in a
combination of campus style research and office environments with a mix of other supporting
uses such as retail, residential, commercial, hotel and flex tech "Tukwila South Project The
Tukwila South Project will use the topographic and environmental constraints of the site to
define the limits of its development area, as shown on Exhibit 3 "Development Areas" and
"Non- Development Areas The Tukwila South Project includes the extension of Southcenter
Parkway in an alignment along the west edge of the valley floor "Southcenter Parkway
Project thus, functioning as the major transportation arterial through the site. The Tukwila
South Project will also contain an integrated, internal circulation system of streets, sidewalks and
pedestrian connections that link its various developments and will serve vehicles, cyclists and
pedestrians.
06/10/2009
Exhibit A to Ordinance No. 2233
the retention of the Accountant. Each party will share equally the cost for the Accountant's
services outlined in this section. In the event that the parties do not execute the memorandum of
understanding documenting the accounting protocols within one hundred eighty (180) days of
the retention of the Accountant, this Agreement shall terminate.
On or before March 31, 2010 and each March 31 thereafter, the City shall prepare
a statement "Annual Statement showing the O &M Revenue, O &M Expenses, O &M
Guarantee, the Increased Property Tax Revenues, the annual debt service for the General
Obligation Bonds, any Debt Service Shortfall, and the portion of any Debt Service Shortfall
which La Pianta has guaranteed under the terms of this Agreement, consistent with the protocols
set forth in the memorandum of understanding. If La Pianta questions the City's determination
of any of the items set forth in the Annual Statement for the prior calendar year, La Pianta may
request an audit of the disputed matter from the Accountant who developed the protocols, or his
or her designee. Within thirty (30) days of La Pianta's request, the Accountant shall review the
Annual Statement and La Pianta's dispute therewith, and render a decision based on generally
accepted governmental accounting practices, the protocols, and the terms of this Agreement.
The Accountant's decision shall be final and binding on the parties, excepting manifest error by
the Accountant. The parties agree to cooperate in good faith with the Accountant concerning any
requests for information or documentation to resolve the issue. If there is a variance of 10% or
more between the Accountant's decision and the City's determination of revenue or
expenditures, the City shall pay the cost of the audit. If the variance is less than 10 La Pianta
shall pay the cost of the audit.
4.8.4 Security for La Pianta's Financial Guarantees.
4.8.4.1 O &M Guarantee.
4.8.4.1.1 O &M Collateral.
La Pianta's obligation under Section 4.8.1 (not to exceed $12,000,000) shall be
secured during the Tenn of this Agreement by collateral comprised of: (i) an irrevocable standby
letter of credit naming the City as beneficiary "O &M LC and (ii) a first -lien deed of trust on
Building No. 931 located in Segale Business Park, which is currently occupied by Qwest
Communications Corporation "O &M Deed of Trust If La Pianta fails to pay timely any
amount due under Section 4.8.1, the City may draw upon the O &M LC and/or foreclose on the
O &M Deed of Trust as provided in this Section 4.8.4.
4.8.4.1.2 O &M LC.
(a) The O &M LC shall be in the form, and meet
the requirements, set forth in Section 4.8,4.4 below. The O &M LC shall be in the sum of
$6,000,000 and shall be delivered to the Escrow Agent following Boundary Review Board action
on the annexation described in Section 4.1 but no later than 10 days before the date on which the
City Council is scheduled to take final action on the annexation at a public meeting. To the
extent La Pianta makes any payments to the City under the O &M Guarantee, then the amount of
06/10/2009 -17-
the letter of credit shall be reduced by 50% of the total of such payments, and the credits set forth
in Section 4.4, except that the amount of the O &M LC shall not be less than $2,000,000 at any
time during the Term. The amount of the O &M LC shall be determined annually pursuant to the
foregoing upon renewal. If a longer term O &M LC is provided, the amount shall be recalculated
annually on the anniversary of the initial issuance date and may be adjusted at that time. If La
Pianta is not required to make any payments to the City under the O &M Guarantee, then at any
time, and from time to tirne, during the last five (5) years of the Term, the parties may agree to a
reasonable reduction in the amount of the O &M LC, taking into consideration the remaining
Term of this Agreement, the historical receipt of O &M Revenue by the City, the likely
obligation of La Pianta pursuant to the O &M Guarantee, the security provided under the O &M
Deed of Trust, and all other relevant factors.
(b) Failure of La Pianta to provide and maintain
the O &M LC at the time and in the amount required by this Section 4.8.4.1, where such failure
continues after written notice from the City specifying the nature of the default and 20 days'
opportunity to cure, shall entitle the City to accelerate that portion of the O &M Guarantee
obligation represented by the amount of the O &M LC, draw on the O &M LC, and deposit the
amount drawn "O &M Deposit into an escrow account with the Escrow Agent described in
Section 4.8.4.6 (the "Escrow Agent except that in the case of a failure to provide a
replacement of the O &M LC no later than 15 days prior to its stated expiration, no notice and
opportunity to cure shall be required prior to a City draw on the O &M LC. The City may
subsequently draw upon the O &M Deposit if La Pianta shall default on its obligations under the
O &M Guarantee. If the City shall draw on the O &M Deposit at any time during the Term of this
Agreement, La Pianta shall, within 30 days of notice by the City, restore the O &M Deposit to the
amount required at the time the O &M Deposit was established. Upon expiration of the Tenn,
any remaining funds held in the escrow account, including any remaining accrued interest, shall
be released to La Pianta. La Pianta's obligation to provide the O &M LC, and the City's remedy
for failure to provide the O &M LC, shall not be subject to the Dispute Resolution Process set
forth in Section 7 of this Agreement.
4.8.4.1.3 O &M Deed of Trust.
(a) The remaining $6,000,000 of La Pianta's
total potential liability under the O &M Guarantee shall be secured by the O &M Deed of Trust.
The O &M Deed of Trust shall be in the form attached to this Agreement as Exhibit 8 and shall
be delivered to the City at the same time that the O &M LC is delivered to the Escrow Agent. La
Pianta shall have the right, to substitute as security from time to time one or more deeds of trust
in the same or similar form on other real estate acceptable to the City in the exercise of
reasonable discretion, so long as the unencumbered value of the substituted collateral is equal to
or greater than $9,000,000 as shown by a current appraisal performed by a neutral appraiser
having no less than 10 years' experience appraising commercial property in the area in which the
real estate is located, with appraisal cost shared equally between the parties. Any permitted
substitute deed of trust given under this Section 4.8 shall be delivered to the City in an escrow
arrangement (the cost of which shall be paid by La Pianta) that provides for delivery and
recording of the substitute deed of trust simultaneously with release of the original deed of trust.
06/10/2009 -18-
Substituted collateral must be located in the State of Washington, shall have an appraised value
of nine million dollars ($9,000,000) or more, shall be income producing, shall be improved by
structures of a quality that is the same as or similar to the improvements existing on the land
encumbered by the initial deed of trust, and shall be of a character suitable as collateral for a
substantial commercial loan from a recognized commercial real estate lender. The City shall not
have the right to unreasonably reject proposed substitute collateral, and the characteristics listed
in the previous sentence will be relevant in determining reasonableness of a City rejection.
(b) In the event of a default that entitles the City
to foreclose on the O &M Deed of Trust, then the O &M Deed of Trust shall provide that there
shall be no default entitling the City to foreclose the O &M Deed of Trust until (1) La Pianta shall
have failed after notice and 20 days to cure to pay the sum(s) required under the terms of this
Agreement, (2) the City has drawn on the letter of credit (or cash deposit) securing the obligation
in default to the maximum amount of the letter of credit (or cash deposit) and has applied the
sums) so drawn to the obligation in default, and (3) there remains outstanding an additional sum
due under the terms of this Agreement for which the deed of trust has been granted as security.
4.8.4.2 Southcenter Parkway Proiect General Obligation Bonds Guarantee.
La Pianta's obligation pursuant to Section 4.8.2 of this Agreement to
guarantee a portion of the General Obligation Bonds (the "Bond Guarantee shall be secured
during the Term of this Agreement by a separate irrevocable standby letter of credit naming the
City as beneficiary "SCPW LC The amount of the SCPW LC shall be determined annually
as of January 1 of each calendar year during the Term of this Agreement, and shall initially be in
the amount of $185,000, and, upon issuance of the General Obligation Bonds, shall be adjusted
to an amount equal to twice the average annual debt service on the Bonds for that portion of the
General Obligation Bonds that exceeds $6,000,000. The SCPW LC shall be delivered to the
Escrow Agent before the date on which the City awards the contract for construction of the
Southcenter Parkway Project. If La Pianta fails to pay timely any amount due under Section
4.8.2, the City may draw upon the letter of credit as provided in this Section 4.8.4.
Failure of La Pianta to provide and maintain the SCPW LC at the time and
in the amount required by this Section 4.8.4.2, where such failure continues after written notice
from the City specifying the nature of the default and 20 days' opportunity to cure, shall entitle
the City to accelerate that portion of the Bond Guarantee that is represented by the amount of the
SCPW LC, draw on the SCPW LC, and deposit the amount drawn "SCPW Deposit into an
escrow account with the Escrow Agent, except that in the case of a failure to provide a
replacement of the SCPW LC no later than 15 days prior to its stated expiration, no notice and
opportunity to cure shall be required prior to a City draw on the SCPW LC. The City may
subsequently draw upon the SCPW Deposit if La Pianta shall default on its obligation under the
Bond Guarantee. If the City shall draw on the SCPW Deposit at any time during the Term of
this Agreement, La Pianta shall, within 30 days of notice by the City, restore the SCPW Deposit
to the amount required at the time the SCPW Deposit was established. Upon expiration of the
Term, any remaining funds held in the escrow account, including any remaining accrued interest,
shall be released to La Pianta. La Pianta's obligation to provide the SCPW LC, and the City's
06/10/2009 -19-
remedy for failure to provide the SCPW LC, shall not be subject to the Dispute Resolution
Process set forth in Section 7 of this Agreement.
4.8.4.3 Other Secured Obligations.
For each of the remaining obligations of La Pianta under this Agreement
for which security is required specifically, (i) the letter of credit required pursuant to Section
4.3.4.1 in the amount of 110% of La Pianta's portion of the Highline Work (the Highline Work
LC (ii) the letter of credit required pursuant to Section 4.3.4.2 in the amount of 110% of the
City's share of the cost of the PSE Work in accordance with PSE Tariff Schedule 74 (the "PSE
Work LC and (iii) the letter of credit required pursuant to Section 4.5.2 in the amount of
$500,000 (the "Bridge LC La Pianta shall provide to the City an irrevocable standby letter of
credit naming the City as beneficiary. The Highline Work LC and the PSE Work LC shall be
delivered to the Escrow Agent at the same time that the SCPW LC is delivered, which shall be
prior to the award of the construction contract for the Southcenter Parkway Project. The Bridge
LC shall be delivered to the Escrow Agent no later than thirty (30) days after the date the City
notifies La Pianta that the City will make application for a grant or grants for any cost of
constructing a pedestrian bridge across the Green River to connect Tukwila South to Briscoe
Park. Only upon La Pianta paying the amount due in fulfillment of an obligation secured by one
of the foregoing letters of credit, the City shall release the letter of credit for that obligation, and
La Pianta's obligation to provide that letter of credit shall terminate.
Failure of La Pianta to provide and maintain any letter of credit at the time
and in the amount required by this Section 4.8.4.3, where such failure continues after written
notice from the City specifying the nature of the default and 30 days' opportunity to cure, shall
constitute a default with respect to the obligation secured by that letter of credit "Secured
Obligation in Default except that in the case of a failure to provide a replacement letter of
credit no later than 15 days prior to its stated expiration, no notice and opportunity to cure shall
be required prior to a City draw on the letter of credit for which no replacement has been
delivered. The default shall entitle the City to draw on the letter of credit securing the Secured
Obligation in Default, and deposit the amount drawn into an escrow account with the Escrow
Agent. The City may subsequently draw upon that deposit if La Pianta shall default in the
obligation so secured. Upon expiration of the Term or fulfillment of the obligation so secured
(whichever shall first occur), any remaining funds held in the escrow account, including any
remaining accrued interest, shall be released to La Pianta. La Pianta's obligation to provide any
letter of credit under this Section 4.8.4.3, and the City's remedy for failure to provide a letter of
credit under this Section 4.8.4.3, shall not be subject to the Dispute Resolution Process set forth
in Section 7 of this Agreement.
4.8.4.4 General Terms and Conditions for the Letters of Credit.
Each letter of credit provided under this Section 4.8.4 (including the O &M
LC, the SCPW LC and each letter of credit provided pursuant to Section 4.8.4.3) shall be in form
substantially similar to Exhibit 9. Each letter of credit shall be issued by Bank of America or, at
La Pianta's option, another financial institution having a branch in the State of Washington that
06/10/2009 -20-
Approval Date (as defined in Section 4.2 above), the Escrow Agent shall deliver all deeds and
easements in the Escrow to the City for recording, with the exception of the deed to the fire
station parcel pursuant to Section 4.6.2, which shall be delivered to the City at its request
following adoption of the ordinance vacating existing Frager Road. The parties shall share
equally the cost of the Escrow Agent for services performed pursuant to this Agreement.
4.9 Grading Permit Review. The City will complete review and issue a determination
regarding La Pianta's Clearing and Grading permit application for the Tukwila South Project
within 30 days of determining that such application is complete for areas outside of the shoreline
jurisdiction. For areas within the shoreline jurisdiction, La Pianta shall submit a Shoreline
Substantial Development Permit along with the Clearing and Grading Permit. The City will
promptly review the Shoreline Substantial Development Permit, and forward its decision to the
Department of Ecology for review. The City will complete review of the Clearing and Grading
permit application within thirty (30) days and issue a decision after the expiration of the
Department of Ecology's review period for the Shoreline Substantial Development permit. La
Pianta shall segregate the Clearing and Grading permit application into separate applications for
those portions of the Tukwila South Project inside and outside the 200 -foot shoreline
environment, respectively, and the City shall review and issue such separate permits
independently. These grading permit applications shall not operate to vest La Pianta to the SMP
or any Floodplain Regulations.
4.10 South 178 Street Proiect. The Administration of the City shall recommend to
the City Council that the realignment of South 178 Street, as depicted in the 90% construction
drawings, be added to the City's Capital Improvement Plan.
4.11 Vacation of Frager Road/Southcenter Parkway and the City Triangular Parcel.
Pursuant to RCW 35.79.010, the City has by resolution initiated a vacation of (i) that portion of
Frager Road/Southcenter Parkway described in Exhibit 7. attached hereto, and (ii) the "City
Triangular Parcel," which is more particularly described in Exhibit 6 of this Agreement. The
City agrees that there will be no remaining public use or benefit to that portion of Frager
Road/Southcenter Parkway described in Exhibit 7 and the City Triangular Parcel, following
dedication of the Southcenter Parkway right -of -way as set forth in Section 4.3.2 above.
Therefore, the City shall, simultaneous with La Pianta's dedication of the Southcenter Parkway
right -of -way set forth in Section 4.3.2 above, vacate Frager Road/Southcenter Parkway and the
City Triangular Parcel at no cost to La Pianta and the other adjoining landowners, as applicable.
The conveyance of the property to La Pianta pursuant to the vacation will occur within thirty
(30) days after the completion of the Southcenter Parkway Project.
4.12 Transfer of the City Detention Pond. The City hereby determines that there is no
remaining public use or benefit to the following property and shall transfer to La Pianta, free and
clear of all encumbrances and for no additional consideration, in its as -is, where -is condition, the
"City Detention Pond," which is more particularly described in Exhibit 6 of this Agreement.
Subject to the terms set forth in Section 4.2.5, the City shall convey the City Detention Pond
within thirty (30) days of the completion of the annexation. The City shall undertake all
06/10/2009 -22-