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HomeMy WebLinkAbout15-175 - Amalfi Investments LLC - Real Estate Exchange and Purchase Agreement15-175(c) Council Approval N/A TIIIRD AMENDMENT TO REAL ESTATE EXCHANGE AND PURCHASE AGREEMENT This Third Amendment to Real Estate Exchange and Purchase ( "Amendment ") is entered into by and between Amalfi Investments, L.L.C., a Washington limited liability company ( "Amalfi "), and the City of Tukwila, a municipal corporation of the State of Washington ( "Tukwila ") and amends that certain Real Estate Exchange and Purchase Agreement by and between Amalfi and Tukwila, as amended (together, the "Agreement "). This Amendment shall be effective as of April 2016 (the "Amendment Effective Date "). Recitals A. Tukwila satisfied or waived its contingencies under Section 3 of the Agreement on January 29, 2016. B. The parties entered into the First Amendment and Second Amendment to Real Estate Exchange in order to extend the date for Amalfi to satisfy its contingencies C. The parties again desire to extend the date for Amalfi to satisfy its contingencies by extending the date sixty -five (65) days from April 26, 2016 to June 30, 2016. Agreements NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Amalfi and Tukwila agree as follows: 1. Any capitalized terms used and not otherwise defined in this Amendment shall have the same meaning set forth in the Agreement. 2. The following sentence from Section 3 of the Agreement is hereby deleted: Following Tukwila's removal of such contingencies, Amalfi shall have until the end of day on April 26, 2016 to remove all its contingencies referenced in this Paragraph 3 and provide notice of such removal in accordance with Paragraph 8 herein. The deleted sentence is hereby replaced with the following: Following Tukwila's removal of such contingencies, Amalfi shall have until the end of day on June 30, 2016 to remove all its contingencies referenced in this Paragraph 3 and provide notice of such removal in accordance with Paragraph 8 herein. Third Amendment to Exchange 1 and Purchase Agreement 3. Except as herein modified or amended, all terms and conditions of the Agreement shall remain unchanged and in full force and effect. 4. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an electronic signature of a signed version of this Amendment via email or facsimile shall have the same effect as delivery of an original. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Amendment Effective Date. • AMALFI: AMALFI INVESTMENTS L.L.C, a Washington limited liability company By: Daniel Temkin Its: Manager TUKWILA: CITY OF TUKWILA, a municipal corporation of the State of Washington By: anokAIN-- 6-16ter Its: Mayor of City of Tukwila Third Amendment to Exchange 2 and Purchase Agreement Date signed: Date signed: A-121,iL 25,a)1Le 3. Except as herein modified or amended, all terms and conditions of the Agreement shall remain unchanged and in full force and effect. 4. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an electronic signature of a signed version of this Amendment via email or facsimile shall have the same effect as delivery, of an original. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Amendment Effective Date. AMALFI: AMALFI INVESTMENTS L.L.C,, a Washington limited liability company iel Temkin Its: anager TUKWILA: CITY OF TUKWILA, a municipal corporation of the State of Washington By: Its: Mayor of City of Tukwila Third Amendment to Exchange and Purchasg Agreement Date signed: 15-1 75(b) Council Approval N/A SECOND AMENDMENT TO REAL ESTATE EXCHANGE AND PURCHASE AGREEMENT This Second Amendment to Real Estate Exchange and Purchase ( "Amendment ") is entered into by and between Amalfi Investments, L.L.C.; a Washington limited liability company ( "Amalfi "), and the City of Tukwila, a municipal corporation of the State of Washington ( "Tukwila ") and amends that certain Real Estate Exchange and Purchase Agreement by and between Amalfi and Tukwila, as amended (together, the "Agreement "). This Amendment shall be effective as of April lEP, 2016 (the "Amendment Effective Date "). Recitals A. Tukwila satisfied or waived its contingencies under Section 3 of the Agreement on January 29, 2016. B. The parties entered into the First Amendment to Real Estate Exchange in order to extend the date for Amalfi to satisfy its contingencies C. The parties again desire to extend the date for Amalfi to satisfy its contingencies by extending the date eight (8) days from April 18, 2016 to April 26, 2016. Agreements NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Amalfi and Tukwila agree as follows: 1. Any capitalized terms used and not otherwise defined in this Amendment shall have the same meaning set forth in the Agreement. 2. The following sentence from Section 3 of the Agreement is hereby deleted: Following Tukwila's removal of such contingencies, Amalfi shall have until the end of day on April 18, 2016 to remove all its contingencies referenced in this Paragraph 3 and provide notice of such removal in accordance with Paragraph 8 herein. The deleted sentence is hereby replaced with the following: Following Tukwila's removal of such contingencies, Amalfi shall have until the end of day on April 26, 2016 to remove all its contingencies referenced in this Paragraph 3 and provide notice of such removal in accordance with Paragraph 8 herein. Second Amendment to Exchange and Purchase Agreement 3. Except as herein modified or amended, all terms and conditions of the Agreement shall remain unchanged and in full force and effect. 4. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an electronic signature of a signed version of this Amendment via email or facsimile shall have the same effect as delivery of an original. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Amendment Effective Date. AMALFI: AMALFI INVESTMENTS L.L.C, a Washington limited liability company By: Daniel Temkin Its: Manager TUKWILA: CITY OF TUKWILA, a municipal corporation of the State of Washington By: Its: Mayor of City of Tukwila Second Amendment to Exchange 2 and Purchase Agreement Date signed: Date signed: 14, 2ok 3. Except as herein modified or amended, all terms and conditions of the Agreement shall remain unchanged and in full force and effect. 4. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an electronic signature of a signed version of this Amendment via email or facsimile shall have the same effect as delivery of an original. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Amendment Effective Date. AMALFI: AMALFI INVESTMENTS L.L.C, a Washington limited liabiliti company A ;TO IlikaNg . Daniel ana emkin er TUKWILA: CITY OF TUKWILA, a municipal corporation of the State of Washington By: Its: Mayor of City of Tukwila Second Amendment to Exchange and Purchase Agreement Date signed: y'. /f -Z' 4 Date signed: 15-175(a) Council Approval N/A FIRST AMENDMENT TO REAL ESTATE EXCHANGE AND PURCHASE .AGREEMENT This First Amendment to Real Estate Exchange and Purchase ("Amendment") is entered into by and between Amalfi Investments, L:L.C., a Washington limited liability company ("Amalfi"), and the City of Tukwila, a municipal corporation of the State of Washington ("Tukwila") and amends that certain Real Estate Exchange and Purchase Agreement by and between Amalfi and Tukwila (the "Agreement"). This Amendment shall be.effective as of March 25, 2016 (the "Amendment Effective Date"). Recitals A. Tukwila satisfied or waived its contingencies under Section 3 of the Agreement on January 29,2016.. B. The parties desire to extend the date for Amalfi to.satisfy its contingencies by extending the date fifteen(15)days from March 29,2016 to April 13,2016. Agreements NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,Amalfi and Tukwila agree as follows: 1. Any capitalized terms used and not otherwise defined in this Amendment shall have the same meaning set forth in the Agreement. 2. The following sentence from Section 3 of the Agreement is hereby deleted: Following Tukwila's removal of such contingencies, Amalfi shall have a period of sixty (60) days to remove all its contingencies referenced in this .Paragraph. 3 and provide notice of such removal in accordance with Paragraph 8 herein. The deleted sentence is hereby replaced with the following: Following Tukwila's removal of such contingencies, Amalfi shall have until the end of day on April 18, 2016 to remove all its contingencies referenced in this Paragraph 3 and provide notice of such removal in accordance with Paragraph 8 herein. 3. Except as herein modified or amended, all terms and conditions of the Agreement shall remain unchanged and in full force and effect. First Amendment to Exchange 1 1 a ? and Purchase Agreement 4. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Delivery of an electronic signature of a signed version of this Amendment via email or facsimile shall have the same effect as delivery of an original. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Amendment Effective Date. AMALFI: AMALFI INV STMENTS L.L.C, a Washington. limited Bab' i 'com.. y 1,'/li /Ji _ ' Date signed: (3'2S" /p y: Danie Temkin Man.ger TUKWILA: CITY OF TUKWILA,a municipal corporation of the State.of Washington Date signed:. A y(rte 0 r DU/(,€9 By: ! Its: Mayor of City of Tukwila • First Amendment to Exchange 2 and Purchase Agreement COPY 15 -175 Council Approval 10/19/15 REAL ESTATE EXCHANGE AND PURCHASE AGREEMENT This Real Estate Exchange and Purchase Agreement (the "Agreement ") is made as of the date this instrument is fully executed by and between AMALFI INVESTMENTS, L.L.C., a Washington limited liability company ( "Amalfi "), the current owner of the real property more fully described in Exhibit E -1, and CITY OF TUKWILA, a municipal corporation of the State of Washington ( "Tukwila "), the current owner of the real property more fully described in Exhibit E -2, for the exchange of a portion of each parties' real property, the Amalfi Property and Tukwila Property, as defined below, and all rights appurtenant thereto on terms and conditions set forth hereon, and for the boundary adjustment of the Amalfi's real property and Tukwila's real property situated in King County, Washington, described on Exhibit D -1 and D -2, respectively. 1. PURCHASE PRICE: Amalfi shall transfer the Amalfi Property to Tukwila in exchange for the Tukwila Property together with Seven Thousand Two Hundred and No /100 Dollars (US $7,200.00) payment from Tukwila (together for Amalfi and Tukwila, the "Purchase Price "). The Purchase Price is payable at closing in cash together with two Warranty Deeds describing the Amalfi Property and Tukwila Property respectively to be executed at Closing. 2. TITLE: 2.1 Deed (Amalfi Property): At closing, Amalfi will execute and deliver to Tukwila a Warranty Deed conveying and warranting good and marketable title to the real property described on Exhibit A -1 hereto (the "Amalfi Property ") free and clear of all defects or encumbrances except for the lien of real estate taxes and drainage service charges not yet due and payable and those defects and/or encumbrances contemplated by this Agreement or to be identified as Amalfi Property Permitted Exceptions. As of the date of this Agreement, the parties have not conducted a survey to fully describe the Amalfi Property, however, following execution of this Agreement the parties shall conduct a survey under Section 3.4 to describe the Amalfi Property, subject to each party's acceptance under Section 3.5. 2.2 Deed of Easement: At closing, Tukwila will also execute and deliver to Amalfi a Stormwater Drainage Easement as found in Exhibit B (the "Stormwater Drainage Easement ") for the existing drain pipe to remain on the property being conveyed by Amalfi. Said easement shall be conveyed simultaneously with the transfer of the two Warranty Deeds. 2.3 Deed (Tukwila Property): At closing, Tukwila will execute and deliver to Amalfi a Warranty Deed conveying and warranting good and marketable title to the real property described on Exhibit A -1 hereto (the "Tukwila Property ") free and clear of all defects or encumbrances except for the lien of real estate taxes and drainage service charges not yet due and payable and those defects and/or encumbrances contemplated by this Agreement or to be identified as Tukwila Property Permitted Exceptions. As of the date of this Agreement, the parties have not conducted a survey to fully describe the 15i- ej-,2_01--9,- Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 1 of 2 10/21/15 Tukwila Property, however, following execution of this Agreement the parties shall conduct a survey under Section 3.4 to describe the Tukwila Property, subject to each party's acceptance under Section 3.5. 2.4 Title Insurance (Amalfi Property): At closing, Tukwila shall receive (at Tukwila's expense) an owner's extended ALTA policy of title insurance or endorsement acceptable to Tukwila for the Amalfi Property, dated as of the closing date and insuring Tukwila in the amount of the appraised value against loss or damage by reason of defect in Tukwila's title to the Property subject only to the printed exclusions appearing in the policy form and any Amalfi Property Permitted Exceptions. 2.5 Title Insurance (Tukwila Property): At closing, Amalfi shall receive (at Tukwila's expense) an owner's extended ALTA policy of title insurance or endorsement acceptable to Amalfi for the Tukwila Property, dated as of the closing date and insuring Amalfi Investments, LLC in the amount of the appraised value against loss or damage by reason of defect in their title to the Tukwila Property subject only to the printed exclusions appearing in the policy form and any Tukwila Property Permitted Exceptions. 2.6 Review of Title Commitment and Survey: Within fourteen (14) days from the completion of the ALTA survey contemplated by Section 3.4 hereof, Tukwila shall cause Stewart Title Company to furnish to Tukwila with respect to the Amalfi Property and Fidelity National Title to furnish to Amalfi with respect to the Tukwila Property a commitment for an ALTA Owner's Standard Coverage Policy of Title Insurance (together, the "Title Commitment "), in accordance with Section 2.4 and 2.5 hereof. Tukwila shall cause the Title Commitment to be furnished along with legible true copies of all instruments referred to in the Title Commitment as conditions or exceptions to title to the Amalfi Property or Tukwila Property, as applicable. Each party shall have until fifteen (15) days following the issuance of the Title Commitment within which to notify the other in writing of any objections to any matters shown or referred to in the Title Commitment or the ALTA survey. Any exceptions or other items which are set forth in the Title Commitment or the ALTA survey and to which a party does not object within the fifteen (15) day period shall be deemed to be permitted exceptions (the "Permitted Exceptions "). The Permitted Exceptions related to the Tukwila Property shall be the "Tukwila Property Permitted Exceptions" and the Permitted Exceptions related to the Amalfi Property shall be the "Amalfi Property Permitted Exceptions." The Amalfi Property Permitted Exceptions shall include the Stormwater Drainage Easement. With regard to items to which a party does object within the fifteen (15) day period, the other party shall use its best efforts to cure such objections within fifteen (15) days, or such longer period as may be approved by the objecting party. If, in spite of its best efforts, a party is unable to cure such objections by Closing, the other party may at its option waive the objections not cured or terminate this Agreement by notice to the party unable to cure such objections. 3. CONTINGENCIES: Unless otherwise specified in this Agreement, Tukwila shall have until January Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 2 of 2 10/21/15 31, 2016, to remove all its contingencies referenced in this Paragraph 3 and provide notice of such removal in accordance with Paragraph 8 herein. If the contingencies are not removed within this period, this Agreement shall be null and void, except with respect to each party's indemnification obligations hereunder, unless the deadline is extended by written mutual consent. The contingency removal shall be conducted in two phases. Prior to Amalfi's obligation to take any act necessary to remove contingencies under Section 3, the City of Tukwila's obligations under the contingencies in Section 3.1 (Environmental Review), Section 3.2 (Conversion and Replacement Approval), Section 3.3 (Amalfi's Storm Drainage Easement), Section 3.4 (Boundary Line Adjustment), Section 3.6 (Removal of Underground Storage Tank), and Section 3.7 (Removal of Other Improvements) shall have been satisfied. Following Tukwila's removal of such contingencies, Amalfi shall have a period of sixty (60) days to remove all its contingencies referenced in this Paragraph 3 and provide notice of such removal in accordance with Paragraph 8 herein. 3.1 Environmental Review: Both Amalfi and Tukwila, based upon an Environmental Site Assessment and any other due diligence for the Amalfi Property and Tukwila Property respectively, shall determine that there are not and have not been any significant releases of Hazardous Materials, as defined below, on the property that each party will acquire at Closing. To carry out this obligation, both Amalfi and Tukwila (when context dictates, the "Inspecting Party ") hereby grant the other party (when context dictates, the "Inspecting Party ") and its employees, agents or contractors a right of entry onto the Inspected Party's property to be transferred pursuant to this Agreement (the "Inspected Party's Property ") upon notice and approval from the Inspected Party for reasonable site inspections and testing, including, but not limited to, collection and testing of bore samples from random locations within the Inspected Party's Property, performed in connection with the Environmental Site Assessment. Each Inspecting Party agrees to hold harmless, indemnify and defend the Inspected Party, its officers, agents and employees, from and against all claims, losses, or liability, for injuries, sickness or death of persons, including employees of the Inspecting Party, caused by or arising out of any act, error or omission of the Inspecting Party, its officers, agents, contractors, subcontractors or employees in entering Inspected Party's Property for the above purposes, to the extent not caused by or arising out of any act, error or omission of the Inspected Party, its officers, agents and employees. Immediately following the execution of this Agreement, Tukwila and Amalfi will provide the other party with all existing Environment Site Assessments and any other environmental tests, studies, and reports of any kind related to the Tukwila Property or Amalfi Property, as applicable, in its possession and such tests, studies, and reports shall be reasonably satisfactory to the other party. 3.2 Conversion and Replacement Approval: The parties shall have obtained approval, conditioned upon, and effective automatically upon without further action by any party, the consummation of the transaction contemplated herein and in a form reasonably satisfactory to Amalfi and Tukwila, by the State of Washington Recreation and Conservation Office to lift the salmon recovery restrictions from the Tukwila Property and to place them upon the Amalfi Property. Such approval shall be in a form Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 3 of 3 10 /21/15 sufficient to permit Amalfi to obtain a title insurance policy free and clear of any RCO deed restriction. 3.3 Amalfi's Reservation of Easement: The parties shall have obtained approval, conditioned upon, and effective automatically upon without further action by any party, the consummation of the transaction contemplated herein and in a form reasonably satisfactory to Amalfi and Tukwila, by the State of Washington Recreation and Conservation Office for the Amalfi Stormwater Drainage Easement. The Amalfi Stormwater Drainage Easement shall be five feet on either side of a line to be drawn and described in conjunction with the BLA survey in accordance with paragraph 3.4 below. 3.4 Boundary Line Adjustment: The parties shall conduct an ALTA survey of the Amalfi Property, the Tukwila Property, and the post- exchange real property for Amalfi and Tukwila. Amalfi shall receive a copy of any and all surveys conducted or required under this Agreement, including, without limitation, the ALTA survey for the post- exchange real properties. Such survey shall be conducted to each party's satisfaction, which may be withheld in either party's sole discretion. Upon approval from both parties, such legal descriptions shall be inserted into this Agreement and form the basis of Exhibit A -1 (Amalfi Property), Exhibit A -2 (Tukwila Property), Exhibit D -1 (Amalfi's post- closing real property), and Exhibit D -2 (Tukwila's post - closing real property). Additionally, the parties shall have obtained the final approval, conditioned upon the consummation of the transaction contemplated herein, by the appropriate agency of the City of Tukwila of an application to adjust the boundary lines of the Amalfi Property and Tukwila Property to conform with the conveyances contemplated herein ("BLA"). The BLA approval shall include the Stormwater Drainage Easement, described in Section 3.3 herein. Any expenses incurred in obtaining the BLA shall be borne by Tukwila, including any surveys required for the BLA or this Agreement. Said survey shall also include the existing stormwater drain pipe and outfall and shall provide the legal description of the Stormwater Drainage Easement to be conveyed. 3.5 Confirmation of Legal Description: The parties shall have obtained the approval of both Amalfi and Tukwila for the legal descriptions describing the Amalfi Property, the Tukwila Property, and the remaining Amalfi real property and Tukwila real property following the conveyances contemplated herein, as described in Section 3.5. Once approved by the affected party, these revised legal descriptions reflecting the BLA shall be inserted into Exhibits D -1 and D -2 respectively. 3.6 Removal of Underground Storage Tank: The transfer of the Tukwila Property is contingent on Tukwila removing the existing underground storage tank which is now located upon the Tukwila Property at Tukwila's expense prior to Closing, providing Amalfi with evidence reasonably satisfactory to Amalfi that no further remediation actions are needed. Tukwila will bear the cost of removal, including without limitation, any soil remediation or removal to an appropriate waste facility. 3.7 Removal of Other Improvements: If in the event any additional improvements not contemplated herein fall within either the Amalfi Property or the Tukwila Property, Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 4 of 4 10/21/15 those improvements will be removed at the expense of the party's whose property those improvements are situated on prior to the conveyances contemplated herein. 3.8 UPS Release: UPS Freight will release the affected portion of their lease by the exchange contemplated herein if necessary at or prior to Closing. 3.9 Veracity of All Representations and Warranties; Performance of Covenants. To the best of their knowledge all representations and warranties contained in Paragraph 6 of this Agreement are true and correct as of the date of Closing. 4. INFORMATION FURNISHED. As soon as possible and not later than seven (7) days from the date hereof, Tukwila and Amalfi shall deliver to the other (i) copies of all contracts or permits which continue to affect any portion of the Tukwila Property or Amalfi Property, as applicable, in each party's possession, (ii) any and all instruments affecting Tukwila or Amalfi's title to the Tukwila Property or Amalfi Property, as applicable, or any part thereof, if any, and (iii) copies of all plans, specifications, books, records, and documents pertaining to the Tukwila Property or Amalfi Property (as applicable) in Tukwila's or Amalfi's possession. Upon execution hereof, Tukwila and Amalfi and its authorized representatives shall have the right to inspect the Amalfi Property and Tukwila Property, respectively, at each own's expense during reasonable business hours (with reasonable notice to the other and opportunity for the other's representatives to accompany the other party). Tukwila and Amalfi shall give the other its reasonable cooperation and to confirm, when requested, the accuracy of the information relied upon by Tukwila or Amalfi. 5. RISK OF LOSS: Both parties will bear the risk of loss of or damage to their respective properties prior to Closing, except as otherwise provided for in this Agreement. In the event of such loss or damage to the Amalfi Property or Tukwila Property, the owner of the damaged property shall promptly notify other party thereof and either party may, in its sole discretion, terminate this Agreement by giving notice of termination to the other party. 6. AMALFI AND TUKWILA MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS: Amalfi and Tukwila (each for this Section 6, the "Representing Party ") each represents, warrants and covenants to the other (the "Other Party ") at the date of execution of this Agreement and the date of closing as set forth below in this Section 6. All representations, warranties, and covenants shall survive Closing. 6.1 Authority: Each party represents that it has full power and authority to execute this Agreement and perform the obligations herein. 6.2 No Leases: As of the Closing, Amalfi represents that the Amalfi Property is not subject to any leases, tenancies or rights of persons in possession that are not otherwise disclosed. As of the Closing, Tukwila represents that the Tukwila Property is not subject to any leases, tenancies or rights of persons in possession that are not otherwise disclosed. Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 5 of 5 10/21/15 6.3 No Material Defect: Amalfi is unaware of any material defect in the Amalfi Property that would make the Amalfi Property unfit for its intended use by Tukwila. Tukwila is unaware of any material defect in the Tukwila Property that would make the Tukwila Property unfit for its intended use by Amalfi. 6.4 Debris and Personal Property: Amalfi and Tukwila will remove all debris and personal property prior to closing located on their respective property each at their own cost and expense, and each party will indemnify and hold the other party harmless from all claims and expenses arising from such removal. 6.5 Contamination: To the best of the Representing Party's knowledge, the Representing Party represents and warrants that it has not caused or allowed the generation, treatment, storage, or disposal of Hazardous Materials on the Amalfi Property or Tukwila Property (as applicable), except in accordance with local, state, and federal statutes, rules, ordinances and regulations, nor caused or allowed the release of any hazardous substance onto, at, or near the Amalfi Property or Tukwila Property (as applicable). To the best of the Representing Party's knowledge, it represents that it is in compliance with all applicable laws, rules, and regulations regarding the handling of hazardous substances, has secured all necessary permits, licenses and approvals necessary to its operation on the Amalfi Property or Tukwila Property (as applicable), and is in compliance with such permits. The Representing Party has not received notice of any proceedings, claims, or lawsuits arising out of its operations on the Amalfi Property or Tukwila Property (as applicable) and, to the Representing Party's knowledge, the Amalfi Property or Tukwila Property (as applicable) is not, nor has it ever been subject to the release of hazardous substances. The term "Hazardous Materials" includes, but is not limited to, (i) any petroleum or petroleum products, natural gas, or natural gas products, radioactive materials, asbestos, urea formaldehyde foam insulation, transformers or other equipment that contains dielectric fluid containing levels of polychlorinated biphenyls ( "PCBs "), and radon gas; (ii) any chemicals, materials, waste or substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants," "contaminants," or "pollutants," or words of similar import, under any environmental laws; and (iii) any other chemical, material, waste or substance which is in any way regulated by any federal, state or local government authority, agency or instrumentality, including mixtures thereof with other materials, and including any materials such as asbestos and lead. 6.6 Fees and Commissions: The Representing Party shall pay for any broker's or other commissions or fees incurred by the Representing Party in connection with the sale of the Amalfi Property or Tukwila Property (as applicable) and the Representing Party shall indemnify and hold the Other Party harmless from all such claims for commission and/or fees. 6.7 Indemnification: The Representing Party agrees to indemnify, defend, and hold harmless the Other Party, its employees, agents, heirs and assigns, from and against any Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 6 of 6 10/21/15 and all damage, claim, liability, or loss, including reasonable attorney's and other fees, arising out of or in any way connected to the breach of any representation or warranty contained herein. Such duty of indemnification shall include, but not be limited to damage, liability, or loss pursuant to all federal environmental laws, Washington State environmental laws, strict liability and common law. 6.8 Fencing: Tukwila within 90 days following the Closing will have constructed and installed a new 8 foot high fence with three strands of barbed wire along the entire length of the post - Closing common property line for the parties at Tukwila's sole expense. Additionally, the City will remove and dispose of the existing fencing in its entirety. Fencing shall be similar to existing fencing on each parcel, and shall be completed in a professional and workmanlike manner. Tukwila shall hold harmless, indemnify and defend Amalfi, its officers, agents and employees, from and against all claims, losses, or liability, for injuries, sickness or death of persons, including employees of the Tukwila, caused by or arising out of any act, error or omission of the Tukwila, its officers, agents, contractors, subcontractors or employees in connection to such construction, to the extent not caused by or arising out of any act, error or omission of the Amalfi, its officers, agents and employees. 6.9 Waste; Alteration of Property: Prior to the exchange of property contemplated herein, Amalfi shall not: (i) commit waste on the Amalfi Property; (ii) remove trees or other vegetation, coal, minerals or other valuable materials from the Amalfi Property; and (iii) substantially alter the surface or subsurface of the Amalfi Property without the express written consent of Tukwila. Prior to the exchange of property contemplated herein, Tukwila shall not: (i) commit waste on the Tukwila Property; (ii) remove trees or other vegetation, coal, minerals or other valuable materials from the Tukwila Property; and (iii) substantially alter the surface or subsurface of the Tukwila Property without the express written consent of Amalfi. 6.10 Removal of Underground Storage Tank: Tukwila shall remove the existing underground storage tank which is now located upon the Tukwila Property, including any and all associated piping and equipment, at Tukwila's expense prior to closing, and shall provide Amalfi with evidence reasonably satisfactory to Amalfi that no further remediation actions are needed and taking any action required to comply with any applicable law, regulation, ordinance, or order. Tukwila will bear the cost of removal, including without limitation, any soil remediation or removal to an appropriate waste facility. Tukwila shall hold harmless, indemnify and defend Amalfi, its officers, agents and employees, from and against all claims, losses, or liability, for injuries, sickness or death of persons, including employees of the Tukwila, caused by or arising out of any act, error or omission of the Tukwila, its officers, agents, contractors, subcontractors or employees in connection to such construction, to the extent not caused by or arising out of any act, error or omission of the Amalfi, its officers, agents and employees. 6.11 Good and Marketable Title; Materialman and Mechanics Liens: Except for Permitted Exceptions, the Amalfi Property will be transferred to Tukwila free and clear of all mortgages, deeds of trust, security interests, liens, pledges, charges, encumbrances, Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 7 of 7 10/21/15 claims, liabilities or debts of any kind or nature. Except for Permitted Exceptions, the Tukwila Property will be transferred to Amalfi free and clear of all mortgages, deeds of trust, security interests, liens, pledges, charges, encumbrances, claims, liabilities or debts of any kind or nature. To the extent either party has duties to perform work on the other's property following the Closing, the party performing work shall indemnify the other party for any materialman or mechanics liens filed and any costs incurred by the other party associated with such filing. 6.12 No Litigation: The Representing Party has not received any written notice of any legal actions, suits, arbitrations, proceedings or condemnation or similar proceedings, claims, or zoning changes pending or threatened and affecting the Amalfi Property or Tuwkila Property (as applicable), nor does the Representing Party know any basis for, including by written notice of, any pending or threatened legal actions, suits, arbitrations or proceedings or claims affecting the Amalfi Property or Tukwila Property (as applicable) and in which the Representing Party or Other Party will be a party by reason of the Representing Party's ownership of the Amalfi Property or Tukwila Property (as applicable) or entry into this agreement. 6.13 Removal of Property: If in the event any additional improvements not contemplated herein fall within either the Amalfi Property or the Tukwila Property, those improvements will be removed at the expense of the party's whose property those improvements are situated on prior to the conveyances contemplated herein. Without limiting the proceeding sentence, Tukwila shall remove trees along the fence line, the brick house, including any associated basement, foundation, underground utilities, piping, and equipment, and have the area backfilled with clean soil reasonably suitable to Amalfi and compacted prior to the Closing. Notwithstanding the terms in this section, Tukwila shall leave the existing driveway on the Tukwila Property and curbcut. 6.14 Ordinary High Water Mark: Pursuant to RCW 90.58.580 and TMC 18.44.120, Tukwila granted relief to the property retained by Amalfi post - closing as described in Exhibit D -1 (the "Amalfi Post - Closing Property "), and the Department of Ecology concurred in the granting of such relief, to ensure that the movement of the ordinary high water mark due to the construction of a restoration project by Tukwila would not impact the Amalfi Post - Closing Property (the "Shoreline Relief Approval "). The parties shall record in a form satisfactory to Amalfi, Tukwila's Shoreline Relief Approval Letter, dated January 5, 2015 and the Department of Ecology's ( "Ecology ") Concurrence Letter, dated January 16, 2015. Additionally, Tukwila represents, warrants and agrees as follows: (i) the Phase I of the Duwamish Gardens shoreline restoration project shall be implemented consistent with the Shoreline Relief Approval, so as not to impair any benefits of the Shoreline Relief Approval accruing to the Amalfi Post - Closing Property; (ii) no future or additional phase of the Duwamish Gardens shoreline restoration project, or other shoreline restoration work conducted or authorized by Tukwila in the vicinity of the Amalfi Post - Closing Property, shall be undertaken which would move the ordinary high water mark of the Duwamish River closer to the Amalfi Post - Closing Property (and thereby increase the area of shoreline management jurisdiction on the Amalfi Post - Closing Property), without prior confirmation in writing from Tukwila and Ecology that Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 8 of 8 10/21/15 the Shoreline Relief Approval (or a future amendment thereto) provides full relief to the Amalfi Post - Closing Property as provided under RCW 90.58.580 and TMC 18.44.120. The provisions of this Section 6.14 shall survive Closing. 6.15 No Material Changes: The Amalfi Property and Tukwila Property have not materially changed, following the date of this Agreement. 7. CLOSING: 7.1 Time for Closing: The sale will be closed in the office of the Closing Agent not later than twenty one (21) days from the date all contingencies set forth in Paragraph 3 herein have been removed, or as soon thereafter as practicable. Amalfi and Tukwila shall deposit in escrow with the Closing Agent all instruments, documents and moneys necessary to complete the sale in accordance with this Agreement. As used in this Agreement, "closing," "Closing," and "date of closing" means the date on which all appropriate documents are recorded and proceeds of the sale are available for disbursement to Amalfi and Tukwila respectively. The "Closing Agent" shall be: Stewart Title Company 1420 Fifth Ave., Suite 440 Seattle, WA 98101 7.2 Prorations, Closing Costs: Tukwila will pay real estate excise taxes (if any are due) for the Amalfi Property and Tukwila Property, real property taxes prorated beginning on the date of closing for the Amalfi Property and real property taxes, if any, prorated through the date of closing on the Tukwila Property. Additionally, Tukwila will pay the premium for the Tukwila and Amalfi owner's title insurance policy or any endorsements, any recording costs, the Closing Agent escrow fees, any survey costs, any costs pertaining to environmental reports obtained hereunder, and any costs or fees related to any governmental, regulatory, or quasi - governmental approval, consent, or acknowledgment obtained under this Agreement. 7.3 Possession: Tukwila shall be entitled to possession of the Amalfi Property at Closing. Amalfi shall be entitled to possession of the Tukwila Property at Closing. 7.4 Simultaneous Closings: The simultaneous recording of the deeds exchanging the Tukwila Property and Amalfi Property, along with the recording of the Stormwater Drainage Easement, shall be a condition of both parties' performance under this Agreement. 8. NOTICES: Any notices required herein shall be given to the parties at the addresses listed below: Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 9 of 9 10/21/15 TO AMALFI: Amalfi Investments LLC c/o Westshore Management P.O. Box 249 Medina, WA 98039 -0249 Attn: Daniel Temkin, Managing Partner TO TUKWILA: City of Tukwila, Department of Public Works 6300 Southcenter Blvd., Suite 100 Tukwila, WA 98188 Attn: Ryan Larson 9. GENERAL: This is the entire agreement of Amalfi and Tukwila with respect to the Amalfi Property and Tukwila Property and supersedes all prior or contemporaneous agreements between them, written or oral. This Agreement may be modified only in writing, signed by Amalfi and Tukwila. Any waivers under this Agreement must be in writing. A waiver of any right or remedy in the event of a default will not constitute a waiver of such right or remedy in the event of any subsequent default. This Agreement is for the benefit of, and binding upon, Amalfi and Tukwila and their heirs, personal representatives, successors and assigns. The invalidity or unenforceability of any provision of this agreement will not affect the validity or enforceability of any other provision. Time is of the essence in this Agreement. 10. SURVIVAL OF WARRANTIES: The terms, covenants, representations and warranties shall not merge in the deed of conveyance, but shall survive Closing. All the terms, covenants, representations and warranties shall be made as of the date of execution and shall be deemed to have been remade as of the Closing. [Signature page attached.] Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 10 of 10 10/21/15 Signed in duplicate original. AMALFI: Amalfi Investments L.L.C. By: Its: TUKWILA: City of Tukwila, a municipal corporation of the State of Washington By: Titl onorable PT aggerton ayor of j Tukwila EXHIBITS: Date (e%_ A N)1 /9 Date Exhibit A -1, Legal Description (Amalfi Property to be conveyed) Exhibit A -2, Legal Description (Tukwila Property to be conveyed) Exhibit B, Pro -Forma Stormwater Drainage Easement Exhibit C, Intentionally omitted Exhibit D -1, Full Legal Description (Amalfi's real property after conveyance) Exhibit D -2, FullLegal Description (Tukwila's real property after conveyance) Exhibit E -1, Full Legal Description of Amalfi property prior to transaction Exhibit E -2, Full Legal Description of Tukwila property prior to transaction Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 11 of 11 10/21/15 STATE OF WASHINGTON) )SS. COUNTY OF KING I certify that I know or have satisfactory evidence that Mayor Jim Haggerton is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he is authorized to execute the instrument and acknowledged it as Mayor of City of Tukwila to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: OC -h-e l 37/ 9D/ G R 4,4 kuis5< P . 7L/K4--- Printed name Notary Public in and for the State of Washington Residing at My appointment expires i' f �b jo Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 12 of 12 10/21/15 STATE OF WASHINGTON) )SS COUNTY OF KING I hereby certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he is authorized to execute the instrument and acknowledged in his capacity as managing member of Amalfi Investments L.L.C., to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. Dated: Printed signature Notary Public in and for the State of Washington, residing at My appointment expires Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 13 of 13 10/21/15 EXHIBIT A -1 TO PURCHASE AND SALE AGREEMENT (To Be Inserted in Conformance with the Boundary Line Adjustment Survey) AMALFI PROPERTY LEGAL DESCRIPTION (THE EXCHANGED PORTION OF THE AMALFI PARCEL) Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 14 of 14 10/21/15 EXHIBIT A -2 TO PURCHASE AND SALE AGREEMENT (To Be Inserted in Conformance with the Boundary Line Adjustment Survey) TUKWILA PROPERTY LEGAL DESCRIPTION (THE EXCHANGED PORTION OF THE CITY OF TUKWILA PARCEL) Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 15 of 15 10/21/15 EXHIBIT B TO PURCHASE AND SALE AGREEMENT Recording Requested By And When Recorded Mail To: King County Water and Lands Resources Division Open Space Acquisitions 201 South Jackson Street, Suite 600 Seattle, WA 98104 STORMWATER DRAINAGE EASEMENT Grantor: The City of Tukwila, a municipal corporation Grantee: Amalfi Investments, LLC Grantor Abbreviated Legal: Grantor Legal: See Exhibit A Grantor Tax Parcel ID #: Grantee Abbreviated Legal: Grantee Legal: See Exhibit B Grantee Tax Parcel ID #: Easement Legal Description: See Exhibit C Project: Duwamish Garden Enhancement For and in consideration of One Dollar ($1.00 US), and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the City of Tukwila, a municipal corporation ( "Grantor ") hereby grants a perpetual, nonexclusive easement (the "Easement ") to Amalfi Investments, LLC ( "Grantee "), and its successors and assigns in title or interest to all or any portion of Grantee's real property legally described on Exhibit `B" hereto (the "Grantee's Real Property "). Said Easement shall be appurtenant to Grantor's land for the benefit of the Grantee's Real Property and running with the land and burdening the Grantor's real property described on Exhibit "A" hereto (the "Grantor's Real Property ") under, over, through and across the following described land for the purpose of laying, maintaining, repairing, replacing, and installing a storm drainage pipeline, catch basins, and appurtenances thereof, said land being described as follows: Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 16 of 16 10/21/15 SEE EXHIBIT "C" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART THEREOF (the "Easement Area "), which shall describe an area of 5' on either side of a line legally described in Exhibit "C ". The Easement contemplated herein is solely for the use, construction, reconstruction, repair, and maintenance of a storm drainage pipeline, catch basins, and appurtenances thereof, which originate on the Grantee's Real Property and terminate on the Grantor's Real Property. Water shall be permitted to flow through the storm drainage pipeline, catch basins, and appurtenances thereof in the Easement Area. Grantor shall not connect to or otherwise use the storm drainage facilities contemplated herein. Grantee shall have access, ingress and egress on the Easement Area for the purposes of inspection, construction, reconstruction, maintenance, repairs, and compliance with all codes, regulation or policies, which may affect said storm drainage facilities beyond the date of original construction, provided that restoration, plantings, and trail improvements (if any) are returned to as good or better condition as existed prior to disturbance. Grantee herein agrees to hold the Grantor harmless for any and all expenses, damages, costs, liabilities, or judgments directly attributable to the construction, reconstruction, repair, and maintenance of said drainage facilities on the Easement Area, except to the extent caused by Grantor. Grantor shall retain the right to use the surface of the Easement Area for restoration and trail purposes, so long as said use does not interfere with the installation, usage, repair, and maintenance of the storm drainage facilities and so long as no permanent buildings, structures, or interfering landscaping, plants, or trees are placed on said Easement Area. Grantor herein agrees to hold the Grantee harmless for any and all expenses, damages, costs, liabilities, or judgments directly attributable to the damage of said drainage facilities on the Easement Area resulting from its interference with the installation, usage, repair, and maintenance of the storm drainage facilities or damages Grantor causes to the storm drainage facilities. If any dispute arises under this Easement, it is expressly agreed that venue shall lie in King County, State of Washington and that the prevailing party in any such action shall be entitled to reasonable attorney's fees and costs as set by the court. This Easement may only be amended in a writing signed by all parties hereto, or their respective successors, heirs, or assigns, and recorded in the office of the King County Recorder, provided that it is approved by Washington State's Recreation and Conservation Office under the terms of their Deed of Right that has been recorded on the property. This Easement and the terms contained herein are not intended to be personal to the individual property owners and shall be a covenant running with the lands described herein and in the exhibits and shall be binding and enforceable at law and in equity on the successors, heirs and assigns of all parties hereto. Nothing contained herein shall be deemed to be a gift of dedication Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 17 of 17 10/21/15 of any portion of the Easement Area to the general public, for the general public, or for any public uses whatsoever. Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 18 of 18 10/21/15 EXECUTED as of this day of 6c'k,1015. GRANTOR: City of Tukwila, a municipal corporation of the State of Washington By: The norable Ji Title: ' . or of City ggerton kwila GRANTEE: Amalfi Investments L.L.C. By: Its: Date /COO Date Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 19 of 19 10/21/15 STATE OF WASHINGTON) )SS. COUNTY OF KING I certify that I know or have satisfactory evidence that Mayor Jim Haggerton is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he is authorized to execute the instrument and acknowledged it as Mayor of City of Tukwila to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: OC IQJY 39, Deis Printed name Notary Public in and for the State of Washington Residing at —riAktut <<`' My appointment expires / 1//M0 Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 20 of 20 10/21/15 STATE OF WASHINGTON) )SS COUNTY OF KING I hereby certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he is authorized to execute the instrument and acknowledged in his capacity as managing member of Amalfi Investments L.L.C., to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. Dated: Printed signature Notary Public in and for the State of Washington, residing at My appointment expires Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 21 of 21 10/21/15 EXHIBIT A TO STORMWATER DRAINAGE EASEMENT TUKWILA LEGAL DESCRIPTION [To Be Completed Prior to Recording. This is the post - closing legal description for the entire Tukwila property] Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 22 of 22 10/21/15 EXHIBIT B TO STORMWATER DRAINAGE EASEMENT AMALFI LEGAL DESCRIPTION [To Be Completed Prior to Recording. This is the post - closing legal description for the entire Amalfi property.] Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 23 of 23 10/21/15 EXHIBIT C TO STORMWATER DRAINAGE EASEMENT EASEMENT AREA LEGAL DESCRIPTION [To Be Completed Prior to Recording. This is the legal for the actual easement area.] Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 24 of 24 10/21/15 EXHIBIT D -1 TO PURCHASE AND SALE AGREEMENT (To Be Inserted in Conformance with the Boundary Line Adjustment Survey) AMALFI PROPERTY LEGAL DESCRIPTION (ENTIRE AMALFI PROPERTY FOLLOWING CLOSING) Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 25 of 25 10/21/15 EXHIBIT D -2 TO PURCHASE AND SALE AGREEMENT (To Be Inserted in Conformance with the Boundary Line Adjustment Survey) TUKWILA PROPERTY LEGAL DESCRIPTION (ENTIRE CITY OF TUKWILA PROPERTY FOLLOWING CLOSING) Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 26 of 26 10/21/15 EXHIBIT E -1 TO PURCHASE AND SALE AGREEMENT AMALFI PROPERTY LEGAL DESCRIPTION PRIOR TO CONTEMPLATED TRANSACTION AND BOUNDARY LINE ADJUSTMENTS All the portion of Government Lot 1, Section 10, Township 23 North, Range 4 East, W. M., lying North of the Duwamish River, or North of the Government Meander Line along the North Bank of said river, and West of the Westerly line of East Marginal Way; Except that portion as condemned in King County Superior Court Cause No. 469557 for transmission lines right of way; And except all county roads; And except that portion thereof described as follows: Beginning at a point on the West line of said Government Lot 1, lying South 00 °32'40" West 636.35 feet from the Northwest corner thereof; Thence South 88 °51'20" East parallel with the North line of said Government Lot 1, 208.79 feet to the True Point of Beginning; Thence North 69 °47' 10" East 514 feet, more or less, to the Westerly line of East Marginal Way; Thence South 16 °48'50" East along said Westerly line to the Duwamish River; Thence Westerly along the Duwamish River to a point which bears South 20 °12'50" East from the True Point of Beginning; Thence North 20°12'50" West to the True Point of Beginning Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 27 of 27 10/21/15 EXHIBIT E -2 TO PURCHASE AND SALE AGREEMENT TUKWILA PROPERTY LEGAL DESCRIPTION PRIOR TO CONTEMPLATED TRANSACTION AND BOUNDARY LINE ADJUSTMENTS Parcel A: That portion of Government Lot 1, Section 10, Township 23 North, Range 4 East, W. M., in King County, Washington described as follows: Commencing South 00 °32'40" West 636.35 feet from the Northwest comer of Government Lot 1; Thence South 88 °51'20" East parallel with the North line thereof 208.79 feet to the True Point of Beginning; Thence North 69 °47' 10" East 514 feet, more or less, to the Westerly line of East Marginal Way; Thence South along said line to the Duwamish River; Thence Westerly along said river to a point bearing South 20° 12'50" East from the True Point of Beginning; Thence North 20 °12'50" West to the True Point of Beginning. Except the Northerly 90 feet of the Easterly 100 feet thereof; Except the Southerly 90 feet of the Northerly 180 feet of the Easterly 100 feet thereof; And except that portion conveyed to King County by deed recorded under Recording No. 8708280481. Parcel B: The Northerly 90 feet of the Easterly 100 feet of the following: That portion of Government Lot 1, Section 10, Township 23 North, Range 4 East, W. M., in King County, Washington described as follows: Commencing South 00 °32'40" West 636.35 feet from the Northwest comer of Government Lot 1; Thence South 88 °51'20" East parallel with the North line thereof 208.79 feet to the True Point of Beginning; Thence North 69 °47' 10" East 514 feet, more or less, to the Westerly line of East Marginal Way; Thence South along said line to the Duwamish River; Thence Westerly along said river to a point bearing South 20°12'50" East from the True Point of Beginning; Thence North 20°12'50" West to the True Point of Beginning Duwamish Exchange City of Tukwila and Amalfi Inv EXCHANGE AGREEMENT 9 29 15.doc Page 28 of 28 10/21/15 INDEMNITY AGREEMENT COPY THIS INDEMNITY AGREEMENT (the "Agreement ") is entered into as of the day of , 2015 (the "Effective Date "), by and between AMALFI INVESTMENTS, L.L.C., a Washington limited liability company ( "Amalfi "), and CITY OF TUKWILA, a municipal corporation of the State of Washington ( "Tukwila "). RECITALS A. Following the consummation of the transaction in that certain Real Estate Exchange and Purchase Agreement by and between Amalfi and Tukwila dated &La 30 , 2015 (the "Exchange Agreement "), Amalfi will be the owner of the real property more fully described in Exhibit A (the "Amalfi Property ") and Tukwila will be the owner of the real property more fully described in Exhibit B (the "Tukwila Property "). Exhibit A and Exhibit B shall be attached to this Agreement upon completion of the Boundary Line Adjustment survey required by the Exchange Agreement. As part of Amalfi agreeing to enter into the Exchange Agreement and in consideration therefore, Tukwila has agreed to indemnify Amalfi from the damages and losses set forth herein. B. Tukwila has provided Amalfi with that certain Temporary and Permanent Slope Stability Evaluation, Duwamish Gardens, Tukwila, Washington Report, dated July 17, 2015, and the Duwamish Gardens Habitat Project Site Plans, dated March of 2015 (the "Reports ") to perform the work described therein on the Tukwila Property and Duwamish Gardens (the "Work "). The "Work" shall include any other related work or development on the Tukwila Property for the Duwamish Gardens and any other related work or development on any other sites, including subsequently acquired properties, related to the Duwamish Gardens. NOW THEREFORE, in consideration of their mutual covenants and other valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1. Incorporation of Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Disclaimer. Amalfi disclaims any warranty or representation that: (a) the Tukwila Property and the Amalfi Property are safe or suitable for the Work; and (b) the Reports contain accurate or complete information, including without limitation, information relating to the lateral and subjacent support for the Amalfi Property and Tukwila Property. Amalfi shall have no responsibility relating to the Reports or preparation or review thereof and the Reports shall not lessen Tukwila's obligations under Sections 3 and 4 of this Agreement. 3. Repair. If any portion of the Amalfi Property, including any improvements and/or personal property of Amalfi, suffers damage, including without limitation, any damage or instability to the lateral and subjacent support of the Amalfi Property, by reason of the Work, 1 Tukwila shall, at its own cost and expense, repair such damage or instability and restore the Amalfi Property to as good a condition as before such damage or instability occurred, subject to Amalfi granting Tukwila access to the Amalfi Property. 4. Indemnification. Tukwila and its successors and assigns in title and interest to the Tukwila Property shall indemnify, protect, defend and hold harmless Amalfi and its successors and assigns in title and interest to the Amalfi Property, and its respective officers, employees, agents, shareholders, directors, members, managers, and attorneys (collectively "the Indemnified Parties ") against any and all costs, liabilities, claims, damages, losses, and expenses, including reasonable attorney's fees, penalties, or suits to the extent resulting from injury or harm to persons or the Amalfi Property, arising out of or in any way connected with the Work or Reports and subsequent activities related to the Work, including, without limitation: (1) any release by the City or agents of the City of hazardous substances on, in, under, or about the Amalfi Property, (2) Tukwila's failure to remediate any such release according to the standards, laws and regulations as required by any governmental agency or agencies as those standards, laws and regulations may be changed, revised, or amended from time to time, (3) the negligent acts, negligent omissions, willful misconduct, or other tortious acts of Tukwila, (4) a breach of the terms and conditions of this Agreement by Tukwila, and (5) the damage or instability to the lateral and subjacent support of the Amalfi Property; provided, Tukwila's duty to indemnify shall not apply to the extent such suits, costs, liabilities, claims, damages, losses, or expenses are caused by Amalfi's negligence. Notwithstanding this indemnity, Amalfi expressly reserves all rights it may have under the law to prosecute any claims or demands against Tukwila. Tukwila's indemnification obligations shall not be limited in any way by any limitation on the amount or type of damage, compensation, or benefits payable by or for it or any contractor under any industrial insurance act, workers' compensation act, disability benefit act, or other employee benefit act, and Tukwila hereby expressly waives any immunity it may have under such acts to the extent necessary or permitted under the law to assure the validity and enforceability of the foregoing indemnification obligations. For a suit or proceeding triggering an indemnification obligation under this Section, Amalfi shall give Tukwila notice of such suit or proceeding and Tukwila shall defend Amalfi in such suit or proceeding with counsel approved by Amalfi, such approval not being unreasonably withheld. 5. Term. The term of this Agreement shall commence on the closing of the transactions contemplated in the Exchange Agreement and shall be perpetual thereafter. In the event the transactions contemplated in the Exchange Agreement fail to close, this Agreement shall be terminated. Except as provided in the preceding sentence, the provisions of Section 2 -4 shall survive any termination of this Agreement. 6. Binding Effect. This instrument shall bind and inure to the benefit and burden of the respective heirs, executors, administrators, other personal and legal representatives, grantees, successors and assigns of the parties hereto. Either party may record this Agreement in connection with the closing of the Exchange Agreement. 7. Governing Law. This instrument shall be governed by and shall be construed in accordance with the laws of the State of Washington. 2 8. Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, unless such ruling shall materially alter the economic effect of this Agreement. 9. No Waiver; Cumulative Remedies. The failure of either party to insist, in any one or more instances, or the delay in insisting, upon the performance of any provision of this Agreement or to exercise any right hereunder, does not constitute an election of remedies or waiver, and the obligations of the parties with respect to such future performance will continue in full force and effect. Except as otherwise provided herein, the remedies in this Agreement are cumulative with and not in lieu of other remedies available to a party at law or in equity. IN WITNESS WHEREOF, the parties hereto have executed this Indemnity Agreement effective as of the date first above written. AMALFI: Amalfi Investments, L.L.C., a Washington limited liability company By: Its: TUKWILA: City of Tukwila, a municipal corporation of the State of Washington By: Th- onorable Ji Title: or of City erton wila 3 EXHIBIT A TO INDEMNITY AGREEMENT (To Be Inserted in Conformance with the Boundary Line Adjustment Survey) AMALFI PROPERTY LEGAL DESCRIPTION (ENTIRE AMALFI PROPERTY FOLLOWING CLOSING) EXHIBIT B TO INDEMNITYAGREEMENT (To Be Inserted in Conformance with the Boundary Line Adjustment Survey) TUKWILA PROPERTY LEGAL DESCRIPTION (ENTIRE CITY OF TUKWILA PROPERTY FOLLOWING CLOSING)