2010/08/04 Council Agenda Packet

DRAFT DRAFT of trust in connection with the EB-5 Immigrant Investor Program (the "EB-5 Deed of Trust") if (a) the Purchase Money Promissory Note is jointly and severally guaranteed by Douglas O. Howe, James D. O'Hanlon, and Shawn R. Parry (the "Purchase Money Guarantees"), (b) if at Closing Touchstone provides evidence reasonably acceptable to the City demonstrating that Touchstone is not permitted to draw on the loan secured by the EB-5 Deed of Trust unless Touchstone has previously spent at least six million dollars ($6,000,000) on the Project, and (c) such subordination does not substantively deprive Seller of rights to demand payment under the Purchase Money Note or the Purchase Money Guarantees or of rights to foreclose the Purchase Money Deed of Trust. The forms of'the Purchase Money Promissory Note, Purchase Money Deed of Trust, and Purchase Money Guarantees shall be mutually agreeable and shall be determined prior to the expiration of the Project Approvals Period. 2. Colby Avenue Easement under Colby Avenue Right of Way. The City will allow a portion of the underground parking garage constructed as part of Purchaser's Project to extend into the right of way at Colby Avenue, as shown on the approved schematic plan of the Purchaser's Project that is attached hereto as Exhibit A. At Closing, Seller shall grant to Purchaser an easement for the underground parking garage (the "Colby Avenue Easement"), the form of which Colby Avenue Easement shall be mutually agreeable and shall be determined prior to the expiration of the Project Approvals Period. Purchaser acknowledges that form of Colby Avenue Easement must contain provisions that, in the reasonable discretion of Seller, are adequate to protect the structural integrity of the Colby Avenue right of way. The Colby Avenue Easement shall be appurtenant to the Property and shall provide that in the event that the Purchaser's Project is demolished, the Colby Avenue Easement shall automatically terminate. Seller hereby agrees to waive the City of Everett fee associated with the Colby Avenue Easement within the Colby Avenue right of way. 3. Proiect Construction Covenant. Seller and Purchaser shall execute and deliver to the Title Company for recording at Closing a covenant substantially in the form as that attached hereto as Exhibit B (the "Project Construction Covenant"). The execution, delivery, and recording of the Project Construction Covenant shall satisfy the Project Construction Covenant requirements set forth in Sections 3.e and 3.f of the Agreement. 4. Lily Parking Easement. At Closing, Purchaser shall grant and deliver for recording a parking easement and covenant to the Seller for use by Seller, Seller's employees, and Seller's other designees of forty-eight (48) undesignated individual, non-tandem parking spaces within the parking garage that will be developed as a part of the Project (such easement, the "City Parking Easement"; such garage, the "Project Garage"; such users of the 48 undesignated spaces, "City Parkers"). a. Form of City Parking Easement. The form of the City Parking Easement shall be mutually agreeable and shall be determined prior to the expiration of the Project Approvals Period. The City Parking Easement shall be an encumbrance against the Property that runs with the land. The City Parking Easement shall state that it is not extinguished or otherwise terminated in any way by any foreclosure, trustee sale, deed-in-lieu of foreclosure or transfer of 2 DRAFT DRAFT