2010/08/04 Council Agenda Packet

DRAFT Dft:AF T 2) Unless earlier terminated in accordance with Section 4.b.I above, the Purchase Money Promissory Note,the Purchase Money Deed of Trust, and all Purchase Money Guarantees terminate effective upon the first day after substantial completion of the Project on which City Parkers are able to use the forty-eight(48)parking spaces in accordance with the City Parking Easement. c. Property Restriction. The City Parking Easement must contain a covenant that perpetually prohibits the construction of any structure on the Property unless the Property immediately after the completion of any such structure contains forty-eight (48) parking spaces for the use of City Parkers in accordance with the City Parking Easement. This covenant, which is part of the City Parking Easement, terminates if the City Parking Easement terminates in accordance with Section 4.a.5 above. 5. Tie-Back Easement. Purchaser and Seller hereby agree that at Closing Seller shall grant a temporary tie-back easement to Purchaser for shoring walls under the existing, adjacent building to the south of the Property and under Colby Avenue, Wall Street,and the alley on the east side of the Property (the"Tie-Back Easement"). The parties acknowledge and agree that the Tie-Back Easement shall be of sufficient area to provide support for the below grade development of Purchaser's Project and that such Tie-Back Easement area may encumber the property owned by City on east side of alley. The form of the Tie-Back Easement shall be mutually agreeable and shall be determined prior to the expiration of the Project Approvals Period. The Tie-Back Easement shall be appurtenant to the Property and shall automatically terminate upon the substantial completion of Purchaser's Project. 6. Joint Escrow Instructions. The following is hereby added as Section 10.g of the Agreement, as a condition of Closing: Joint Escrow Instructions. Purchaser and Seller shall execute and deliver to Title Company joint escrow instructions (the "Joint Escrow Instructions"). The Joint Escrow Instructions must set forth, among other things, the priorities of all instruments to be recorded at Closing. The form of the Joint Escrow Instructions shall be mutually agreeable and shall be determined prior to the expiration of the Project Approvals Period. However, the Joint Escrow Instructions must provide that the Project Construction Covenant and the City Parking Easement will be recorded so that they are senior in priority to all other documents recorded at Closing except the Deed. The Joint Escrow Instructions must also provide that Purchase Money Deed of Trust will be recorded so that it is senior in priority to all other documents recorded at Closing except the Deed,the Project Construction Covenant, and the City Parking Easement; provided, that the Purchase Money Deed of Trust may be recorded immediately after the EB-S Deed of Trust if the Purchase Money Deed of Trust is subordinated to the EB-5 Deed of Trust in accordance with Section 2.a of this Agreement. 5 DRAFT DRAFT