2010/08/04 Council Agenda Packet

Modification Request by the City is effective unless signed by the Mayor of the City, except that the City shall be deemed to have approved a Material Modification Request unless City delivers a notice of disapproval containing reasons therefor in writing to Developer within fifteen (15) business days after delivery of the Material Modification Request. Without limiting the other instances in which it may be reasonable for the City to withhold its approval to a Material Modification Request, Developer and the City acknowledge and agree that it shall be deemed reasonable for the City to withhold its approval if(i)the Material Modification would cause the Project to become inconsistent with the Project Design Criteria, the Marriott Franchise Agreement, or any City-Developer Agreement, (ii)there exist uncured Event(s) of Default, or (iii) if the Marriott Franchise Agreement is terminated, the Material Modification would be inconsistent with the use of the Property for a hotel of equal or greater quality than a Courtyards by Marriott. Developer shall, upon receipt of a notice of disapproval, modify the Material Modification Request, taking into account such objections, and promptly resubmit it to City for approval. Such process of submittal, review, comment and re-submittal by Developer shall continue until such time as the Material Modification Request has been approved by City or Developer determines to no longer seek approval. Upon approval of a Material Modification, such approved Material Modification will be deemed included in the Approved Plans and Specs. 5.4.4 Non-Material Modifications. Nothing contained in this Section 5.4 shall prohibit or restrict the Developer, in its sole discretion but subject to all Legal Requirements, from making any modifications to the Approved Plans and Specs that are not Material Modifications. The Developer shall not be required to obtain the City's approval for such modifications under Section 5.4 of this Covenant. 5.5 Governmental Approvals. The Developer shall apply, at its sole cost, to the appropriate Governmental Authorities or third parties for, and shall diligently pursue and obtain, all permits, licenses, permissions, consents or approvals required in connection with the construction of the Improvements. The City will reasonably cooperate with Developer to obtain all such permits, licenses, permissions, consents and approvals, but without liability, cost, or expense to the City, excepting the No Further Action letter from the Department of Ecology that the City shall obtain pursuant to Section 5.3.2 above. 5.6 Purchase Option Prior to Project Construction Start Date. If(a)Developer fails, subject to Force Majeure, to commence construction by the Project Construction Start Date or (b) an Event of Default occurs prior to the Project Construction Start Date and is continuing as of the date of the exercise of this option, then the City shall have the option to require Developer to reconvey the Property to the City. In order to exercise such option, the City shall deliver to Developer written notice of exercise no later than one hundred and twenty (120) days after the Project Construction Start Date. Any such reconveyance shall close no later than ten (10) business days after the delivery of such notice of exercise. At such reconveyance closing (i)the City shall void the Purchase Money Promissory Note, Purchase Money Deed of Trust, and any guarantees of the Purchase Money Promissory Note and deliver such voided agreements and instruments to Developer as payment-in-full for the Property, (ii)Developer shall pay all excise taxes associated with such reconveyance, (iii)Developer shall deliver for recording a fully executed and acknowledged deed conveying all Developer's right, title, and interest in the Property to the City in the same form as the deed that conveyed the Property to the Developer from the City, (iv)Developer shall convey title to the Property without any encumbrances except -10- 51083924J