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Home My WebLink AboutAD04-048 - Amendment - #1 - Kent Station, LLC - Addendum One to Real Estate Purchase and Sale Agreement - 01/20/2004 AW Records M e me KENT Document WASHINGTON CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to City Clerks Office. All portions are to be completed, if you have questions, please contact Mary Simmons, City Clerks Office. 1 Vendor Name: Contract Number: q S " 00 01_ This is assigned by Mary Simmons Vendor Number: Project Name:- Contract Effective Date: Contract Termination Date: Contract Renewal Notice (Days): Number of days required notice for termination or renewal or amendment NW!W& " /C."I., Contract Manager: 1/1 lid 4f-1 Ur Department: VLCJ Abstract: XDCL7832 07/02 ADDENDUM ONE TO REAL ESTATE PURCHASE AND SALE AGREEMENT THIS ADDENDUM ONE between the CITY OF KENT ("City") and KENT STATION, L.L.C., ("Developer) amends that certain Real Estate Purchase and Sale Agreement entered into between the City and Developer on January 20, 2004 (the "Agreement') City and Developer agree and covenant as follows: 1. Appraisal Process. Paragraph 3.1.2.2 of the Agreement, entitled "Appraisal Process," is amended as follows: 3.1.2.2 Appraisal Process. Each party shall select an MAI appraiser with at least five (5) years of experience in appraising commercial and retail properties in the South Puget Sound area. Each party shall give written notice of its selection of an appraiser to the other party within ten (10) days after the parties reach an impasse on negotiating the Remainder Property Purchase Parcel Price, or the end of fifteen (15) day period referred to in Section 3 1.2.1 above, whichever first occurs. The two appraisers shall then select a third appraiser, who shall be an independent MAI appraiser who has not previously been employed by City, Developer, any member of Developer or any affiliate of any of them, and with the same general qualifications as the first two appraisers (except as otherwise agreed to between the parties), which selection shall be made within ten (10) days after the end of the applicable ten (10) or fifteen (15) day period referred to in the preceding sentence. The three appraisers shall each independently determine the Remainder Property Purchase Parcel Price within thirty (30) days of the appointment of the third appraiser. In determining "fair market value", the parties and the appraiser(s) will consider, among other factors, site conditions and then market conditions/comparables as well as the entitlements and constraints associated with the PAO, the MPD and the Development Agreement; however, regarding the Replacement Parking Facility addressed in Section 17.14, the parties and appraiser(s) will not consider any diminution in value attributed to the proposed construction or existence of the Replacement Parking Facility, but will consider any increase in value attributed to the actual construction or existence of the Replacement Parking Facility. The appraisers shall arrange for a simultaneous exchange of their determination of the Remainder Property Purchase Parcel Price to all three appraisers. The appraisers shall thereupon meet and attempt to resolve any discrepancy among the three appraisals, but in the event the appraisers have not reached agreement on the Remainder Property Purchase Parcel Price within ten (10) days thereafter, the third appraiser shall proceed to determine the Remainder Property Purchase Parcel Price. The third appraiser may select either purchase price proposed by the first two appraisers, or any modification of either or may select its own determination, or any modification thereof, as the Remainder Property Purchase Parcel Price The decision of the third appraiser shall be binding on Developer and the City. Each party ADDENDUM ONE TO REAL ESTATE PURCHASE AND SALE AGREEMENT- 1 (Apnl21, 2004) shall pay the costs and expenses of the appraiser selected by that party, and shall split equally the costs and fees of the third appraiser. 2. Sound Transit Parking Fees. Paragraph 17.14 of the Agreement, entitled "Sound Transit Parking Fees," is amended as follows: 17.14 Sound Transit Parking Fees. If Sound Transit commences charging non-transit riders for parking after 12:00 noon in the Sound Transit Parking Garage at any time within 40 years from the Initial Takedown Parcel closing date, the City will provide a voucher system to allow cinema patrons up to three and one-half hours of free parking in the Sound Transit Parking Garage. In the alternative, and at the City's sole option, the City may provide an equal number of public parking spaces, not to exceed 680 spaces, within the boundaries of the PAO south of James Street and north of Smith Street (the "Replacement Parking Facility" of "RPF") which will also allow cinema patrons up to three and one-half hours of free parking Under this circumstance, the City will provide a voucher system until such time as the RPF is open. 17.14.1 If the City elects to construct a Replacement Parking Facility, the Developer will provide the City developable land in an amount sufficient to construct the Replacement Parking Facility in the location, of the size, and in the configuration designated by example on Exhibit A (the "RPF Land"), which is attached and incorporated to this Addendum. The design and final location and configuration of the RPF shall be mutually determined by the Developer and City, both exercising good faith and reasonableness, and otherwise subject to applicable laws, rules and ordinances. The Developer will provide the City fee title to the RPF Land free of charge by Statutory Warranty Deed, free and clear of all liens and encumbrances (other than real property taxes and assessments not yet due and payable), and will further indemnify the City from or take the necessary steps to insure that any Hazardous Substances, wastes or contaminants, placed in, on, about, within or under the Property or any subsurface strata or groundwater occurring on the RPF Land after the date Developer purchased it from the City shall be removed or remediated to the extent necessary to facilitate the construction of the RPF. Additionally, the Developer will provide the City with all access, utility, and temporary construction easements required by the City to construct and provide the Replacement Parking Facility. If the RPF Land contains existing surface parking stalls, the City will also provide an equal number of parking spaces to replace those existing surface parking stalls (the "Replacement Stalls") until such time as the RPF is open. The City will provide Replacement Stalls either (a) at a location on the Real Property (if it is undeveloped) reasonably acceptable to the Developer, or(b) elsewhere within or adjacent to the boundaries of the PAO. Finally, if the Developer does not transfer the RPF Land and easements to the City within ninety (90) days of the date that Sound Transit commences charging non-transit riders for parking after 12:00 noon in the Sound Transit Parking Garage, then the City's obligations under this section 17.14 will automatically terminate and be of no further force or effect. . ADDENDUM ONE TO REAL ESTATE PURCHASE AND SALE AGREEMENT-2 (Apnl 21, 2004) At closing, a covenant or other deed restriction will be recorded against the Parcel or Parcels shown in Exhibit A requiring that the Developer or any subsequent owner must provide the City fee title to the RPF Land free of charge if the City constructs a RPF pursuant to this Section. 17.14.2 In addition to the City's termination rights established in section 17.14.1, the City's responsibility to provide a voucher system or the Replacement Parking Facility shall automatically terminate upon the earlier of: (a) the termination of the cinema tenant lease in accordance with its terms, whether upon expiration of the term thereof, as a result of a default thereunder by tenant or otherwise, unless Developer leases the cinema to another cinema operator within 365 days from the termination of the earlier cinema lease; or (b) the cinema tenant ceases to operate at least a 2000 seat multiplex theatre on the Initial Takedown Parcel or is not open for business as at least a 2000 seat multiplex theatre for a period of more than 365 days (other than by reasons of Force Majeure). 17.14.3 If the City provides alternate parking pursuant to this Section 17.14, then in such event, Developer's obligation to pay for the operation and maintenance costs of the Sound Transit Parking Garage shall cease, and the Developer shall be responsible for paying the operations and maintenance costs of the Replacement Parking Facility. In addition, if at any time Developer believes that the operation and maintenance costs charged by Sound Transit for the Sound Transit Garage are unreasonable, Developer shall so inform the City and the City agrees to make good faith efforts to pursue the unreasonableness of the charges with Sound Transit to seek a reimbursement of the unreasonable fees. 3. Entire Agreement. Except as amended by this addendum, all provisions of the Agreement shall remain in full force and effect except as specifically modified by this Addendum One. 4. Counterparts. This Addendum One may be executed by counterparts and be valid as if each authorized representative had signed the original document. IN WITNESS WHEREOF, the parties hereto have executed this Addendum One, which shall take effect on the last date signed below. CITY: DEVELOPER: City of K t Kent Station, L.L.C. By: rPddnt G... ?�/, Print N e: Jim hite me: Joe Blattner Its: Ma or M na er Date: �S`-�-0 ate: Z � ADDENDUM ONE TO REAL ESTATE PURCHASE AND SALE AGREEMENT-3 (April 21, 2004) Approved as to Form: Print Name: Tom Brubaker Its: City Attomey Date: !V1,6 104 ADDENDUM ONE TO REAL ESTATE PURCHASE AND SALE AGREEMENT-4 (Apnl 21, 2004) RETAIL / "A/ � 3i�3I�SF ! d / \, /' \ \\ Ioacca/ 1 v ROP\OF UP ,/, _ __ .7Rd LEVEL - — (RETAIL ' I #1A I 1 ' I 16.iK 8q I ' I � _ I KING I I —STRUCTURE - — -— - FF10E/ EVEL) GRCC LOODY STAL7 II II II II I1.7K SIX RETAILF 1 #1B I' 1.2K Sg ' _ L I Ij — — — — — — — --- -- -—-— — T —- - — --- — I (OFFICE/1 I I RETAIL GRGC I'I 1 I#IB 8 SK SFL L — j6S.2KS1 I — NL I I - ------- ------------ -, I � � 36 STALL — II EXHIBIT "A" April 15, 2004 n VIA FACSIMILE AND MAIL TARRAGON City of Kent 220 Fourth Avenue Kent, WA 98030 Attn: City Clerk With a copy to: City of Kent 220 Fourth Avenue Kent, WA 98030 Attn: Tom Brubaker, City Attorney ---RE--- Kent Station RealYs tate—Purchase and Sale Agreement Dear City Clerk&Mr. Brubaker: In regards to that certain Real Estate Purchase and Sale Agreement dated January 20, 2004 (the "Agreement"), this letter is to inform you that the undersigned hereby waives the feasibility conditions under Section 3.2.3 of the Agreement except for (a) final approval of the Governmental Approvals as defined in the Agreement, (b) obtaining leasing and/or sale commitments of not less than 75,000 square feet of retail and office uses as described in the Agreement, and (c) resolution by the City of Kent with the Department of Ecology of the requirement for future testing of methanol in the groundwater. The First Earnest Money Deposit (as defined in the Agreement) shall be converted to cash and deposited into escrow today. Very truly yours, KENT STATION LLC, a Washington limited liability company By: Tarragon L.L.C.,a Washington limited liability company, its Manager Dennis L. Rattie Its: Vice President cc: Nathan Torgelson David Blanchard Jim Reinhardson Diane Stokke Anne Lawler Sue Stevens (all via fax and mail) 1415 Western Ave,Suite 505 Seattle,WA 98101 206 233 9600 P 206 233 0260 F www tarraganllc.com