HomeMy WebLinkAboutCAG2024-026 - Original - Chandlers Bay Garden LP, et al, - Mill Creek Reestablishment Project - 01/22/2024 FOR CITY OF KENT OFFICIAL USE ONLY
Sup/Mgr:
Agreement Routing Form DirAsst:
• For Approvals,Signatures and Records Management Dir/Dep:
KENT This form combines&replaces the Request for Mayor's Signature and Contract Cover (optional)
WASHINGTON Sheet forms. (Print on pink or cherry colored paper)
Originator: Department:
Cheryl Rolcik-Wilcox Public Works
Date Sent: Date Required:
> 01/18/2024 01/22/2024
QAuthorized to Sign: Date of Council Approval:
Q �✓ Mayor or Designee N/A
Budget Account Number: Grant? Yes NoF-]
Budget? Yes Type: N/A
Vendor Name: Category: PIP
Chandlers Bay Garden LP, et al. Purchase/Sale
Vendor Number: Sub-Category:
Original
0
Project Name: Mill Creek Reestablishment Project
cProject Details: Acquisition of easement from Chandlers Bay
c
40
c
(11.111 Agreement Amount: $65 00Q
Basis for Selection of Contractor:
Er *Memo to Mayor must be attached
i Start Date: Termination Date:
a Local Business? Yes F]No*If meets requirements per KCC 3.70.100,please complete"Vendor Purchase-Local Exceptions"form on Cityspace.
Business License Verification: ❑Yes In-Process F1 Exempt(KCC 5.01.045) FlAuthorized Signer Verified
Notice required prior to disclosure? Contract Number:
Yes ✓❑No CAG2024-026
Comments:
Mayor Ralph - Please sign the where indicated on the 10th page of this
packet. Please also initial each page on the bottom left next to "City
c Initials". Thank you! N Cheryl
3 0
a
Date Received:City Attorney: 1/18/24 Date Routed:Mayor's Office 1/22/24 City Clerk's Office 1/22/24
adccW22373_7_20 Visit Documents.KentWA.gov to obtain copies of all agreements
rev.20221201
EASEMENT AGREEMENT
This Easement Agreement ('Agreement") is entered between the CITY OF
KENT, a Washington municipal corporation ("City"), whose mailing address is 220 4t"
Avenue South, Kent, Washington 98032-5895, and CHANDLERS BAY GARDENS,
LP, a Delaware limited partnership, as to an undivided 87.712347% interest, LFT
CHANDLERS BAY, LLC, a Delaware limited liability company, as to an undivided
3.610863% interest, and GS CHANDLERS BAY, LLC, a Delaware limited liability
company, as to an undivided 8.676790% interest, as tenants in common (collectively,
"Chandlers Bay"), whose mailing address is 999 Waterside Drive, Ste. 2300, Norfolk,
VA 23510, for the sale and purchase of a Storm Drainage Channel and Access
Easement as follows:
1. EASEMENT. The Storm Drainage Channel and Access Easement is
located on a portion of King County Tax Parcel Number 182205-9363, approximately
28,448 square feet in size, located at 1020 Central Ave. N., Kent, WA, 98032 (the
"Easement" or "Easement Area"). The Easement Area is legally described in Exhibit
"A" and depicted in Exhibit "B".
2. EARNEST MONEY. Within 10 business days of mutual acceptance of
this Agreement, City shall deposit with First American Title Insurance Company (the
"Escrow Agent"), the sum of Five Thousand Dollars and NO/100ths ($5,000.00) in
the form of a check or by wire transfer, as fully refundable earnest money ("Earnest
Money") to be applied toward the purchase price of the Easement. If this Agreement
is terminated for any reason, other than a default by the City hereunder, the Earnest
Money shall be returned to City in full within 5 business days of termination.
3. PURCHASE PRICE. The total purchase price for the Easement is Sixty-
Five Thousand Dollars and NO/100ths ($65,000.00), which amount includes the
Earnest Money and $5,000.00 for attorney's fees, payable at Closing.
City Initials DR Chandlers Bay Initials CRS
Settlement Agreement Page 1 of 10
4. RELEASE OF EXISTING EASEMENT. City shall prepare and record a
release of the easement recorded on parcel Nos. 182205-9363 and 182205-9016,
recorded under King County Recording No. 7406180002 within 20 days of mutual
acceptance of this Agreement.
5. CONTINGENCIES. This Agreement is contingent upon:
a. The City authorization set forth in Section 16 and the other
contingencies provided for throughout this Agreement.
b. Chandlers Bay receiving the consent of its mortgage lender ("Chandlers
Bay Lender") to Chandlers Bay granting the Easement to the City as set forth in
Section 16.
6. CONVEYANCE OF EASEMENT. The Easement shall be conveyed by
Chandlers Bay to City at Closing by the Storm Drainage Channel and Access
Easement attached as Exhibit "C".
7. TITLE INSURANCE. At Closing, City shall cause First American Title
Insurance Company, who is also serving as Escrow Agent, to issue standard policy
of insurance to City in an amount equal to the total purchase price of the Easement.
For purposes of this Agreement, the following shall not constitute encumbrances or
defects: rights reserved in federal patents or state deeds, building or use restrictions
consistent with current zoning and utility and road easements of record. If title
cannot be made so insurable within thirty (30) days after the full execution of this
Agreement, unless City elects to waive such defects or encumbrances, this
Agreement shall terminate, and the Earnest Money shall be immediately returned to
City.
8. CLOSING COSTS AND PRO-RATIONS. The Earnest Money, and
Excise Tax, if applicable, shall be paid by City, except for those fees which are
expressly limited by federal regulations. City shall pay all recording costs, insurance
premium, the costs of any survey, and the fees and expenses of its consultants.
City Initials DR Chandlers Bay Initials CRS
Settlement Agreement Page 2 of 10
9. CLOSING OF THE TRANSACTION. WITH THE UNDERSTANDING THAT
TIME IS OF THE ESSENCE FOR THIS AGREEMENT, closing of this transaction shall
occur on or before January 31, 2024. The Mayor and the Public Works Director for
the City are authorized to extend Closing on behalf of the City for up to ten (10) days
by giving written notice to Chandlers Bay at least fifteen (15) days prior to the
scheduled closing date. On the closing date, the City will deposit, without delay, in
escrow with Escrow Agent, all instruments and monies required to complete the
transaction in accordance with this Agreement. Closing, for the purpose of this
Agreement, is defined as the date that all documents are executed, and the
Easement acquisition proceeds are available for disbursement to Chandlers Bay.
10. POSSESSION. City shall be entitled to use of the Easement Area as
provided under the terms of the Storm Drainage Channel and Access Easement on
Closing.
11. CHANDLERS BAY'S PHASE ONE ENVIRONMENTAL ASSESSMENT
REPORT. Chandlers Bay has delivered to the City a copy of its phase one
environmental assessment report dated July 9, 2021, and prepared by Partner
Engineering and Science, Inc.
12. DEFAULT AND ATTORNEY'S FEES.
a. Event of Default and Cure. The failure of either party to comply with
any material provision of this agreement shall constitute an event of default. Either
party may cure an event of default by taking sufficient remedial action and sending
written notice of such action to the other party within 10 days of receiving written
notice of a material breach.
b. City's Default. If City defaults, Chandlers Bay's sole remedy shall be
limited to damages against City in the liquidated amount of the Earnest Money
previously paid by the City. City and Chandlers Bay intend that this amount
constitutes liquidated damages and so as to avoid other costs and expenses to either
City Initials DR Chandlers Bay Initials CRS
Settlement Agreement Page 3 of 10
party in connection with potential litigation on account of City's default. City and
Chandlers Bay believe this amount to be a fair estimate of actual damages.
C. Chandlers Bay's Default. If Chandlers Bay defaults, the City's sole
remedy shall be limited to damages against Chandlers Bay in the liquidated amount
of the Earnest Money. Chandlers Bay and the City intend that this amount constitutes
liquidated damages and so as to avoid other costs and expenses to either party in
connection with potential litigation on account of Chandlers Bay's default. Chandlers
Bay and the City believe this amount to be a fair estimate of actual damages.
d. Attorney's Fees and Costs. In the event of litigation to enforce any of
the terms or provisions herein, each party shall pay all its own costs and attorney's
fees pursuant to Section 18.
13. NOTICE TO CHANDLERS BAY. This form contains provisions for an
agreement for the purchase and sale of real estate. City makes no warranty or
representation of any kind that this form, or any of its provisions, is intended to meet
the factual and legal requirements of a particular transaction, or that it accurately
reflects the laws of the State of Washington at the time Chandlers Bay enters into
the Agreement. THIS AGREEMENT HAS SIGNIFICANT LEGAL AND FINANCIAL
CONSEQUENCES. CHANDLERS BAY IS ADVISED TO SEEK INDEPENDENT LEGAL AND
FINANCIAL COUNSEL REGARDING THESE CONSEQUENCES.
14. NON-MERGER. The terms, conditions, and provisions of this
Agreement shall not be deemed merged into the easement and shall survive the
Closing and continue in full force and effect.
15. NOTICES. All notices required or permitted to be given under this
Agreement shall be in writing and shall be sent U.S. certified mail, return receipt
requested, or by facsimile transmission addressed as set forth below:
City Initials Chandlers Bay Initials CRS
Settlement Agreement Page 4 of 10
(a) All notices to be given to City shall be addressed as follows:
City of Kent
Attn: Cheryl Rolcik-Wilcox
Property &Acquisition Analyst
220 Fourth Avenue South
Kent, WA 98032
CRolci k-W i Icox(-a KentWA.gov
Fax: 253-856-6500
And to:
City of Kent
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
CityClerk@ KentWA.gov
Fax: 253-856-6725
(b) All notices to be given to Chandlers Bay shall be addressed as follows:
Chandlers Bay Gardens, LP, et al.
c/o Harbor Group International, LLC
999 Waterside Drive, Suite 2300
Norfolk, VA 23510
(c) All notices to be given to Escrow Agent shall be addressed as follows:
First American Title and Escrow
Attn: Laura Johnson, NCS Senior Commercial Closer
920 5th Avenue, Ste. 1200
Seattle, WA 98104
LHJohnson@firstam.com
Phone: (206) 615-3276
Either party may, by written notice to the other, designate another address for the
giving of notices as necessary. All notices will be deemed given on the day such notice
is personally served, or on the date of the facsimile transmission, or on the third day
following the day such notice is mailed in accordance with this Section 15.
City Initials_ Chandlers Bay Initials CRS
Settlement Agreement Page 5 of 10
16. CITY COUNCIL ACTION AND CHANDLERS BAY LENDER.
a. Chandlers Bay's and the City's Waiver. Chandlers Bay expressly
waives any claim against the City and its elected officials, officers, employees,
representative and agents for any burden, expense or loss which Chandlers Bay
incurs as a result of the City Council's failure to grant the Council Authorization. The
City expressly waives any claim against Chandlers Bay and its officers, employees,
representative and agents for any burden, expense or loss which the City incurs as a
result of Chandlers Bay's failure to obtain the Lender Consent.
City Initials DR Chandlers Bay Initials CRS
Settlement Agreement Page 6 of 10
17. ENTIRE AGREEMENT. This Agreement, including all incorporated
exhibits, constitutes the full understanding between Chandlers Bay and City. There
have been no oral or other agreements that modify this Agreement.
18. RESOLUTION OF DISPUTES AND GOVERNING LAW. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Washington. If the parties are unable to settle any dispute, difference or
claim arising from the parties' performance of this Agreement, the exclusive means
of resolving that dispute, difference or claim, shall only be by filing suit exclusively
under the venue, rules and jurisdiction of the King County Superior Court, King
County, Washington, unless the parties agree in writing to an alternative dispute
resolution process. In any claim or lawsuit for damages arising from the parties'
performance of this Agreement, each party shall pay all its legal costs and attorney's
fees incurred in defending or bringing such claim or lawsuit, including all appeals, in
addition to any other recovery or award provided by law.
19. MODIFICATION AND AMENDMENT. No waiver, alteration, or
modification of any provisions of this Agreement shall be binding unless in writing
and signed by a duly authorized representative of the City and the Chandlers Bay.
20. BINDING EFFECT AND SURVIVAL. This Agreement shall be binding
upon the parties and their respective heirs, successors and assigns; and the terms,
conditions and provisions of this Agreement shall survive the Closing of this
transaction.
21. FORCE MAJEURE. Performance by Chandlers Bay or City of their
obligations under this Agreement shall be extended by the period of delay caused by
force majeure. Force majeure is war, natural catastrophe, strikes, walkouts or other
labor disturbance, order of any government, court or regulatory body having
jurisdiction, or any similar cause beyond the reasonable control of the party who is
obligated to render performance.
City Initials--alL-- Chandlers Bay Initials CRS
Settlement Agreement Page 7 of 10
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, and all of which will together
constitute this one Agreement. Further, upon executing this Agreement, either party
may deliver the signature page to the other by fax or email and that signature shall
have the same force and effect as if the Agreement bearing the original signature
was received in person.
23. DATE OF MUTUAL ACCEPTANCE. For the purposes of this Agreement,
the date of mutual acceptance shall be the last date on which the parties to this
Agreement have executed this Agreement as indicated below.
City Initials—J21L— Chandlers Bay Initials CRS
Settlement Agreement Page 8 of 10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date set forth below.
CITY OF KENT
Name: Dana Ralph
Title: Mayor
Dated: 01/22/2024
City Initials Chandlers Bay Initials CRS
Settlement Agreement Page 9 of 10
CHANDLERS BAY GARDENS, LP,
a Delaware limited partnership
By: Chandlers Bay Gardens Managing Co. GP, LLC,
a Delaware limited liability company,
its General
Partner
Carla R. Stoner
Chief Financial Officer
Dated: December 21, 2023
LFT CHANDLERS BAY, LLC,
a Delaware limited liability company
By: LFT Chandlers Bay Managing Co., LLC,
a Delaware limited liability company,
its Man/ager
B ( Awl",
Y•
Carla R. Stoner
Chief Financial Officer
Dated: December 21, 2023
GS CHANDLERS BAY, LLC,
a Delaware limited liability company
By: GS Chandlers Bay Managing Co., LLC,
a Delaware limited liability company,
its ManaQer
l
By:
Carla R. Stoner
Chief Financial Officer
Dated: December 21, 2023
City Initials DR Chandlers Bay Initials CRS
Settlement Agreement Page 10 of 10
EXHIBIT—A
TAX LOT 1822059363
EASEMENT AQUISITION
THAT PORTION OF LOT 2, BAY CLUB SHORT PLAT 88-15, AS RECORDED UNDER
RECORDING NUMBER 8905100681, LOCATED IN THE SOUTHWEST QUARTER OF
SECTION 18, TOWNSHIP 22 NORTH, RANGE 5 EAST, W.M., IN KING COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 2, SAID POINT ALSO BEING
THE SOUTHWEST CORNER OF GOVERNMENT LOT 3 OF SAID SECTION 18; THENCE
ALONG THE WEST LINE OF SAID LOT 2 AND WEST LINE OF GOVERNMENT LOT 3,
N01 032'42"E 211.28 FEET; THENCE SOUTHEASTERLY TO A POINT ON THE SOUTH LINE
OF SAID LOT 2, SAID SOUTH LINE ALSO BEING THE SOUTH LINE OF SAID
GOVERNMENT LOT 3, SAID POINT LIES N89055'37"E 276.69 FEET FROM THE POINT OF
BEGINNING; THENCE ALONG SAID SOUTH LINE OF SAID LOT 2 AND GOVERNMENT LOT
3, S89055'37"W 276.69 FEET TO THE POINT OF BEGINNING, CONTAINING 28,448
SQUARE FEET, MORE OR LESS.
'saaaaa la aal//i.e
oo•''• EE 'N `''`•••,
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�—WEST LINE LOT 2, BAY CLUB SHORT
PLAT,ALSO WEST LINE
GOVERNMENT LOT 3
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°' 28,448 SO. FT.0 SOUTH LINE LOT 2, BAY CLUB
Z SHORT PLAT,ALSO SOUTH LINE
GOVERNMENT LOT 3
S89°55'37"W-276.69'
POINT OF BEGINNING--
SOUTHWEST CORNER LOT 2, BAY
CLUB SHORT PLAT,ALSO
SOUTHWEST CORNER
GOVERNMENT LOT 3 g ob0`Z3
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IMPORTANT:
THIS IS NOT A SURVEY. IT IS
FURNISHED AS A CONVENIENCE
TO LOCATE THE LAND CHANDLER'S BAY
INDICATED HEREON WITH
REFERENCE TO STREETS AND PORTION OF THE SW 1/4 EASEMENT ACQUISITION
OTHER LAND. NO LIABILITY IS OF SEC 18,TOWNSHIP 22 N, KENT DRAWN BY: TLM
ASSUMED BY REASON OF RANGE 5 E,W.M. WASMIMOTOM EXHIBIT
RELIANCE HEREON. CITY OF KENT SCALE: 1"=100' B
LAND SURVEY SECTION I DATE: 4/10/2023
WHEN RECORDED RETURN TO:
City of Kent
220 Fourth Avenue South
Kent, Washington 98032
Attn: City Clerk
Grantor: Chandlers Bay Gardens LP
Grantee: City of Kent
Abbreviated Legal Description: Ptn. NE 1/4 SE 1/4 13-22-4E
Additional Legal Description on Exhibit A to Document.
Assessor's Tax Parcel ID No. 182205-9363 STR: SE 13-22-4
Project Name: Mill Creek Reestablishment
Project Number: 13-3002
STORM DRAINAGE CHANNEL AND
ACCESS EASEMENT
THIS INSTRUMENT made this day of 2023, by
and between (collectively "Grantor"), and CITY OF KENT, a Washington municipal
corporation of King County, ("Grantee" or "City"):
Chandlers Bay Garden LP, a Delaware limited partnership, as to an Undivided
87.712347% Interest, LFT Chandlers Bay, LLC, a Delaware limited liability
company, as to an Undivided 3.610863% Interest, and GS Chandlers Bay, LLC, a
Delaware limited liability company, as to an Undivided 8.676790% interest
(collectively "Grantor") for and in consideration of Ten Dollars and No/100
($10.00) and/or other valuable consideration, receipt of which is hereby
acknowledged, grants to Grantee, its successors and/or assigns, a perpetual,
nonexclusive storm drainage channel easement under, over, through and across
the property situated in King County, Washington, specifically described in Exhibit
"A" and graphically depicted in Exhibit '"B", both of which are attached and
Storm Drainage Channel and Access Easement Page 1
incorporated herein (the "Easement Area"). The Grantor agrees that this easement
touches and concerns the land described in Exhibit A, and that this easement shall
run with the land.
City shall have the right at all times, without prior institution of suit or
proceeding at law, to enter the Easement Area and access immediate adjacent
areas with the necessary equipment and personnel for the purpose of inspecting,
maintaining, improving, repairing, constructing, rerouting and reconstructing the
storm drainage channel and surrounding lands to control surface water, erosion,
maintenance of slope stability, visual and auditory buffering, protection of water
quality, plant ecology and wildlife habitat. City shall provide at least 24 hours prior
notice to Grantor, except in the event of an emergency, and shall make best efforts
to limit its non-emergency access to the Easement Area to normal working hours,
Monday through Friday.
When exercising its rights under this easement, City will avoid damaging any
private improvements existing within or adjacent to the Easement Area and City will
restore private improvements damaged by Grantee's actions to as good condition
as they were immediately before the Easement Area was entered upon by the City.
City shall have no obligations of restoration beyond those stated here.
The Grantor agrees not to interfere with City's rights under this easement.
Interference includes but is not limited to any obstructions that would impede the
City's ingress and egress or access to the Easement Area or physically modifying
the Easement Area preventing proper use of the storm drainage channel and the
Easement Area.
GRANTOR:
Chandlers Bay Gardens LP
By:
Title:
Date:
(Notary Acknowledgement on Next Page)
Storm Drainage Channel and Access Easement Page 2
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person
acknowledged that (he/she) signed this instrument, on oath stated that (he/she) was
authorized to execute the instrument and acknowledged it as the
of CHANDLERS BAY GARDEN LP to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
Dated:
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
(Signature)
NOTARY PUBLIC, in and for the State
of Washington, residing at
My appointment expires
Storm Drainage Channel and Access Easement Page 3