Loading...
HomeMy WebLinkAboutCAG2024-252 - Original - Boeing Employees Credit Union (BECU) - Centerpoint Building Feasibility Review - 05/24/2024 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: Kurt Hanson ECD Date Sent: Date Required: c 05/24/2024 05/24/2024 Q Mayor or Designee to Sign. Date of Council Approval: Q Interlocal Agreement Uploaded to Website N/A Budget Account Number: Grant? Yes NoF-] Budget?Dyes Type: N/A Vendor Name: Category: Boeing Employees Credit Union (BECU) License Vendor Number: Sub-Category: Original 0 Project Name: Centerpoint Building Feasibility Review 3- Project Details: 0 License agreement that allows for feasibility review of a building at Centerpoint for possible purchase by the City 40 c (11.111 Agreement Amount• N/A Basis for Selection of Contractor: *Memo to Mayor must be attached Start Date: 05/24/2024 Termination Date: 9/6/2024 unless extended 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 CAG2024-252 Comments: —M& OK to sign, TW, 5/24/2024. 0 � c - IM in = 3 0 N a 1 - M I A Date Received:City Attorney: 5/24/24 Date Routed:Mayor's Office 5/24/24 City Clerk's Office 5/28/24 adccW22373_7_20 Visit Documents.KentWA.gov to obtain copies of all agreements rev.20221201 DocuSign Envelope ID:C3395AE2-36434CFE-9526-C11 F78EFA774 LIMITED ACCESS AGREEMENT THIS LIMITED ACCESS AGREEMENT (this "Agreement") is entered into effective as of the later of the signature dates shown below (the "Effective Date"), by and between the City of Kent,a Washington state municipal corporation("Potential Purchaser")and Boeing Employees' Credit Union, a Washington state credit union("Seller"). RECITALS: A. Seller is the owner of property located at 20610 68th Avenue South, Kent Washington(the "Property"); B. Seller and Potential Purchaser are negotiating to enter into a definitive agreement between Seller and Potential Purchaser with respect to Potential Purchaser's acquisition of the Property(the "Definitive Agreement"); and C. As a material inducement for Potential Purchaser to enter into and continue negotiations toward the Definitive Agreement, Seller desires to permit Potential Purchaser to enter onto the Property and to permit certain limited studies, tests, examinations and inspections, and to review certain existing Seller information regarding the Property, subject to and in accordance with the terms and conditions set forth in this Agreement. During the term of this Agreement, the Seller agrees to hold the property exclusively for the Potential Purchaser and will not enter into an agreement to sell the Property during this period of exclusivity to any party other than the Potential Purchaser. AGREEMENT: 1. INCORPORATION OF RECITALS. The foregoing Recitals are incorporated as though fully set forth in this Agreement. 2. LIMITED ACCESS AND REVIEW. Subject to the terms of this Agreement, Potential Purchaser and those agents, contractors, employees, consultants, representatives, attorneys, partners, affiliates, accountants, lenders, and investors of Potential Purchaser (collectively, "Consultants") shall, during the Limited Access Period (as defined below), have a temporary,revocable license to enter onto the Property, in each instance with not less than two (2) business days'advance notice to Seller prior to any such entry(which entry shall only occur during Seller's normal business days between the hours of 10:00 AM and 4:00 PM PST), to conduct and make customary studies, tests, examinations and inspections, or investigations (collectively, the "Inspections") of or concerning the Property,provided that Potential Purchaser and its Consultants shall not be permitted to perform or conduct any invasive or destructive testing (and without limiting the foregoing,for purposes hereof,Phase 1I testing,tests for asbestos-containing materials, lead-based paint and radon shall be deemed to be invasive) on the Property without Seller's prior written consent, which may be withheld in Seller's sole discretion, and Seller shall have the right to designate a representative to be present during all Inspections conducted at the Property. If Potential Purchaser or its Consultants desire to perform any invasive tests, Potential Purchaser shall in each instance give prior written notice thereof to Seller,which notice shall be accompanied by a detailed description and plan of the invasive tests Potential Purchaser and its Consultants 1 DocuSign Envelope ID:C3395AE2-36434CFE-9526-C11 F78EFA774 Confidential desire to perform, and Potential Purchaser and its Consultants shall not perform without obtaining Seller's consent to such invasive tests. 3. DISCLAIMER. Neither Seller nor any of its representatives is making or shall be deemed to have made any express or implied representation or warranty, of any kind or nature, as to (a) the leasing, physical or financial status of the Property, (b) the Property's compliance with applicable laws, (c) the accuracy or completeness of any information or data provided or to be provided by Seller, (d) the Seller Deliveries, or (e) any other matter relating to the Property or Seller,including without limitation the availability of any governmental approvals or development approvals regarding the Property. 4. INDEMNITY BY POTENTIAL PURCHASER. Potential Purchaser shall indemnify and hold harmless Seller,together with Seller's affiliates and their respective direct and indirect parent and subsidiary entities, successors, assigns, partners, managers, members, employees, officers, directors, trustees, shareholders, counsel, representatives, agents, and property manager (collectively, including Seller, "Seller's Indemnified Parties"), for, from and against any and all damages, mechanics' liens, liabilities, and losses, third-party demands, third- party actions,third-party causes of action, and third-party claims, (including reasonable attorneys' fees) (collectively, "Losses") arising from Potential Purchaser's or its Consultants ' entry onto the Property, and any Inspections or other matters performed by Potential Purchaser with respect to and on, in, or under the Property during the term of this Agreement; provided, however, that Potential Purchaser shall have no responsibility or obligation for any Losses to the extent such Losses arise from: (i) any condition existing on the Property prior to Potential Purchaser's inspection and testing, which includes, without limitation, the mere discovery of hazardous materials or substances in, on or about the Property, or(ii) any Losses caused by the negligence or intentional misconduct of Seller or Seller's Indemnified Parties. Potential Purchaser shall not be required to indemnify Seller for any consequential, special or punitive damages. Notwithstanding anything to the contrary herein, neither party will be liable to the other party for consequential, special or punitive damages. The provisions of this paragraph shall survive the termination of this Agreement. 5. NO MECHANICS' LIENS; RESTORATION. Potential Purchaser shall not permit any mechanic's or materialmen's liens or any other liens to attach to the Property by reason of the performance of any work or the purchase of any materials by Potential Purchaser or any other party in connection with any Inspections conducted by or for Potential Purchaser, and Potential Purchaser shall promptly remove the same after filing of any lien or receipt of any notice of intent to file a lien. The provisions of this paragraph shall survive the termination of this Agreement. Potential Purchaser shall restore the Property and all improvements to substantially the same condition they were in prior to any Inspections. 6. CONFIDENTIALITY. Until the transactions contemplated within the Definitive Agreement are agreed to and consummated, if at all, all information made available by Seller to Potential Purchaser in accordance with this Agreement shall be treated as confidential information to the extent allowed by law. The provisions of this paragraph shall survive the termination of this Agreement for a period of twelve (12) months. 2 DocuSign Envelope ID:C3395AE2-3B43-4CFE-9526-C11 F78EFA774 Confidential 7. TERMINATION. This Agreement and Potential Purchaser's rights and obligations hereunder shall commence as of the Effective Date and shall automatically terminate on the earlier to occur of. (i) at 5:00 p.m. (PST) on the date that is ninety (90) days after the Effective Date, if Seller and Potential Purchaser have not entered into negotiations on a purchase and sale agreement, or(ii) at 5:00 p.m. (PST) on the date that is 105 days after the Effective Date, if the Seller and Potential Purchaser have not each executed and delivered a binding Definitive Agreement in form and substance satisfactory to both Seller and Potential Purchaser on or before such date, without further notice or execution of any documentation by Seller or Potential Purchaser, or (iii) the date a Definitive Agreement is executed and delivered, or (iv) on the date Seller elects to terminate this Agreement and revoke the license granted hereunder by written notice to Potential Purchaser,which notice may not be given until at least thirty(30) days after the Effective Date, (the "Termination Date"). The term "Limited Access Period" means the date commencing on the Effective Date and ending on the Termination Date. 8. PERIOD OF EXCLUSIVITY. During the Limited Access Period, the Seller agrees to hold the Property exclusively for the potential purchase by Potential Purchaser ("Exclusivity Period"). As such, Seller agrees it will not enter into any agreement to sell the Property during the Exclusivity Period to any party other than the Potential Purchaser. 9. NO ADDITIONAL RIGHTS GRANTED. Nothing contained in this Agreement will be construed to give Potential Purchaser or any affiliate any right (and Potential Purchaser acknowledges that neither Potential Purchaser nor any affiliate has any right) to purchase or negotiate for the purchase of the Property or any interest therein and no such right to purchase shall be deemed to exist unless and until a Definitive Agreement is fully executed and delivered by Seller and Potential Purchaser or an affiliate (and then only to the extent therein set forth). Potential Purchaser acknowledges it has no interest in the Property whatsoever unless and until a Definitive Agreement has been entered into between Seller and Potential Purchaser. If a Definitive Agreement has been fully executed and delivered,then,in the event of a conflict between the terms hereof and such Definitive Agreement, the terms of such Definitive Agreement shall govern and control to the extent of such conflict. Nothing contained in this Agreement will be construed to give Potential Purchaser or any affiliate any right (and Potential Purchaser acknowledges that neither Potential Purchaser nor any affiliate has any right) to seek any approvals or entitlements regarding the Property during the Limited Access Period. 10. NON-ASSIGNABILITY. This Agreement may not be assigned by the Potential Purchaser without first obtaining the prior written approval of the Seller, which approval may be withheld in Seller's sole discretion. 11. LEGAL COSTS. If either Potential Purchaser or Seller brings any suit or other proceeding, including an arbitration proceeding, with respect to the subject matter or the enforcement of this Agreement,the prevailing party(as determined by the court, agency, arbitrator or other authority before which such suit or proceeding is commenced), in addition to such other relief as may be awarded, shall be awarded its reasonable attorneys' fees, expenses and costs of investigation actually incurred. The foregoing includes reasonable attorneys' fees, expenses and costs of investigation (including those incurred in appellate proceedings). 3 DocuSign Envelope ID:C3395AE2-3B43-4CFE-9526-C11 F78EFA774 Confidential 12. SEVERABILITY; INTERPRETATION. If any term or provision of this Agreement or the application thereof to any person or circumstance shall,to any extent,be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Section headings shall not be used in construing this Agreement. Each party acknowledges that such party and its counsel, after negotiation and consultation, have reviewed and revised this Agreement. As such, the terms of this Agreement shall be fairly construed and the usual rule of construction,to the effect that any ambiguities herein should be resolved against the drafting party, shall not be employed in the interpretation of this Agreement or any amendments, modifications or exhibits hereto or thereto. 13. GOVERNING LAW. This Agreement shall be governed by the laws of state where the Property is located. 14. NOTICES. Any notices required by any provision of this Agreement shall be made in writing and delivered by (a) United States registered or certified mail, postage prepaid, (b) reputable overnight courier, or (c) email. Such notice shall be effective three (3) days after the mailing thereof by registered or certified mail, one (1) business day after the mailing thereof by overnight courier, and on the day of confirmed delivery by email transmission. Each party shall give notice to the other party in the event of any change of address. Rejection or refusal to accept delivery or the inability to deliver because of a change of address of which no notice was given shall be deemed to be receipt of notices as of the date such notice was deposited in the mail or delivered to the courier or transmitted via confirmed facsimile. Notices shall be addressed to the addresses set forth on the respective signature page hereto. 15. WAIVER OF JURY TRIAL. POTENTIAL PURCHASER AND SELLER WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN SELLER AND POTENTIAL PURCHASER ARISING OUT OF THIS AGREEMENT. 16. MULTIPLE COUNTERPARTS. This Agreement may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes and all such counterparts shall collectively constitute one Agreement. 17. TIME OF THE ESSENCE. It is expressly agreed by the parties hereto that time is of the essence with respect to this Agreement. 18. FACSIMILE/ELECTRONIC SIGNATURES. This Agreement may be executed by facsimile, electronic or digital signatures (including, without limitation, scanned signature pages sent via electronic mail), which shall be binding on the parties hereto, with original signatures to be delivered as soon as reasonably practical thereafter. [signature pages follow] 4 DocuSign Envelope ID:C3395AE2-3B43-4CFE-9526-C11 F78EFA774 Seller and Potential Purchaser have caused this Agreement to be executed as of the Effective Date. POTENTIAL PURCHASER: CITY OF KENT, a Washington state municipal corporation By: lJ 0\-+l\�-- Name: Dana Ralph Title: Manor Date: May 24, 2024 SELLER: BOEING EMPLOYEES' CREDIT UNION, a Washington state credit union DocuSigned by: By: L 6 S Name: Title: SVP-Administration & Operations Date: 5/24/2024