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HomeMy WebLinkAbout09-191 - CHA Southcenter LLC - 16500 Southcenter Parkway Property Settlement Agreement (Tukwila Urban Center Access)Street Address: 16500 Southcenter Parkway (the "Property Therefore, for good and sufficient consideration, the Parties agree as follows: 2. Settlement Terms. DWT 13082163v7 0088419- 000008 SETTLEMENT AGREEMENT Page 1 0 --D- 09 -191 Council Approval 12/07/09 �i� This Settlement Agreement (the "Agreement is effective as of R Ugar 7 2009 (the "Effective Date and is entered into by and between CHA Southcenter, LLC "CHA and the City of Tukwila "Tukwila CHA and Tukwila are sometimes collectively referred to as the "Parties." A. CHA is the fee simple owner of the following described real property situated in Tukwila, Washington: New Parcel B of Binding Site Plan for Outback Steak House, according to the plan thereof recorded in Volume 184 of Plans, page 36, recorded under Recording Numbers 9802041490 and 9802041491, in King County, Washington B. Tukwila intends to construct the City of Tukwila Urban Center Access Project (the "Project and in connection with the Project, the City seeks to acquire a certain portion of land and land rights "Acquisition Area on the Property under imminent threat of condemnation. C. The Parties have agreed to settle and compromise issues related to the conveyance of the Acquisition Area to Tukwila in the manner set forth herein. 1. Condemnation. The Parties hereby acknowledge this Agreement is being entered into under threat of and in lieu of condemnation proceedings. a. Compensation. Within five (5) business days of the full execution of this agreement, or as soon as practicable in terms of Tukwila check processing procedures, Tukwila will deposit into an escrow account the amount of $350,000 (the "Settlement Sum as full and final settlement between the Parties concerning the matters described herein. b. Delivery of Documents. Within five (5) business days of the full execution of this agreement, CHA will deliver the following fully executed documents (the "Documents to Tukwila: (i) a real estate excise tax affidavit form, the form of which is attached hereto as Exhibit A, (ii) a Tukwila real property voucher a form of which is attached hereto as Exhibit B. (iii) a Bargain and Sale Deed for the Property, the form of which is attached hereto as Exhibit C, (iv) the easement, a form of which is attached as Exhibit D, and (v) the temporary construction easement the form of which is attached hereto as Exhibit E. c. Lender ADcroval. Within three (3) business days of the full execution of this Agreement, CHA will seek consent from its lender of certain debt secured by the improvements and related real property owned by CHA to convey the Acquisition Area to Tukwila and for Lender to execute a Partial Reconveyance for the Acquisition Area. If CHA's lender does not approve of the conveyance of the Acquisition Area to Tukwila, the Settlement Sum shall be returned to Tukwila, the executed Easement shall be returned to CHA, and this Agreement shall terminate and be of no further force or effect. d. Payment and Recording. The Documents will be recorded and the Settlement Sum will be made available to CHA immediately upon fulfillment of the requirements set forth in Section 2(b) above, and delivery by CHA or the subject lender of the fully executed Partial Reconveyance referenced in Section 2(c). Notwithstanding the generality of the foregoing, the Settlement Sum shall not be released and the Documents shall not be recorded until the earlier of (i) the formation of Local Improvement District No. 33 and the expiration of any applicable appeal periods related to the formation of such District, or (ii) the acquisition by Tukwila of other funds adequate in Tukwila's sole discretion to construct the Project. If neither (i) nor (ii) occur prior to that date which is one (1) year from the date hereof, then the Settlement Sum shall be returned to Tukwila, the Documents shall be returned to CHA, and this Agreement shall terminate and be of no further force or effect. 3. Breakdown of Costs Associated with Settlement Amount. The estimated itemized value of the Settlement Sum is as follows: Citv's Offer: a. $80,000 land conveyed, 2,009 square feet, b. $57,000 acquisition of permanent easement, 2,830 square feet c. $12,000 improvements conveyed, d. $67,000 construction easement, Settlement Items: e. $34,000 construction expenses, f. $10,000 parking consultants and engineers, and g. $90,000 net present value of two additional staff to manage parking. DWT 13082163v7 0088419 000008 Page 2 4. Representations and Warranties. Tukwila represents and warrants to CHA as follows: a. Oreanization. Tukwila is a duly organized municipal entity, validly existing under the laws of the State of Washington. Tukwila has all requisite power and authority to acquire the Property. b. Authority. Both parties have all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the parties. This Agreement has been duly executed and delivered by the parties and, assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes valid and binding obligations of the parties. Other than approval of this Agreement by the Tukwila City Council at an open public meeting, no consent, waiver, approval, order or authorization of, or registration, declaration or filing with, or notice to, any governmental entity, is required by or with respect to the parties in connection with the execution and delivery of this Agreement or the consummation by the parties of the transactions contemplated hereby or thereby. c. No Conflict. The execution and delivery by Tukwila of this Agreement and the consummation of the transactions contemplated hereby and thereby, do not and will not conflict with or result in any violation of or default under (with or without notice or lapse of time, or both) or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any benefit under (i) any provision of the charter of Tukwila, (ii) any material contract to which Tukwila is a party or to which it or any of its respective properties or assets (whether tangible or intangible) is subject or bound, or (iii) any Law applicable to Tukwila, except, in the case of (ii) or (iii), for such conflicts, violations or defaults as would not individually or in the aggregate reasonably be expected to have a material and adverse effect on the ability of Tukwila to consummate the transactions contemplated by this Agreement. d. AS -IS. CHA has not made and does not make, any representations, warranties or covenants of any kind or character whatsoever, whether express or implied, with respect to the quality or condition of the property, the suitability of the property for any and all activities and uses which Tukwila may conduct thereon, compliance by the property with any laws, rules, ordinances or regulations of any applicable governmental authority or habitability, merchantability or fitness for a particular purpose, and specifically, CHA does not make any representations regarding hazardous waste, as defined by the laws of the state in which the property is located and any regulations adopted pursuant thereto or the U. S. Environmental Protection Agency regulations at 40 CFR, part 261, or the disposal of any hazardous waste or any other hazardous or toxic substances in or on the property. Tukwila agrees to accept the property in its present as is condition with all faults. 5. Indemnification. Each party to this Agreement (each an "Indemnitor agrees to protect, indemnify, and hold harmless the other party and its agents, employees, directors and affiliates (each an "Indemnitee from and against (a) any and all damages, claims, liabilities and costs (including attorneys' fees) resulting from any injury to the person or property of a third party that is primarily attributable to the negligent or willfully wrongful acts of the Indemnitor, and its employees, agents, consultants, or subcontractors in the performance of this Agreement or DWT 13082163v7 0088419 000008 Page 3 construction of the Project, and (b) any and all damages, losses and costs (including attorneys' fees) suffered by Indemnitee that are solely and exclusively attributable to a breach of this Agreement by Indemnitor. In addition to the foregoing, Tukwila agrees to protect, indemnify, and hold harmless CHA from all liability arising out of the extinguishment and vacation of that certain Nonexclusive Roadway Easement dated April 5, 1979 between Parkway and Strander Associates and Southcenter Motor Hotel, Ltd (King County Recording Number 7905030223). 6. Knowing and Voluntary. CHA and Tukwila represent that they have read and fully understand this Agreement and the settlement terms provided herein constitute valuable consideration. The Parties have had full opportunity to consider this Agreement and consult with legal counsel and that they are not executing this Agreement in reliance on any promises or representations other than those contained in the Agreement, and that they are executing this Agreement voluntarily. 7. Severabilitv. If any term or provision of this Agreement is determined by a tribunal of competent jurisdiction to be unenforceable or contrary to any applicable law or policy, such term provision or provision shall be effective to the maximum extent permitted by law and the same shall not affect any other term or provision of this Agreement, which shall otherwise remain in full force and effect. 8. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the Project and conveyance of the Property and this Agreement supersedes any previous agreements or understandings between the Parties. 9. Choice of Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Washington, without giving effect to its conflict of laws provisions. 10. Dunlicate Originals. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. The Parties further agree that any and all such counterparts may be executed by facsimile signature, each such signature having the same binding effect as an original. 11. Attorneys' Fees and Costs for Enforcement of this Agreement. Nothing contained in this Agreement shall limit either of the Parties from bringing an action at law or in equity to enforce the terms of this Agreement. In the event that either Party resorts to legal action to enforce the terms and provisions of this Agreement, the prevailing party shall recover the reasonable costs of such action, including reasonable attorneys' and expert witness fees and costs. DWT 13082163v7 0088419 000008 Page 4 CHA SOUTHCENTER, LLC tI s: 2 -2c2 0 THE CITY OF TUKWILA By: ge4-' /N i Its: it -r 9-oc( DWT 13082163v7 0088419- 000008 27;1 Page 5 DWT 13082163v7 0088419 000008 Exhibit A Form of Real Estate Excise Tax Affidavit Exhibit A DWT 13082163v7 0088419 000008 Exhibit B Form of Real Property Voucher Exhibit B DWT 13082163v7 0088419 000008 Exhibit C Form of Bargain and Sale Deed Exhibit C DWT 13082163v7 0088419 000008 Exhibit D Form of Permanent Easement Exhibit D DWT 13082163v7 0088419 000008 Exhibit E Form of Temnorary Construction Easement Exhibit E