HomeMy WebLinkAbout24-036 - Forterra - Assignment and Assumption Agreement: Parcels 3351400005 & 1023049072DocuSign Envelope ID: 683184A7 -64113-4902-8382-10827513374F0
ASSIGNMENT AND ASSUMPTION AGREEMENT
24-036
Council Approval 3/4/24
ASSIGNMENT, dated as of the 12th day of March, 2024, by and between FORTERRA NW,
a Washington nonprofit corporation ("Forterra"), and the CITY OF TUKWILA, a Washington
optional code city ("City"), each a "Party" and collectively the "Parties."
WHEREAS, Forterra and TCB Homes LLC, a Washington limited liability company
("Seller"), have entered into that certain Vacant Land Purchase and Sale Agreement, dated
February 1, 2024 and mutually accepted on February 5, 2024, a copy of which is attached
hereto as Exhibit A (the "Purchase Agreement", the terms of which are incorporated herein by
this reference); and
WHEREAS, all terms defined in the Purchase Agreement shall have the same meaning
herein as therein provided, unless the context otherwise requires; and
WHEREAS, Forterra desires to assign to the City, and the City desires to accept, all of
Forterra's right, title and interest in and to the Purchase Agreement.
NOW THEREFORE, in consideration of the terms and conditions above and other good
and valuable consideration, the sufficiency of which the Parties hereby acknowledge, the
Parties agree as follows:
1. Assignment and Assumption. Effective on the Assignment Effective Date, as
defined below, and otherwise subject to the terms of this Assignment, Forterra hereby assigns
to the City all of Forterra's right, title and interest in and to the Purchase Agreement, and the
City assumes all of Forterra's obligations under the Purchase Agreement.
2. Title Contingency. Paragraph C of the Additional Provisions included in the
Addendum/Amendment to Purchase and Sale Agreement ("Addendum") specifies a procedure
for review of the Commitment. Forterra agrees to include in the Title Objection Notice sent to
the Seller those objections as specified by the City. Furthermore, if the Seller thereafter refuses
to cause the objections to be removed or insured against, Forterra will exercise its rights under
such paragraph only after first getting the consent of the City. If the City directs Forterra to
terminate the Purchase Agreement under said Paragraph C, then this Assignment shall also
terminate in which event neither Party shall have any further rights or obligations hereunder.
Forterra agrees to use best efforts to have the Title Company add the City as a Proposed Insured
in Schedule A of the Commitment.
3. Feasibility Contingency. Paragraph (v) of the Purchase Agreement provides for a
45 -day Feasibility Contingency period which has already been extended by Forterra under
Paragraph A of the Addendum for an additional 30 days. Forterra has entered into an
agreement with McAlister GeoScience, Incorporated for Phase I and Phase II environmental
assessments of the Property ("Phase I Report" and "Phase II Report") and will share the Phase I
Report and Phase II Report with the City when Forterra receives it. Forterra has also provided
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DocuSign Envelope ID: 683184A7 -64113-4902-8382-10827513374F0
the City with a copy of the appraisal prepared by SH&H, dated December 20, 2023, that
Forterra had obtained for the Property, which Forterra will arrange to be reviewed by Kidder
Matthews (collectively, the "Appraisal"). Forterra does not intend to undertake any other
studies, investigations or other due diligence with respect to the Property. The City, however,
may at its own expense, do such studies, investigations and other due diligence as it determines
is appropriate. Any decision to extend the Feasibility Contingency period, give a notice of
disapproval or waive the Feasibility Contingency shall only be made by Forterra after receiving
the prior consent of the City. If a notice of disapproval is given, this Assignment shall terminate
and the Parties shall have no further rights or obligations hereunder. The date on which
Forterra waives the Feasibility Contingency is referred to as the "Assignment Effective Date."
On the Assignment Effective Date, Forterra shall notify the Seller of the assignment to the City
of its right, title and interest in and to the Purchase Agreement.
4. Earnest Money. If Forterra waives the Feasibility Contingency as above
provided, the City shall have the obligation to provide to the Closing Agent the Earnest Money
funds referred to in Paragraph A of the Addendum, whereupon the Earnest Money note shall
be returned to Forterra.
5. No Amendments. Forterra may not agree to any amendment of the Purchase
Agreement without the prior consent of the City.
6. City to Act in a Timely Manner; City Employees With Authority. The City agrees
to advise Forterra of its position on title and Feasibility Contingency matters on a timely basis so
that Forterra can exercise its rights under the Purchase Agreement. The City agrees that the
following City employees are authorized to provide direction, approvals and/or consents to
Forterra under this Assignment: Mayor Thomas McLeod and his designees.
7. Donation. The right of Forterra to receive the donation specified in Paragraph F
of the Addendum is not being assigned to the City under this Assignment, it being agreed that if
Closing occurs, that donation shall still be made to Forterra by the Seller.
8. King County. The Parties acknowledge that a significant portion of the funding
for the purchase of the Property is being provided by King County. A portion of the funding will
be used by Forterra to pay for the Phase I Report and Phase II Report, the Appraisal, Forterra
staff time and other expenses incurred by Forterra with respect to the purchase of the
Property. The Parties shall work together to ensure that the remainder of the funding will be
available to the City for the purchase of the Property. If King County has refused to approve the
use of the funding by the City prior to the expiration of the Feasibility Contingency period, as
such may be extended, Forterra shall give a notice of disapproval to the Seller under paragraph
(v) of the Purchase Agreement whereupon this Assignment shall terminate and the Parties shall
have no further rights or obligations hereunder.
9. Representations of Forterra. Forterra hereby represents and warrants that the
document attached hereto as Exhibit A is a true and correct copy of the Purchase Agreement,
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together with all addenda and amendments thereto, and that as of the date hereof, the
Purchase Agreement is in full force and effect, without default by either party thereto, and that
there have been no modifications or revisions to the Purchase Agreement not reflected in the
attached Exhibit A. Except as above provided, Forterra makes no representations or warranties
to the City of any nature whatsoever with respect to the Purchase Agreement or the Property,
it being agreed that the assignment by Forterra pursuant to this Assignment is without recourse
against Forterra and further that the City assumes all risks of any nature whatsoever with
respect to the Property including, without limitation, as to the condition thereof and/or the
presence of Hazardous Substances thereon.
10. City to Release and Hold Forterra Harmless. The City hereby releases, and agrees
to defend, indemnify and hold Forterra harmless from all claims, damages, losses, costs,
liabilities or expenses of any nature whatsoever arising from or related to the City's acquisition
of the Property.
11. Further Action. Each Party shall take whatever further action is necessary to
effectuate the transactions contemplated by this Assignment.
12. Entire Agreement. This Assignment contains the entire understanding between
the Parties and supersedes any prior understandings and agreements between them respecting
the subject matter hereof. There are no other representations, agreements, arrangements or
understandings, oral or written, between and among the Parties hereto or any of them, relating
to the subject matter of this Assignment.
13. Successors. The terms of this Assignment shall be binding upon and inure to the
benefit of and be enforceable by and against the successors and assigns of the Parties hereto. No
Party shall be entitled to assign its rights or delegate its obligations hereunder without the other
Party's prior written consent. If such consent is given, such assignment shall not relieve the
assigning Party of its obligations hereunder.
14. Governing Law. This Assignment shall be governed by and construed in accordance
with the laws of the State of Washington.
15. Severability. Should any one or more of the provisions of this Assignment be
determined to be invalid, unlawful or unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions hereof shall not in any way be affected or impaired
thereby and the Parties shall endeavor to replace the unlawful or unenforceable provision with
one that is lawful and enforceable and that gives the fullest effect to the intent of the parties
expressed herein.
16. Waiver. No waiver of any of the provisions of this Assignment shall be deemed, or
shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver of
any other provision constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the Party making the waiver.
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DocuSign Envelope ID: 683184A7 -64113-4902-8382-10827513374F0
17. Attorneys' Fees. In the event of litigation or other proceedings involving the Parties
to enforce any provision of this Assignment, to enforce any remedy available upon default under
this Assignment, or seeking a declaration of the rights of either Party under this Assignment, the
substantially prevailing Party shall be entitled to recover from the other such reasonable
attorneys' fees and costs as may be actually incurred, including its costs and fees on appeal.
IN WITNESS WHEREOF, authorized representatives of the Parties have executed this
Assignment effective for the term set forth above.
FORTERRA NW CITY OF TUKWILA
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Michelle Connor
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President and CEO
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Name: Thomas McLeod
Title: Mayor
3/13/2024 3/21/2024 1 12:13 PM PDT
Date: Date:
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