HomeMy WebLinkAboutGambiniRESOLUTION NO.4 2 2 9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A REAL
ESTATE TRANSFER/SALE AGREEMENT BETWEEN THE
CITY OF AUBURN AND RAYMOND LAZOR AND NANCY
LAZOR AND HAROLD GAMBINI AND EXECUTE A
COMPANION AGREEMENT, A SUBLEASE AGREEMENT
BETWEEN THE CITY OF AUBURN AND HAROLD
GAMBINI
WHEREAS, City of Auburn is working with property owners to promote
revitalization of the downtown core area; and
WHEREAS, Harold Gambini ("Gambini") and others are the owners of
certain real property located in the City of Auburn; and
WHEREAS, the City of Auburn desires to enter into a Real Estate
Transfer/Sale Agreement with Gambini whereby the City would acquire certain
property owned by Gambini, tied to the City's downtown revitalization efforts; and
WHEREAS, Gambini desires to sell this property to the City of Auburn in
exchange for funds and assignment of leases as set forth in the Auburn Sound
Transit Station Sublease Agreement; and
WHEREAS, Gambini recognizes that the Real Estate Transfer/Sale
Agreement is subject to the approval of the Auburn Sound Transit Station
Sublease Agreement and that the Real Estate Transfer/Sale agreement and the
Auburn Sound Transit Station Sublease are given in consideration of each other.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows:
Resolution No. 4229
August 21, 2007
Page 1 of 2
Section 1. The Mayor of the City of Auburn and the Auburn City Clerk
are hereby authorized to execute a Real Estate Transfer/Sale Agreement and
Auburn Sound Transit Station Sublease Agreement between the City of Auburn
and Harold Gambini which agreements shall be in substantial conformity with the
agreements, copies of which are attached hereto, marked as Exhibit "A" and "B"
respectively and incorporated herein by this reference.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of this
legislation.
Section 3. This resolution shall be in full force and effect upon passage
and signatures hereon.
Dated and Signed this 4 day of - _, 2007.
ITY
PE ER B. LEWIS
MAYOR
ATTEST:
Dak Ile E. Daskam, City Clerk
APPROVED W M FO
DNniel B. Heid; City Attorney
Resolution No. 4229
August 21, 2007
Page 2 of 2
09/06/07 13:26 FAX 253 804 3116 CITY OF AUBURN
REAL ESTATE TRANSFERISALE AGREEMENT
002/005
This agreement made and entered into this fourth day of September, 2007, by
and between the City of Auburn,. a municipal corporation, organized under the
Optional Municipal Code. Title 135A RCW, her-einafter- referred-to-.- as- "Auburn" and
Raymond Lazor and Nancy Laior, husband and wife, and Harold Garnbini,a -single
man, hereinafter referred to as "Gambini .
Whereas, Gambini is the owner of certain real estate located in the City of
Auburn, legally described as Lots 3 and 4, Block 6, Town of Slaughter, according to the
Plat thereof, recorded in Volume 2 of Plats, page 56, records of King County,
Washington, tax parcel 781570-0290 and 781570-0295, and
Whereas, Gambini desires to enter into a sale of the above described property in
exchange for funds and an assignment of leases as set forth below, and
Whereas, Auburn desires to redevelop the property described above, and
surrounding properties as part of a revitalization of the City, such work to be done by the
third party, and
Whereas, for the revitalization effort is necessary to acquire the property set forth
above, and
Whereas, it is for the benefit of public health, safety and welfare of the City of
Auburn that Auburn acquire the subject property for the purposes of the revitalization
effort, and
Real Estate Transfer/Sate Agreement (8/21/07) - 1 -
09/06/07 13:26 FAX 253 804 3116
CITY OF AUBURN
Q003/005
Whereas, the assignment and/or subleases of commercial space and parking.
spaces is allowable- under the agreement. between Sound Transit and the -City -of
Auburn, and
Whereas, the parties recognize this agreement is subject to surplusing the
certain property interest of the. City of Auburn and approval by Aubum City Council.
Now, therefore, based upon mutual covenants- to be derived the parties
agree as follows:
1. Real Estate Sale: Gambini agrees to sell, and Auburn agrees to purchase,
that certain real estate as legally described above. At the time of closing the seller shall
provide a Statutory Warranty Deed providing that the property is free and clear of all
liens and encumbrances and seller,shall provide a policy of title. insurance insuring that
the subject property is free and clear of all liens and 'encumbrances, at a value of
$1,800,000,00.
2- Consideration: At the time of closing Aubum shall pay to Gambini the sum of
$1,125,000.00, cash at closing} plus provide assignments and/or subleases to those
commercial properties existing on the ground floor of the Sound Transit Station, Auburn,
Washington, together with 42 parking spaces located in the' Sound Transit Terminal.
Auburn agrees to remove the costs of security from, the triple net expenses charged
back to the-tenant.
3. Involuntary Conversion: The parties agree that the property subject of this
sale is a part of an area-wide revitalization program, and that as a part of that prograrn,
properties are being assembled by private property owners and developers for
Real Estate Transter'/Sa1e Agteen ent (W1107) - 2 -
09/06/07 13:27 FAX 253 804 3116
CITY OF AUBURN
0004/005
economic development. Separate and apart from that, however, the subject property is
targeted to be a part street improvement program, identified as the Promenade
program, whereby improvements would. be made to certain public rights-of-way to
enhance the public sidewalk. lf'the subject property were not sold, so as to make it
available for development as part of the area-wide revitalization program, it may
nevertheless be subject of condemnation in so far as the Promenade program could
require taking of some or all of the subject property for that purpose. Toward that end,
Garinbini's position is that the subject property is being sold under threat of
condemnation and he intends to qualify as Involuntary Conversion as defined by the
IRS.
4. Closing, This transaction shall close.on or before September 15, 2007 or such
other date as the parties may mutually agree.
6. Contingencies: This agreement is contingent upon Auburn declaring as
surplus the interest in the Sound Transit lease space and the 42 parking spaces and the
approval by the Auburn City Council of this agreement and no objections by Sound
Transit, and approval by the Auburn City Council of the sub-lease agreement for the
premises at the Sound Transit facility,
6. Assignment: The parties to this agreement may assign their interests. This
agreement shall be binding on the heirs, successors and assign of the parties.
7. Closing Costs: Gambini shall pay costs of title insurance premium and tax
and .Auburn shall pay excise tax. Escrow fees to be divided between the parties. Real
estate taxes and utilities will be pro-rated to the time of closing.
Real Estate Transter/Sale Agreement (8121/07) - 3 -
09/06/07
8. Earnest Money: Auburn shall deposit $10,000.00 earnest money into escrow,
mutually agreed upon by the parties, upon
by City Council, whichever occurs last.
declaring of surplus and approval
1?? h
_.?
Attested:
a ' Daskam
City Clerk, City of Aubum
Form:
City Attomey, City of Auburn'
Pete Lewis
Mayor, City of Auburn
Dated: SEP ' 4 2007
Vf.
Raymond Lazor, Seller
Dated: 7/077
'-c&?-/ e1v a
Nancy t.azor(teller
Dated:
Harold Gambt r
Dated: 7 - o :-
Real Estate Transfer/Sale Agreement (8/21/07) - 4 -
AUBURN SOUND TRANSIT STATION
SUBLEASE AGREEMENT
CITY OF AUBURN - GAMBINI
41
THIS AGREEMENT made and entered into this 1 !?
day of
y
2007, by and between the City of Auburn, a municipal corporation, organized under Title
35A, RCW hereinafter referred to as "Auburn," and Harold Gambini, .a single man,-aad-
hereinafter collectively referred to as
"Gambini."
WHEREAS, Auburn is in the process of revitalization efforts for the downtown
core area, and
WHEREAS, in the revitalization efforts, Auburn entered into agreements with
other public agencies and private parties to carry out the intent of the revitalization, and
WHEREAS, the revitalization of the downtown core area of the City of Auburn
will result in certain economic benefits and quality of life benefits that will enhance
public safety, health and welfare, and
WHEREAS, to enhance quality development in the downtown area, and to
provide an efficient and cost effective mode of transportation to its citizens to other
geographic areas, Auburn entered into agreements with Central Puget Sound Regional
Transit Authority "Sound Transit", for the creation of a transit terminal, parking garage
and commercial tenancies within the parking garage, and
WHEREAS, Resolution #3469 was passed on May 20, 2002, attached as Exhibit
1 which authorized the entry into the lease between Central Puget Sound Regional
Transit Authority "Sound Transit" as landlord and City of Auburn "City" as tenant, dated
Auburn Sound Transit Station Sublease Agreement
City of Auburn - Gambini
Page 1
8/20/07
June 26, 2002, attached as Exhibit A to Resolution #3469, which becomes part of Exhibit
1 attached hereto, and
WHEREAS, to promote the development of quality commercial space in the
downtown area, in the proximity of the Sound Transit facility, the City of Auburn passed
Resolution #3701 on March 15, 2004, authorizing the execution of a LID Formation and
Guarantee Agreement wherein certain parking spaces were recognized to the Guarantor
of the agreement in the Sound Transit facility, and
WHEREAS, the parking spaces provided in the LID Formation and Guarantee
Agreement as authorized by Resolution #3701 are not inconsistent with parking provided
under the Real Estate Transfer/Sale Agreement between Auburn and Gambini, and
WHEREAS, the Real Estate Transfer/Sale Agreement between Auburn and
Gambini is to further the revitalization efforts of the downtown City core area, and is
essential for a design consisting of a promenade in the vicinity of the Sound Transit
parking facility, and
WHEREAS, this agreement and the Real Estate/Transfer Sale Agreement are
entered into simultaneously to carry out part of the consideration requirements as set
forth in the Real Estate/Transfer Sale Agreement involving subleases to certain parking
stalls and subleases of the commercial tenant spaces on the ground floor of the parking
garage, and
WHEREAS, Auburn reviewed the value of the property it is purchasing from
Gambini, legally described as Lots 3 and 4, Block 6, Town of Slaughter, according to the
Flat thereof, recorded in Volume 2 of Flats, page 56, records of King County,
Auburn Sound Transit Station Sublease Agreement
City of Auburn - Gambini
Page 2
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Washington, tax parcel 781570-0290 and 781570-0295, in light of the leasehold interest
it would be conveying to Gambini, and
WHEREAS, an appraisal was conducted on the Sound Transit facility leasehold
interests and parking spaces, and
WHEREAS, the appraisal and the valuation review indicate that the Real Estate
Transfer/Sale Agreement between Auburn and Gambini is at fair and market value, and
WHEREAS, as part of the consideration of the Real Estate Transfer/Sale
Agreement between Auburn and Gambini, Auburn, as Lessee from Sound Transit, as set
forth in Exhibit 1 shall sublease to Gambini the commercial spaces on the ground floor of
the transit facility and sublease 42 parking spaces in the Sound Transit terminal, and
WHEREAS, the parties intend and contemplate herein that, pursuant to the Lease
Agreement, Exhibit 1, Auburn shall still remain primarily liable to perform all the
obligations under the lease, and
WHEREAS, the parties recognize that Auburn's option to purchase, as set forth
in Section 2.6, Exhibit 1 shall remain with Auburn exclusively and is not intended to be
assigned to Gambini hereunder.
NOW, THEREFORE, based upon mutual covenants and benefits to be derived,
THE PARTIES AGREE as follows:
1. Sale of Real Property: Contemporaneous with this transaction, Gambini
shall sell and convey to Auburn Lots 3 & 4, Block 6, Town of Slaughter, according to
plat thereof, recorded in Volume 2 of plats, page 56, records of King County,
Washington, in accordance with and pursuant to the Purchase and Sale Agreement
between the parties.
2. Sublease: At the time of the closing of the Real Estate Transfer/Sale
Agreement between Auburn and Lazor and Gambini for Lots 3 & 4, Block 6, Town of
Auburn Sound Transit Station Sublease Agreement
City of Auburn - Gambini
Page 3
8/20/07
Slaughter, according to plat thereof, recorded in Volume 2 of plats, page 56, records of
King County, Washington, Auburn subleases to Lazor and Gambini that property
consisting of the ground floor commercial tenancies and 42 parking spaces on the ground
and second floor, as depicted in Exhibit "5" in the Sound Transit Terminal, Auburn,
Washington, described in Exhibit 1, attached hereto and incorporated by reference. The
Term of this Sublease shall commence on the /'-I)- !?41day of 7??-? , 2007,
and unless terminated earlier, the Term of this Sublease shall expire at midnight on the
1 st day of June, 2101. Gambini may negotiate or discuss lease issues directly with Sound
Transit. Any changes require Auburn's approval. This sublease includes a right by
commercial tenant for the use of the plaza tenant area as described in the Lease
Agreement, Exhibit 1. Auburn agrees not to lease, license or otherwise grant the right to
any person (sidewalk vendor) to offer competitive goods or services from a cart, kiosk, or
other temporary or permanent facility which goods are the same or competitive with
those offered by any subtenant or licensee of the Commercial Tenant Agreement, Exhibit
1.
3. Assumption of Obligations: Gambini accepts all obligations and
conditions as they pertain to the commercial retail space as outlined in the Lease
Agreement between Auburn and Sound Transit, Exhibit 1, and the 42 parking spaces
provided in Section 2 hereof. Gambini assumes all obligations of Auburn, including but
not limited to all maintenance, repair, and operating costs, directly associated with the
Commercial Retail space, as Lessee, as they pertain to the commercial retail space as
outlined in the Lease Agreement, Exhibit 1, and the said 42 parking spaces. Auburn
represents that nothing in this sublease conflicts with the lease agreement, Exhibit 1.
4. Sound Transit Costs: Auburn will not bill Gambini for any security fee.,
or other charges that are billed by Sound Transit as set forth in Exhibit 1, except Auburn
will bill Gambini for one hundred percent (100%) of the water and sewer utility bills
from Sound Transit and for seven and eighteen one hundreds percent (7.18%) of the
property insurance and storm water utility billings the City receives from Sound Transit.
In the event Gambini is billed for a separate water meter supplied to Commercial tenant
Auburn Sound Transit Station Sublease Agreement
City of Auburn - Gambini
Page 4.
8/20/07
area, then Gambini and Auburn shall negotiate distribution of the water and sewer billing
from Sound Transit to reflect a fair distribution of this expense.
5. Potential Purchase: Auburn retains any right it has to the Option to
Purchase, as set forth in Section 2.6, Exhibit 1. In the event that Auburn exercises the
Option to Purchase, Gambini shall retain its rights as sub lessee for the duration of this
sublease.
6. Current Leases: Leases between Auburn and other tenants currently exist
for ground floor commercial spaces at the premises of this Sublease. Gambini shall
assume the position of Auburn as Lessor as to those leases and shall also comply with
any and all landlord obligations and shall take on all Sublessor obligations for the
subleases for the premises previously subleased to third parties, as follows:
A. That certain Sublease in which the City of Auburn, a Washington
municipal corporation, is the Sublessor, and PMF Enterprises, Inc. is the Tenant, dated
the 15th day of January, 2003, a copy of which is attached hereto, marked as Exhibit 2,
incorporated herein by this reference;
B. That certain Sublease in which the City of Auburn, a Washington
municipal corporation, is the Sublessor, and Edward D. Jones is the Tenant, dated the
29th day of April, 2004, a copy of which is attached hereto, marked as Exhibit 3,
incorporated herein by this reference;
C. That certain Sublease in which the City of Auburn, a Washington
municipal corporation, is the Sublessor, and Green River Community College is the
Tenant, dated the 15th day of April, 2005, a copy of which is attached hereto, marked as
Exhibit 4, incorporated herein by this reference.
In connection therewith, all compensation paid by tenants thereof shall be paid to
Gambini.
7. Leasehold Excise Tax: Gambini agrees to pay to Auburn, or the
appropriate recipient, the amount of any leasehold excise tax required to be paid under
the laws of the State of Washington and ordinances of the City of Auburn, or collect the
same from Gambini's tenants and forward the same to Auburn, or the appropriate
recipient, which leasehold excise taxes shall be paid within 30 days after notification
Auburn Sound Transit Station Sublease Agreement
City of Auburn - Gambini
Page 5
8/20/07
from Auburn as to the amount due. Gambini shall also provide Auburn with the
information needed by Auburn to determine the amounts of the leasehold excise taxes,
which information shall be provided at least 30 days after requested by Auburn. It shall
not be considered a gratuity if any tenant's rent payment is reduced in any amount in any
month providing that tenant's entire lease terms is at market value. Provided, however,
:that the leasehold tax shall be paid on the actual market value in the event of any such
reduction.
8. 'Auburn to Remain Obligated: Auburn shall still remain liable to Sound
Transit for the performance of obligations under the Lease Agreement, Exhibit 1.
9. Time is of the Essence: Time is of the essence in the performance of all
covenants and conditions under this Sublease of Auburn and of Gambini.
10. Breach and Remedies Generally:
A. Default and Breach Defined. A party to this Sublease shall be in "default"
of an obligation it has under this Sublease if the party does not pay or perform the
obligation as and when due, except that if such failure is later cured, then the party shall
no longer be in default on the obligation. A party to this Sublease shall be in "breach" of
an obligation it has under this Sublease:
(1) If the party fails to make any payment required of it under this Sublease
within thirty (30) days after. the other party's written notice of default specifying the
amounts in default and the due date(s) thereof;
(2) If the party fails to perform any of the party's other obligations under this
Sublease for a period of thirty (30) days after written notice from the other party
specifying the obligation in default and the action required of the party in default to cure
such default. However, if more than thirty (30) days are reasonably required to complete
such performance, the party in default shall not be in breach if the party commences such
performance within the thirty (30) day period and thereafter diligently and continuously
pursues such performance to completion.
(3) If (i) a petition for adjudication of bankruptcy or for reorganization or
rearrangement is filed by or against the party and is not dismissed within one hundred
eighty (180) days; or if (ii) if a trustee or receiver is appointed to take possession of
Aubunl Sound Transit Station Sublease Agreement.
City ofAuburn -Gambini
Page 6
8/20/07
substantially all of the party's assets and such appointment is not dismissed or if
possession of such assets is not restored to the party within one hundred eighty (180
days) after such appointment.
B. The requirements for notice specified in subparts (1) and (2) of Section
10.A are intended to satisfy any and all notice requirements imposed by law and are not
in addition to any such requirement.
11. Auburn's Remedies for Gambini's Breach:
A. General Provisions. On or at any time after the occurrence of any breach
of one or more of Gambini's material obligations under this Sublease, Auburn may elect
to:
(1) Recover the sums owed by Gambini under this Sublease together with
interest thereon at the rate of eight percent (8%) per annum on the unpaid principal
balance thereof from time to time beginning with the date the sums were due and ending
when the sums have been fully paid;
(2) .Specifically enforce Gambini's obligations under this Sublease;
(3) Recover damages caused to Auburn by Gambini's breach; and/or
(4) Perform the obligations of Gambini that are in breach and recover from
Gambini the costs incurred by Auburn in such performance.
The remedies provided in this section are cumulative with each other and
cumulative with and in addition to all other remedies as may be permitted by law or
equity except that Auburn hereby waives and releases any and all rights, and shall have
no right, to terminate this Sublease or Gambini's rights of possession of any part of the
Leased Premises on account of any breach by Gambini of one or more of its obligations
under this Sublease. As a substitute for such termination, Auburn may obtain an order
from a court with jurisdiction over the parties and the subject matter directing Gambini's
subtenants and licensees to attorn to and perform to and for the benefit of Auburn all of
such subtenants' and licensees' respective obligations under their sublease or license until
Gambini has fully cured its breach, including payment (to 'the extent applicable) under
subparts (1), (2) and (4) of this section or such other time as the court may direct.
Auburn Sound Transit Station Sublease Agreement
City of Auburn -Gambini
Page 7
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B. Emergencies. If Gambini's default in any of its obligations under this
Sublease creates or enhances an emergency, a serious risk of death or injury to any
person, or a serious risk of injury or damage to any property, Auburn may, without giving
Gambini prior notice and opportunity to cure, immediately exercise the remedy specified
in Section 9.3 (a) (iv) with respect to that default and, for that purpose, enter any part of
the leased premises reasonably necessary to do so.
12. Gambini's Remedies for Auburn's Breach:
A. General Provisions. On or at any time after the occurrence of any breach
of one or more of Auburn's obligations under this Sublease, Gambini may elect to:
(1) Terminate this Sublease and recover ar_d setoff under subparts (4) and (5)
of this Section;
(2) Bring an action for specific .performance of Auburn's obligations and
recover under subpart (4) of this Section;
(3) Perform the obligations of Auburn which are in breach and recover under
subpart (iv) of this Section;
(4) Recover from Auburn (a) all monetary sums, if any, then due and unpaid
to Gambini by Auburn, (b) the costs of performing or completing obligations of which
Auburn is in breach, and (c) damages caused to Gambini by Auburn's breach; and
(5) Setoff all or any part of the sums described in subpart (4) of this Section
against any sums payable by Gambini to Auburn under this Sublease in the order in
which such sums would otherwise be due until the entire amount, together with interest at
eight percent (8%) per annum on the declining principal balance thereof, has been fully
setoff.
Gambini shall give Auburn written notice of Gambini's elections under this
Section 12. Gambini's election of any of the remedies under subparts (2) through (5)
shall not preclude .Gambini from electing at a subsequent time any other of such remedies
or of electing to proceed under subpart (1). The election of the remedy under subpart (1)
precludes the subsequent exercise of any other remedy. Except as provided in the
preceding sentence, the remedies specified in this Section are cumulative with each other
Auburn Sound Transit Station Sublease Agreement
City of Auburn -Gambini
Page 8
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and cumulative with and in addition to all other remedies as may be permitted by law or
equity.
B. Emergencies. If Auburn's default in any of its obligations under this
Sublease creates or enhances an emergency, a serious risk of death or injury to any
person, or a serious risk of injury or damage to any property, Gambini may, without
giving Auburn prior notice and opportunity to cure, immediately exercise the remedy
specified in Section 12.A (4) with respect to that default and, for that purpose, enter any
part of the Parking Garage and of the Station reasonably necessary to do so.
13. Interest: Any amount owed by one party to the other under this Sublease
which is not paid when due shall bear interest at the rate of eight percent (8%) per annum
from the due date of such amount. The payment of interest on such amounts shall not
excuse or cure any default under this Sublease on account of the failure to pay the amount
owed when due.
14. Indemnification and Hold Harmless: Gambini shall defend, indemnify,
and hold harmless Auburn, its officers, officials, employees and volunteers from and
against any and all claims, suits, actions, or liabilities for injury or death of any person, or
for loss or damage to property, which arises out of Gambini's use of the commercial
retail space, or from the conduct of Gambini's business, tenants, or from any activity,
work or thing done, permitted, or suffered by Gambini in or about the premises, except
only such injury or damage as shall have been occasioned by the sole negligence of
Auburn.
Auburn shall defend, indemnify and hold harmless Gambini from any claims by
Sound Transit that Auburn breach its lease with Sound Transit.
15. Insurance: Gambini shall procure and maintain for the duration of the
Agreement, insurance against claims for injuries to persons or damage to property which
may arise from or in connection with Gambini's operation and use of the sub-leased
premises.
A. Minimum Scope of Insurance. Gambini shall obtain Commercial General
Liability insurance written on Insurance Services Office (ISO) occurrence form CG 00 O1
and shall cover premises and contractual liability. Auburn shall be named as an insured
Auburn Sound Transit Station Sublease Agreement
City of Auburn -Gambini
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on Gambini's Commercial General Liability insurance policy using ISO Additional
Insured-Managers or Lessors of Premises Form CG 20 11 or a substitute endorsement
providing equivalent coverage.
Commercial General Liability insurance shall be written with limits no less than
$.1,000,000 each occurrence, $2,000,000 general aggregate.
Property insurance shall be written covering the full value of Gambini's property
and improvements with no coinsurance provisions.
The insurance policies are to contain, or be endorsed to contain, the following
provisions for Commercial General Liability insurance:
The Gambini's insurance coverage shall be primary insurance as respect to
Auburn. Any Insurance, self-insurance, or insurance pool coverage maintained by
Auburn shall be excess of the Gambini's insurance and shall. not contribute with it.
Gambini's insurance shall be endorsed to state that coverage shall not be
cancelled by either party, except after thirty (30) days prior written notice by certified
mail, return receipt requested, has been given to Auburn.
B. Verification of Coverage. Gambini shall furnish Auburn with original
certificates and a copy of the amendatory endorsements, including but not necessarily
limited to the additional insured endorsement, evidencing the insurance requirements of
the Gambini.
C. Waiver of Subrogation. Gambini and Auburn hereby release and
discharge each other from all claims, losses and liabilities arising from or caused by any
hazard covered by property insurance on or in cormection with the premises or said
building. This release shall apply only to the extent that such claim, loss or liability is
covered by insurance.
D. Destruction of Property/Insurance Benefit. In the event of any destruction
of property, Gambini shall receive value of Gambini's interest from any insurance
proceeds as described in the Lease Agreement, Exhibit 1, which value shall be
determined by prorating the lease terms and lease amount remaining as taken as a
percentage to the total property value.
Auburn Sound Transit Station Sublease Agreement
City of Auburn -Gambini
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16. Condemnation: In the event of a condemnation Gambini would have the
right to participate and any compensation received would be awarded as set forth in 15.D.
above.
17. Attorneys' Fees and Costs: In any action between the parties arising out
of or related to this Sublease, the prevailing party shall recover from, and the losing party
shall pay to the prevailing party, the prevailing party's reasonable expenses of the action.
"Action" includes: (i) litigation or other adversary proceeding in any court or
governmental body with jurisdiction (including but not limited to a bankruptcy court);
appeals of the decision of any lower tribunal (including but not limited to an award in
arbitration); and, if such proceedings are required by law or agreed by the parties,
alternative dispute resolution proceedings (such as but not limited to mediation and/or
arbitration). "Expenses of the action" include but are not limited to the reasonable fees
and costs of witnesses, consultants, experts, and attorneys. However, anything appearing
to the contrary notwithstanding, the provisions of this Section 16 does not apply to
mediation under Section 17B.
18. Dispute Resolution:
A. Negotiation. The Parties agree to use their best efforts to resolve disputes
and other matters arising out of the planning, design and construction of the Station and
Station Area (including but not limited to the Parking Garage and the Plaza Areas),
arising out of the ongoing administration of the Parking Garage and Plaza Areas
facilities, and arising under this Sublease. If an issue cannot be resolved between Auburn
and Gambini, either of them may invoke a formal conflict resolution process. The first
step in the process is a meeting including Auburn's Property Management Officer and
Harold Gambini or his authorized representatives. If these persons do not resolve the
dispute in a timely manner, the second step in the conflict resolution process shall be a
meeting of Auburn's Supervisor of the Property Management Officer and Harold
Gambini. If these persons do not resolve the dispute in a timely manner the third step in
the conflict resolution process shall be a meeting of Auburn's Mayor and Harold
Gambini. Auburn and Gambini agree to exhaust all three steps of .this negotiation
process before seeking mediation as next described.
Auburn Sound Transit Station Sublease Agreement
City of Auburn -Gambini
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B. Mediation. If the parties do not resolve the dispute in the conflict
resolution process described. in Section 17.A, then either party may by written notice to
the other require that the dispute be submitted to mediation. Within fourteen (14) days
after such notice, the parties shall agree on and' mutually appoint a mediator. If such
agreement and appointment is not made, then either party may petition the King County
Superior Court to appoint a mediator. Each party shall participate in good faith in the
mediation process with the appointed mediator. Auburn and Gambini each agree to
participate in good faith in the mediation process with appointed mediator before seeking
redress in a court of law or other tribunal. The costs and fees of the mediator shall be
paid one-half each by Gambini and by Auburn.
19. Miscellaneous Provisions:
A. Non-Discrimination. Neither Gambini nor Auburn shall discriminate
against any person or group of persons on the basis of race, color, sex, creed, national
origin or ancestry in any way related to or arising out of the party's rights or obligations
under this Sublease.
B. Interpretation. The captions of the Articles and Sections of this Sublease
are intended only to assist in reading this Sublease and are not a part of -the terms or
provisions of this Sublease nor shall they be considered in construing or interpreting any
provision of this Sublease. Whenever required by the context of this Sublease, the
singular shall include the plural and- the plural shall include the singular. The masculine,
feminine and neuter genders shall each include the other. In any provision relating to the
conduct, acts or omissions of either party to this Sublease, reference to the party shall
also be to the party's agents, employees,. contractors, and successors.
C. Administration. This Agreement shall be administered by
on behalf of Gambini, and by the Mayor of the City of Auburn, or designee, on behalf of
Auburn. Any written notices required by the terms of this Agreement shall be served on
or mailed to the following addresses:
City of Auburn Harold Gambini
Auburn City Hall P.O. Box 3044
25 West Main Renton, WA 98059
Auburn, WA 98001-4998 (253) 931-3000/Fax (253) 931-3053
Auburn Sound Transit Station Sublease Agreement
City of Auburn -Gambini
Page 12
8120/07
D. Notices. All notices or communications permitted or required to be given
under this Agreement shall be in writing and shall be deemed to have been duly given if
delivered in person or deposited in the United States mail, postage prepaid, for mailing by
certified mail, return receipt requested, and addressed, if to a party of this Agreement, to
the address for the party set forth above, or if to a person not a party to this Agreement, to
the address designated by a party to this Agreement in the foregoing manner. Any party
may change his, her or its address by giving notice in writing, stating his, her or its new
address, to any other party, all pursuant to the procedure set forth in this section of the
Agreement.
E. Recording. This Sublease shall not be recorded without the prior written
consent of both parties. However, promptly after the request of either party, both parties
shall execute, acknowledge, deliver to one another, and record a Memorandum of this
Sublease giving constructive notice of the terms and conditions hereof. The party
requesting such recording shall pay the recording fees thereof.
F. Binding Effect; Governing Law. This Sublease is binding upon the parties
hereto and their respective successors and assigns in interest. However, the preceding
sentence does not permit any assignment in contravention of other provisions of this
Sublease. This Sublease is governed by and shall be construed and enforced according to
the laws of the State of Washington, excluding that State's laws relating to choice of law.
G. Force Majeure. If either party cannot perform any of its obligations due to
events beyond the party's control, the time provided for performing such obligations shall
be extended by a period of time equal to the duration of such events. Events beyond a
party's control include, but are not limited to, acts of God, war, civil commotion, labor
disputes, strikes, fire, flood or other casualty, shortages of labor or material, government
regulation or restriction and weather conditions.
H. Authorized Persons. For the purpose of all provisions of this Sublease that
require Auburn's consent or approval or that require Auburn to consult or agree with
Gambini, the person authorized to act for Auburn in all such matters is Auburn's Property
Management Officer. For the purpose of all provisions of this Sublease that require
Auburn Sound Transit Station Sublease Agreement
City of Auburn -Gambini
Page 13
8/20/07
Gambini's consent or approval or that require Gambini to consult with or agree with
Auburn, the person authorized to act for Gambini in all such matters is Harold Gambini,
or such person authorized in writing by Harold Gambini. Each party may from time to
time change its authorized person by written notice to the other.
I. Survival. Terms and provisions of this Sublease related to liability and
indemnity obligations shall survive the expiration or earlier termination of this Sublease.
J. Binding Effect. The covenants, obligations and conditions herein
contained shall be binding on and inure to the benefit of the heirs, legal representatives,
and assigns of the parties hereto.
GAMBINI
By: Harold ni
Dated: S~,~j~~r~'~ ~!, z~~~
LLC by Harold Gambini
Managing Partner
Dated:
Auburn Sound Transit Station Sublease Agreement
City of Auburn -Gambini
Page 14
8/20/07
By: Peter B. Lewis, Mayor
Dated: SEP - 6 2007
Attested:
~~C,? ~~'
Dan elle E. Daskam, City Clerk
EXHIBITS
EXHIBIT 1 Resolution 3469 and Lease Agreement between Auburn and Central Puget
Sound Regional Transit Authority, dated June 26, 2002,
EXHIBIT 2 Sublease between Auburn and PMF Enterprises, Inc., dated January 15,
2003,
EXHIBIT 3 Sublease between Auburn and Edward D. Jones, dated Apri129, 2004,
EXHIBIT 4 Sublease between Auburn and Green River Community College dated
April 15, 2005.
EXHIBIT 5 Diagram of the 42 designated parking spaces in the Sound Transit parking
garage.
Auburn Sound Transit Station Sublease Agreement
City of Auburn - Gambini
Page 15
8/20/07
STATE OF WASHINGTON )
ss.
COUNTY OF l/t,~ L•~ )
I certify that I know or have satisfactory evidence that e'C~°v"~ ~ ~Z~% ~ is the person, who
appeared before me and said person acknowledged that l1D , signed this instrument, on
oath stated that ~ was authorized to execute the instrument and acknowledged it as
the 4 ^ 'i of to be the free and voluntary act of such party for
the uses and urposes mentioned in the instrument.
DATED:
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~p`~' ~O t,~ Ff~,~ p'~ Printed Name: ~F yGi c.~~ ~ ~teS(~~~
'P1 ~' ~ 'NOTARY PUBLIC in and for the tate 1of
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G :' Washington, residing at ~v+~t ~~~~
i~~~'h,~p B~tG := = My Commission expires: ~'~> ~'.• 5 =- ~'-~%/
STATE OF WASHINGTON ~~4~cs~`~a?S'~ ~_.~'c~`','
COUNTY OF
I certify that I ow or have satisfactory evidence that
appeared before me and sai rson acknowledged that
oath stated that was authorized to ex
the of o be
the uses and purposes mentioned in the inst
DATED:
is the person who
~,. signed this instrument, on
t e instrument and acknowledged it as
the free and voluntary act of such party for
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Prime ame:
NOTARY PUBLIC in and for the State of
Washington, residing at
My Commission expires:
STATE OF WASHINGTON )
ss.
COUNTY OF j )
I certify that I know or have satisfactory evidence t at ~~/-'l~c1E:~ ~~~, ~ ` is the person who
appeared before me and said person acknowledged that signed this instrument, on
oath stated that _ ~ was authorized to execute the instrument as
t#e ~i +~ be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
DATED. - .~'' , ~ ~ ~~~ti~l~
qr~ ~.hpT ~-,q~'O%~;•,~ ~', Printed Name: ~Cf L7~ ~1~.~ :.F'~ ~?Z
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s =a _ . _ N% NOTARY PUBLIC in an~j f r the Stat of
~ a G ~ Washington, residing at G~~r G~~tz,c._J
%~'J;4,~~~ In 8c~,1__~U_ My Commission expires: ~(J' ~~~ ~'_~ f
Auburn Sound Transit Stati
City of Auburn - Gambini
Page 16
8/20/07
Agreement
STATE OF WASHINGTON
COUNTY OF
ss.
I certify that I know or have satisfactory evidence that is the person who
appeared before me and said person acknowledged that signed this instrument, on
oath stated that was authorized to execute the instrument and acknowledged it as
the of to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
DATED:
Printed Name:
NOTARY PUBLIC in and for the State of
Washington, residing at
My Commission expires:
STATE OF WASHINGTON
COUNTY OF
ss.
I certify that I know or have satisfactory evidence that is the person who
appeared. before me and said person acknowledged that signed this instrument, on
oath stated that was authorized to execute the instrument and acknowledged it as
the of to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
DATED:
Printed Name:
NOTARY PUBLIC in and for the State of
Washington, residing at
My Commission expires:
Auburn Sound Transit Station Sublease Agreement
City of Auburn - Gambini
Page 17
8/20/07