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HomeMy WebLinkAbout4278 Vendor Subject Department Status Code Amount Begin Date End Date Review Date Insurance Comments Contract Number 4278 OPUS NORTHWEST Developer - Conference Center - Phase I & II Econ Devel PRO File Class LEG 12-1 $446281.00 05/08/2002 12/31/2006 02/15/2008 GL AL E&O $2000000.00 $1000000.00 $ Insurance Total Insurance Review Date $3000000.00 07/01/2006 Opus signed MOU approx 4/25/06 Vault 01/01/2008 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF BREMERTON AND OPUS NORTHWEST L.L.c. This memorandum of understanding is made this day of between the City of Bremerton ("City") and Opus Northwest L.L.C. ("Opus"). , 2006 The purpose of this memorandum of understanding is to document the negotiated agreements relating to the sale and purchase of the restaurant pad at the Bremerton Conference Center, more specifically: 1) The City's release of penalties against Opus for failure to negotiate a sale and construct a restaurant on the Restaurant Pad at the Bremerton Conference Center and 2) The arrangement between the City and Opus to split the proceeds of the sale of the Restaurant Pad by the City to Mad Anthony's ("Anthony's"). In documenting this transaction, the following documents were reviewed 1) Design/Build Construction Contract dated November 15,2002 2) Purchase and Sale Agreement for Hotel Pad dated December 12, 2002 3) Purchase and Sale Agreement for Restaurant Pad dated December 16, 2002 4) Purchase and Sale Agreement for Restaurant Pad dated October 25,2004 The Design/Build Construction Contract executed between the City and Opus includes the design and construction of a hotel and restaurant on the Conference Center site by Opus on behalf of a third party. Article 4 of this contract addresses penalties associated with the delay of construction of the restaurant by Opus. The contract institutes a penalty of $25,000 for each month the restaurant fails to open after March 1,2005 to a maximum of$250,000. As with the construction of the hotel at the site, the City entered into a separate Purchase and Sale Agreement with Opus, or its assigns, for the Restaurant Pad dated December 16, 2002. That agreement laid out a cost sharing plan that would have guaranteed the City the greater of $250,000 or one half the proceeds on the sale of the restaurant pad, less commissions, for the sale of the restaurant pad to a restauranteur. Opus began negotiations with Anthony's but was unable to reach an agreement for the sale and construction of a restaurant on the Restaurant Pad. As a consequence, the City took over negotiations with Anthony's and subsequently entered into a purchase and sale agreement with Anthony's dated October 25,2004. Because the City assumed responsibility for the negotiations, Opus was released from any penalties related to the restaurant construction referenced in Article 4 of the Design/Build Contract. It was further agreed that, due to Opus' involvement in bringing Anthony's into the project, the restaurant pad proceeds would be split 50/50 after the City's costs for title insurance and the agreed commission were deducted. Following is the calculation of Opus's share of the sale proceeds: 1 Sale Proceeds Title Insurance Commission Net Proceeds $300,000 1,143 - 30,000 $268,857 Opus's share $134,428 The undersigned parties acknowledge and agree that the above summary accurately sets forth the negotiated terms between the City and Opus for the sale of the Restaurant Pad to Anthony's. IN WITNESS WHEREOF, the parties have set their hand on the day and year first written above. By: Gar exton Its: Redevelopment Projects Administrator C?-;R~ By: Cary Bozeman Its: Mayor ---- R:\Legal\Legal\Files\Current Active Files\Conference Center\Anthony's Memorandum of Understanding.doc 2 +--------------------------------------------------------~-----------------+ tEnter Search Criteria, Press Esc Key to Transmit 9= tPress Del Key to Terminate Delete Mode * CHANGE Contract Number ,=Vendor Name "Subject '=Department =fStatus Code t 9= -.- 9= ;= 9= Comments OPUS NORTHWEST DEVELOPER - CONFERENCE ECON DEVEL PRO Insurance Type Amount GL $2000000.00 AL $1000000.00 4278 Contract Transactions CENTER - PHASE I & II Amount Begin Date End Date Review Date Insurance Total Insurance Review Date =f t 9= =f $446281.00 05/08/2002 12/01/2005 .- $3000000.00 * 07/01/2005 -- y =f t t +--------------------------------------------------------------------------+ PURCHASE AND SALE AGREEMENT FOR HOTEL PAD This PURCHASE AND SALE AGREEMENT FOR HOTEL PAD (this "Agreement") is dated for reference purposes the 11th day of December, 2002, and is by and between THE CITY OF BREMERTON, a municipal corporation (the "Seller"), and OPUS NORTHWEST, LLC., a Delaware limited liability company ("Buyer"). RECITALS A. The City of Bremerton and Kitsap Transit, a municipal corporation who acquired title as Kitsap Transit, Inc., a Washington corporation ("Kitsap Transit") own land situated in the City of Bremerton, County of Kitsap, State of Washington as currently shown in map attached hereto as Exhibit A-1 and legally described in Exhibit A-2 attached hereto and made a part hereof. The Seller and Kitsap Transit (collectively, the "Proponents") have entered into an Interlocal Agreement between themselves. B. The Proponents desire to develop the Property (as such term is defined in Exhibit B) into the Conference Center with a conference center, a parking garage, a hotel, a restaurant and an office/retail building. The Proponents and Buyer have previously executed that certain Design/Build Construction Contract dated November 15, 2002 (the "Design/Build Agreement"), wherein the Proponents have hired Buyer to design and construct, on behalf of the Proponents, the parking garage, the conference center and a plaza, which construction shall result in the creation of a structural pad for a hotel on the portion of the garage owned by Seller, the air-rights over which will be sold and conveyed to Buyer, or its assigns, for the construction of a hotel. C. Buyer desires to purchase, or assign its rights to purchase, the Hotel Air-Rights (as such term is def'med below) from Seller, upon and subject to all of the terms, provisions and conditions set forth in this Agreement. AGREEMENTS NOW, THEREFORE, for and in consideration of the mutual covenants and conditions set forth herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows: 1. Definitions. Capitalized terms used in this Agreement shall have the meanings set forth in ExtfibJI_B attached hereto and made a part hereof. 2. Agreement to Sell and Purchase. Seller shall sell the Hotel Air-Rights to Buyer or its assigns, and Buyer or its assigns shall purchase the Hotel Air-Rights from Seller, at the price and on the terms, provisions and conditions hereinafter set forth. 51225\05349~241025.V 11 DNL 3. Purchase Price. The purchase price to be paid by Buyer to Seller for the Hotel Air-Rights (the "Hotel Purchase Price") shall be the greater of (i) Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00), or (ii) one-half (1/2) of the purchase price, less commissions, for Buyer's sale of the Hotel Air-Rights to a third party. At the Hotel Air-Rights Closing, the Hotel Purchase Price shall be payable by wire transfer or otherwise in immediately available funds. To the extent Buyer has deposited any earnest money with the Escrow Agent or has paid eamest money to Seller, the Hotel Purchase Price shall be credited with such earnest money. 4. Conditions Precedent. (a) Completion of Separate Lot Process and Structural Components. Buyer contemplates selling its rights to acquire the Hotel Air-Rights to a third-party user, owner or developer with whom Buyer would contract ("Prospective Client") and that such Prospective Client would construct and operate a hotel within the Hotel Air Rights ("Intended Use"). Buyer's obligations under this Agreement shall be conditioned upon (i)Seller obtaining the necessary approvals to constitute the Hotel Air-Rights as a separate, legal lot, (ii)Seller constructing and maintaining a structural pad under the Hotel Air-Rights such that a hotel may be built on said structural pad, (iii) commencement of construction of the conference center building (excluding work in the garage) as said date may be delayed in accordance with the terms of the Design/Build Agreement, and (iv) the parties shall have agreed upon the necessary easements and other related documents to govern the rights and obhgations of the parties in connection with the operation of the Bremerton Downtown Conference Center, which easements and other related documents shall be agreed upon and attached hereto as Exhibit C. Seller agrees that it will immediately commence the process to constitute the Hotel Air-Rights as a separate, legal lot and complete said process no later than September 1, 2003. In the event Seller is not able to complete such process by September 1, 2003, the commencement of the Hotel penalty described in Article 4 of the Design/Build Agreement shall be extended for one month and shall be further extended on a month-for-month basis for each month thereafter that said process is not completed. 5. 1~. The sale and purchase of the Hotel Air-Rights shall be closed within twenty (20) days after the last to occur of (i) the creation of the Hotel Air-Rights as a separate, legal lot, (ii) completion of the structural components to support the hotel to be built within the Hotel Air-Rights, and (iii)the date of commencement of construction of the conference center building (excluding work in the garage) as said date may be delayed in accordance with the terms of the DesignJBuild Agreement (the "Hotel Air-Rights Closing Date"). Notwithstanding anything to the contrary contained in the Design/Build Agreement, the assignment rights and/or title reversion rights in favor of Seller described in the Design/Build Agreement shall be a deed of trust which may be foreclosed at any time after the end of the penalty period set forth in the Design/Build Agreement (i.e., when the $600,000 penalty has been fully paid to Seller) if the hotel to be constructed within the Hotel Air-Rights is not completed and open for business by the end of said penalty period, which deed of trust shall be subordinate only to Buyer's assignee's construction lender's deed of trust. Prior to the Hotel Air-Rights Closing, Seller and Buyer shall agree upon the form and substance of the deed of trust to effectuate such remedy. Seller acknowledges that Buyer, if Buyer has assigned its interest in this 2 51225\05349~241025.V11 DNL Agreement, will also retain a right to obtain ownership and possession of the Hotel Air-Rights and the hotel to be built thereon back fi.om Buyer's assignee if the hotel is not completed and open for business at some date prior to the end of the penalty period in order to allow Buyer the ability to complete the hotel and sell it in order to recoup the penalty which Buyer will have already paid to Seller under the Design/Build Agreement. Buyer's right to obtain ownership and possession of the Hotel Air-Rights and the hotel to be built thereon shall at all times be subordinate to the rights of the Seller to obtain ownership and possession of the Hotel Air-Rights and the hotel to be built thereon. 6. Title Insurance; Survey. (a) The City of Bremerton has delivered to Buyer a title commitment for an ALTA (1970 Form B) owners title insurance policy issued by the Title Insurer, Commitment No. 890744-C3 (the "Bremerton Title Commitment"), reflecting fee simple absolute title to the portion of the Property described therein in the City of Bremerton. Kitsap Transit has delivered to Buyer a title commitment for an ALTA (1970 Form B) owners title insurance policy issued by the Title Insurer, Commitment No. 890745-C3 (the "Kitsap Title Commitment"), reflecting fee simple absolute title to the portion of the Property described therein in Kitsap Transit. The Bremerton Title Commitment and the Kitsap Title Commitment are herein collectively called the "Title Commitments". Seller shall have until the Hotel Air-Rights Closing Date to cause the General Exceptions of the Title Commitments, Special Exception Nos. 1-10 of the Bremerton Title Commitment and Special Exception Nos. 1-13 of the Kitsap Title Commitment, to be removed of record and from the Title Commitments. In addition, Seller shall have until the Hotel Air-Rights Closing Date to cause Special Exception Nos. 11-26 of the Bremerton Title Commitment and Special Exception Nos. 14-25 and 27 of the Kitsap Title Commitment to either be removed or to be revised or affirmatively insured over to the extent such exceptions would interfere with Buyer's proposed development of the Hotel Air-Rights. To the extent Special Exception Nos. 11-26 of the Bremerton Title Commitment and Special Exception Nos. 14-25 and 27 of the Kitsap Title Commitment may remain under the preceding sentence, together with any additional title exceptions created pursuant to the development of the Property as a convention center which do not interfere with Buyer's proposed development of the Hotel Air-Rights, are herein called the "Permitted Exceptions." Prior to the Hotel Air-Rights Closing Date, Seller shall cause the Title Commitment to be amended to provide for extended coverage over all general exceptions contained in the policy and insuring as separate parcels any easements appurtenant to the Property with the costs equally divided between the parties. (b) Prior to the Hotel Ak-Rights Closing Dates described in Section 5 above, Seller shall, with the costs to be equally divided between the two parties, cause a survey ("Survey") of the Property to be prepared by a Licensed and Registered Surveyor reasonably acceptable to Buyer and shall cause to be delivered to Buyer a plat of such Survey certified to Buyer, the Title Insurer and Buyer's lender, if any, as having been prepared in compliance with the Minimum Standard Detail Requirements for ALTA/ACSM l_and Title Surveys adopted in 1999 and meeting the accuracy requirements of an "Urban" survey. The Survey shall set forth the legal 3 51225\05349~241025.V 11 DNL description of the Hotel Air-Rights, shall show the location of all improvements, easements and set-back lines, other restrictions, means of ingress and egress, electric, water, sewer, gas and other utility lines servicing such Hotel Air-Rights, any encroachments and any easements on adjacent land, and indicate the area (in square feet) of the structural pads over which the Hotel Air-Rights will exist. The Survey shall indicate whether the Property is located within an area designated by the Federal Insurance Administration or any other governmental agency as being subject to special flooding hazards, and the extent to which the Property has access to a public street or streets. The Survey must also be sufficient to cause the Title Insurer to delete the general exceptions relating to survey matters. 7. Representations and Warranties of Seller Seller hereby represents to Buyer that all of the following are tree and correct on and as of the date hereof, shall continue to be true and correct as of the Closing Date, and shall survive the Closing and delivery of the deed: (a) All requisite action has been taken and been obtained by Seller in connection with the entering into this Agreement and the instruments referenced herein, and the consummation of the transaction contemplated hereby. No consent of any administrative or legislative body or other party is required for the performance of Seller's obligations hereunder. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Seller has the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. This Agreement and all documents required hereby to be executed by Seller are and shall be valid, legally binding obligations of and enforceable against Seller in accordance with their respective terms, subject only to applicable bankruptcy or similar laws or equitable principals affecting or limiting the rights of contracting parties generally. (b) Seller has not received and, to the best of Seller's knowledge, no predecessor of Seller has received notice of any violation of any law, municipal ordinance or other governmental requirement affecting the Propemy or the contemplated development of the Property or any portion thereof. (c) Seller is not a party to any subsisting agreement, contract or commitment to sell, convey, let, assign, transfer, provide fights of first refusal or other similar rights with respect to, or otherwise dispose of, all or any part of the Property, or any interest therein or occupancy right thereto, other than this Agreement. Except for this Agreement and the Permitted Exceptions, neither Seller nor any person or entity claiming by, through or under Seller has done, suffered or pcmfitted anything whereby any lien, claim or right of another has been created against the Property, or any portion thereof or any interest therein. (d) Seller has no knowledge that any permit, certificate, license or other similar approval or authorization, other than permits relating to customary building permits, is required for the sale or development of the Property under any federal, state or local law, ordinance, rule or regulation, or by any governmental or quasi-governmental agency having jurisdiction over the Property, or any portion thereof. 4 51225\05349Y241025.VI1 DNL (e) Seller has no knowledge of any existing laws, ordinances or restrictions, including, without limitation, so-called recapture agreements, which would prevent or limit the right or ability of Buyer, or its lessees, invitees, successors or assigns (including, without limitation, any Prospective Clients), to develop and use the Property for the Intended Uses or to obtain any government approvals necessary to develop the Property for the Intended Uses. (f) There is no action, proceeding or investigation pending or, to the best of Seller's knowledge, threatened, against Seller, or with respect to the Property, or any portion thereof, before any court or governmental department, commission, board, agency or instrumentality which would affect the contemplated development of the Property. Seller has no knowledge of any basis for any such action, proceeding or investigation. (g) Seller has not received any notice of environmental or health code violations with respect to the Property, or any portion thereof. (h) Seller has not received notice of any contemplated special assessments relating to the Property, or any portion thereof. (i) Except as provided in Section 17(f) hereof, no leasing, sales or other broker's fees or commissions of any nature whatsoever shall be or become due or owing to any person, firm, corporation or entity whomsoever after the applicable Closing Date. (j) Seller has not stored, transported, discharged or released any Hazardous Materials, and has not permitted the storage, transport, discharge or release of Hazardous Materials, on the Property, or any portion thereof. Further, except as set fo~h in the Technical Memorandum prepared by Parametrix dated June 12, 2002 and the reports identified therein, Seller has no knowledge of any other person or entity having stored, transported, discharged or released Hazardous Materials on the Property, or any portion thereof. (k) There are no (i) orders from or agreements with any governmental authority or private party or any judicial or administrative proceedings or investigations, whether pending or threatened, respecting any environmental, health or safety requirements under federal, state or local laws or regulations relating to the Property, or (ii) pending, asserted or threatened claims or matters involving material liabilities, obhgations or costs arising t?om the existence, release or threatened release of any Hazardous Materials at, on or beneath the Property. The accuracy of the foregoing representations and warranties shall be a condition to Buyer's obligations under this Agreement. If any of the foregoing representations or warranties is untrue in any material respect, and is not cured (at no cost to Buyer) prior to any of the scheduled Closing Dates, then Seller shall be allowed a period of five (5) days after the date of such scheduled Closing Date in order to cause such representations and warranties to be true, and shall use reasonable efforts to do so (and Seller shall notify Buyer promptly if Seller determines that Seller will not be able to do so). If Seller shall not cause such representations and warranties to conform to the requirements of this Agreement within such five (5) day period, then Buyer may elect (x) to purchase the Property as it then is, with the right to cause such non-conforming representations and warranties to be true and to deduct from the Purchase Price amounts which 5 51225\05349~241025.V11 DNL Buyer and Seller reasonably agree are equal to the reasonable costs and expenses incurred as a result thereof and which are of a definite or ascertainable amount; or (y) to terminate this Agreement (other than the parties' respective obligations under Section 17(11 hereof); or (z) to extend the time for up to an additional thirty (30) days for Seller to cause such representations and warranties to conform to the requirements in this Agreement, and the respective Closing Date shall automatically be extended by the number of days equal to such extended period (and if Buyer elects to allow the extension of such time, Buyer shall have the same rights concerning such matters at the end of such extended period as Buyer had at the end of the original period). Further, if the matter which causes the representations or warranties to fail to conform to the requirements of this Agreement is a matter which was caused by Seller, or could have reasonably been anticipated by Seller, then Buyer's rights set forth in the immediately preceding sentence shall be in addition to, and not in lieu of, any other rights and remedies available to Buyer for default by Seller and shall include, without limitation, any and all damages, direct and indirect, which Buyer may suffer as a result of the failure of the representations or warranties to conform to the requirements of this Agreement. 8. Representations and Warranties of Buyer. Buyer hereby represents and warrants to Seller that the following are true and correct on and as of the date hereof, shall continue to be tree and correct as of the Closing Date, and shall survive the Closing and delivery of the deeds: (a) There is no action, proceeding or investigation pending, or to the best of Buyer's knowledge threatened, against Buyer before any court or governmental department, commission, board, agency or instrumentality with respect to the Property, or any portion thereof, or Buyer's obligations under this Agreement. Buyer has no knowledge of any basis for any such action, proceeding or investigation. (b) All requisite action has been taken and been obtained by Buyer in connection with the entering into this Agreement and the instruments referenced herein, and the consummation of the transaction contemplated hereby. No consent of any creditors, directors, shareholders, judicial or administrative body, governmental or quasi-governmental authority, or other party is required for the performance of Buyer's obligations hereunder. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Buyer has the legal power, right and actual authority to bind Buyer to the terms and conditions hereof and thereof. This Agreement and all documents required hereby to be executed by Buyer are and shall be valid, legally binding obligations of and enforceable against Buyer in accordance with their respective terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium laws or similar laws or equitable principals affecting or limiting the rights of contracting parties generally. 6 51225\05349X241025.VII DNL 9. Closing. Provided that all conditions of closing hereunder have occurred, the closing of this transaction ("Closing") shall occur at the Kitsap County offices of Pacific Northwest Title Company on the Hotel Air-Rights Closing Date. On the Hotel Air-Rights Closing Date: (a) Seller shall execute and deliver to the Escrow Agent for delivery to Buyer the following: (i) Seller's Statutory Warranty Deed in the form set forth in Exhibit D attached hereto and made a part hereof, and otherwise in recordable form sufficient to convey to Buyer fee simple absolute title to the Hotel Air-Rights, subject only to the Permitted Exceptions; (ii) An Affidavit of Title in customary form as required by the Title Company; (iii) Excise Tax affidavit in the form required pursuant to applicable law; (iv) An estimated seller's closing statement signed by Seller; (v) A certificate from Seller that all of Seller's representations and warranties set forth in this Agreement are tree and correct as of the Hotel Air-Rights Closing Date, to the same extent as if the reference date were the Hotel Air-Rights Closing Date; (vi) A "FIRPTA" Affidavit conforming to the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations applicable thereto, and if Seller fails to furnish such F1RPTA Affidavit, Buyer may withhold from the Purchase Price an amount sufficient to comply with the provisions of such Section; (vii) Such other documents as may be necessary or proper to comply with this Agreement or required (by the Title Insurer or otherwise) to carry out its terms. (b) Buyer shall execute and deliver to the Escrow Agent for dehvery to Seller on the Hotel Air-Rights Closing Date, the following: (i) The Purchase Price, plus or minus prorations, by wire transfer or otherwise in immediately available funds; (ii) Excise Tax affidavit, executed by Buyer in the form required pursuant to applicable law; (iii) An estimated buyer's closing statement signed by Buyer; 7 51225\05349X241025.V 11 DNL (iv) A certificate from Buyer that all of Buyer's representations and wananties set forth in this Agreement are true and correct as of the Hotel Air-Rights Closing Date, to the same extent as if the reference date were the Hotel Air-Rights Closing Date; and (vi Such other documents as may be necessary or proper to comply with this Agreement or required to carry out its terms. 10. Prorations; General Real Estate Taxes. (a) At the Hotel Air-Rights Closing, all utilities shall be prorated as of the Hotel Air-Rights Closing Date on the basis of the then most recent bills for such utilities; provided, however, that within thirty (30) days after the actual bill or bills for the applicable period or periods are available, the patties shall re-prorate each utility on the basis of such actual bill or bills. (b) The Property is presently not carded on the tax rolls by reason of the status of Seller as a municipal entity. The parties shall take all necessary action on and after the Hotel Air-Rights Closing Date to place the Hotel Air-Rights on the tax rolls and Buyer shall be responsible for all taxes assessed on and after the Hotel Air-Rights Closing Date. 11. Development Matters. (a) From and after the date hereof and from and after the Hotel Air-Rights Closing (this covenant surviving the Hotel Air-Rights Closing and delivery of the deed), Seller shall, at the request of Buyer and without cost to Seller, cooperate with Buyer (including, without limitation, joining in the execution of applications) in connection with: (i) applications, agreements and approvals relating to zoning, site plan, subdivision, utility and other development matters, including, without limitation, all licenses, permits, easements, rights-of-way, and proofs of dedication necessary to permit the contemplated development of the Property; and (ii) any requirements of Seller or Buyer or any state or federal government, or any agency thereof, or any public utility, relating to the contemplated development of the Property, or any poxtion thereof, in accordance with the Intended Uses. (b) Seller covenants that Seller will not make any agreements with, or grant rights to any other party, governmental or private, which will prevent or limit the right of Buyer, or its lessees, invitees, successors or assigns (including, without limitation, Prospective Clients), so to use the Hotel Air-Rights or to obtain any such consents or approvals. The foregoing covenant shall survive the Hotel Air-Rights Closing and delivery of the deed. 8 51225\05349~241025.V 11 DNL 12. Conditions of Closing. (a) The obligation of Buyer to consummate this transaction is expressly subject to and contingent upon the occurrence of each and every one of the following: (i) Buyer and/or the Escrow Agent, as applicable, shall have received the items set forth in Section 9(a) hereof. (ii) The Title Insurer shall be prepared to issue the Title Policy, dated as of the Closing Date and showing fee simple title to the Hotel Ak-Rights in Buyer, subject only to the Permitted Exceptions, and otherwise in accordance with the provisions of and containing the extended coverage and the endorsements specified in Section 6 hereof. (iii) All representations and warranties of Seller shall be tree and correct as of the Closing Date. (iv) Buyer is satisfied that it has no responsibility for the remediation or removal of any Hazardous Materials on the Property. (v) Seller shall have complied with all provisions of this Agreement. (b) In the event any of the foregoing conditions have not been fulfilled or expressly waived in writing by Buyer, then in addition to any other remedy available to Buyer, Buyer may terminate this Agreement by giving written notice to Seller on or before the Hotel Air-Rights Closing Date. 13. Earnest Money: Default: Penalties. (a) If Seller has not completed the creation of the Hotel Air-Rights as a separate legal lot by the date of commencement of constmction of the conference center building (excluding work in the garage) as said date may be delayed in accordance with the terms of the Design/Build Agreement, Buyer shall deposit $250,000 earnest money with the Escrow Agent within ten (10) days after the later of (i) the date of commencement of construction of the conference center building (excluding work in the garage) as said date may be delayed in accordance with the terms of the Design/Build Agreement, and (ii) the date Seller has cleared all title matters described in Section 6 above. Such earnest money shall be applied against the purchase price for the Hotel Air-Rights at the Hotel Air-Rights Closing or paid to Seller under Section 13(c), whichever is applicable. (b) If this Agreement is terminated without Buyer's fault, Buyer shall have any and all remedies available to it under this Agreement and otherwise at law or in equity. 9 51225\05349~241025.V11 DNL (c) If Buyer fails to close upon the purchase of the Hotel Air-Rights on or before the Hotel Air-Rights Closing Date, then Seller's sole remedy under this Agreement for Buyer's failure to close shall be to recover the earnest money deposit of Buyer. The earnest money deposit under this Agreement, if paid to Seller under this Section 13(c), shall be credited against the penalty payable to Seller under Article 4 of the Design/Build Agreement relating to the failure of Buyer or its assignee to timely complete construction and opening of the hotel, which completion date shall be extended as set forth in Section 4 above, but such payment and credit shall in no way limit any of Seller's fights or remedies under the Design/Build Agreement to collect the balance of the penalty. (d) If, after Buyer or its assigns has acquired the Hotel Ak-Rights, the hotel is not completed and opened by the completion date set forth in the Design/Build Agreement, as said date may be extended as set forth in Section 4 above, the purchase price paid to Seller at the Hotel Air-Rights Closing shall be credited against any penalty payable to Seller under Article 4 of the Design/Build Agreement relating to the failure of Buyer or its assignee to timely complete construction and opening of the hotel. 14. Condemnation. In the event that, between the date of this Agreement and the Closing Date, any condemnation or eminent domain proceedings are instituted by a governmental entity which has fights to acquire the Property from Seller and which might result in the taking of all or any portion of the Property (except for such portions of the Property as would not, in Buyer's sole judgment, impair the use of the Property for the Intended Uses), Seller shall immediately notify Buyer in writing of such occurrence, and thereupon Buyer may elect to: (a) terminate this Agreement, in which event all fights and obligations of the parties hereunder (other than the parties' respective indemnification obligations under Section 17(f) hereof) shall cease; or (b) elect to consummate this transaction and require Seller to deliver to Buyer a duly executed assignment, in form and substance satisfactory to Buyer, of proceeds payable as a result of Seller's fight to receive any condemnation award. Buyer shall have thirty (30) days from the date of its receipt of written notice of such institution of proceedings within which to exercise its fights under Sections 14(a) or 14(b) hereof. If the Hotel Air-Rights Closing Date is scheduled to occur within such thirty (30) day period, the Hotel Air-Rights Closing shall be delayed until Buyer makes such election, and if Buyer elects to consummate the transaction, the Hotel Ak-Rights Closing Date shall be adjusted accordingly. 15. Covenants of Seller. Between the date of this Agreement and the Closing Date, Seller shall: 10 51225\05349~241025.VI 1 DNL (a) Not, without first obtaining the written consent of Buyer, enter into any contracts or agreements pertaining to the Property, or any portion thereof; (b) Comply with all laws, ordinances, regulations and restrictions affecting the Property, or any portion thereof, and the use thereof; (c) Comply with the terms of all mortgages, liens, pledges, leases, licenses, easements and other similar encumbrances affecting the Property, or any portion thereof; (d) Not create or permit to be created any mortgage, lien, pledge, lease, license, easement or other similar encumbrance in any way affecting the Property, or any portion thereof; (e) Not commit any waste or nuisance upon the Property, or any portion thereof; (f) Comply with all requirements of the Title Insurer in connection with its insurance of fee simple title to the Property in Buyer, as required under Section 6 hereof and elsewhere herein. 16. Notices. Any notice or other communication in connection with this Agreement shall be in writing and shall be sent by United States certified mail, return receipt requested, postage prepaid, by nationally recognized overnight courier guarantee next day delivery, by telecopy or facsimile transmission, or by personal delivery, properly addressed as follows: If to Buyer: Opus Northwest, L.L.C. Suite 300 915 - 118th Avenue S.E. Bellevue, WA 98005 Attn: Thomas B. Parsons Facsimile No. (425) 519-6810 With a copy to: Opus Northwest, L.L.C. Suite 300 915 - ll8th Avenue S.E. Bellevue, WA 98005 Atto: Harry deMarre Facsimile No. (425) 519-6800 And a copy to: Opus, L.L.C. Opus Center 10350 Bren Road West Minnetonka, MN 55343 Atto: Legal Department Facsimile No.: (612) 656-4755 11 51225\05349~241025.V 11 DNL If to Seller: City of Bremerton 239 Fourth Street Bremerton, WA 98337 Atto: Gary Sexton Facsimile No.: (360) 473-5850 All notices shall be deemed given three (3) business days following deposit in the United States mail with respect to certified or registered letters, one (1) business day following deposit if delivered to an overnight courier guaranteeing next day delivery and on the same day if sent by personal delivery or by telecopy or facsimile transmission (with proof of transmission). Attorneys for each party shall be authorized to give notices for each such party. Any party may change its address for the service of notice by giving written notice of such change to the other party, in any manner above specified. 17. Miscellaneous. (a) This Agreement may be executed in any number of counterparts, each of which shall constitute an original document. (b) The Section headings or captions appearing in this Agreement are for convenience only, are not a part of this Agreement, and are not to be considered in interpreting this Agreement. (c) This written Agreement constitutes the entire agreement between the parties and supersedes any prior oral or written agreements between the parties regarding the Property. There are no verbal agreements which can or will modify this Agreement, and no waiver of any of its terms will be effective unless in a writing executed by the parties. (d) The unenfomeability or invalidity of any provisions hereof shall not render any other provisions herein contained unenforceable or invalid. (e) Neither this Agreement nor any of the rights contained hereunder may be assigned by either party without the prior written consent of the other, except that Buyer may assign its rights under this Agreement to an Affiliate of Buyer without such consent of Seller and Buyer may, for Closing purposes, assign its rights to buy the Hotel Air-Rights to a Prospective Client. (f) With respect to real estate brokers: (i) Seller represents and wanants to Buyer that Seller has not engaged or dealt with any broker or other person who would be entitled to any brokerage fee or commission in respect to the finding, negotiation or execution of this Agreement or the consummation of the transactions contemplated hereby. Seller agrees to indemnify, defend and hold harmless Buyer, and Buyer's successors and assigns, with respect to any claim by any person claiming to have been engaged by Seller, or claiming 12 51225\05349~241025.V11 DNL by, through or under Seller, so as to become entitled to any such fee or commission. (ii) Buyer represents and warrants to Seller that Buyer has not engaged or dealt with any broker or other person who would be entitled to any brokerage fee or commission in respect to the finding, negotiation or execution of this Agreement or the consummation of the transactions contemplated hereby. Buyer agrees to indemnify, defend and hold harmless Seller with respect to any claim by any person claiming to have been engaged by Buyer, or claiming by, through or under Buyer, so as to become entitled to any such fee or commission. (g) This Agreement shall be construed and enforceable in accordance with the laws of the State of Washington, without application of its choice of law rules. (h) This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. (i) This Agreement and the provisions, representations and warranties herein set forth shall survive the Closing and delivery of the deed. (j) Time is of the essence of this Agreement. (k) In the event of a default or breach of the provisions of this Agreement, the nondefaulting party hereto shall be entitled to recover reasonable costs and attorneys' fees incmred by the nondefaulting party as a result of such default. In wimess whereof, the parties hereto have caused this Agreement to be executed and delivered the day and the date first above written. BUYER: OPUS NORTHWEST, L.L.C., a Delaware limited liability company Title: Vice Presid~ilt 13 51225\05349~241025.V11 DNL SELLER: CITY OF BREMERTON, a municipal corporation By: ~~ ATTEST: Title: /~/b-~d&/l.. Title: The undersigned is executing this Agreement to acknowledge its obligations thereunder relating to the construction of the garage to support the Hotel Air Rights and executed easements and related documents in connection therewith. KITSAP TRANSIT, a municipal corporation Title: ~f"'~' ~- Title: 14 51225~05349X241025.V I 1 DNL SELLER: CITY OF BREMERTON, a municipal corporation Name: ~ l>'~.l~.~ l~n~ Name: Title: ~.~-t. Title: The undersigned is executing this Agreement to acknowledge its obligations thereunder relating to the construction of the garage to support the Hotel Air Rights and executed easements and related documents in connection therewith. KITSAP TRANSIT, a municipal corporation By: ATTEST: Name: Name: Title: Title: 14 51225\05349~41025.V 11 DNL EXHIBIT A-1 Site Map EXHIBIT A-2 Legal Description of City of Bremerton's and Kitsap Transit's Properties PARCEL I: THAT PORTION OF GOVERNMENT LOT 3, SECTION 13, AND THAT PORTION OF GOVERNMENT LOT 1, SECTION 24, AND TIDELANDS ADJOINING, ALL IN TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF LOT 1 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; THENCE SOUTH 45o20'30" EAST ALONG THE NORTHEASTERLY MARGIN OF FIRST STREET (FRONT STREET) IN SAID PLAT A DISTANCE OF 14.18 FEET TO THE MOST SOUTHERLY CORNER OF AN ALLEY DELINEATED ON BLOCK 2 OF SAID PLAT; THENCE NORTH 35°37'10" EAST 60.00 FEET ALONG SAID DELINEATED ALLEY TO THE TRUE POINT OF BEGINNING, WHICH IS ALSO CALLED PO1NT "A" FOR REFERENCE PURPOSES; THENCE SOUTH 45o20'30'' EAST PARALLEL TO THE NORTHEASTERLY MARGIN OF FIRST STREET (FRONT STREET) TO AN INTERSECTION WITH THE INNER HARBOR LINE DELINEATED ON 1958 SUPPLEMENTAL MAP OF THE BREMERTON TIDELANDS, ON FILE IN THE OFFICE OF THE COMMISSIONER OF PUBLIC LANDS, OLYMPIA, WASHINGTON; THENCE NORTHEASTERLY ALONG SAID INNER HARBOR LINE TO THE SOUTHWESTERLY MARGIN OF 2ND STREET AS DELINEATED ON SAID SUPPLEMENTAL MAP; THENCE NORTHWESTERLY ALONG SAID MARGIN TO A POINT ON THE MOST EASTERLY CORNER OF THE ALLEY DELINEATED ON BLOCK 2 1N PLAT OF TOWN OF BREMERTON; THENCE SOUTH 35°37'10" WEST ALONG SAID ALLEY 247.21 FEET TO THE TRUE POINT OF BEGINNING; EXCEPT THAT PORTION DESCRIBED AS FOLLOWS: COMMENCING AT POINT "A" HERETOFORE DESCRIBED; THENCE SOUTH 45°20'30" EAST PARALLEL TO THE NORTHEASTERLY MARGIN OF FIRST STREET 34.02 FEET TO THE TRUE POINT OF BEGINNING OF THIS EXCEPTION; THENCE NORTH 45°29'10'' EAST 14.17 FEET; THENCE NORTH 35°36'30" EAST 5.90 FEET TO THE SOUTHWEST CORNER OF AN EXISTING BRICK BUILDING; THENCE SOUTH 45o20'30" EAST ALONG THE SOUTHEASTERLY WALL THEREOF 129 FEET; 51225\05349X241025.Vll DNL THENCE SOUTH 41o53'20'' WEST 20 FEET, MORE OR LESS, TO THE SOUTHWEST BOUNDARY OF THE MAll TRACT HERETOFORE DESCRIBED; THENCE NORTH 45o20'30'' WEST 129.41 FEET, MORE OR LESS, TO THE TRUE POllT OF BEGINNllG. PARCEL II: COMMENCllG AT A POINT ON THE NORTHEASTERLY LINE OF FRONT STREET, ALSO KNOWN AS FIRST STREET, BREMERTON, WASHllGTON, WHICH IS SOUTH 45°20'30" EAST A DISTANCE OF 14.18 FEET FROM THE SOUTHEAST CORNER OF LOT I 1N BLOCK 2 OF ORIGllAL PLAT OF THE TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED II VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHllGTON; THENCE NORTH 35°37'10" EAST FOR A DISTANCE OF 60 FEET; THENCE SOUTH 45°20'30'' EAST FOR A DISTANCE OF 163.43 FEET TO THE TRUE POINT OF BEGllNllG; THENCE SOUTH 45°20'30'' EAST 45 FEET; THENCE SOUTH 41°53'20'' WEST 59.39 FEET, MORE OR LESS, TO THE NORTHEASTERLY LllE OF SAID FRONT STREET (FIRST STREET); THENCE NORTHWESTERLY ALONG THE NORTHEASTERLY LllE OF FRONT STREET (FIRST STREET) 45 FEET; THENCE NORTH 41°53'20'' EAST 59.39 FEET, MORE OR LESS, TO THE TRUE POllT OF BEG1NNllG; TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOllllG OR ABUTTllG THEREON, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. PARCEL III: THAT PORTION OF GOVERNMENT LOT 1, SECTION 24, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., AND THE TIDELANDS ADJOllllG, II KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCllG AT THE MOST SOUTHERLY CORNER OF LOT 1 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDllG TO PLAT RECORDED II VOLUME 2 OF PLATS AT PAGE(S) 30, II KITSAP COUNTY, WASHllGTON; THENCE SOUTH 45o20'30'' EAST ALONG THE NORTHEASTERLY LllE OF FIRST STREET (FRONT STREET) 14.18 FEET TO THE TRUE POllT OF BEGINNllG; THENCE NORTH 35°37'10'' EAST 60 FEET; THENCE SOUTH 45o20'30'' EAST 34.02 FEET; THENCE SOUTHWESTERLY TO A POllT ON THE NORTHEASTERLY LllE OF FIRST STREET WHICH IS SOUTH 45o20'30'' EAST 23.69 FEET FROM THE TRUE POllT OF BEGINNING; 2 51225\05349~241025.V 11 DNL THENCE NORTH 45020'30'' WEST 23.69 FEET TO THE TRUE POINT OF BEGINNING; TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOINING OR ABUTTING THEREON, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. PARCEL IV: LOTS 8 AND 9 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; TOGETHER WITH THAT PORTION OF VACATED ALLEY ADJOINING OR ABUTTING THEREON, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. PARCEL A: LOTS 1 AND 2 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; TOGETHER WITH THAT PORTION OF VACATED ALLEY ADJOINING OR ABUTTING ON THE EAST LYING BETWEEN THE PROJECTIONS EASTERLY OF THE NORTH AND SOUTH LINES OF SAID LOTS, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW; ALSO TOGETHER WITH THOSE PORTIONS OF VACATED FRONT (FIRST) STREET AND WASHINGTON AVENUE ADJOINING OR ABUTTING THEREON, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. PARCEL B: LOT 3 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; TOGETHER WITH THAT PORTION OF VACATED ALLEY ADJOINING OR ABUTTING ON THE EAST LYING BETWEEN THE PROJECTION OF THE NORTHERLY AND SOUTHERLY LINES OF SAID LOT 3, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. PARCEL C: LOTS 4, 5, 6 AND 7 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; 3 51225\05349~241025.V1 l DNL TOGETHER WITH THAT PORTION OF VACATED ALLEY ADJOINING OR ABUTTING ON THE EAST LYING BETWEEN THE SOUTHERLY LINE OF LOT 4 AND THE NORTHERLY LINE OF LOT 7 PROJECTED EAST, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. PARCEL D: THE SOUTHEASTERLY 30 FEET OF THE FOLLOWING DESCRIBED PROPERTY: THAT PORTION OF GOVERNMENT LOT 1, SECTION 24, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT ON THE NORTHEASTERLY LINE OF FRONT (NOW FIRST) STREET, BREMERTON, WASHINGTON, 14 FEET SOUTHEASTERLY FROM THE SOUTHEAST CORNER OF LOT 1 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KiTSAP COUNTY, WASHINGTON; THENCE NORTHEASTERLY PARALLEL WITH THE SOUTHEASTERLY LINE OF SAID BLOCK 2 A DISTANCE OF 60 FEET; THENCE SOUTHEASTERLY PARALLEL W1TH THE NORTHEASTERLY LINE OF FRONT STREET 234 FEET, MORE OR LESS, TO 1NNER HARBOR LINE; THENCE SOUTHWESTERLY PARALLEL WITH THE SOUTHEASTERLY LINE OF SAID BLOCK 2 A DISTANCE OF 60 FEET, MORE OR LESS, TO THE NORTHEASTERLY LINE OF FRONT STREET; THENCE ALONG SAID LINE NORTHWESTERLY TO THE PLACE OF BEGINNING; TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOINING OR ABUTTING THEREON, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW; EXCEPT FROM ALL OF THE ABOVE ANY PORTION THEREOF LYING EASTERLY OF THE INNER HARBOR LINE. PARCEL E: THAT PORTION OF THE GOVERNMENT LOT 1, SECTION 24, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON AND THE TIDELANDS ADJOINING, DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30; THENCE SOUTH 45020'30'' EAST ALONG THE NORTHEAST LINE OF FIRST STREET 14.18 FEET TO THE TRUE POINT OF BEGINNING; 4 51225\05349~241025.Vll DNL THENCE NORTH 35°37'10'' EAST 60 FEET; THENCE SOUTH 45020'30" EAST 34.02 FEET; THENCE NORTH 45°29'10'' EAST 14.17 FEET; THENCE NORTH 35036'30'' EAST 5.90 FEET TO THE SOUTHWESTERLY CORNER OF EXISTING BRICK BUILDING; THENCE ALONG THE SOUTHEASTERLY WALL OF SAID BUILDING AND THE LINE OF SAID WALL PRODUCED, SOUTH 45020'30'' EAST 129.00 FEET; THENCE SOUTH 41053'20'' WEST 79.39 FEET, MORE OR LESS, TO A POINT ON THE NORTHEASTERLY LINE OF FIRST STREET; THENCE NORTH 45020'30'' WEST ALONG SAID LINE TO THE TRUE POINT OF BEGINNING; TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOINING OR ABUTTING ON THE SOUTH, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. EXCEPT THE FOLLOWING DESCRIBED TRACT: COMMENCING AT MOST SOUTHERLY CORNER OF SAID BLOCK 2; THENCE SOUTH 45020'30'' EAST ALONG THE NORTHEASTERLY LINE OF FIRST STREET 14.18 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 35°37'10'' EAST 60 FEET; THENCE SOUTH 45o20'30'' EAST 34.02 FEET; THENCE SOUTHWESTERLY TO A POINT ON THE NORTHEASTERLY LINE OF FIRST STREET WHICH IS SOUTH 45020'30'' EAST 23.69 FEET FROM THE TRUE POINT OF BEGINNING; THENCE NORTH 45020'30'' WEST 23.69 FEET TO THE TRUE POINT OF BEGINNING; INCLUDING WITH SAID EXCEPTED TRACT, THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOINING OR ABUTTING SAID EXCEPTED TRACT ON THE SOUTH, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. 5 51225\05349~241025.V 11 DNL EXHIBIT B Def'mitions For purposes of this Agreement, the terms hereafter set forth shall have the following meanings: (a) Affiliate of Buyer: Affiliate of Buyer shall mean Gerald Rauenhomt ("Rauenhorst"), a trust for the benefit of Rauenhorst and/or members of his family or their issue, Opus, L.L.C, Opus Corporation or an affiliate or the parent or subsidiary of either of them, or a parmership or other entity comprised solely of all or some of the above. (b) Closing or Closings: Closing or Closings shall mean the closing of the sale and purchase of the Hotel Air-Rights as contemplated by this Agreement. (c) Design/Build Aereement. Design/Build Agreement shall mean that certain Design/Build Construction Contract dated ,2002, by and between Seller and Buyer. (d) Escrow Aeent: Escrow Agent shall mean Pacific Northwest Title Insurance Company, Kitsap County office. (e) Final Plans and Specifications. Final Plans and Specifications shall have the same meaning given such term in the Design/Build Agreement. (f) Hazardous Materials: Hazardous Materials shall mean any hazardous substances or hazardous materials, including, without limitation, all substances, the presence of which on the Property, or any portion thereof, could subject the owner or occupant of the Property, or both, to civil or criminal penalties or damages, or responsibility for clean-up of such substances, including, without limitation, any material or substance which is: (i) a "hazardous waste", a "toxic waste", a "hazardous substance", a "toxic substance", an "extremely hazardous waste", a "restricted hazardous waste", a "chemical substance", or a "hazardous chemical", as such terms are defined under any environmental laws, ordinances or regulations governing or controlling the Property, or any portion thereof; (ii) petroleum or petroleum waste, including, withom limitation, crude oil or any petroleum derived substance or constituent of any such petroleum substance or waste; (iii) asbestos or asbestos containing materials; (iv) polychlorinated biphenyl; 51225\05349~241025.V 11 DNL (v) radioactive material; or (vi) pesticides. (g) Hotel Air-Rights. Hotel Air-Rights means the portion of the Property over which will be constructed a hotel as shown on the Final Plans and Specifications incorporated into the Design/Build Agreement, together with all beneficial easement rights necessary to (i) support a hotel to be constructed within the Hotel Air-Rights, and (ii) operate and maintain such hotel as an integral part of the proposed development of the Property as a conference center. (h) Hotel Air-Rights Closing Date: Hotel Air-Rights Closing Date shall mean, as specified in Section 5 hereof, the Hotel Air-Rights Closing Date. If a scheduled Closing Date does not fall on a business day, that Closing Date shall be the next business day thereafter. (i) Intended Uses: Intended Uses shall mean the intended uses for the Hotel Air-Rights as specified in Section 4 hereof. (j) Permitted Exceptions: Permitted Exceptions shall mean those title exceptions specified in Section 6 hereof. (k) Property_: Property shall mean: (i) those parcels of land more particularly described in Exhibits A-1 and A-2 attached hereto and made a part hereof; and (ii) the easements and appurtenances and all the estates and rights of Seller (now or on the Closing Date) in, to and with respect to such parcel and any and all improvements thereon. (1) Prospective Client: Prospective Client shall mean any third-party user of the Property, as specified in Section 4 hereof. (m) Survey: Survey shall mean the survey specified in Section 6 hereof. (n) Ti 1 'tm : Title Commitments shall mean the title insurance commitments specified in Section 6 hereof. (o) Title Insurer: Title Insurer shall mean First American Title Insurance Company. (p) Title Policy: Title Policy shall mean the title insurance policies to be issued by the Title Insurer at the Hotel Air-Rights Closing. 2 51225\05349~241025.V 11 DNL Exhibit C Easements and Related Documents [To be attached within 30 days of Mutual Acceptance] 51225\05349~241025.V11 DNL Exhibit D Form of Statutory Warranty Deed WHEN RECORDED RETURN TO: Name: Address: City, State, Zip: STATUTORY WARRANTY DEED THE GRANTOR, CITY OF BREMERTON, for and in consideration of $10.00 and other good and valuable consideration, in hand paid, conveys and warrants to the following described real estate, situated in the County of Kitsap, State of Washington: See Exhibit A attached hereto and by this reference incorporated here'm; Subject to those matters set forth in Exhibit B attached hereto and by this reference incorporated herein (the "Permitted Exceptions" relat'mg to the above-described property) Abbreviated Legal Description: Tax Account No.: DATED: .20 GRANTOR: 51225\05349x241025.Vl l DNL STATE OF WASHINGTON ) ) SS. COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that the persons appearing before me and making this acknowledgment are the persons whose tree signatures appear on this document. On this __ day of ,20__, before me personally appeared and , to me known to be the and ., respectively, of THE CITY OF BREMERTON, the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the fi'ee and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said municipal corporation. WITNESS my hand and official seal hereto affixed the day and year first above Notary Public in and for the State of Washington, residing at My commission expires: [Type or Print Notary Name] (Use This Spaoe for Notarial Seal Stamp) 2 51225\05349X241025.V 11 DNL Final Draft 11/18/2002 PURCHASE AND SALE AGREEMENT FOR HOTEL PAD This PURCHASE AND SALE AGREEMENT FOR HOTEL PAD (this "Agreement") is dated for reference purposes the __ day of ,2002, and is by and between THE CITY OF BREMERTON, a municipal corporation (the "Seller"), and OPUS NORTHWEST, L.L.C., a Delaware limited liability company ("Buyer"). RECITALS A. The City of Bremerton and Kitsap Transit, a municipal corporation who acquired title as Kitsap Transit, Inc., a Washington corporation ("Kitsap Transit") are the owners of land situated in the City of Bremerton, County of Kitsap, State of Washington as currently shown in map, Exhibit A-1 and legally described in Exhibit A-2 attached hereto and made a part hereof. The Seller and Kitsap Transit (collectively, the "Proponents") have entered into an Interlocal Agreement between themselves. B. The Proponents desire to develop the Property (as such term is defined in Exhibit B) into the Conference Center with a conference center, a parking garage, a hotel, a restaurant and an office/retail building. The Proponents and Buyer have concurrently executed that certain Design/Build Construction Contract dated , 2002 (the "Design/Build Agreement"), wherein the Proponents have hired Buyer to design and construct, on behalf of the Proponents, the parking garage, the conference center and a plaza, which construction shall result in the creation of a structural pad for a hotel on the portion of the garage owned by Seller, the air-fights over which will be sold and conveyed to Buyer, or its assigns, for the construction ora hotel. C. Buyer desires to purchase, or assign its rights to purchase, the Hotel Air-Rights (as such term is defined below) from Seller, upon and subject to all of the terms, provisions and conditions set forth in this Agreement. AGREEMENTS NOW, THEREFORE, for and in consideration of the mutual covenants and conditions set forth herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller agree as £oIlows: 1. Definitions. Capitalized terms used in this Agreement shall have the meanings set forth in Exhibit B a~ached hereto and made a part hereof. 2. Agreement to Sell and Purchase. Seller shall sell the Hotel Air-Rights to Buyer or its assigns, and Buyer or its assigns shall purchase the Hotel Air-Rights fi:om Seller, at the price and on the terms, provisions and conditions hereinafter set forth. 51225\05237~240255 V01 DNL 3. Purchase Price. The purchase price to be paid by Buyer to Seller for the Hotel Air-Rights (the "Hotel Purchase Price") shall be the greater of (i) Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00), or (ii) one-half (1/2) of the purchase price, less commissions, for Buyer's sale of the Hotel Air-Rights to a third party. At the Hotel Air-Rights Closing, the Hotel Purchase Price shall be payable by wire transfer or otherwise in immediately available funds. 4. Conditions Precedent. (a) Completion of Subdivision and Structural Components. Buyer contemplates selling its rights to acquire the Hotel Air-Rights to a third-party user, owner or developer with whom Buyer would contract ("Prospective Client") and that such Prospective Client would construct and operate a hotel within the conference center within the Hotel Air Rights ("Intended Use"). Buyer's obligations under this Agreement shall be conditioned upon Seller performing its obligations under the Design/Build Agreement such that the Hotel Air-Rights are a separate, legal lot, (ii) a structural pad is constructed under the Hotel Air-Rights such that a hotel may be built on said structural pad, and (iii) the parties shall have agreed upon the necessary easements and other related documents to govern the rights and obligations of the parties in connection with the operation of the Bremerton Downtown Conference Center, which easements and other related documents shall be agreed upon and attached hereto as Exhibit C. 5. Closing Date. The sale and purchase of the Hotel Air-Rights shall be closed no later than the date of commencement of construction of the conference center building (excluding work in the garage) unless said date is declared in accordance with the terms of the Design Build Contract. At the time of closing, Buyer shall pay Seller half of the purchase price. At the time of Final Acceptance of the Public parts provided for in the Design Build Construction Contract, Buyer shall pay the balance of the purchase price provided for in paragraph 3. 6. Title Insurance; Survey. (a) The City of Bremerton has delivered to Buyer a title commitment for an ALTA (1970 Form B) owners title insurance policy issued by the Title Insurer, Commitment No. 890744-C3 (the "Bremerton Title Commitment"), reflecting fee simple absolute title to the portion of the Property described therein in the City of Bremerton. Kitsap Transit has delivered to Buyer a title commitment for an ALTA (1970 Form B) owners title insurance policy issued by the Title Insurer, Commitment No. 890745-C3 (the "Kitsap Title Commitment"), reflecting fee simple absolute title to the portion of the Property described therein in Kitsap Transit. The Bremerton Title Commitment and the Kitsap Title Commitment are herein collectively called the "Title Commitments". Seller shall have until the public construction componenets are "in the dry", (excepting the plaza) to cause the General Exceptions of the Title Commitments, Special Exception Nos. 1-10 of the Bremerton Title Commitment and Special Exception Nos. 1-13 of the Kitsap Title Commitment to be removed of record and fi.om the Title Commitments. In addition, Seller shall have until the public construction components are "in the dry" (excepting the plaza) to cause Special Exception Nos. 11-26 of the Bremerton Title Commitment and Special Exception Nos. 14-25 and 2 51225\05237~240255V01 DNL 27 of the Kitsap Title Commitment to either be removed or to be revised or affirmatively insured over to the extent such exceptions would interfere with Buyer's proposed development of the Hotel Air-Rights. To the extent Special Exception Nos. 11-26 of the Bremerton Title Commitment and Special Exception Nos. 14-25 and 27 of the Kitsap Title Commitment may remain under the preceding sentence, together with any additional title exceptions created pursuant to the development of the Property as a convention center which do not interfere with Buyer's proposed development of the Hotel Air-Rights are herein called the "Permitted Exceptions." Prior to the Buyer's final purchase price payment, at Seller shall cause the Title Commitment to be amended to provide for extended coverage over all general exceptions contained in the policy and insuring as separate parcels any easements appurtenant to the Property with the costs equally divided between the parties. (b) Prior to the Buyer's final purchase price payment described in Section 5 above, Seller shall, with the cost and expense equally divided between the two parties, cause a survey ("Survey") of the Property to be prepared by a Licensed and Registered Surveyor reasonably acceptable to Buyer and shall cause to be delivered to Buyer a plat of such Survey certified to Buyer, the Title Insurer and Buyer's lender, if any, as having been prepared in compliance with the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys adopted in 1999 and meeting the accuracy requirements of an "Urban" survey. The Survey shall set forth the legal description of the Hotel Air-Rights, shall show the location of all improvements, easements and set-back lines, other restrictions, means of ingress and egress, electric, water, sewer, gas and other utility lines servicing such Hotel Air-Rights, any encroachments and any easements on adjacent land, and indicate the area (in square feet) of the structural pads over which the Hotel Air-Rights will exist. The Survey must also be sufficient to cause the Title Insurer to delete the general exceptions relating to survey matters. 7. Representations and Warranties of Seller Seller hereby represents to Buyer that all of the following are true and correct on and as of the date hereof, shall continue to be true and correct as of the Closing Date, and shall survive the Closing and delivery of the deed: (a) Ail requisite action has been taken and been obtained by Seller in connection with the entering into this Agreement and the instruments referenced herein, and the consummation of the transaction contemplated hereby. No consent of any administrative or legislative body or other party is required for the performance of Seller's obligations hereunder. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Seller has the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. This Agreement and all documents required hereby to be executed by Seller are and shall be valid, legally binding obligations of and enforceable against Seller in accordance with their respective terms, subject only to applicable bankruptcy or similar laws or equitable principals affecting or limiting the rights of contracting parties generally. 3 51225~05237~240255 V01 DNL (b) Seller has not received and, to the best of Seller's knowledge, no predecessor of Seller has received notice of any violation of any la,w, municipal ordinance or other governmental requirement affecting the Property or the contemplated development of the Property or any portion thereof. (c) Seller is not a party to any subsisting agreement, contract or commitment to sell, convey, let, assign, transfer, provide fights of first refusal or other similar rights with respect to, or otherwise dispose of, all or any part of the Property, or any interest therein or occupancy right thereto, other than this Agreement. Except for this Agreement and the Permitted Exceptions, neither Seller nor any person or entity claiming by, through or under Seller has done, suffered or permitted anything whereby any lien, claim or right of another has been created against the Property, or any portion thereof or any interest therein. (d) Seller has no knowledge that any permit, certificate, license or other similar approval or authorization, other than permits relating to customary building permits, is required for the sale or development of the Property under any federal, state or local law, ordinance, role or regulation, or by any governmental or quasi-governmental agency having jurisdiction over the Property, or any portion thereof. (e) Seller has no knowledge of any existing laws, ordinances or restrictions, including, without limitation, so-called recapture agreements, which would prevent or limit the right or ability of Buyer, or its lessees, invitees, successors or assigns (including, without limitation, any Prospective Clients), to develop and use the Property for the Intended Uses or to obtain any government approvals necessary to develop the Property for the Intended Uses. (f) There is no action, proceeding or investigation pending or, to the best of Seller's knowledge, threatened, against Seller, or with respect to the Property, or any portion thereof, before any court or governmental department, commission, board, agency or instrumentality which would affect the contemplated development of the Property. Seller has no knowledge of any basis for any such action, proceeding or investigation. (g) Seller has not received any notice of environmental or health code violations with respect to the Property, or any portion thereof. (la) Seller has not received notice of any contemplated special assessments relating to the Property, or any portion thereofi 4 51225~05237~240255.V01 DNL (i) Except as provided in Section 17(g) hereof, no leasing, sales or other broker's fees or commissions of any nature whatsoever shall be or become due or owing to any person, firm, corporation or entity whomsoever after the applicable Closing Date. (j) Seller has not stored, transported, discharged or released any Hazardous Materials, and has not permitted the storage, transport, discharge or release of Hazardous Materials, on the Property, or any portion thereof. Further, except as set forth in the Technical Memorandum prepared by Parametfix dated June 12, 2002 and the reports identified therein, Seller has no knowledge of any other person or entity having stored, transported, discharged or released Hazardous Materials on the Property, or any portion thereof. (k) There are no (i) orders from or agreements with any governmental authority or private party or any judicial or administrative proceedings or investigations, whether pending or threatened, respecting any environmental, health or safety requirements under federal, state or local laws or regulations relating to the Property, or (ii) pending, asserted or threatened claims or matters involving material liabilities, obligations or costs arising from the existence, release or threatened release of any Hazardous Materials at, on or beneath the Property. The accuracy of the foregoing representations and warranties shall be a condition to Buyer's obligations under this Agreement. If any of the foregoing representations or warranties is untrue in any material respect, and is not cured (at no cost to Buyer) prior to any of the scheduled Closing Dates, then Seller shall be allowed a period of five (5) days after the date of such scheduled Closing Date in order to cause such representations and warranties to be true, and shall use reasonable efforts to do so (and Seller shall notify Buyer promptly if Seller determines that Seller will not be able to do so). If Seller shall not cause such representations and warranties to conform to the requirements of this Agreement within such five (5) day period, then Buyer may elect (x) to purchase the Property as it then is, with the right to cause such non-conforming representations and warranties to be true and to deduct from the Purchase Price amounts which Buyer and Seller reasonably agree are equal to the reasonable costs and expenses incurred as a result thereof and which are of a definite or ascertainable amount; or (y) to terminate this Agreement (other than the parties' respective obligations under Section 17(g) hereof); or (z) to extend the time for up to an additional thirty (30) days for Seller to cause such representations and warranties to conform to the requirements in this Agreement, and the respective Closing Date shall automatically be extended by the number of days equal to such extended period (and if Buyer elects to allow the extension of such time, Buyer shall have the same rights concerning such matters at the end of such extended period as Buyer had at the end of the original period). Further, if the matter which causes the representations or warranties to fall to conform to the requirements of this Agreement is a matter which was caused by Seller, or could have reasonably been anticipated by Seller, then Buyer's fights set forth in the immediately preceding sentence shall be in addition to, and not in lieu of, any other fights and remedies available to Buyer for default by Seller and shall include, without limitation, any and all damages, direct and indirect, 5 51225XO5237~240255 VOI DNL which Buyer may suffer as a result of the failure of the representations or warranties to conform to the requirements of this Agreement. 8. Representations and Warranties of Buyer. Buyer hereby represents and warrants to Seller that the following are true and correct on and as of the date hereof, shall continue to be mae and correct as of the Closing Date, and shall survive the Closing and delivery of the deeds: (a) There is no action, proceeding or investigation pending, or to the best of Buyer's knowledge threatened, against Buyer before any court or governmental department, commission, board, agency or instrumentality with respect to the Property, or any portion thereof, or Buyer's obligations under this Agreement. Buyer has no knowledge of any basis for any such action, proceeding or investigation. (b) All requisite action has been taken and been obtained by Buyer in connection with the entering into this Agreement and the instruments referenced herein, and the consummation of the transaction contemplated hereby. No consent of any creditors, directors, shareholders, judicial or administrative body, governmental or quasi-governmental authority, or other party is required for the performance of Buyer's obligations hereunder. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Buyer has the legal power, right and actual authority to bind Buyer to the terms and conditions hereof and thereof. This Agreement and all documents required hereby to be executed by Buyer are and shall be valid, legally binding obligations of and enforceable against Buyer in accordance with their respective terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium laws or similar laws or equitable principals affecting or limiting the fights of contracting parties generally. 9. Closing. Provided that all conditions of closing hereunder have occurred, the closing of this transaction ("Closing") shall occur at the Kitsap County offices of the Pacific Northwest Title Company on the Hotel Air-Rights Closing Date. On the Hotel Air-Rights Closing Date: (a) Seller shall execute and deliver to the Escrow Agent for delivery to Buyer the following: (i) Seller's Statutory Warranty Deed in the form set forth in Exhibit D attached hereto and made a part hereof, and otherwise in recordable form sufficient to convey to Buyer fee simple absolute tire to the Hotel Air-Rights, subject only to the Permitted Exceptions; 6 51225~15237~240255.V01 DNL (ii) An Affidavit of Title in customary form as required by the Title Company; (iii) Excise Tax affidavit in the form required pursuant to applicable law, and the parties shall split the amount of any excise tax; (iv) An estimated seller's closing statement signed by Seller; (v) A certificate from Seller that all of Seller's representations and warranties set forth in this Agreement are true and correct as of the Hotel Air-Rights Closing Date, to the same extent as if the reference date were the Hotel Air-Rights Closing Date; (vi) A "FIRPTA" Affidavit conforming to the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations applicable thereto, and if Seller fails to furnish such FIRPTA Affidavit, Buyer may withhold from the Purchase Price an amount sufficient to comply with the provisions of such Section; (vii) Such other documents as may be necessary or proper to comply with this Agreement or required (by the Title Insurer or other, vise) to carry out its terms. (b) Buyer shall execute and deliver to the Escrow Agent for delivery to Seller on the Hotel Air-Rights Closing Date, the following: (i) The portion of the Purchase Price stated above, plus or minus prorations, by wire t~ansfer or otherwise in immediately available funds; (ii) Excise Tax affidavit, executed by Buyer in the form required pursuant to applicable law; (iii) An estimated buyer's closing statement signed by Buyer; (iv) A certificate from Buyer that all of Buyer's representations and warranties set forth in this Agreement are true and correct as of the Hotel Air-Rights Closing Date, to the same extent as if the reference date were the Hotel Air-Rights Closing Date; and (vi Such other documents as may be necessary or proper to comply with this Agreement or required to carry out its terms. 10. Prorations~ General Real Estate Taxes. 7 51225~05237~240255 V01 DNL (a) At the Hotel Air-Rights Closing, all utilities shall be prorated as of the Hotel Air-Rights Closing Date on the basis of the then most recent bills for such utilities; provided, however, that within thirty (30) days after the actual bill or bills for the applicable period or periods are available, the parties shall re-prorate each utility on the basis of such actual bill or bills. (b) The Property is presently not carried on the tax rolls by reason of the status of Seller as a municipal entity. The parties shall take all necessary action on and after the Hotel Air-Rights Closing Date to place the Hotel Air-Rights on the tax rolls and Buyer shall be responsible for all taxes assessed on and after the Hotel Air-Rights Closing Date. 11. Development Matters. (a) From and after the date hereof and from and after the Hotel Air-Rights Closing (this covenant surviving the Hotel Air-Rights Closing and delivery of the deed), Seller shall, at the request of Buyer and without cost to Seller, cooperate with Buyer (including, without limitation, joining in the execution of applications) in connection with: (i) applications, agreements and approvals relating to zoning, site plan, subdivision, utility and other development matters, including, without limitation, all licenses, permits, easements, rights-of-way, and proofs of dedication necessary to permit the contemplated development of the Property; and (ii) any requirements of Seller or Buyer or any state or federal government, or any agency thereof, or any public utility, relating to the contemplated development of the Property, or any portion thereof, in accordance with the Intended Uses. (b) Seller covenants that Seller will not make any agreements with, or grant fights to any other party, governmental or private, which will prevent or limit the fight of Buyer, or its lessees, invitees, successors or assigns (including, without limitation, Prospective Clients), so to use the Hotel Air-Rights or to obtain any such consents or approvals. The foregoing covenant shall survive the Hotel Air-Rights Closing and delivery of the deed. 12. Conditions of Closing. (a) The obligation of Buyer to consummate this transaction is expressly subject to and contingent upon the occurrence of each and every one of the following: (i) Buyer and/or the Escrow Agent, as applicable, shall have received the items set forth in Section 9(a) hereof. (ii) The Title Insurer shall be prepared to issue the Title Policy, dated as of the Closing Date and showing fee simple title to the Hotel Air-Rights in 8 51225~05237~240255.V01 DNL Buyer, subject only to the Permitted Exceptions, and otherwise in accordance with the provisions of and containing the extended coverage and the endorsements specified in Section 6 hereof. (iii) All representations and warranties of Seller shall be tree and correct as of the Closing Date. (iv) Buyer is satisfied that it has no responsibility for the remediation or removal of any Hazardous Materials on the Property. (v) Seller shall have complied with all provisions of this Agreement. (b) In the event any of the foregoing conditions have not been fulfilled or expressly waived in writing by Buyer, then in addition to any other remedy available to Buyer, Buyer may terminate this Agreement by giving written notice to Seller on or before the Hotel Ak-Rights Closing Date. 13. Default. (a) If this Agreement is terminated by either party the parties shall have the fights and remedies only, as set forth in the Design Build Construction Contract. 14. Condemnation. In the event that, between the date of this Agreement and the Closing Date, any condemnation or eminent domain proceedings are instituted by a governmental entity which has rights to acquire the Property from Seller and which might result in the taking of all or any portion of the Property (except for such portions of the Property as would not, in Buyer's sole judgment, impair the use of the Property for the Intended Uses), Seller shall immediately notify Buyer in writing of such occurrence, and thereupon Buyer may elect to: (a) terminate this Agreement, in which event all fights and obligations of the parties hereunder (other than the parties' respective indemnification obligations under Section 17(g) hereof) shall cease; or (b) elect to consummate this transaction and require Seller to deliver to Buyer a duly executed assignment, in form and substance satisfactory to Buyer, of proceeds payable as a result of Seller's right to receive any condemnation award. Buyer shall have th/ay (30) days from the date of its receipt of written notice of such institution of proceedings within which to exercise its rights under Sections 14(a) or 14(b) hereof. If the Hotel Air-Rights Closing Date is scheduled to occur within such thirty (30) day period, the Hotel Air-Rights Closing shall be delayed until Buyer makes such election, and if 9 51225~05237~240255.V01 DNL Buyer elects to consummate the transaction, the Hotel Air-Rights Closing Date shall be adjusted accordingly. 15. Covenants of Seller. Between the date of this Agreement and the Closing Date, Seller shall: (a) Not, without first obtaining the written consent of Buyer, enter into any contracts or agreements pertaining to the Property, or any portion thereof; (b) Comply with all laws, ordinances, regulations and restrictions affecting the Property, or any portion thereof, and the use thereof; (c) Comply with the terms of all mortgages, liens, pledges, leases, licenses, easements and other similar encumbrances affecting the Property, or any portion thereof; (d) Not create or permit to be created any mortgage, lien, pledge, lease, license, easement or other similar encumbrance in any way affecting the Property, or any portion thereof; (e) Not commit any waste or nuisance upon the Property, or any portion thereofi (f) Comply with all requirements of the Title Insurer in connection with its insurance of fee simple title to the Property in Buyer, as required under Section 6 hereof and elsewhere herein. 16. Notices. Any notice or other communication in connection with this Agreement shall be in writing and shall be sent by United States certified mail, return receipt requested, postage prepaid, by nationally recognized overnight courier guarantee next day delivery, by telecopy or facsimile transmission, or by personal delivery, properly addressed as follows: If to Buyer: Opus Northwest, L.L.C. Suite 300 915 - 118th Avenue S.E. Bellevue, WA 98005 Attn: Vice President Facsimile No. (425) 519-6810 10 51225\05237~240255 V01 DNL If to Seller: City of Bremerton 239 Fourth Street Bremerton, WA 98337 Attn: Gary Sexton Facsimile No.: All notices shall be deemed given three (3) business days following deposit in the United States mail with respect to certified or registered letters, one (1) business day following deposit if delivered to an overnight courier guaranteeing next day delivery and on the same day if sent by personal delivery or by telecopy or facsimile transmission (with proof of transmission). Attorneys for each party shall be authorized to give notices for each such party. Any party may change its address for the service of notice by giving written notice of such change to the other party, in any manner above specified. 17. Miscellaneous. (a) This Agreement may be executed in any number of counterparts, each of which shall constitute an original document. (b) The Section headings or captious appearing in this Agreement are for convenience only, are not a pa~ of this Agreement, and are not to be considered in interpreting this Agreement. (c) This written Agreement constitutes the entire agreement between the parties and supersedes any prior oral or written agreements between the parties regarding the Property. There are no verbal agreements which can or will modify this Agreement, and no waiver of any of its terms will be effective unless in a writing executed by the parties. (d) The unenforceability or invalidity of any provisions hereof shall not render any other provisions herein contained unenforceable or invalid. (e) Neither this Agreement nor any of the fights contained hereunder may be assigned by either party without the prior written consent of the other, except that Buyer may assign its rights under this Agreement to an Affiliate of Buyer without such consent of Seller and Buyer may, for Closing purposes, assign its rights to buy the Hotel Air-Rights to a Prospective Client. (f) With respect to real estate brokers: (i) Seller represents and warrants to Buyer that Seller has not engaged or dealt with any broker or other person who would be entitled to any brokerage fee or commission in respect to the finding, negotiation or execution of this Agreement or the consummation of the transactions contemplated hereby. Seller agrees to indemnify, defend and hold 11 51225~05237~240255 V01 DNL harmless Buyer, and Buyer's successors and assigns, with respect to any claim by any person claiming to have been engaged by Seller, or claiming by, through or under Seller, so as to become entitled to any such fee or commission. (ii) Buyer represents and warrants to Seller that Buyer has not engaged or dealt with any broker or other person who would be entitled to any brokerage fee or commission in respect to the finding, negotiation or execution of this Agreement or the consummation of the transactions contemplated hereby. Buyer agrees to indemnify, defend and hold harmless Seller with respect to any claim by any person claiming to have been engaged by Buyer, or claiming by, through or under Buyer, so as to become entitled to any such fee or commission. (g) This Agreement shall be construed and enforceable in accordance with the laws of the State of Washington, without application of its choice of law roles. (h) This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. (i) This Agreement and the provisions, representations and warranties herein set forth shall survive the Closing and delivery of the deed. O) Time is of the essence of this Agreement. (k) In the event of a default or breach of the provisions of this Agreement, the nondefaulting party hereto shall be entitled to recover reasonable costs and attorneys' fees incurred by the nondefaulting party as a result of such default. In witness whereof, the parties hereto have caused this Agreement to be executed and delivered the day and the date first above written. 12 51225~05237~240255 VOl DNL BUYER: OPUS NORTHWEST, L.L.C., a Delaware limited liability company By: Name: Tide: Vice President SELLER: CITY OF BREMERTON, a municipal corporation By: ATTEST: Name: Name: Title: Title: The undersigned is executing this Agreement to acknowledge its obligations thereunder relating to the construction of the garage to support the Hotel Air Rights and executed easements and related documents in connection therewith. KITSAP TRANSIT, a municipal corporation By: ATTEST: Name: Name: Title: Title: 13 51225~05237~240255.V01 DNL Final DraR I 1 / 18/2002 EXHIBIT A-1 Site Map 51225\05237~.40255.V01 DNL Final Draft 11/18/2002 EXHIBIT A-2 Legal Description of CiW of Bremerton and Kitsap Transit's Propertiec 51225~05237~240255.V01 DNL Final Draft 11/18/2002 EXHIBIT B Definitions For purposes of this Agreement, the terms hereafter set forth shall have the following meanings: (a) Affiliate of Buyer: Affiliate o£ Buyer shall mean Gerald Rauenhorst ("Rauenhorst"), a trust for the benefit of Rauenhorst and/or members of his family or their issue, Opus, L.L.C, Opus Corporation or an affiliate or the parent or subsidiary of either of them, or a partnership or other entity comprised solely of all or some of the above. (b) Closing or Closings: Closing or Closings shall mean the closing of the sale and purchase of the Hotel Air-Rights as contemplated by this Agreement. (c) DesigrdBuild Agreement. Design/Build Agreement shall mean that certain Design/Build Construction Contract dated ,2002, by and between Seller and Buyer. (d) Escrow Agent: Escrow Agent shall mean (e) Final Plans and Specification~ Final Plans and Specifications shall have the same meaning given such term in the Design/Build Agreement. (f) Hazardous Materials: Hazardous Materials shall mean any hazardous substances or hazardous materials, including, without limitation, all substances, the presence of which on the Property, or any portion thereof, could subject the owner or occupant of the Property, or both, to civil or criminal penalties or damages, or mspousibility for clean-up of such substances, including, without limitation, any material or substance which is: (i) a "hazardous waste", a "toxic waste", a "hazardous substance", a "toxic substance", an "extremely hazardous waste", a "restricted hazardous waste", a "chemical substance", or a "hazardous chemical", as such terms are def'med under any environmental laws, ordinances or regulations governing or controlling the Property, or any portion thereof; (ii) petroleum or petroleum waste, including, without limitation, crude oil or any petroleum derived substance or constituent of any such petroleum substance or waste; (iii) asbestos or asbestos containing materials; (iv) polychlorinated biphenyl; 51225\05237~240255. V01 DNL (v) radioactive material; or (vi) pesticides. (g) Hotel Air-Riv, hts. Hotel Air-Rights means the portion of the Property over which will be constructed a hotel as shown on the Final Plans and Specifications incorporated into the Design Build Construction Contract, together with all beneficial easement rights necessary to (i) support a hotel to be constructed within the Hotel Air-Rights, and (ii) operate and maintain such hotel as an integxal part of the proposed development of the Property as a convention center. (h) Hotel Air-Rights Closing Date: Hotel Air-Rights Closing Date shall mean, as specified in Section 5 hereof, the Hotel Air-Rights Closing Date. If a scheduled Closing Date does not fall on a business day, that Closing Date shall be the next business day thereafter. (i) Intended Uses: Intended Uses shall mean the intended uses for the Hotel Air-Rights as specified in Section 4 hereof. O) Permitted Exceptions: Permitted Exceptions shall mean those title exceptions specified in Section 6 hereof. (k) Property: Property shall mean: (i) those parcels of land more particularly described in Exhibits A-I and A-2 attached hereto and made a part hereof; and (ii) the easements and appurtenances and all the estates and rights of Seller (now or on the Closing Date) in, to and with respect to such parcel and any and all improvements thereon. (1) Prospective Client: Prospective Client shall mean any third-party user of the Property, as specified in Section 4 hereof. (m) Survey: Survey shall mean the survey specified in Section 6 hereof. (n) Title Commitments: Title Commitments shall mean the title insurance commitments specified in Section 6 hereof. (o) Title Insurer: Title Insurer shall mean First American Title Insurance Company. (.p) Title Policy: Title Policy shall mean the title insurance policies to be issued by the Title Insurer at the Hotel Air-Rights Closing. 2 51225~05237~240255.V01 DNL Final Draft 11/18/2002 Exhibit C Easements and Related Documents [To be attached within 30 days of Mutual Acceptance] 51225\05237~240255.V01 DNL Final Draft 11/18/2002 Exhibit D Form of Statutory Warranty Deed WHEN RECORDED RETURN TO: Name: Address: Cit~, State, Zip: STATUTORY WARRANTY DEED THE GRANTOR, , for and in consideration of $10.00 and other good and valuable consideration, in hand paid, conveys and warrants to the following descn~oed real estate, situated in the County of Kitsap, State of Washington: See Exhibit A attached hereto and by this reference incorporated herein; Subject to those matters set forth in Exhibit B attached hereto and by this reference incorporated herein (the "Permitted Exceptions" relating to the above-described property) Abbreviated Legal Description: Tax Account No.: DATED: ,20 GRANTOR: 51225\05237~240255.V01 DNL STATE OF WASHINGTON ) COUNTY OF KITSAP ) I certif~ that I know or have satisfactory evidence that the persons appearing before me and making this acknowledgment are the persons whose true signatures appear on this document. On this __ day of , 20__, before me personally appeared and , to me known to be the and , respectively, of the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instrumen~ to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said municipal corporation. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Public in and for the State of W~hing~on, residing at _ My commission expires: [Type or Print Notary Name] (Use This Spa~¢ for Notarial Seal Stamp) 2 51225\05237~2.40255.V01 DNL DESIGN/BUILD CONSTRUCTION CONTRACT This AGREEMENT made as of the 1l~ ~S~x..day of November in the year 2002. BETWEEN the Lead Agency City of Bremerton 245 Fourth Street Bremerton, WA 98337 And the Designer/Developer (for purposes of this agreement referred to as "Developer") Opus Northwest LLC 915 - 118t~ Avenue SE, Suite 300 Bellevue, WA 98005 For the following Project: First and Washington Conference Center The Lead Agency and Developer agree as follows: RECITALS: 1 Lead Agency currently owns or controls certain real estate located in the City of Bremerton as delineated and described in Exhibit A, attached hereto, and desires to have a mixed use facility designed, developed, and constructed. The project will have both public and private ownership components. 2 Developer and the Lead Agency have agreed that Developer will finalize the design and construct the project given the following parameters: The Project is a public/private joint development between the Lead Agency and the Developer for the development of a mixed-use facility on the waterfront immediately adjacent to the Ferry Terminal. This agreement is for the project work through the completion of the Final Plans, Specifications, Project Cost and Critical Path documents, and Phase III Construction. The Project elements includes: · Parking Structure A parking structure located on 3 levels below the street elevation of Washington Avenue. The ownership will be jointly held between the City of Bremerton and Kitsap Transit subject to a parking managing agreement between Kitsap Transit, the City and the Developer. Parking includes approximately 150 Conference Center associated parking spaces plus parking to support the hotel, restaurant, offices, retail, marina, commuters and visitors. · Conference Center "Conference Center" shall mean the Regional Conference Center, a regional tourism related facility, which will include no less than 18,000 square feet of gross floor space, and not less than 7,500 square feet of meeting area, and related pubhc spaces, including a lobby area and additional breakout spaces. The conference center as designed has a distinct identity as a public facility, with well-defined exterior entrances, and a waterfront orientation. The main conference room is designed to be able to seat 420 persons for banquets and 600 for meetings. The meeting/banquet room shall be capable of being separated into four smaller spaces. The conference room includes reception, lobby and storage areas. A wa~.~ng kitchen is included to support catered banquets. Office space is designed for managerial or Page 1 of 42 supervisory personnel. Upon construction, the Center will be owned, managed, operated and maintained by the City. · Hotel The Hotel as designed includes 100 guest rooms and will be financed, owned, operated and maint~med by the Developer or assigns agreed to in writing by the Lead Agency. The Hotel shall be a 3 Diamond Marriott, Fairfield Inn, or equivalent. The air rights for the hotel will be sold to the Developer or assigns at the time the hotel construction commences. · Restaurant The restaurant will include approximately 4,500 gross square feet with sit down table service and will be financed, owned, operated and maintained by the Developer or assign agreed to in writing by the Lead Agency. The air rights for the restaurant will be sold to the Developer or assigns at the time the restaurant construction commences. As designed the restaurant will be located at the southeast comer of the project. · Retail Space The accepted schematic design includes approximately 6,700 gross square feet commuter retail space (CRB) excluc~mg the restaurant located on the southwest section of the project with the majority on the transit deck of the BTC. The retail space will be financed, owned, operated and maintained by Kitsap Transit. · Office Space Approximately 34,000 Gross S.F. office space (KT Office and additional rental space) are designed and located above the commuter retail space. Offices take advantage of water v~ews. Final construction plans and specification for these spaces will be prepared and submitted for review and approval of Kitsap Transit upon thc same Critical Path Schedule as established for the public structures. The office space will be ftnanced, owned, operated and maintained by Ki~ap Transit. * Marina Design of Bremer~on Port District Harbor Master facilities for space up to 3,400 square feet located on thc southeast side of the parking level 2 will be prepared as agreed upon bcWveen the City and the Port, a copy of which is attached. This agreement will be supplemented by supporting design and construction agreements emered into hereafter between the City, the Developer and the Port of Bremerton. · Expanded Waterfront Park Public open space park has been designed into the project and complements the existing boardwalk and thc waterfront park. Service/emergency vehicles and pedestrian access will bc maintained between boardwalk, waterfront park, this development and Washington Avenue. · Sensitivity Toward View Corridors The design is sensitive to open space and view corridors. The design includes pedestrian access and public view corridor through the site and to the open space from Second Street, the CRB pad, the transit area below pad, and the Bremerton Transit Center (BTC). · Service and HOV Access The project has several vehicle access requirements. Existing access to the project site is from Second Street. Emergency vehicles will require access around the development complex. The design includes freight/delivery vehicles and refuse disposal truck access to the loading dock area of the development complex. A veh/cle drop off area is provided at the main entrance to serve cars and tour buses. Pedestrian access as designed is maintained to the facility from the main entrance, boardwalk, waterfront park, and the BTC transit deck and passenger ferry. HOV garage access and egress has been designed into the project. 3. Lead Agency Team (1) The Lead Agency Representative is: Gary Sexton, Proiect Manager · Page 2 of 42 City of Bremerton 239 Fourth Street Bremerton, WA 98337 (2) The persons or entities in addition to the Lead Agency Designated Representative, who will review the Project Designer's submittals to the Lead Agency Project Representative are: Dick Haves of Kitsap Transit Bror Elmquist, Representative of Kitsap Public Facilities District Carg Bozeman, Bremerton Mayor Chris Hugo, Director of CommuniW Development Gene Sampley, Director of Public Works 4. Total Project Design Development: Developer has prepared and submitted to the Lead Agency for Public Structures: design documents as listed in Exhibit H; a Critical Path schedule (including permitting, design and construction activities), see Exhibit B; and Total Project Budget, see Exhibit C. The Developer has also included for Lead Agency review and comment Private Structure design documents. Signing of this agreement by the parties acknowledges acceptance of and approval of both Public and Private design components. 5. The Owner and Developer have agreed that the Project shall be designed and constructed under the terms and conditions set forth below, and pursuant to separate agreements and contracts yet to be entered into. ARTICLE 1 SCOPE OF WORK (a) Incorporation. Developer shall perform all of the work necessary for the construction of the project (the "Work") other than the contracts entered into by the Lead Agency under Article 5. in accordance with this Agreement and design allowances and the design documents as listed in Exhibit H; the Critical Path Schedule, Exhibit B; Guaranteed Maximum Price Schedule, Exhibit C; the construction drawings and specifications as hereinafter prepared by Developer and approved by the Owner in accordance with this Agreement, and in accordance with applicable building laws and regulations, safety regulations, and certain governmental regulations, including compliance with NEPA, Davis-Bacon and By America for the parking garage. Construction of other public structures within the Project shall comply with State Preva/ling Wages. (b) Development of Final Plans and Specifications . Developer shall oversee, review, and approve the preparation of Final Plans and Specifications for the Public Structures in accordance with the design documents incorporated in Article l(a). The Final Plans and Specifications will be issued in phases to correspond with the fast track construction schedule, Critical Path incorporated in Article l(a) above. Final Plans and Specifications shall be submitted to the Lead Agency for review and approval in accordance with the Critical Path Schedule. The costs of changes or modifications made by the Lead Agency requiring any redesign in conflict with the general scope and design, including design allowances, shall be borne by the Lead Agency and the parties shall execute a change order in respect thereto. Lead Agency agrees that it will not withhold its approval of said Final Plans and Specifications except for just and reasonable cause. Page 3 of 42 When the Final Plans and Specifications have been approved by Lead Agency, they shall be incorporated into this Agreement as Exhibit I "Construction Documents". Construction shall proceed in accordance with the Final Plans and Specifications as approved, the Critical Path as incorporated in attachment B, the Guaranteed Maximum Price, and approved change orders. (c) Ownership of Documents. The Final Plans and Specifications, and all interim construction drawings will be prepared by one or more Architects under agreement with the Lead Agency, and such documents are and will remain the .joint property of the Lead Agency and Developer. Developer will deliver to Lead Agency three complete sets of the Final Plans and Specifications for information and reference in connection with the Lead Agency's ownership and use of the public structures. Within ninety (90) days after final completion of the Work, Developer will deliver three complete record sets of plans and Specifications to the Lead Agency. The Final Plans and Specifications may be used by the Lead Agency for ownership, use, and maintenance of the Public Structures and modifications and additions to such structures. The Final Plans and Specifications will not be used by the Lead Agency for projects on other property without the prior written consent of Developer, and Lead Agency shall defend, indemnify, and hold harmless Developer and the Architects from any claims arising directly or indirectly from the Lead Agency's use of the plans and Specifications when used for modifications and additions to the structures or in violation of this subsection. (d) Construction Phase. Permitting and Construction will be fast tracked as noted in Exhibit B. ARTICLE 2 TIME OF COMPLETION The Work shall be ready for final inspection and acceptance on or before 494 calendar days after the date of timely commencement of construction in accordance with the Critical Path Schedule, so long as all necessary development permits and approvals for the Project have been secured (hereinafter called the "Contract Time"). Final Acceptance is defined as issuance of a Temporm?' or Final Certificate of Occupancy. If Developer is delayed at any time in the progress of the Work by any act or neglect of Lead Agency, or by changes ordered in the Work by Lead Agency or delays in the design approval process, or by labor disputes, fire, unusual delay in transportation, fuel, material, or labor shortages or unavailability, action or inaction of public authorities not arising out of the fault of Developer, casualties, or any causes beyond Developer's reasonable control, then the Contract Time shall be extended by a period of time reasonably necessary to alleviate the effect of such events on Developer. Such delay shall hereinatSer be referred to as excused delay. ARTICLE 3 CONTRACT SUM The Lead Agency shall pay the Developer under this Agreement the Contract Sum consisting of (i) the Cost of the Work as hereinafter defined; (ii) Reimbursable Costs and Advances as hereinafter set forth; and (iii) the Developer's Fee. The sum of the Cost of the Work, Reimbursable Costs and Advances, and the Developer's Fee is guaranteed by the Developer not Page 4 of 42 to exceed $ 20,905~877.00, subject to additions and deductions by change order. Such maximum sum is the "Guaranteed Maximum Price" ("GMP"). Costs which would cause the GMP to be exceeded shall be paid by the Developer without reimbursement by the Lead Agency. The GMP is subject to any "allowances" or "contingencies" as may be set forth in the Project Budget, see Exhibit C. Developer shall receive a fee of 8 ½% (eight and one half percent) on items (i) and (ii) noted above which shall constitute its fee to cover Developer's general office overhead, administrative expenses, development services, and profit. The Project Budget based on the estimated Costs of the Work, Reimbursable Costs and Advances, Agency Costs, and Developer's Fee are all set forth in detail Exhibit C hereto. The Cost of the Work is defined to include the cost items and descriptions set forth in Exhibit D hereto. The Reimbursable Costs and Advances are described and set forth in Exhibit E, hereto. If the Cost of the Work, Reimbursable Costs and Advances, and the Developer's Fee total less than the GMP, then any such savings will be divided equally between the Developer and the Lead Agency excepting the contingency allowance which will be divided 67% to the Lead Agency and 33% to the Developer. ARTICLE 4 ltOTEL PENALITY It is agreed that in the event the Developer should default, fail, or refuse to proceed with design and construction in accordance with the Critical Path set forth in Attachment B of the Private hotel, Developer shall forfeit $ 600,000 maximum of the Developer's fee provided herein on the public structure costs as liquidated damages. These liquidated damages are the extent of any damages for failure to complete construction and opening of the hotel and restaurant. Pursuant to the Critical Path Schedule, the hotel is scheduled for completion and opening on November 8, 2004 and the restaurant is scheduled for completion and opening November 8, 2004. As liquidated damages for each month the hotel falls to be completed and opened, Developer shall forfeit $50,000 conunencing January 8, 2005 up to a total forfeiture of $600,000. For each month that the Developer falls to complete and open the restaurant after March 1,2005, the Developer shall forfeit $25,000 up to a maximum forfeiture of $250,000. The combined maximum forfeiture shall not exceed $600,000 and/or $50,000 monthly. The $600,000 liquidated damages for construction and open'mg of the hotel and restaurant shall be withheld from final payments on the public sector work until such time as the hotel and restaurant are completed and opened. It is further agreed that all title transfer documents and finance documents between the Developer and Purchasers of the hotel and restaurant shall include assignment rights and title reversion rights to the Lead Agency in the event either the hotel or restaurant, respectively, are not constructed to "in the dry" status by the time of conclusion of the liquidated damages forfeiture schedule. ARTICLE 5 CONSULTANTS The Lead Agency will enter into Consulting Agreements with design and testing consultants as noted in Exhibit E, Reimbursable Costs and Advances which costs and fees are part of the Guaranteed Maximum Price. Developer is hereby designated as authorized agent of the Lead Agency to execute said agreements. Such agreements are hereby collectively referred to as "Consulting Agreements." Developer shall be responsible for all communications, coordination, review, supervision, and control of such consultants. Developer shall cause consultants to Page 5 of 42 submit any and all monthly progress billings and costs to Developer for Developer's review, approval, and inclusion with Developer's Project Applications for Payment as Reimbursement Costs and Advances, see Exhibit F-1. Developer shall be responsible for disbursing such payments to consultants as such sums are received by Developer from Lead Agency. ARTICLE 6 PAYMENT OF CONTRACT SUM (a) Progress Payments. Developer shall submit to Lead Agency on or before the last day of each month a "Project Apphcation for Payment" signed by Developer in the form attached hereto as Exhibit F. The Project Application for Payment (see Exhibit F-2) shall request payment of a specified dollar mount, using a Schedule of Values based upon the GIMP schedule, Attachment C. Along with each application for payment to the Lead Agency, Developer shall deliver its Conditional Lien Waiver and Indemnity Against Liens in the form of Exhibit G. Each Project Application for Payment shall include a proportionate share of Developer's Fee. The Lead Agency shall withhold retention in accordance with RCW 60-28. The retention shall also serve as a reserve for the hotel penalty. (b) Payment Procedures. Any objections which the Lead Agency may have regarding a Project Application for Payment shall be made in writing by the Lead Agency Representative within 15 days of receipt of the application for payment. Failure to provide a timely written objection shall not, however, constitute any waiver of right to withhold and/or not approve payment applications pursuant to the terms of this ConU'act. The Lead Agency shall pay all approve portions of Application for Payment on or before the last business day of the thirtieth (30) day of the following calendar month, so long as Lead Agency shall have received the Project Application for Payment on or before the last business day of the preceding calendar month. (c) Final Payment. Payment of the full Contract Sum shall be due thirty (30) days after Final Acceptance and Submittal of the Final Application for Payment by Developer.. The Application for Final Payment shall include a conditional full and final lien release of all claims by the Developer, along with conditional final lien releases executed by all consultants, subcontractors, and suppliers. Subject to the additional terms and conditions regarding final payment as set forth above, the Lead Agency shall make payment to Developer of the full Contract Sum under the same terms, conditions, and time spans as set forth in Article 2, Article 4 above and Article 6(a)(b). (d) Interest. Interest shall accrue at the rate of twelve percent (12%) per annum on any amounts which Lead Agency fails to timely pay to Developer under the terms and conditions of this Agreement. ARTICLE 7 CHANGES IN THE WORK (a) Changes Permitted. The Lead Agency, without invahdating this Contract, may order changes in the Work within the general scope of this Contract, consisting of additions, Page 6 of 42 deletions or other revisions, with the Cost of the Work, Reimbursable Costs and Advances, Developer's Fee, Contract Sum, GMP and Contract Time being adjusted accordingly. All such changes in the Work shall be authorized by a Change Order and shall be executed under the applicable conditions of this Agreement. The Developer's Fee, equal to 8.5% shall be adjusted upward, if at ali, in accordance with the terms hereof but shall not be reduced if deductive change orders are issued. The Contract Sum, GMP and Contract Time may be changed only by a written change order. (b) Minor Changes. Developer shall have the authority to make minor changes in the Work not involving an adjustment in the Contract Sum or GMP or an extension of the Contract Time, and not inconsistent with the intent of the Contract Documents, provided that Developer use all reasonable efforts to give the Lead Agency Representative prior notice (which may be oral or written) of each such change and shall record all such changes in writing, and provided that such changes do not adversely affect the quality or the value of the Work described in the Contract Documents. ARTICLE 8 GUARANTY BOND Developer shall furnish a labor and materialmen's bond as required by RCW 39.08. Further, upon Lead Agency's written demand, Developer shall furnish a bond covering its faithful performance of this Contract and the payment of all obligations arising thereunder with regard to the Public Structures in such form as Lead Agency may reasonably prescribe with Developer's surety company. If such bond is required, and upon receipt by Lead Agency of such bond, Lead Agency shall pay Developer the premium for such bond, as an extra to the Contract Sum and the GMP, but without Developer Fee Mark up and/or contingency fee increase. ARTICLE 9 CORRECTION OF WORK AND GUARANTY (a) Correction of Work. If during or after the period of construction the Work or any portion thereof is found to be defective or not in accordance with the Contract Documents, Developer shall correct it promptly after receipt of notice from Lead Agency to do so unless Lead Agency has previously given Developer written acceptance of such condition with full awareness of such deficiency or deficiencies. Lead Agency shall give such notice promptly after discovery of the condition and shall confirm any verbal notice with written notice promptly after the verbal notice. All such defective or nonconforming work shall be corrected or removed from the site, if necessary, and the Work shall be corrected to comply with the Contract Documents. (b) Guaranty. Developer guarantees the Work for a period of one (1) year after the Date of Final Acceptance (as established by the issuance of a Certificate of Occupancy there for). Extended warranties for such longer period(s) of time as may be prescribed by the terms of any applicable special guarantee(s) required by the Contract Documents shall be provided by the applicable manufacturer, vendor, or subcontractor as required by the Contract Documents. Any guarantee work shall be done in accordance with the requirements above as to correction, repair Page 7 of 42 or replacement of work during the construction period. Developer further represents that the materials and equipment included within the Work shall be of good quality and new unless otherwise specified or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quahty required or permitted, and that the Work will be in conformity with the requirements of the Contract Documents. Work not in conformity with the above requirements and failure of the Work to be in compliance with the Final Plans and Specifications may be considered defective. Any claims made by Lead Agency shall be made in writing and within a reasonable period of time after the defect is discovered but in any event no later than the date sixty (60) days after the date of discovery. FailUre to make such claims in writing within such time period shall constitute a waiver by Lead Agency of such claims. Lead Agency shall be required to perform routine and appropriate regular maintenance during the warranty period. ARTICLE 10 INSURANCE AND BONDS (a) Developer's Liability Insurance. Developer shall purchase and maintain such insurance as will protect it from claims set forth below which may arise out of or result from Developer's operations under this Contract, whether such operations be by Developer, by any subcontractor, or by anyone directly or Indirectly employed by any of them, or by anyone for whose acts any of them may be liable. (1) Claims under workers, compensation, disability benefits, and other similar employee benefit acts; (2) Claims for damages arising out of bodily injury, occupational sickness or disease, or death of its employees; (3) Claims for damages arising out of bodily injury, sickness or disease, or death of any person other than its employees; (4) Claims for damages insured by usual personal injury liability coverage which are sustained by (i) any person as a result of an offense directly or indirectly related to the employment of such person by Developer, or (ii) any other person; (5) Claims for damages arising out of injury to or destruction of tangible property, including loss of use resulting there from, and (6) Claims for damages because of bodily injury or property damage arising out of the ownership, maintenance or use of motor vehicles. (b) Insurance Limits. The insurance required by Subparagraphs (a) (3), (a) (4), (a) (5) and (a) (6) of this Article 8 shall be written for limits of liability not less than Two Million and No/100 Dollars ($2,000,000.00) combined single limit coverage for bodily injury and property damage on an occurrence basis. Developer also agrees to maintain Eight Million and No/100 Dollars ($8,000,000.00) of umbrella liability insurance coverage which, on an occurrence basis, insures the risks described in subparagraphs (a) (3), (a) (4), (a) (5) and (a) (6) above. This Page 8 of 42 umbrella coverage shall be in excess of the single limit coverage described in the foregoing sentence. Said insurance shall include contractual liability insurance as applicable to Developer's obligations to indemnify Lead Agency as required by subparagraph (k) of Article 11 hereof. The insurance required by subparagraphs (a) (1) and (a) (2) of this Article 10 shall be written for limits required by law. The liability insurance to be carded by Developer shall be commercial general liability insurance including the following additional coverages: (1) Premises and operations (including XCU.coverages); (2) Independent developer's protective, products and completed operations, personal injury with employment exclusion deleted, contractual coverage, and broad form property damage includ'mg completed operation, worker's compensation insurance and employer's liability insurance. (3) Errors and omissions insurance. Evidence of insurance reasonably acceptable to Lead Agency (such as certificates of insurance) shall be filed with Lead Agency prior to commencement of the Work. Developer need not supply copies of the actual policies. Certificates of insurance shall contain a provision that coverages afforded under the policies will not be cancelled or materially modified until at least thirty (30) days prior written notice has been given to Lead Agency. (c) Lead Agency's Liability Insurance. Lead Agency shall be responsible for purchasing and maintaining its own liability insurance and, at its option, may purchase and maintain such insurance as will protect it against claims which may arise from operations under this Contract. (d) Property Insurance. (1) Developer shall purchase and maintain until the Date of Substantial Completion All Risk Builder's Risk insurance upon the entire work at the site to the full insurable value thereof. This insurance shall include the interests of Developer, Lead Agency, subcontractors and sub- subcontractors of all tiers in the Work and shall insure against the perils normally insured against in an Ail Risk Builder's Risk policy, including vandalism, malicious mischief, transit, collapse and testing, shall be deemed the primary insurance as to covered risks, and shall have a deductible amount of not more than Two Thousand Five Hundred and No/100 Dollars ($2,500.00) per occurrence. Developer shall be responsible for deductible losses (not to exceed $2,500.00 per occurrence) to the extent caused by Developer or its agents, employees, and subcontractors. This insurance shall include the interests of Developer, Lead Agency, subcontractors and sub-subcontractors in the Work. Lead Agency shall be an additional insured on the policy. Page 9 of 42 (2) Developer shall file a copy of all policies with Lead Agency before an exposure to loss may occur. (3) Developer and Lead Agency waive ail rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under paragraph (d) of ttfis Article 10, except such rights as they may have to the proceeds of such insurance. Developer shall require similar waivers from all of its subcontractors and their sub subcontractors. ARTICLE 11 MISCELLANEOUS PROVISION (a) Supervision and Construction Procedure. Developer shall supervise and direct the Work and shall be solely responsible for all construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under this Contract. (b) Labor and Materials. Unless otherwise specifically noted, Developer shall provide and pay for (subject to provisions herein relating to payment by Lead Agency) all labor, materials, equipment, tools, construction equipment and machinery, water, temporary heat, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work. All materials shall be new unless otherwise specified, and all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All work not conforming to these standards will be considered defective. If required by Owner, and upon its written request therefor made within one (1) year of the Date of Final Acceptance, Developer shall furnish reasonable evidence as to the kind and quality of materiais and equipment. (c) Surveys and Easements. ALTA Survey by Parametrix, Inc has been provided in accordance with prior Agreements bet~veen Lead Agency and Developer. (d) Taxes. Developer shall pay all sales, consumer, use and other similar taxes required by law and are included in the price, all as part of the Cost of the Work; provided, however, that Developer shall be entitled to an adjustment (increase) in the Contract Sum and the GMP to the extent that an increase in the aggregate amount of such taxes payable by Developer hereunder results from any change in laws creating such taxes enacted after the date of signing this Contract. (e) Permits and Fees. Unless otherwise provided in the Contract Documents, Developer shall secure all building permits (except environmental permits) and all governmental building fees and licenses necessary for the proper execution and completion of the Work which are applicable at the date of this Contract. (f) Notices. Developer shall give all notices and comply with ail building laws and regulations. If Developer observes that any of the Contract Documents are at variance therewith in any respect, it shall promptly notify Lead Agency, in writing, and any necessary changes shall Page 10 of 42 be adjusted by appropriate modification. In the event that dining the performance of this Contract by Developer there is any change in the applicable building laws and regulations which are in force as of the date hereof, Developer shall give Lead Agency written notice of such change promptly after Developer becomes aware of the promulgation of such new law or regulation. Such notice shall include Developer's estimate of the impact (if any) of such change on the Contract Time and the Contract Sum; (g) Superintendent. Developer shall employ a competent superintendent who shall be in attendance at the project site at all reasonable times during the progress of the Work. (h) Responsibility of Developer. Developer shall be responsible to Lead Agency for the acts and omissions of all of its employees and all subcontractors, their agents and employees, and all other persons while performing any of the Work under a Contract with Developer. (i) Drawings and Specifications at Site. Developer shall maintain at the site for Lead Agency one copy of all drawings, specifications, addenda, approved shop drawings, change orders and other modifications in good order and marked to record all changes made during construction. These shall be available to Lead Agency. The drawings marked to record all changes made during construction shall be delivered to Lead Agency within ninety (90) days of the Date of Final Acceptance.. O) Cleaning Up. Developer, at all times, shall keep the premises free from accumulation of waste materials or rubbish caused by its operations. At the completion of the Work, Developer shall remove all its waste materials and rubbish from and about the project as well as all of its tools, construction equipment, machinery and surplus materials. (k) Indemnification. Developer shall indemnify, defend and hold harmless Lead Agency, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorneys' fees, arising out of or resulting from the performance of the Work, to the extent and in the percentage caused by any negligent act or omission of Developer, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, and which involves bodily injury, sickness, disease or death, or injury to or destruction of tangible property (other than the Project itself and its contents), including the loss of use resulting there from. The Lead Agency shall indemnify, defend and hold harmless the Developer from and against all claims, damages, losses and expenses, including reasonable attorney fees arising out of or arising from the Lead Agency's negligence. (1) Written Notice. Written notice shall be deemed to have been duly served if delivered in person to the individual or, if delivered by nationally recognized overnight comer (such as Federal Express) or sent by registered or certified mail, to the following address: Page 11 of 42 If to Developer: Opus Northwest, L.L.C. 915 - 118th Avenue SE, Suite 300 Bellevue, WA 98005 Attention: Harry DeMarre And Opus Northwest, L.L.C. 10350 Bren Road West Minnetonka, MN 55343 Attention: Brad Osmundson If to Lead Agency: City of Bremerton 239 - 4th Street Bremerton, WA 98337 Attention: Gary Sexton or at such other address as the parties may hereafter designate by written notice to the other. (m) Termination of Contract by Lead Agency. If Developer should fail to commence the Work in accordance with the provisions of the Contract Documents or fail to prosecute diligently the Work to completion in a diligent, efficient, workmanlike, skillful and careful manner and in accordance with the provisions of the Contract Documents, or fail, except in cases of excused delay, to supply an adequate mount of properly skilled workmen or materials or equipment to complete the Work in accordance with the requirements herein, persistently disregard laws, ordinances, roles, regulations or orders of any public authority having jurisdiction, or fail to make prompt payments to its subcontractors, mater/almen or laborers, as required by the appropriate subcontract, except as to claims for payment for material or labor used in the Work, the validity of which Developer is contesting in good faith by appropriate action diligently pursued, then Lead Agency shall have the tight, after giving Developer and its surety', if any, fourteen (14) days written notice (and failure of Developer to cure or commence to cure with due diligence such matter within 7 calendar days of receipt of said notice), (i) terminate this agreement, (ii) take possession of and use ail or any part of Developer's materials, equipment, supplies and other property of every kind used by Developer in the performance of the Work and use such property in the completion of the Work, or (iii) complete the Work in any manner it deems reasonably appropriate and desirable, including engaging the services of other parties. Any such act by Lead Agency shall not be deemed a waiver of any right or remedy of Lead Agency. If after exercising any such remedy, the reasonable cost to Lead Agency of the performance of the balance of the Work is in excess of that part of the GMP which has not theretofore been paid to Developer hereunder, Developer shall be liable for and shall reimburse Lead Agency for such excess, on demand. If the m~paid balance of the GMP exceeds the cost of finishing the Work, Developer's share of such "savings" shall be paid to Developer in accordance with the provisions of Article 3 hereof. Page 12 of 42 (n) Termination of Contract by Developer. In the event the Work is stopped by a public authority which is not the Lead Agency or a member or agency related to the Lead Agency without the fault of Developer for a period of thirty (30) days, or in the event Lead Agency breaches any of its material obligations under this agreement and Lead Agency fails to cure the breach within fifteen (15) days after written notice from Developer, then Developer may cease all or any portion of the Work and Lead Agency shall be responsible for all increased costs arising out of such delay, which delay shall be an "excused delay." Further, in any such event, and irrespective of whether or not Developer ceases all or any portion of the Work, Developer, after thirty (30) days written notice to Lead Agency and failure of Lead Agency to remove the default or cure such breach within such thirty (30) day period, may terminate the Contract, remove may materials, equipment, and tools from the Site, and recover from Lead Agency payment for all work executed and any loss or damage sustained by Developer by reason thereof. Developer and Lead Agency are currently preparing purchase of air space agreements, covenants, access, easements, and restriction. Additionally Developer and Kitsap Transit are negotiating a design/build contract for respective construction of the office spaces and the retail spaces (other than the restaurant.) In the event the parties fail to reach agreement ~on such documents on or prior to November 15, 2002, either party may give written nofive of termination of this agreement. (o) Inspection. Lead Agency and its representative shall at all times have access to the Work whenever it is in preparation or progress, and Developer shall permit and facilitate inspection of the Work by Lead Agency, its agents, and public authorities concerned with such work. (p) Safety Precautions. Developer shall take reasonable precautions for the safety of its employees on the Work, and shall comply with all applicable provisions of federal, state and municipal safety laws to prevent accidents or injury to persons on, about or adjacent to the site of the Work. Developer shall erect and properly maintain, at all times, as required by the conditions and progress of the Work, reasonable safeguards for the protection of workmen and the public. (u) Authorized Representatives. Gary Sexton, of Lead Agency, shall be Lead Agency's designated representative on the project described in this Contract, and either shall have authority to act or respond on Lead Agency's behalf concerning all matters which require Lead Agency's approval, consent, decision or other action under this Contract. Brian Fyall, Bart Brynestad of Developer, shall be Developer's representative on said project, and he shall have the authority to act or respond on Developer's behalf concerning all matters which require Developer's approval, consent, decision or other action under this Contract. (o0 Authority. The respective persons signing this agreement represent and warrant that they have the power and authority to execute this agreement on behalf of Lead Agency or Developer, as applicable, and to bind Lead Agency or Developer, as applicable, herein. Page 13 of 42 ARTICLE 12 TITLES; EXItlBITS Titles of articles are used in tiffs Contract solely for the convenience of those examining it and are not to be resorted to as aids in its construction or interpretation. If any of the provisions of the exhibits attached hereto or of any of the Contract Documents are inconsistent with the provisions of this Contract, the provisions of this Contract shall be controlling. The Exhibits hereto are the following: Exhibit A - Legal/Schematic Description of Property Exhibit B - Critical Path Schedule Exhibit C - Guaranteed Maximum Price Schedule Exhibit D - Cost of the Work Exhibit E - Reimbursable Costs and Advances Exhibit F-1 - Application for Payment - Reimbursable Costs & Advances Exhibit F-2 ~ Application for Payment - Non Reimbursable Costs & Advances Exhibit G - Conditional Lien Waiver and Indemnity Against Liens Exhibit H - Design documents ARTICLE 13 SUCCESSORS This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. ARTICLE 14 LAW GOVERNING This Contract shall be interpreted and construed in accordance with the laws of the State of Washington. ARTICLE 15 HAZARDOUS SUBSTANCES~ ASBESTOS Environmental investigations conducted under previous Agreement between Lead Agency and Developer revealed environmental contamination. Lead agency has contracted directly with an environmental consultant to provide Phase ~ investigations, review Phase reports, provide summary reports to state agencies, make recommendations for clean up or capping of contaminants, provide any other investigation or reports required by the State o£ Washington Department of Ecology ("DOE"), obtain any required DOE approvals. Lead Agency shall be directly responsible £or all rcmcdiation, including the selection o£ disposal £acilities and signing hazardous waste manifests, and the costs associated with implementing the approved remedial action pla~ and contingency plan. Lead Agency agrees to indemnify, defend and hold harmless Developer and its employees and subcontractors ~rom liability related to the existence o£ such hazardous substances at the project site, unless such liability a~ises out o£ the negligence or wrongful acts of Developer or its subcontractors. Page 14 of 42 ARTICLE 16 OWNERSHIP OF SITE/ DEVELOPMENT PERMITS AND APPROVALS/ RIGHT TO TERMINATE The Lead Agency covenants that the City of Bremerton and Kitsap Transit are the fee owners of thc land upon which the Work is to be performed, free and .clear of all liens and encumbrances, which might adversely affect the Project or prevent issue of air right title as herein and hereafter provided, ARTICLE 17 FEDERAL REGULATIONS AND REQUIREMENTS In both the design and construction of the Work, as it relates to the construction of the parl(mg garage, Developer shall be responsible for full compliance of the Work with the then applicable and existing NEPA, Davis-Bacon and Buy America regulations and requirements in accordance with Developer's current understanding thereof and as currently enforced by the building code officials in respect to the Work. For all other public structure work, Developer shall comply with Washington State Prevailing Wage laws. ARTICLE 18 PRIORITY OF CONTRACT DOCUMENTS To the greatest extent possible, the various Contract Documents shall be construed consistently, so as to complement each other. Any inconsistency between any provision of one of such documents and another shall be resolved, except as otherwise provided therein, by giving priority to said documents in the following order: (i) The Contract (with any exhibits attached) with modifications thereto of later date having priority of those with earlier dates; (ii) The Final Plans and Specifications, when approved; (iii) The Preliminary Plans and Specifications. The foregoing documents are the Contract Documents. ARTICLE 19 OTHER AGREEMENTS Lead Agency and Developer have entered into previous agreements for the design of the Project. Those Agreements are: Agreement Between the City of Bremerton and Opus Northwest dated 6th May 2002; Schematic Desig~ Agreement Between the City of Bremerton and Opus Northwest, LLC dated 19th June 2002; Schematic Design Agreement Modification # 1 Between the City of Bremerton and Opus Northwest, LLC datedl~..T. 4~2002. In addition, the Lead Agency and Developer will be entering into additional agreements for Purchase of Air Rights for Page 15 of 42 Private Components of this Project and Other agreements associated with Ownership of Air Rights. ARTICLE 20 TIME IS OF TI-IE ESSENCE Developer and Lead Agency agree that time is of the essence of this agreement. ARTICLE 21 ENFORCEABILITY If any provision of this Contract shall be invalid or unenforceable to any extent, the remainder of this Contract and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by taw. ARTICLE 23 FINANCING Prior to February 1, 2003, Lead Agency shall provide to Developer reasonably satisfactory evidence indicating that it has secured all necessary financing or bonds to pay for all costs of the project of which the public structure improvements contemplated hereunder are a part (with all preconstruction and predisbursement contingencies satisfied), said financing to provide payment to Developer under and according to the terms of this Contract. Owner shall be responsible for all costs arising out of delays in securing financing or bonds. Page 16 of 42 IN WITNESS WHEREOF, the parties hereto have executed this Contract the day and year first above written. a (Developer) By a 'J (Lead Agency ) By ~,..~ ~'-~"~ Its ~l~of'~ ,O~.. Page 17 of 42 EXItIBIT A LEGAL / SCHEMATIC DESCRIPTION OF PROPERTY PARCEL I: THAT PORTION OF GOVERNMENT LOT 3, SECTION 13, AND THAT PORTION OF GOVERNMENT LOT 1, SECTION 24, AND TIDELANDS ADJOrNING, ALL IN TOWNSHI~ 24 NORTH, RANGE 1 EAST, W.M., IN KiTSAP COUNTY, WASHiNGTON, DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF LOT 1 1N BLOCK 2 OF TOWN OF BKEMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, 1N KITSAP COUNTY, WASHINGTON; THENCE SOUTH 45°20'30" EAST ALONG THE NORTHEASTERLY MARGIN OF FIRST STREET (FRONT STREET) IN SAID PLAT A DISTANCE OF 14.18 FEET TO THE MOST SOUTHERLY CORNER OF AN ALLEY DELINEATED ON BLOCK 2 OF SAID PLAT; THENCE NORTH 35037, 10" EAST 60.00 FEET ALONG SAID DELINEATED ALLEY TO THE TRUE POiNT OF BEGINNING, WHICH IS ALSO CALLED POiNT "A" FOR REFERENCE pLrRPOSES; THENCE SOUTH 45020'30'' EAST PARALLEL TO THE NORTHEASTERLY MARGIN OF FIRST STREET (FRONT STREET) TO AN INTERSECTION WITH THE INNER HARBOR LINE DELINEATED ON 1958 SUPPLEMENTAL MAP OF THE BREMERTON TIDELANDS, ON FILE IN THE OFFICE OF THE COMMISSIONER OF PUBLIC LANDS, OLYMPIA, WASHINGTON; THENCE NORTHEASTERLY ALONG SAID INNER HARBOR LINE TO THE SOUTHWESTERLY MARGIN OF 2ND STREET AS DELINEATED ON SAID SUPPLEMENTAL MAP; THENCE NORTHWESTERLY ALONG SAID MARGIN TO A POINT ON THE MOST EASTERLY CORNER OF THE ALLEY DELINEATED ON BLOCK 2 IN PLAT OF TOWN OF BREMERTON; THENCE SOUTI-I 35o37, 10" WEST ALONG SAID ALLEY 247.21 FEET TO THE TRUE POINT OF BEGINNING; EXCEPT THAT PORTION DESCRIBED AS FOLLOWS: COMMENCING AT POINT "A" HERETOFORE DESCRIBED; THENCE SOUTH 45°20'30" EAST PARALLEL TO THE NORTHEASTERLY MARGiN OF FIRST STREET 34.02 FEET TO THE TRUE POINT OF BEGINNING OF THIS EXCEPTION; THENCE NORTH 45°29'10" EAST 14.17 FEET; THENCE NORTH 35°36'30'' EAST 5.90 FEET TO THE SOUTHWEST CORNER OF AN EXISTING BRICK BUILDING; THENCE SOUTH 45'20'30~ EAST ALONG THE SOUTHEASTERLY WALL THEREOF 129 FEET; THENCE SOUTH 41°53'20" WEST 20 FEET, MORE OR LESS, TO THE SOUTHWEST BOUNDARY OF THE MAIN TRACT HERETOFORE DESCRIBED; THENCE NORTH 45°20'30" WEST 129.41 FEET, MORE OR LESS, TO THE TRUE POiNT OF BEGINNING. PARCEL II: COMMENCiNG AT A POINT ON Ttil~ NORTHEASTERLY LINE OF FRONT STREET, ALSO KNOWN AS FIRST STREET, BREMERTON, WASHiNGTON, WHICH IS SOUTH 45020'30" EAST A DISTANCE OF 14.18 FEET FROM TH~ SOUTHEAST CORNER OF LOT 1 IN BLOCK 2 OF ORIGINAL PLAT OF THE TOWN OF BR.EMERTON, ACCORDiNG TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; THENCE NORTH 35%7' 10" EAST FOR A DISTANCE OF 60 FEET; THENCE SOUTH 45°20'30'' EAST FOR A DISTANCE OF 163.43 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 45o20'30'' EAST 45 FEET; THENCE SOUTH 41°53'20" WEST 59.39 FEET, MORE OR LESS, TO THE NORTHEASTERLY LINE OF SAID FRONT STREET (FIRST STREET); THENCE NORTHWESTERLY ALONG THE NORTHEASTERLY LINE OF FRONT STREET (FIRST STREET) 45 FEET; THENCE NORTH 41'53'20" EAST 59.39 FEET, MORE OR LESS, TO THE TRUE POINT OF BEGINNING; TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOINING OR Page 18 0f42 ABUTTING THEREON, WHICH UPON VACATION, ATTACHED TO SAID PKEMISES BY OPERATION OF LAW. PARCEL III: THAT PORTION OF GOVERNMENT LOT 1, SECTION 24, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., AND THE TIDELANDS ADJOINING, IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHERLY CORNER OF LOT 1 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; THENCE SOUTH 45o20'30" EAST ALONG THE NORTHEASTERLY LINE OF FIRST STREET (FRONT STREET) 14.18 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 35°37'10" EAST 60 FEET; THENCE SOUTH 45020'30'' EAST 34.02 FEET; THENCE SOUTHWESTERLY TO A POINT ON THE NORTHEASTERLY LINE OF FIRST STREET WHICH IS SOUTH 45020'30'! EAST 23.69 FEET FROM THE TRUE POINT OF BEGINNING; THENCE NORTH 45020'30'' WEST 23.69 FEET TO THE TRUE POINT OF BEGINNING; TOGETHER WITH THAT PORTION OF VACATED FRONT (FIRST) STREET ADJOINING OR ABUTTING THEREON, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. PARCEL IV: LOTS 8 AND 9 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; TOGETHER WITH THAT PORTION OF VACATED ALLEY ADJOINING OR ABUTTING THEREON, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. Page 19 of 42 EXHIBIT B CRITICAL PATH~SCHEDULE ~ i Page 20 of 42 Page 21 of 42 .? Page 22 of 42 EXHIBIT C GUARANTEED MAXIMUM PRICE SCHEDULE 1. CLARIFICATIONS & ASSUMPTIONS A. DIVISION 1 - Design and General Conditions 1. Final soils report has been reissued. Design and pricing has assumed there will not be and under slab drainage system but there will be foundation wall and footing drainage system. 2. We've assumed the southeast comer of plaza can be supported on the existing piling/pile cap/structural slabs. Pile records from the BTC need to be secured and reviewed by soils engineer to piles can support new imposed loads. 3. Public Works has indicated that there wilt not be a requirement for site storm water detention. 4. We excluded any sanitary sewer encasement on the existing sewer line that runs through the site. 5. Public Works has indicated that water fire flow for the proposed development is adequate to serve the project. 6. Public Works has indicated that there is adequate sewer capacity for the proposed project. 7. Public Works has indicated that coordination and/or plan approval that may be required for Washington Avenue (WSDOT jurisdiction), will be coordinated by Public Works. 8. Public Works has informed us that the easternmost lane on Washington has to be maintained until a future date when ferry traffic is rerouted. However, design and pricing assumes long term desired condition, namely, eastern most lane will be used for two handicapped van parking and planters. In the interim we've created two handicapped van stalls near the BTC elevator. 9. At the eastern end of Second Street, Public Works is requiring a 90 foot diameter cul-de-sac with a minimum of 3 parking stalls be provided. A portion of the cul- de-sac will be located on private property to the north of Second. GMP does not include costs for work beyond 4'-0" of curb nor purchase of private property to the north. Pricing for work beyond 4'-0" will be forwarded to Lead Agency as an additive option. 10. Public Works has confirmed that the list of contaminants that was submitted by environmental consultant can be discharged directly into existing sanitary sewer system. We've assumed all temporary dewater/ng will be routed to existing sanitary sewer system in lieu of to existing storm sewer system. 11. City of Bremerton zoning code does not recognize 'compact' parking stall size for th/s location. Given the urban location and odd geometry of the building, there must be a variance issued or code modified to allow for +/- 10% of stalls to be designated as compact with minimum size of 7'-4" by 15'-0". 12. Present design extends beyond property lines controlled by Lead Agency or Kitsap Transit. Lead Agency to provide needed easements / leases to allow for Page 23 of 42 present design. Lead Agency to provide Code Official acceptance of design intent relative to property ownerskip issues. 13.It is assumed work hours are unrestricted. 14.No waterfront insurances are included. 15. Loading dock entrance and exit shall utilize ferry terminal roadways, as will deliveries at plaza level. 16. Loading dock and complex traffic routes are not capable of accepting tracks any larger than 30' box trucks. 17. Parking areas to have clear height (less required utilities) P3 8'- 0", P2 8'- 0" and P1 9'- 0". 18. This is a mid point design and design development budget only. Inconsistencies may exist due to the nature of schematic documents. Opus reserves the right to adjust such documents and the information contained there in as clarity and magnitude are further developed during design development. 19. Opus requires written clarification of any and all specific Federal and Public funding rules and regulations, which may impact the project administrative efforts and cost of the work. 20. Adequate lay down area on North side of 2nd Street along the waterfront and atop ferry deck to be provided by the City. 21.No Federal and State inspections anticipated. 22. Opus to utilize Opus' standard cost schedule programs, forms and documents for all administrative tasks. 23. Opus shall receive copies of recorded titles of ownership at no cost. Such titles or lack of titles being accurately recorded shall not impact project in any way. 24.No overtime and/or holiday/weekend work is included. 25. No City utility coordination and/or operation assistance costs may be required. Such coordination and assistance if required shall be provided at no cost. 26. Construction use of existing parking area under BTC will occur during complete project construction. B. DIVISION 2 - Site Construction 1.We've included a total of 25 fixed bollards and 8 removable bollards Onsite, final layout to be determined. 2. Plaza hardscape surfaces are included within the budget at $6.50/SF. Final layout and design of hardscape will be resolved later. 3. Removal of existing Marina building near entry to boat dock is not included in the GMP. Removal of any hazardous materials contained within existing Marina building adjacent to east property line is excluded. 4. We exclude all dump fees or material being removed from site. Hauling of materials from site is limited to 45 minutes round trip during peak hours. 5. Utilities assessments are excluded from construction budget, see soft costs for allowances of this work. 6. Traffic control by the City of Bremerton. 7. No improvements to existing board walk and ferry terminal decks are included. 8. Existing sanitary sewer line shall remain as is in place. City shall accept building adjacent to and above with no additional measures required. Page 24 of 42 9. Any costs of repairing damage arising fi.om vibration, dewatering anWor equipment loads are excluded. 10. Grading and repairing of Washington Avenue and 2na Street to be no more than 4' outside of proposed new curb line. 11. Foundation system assumed to be a combination of auger cast piles, and spread footings. No water proofing of S.O.G is budgeted. 12. No obstructions underground other than shown in Alta Survey less demolished structures as indicated on the City's demolition plans that are to be completed by others. 13. Permission and easements shall be granted at no cost for any and all required project elements such as but not limited to tieback anchors, piles, footings, and sidewalks and under ground utilities. 14. Substructure to be above and adjacent to existing utilities and structures as indicated. C. DIVISION 3 - Concrete 1. Super structure anticipated to be non reinforced 4" slab on grade at P3 post tensioned 7 1/2" concrete decks, P3-P2 and 10" on plaza deck cast in place concrete shear and perimeter walls and interior columns, and stairs to be metal. D. DIVISION 5 - Metals 1. Metal railing at plaza are included in the budget, final design to be determined. E. DIVISION 6 - Wood and Plastics 1. Vanity tops are assumed as plastic laminate. 2. Casework is assumed to be plastic laminate. F. DIVISION 7 - Thermal and Moisture Protection 1. Metal wall panels will be an alternate manufacturer to that is stated in the Outline Specifications. 2. Assumed floor insulation at conference center will be stickpin fi.om below. 3. Design of conference canopies is incomplete, we've budgeted $88,000.00 for exterior canopies over double doors fi.om conference center. G. DIVISION 8 - Doors and Windows 1. Partitions between conference rooms will be horizontal stacking type in lieu of vertical stacking type. 2. Folding partitions between conference rooms and preqfunctions will be horizontal. 3. Finish on doors is clear. Dark stain finish on doors is excluded. It. DIVISION 9 - Finishes 1. There is no painting of garage ceilings and walls. 2. SpeciaI ceilings at pre-function and lobby are budgeted at $10.00/square foot. Wood slates per outline specification is not in budget. 3. Special ceilings at pre function are budgeted at $17.00/s.f. 4. Quartz flooring in the kitchen is excluded. Kitchen floor is sealed concrete. Page 25 of 42 5. Painting above wood ceilings is excluded. I. DMSION 10 - Specialties 1. A maximum STC of 50 is included for folding panel partitions. 2. Projection screens are excluded. 3. All appliances with the exception of the kitchen equipment are excluded. 4. Marker boards are excluded. 5. Electrified building sign is excluded. 6. Fencing is included at loading dock 7. We specifically exclude the following: art and office equipment. J. DIVISION 11 - Equipment K. DIVISION 12 - Furnishings 1. All window blinds are excluded. 2. Electric window blinds are excluded. 3. Systems furniture and furnishings are excluded. 4. Lobby furniture is excluded. L. DIVISION 13 - Special Construction M. DIVISION 14 - Conveying Systems N. DIVISION 15 - Mechanical 1. Canopy drains will not be tight lined or piped. O. DIVISION 16- Electrical 2. Street lights (six total) are included. Fixture type is Cobra type. 3. Voice and data calling or telephone system. 4. Emergency generator will not be provided. 5. No under grounding of existing overhead utilities. 6. No traffic signals. II. ALLOWANCES SOFT COSTS 2. Utility charges and assessments we have included the following amounts for utility assessments: 1. PSE (electrical services) - $115,000.00 Offsite trenching & restoration to be by utility. Page 26 of 42 2. Water, sewer and storm water - $ 10,000.00 3. Gas- $ 35,000.00 Assumes gas line is mn on eastside of project, other wise additional construction costs may be incurred. d. Qwest- $ 10,000.00 3. Control gate at ferry terminal entry - $ 45,000.00 Page 27 of 42 ALL PUBLIC Brernerton Conference Center Total Project Costs Soft Costs Agent of City Direct costs Total Design fees $1,252,753 $288,454 Survey $0 $15,000 Environmental inspection Phase I $37,000 $23,660 Inspection & testing $121,144 $21,500 Permits $184,745 $0 Utility charges & assessments $170,000 $0 Printing costs $I ,500 $16,850 Legal fees $0 $15,000 Environmental insurance $0 $0 Start up costs $0 $1,500 Contingency $70,686 $14,323 Subtotal Soft Costs $1,837,828 $396,287 Opus Fee $189,900 WSST on Direct Costs $49,826 Subtotal with fee & WSST $1,837,828 $636,013 Total Soft Costs $2,473,841 Hard Costs Construction Costs $13,812,504 General Conditions $1,020,000 Insurance & B& O Taxes $222,488 Gpus Fee $1,279,674 WSST @ 8.5% $1,388,447 Contingency on Construction $708,924 Total Hard Costs $'~ 8,432,037 $18,432,037 Total Costs Total Soft and Hard Costs $20,905,877 .Page 28 of 42 EXHIBIT D COST OF THE WORK 1. Included Costs. Subject to the Guaranteed Maximum Price and specifically excluding Costs Not To Be Paid as defined below, the "Cost of the Work" shall mean all costs necessarily incurred in the proper performance of the Work and paid by the Developer and shall include the items set forth below: a. Amounts due under all consultant agreements, subcontracts, supply agreements and purchase orders made in accordance with the provisions of this Agreement including the costs of transportation and storage. b. Wages and salaries for all labor, including Worker's Compensation insurance, benefits and taxes as described in subparagraphs i. and m. of this section, including services for senior project managers, project managers, assistant project managers, project superintendents, field superintendents, assistants to superintendents, engineers, draftsmen, salaried foremen, timekeepers, accountants, field secretaries, paymasters, clerks, expediters, inspectors, tradesmen, and such others as may be necessary for the proper conduct of the Work, employed by the Developer at the Job-site; or at the Developer's home office. The following rates and/or time commitments are hereby established for the services of Developer management and supervision: · Senior Project Manager, on site or at the Bellevue office, $64.00 per hour, billed at actual hours worked; · Project Manager $57.00 per hour, billed at actual hours worked; · Assistant Project Manager (Project Engineer) $42.00 per hour, billed at actual hours worked; · Superintendent $64.00 per hour, billed at actual hours worked; · Assistant Superintendent $64.00 per hour, billed at actual hours worked; · Accountants $35.00per hour · Construction Management Assistant (Field Secretary) $27.00 per hour, billed at actual hours worked. c. The cost (including transportation, storage, operating, maintenance and repair costs) of all materials, temporary structures, equipment, small tools not owned by workmen or subcontractors, or supplies purchased for use on the Site. d. The cost of all rental equipment or materials including any repair and maintenance costs except normal wear and tear. Page 30 of 42 e. Expenses of reasonable traveling by representatives of the Developer incurred in obtaining or inspecting materials, recruiting labor, or for other purposes applying to the Work, and by mechanics or laborers and the Developer's staff employees in the case it is necessary to secure them at a distance fi:om the Site, excluding travel in Kitsap, Pierce and King County. f. The cost of renting real property necessary for storage, job office, or performing any other part of the Work. g. The cost of telephone, computers, printers, sofiware, local area networks ("LAN"), internet provider service fees, telegrams, postage, photographs (including negatives) and similar items, blueprints, transportation and storage charges, surveys, and soil and other investigations, incurred at the Site. h. The cost of protecting, crossing or altering any public utility on, or adjacent to the Site. i. Premiums and any deductibles (other than general liability and worker's compensation policy deductibles) on all insurance authorized and procured by the Developer under the Contract Documents. j. Fees for all municipal and other permits, licenses and patents and royalties, if any. k. The cost of engineering, scheduling, and accounting services, including any costs to respond to Lead Agency requests. 1. The cost of obtaining and using all utility services. m. Federal, state, municipal and other taxes, and such actual employee benefits, pension, apprentice training and employment fired contributions as required under the applicable Union contracts and tax codes; including for salaried employees, all benefits uniformly applied and actually paid by Developer. n. The costs of royalties, damages for infringement on patents, and costs of defending suits therefore for causes other than the (a) negligence, Co)willful acts intended to cause harm or injury, or (c) violation of written state, federal, or local law, statutes, ordinances, or regulations, by the Developer, its subcontractors or their respective employees, or any subcontractor arising out of construction methods or techniques required by the Lead Agency shall be added to the Guaranteed Maximum Price. o. Premiums and fees for all bonds called for by the Contract Documents and the cost of bonds required from subcontractor by Lead Agency or Developer. p. Other expenses or charges, incurred in the prosecution of the Work and approved by the Lead Agency. Page 31 of 42 q. Overtime premium shall be included in the Cost of the Work and shall be at 1.5 times the hourly rates set forth in subparagraph, but excluding the Senior Project Manager, Project Manager, Superintendent and Assistant Superintendent. r. Materials, supplies, equipme~nt, temporary heat, light, power, water, freight, and temporary structures required for proper execution of the Work, maintenance required for any of such items, and all sales and other taxes related thereto. s. Incidental supplies and expenses incurred in performance of the Work on Site which are normally considered expendable, such as office supplies, files, sandpaper, paint brushes, lumber crayons, hand lines, etc. t. Costs of housekeeping, cleanup and debris removal and dump charges. u. Costs incurred as a result of Federal and State OSHA safety requirements. v. Costs due to an emergency affecting the safety of persons and/or property located at the Site. w. Costs incurred for security or guard service. x. The final budgeted estimate for direct Cost of the Work shall include a "contingency" line item which shall be in an mount totaling 4% of the above, listed Base Costs. Such contingency may be used by the Developer for any unanticipated Cost of the Work, regardless of whether such additional cost accrues to a new or existing budget cost line item. 2. Costs Not to Be Paid. Except as specifically noted in Paragraph 1, above, the following costs shall not be reimbursed: a. Salaries or other compensation of Developer's personnel normally situated at the Developer's principal office and branch offices, or for any officer of Developer except as expressly noted in Paragraph 1, above. b. Expenses of Developer's Principal and Branch Offices other than the Field Office. c. Costs due to the (a) negligence, (b) willful acts intended to cause harm or injury, or (c) violation of written state, federal, or local law, statutes, ordinances, or regulations, by the Developer, its subcontractors or their respective employees of Developer, any subcontractor, anyone directly or indirectly employed by any of them, or for whose acts any of them may be liable, unless Developer demonstrates that its actions were in accordance with standard industry practice and/or the non-compliance related to requirements which are seldom applied to such work or are subjective in nature. d. The cost of any item not specifically and expressly included in the items described in Paragraph 1, above, except with the Lead Agency's prior written approval. Page 32 of 42 e. Costs of any fines as imposed by WISH_A, OSHA, or other regulatory agency for violations which occur during performance of the Work, including, without limitation, all acts and omissions which relate to or arise from the Developer's, its agents', subcontractors', suppliers' or Materialmen's obligations to provide for and control over the method, manner and means the performance of the Work, provided; however, that if the cause or cost of the penalty relates to existing conditions, not created by the Developer, its agents, subcontractors, suppliers or materialmen or to the proper performance of the Work in accordance with the Contract Documents and in accordance with the obligations of the Developer and Lead Agency regarding the performance of the Work pursuant to the Construction Documents then this exclusion shall not apply. f. Costs which would cause the Guaranteed Maximum Price, if any, to be exceeded, other than Lead Agency approved change orders and allowance items. 3. Cost not included: Developer shall be reimbursed for increases or decreases in tax rates or rulings occurring after the signing of this Contract by both parties. Page 33 of 42 EXI][IBIT E REIMBURSABLE COSTS AND ADVANCES Developer is hereby acknowledged to be authorized agent for Lead Agent for design services only The Developer shall be responsible for all communications, coordination, review, supervision and control of such. 1. Design Services Agreements. A. Primary Architect - LMN Architects., 801 Second Ave, Suite 501, Seattle, WA. LMN B. Permitting services -'Rice Fergus Miller, 262 Fourth Street, Bremerton, WA. C. Landscape architects- McCleod Reckord, 231 Summit Ave. East, Seattle, WA. D. Surveyor - Parametrix, Inc., 5700 Kitsap Way, Suite 202, Bremerton, WA. E. Civil engineer - Barghausen Consulting Engineers, 18215 72nd Ave South, Kent, WA. F. Environmental inspection services - Parametrix, Inc., 5700 Kitsap Way, Suite 202, Bremerton, WA. As well as, Hart Crouser. G. Geotechnical consultant - Terra & Associates, 12525 Willows Road, Suite 101, Kirkland, WA. H. Structural engineer - Cary Kopczynski & Company, 155 108th Ave. N.E., Suite 220, Bellevue, WA. I. Fire sprinkler design- Patriot Fire Protection, 2707 70th Ave. E, Tacoma, WA 98424. J. Plumbing design- Stin'ett-Johnsen, 5555 Westgate Road N.W., Silverdale, WA. K. HVAC & controls design-builder - Encompass, 7717 Detroit Ave., SW, Seattle, WA 98106. L. Electrical design- Valley Electric, 21919 20th Avenue Se, Suite 200, Bothell, WA 98021. M. Elevator consultant - Elevator Consulting Services, 15600 NE 8th Street, Suite B 1, PMB 14E, Bellevue, WA. N. Corrosion consultant - Norton Corrosion Limited, 8820 222nd Street SE, Woodinville, WA. 98072 O. Acoustical Consultant - JGL Acoustics, P. Construction and testing inspection - Q. Lead Agency shall pay for costs directly as part of and within the Guaranteed Maximum Price for the following services and costs. The Developer shall manage and coordinate the services listed. · Plan review and building permits. · Utility connections (water, storm, gas, power, telephone, cable services). Page 34 of 42 EXI-IIBIT F-1 APPLICATION FOR PAYMENT - REIMBURSABLE COSTS & ADVANCES. INVOICE FOR REIMBURSABLE COSTS & ADVANCES To: Clty of Bremerton Job number: 2065.00 245 Fourth Street Invoice No,: 2065.00 - Bremerton, WA 98337 Invoice Date: Attn: 'Gary Sexton Terms: 30 Days cc: Opus NW Accounting Re: Bremerton Conference Center Reimbursable Costs and Advances For: 1. Consulting Services per attached spreadsheet. $0,0Q 2. Reimbursables per attached spreadsheet. $0 TOTAL DUE:[ $0 ! Please remit to: Opus Northwest L.L.C. 915 ~18th Avenue SE Suite 300 Bellevue, WA 98005 Attention: Bad Brynestad Page 35 of 42' Page 36 of 42 EXmBIT F-2 APPLICATION FOP,. PAYMENT --: N~BIFI31A::~ABLE COSTS & ADVANCES. APPLICATION FOR PAYMENT - NON REIMBURSABLE COSTS & ADVANCES. Page 37 of 42 Page 38 of 42 EXHIBIT G CONDITIONAL LI[EN WAIVER THE UNDERSIGNED ACKNOWLEDGES HAVING RECEIVED PAYMENT OF THE SUM OF DOLLARS AND NO/100 ($ ) PAID TO DATE FROM CITY OF BREMERTON ("LEAD AGENCY") IN PAYMENT OF ALL LABOR, SKILL, SERVICES, EQUIPMENT, MATERIALS OR OTHER ITEMS DELIVERED, FURNISHED OR PERFORMED BY OR THROUGH THE UNDERSIGNED IN THE PERFORMANCE OF WORK OR THE FURNISHING OF LABOR, SKILL, SERVICES, EQUIPMENT, MATERIALS, OR OTHER ITEMS BY THE UNDERSIGNED, DESCRIBED AS (KIND OF WORK): [ ] GENERAL [ ] CONTRACT [ ] OTHER THANCONTRACT SAID WORK WAS PERFORMED AT OR LABOR, SKILL, SERVICES, EQUIPMENT OR MATERIALS DELIVERED OR FURNISHED TO THE FOLLOWING PREMISES: First and lFashington Con(erence Center~ Bremerton~ WA. THIS INSTRUMENT IS INTENDED TO BE A [ ] PARTIAL [ ] FINAL (CHECK ONE) LIEN WAIVER AND THE UNDERSIGNED DOES HEREBY WAIVE ALL RiGHTS WHICH MAY HAVE BEEN ACQUIRED BY THE UNDERSIGNED TO FILE A MECHANIC'S LIEN AGAINST THE AFORESAID PREMISES FOR LABOR, SKILL, SERVICES, EQUIPMENT, MATERIALS OR OTHER ITEMS DELIVERED FURNISHED OR PERFORMED BY OR THROUGH THE UNDERSIGNED THROUGH THE EFFECTIVE DATE OF THIS LIEN WAIVER. THE UNDERSIGNED DOES FURTHER STATE AND REPRESENT THAT IT HAS FULLY PAID FOR ALL LABOR, SKILL, SERVICES, EQUIPMENT, MATER[ALS AND OTHER ITEMS FURiN1SHED TO SAID PREMISES AND THERE AKE NO AMOUNTS UNPAID WITH RESPECT THERETO. THE UNDERSIGNED DOES FURTHER AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS LEAD AGENCY AND ANY OTHER PARTY TO WHOM LEAD AGENCY IS RESPONSIBLE AGAINST ANY AND ALL CLAIMS OR LIENS WHICH MAY BE MADE OR FILED AGAINST LEAD AGENCY OR THE AFORESAID PREMISES BY THE UNDERSIGNED, OR BY ANY SUBCONTRACTOR, MATEPdALMAN OR OTHER PERSON, FIRM OR CORPORATION DELIVERING, FURNISHING OR PERFORMING ANY LABOR, SKILL, SERVICES, EQUIPMENT, MATERIALS OR OTHER ITEMS BY OR THROUGH THE UNDERSIGNED IN THE PERFORMANCE OF SUCH WORK BY THE UNDERSIGNED THROUGH THE EFFECTIVE DATE HEREOF. THE EFFECTIVE DATE OF THIS LiEN WAIVER AND INDEMNITY IS THE __ DAY OF REF OPUS NORTHWEST LLC (CONSTRUCTION) BY: TITLE: DATE: Page 39 of 42 EXHIBIT H DESIGN DRAWINGS Dwg issue Rev. Revision Received Comments Num. Description Date Num. Date Date IARCHITECTURAL DRAWINGS ] (Issued by LMN Architects) A000 Cover Sheet 10/22/2002 10/22/2002 Pricing Set A001 Drawing List 10/22/2002 10/22/2002 Pricing Set AP201 P1 Parking Level Plan 912412002 10/22/2002 10/31/2002 Pricing Set AP202 P2 Parking Level Plan 9/24/2002 10/2212002 10131/2002 Pricing Set AP203 P3 Parking Level Plan 912412002 10/22/2002 10/31/2002 Pricing Set A201 Ground Level Floor Plan 9/2412002 10/22/2002 10/22/2002 Pricing Set A204 Roof Ptan 8/15/2002 10/22/2002 10122/2002 Pricing Set A210 Partial First Ftoor Plan 10/22/2002 10/22/2002 Pricing Set A211 Partial First Floor and Mech Mezz PIans 10/22/2002 10/22/2002 Pricing Set A212 Enlarged Plans - Loading and Marine Services 10/22/2002 10/22/2002 Pdcing Set A301 Extedor Elevations 9/24/2002 10/22/2002 10/22/2002 Pricing Set A302 Site Exterior Elevations 10/22/2002 10/22/2002 Pricing Set A401 Building Sections 9/24/2002 10/22/2002 10/22/2002 Pdcing Set A402 Building Sections 9/24/2002 10/22/2002 10/22/2002 Pdcing Set A405 Wall Sections 10/22/2002 10/22/2002 Pricing Set A408 Wall Sections 10/22/2002 10/22/2002 Pricing Set A407 Wall Sections 10/22/2002 10/22/2002 Pdcing Set A408 Wall Sections 10/22/2002 10/22/2002 Pricing Set A409 Partial Building Sections 10/22/2002 10/22/2002 Pricing Set A503 Stair 3 & 4 Ptans and Section 10/22/2002 10/22/2002 Pdcing Set A506 Elevator I & 2 Ptans and Section 10/22/2002 10/22/2002 Pricing Set A507 Elevator 3 Plans and Section I0/22/2002 10/22/2002 Pricing Set A701 Ground Level Reflected Ceiling Plan 8/15/2002 10/22/2002 10/22/2002 Pricing Set A710 Partial First Floor Reflected Ceiling Plan 10/22/2002 10/22/2002 Pricing Set ~STRUCTURAL DRAWINGS (Issued by CKC Structural Engineers) S201 Level P2 Framing Plan 8/1/2002 10/22/2002 10/22/2002 Pricing Set S202 Level P1 Framing Plan 8/1/2002 10/22/2002 10/22/2002 Pricing Set S203 Level 1 Framing Plan 8/1/2002 10/22/2002 10/22/2002 Pdcing Set S204 Level 1 Framing Plan 8/1/2002 10/22/2002 10/22/2002 Pricing Set S205 Office Level 2/Conference Room 8/1/2002 10/22/2002 10/22/2002 Pdcing Set S210 Plaza Concrete Stair Framing Plan 10/22/2002 10/22/2002 Pricing Set S311 Basement Wall Sections 10/22/2002 10/22/2002 Pdcing Set S312 Basement Wail Sections 10/22/2002 10/22/2002 Pricing Set S321 Pile Cap Plan Details 10/22/2002 10/22/2002 Pricing Set S331 Grade Beam Elevations and Details 10/22/2002 10/22/2002 Pricing Set Page 40 of 42 ILANDSCAPE 1 (issued by Macteod Reckord) L101 Landscape Site Plan 10/22/2002 10/22/2002 Pricing Set L106 Planting Plan 10/22/2002 10/22/2002 Pricing Set L108 Irrigation Plan 10/22/2002 10/22/2002 Pricing Set L109 Irrigation Notes, Legends & Details 10/22/2002 10/22-/2002 Pricing Set L110 Details 10/22/2002 10/22/2002 Pdcing Set L111 Details 10/22/2002 10/22/2002 Pricing Set Ll12 Details, Sections & Elevations 10/22/2002 10/22/2002 Pricing Set (Issued by Stirrett Johnson) PP204 Underground Piping Plan 10/22/2002 10/31/2002 Pdcing Set PP203 P3 Parking Level 10/22/2002 10/31/2002 Pdcing Set PP202 P2 Parking Level 10/22/2002 10/31/2002 Pdcing Set PP201 P1 Parking Level 10/22/2002 10/31/2002 Pricing Set P201 First Level Plan 10/22/2002 10/31/2002 Pdcing Set P202 Second Level Plan 10/22/2002 10/31/2002 Pdcing Set (Issued by Bargreen EIIlngson) K-1 Kitchen Equipment Plan 10/22/2002 10/22/2002 Pricing Set K-2 Kitchen Equipment Schedule 10/22/2002 10/22/2002 Pricing Set IMECHANICAL DRAW]NGS j (Issued by Encompass) M01 Schedules- HVAC 10/22/2002 10/22/2002 10/31/2002 Pricing Set MP2.01 P1 Parking Level Plan- HVAC 10/22/2002 10/22/2002 10/31/2002 Pdcing Set MP2.02 P2 Parking Level Plan - HVAC 10/22/2002 10/22/2002 10/31/2002 Pricing Set MP2.03 P3 Parking Level Plan - HVAC 10/22/2002 10/22/2002 10/31/2002 Pricing Set M2.01 Ground Level Plan - HVAC 10/22/2002 10/22/2002 10/31/2002 Pdcing Set M2.04 Roof Level Plan - HVAC 10/22/2002 10/22/2002 10/31/2002 Pdcing Set M3.01 Details - HVAC 10/22/2002 10/22/2002 10/31/2002 Pdcing Set LPatriot Fire Protection (Issued by Patriot) FPI.0 Cover Sheet 10/22/2002 10/22/2002 10/22/2002 Pricing Set FPI.1 Schematic Riser Diagram 10/22/2002 10/22/2002 10/22/2002 Pricing Set FP2.2 P-1 Parking Level 10/22/2002 10/22/2002 10/22/2002 Pricing Set FP2.3 P-2 Parking Level 10/22/2002 10/22/2002 10/22/2002 Pricing Set FP2,3 P-3 Parking Level 10/22/2002 10/22/2002 10/22/2002 Pricing Set Page 41 of 42 FP3.1 Ground Level - Conference Center 10/22/2002 10/22/2002 10/22/2002 Pricing Set (Issued by Valley Electric) E0.00 Abbreviations, Legend and Drawing List 7/31/2002 10/22/2002 10/22/2002 Pdcing Set E0.01 Fire Alarm Notes Sheet List, Legend and Sch.,. 7/31/2002 10/22/2002 10/22/2002 Pdcing Set E0.10 Site Plan Underground Distribution and Comm. 7/31/2002 10/22/2002 10/22/2002 Pdcing Set E0.20 Site Plan Electrical 7/31/2002 10/22/2002 10/22/2002 Pricing Set E1.01 Parking Level P1 Lighting 7/31/2002 10/22/2002 10/22/2002 Pricing Set E1.02 Parking Level P2 Lighting 7/31/2002 10/22/2002 10/22/2002 Pdcing Set E1.03 Parking Level P3 Lighting 7/31/2002 10/22/2002 10/22/2002 Pricing Set E1.04 Ground Level Lighting 7/31/2002 10/22/2002 10/22/2002 Pdcing Set E2,01 Parking Level P1 Power and Mechanical 7/31/2002 10/22/2002 10/22/2002 Pricing Set E2.02 Parking Level P2 Power and Mechanical 7/31/2002 10/22/2002 10/22/2002 Pricing Set E2.03 Parking Level P3 Power and Mechanical 7/31/2002 10/22/2002 10/22/2002 Pricing Set E2.04 Ground Level Power and Mechanical 7/31/2002 10/22/2002 10/22/2002 Pricing Set E2.07 Mezzanine Level Power and Mechanical 8/8/2002 8/8/2002 8/8/2002 Presentation to COB E3,11 Parking Level P1 Fire Alarm 7/31/2002 10/22/2002 10/22/2002 Pricing Set E3.12 Parking Level P2 Fire Alarm 7/31/2002 10/22/2002 10/22/2002 Pricing Set E3.13 Parking Level P3 Fire Alarm 7/31/2002 10/22/2002 10/22/2002 PHcing Set E3~14 Ground Level Fire Alarm 7/31/2002 10/22/2002 10/22/2002 Pdcing Set E3.24 Ground Level Security System 7/31/2002 10/22/2002 10/22/2002 Pricing Set E3.34 Ground Level AN Systems 7/31/2002 10/22/2002 10/22/2002 Pdcing Set E4.00 E[ectricaJ One-Line Diagram 7/25/2002 10/22/2002 10/22/2002 Pdcing Set E4.01 Voice/Data Riser Diagram 8/8/2002 ~0/22/2002 10/22/2002 Pricing Set E4.10 Fire Alarm Riser Diagram 7/31/2002 10/22/2002 10/22/2002 Pdcing Set E4.20 Security System Riser Diagram 713112002 10/22/2002 10/22/2002 Pricing Set E4.30 AN System Details and Enlarged P~ans 7/31/2002 10/22/2002 10/22/2002 Pdcing Set E5.00 Electricel Details 7/31/2002 10/22/2002 10122/2002 Pricing Set E5.20 Secudty System Details 7/31/2002 10/22/2002 10/22/2002 Pricing Set (Issued by Barghausen) 1 of 1 Preliminary Grading & Drainage Plan t0/22/2002 10/22/2002 Pricing Set [OUTLINE SPECIFICATION (Issued by LMN) 24 pages Pricing Documents (Issued by CKC Engineers) 4 pages 10/22/02 Pricing Documents ISOILS REPORT (Issued by Terra Associates, Inc,) Project No T-5132 11/04/02 Page 42 of 42 Final Draft 11/1/2002 PURCHASE AND SALE AGREEMENT FOR RESTAURANT PAD This PURCHASE AND SALE AGREEMENT (this "Agreement") is dated for reference purposes the __ day of , 2002, and is by and between THE CITY OF BREMERTON, a municipal corporation (the "City of Bremerton") and KITSAP TRANSIT, a municipal corporation who acquired title as Kitsap Transit, Inc., a Washington corporation ("Kitsap Transit"; the City of Bremerton and Kitsap Transit are herein collectively called "Seller"), and OPUS NORTHWEST, L.L.C., a Delaware limited liability company ("Buyer"). RECITALS A. The City of Bremerton and Kitsap Transit are the owners of land situated in the City of Bremerton, County of Kitsap, State of Washington as currently shown on map, Exhibit A-1 and legally described in Exhibit A-2 attached hereto and made a part hereof. The City of Bremerton and Kitsap Transit have entered into an Interlocal Agreement between themselves and their rights and obligations under this Agreement shall be governed between themselves as set forth in such Interlocal Agreement. B. Seller desires to develop the Property (as such term is defined below) into the Conference Center with a conference center, a parking garage, a hotel, a restaurant and a mixed- use building (office, retail and possibly residential). Seller and Buyer have concurrently executed that certain Design/Build Construction Contract dated , 2002 (the "Design/Build Agreement"), wherein Seller has hired Buyer to design and construct, on behalf of Seller, the parking garage, the conference center and a plaza, which construction shall result in the creation of structural pads, the air-rights over one of which will be sold and conveyed to Buyer, or its assigns, for the construction ora restaurant. C. Buyer desires to purchase, or assign its rights to purchase, the Restaurant Air- Rights (as such term is defined below), upon and subject to all of the terms, provisions and conditions set forth in this Agreement. AGREEMENTS NOW, THEREFORE, for and in consideration of the mutual covenants and conditions set forth herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows: 1. Definitions. Capitalized terms used in this Agreement shall have the meanings set forth in Exhibit B attached hereto and made a part hereof. 2. Agreement to Sell and Purchase. Seller shall sell the Restaurant Air-Rights to Buyer or its assigns, and Buyer or its assigns shall purchase the Restaurant Air-Rights from Seller, at the price and on the terms, provisions and conditions hereinafter set forth. V#240257 vl - Opus ~ Bremerton - P&S Agreamcnt for Restaurant Air Rights.doc 3. Purchase Price. The purchase price to be paid by Buyer to Seller for the Restaurant Air-Rights (the "Restaurant Purchase Price") shall be the greater of (i) Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00), or (ii) one-half (1/2) of the purchase price, less commissions, for Buyer's sale of the Restaurant Air-Rights to a third party. At the Restaurant Air-Rights Closing, the Restaurant Purchase Price shall be payable by wire transfer or otherwise in immediately available funds. 4. Conditions Precedent. (a) Completion of Subdivision and Structural Components. Buyer contemplates selling its rights to acquire the Restaurant Air-Rights to a third-party user, owner or developer with whom Buyer would contract ("Prospective Client") and that such Prospective Client would construct and operate a restaurant within the conference center within the Restaurant Air Rights ("Intended Use"). Buyer's obligations under this Agreement shall be conditioned upon Seller performing its obligations under the Design/Build Agreement such that the Restaurant Air-Rights are a separate, legal lot, (ii) a structural pad is constructed under the Restaurant Air-Rights such that a restaurant may be built on said structural pad, and (iii)the parties shall have agreed upon the necessary easements and other related documents to govern the rights and obligations of the parties in connection with the operation of the Bremerton Downtown Conference Center, which easements and other related documents shall be agreed upon and attached hereto as Exhibit C. 5. Closing Date. The sale and purchase of the Restaurant Air-Rights shall be closed no later than the date of commencement of construction of the conference center unless said date is delayed in accordance with the terms of the Design Build Construction Contract. At the time of closing, Buyer shall pay Seller half of the purchase price. At the time of Final acceptance of the Public parts provided for in the Design Build Construction Contract, Buyer shall pay the balance of the purchase price provided for in paragraph 3. 6. Title Insurance; Survey. (a) The City of Bremerton has delivered to Buyer a title commitment for an ALTA (1970 Form B) owners title insurance policy issued by the Title Insurer, Commitment No. 890744-C3 (the "Bremerton Title Commitment"), reflecting fee simple absolute title to the portion of the Property described therein in the City of Bremerton. Kitsap Transit has delivered to Buyer a title commitment for an ALTA (1970 Form B) owners title insurance policy issued by the Title Insurer, Commitment No. 890745-C3 (the "Kitsap Title Commitment"), reflecting fee simple absolute title to the portion of the Property described therein in Kitsap Transit. The Bremerton Title Commitment and the Kitsap Title Commitment are herein collectively called the "Title Commitments". Seller shall have until the public construction components are "in the dry" (excepting the plaza) to cause the General Exceptions of the Title Commitments, Special Exception Nos. 1-10 of the Bremerton Title Commitment and Special Exception Nos. 1-13 of the Kitsap Title Commitment to be removed of record and fxom the Title Commitments. In addition, Seller shall have until the public coustmction components are "in the dry" (excepting the plaza) to cause Special 2 v#240257 vi - Opus - Bremerton - P&S Agreement for Restaurant Air Rights.doc Exception Nos. 11-26 of the Bremerton Title Commitment and Special Exception Nos. 14-25 and 27 of the Kitsap Title Commitment to either be removed or to be revised or affirmatively insured over to the extent such exceptions would interfere with Buyer's proposed development of the Restaurant Air-Rights. To the extent Special Exception Nos. 11-26 of the Bremerton Title Commitment and Special Exception Nos. 14-25 and 27 of the Kitsap Title Commitment may remain under the preceding sentence, together with any additional title exceptions created pursuant to the development of the Property as a convention center which do not interfere with Buyer's proposed development of the Restaurant Air-Rights are herein called the "Permitted Exceptions." Prior to the Buyer's final purchase price payment, Seller shall cause the Title Commitrnent to be amended to provide for extended coverage over all general exceptions contained in the policy and insuring as separate parcels any easements appurtenant to the Property with the costs equally divided between the parties. (b) Prior to the Buyer's final purchase price payment described in Section 5 above, Seller shall, with the cost and expense equally divided between the two parties, cause a survey ("Survey") of the Property to be prepared by a Licensed and Registered Surveyor reasonably acceptable to Buyer and shall cause to be delivered to Buyer a plat of such Survey certified to Buyer, the Title Insurer and Buyer's lender, if any, as having been prepared in compliance with the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys adopted in 1999 and meeting the accuracy requirements of an "Urban" survey. The Survey shall set forth the legal description of the Restaurant Air-Rights, shall show the location of all improvements, easements and set-back lines, other restrictions, means of ingress and egress, electric, water, sewer, gas and other utility lines servicing such Restaurant Air-Rights, any encroachments and any easements on adjacent land, and indicate the area (in square feet) of the structural pads over which the Restaurant Air-Rights will exist. The Survey must also be sufficient to cause the Title Insurer to delete the general exceptions relating to survey matters. 7. Representations and Warranties of Seller Seller hereby represents to Buyer that all of the following are true and correct on and as of the date hereof, shall continue to be tree and correct as of the Closing Date, and shall survive the Closing and delivery of the deed: (a) All requisite action has been taken and been obtained by Seller in connection with the entering into this Agreement and the instruments referenced herein, and the consummation of the transaction contemplated hereby. No consent of any administrative or legislative body or other party is required for the performance of Seller's obligations hereunder. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Seller has the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. This Agreement and all documents required hereby to be executed by Seller are and shall be valid, legally binding obligations of and enforceable against Seller in accordance with their respective terms, subject only to applicable 3 .V#240257 vi - Opus - Brcrncrton - P&S Agreement for Restaurant Air Rights.doc bankruptcy or similar laws or equitable principals affecting or limiting the rights of contracting parties generally. (b) Seller has not received and, to the best of Seller's knowledge, no predecessor of Seller has received notice of any violation of any law, municipal ordinance or other governmental requirement affecting the Property or the contemplated development of the Property or any portion thereof. (c) Seller is not a party to any subsisting agreement, contract or commitment to sell, convey, let, assign, transfer, provide rights of first refusal or other similar rights with respect to, or otherwise dispose of, all or any part of the Property, or any interest therein or occupancy right thereto, other than this Agreement. Except for this Agreement and the Permitted Exceptions, neither Seller nor any person or entity claiming by, through or under Seller has done, suffered or permitted anything whereby any lien, claim or right of another has been created against the Property, or any portion thereof or any interest therein. (d) Seller has no knowledge that any permit, certificate, license or other similar approval or authorization, other than permits relating to customary building permits, is required for the sale or development of the Property under any federal, state or local law, ordinance, rule or regulation, or by any governmental or quasi-governmental agency having jurisdiction over the Property, or any portion thereof. (e) Seller has no knowledge of any existing laws, ordinances or restrictions, including, without limitation, so-called recapture agreements, which would prevent or limit the right or ability of Buyer, or its lessees, invitees, successors or assigns (including, without limitation, any Prospective Clients), to develop and use the Property for the Intended Uses or to obtain any government approvals necessary to develop the Property for the Intended Uses. (f) There is no action, proceeding or investigation pending or, to the best of Seller's knowledge, threatened, against Seller, or with respect to the Property, or any portion thereof, before any court or governmental department, commission, board, agency or instrumentality which would affect the contemplated development of the Property. Seller has no knowledge of any basis for any such action, proceeding or investigation. (g) Seller has not received any notice of environmental or health code violations with respect to the Property, or any portion thereof. (h) Seller has not received notice of any contemplated special assessments relating to the Property, or any portion thereof. 4 .V#240257 vi - Opus - Bremerton - P&S Agreement for Restaurant Air Right~.dcc (i) Except as provided in Section 17(g) hereof, no leasing, sales or other broker's fees or commissions of any nature whatsoever shall be or become due or owing to any person, firm, corporation or entity whomsoever after the applicable Closing Date. 0) Seller has not stored, transported, discharged or released any Hazardous Materials, and has not permitted the storage, transport, discharge or release of Hazardous Materials, on the Property, or any portion thereof. Further, except as set forth in the Technical Memorandum prepared by Parametrix dated June 12, 2002 and the reports identified therein, Seller has no knowledge of any other person or entity having stored, transported, discharged or released Hazardous Materials on the Property, or any portion thereof. (k) There are no (i) orders from or agreements with any governmental authority or private party or any judicial or administrative proceedings or investigations, whether pending or threatened, respecting any environmental, health or safety requirements under federal, state or local laws or regulations relating to the Property, or (ii) pending, asserted or threatened claims or matters involving material liabilities, obligations or costs arising from the existence, release or threatened release of any Ha?~rdous Materials at, on or beneath the Property. The accuracy of the foregoing representations and warranties shall be a condition to Buyer's obligations under this Agreement. If any of the foregoing representations or warranties is untrue in any material respect, and is not cured (at no cost to Buyer) prior to any of the scheduled Closing Dates, then Seller shall be allowed a period of five (5) days after the date of such scheduled Closing Date in order to cause such representations and warranties to be true, and shall use reasonable efforts to do so (and Seller shall notify Buyer promptly if Seller determines that Seller will not be able to do so). If Seller shall not cause such representations and warranties to conform to the requirements of this Agreement within such five (5) day period, then Buyer may elect (x) to purchase the Property as it then is, with the right to cause such non-conforming representations and warranties to be tree and to deduct from the Purchase Price mounts which Buyer and Seller reasonably agree are equal to the reasonable costs and expenses incurred as a result thereof and which are of a definite or ascertainable amount; or (y) to terminate this Agreement (other than the parties' respective obligations under Section 17(g) hereof); or (z) to extend the time for up to an additional thirty (30) days for Seller to cause such representations and warranties to conform to the requirements in this Agreement, and the respective Closing Date shall automatically be extended by the number of days equal to such extended period (and if Buyer elects to allow the extension of such time, Buyer shall have the same rights concerning such matters at the end of such extended period as Buyer had at the end of the original period). Further, if the matter which causes the representations or warranties to fail to conform to the requirements of this Agreement is a matter which was caused by Seller, or could have reasonably been anticipated by Seller, then Buyer's rights set forth in the immediately preceding sentence shall be in addition to, and not in lieu of, any other rights and remedies available to Buyer for 5 V#240257 vl - Opus - Bremcrton - P&S Agreement for Restaurant Air Rights doc default by Seller and shall include, without limitation, any and all damages, direct and indirect, which Buyer may suffer as a result of the failure of the representations or warranties to conform to the requirements of this Agreement. 8. Representations and Warranties of Buyer. Buyer hereby represents and warrants to Seller that the following are true and correct on and as of the date hereof, shall continue to be tree and correct as of the Closing Date, and shall survive the Closing and delivery of the deeds: (a) There is no action, proceeding or investigation pending, or to the best of Buyer's knowledge threatened, against Buyer before any court or governmental department, commission, board, agency or instrumentality with respect to the Property, or any portion thereof, or Buyer's obligations under this Agreement. Buyer has no knowledge of any basis for any such action, proceeding or investigation. (b) All requisite action has been taken and been obtained by Buyer in connection with the entering into this Agreement and the instruments referenced herein, and the consummation of the transaction contemplated hereby. No consent of any creditors, directors, shareholders, judicial or administrative body, governmental or quasi-governmental authority, or other party is required for the performance of Buyer's obligations hereunder. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Buyer has the legal power, right and actual authority to bind Buyer to the terms and conditions hereof and thereof. This Agreement and all documents required hereby to be executed by Buyer are and shall be valid, legally binding obligations of and enforceable against Buyer in accordance with their respective terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium laws or similar laws or equitable principals affecting or limiting the rights of contracting parties generally. 9. Closing. Provided that all conditions of closing hereunder have occurred, the closing of this transaction ("Closing") shall occur at the Kitsap County offices of the Pacific Northwest Title Company on the Restaurant Air-Rights Closing Date. On the Restaurant Air-Rights Closing Date: (a) Seller shall execute and deliver to the Escrow Agent for delivery to Buyer the following: (i) Seller's Statutory Warranty Deed in the form set forth in Exhibit D attached hereto and made a part hereof, and otherwise in recordable form 6 .V#240257 vi - Opus - Bremerton - P&S Agreement for Restaurant Air Rights dec sufficient to convey to Buyer fee simple absolute title to the Restaurant Air-Rights, subject only to the Permitted Exceptions; (ii) An Affidavit of Title in customary form as required by the Title Company; (iii) Excise Tax affidavit in the form required pursuant to applicable law, and the parties shall split the amount of any excise tax; (iv) An estimated seller's closing statement signed by Seller; (v) A certificate from Seller that all of Seller's representations and warranties set forth in this Agreement are true and correct as of the Restaurant Air-Rights Closing Date, to the same extent as if the reference date were the Restaurant Air-Rights Closing Date; (vi) A "FIRPTA" Affidavit conforming to the requirements of Section 1445 of the Intemal Revenue Code of 1986, as amended, and the regulations applicable thereto, and if Seller fails to furnish such FIRPTA Affidavit, Buyer may withhold from the Purchase Price an amount sufficient to comply with the provisions of such Section; (vii) Such other documents as may be necessary or proper to comply with this Agreement or required (by the Title Insurer or otherwise) to carry out its terms. (b) Buyer shall execute and deliver to the Escrow Agent for delivery to Seller on the Restaurant Air-Rights Closing Date, the following: (i) The portion of Purchase Price stated above, plus or minus prorations, by wire transfer or otherwise in immediately available funds; (ii) Excise Tax affidavit, executed by Buyer in the form required pursuant to applicable law; (iii) An estimated buyer's closing statement signed by Buyer; (iv) A certificate from Buyer that all of Buyer's representations and warranties set forth in this Agreement are true and correct as of the Restaurant Air-Rights Closing Date, to the same extent as if the reference date were the Restaurant Air-Rights Closing Date; and (vi Such other documents as may be necessary or proper to comply with this Agreement or required to carry out its terms. 10. Prorations; General Real Estate Taxes. 7 .V#240257 v I - Opus - Brcmerlon - P&S Agreement for Restaurant Air Rights doc (a) At the Restaurant Air-Rights Closing, all utilities shall be prorated as of the Restaurant Air-Rights Closing Date on the basis of the then most recent bills for such utilities; provided, however, that within thirty (30) days after the actual bill or bills for the applicable period or periods are available, the parties shall re-prorate each utility on the basis of such actual bill or bills. (b) The Property is presemly not carried on the tax rolls by reason of the status of Seller as a municipal entity. The parties shall take all necessary action on and after the Restaurant Air-Rights Closing Date to place the Restaurant Air-Rights on the tax rolls and Buyer shall be responsible for all taxes assessed on and after the Restaurant Air-Rights Closing Date. 11. Development Matters. (a) From and after the date hereof and from and after the Restaurant Air-Rights Closing (this covenant surviving the Restaurant Air-Rights Closing and delivery of the deed), Seller shall, at the request of Buyer and without cost to Seller, cooperate with Buyer (including, without limitation, joining in the execution of applications) in connection with: (i) applications, agreements and approvals relating to zoning, site plan, subdivision, utility and other development matters, including, without limitation, all licenses, permits, easements, rights-of-way, and proofs of dedication necessary to permit the contemplated development of the Property; and (ii) any requirements of Seller or Buyer or any state or federal government, or any agency thereof, or any public utility, relating to the contemplated development of the Property, or any portion thereof, in accordance with the Intended Uses. (b) Seller covenants that Seller will not make any agreements with, or grant rights to any other party, governmental or private, which will prevent or limit the right of Buyer, or its lessees, invitees, successors or assigns (including, without limitation, Prospective Clients), so to use the Restaurant Air-Rights or to obtain any such consents or approvals. The foregoing covenant shall survive the Restaurant Air-Rights Closing and delivery of the deed. 12. Conditions of Closing. (a) The obligation of Buyer to consummate this transaction is expressly subject to and contingent upon the occurrence of each and every one of the following: (i) Buyer and/or the Escrow Agent, as applicable, shall have received the items set forth in Section 9(a) hereof. 8 V#240257 vl - Opus - Brerne~on - P&S Agreement for Restaurant Air Rights.doc (ii) The Title Insurer shall be prepared to issue the Title Policy, dated as of the Closing Date and showing fee simple title to the Restaurant Air-Rights in Buyer, subject only to the Permitted Exceptions, and otherwise in accordance with the provisions of and containing the extended coverage and the endorsements specified in Section 6 hereof. (iii) All representations and warranties of Seller shall be true and correct as of the Closing Date. (iv) Buyer is satisfied that it has no responsibility for the remediation or removal of any Hazardous Materials on the Property. (v) Seller shall have complied with all provisions of this Agreement. (b) In the event any of the foregoing conditions have not been fulfilled or expressly waived in writing by Buyer, then in addition to any other remedy available to Buyer, Buyer may terminate this Agreement by giving written notice to Seller on or before the Restaurant Air-Rights Closing Date. 13. Default. (a) If this Agreement is terminated by either party. The parties shall have the rights and remedies, only as set forth in the Design Build Construction Contract. 14. Condemnation.. In the event that, between the date of this Agreement and the Closing Date, any condemnation or eminent domain proceedings are instituted by a governmental entity which has rights to acquire the Property from Seller and which might result in the taking of all or any portion of the Property (except for such portions of the Property as would not, in Buyer's sole judgment, impair the use of the Property for the Intended Uses), Seller shall immediately notify Buyer in writing of such occurrence, and thereupon Buyer may elect to: (a) terminate this Agreement, in which event all rights and obligations of the parties hereunder (other than the parties' respective indemnification obligations under Section 17(g) hereof) shall cease; or (b) elect to consummate this transaction and require Seller to deliver to Buyer a duly executed assignment, in form and substance satisfactory to Buyer, of proceeds payable as a result of Seller's right to receive any condemnation award. Buyer shall have thirty (30) days from the date of its receipt of written notice of such institution of proceedings within which to exercise its rights under Sections 14(a) or 14(b) 9 .v#24o257 vi - Opus - Bremerlon - P&S Agreement for Restaurant Air Rights.doc hereof. If the Restaurant Air-Rights Closing Date is scheduled to occur within such thirty (30) day period, the Restaurant Air-Rights Closing shall be delayed until Buyer makes such election, and if Buyer elects to consummate the transaction, the Restaurant Air-Rights Closing Date shall be adjusted accordingly. 15. Covenants of Seller. Between the date of this Agreement and the Closing Date, Seller shall: (a) Not, without f~rst obtaining the written consent of Buyer, enter into any contracts or agreements pertaining to the Property, or any portion thereof; (b) Comply with all laws, ordinances, regulations and restrictions affecting the Property, or any portion thereof, and the use thereof; (c) Comply with the terms of all mortgages, liens, pledges, leases, licenses, easements and other similar encumbrances affecting the Property, or any portion thereof; (d) Not create or permit to be created any mortgage, lien, pledge, lease, license, easement or other similar encumbrance in any way affecting the Property, or any portion thereof; (e) Not commit any waste or nuisance upon the Property, or any portion thereof; (f) Comply with all requirements of the Title Insurer in connection with its insurance of fee simple title to the Property in Buyer, as required under Section 6 hereof and elsewhere herein. 16. Notices. Any notice or other communication in connection with this Agreement shall be in writing and shall be sent by United States certified mail, return receipt requested, postage prepaid, by nationally recognized overnight courier guarantee next day delivery, by telecopy or facsimile transmission, or by personal delivery, properly addressed as follows: If to Buyer: Opus Northwest, L.L.C. Suite 300 915 - 118th Avenue S.E. Bellevue, WA 98005 Arm: Vice President Facsimile No. (425) 519-6810 10 v#24o257 vi. Opus - Bremerton - P&S Agreement for Restaurant Air Rights doc If to Seller: City of Bremerton 239 Fourth Street Bremerton, WA 98337 Attn: Gary Sexton Facsimile No.: All notices shall be deemed given three (3) business days following deposit in the United States mail with respect to certified or registered letters, one (1) business day following deposit if delivered to an overnight courier guaranteeing next day delivery and on the same day if sent by personal delivery or by telecopy or facsimile transmission (with proof of transmission). Attorneys for each party shall be authorized to give notices for each such pa~y. Any party may change its address for the service of notice by giving written notice of such change to the other party, in any manner above specified. 17. Miscellaneous. (a) This Agreement may be executed in any number of counterparts, each of which shall constitute an original document. (b) The Section headings or captions appearing in this Agreement are for convenience only, are not a part of this Agreement, and are not to be considered in interpreting this Agreement. (c) This written Agreement constitutes the entire agreement between the parties and supersedes any prior oral or written agreements between the parties regarding the Property. There are no verbal agreements which can or will modify this Agreement, and no waiver of any of its terms will be effective unless in a writing executed by the parties. (d) The unenforceability or invalidity of any provisions hereof shall not render any other provisions herein contained unenforceable or invalid. (e) Neither this Agreement nor any of the rights contained hereunder may be assigned by either party without the prior written consent of the other, except that Buyer may assign its rights under this Agreement to an Affiliate of Buyer without such consent of Seller and Buyer may, for Closing purposes, assign its rights to buy the Restaurant Air-Rights to a Prospective Client. (f) With respect to real estate brokers: (i) Seller represents and warrants to Buyer that Seller has not engaged or dealt with any broker or other person who would be entitled to any brokerage fee or commission in respect to the finding, negotiation or execution of this Agreement or the consummation of the transactions contemplated hereby. Seller agrees to indemnify, defend and hold harmless Buyer, and Buyer's successors and assigns, with respect to any 11 .V#240257 vi - Opus - Br~merton - P&S Agreement for Restaurant Air Rights doc claim by any person claiming to have been engaged by Seller, or claiming by, through or under Seller, so as to become entitled to any such fee or commission. (ii) Buyer represents and warrants to Seller that Buyer has not engaged or dealt with any broker or other person who would be entitled to any brokerage fee or commission in respect to the finding, negotiation or execution of this Agreement or the consummation of the transactions contemplated hereby. Buyer agrees to indemnify, defend and hold harmless Seller with respect to any claim by any person claiming to have been engaged by Buyer, or claiming by, through or under Buyer, so as to become entitled to any such fee or commission. (g) This Agreement shall be conslxued and enforceable in accordance with the laws of the State of Washington, without application of its choice of law rules. (h) This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. (i) This Agreement and the provisions, representations and warranties herein set forth shall survive the Closing and delivery of the deed. (j) Time is of the essence of this Agreement. (k) In the event of a default or breach of the provisions of this Agreement, the nondefaulting party hereto shall be entitled to recover reasonable costs and attorneys' fees incurred by the nondefaulting party as a result of such default. In witness whereof, the parties hereto have caused this Agreement to be executed and delivered the day and the date first above written. BUYER: OPUS NORTHWEST, L.L.C., a Delaware limited liability company By: Name: Title: Vice President 12 V#240257 vl - Opus - Bremerton - P&S Ag~oement for Restaurant Air Rights.doc SELLER: CITY OF BREMERTON, a municipal corporation By: ATTEST: Name: Name: Title: Title: KITSAP TRANSIT, a municipal corporation By: ATTEST: Name: Name: Title: Title: 13 .V#240257 vi - Opus - Brcmc~on - P&S Agreement for Rcstaurant Air Rights,doc Final Draft 11/1/2002 EXHIBIT A- 1 Site Map .V#240257 vi - Opus - Brernerton - P&S Agreement for R~staurant Air Rights.doc Final Draft 11/1/2002 EXHIBIT A-2 Legal Description of City of Bremerton and Kitsap Transit's Properties V#240257 vi - Opus - Brcmcrton - P&S Agreement for Restaurant Air Rights.doc Final Draft 11/1/2002 EXHIBIT B Definitions For purposes of this Agreement, the terms hereafter set forth shall have the following meanings: (a) Affiliate of Buyer: Affiliate of Buyer shall mean Gerald Rauenhorst ("Rauenhorst"), a trust for the benefit of Rauenhorst and/or members of his family or their issue, Opus, L.L.C, Opus Corporation or an affiliate or the parent or subsidiary of either of them, or a partnership or other entity comprised solely of all or some of the above. (b) Closing or Closings: Closing or Closings shall mean the closing of the sale and purchase of the Restaurant Air-Rights as contemplated by this Agreement. (c) Design/Build Agreement. Design/Build Agreement shall mean that certain Design/Build Construction Contract dated ,2002, by and between Seller and Buyer. (d) Escrow Agent: Escrow Agent shall mean (e) Final Plans and Specifications. Final Plans and Specifications shall have the same meaning given such term in the Design/Build Agreement. (f) Hazardous Materials: Hazardous Materials shall mean any hazardous substances or hazardous materials, including, without limitation, all substances, the presence of which on the Property, or any portion thereof, could subject the owner or occupant of the Property, or both, to civil or criminal penalties or damages, or responsibility for clean-up of such substances, including, without limitation, any material or substance which is: (i) a "hazardous waste", a "toxic waste", a "hazardous substance", a "toxic substance", an "extremely hazardous waste", a "restricted hazardous waste", a "chemical substance", or a "hazardous chemical", as such terms are defined under any environmental laws, ordinances or regulations governing or controlling the Property, or any portion thereof; (ii) petroleum or petroleum waste, including, without limitation, crude oil or any petroleum derived substance or constituent of any such petroleum substance or waste; (iii) asbestos or asbestos containing materials; (iv) polychlorinated biphenyl; .V#240257 vi - Opus - Bremerton - P&S Agreement for Restaurant Air Rights.doc (v) radioactive material; or (vi) pesticides. (g) Intended Uses: Intended Uses shall mean the intended uses for the Restaurant Air-Rights as specified in Section 4 hereof. (h) Permitted Exceptions: Permitted Exceptions shall mean those title exceptions specified in Section 6 hereof. (i) Property: Property shall mean: (i) those parcels of land more particularly described in Exhibits A-1 and A-2 attached hereto and made a part hereof; and (ii) the easements and appurtenances and all the estates and rights of Seller (now or on the Closing Date) in, to and with respect to such parcel and any and all improvements thereon. (j) Prospective Client: Prospective Client shall mean any third-party user of the Property, as specified in Section 4 hereof. (k) Restaurant Air-Rights. Restaurant Air-Rights means the portion of the Property over which will be constructed a restaurant as shown on the Final Plans and Specifications incorporated into the Design Build Construction Contract, together with all beneficial easement rights necessary to (i) support a restaurant to be constructed within the Restaurant Air-Rights, and (ii) operate and maintain such restaurant as an integral part of the proposed development of the Property as a convention center. (1) Restaurant Air-Rights Closing Date: Restaurant Air-Rights Closing Date shall mean, as specified in Section 5 hereof, the Restaurant Air-Rights Closing Date. If a scheduled Closing Date does not fall on a business day, that Closing Date shall be the next business day thereafter. (m) Survey: Survey shall mean the survey specified in Section 6 hereof. (n) Title Commitments: Title Commitments shall mean the title insurance commitments specified in Section 6 hereof. (o) Title Insurer: Title Insurer shall mean First American Title Insurance Company. (p) Title Policy: Title Policy shall mean the tire insurance policies to be issued by the Title Insurer at the Restaurant Air-Rights Closing. 2 V#240257 vi - Opus - Bremerton - P&S Agreement for Restaurant Air Rights doc Final Draft 11/1/2002 Exhibit C Easements and Related Documents [To be attached within 30 days of Mutual Acceptance] .V#240257 v I - Opus - Bremerton - P&S Agreement for Restaurant Air Rights,doc Final Draft 11/1/2002 Exhibit D Form of Statutory Warranty Deed WHEN RECORDED RETURN TO: Name: Address: City, State, Zip: STATUTORY WARRANTY DEED THE GRANTOR, , for and in consideration of $10.00 and other good and valuable consideration, in hand paid, conveys and warrants to the following described real estate, situated in the County of Kitsap, State of Washington: See Exhibit A attached hereto and by this reference incorporated herein; Subject to those matters set forth in Exhibit B attached hereto and by this reference incorporated herein (the "Permitted Exceptions" relating to the above-described property) Abbreviated Legal Description: Tax Account No.: DATED: ,20 GRANTOR: V#240257 vi - Opus - Brcmerton - P&S Agreement for Restaurant Air Rights.doc STATE OF WASHINGTON ) COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that the persons appearing before me and making this acknowledgment are the persons whose true signatures appear on this document. On this __ day of 20__, before me personally appeared and _ to me known to be the and , respectively, of the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instruman~ to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said municipal corporation. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Public in and for the State of Washington, residing at _ My commission expires: [Type or Print Notary Name] (Use This Space for Notarial Seal Stamp) 2 ~V#240257 v l - Opus - Brernertan - P&S Agreement for Restaurant Ah' Rights.doc SCHEMATIC DESIGN AGREEMENT MODIFICATION #1 BETWEEN THE CITY OF BREMENTON AND OPUS NORTHWEST, LLC This AGREEMENT made as of the 4th day of October in the year 2002. BETWEEN the Lead Agency City of Bremerton 245 Fourth Street Bremerton, WA 98337 And the Designer/Developer (for purposes of this agreement referred to as "Developer") Opus Northwest LLC 915 - 118~ Avenue SE, Suite 300 Bellevue, WA 98005 For the following Project: First and Washington Conference Center The Lead Agency and Developer agree as follows: 1. The "Project" parameters Project Scope has not been altered. Design work is hereby is extended as set forth in Attachment 1, Modification 1. 2. Time for Performance: In accordance with the schedule as listed in attachment. above Lead Agency Representative (signature) (Printed~n~e-and Title.)' ' ~1 (Printed ~atme and, all'liTe) , Attachments: Exhibit I- Scope of Services Attachment #1 - Fees Attachment #3 -Revised Design Schedule FIRST AND WASHINTON CONFERENCE CENTER EXHIBIT 1 MODIFICATION #1 Page 1 of l EXHIBIT I BREMERTON CONFERENCE CENTER SCOPE OF SCHEMATIC DESIGN MODIFICATION #1 SERVICES The intent of this Document is to provide additional services and/or deliverables beyond those contracted in "Agreement Between The City of Bremerton and Opus Northwest" DRAFT dated 5/6/02 and Schematic Design Agreement dated 6/19/02. Opus Northwest continues to act as Designer/Developer (Developer) for the City of Bremerton (Lead Agency). Scope of Services will build and expand upon those services begun in Agreement. In the event of conflict between this document and the Agreement, this document shall take precedence. Scope of Services (Refined design documents in accordance with Scheme D pricing options as approved by Lead Agency): A. PROGRAMING: The Developer shall refine public program needs using Opus/LMN Amhitects proposal as a baseline. Review existing codes and make recommendations for changes to provide ultimate project performance. Codes to be reviewed include: UBC, planning, zoning (use studies), SEPA, shorelines. B. SCHEMATIC DESIGN MEETINGS: The Developer shall weekly review design development progress with the Lead Agency Project Manager. Design issues will include: integration of Public and Private programming needs; vertical circulation between mixed use components; design character of complex; construction issues related to design considerations and sequencing; costing options as appropriate; primary systems (structural, mechanical & electrical, elevators); C. REVISED DESIGN DOCUMENTS: Revised Scheme D schematic design documents and the design development documents shall illustrate the scale, relationship and architectural character of both public and private project components. Private project components are to include: hotel, retail, restaurant and office. Private and public design development submittals will include: site plan, floor plan(s), roof plan(s), exterior elevations, typical building section, schematic finish selection of interior and exterior, and outline specifications. D. PUBLIC CONSTRUCTION ESTIMATE: Based on mutually agreed-upon construction start date and public design documents Developer shall provide Total Public Construction Estimate. Estimate shall be broken down into five main categories: parking structure; conference center; off site and on site improvements (except for landscape and hardscape); landscape and hardscape improvements. Estimate will be in systems estimate format (off site, on site, substructure, superstructure, exterior closure, interior construction, conveying, mechanical, electrical, General Conditions, insurance, contingency and fee). Construction estimate will also include clarifications and assumptions (with allowance for special work as required) and proposed construction schedule. E. PRECONSTRUCTION SCHEDULE: Developer shall update design schedule for project from schematic design phase completion to start of construction. F. TOTAL PROJECT COSTS: Developer shall provide at completion of the Design Development Phase "Total Project Costs (TPC)" for public program requirements. TPC shall itemize soft and hard costs. Soft costs being such items as: government charges, design fees, inspection and testing costs; surveys, taxes (real estate, sales, B&O, etc), utility charges and assessments, printing costs, legal fees, insurance (environmental, liability, etc), revenue (pad sales, parking garage, etc), start up costs, project contingencies, etc, Hard costs being: construction costs, general conditions, taxes and insurance, construction contingencies. FIRST AND WASHINGTON CONFERENCE CENTER Date: 10/4/2002 EXHIBIT I MODIFICATION #1 PAGE 1 OF 2 G. DELIVERABLES: 1. Prepare and submit to Lead Agency revised design documents for Parking Garage, Conference Center, and Plaza. Design level drawings for the private portions of the project will also be produced in sufficient detail to ascertain compliance with RFP and proper design coordination with public portions of the project." Design Development drawings to include discipline design schemes for: architectural, structural, mechanical & electrical (design-build), landscaping, civil. Deliverable shall consist of: program needs (with code restraints and suggested changes); site plan; floor plan(s); roof plan(s); exterior elevations; typical building sections; schematic finish selection for interior and exterior, outline specifications, construction estimate, construction schedule, construction assumptions and clarifications, Preconstruction Schedule and Total Project Costs. H, ADDITIONAL AGREEMENTS: Prior to the completion of the Revised Design phase, Lead Agency and Developer will resolve contract language for: Pad Sale Agreement between Lead Agency and Developer; Design-Build Agreement (for work from Design Completion thru construction). Signing of these agreements are listed in Attachment #3. I. ATTACHMENT # 1 - FEES: Developer costs and fees for this Phase of Services is attached herein as Attachment # 1. J. ATTACHMENT # 2 - CONSULTANTS: Engineer- Barghausen Consulting Engineers, Inc. K. ATTACHMENT # 3 - REVISED DESIGN SCHEDULE: The Developer milestones for Revised Design Phase are attached herein as Attachment # 3. FIRST AND WASHINGTON CONFERENCE CENTER Date: 10/4/2002 EXHIBIT I MODIFICATION #1 PAGE 2 OF 2 ATTACHMENT # 1 MODIFICATION #1 DEVELOPER COSTS AND FEES Grouping of fe~s D..criptiopJ $.rvic.. Fee/c°stl I Oct DESIGN FEES I Programing & conceptual 20,000 10,740 Schematic 125,460 Design develop 68,800 Land use permit expeditor (Rice Fergus Miller) II 5'°~Joll 2,200 Schematic 5,000 Design develop 2,200 Parking report 2,0001~ 3,600~ Schematic 21,450 Construction Administration Programing & conceptual 10,000 Bidding & negotiations Construction A~ministration Plumbing design [I 0,418 903 Design develop 903 HVAC & Controls design 3,00711 1,462 Schematic 3,667 Design develop 1,462 Schematic 7,633 I Schematic 2,000 Corrosion Consulting Services 5,00011 FIRST AND WASHINGTON CONFERENCE CENTER EXHIBIT I ATTACHMENT # 1 MOD #1 Page 1 / 2 Date: October 4,2002 ATTACHMENT # 1 MODIFICATION #1 DEVELOPER COSTS AND FEES City of Bremerton - Regional Conference Center Grouping of fees 30 Da SD phase DD phase Fee I cost I Oct Description/ Schematic 5,0001 Design develop Programing & conceptual 1,750 Schematic 2,800 Design develop A/E fee contingency 1,311 Design develop 1,311 Construction Administration FIRST AND WASHINGTON CONFERENCE CENTER EXHIBIT I ATTACHMENT # 1 MOD #1 Page 2 / 2 Date: October 4,2002 ATTACHMENT #3 Bremerton Conference Center Revised Design Schedule I. DESIGN A. Update schematic drawings to reflect Scheme D Pricing: Sept 24 - Oct, 8, 2002 B. Provide additional detail to better define selected design: Oct 8 - Oct 16, 2002 C. Estimating of revised design drawings: Oct 16 - Oct 22, 2002 D. Compile and print revised design: Oct 30, 2002 E. Present revised design package with Total Project Costs: Oct 30, 2002 II. CONTRACT PHASES A. Design-Build signed Nov 1, 2002 B. Pad Sales Agreement - signed Nov 15, 2002 C. Codes, covenants, and restrictions - signed Nov 15, 2002 FIRST AND WASHINGTON CONFERENCE CENTER EXHIBIT 1 MODIFICATION #1 Iofl AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Approval of the Design Agreement FOR AGENDA OF: October 23, 2002 Modification #1 Phase 2 between the City of ORIGINATING DEPT: Economic Development Bremerton and OPUS Northwest, LLC ORIGINATOR: Gary Sexton DATE SUBMITTED: October 10, 2002 2. CLEARANCES: (Comment on back if necessary) 3. EXltlBITS: Design Agreement Modification #1, (Phase 2) between the City of Bremerton and OPUS Northwest, LLC CITY ATTORNE~ ~M~, YOR: ~ ~ ~' APPROVED FOR SUBMITTAL BY Project Scope h~s not been ~ltered. ~is modification extends the design development to completion. 5. RECOMMENDATION: I hereby move to authorize the Mayor to sign the modification to the Phase 2 Design Agreement to complete design development. 6. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 7. NOTICE OF ACTION: / PULLED [] TABLED [] APPROVED~/DISAPPROVED [] AMENDED [] DATE: COUNCIL DIRECTIVE: 8. AGENDA BILL NO.: 02- 9. IMPACT OF NON-PASSAGE: Conference Center project would not proceed. 10. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: Authorizes spending of additional $94,395 previously set aside Conference Center funding. 11. RESEARCH SOURCES: ADMiNISll~ATIVE 8P. NVICP~ October 28, 2002 Thomas B. Parsons, Vice President Opus Northwest LLC 915 - 118t~ Avenue SE, Suite 300 Bellevue, Washington 98005 Re: First and Washington Conference Center Enclosed for your records is a fully executed copy of Schematic Design Agreement Modification #1 to the contract for the above referenced project. Sincerely, Deputy City Clerk PJ:ch enclosure cc: Gary Sexton, Economic Development Director SCHEMATIC DESIGN AGREEMENT BETWEEN THE CITY OF BREMENTON AND OPUS NORTICvVEST, LLC This AGREEMENT made as of the/~ day of June in the year 2002. BETWEEN the Lead Agency City of Bremerton 245 Fourth Street Bremerton, WA 98337 And the Designer/Developer (for purposes of this agreement referred to as "Developer") Oous Northwest LLC 915 - 118t~ Avenue SE, Suite 300 Bellevue, WA 98005 For the following Project: First and Washington Conference Center The Lead Agency and Developer agree as follows: 1. The "Project" parameters The Project is a public/private joint development between the Lead Agency and the Developer for the development of a mixed-use facility on the waterfront immediately adjacent to the Bremerton Transpo~ation Center (Feny Terminal) consistent with the city Request for Proposal of2/11/02. This agreement is for the project work through the schematic design phase as set forth in Exhibit I with several conditions subsequent as herein listed. The Project includes: · Parking Structure A parking structure located on 3 levels below the street elevation of Washington Avenue. The ownership will be jointly held between the City of Bremerton and Kitsap Transit subject to a parking managing agreement between Kitsap Transit, the City and the Developer. Parking will support the conference center, hotel, restaurant, offices, residences, retail, marina, commuters and visitors and shall consist of no fewer than 450 parking spaces. · Conference Center "Conference Center" shall mean the Kitsap Regional Conference Center, a regional tourism related facility which will include no less than 15,000 square feet of gross floor space, including no less than 7,500 square feet of banquet space, the Associated Parking Spaces, and related public spaces, including a lobby area and additional break-out spaces, and which facility shall be part of the project. The conference center shall have a distinct identity as a public facility, with well- defined exterior entrances, and a waterfront orientation. The main conference room must be able to seat 420 persons for banquets and 600 for meetings. The meeting/banquet room shall be capable of being separated into four smaller spaces. Reception, lobby and storage areas are required. A serving kitchen will be included to support catered banquets, (this kitchen may be apart of the restaurant). Office space shall be provided for managerial or supervisory personnel. The Center will be owned, managed, operated and maintained by the City. C:kDoeumcnts and SettingsWALENC IA\Local Settings\Tern pXSCHE MATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page I of 8 · Hotel The Hotel must include not less than 100 guest rooms and will be financed, owned, operated and maintained by the Developer or assigns agreed to in writing by the Lead Agency. The air rights for the hotel will be leased or sold. The hotel must be separate from the conference center but may be connected to it. · Restaurant The restaurant will be financed, owned, operated and maintained by the Developer or assignee agreed to in writing by the Lead Agency. The air rights for the restaurant will be sold or leased to the Developer. The restaurant's location within the complex must take advantage of waterfront views. Its kitchen may have the capacity to cater conference center banquets and may provide room service for the hotel. · Retail Space Not less than 10,000 Gross S.F. commuter retail space (CRB), with the majority of space to be located on the Commuter Retail Building pad on the transit deck level of the BTC. The retail space will be financed, owned, operated and maintained by the Developer or assigns as agreed to in writing by the Lead Agency and Kitsap Transit. · Office Space Not less than 10,000 Gross S.F. office space (KT Office) will be located above the commuter retail space. Offices should take advantage of water views. Not less than 10,000 square foot of the office space initially will be owned by the Developer subject to a lease and purchase option in Kitsap Transit. The design and construction of the office space to be leased/purchase optioned by Kitsap Transit will be subject to design development and agreement to be negotiated between Kitsap Transit and the Developer with review input by the Lead Agency. · Residential The potential residential component shall be financed, owner, operated and maintained by the Developer on air rights pumhased or leased from the Lead Agency and/or Kitsap Transit. · Marina The project design shall accommodate access for owners, liveaboards and guests (including provisioning). Design consideration for a two story 1500 S.F. Harbor Master unit on the site may be given. · Expanded Waterfront Park Public open space park must be incorporated in the project and should complement the existing boardwalk and the waterfront park. Service/emergency vehicles and pedestrian access must be maintained between boardwalk, waterfront park, this development and Washington Avenue. C:kDocuments and Seaings\VALEN CIA\Local Settings\Temp~SCHE MAT lC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc P~e2of8 · Sensitivity Toward View Corridors The design shall be sensitive to open space and view corridors. The design should include pedestrian access and public view corridor through the site and to the open space from Second Street, the CRB pad, the transit area below pad, and the BTC. · Site Access Issues The project has several vehicle access requirements. Existing access to the project site is from Second Street. Emergency vehicles will require access around the development complex. Service and emergency vehicles access to the Boardwalk and waterfront park must be maintained. Freight/delivery vehicles and refuse disposal trucks will require access to the loading dock area of the development complex. A main entrance is necessary for the public components of the facility. A vehicle drop offarea should be provided at the main entrance to serve cars and tour buses. Pedestrian access shall be maintained to the facility from the main entrance, boardwalk, waterfront park, and the BTC transit deck and passenger ferry. HOV garage access and egress must be considered. 2. The property being developed ("Project Site") is bounded by that property between the waterside utility easement, Washington Avenue centerline, the north line of 2nd Street and south line of north 50 feet of the BTC CRB and air spaces above (Project Site) in Bremerton, Washington. Such limits shall be verified and adjusted if necessary upon ALTA survey findings. 3. Lead Agency Team 3. (a.) The Lead Agency Representative is: Gary Sexton. Proiect Manager City of Bremerton 239 Fourth Street Bremerton. WA 98337 3. (b) The persons or entities in addition to the Lead Agency Designated Representative, who will review the Project Designer's submittals to the Lead Agency Project Representative are: Dick Haves of Kitsap Transit Bror ElmQuist. Reoresentative of Kitsap Public Facilities District Carv Bozeman, Bremerton Mayor Chris Hugo, Director of Community Development Gene Samplew Director of Public Works 3. (c) The Lead Agency's other consultants and contractor are: Art Anderson Associates 202 Pacific Bremerton, WA 98337 C:~Documcnls and Settings\VAleNCIA\Local Settings~Temp~SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 3 of 8 4. The Project Developer Representatives are: 4. (a) Bart Brvnestad. Tim Rote & PJ Santos Opus Northwest LLC 915 - 118' Avenue SE, Suite 300 Bellevue, WA 98005 4.(b) See Attachment #2 for listing of consultants being proposed for the Schematic Design Phase 2. 5. Joint Responsibilities of the Parties The Lead Agency and the Developer shall cooperate with one another to fulfill their respective obligations under the Agreement, Both parties shall endeavor to maintain good working relationships among all members of the Project Team. 6. Lead Agency The Lead Agency shall provide full information in a reasonably timely manner regarding requirements for and limitations on the project. 7. Developer The services performed by the Developer are as follows: 7. (a) The Developer shall, pursuant to the terms of the agreement, perform those services listed in Exhibit A hereto during the months of June-August 2002. Developer shall be paid the amounts set forth in Attachment I as "Exhibit I Schematic Fees". 7. (b) Schematic Design Schedule is included as set forth in Attachment #3. 7. (c) The Developer's services shall be performed consistent with the time period established herein which shall be adjusted, if necessary, as the Project proceeds. This schedule shall include allowances for periods of time required for the Lead Agency's review, for the review by others listed in paragraph 3, and for approval of submissions by authorities havingjurisdictinn over the Project. Either party shall not, except for reasonable cause, exceed time limits established by this schedule. 7. (d) The Developer's designated representative identified in Paragraph 4 shall be authorized to act on the Developer's behalf with respect to the Project. 7. (e) The Developer shall review and comply with local laws, codes and regulations applicable to the Project. Lead Agency shall provide to develop state and federal laws, codes and regulations applicable to the project. 8. Scope of Work The scope of work of the Developer under this agreement is as follows: See Exhibit I. 8. (a) Ownership Upon full payment of all sums due or anticipated to be due the Developer under this Agreement, the latest original drawings, specifications, and the latest electronic date CSDocuments and SetIings\VALEN CIA\Loc al Seilings\Temp\SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 4 of 8 prepared by the Developer for the Project shall become the property of the Lead Agency. This conveyance shall not deprive the Developer of the right to retain electronic data or other reproducible copies of the drawings and specifications or the right to reuse information contained in them in the normal course of the Developer's professional activities. The Developer shall be deemed the author of such electronic data, documents and design, and shall be given appropriate credit in any public display of such documents. 9. Time for Performance: 100 days 10. Payments to the Developer The Lead Agency shall pay the Developer monthly within 20 days. Developer shall have available for Lead Agency review submittal of an invoice 10. (a) Reimbursable Expenses are in addition to compensation for the Developer's services and included expenses as follows: 1. Transportation in connection with the project, outside of Kitsap, Pierce and King Counties as pre-approved by the Lead Agency Project Representative. 2. Fees paid for securing approval of authorities having jurisdiction over the Project. 3. Reproduction, plots, photographs, standard from documents, postage, handling and delivery of Instrument of Service. 4. Presentation or final renderings, models and mock-ups requested by the Lead Agency. 10. (b) Amounts not properly paid within forty-five (45) days al~er the date the properly prepared invoice was delivered to the Lead Agency Project Representative shall bear interest at the rate of 12% per annum until paid in full. 11. MisceHaneons Provisions Each patay shall defend, indemnify and hold the other party, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits including all legal costs and attorney fees, arising out of or in connection with its performance o this Agreement. 11. (a) This Agreement shall be governed by the laws oftbe State of Washington. 11. (b) Unless otherwise provided in the Agreement, the Developer and Developer's consultants shall have no responsibility for the discovery, presence handling, removal or disposal of or exposure of persons to hazardous materials or toxic substances in any form at the Project site. 11. (c) The Lead Agency and Developers, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all other covenants of this Agreement. Neither the Lead Agency nor the Developer shall assign this Agreement without the written consent of the other, CSDocuments and Selfings\VALENC IA\Local Settings\Terap~SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND C1TY.doc Page 5 of 8 except the Lead Agency may assign this Agreement to an institutional lender providing financing for the Project. 11. (d) Ifthe Project is suspended by the LeadAgency for more than sixty(60) consecutive days, the Developer shall be compensated for the services performed prior to notice of such suspension. When the Project is resumed, the Developer shall be compensesated for expenses incurred the in interruption and resumption of the Developer's services if approved in advance. The Developer's fees for the remaining services and the time schedules shall be equitably adjusted, per mutual agreement. 11. (e) lfthe Project is suspended or the Developer's services are suspended for more than 120 consecutive days, the Developer may terminate this Agreement by giving not less than seven days written notice. 11. (f) This Agreement may be terminated by the Lead Agency upon not less than seven days written notice to the Developer for the Lead Agency's convenience and without cause. 11. (g) In the event of termination not the fault of the Developer, the Developer shall be compensated for services performed prior to termination, together with reimbursable expenses. 11. (h) Termination Expenses are in addition to compensation for the services of the Agreement and include reasonable expenses directly attributable to termination for which the Developer is not otherwise compensated. Termination expenses shall be limited to $50,000 for the Developer and Consultants. 11. (i) Some of the construction will be subject to Federal Regulations and Requirements (see htlp://www.t~a.dot.gov/library/legal), http://www.fta.dot.gov/office/program/gmw/Clauses.html, including compliance with NEPA< Davis-Bacon and Buy America. The remaining public construction must comply with State Prevailing Wages. The scope of Federal Regulation compliance, including application to specific components will be determined during the project Developer contract negotiation and within two weeks of completion of schematic design phase. l 1. (j) Subsequent phase agreements will have Developer forfeiture provisions for any failure to proceed or to performs as shall be hereafter agreed between the parties. 11. (k) This Agreement represents the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. 12. Indemnification Developer shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the Developer's performance of the Agreement, except for that portion of the injuries and damages caused by the City's negligence. C:~Documants and Setlings\VALENCIA~Local Settings\Temp~SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY,doc Page 6 of 8 The City's inspection or acceptance of any of Developer's work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons of damages to property caused by or resulting from the concurrent negligence of the Developer and the City, its officers, officials, employees, agents and volunteers, the Developer's liability hereunder shall be only to the extent of the Developer's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. 13. Insurance The Developer 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 the performance of the work hereunder by the Developer, its agents, representatives, employees, sub-consultants or sub-contractors. Before beginning work on the project described in the Agreement, the Developer shall provide a Certificate of Insurance evidencing: 1. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage: and 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability; and 3. Excess Liability insurance with limits not less than $1,000,000 limit per occurrence and aggregate. 4. Profesaional Liability insurance with limits no less than $1,000,000 limit per Any payment of deductible of self-insured retention shall be the sole responsibility of the Developer. All required policies shall be provided on an "occurrence" basis except professional liability insurance (if required), which shall be provided on a "claims-made" basis. The Developer's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. The Developer's insurance shall be primary as respects the City and the City shall be given thirty (30) days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. Page 7 of 8 The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. Lead Agency R~ppresentative (signature) Developer R[p~esentative (signature) (Printed ~m~ and Title} (Printed name and Title} Attachments: Exhibit I- Scope of Services Attachment #1 - Fees Attachment #2 - Consultants Attachment #3 - Schematic Design Schedule C:~}ocumcnts and S~tIings\VALENCIA~Local Settings~Tcmp~SCHEMATIC DESIGN AGREEMENT BETWEEN OPUS AND CITY.doc Page 8 of 8 EXHIBIT I BREMERTON CONFERENCE CENTER SCOPE OF SCHEMATIC DESIGN SERVICES The intent of this Document is to provide additional services and/or deliverables beyond those contracted in "Agreement Between The City of Bremerton and Opus Northwest" DRAFT dated 5/6/02. Opus Northwest continues to act as Designer/Developer (Developer) for the City of Bremerton (Lead Agency). Scope of Services will build and expand upon those services begun in Agreement. In the event of conflict between this document and the Agreement, this document shall take precedence. Scope of Sewicee (Schematic Design Phase): A. PREDEVELOPMENT SCOPES: Complete the previous services started in 5-6-02 Attachment #1 these will include: environmental testing of soils and water at two site borings. Opus shall provide summary report, as they are complete for: geo-tech investigation, ALTA and Typo Survey, structural findings, including lateral analysis, architectural findings, and environmental Phase I Parking analysis. B. PROGRAMING: The Developer shall refine public program needs using Opus/LMN Architects proposal as a baseline. Lead Agency to collect and forward all public agency programming requirements as well as budget and funding requirements. The Developer shall provide comments on the public program, schedule and construction budget. Developer shall itemize any special program requirements of agencies for internal cost accounting purposes. Review existing codes and make recommendations for changes to provide ultimate project pe~ormance. Codes to be reviewed include: UBC, planning, zoning (use studies), SEPA, shorelines. At the completion of the Schematic Design Phase, the Developer shall provide Lead Agency with final private program. Private program elements being considered include those listed in the Agreement (hotel, restaurant, retail space, office space, residential). C. SCHEMATIC DESIGN MEETINGS: The Developer shall periodically review schematic design progress with the Lead Agency Project Manager. Design issues will include: integration of Public and Pdvate programming needs; vertical circulation between mixed use components; design character of complex; construction issues related to design considerations and sequencing; costing options as appropriate; primary systems (structural, mechanical & electrical, elevators); D. SCHEMATIC DESIGN DOCUMENTS: Final schematic design documents shall illustrate the scale, relationship and architectural character of both public and private project components. Private project components are to include: hotel, retail, restaurant and office. Developer may or may not proceed with the private residential component. Private and public schematic design submittals will include: site plan, floor plan(s), roof plan(s), exterior elevations, typical building section, schematic finish selection of intedor and exterior, outline specifications, rendering of entire campus and architectural study model. Rendering is part of the basic fee. E. PUBLIC CONSTRUCTION ESTIMATE: Based on mutually agreed-upon construction start date and public schematic design documents Developer shall provide Total Public Construction Estimate. Estimate shall be broken down into five main categories: parking structure; conference center; Harbor master unit; off site and on site improvements (except for landscape and hardscape); landscape and hardscape improvements. Estimate will be in systems estimate format (off site, on site, substructure, superstructure, exterior closure, interior construction, conveying, mechanical, electrical, General Conditions, insurance, contingency and fee). Construction estimate will also include clarifications and assumptions (with allowance for special work as required) and proposed construction schedule. F. PRECONSTRUCTION SCHEDULE: Developer shall provide design schedule for project from schematic design phase completion to start of construction. FIRST AND WASHINGTON CONFERENCE CENTER Date: 6/19/2002 EXHIBIT I PAGE 1 OF 2 G. TOTAL PROJECT COSTS: Developer shall provide at completion of Schematic Phase "Total Project Costs (TPC)" for public program requirements. TPC shall itemize soft and hard costs. Soft costs being such items as: government charges, design fees, inspection and testing costs; surveys, taxes (real estate, sales, B&O, etc), utility charges and assessments, printing costs, legal fees, insurance (environmental, liability, etc), revenue (pad sales, parking garage, etc), start up costs, project contingencies, etc. Hard costs being: construction costs, general conditions, taxes and insurance, construction contingencies. H. DELIVERABLES: 1. Based on Lead Agency approval of Schematic Design direction, prepare and submit to Lead Agency schematic design documents for Parking Garage, Conference Center, Marina and Plaza. "Schematic level drawings for the private portions of the project will also be produced in sufficient detail to ascertain compliance with FRP and proper design coordination with public portions of the project." Schematic design drawings to include discipline design schemes for: amhitectural, structural, mechanical & electrical (design-build), landscaping, civil. Deliverable shall consist of: program needs (with code restraints and suggested changes); site plan; floor plan(s); roof plan(s); exterior elevations; typical building sections; schematic finish selection for interior and exterior, outline specifications, construction estimate, construction schedule, construction assumptions and clarifications, Preconstruction Schedule and Total Project Costs. I. ADDITIONAL AGREEMENTS: Prior to the completion of the Schematic Design phase, Lead Agency and Developer will endeavor to resolve contract language for: Pad Sale Agreement between Lead Agency and Developer; Design-Build Agreement (for work from Design Development thru construction). J. ATTACHMENT # 1 - FEES: Developer costs and fees for this Phase of Services is attached herein as Attachment # 1. K. ATTACHMENT # 2 - CONSULTANTS: The Developer anticipates using design and testing consultants as attached herein as Attachment # 2. L. ATTACHMENT # 3 - SCHEMATIC DESIGN SCHEDULE: The Developer schedule for Schematic Design Phase is attached herein as Attachment # 3. FIRST AND WASHINGTON CONFERENCE CENTER Date: 6/19~2002 EXHIBIT I PAGE 2 OF 2 ATFACHMENT # 1 DEVELOPER COSTS AND FEES. FIRST AND WASHINGTON CONFERENCE CENTER, BREMERTON, WA. Exhibit I Fees. City of Bremerton Costs Approved Exhibit I Fees Schematic Total Description/services To date Fees Fee I coat Survey of land ALTA Survey $15,000 $15,000 Soil & enviormental $23,66( Legal - TBD Enviormental Parametdx $8,00( $15,660 $23,660 DESIGN FEES Architect & Interiors - prime (LMN) $160,15( Programing & conceptual $20,00¢ $10,740 $30,740 Fee reduction agreed to by LMN -$5,000 -$5,000 Schematic $135,010 $135,010 Land use permit expeditor (Rice Fergus Miller) $5,00( Pmgraming & conceptual Schematic $5,00( $5,000 Parking Report Programing & conceptual $2,00C $2,000 Schematic $3,80( $3,800 Civil Engineering Programing & conceptual $11,00C $11,000 Schematic $22,00C $22,000 Landscape Architect $39,51~ Pmgraming & conceptual $22,55~ $22,55; Schematic $16,96C $16,96C Structural englnesr $3Z,30~ Pmgraming & conceptual $10,00(~ $10,00C Schematic $22,303 $22,303 Fire sprinkler design (Deeign-build) $4,57{~ Programing & conceptual Schematic $4,57¢ $4,57(: Plumbing design (Deeign-build) $5,41~ Pmgraming & conceptual Schematic $5,41 HVAC & Controls design (Design-build) Programing & conceptual Schematic $3,667 $3,667 EleetHcal design (Design-build) Pmgraming & conceptual Schematic $7,633 $7,63.' FIRST AND WASHINGTON CONFERENCE CENTER EXHIBIT I A'I-I'ACHMENT # 1 - FEES Page 1 / 2 Date: 5/31/02 ATTACHMENT # 1 DEVELOPER COSTS AND FEES. FIRST AND WASHINGTON CONFERENCE CENTER, BREMERTON, WA. Exhibit I Fees. City of Bremerton Costa Approved Exhibit I Fees Schematic Total Description/eervicee To date Fees Fee I cos Elevator consulting services ~z,000 Programing & conceptual Schematic $2,000 $2,000 Corlsion Consultant $5,000 Programing & conceptual Schematic $5,000 $5,000 INSPECTION AND TESTING SERVICES. Geotachnical EnginceHng $20,00[ Programing & conceptual $20,00C $20,000 Schematic Printing and relmbumable~ (excluded per Agreement) Programing & conceptual Schematic AlE fee contingency Programing & conceptual Schematic Pre - Construction Services. ~48,0u~ Programing & conceptual $12,00(; $12,000 Schematic $36,00¢ $36,000 Summary of fees - SUBTOTAL · $87,00C $324,31.c $411,319 Opus Fee ~ 8.5% $7,39~ $27,567 $34,962 $g4,39~ $351,88~ $446,281 FIRST AND WASHINGTON CONFERENCE CENTER EXHIBIT I ATTACHMENT # 1 - FEES Page 2 / 2 Date: 5/31/02 ATTACHMENT # 2 BREMERTON CONFERENCE CENTER LIST OF CONSULTANT FOR SCHEMATIC DESIGN The intent of this Attachment is to list Consultants the Developer intends to use to complete public services and/or deliverables indicated in Scope of Services. Developer has not completed all Professional Service Agreements with Consultants, if Developer and Consultant can not agree to terms or scope the Developer can submit alternate Consultant to Lead Agency. A. Prime architect - LMN Architects, 801 Second Ave, Suite 501, Seattle, WA. LMN will also provide interior design services for all public areas (limited to selection of finish materials and colors, it excludes space planning or interior design services for office or retail tenant improvements). LMN will contract directly with specialty consultants for design of the convention center. Specialty consultants may include: lighting designer; acoustical engineer; kitchen consultant. B. Permitting services - Rice Fergus Miller, 262 Fourth Street, Bremerton, WA. Rice Fergus Miller to research, make application, attend meetings for SEPA, City of Bremerton Shorelines Management Master Program and City of Bremerton Conditional Use Permit. C. Landscape architects - McCleod Reckord, 231 Summit Ave. East, Seattle, WA. D. Surveyor - Parametrix, Inc., 5700 Kitsap Way, Suite 202, Bremerton, WA. E. Civil engineer - To be determined F. Environmental inspection services - Parametrix, Inc., 5700 Kitsap Way, Suite 202, Bremerton, WA. G. Geotechnical consultant - Terra & Associates, 12525 Willows Road, Suite 101, Kirkland, WA. H. Structural engineer - Cary Kopczynski & Company, 155 108th Ave. N.E., Suite 220, Bellevue, WA. I. Construction consultant - Opus Northwest L.L.C. 915 118t~ Ave S.E., Suite 300, Bellevue, WA. J. Parking consultant - TDA Inc., 615 2~a Ave., Suite 680, Seattle, WA K. Fire sprinkler design-builder - Patriot Fire Protection, 2707 70th Ave. E, Tacoma, WA 98424. L. Plumbing design-builder- Stirrett-Johnsen, 5555 Westgate Road N.W., Silverdale, WA. M. HVAC & controls design-builder - Encompass, 7717 Detroit Ave., SW, Seattle, WA 98106. N. Electrical design-builder - Valley Electric, 21919 20th Avenue Se, Suite 200, Bothell, WA 98021. O. Elevator consultant - Elevator Consulting Services, 15600 NE 8th Street, Suite B1, PMB 14E, Bellevue, WA. P. Corrosion consultant - Norton Corrosion Limited, 8820 222na Street SE, Woodinville, WA. 98072 FIRST AND WASHINGTON CONFERENCE CENTER DATE: 6/19/2002 EXHIBIT I - ATTACHMENT # 2- CONSULTANTS PAGE 1 OF 1 Attachment #3 ~EMERTON CONFERENCE CENTE~. ...... SCHEDULE ........... ............................................. · ...?.. ~ , Illl ], CRITICAL PATH SCIt~DULE I. Conference Center Proiect A. Lead Parties · City o Cary Bozeman 478.5266 o Gary Sexton 478.5282 o Chris Hugo 478.5243 (cell) 440.2451 o Gene Sampley 478.5315 o Judy Andrews (Bond Council) 206.654.1999 o Jim Spencer 478.7252 · Kitsap Transit o Dick Hayes 478.6230 (ce11)360.731.3866 o Wendy Clark 478.6931 o Ron Templeton 692.6415 (cell) 908.3137 · Public Facilities District o Rick Smith 692.5566 o Andy Maron 337.7146 c> Chris Gears 337.5361 (cell) 710.5471 <> Brian Lawler (atty.) 206.682.0191 · Port of Bremerton o Ken Attebery 674.2543 x21 ~ Cheryl Kincer · Kitsap County o Tim Botkin 337.7146 o Chris Endreson 337.7146 · Art Anderson Associates o Eric Anderson 479.5600 o Bob Brott 479.5600 o Rob Henry 479.5600 · Kitsap Consolidated Housing Authority o Norm McLoughlin 692.5596 o Gary Tusberg 206.826.3094 1 Critical Path ScheduleJConference Center/ Government Center/Maritime Park 6/24/2002 · HUD 108 Grant o Donna Batch 206.220.5150 (3620) o Debbie Stewart 478.7996 · FTA Grant o Theodore Uyeno 206.220.7958 · Congressman Dicks o Bryan McConaughy 253.593.6536 · Environmental o Eric Anderson 479.5600 o Norm McLoughlin 692.5596 (x6125) o Parametrix-John Peflic 425.822.8880 o Pat McCullough 275.7384 B. Critical Path 1. RFP Responses Received 3/15/02 2. Memo of Understanding - Kitsap Transit Ready for Signature. 3/15/02 3. Interlocal Agreement - PFD and Kitsap Transit a. City Pre Council-Resolution Review 3/20/02 b. Kitsap County Adoption 3/26/02 c. PFD Adoption 3/26/02 d. City Council Resolution Adoption 3/27/02 4. Interviews with Qualified RFP Respondents. 3/26-4/3/02 5. Notice and Negotiation of Relocation a. Legal Procedure Schedule-Beckett · Negotiating letter Already delivered · Condemation Ordinance adoption 4/03/02 · Service of Complaint for 4/04/02 Condemation · Pm-note Public Use & Necessity 4/04/02 heating · Pre note Trial on Compensation 4/04/02 · Trial 2 Critical Path Schedule/Conference Center/ Government Center/Maritime Park 6/24/2002 b. Negotiation with Naval Museum · Board Chair- Sherrill Kincer · Negotiation team: o Cary Bozeman o Kathy McCluskey o Gary Sexton · Meeting Schedule 6. Demolition/Environmental Contract w/ Art Anderson Associates: a. Final Draft: Scope of Responsibilities 3/20/02 b. Demolition Commencement 9/01/02 7. Selection of Designer/Developer 4/05/02 8. Negotiate Design Contract w/Developer 4/08/02 9. Sign Design Contract 4/26/02 10. Schematic Design Development Phase Apr-Jul 2002 11. Demolition/Remediation Sep-Oct 2002 12. Final Schematic Design 7/31/02 13. Construction Document Preparation Aug-Dec 2002 14. Construction Contract Negotiations Dec. 2002 15. Commence Construction 12/31/02 E. HUD 401 Grant 1. Meeting Date F. Construction Project Manager 1. Selection of Persons to Interview 6/01/02 2. Interviews 6/15-6/30/02 3. Selection 7/10/02 3 Critical Path Schcdule~Conference Center/ Government Center/Maritime Park 6/24~2002 II. Government Center A. Lead Parties · City o Cary Bozeman 478.5266 o Gary Sexton 478.5282 · Kitsap Consolidated Housing Authority o Norm McLoughlin 692.5596 (cell) 710.7788 o Gary Tusberg 206.826.3094 (cell) 535.6132 o Roger Waid 692.5596 · Kitsap County o Tim Bofldn 337.7146 o Chris Endresen 337.7146 · Port Orchard o John Clauson 478.6223 o J. Weatherill 876.4407 · Library Board o Ellen Newburg 405.9100 o Ellen Golombek · State of Washington ~ Tim Arnold o FUCAT · Bremerton Housing Authority o Merrill Wallace 479.3694 · Congressman Dicks o Bryan McConaughy 253.593.6536 · LMN Architects o Walt Niehoff 206.682.3460 B. Critical Path 1. Meet with John Clauson re: Port Orchard's implicit agreement with County persons to be 4 criaca~ Palh Schedule/Conference Center/ Government Center/Maritime Park 6/24/2002 located in Project. 3/18/02 2. Negotiate contract with LMN. 3/15-30/02 3. Sign contract with LMN. 3/30/02 4. Copies/list of Project Expenses to Date delivered to City. 5. Confirm specific tenants and their sq.f~g. 4/15/02 requirements 6. Establish estimated total project cost. 4/15/02 7. Establish projected lease rate/purchase rate for 4/30/02 each tenant including: a) tenant space b) use of common facilities 8. Land Purchase 5/30/02 9. Obtain letters of intent from all tenants 6/01/02 10. Third draft of Building Design received from LMN. 6/01/02 11. Initial draft of City Space Design 6/01/02 12. Initial draft of common areas. 6/01/02 (Council Chambers; top floor conference area; other) 13. Final Schematic Design. 7/01/02 14. Working drawings prepared and complete. 7/00-9/00/02 15. Pre-lease agreement. 9/00/02 16. Bid period. 10/02 17. Leases signed. 10/30/02 18. Bond Insurance 11/02 19. Construction Commencement. 12/02 5 Critical Path Schedule/Conference Center/ Government Center/Maritime Park 6/24/2002 IV. Maritime Park/Navy Park A. Lead Persons · Cit~ o Cary Bozeman 478.5266 o Gary Sexton 478.5282 o Gene Sampley 478.5315 o Jim Spencer 478.7252 o Chris Hugo 478.5243 (cell) 440.2451 · Navy o Steve Anderson 476.3236 o RJ West 476.6597 o Bob Urich (Engineering) 396.0928 · Kitsap Transit o Dick Hayes 478.6230 (cell) 731.3866 o Wendy Clark 478.6931 · Congressman Norm Dicks o Bryan McConaughy 253.593.6536 · Port of Bremerton o Ken Attebery 674.2543 (x21) · Urban Planners o McCleod Reckord 206.323.7919 · Engineers o Parametrix-John Peflic 425.822.8880 B. Critical Path 1. Schematic Design Mar-Jun 2002 2. Circulation Study/Design Apr-Sep 2002 3. Property Purchase/Navy Park Sep-Dec 2002 4. Plans & Specifications Sep-Dec 2002 6 Critical Path Schedule/Conference Center/ Government Ccnteravl~ritime Park 6~24/2002 5. Demolition in Navy Park 2003 6. Relocation of Fence/Transfer of Possession- Nov-Dec 2004 Maritime Park 7. Move Building 50 Oct-Dec 2004 8. Park Construction Jan-Dec 2005 C. Grant Application 7 Critical Path Schedule/Conference Center/ Government Center/Maritime Park 6/24/2002 AGREEMENT BETWEEN THE C1TY OF BREMERTON AND OPUS NORTHWEST $ This AGREEMENT made as of the day of~U-~in the year 2002. BETWEEN the Lead Agency City of Bremerton 245 Fourth Street Bremerton~ WA 98337 And the Designer/Developer (for purposes of this agreement referred to as "Developer") Opus Northwest 915 118th Avenue SE~ Suite 300 Bellevue, WA 98005 For the following Project: First and Washington Conference Center- Phase I The Lead Agency and Developer agree as follows: 1. The "Project" parameters The Project is a public/private joint development between the Lead Agency and the Developer for the development of a mixed-use facility on the waterfront immediately adjacent to the Ferry Terminal. This agreement is for the project work through Phase I of the schematic design/development phase as set forth in Attachment A with several conditions subsequent as herein listed. The Project includes: · Parking Structure A parking structure located on 3 levels below the street elevation of Washington Avenue. The ownership will be jointly held between the City of Bremerton and Kitsap Transit subject to a parking managing agreement between Kitsap Transit, the City and the Developer. Parking will support the conference center, hotel, restaurant, offices, residences, retail, marina, commuters and visitors. · Conference Center "Conference Center" shall mean the Kitsap Regional Conference Center, a regional tourism related facility which will include no less than 15,00Q square feet of gross floor space, including no less than 7,500 square feet of banquet space, the Associated Parking, and related public spaces, including a lobby area and additional break-out spaces, and which facility shall be part of the Project. The conference center shall have a distinct identity as a public facility, with well-defined exterior entrances, and a waterfront orientation. The main conference room must be able to seat 420 persons for banquets and 600 DRAFT Agreement between COB & OPUS 1 5/6/2002 for meetings. The meeting/banquet room shall be capable of being separated into four smaller spaces. Reception, lobby and storage areas are required. A serving kitchen that may be part of the restaurant must be adequate to support catered banquets. Office space shall be provided for managerial or supervisory personnel. The Center will be owned, managed, operated and maintained by the City. · Hotel The hotel must include not less than 100 guest rooms and will be financed, owned, operated and maintained by the Developer or assigns agreed to in writing by the lead agency. The air rights for the hotel will be leased or sold upon completion of the hotel to the Developer. The hotel must be separate from the conference center but may be connected to it. · Restaurant The restaurant will be financed, owned, operated and maintained by the Developer or assign agreed to in writing by the Lead Agency. The air rights for the restaurant will be sold or leased to the Developer. The restaurant's location within the complex must take advantage of waterfront views. Its kitchen must have the capacity to cater conference center banquets and provide room service for the hotel. · Retail Space Not less than 10,000 Gross S.F. commuter retail space (CRB), with the majority of space to be located on the Commuter Retail Building pad on the transit deck level of the BTC. The retail space will be financed, owned, operated and maintained by the Developer or assigns as agreed to in writing by the lead agency and Kitsap Transit.. · Office Space Not less than 10,000 Gross S.F. office space (KT Office) will be located above the commuter retail space. Offices must take full advantage of water views. Not less than 10,000 square foot of the office space initially will be owned by the Developer subject to a lease and purchase option in Kitsap Transit. The design and construction of the office space to be leased/purchase optioned by Kitsap Transit will be subject to design development and agreement to be negotiated between Kitsap Transit and the developer with review input by the lead agency. · Residential The residential component shall be financed, owned, operated and maintained by the Developer on air rights purchased or leased from the Lead Agency and/or Kitsap Transit. · Marina DRAFT Agreement between COB & OPUS 2 5/6/2002 The project design shall accommodate access for owners, liveaboards and guests (including provisioning). Design consideration for a two story 1500 S.F. Harbor Master unit on the site should be given. · Expanded Waterfront Park Public open space park must be incorporated in the project and should complement the existing boardwalk and the waterfront park. Service/emergency vehicles and pedestrian access must be maintained between boardwalk, waterfront park, this development and Washington Avenue. · Sensitivity Toward View Corridors The design shall be sensitive to open space and view corridors. The design should include pedestrian access and public view corridor through the site and to the open space from Second Street, the CRB pad, the transit area below the pad, and the BTC. · Site Access Issues The project has several vehicle access requirements. Existing access to the project site is from Second Street. Emergency vehicles will require access around the development complex. Service and emergency vehicles access to the Boardwalk and Waterfront Park must be maintained. Freight/delivery vehicles and refuse disposal trucks will require access to the loading dock area of the development complex. A main entrance is necessary for the public components of the facility. A vehicle drop off area should be provided at the main entrance to serve cars and tour buses. Pedestrian access shall be maintained to the facility from the main entrance, boardwalk, waterfront park, and the BTC transit deck and passenger ferry. HOV garage access and egress must be considered. 2. The property being developed ("Project Site") is bounded by that property between the waterside utility easement, Washington Avenue centerline, the north line of 2nd Street and the south line of the north 50 feet of the BTC CRB pad and air spaces above (Project Site) in Bremerton, Washington. 3. Lead Agency Team 3.(a.) The Lead Agency Representative is: Gary Sexton, Proiect Manager City of Bremerton 239 Fourth Street Bremerton, WA 98337 DRAFT Agreement between COB & OPUS 3 5/6/2002 3.(b.) The persons or entities in addition to the Lead Agency Designated Representative, who will review the Project Designer's submittals to the Lead Agency Project Representative are: Dick Hayes of Kitsap Transit Bror Elmquist, Representative of Kitsap Public Facilities District Carv Bozeman, Bremerton Mayor Chris Hugo, Director of Community Development Gene Sampley, Director of Public Works 3.(c) The Lead Agency's other consultants and contractors are: Art Anderson Associates 202 Pacific Bremerton, WA 98337 4. The Project Developer Representative is: 4.(a.) Bart Brgnstad Opus Northwest 915 118th Avenue SE, Suite 300 Bellevue, WA 98005 In the event Bart Brynstad is not available, P.J. Santos of Opus is authorized to act on behalf of the Developer. 4. (b.) For purposes of the public ownership components of the project the Lead Architectural firm is: LMN Architects 801 Second Avenue, Suite 501 Seattle, WA 98104 4. (c.) Additional consultants retained at the Developer's expense are: Terry Reckord McCleod Reckord 231 Summit Ave. East Seattle, WA 98102 Steve Rice Rice Fergus Miller Architects 262 Fourth Street Bremerton, WA 98337 5. Joint Responsibilities of the Parties The Lead Agency and the Developer shall cooperate with one another to fulfill their respective obligations under this Agreement. Both parties shall endeavor to maintain good working relationships among all members of the Project team. DRAFT Agreement between COB & OPUS 4 5/6/2002 6. Lead Agency The Lead Agency shall provide full information in a reasonably timely manner regarding requirements for and limitations on the Project. 6. (a.) The Lead Agency Designated Representative shall be authorized to act on the Lead Agency's behalf with respect to the Project. The Lead Agency Designated Representative shall act in a reasonably timely manner. 7. Developer The services performed by the Developer are as follows: 7. (a.)The Developer shall, in Phase I pursuant to the terms of the agreement, perform those services listed in Attachment A hereto during the month of May 2002. Developer shall be paid the amounts set forth in Attachment A as "Lead Agency Costs". 7. (b.) The Developer shall at the end of Phase I provide a critical path schedule and scope of phase work for the future design phases. The Developer shall by the conclusion of Phase I provide the schematic design cost estimate and component cost breakdown. The Developer shall not significantly increase or decrease the overall budget, without the agreement of the Lead Agency Project Representative pursuant to a change in the Project scope and quality by way of addendum to this agreement. 7. (c.) The Developer's services shall be performed consistent with the time periods established herein which shall be adjusted, if necessary, as the Project proceeds. This schedule shall include allowances for periods of time required for the Lead Agency's review, for the review by others listed in paragraph 3, and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule shall not, except for reasonable cause, be exceeded by either party. 7. (d.) The Developer's designated representative identified in Paragraph 4 shall be authorized to act on the Developer's behalf with respect to the Project. 7. (e.) The Developer shall review and comply with laws, codes and regulations applicable to the Project. 8. Scope of Work The scope of work of the Developer under this agreement is as follows: See Attachment A. 8. (a.) Ownership Upon full payment of all sums due or anticipated to be due the Developer under this Agreement, the latest original drawings, specifications, and the latest electronic data prepared by the Developer for the Project shall become the DRAFT Agreement between COB & OPUS 5 5/6/2002 property of the Lead Agency. This conveyance shall not deprive the Developer of the fight to retain electronic data or other reproducible copies of the drawings and specifications or the fight to reuse information contained in them in the normal course of the Developer's professional activities. The Developer shall be deemed the author of such electronic data, documents and design, and shall be given appropriate credit in any public display of such documents. 8. (b.) Change in Services Change in services of the Developer, including services required of the Developer's consultants, may be accomplished after execution of this Agreement, without invalidating the Agreement, if mutually agreed in writing, including any agreed change in compensation and time for performance. 9. Time for Performance: 30 days 10. Payments to the Developer The Lead Agency shall pay the Developer within 20 days after completion of the Phase I work and delivery to Lead Agency, Developer's itemized statement of services with attachment of subcontracts and invoices for labor, services and materials provided. 10. (a.) Reimbursable Expenses are in addition to compensation for the Developer's services and include expenses as follows: · 1 transportation in connection with the Project, outside of Kitsap, Pierce and King Counties as pre-approved by the Lead Agency Project Representative; .2 fees paid for securing approval of authorities having jurisdiction over the Project; .3 reproductions, plots, photographs, standard form documents, postage, handling and delivery of Instruments of Service; .4 presentation or final renderings, models and mock-ups requested by the Lead Agency. 10. (b.) Amounts not properly paid within forty-five (45) days after the date the properly prepared invoice was delivered to the Lead Agency Project Representative shall bear interest at the rate of 12% per annum until paid in full. 11. Miscellaneous Provisions Each party shall defend, indemnify and hold the other party, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and a~torney fees, arising out of or in connection with its performance of this Agreement. l 1. (a.) This Agreement shall be governed by the laws of the State of Washington. 11. (b.) Unless otherwise provided in this Agreement, the Developer and Developer's consultants shall have no responsibility for the discovery, presence, DRAFT Agreement between COB & OPUS 6 5/6/2002 handling, removal or disposal of or exposure of persons to hazardous materials or toxic substances in any form at the Project site. 11. (c.) The Lead Agency and Developers, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the parmers, successors, assigns and legal representatives of such other party with respect to all other covenants of this Agreement. Neither the Lead Agency nor the Developer shall assign this Agreement without the written consent of the other, except that the Lead Agency may assign this Agreement to an institutional lender providing financing for the Project. 11. (d.) If the Project is suspended by the Lead Agency for more than 60 consecutive days, the Developer shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Developer shall be compensated for expenses incurred in the interruption and resumption of the Developer's services if approved in advance. The Developer's fees for the remaining services and the time schedules shall be equitably adjusted, per mutual agreement. 11. (e.) If the Project is suspended or the Developer's services are suspended for more than 120 consecutive days, the Developer may terminate this Agreement by giving not less than seven days' written notice. 11. (f.) This Agreement may be terminated by the Lead Agency upon not less than seven days' written notice to the Developer for the Lead Agency's convenience and without cause. 11. (g.) In the event of termination not the fault of the Developer, the Developer shall be compensated for services performed prior to termination, together with reimbursable expenses. 11. (h.) Termination Expenses are in addition to compensation for the services of the Agreement and include reasonable expenses directly attributable to termination for which the Developer is not otherwise compensated. Termination expenses shall be limited to $5,000 for the Developer and Consultants. 11. (i.) Some of the construction will be subject to Federal Regulations and Requirements (see http://www.fta.dot.gov/librarv/legal), http://www.fta.dot.gov/office/program/gmw/Clauses.html), including compliance with NEPA, Davis-Bacon and Buy America. The remaining public construction must comply with State Prevailing Wages. The Scope of Federal Regulation compliance, including application to specific components will be determined during the project developer contract negotiations and schematic design development phases. DRAFT Agreement between COB & OPUS 7 5/6/2002 11. (j.) Subsequent phase agreements will have Developer forfeiture provisions for any failure to proceed or to perform as shall be hereafter agreed between the parties. 11. (k.) This agreement represems the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instnunent signed by both parties. Lead Agency Representative (signature) Devel~pgr Rep~eser~tat~ve (signature) (Prinied name and title) I ' ' (Printed name and title) DRAFT Agreement between COB & OPUS 8 5/6/2002 TH~ CI~'Y OF BgE~vI.F~RTON AND OPUS NORTigWES~, L,L.C. ~ 1 ~DE~LOP~N~ S~PE & ~STS T~OUGH JUNE 1, 2002 ~e~a ~s~iates: Co~uc~ mvesfi~x~on by ~ ~ng me~s ~ fi~ ~ re~ to soil and ~ound w~ ~on~fions, ~smic ~e~ ~d monit~g wells ~ 4 of~ ~ boles. Coot&hale ~dm~ ~ ~ ~vll -. ~TA ~d P~az~: Condor ~-built ~ renew for ~1 und~ound u~fies, ~uC~ full .~TA d~i~ ~. CKC: ~ss ~s~g ~1 ~mponems ~d con~ons ~ wM~ may e~t desi~ ~. ~rch, ~ew ~ ~o~a~ si~ ~ndi~ion fin&ngs L~Ar~itecff: Revi~ e~g bulldog ~ planning codes for pro~s~ desk. s~c ~i~ wo~ on p~ng g~ge ~ ~ dcfinc p~n~ ~t, study cen~r, r~l offi~ floor plans ~d ~mte ~h ovea~ d~ ~. ~m~t~; ~A ln~: Parking a~lys~for o~raHproje~ ~ewing~st ~t~s~ a~ lay~g o~t new pr~ect' s p~g requirement. Con,alit ~I~ ~o~ $20,000 Ci~l $15,000 S~ $10,~ ~,750 Archit~al - ~ $20,000 ~ch - Howl ~,~ $2,000 Re~i~Offi~ ~is $6,~ ptz~uction s~ces $12,000 ~¢~cvel~cnt ~ $ Subto~ $87,000 $53,750 ~ To~h S94~95