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HomeMy WebLinkAbout2009.12.28 - Make Waves Letter of Intent Port Of Port Townsend / Make Waves In PT Community Aquatic Recreation Center Letter of lntent December 28, 2009 1. The Port of Port Townsend ("Port') is a Washington port district and municipal corporation, and is the owner of certain land and improvements, a drawing and legal description of which is contained in Exhibit A hereto ("Property"). The Property is presently subject to a lease between the Port and the City of Port Townsend expiring on July 31 ,2012 ("City Lease"). 2. Make Waves In PT ("Make Waves") is a Washington nonprofit corporation with tax-exempt status under U.S. Intemal Revenue Code $501(cX3). Make Waves desires to develop and operate a community pool and related facilities on the Property (the "Project") after the expiration of the City Lease. 3. This Letter Of Intent (.LOf') is intended to outline the general terms of the written agreements to be negotiated by the parties regarding the Project ("agreements"), but is not intended to be binding on either party. The general terms of the agreements are stated as follows: a. The agreements will grant Make Waves an option or other interest in the Property whereby the Property will be reserved for development of the Project for a period of five (5) years starting August 1, 2A12. lf Make Waves has not started construction of the Project by July 31, 2017, then the Port may terminate the parties' agreements. During the reservation period, the Port may use the Property for other purposes, so long as such uses do not interfere with the development of the Project. b. Make Waves will raise all funds necessary to develop the Project, including but not limited to planning, design, permitting, and construction. The conceptual development plan for the Project, and all material changes thereto, will be subject to Port Commission review and approval as consistent with Port's development guidelines and policies with respect to the Property and the Project prior to Make Waves seeking permits or entitlements from the City of Port Townsend. c. Upon completion of construction of the Project, the Port will accept ownership of the improvements, subject to the Port's approval of such improvements, and at no cost to the Port, and the Port will grant a long term lease of the Property and improvements to Make Waves or an operator designated by Make Waves' d. Make Waves will raise all funds necessary to maintain and operate the Project continuously and in a first class manner. e. Prior to the commencement of the negotiations between the parties, the Port will furnish Make Waves with an opinion from the Port's legal counsel that the transactions and commitments contemplated by this LOI are within the statutory powers of a Washington State port district. 09 1228LOI(P ort-MakeWaves) 4. This LOI does not contain all essential terms of the agreement or agreements to be entered into by the parties regarding the Project. The parties shall not be bound to any development agreement or other agreement, nor to any particular terms of any such agreements, and the parties will have no liability to one another with respect to such agreements or any particular terms thereof, unless and until final definitive written agreements containing all essential terms of the transaction are negotiated and approved by the parties' respective boards, and signed by the parties. 5. For the duration of this LOI as defined in Section 6 below, the parties will engage in exclusive negotiations with one another regarding the Project; provided, that the parties are permitted to also have discussions with governmental and other regulatory agencies, and potential users, regarding the Project. The parties will work diligently to complete the negotiation of all terms of final agreements and all necessary documents related to such final agreements regarding the Project by April 1, 2010. 6. The duration of this LOI shall begin on the date this LOI has been signed by both parties, and shall end on the earlier of (a) the date that the Port and Make Waves enter into final written agreements regarding the Project, or (b) December 31, 2O1O. The duration of this LOI may be extended for additional periods by written agreement of the parties. 7. During the time that the parties are negotiating a final agreement and related documents, Make Waves will commit substantial resources to evaluate, design and plan the Project, including but not be limited to market studies, engineering and architectural design, and environmental and geotechnical review. The Port will also be committing resources to the Project, including but not limited to review and approval of conceptual designs and other materials provided by Make Waves, negotiation with Make Waves regarding final agreements, and support of the Project. lf this LOI terminates and Make Waves does not develop the Project, then Make Waves will convey and assign to the Port all of Make Waves' entire ownership interest in, and all other right, title, and interest of Make Waves in and to, all reports, studies, designs, plans, permits, and other documents resulting from those efforts, and all other documents and information related to the investigation and development of the Project; provided, however, that Make Waves shall not be required to provide or convey or assign to the Port any document or information to the extent protected by attorney work product or attorney/client privilege; and provided fufther, however, that such assignment shall not preclude Make Waves' use of any part or all of such documents or information. 8. This LOI contains the entire agreement of the Parties with respect to its subject matter and supersedes any and all other written or oral understanding or agreement. No amendment, change, or modification of this LOl shall be valid, unless in writing and signed by the parties hereto. 9. The Parties agree that money damages would not be a sufficient remedy for any breach of this Agreement, and that either party may seek equitable relief, including injunction and speciflc performance, in the event of any such breach, in addition to all other remedies available at law or in equity. 09 L228LOI(P ort-MakeWaves r嵉 10. The Parties agree that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privllege hereunder. No waiver of any provision of this LOI shall be valid unless in writing and signed by the party charged with the waiver. 11. lf any provision of this LOI is found to violate any statute, regulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this LOl, and sucfr invalid provision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation. 12. This LOI shall be construed and interpreted in accordance with and shall be governed and enforced in all respects according to the laws of the state of Washington, without regard to conflict of law principles, and venue of any action or proceeding regarding this LOI shall be in Jefferson County, Washington. 13. This LOI does not confer any rights or benefits on any person or entity other than the undersigned Parties, and may not be assigned. December 28,2OOg MAKE WAVES IN PT a Washington non-profit corporation ,l\'il-orn- )u.{u.r-, f'l .{x-at tLt*.-f' Karen Nelson President PORT OF PORT TOWNSNED a municipal corporation / ' ..-i ./.., Thompson President 09 I228LOI( P ort- MaksWaves)I