invitation for bids (“ifb”) 18-01 property for …€œroyal street bus garage” ... wmata’s...

INVITATION FOR BIDS (“IFB”) 18-01 PROPERTY FOR SALE

“ROYAL STREET BUS GARAGE”

600 NORTH ROYAL STREET, ALEXANDRIA, VIRGINIA 22314 (City of Alexandria Tax Map 065.01-01-01)

IFB ISSUE DATE: September 8, 2017

BID DUE DATE: November 17, 2017, 3:00 p.m. EST

All IFB documents and amendments are posted on-line at: www.WMATA.com/realestate

ISSUED BY:

Washington Metropolitan Area Transit Authority Office of Real Estate and Parking

600 Fifth Street, NW Washington, DC 20001

IFB 18-01 Sale of 600 North Royal Street, Alexandria, Virginia 22314

“ROYAL STREET BUS GARAGE”

Table of Contents

SECTION A: INVITATION FOR BIDS .................................................................................................. 1

SECTION B: PROPERTY INFORMATION .......................................................................................... 6

SECTION C: GENERAL TERMS OF SALE ......................................................................................... 8

SECTION D: INSTRUCTIONS TO BIDDERS .................................................................................... 10

BID FORM ................................................................................................................................................ 13

BEST AND FINAL OFFER FORM ........................................................................................................ 16

ATTACHMENT 1: SITE LOCATION .................................................................................................. 19

ATTACHMENT 2: VIEW OF BUS GARAGE (LOOKING NORTH)............................................... 20

ATTACHMENT 3: WMATA REAL ESTATE PERMIT APPLICATION AND FORM................ 21

ATTACHMENT 4: FORM OF ESCROW AGREEMENT FOR ENVIRONMENTAL REMEDIATION ....................................................................................................................................... 22

ATTACHMENT 5: TITLE TO PROPERTY ....................................................................................... 30

ATTACHMENT 6: FORM OF PURCHASE AND SALE AGREEMENT ........................................ 32

ATTACHMENT 7: RIGHT OF ENTRY AGREEMENT .................................................................... 61

POSTED ON-LINE at www.WMATA.com/real estate:

APPENDIX A. ENVIRONMENTAL DOCUMENTATION (IFB 18-01)

APPENDIX B. ROYAL STREET BUS GARAGE RENOVATION DRAWINGS (IFB 18-01)

APPENDIX C. POTENTIAL ASBESTOS CONTAINING MATERIALS REPORTS

(IFB 18-01)

IFB 18-01: 600 N. Royal Street, Alexandria, VA P a g e | 1

SECTION A: INVITATION FOR BIDS

A1. Issuance of IFB. This Invitation for Bids (“IFB”) for 600 North Royal Street in Alexandria, Virginia 22314 (the “Property”), as described in Section B1, is offered by the Washington Metropolitan Area Transit Authority (“WMATA”). All bid submissions (“Bids”) must be received, in accordance with the provisions of this IFB no later than the Due Date set forth below. WMATA may decide, at its sole discretion, to extend the Due Date, withdraw the IFB, or not to proceed with any of the Bids received.

A2. Invitation for Bids. The term “Invitation for Bids” or “IFB” refers collectively to the

following, as they may be modified and supplemented by any amendments that may be issued:

Section A: Invitation for Bids Section B: Property Information Section C: General Terms of Sale Section D: Instructions to Bidders Bid Form Best and Final Offer Form Attachments 1 through 7 Appendices A through C

A3. Descriptions in this IFB. Information in this IFB, and any other information provided

by WMATA with respect to the Property, is based on information available to WMATA and is believed to be correct, but the information is not warrantied, and any error or omission, including but not limited to the omission of any information available to WMATA, will not constitute grounds or reason for nonperformance under this IFB or be grounds for a claim by a party submitting a Bid (“Bidder”) for an allowance, refund or deduction from the Purchase Price.

A4. Due Date. Bids are due no later than 3:00 p.m. EST on November 17, 2017 (“Due

Date”). Bids must be delivered no later than the Due Date to the following address:

Washington Metropolitan Area Transit Authority Office of Real Estate and Parking 600 Fifth Street, N.W. Washington, DC 20001

ATTN: Rosalyn Doggett, Senior Real Estate Advisor

By submitting a Bid, a Bidder is deemed to have agreed to and accepted all terms and conditions set forth in this IFB. Notwithstanding the foregoing, WMATA reserves the right to amend or modify any of the terms and conditions set forth herein prior to the Due Date.

A5. Pre-Proposal Conference. A pre-proposal conference will be held for prospective

Bidders to present information about the Property and the requirements of this IFB on


Friday, September 22, 2017 from 10:00 a.m. to 11:30 a.m. at the Alexandria Economic Development Partnership’s Alexandria Room, located at 625 N. Washington Street, Suite 400 in Alexandria, VA. The pre-proposal conference will begin promptly at 10:00 a.m.

A6. Purchase Options. Bidders will have two purchase options:

Option A: Quick Close. A Bid to purchase the Property “AS IS” following the Due Diligence Period, as described in Section A11. Bidders may also waive Due Diligence altogether and propose to close within a proposed number of days from being selected. To make an Option A Bid, a Bidder will offer:

(i) A price to buy the Property (“Purchase Price”) “AS IS”; (ii) A proposed Closing Date (see Section C9); and, (iii) An additional amount (“Density Bonus”) to be proposed as a price per

gross Floor Area Ratio (“FAR”) square foot for any density awarded in the DSUP above a stated minimum density threshold.

Option B: Purchase Agreement. A Bid to purchase the Property “AS IS” following Due Diligence, as described in Section A11, with Closing (defined in Section C2) to occur upon approval of a non-appealable Development Special Use Permit with Site Plan (“DSUP”) from the City of Alexandria (the “City”). To make an Option B Bid, a Bidder will offer:

(i) An Option Fee (Section A13), which will be paid annually until Closing

occurs, over a proposed number of years; (ii) An “AS IS” Purchase Price to be paid at Closing after DSUP entitlement; (iii) A Density Bonus, to be proposed as a price per gross FAR square foot for

any density awarded in the DSUP above a stated minimum density threshold; and,

(iv) A proposed Outside Closing Date (as defined in Section C9).

Bidders must specify whether they are electing Option A and/or Option B. A Bidder may submit a single Bid containing one or both options. To the extent that a single bid contains both options, WMATA may choose any one (or none) of them at its discretion.

A7. Submission Requirements. Section D and the Bid Form contain complete, substantive

submission requirements. A complete Bid package will include:

a. Completed and signed Bid Form b. As required by the Bid Form, Tabs 1-6, as applicable c. Bid Deposit check

A8. Selection Criteria. WMATA is concerned with striking the most advantageous balance

between Purchase Price and the Bidder’s ability to close by the Closing Date or Outside Closing Date, as applicable. Therefore, WMATA will make a selection based upon the best overall value to WMATA after consideration of all criteria. All Bids shall be evaluated based on the application of the following selection criteria:


(i) Purchase Price (ii) Bidder’s financial capacity

(iii) Bidder’s proposed Closing Date or Outside Closing Date and ability to close by such date

For Bidders selecting Option B, the following additional selection criterion will be added to WMATA’s evaluation:

(iv) Bidder’s development qualifications

A9. Alternate Bids and Successful Bid Selection. WMATA, in its sole discretion, may select up to two Bidder(s) (“Initially Selected Bidders”) with whom to negotiate concurrently and from whom ultimately to receive a Best and Final Offer. WMATA will give each Initially Selected Bidder the opportunity to enter into a Due Diligence Period and make a Best and Final Offer and, if desired, request an amount to be deducted from the Purchase Price and placed in an Environmental Escrow Account for environmental remediation described in Section B4. The Best and Final Offer must be submitted to WMATA on the Best and Final Offer Form. The Best and Final Offer Form will be submitted no later than ten (10) calendar days of the conclusion of the Due Diligence Period, and WMATA will select the Successful Bidder within six (6) weeks of Best and Final Offer submission. WMATA reserves the right to request additional information from one or both Initially Selected Bidders after submission of their Best and Final Offer Forms.

If there is a selection under Option B, WMATA and the Successful Bidder will execute a Purchase and Sale Agreement (Attachment 6: Form of Purchase and Sale Agreement). A Purchase and Sale Agreement does not apply to Option A; instead the language of Section C11 applies.

A10. Inspection. Bidders are invited and encouraged to inspect the Property prior to

submitting a Bid. Walk-through inspections will be permitted without a permit or other formal documentation, but a WMATA escort must accompany the person conducting the inspection. WMATA has tentatively scheduled walk-through inspections of the Property for September 22 at 12:00 p.m. and October 11 at 10:00 a.m. However, the walk-throughs will be held only if one or more Bidders requests an inspection via email to [email protected]. Due Diligence, as defined below, is the Bidder’s responsibility, to be done at the Bidder’s sole expense. WMATA has provided environmental documents as Appendix A and Appendix C to this IFB, but makes no warranty or representation as to the accuracy or completeness of such documentation. WMATA will not conduct or fund Due Diligence, including but not limited to: (1) land surveying, (2) title insurance, (3) appraisals, and (4) environmental due diligence.

A11. Due Diligence Period. An Initially Selected Bidder shall have one hundred twenty (120)

days from the date it receives WMATA’s notification of designation as Initially Selected Bidder (“Due Diligence Period”) to perform any necessary environmental, title and other due diligence (“Due Diligence”). Immediately upon notification by WMATA that it is

mailto:[email protected]


the Initially Selected Bidder and prior to entry on the Property for any testing or work more intrusive or prolonged than a walk-through inspection, an Initially Selected Bidder or its contractor will execute and deliver to WMATA a Real Estate Permit Application Form and Real Estate Permit, together with all insurance required, which can be found on WMATA’s website and links are listed on Attachment 3. For non-intrusive investigations such as surveying, the Initially Selected Bidder or its contractor will execute and deliver to WMATA a Right of Entry Agreement; the form of this agreement is included as Attachment 7. All findings and supporting data from investigative reports and analyses regarding the condition of the Property and estimated remediation costs shall be delivered to WMATA and become the non-exclusive property of WMATA. WMATA may use the report(s), including findings and supporting data, without restriction thereafter.

Within ten (10) days after the expiration of the Due Diligence Period, Initially Selected Bidders shall submit their Best and Final Offer Forms to WMATA and:

• Under Option A: (1) if WMATA accepts the Best and Final Offer and no

Environmental Escrow Account is required, proceed directly to Closing in accordance with the terms of this IFB; or (2) if an Environmental Escrow Account is requested in the Best and Final Offer, negotiate an Environmental Escrow Account amount acceptable to WMATA as set forth below, execute an Environmental Escrow Agreement and then proceed to Closing in accordance with the terms of this IFB.

• Under Option B: (1) if WMATA accepts the Best and Final Offer, execute a Purchase and Sale Agreement, only, if no Environmental Escrow Account is requested; or (2) if an Environmental Escrow Account is requested in the Best and Final Offer, negotiate an Environmental Escrow Account amount acceptable to WMATA as set forth below and execute a Purchase and Sale Agreement that has the agreed-upon Environmental Escrow Agreement as an exhibit.

When an Environmental Escrow Account is requested, the Initially Selected Bidder shall provide a detailed proposal, including itemized costs(s), to accommodate incremental costs of environmental cleanup and provide all relevant reports. If an Environmental Escrow Account is requested, WMATA and the Initially Successful Bidder(s) will have six weeks in which to agree upon an acceptable Environmental Escrow Account amount and Environmental Escrow Agreement. Upon agreement in writing: under Option A, WMATA and the Successful Bidder shall execute an Environmental Escrow Agreement and proceed to Closing in accordance with the terms of this IFB; or under Option B, WMATA and the Successful Bidder shall execute a Purchase and Sale Agreement that has the agreed-upon Environmental Escrow Agreement as an exhibit. If the parties are unable to agree on an Environmental Escrow Account amount and/or Environmental Escrow Agreement within the stipulated time, the Initially Selected Bidder may withdraw its Bid or WMATA may terminate the Bid. In either case, the Initially Selected Bidder will receive a full refund of its Bid Deposit.


A Bidder may elect, in its Bid Form, to waive the Due Diligence Period. WMATA reserves the right to select a Bid where the Due Diligence Period is waived over another Bid, even where the other Bid is otherwise more economically favorable to WMATA. WMATA and the Initially Selected Bidder(s) may agree to extend the Due Diligence Period.

A12. Bid Deposits. A “Bid Deposit” of Two Hundred Thousand Dollars ($200,000) is

required to accompany a Bid submission. A cashier’s check, company check or certified check must be used. No interest will accrue on the Bid Deposit. All checks are to be made payable to the “Washington Metropolitan Area Transit Authority”. Bid Deposits are refundable as set forth in Section D3 below. Failure to provide a Bid Deposit will result in rejection of the Bid. Under Option A, the Bid Deposit will be credited to the Purchase Price.

A13. Option Fee. For Option B, WMATA requires a non-refundable Option Fee (“Option

Fee”) until the Closing Date is reached. The Bidder will proposed the amount of the Option Fee, which will be paid on each successive anniversary of WMATA’s acceptance of the Bid, on the Bid Form or Best and Final Offer Form, as applicable. The Bid Deposit will be credited to the Option Fee for the first year.

A14. Continuing Offers. Each Bid received will be deemed to be a continuing irrevocable

Bid for up to six (6) calendar months after the date of WMATA’s notification of initial acceptance of up to two Bids. However, subject to Section D3, Bid Deposits for Bids not accepted by WMATA will be returned to Bidders.

A15. Revocation of Bid and Bidder Default. In the event of revocation of a Bid after the

opening of Bids but prior to initial acceptance, or in the event of revocation of a Bid after notice of initial or final acceptance, or if the Successful Bidder defaults on any of the terms or conditions of this IFB, or if the Successful Bidder fails to achieve Closing or execute a Purchase and Sale Agreement, as applicable, for any reason other than pursuant to Sections A11 or A16, the Bid Deposit, together with any payments subsequently made by the Successful Bidder to WMATA, will be forfeited as liquidated damages at the option of WMATA, in which event the Successful Bidder will be relieved from further liability.

A16. WMATA Liability. If a Bid under Option A is accepted by WMATA and WMATA fails to perform its obligation to close as set forth herein for any reason other than the Successful Bidder’s failure to perform, then as the Bidder’s sole and exclusive remedy, WMATA will promptly refund the Bid Deposit. If a Bid under Option B is initially selected by WMATA and the parties fail to execute a Purchase and Sale Agreement for any reason other than the Initially Selected Bidder’s failure to perform, then as Bidder’s sole and exclusive remedy, WMATA will promptly refund the Bid Deposit.


SECTION B: PROPERTY INFORMATION B1. Property Description. Located at 600 North Royal Street in North Old Town

Alexandria, the Property is a square block bounded by North Royal, Pendleton, North Pitt and Wythe streets. It contains approximately 87,173 square feet of land. The Property can be found on the City’s tax map: 065.01-01-01: http://realestate.alexandriava.gov/detail.php?accountno=12137500. A survey plat and metes and bounds description of the property to be conveyed will be provided to WMATA by the Initially Selected Bidder(s) not later than sixty (60) days after commencement of the Due Diligence Period.

The Property is improved with a 48,500 square foot one- and two-story brick bus garage originally constructed in 1933. Attachments 1 and 2 provide views of the Property.

B2. Zoning. WMATA believes but does not warrant or represent that the Property is currently zoned RM/Townhouse, which allows medium density townhouses at 30 dwelling units per acre. The Bidder, at its own risk, is required to verify zoning and to make all determinations as to whether the Property can be used for the purpose the Bidder intends.

B3. Old Town North Small Area Plan. On June 24, 2017 the City Council of Alexandria adopted an amended small area plan for the northern part of Old Town, the Old Town North Small Area Plan (“Plan”) and associated Urban Design Standards & Guidelines. For the Property, the Plan recommends Commercial/Residential Mixed Use (CRMU-X) zoning (Plan Figure 2.12), a FAR of 2.5 (Plan Figure 2.08) and building heights of 50 feet to 70 feet (Plan Figure 2.14). The Plan and design standards may be found at: https://www.alexandriava.gov/planning/info/default.aspx?id=86032.

B4. Condition of Property. The Property is being sold “AS IS, WHERE IS.” Except as

expressly provided in this Section, WMATA disclaims any warranty or representation, express or implied regarding the condition of the Property including the following: (a) the condition or state of repair of the Property, including the possible presence of hazardous substances on, under, or in the vicinity of the Property; (b) suitability of the Property for any use; (c) compliance with any applicable laws, including without limitation, land use, wetland, zoning, or environmental laws; and (d) all warranties of habitability, merchantability and fitness for any particular purpose. No claim for any allowance or deduction upon such grounds will be considered. The Virginia Administrative Code, Virginia underground storage tank (“UST”) regulations (9 Virginia Administrative Code (VAC) 25-580-10 to 25-580-360), requires notification to the State Water Control Board of any changes in UST status. Currently, there are four known USTs on the Property: one has been permanently abandoned (filled with sand) and three have been temporarily abandoned. One additional UST was reportedly removed from the site in the early 1980s; however, this tank is suspected to be abandoned on site.

http://realestate.alexandriava.gov/detail.php?accountno=12137500

https://www.alexandriava.gov/planning/info/default.aspx?id=86032


During UST replacements in 1994 and 1995, WMATA found petroleum contamination in the soils and groundwater. Under a Virginia Department of Environmental Quality (“VDEQ”) approved Corrective Action Plan, the groundwater was treated to an acceptable level, and the case was closed by VDEQ on January 27, 2004. If soils are excavated, however, special disposal requirements may result from residual petroleum contamination. Similarly, groundwater dewatering may require pre-treatment before discharge to sanitary or storm water sewer systems. If requested by the Successful Bidder, WMATA will reserve a portion of the Purchase Price and place it in an escrow account (“Environmental Escrow Account”) to pay for removal of asbestos and USTs and the incremental costs of disposing of petroleum-contaminated soil and groundwater, contingent on provision of proper documentation and WMATA’s written approval thereof. The amount to be held in escrow will be established by WMATA, in its sole discretion, after consideration of reports prepared by the Initially Selected Bidders during the Due Diligence Period. The amount deposited into the Environmental Escrow Account shall serve as a cap on WMATA’s contribution toward remediating site contamination and will be based on one level only of below-grade development; any further below-grade development will be at the Successful Bidder’s risk and cost. The Successful Bidder shall have the right to use funds in the Environmental Escrow Account within a specified period of years following Closing to cover the costs of remediating the environmental issues referenced above. Similarly, WMATA may withdraw funds from the Environmental Escrow Account if it receives direction from government agencies to take corrective action regarding environmental conditions at the site. WMATA will negotiate the terms of any environmental remediation with the Initially Selected Bidders. The form of the Environmental Escrow Agreement is provided as Attachment 4: Form of Escrow Agreement for Environmental Remediation.

B5. Utilities. WMATA believes, but does not represent or warrant, that all the usual services and utilities are available to the Property. A Bidder, at its own risk, is required to verify services and utilities and to make all determinations as to whether such services and utilities can be used by the Bidder.


SECTION C: GENERAL TERMS OF SALE C1. Applicability. This Section C is applicable to Bidders that have selected to purchase this

Property under Option A, unless otherwise noted. The Terms of Sale for Option B are provided in Attachment 6: Form of Purchase and Sale Agreement.

C2. Possession. Actual and constructive possession of the Property will be granted upon the

transfer of the Property pursuant to the terms of this IFB (“Closing”). The Successful Bidder will thereupon assume possession with all attendant rights and responsibilities.

C3. Taxes. As of the date of Closing, the Successful Bidder will assume responsibility for

all general and special real and personal property taxes which are assessed on the Property.

C4. Risk of Loss. As of the date of Closing, the Successful Bidder will assume responsibility

for care and handling and all risks of loss or damage to the Property and have all obligations and liabilities of ownership.

C5. Insurance. WMATA is not imposing any insurance requirements on the Initially

Selected Bidders or the Successful Bidder for the time period up to Closing, except as required in any Real Estate Permit or Right of Entry Agreement that WMATA issues for on-site Due Diligence.

C6. Title. WMATA’s interest will be conveyed by a special warranty deed. Title will be in the condition established pursuant to Attachment 5.

C7. Title Evidence. Any title evidence which may be desired by the Bidder must be

procured at its sole cost and expense. WMATA will not be obligated to pay for any expense incurred in connection with title matters, including a survey of the Property. At Closing WMATA will deliver an owner’s affidavit to the buyer’s title insurer but such affidavit shall not include any indemnification obligation and must be reasonably satisfactory to WMATA. WMATA will cooperate with the Successful Bidder or Initially Selected Bidder(s) and such Bidder’s title company during the Due Diligence Period in negotiating an owner’s affidavit acceptable to all parties.

C8. Easements and Encumbrances. WMATA is not aware of any easements or

encumbrances affecting the Property. However, each Bidder under Option A or Option B is responsible for its own Due Diligence to determine if there are any easements or encumbrances.

C9. Tender of Payment at Closing. Full payment of the balance of the Purchase Price by

wire transfer is due at Closing. For Option A, Bidders are expected to provide their proposed date of Closing (“Closing Date”). Closing is to be held not later than the Closing Date or not later than sixty (60) days after the later of: (i) the expiration of the Due Diligence Period and any follow-on negotiating periods under Section A11, and (ii) WMATA’s satisfying the condition precedent in Section C13. For Option B, Bidders are


expected to provide WMATA with an outside date for Closing (“Outside Closing Date”) which in no event shall extend beyond sixty (60) months from Effective Date of the Purchase and Sale Agreement.

C10. Documentary Stamps and Closing Costs. The Successful Bidder will pay all taxes and fees imposed on this transaction, including such revenue and documentary stamps and transfer and recordation taxes as may be required by Federal, State and local law. All instruments of conveyance and security documents will be placed on record in the manner prescribed by local recording statutes at the Successful Bidder’s expense. Title examination, conveyance, notary and other fees, and fees necessary to secure a loan, if any, are to be paid by the Successful Bidder. WMATA will not pay any brokerage commissions or fees.

C11. Contract of Sale. Under Option A, this IFB and the Successful Bidder’s Bid Form, when accepted, will constitute a binding agreement of sale between the Successful Bidder and WMATA. Such agreement will constitute a contract of sale to be succeeded only by the formal instruments of transfer. The contract of sale may be modified only in writing and signed by both parties. No oral statements or representations made by or on behalf of either party will be a part of such contract. The contract, or any interest therein, may not be transferred or assigned by the Successful Bidder without the consent of WMATA, which consent may be withheld or conditioned in WMATA’s sole discretion, and any assignment without such consent will be void; provided, however, that the Successful Bidder may designate an affiliated entity controlled by it, that it controls, or that is under common control to take title at Closing. Under Option B, the Purchase and Sale Agreement will constitute the binding agreement once executed by WMATA and the Successful Bidder.

C12. Officials Not to Benefit. No member of or delegate to Congress or resident

commissioner will be admitted to any share or part of the sale transaction or to any benefit that may arise therefrom. This provision will not be construed, however, to extend to a contract of sale if made with a publicly traded entity for its general benefit.

C13. FTA Compliance. The sale of the Property will be subject to WMATA’s obtaining a

compliance determination from the Federal Transit Administration of the United States Department of Transportation (“FTA”), i.e., that the proposed Purchase Price meets or exceeds the fair market value of the Property established by a third-party appraisal conducted for WMATA. WMATA does not share appraisal results with Bidders. WMATA will use diligent efforts to obtain FTA’s compliance determination promptly after selection of the Initially Selected Bidder(s).


SECTION D: INSTRUCTIONS TO BIDDERS

D1. Requests for Clarification. Questions about this IFB may be addressed in writing to [email protected] until 3:00 p.m. EST on October 12, 2017. Inquiries that result in material clarification to the IFB will be posted periodically on WMATA’s website for this IFB, along with the clarifications, but in no event later than 5:00 p.m. EST on October 19, 2017.

D2. Bid Submissions. Each Bid with proper Bid Deposit and required documentation

applying to this sale must be addressed to the “WMATA Office of Real Estate and Parking” and delivered to the following address either in person, by mail, or express delivery not later than 3:00 p.m. EST on November 17, 2017.

Washington Metropolitan Area Transit Authority Office of Real Estate and Parking 600 Fifth Street N.W. Washington, DC 20001 Attn: Rosalyn Doggett, Senior Real Estate Advisor

The name and address of the Bidder should be shown in the upper left corner of the Bid envelope, and the invitation number, the date and the phrase “Bid for Real Property” should be shown in the lower left corner of the envelope. No responsibility will attach to any officer of WMATA for failure to open a Bid not properly addressed and identified.

When hand-delivering a Bid, Bidders should enter WMATA’s headquarters building (at the address above) and request that the receptionist call either: Joyce Harris, Administrative Assistant in the Office of Real Estate and Parking, or Rosalyn Doggett, Senior Real Estate Advisor in the Office of Real Estate and Parking.

An electronic copy of the complete Bid package should also be emailed to [email protected] no later than 3:00 p.m. EST on November 17, 2017.

D3. Return of Bid Deposits. WMATA will mail out the Bid Deposits of all Bidders, except

those of the Initially Selected Bidder(s), within five (5) business days after notification to the Initially Selected Bidder(s). The Bid Deposits for the Initially Selected Bidder(s) will be held until (i) Closing under Option A with or without an executed Environmental Escrow Agreement or (ii) under Option B, environmental negotiations are concluded under Section A11 above, and WMATA, and the Successful Bidder have executed a Purchase and Sale Agreement, with or without an attached Environmental Escrow Agreement. Any remaining Bid Deposit from an unsuccessful Bidder will be mailed out within five (5) business days thereafter. The Bid Deposit from the Successful Bidder will be retained per Section A12 or A13, as applicable.

D4. Bid Form.

a) Bids must be submitted on the Bid Form attached to this IFB, and all information and


certifications called for therein must be furnished. Additional downloadable copies of this IFB and accompanying forms are posted on WMATA’s website for this IFB. Bids submitted which fail to furnish all information required may be rejected.

b) Bids must be responsive to this IFB. Any Bid that changes, counters, is inconsistent

with or otherwise modifies (directly or indirectly) any provision of this IFB runs the risk of being rejected as nonresponsive. Without limiting the foregoing, Bidders should NOT submit their Bids in the form of letters of intent, term sheets or any other contractual form, binding or nonbinding. As stated in Section C11, this IFB is itself the basic contract for Option A and together with the Bid Form initially or finally accepted by WMATA constitutes the entire agreement between WMATA and the Bidder. For Option B, this IFB controls until execution of a Purchase and Sale Agreement whereupon the Purchase and Sale Agreement becomes the basic contract document.

c) Bids must be filled out legibly with all erasures, strikeovers, and corrections initialed

by the person signing the Bid, and the Bid must be manually signed. d) Negligence or error on the part of the Bidder in preparing the Bid confers no right for

modification of the Bid after it has been accepted.

D5. Bid Executed on Behalf of Bidder.

a) Attorney or Agent: A Bid may be executed by an attorney or agent on behalf of the Bidder if the Bid Form is accompanied by an authenticated copy of the attorney’s or agent’s power of attorney or other evidence of authority to act on behalf of the Bidder.

b) Corporation: If the Bidder is a corporation, the Bidder will submit its certificate of

incorporation filed with the applicable state, along with a certificate of good standing from the state and a corporate resolution authorizing the Bid and name(s) of corporate employee(s) with authority to execute Bid documents on behalf of the corporation.

c) Partnership or Limited Liability Company: If the Bidder is a partnership or limited

liability company, the Bidder will submit its certificate of limited partnership or organizational agreement filed with the applicable state, along with a certificate of good standing and an authorization of the Bid by the partners or members that also specifies the partners(s) or member(s) with authority to execute Bid documents on behalf of the partnership or the limited liability company.

d) Other Entity: If the Bidder is any other type of entity, the Bidder will submit a copy

of the agreement creating the entity and an authorization of the Bid specifying names(s) of the individual(s) with authority to execute Bid documents on behalf of the entity.

D6. Bid Deposit. Each Bid must be accompanied by a Bid Deposit. See Section A12 for

instructions.


D7. Waiver of Informalities or Irregularities. WMATA may, at its election, waive any minor informality or irregularity in Bids received.

D8. Notice of Acceptance or Rejection. Notice by WMATA of acceptance or rejection of a

Bid will be deemed to have been sufficiently given when e-mailed to the Bidder, or his/her duly authorized representative, at the address on the Bid Form. WMATA’s processing of a Bid Deposit will not, in itself, constitute acceptance of the Bidder's offer. WMATA reserves the right to reject any or all Bids or portions thereof.


BID FORM IFB 18-01: WMATA PROPERTY FOR SALE 600 NORTH ROYAL STREET, ALEXANDRIA, VIRGINIA 22314

TO: Washington Metropolitan Area Transit Authority

Office of Real Estate and Parking 600 Fifth Street, N.W. Washington, DC 20001

Attention: Rosalyn Doggett, Senior Real Estate Advisor SUBJECT TO: The terms and conditions of the Invitation for Bids; Property Information; General Terms of Sale; and Instructions to Bidders, all of which are incorporated as part of this Bid Form. The undersigned Bidder hereby offers and agrees, if this Bid is accepted, to purchase the Property at the Purchase Price entered below and in accordance with the terms previously referenced in this paragraph. The Initial Bid must be accompanied by a Bid Deposit and the evidence of existence and authority identified in the Instructions to Bidders, Section D5. The Bid Deposit must be in the form of a certified check, company check, or cashier’s check. All checks are to be made payable to the “Washington Metropolitan Area Transit Authority”. Bidders should indicate below (by checking the appropriate boxes) whether they are proposing under Option A, or Option B, or both:

OPTION A: “QUICK CLOSE” Waives Due Diligence Period

Requires Due Diligence Period

Requires an Environmental Escrow Account Density Bonus, if any, post-Closing: $ ______________ per gross FAR

square foot if DSUP approval exceeds _______________ gross FAR square feet

Purchase Price: $ __________________________

Closing Date:

OPTION B: PURCHASE AGREEMENT Waives Due Diligence Period

Requires Due Diligence Period

Requires an Environmental Escrow Account


Purchase Price: $ __________________________

Option Fee: $ __________________________ Density Bonus: $ ______________ per gross FAR square foot if DSUP approval exceeds _______________ gross FAR square feet

Outside Closing Date: Enclosed Bid Deposit in the amount: Two Hundred Thousand Dollars ($200,000) Bidder represents that Bidder operates as:

An individual: _______________

A partnership formed in the state of and consisting of the following partners: A limited liability company formed in the state of and having the following members: A corporation incorporated in the state of and having the following shareholders: A trustee or an agent with recorded power of attorney acting for:

Name of Bidder (if an entity): Signature of Bidder: Date:

Name: Title: Address: City/State/Zip: Telephone: E-mail: Signature of WMATA indicating acceptance of Initially Selected Bid: ____________________________________ Date: ______________ Director, Real Estate and Parking


Submission of information for the Tabs below is required and must be attached to and as part of the Bidder’s Bid Form. If offering a Bid under Option A, Bidders must submit information required under Tabs 1, 4, 5 and 6 (and may choose to omit Tabs 2, and 3). If offering a Bid under Option B, Bidders must submit a complete package with all Tabs, 1 through 6. Tab 1: Financial Capacity Provide reference letters from at least three (3) equity sources and/or three (3) financial institutions attesting to the Bidder’s creditworthiness and ability to secure the funds to acquire the Property for the proposed Purchase Price. At least one (1) reference must be from a financial institution. Additional information, such as Bidder’s balance sheets, income statement and sources and uses of funds statement for Bidder’s past three (3) fiscal years will be accepted as supplements. Tab 2: Previous Projects Describe three (3) recent and comparable projects that the Bidder has successfully completed. Identify the sources and amounts of debt and equity capital raised for the identified projects. Tab 3: Schedule Attach a brief schedule showing start and end dates as applicable from the date of WMATA’s acceptance of the Successful Bidder for:

a. Closing after the Due Diligence Period (if applicable) b. DSUP approval (if applicable) c. Closing after DSUP approval (if applicable)

Tab 4: Relationships with WMATA Identify any past, current or anticipated relationships of any member of development team with WMATA. If none, write “None”. Disclose any actual or appearance of a conflict of interest. If none, write “None”. Tab 5: Litigation with WMATA Identify any past or ongoing litigation, or known threatened litigation, with WMATA. If none, write “None”. Tab 6: Bidder’s Representations By submitting its Bid, Bidder affirmatively represents to WMATA that neither Bidder nor any partner, member, shareholder, officer, director, manager or other person with management or supervisory responsibilities or who is otherwise in a position to control or significantly influence Bidder’s activities or finances (each a “Principal”):

a. Is/are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from an award of contracts by any governmental entity.

b. Has/have not within the past ten (10) years been convicted of or had a civil

judgment rendered against it for: commission of fraud; a criminal offense in connection with obtaining, attempting to obtain, or performing a contract or subcontract with any governmental entity; violation of antitrust statutes relating to


the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating criminal tax laws, or receiving stolen property. c. Is/are not presently indicted for or otherwise criminally or civilly charged by a governmental entity with commission of any of the offenses enumerated in the previous paragraph. d. Is/are not in arrears or default of payment of any money or obligation of a value greater than Three Thousand Dollars ($3,000) to a governmental entity. e. Has/have no adjudicated violations nor has paid penalties during the past ten (10) years relating to the housing and building laws, regulations, codes and ordinances of any governmental entity. f. During the past ten (10) years has/have not had a license revoked that was issued in accordance with the housing, building or professional licensing laws, regulations, codes and ordinances of any governmental entity. g. Has/have not employed or retained any company or persons (other than a full- time, bona fide employee working solely for it) to solicit or secure a ground lease or fee conveyance of the Property from WMATA. h. Has/have not paid or agreed to pay, and shall not pay or give, any company or person (other than a full-time, bona fide employee working solely for it) any fee, commission, percentage, or brokerage fee contingent upon or resulting from the award of a ground lease or fee conveyance of the Property from WMATA. i. To Bidder’s knowledge, has/have employed or been affiliated with any person or entity currently employed by WMATA, or employed by WMATA within the past twelve (12) months, or with material input into the matters covered by the proposed fee conveyance of the Property and employed by WMATA at any time in the past, who has provided any information to it/them that was not also available to all other persons who responded to the IFB, nor does such a person have any financial interest in Bidder, nor has such a person provided any assistance to Bidder or its Principals or any parent, subsidiary or affiliated entities in responding to this IFB, nor will such a person benefit financially from the any appreciation in land value or development contemplated by this fee conveyance. j. Has/have offered or given gratuities or will offer or give gratuities (in the form of entertainment, gifts or otherwise) to any director, officer or employee of WMATA with the view toward securing favorable treatment in the approval of Bidder as a contract purchaser or in the negotiation, amendment or performance of any purchase contract or similar document. If Bidder cannot comply with the first paragraph of this Tab 6, provide an explanation as to why. Bidder agrees to furnish any additional information requested by WMATA relating to Tab 6.


BEST AND FINAL OFFER FORM

IFB 18-01: WMATA PROPERTY FOR SALE 600 NORTH ROYAL STREET, ALEXANDRIA, VIRGINIA

TO: Washington Metropolitan Area Transit Authority

Office of Real Estate and Parking 600 Fifth Street, N.W. Washington, DC 20001

Attention: Rosalyn Doggett, Senior Real Estate Advisor SUBJECT TO: The terms and conditions of the Invitation for Bids; Property Information; General Terms of Sale; Special Terms of Sale; and Instructions to Bidders, all of which are incorporated as part of this Bid Form. The undersigned Bidder hereby offers and agrees, if this Bid is accepted, to purchase the Property at the Purchase Price entered below and in accordance with the terms previously referenced in this paragraph.

OPTION A: “QUICK CLOSE”

Purchase Price: $ __________________________

Amount of Purchase Price to be placed in Environmental Escrow Account (if “0”, write in “0”) : $ __________________________

Closing Date: Density Bonus, if any: $________________ gross FAR square foot if DSUP approval exceeds _________________gross FAR square feet

OPTION B: PURCHASE AGREEMENT

Purchase Price: $ __________________________

Amount of Purchase Price to be placed in Environmental Escrow Account (if “0”, write in “0”) : $ __________________________

Option Fee: $ __________________________ Density Bonus: $ ______________ per gross FAR square foot if DSUP approval exceeds _______________ gross FAR square feet

Outside Closing Date:


Signature of Bidder: Date:

Name: Title: Address: City/State/Zip: Telephone: E-mail: Signature of WMATA indicating acceptance of Initially Selected Bid: ____________________________________ Date: ______________ Director, Real Estate and Parking


ATTACHMENT 1: SITE LOCATION Site Address: 600 North Royal Street, Alexandria, Virginia 22314


ATTACHMENT 2: VIEW OF BUS GARAGE (LOOKING NORTH)


ATTACHMENT 3: WMATA REAL ESTATE PERMIT-APPLICATION AND FORM The relevant WMATA real estate permit documents may be found on WMATA’s real estate website: www.wmata.com/realestate under the Permits & Forms portion of the webpage. https://www.wmata.com/about/business/real-estate/upload/LAND-Real-Estate-Permit-Application-Nov-2016.pdf https://www.wmata.com/about/business/real-estate/upload/LAND-Real-Estate-Permit-2017.pdf https://www.wmata.com/about/business/real-estate/upload/EXHIBIT-B-INSURANCE-SAMPLE-3-8-2017.pdf

http://www.wmata.com/realestate

https://www.wmata.com/about/business/real-estate/upload/LAND-Real-Estate-Permit-Application-Nov-2016.pdf

https://www.wmata.com/about/business/real-estate/upload/LAND-Real-Estate-Permit-Application-Nov-2016.pdf

https://www.wmata.com/about/business/real-estate/upload/LAND-Real-Estate-Permit-2017.pdf


ATTACHMENT 4: FORM OF ESCROW AGREEMENT FOR ENVIRONMENTAL REMEDIATION This Escrow Agreement for Environmental Remediation (“Agreement”), dated as of ____________, 20__, is among [__________________________________], a [____________________ corporation/limited liability company/limited partnership] (“Purchaser”), the Washington Metropolitan Area Transit Authority (“WMATA”), and [ Name of Escrow Agent/Title Insurance Company ], a _______________________ corporation (“Escrow Agent”). 1. Background. On or about ____________2017, WMATA issued Invitation for Bids 18-01

(“IFB”) in connection with its real property and improvements located at 600 North Royal Street in north Old Town Alexandria, also known as Tax Map 065.01-01-01 (the “Property”). Purchaser is the Successful Bidder under the IFB. Pursuant to the IFB, WMATA has agreed to sell, and Purchaser has agreed to purchase, the Property for the purchase price stated in the Purchaser’s Best and Final Offer Form as accepted by WMATA (the “Purchase Price”). Also, pursuant to the IFB, WMATA has agreed to reserve a portion of the Purchase Price to pay for certain incremental costs incurred in connection with the remediation of site contamination.

2. Defined Terms. Definitions of certain defined terms are provided throughout the text of

this Agreement. Defined terms used in the IFB have the respective meanings assigned to them in the IFB when used in this Agreement, unless another meaning is assigned in this Agreement. The defined terms listed below have the respective meanings assigned to them below.

a. “Escrowed Funds” means the funds held in the Escrow Account from time to

time in accordance with the terms of this Agreement and any investments in which any of such funds may be invested.

b. “Permitted Investments” means U.S. Dollar denominated, readily available

instruments consisting of one or more of the following: (a) interest bearing transaction accounts in a Qualifying Bank, including, without limitation, money market accounts; (b) time deposits, or certificates of deposit, in a Qualifying Bank, in each case having a maturity of one year or less; (c) securities that, at the date of investment, are direct obligations of, or obligations fully guaranteed or insured by, the United States or any agency or instrumentality of the United States having a maturity of not more than one year from the date of purchase; (d) other investments having a maturity of three months or less rated at least “A” by Moody’s Investor’s Services, Inc. or “A2” by Standard & Poor’s Ratings Group; and (e) money market mutual funds with assets of at least $500,000,000, substantially all of the assets of which consist of obligations of the type included in clauses (a) through (d) above. Purchaser and WMATA acknowledge that certain of the Permitted Investments may not be protected by the insurance afforded by the Federal Deposit Insurance Corporation.


c. “Qualifying Bank” means a bank or trust company that (a) is organized as a banking association or corporation under the laws of the United States or any state thereof, or in the District of Columbia and has operations within the area served by WMATA (“WMATA Transit Zone”), (b) is subject to supervision or examination by federal, state or District of Columbia banking authorities, (c) has capital and surplus of not less than $250,000,000, and (d) has outstanding (or is a subsidiary of a bank holding company that has outstanding) any debt securities that are rated at least “A” by Moody’s Investors Services, Inc. or “A2” by Standard & Poor’s Ratings Group.

3. Deposit of Funds. Simultaneously with the execution of this Agreement, Purchaser is

depositing ______________________________________Dollars ($___________) with the Escrow Agent for deposit into the Escrow Account. Escrow Agent acknowledges receipt of such funds. Escrow Agent agrees to deposit such funds into the Escrow Account.

4. Escrow Account. There is hereby established with Escrow Agent an account (the “Escrow

Account”) to be maintained and administered strictly in accordance with this Agreement. Escrow Agent agrees to maintain the Escrow Account as a separate account, identified and, if necessary, segregated in such manner so as to constitute trust funds held for the benefit of Purchaser and WMATA pursuant to this Agreement and not subject to claims of creditors of Escrow Agent, WMATA or the Purchaser. Within ten (10) days after the end of each month, Escrow Agent shall provide WMATA and Purchaser with a monthly statement of the revenue received and funds disbursed from the Escrow Account along with the month-ending balance of the Escrow Account. Escrow Agent agrees to hold all Escrowed Funds in escrow to the credit of the Escrow Account and to invest and disburse such Escrowed Funds strictly in accordance with this Agreement. While held by Escrow Agent, Escrowed Funds will be invested in Permitted Investments as directed by Purchaser. Earnings from any investment of Escrowed Funds will be reported under the taxpayer identification number for Purchaser, which is ________. In no event shall Escrow Agent incur any liability for levies by taxing authorities based upon the taxpayer identification number provided to Escrow Agent and used to establish the Escrow Account. Earnings from investment of Escrowed Funds will be added to and become part of the Escrowed Funds and will be credited to the Escrow Account when and as received by Escrow Agent. If either Purchaser or WMATA receives any earnings from investment of Escrowed Funds, such party shall promptly turn over such earnings to Escrow Agent for deposit into the Escrow Account. Escrow Agent shall have no liability in the event of failure, insolvency or inability of the Qualifying Bank to pay any funds or accrued interest upon demand or withdrawal.

5. Withdrawal of Escrowed Fund – Purchaser. Purchaser may draw upon the Escrowed

Funds, not more than once per month, to reimburse itself for up to ______________________________________Dollars ($___________) for monies Purchaser has expended to pay for expenses that are directly attributable to the following activities: for excavation to a depth of one level only (a) the incremental cost of disposal of petroleum-contaminated soil during excavation at the site (e.g., the cost above normal, non-contaminated soil disposal), (b) removing underground storage tanks (“UST”) from the site, (c) the incremental cost of providing dewatering treatment for petroleum contaminated water at the site (e.g., the cost above providing dewatering treatment for non-petroleum


contaminated water), and, additionally, (d) asbestos removal prior to building demolition. Withdrawals by Purchaser are subject to Section 7 below.

In order to obtain a disbursement of Escrowed Funds, Purchaser, within eight (8) years from the date of this Agreement for Option A or three (3) years from the date of this Agreement for Option B, shall submit to Escrow Agent, with a copy to WMATA, a written request (a “Purchaser Disbursement Request”) which states (x) the amount of Escrowed Funds to be disbursed and (y) how much of the Escrowed Funds are being requested pursuant to each of Sections 5(a), 5(b) or 5(c) of this Agreement. The Purchaser Disbursement Request shall be accompanied by paid invoices for actual costs incurred by Purchaser for incremental development costs associated with subsurface petroleum contamination, dewatering and asbestos removal at the site and each of the following items:

(i) Copies of laboratory analytical results and chains of custody (i.e. lab

reports) for fill/soil, liquids, sludge, or other wastes to document disposal as a contaminated material, along with a sample location map with horizontal and vertical locations,

(ii) Copies of results from Total Petroleum Hydrocarbon (“TPH”) field test

kits for fill/soil, along with sample results by truck number, (iii) A spreadsheet to document soil sample results, test kit results, truck

number, bill of lading and disposal weight ticket, (iv) Copies of soil disposal manifests, or bills of lading, to include weight

tickets from disposal facility, as well as a description of, and justification for, the incremental cost to properly dispose of contaminated soil,

(v) Copies of tank disposal manifests or bills of lading, (vi) Copies of Tank Closure Report and Site Assessment Report submitted to

the Virginia Department of Environmental Quality (“VDEQ”), including permits, inspection records/reports, regulatory directives, soil and/or groundwater samples collected, and completed UST Notification Form,

(vii) Copies of discharge permit for dewatering, approved dewatering treatment

plan and equipment list, and discharge compliance sample results/reports, (viii) Copies of completed asbestos waste disposal manifests and copies of air

monitoring results for final air clearance for each abatement area, and (ix) Reports from third-party construction oversight firms (e.g., environmental

technician, industrial hygienist). 6. Withdrawal of Escrowed Funds – WMATA. WMATA may draw against the Escrow

Account to pay: (a) costs incurred by WMATA in connection with its environmental remediation or decontamination of the Property in response to a directive from a regulatory agency to take corrective action, or (b) fines, penalties or any other charges imposed upon


it by a regulatory agency in connection with the environmental status or condition of the site. Subject to Section 7, Escrowed Funds will be available to WMATA upon WMATA’s submission to Escrow Agent, with a copy to Purchaser, of a written request which states the amount of Escrowed Funds to be disbursed, accompanied by copies of invoices or other evidence establishing the amount of the costs.

7. Objections to Withdrawals. If WMATA has any objection to a request by Purchaser for

disbursement of Escrowed Funds, or if Purchaser has any objection to a request by WMATA for disbursement of Escrowed Funds, then such party (the “Objecting Party”) shall notify the other party and the Escrow Agent within fifteen (15) business days after receipt of the disbursement request. Any such objection must state whether the Objecting Party believes no disbursement of Escrowed Funds should be made or the portion of the requested Escrowed Funds that the Objecting Party believes should not be disbursed, in either case specifying the reason for the Objecting Party’s objection in reasonable detail. If a party makes no objection to a disbursement request in accordance with this Section 7, then as soon as possible following the fifteenth (15th) business day after its receipt of the disbursement request the Escrow Agent shall disburse from the Escrow Account to the party submitting the disbursement request the amount stated in the disbursement request. If a party (as an Objecting Party) makes a timely objection to a disbursement request, Escrow Agent shall pay from the Escrow Account only the portion of the requested Escrowed Funds, if any, to which no objection is made, and the disputed portion of the requested disbursement shall be made only when the dispute is resolved.

8. Surplus Escrowed Funds. Any Escrowed Funds remaining in the Escrow Account after

eight (8) years from the date of this Agreement for Option A or three (3) years from the date of this Agreement for Option B will become the property of WMATA and will be promptly disbursed to WMATA.

9. Escrow Agent Protective Provisions. If Escrow Agent is uncertain as to any matter relating

to the administration of the Escrow Account, Escrow Agent may seek an opinion of counsel from an attorney of its choice, and Escrow Agent will be fully protected in relying on such opinion absent bad faith. Escrow Agent will not be liable for any action or omission in connection with administration of the Escrow Account, except in the case of its own gross negligence, bad faith, willful misconduct or breach of the express terms of this Agreement. Escrow Agent may assume the genuineness of any document delivered to it and the authority of any person with whom it deals, absent knowledge to the contrary.

10. Replacement of Escrow Agent. Escrow Agent may resign as escrow agent at any time for

any reason or for no reason; provided that Escrow Agent shall continue to serve as escrow agent until its successor is appointed. Escrow Agent may be removed as escrow agent at any time, for any reason or for no reason, by action of Purchaser and WMATA. Upon the resignation or removal of Escrow Agent, a successor escrow agent may be appointed by agreement of Purchaser and WMATA. If Escrow Agent resigns, and a replacement escrow agent is not appointed within thirty (30) days, Escrow Agent may petition any court of competent jurisdiction for appointment of a successor escrow agent.


11. Escrow Fees. Escrow Agent has received various fees in connection with its involvement in the transfer of the Property to Purchaser. Those fees include full compensation for Escrow Agent's services under this Agreement. If a successor Escrow Agent is designated in accordance with Section 10, Purchaser will be responsible for the fees of the successor Escrow Agent.

12. Notices. Any notice or other communication to any party given under this Agreement will

be effective only if in a writing delivered to the addressees at the addresses as specified in Schedule 1 to this Agreement or to such other addresses and addressees specified by the applicable party by written notice given in the manner specified in this Section 12 and actually received by the party sending the notice or other communication. Any notice or other communication will be deemed received only upon delivery to the applicable addressee at the address provided for in this Section 12 or rejection of delivery at such address. Notice may be given by electronic mail, so long as a confirming copy is sent by one of the other methods authorized by this Section 12, and confirmation of transmission generated by the sender’s equipment will be prima facie evidence of receipt. A notice sent by electronic mail will be effective when delivered by such means, not when the confirming copy is received.

13. Representations. Each party to this Agreement represents and warrants to each other party

to this Agreement as follows: (a) it is duly formed and validly existing under the laws of the jurisdiction of its formation with power to enter into this Agreement and to perform its obligations under this Agreement; (b) the execution, delivery and performance of this Agreement by it has been duly authorized by all necessary action on the part of it and its constituent owners; (c) no consent, waiver, approval or authorization of, or filing, registration or qualification with, or notice to, any governmental authority or any other person is required to be made, obtained or given by it in connection with the execution and delivery of this Agreement, except for those that have been obtained prior to the execution of this Agreement; (d) the execution, delivery and performance of this Agreement by it will not violate or conflict with, or with or without notice or the passage of time or both, result in a breach of or an “event of default” under, any indenture, mortgage, loan agreement or other agreement or instrument to which it is a party or by which it or any of its properties is bound, any law applicable to it or any of its properties, or any judgment, order or decree of any court or other governmental agency entered against it or applicable to any of its properties; and (e) this Agreement has been duly executed and delivered by it and its constitutes legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or reorganization laws or by applicable principles of equity.

14. No Effect on IFB. The rights allowed to WMATA and Purchaser under this Agreement do

not limit or affect their respective rights and obligations under the IFB. The rights and remedies afforded to the parties by this Agreement are cumulative of all other rights and remedies allowed for enforcement of obligations under the IFB, and the parties may exercise all rights and remedies allowed it in such order. Every right and remedy may be pursued separately, successively or together and may be exercised from time to time as often as may be deemed expedient.


15. Dispute Resolution. All disputes shall be resolved by legal or equitable proceedings or actions filed in the United States District Court for the Eastern District of Virginia.

16. Benefitted Person; Assignment. This Agreement will be binding upon and will inure to the

benefit of the parties and their respective successors and permitted assigns. Subject to Section 10, no party may assign this Agreement or rights under this Agreement, or any rights in respect of the Escrow Account or Escrowed Funds, without the approval of Purchaser and WMATA. This Agreement is intended to benefit only the parties, and no other person (including any creditor of a party to this Agreement) will be entitled to the benefit of the provisions of this Agreement or the escrow established by this Agreement, nor will any such other person be permitted to enforce the provisions of this Agreement.

17. Interpretation. When the context so requires in this Agreement, words of one gender

include one or more other genders, singular words include the plural, and plural words include the singular. Use of the words “include” and “including” are intended as an introduction to illustrative matters and not as a limitation. The word “person” includes individuals, entities and governmental authorities. The word “governmental authority” is intended to be construed broadly and includes governmental agencies, instrumentalities, bodies, boards, departments and officers and individuals acting in any official capacity. The word “laws” is intended to be construed broadly and includes all codes, statutes, rules, regulations, pronouncements, case law, requirements, orders, directives, decisions, decrees, judgments and formal or informal guidance or interpretations of any court or governmental authority. Any reference to a document in this Agreement includes all addenda, supplements and riders to such document, as well as all amendments and other modifications of the document, including amendments and modifications made in the future, in each case whether or not such materials are specifically referenced. References in this Agreement to “Sections” are to the numbered subdivisions of this Agreement, unless another document is specifically referenced. The Section headings contained in this Agreement are for convenience of reference only and are not intended to delineate or limit the meaning of any provision of this Agreement or be considered in construing or interpreting the provisions of this Agreement.

18. Miscellaneous. This Agreement embodies the entire agreement and understanding among

the parties with respect to its subject matter and supersedes all prior agreements and understandings, written and oral, among them related to that subject matter; provided that as between Purchaser and WMATA, the IFB will continue to control and nothing in this Agreement will be construed to limit its terms or the respective rights and obligations of Purchaser or WMATA under the IFB. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which, taken together, will constitute one instrument. The parties may execute different counterparts of this Agreement and, if they do so, the signature pages from the different counterparts may be combined to provide one integrated document. This Agreement will be governed by the laws of the Commonwealth of Virginia, without giving effect to principles of conflicts of law. This Agreement and the obligations of the parties under this Agreement may be amended, waived and discharged only by an instrument in writing executed by the party against which enforcement of the amendment, waiver or discharge is sought. The determination that any provision of this Agreement is invalid or unenforceable will not


affect the validity or enforceability of the remaining provisions or of that provision under other circumstances, and any invalid or unenforceable provision will be enforced to the maximum extent permitted by law. This Agreement shall be construed without regard to any presumption or other rule requiring construction against the party responsible for the drafting of this Agreement or the relevant portion of this Agreement.

Washington Metropolitan Area Transit Authority By: Name: Title: Director, Office of Real Estate and Parking

Approved as to form and legal sufficiency

By: Name: Title: Chief Counsel

Escrow Agent By: Name: Title: Purchaser By: Name: Title:


SCHEDULE 1: NOTICE ADDRESSES Washington Metropolitan Area Transit Authority Office of Real Estate and Parking 600 Fifth Street N.W. Washington, DC 20001 Attention: Director, Office of Real Estate and Parking

Emails: [email protected] [email protected]

with a copy to: Washington Metropolitan Area Transit Authority Office of the General Counsel 600 Fifth Street N.W. Washington, DC 20001 Attention: General Counsel

Emails: [email protected]

Purchaser: ________________________ ________________________ ________________________ ________________________

Email: __________________ with a copy to: ________________________ ________________________ ________________________ ________________________ Email: __________________

Escrow Agent: ____________________ Title Insurance Company ________________________ ________________________ ________________________ ________________________

Email: __________________


ATTACHMENT 5: TITLE TO PROPERTY Initially Selected Bidder or Successful Bidder, as applicable, shall deliver to WMATA not later than sixty (60) days after commencement of the Due Diligence Period, (i) a commitment for a title insurance policy (“Title Commitment”) from a reputable nationally recognized title insurance company or agent thereof (“Title Insurer”), (ii) a survey for the Property (the “Survey”) from a reputable surveyor licensed as such in the jurisdiction in which the Property is located showing the boundaries of the Property, the location of all visible improvements on the Property, the location of all easements, rights-of-way, flood plains and other encumbrances of record to the extent the same can be platted, the locations of any encroachments or potential encroachments that are visible, and the rights-of-way of all adjacent public streets, all compliant with current ALTA/ACSM-NSPS standards for Property surveys and certified to WMATA (and to Title Insurer and, at Bidder’s option, to Bidder and any third parties desired by Bidder) for purposes of reliance, (iii) copies of all matters of record listed in the Title Commitment, (iv) a metes and bounds description of the Land coinciding with the boundaries as shown on the Survey, and (v) written Notice (“Title/Survey Exception Notice”) of all title exceptions and matters shown in the Title Commitment or on the Survey as to which Bidder objects. Bidder’s failure to timely provide a Title/Survey Exception Notice shall be a waiver of Bidder’s right to object to any matters affecting the state of title, all of which shall be Permitted Title Exceptions (as hereinafter defined). A Right of Entry Agreement shall be required for any entry onto the Property or any improvements thereon to conduct non-invasive studies, examinations or investigations such as a survey or visual inspection. If Bidder has timely given a Title/Survey Exception Notice, WMATA shall notify Bidder in writing of its willingness to remove any matters referenced in the Title/Survey Exception Notice or to cause them to be insured over by Title Insurer (“WMATA Title Cure Notice”) not later than thirty (30) days following its receipt of the Title/Survey Exception Notice. The failure of WMATA to timely give a WMATA Title Cure Notice shall be deemed an election by WMATA not to remedy any such exceptions. WMATA’s failure to include in the WMATA Title Cure Notice a particular exception among those WMATA will cause to be remedied shall be deemed an election by WMATA not to remedy those objections that are omitted in the WMATA Title Cure Notice. If WMATA shall decline or be unwilling or shall be deemed to decline to remove or insure over any matters affecting title as to which Bidder objected in the Title/Survey Exception Notice, Bidder may, but shall not be required to, elect to terminate its Bid by notifying WMATA in writing and expressly declaring its Bid to be terminated, such notification to be given not later than the expiration of the Due Diligence Period. If Bidder timely gives such notice of termination, the Bid shall terminate upon the giving of such Notice, Bidder shall return to WMATA any due diligence information or material provided by WMATA, Bidder shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Bidder, and WMATA shall return the Bid Deposit to Bidder.


If Bidder does not timely notify WMATA of its election to terminate this IFB, Bidder shall be deemed to have waived any objection to title or survey existing as of the date of the later of the Title Commitment and the Survey, except for those matters set forth in the WMATA Title Cure Notice. All matters, objections and exceptions that do not give rise to title objections that WMATA has expressly undertaken to remove in the WMATA Title Cure Notice shall be “Permitted Title Exceptions.” In addition to the matters stated above, “Permitted Title Exceptions” also shall include: (i) all matters arising from the actions (or failures to act) of Bidder or anyone acting on behalf of Bidder and, (ii) other liens, encumbrances and defects in title arising from zoning, subdivision, building or land use ordinances, proffers, laws, regulations, restrictions or orders of any legal authority now or hereafter having or acquiring jurisdiction over the Property or over the use and improvement thereof. Anything to the contrary herein notwithstanding, WMATA is not obligated to address any Permitted Title Exception and Bidder shall not have any right to object to, or to terminate its Bid on account of, any Permitted Title Exception.


ATTACHMENT 6: FORM OF PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of this _____ day of _______________, 20__ (the “Effective Date”), by and between the Washington Metropolitan Area Transit Authority, a regional body corporate and politic (hereinafter referred to as “WMATA”), organized pursuant to Public Law 89-774, 80 Stat. 1324; Maryland Acts of General Assembly, Chapter 869-1965; Virginia Acts of Assembly, Chapter 2-1966; and Resolution of the District of Columbia Board of Commissioners adopted November 15, 1966 (as they may have been and may hereafter be amended, supplemented, replaced or otherwise modified, the “WMATA Compact”), and ____________________________________, a _________________ ____________________________ (“Purchaser”), collectively the “Parties.”

RECITALS:

A. WMATA is the owner of certain real property located at 600 North Royal Street in Alexandria, Virginia as more fully described on Exhibit A attached hereto and made a part hereof (the “Land”). B. The Land is not currently in use by WMATA except for temporary equipment storage. C. Purchaser was the Successful Bidder for the Land selected by WMATA pursuant to Invitation for Bids 18-01 (the “IFB”). D. WMATA desires to sell and Purchaser desires to purchase the Property (as hereinafter defined) on the terms and conditions hereinafter stated. E. WMATA and Purchaser are entering into this Agreement to allow Purchaser to pursue obtaining a Development Special Use Permit with Site Plan (“DSUP”) from the City of Alexandria. NOW, THEREFORE, in consideration of the foregoing, One Dollar ($1.00) in hand paid, the terms, conditions, agreements and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WMATA and Purchaser agree as follows: 1. Agreement to Sell and Purchase. WMATA agrees to sell and convey the Property, and

Purchaser agrees to purchase the Property, on the terms and conditions herein provided. 1.1 Term of Contract. This Agreement will remain in effect for up to [Bidder’s

proposed Outside Closing Date] months from the Effective Date (“Outside Closing Date”) whereupon it will automatically terminate without Notice by either Party unless both Parties agree in writing to extend the Outside Closing Date month by


month for up to six months for a monthly fee equal to Thirty Thousand Dollars ($30,000) per month (“Monthly Extension Fee”) payable in advance on the first day of each month.

2. The Property.

2.1 Defined. The property (the “Property”) which is the subject of this Agreement is:

2.1.1 the Land; and 2.1.2 all improvements, rights, privileges, and easements appurtenant to the

Land including, without limitation, all water rights, rights-of-way, roadways, utility facilities and other appurtenances used or to be used in connection with the beneficial use of the Land.

2.2 WMATA’s Rights to Use the Property until Closing. Until Closing (as

hereinafter defined), WMATA shall have the unrestricted right, but not the obligation, to use the Property and perform any work on the Land and with respect to the Property desired by WMATA in connection with WMATA’s ongoing operations.

3. Compensation

3.1 Purchase Price. The “Purchase Price” for the Property shall be __________________________________ Dollars ($_______________), payable to WMATA at Closing (as hereinafter defined) and subject to adjustments provided for elsewhere in this Agreement.

3.2 Additional Compensation to WMATA. If Purchaser receives permission from

the City of Alexandria to construct more than _____ square feet (the “Base Density”) prior to Closing, Purchaser shall add to the Purchase Price at Closing or at such later time as the additional density is approved by the City of Alexandria and such approval is no longer legally challengeable the product of the number of square feet of approved building density in excess of the Base Density multiplied by $__________ per additional square foot (“Density Bonus Entitlement Compensation”).

3.3 Option Fee to WMATA. In consideration of WMATA granting Purchaser the

opportunity to pursue obtaining a DSUP from the City of Alexandria before Closing, Purchaser shall pay WMATA a non-refundable annual payment of __________________ Dollars ($ ____________) from the Effective Date until Closing (the “Option Fee”). The parties acknowledge and agree that the Bid Deposit of Two Hundred Thousand Dollars ($200,000) paid to WMATA under the terms of the IFB shall be credited to toward the Option Fee for the first year. Thereafter, the Option Fee shall be paid to WMATA within two (2) business days of each one-year anniversary of the Effective Date. Purchaser may pay the


Option Fee by wire transfer, by bank check or by certified check. The Option Fee is not refundable, is earned by WMATA upon the execution of this Agreement, and is not part of and is in addition to the Purchase Price. Failure to pay the Option Fee on a timely basis shall give WMATA the right to terminate this Agreement by Notice to Purchaser at any time before the Option Fee is paid to WMATA. If WMATA timely gives such Notice of termination, this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14.

4. Due Diligence Period and Environmental Remediation.

Purchaser acknowledges that it is familiar to its satisfaction with the Property, having completed its Due Diligence regarding environmental matters pursuant to the IFB within the Due Diligence Period afforded by the IFB. No additional study period or other opportunity to perform any invasive site investigation work, studies, tests, examinations, analyses, inspections or other investigations of the Property is granted by this Agreement (including, without limitation, environmental studies, feasibility studies, engineering studies, drainage and flood plain analyses, and soils tests). Purchaser’s obligation to proceed to Closing is not subject to any contingency or conditions that the Property be in any particular condition as of the date of Closing, except as provided below in this section. 4.1 [Optional] Environmental Escrow. Purchaser will, at Closing, enter into an

Escrow Agreement for Environmental Remediation (“Escrow Agreement”) in the form attached as Exhibit E to this Agreement, and, pursuant to the Escrow Agreement, deposit into an Escrow Account, as defined in the Escrow Agreement, the sum of __________________________ Dollars ($____________) to be disbursed in accordance with the Escrow Agreement for the purposes of environmental remediation.

4.2 At Closing, the amount of the deposit into the Escrow Account shall be credited

against the Purchase Price.

5. Title to Property.

5.1 Conveyance at Closing. At Closing, WMATA shall convey fee simple title to the Property, free and clear of any and all liens, encumbrances or defects except for the Permitted Title Exceptions (as hereinafter defined). The Purchaser acknowledges that it has negotiated an acceptable Title Commitment pursuant to Section 5.2 below as of the Effective Date of this Agreement. However, if an updated survey or title search reveals any liens, encumbrances or title defects not existing as of the date of the initial Title Commitment (“Post- Title Commitment Exception”), Purchaser shall give Notice to WMATA of the Post-Title


Commitment Exception and a copy of the document or matter to which Purchaser objects not later than the first to occur of the date set forth for Closing pursuant to Section 10 or seven (7) days after Purchaser obtains knowledge of the Post-Title Commitment Exception (“Post-Title Commitment Title/Survey Exception Notice”). The parties shall thereafter proceed under Section 5.2 as if the Post-Title Commitment Title/Survey Exception Notice was a Title/Survey Exception Notice, except that no Notice period shall extend beyond the date set for Closing and the Closing date shall not be postponed unless the Parties so agree in their sole and absolute discretions.

5.2 Addressing Title and Survey Exceptions.

5.2.1 Prior to the Effective Date, Purchaser shall have delivered to WMATA: (i) a commitment for a title insurance policy (“Title Commitment”) from a reputable nationally recognized title insurance company or agent thereof (“Title Insurer”); (ii) a survey for the Land (the “Survey”) from a reputable surveyor licensed as such in the jurisdiction in which the Land is located showing the boundaries of the Land, the location of all visible improvements on the Land, the location of all easements, rights-of-way, flood plains and other encumbrances of record to the extent the same can be platted, the locations of any encroachments or potential encroachments that are visible, and the rights-of-way of all adjacent public streets, all compliant with current ALTA/ACSM-NSPS standards for land surveys and certified to WMATA (and to Title Insurer and, at Purchaser’s option, to Purchaser and any third parties desired by Purchaser) for purposes of reliance; (iii) copies of all matters of record listed in the Title Commitment; (iv) a metes and bounds description of the Land coinciding with the boundaries as shown on the Survey; and (v) written Notice (“Title/Survey Exception Notice”) of all title exceptions and matters shown in the Title Commitment or on the Survey as to which Purchaser objects. Purchaser’s failure to timely provide a Title/Survey Exception Notice shall be a waiver of Purchaser’s right to object to any matters affecting the state of title, all of which shall be Permitted Title Exceptions (as hereinafter defined).

Any entry onto the Land or any improvements thereon to conduct non-

invasive studies, tests, examinations or investigations, such as the Survey and visual inspections, shall be subject to the terms of the Right of Entry Agreement attached hereto as Exhibit D as if the same was signed and incorporated herein by the signing of this Agreement.

5.2.2 If Purchaser has given a Title/Survey Exception Notice, WMATA shall

give Notice to Purchaser of its willingness to remove any matters referenced in the Title/Survey Exception Notice or to cause them to be insured over by Title Insurer (“WMATA Title Cure Notice”) not later than thirty (30) days after WMATA has received the Title/Survey Exception Notice.


5.2.3 The failure of WMATA to timely give a WMATA Title Cure Notice shall

be deemed an election by WMATA not to remedy any such exceptions. 5.2.4 WMATA’s failure to include in the WMATA Title Cure Notice a

particular exception among those WMATA will cause to be remedied shall be deemed an election by WMATA not to remedy those objections that are omitted in the WMATA Title Cure Notice.

5.2.5 If WMATA shall decline or be unwilling or shall be deemed to decline to

remove or insure over any matters affecting title as to which Purchaser objected in the Title/Survey Exception Notice, Purchaser may, but shall not be required to, elect to terminate this Agreement by giving Notice to WMATA expressly declaring this Agreement to be terminated, such Notice to be given not later than thirty (30) days after the giving of the WMATA Title Cure Notice or, if no WMATA Title Cure Notice was given, then thirty (30) days after WMATA’s deadline for doing so pursuant to Section 5.2.2. If Purchaser timely gives such Notice of termination, this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14.

5.2.6 If Purchaser does not timely give such Notice to WMATA of its election

to terminate this Agreement, Purchaser shall be deemed to have waived any objection to title or survey existing as of the date of the later of the Title Commitment and the Survey, except for those matters set forth in WMATA’s Title Cure Notice.

5.2.7 All matters, objections and exceptions that do not give rise to title

objections that WMATA has expressly undertaken to remove in the WMATA Title Cure Notice shall be “Permitted Title Exceptions”. In addition to the matters stated above, “Permitted Title Exceptions” also shall include (i) all matters arising from the actions (or failures to act) of Purchaser or anyone acting on behalf of Purchaser and (ii) other liens, encumbrances and defects in title arising from zoning, subdivision, building or land use ordinances, laws, regulations, proffers, restrictions or orders of any legal authority now or hereafter having or acquiring jurisdiction over the Property or over the use and improvement thereof. Anything to the contrary herein notwithstanding, WMATA is not obligated to address any Permitted Title Exception and Purchaser shall not have any right to object to, or to terminate this Agreement on account of, any Permitted Title Exception.


6. WMATA’s Representations and Warranties. WMATA represents and warrants to Purchaser as of the Effective Date as follows:

6.1 Organization. WMATA is a regional body, corporate and politic, organized

pursuant to the WMATA Compact. 6.2 Power and Authority. Subject to (i) a compliance determination by the Federal

Transit Administration (“FTA”) as required under Section 9.8 below and (ii) the approval of WMATA’s Board of Directors, WMATA has the power and authority to sell and convey the Property and to execute this Agreement and has taken the actions required for the execution and delivery of this Agreement.

6.3 No Joinder Required. Subject to the concurrence by the FTA as provided in

Section 9.8, the joinder of no person or entity other than WMATA is necessary in order to convey the Property to Purchaser at Closing in accordance with the terms and conditions of this Agreement.

6.4 No Challenges. To WMATA’s Knowledge, there is not pending any litigation or

governmental proceeding preventing the consummation of the sale of the Property by WMATA to Purchaser, or any threatened litigation or governmental proceeding that, if determined adversely, would declare illegal, invalid or non-binding any of the material covenants or obligations of WMATA set forth in this Agreement. The representation and warranty above made to the knowledge of WMATA shall not be deemed to imply any duty of inquiry. “To WMATA’s Knowledge” shall mean and refer to only the actual knowledge of the undersigned representative of WMATA, and shall not be construed to refer to the knowledge of any other officer, director, agent, employee or representative of WMATA, or any affiliate of WMATA, or to impose upon the undersigned any duty to investigate the matter to which such actual knowledge or the absence thereof pertains, or to impose upon the undersigned any individual personal liability.

6.5 No Violation. The execution, delivery and performance of this Agreement does

not, and the consummation of the transactions contemplated hereby will not, violate any provision of any agreement, instrument, order, judgment or decree or, To WMATA’s Knowledge, any applicable law or regulation to which either WMATA is a party or by which it or any of its assets is bound.

6.6 Not Foreign Person. WMATA is not a “foreign person” within the meaning of

the Internal Revenue Code. 6.7 Utilities. To WMATA’s Knowledge all usual services and utilities are available

to the Land. However, Purchaser, at its own risk, is required to verify services and utilities and to make all determinations as to whether such services and utilities can be used by Purchaser.

Except for the above representations and warranties, and except for any faults, defects


and other conditions on or affecting the Property which WMATA is required to remedy, cure or address under this Agreement, the Property will be purchased and sold “AS IS,” “WHERE IS,” and “WITH ALL FAULTS AND LATENT DEFECTS.” All warranties of marketability or merchantability, habitability, fitness for a particular purpose, and any other warranties are expressly disclaimed.

7. Purchaser’s Representations and Warranties. Purchaser represents and warrants to WMATA as of the Effective Date as follows:

7.1 Organization. Purchaser is a _____________________, duly formed, validly

existing and in good standing under the laws of the ______________________ and is qualified to do business in the jurisdiction in which the Land is located.

7.2 Power and Authority. Purchaser has the power and authority to purchase the

Property and to execute and perform its obligations under this Agreement and has taken the actions required for the execution and delivery of this Agreement; and no consent of Purchaser’s officers, partners or members is required to so empower or authorize Purchaser.

7.3 No Joinder Required. The joinder of no person or entity other than Purchaser is

necessary for Purchaser to purchase the Property in accordance with the terms and conditions of this Agreement or for Purchaser to fulfill Purchaser’s other obligations subject to and in conformity with the terms and conditions of this Agreement.

7.4 No Challenges. There is no litigation or proceeding of any type pending or to the

knowledge of Purchaser, threatened against, or relating to Purchaser’s ability to purchase the Property, or that would declare illegal, invalid or non-binding any of Purchaser’s obligations or covenants to WMATA.

7.5 No Violation. The execution, delivery and performance of this Agreement does

not, and the consummation of the transactions contemplated hereby will not, violate any provision of any agreement, instrument, order, judgment or decree or, to Purchaser’s knowledge, any applicable law or regulation to which Purchaser is a party or by which it or any of its assets is bound.

7.6 WMATA-Specific Representations and Warranties. Neither Purchaser nor

any partner, member, shareholder, officer, director, manager or other person with management or supervisory responsibilities or who is otherwise in a position to control or significantly influence Purchaser’s activities or finances (each a “Principal”): 7.6.1 Is/are not presently debarred, suspended, proposed for debarment,

declared ineligible or voluntarily excluded from an award of contracts by any governmental entity.


7.6.2 Has/have not within the past ten (10) years been convicted of or had a civil judgment rendered against it for: commission of fraud; a criminal offense in connection with obtaining, attempting to obtain, or performing a contract or subcontract with any governmental entity; violation of antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating criminal tax laws, or receiving stolen property.

7.6.3 Is/are not presently indicted for or otherwise criminally or civilly charged

by a governmental entity with commission of any of the offenses enumerated in the previous paragraph.

7.6.4 Is/are not in arrears or default of payment of any money or obligation of a

value greater than Three Thousand Dollars ($3,000) to a governmental entity.

7.6.5 Has/have no adjudicated violations nor has paid penalties during the past

ten (10) years relating to the housing and building laws, regulations, codes and ordinances of any governmental entity.

7.6.7 During the past ten (10) years has/have not had a license revoked that was

issued in accordance with the housing, building or professional licensing laws, regulations, codes and ordinances of any governmental entity.

7.6.8 Has/have not employed or retained any company or persons (other than a

full-time, bona fide employee working solely for it) to solicit or secure a ground lease or fee conveyance of the Property from WMATA.

7.6.9 Has/have not paid or agreed to pay, and shall not pay or give, any

company or person (other than a full-time, bona fide employee working solely for it) any fee, commission, percentage, or brokerage fee contingent upon or resulting from the award of a ground lease or fee conveyance of the Property from WMATA.

7.6.10 To Purchaser’s knowledge, has/have employed or been affiliated with any

person or entity currently employed by WMATA, or employed by WMATA within the past twelve (12) months, or with material input into the matters covered by the proposed fee conveyance of the Property and employed by WMATA at any time in the past, who has provided any information to it/them that was not also available to all other persons who responded to the IFB, nor does such a person have any financial interest in Purchaser, nor has such a person provided any assistance to Purchaser or its Principals or any parent, subsidiary or affiliated entities in responding to the IFB, nor will such a person benefit financially from the any appreciation in land value or development contemplated by this fee conveyance.


7.6.11 Has/have offered or given gratuities or will offer or give gratuities (in the

form of entertainment, gifts or otherwise) to any director, officer or employee of WMATA with the view toward securing favorable treatment in the approval of Purchaser as a contract purchaser or in the negotiation, amendment or performance of any purchase contract or similar document.

Purchaser agrees to furnish additional information relating to the provisions of this Section as requested by WMATA. 8. Purchaser’s Conditions Precedent to Closing. The obligation of Purchaser to purchase

the Property at Closing pursuant to the terms of this Agreement shall be conditioned only upon and subject to the satisfaction, or written waiver by Purchaser, of each of the following conditions:

8.1 No Previous Termination. This Agreement shall not have been previously

terminated by WMATA or Purchaser as provided in this Agreement. 8.2 Representations and Warranties. All representations and warranties of

WMATA as set forth in Section 6 hereof shall be true and correct in all material respects as of the date of Closing.

8.3 Title. Title to the Property at Closing shall be in the condition required by

Section 5.

8.4 DSUP Approval. Purchaser shall have achieved non-appealable DSUP approval from the City of Alexandria. Purchaser shall diligently pursue at its sole cost and expense the receipt of the DSUP and immediately contest (within 30 days) any appeals of DSUP approval. Purchaser shall (a) keep WMATA informed of its progress through bi-monthly written reports, (b) promptly provide WMATA Notice of all applications, filings, and related materials for the DSUP, and (c) not require WMATA to do anything other than sign such application forms as may be necessary in WMATA’s capacity as land owner. Purchaser shall allow WMATA at least fifteen (15) calendar days to review any application form requiring WMATA’s signature. WMATA makes no representation or warranty as to the likelihood of obtaining DSUP approval.

If any of the foregoing conditions are not fully satisfied as of the date hereafter set for Closing, Purchaser may, at its option, by giving Notice to WMATA no later than the date set for Closing either: (i) waive such unsatisfied condition precedent in writing and proceed to Closing; (ii) terminate this Agreement, in which event this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14; or (iii) request that WMATA extend the date of Closing


one or more times pursuant to Section 1.1. If Purchaser chooses option (iii) above and all conditions precedent to Purchaser’s obligations are not satisfied to Purchaser’s satisfaction, or waived by Purchaser, within such additional period, Purchaser shall have the option, by giving Notice to WMATA, to (A) waive such unsatisfied condition(s) precedent and proceed to Closing, or (B) terminate this Agreement, in which event this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14.

9. WMATA’s Conditions Precedent to Closing. The obligation of WMATA to sell the Property pursuant to the terms of the Agreement shall be conditioned only upon and subject to the satisfaction, or waiver by WMATA, of each of the following conditions:

9.1 No Previous Termination. This Agreement shall not have been previously

terminated by Purchaser or WMATA as provided in this Agreement. 9.2 Representations and Warranties. All representations and warranties of

Purchaser as set forth in Section 7 hereof shall be true and correct in all material respects as of the date of Closing.

9.3 Payments. Purchaser shall have made payment of the Option Fee(s) and the

Purchase Price in accordance with the terms and conditions of this Agreement. 9.4 Material Performance. Purchaser shall have performed and complied in all

material respects with all of the covenants and conditions required by this Agreement to be performed or complied with at or prior to Closing.

9.5 No Default. There shall not exist any Default (as hereinafter defined) by

Purchaser or circumstances which, with Notice or the lapse of time, could constitute a Default by Purchaser as of the time of Closing.

9.6 No Challenges. There shall not be any pending litigation or governmental

proceedings against or involving Purchaser (other than any initiated by or for the benefit of WMATA) preventing the consummation of the sale of the Property by WMATA to Purchaser, or any threatened litigation or governmental proceedings that, if determined adversely, would declare illegal, invalid or non-binding any of the material covenants or obligations of Purchaser set forth in this Agreement.

9.7 No Assignment. No assignment of this Agreement shall have occurred other than

in accordance with this Agreement. 9.8 FTA Concurrence. WMATA has obtained the FTA’s concurrence for this

transaction as referenced in Section 6.2. If FTA concurrence is not obtained or WMATA believes, in good faith, that such concurrence is not obtainable within a


reasonable time after applying for it or will only be obtained on conditions not reasonably acceptable to WMATA, WMATA may terminate this Agreement.

If any of the foregoing conditions are not fully satisfied as of the date hereafter set for Closing, WMATA may, at its option by Notice to Purchaser given no later than the date set for Closing, either: (i) waive such unsatisfied condition precedent in writing and proceed to Closing; (ii) terminate this Agreement, in which event this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14; or (iii) extend the date of Closing one or more times pursuant to Section 1.1. If WMATA chooses option (iii) above and all conditions precedent to WMATA’s obligations are not satisfied to WMATA’s satisfaction, or waived by WMATA, within such extension period, WMATA shall have the option by Notice to Purchaser given no later than the date scheduled for the postponed Closing to (A) waive such unsatisfied condition(s) precedent and proceed to Closing, or (B) terminate this Agreement, in which event this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14.

10. Closing Date and Location.

10.1 Closing Date. Closing under this Agreement (the “Closing”) shall be held no later than the Outside Closing Date, subject to the extensions in Section 1.1. If Closing does not occur by the Outside Closing Date, this Agreement will terminate automatically without Notice by either Party.

10.2 Location. Closing will take place at a location within the Washington Beltway to

be determined by Purchaser. A party may participate in the Closing without personally appearing by submitting its documents (and, in the case of Purchaser, the Purchase Price, any Additional Entitlement Compensation then payable, and any closing adjustments and costs payable by Purchaser) to Title Insurer acting as the settlement agent.

11. Actions at Closing. The following shall occur at Closing:

11.1 Payment of Purchase Price. At Closing, Purchaser shall pay the Purchase Price to WMATA, subject to any Escrow Account adjustment set forth in Section 4. The Purchase Price (as so adjusted) shall be delivered to WMATA at the conclusion of Closing by wire transfer. Payment to WMATA shall not be conditioned upon or wait for the recordation of the Deed or any action other than Closing to occur.


11.2 Documents to be Exchanged.

11.2.1 WMATA shall execute and deliver a special warranty deed substantially in the form attached hereto as Exhibit B (the “Deed”) conveying good and marketable fee simple title to the Property subject to the Permitted Title Exceptions.

11.2.2 WMATA shall execute and deliver an affidavit stating that WMATA is

not a “foreign person” as that term is defined under Section 1445 of the Internal Revenue Code of 1954, as amended; provided, however, that such affidavit shall not include any indemnification obligation.

11.2.3 WMATA shall execute and deliver an owner’s affidavit for the benefit of

Title Insurer in commercially customary form except that such affidavit shall not include any indemnification obligation.

11.2.4 Each Party shall execute (which execution may be in counterparts) and

deliver a settlement statement reflecting adjustments pursuant to Sections 11.1 and 11.3.

11.2.5 Each Party shall execute and deliver any form required by the local

jurisdiction in order to record any document, including any form applicable to establishing any grantor’s, stamp, documentary, recordation or transfer tax due.

11.2.6 Each Party shall execute and deliver such other documents and

instruments as may be reasonably required to consummate the transaction contemplated by this Agreement; provided, however, that WMATA shall not be required to execute or deliver any document or instrument that obligates it to indemnify Purchaser, Title Insurer or any other person or entity.

11.3 Allocation of Fees and Costs.

11.3.1 Purchaser will pay all stamp, documentary, grantor’s, transfer and recordation taxes applicable to the Property. WMATA shall claim an exemption from and shall not pay any stamp, documentary, grantor’s, transfer or recordation taxes.

11.3.2 Real estate taxes, ad valorem taxes, special taxing district taxes, arena and

ballpark taxes, fees and charges, business improvement district taxes, fees and charges, and other taxes, assessments and charges levied by any governmental authority and applicable to the Land shall be prorated as of midnight before the date of Closing. WMATA’s tax-exempt status will be taken into account with respect to all of the foregoing such that WMATA will not be required to pay any prorated portion of the foregoing and Purchaser will be responsible for the entire portion of the foregoing that


are owed and/or payable with respect to the period following the Closing. 11.3.3 Expenses (other than those adjusted as set forth in the preceding

subsection) of the Property shall be apportioned as of midnight before the date of Closing, with WMATA being responsible for those expenses, actual or accrued, applicable to the period before such date and time and Purchaser being responsible for those expenses, actual or accruing, applicable to the period after such date and time. This subsection includes, without limitation, adjustments with respect to charges for water, sewer, gas, electric, trash removal and all other utilities, which adjustments shall be based on meter readings or invoices, as appropriate, where such are available, and on a per diem basis otherwise.

11.3.4 WMATA shall pay its own attorneys’ and advisors’ fees. 11.3.5 Purchaser shall pay its own attorneys’ and advisors’ fees, any title

insurance premiums, all other costs of title examination and other title company charges, all surveyor’s fees and expenses, any settlement or closing fee or other charge levied by the settlement agent, any recording charges levied by the recording clerk (except for those incident to clearing title as set forth above), and any and all other miscellaneous fees, charges and other costs and expenses incident to the Closing and the transactions contemplated herein.

12. Casualty and Condemnation.

12.1 Casualty. The risk of loss or damage to the Property by fire or other casualty shall remain with WMATA until the Deed is delivered at Closing. Purchaser shall have no right to terminate this Agreement on account of any loss or damage to the Property by fire or other casualty. WMATA shall not, in any event, be obligated to effect any repair, replacement or restoration, but may do so at its option.

12.2 Eminent Domain. If, prior to Closing, all or any material part of the Land shall

be condemned by governmental or other lawful authority (including without limitation, any notice of intention to condemn or to exercise a power of eminent domain) or there is any deed-in-lieu thereof for a material part of the Land (each a “Taking”), Purchaser, at its option to be exercised by Notice to WMATA given no later than the first to occur of (i) the Closing Date or (ii) thirty (30) days after WMATA shall have Notified Purchaser of such Taking, shall either: (a) proceed to Closing, in which event Purchaser shall close hereunder and, with regard to awards on account of the Taking, if the award shall have been paid to WMATA prior to the Closing then at Closing such award shall be credited against the Purchase Price, or, if such award has not been received by WMATA by Closing, at Closing WMATA shall assign its claim for such award to Purchaser; or (b) terminate this Agreement by Notice to WMATA, in which event this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA


any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14. Any actual or threatened Taking for less than a material part of the Land shall have no effect on this Agreement and this Agreement shall remain in full force and effect regardless thereof.

13. Assignment. This Agreement may not be assigned by either Party without the other

Party’s prior written consent, which consent may be withheld in the requested Party’s sole and absolute discretion. A change in control of Purchaser shall be deemed an assignment for purposes of this Section. Notwithstanding the foregoing, at Closing Purchaser shall be permitted to assign its rights and obligations under this Agreement without the prior written consent of WMATA to an entity that is under the control of, under common control with, or in control of Purchaser provided that (i) the assignee is not a foreign government, the United Nations, or any agency, department, bureau, ministry or subdivision of any of them or any person, natural or legal, having sovereign immunity, and (ii) Purchaser gives Notice of the assignment to WMATA and such Notice (a) identifies the specific affiliate relationship and (b) includes the certification attached hereto as Exhibit C signed by the purported assignee. Any assignment made in violation of this Section shall be null and void.

14. Indemnification.

14.1 Generally. Purchaser shall indemnify, defend and hold harmless WMATA and its directors, officers, employees, agents and contractors (collectively the “Indemnified Parties”) from and against any and all claims, actions, proceedings, judgments, awards, losses, damages, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs), whether or not suit is brought, that may arise under or in connection with the acts (or omissions to act) of Purchaser or its employees, agents and contractors with respect to the Property and/or any WMATA facilities thereon or thereunder. The foregoing includes, without limitation, an obligation to repair any damage and/or restore to the Land and/or any WMATA facilities caused by or arising from the acts (or omissions to act) of Purchaser or its employees, agents and contractors so that the Land and/or WMATA facilities are in the same condition as on the Effective Date.

14.2 Environmental Matters. Notwithstanding Section 14.1, responsibility for

environmental matters shall be allocated as set forth in this Section. Purchaser agrees to release the Indemnified Parties from any and all claims, damages, actions, losses, costs, expenses (including, without limitation, reasonable attorneys’ fees and court costs) and liabilities of whatsoever nature or kind that may arise in connection with the installation, use, generation, removal, treatment, disposal, storage or presence of any Hazardous Materials (as hereinafter defined) on, in, or under the Property. The term "Hazardous Materials" shall mean any


materials, substances or wastes that are (a) defined pursuant to, listed in, subject to or regulated under any Environmental Law; or (b) petroleum, crude oil or any fraction thereof; or (c) asbestos in any form or any condition; or (d) any radioactive material, including any source, special nuclear or byproduct material as defined in 42 U.S.C. §2011 et seq., or (e) polychlorinated biphenyls or substances or compounds containing polychlorinated biphenyls. The term “Environmental Law” means any federal, state or local laws, ordinances or regulations relating to or addressing the protection of the air, the land, the water or the environment or public health or safety, including but not limited to the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq.; the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 et seq.; the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.; the Oil Pollution Act, 33 U.S.C. §§ 2701 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; and any similar state or local laws, ordinances, or regulations. Purchaser agrees, to the fullest extent permitted by law, to indemnify, defend and hold the Indemnified Parties harmless from and against any and all claims, actions, proceedings, judgments, awards, losses, damages, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs), whether or not suit is brought, which may be imposed upon, or incurred by, or asserted against any Indemnified Party in connection with the installation, use, generation, removal, treatment, disposal, storage or presence of any Hazardous Materials which (i) Purchaser or Purchaser’s employees, agents or contractors place on, in, or under the Property prior to Closing and/or (ii) any person or entity other than WMATA and its employees, agents or contractors place on the Property after Closing, and/or (iii) arises from or relates to any remediation, cleanup or other task or work to be done that is funded or was to be funded under the Escrow Agreement, regardless of its source or cause. The foregoing applies whether such claims, actions, proceedings, judgments, awards, losses, damages, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) are incurred by an Indemnified Party as a result of a claim asserted or instigated by WMATA or by any third party. The term “Hazardous Materials” shall mean any materials, substances or wastes that are (a) defined pursuant to, listed in, subject to or regulated under any Environmental Law; or (b) petroleum, crude oil or any fraction thereof; or (c) asbestos in any form or any condition; or (d) any radioactive material, including any source, special nuclear or byproduct material as defined in 42 U.S.C. §2011 et seq., or (e) polychlorinated biphenyls or substances or compounds containing polychlorinated biphenyls. The term “Environmental Law” means any federal, state or local laws, ordinances or regulations relating to or addressing the protection of the air, the land, the water or the environment or public health or safety, including but not limited to the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; the Comprehensive


Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq.; the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 et seq.; the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.; the Oil Pollution Act, 33 U.S.C. §§ 2701 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; and any similar state or local laws, ordinances, or regulations.

14.3 Survival. The provisions of this Section 14 shall survive Closing and/or the

termination of this Agreement. 15. Notices. All Notices, demands and communications permitted or required to be given

hereunder (“Notices”) shall be in writing and sent by (i) registered or certified United States mail, return receipt requested, first class postage prepaid, in which case the Notice shall be deemed given on the date of actual receipt, or (ii) hand-delivery, in which case the Notice shall be given on the date of actual receipt, or (iii) nationally-recognized overnight courier, properly addressed, and fully prepaid for next business day delivery, in which case the Notice shall be deemed given on the date that is one (1) business day after the same was deposited with the overnight courier, or (iv) if an e-mail or facsimile address is set forth below, by e-mail or facsimile, in which event the Notice shall be deemed given on the day sent if sent on a business day before 3:00 pm recipient’s time or, otherwise, on the next business day. Notices shall be addressed to WMATA or Purchaser, as the case may be, at the address shown below or to such other address as either party shall Notify the other in accordance with the provisions hereof. Refusal to accept delivery or inability to make delivery because the intended recipient has not provided a correct or current address shall constitute actual receipt as of the time of attempted delivery. Counsel may give Notices on behalf of a party.

Purchaser: _______________________ _______________________ _______________________ _______________________ Attn: __________________ E-mail: _________________ Fax: ___________________ With a copy to: _______________________ _______________________ _______________________ _______________________ Attn: __________________ E-mail: _________________ Fax: ___________________


WMATA: Office of Real Estate and Parking Washington Metropolitan Area Transit Authority 600 Fifth Street, N.W. Washington, DC 20001 Attn: Director E-mail: [email protected] With a copy to: Office of General Counsel Washington Metropolitan Area Transit Authority 600 Fifth Street, N.W. Washington, DC 20001 Attn: General Counsel Fax: 202-962-2550 16. Default.

16.1 By Purchaser Before or At Closing. 16.1.1 If prior to Closing:

16.1.1.1 Purchaser breaches the terms of Section 13 (“Assignment”); or 16.1.1.2 Purchaser makes any material misrepresentation in this

Agreement or in any submission to WMATA relating to this Agreement; or

16.1.1.3 Purchaser files a voluntary petition in bankruptcy or is

adjudicated bankrupt or insolvent, makes an assignment for the benefit of creditors, or files any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future Federal or State law, or seeks, acquiesces in or consents to the appointment of any trustee, receiver or liquidator of Purchaser or all or any material part of its assets or of its interest in this Agreement; or

16.1.1.4 any petition is filed against Purchaser with respect to any matter

stated in the preceding subsection and Purchaser fails to have the proceedings initiated by such petition stayed or dismissed within sixty (60) days after the filing thereof; or

16.1.1.5 Purchaser breaches or fails to comply with any requirement or

obligation set forth in this Agreement for which a time period is stated elsewhere in this Agreement within the stated time; or

16.1.1.6 Purchaser breaches or fails to comply with any other requirement

or obligation set forth in this Agreement, other than the failure to

mailto:[email protected]


proceed to Closing, and if WMATA gives Purchaser Notice of such noncompliance, and Purchaser fails to correct or cure such noncompliance within ten (10) days after WMATA has given Purchaser Notice of such noncompliance;

then a “Default” by Purchaser shall exist hereunder. Upon the occurrence of such a Default by Purchaser prior to Closing, WMATA shall be entitled to (i) waive the Default and keep this Agreement in effect or (ii) terminate this Agreement by Notice to Purchaser, in which event this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14.

16.1.2 If Purchaser fails to timely consummate Closing as required hereunder,

WMATA’s sole remedy shall be to terminate this Agreement by written Notice to Purchaser, in which event this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14.

16.1.3 The parties agree that it would be impracticable and difficult to ascertain

the actual damages suffered by WMATA as a result of a Default by Purchaser and that no liquidated damages are provided for herein. The provision regarding liquidated damages does not affect WMATA’s contractual entitlement to indemnification under this Agreement.

16.1.4 Except as otherwise expressly stated in this Agreement, all remedies of

WMATA under this Agreement and under applicable law are cumulative.

16.2 By WMATA Before or At Closing.

16.2.1 If WMATA breaches or fails to comply with any requirement or obligation set forth in this Agreement prior to or at Closing, then Purchaser may give WMATA Notice of such noncompliance and if WMATA fails to correct or cure such noncompliance within ten (10) days after Purchaser has given WMATA such Notice of such noncompliance, a “Default” by WMATA shall exist hereunder.


16.2.2 Upon the occurrence of a Default by WMATA prior to or at Closing, Purchaser shall be entitled to either (i) terminate this Agreement by Notice to WMATA, in which event this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14, or (ii) seek specific performance of this Agreement. Purchaser waives its right to seek any monetary damages if there is a Default by WMATA prior to or at Closing; provided, however, that such waiver shall not apply, and Purchaser shall have all remedies available to it at law or in equity, if WMATA sells the Property to a third party or intentionally encumbers title to the Property in such a way to render specific performance of this Agreement impossible or impracticable.

16.3 After Closing. If either Party shall fail to perform its obligations under this

Agreement after Closing, the other party shall have any and all rights and remedies allowed at law or in equity.

17. Relationship of the Parties.

17.1 Not Joint Venturers. Notwithstanding any other provision of the Agreement, or any agreements, contracts or obligations which may derive herefrom, nothing herein shall be construed to make the parties partners or joint venturers, or to render either party liable for any of the debts or obligations of the other party, it being the intention of this Agreement to merely create the relationship of seller and purchaser with regard to the Property.

17.2 No Third-Party Beneficiary. Nothing in this Agreement creates or is intended

to create any third party beneficiary. No third party may rely on any provision of this Agreement.

18. No Commissions. Purchaser and WMATA each represents and warrants to the other that

no real estate broker or other person is entitled to claim a commission by or through the representing party as a result of the execution and delivery of this Agreement.

19. Governing Law. This Agreement shall be construed in accordance with the laws of the

jurisdiction in which the Land is located, without regard to its provisions on conflicts of laws, except to the extent that the laws of that jurisdiction conflict with the WMATA Compact, in which case WMATA shall be governed by the WMATA Compact. Jurisdiction and venue for any action against WMATA shall lie solely in the Federal District Court having jurisdiction.


20. WMATA-Specific Provisions.

20.1 WMATA Compact. At no time shall Purchaser assert for its own benefit, or attempt to claim or assert, an exemption or immunity available under the WMATA Compact.

20.2 No Officials to Benefit. Purchaser and WMATA each hereby covenants and

agrees that: (i) no member of or delegate to Congress or resident commissioner shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom, but this provision shall not be construed to extend to this Agreement if made with a corporation for its general benefit; and (ii) no member, officer or employee of WMATA or of a local public body during his/her tenure or one year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof.

20.3 No Gratuities. The giving of or offering to give gratuities, in the form of

entertainment, gifts or otherwise, by Purchaser, or any agent, representative or other person deemed to be acting on behalf of Purchaser or any supplier or subcontractor furnishing material to or performing work under this Agreement, or any agent, representative or other person deemed to be acting on behalf of such supplier or subcontractor, to any director, officer, employee or agent of WMATA, or to any director, officer, employee or agent of any of WMATA’s agents, consultants or representatives, with a view toward securing an agreement or securing favorable treatment with respect to the awarding, amending, or the making of any determinations with respect to performance under this Agreement, is expressly forbidden. The terms of this Section shall be broadly construed and strictly enforced in the event of violation hereof.

20.4 Anti-Deficiency Clause. WMATA and Purchaser acknowledge and agree that

any obligations of WMATA under this Agreement that directly or indirectly require the expenditure by WMATA of any of its funds are subject to the appropriation and availability of funding through WMATA’s budgetary procedures. In the event of non-appropriation or the unavailability of funds, WMATA shall give Notice thereof to Purchaser and either WMATA or Purchaser may elect to terminate this Agreement by Notice to the other given within ten (10) days of WMATA’s Notice of non-appropriation or unavailability of funds. If either party timely gives such Notice of termination, this Agreement shall terminate upon the giving of such Notice, Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14.

21. Interpretation.

21.1 Section References. The Section headings used in this Agreement are for


reference and convenience only, and shall not enter into the interpretation of this Agreement. All references in this Agreement to Sections are references to Sections of this Agreement unless otherwise specified.

21.2 Singular and Plural. Wherever in this Agreement the singular number is used,

the same shall include the plural and vice versa, as the context shall require. 21.3 Exhibits Incorporated. All exhibits to this Agreement shall be considered

incorporated herein by reference and made a material part hereof. 21.4 Including, Without Limitation. Wherever the words “including,” “e.g.,” “such

as,” or “for example” appear in this Agreement, they mean “without limitation.” 21.5 No Construction Against Draftsman. No provision of this Agreement shall be

construed in favor of, or against, a Party by reason of any presumption with respect to the drafting of this Agreement. Both Parties have been, or have had the opportunity to be, represented by counsel of their choosing.

22. Miscellaneous Provisions.

22.1 Entire Agreement. This Agreement contains the entire agreement between the Parties hereto and is intended to be an integration of all prior or contemporaneous agreements, conditions or undertakings between the parties. There are no promises, agreements, conditions, undertakings, warranties or representations, oral or written, express or implied, between and among the parties other than as herein set forth.

22.2 Amendment. No amendment, supplement, change or modification of this

Agreement shall be valid unless the same is in writing and signed by WMATA and Purchaser.

22.3 No Waiver. No purported or alleged waiver of any of the provisions of this

Agreement shall be valid or effective unless the same is in writing and signed by the party against whom it is sought to be enforced.

22.4 Successors and Assigns. This Agreement shall be binding upon and shall inure

to the benefit of the parties hereto and their respective estates, legal representatives, and permitted successors and assigns.

22.5 No Recordation. This Agreement shall not be recorded, in any manner or form,

by WMATA or Purchaser. If Purchaser causes this Agreement to be recorded, the same shall be a material default hereunder and, (i) without the giving of Notice or the opportunity to cure, WMATA is authorized in its own name or as Purchaser’s attorney-in fact and agent, such being coupled with an interest and irrevocable, to cause the release from the public records of this Agreement at Purchaser’s expense, and (ii) WMATA may terminate this Agreement by Notice to Purchaser, whereupon this Agreement shall terminate upon the giving of such Notice,


Purchaser shall return to WMATA any due diligence information or material provided by WMATA, Purchaser shall assign to WMATA (without recourse) and deliver to WMATA copies of all due diligence information about the Property generated by or for Purchaser, and thereupon WMATA shall return the Deposit (less any portion previously drawn by WMATA) to Purchaser, whereupon Purchaser and WMATA shall have no further rights or obligations under this Agreement except as may have accrued under Section 14.

22.6 Days. Wherever herein reference is made to “days,” the same shall mean

“calendar days” unless otherwise expressly stated. Wherever in this Agreement a time period shall end on a day which is a Saturday, Sunday or legal holiday, said time period shall automatically extend to the next date which is not a Saturday, Sunday, or legal holiday.

22.7 Severability. If any provision of this Agreement or the application thereof to any

person or circumstance shall be held violative of any applicable laws or unenforceable, for any reason, the invalidity or unenforceability of any such provision shall not invalidate or render unenforceable any other provision hereof, which shall remain in full force and effect.

22.8 Time is of the Essence. Time is of the essence of the parties’ performance under

this Agreement. 22.9 Counterparts. This Agreement may be executed in counterparts, each of which

together shall constitute one single Agreement. 22.10 Copies. This document may be signed and exchanged electronically, by PDF or

by other means other than an original signature, each of which shall be valid and binding, and it shall not be necessary for any party to have an original signature to make this Agreement effective.

[Signatures appear on the following page]


IN WITNESS WHEREOF, the parties hereto have executed and sealed this Agreement as of the Effective Date. WITNESS: WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY ________________________ By: ____________________________ Name: ______________________ Title: Director, Office of Real Estate and Parking Approved as to form and legal sufficiency: By: _________________________________ Name: __________________________ Title: Chief Counsel PURCHASER: WITNESS: ______________________________ ________________________ By: ____________________________ Name: ____________________________

Title: ____________________________


EXHIBIT A: DESCRIPTION OF THE LAND [INTENTIONALLY LEFT BLANK]


EXHIBIT B: SPECIAL WARRANTY DEED Please record and return to: ________________________ ________________________ ________________________ ________________________ Note to recording clerk: The grantor under this deed is the Washington Metropolitan Area Transit Authority. The Washington Metropolitan Area Transit Authority is a body corporate and politic and is exempt from taxation under the laws of the Commonwealth of Virginia pursuant to Code of Virginia Section 33.2-3100, subsection 78. This deed is therefore exempt from the grantor’s tax levied under Code of Virginia Section 58.1-802 pursuant to Code of Virginia Section 58.1-811.4 THIS SPECIAL WARRANTY DEED (this “Deed”) is made as of the ____ day of _______________, 20__ by the Washington Metropolitan Area Transit Authority, a body regional and politic (“Grantor”) and _______________________________________________, a _____________________________________________________________________ (“Grantee”). WITNESSETH: That for and in consideration of the sum of One Dollar ($1.00) in hand paid and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor does hereby grant, bargain, sell and convey to Grantee and its successors and assigns, in fee simple, all of that certain property defined on Exhibit A attached hereto and made a part hereof (the “Land”), together with all improvements, rights, privileges, and easements appurtenant to the Land including, without limitation, all water rights, rights of way, roadways, utility facilities and other appurtenances used or to be used in connection with the beneficial use of the Land, subject to the stated exceptions and reservations, if any, below. This conveyance is made subject to all restrictions, conditions, reservations, limitations, covenants, easements and other matters of record. AND GRANTEE HEREBY EXPRESSLY COVENANTS, as a covenant running with the land, that GRANTEE shall release the Indemnified Parties from any and all claims, damages, actions, losses, costs, expenses (including, without limitation, reasonable attorneys’ fees and court costs) and liabilities of whatsoever nature or kind that may arise in connection with the installation, use, generation, removal, treatment, disposal, storage or presence of any Hazardous Materials (as hereinafter defined) on, in, or under the Property. The term "Hazardous Materials" shall mean any materials, substances or wastes that are (a) defined pursuant to, listed in, subject to or regulated under any Environmental Law; or (b) petroleum, crude oil or any fraction thereof; or


(c) asbestos in any form or any condition; or (d) any radioactive material, including any source, special nuclear or byproduct material as defined in 42 U.S.C. §2011 et seq., or (e) polychlorinated biphenyls or substances or compounds containing polychlorinated biphenyls. The term “Environmental Law” means any federal, state or local laws, ordinances or regulations relating to or addressing the protection of the air, the land, the water or the environment or public health or safety, including but not limited to the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq.; the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 et seq.; the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.; the Oil Pollution Act, 33 U.S.C. §§ 2701 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; and any similar state or local laws, ordinances, or regulations. AND GRANTEE HEREBY EXPRESSLY COVENANTS, as a covenant running with the land, that GRANTEE shall, to the fullest extent permitted by law, to indemnify, defend and hold the Indemnified Parties harmless from and against any and all claims, actions, proceedings, judgments, awards, losses, damages, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs), whether or not suit is brought, which may be imposed upon, or incurred by, or asserted against any Indemnified Party in connection with the installation, use, generation, removal, treatment, disposal, storage or presence of any Hazardous Materials which (i) Purchaser or Purchaser’s employees, agents or contractors place on, in, or under the Property prior to Closing and/or (ii) any person or entity other than WMATA and its employees, agents or contractors place on the Property after Closing. The foregoing applies whether such claims, actions, proceedings, judgments, awards, losses, damages, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) are incurred by an Indemnified Party as a result of a claim asserted or instigated by WMATA or by any third party. Grantor shall warrant specially the Land and shall execute such further assurances of the same as may be requisite. IN WITNESS WHEREOF, Grantor has executed this Deed as of the date first set forth above.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY By: _______________________________ Name: _______________________________ Title: Director, Office of Real Estate and Parking


Approved as to form and legal sufficiency: By: _________________________________ Name: __________________________ Title: Chief Counsel

[NAME OF GRANTEE]

By: _______________________________ Name: _______________________________ Title: _______________________________

DISTRICT OF COLUMBIA ) ss: I, a notary public in and for the jurisdiction aforesaid, do hereby certify that ________________________________, the ______________________________ of ______________________________________________________, known to me to be the person who signed the foregoing Special Warranty Deed bearing date of _____________________, 20__, personally appeared before me and by virtue of the power vested in him/her in the capacity stated, acknowledged the same to be the act of _____________ __________________________________________________________. Given under my hand and seal this ____ day of _____________________, 20__. _________________________________ Notary Public [Notarial Seal] My commission expires: _____________________________


EXHIBIT C: ASSIGNEE’S CERTIFICATIONS

The undersigned hereby certifies to the Washington Metropolitan Area Transit Authority (“WMATA”) that the undersigned and any of its principals:

1. Is/are not presently debarred, suspended, proposed for debarment, declared

ineligible or voluntarily excluded from an award of contracts by any governmental entity. 2. Has/have not within the past ten (10) years been convicted of or had a civil

judgment rendered against it for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a contract or subcontract with any governmental entity; violation of antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating criminal tax laws, or receiving stolen property.

3. Is/are not presently indicted for or otherwise criminally or civilly charged by a

governmental entity with commission of any of the offenses enumerated in the previous paragraph.

4. Is/are not in arrears or default of payment of any money or obligation of a value

greater than Three Thousand Dollars ($3,000) to a governmental entity. 5. Has/have no adjudicated violations nor has paid penalties during the past ten (10)

years relating to the housing and building laws, regulations, codes and ordinances of any governmental entity.

6. During the past ten (10) years has/have not had a license revoked that was issued

in accordance with the housing, building or professional licensing laws, regulations, codes and ordinances of any governmental entity.

“Principal” means a partner, member, shareholder, officer, director, manager or other

person with management or supervisory responsibilities or who is otherwise in a position to control or significantly influence the undersigned’s activities or finances.

The undersigned further certifies: a. It has not employed or retained any company or persons (other than a full-time,

bona fide employee working solely for it) to solicit or secure a ground lease or fee conveyance from WMATA; and

b. It has not paid or agreed to pay, and shall not pay or give, any company or person

(other than a full-time, bona fide employee working solely for it) any fee, commission, percentage, or brokerage fee contingent upon or resulting from the award of a ground lease or fee conveyance from WMATA; and

c. To its actual knowledge, no person or entity currently employed by WMATA, or

employed by WMATA within the past twelve (12) months, or with material input into the


matters covered by the proposed fee conveyance and employed by WMATA at any time in the past: has provided any information to it that was not also available to all other persons who responded to any Request for Proposals, Joint Development Solicitation, Invitation for Bids or similar public offering that led to the proposed fee conveyance; is affiliated with or employed by it or has any financial interest in it; provided any assistance to it or its parent, subsidiary or affiliated entities in responding to said Request for Proposals, Joint Development Solicitation, Invitation for Bids or similar public offering; or will benefit financially from the development contemplated by the ground lease or fee conveyance; and

d. Neither the undersigned nor any of its employees, representatives or agents have

offered or given gratuities or will offer or give gratuities (in the form of entertainment, gifts or otherwise) to any director, officer, employee or agent of WMATA with the view toward securing favorable treatment in the approval of the undersigned as a contract purchaser or in the negotiation, amendment or performance of any purchase contract or similar document; and

e. It agrees to furnish information relating to the above as requested by WMATA. f. It has the power and authority to enter into the proposed fee conveyance and all

final documentation as required by WMATA without the consent or joinder of any other party or authority.

If the undersigned is unable to certify to the foregoing in whole or in part, the

undersigned has attached an explanation to this certification. These certifications are a material representation of fact upon which reliance will be

placed by WMATA. The undersigned shall provide immediate written notice to WMATA if at any time it learns that its certification was erroneous when submitted or has become erroneous since that time.

[NAME OF ASSIGNEE] By: _____________________________ Name: _____________________________ Title: _____________________________ Date: _______________, 20__


EXHIBIT D: RIGHT OF ENTRY AGREEMENT [SAME AS ATTACHMENT 7 TO IFB 18-01]


EXHIBIT E: FORM OF ESCROW AGREEMENT FOR ENVIRONMENTAL REMEDIATION [SAME AS ATTACHMENT 4 TO IFB 18-01


ATTACHMENT 7: RIGHT OF ENTRY AGREEMENT

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY RIGHT OF ENTRY AGREEMENT

THIS RIGHT OF ENTRY AGREEMENT (“Agreement”) is made and entered into this day of , 20__ by and between the WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, a body corporate and politic, having a principal business address at 600 Fifth Street, NW, Washington, DC 20001 (“WMATA”) and ________________________, a _____________ ______________________ having a principal business address at ___________________________ (“Permittee”). WITNESSETH:

WHEREAS, WMATA owns the Premises (as defined below); and WHEREAS, Permittee has requested and WMATA is willing to grant Permittee the non-

exclusive right to enter the Premises for due diligence activities, subject to the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the foregoing, One Dollar ($1.00), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Incorporation of Recitals. The Recitals set forth above are incorporated herein by this reference to the same extent and with the same force and effect as if fully hereinafter set forth.

2. Description of Premises. The property that is the subject of this Agreement is that certain tract of land, comprising approximately ___________ square feet, known as known as ____________, located in _________________ (the “Premises”).

3. Term of Agreement. This Agreement commences on the date hereof and, subject to Paragraph 10 below, terminates on ____________.

4. Use of Premises. WMATA grants unto Permittee, including, but not limited to, its officers, employees, contractors, subcontractors, guests, and agents, if any (hereinafter collectively and individually, “Permitted Users”), a non-exclusive license to enter onto the Premises for the sole purpose of conducting such non-invasive investigations, inspections, audits, analyses, surveys, tests, examinations, studies, and appraisals of the Premises as Permittee deems necessary or desirable, at Permittee's sole cost and expense, in order to determine whether the Premises are suitable for Permittee's purposes. Invasive testing, such as core drilling and soil sampling, is not permitted absent WMATA’s separate express written agreement. Permittee shall provide WMATA with copies of all work plans, sampling and analytical protocols, laboratory analysis results and reports, and surveys obtained in connection with this Agreement.


5. Coordination of Access. All access to the Premises shall be only Monday-Friday (except Federal holidays) during the hours of 9:00 am – 5:00 pm unless WMATA expressly grants Permittee written permission otherwise. Permittee shall coordinate with WMATA for entry on the Premises and the performance of any physical tests, investigations, analyses and/or studies of the Premises. Permittee shall give WMATA reasonable advance notice of any entry on the Premises prior to commencing any such physical tests, investigations, analyses and/or studies of the Premises. At WMATA's election, WMATA may designate a representative to accompany Permittee while on the Premises, in which event Permittee shall not enter onto the Premises unless so accompanied. Should a WMATA escort be necessary or appropriate, in WMATA’s sole and absolute discretion, Permittee shall pay the charges therefor, levied in accordance with WMATA’s standard rates, upon demand.

6. Non-Interference with WMATA Activities. Pursuant to the terms of this Agreement,

Permittee may only use the Premises in such manner and at such times as herein described and shall not interfere with the use, construction, maintenance, repair and/or operations of WMATA or of any tenant. Permittee or other Permitted Users shall not contact any tenant directly. Permittee shall not permit any mechanics' liens to be filed against the Premises or any part thereof. The requirements of this Paragraph shall survive the expiration or any earlier termination of this Agreement.

7. Damage to WMATA Property. Permittee and other Permitted Users shall not materially

alter or disturb the Premises. Permittee shall be responsible for, and must make good at its own expense, all damage to WMATA property caused by its acts or those of the Permitted Users and others acting on behalf of Permittee. Permittee shall carry out such repair, restoration, or replacement within fifteen (15) business days of Permittee’s receipt of notice from WMATA except in the case of any emergency as determined by WMATA in its sole discretion, in which event Permittee’s obligation of repair or replacement shall be immediate upon receipt of notice from WMATA. The requirements of this Paragraph shall survive the expiration or any earlier termination of this Agreement.

8. Indemnification.

a. Permittee shall, and shall require all of its contractors and subcontractors, to indemnify and save harmless WMATA, its directors, officers, employees and agents from all liens, liabilities, obligations, damages, penalties, claims, costs, charges and expenses (including reasonable attorney’s fees and court costs), of whatsoever kind and nature, occurring in connection with, or in any way arising out of any activity carried out by Permittee or other Permitted Users pursuant to this Agreement.

b. If any action or proceeding as described in this Paragraph is brought against

WMATA, then upon written notice from WMATA to the indemnitor the indemnitor shall, at the indemnitor’s expense, resist or defend such action or proceeding by counsel approved by WMATA in writing, such approval not to be unreasonably withheld, but no approval of counsel shall be required where the


cause of action is resisted or defended by counsel of any insurance carrier obligated to resist or defend the same.

c. Permittee understands and agrees that it is Permittee’s responsibility to provide

indemnification to WMATA pursuant to this Paragraph. The provision of insurance, while anticipated to provide a funding source for this indemnification, is in addition to any indemnification requirements and the failure of Permittee’s insurance to fully fund any indemnification shall not relieve Permittee of any obligation assumed under this Agreement.

d. The requirements of this Paragraph shall survive the expiration or any earlier

termination of this Agreement. 9. Insurance.

a. As may be required in any insurance policy carried by Permittee, this Agreement is understood and agreed to be a written contract or an insured contract between Permittee and WMATA. It is Permittee’s responsibility to ensure adequate and complete coverage as contemplated in this Agreement. Permittee understands and agrees that WMATA is a self-insured governmental entity and that the insurance and indemnification provided by Permittee under the terms of this Agreement shall be primary. Permittee agrees that to the extent any endorsement contemplates issuance of a permit by a state or political subdivision, WMATA shall be considered a state or political subdivision issuing a permit for the purposes of those policies and endorsements.

b. Permittee shall, at its own cost and expense, provide, maintain, and keep in force

at all times during the term of this Agreement and any renewal or extension hereof, the following types of insurance:

i. Commercial General Liability Insurance. A Commercial General Liability

Insurance policy issued to and covering the liability for all work and operations under or in connection with this Agreement and all obligations assumed by Permittee under this Agreement. The coverage under such an insurance policy shall have at least the following limits:

$1,000,000 Each Occurrence Limit $2,000,000 General Aggregate Limit $1,000,000 Products-Completed Operations limit

WMATA shall be named as an additional insured under the coverage for Commercial General Liability Insurance with respect to all activities under this Agreement.

ii. Automobile Liability Insurance. A commercial auto insurance policy

covering the use of all owned, non-owned, hired, rented or leased vehicles bearing valid license plates appropriate for the circumstances for which


the vehicles are being used. These vehicles should bear license plates applicable to the state laws for which the vehicle(s) are registered. Liability for a contractor's mobile equipment is not subject to this coverage and therefore the aforementioned general liability insurance is required. The coverage under such an insurance policy or policies shall include mandatory Uninsured Motorist Coverage where applicable.

The coverage under such an insurance policy or policies shall have limits not less than $1,000,000 Combined Single Limit for Bodily Injury and Property Damage Liability. WMATA must be named as an additional insured under the auto liability insurance coverage with respect to activities related to this Agreement.

iii Workers’ Compensation and Employer’s Liability Insurance

Required Minimum Limits of Coverage:

Workers’ Compensation Statutory Employer’s Liability $1,000,000 Each Accident $1,000,000 Disease Policy Limit $1,000,000 Disease Each

Employee

iv. Insurance Companies. Insurance companies providing the aforesaid coverages must be rated by A.M. Best or a comparable rating company and carry at least an “A” rating. All insurance shall be procured from insurance or indemnity companies acceptable to WMATA and licensed and authorized to conduct business in the District of Columbia, the Commonwealth of Virginia and the State of Maryland.

10. Termination of Agreement. WMATA may revoke the license granted to Permittee herein

at any time upon notice thereof to Permittee, in which event all rights of access granted to Permittee herein shall immediately terminate. Permittee's obligations pursuant to Paragraphs 6, 7 and 8 hereof shall survive any termination of this Agreement.

11. Non-Liability of WMATA. WMATA shall have no liability for the actions or negligence

of Permittee or the Permitted Users. Neither the grant of this right of entry, nor any provision thereof, shall impose upon WMATA any new or additional duty or liability or enlarge any existing duty or liability of WMATA. Nothing in this Agreement shall be deemed to waive WMATA’s immunity as a sovereign entity.

12. WMATA Compact. Permittee understands and agrees that in no event shall Permittee

assert for its own benefit, or attempt to claim or assert, an exemption or immunity available to WMATA under the Washington Metropolitan Area Transit Authority Compact, Public Law 89-774, 80 Stat. 1324, as same may be amended (the “WMATA Compact”).


13. Governing Law. This Agreement shall be governed by the laws of the District of Columbia, except that, to the extent that state law conflicts with the WMATA Compact, WMATA shall be governed by the WMATA Compact.

14. Jurisdiction and Venue. Jurisdiction and venue over any suit, action or proceeding arising

under or relating to this Agreement shall lie solely in the jurisdiction in which the Premises are located.

15. Entire Agreement. This Agreement constitutes the entire agreement between the parties

except to the extent that there is, or at any time during the term of this Agreement, shall be, a purchase and sale agreement between WMATA and Permittee; in that event, this Agreement shall be supplementary to any such purchase and sale agreement and, in the event of any conflict or inconsistency between them regarding the subject matter of this Agreement, the terms of this Agreement shall govern. The parties acknowledge that no representations or warranties have been made except as set forth herein. This Agreement shall not be modified or amended in any manner except by an instrument in writing executed by the parties as an amendment to this Agreement.

15. Counterparts. This Agreement may be signed in counterparts, each of which together

shall constitute one single agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in two counterparts as of the date and year first written above. WITNESS:

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY

By:

__________________________________

Name:

__________________________________

Title: Director, Office of Real Estate and Parking

WITNESS:

[PERMITTEE]

By: ___________________________ Name: ___________________________ Title: ___________________________