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HomeMy WebLinkAboutBill McCurley Purchase Agreement Sandifur ID 115460056PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (hereinafter "Agreement ") is entered into on this -6 day of Oc-V -� bw-r 2014, between the City of Pasco, a Washington Municipal Corporation (hereinafter "City ") and Bill McCurley and/or assigns (hereinafter "Purchaser ") for establishing the terms and conditions for the sale of real property (hereinafter "Property ") legally described as set forth below: The west seven (7) acres of Parcel ID Number 115460056 which is more particularly shown in Exhibit A which is attached hereto and incorporated by reference. Upon completion of the survey for the lot segregation, as described herein, such survey will be attached hereto and become a part of this agreement. RECITALS WHEREAS, City is the owner of real property located in Franklin County, Washington, which real property is described more particularly above; and WHEREAS, City wishes to sell such real property and Purchaser wishes to purchase such property under certain terms and conditions as set forth below; NOW, THEREFORE, The parties covenant and agree as follows: 1. Purchase and Sale. City agrees to sell, and Purchaser agrees to purchase: (a) That certain parcel of real property described above; (b) All development rights relating to the real property; (i) all rights to obtain utility service in connection with the real property; (ii) assignable licenses and other governmental permits and permissions relating to the real property and the operation thereof (c) The land, improvements, and appurtenances which constitute real property are hereafter collectively defined as the "Real Property." All of the Property included by reference within the foregoing paragraphs 1(a) through 1(c), both real and personal, is hereinafter collectively referred to as the "Property." (d) Conditions of sale, Purchaser agrees to use the real property for the development of a new automobile (Subaru) dealership. 2. Purchase Price/Financine. The purchase price for the Property is Seven Hundred and One Thousand, Three Hundred Sixteen Dollars ($701,316) which is calculated at $2.30 per square foot. The City represents that the Property totals approximately 7.0 acres or 304,920 square feet. The purchase price is payable in cash to the City. 3. Method of Payment. Within ten (10) business days following the last party's execution of this Agreement and delivery of a fully executed original thereof to the other party, Purchaser will deposit with an escrow agent (Benton - Franklin Title Company), Twenty -Five Thousand and Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 1 asp, 00 /100ths Dollars ($25,000.00), which shall constitute a deposit and be held in an interest bearing trust account. This deposit shall be applied to the purchase price. (a) Purchaser agrees that the deposit/earnest money shall be paid to City if the sale does not close after Purchaser has removed all contingencies in writing. (b) Upon closing, Purchaser shall electronically transfer proceeds of Purchaser's financing for the balance of the purchase price or issue a cashier's check in the amount of the purchase price. 4. Survev. The purchase price for the Property is Two and 30 /100ths Dollars ($2.30) per square foot, as determined in accordance with paragraph 4(a). (a) The City shall, at City's expense, within ten (10) days following the execution and delivery of the Purchase and Sale Agreement to the Title Company, provide a current survey acceptable to both Purchaser and Title Company. The purchase price is based on the City's representation that the area of the parcel comprising this Property sale is 304,920 square feet. (b) The City shall, at City's expense, within thirty (30) days following the execution and delivery of the Purchase and Sale Agreement to the Title Company, secure a lot segregation acceptable to Purchaser, conveying the above - described real property to the Purchaser contingent upon closing. Inspection Period: (a) Between the effective date of this Agreement and closing, or the earlier termination of this Agreement, Purchaser and their authorized agents, contractors, and consultants, shall have the right to go upon the Property at reasonable times for the purpose of inspecting each and every part thereof to determine its present condition and, at Purchaser's sole cost and expense, to prepare such reports, tests, and studies as Purchaser deems appropriate, including but not limited to surveys, soil tests, engineering studies and environmental tests. Before conducting any invasive or intrusive testing such as borings or test holes, Purchaser shall give City at least forty -eight (48) hours prior written notice, and shall coordinate the date and time of such testing to enable City's representatives and/or consultants to be present to take duplicate samples and record the methods used by the Purchaser's consultants. The Purchaser's inspection period shall not exceed thirty (30) days from the effective date of the Agreement unless otherwise agreed to by both parties in writing. (b) Purchaser agrees to repair any damage to the Property resulting from any activities of Purchaser or his agents or consultants on the Property before closing. Purchaser agrees to defend, indemnify and hold the City harmless from any and all damages, expenses, claims, or liabilities (including but not limited to attorney's fees and costs) arising out of any activities of Purchaser or his agents or consultants on or about the Property before closing, except to the extent that the same results from the City's negligence. Purchaser shall not be liable for any Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 2 inspection claim resulting from Purchaser's discovery of any pre- existing condition (including, but not limited to, the existence of any hazardous materials) in, on, under or about the Property or any exacerbation of a pre- existing condition in, on, under or about the Property, except to the extent that the exacerbation results from the negligent act or omission of Purchaser or his agents or consultants. 6. Title. Title to the Property is to be so insurable at closing under terms of the title policy required to be delivered by City under terms of paragraph 7 hereof. All title insurance charges for the policy referenced in paragraph 7 below in the amount of the purchase price shall be equally divided between the parties, except for the cost of any special endorsements requested by Purchaser and cancellation fees shall be paid by Purchaser. 7. Preliminary Commitment. Within fifteen (15) days from the last party's execution of this agreement, City shall furnish Purchaser with a preliminary report/commitment from Benton - Franklin Title for an ALTA owner's policy of title insurance with respect to the Real Property, together with a copy of each document forming the basis for each exception referenced therein. Purchaser shall advise City of any title objections within five (5) days of its receipt of the report/commitment to remove all exceptions or conditions in the title commitment. If within ten (10) days after its notice to City, Purchaser have not received evidence satisfactory to it that such unsatisfactory items can and will be removed at or prior to closing at City's sole cost and expense, then Purchaser may elect to (a) terminate this Agreement and receive a full refund of the deposit, (b) waive such defects, or (c) continue this Agreement in effect pending their removal. Removal of unsatisfactory items or their waiver shall be a condition of closing. If Purchaser does not make an election within thirty (30) days of its execution of this Agreement, Purchaser shall be deemed to have waived the defects. 8. Due Diligence; Inspection Period. (a) Within fifteen (15) days following the last party's execution of this Agreement, City shall provide Purchaser with the title commitment described in paragraph 7 above, together with all relevant documents relating to the Property, including but not limited to copies of all easement, lot segregation and all other covenants and restrictions with respect to all or portions of the Property; and all existing surveys and other reports and studies relating to the Property or its use or development in the possession of City. (b) Purchaser shall have one - hundred twenty (120) days from the date the last party executes this Agreement (the "Inspection Period ") within which to conduct an examination of the Property, including examinations of title, engineering tests, soils tests, water percolation tests, ground water tests, environmental examinations, market studies, appraisals, and any other tests or inspections which Purchaser shall have deemed necessary or desirable for the purpose of determining whether the Property is suitable for his intended uses. On or before the expiration of the Inspection Period, the Purchaser shall notify City in writing, with a copy to Escrow Agent, whether Purchaser intends to purchase the Property or terminate this Agreement. If Purchaser elects to purchase the Property, then the Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 3 Inspection Period shall terminate and Purchaser's obligation to purchase and City's obligation to sell the Property shall remain, subject to the other terms and conditions of this Agreement. If Purchaser elects not to purchase the Property, then this Agreement shall be void and of no fiuther force and effect, and the deposit shall be returned to Purchaser. In the event Purchaser fails to notify City in writing of its election to purchase the Property or terminate this Agreement prior to the expiration of the Inspection Period, then Purchaser shall be deemed to have elected to terminate this Agreement. (c) Buyer's obligation to purchase this Property is conditioned upon Purchaser, or an affiliate or assign, and the Property being approved by Subaru of America to operate as a Subaru dealership on the Property and JP Morgan Chase committing to lend sufficient funds for Purchaser to construct the automobile retail store and service center on the Property within one - hundred twenty (120) days from the date the last party executes this Agreement. (d) Buyer's obligation to purchase this Property is conditioned upon the City securing a change of zone of the Property to C -R (Commercial Regional District) with auto sales as a permitted use and eligible for freeway signage pursuant to PMC 17.05.050, and as may be subject to a variance as provided by PMC 17.17.010. The City shall make application for the rezone upon execution of this Agreement. 9. Pro - rations. Real Property taxes, assessments, water and other utilities, and all other expenses for the month of closing, shall be prorated as of closing. All expenses, fees and sums owing or incurred for the Property for periods prior to closing shall be paid by City, when and as due. 10. Possession. Purchaser shall be entitled to sole possession of the Property at closing, subject only to the rights, if any, of tenants in possession under the leases. 11. Closing. Closing shall occur within ten (10) days of the conclusion of Purchaser's inspection period as provided in Section 8 above, but in no event later than February 16, 2015. (a) At closing City will deposit in escrow a duly executed statutory warranty deed covering the Property; a FIRPTA affidavit; and all other documents and monies required of it to close this transaction in accordance with the terms hereof. All such documents shall be in form satisfactory to Purchaser's counsel. (b) At closing Purchaser will deposit in escrow the monies required of it to close the transaction in accordance with the terms hereof. 12. Closing Costs. All excise, transfer, sales and other taxes, if any, incurred in connection with the sale, the title insurance premium, recording fees on the deed and the escrow fee shall be equally divided between the parties. The City shall bear all costs associated with the lot segregation. Each party shall bear its own attorneys' fees, except as otherwise expressly provided herein. Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 4 13. Liquidated Damages. As an inducement to develop surplus City property in a manner that brings economic development to the City, the parties agree to the following liquidated damages in the event that Purchaser fails, without legal excuse after the inspection period, to complete the purchase of the Property or fulfill the terms and obligations set forth in paragraph 3. The Purchaser acknowledges that the purchase price and consideration given by City are related to the City's goal of economic development and lost opportunities for development that would arise if Purchaser fails to begin construction of the anticipated development. Purchaser expressly acknowledges that this clause is not a penalty but a reasonable forecast of economic loss if development does not occur at this location. The earnest money /deposit shall be forfeited to the City as the sole and exclusive remedy available to the City for such failure to purchase. In the event City defaults hereunder, Purchaser may pursue all remedies at law or equity, including the right to specific performance, an action for damages, or termination and return of its earnest money. 14. Reversionary Clause and Option to Rgpurchase/Reclaim. (a) This Property is being sold to Purchaser in anticipation of the development of a new Subaru Automobile Sales and Service facility. (b) If the Purchaser fails to submit an application to City for approval of building plans consistent with subsection (a) above, within six (6) months of Closing, the City reserves the right to reclaim title to this Property. If the Purchaser does not initiate construction within twelve (12) months of Closing, City reserves the right to reclaim title to this Property. The City shall reclaim this Property by refunding 90% of the original Purchase Price in the sum of Six Hundred Thirty -One Thousand, One Hundred Eighty -Four Dollars ($631,184) without interest. The City will not assume any liability for expenses incurred by Purchaser in conducting this transaction. Purchaser agrees to re- convey title to the City within sixty (60) days of receipt of notification of City's decision to seek reconveyance of Property. This reversionary right is exclusive to the City and shall be exercised at the sole discretion of the City. (c) This reversionary right survives forty -eight (48) months after closing or until such time as building commences, whichever is earlier. The City shall be under no obligation to exercise this reversionary right. This reversionary clause shall survive the delivery of the Deed, but shall automatically lapse upon expiration of the time periods herein and City shall execute such further documents as Purchaser shall request to release same. 15. Counterparts. This Agreement may be signed in counterparts which, taken together, shall constitute the complete Agreement. 16. Actions During Term. During the tern hereof, City shall not enter into any lease or other agreement affecting the Property or its operation, or modify, extend or otherwise change the terms of any lease or other agreement affecting the Property or its operation or otherwise permit any change in the status of title to the Property without Purchaser's prior written consent. Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 5 17. Assignment. Purchaser may assign Purchaser's interest in this Agreement to an associated or affiliated entity without City's prior written consent. 18. City's Warranties; Indemnity. City makes the following representations and warranties, which shall be deemed remade as of the closing date: (a) The Property and improvements are not in violation of any applicable covenant, condition or restriction or any applicable statute, ordinance, regulation, order, permit, rule or law, including, without limitation, any building, private restriction, zoning or environmental restriction. (b) Other than the obligations of record, there are no obligations in connection with the Property, which will be binding upon Purchaser after closing other than liability for the payment of real estate taxes and utility charges. (c) There are no claims, actions, suits or governmental investigations or proceedings existing or, to the best of City's knowledge, threatened against or involving City or the Property (including, without limitation, any condemnation or eminent domain proceeding or matter related to the formation of or assessment by a local improvement district) and City has received no written notice thereof. (d) All insurance policies now maintained on the Property will be kept in effect, up to and including the closing. City has received no notice from any insurance company or rating organization of any defects in the condition of the Property or of the existence of conditions which would prevent the continuation of existing coverage or would increase the present rate of premium. (e) There are no leases affecting the Property. (f) The Property, as properly rezoned to C -R (Commercial Regional District) allowing automobile dealerships as a permitted use, and there are no land use restrictions or access limitations that would unreasonably limit the construction of an automobile dealership. (g) There are no commissions due to any real estate broker or agent that arise from this Agreement. (h) All such representations and warranties shall be reaffirmed by City as true and correct as of the Closing Date and shall survive the Closing for a period of two (2) years. If, prior to closing, City becomes aware of any fact or circumstance which would change a representation or warranty, then City will immediately give notice of such changed fact or circumstance to Purchaser, but such notice shall not relieve the City of its obligations hereunder. Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 6 19. Environmental Indemnification. (a) City will defend, indemnify, and hold Purchaser and his partners, agents and employees and assignee (collectively, the "Indemnified Parties ") harmless from and against any and all claims, obligations, damages, causes of action, costs and expenses, losses, fines, penalties, and liabilities, including, without limitation, attorneys' fees and costs, imposed upon or incurred by or asserted against an Indemnified Party arising out of or in connection with the occurrence of any of the following: (i) prior to closing: (A) any Environmental Matter affecting or relating to the Property arising out of City's use and ownership of the Property; or (B) any violation of any Environmental Law by City with respect to the Property; and (ii) subsequent to closing: (C) the manufacture, storage, sale, use, disposal, release, or discharge of Hazardous Substance in, on or under the Property by City; or (D) any violation of any Environmental Law by City with respect to the Property. City shall also be responsible for all costs, expenses, fines, and penalties arising out of or in connection with the investigation, removal, remediation, clean- up, and restoration work resulting from the matters described in the preceding sentence. City represents that to the best of its knowledge, after reasonable inquiry, it is not aware of any violation of any Environmental Laws relating to the Property, any Hazardous Materials located on the Property or any Environmental Matter relating to the Property. City's obligations and representations under this Section 22 shall survive closing. (b) "Environmental Laws" shall mean any federal, state or local laws, ordinance, permits or regulations, or any common law, regarding health, safety, radioactive materials or the environment, including but not limited to, the following federal statutes: Clean Air Act (42 U.S. C. §§ 7401 et sea.) ( "CAA "), Clean Water Act (33 U.S.C. §§ 1251 et seq.) ( "CWA "), Resource Conservation and Recovery Act (42 U.S.C. §§ 6091 et seq.) ( "RCRA "), Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. §§ 9601 et seq.) ( "CERCLA "), Emergency Planning and Community Right -To -Know Act (41 U.S.C. §§ 11001 et seq.) (" EPCRA" ), Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.) ( "SDWA "), Hazardous Material Transportation Act of 1975 (49 U.S.C. §§ 1801 et se .) ( "HMTA "), Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.) ( "TSCA "), Endangered Species Act of 1973 (16 U.S.C. §§ 1531 gt seq.) ( "ESA "), Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §§ 136 et seq.) ( "FIFRA "), the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.) ( "OSHA"), the Washington Model Toxics Control Act (RCW Chapter 70.150D) ( "MTCA "), or the Hazardous Waste Management Act (RCW Chapter 70.105) ( "HWMA "), each as amended, and any regulations promulgated thereunder, guidance and directives issued with respect thereto, or policies adopted by the applicable authorities thereunder. (c) "Hazardous Substances" shall mean: (i) any radioactive materials; (ii) any substance or material the transportation, storage, treatment, handling, use, removal or release of which is subject to any Environmental Law; or (iii) any substance or material for which standards of conduct are imposed under any Environmental Law. Without limiting the generality of the foregoing, "Hazardous Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 7 Substances" shall include: asbestos and asbestos - containing materials (whether or not friable); urea - formaldehyde in any of its forms; polychlorinated biphenyls; oil, used oil; petroleum products and their by- products; lead -based paint; radon; and any substances defined as "hazardous waste," "hazardous substances," "pollutants or contaminants," "toxic substances," "hazardous chemicals," "hazardous pollutants," or "toxic chemicals "under the CAA, CWA, RCRA, CERCLA, EPCRA, SDWA, HMTA, TSCA, OSHA, MTCA or HWMA. (d) "Environmental Matter" shall mean any of the following: (i) the release of any Hazardous Substance on or at the Property or any other property; (ii) the migration of any Hazardous Substance onto or from the Property; (iii) the environmental, health or safety aspects of transportation, storage, treatment, handling, use or release, whether any of the foregoing occurs on or off the Property, of Hazardous Substances in connection with the operations or past operations of the Property; (iv) the violation, or alleged violation with respect to the Property, of any Environmental Law, order, permit or license of or from any governmental authority, agency or court relating to environmental, health or safety matters; (v) the presence of any underground storage tanks within the confines of the Property; (vi) the presence of wetlands within the confines of the Property; (vii) the presence of any endangered species on, in or around the Property; or (viii) soil, groundwater and surface conditions on, in or around the Property which may have an adverse affect upon the use or value of the Property. 20. Costs and Expenses. Except as otherwise expressly provided herein, each party hereto will bear its own costs and expenses in connection with the negotiation, preparation and execution of this Agreement, and other documentation related hereto, and in the performance of its duties hereunder. 21. Notices. All notices provided for herein may be delivered in person, sent by commercial overnight courier, telecopied or mailed by U.S. registered or certified mail, return receipt requested, and, if mailed, shall be considered delivered three (3) business days after deposit in such mail. The addresses to be used in connection with such correspondence and notices are the following, or such other address as a party shall from time -to -time direct: City: Purchaser: City of Pasco 525 North 3rd Pasco, WA 99301 Attn: Dave Zabell, City Manager (509) 545 -3404 Bill McCurley 1325 N. Autoplex Way Pasco WA 99301 (509) 547 -5555 Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 8 22. Miscellaneous. (a) Further Documentation. Each of the parties agrees to execute, acknowledge, and deliver upon request by the other party any document which the requesting party reasonably deems necessary or desirable to evidence or effectuate the rights herein conferred or to implement or consummate the purposes and intents hereof, so long as such imposes no different or greater burden upon such party than is otherwise imposed hereunder. (b) Headings. The headings in this Agreement are for convenience only and do not in any way limit or affect the terms and provisions hereof. (c) Calculation of Time Periods. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is a Saturday, Sunday or legal holiday. The final day of any such period shall be deemed to end at 5 p.m., Pacific Time. (d) Time of Essence. Time is of the essence of this Agreement. (e) Gender. Wherever appropriate in this Agreement, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of certain genders shall be deemed to include either or both of the other genders. (f} Exhibits. The Exhibits referred to herein and attached to this Agreement are incorporated herein as if set forth in full. (g) Unenforceability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the remainder of such provision or any other provisions hereof. (h) Amendment, Modifications. This Agreement may not be altered, amended, changed, waived, terminated or modified in any respect or particular unless the same shall be in writing and signed by or on behalf of the party to be charged therewith. 23. Attorneys' Fees. If any lawsuit or arbitration arises in connection with this Agreement, the substantially prevailing party therein shall be entitled to receive from the losing party, the substantially prevailing party's costs and expenses, including reasonable attorneys' fees incurred in connection therewith, in preparation therefore and on appeal therefrom, which amounts shall be included in any judgment entered therein. 24. Waiver. A party may, at any time or times, at its election, waive any of the conditions to its obligations hereunder, but any such waiver shall be effective only if contained in writing signed by such party. No waiver shall reduce the rights and remedies of such Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 9 party by reason of any breach of any other party. No waiver by any party of any breach hereunder shall be deemed a waiver of any other or subsequent breach. 25. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. 26. Facsimile Signatures. Each party (a) has agreed to permit the use, from time -to -time and where appropriate, of telecopied signatures in order to expedite the transaction contemplated by this Agreement, (b) intends to be bound by its respective telecopied signature, (c) is aware that the other will rely on the telecopied signature, and (d) acknowledges such reliance and waives any defenses to the enforcement of the documents effecting the transaction contemplated by this Agreement based on the fact that a signature was sent by telecopy. 27. REMEDIES. IF PURCHASER FAILS, AFTER THE REMOVAL OF ITS CONTINGENCIES, AND WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY, THE DEPOSIT SHALL BE FORFEITED TO CITY AS LIQUIDATED DAMAGES AND THE SOLE AND EXCLUSIVE REMEDY TO CITY FOR SUCH FAILURE. IN THE EVENT OF CITY'S DEFAULT, PURCHASER MAY PURSUE ANY REMEDY AVAILABLE AT LAW OR IN EQUITY, INCLUDING SPECIFIC PERFORMANCE. City's Initials � Purchaser's Initials 28. Entire Agreement. This Agreement and the exhibits hereto constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements, oral or written, express or implied, and all negotiations or discussions of the parties, whether oral or written, and there are no warranties, representations or agreements among the parties in connection with the subject matter hereof except as set forth herein. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates noted below. PURCHASER Bill McCurley CITY PDave Za 1, Cl gerZa 1, Ciger pt!�4 . -J 1 Z .;- N ct.— Date /0- 4•0*-V Date Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 10 A est: Approved as to form: Debbie, City Clerk Lel err, City Attorney Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 11 STATE OF WASHINGTON) ) ss. County of Franklin ) On this day personally appeared before me Dave Zabell, City Manager of the City of Pasco, Washington, to me known to be the individual described in and who executed the within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary deed for the uses and purposes therein mentioned. SUBSCRIBED and sworn to before me `\`�11111Z ti •gS�ON 2 � -4, u NOTARY°' STATE OF WASHINGTON) ) ss. County of ) Residing at V—k4 a.A My Commission Expires: or waslnngton, On this day personally appeared before me Bill McCurley, to me known to be the individual described in and who executed the within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary deed for the uses and purposes therein mentioned. and sworn to before me this CP day of &�, 2014. of Washington, Residing at My Commission Expires: OP c;- Purchase and Sale Agreement, City of Pasco & Bill McCurley - Page 12 &xNiBjr A z 0