HomeMy WebLinkAboutA-1 Properties - Purchase and Sale Agreement - 4.9 AcresPURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (hereinafter "Agreement") is entered into on
this 2 day of Aoawb 2017, between the City of Pasco, a Washington Municipal Corporation
(hereinafter "City") and A-1 Properties LLC, (hereinafter "Purchaser") for establishing the terns
and conditions for the sale of real property (hereinafter "Property") legally described as set forth
below:
A portion of that certain real property designated as Parcel ID Number
113300258, approximately 4.9 acres in size, as shown on Exhibit A, which is
attached hereto and incorporated by this reference. The Parties agree that once a
survey is completed and the property is segregated as set forth below in Section 4
that the parties shall execute an amendment to this Agreement to include the final
legal descriptions.
RECITALS
WHEREAS, City is the owner of real property located in Franklin County, Washington, which
real property is described more particularly in Section 4 below; 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,
In consideration of the mutual covenants contained herein, the parties agree as follows:
Purchase and Sale. City agrees to sell, and Purchaser agrees to purchase:
(a) The property as generally described above and or particularly determined as
provided in Section 4 below.
(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:
(1) The property, Parcel 1 shall be developed as retail and commercial leased
space to include: dining and convenience food service, service oriented
businesses such as cleaners, salons and barber shops, etc.; Parcel 2 shall be
Purchase and Sale Agreement—A-1 Properties LLC - Page 1
a8/3
developed as a hotel or with a continuation of the retail and commercial
development as in Parcel 1.
(2) The property shall be developed substantially in accordance with the
development plan as designated in Exhibit B, which is attached hereto and
incorporated by this reference. However, the parties acknowledge that
Purchaser shall be entitled to make reasonable modifications to the
development plan as reasonably needed but subject to the City's written
approval, which shall not be unreasonably denied.
(3) This Agreement is conditioned upon final approval of the City Council of
the City of Pasco prior to closing as required by PMC 2.46.
2. Purchase Price/Financine. The purchase price for the Property shall be $5.00 per square
foot. The City represents that the Property totals approximately 4.9 acres. The purchase
price will be based upon the square footage defined in such survey. The purchase price is
payable in cash to the City at closing subject to the Phased Options as provided in Section
5 below.
3. Method of Payment. Within ten (10) business days of the effective date of this
Agreement, Purchaser will deposit with Benton -Franklin Title Company (escrow agent),
an earnest money deposit in the sum of Twenty -Five Thousand and 00/100ths Dollars
($25,000.00), which shall be held in an interest bearing trust account. This deposit shall
be applied to the purchase price.
(a) Purchaser agrees that the earnest money deposit 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 to the escrow agent.
4. Survey.
(a) The City shall, at the City's sole expense, within twenty (20) days following the
effective date of this Agreement, provide a current survey showing both Parcel 1
and Parcel 2 divisions of the Property and shall:
(1) Provide a metes and bounds legal description of each parcel of the
Property.
(2) Calculate the exact square footage of the parcels upon which the purchase
price as provided in Section 2 above shall be calculated.
(3) Identify the common roadway location.
Purchase and Sale Agreement—A-1 Properties LLC - Page 2
5.
(b) Purchaser shall have fifteen (15) days from the date of delivery of the survey to
revoke, by written notice, this Agreement at which time this Agreement shall be
null and void and the Purchaser shall be entitled to the return of their earnest
money deposit. If the Purchaser fails to object, or waive its notice to object, the
survey shall be the acknowledged basis upon which the purchase price shall be
calculated as provided in Section 2 above.
(c) The City shall, at City's expense, within thirty (30) days following the
Purchaser's waiver, or expiration of its objection, secure a lot segregation for
creating Parcel 1 and Parcel 2, and a sub -lot segregation which shall be effective
upon closing.
(d) Purchaser shall be entitled to use such segregation survey to complete an ALTA
survey for the purpose of getting extended title insurance at its own expense.
Phased Option.
(a) Purchaser, by its initial below, elects a phased purchase of the Property. Upon
such election, Purchaser shall purchase Parcel 1. The legal description including
the square footage shall be utilized for the calculation of the purchase price at
$5.00 per square foot, which purchase shall be closed as provided in Section 11
and Section 12 below.
(b) Following closing on Parcel 1, Purchaser shall have an option to purchase Parcel
2 on or before January 1, 2022. If Purchaser exercises the option to purchase
Parcel 2 on or before January 1, 2020, the purchase price shall be the same as
stated in paragraph 5(a), above. In the event purchaser does not exercise the
option to purchase Parcel 2 until after January 1, 2020, the purchase price shall be
increased by an amount equal to the increase in the Consumer Price Index (CPI -
U) between the date of closing as provided in Section 1 I below, and the date of
closing purchase of Parcel 2. After January 1, 2020, should another buyer make a
bona fide written offer, which is in excess of the purchase price as set herein, on
Parcel 2 prior to Purchaser exercising the above option, Purchaser shall have the
first right of refusal to initiate an immediate [within thirty (30) days] purchase of
Parcel 2 at the offered price of the bona fide offer. In the event that purchaser fails
to exercise its right of refusal, all further remaining provisions related to Parcel 2
shall be terminated.
(c) As a condition for exercising the purchase option, the Purchaser shall faithfully
perform all terms and conditions of this Agreement including those documents
incorporated by reference.
City's Initials
Purchaser's Initials AV
By the initials above, the parties agree to a phased purchase option as described above.
Purchase and Sale Agreement—A-1 Properties LLC - Page 3
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 Section 7 hereof. All title insurance
charges for the policy referenced in Section 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.
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
forty-five (45) days of its receipt of the report/commitment or within 30 days of the
completion of the ALTA survey, whichever is later, to remove all exceptions or
conditions in the title commitment. If within twelve (12) 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 forty (40) days of completion and acceptance
of the survey as outlined in Section 4 b above, Purchaser shall be deemed to have waived
the defects.
8. Due Diligence; Inspection Period.
(a) Within fifteen (15) days following the effective date of this Agreement, City shall
provide Purchaser with the title commitment described in Section 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 -fifty (150) days from the completion and
acceptance of the survey as outlined in Section 4 b above (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 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
Purchase and Sale Agreement—A-1 Properties LLC - Page 4
the Property, then this Agreement shall be void and of no further 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) Purchaser shall have the option to extend the Inspection Period by up to two (2)
additional terms of forty-five (45) days upon the payment of a non-refundable
deposit of five thousand ($5,000) dollars for each such extension. Such deposits
shall be applied to the purchase price.
(d) 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
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.
(e) Purchaser's option to purchase Property is conditioned upon Purchaser
constructing and operating a retaillcommercial area or hotel, pursuant to the
conditions of sale per Section 1(d) and Purchaser's obligation herein shall be
included as a covenant that runs with the land as a deed restriction on the property
as provided in Exhibit C.
(f) City has entered into a Purchase and Sale Agreement with CBC Student Housing,
LLC, for the sale of approximately the east one-half of City's original,
approximate 10 acre parcel (I.D. Number: 113300255) for the purpose of
development of student housing solely for students of Columbia Basin College.
The Agreement includes a development plan (Exhibit C of the said Agreement,
which is attached hereto as Exhibit D) which sets forth the several onsite and
offsite improvements, together with the responsibility for installation, which are
to be installed as development occurs.
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.
Purchase and Sale Agreement—A-1 Properties LLC - Page 5
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, for at least Parcel 1, shall occur within one hundred and twenty (120)
days of the conclusion of Purchaser's Inspection Period as provided in Section 8 above,
but in no event later than May 1, 2018.
(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 recording fees on the deed and the escrow fee shall be equally divided
between the parties. The City shall pay all excise, transfer, sales and other taxes, if any,
incurred in connection with the sale and the title insurance premium to obtain a
Washington Land Title Association standard form Purchaser's or Owner's Policy of Title
Insurance. Purchaser shall pay the additional cost of any extended title insurance and any
special endorsements it requests. 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.
13. Forfeiture of Earnest Money Deposit - Liquidated Damages. As an inducement to
develop the 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 Section 3. 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.
City's Initials Purchaser's Initialsyt,
14. Reversionary Clause and Option to Repurchase/Reclaim.
(a) This Property is being sold to Purchaser in anticipation of the development of
retail/commercial leased space and/or a hotel.
(b) The Purchaser acknowledges that the purchase price and consideration given by
City are related to the City's goals of economic development and lost
opportunities for development would arise if Purchaser fails to begin construction
of the anticipated development.
Purchase and Sale Agreement—A-1 Properties LLC - Page 6
(c) Unless the failure to commence construction is related to the items identified in
Section 19(f), below, if the Purchaser fails to submit an application to City for
approval of a site plan and 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 as
determined in Section 3 above. In such event, the City shall issue such refund
first to any mortgagor or lien holder on the property to first satisfy any mortgage
or lien, prior to issuing any refund to Purchaser. hi the event Purchaser elects the
phased option provided in Section 5 above, this right of reverter shall apply to
each of the parcels purchased independently. 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 right of
reverter is exclusive to the City and shall be exercised at the sole discretion of the
City.
(d) This possibility of reverter 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 possibility of reverter. 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.
(e) The same possibility of reverter provisions in this section shall also apply to any
to any purchase of Parcel 2 by Purchaser.
15. Covenant Not to Compete. The Seller, City of Pasco, warrants as a part of
consideration for this transaction and as inducement for the Purchaser to purchase the
property, that it shall not, for a period of eight (8) years from the date of Purchaser
receiving an occupancy permit, sell real property owned by the Seller within five (5)
miles of the property to be developed or used for hotel/motel purposes without the prior
written consent of the Purchaser.
16. Counterparts. This Agreement may be signed in counterparts which, taken together, shall
constitute the complete Agreement.
17. Actions During Term. During the term 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.
18. Assignment. Purchaser may not assign Purchaser's interest in this Agreement without
City's prior written consent, which shall not be unreasonably denied.
Purchase and Sale Agreement—A-1 Properties LLC - Page 7
19. 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 is currently zoned C-1 (Commercial) which will accommodate the
intended use of the property as specified in Section 1(d). The City specifically
reserves the right to condition approval of development on building layout,
exterior treatments (aesthetics and open space), parking lot design/capacity,
building height, and such other conditions as may be required to insure the
compatibility of the intended use with its surrounding existing uses.
(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—A-1 Properties LLC - Page 8
20. 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 20 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 sea.) ("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
seg.) ("BPCRA"), Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.)
("SDWA"), Hazardous Material Transportation Act of 1975 (49 U.S.C. §§ 1801
et seq.) ("HMTA"), Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.)
("TSCA"), Endangered Species Act of 1973 (16 U.S.C. §§ 1531 et sea.) ("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
Purchase and Sale Agreement—A-I Properties LLC -Page 9
substance or material for which standards of conduct are imposed under any
Environmental Law. Without limiting the generality of the foregoing, "Hazardous
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 effect upon the use or value of the Property.
21. 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.
22. 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:
City of Pasco
P. O. Box 293
525 North 3rd
Pasco, WA 99301
Atm: Dave Zabell, City Manager
(509)545-3404
Purchase and Sale Agreement—A-1 Properties LLC - Page 10
Purchaser:
A-1 Properties LLC
21505 Cottonwood Drive
Kennewick, WA 99338
Attn: Vijay Patel, President
(541)310-1749
23. 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.
Purchase and Sale Agreement—A-1 Properties LLC - Page 11
24. 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.
25. 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
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.
26. Governing Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of Washington.
27. 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.
28. 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 OW l.i
29. 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.
Purchase and Sale Agreement—A-1 Properties LLC - Page 12
PURCHASER: A-1 Properties LLC
By: Vijay Patel, President
Z
�zi�
DraFe'-Zak4i, City Manager
Attes
2 kJ JILIJ (,f f)vl
Sandy kenwc6hy,
Interim City Clerk
ald oSll L
Date
Date
Appro s to form:
Leland Kerr, City Attorney
Purchase and Sale Agreement—A-1 Properties LLC - Page 13
STATE OF WASHINGTON )
) ss.
County ofs(, _ )
On this day personally appeared before me Vijay Patel, 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.
-01
SUBSCRIBED and swom to before me 's day of 2017.
--rr"—
�NNA,,,PRV�Ycc,,4 -
Q=�.�`5510N Notary ublic in and for the State of Washington,
_O.F �OTq+p<9�� 9 Residing at ��Q,i'1vl t A.)I CA-, (A)+
My Commission Expires: -7-)9-/5
s y
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 this'd ' day of
ll "tO1 P0etoN
P11v1
5 E p SS evWke0
I1 MP GN 3,2p2
Notary Public i�1a-nd for
Residing at r
My Commission Expires:
Purchase and Sale Agreement—A-1 Properties LLC - Page 14
2017.
of Washington,
t lz L t -L
ri
L4_11
FFFF t)
1219-
IZJ
mil
z
P93
L -1
z
C_=
M
0
tL
acoy cy!� >
wxwo
0 J.,
0
Na�MM(9
NO
z
> Q
Z
LU
UJ
ri 4 w
Mme'
U)
LU
VJ
ca
< 0
_j
u DM
w
MM
m MMU
2
t lz L t -L
ri
L4_11
FFFF t)
1219-
IZJ
mil
H. - L - 0 . Z N
P93
L -1
f LLJ
C_=
H. - L - 0 . Z N
L -1
f LLJ
z
W+—'
Mme'
H. - L - 0 . Z N
Exhibit "C"
FILED FOR RECORD AT REQUEST OF:
City of Pasco
525 North 5t°
Pasco WA 99301
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
THESE DECLARATIONS OF COVENANTS, CONDITIONS AND RESTRICTIONS are
entered into this day of , 2017, by and between the City of Pasco, Washington, a
Washington Municipal Corporation (hereinafter referred to as "Declarant') and A-1 Properties
LLC, (hereinafter referred to as "Purchaser").
WHEREAS, the Declarant owns real property located in Pasco, Franklin County, Washington, as
more particularly described below; and
WHEREAS, Purchaser desires to purchase, and the Declarant desires to sell portions of that real
property specifically described below; and
WHEREAS, the Declarant has a continuing interest in the development of that property as well as
the enhancement of the value of the property retained by the Declarant by the adoption of this
Declaration. In consideration of the mutual covenants contained herein:
1. Declaration. The City of Pasco, as Declarant, does hereby declare that the property
described below shall be held, sold, and conveyed subject to the following covenants,
conditions, and restrictions which shall run with the property and any parcel thereof, and
shall be binding on all parties having or acquiring any right, title or interest in such
property, or in part thereof, and shall inure to the benefit of the City of Pasco.
2. Description of the Properties.
2.1 Burdened Property. The property subject to this Declaration is generally
designated as the west 4.9 acres of property designated as Parcel ID No.
113300258, more legally described in Exhibit A, which is attached hereto and
incorporated by this reference.
Declaration of Covenants, Conditions
And Restrictions - I
2.2 Benefitted Property. The benefitted property is that property: (a) retained by the
City of Pasco adjacent thereto, generally described as ,
more legally described in Exhibit B, which is attached hereto and incorporated by
this reference; and (b) the municipal golf course, right-of-ways, and other
municipal properties owned by the City of Pasco.
3. Restriction on Use of Property. The burdened property as described below shall be
developed and used solely for the purposes of providing retail, commercial and hotel
development and associated improvements.
4. Reversionary Clause and Option to Repurchase.
4.1 The burdened property is being sold to Purchaser in anticipation of the
development of retail, commercial and hotel development and associated
improvements.
4.2 The Purchaser acknowledges that the purchase price and consideration given by
Declarant are related to the Declarant's goals of economic development and lost
opportunities for development would arise if Purchaser fails to begin construction
of the anticipated development.
4.3 If the Purchaser fails to submit an application to Declarant for approval of a site
plan and building plans consistent with subsection 4.1 above, within six (6) months
of Closing, the Declarant reserves the light to reclaim title to this Property. If the
Purchaser does not initiate construction within twelve (12) months of Closing,
Declarant reserves the right to reacquire title to the above -entitled Property. The
Declarant shall reacquire this Property by refunding 90% of the original Purchase
Price. In the event Purchaser elects the phased options provided in the Purchase
and Sale Agreement dated , this right of reverter shall apply to each of
the parcels purchased independently. The Declarant will not assume any liability
for expenses incurred by Purchaser in conducting this transaction. Purchaser agrees
to re -convey title to the Declarant within sixty (60) days of receipt of notification of
Declarant's decision to seek reconveyance of Property. This right of reverter is
exclusive to the Declarant and shall be exercised at the sole discretion of the
Declarant.
4.4 This possibility of reverter survives forty-eight (48) months after closing or until
such time as building commences, whichever is earlier. The Declarant shall be
under no obligation to exercise this possibility of reverter. This reversionary clause
shall survive the delivery of the Deed, but shall automatically lapse upon expiration
of the time periods herein and Declarant shall execute such further documents as
Purchaser shall request necessary to release the same.
Declaration of Covenants, Conditions
And Restrictions - 2
5. Common Private Roadway.
5.1 For the benefit of both of the burdened property and the benefitted property above
described, a common roadway, one-half on the Declarant's property and one-half
on the Purchaser's property, shall be established between their respective
properties consisting of a 15 -foot easement encumbering each property at a
location more particularly described in Exhibit C.
5.2 Grant of Easement. By separate document the parties have entered into a
Common Road Maintenance Agreement and Reciprocal Access Easement of this
even date, which shall run with the land and shall encumber and benefit the
properties legally described herein and be binding upon the Purchaser.
6. Enforcement.
6.1 Each property owner shall comply strictly with the covenants, conditions and
restrictions set forth in this Declaration. In the event of a violation or breach of
any of the same, the Declarant or Purchaser, or their successors -in -interest, jointly
or severally, shall have the right to proceed at law or in equity for the recovery of
damages, or for injunctive or other equitable relief as maybe available at law. If
the Declarant or Purchaser seeking enforcement under this section is a prevailing
party in any litigation involving this Declaration, then that party also has the right to
recover all costs and expenses incurred including reasonable attorney fees and
paralegal fees. In the event the Declarant seeks injunctive relief under this
provision, no bond shall be required. In the event a Court of competent
jurisdiction determines, notwithstanding this provision, that a bond is required, a
bond shall be allowed at the lowest amount permissible by law.
6.2 In addition the above rights, the Declarant shall have a right of abatement if
Purchaser fails to take reasonable steps to remedy any violation or breach within
thirty (30) days after written notice sent by certified mail. A Right of Abatement,
as used in this Section, means the right of the Declarant, through its agents and
employees, to enter at all reasonable times upon any property subject to this
Declaration, as to which a violation, breach or other condition to be remedied
exists, and to take the actions specified in the notice to the Purchaser to abate,
extinguish, remove or repair such violation, breach, or other condition which may
exist thereon contrary to the provisions of this Declaration, without being deemed
to have committed a trespass or wrongful act by reason of such entry and such
actions; provided such entry and such actions are carried out in accordance with the
provisions of this Section. The cost thereof including the costs of collection and
reasonable attorneys' fees shall be a binding personal obligation of the Purchaser,
enforceable at law, and shall be a lien on such Purchaser's parcel.
Declaration of Covenants, Conditions
And Restrictions - 3
6.3 Any such lien shall be recorded in the real property records of the Franklin County
Auditor. The Declarant may bring an action to recover a money judgment for
unpaid abatement costs as described above under this Declaration in lieu of
foreclosing a lien. The lien for the abatement costs, provided for in this
Declaration, shall be subordinate to the lien of any mortgage on such property
which was in good faith and for value and which was recorded prior to recordation
of the notice of lien. Sale or transfer of any lot shall not affect the validity of this
lien.
General Provisions.
7.1 The expiration or amendment shall become effective only upon recordation in the
real property records of the Franklin County Auditor's Office.
7.2 Notices and Other Documents. All notices and other communications under this
Declaration shall be given to the parties hereto at the following addresses:
7.2.1 If to Declarant:
Mr. Dave Zabell, City Manager
CITY OF PASCO
PO Box 293
525 North 3rd
Pasco WA 99301
7.2.2 If to Purchaser:
Mr. Vijay Patel, President
A-1 PROPERTIES LLC
21505 Cottonwood Drive
Kennewick WA 99338
7.3 Severability. Each provision of this Declaration of Covenants, Conditions and
Restrictions shall be deemed independent and severable, and the invalidity of any
provision shall not affect the validity of enforceability of the remaining part of that
or any other provision. Except, should it ever be determined that the City of Pasco
is no longer a party benefitted by this Declaration, and is thus no longer capable of
seeking legal remedy to enforce the provisions of this Declaration, then, and unless
appeal or legislation is known to be pending on such determination, these
covenants, conditions and restrictions shall terminate.
Declaration of Covenants, Conditions
And Restrictions - 4
7.4 Dispute Resolution. Except as provided in Section 6 above, in the event of a
dispute regarding the enforcement, breach, default, or interpretation of this
Declaration of Covenants, Conditions and Restrictions, the Parties shall first meet
in a good faith effort to resolve such dispute. In the event the dispute cannot be
resolved by agreement of the Parties, said dispute shall be resolved by arbitration
pursuant to RCW 7.04A, as amended, with all Parties waiving the right of a jury
trial upon de novo, with venue placed in Pasco, Franklin County, Washington.
8. Contingency.
8.1 These Declaration of Covenants, Conditions and Restrictions are contingent upon
the purchase by the Purchaser of the burdened property as described above, and, in
the event of Purchaser's failure to close the purchase of the burdened property, the
Covenants, Conditions and Restrictions as provided above, shall be null and void.
IN WITNESS WHEREOF, the parties have executed this Declaration of Covenants, Conditions
and Restrictions on the day of , 2017.
DECLARANT:
City of Pasco, Washington
0
Dave Zabell, City Manager
Approved as to the Terms and Form:
PURCHASER:
A-1 Properties LLC
M
Vijay Patel, President
Declaration of Covenants, Conditions
And Restrictions - 5
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 this _ day of 2017.
Notary Public in and for the State of Washington,
Residing at
My Commission Expires:
STATE OF WASHINGTON )
) ss.
County of )
On this day personally appeared before me Vijay Patel, 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 this day of 2017.
Notary Public in and for the State of Washington,
Residing at
My Commission Expires:
Declaration of Covenants, Conditions
And Restrictions - 6
Exhibit D
EXHIBIT C
DEVELOPMENT PLAN
As a condition of sale, and as additional consideration to the purchase price, the Parties shall
negotiate a Development Plan which consists generally in conformance with file Site Man
attached as Exhibit 1, and the following, onsite and offsite development, items 1-4, to lie
constructed solely at the cost of the Purchaser:
1. Construction of a common entry, and private roadway and sidewalk, with easement, tiom
20'h Avenue easterly, along the southern boundary of the original parcel to the southwest
comer of sub -parcel A and northerly, along the westerly line of sub -parcel A, to Argent
Road.
2. Un -signalized full intersection at 20'h Avenue with left tum (eastbound onto private
roadway) pocket, and pedestrian sidewalk tie-in along 20 Avenue, south to crosswalk
(see channelization plan, attached).
3. Installation of utilities including a looped waterline (20'h Avenue to Argent Road); stone
water onsite disposal; and sewer line tie-in with the airport lift station.
4. Intersection improvements on Argent Road east of 20'h Avenue ('/, intersection).
The following improvements, items 5 and 6, shall be subject to good faith negotiations and
mutual agreement by the Parties:
5. When warranted, City will install signalized intersection improvements at 20°' Avenuc, at
the cost of the City or other properly developers.
6. Grading of the property to be purchased, to achieve overall design and functionality
objectives.
The Parties recognize the necessity of flexibility in the development of both the property it, he
purchased by Purchaser and that retained by the City which will require continued cooperative
efforts to determine the most beneficial division, configuration, and appearance oi' the
improvements to be constructed upon the property.
City's Initials Purchaser's Initials