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HomeMy WebLinkAboutCOW 2004-08-09 Item 5D - Purchase - Property Exchange Agreement with Northfield Car Wash for $880,000 and Newporter Property COUNCIL AGENDA SYNOPSIS l a._Y4s z Initials I7z;MN0. a (.a i I 1 Meeting Date 1 Pre by 1 Mayor's review 1 Council moiety 1 is w i` r2 I 08/09/04 I AD I ..w1.f/ %iY✓ f l I 7908„ 1 I 1 1 1 5. at. I J 1 1 I ITEM INFORMATION' CAS NUMBER: 04-115 I ORIGINAL AGENDA DATE: 7/19/04 AGENDA ITEM TITLE Northfield Carwash Purchase (Exchange) Property location: 14224 Pacific Highway S. CATEGORY Discussion Motion Resolution Ordinance Bid Award Public Hearing Other Mtg Date 8/9/04 Mtg Date 8/16/04 Mtg Date Mtg Date Mtg Date Mtg Date Mt Date SPONSOR Council Mayor Adm Svcs DCD Finance Fire Legal POR. Police PW/ SPONSOR'S Authorize the Mayor to sign the Northfield Carwash Purchase Agreement. The agreement SUMMARY includes purchase of the Northfield property for approximately $880,000 ($830,000 purchase price plus approximately $S0,000 in other costs). Also the Newporter property, owned by the City, will be transferred to the seller. REVIEWED BY COW Mtg p CA &P Cmte F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DATE: 8/2/04 RECOMMENDATIONS: SPONSOR /ADMIN. Review draft agreement and Northfield's comments. CoMMITrEE Forward to 7/19 COW. (COST IMPACT /aFUND SOURCE;. EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $880,000 $880,000 $n /a Fund Source: WILL BE EVENTUALLY PAID BACK WHEN TUKWILA VILLAGE PHASE I IS BEGUN. Comments: F MTG DaTE 4V k: ECORD OF.CObNCILfA &T.IOici L_ I 7/19/04 Removed from COW agenda. I 11/1176 DATE_ 4:> s i .:ATTACHMENTS 8/09/04 Staff report dated July 29, 2004 Proposed changes to the draft agreement from Northfield's attorney F&S committee minutes dated 8/2/04 To: Mayor & Finance & Safety Committee From: Alan R. Doerschel ~ ~)J~ Date: July 29, 2004 Subject: Northfield Car Wash Attached for your review is the latest draft of the Northfield Car Wash agreement. Most of the concerns expressed by the Committee have been addressed with new language. The additional costs, which will be borne by the City, are: Title Insurance in Sections 7 & 8 $3,500 Financing Charges by Frontier Bank 4,000 Environmental Report on Northfield Site 15,000 Environmental Report on Newporter 3,000 Real Estate Transfer Tax {net) 17,000 Other Closing Costs (contingencies) 7,500 Estimated Total $50,000 Andy Berg and his attorney are reviewing this revised draft. We plan to move the final draft to the Council meeting of August 9th with fiscal authority for the Mayor to sign at the August 16, 2004 meeting. From: "Kokie" <kadams@purcelladams.com> To: "'Shelley Kerslake'" <tukatty@ci.tukwila.wa.us> Date: 8/4/04 11:39AM Subject: RE: Northfield agreement August2,2004 Sent via Email and First Class Mail Shelley Kerslake City Attorney for Tukwila 6200 Southcenter Blvd. Tukwila, WA 98188 Re: Property located at 14224 Pacific Highway South, Tukwila ("Northfield Property") Dear Shelley: I received an(~ reviewed the latest draft of the Property Exchange Agreement and offer the following responses. Paragraph 4: the fifteen month time period is essential to my client. Mr. Berg's contractor has determined that fifteen months is a minimum period to plan, permit and construct the new carwash. Please note that, while it is true that these negotiations have been going on for a long time, Mr. Berg cannot begin the permitting and construction process until the agreement has been signed. During the time the new car wash is being constructe(~ Mr. Berg will need the income from the existing car wash to meet his bank and other obligations. As you may recall, the original plan was for the City to construct the new car wash and then complete the exchange, maintaining Mr. Berg's income stream throughout the process. Mr. Berg will agree to a maximum of fifteen months and, if the new car wash is finished ahead of schedule, Mr. Berg will vacate within ten (10) days of the completion of the new car wash. Alternatively, if the City requires the property sooner, the City could pay Mr. Berg an amount equal to his annualized average net monthly income for each of the two additional months. This provision gives Mr. Berg ~he time he needs and provides an incentive for both Mr. Berg and the City to cooperate in issuance of the permits. It also provides the City with maximum flexibility in that it can "buy" Mr. Berg out of the last two months. Paragraph 5: Mr. Berg will agree to the following payment schedule: $230,000 at closing, $420,000 upon issuance of the construction permit and $180,000 90 days after the commencement of construction. This payment structure accommodates my client's Frontier loan and the initial permit fees and contractor costs. Paragraph 6: this paragraph needs to reflect the fifteen month timetable. Also, please add to the line that begins "[U]pon delivery of such title," A .~'~)~e~:~he - RE 'Northfi~i~aag~emem ........................... 15Age";;I the following phrase: "provided that, any monetary liens may be paid from the City's cash payment." Paragraph 9(b); the amount of the bank fees ne~ds to reflect the actual amount to be charged by the Bank for the substitution of collateral. Mr. Berg has requested the Bank provide him with a figure. Paragraph 12(b): in the third paragraph, please change line two to rea: In the event such fill is unacceptable as fill material for use on the City Properly in the possession of Northfield for a car wash, at the time of development or otherwise inappropriate due to contamination, the City shall pay for any removal or other disposition. This determination will be made by a third party consultant, approved and 3aid by the City. With these changes, we can, hopefully, come to a quick execution of this document so Mr, Berg can begin the process of constructing the new car wash. I look forward to hearing from you at your early convenience. Very truly yours, Purcell & Adams, PLLC Kokie E. Adams cc: Andy Berg ..... Original Message ..... From: Shelley Kerslake [mailto:tukatty@ci.tukwila.wa.us] Sent: Thursday, July 29, 2004 11:31 AM To: Kadams@purcelladams.com Cc: Northfieldcw@aol.com Subject: Northfield agreement Here are the changes that the City Council requested. Please review and let me know your thoughts. Shelley Kerslake Kenyon Disend, PLLC 11 Front Street South Issaquah, WA 98027 425-392-7090 CC; "Doug" <Doug@PurcellAdams,com>, <northfieldcw@aoLcom> PROPERTY EXCHANGE AGREEMENT THIS AGREEMENT ("Agreement") is made and entered into as of this day of , 2004 by and between the City of Tukwila, a municipal corporation; ("City"), and Northfield Ventures, LLC ('~orthfield"). RECITALS A. The City is the owner of certain real property commonly known as 14840 Pacific Highway South in the City of Tukwila, King County, Washington, legally described in Exhibit A attached hereto and incorporated herein by this reference ("City Property"). B. Northfield is the owner of certain real property commonly known as 14224 Pacific Highway South in the City of Tukwila, King County, Washington, legally described in Exhibit B attached hereto and incorporated herein by this reference ("Northfield Property"). C. The City ha_sd determined that the Northfield Property is necessary to its development of Tukwila Village, a proiecl that has been dete~nined to be a public p~oi eet ...........~o~,~ ,,,L ~ w~ t,,,,r,~o~.- ...... Under threat of condemnation pursuant to RCW 81.112, the City and Northfield agree that Northfield will deed the Northfield Property to the City in exchange for the City Property and payment of additional funds~ ·the value of the City Property and the additional funds constituting -just compensation for the Northfield Property. AGREEMENT The parties hereto agree as follows: 1. Recitals Incorporated. The above recitals are incorporated herein as part of the substantive terms of this Agreement. 2. Property Exchange and Consideration. Under threat of condemnation, Northfield agrees to convey the Northfield Property to the City by Statutory Warranty Deed upon o_Closing, as ~-~'~ kcrem ~ ....... ~ ~set forth in Section i3 of this Agreement. As just compensation for the Northfield Property and in consideration for Northfield's agreement to establish a new ear wash facility in Tukwila, the City agrees to convey the City Property to Northfield by Statutory Warranty Deed at Closing and shall pay Northfield in accordance with Section 5 of this Agreement.r~gl~ C:\TEMPkNorthfiledfmalredlined72304.doc~: 150 ..... ~; Page 1 of 16 3. Tax Consequ~ncos. N~i~r p~y m~s any representations or w~antios, ~xpmss or impliod, r~garding th~ a~al tax cons~quonc~s of tho prop~ oxch~g~. 4. Operation of Existing C~ Ww~h. Tho Ci~ and No~hfi~ld intond to allow No~hfiold to continu~ operating tho ~xisting cg w~h facility ("Existing Car W~h") located upon th~ No~hfi~ld P_prop~y at its sol~ risk for a period up to, but not to ~xce~d, [ flfirteen fi'Ree~vmonths ~om the execution of this AgreementC ...... ~. This period may be extended by mutual a~ement of the pa~ies. No.field will indemi~ ~e City ~ described in ' ~ __ Sec~oO~.~.~v.. 10~ hereo[ The CiW ~d No.field ac~owledge that ' - ......... ~ valuable fi~t ~d is the right ~anted to No~hfield by this sSechoh.~..=..v- is a consistent wi~ providing just compensation for the No~hfield Prope~. 5. Payments. (a) $230,00~ shall be paid to Northfield by the CiWupon Closing. e*nn nan aid (b) $300,000~ .... , .... shall be ~ to Northfield by the City upon issnance of the construction permit for a new c~ wash facihW to be built by Northfield on the City Property. (c) $300,000¢.~,~e*nn nan shall be paid to Noahfield b~ ~e City 90 days aRer commencement of consNuction by No~hfield of the new car w~h Pacilitv on the CiW Prope~. 6. Time for Developmem of New Car Wash. The Ci~ ~d No~hfield intend to ~sfer the City Prope~y to No~hfield as a location for ~e development ~d construction of a new car wash facility (~e '~ew C~ W~h") wi~in a period not to exceed thirteenfi~een months from the date of execution of ~is Aa~eement. h the event ~at the New Car W~h is not under consmction by such date, No.field shall deliver title to the City PropeNy to the City, ~ee ~d cle~ of ~y liens or encmbr~ces ~sing since Closin~ ~d No.field shall vacate the City Prope~. Upon such delive~ of title, No~hfield shall be paid $945,000 in cash, less mW monies p~d by the City aRer Closing. Shoukl ~e City Properly not be delivered to the City free and clear of ~y liens or C:XTEMP~o~file~malredlined72304.doc ~: ,~i..' Page 2 of 161514 encmnbrances, no payment will be due Northfield. and..:c ,~.^..v r-;,...~.¥ ~.,.o ....... ..~+ s~, ....... v.-.-:a ,h~..~ constitute, with prior payments and other consideration described herein, just compensation for the Northfield Property. 76. Condition of Title - City Property. (a) City Property Title Commitment. The City shall, as soon as practicable, cause to be furnished to Northfield a commitment for an owner"s standard coverage policy of title insurance ("City Property Title Commitment") issued through a title company mutually approved by Northfield and the City ("Title Company"), describing the City Property, listing Northfield as the prospective named insured~ and showing Eight Hundred Thirty Thousand Dollars ($830,000.00) as the policy amount. (b) Review of City Property Title Commitment. Northfield shall have until ten (10) days after receipt of the City Property Title Commitment in which to notify City of any objections Northfield has to any matters shown or referred to in the City Property Title Commitment. Except as expressly set forth herein, any exceptions or other items which are set forth in the City Property Title Commitment to which Northfield does not object within the 10-day review period shall be deemed to be permitted exceptions ("Northfield Permitted Exceptions"). Building, zoning, subdivision; or use restrictions applicable to the City Property shall be considered Northfield Permitted Exceptions. With regard to items to which Northfield objects, the following shall apply: £i) City shall have ten (10) days from receipt of Northfield's objections to notify Northfield whether it agrees to remove the unpermitted exceptions set forth in Northfield' s _o©bj eetions; (ii) If City does not agree to remove such unpermitted exceptions, Northfield may, within ten (10) days, -waive and withdraw its objections. If the City agrees to remove such objections, the City shall use all reasonable efforts to cure such objections by the date of_C_elosing. If the City is unable to cure such objections by the date of Celosing, Northfield may, as Northfield's sole remedy, waive the objections not cured and proceed to C__elosing or terminate this Agreement by notice to the City. 8_g.- Condition of Title - Northfield Property. C:\TEMP'uNorthfiledfinalredlined72304.docG:\Ci~; Attc:~..~.;\She. llc.;\?~.c:'t, hff!zdfina!r¢~l;.ne~7220~. ! 5 O ~..d.':e G:hAPP S\OI~.~Tu!:w~!a\Ccntra.~t\?.~cr t~l:d*malrcd!!n*d7150~ .dccC:\W~OW S\TEMP\ffna! Page 3 of 161~14 (a) Northfield Property Title Commitment. Northfield shall, at City's expense vv, pursuant to Section 13(b)(ii)(B), practicable, cause to be fumished to City ~ commi~ent for an ownerZ's standard coverage policy of title insurance ("No.field Prope~ Title Commitment") issued t~ough the Title Company, describing ~e No~hfield Propemy, listing CiW as the prospective named insured~ ~d showing One Million Fo~ H~dred Thousand DoIlms ($1,400,000.00) as the policy amount. (b) Review of No~hfield Propemv Title Co~i~ent. CiW shall have until ten (10) days a~er receipt of the Noghfield Prope~y Title Co~itment in which to noti~ Noahfield of ~y objections CiW has to ~y matters sho~ or refeged to in the No~hfield Prope~y Title Commitment._ Except as expressly set fo~h herein, ~y exceptions or other items which ~e set fo~h in the No~hfield Prope~ Title Co~ent to which CiW does not object within the 10-day review period shall be deemed to be pe~itted exceptions ("CiW Pe~itted Exceptions"). Building, zoning, subdivision or use resections applicable to the No~hfield Prope~ shall be considered City Pe~itted Exc~tions. No~hfield's existing Frontier Ba~ lien shall not be considered a CiW Pe~iRed _ v~-~-~v-. Agg(b) shall govern ~e removal thereof. With reg~d Exception and Section ....... ~ v to items to which City objects, the following shall apply: ~i) Northfield shall have ten (10) days ~om receipt of City's objections notify the CiW whether it a~ees to remove ~e ~pe~i~ed exceptions set fo~h in the City's ~Objections; and iii) If No.field does not a~ee to remove such ~pe~itted exceptions, City may, within ten (10) days,-waive ~d withdraw its objections. If Noghfield a~ees to remove such objections. No~hfield shall use all reasonable effo~s to c~e such objections by ~e date of ~elosing. gNo~field is ~able to cure such objections by ~e date of closing, City may, objections not cured ~d proceed to closing or tek.ate ~is Ageement by notice No~hfield. ~g. Conditions Precedent. The p~ies' obligations under t~s A~eement ~d the effectiveness of this A~eement shall be subject to the following conditions precedent: (a) Mspection Contingency. This A~eement is conditioned on ~ inspection repo~ of ~e City Prope~. ~ithin ~enty (20) days of the mutual acceptance of this A~eement, No~hfield shall ~ge an inspection of ~e CiW Prope~. The inspection repog shall 'be prepared by a professional inspector of ~o~hfield's~ choice approved by thc City ~d at No~hfield's expense. Noghfield may disapprove the inspection repo~ on the basis of any condition identified in the inspection repo~ ~at the inspector C:kTE~o~ledfinalre~ined72304.doe~:~C!z' 1504.doc~ Page 4 o f 1 recommends be corrected. This contingency shall conclusively be deemed satisfied unless, within twenty (20) days after execution hereof, City receives from Northfield notice of disapproval identifying the condition(s) contained in the inspection report to which Nortbfield ~3~v~-objects, and a copy of the inspection report. If City does not agree ~n writing to correct the condition(s) identified by Northfield, then within three ~ days thereafter Northfield ~::2,'c:' may elect to terminate this Agreement, in which event this Agreement shall be null and void and of no further force and effect. City hereby grants to Northfield and its agents, employees, and independent contractors right of entry onto the City Property to make such soil tests and such other investigation as Northfield may deem reasonably necessary; provided, however, that such investigation shall not cause any damage to the City Property. Northfield shall hold City harmless from and against any and all liabilities incurred by Northfield by reason of damage to persons or property arising from the negligent or intentional acts or omissions of Northfield or its agents on the City Property. Furthermore, Northfield shall not permit any lien to be placed on the City Property by any person hired by Northfield for the purpose of examining, inspecting, or surveying the City Property. _If any such lien or other charge of any kind is placed on the City Property, Northfield shall promptly discharge it by paying the amount claimed or posting a bond in lieu of the lien. (b) Financing Contingency. Northfield currently holds title to the Northfield Property subject to an underlying Frontier Bank loan secured by a first deed of trust. This Agreement is contingent upon Frontier Bank's acceptance of the City Property as substitute collateral on that above-mentioned loan. City shall be responsible for payment of any fees charged, not to exceed $4000.00, to Northfield by Frontier Bank as a result of said substitution of collateral. Furthermore, if Frontier Bank requires a standard lender's policy of title insurance, the City shall pay costs associated with obtaining that policy. In the event Frontier Bank is unwilling to accept the substitute collateral, this Agreement shall be null and void and of no further force and effect. 109. Indemnity. During the period of time after Closing, until b ......... Northfield ceases operations of the Existing Car Wash, Northfield covenants and agrees to indemnify, defend, and hold harmless the City, its officers, agents~ and employees from and against any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys'z fees in connection with or occasioned, in whole or in part~ by any act or omission arising from or out of Northfield's operation of the Existing Car Wash. With respect to the operation of the Existing Car wWash, and as to claims against the City, its officers, agents, and employees, Northfield waives its immunity under Title 51 of the Revised Code of Washington for injuries to its. employees and agrees that the Section. p~,~.~v.. obligation to indemnify, defend~ and hold harmless provided for in this ....... h extends to any claim brought by or on behalf of any employee of Northfield. C:\TEMPXNorthfiledfinalredlined72304.docu: ,vi..' Page 5 of 16!5!'! The parties mutually negotiated this waiver._ This indemnity provision shall not apply in the event any acts or omissions of the City were the sole cause of any such damage or injury. _To the extent any of the damages referenced herein were caused by or resulted from the concurrent negligence of the City, its agents~ or employees and Northfield, its officers, agents, and employees, this obligation to indemnify, defend and hold harmless is valid and enforceable only to the extem of the negligence of Northfield, its officers, agents, and employees. 1 10. Disclosure. (a) City Property Disclosure. Northfield acknowledges that, except as expressly set forth in this Agreement, neither City nor any agent or representative or purported agent or representative of City have-has made, and City is not liable for or bound in any manner by, express or implied warranties, guaranties, promises, statements, inducements, representations, or information pertaining to the City Property or any part thereof, the physical condition, title, size, zoning, thereof, the uses which can be made of the same or the fitness of any part thereof for any particular purpose of any other matter or thing with respect thereto, except that City warrants that the City Property is properly zoned for use as a car wash facility. Without limiting the foregoing, Northfield acknowledges and agrees that City is not liable for or bound by (and Northfield has not relied upon) any oral or written statements, representations, or any other information respecting the City Property or any portion thereof furnished by City or any other broker, employee, agent, consultant, or other person representing or purportedly representing City. (b) Northfield Property Disclosure. City acknowledges that, except as expressly set forth in this Agreement, neither Northfield nor any agent or representative or purported agent or representative of Northfield has made, and Northfield is not liable for or bound in any manner by~ express or implied warranties, guaranties, promises, statements, inducements, representations, or information pertaining to the Northfield Property or any part thereof, the physical condition, title, size, zoning thereof, the uses which can be made of the same or the fitness of any part thereof for any particular purpose or any other matter or thing with respect thereto. Without limiting the foregoing, City acknowledges and agrees that Northfield is not liable for or bound by (and City has not relied upon) any oral or written statements, representations, or any other information respecting the Northfield Property or any portion thereof furnished by Northfield or any other broker, employee, agent, consultant or other person representing or purportedly representing Northfield. l_2J~. Hazardous Materials. C:\TEMPkNor thfiledfinalredlined72304.doc ~: Page 6 of 16 (a) Northfield Property Hazardous Materials. Northfield hereby represents and warrants to City that the Northfield Property is not and has not been, during the period of Northfield's Oo_wnership of the Northfield pP_roperty, used for the storage or disposal of any toxic or hazardous waste, material, or substance, except to the extent of substances used in the ordinary course of a car wash business, and that no known hazardous materials or substances exist on the Northfield Property._ Northfield hereby agrees to indemnify and hold City harmless from any and all loss, damage, liability~ and expense (including reasonable consultant22s and attorneys' fees) incurred by City arising out of or related to Northfield"s breach of this Sectionparr.~'aph. _Northfield further agrees to submit copies of all materials currently in its possession regarding any testing of the Northfield Property for hazardous materials to City. Additionally, Northfield shall, at City's option and expense and within twenty: -one (21) days of the signing of this Agreement, provide the City with a Level One Environmental Report. If such report shows any reasonable possibility of environmental contamination, Northfield shall, at City's option and expense and within forty-two (42) days of the signing of this Agreement, provide City with a Level Two Environmental Report. If the Level Two report shows any reasonable possibility of environmental contamination, all of the parties agree that City may terminate this Agreement with no penalty by written notice to all parties not later than fifty-seven (57) days after signing the Agreement. (b) City Property Hazardous Materials. Except as referenced in any reports provided by City, City hereby represents and warrants to Northfield that the City Property is not and has not been (during the period of City's ownership of the City Property) used for the storage or disposal of any toxic or hazardous waste,-material~ or substance, and no known hazardous -materials or substances exist on the City Property. City hereby agrees to indemnify and hold Northfield harmless from any and all loss, damage, liability~ and expense (including reasonable consultant's and attorneys-- fees) incurred by Northfield arising out of or related to City's breach of this_ v~,,.~.~.e..Sectlon. City further agrees to submit copies of all materials currently in itshis possession regarding any testing of the City Property for hazardous materials. Such materials shall be supplied to ~oe, th Northfield ~immediately upon signing this Aagreement. City shall, at City's expense and within twenty_--one (21) days of the signing of this Agreement, provide Northfield with a Level One Environmental Report. If such report shows any reasonable possibility of environmental contamination, City shall, at City's expense and within forty-two (42) days of the signing of this Agreement, provide Northfield with a Level Two Environmental Report. If the Level Two report shows any reasonable possibility of environmental contamination., all of the parties agree that Northfield may terminate this Agreement with no penalty by written notice to all parties not later than fifty-seven (57) days after signing the Agreement. G:\City AttorneyXShelley\Northfiledfinalredlined72304.doc ............ :x:-::!.a ,v~n.r::~. a~ ~.~:.c~.:na.rz~,'2n~, Page 7 of 7_~4 Additionally, City acknowledges that City has allowed contractors working on the City right-of-way adjacent to the City Property to fill the City Property with material from offsite. In the event such fill is unacceptable as fill material for a car wash, at the time of deve[opmem, or otherwise hazm'dous~napprcpfia:e due to contamination for use on the City Property in the possession of Northfield, the City shall pay for any necessary and appropriate removal or other disposition. This determination will be made by a third party consultant, approved by the City. 13g~ Closing. (a) Time and Place for Closing. Within thirty (30) days after the date that all of the conditions precedent set forth in Sections 99 above have been satisfied (or such other date as the parties may agree), the closing ("Closing") shall take place. (b) Events at Closing., (i) At Closing, City shall deliver to Northfield the following: (A) A Statutory Warranty Deed duly executed and acknowledged by City conveying the City Property to Northfield~: (B) A standard coverage policy of Title Insurance issued by the Title Company conforming to the reqmrements of Section 8 above insuring Northfield's title in the amount of Eight Hundred Thirty Thousand Dollars ($830,000.00) and containing no exceptions other than the Northfield Permitted Exceptions; and: (C) A non-Foreign Affidavit duly executed and acknowledged by City. (ii) At Closing, Northfield shall deliver to City the following: (A) A Statutory Warranty Deed duly executed and acknowledged by Northfield conveying the Northfield Property to City;~ (B) A standard coverage policy of Title Insurance issued by the Title Company conforming to the requirements of Section 89 above insuring City's title in the amount of One Million Four Hundred Thousand Dollars ($1,400,000.00) and containing no exceptions other than the City Permitted Exceptionsi: and (C) A non-Foreign Affidavit duly executed and acknowledged by Northfield. (c). Events After Closings. (&i_) Within thirteen 5P;c.cn months of the date of execution of this Aagreement, -Northfield shall cease operation of the Existing Car Wash and vacate the Northfield Property_. (g~ Pawnents will be made pursuant to the schedule set forth in Section 5 of th' Agreement tt .... ~,~ i~ ....... ~,.~ ...... -.,,~,: ...... :+ ~^~ ~ XT .... r'~ xx~oh ~,~ (~1_) Expenses. The expenses associated with the above transactions shall be allocated among the parties as follows: (i) Escrow Fees. City shall pay all escrow fees charged by the Title Company. (ii) Attorneys' Fees. Subject to Section 16 below, each party shall pay its own attorneys' fees. (iii) Costs. Except as otherwise excluded or limited elsewhere herein, City shall pay for all transaction costs related to thc property exchange, including but not limited to, premiums for the Policies of Title Insurance, Real Estate Excise Taxes, and the recording fees for the Statutory Warranty Deeds._ City shall pay for all such costs t ...... a - --.v*--~ .ogether w~th the environmental costs. (d_e) Prorations. Real estate taxes, installments of current year special assessments (if and to the oxtent they are approved exceptions), utility charges, and other operating income ~ .......... ~, ...................... , .............................. t~ ..... ~ or expenses applicable to the City Property and the Northfield Property shall be prorated up to and including the date of oClosing, based upon the ac~tual days involved. To the extent that the amounts of such charges, expenses, and income referred to in this Section are unavailable at the Closing date or in the event of prorations made on the basis of C:\TEMP~!or thfiledfinalredlined72304.docG:~,CiW Page 9 of 16 erroneous infmxnation or clerical errors, a readjustment of these items shall be made within thirty (30) days after Closing or as soon as practical after discovery of any erroneous information or clerical error. AfterClosing, City shall be responsible for all expenses related to the Northfield Property and Northfield shall be responsible for all expenses related to the City Property; provided that, Northfield shall be responsible for all expenses associated with the operation of the Existing Car Wash._ City and Northfield shall, on or before Closing, furnish each other and the Title Company with all information necessary to compute the prorations provided for in this Section. l_4g. Signage. City agrees that it shall issue a permit to Northfield, at Northfield's option, to display a sign on the west side of the premises stating that the Northfield car wash has moved to a new location for a period of 30 days after close of the Existing Car Wash. This 30thlrty day period may be extended by mutual agreement. The maximum sign area allowed is 50 square feet per side and a total of 100 square feet for both sides. The sign must be set back from property lines a distance at least equal to the overall height of the sign. The sign shall meet all other sign code regulations. The signage shall be constructed, maintained, and removed at Northfield's expense. 154. Default. Any party hereto shall be in default hereunder if such party shall fail to comply with any term, covenant, agreement, or obligation on its part required, within the time limits and in the manner required in this Agreement. In the event of a default hereunder, the non-defaulting party or parties shall be entitled to pursue all remedies available at law or m equity, including, but not limited to, specific performance. 165. Attorneys" Fees. If it shall be necessary for any party hereto to employ an attorney to enforce its rights pursuant to this Agreement because of the default of another party, the non-defanlting party shall be entitled to recover from the defaulting party or parties all costs, including reasonable attorneys' fees, incurred in connection with such default. 176. Brokerage Commission. Each party hereto represents and warrants that it has not dealt with or engaged any real estate broker in connection with the above transactions. Each party agrees to indemnify, defend, and hold harmless the other parties t~om and against any claims or liability attributable to such party's breach of the foregoing representation and warranty. 18~t. Notices. All notices, demands, requests~ and other communications required or permitted hereunder shall be in writing and shall be deemed delivered on the earlier of (i) three (3) days after posting of registered or certified mail, addressed to the addressee at its address set forth below or at such other address as such party may have specified theretofore by notice delivered in accordance with this Section, or (ii) actual receipt by the addressee, as follows: C:\TEMP\Northfiledfinalredlined72304.docG:\CL':; ~-5~.d~cG9~PP~\~p~u!rwi~a~£`zn~act\?~rtk~ed~na~rcd~n~7~5~`~.d~c~:~!~'rD~W~\TEMP~na~ rcd!!ncd Northfi!ed Exc!mngz 7 !5 9~. .dccC:~c, cu.'v~nt: and S~,",ingz~Zc,!dc~L~za! Se~ngz~Zem"v,era,9· !nternct Filez~LK! a. ~!cXkfic!dPrcpawdExchang:96 ! ~9~.2.dcc Page 10 of 16!61'! TO CITY< City of Tukwila Attn: City Clerk 6300 Southcenter Blvd. Tukwila, WA 98188 With a copy to: Ms. Shelley Kerslake, Esq. Kenyon Disend, PLLC 11 Front St. So. Issaquah, WA 98027 TO NOKTHFIELD: P.O. Box 68016 Seattle, WA 98168 With a copy to: Kokie Adams Purcell &_Adams 4211 Alderwood Mall Blvd. Suite 202 Lynnwood, WA 98036 198. Goveming Law; Venue. The laws of the State of Washington shall govern the validity, enforcement, and interpretation of this Agreement. Any dispute or cause of action under this Agreement shall be resolved ~n a,,,,~.., ..... cf jut ............. King County Superior Court, State of Washington. 204-9. Mutual Agreement. Both parties agree that this Agreement has been mutually negotiated and drafted with the advice of legal counsel and that in the event of a dispute arimng out of this Agreement, neither party shall be construed as the drafting party. 211). Integration; Modification; Waiver. This Agreement constitutes the complete and final expression of the agreement of the parties witch respect to the herein described transactions, and supersedes all previous contracts, agreements, and understandings of the parties, either oral or written. This Agreement cannot be modified, or any of the terms C:\TEMP\Northfiledfinalredlined72304.doc ~:: ,vi. ,' Page 11 of 16 hereof waived, except by an instrument in writing (referring specifically to this Agreement) executed by the party agmnst whom enforcement of the modification or waiver ~s sought. 22_~. Counterpart' Execution. This Agreement may be executed in several counterparts, each of which shall be fully effective as an original and all of which together shall constitute one and the same instrument. 23_~. Invalid Provisions. If any one or more of the provisions of this Agreement, or the applicability of any such provision to a specific situation, shall be held invalid or unenforceable, such prowsion shall be modified to the minimum extent necessary to make it or its application valid and enforceable, and the validity and enforceability of all other provisions of this Agreement and all other applications of any such provision shall not be affected thereby. 24g. Binding Effect. This Agreement shall be binding upon and inure to the benefit of each party hereto, and their respective heirs, personal representatives, successors~ and 254 Assignment xT ............ ;~. ,~.^:...:~,~,~ ~.~:~n,; ..... :~, .... ,~ :~ ,~.;~ ^ ...... · No patty may assign its rights hereunder without the written consent of the other parties, which consent nhall not be unreasonably withheld. For purposes of this Agreement, a party's refusal to consent to a proposed assignment shall be deemed reasonable if such assi..~nment would cause any of the above transactions not to qualify as exchanges pursuant to Section 1031 of the Internal Revenue Code, as amended. 2_65. CareofPropertyPendingCessationofCarWashFacilit¥C!.%:.ng. From the date of this Agreement until the cessation of operation as a car washC!osk:g, Northfield shall continue routine maintenance of the Northfield Property, but shall not be obligated to make significant capital expenditures or improvements (except as specifically required hereunder). 27{/. Restrictive Covenant. City and its heirs, personal representatives, successors~ and assigns agree that a restrictive covenant, in the form attached as Exhibit "__~C" shall be recorded upon title to the Northfield pProperty after .Closing prohibiting any car wash, or related style or type ofbusiness~ to be operated on the Northfield pProperty. C:\TEMPhNorthfiledfinalredlined72304.docG:\C~?l AttcmeTX,Ske!!cy~!exkS!e&qna~c~![ne~7220~. dc, cF :x~,PP $\CIX.ST'c2vr,5!ax,Cvnxa c tx~L~ r ~.,~! e dfir~a!r e ~!~ne~7 150~ .~zcG:~.PPS~CP.n,Tul:w~!a~,Cerz:'act~Ne~le~Sna!re~!~ne~7 ! 50~ .~ccC md!incd Ncrthfilcd Exchange 7 !5 0~.dccC:~ocm~cnt: and SeX[ng:LKc!dcxLcca! S:~ng:~,Tempcm~' Page 12 of 16!57~ 28¢. Authority. City warrants that the City Council of the City has lawfully approved this Agreement and has authorized its Mayor to execute this aA_greement and lawfully bind the City to its terms. Northfield warrants that its shareholders, executive officers, and directors are fully authorized to enter into this Agreement and lawfully bind Northfield to its terms. CITY OF TUKWILA By: __Steven M. Mullet, Mayor Approved as to Form: By: Shelley M. Kerslake, City Attorney NORTHFIELD VENTURES, LLC: By: Andrew Berg, its C:kTEMP\Northfiledfinalredlined72304.docG:\C~; Attc. rn.e-,.~£hc!!c-?,?!~r tkfi!e ffina!r~ f!~ncd723 O~, ~5~i.d~G:~`PPS~!\n~r`.`:!c:::`!~\C~ntr~`c~\x`!~x~`r.`!~d~`n~!r:f!.:n:~f9~.fccC: rcd!in*~ ?!crthfi!cd Exchang.e 7 15 9~. .dc:C:\Dccu:r.:r.*~ :nfl S*.~dng:LKc.!de.~&cc:! S:."Y.2ngs',Tcmpcr:.~' Page 13 of 16!67, EXHIBIT A City Property LEGAL DESCRIPTION: THAT PORTION OF LOTS 8, 27 AND 28 IN BLOCK 2 OF FIRST ADDITION TO ADAM'S HOME TRACTS, AS PER PLAT RECORDED IN VOLUME 12 OF PLATS, PAGE 50, RECORDS OF KING COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF SOUTH 150TH STREET AND THE EASTERLY LINE OF STATE ROAD NO. 1; THENCE NORTH 18028'40'' EAST ALONG THE EASTERLY LINE OF SAID ROAD 126.43 FEET TO THE TRUE POINT OF BEGINNING WHICH IS ON THE NORTH LINE OF THE SOUTH 120 FEET OF SAID LOTS 27 AND 28 AS MEASURED ALONG THE EASTERLY LINE THEREOF; THENCE SOUTH 89°44'10'' EAST ALONG SAID NORTH LINE 190.31 FEET TO A POINT ON THE EAST LINE OF LOT 27 AND WHICH IS 120 FEET NORTH OF THE SOUTHEAST CORNER THEREOF; THENCE NORTH 00033'50'' WEST ALONG THE EAST LINE OF LOTS 27 AND 8, A DISTANCE OF 220.39 FEET; THENCE NORTH 89°44'10" WEST 114.60 FEET TO THE EAST LINE OF STATE ROAD NO. 1; THENCE ON SAID EAST LINE SOUTH 18°28'40' WEST 232 FEET TO THE TRUE POINT OF BEGINNING; AND THAT PORTION OF LOT 26 IN BLOCK 2 OF SAID PLAT, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF SOUTH 150TH STREET AND THE EAST LINE OF STATE ROAD NO. 1 (HIGHWAY 99); THENCE NORTH 18o28'40" EAST, ALONG THE EASTERLY LINE OF SAID ROAD, 126.43 FEET TO POINT WHICH IS ON THE NORTH LINE OF THE SOUTH 120 FEET OF SAID LOTS 27 AND 28 AS MEASURED ALONG THE EASTERLY LINE THEREOF; THENCE SOUTH 89°44'10" EAST, ALONG SAID NORTH LINE, 190.31 FEET TO A POINT ON THE EAST LINE OF LOT 27 AND WHICH IS 120 FEET NORTH OF THE SOUTHEAST CORNER THE ~REOF; THENCE NORTH 00o33'50" WEST, ALONG THE EAST LINE OF LOT 27, A DISTANCE OF 55.89 FEET TO TH TRUE POINT OF BEGINNING; C:\TEMPkNorthfiledfmalredlined72304.docG:\CL%' red .......................... ~. ................................... ~ .......... ~ v , Page 14 of 16 THENCE NORTH 00°33'50" WEST ALONG THE EAST LINE OF LOT 27, A DISTANCE OF 137.48 FEET TO THE NORTH LINE OF LOT 27; THENCE EAST 23.30 ALONG THE NORTH LINE OF LOT 26 WHICH LINE IS A PROLONGATION OF THE NORTH LINE OF LOT 27; THENCE SOUTHWEST 139.06 FEET TO THE TRUE POINT OF BEGINNING; (ALSO KNOWN AS LOT A OF LOT LINE ADJUSTMENT NO. 983059, RECORDED UNDER RECORDING NO. 8901180986) SITUATE IN THE CITY OF TUKWILA, COUNTY OF KING, STATE OF WASHINGTON. C:\TEMP~Northfiledfmalredlined72304.docG:\C[~,' 1501 .... Page 15 of 1615!'! EXHIBIT B Northfield Property--Legal Description PARCEL A: THAT PORTION OF THE NORTH 185.90 FEET OF THE SOUTH 430.9 FEET OF THE WEST 505 FEET OF THE EAST 1,031 FEET OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 15, TOWNSI-II~ 23 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, IN KING COUNTY, WASHINGTON, LYING EASTERLY OF WASHINGTON STATE HIGHWAY NO. 1. PARCEL B: LOT 6, CHERRY LANE, ACCORDING TO THE PLAT THEREOF, RECORDED IN VOLUME 48 OF PLATS, PAGE 21, IN KING COUNTY, WASHINGTON. C:\TEMPkNorthfiledfinalredlined72304.doc u: ,vkv Page 16 of 161614 [ Finance and Safety Committee August 3,'2004 " Page 2 .~5. Car Agreement up the Committee saw it last. Northfield Wash The has been cleaned since Alan had costed out the entire City pay provisions in the contract. Most costs are known. One cost he and Andy Berg are still negotiating over is the cost of financing charges by the new bank. Andy wants more than the $4,000 the City thinks is reasonable. The Committee still had a few questions clarifying the City's maximum cost would be $1,245,000. With a few other recommendations, the Committee sent the Agreement to COW. Recommend Agreement to COW. 6. Motor Scooter Ordinance A draft ordinance was in the packet, and the Committee members thought it covered the scooter issues adequately. Joan said she was unsure what an electric personal-assistive mobility devise (EPAMD) looked like. She also asked what would happen if a . postal delivery person rode one. Though that is not likely now, they would fall within the ordinance, as it allows EPAMDs to operate on roads and sidewalks. Recommend ordinance to COW. 7. Second Quarter Reports There were no comments on the reports. Information. ~ehair approval