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Home My WebLink About1999 - Option Agreement - McConkey Enterprises - 19990929000354 Return Address: CITY OF TUKWILA Office of the City Clerk 6200 Southcenter Blvd. Tukwila, OVA 98188 (206) 433 -1800 CITY OF TL'KWILA DOCUMENT RECORDING COVER SHEET Document Title: Option Agreement Parties: City of Tukwila, Washington Other: McConkey Enterprises C/o Foster Pepper Shefelman PLLC 1111 Third Ave. Suite 3400 Seattle, WA 98101 Assessor's Property Tax Parcel/Account Number(s): 152304- 9096 -08 OF TALI L AG 19 00 19990929000354 PAGE 001 OF 012 09/29/1999 09:26 KING COUNTY, WA RECORDED AT THE REQUEST OF: AND AFTER RECORDING RETURN TO: Michael D. Kuntz Foster Pepper Shefelman PLLC 1111 Third Avenue, Suite 3400 Seattle, Washington 98101 OPTION AGREEMENT (Northfield Car Wash) Grantor: McConkey Enterprises Grantee: City of Tukwila Legal Description: PTN OF SE 1/4 SW 1/4 SEC 15 TWN 23 N RING 4 E Official legal description on Exhibit A Assessor's Tax Parcel ID: 152304- 9096 -08 Reference (If applicable): Not applicable. Attnr inn ant 9 CITY OF 11.811IL 19.22 1999 0929000354 FACE 222 OF 012 09,29/1969 29:26 KItu !AUNTY, PA OPTION AGREEMENT (Northfield Car Wash) This Option Agreement (the "Agreement is made this 19th day of July, 1999 by and between McConkey Enterprises, a Washington sole proprietorship ("McConkey") and the City of Tukwila, a Washington municipal corporation (the "City RECITALS: A. McConkey is negotiating to obtain the right to acquire certain real property and improvements within the City of Tukwila, as more particularly described on Exhibit A attached hereto and made a part hereof by this reference (the "Property in exchange for certain other property currently owned or to be acquired and developed by McConkey. B. Upon McConkey's acquisition of the Property, McConkey has agreed to grant the City an option to purchase the Property and the City has agreed to grant McConkey an option to put the Property to the City, each in accordance with the terms and conditions contained in this Agreement. NOW, THEREFORE, in consideration of the agreements contained herein and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Option of the City to Purchase the Property. Upon McConkey's acquisition of the Property, McConkey shall and does hereby grant the City and its successors and assigns an automatic, irrevocable and exclusive option to purchase the Property in accordance with the terms and conditions set forth herein (the "Purchase Option"). 1.1 Term. The term of the Purchase Option shall automatically commence simultaneously with McConkey's acquisition of the Property, and shall terminate at midnight on July 31, 2002 (the "Purchase Option Term 1.2 Exercise of Option. The City may exercise the Purchase Option at any time prior to expiration of the Purchase Option Term by delivering written notice of such exercise (the "Purchase Notice to McConkey by hand delivery, overnight courier service, or United States certified mail, return receipt requested, and addressed as follows (or such other address as McConkey may specify in a written notice delivered to the City at the address listed below). McConkey Development Company 3006 Northup Way, Suite 101 Bellevue, Washington 98004 Attention: Frederick W. McConkey 19 -00 19990929000354 PAGE 603 OF 012 09/29/1599 09:26 KIA� CO'_NTY, VA CX-.62 C2 The Purchase Option shall be considered exercised upon actual delivery of the Purchase Notice to McConkey or upon deposit of the Purchase Notice in the United States mail, within the time frame and in the manner provided above. 1.3 Effect of Exercise. Upon exercise of the Purchase Option, McConkey shall be absolutely and unconditionally obligated to sell the Property to the City in accordance with the provisions of Section 4 of this Agreement. 1.4 Failure to Exercise. If the City fails to exercise the Purchase Option within the Purchase Option Term, then the Purchase Option shall immediately and automatically terminate and be of no further force and effect, and thereafter McConkey shall have the right to exercise the Put Option (as hereinafter defined) in accordance with the terms and conditions contained in Section 2 of this Agreement. 2. Option of McConkey to Require the City to Purchase the Property. Upon McConkey's acquisition of the Property, the City shall and does hereby grant McConkey and its successors and assigns an automatic, irrevocable and exclusive option to require the City to purchase the Property in accordance with the terms and conditions hereinafter set forth (the "Put Option 2.1 Term. The term of the Put Option shall automatically commence simultaneously with McConkey's acquisition of the Property and shall terminate at midnight on September 30, 2002 (the "Put Option Term 2.2 Exercise of Opt McConkey may exercise the Put Option at any time prior to expiration of the Put Option Term by delivering written notice of such exercise (the "Sale Notice to the City by hand delivery, overnight courier service, or United States certified mail, return receipt requested, and addressed as follows (or such other address as the City may hereinafter specify in a written notice delivered to McConkey at the address listed in paragraph 1.2 above). City of Tukwila 6200 Southcenter Boulevard Tukwila, Washington 98188 Attention: Finance Director !ol 0,11111 The Put Option shall be considered exercised upon actual delivery of the Sale Notice to the City or upon deposit of the Sale Notice in the United States mail, within the time frame and in the manner provided above. 2.3 Effect of Exercise. Upon exercise of the Put Option, so long as McConkey has complied with the terms and conditions of this Agreement, including, without 7 19 -03 19990929000354 PAct 834 OF 012 09/29/1999 09:26 KING !SUM, 110 limitation, the covenants contained in Section 3 of this Agreement, the City shall be absolutely and unconditionally obligated to purchase the Property in accordance with the terms provisions of Section 4 of this Agreement. 2.4 Failure to Exercise. If McConkey fails to exercise the Put Option within the Put Option Term, then the Put Option shall immediately and automatically terminate and be of no further force and effect, and neither party shall have any further rights or obligations under this Agreement. 3. Covenants and Obligations of McConkey. From the date of this Agreement until the earlier to occur of (i) the consummation of the purchase of the Property by the City from McConkey and (ii) the expiration of term of the Purchase Option and the termination or expiration of the Put Option, McConkey covenants and agrees as follows: (a) McConkey will use its best efforts to acquire the Property as soon as reasonably possible; (b) Within two days of its acquisition of the Property, McConkey will notify the City in writing that it has acquired the Property, such notice to be delivered in the manner and at the address listed in Section 2.2 of this Agreement. The City shall have the right to record this Agreement at any time after McConkey has completed its acquisition of the Property; (c) McConkey will not develop or materially alter the Property in any manner, or consent to the development or alteration of the Property, except that McConkey may, at its option, demolish and remove any structures and equipment existing on the Property as of the date hereof; (d) McConkey will not lease, rent or permit anyone to occupy the Property, and will not consent to the leasing, rental or other occupancy of the Property, other than tenants occupying the Property pursuant to written leases existing as of the date hereof or other leases which can be terminated on no less than 30 days notice; (e) McConkey will not encumber the Property or enter into any contracts, agreements, deeds of trust, mortgages, or other understandings with respect to or affecting the Property without the City's prior written consent, and will not consent to any encumbrance of the Property or the execution of any contracts, agreements, deeds of trust, mortgages or other understandings with respect to or affecting the Property; (f) McConkey will perform all of its obligations under any leases or agreements affecting the Property, and will require the current owner of the Property to perform all of its obligations under any leases or agreements affecting the Property; 53 I09fi202 3 19.07 19990929000 Pf.LE e95 0r 012 09/29/1979 09 :20 KING COUNTY, ft (g) McConkey will use reasonable efforts to cause the current owner of the Property to keep and maintain the Property in its condition as of the date of this Agreement, ordinary wear and tear excepted, free of rubbish, debris and hazardous substances and materials, and will not allow the current owner of the Property to store, discharge, deposit or dump hazardous or toxic wastes or substances on or at the Property; (h) From and after the date of its acquisition of the Property, McConkey will keep and maintain the Property free of rubbish, debris and hazardous substances and materials, and will not store, discharge, deposit or dump hazardous or toxic wastes or substances on or at the Property. McConkey hereby agrees to indemnify, defend and hold the City harmless from any and all loss, damage, liability or expense, including, without limitation, attorneys' fees and costs, the City may suffer arising from or as a result of any failure of McConkey to perform the covenants and obligations contained in this Section 3. This indemnity shall survive the termination of this Agreement and the closing of any purchase and sale of the Property pursuant to the terms of this Agreement. 4. Terms of Purchase. In the event of an exercise of the Purchase Option or the Put Option, the terms of the sale shall be as follows: (a) The purchase price for the Property shall be One Million Four Hundred Thousand Dollars (51,400,000), payable by the City by wire transfer or in certified funds at Closing. (b) Closing shall occur 30 days after exercise of the Purchase Option or the Put Option, or earlier upon ten (10) days' prior written notice from the City. (c) Title to the Property shall be conveyed by statutory warranty deed, free and clear of all liens and encumbrances except (i) nondelinquent taxes and assessments, (ii) the exceptions to title reflected in the Commitment for Title Insurance issued by Transnation Title Insurance Company, Order No.868492, effective April 26, 1999, and all supplements thereto issued prior to the date of this Agreement, and (ii) such exceptions as may have been expressly approved in writing by the City. The other terms of the sale shall be governed by the provisions of Sections 6 (as to the type of title policy to be provided at Closing), 7(a), (b), (c) and (d), 8, 9, 10, 10, 11(a), (b), (c), (d), (e) and (f) and 14 through 27 of that certain Property Transfer Agreement between McConkey and the City dated July 19, 1999, which is incorporated herein by this reference. 5. Access. At any time from and after McConkey's acquisition of the Property, the City shall have the right to access the Property to conduct such studies, tests, surveys or other investigations as the City may desire, provided that the City agrees to indemnify, defend and SDI 1,_ 4 111M!IIIIA 19.69 19990929000354 POSE ees OF 012 09x9/1999 09 :26 KING ccJNTY, t,F'1 hold McConkey harmless from all claims, costs and liabilities relating to personal injury or property damage arising out of the City's entry onto the Property. 6. Negotiation and Construction. This Agreement and each of the terms and provisions hereof are deemed to have been explicitly negotiated between the parties, and the language in all parts of this Agreement shall, in all cases, be construed according to its fair meaning and not strictly for or against either party. 7. Successors and Assi s. City shall not assign this Agreement without McConkey's prior written consent, which shall not be unreasonably withheld. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, heirs, administrators and assigns. 8. Breach. Remedy. In the event either party defaults or fails to perform its covenants or obligations hereunder, the aggrieved party may seek any and all remedies available at law or in equity, including, without limitation, specific performance. 9. Entire Agreement. This Agreement, together with the agreements entered into between the parties simultaneously herewith, contains the entire understanding between the parties and supersedes any prior agreements between them respecting the subject matter hereof. There are no other representations, agreements, arrangements or understandings, oral or written, between the parties relating to the subject matter of this Agreement. 10. Amendments. This Agreement may be amended or modified only by a written instrument executed by the party asserted to be bound thereby. 11. Counterparts. This Agreement may be executed in several counterparts, which shall be treated as originals for all purposes, and all counterparts so executed shall constitute one agreement, binding on all the parties hereto, notwithstanding that all the parties are not signatory to the original or to the same counterpart. Any such counterpart shall be admissible into evidence as an original hereof against the person who executed it. 561169 cc im 19990929000354 PA E 007 OF 012 09/29/1599 09:26 KIU:, WJYT5, L ATTEST: By Exhibits Signed, sealed and delivered as of the day and year set forth above. Exhibit A Property Description McCONKEY ENTERPRISES, a Washington sole proprietorship By W ryc Frederick W. McConkey, Owner CITY OF TUKWILA, a Washington municipal corporation 6 19.00 19990929000354 PAGE 029 OF 012 09/29/1999 89:26 KING CO�F,1TY, lta STATE OF WASHINGTON ss. COUNTY OF KING I certify that I know or have satisfactory evidence that FREDERICK W. McCONKEY is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it as the owner of McConkey Enterprises, a sole proprietorship that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act of such proprietorship for the uses and purposes mentioned in the instrument, and on oath stated that said individual was authorized to execute said instrument. Dated this 15th day of July, 1999. 4 I tE V s e's"... (Signature of Notary) Marc R. Greenough (Legibly Print or Stamp Name of Notary) Notary public in and for the state of Washington, residing at Seattle My appointment expires Swtember 9.2001 7 19 -03 19990929000354 PAGE 083 OF 012 09/29/1939 09:26 KING COUNTY, WA STATE OF WASHINGTON COUNTY OF KING Dated this iq day of /rL ss. I certify that I know or have satisfactory evidence that JOHN W. RANTS is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it as the MAYOR of the City of Tukwila, Washington, the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act of such city for the uses and purposes mentioned in the instrument, and on oath stated that said individual was authorized to execute said instrument. 1999. (Signature of Notary) Reber {-F. Ppa (Legibly Print or Stamp Name of Notary) Notary public and for the state of Washington, residing at L/(�L.l,C f1 a LL (2 My appointment expires 5- 9- C.3 8 19 .00 1999092900035 FAG 010 OF 012 09729/1999 09:26 KING COMM', ft STATE OF WASHINGTON ss. COUNTY OF KING I certify that I know or have satisfactory evidence that JANE E. CANTU is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it as the CITY CLERK of the City of Tukwila, Washington, the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instalment to be the free and voluntary act of such city for the uses and purposes mentioned in the instrument, and on oath stated that said individual was authorized to execute said instrument. snCS9r_ e o NOT/ A m v j "PL'C s i� WA Dated this 10 day of 4 1999. �cd i# J1 f Pm DA_-- f' b ice'{" il)'1 9 (Signature of Notary) (Legibly Prmt or Stamp Name of Notary) Notary public and for the state of Washington, residing at e my. My appointment expires 5 c13 19.03 19990929000554 PAGE 011 OF 012 09/29/1999 09:26 KIM. COUNTY, Ita EXHIBIT A PROPERTY DESCRIPTION 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 1/4 OF THE SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 23 NORTH, RANGE 4 EAST, W.M., LYING EASTERLY OF WASHINGTON STATE HIGHWAY NO. 1 (PACIFIC HIGHWAY SOUTH); SITUATE 1\T THE CITY OF TUKWILA, COUNTY OF KENG, STA 1 E OF WASHINGTON. S:1CS9i?m PRI 19.00 19990929000354 PAGE 012 OF 012 09/29/199909:26 KING COUNTY, WA