HomeMy WebLinkAbout24-020 - Unico Longacres Investment Partners LP - Real Estate Purchase and Sale Agreement Longacres PropertyDocusign Envelope ID: FCAD3F00-074E-4D22-AOE1-595DC8E64BC6
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City of Tukwila Contract Number: 24-020(c)
6200 Southcenter Boulevard, Tukwila WA 98188 Council Approval N/A
REAL ESTATE PURCHASE AND SALE AGREEMENT
Amendment #3
Between the City of Tukwila and Unico Longacres Investment Partners LP
On June 26, 2024, the parties executed Amendment 91 to Contract No. 24-020, which extended
the expiration of the Due Diligence Period from June 28, 2024 (the date that is one hundred twenty
(120) days after the Effective Date) to July 29, 2024. On July 22, 2024, the parties executed
Amendment 92 to Contract No. 24-020, which extended the expiration of the Due Diligence Period
from July 29, 2024, to September 27, 2024. The parties now agree to further extend the expiration
of the Due Diligence Period from September 27, 2024, to January 5, 2025. Accordingly, Section
5.1 of Contract No. 24-020 between the City of Tukwila and Unico Longacres Investment Partners
LP is hereby amended as follows:
Section 5.1: Due Diligence Inspection and Feasibility. Within three (3) days after the Effective
Date, Seller shall deliver to Buyer or post in an online database maintained by Seller, to which
Buyer has been given unlimited access, true, correct and complete copies of all documents in
Seller's possession or control relating to the ownership, operation, renovation or development of
the Property ... Buyer shall satisfy itself by investigation and inspection, at its cost and expense
and in its sole and absolute discretion that the condition of the Property for Buyer's contemplated
use meets with its approval ("Feasibility Contingency") on or before September- 2- January 5,
2025 ("Due Diligence Period").
All other provisions of Contract No. 24-020 shall remain in full force and effect.
CITY OF TUKWILA
CSigned by:
4w�aS hG(,u,
8EE24380545B44C...
Thomas McLeod, Mayor
Date: 9/24/2024 1 1:40 PM PDT
4857-4085-7544, v. 1
{ N M M4868-0478-0003;1/13175.000001/}
UNICO LONGACRES INVESTMENT
PARTNERSLP
By: Unico Longacres Investment Partners GP LLC,
a Delaware limited liability company,
General Partner
By: Unico Investment Group LLC,
a Delaware limited liability company,
Manaaina Member
Signed by:
By:(au,
NameC1688FBBE95344E...
: -
Title: CEO
Date: 9/13/2024 1 2:02 PM PDT
Docusign Envelope ID: FCAD3F00-074E-4D22-AOE1-595DC8E64BC6
City of Tukwila
6200 Southcenter Boulevard, Tukwila WA 98188
ATTEST/AUTHENTICATED
7CSigned - 3D04AB9746FA4E8...
Andy Youn, City Clerk
4857-4085-7544, v. 1
{ N M M4868-0478-0003;1/13175.000001/}
Contract Number: 24-020(c)
APPROVED AS TO FORM
Signed by: ((l1
JV�A t . aax' A
- 5E499CA4165E452...
Office of the City Attorney
Council Approval N/A
Docusign Envelope ID: OBE5FCD3-1 F16-4720-A4DA-BF8936974E3F
City of Tukwila Contract Number: 24-020(b)
Council Approval: N/A
6200 Southcenter Boulevard, Tukwila WA 98188
i
REAL ESTATE PURCHASE AND SALE AGREEMENT
Amendment #2
Between the City of Tukwila and Unico Longacres Investment Partners LP
On June 26, 2024, the parties executed Amendment #1 to Contract No. 24-020, which extended
the expiration of the Due Diligence Period from June 28, 2024 (the date that is one hundred twenty
(120) days after the Effective Date) to July 29, 2024. The parties now agree to further extend the
expiration of the Due Diligence Period from July 29, 2024, to September 27, 2024. Accordingly,
Section 5.1 of Contract No. 24-020 between the City of Tukwila and Unico Longacres Investment
Partners LP is hereby amended as follows:
Section 5.1: Due Diligence Inspection and Feasibility Within three (3) days after the Effective
Date, Seller shall deliver to Buyer or post in an online database maintained by Seller, to which
Buyer has been given unlimited access, true, correct and complete copies of all documents in
Seller's possession or control relating to the ownership, operation, renovation or development of
the Property ... Buyer shall satisfy itself by investigation and inspection, at its cost and expense
and in its sole and absolute discretion that the condition of the Property for Buyer's contemplated
use meets with its approval ("Feasibility Contingency") on or before 3tAy-2-9 September 27, 2024
("Due Diligence Period") ....
All other provisions of Contract No. 24-020 shall remain in full force and effect.
CITY OF TUKWILA
Signed by:
4w-�5-x
Thomas McLeod, Mayor
Date: 7/22/2024 1 5:23 PM PDT
4857-4085-7544, v. 1
1
UNICO LONGACRES INVESTMENT
PARTNERS LP
By: Unico Longacres Investment Partners GP LLC,
a Delaware limited liability company,
General Partner
By: Unico Investment Group LLC,
a Delaware limited liability company,
Managin x Member
—DoeuSigned by:
By: QGw 6�V'atti
Name: uen �.........................
Title: CEO
Date: July 17, 2024
DocuSign Envelope ID: E3738820-5ACE-40A5-A487-5E0812A7A9FE
City of Tukwila
6200 Southcenter Boulevard, Tukwila WA 98188
(D -
Contract Number: 24-020(a)
REAL ESTATE PURCHASE AND SALE AGREEMENT
Amendment #1
Council Approval N/A
Between the City of Tukwila and Unico Longacres Investment Partners LP
The parties agree to extend the expiration of the Due Diligence Period contained in Contract
No. 24-020 from June 28, 2024 (the date that is one hundred twenty (120) days after the Effective
Date) to July 29, 2024. Accordingly, Section 5.1 of Contract No. 24-020 between the City of
Tukwila and Unico Longacres Investment Partners LP is hereby amended as follows:
Section 51: Due Diligence Inspection and Feasibility. Within three (3) days after the Effective
Date, Seller shall deliver to Buyer or post in an online database maintained by Seller, to which
Buyer has been given unlimited access, true, correct and complete copies of all documents in
Seller's possession or control relating to the ownership, operation, renovation or development of
the Property ... Buyer shall satisfy itself by investigation and inspection, at its cost and expense
and in its sole and absolute discretion that the condition of the Property for Buyer's contemplated
use meets with its approval ("Feasibility Contingency") , it4i,, One 14tin a, -e Tl o„f., (120) on
or before July 29, 2024 ("Due Diligence Period") ....
All other provisions of Contract No. 24-020 shall remain in full force and effect.
CITY OF TUKWILA
EDocuSigned by:
bw�aS htW
8EE24380545844C...
Thomas McLeod, Mayor
Date: 6/26/2024 1 11:01 AM PDT
{ N M M4857-4085-7544;1/13175.000001/1
4857-4085-7544, v. 1
UNICO LONGACRES INVESTMENT
PARTNERSLP
By: Unico Longacres Investment Partners GP LLC,
a Delaware limited liability company,
General Partner
By: Unico Investment Group LLC,
a Delaware limited liability company,
Mana in��Member
By:
Nam e:Quen au
Title: CEO
Date:
6/24/2024 1 10:59 AM PDT
DocuSign Envelope ID: E3738820-5ACE-40A5-A487-5E0812A7A9FE
City of Tukwila Contract Number: 24-020(a)
6200 Southcenter Boulevard, Tukwila WA 98188
(D-
ATTEST/AUTHENTICATED APPROVED AS TO FORM
DocuSigned by:
3D04AB9746FA4E8_.
Andy Youn, City Clerk
{N M M4857-4085-7544;1/13175.000001/}
4857-4085-7544, v. 1
DocuSigned by:
C Ste, d
SE499CA4165E452...
Office of the City Attorney
DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB 24-020
Council Approval 8/21/23
REAL ESTATE PURCHASE AND SALE
AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("Agreement") is made and
entered into thisLM�day of February, 2024 ("Effective Date") by and between the City of Tukwila,
a municipal corporation, organized under the laws of the State of Washington ("Seller"), and
Unico Longacres Investment Partners LP, a Delaware limited partnership ("Buyer"). The Seller
and Buyer are at times referred to in this Agreement as the "Parties" or individually as a "Party."
RECITALS
A. Seller is the owner of certain real property located in County of King,
State of Washington, known as King County Parcel No. 242304-9034 and containing
approximately 3.18 acres of land ("Property"), as more particularly described on
Exhibit A attached hereto and incorporated herein by this reference.
B. Buyer desires to purchase the Property in accordance with the terms and
subject to the conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, and other valuable consideration, receipt and sufficiency of which are
hereby acknowledged, the Parties hereto covenant and agree as follows:
ARTICLE 1.
PURCHASE AND TRANSFER OF ASSETS
1.1. Property to Be Sold. Subject to and upon the terms and conditions set forth in this
Agreement, Seller shall sell, convey, assign, transfer and deliver to Buyer on the
Closing Date and Buyer shall buy, assume and accept from Seller on the Closing
Date the following assets and real property (collectively, the "Purchased
Assets"):
I.I.I. The Property and any easements, as described in Exhibit A, subject to the
Permitted Exceptions;
1.1.2. All of Seller's right, title and interest in any improvements and personal
property located on the Property, if any ("Improvements");
1.1.3. All of Seller's tenements, hereditaments, easements and rights
appurtenant to the Property, including, but not limited to, all of the Seller's
reversionary right, if any, as an abutting owner, in and to the streets, alleys
or other public ways adjacent to the Property upon vacation of the same,
easements for public utilities, all minerals, oil, gas and other hydrocarbon
substances on the Property, as well as all development rights, air rights,
water, water rights and water stock relating to the Property, all sewers and
service drainage easements, all rights of connection to the sewers, and all
rights of ingress and egress, and all leases, licenses, government approvals
and permits affecting the Property.
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
ARTICLE 2.
PURCHASE PRICE
2.1. Purchase Price and Pant. In consideration of the sale, transfer, conveyance,
assignment and delivery of the Purchased Assets, Buyer shall, in full payment
therefor, pay to Seller on the Closing Date the sum of Four Million Two Hundred
Fifty Thousand Dollars ($4,250,000) as consideration for the Property and the
Improvements (collectively, the "Purchase Price"). The price shall increase to
Four Million Five Hundred Thousand Dollars ($4,500,000) if closing does not
occur within twelve (12) months after the Effective Date.
2.2. Earnest Money. On or before ten (10) days after the Effective Date, Buyer shall
deposit with Escrow Agent earnest money in the amount of Two Hundred Fifty
Thousand Dollars ($250,000) ("Earnest Money"). Earnest Money shall become
non-refundable if Buyer delivers written notice of its of its waiver of the
Feasibility Contingency (as defined in Section 5.1) prior to expiration of the Due
Diligence Period (as defined in Section 5. 1), except in the event of a default by
Seller under this Agreement or as otherwise provided in this Agreement. The
Earnest Money shall be held in an interest-bearing account, provided that both
Parties execute any authorizations required by Escrow Agent to invest the funds.
All interest earned on the Earnest Money while in escrow shall become part of
the Earnest Money and paid to the party entitled to the Earnest Money. The
Earnest Money shall be a credit against the Purchase Price at Closing. Should
Buyer default on its obligations under this Agreement, the Seller shall be entitled
to retain the Earnest Money as liquidated damages.
2.3. Release of Earnest Money. Earnest Money shall be released from escrow to the
Seller upon expiration of the Due Diligence Period, provided that the Seller will
be required to return the Earnest Money to Buyer in the event of a default by the
Seller under this Agreement or as otherwise required under this Agreement. In the
event of a dispute, the Seller will post the earnest money in escrow while the
dispute is settled.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE
PARTIES
3.1. Warranties and Representations of Seller. The Seller represents and warrants as follows:
3.1.1. Organization. Seller is a municipal corporation, duly organized, validly
existing and in good standing under the laws of the state in which it is
incorporated or organized and has all requisite corporate power and
authority, to: (i) own, lease and operate its properties and assets and to
carry on its municipal functions as now being conducted or (ii) execute
this Agreement and any other instrument, certificate or statement
furnished pursuant hereto to which it is a party.
3.1.2. Authority. The execution, delivery and performance of this Agreement
and the consummation of transactions contemplated hereby by Seller have
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
been duly and validly authorized by all necessary action, and no other
proceedings or consents on the part of Seller are necessary for it to
authorize this Agreement or to consummate the transactions contemplated
hereby.
3.1.3. Non -Contravention. The execution and delivery of this Agreement by
Seller and the consummation by Seller of the transactions contemplated
hereby will not violate any judgment, order, injunction, decree, regulation
or ruling of any court or the various state, local and federal governmental
agencies having jurisdiction over Seller, the Property or any portion
thereof or conflict with, result in a breach of, or constitute a default under
the organizational documents of Seller, any note or other evidence of
indebtedness, any mortgage, deed of trust or indenture, or any lease or
other material agreement or instrument to which Seller is a party or by
which it is bound.
3.1.4. Compliance with Laws. Seller has not received any written notice stating
that Seller is not operating the Property in compliance with applicable
laws, or that the Property is in violation of any laws.
3.1.5. Litigation. There are no pending or, to Seller's knowledge, threatened,
lawsuits or material claims against or relating to Seller with respect to the
Property, or that would affect Seller's ability to execute, deliver and
perform all of its obligations under this Agreement, except that certain
quiet title action filed by Buyer and its affiliates against Seller and certain
other parties ("Quiet Title Action") in King County Superior Court under
Cause Np. 23-2-03172-5 SEA, related to the McLeod Parking Easement,
as defined in Section 4.2.2 below. To Sellers' knowledge, there are no
pending or contemplated condermiations or similar eminent domain
proceedings with respect to the Property or any part thereof.
3.1.6. Assessments. To Seller's knowledge, there are no contemplated local
improvement districts or other special assessments or charges with respect
to the Property, except as may be disclosed in the Title Commitment
described below.
3.1.7. Foreign Person, The Seller is not a "foreign person" as that term is defined
in Section 1445(f) of the Internal Revenue Code of 1986, as amended.
3.1.8. No Rights of Parties in Possession. As of the Closing Date, there shall be
no tenants or other parties with a right to possession of any portion of the
Property.
3.1.9. Contracts. There are no contracts or other agreements with respect to the
Property which will be binding on Buyer after the Closing.
As used in this Agreement, the term "Seller's knowledge," or "to Seller's
knowledge," or words of similar effect shall mean the actual knowledge
of the Brandon Miles, Business Relations Manager, who is/are the
person(s) having primary responsibility for the management and operation
of the Property. Neither such individual(s) nor any party other than Seller
DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
shall bear responsibility for any breach of representation.
Unless Seller gives notice to Buyer of any change in the condition of the
Property subsequent to the Effective Date or of any other changed
condition that would make any of the representations or warranties in
Section 3.1 inaccurate, incomplete or misleading, the foregoing
representations and warranties shall be deemed to be reaffirmed at Closing
and to be accurate as of the Closing Date. In the event any of the foregoing
Seller's representations and warranties is no longer accurate in any
material respect, then Buyer may elect to either (i) to terminate this
Agreement and receive a full return of the Earnest Money by giving Seller
written notice of such termination within five (5) business days after
Buyer received or delivered notice of such inaccuracy in Seller's
representations and warranties (with the Closing Date extended to
accommodate such 5 Business Days period), or (ii) proceed with the
Closing of the transaction contemplated hereby with knowledge and
acceptance of any facts, conditions or circumstances that render any of the
representations and warranties in any material way inaccurate,
incomplete, incorrect or misleading, and Seller shall have no liability as a
result thereof, provided, however, if such Seller's representations and
warranties are no longer accurate due to reasons or causes within Seller's
control, then Buyer shall have available to it all of the rights and remedies
for default and Seller's breach of its representations and warranties.
3.2. Warranties and Representations of Buyer. The Buyer represents and warrants as follows:
3.2.1. Organization. Buyer is a limited partnership, duly organized, validly
existing and in good standing under the laws of the state in which it is
incorporated or organized and has all requisite limited partnership power
and authority, to: (i) own, lease and operate its properties and assets and
to carry on its business as now being conducted or (ii) execute this
Agreement and any other instrument, certificate or statement furnished
pursuant hereto to which it is a party.
3.2.2. Authoritv. The execution, delivery and performance of this Agreement
and the consummation of transactions contemplated hereby by Buyer have
been, or upon waiver of the Feasibility Contingency will be, duly and
validly authorized by all necessary limited partnership action, and no other
limited partnership proceedings on the part of Buyer are necessary for it
to authorize this Agreement or to consummate the transactions
contemplated hereby.
3.2.3. Litigation. As of the date hereof, there are no claims against Buyer or, to
the actual knowledge of Buyer, any threatened claims against Buyer,
which either alone or in the aggregate seek to restrain or enjoin the
execution and delivery of this Agreement or the consummation of any of
the transactions contemplated hereby or thereby.
3.2.4. Foreign Person. The Buyer is not a "foreign person" as that term is defined
in Section 1445(f) of the Internal Revenue Code of 1986, as amended.
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
3.3. Waiver of Form 17 Disclosure. PURSUANT TO RCW 64.06.010, BUYER
HEREBY WAIVES THE RIGHT TO ANY SELLER DISCLOSURE
STATEMENT WHICH WOULD OTHERWISE BE REQUIRED UNDER
RCW CH. 64.06. FURTHERMORE, IN THE EVENT A SELLER'S
DISCLOSURE STATEMENT OR ANY PORTION THEREOF IS
REQUIRED UNDER RCW CH. 64.06, PURSUANT TO RCW 64.06.040(3),
BUYER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY RIGHT OF RESCISSION OF THIS AGREEMENT BUYER
MIGHT OTHERWISE HAVE UNDER RCW CH. 64.06. BUYER ALSO
IRREVOCABLY AND UNCONDITIONALLY WAIVES AND RELEASES
ANY CLAIM OF ANY NATURE WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, ANY CLAIM FOR DAMAGES, ARISING
OUT OF OR IN ANY WAY RELATING OR PERTAINING TO ANY
FAILURE BY SELLER TO GIVE BUYER A SELLER DISCLOSURE
STATEMENT OR ANY PORTION THEREOF UNDER RCW CH. 64.06.
THIS WAIVER, RELEASE AND INDEMNITY SHALL BE BINDING
UPON BUYER'S HEIRS, SUCCESSORS AND ASSIGNS. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING
WITHOUT TIME LIMITATION. Seller acknowledges that, pursuant to
RCW 64.06.010(7), if the answer to any of the questions in the section of the
seller disclosure statement entitled "Environmental" would be "yes," Buyer
may not waive the receipt of the "Environmental" section of the seller
disclosure statement.
3.4. AS -IS. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR
SELLER'S EXPRESS REPRESENTATIONS AND WARRANTIES
CONTAINED 1N SECTION 3.1 HEREIN AND IN ANY DOCUMENTS
DELIVERED BY SELLER AT CLOSING ("SELLER'S CLOSING
DOCUMENTS"), SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
(I) VALUE; (11) THE INCOME TO BE DERIVED FROM THE PROPERTY;
(III) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON,
INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE
PROPERTY; (IV) THE HABITABILITY, MERCHANTABILITY,
MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY; (V) THE MANNER, QUALITY, STATE OF
REPAIR OR LACK OF REPAIR OF THE PROPERTY; (VI) THE NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY; (VII) THE
COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH
ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (VIII) THE
5
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MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF
ANY, INCORPORATED INTO THE PROPERTY; (IX) COMPLIANCE WITH
ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE
LAWS, RULES, REGULATION, ORDERS OR REQUIREMENTS,
INCLUDING BUT NOT LIMITED TO, TITLE III OF THE AMERICANS
WITH DISABILITIES ACT OF 1990, WASHINGTON HEALTH & SAFETY
CODE, THE FEDERAL WATER POLLUTION CONTROL ACT, THE
FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE U.S.
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT
40 C.F.R., PART 261, THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS
AMENDED, THE RESOURCE CONSERVATION AND RECOVERY ACT OF
1976, THE CLEAN WATER ACT, THE SAFE DRINKING WATER ACT, THE
HAZARDOUS SUBSTANCES TRANSPORTATION ACT, THE TOXIC
SUBSTANCE CONTROL ACT, AND REGULATIONS PROMULGATED
UNDER ANY OF THE FOREGOING; (X) THE PRESENCE OR ABSENCE
OF HAZARDOUS SUBSTANCES AT, ON, UNDER, OR ADJACENT TO THE
PROPERTY; (XI) THE CONTENT, COMPLETENESS OR ACCURACY OF
THE DUE DILIGENCE MATERIALS OR PRELIMINARY REPORT
REGARDING TITLE; (XII) THE CONFORMITY OF THE IMPROVEMENTS
TO ANY PLANS OR SPECIFICATIONS FOR THE PROPERTY, INCLUDING
ANY PLANS AND SPECIFICATIONS THAT MAY HAVE BEEN OR MAY
BE PROVIDED TO BUYER; (XIII) THE CONFORMITY OF THE PROPERTY
TO PAST, CURRENT OR FUTURE APPLICABLE ZONING OR BUILDING
REQUIREMENTS; (XIV) DEFICIENCY OF ANY UNDERSHORING;
(XV) DEFICIENCY OF ANY DRAINAGE; (XVI) THE FACT THAT ALL OR
A PORTION OF THE PROPERTY MAY BE LOCATED ON OR NEAR AN
EARTHQUAKE FAULT LINE; (XVII) THE EXISTENCE OF VESTED LAND
USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE
PROPERTY; OR (XVIII) WITH RESPECT TO ANY OTHER MATTER.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING
BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND
REVIEW INFORMATION AND DOCUMENTATION AFFECTING THE
PROPERTY, BUYER IS, EXCEPT FOR SELLER'S REPRESENTATIONS
AND WARRANTIES CONTAINED IN SECTION 3.1 HEREIN AND IN
SELLER'S CLOSING DOCUMENTS, RELYING SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND REVIEW OF SUCH
INFORMATION AND DOCUMENTATION, AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
MADE AVAILABLE TO BUYER OR PROVIDED OR TO BE PROVIDED BY
OR ON BEHALF OF SELLER WITH RESPECT TO THE PROPERTY, BY A
THIRD PARTY WAS OBTAINED FROM A VARIETY OF SOURCES AND
THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION
OR VERIFICATION OF SUCH INFORMATION AND EXCEPT AS SET
FORTH IN SECTION 3.1 AND IN SELLER'S CLOSING DOCUMENTS
0
DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41 BDB
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR
COMPLETENESS OF SUCH INFORMATION. EXCEPT FOR SELLER'S
REPRESENTATIONS AND WARRANTIES AS SET FORTH IN SECTION
3.1 HEREIN AND IN SELLER'S CLOSING DOCUMENTS, SELLER IS NOT
LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING
TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY
ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT, OR
OTHER PERSON. BUYER FURTHER ACKNOWLEDGES AND AGREES
THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF
THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS"
CONDITION AND BASIS WITH ALL FAULTS, AND THAT SELLER HAS
NO OBLIGATIONS TO MAKE REPAIRS, REPLACEMENTS, OR
IMPROVEMENTS. BUYER REPRESENTS, WARRANTS AND
COVENANTS TO SELLER THAT, EXCEPT FOR SELLER'S EXPRESS
REPRESENTATIONS AND WARRANTIES AND COVENANTS SPECIFIED
IN THIS AGREEMENT AND IN SELLER'S CLOSING DOCUMENTS,
BUYER IS RELYING SOLELY UPON BUYER'S OWN INVESTIGATION OF
THE PROPERTY. THE PROVISIONS OF THIS SECTION SHALL SURVIVE
THE CLOSING WITHOUT TIME LIMITATION.
3.5. Release of Environmental Matters. AS A MATERIAL PART OF THE
CONSIDERATION TO SELLER FOR THE SALE OF THE PROPERTY,
EXCEPT FOR SELLER'S EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED IN SECTION 3.1 HEREIN AND IN SELLER'S
CLOSING DOCUMENTS, BUYER, ON BEHALF OF ITSELF, AND ITS
SUCCESSORS AND ASSIGNS, HEREBY IRREVOCABLY WAIVES, AND
RELEASES SELLER, ITS MEMBERS, PARTNERS, OFFICERS,
DIRECTORS, PRINCIPALS, AGENTS, REPRESENTATIVES, ATTORNEYS
AND EMPLOYEES ("SELLER PARTIES") FROM ANY AND ALL
CLAIMS, DEMANDS, OBLIGATIONS, DAMAGES, CAUSES OF ACTION
AND LIABILITY, WHETHER KNOWN OR UNKNOWN, THAT ARE
BASED DIRECTLY OR INDIRECTLY ON, ARISE FROM OR IN
CONNECTION WITH, OR ARE RELATED TO THE FOLLOWING
("ENVIRONMENTAL MATTERS"): (A) ANY PAST, PRESENT, OR
FUTURE CONDITION OF THE PROPERTY HOWEVER AND WHENEVER
OCCURRING, INCLUDING, WITHOUT LIMITATION, THE PROPERTY'S
PROXIMITY TO ANY GEOLOGICAL HAZARD, OR THE PRESENCE OF
HAZARDOUS SUBSTANCES AT THE PROPERTY (INCLUDING,
WITHOUT LIMITATION, THE CONTAMINATION OR POLLUTION OF
ANY SURFACE OR SUBSURFACE SOILS, SUBSURFACE MEDIA,
SURFACE WATERS OR GROUND WATERS AT THE PROPERTY),
WHETHER IN COMMON LAW OR UNDER ANY EXISTING OR
HEREINAFTER ENACTED FEDERAL, STATE OR LOCAL LAW,
REGULATION, OR ORDINANCE, INCLUDING, WITHOUT LIMITATION,
CERCLA AND RCRA, AS AMENDED; (B) ANY AND ALL STATEMENTS,
REPRESENTATIONS, WARRANTIES, DETERMINATIONS,
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CONCLUSIONS, ASSESSMENTS, ASSERTIONS OR ANY OTHER
INFORMATION CONTAINED IN ANY OF THE DOCUMENTS RELATING
TO ENVIRONMENTAL MATTERS DELIVERED TO BUYER IN
CONNECTION HEREWITH. BUYER HEREBY ACKNOWLEDGES AND
AGREES THAT BUYER MAY HEREAFTER DISCOVER FACTS
DIFFERENT FROM OR IN ADDITION TO THOSE NOW (OR AS OF THE
CLOSING) KNOWN OR BELIEVED TO BE TRUE REGARDING THE
ENVIRONMENTAL MATTERS, AND BUYER'S AGREEMENT TO
RELEASE, ACQUIT AND DISCHARGE SELLER AND EACH OF THE
OTHER SELLER PARTIES AS SET FORTH HEREIN SHALL REMAIN IN
FULL FORCE AND EFFECT NOTWITHSTANDING THE EXISTENCE OR
DISCOVERY OF ANY SUCH DIFFERENT OR ADDITIONAL FACTS.
BUYER KNOWINGLY AND VOLUNTARILY WAIVES ANY AND ALL
RIGHTS, BENEFITS AND PRIVILEGES TO THE FULLEST EXTENT
PERMISSIBLE UNDER ANY FEDERAL, STATE, LOCAL, OR OTHER
LAWS WHICH DO OR WOULD NEGATIVELY AFFECT VALIDITY OR
ENFORCEABILITY OF ALL OR PART OF THE RELEASES SET FORTH IN
THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL
SURVIVE THE CLOSING WITHOUT TIME LIMITATION.
3.6. Release of Property Matters, AS A MATERIAL PART OF THE
CONSIDERATION TO SELLER FOR THE SALE OF THE PROPERTY,
EXCEPT FOR SELLER'S EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED IN SECTION 3.1 HEREIN AND IN SELLER'S
CLOSING DOCUMENTS, BUYER, ON BEHALF OF BUYER, ITS
SUCCESSORS AND ASSIGNS, HEREBY IRREVOCABLY WAIVES, AND
RELEASES SELLER, ITS MEMBERS, PARTNERS, OFFICERS,
DIRECTORS, PRINCIPALS, AGENTS, REPRESENTATIVES, ATTORNEYS
AND EMPLOYEES ("SELLER PARTIES") FROM ANY AND ALL
CLAIMS, DEMANDS, OBLIGATIONS, DAMAGES, CAUSES OF ACTION
AND LIABILITY, WHETHER KNOWN OR UNKNOWN, THAT ARE
BASED DIRECTLY OR INDIRECTLY ON, ARISE FROM OR IN
CONNECTION WITH, OR ARE RELATED TO THE FOLLOWING
("PROPERTY MATTERS"): (A) ANY AND ALL STATEMENTS,
REPRESENTATIONS, WARRANTIES, DETERMINATIONS,
CONCLUSIONS, ASSESSMENTS, ASSERTIONS OR ANY OTHER
INFORMATION CONTAINED IN ANY OF THE DOCUMENTS
DELIVERED TO BUYER IN CONNECTION HEREWITH, (B) ANY
GEOLOGIC AND SEISMIC CONDITIONS AT THE PROPERTY, AND SOIL
AND SUBSOIL CONDITIONS AT THE PROPERTY, AND/OR (C) EXCEPT
AS OTHERWISE PROVIDED IN THE PURCHASE DOCUMENTS, ANY
DEFECT, INACCURACY OR INADEQUACY IN THE CONDITION OF
TITLE TO THE PROPERTY, LEGAL DESCRIPTION OF THE PROPERTY,
OR COVENANTS, RESTRICTIONS, ENCUMBRANCES OR
ENCROACHMENTS WHICH AFFECT THE PROPERTY. BUYER HEREBY
ACKNOWLEDGES AND AGREES THAT BUYER MAY HEREAFTER
DISCOVER FACTS DIFFERENT FROM OR IN ADDITION TO THOSE NOW
DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
(OR AS OF THE CLOSING) KNOWN OR BELIEVED TO BE TRUE
REGARDING THE PROPERTY MATTERS, AND BUYER'S AGREEMENT
TO RELEASE, ACQUIT AND DISCHARGE SELLER AND EACH OF THE
OTHER SELLER PARTIES AS SET FORTH HEREIN SHALL REMAIN IN
FULL FORCE AND EFFECT NOTWITHSTANDING THE EXISTENCE OR
DISCOVERY OF ANY SUCH DIFFERENT OR ADDITIONAL FACTS.
BUYER KNOWINGLY AND VOLUNTARILY WAIVES ANY AND ALL
RIGHTS, BENEFITS AND PRIVILEGES TO THE FULLEST EXTENT
PERMISSIBLE UNDER ANY FEDERAL, STATE, LOCAL, OR OTHER
LAWS WHICH DO OR WOULD NEGATIVELY AFFECT VALIDITY OR
ENFORCEABILITY OF ALL OR PART OF THE RELEASES SET FORTH IN
THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL
SURVIVE THE CLOSING WITHOUT TIME LIMITATION
ARTICLE 4.
TITLE MATTERS
4.1. Title. Seller shall deliver to Buyer good and marketable title, free and clear of all
liens, defects and encumbrances except the Buyer's Permitted Exceptions.
4.2. Title Commitment. Buyer shall obtain a current/updated ALTA form of
commitment for an owner's standard policy of title insurance ("Title
Commitment") issued by Fidelity National Title Insurance Company ("Title
Company"), describing the Property, listing Buyer as the prospective named
insured and showing as the policy amount the total Purchase Price for the
Property. At such time as the Title Company causes the Title Commitment to be
furnished to Buyer, the Title Company shall further cause to be famished to Buyer
legible copies of all instruments referred to in the Title Commitment as
restrictions or exceptions to title to the Property.
4.2.1. Survey. If the Buyer desires to obtain an owner's extended coverage title
policy, and if required by the Title Company, Buyer will have, at its
expense, prepared and furnished to the Title Company, a survey
("Survey") of the Property prepared by a licensed surveyor. The Survey
shall be satisfactory to the Title Company so as to permit it to issue an
owner's extended coverage title policy.
4.2.2. Review of Title Commitment and Survey. Buyer shall have until the end of
the Due Diligence Period in which to notify Seller in writing ("Buyer's
Title Notice") of any objections Buyer has to any matters shown or
referred to in the Title Commitment or Survey and of any title insurance
endorsements required by Buyer. In the event that the condition of title is
not acceptable, Buyer shall specify and set forth each of such objections
("Objections") in the Buyer's Title Notice. Seller shall notify Buyer in
writing ("Seller's Title Response") within fifteen (15) days of receipt of
Buyer's Title Notice as to which Objections that Seller will not remove as
of the Closing Date ("Remaining Objections"). Seller shall be
contractually obligated to remove any title matters to which Buyer has
objected that are not Remaining Objections. If there are any Remaining
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Objections, Buyer may, at its option by written notice within five (5)
business days after Seller's Title Response (or lack of response within such
time frame), (i) accept title subject to the Remaining Objections, in which
event the Remaining Objections shall be deemed to be waived for all
purposes, or (ii) terminate this Agreement, in which event any Earnest
Money paid shall be immediately returned to Buyer. Any exceptions or
other items that are set forth in the Title Commitment or the Survey and
to which Buyer does not object within the review period shall be deemed
to be permitted exceptions ("Permitted Exceptions"). Notwithstanding
the foregoing, (i) all monetary liens or encumbrances shall be paid by
Seller at closing; and (ii) Seller has agreed to stipulate or has stipulated to
quiet title to the Buyer's adjacent property as described in the Quiet Title
Action (as defined in Section 3.1.5 above) as against any rights of Seller,
its successors in interest and assigns and any persons claiming by or under
Seller in the Easement Agreement dated January 10, 1996 and recorded
against the Property on January 23, 1996 under King County Recording
Number 9601231152 ("McLeod Parking Easement"). If necessary to
provide clear title, Seller agrees to execute any further documents release
its interest or quitclaim any interest it may have in the McLeod Parking
Easement to Buyer at Closing. If the title commitment is amended at any
time to add new title exceptions, the above review process shall be
repeated, but solely with respect to such new exceptions.
4.3. Owner's Title Insurance Policy. At the closing, Seller shall cause a standard
owner's policy of title insurance to be issued by the Title Company in the full
amount of the Purchase Price, effective as of the Closing Date, insuring Buyer
that the fee simple title to the Property is vested in Buyer, subject only to the usual
printed exceptions contained in such title insurance policy and the Permitted
Exceptions. Seller shall execute and deliver to the Title Company on or before
Closing such affidavits and other documents as the Title Company customarily or
reasonably requires to issue extended coverage and that are in a form reasonably
acceptable to Seller ("Owner's Title Affidavit").
4.4. Conveyance. Seller shall convey to Buyer the title to the Property by bargain and
sale deed, subject only to the Permitted Exceptions and reservations of Seller that
may be defined.
ARTICLE 5.
CONTINGENCIES
5.1. Due Diligence Inspection and Feasibility. Within three (3) days after the Effective
Date, Seller shall deliver to Buyer or post in an online database maintained by
Seller, to which Buyer has been given unlimited access, true, correct and complete
copies of all documents in Seller's possession or control relating to the ownership,
operation, renovation or development of the Property, excluding appraisals or
other statements of value, and including the following: statements for real estate
taxes, assessments, and utilities for the last three years and year to date; property
management agreements and any other agreements with professionals or
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consultants; leases or other agreements relating to occupancy of all or a portion
of the Property; plans, specifications, permits, applications, drawings, surveys,
and studies; maintenance records, accounting records and audit reports for the last
three years and year to date; any existing environmental reports; any existing
surveys; any existing inspection reports; and "Vendor Contracts" which shall
include maintenance or service contracts, and installments purchase contracts or
leases of personal property or fixtures used in connection with the Property
(collectively, the "Due Diligence Materials"). Seller shall not be required to
create or obtain any new documents and shall be required only to provide such
documents as Seller may have in its current possession. Seller has no actual
knowledge that any of the Due Diligence Materials contain inaccurate
information or that any of the Due Diligence Materials are incomplete. As used
herein "actual knowledge" of the Seller means the actual knowledge of facts or
circumstances actually known to Brandon Miles, Business Relations Manager,
without any duty on his part to perform any investigation or make any inquiries.
Seller's actual knowledge does not include any knowledge that may be imputed
to Seller by law. In no event shall Brandon Miles have any personal liability for
the knowledge or obligations of Seller under the Agreement, including the
representations and warranties to be made under this Section without any duty of
inquiry. Seller makes no other representations or warranties of any kind
whatsoever to Buyer as to the accuracy or completeness of the content of the Due
Diligence Materials or any other information delivered to or made available to
Buyer pursuant to this Agreement, and beyond this specific representation, Seller
shall not have any liability or responsibility to Buyer with respect to the accuracy
or completeness of any of the Due Diligence Materials or other information or
based upon or arising out of any use Buyer may make of the Due Diligence
Materials or other infonnation. All Vendor Contracts shall be terminated by Seller
at Seller's expense no later than the Closing Date. Buyer shall satisfy itself by
investigation and inspection, at its cost and expense and in its sole and absolute
discretion that the condition of the Property for Buyer's contemplated use meets
with its approval ("Feasibility Contingency") within One Hundred Twenty (120)
days after the Effective Date ("Due Diligence Period"). If Buyer notifies Seller
in writing prior to the expiration of the Due Diligence Period that the Property is
not acceptable for Buyer's intended use and the transaction, this Agreement shall
terminate, in which event the Earnest Money deposited shall be immediately
refunded to Buyer, and whereupon no party shall have any further rights or
obligations hereunder except for Buyer's indemnification of Seller in this
Agreement. If Buyer of the condition of the Property prior to the Due Diligence
Deadline, this feasibility contingency shall be deemed removed. If Buyer fails to
provide Seller with such written statement of satisfaction or waiver of the
Feasibility Contingency by the end of the Due Diligence Period, Buyer shall be
deemed to have disapproved the condition of the Property, in which event this
Agreement shall terminate, the Earnest Money deposited shall be immediately
refunded to Buyer, and whereupon no party shall have any further rights or
obligations hereunder except for Buyer's indemnification of Seller in this
Agreement.
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5.1.1. Inspections. During the Due Diligence Period, Buyer, its designated
representatives or agents, shall have the right at Buyer's expense to:
5.1.1.1. Perform any and all tests, inspections, studies, surveys or
appraisals of the Property deemed necessary, by the Buyer;
5.1.1.2. Obtain a Phase I or Phase II Environmental Site
Assessment on the Property and perform any and all tests,
inspections and studies deemed necessary therewith,
subject to Section 5.1.2,-
5.1.1.3.
.1.2;5.1.1.3. Examine all Due Diligence Materials available to Seller
that Buyer may reasonably request from Seller that are not
subject to attorney- client privilege or that the Seller is not
otherwise prohibited from disclosing by law;
5.1.1.4. Determine to its satisfaction whether approvals, permits
and variances can be obtained under applicable land use
and zoning codes for Buyer's proposed development of the
property and apply for such pen -nits or approvals; and
5.1.1.5. Determine whether Buyer's proposed development of the
property is economically feasible.
5.1.2. Right of Entry. Buyer and Buyer's designated representatives or agents
shall have the right to enter the Property and conduct the tests,
investigations and studies set forth above upon at least twenty-four (24)
hours' prior written notice to Seller, which written notice shall contain a
brief description of the tests, investigations and studies to be performed
and the persons or parties who will be performing the same. Seller shall
have the right to accompany the Buyer during any access or entry onto the
Property. Any invasive testing shall be subject to Seller's prior written
approval of a testing plan, which approval shall not be unreasonably
withheld, conditioned, or delayed. Buyer shall use commercially
reasonable efforts to avoid any physical alteration of the Property and shall
restore the Property to its original condition or better at Buyer's sole
expense if such physical alteration occurs.
5.1.3. Insurance and Indemnity. Buyer agrees that Buyer, and the contractors,
representatives and agents of Buyer who enter upon the Property, shall
maintain commercial general liability insurance with an insurer
reasonably acceptable to Seller, naming Seller as an additional insured,
with a combined single limit of not less than $2,000,000 and, prior to any
such entry upon the Property, shall upon request provide Seller with
written evidence of such insurance. Buyer shall indemnify, defend, save
and hold Seller harmless from any and all damage, expenses, liens or
claims (including attorneys' fees and costs) arising from Buyer's entry or
the entry of any of its contractors, employees and consultants upon the
Property prior to the Closing; provided that the foregoing indemnity shall
not extend to the mere discovery of pre-existing conditions on the
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Property. The provisions of this Section shall survive the Closing without
time limitation.
5.1.4. Due Diligence Work Product. In the event of any termination of this
Agreement, to the extent not prohibited under the terms of any third party
agreement between Buyer and its contractor(s) related to any tests or
inspections performed on the Property, Buyer shall deliver and assign to
Seller (to the extent assignable) all plans, studies, reports, surveys,
analyses, data and/or permits compiled by Buyer with respect to the
Property ("Due Diligence Work Product") at no cost to Seller; provided,
that, Seller acknowledges that Buyer is providing the same solely for
informational purposes and makes no representations regarding anything
contained therein.
5.2. Termination. Notwithstanding anything contained herein to the contrary, if Buyer
determines at any time in its sole discretion after it has waived its Feasibility
Contingency that the Project is not feasible due to permitting, scheduling and/or
interconnection costs or delays, Buyer may terminate this Agreement upon 30
days' written notice to Seller; provided that, Seller shall retain as liquidated
damages any amounts previously paid to Seller by Buyer under this Agreement.
ARTICLE 6.
CONDITIONS PRECEDENT TO BUYER'S
OBLIGATIONS
All obligations of Buyer hereunder are subject to the fulfillment of each of the following
conditions at or prior to the Closing Date. If any of the conditions described below are
not satisfied (or waived in writing by Buyer) prior to the Closing, then Buyer shall be
entitled to: (a) to terminate this Agreement and receive the Earnest Money, and/or (b) if
the condition is not satisfied as a result of a default or breach by Seller, pursue Buyer's
rights and remedies under Section 9.1 below; provided, however, that Buyer shall not
terminate this Agreement without giving Seller notice of the failure of such condition and
a period of five (5) business days after delivery of such notice for Seller to cause such
condition to be satisfied.
6.1. Delivery of Documents. Seller shall have delivered to Buyer at or prior to closing
all documents required by the terms of this agreement to be delivered to Buyer.
6.2. Representations Warranties and Covenants. All representations, warranties and
covenants of Seller contained herein or in any document delivered pursuant hereto
shall be true and correct in all material respects when made and as of the Closing
Date, except as otherwise provided in this agreement.
6.3. Obligations. All obligations required by the terms of this Agreement to be
performed by Seller at or before the closing shall have been properly performed
in all material respects.
6.4. Title. The Title Company is irrevocably committed to issue an owner's extended
coverage policy, should Buyer choose to purchase one, of title insurance
containing no exceptions other than the Pennitted Exceptions.
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ARTICLE 7.
CONDITIONS PRECEDENT TO SELLER'S
OBLIGATIONS
All obligations of Seller to close on the Closing Date are subject to the fulfillment of each
of the following conditions at or prior to the Closing. If any of the conditions described
below are not satisfied (or waived in writing by Seller) prior to the Closing, then Seller
shall be entitled to: (a) to terminate this Agreement, in which case the Earnest Money
shall be returned to Buyer, and/or (b) if the condition is not satisfied as a result of a default
or breach by Buyer, pursue Sellers's rights and remedies under Section 9.2 below;
provided, however, that Seller shall not terminate this Agreement without giving Buyer
notice of the failure of such condition and a period of five (5) business days after delivery
of such notice for Buyer to cause such condition to be satisfied.
7.1. Delivery of Documents. Buyer shall have delivered to Seller at or prior to closing
all documents required by the terms of this agreement to be delivered to Buyer.
7.2. Representations Warranties and Covenants. All representations, warranties and
covenants of Buyer contained herein or in any document delivered pursuant
hereto shall be true and correct in all material respects when made and as of the
Closing Date.
7.3. Obligations. All obligations required by the terms of this Agreement to be
performed by Buyer at or before the closing shall have been properly performed
in all material respects.
ARTICLE 8.
CLOSING
8.1. Escrow Agent. Upon execution of this Agreement, the Parties agree to set up an
escrow account with Title Company ("Escrow Agent"). The Escrow Agent shall
serve as closing agent for the transaction contemplated herein and the closing
shall occur in the offices of Escrow Agent identified above.
8.2. Closing Date. This transaction shall be closed ("Closing") on or before the date
selected by Buyer which, unless mutually agreed by the parties, can be no sooner
than ten months (10) months and no later than twelve (12) months after the
Effective Date ("Closing Date") by remote Closing through the Title Company.
Neither party need be physically present at the Closing. Buyer shall provide the
Seller 30 days' notice of intent to close and the Closing Date. The Closing Date
may be extended by Buyer for a period of up to twelve (12) months ("Extension
Period") by Buyer's providing written notice to Seller, which notice shall be
delivered no later than thirty (30) days prior to the then applicable Closing Date
and shall state the new Closing Date, and by making an additional earnest money
deposit ("First Extension Deposit") in the amount of Two Hundred Fifty
Thousand Dollars ($250,000), which shall be paid on or before the then applicable
Closing Date. The Extension Deposit shall be added to and become part of the
Earnest Money.
8.3. Release of First Extension Deposit. The First Extension Deposit shall be released
from escrow to the Seller immediately, provided that the Seller will be required
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to return the First Extension Deposit to Buyer in the event of a default by the
Seller under this Agreement or as otherwise required under this Agreement. In
the event of a dispute, the Seller will post the First Extension Deposit in escrow
while the dispute is settled.
8.4. Closing Costs. Costs of closing this transaction shall be allocated between Seller
and Buyer as follows:
8.4.1. Seller shall pay: (i) the premium for the standard coverage owner's Title
Policy in the amount of the Purchase Price; (ii) one-half of any escrow
fees of the Escrow Agent; (iii) any real estate conveyance, excise or
transfer taxes; and (iv) all other costs and expenses allocated to Seller
pursuant to the terms of this Agreement.
8.4.2. Buyer shall pay: (i) the additional premium for any extended coverage
portion of the owner's Title Policy and any endorsements; (ii) the cost of
recording the Deed; (iii) one-half of any escrow fees of the Escrow Agent;
and (iv) all other costs and expenses allocated to Buyer pursuant to the
terms of this Agreement.
8.4.3. The following items shall be prorated as of the Closing Date: (a) real estate
and ad valorem taxes for the current year; (b) current or pending
assessments against the Property; and (c) water and other utilities
constituting liens.
8.5. Seller's Delivery of Documents at Closin>;. At the closing, Seller will deliver to
Buyer the following properly executed documents:
8.5.1. A bargain and sale deed conveying the Property;
8.5.2. The Owner's Title Affidavit (as defined in Section 4.3 above); and
8.5.3. Any other documents required by the Title Company;
8.6. Buffer's Delivery of Documents and Purchase Price at Closing. At the closing,
Buyer will deliver cash or immediately available funds in the amount of the
Purchase Price minus any Earnest Money previously delivered to Seller.
ARTICLE 9.
DEFAULT; REMEDIES
9.1. Seller's Defaults; Buyer's Remedies. In the event of a breach by Seller of its pre -
Closing or Closing obligations under this Agreement, which breach is not cured
ten (10) days after Seller's receipt of notice of default from Buyer, Buyer may
elect only one of the following two remedies: (a) terminate this Agreement,
receive a refund of all Earnest Money and the First Extension Deposit, and receive
from Seller reimbursement of Buyer's reasonable out-of-pocket costs incurred in
pursuing this transaction; or (b) enforce specific performance of this Agreement
against Seller, including the right to recover attorneys' fees, provided that in order
to elect and pursue the remedy of specific performance, Buyer must commence
and file such action within ninety (90) days after the scheduled Closing Date.
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After Closing, in the event of a breach by Seller of its obligations under any
Surviving Provisions, Buyer may exercise any rights and remedies available at
law or in equity.
9.2. Buyer's Defaults; Seller's Remedies. In the event of a breach by Buyer of its pre -
Closing or Closing obligations under this Agreement, which breach is not cured
within ten (10) days after Buyer's receipt of notice of default from Seller, Seller's
sole remedy shall be to terminate this Agreement, retain the Earnest Money and
Extension Deposits paid and any earnings thereon, as liquidated damages, not as a
penalty. BUYER AND SELLER AGREE THAT IT WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICAL TO QUANTIFY THE ACTUAL DAMAGES
TO SELLER IN THE EVENT OF A BREACH BY BUYER, THAT THE
AMOUNT OF THE EARNEST MONEY AND EXTENSION DEPOSITS PAID
IS A REASONABLE ESTIMATE OF SUCH ACTUAL DAMAGES, AND
THAT SELLER'S REMEDY IN THE EVENT OF A BREACH BY BUYER
SHALL BE TO RETAIN THE EARNEST MONEY, EXTENSION DEPOSITS
PAID AND ANY EARNINGS THEREON AS LIQUIDATED DAMAGES.
Notwithstanding the foregoing, this liquidated damages provision does not limit
Buyer's obligations under the Surviving Provisions. After Closing, in the event
of a breach by Buyer of its obligations under any Surviving Provisions, Seller may
exercise any rights and remedies available at law or in equity.
9.2.1. Further notwithstanding the foregoing, the ten (10) day cure period set
forth above shall not apply to Buyer's or Seller's failure to close this
transaction on the Closing Date (as may be extended) as set forth in
Section 8.2 above.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
10.1. Notices. Any and all notices or other communications required or permitted to be
given under any of the provisions of this Agreement shall be in writing and shall
be deemed to have been duly given (i) upon receipt when personally delivered or
sent by overnight courier, (ii) two days after deposit in the United States mail if
by first class, certified or registered mail, return receipt requested.; or (iii) upon
transmission if sent by email transmission and if the transmission is made on a
business day on or before 5:00 p.m. Pacific Time, and otherwise the next business
day after the transmission is made. All notices shall be addressed to the parties at
the addresses set forth below or at such other addresses as any parties may specify
by notice to all other- parties and given as provided herein:
If to Buyer: Unico Longacres Investment Partners LP
c/o Unico Properties LLC
1326 Fifth Avenue, Suite 800
Seattle, Washington 98101
Attn: Elizabeth Cassese
Email: elizabethc@unicoprop.com
with a copy to: Fikso Kretschmer Smith Dixon Ormseth PS
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
901 Fifth Avenue, Suite 4000
Seattle, Washington 98164
Attn: Marc T. Kretschmer
Email: marc@fksdo.com
If to Seller: City Clerk's Office
City of Tukwila
6200 Southcenter Blvd.
Tukwila, WA 98188
Attn: Brandon Miles
Email: Brandon.Miles@TukwilaWA.gov
10.2. Entire Agreement and Amendment. This writing (including the Exhibits attached
hereto) constitutes the entire agreement of the parties with respect to the subject
matter hereof and may not be modified or amended except by a written agreement
specifically referring to this Agreement and signed by all parties hereto.
10.3. Severability. Iii the event any portion of this Agreement shall be found to be invalid
by any court of competent jurisdiction, then such holding shall not impact or affect
the remaining provisions of this Agreement unless that court of competent
jurisdiction rules that the principal purpose and intent of this contract should
and/or must be defeated, invalidated or voided.
10.4. Waiver. No waiver of any breach or default hereunder shall be considered valid
unless in writing and signed by the Party giving such waiver, and no such waiver
shall be deemed a waiver of any prior or subsequent breach or default.
10.5. BindingEffect, This Agreement shall be binding upon and inure to the benefit of
each Party hereto, its successors and assigns.
10.6. Real Estate Commission. Buyer and Seller represent and warrant to each other
that no real estate commissions, finders' fees, or brokers' fees have been or will
be incurred in connection with this transaction. Each party represents to the other
that it has not authorized any broker or finder to act on its behalf in connection
with the sale and purchase under this Agreement and that it has not dealt with any
broker or finder purporting to act on behalf of any other party. Seller shall
indemnify Buyer against, and hold Buyer harmless from, any and all claims (and
all expenses incurred in defending any such claims or in enforcing this indemnity,
including attorneys' fees and court costs) by any broker or finder for a real estate
commission or similar fee arising out of or in any way connected with any claimed
relationship between such broker or finder and Seller. Buyer shall indenviify
Seller against, and hold Seller harmless from, any and all claims (and all expenses
incurred in defending any such claims or in enforcing this indemnity, including
attorneys' fees and court costs) by any broker or finder for a real estate
commission or similar fee arising out of or in any way connected with any claimed
relationship between such broker or finder and Buyer. The provisions of this
Section shall survive the Closing or the termination of this Agreement.
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10.7. Governing Law, Jurisdiction, and Venue. This Agreement and all amendments
thereof shall be governed by and construed in accordance with the laws of the
State of Washington applicable to contracts made and to be performed therein,
without giving effect to its conflicts of law provisions. Venue shall be King
County Superior Court.
10.8. Waiver of Juin Trial. TO THE FULLEST EXTENT PERMITTED BY LAW,
EACH OF THE PARTIES HERETO UNCONDITIONALLY WAIVES ITS
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT AND/OR THE
RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN THE
PARTIES HERETO. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT, AND IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.9. Assignment. This Agreement shall not be assignable or otherwise transferable
(i) by Buyer without the prior written consent of Seller, and (ii) by Seller without
the prior written consent of Buyer; provided, however, that Buyer may, by written
notice to Seller, assign all or any portion of its rights and obligations under this
Agreement to any affiliate of Buyer. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and permitted
assigns.
10.10. Survival. The representations and warranties set forth in Section 3.1 and Section
3.2 of this Agreement shall be correct on the Effective Date and on the Closing
Date. Any claim for a breach of such representations and warranties shall survive
for one (1) year after the Closing Date. Any claim for a breach of representation
or warranty set forth in Section 3.1 and Section 3.2 of this Agreement shall be
barred and shall lapse unless a claim is made in writing, with a description of the
claim made, on or before one (1) year after the Closing Date. All other provisions
of this Agreement shall be deemed merged into or waived by the instruments of
Closing, except for those provisions that specifically state that they survive
Closing or termination (each, a "Surviving Provision"). If a Surviving Provision
states that it survives for a limited period of time, that Surviving Provision shall
survive only for the limited time specified. Any claim made in connection with a
Surviving Provision shall be barred and shall lapse unless a claim is made in
writing, with a description of the claim made, on or before the limited time
specified in such Surviving Provision.
10.11. Future Agreements. Seller shall not enter into any agreements (or extend any
current agreements) with respect to the Property, including, but not limited to
leases, that will be binding on the owner of the Property and extend beyond the
Closing Date (each, a "Third Party Agreement"), without Buyer's prior written
approval, which may be withheld at Buyer's sole discretion.
10.12. Condemnation. If at any time prior to the Closing Date there shall be a taking by
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41 BDB
eminent domain proceedings or the commencing of any such proceedings, with
respect to the Property, Seller shall promptly give written notice thereof to Buyer,
and, if such taking by eminent domain proceedings would result in a Material
Change, Buyer shall have the right, at Buyer's sole option, to terminate this
Agreement by giving written notice to Seller within thirty (30) days after Buyer
receives written notice of such proceedings, in which event the Earnest Money
paid and any Extension Deposits shall be immediately refunded to Buyer, and
neither party hereto shall have any further duties, obligations or liability to the
other, except as specifically provided herein. A "Material Change" means a taking
that would result in (a) a diminution in value of the Property or a cost to restore the
Property of more than $100,000 as estimated by an independent consultant
acceptable to Buyer and Seller; (b) the procurement of the entitlements sought
by Buyer being impaired or impracticable (as determined by Buyer in Buyer's
sole discretion); (c) a material impairment of access to the Property; or (d) Buyer's
ability to construct its planned facilities on the Property being impaired or
impracticable (as determined by Buyer in Buyer's sole discretion). If Buyer does
not so terminate this Agreement, then at the Closing, Seller shall assign to Buyer
all rights of Seller in and to any awards or other proceeds payable by reason of
any taking.
10.13. Risk of Loss. Risk of loss or damage to the Property by condemnation, eminent
domain, or similar proceedings (or deed in lieu thereof), or by fire or any other
casualty, from the Effective Date until the Closing will be on Seller.
10.14. Memorandum of Agreement. Seller and Buyer agree to execute a Memorandum
of Purchase Agreement in the form attached as Exhibit B hereto
("Memorandum"). At any time after Buyer's satisfaction or waiver of the
Feasibility Contingency, Buyer may record the Memorandum at Buyer's expense.
If this Agreement is terminated prior to Closing for any reason other than a default
by Seller, Buyer agrees to execute and deliver to Seller a release of the
Memorandum of Agreement in recordable form.
10.15. Police Powers. Nothing in this Agreement shall be interpreted to limit the police
powers granted by the State of Washington to the Seller.
[Signatures on following page(s)]
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
IN WITNESS HEREOF, the Parties have executed this Agreement as of the Effective Date.
Seller:
City of Tukwila
a Washington State Municipal Corporation
BNI
Printgame: d
Title: Mayor
Buyer:
Unico Longacres Investment Partners LP
a Delaware limited partnership
By: Unico Longacres Investment Partners GP LLC,
a Delaware limited liability company,
General Partner
By: Unico Investment Group LLC,
a Delaware limited liability company,
Marmainc, Member
By: CDocu Signed by:
�YttiLUt { tlrLA V'AaA
Name: 1QEk6FPEC9A34f,%h rau
Title: Individual
2/9/2024 1 9:04 AM P
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
EXHIBIT A
TO
REAL ESTATE PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION
The East 100.00 feet of Lots 1 and 2, City of Tukwila Short Plat No. L98-0007 recorded under
Recording No. 9803129013, records of King County, Washington;
Together with the East 100.00 feet of the following described parcel:
That portion of the Henry Meader Donation Claim No. 46 and of Section 24, Township 23
North, Range 4 East, W.M., in King County, Washington, lying West of the Burlington Northern
Railroad right-of-way, East of the Union Pacific Railroad right-of-way, and South of a line 137
feet South of the North line of said Donation Claim and North of the Easterly prolongation of the
monumented centerline of South 158th Street;
(Also known as Adjusted Parcel 2, City of Tukwila Boundary Line Adjustment No. L06-077,
recorded under Recording No. 20071011900001, records of King County, Washington).
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
EXHIBIT B
TO
REAL ESTATE PURCHASE AND SALE AGREEMENT
Form of Memorandum of Purchase and Sale Agreement
[See Attached]
22
DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
Prepared by:
After recording, return to:
Memorandum of Real Estate Purchase and Sale Agreement
GRANTOR: City of Tukwila,
a Washington State Municipal Corporation
GRANTEE: Unico Longacres Investment Partners LP,
a Delaware limited partnership
LEGAL DESCRIPTION:
ASSESSOR'S PROPERTY TAX PARCEL ACCOUNT
NUMBER(S): 242304-9034
This instrument memorializes the fact that Unico Longacres Investment Partners
LP, a Delaware limited partnership ("Buyer"), and the City of Tukwila, a municipal
corporation organized under the laws of the State of Washington, ("Seller"), have
entered intg that certain Real Estate Purchase and Sale Agreement dated
February 102'024 ("Agreement") concerning the real property in the County of King,
State of Washington described in Exhibit B-1 attached hereto ("Property").
Under the terms of the Agreement, which is in full force and effect, Buyer has the right to
purchase the Property from Seller for the price specified therein. This Memorandum of
Real Estate Purchase and Sale Agreement may be tenninated of record by the recording
of a Release of Memorandum or other instrument evidencing such termination signed by
Seller and Buyer and recorded in the King County Registry.
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
SELLER:
City of Tukwila
a Washington State Municipal Corporation
,�- Name: Thomas McLeod Title: Moor
State of
Washington
County of 4,w
I certify that I know or have satisfactory evidence IAvwo s A4, Le is the
person who appeared before me, and said person acknowledged tha/she) signed this
instrument, on oath stated that /she) was authorized to execute the instrument
and acknowledged it as the
of the City of Tukwila, to be the free and
voluntary ac such party for the uses and purposes mentioned in the instrument.
Date
,,,,11111111 r f f",
RAN ��•,,
�P01
Type/Print4eme of Notary.
=
Notary Public in And For the_,Slate of
�o Puaoc ti.'z
Washington, residing at
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''•'9 '•SZONC.)�EX4�F' '
My appointment expires: 0O
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
BUYER:
Unico Longacres Investment Partners LP
a Delaware limited partnership
By: Unico Longacres Investment Partners GP LLC,
a Delaware limited liability company,
General Partner
By: Unico Investment Group LLC,
a Delaware limited liability company,
Managing Member
By:_
Name:
Title:
STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that is the
person who appeared before me, and said person acknowledged that said person signed this
instrument and acknowledged it as the of Unico Investment
Group LLC, a Delaware limited liability company, the Managing Member of Unico Longacres
Investment Partners GP LLC, a Delaware limited liability company, the General Partner of UNICO
LONGACRES INVESTMENT PARTNERS LP, a Delaware limited partnership, to be the free
and voluntary act of such party for the uses and purposes mentioned in the instrument.
❑ (Check if applicable) This notarial act involved the use of communication technology.
DATED this day of 120,
[STAMP/SEAL]
PRINT NAME
NOTARY PUBLIC for the State of Washington,
residing at
My commission expires:
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DocuSign Envelope ID: DOD8CBDF-4E72-4137-A5D2-5778BOB41BDB
EXHIBIT B-1
TO
MEMORANDUM OF REAL ESTATE PURCHASE AND SALE AGREEMENT
Description of Property
26