HomeMy WebLinkAbout09/18/2018 09 Surplus Property at 2312 West Nob Hill Boulevard1
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 9.
For Meeting of: September 18, 2018
ITEM TITLE: Resolution acknowledging prior declaration that City -owned
property located at 2312 W. Nob Hill Boulevard is surplus to the
uses and needs of the City of Yakima, authorizing disposition and
approving Agreement of Purchase and Sale for said property to
JAG Retail Properties, Inc.
SUBMITTED BY: Jeff Cutter, City Attorney
SUMMARY EXPLANATION:
In February 2014, the City of Yakima purchased the subject property (2312 West Nob Hill
Boulevard) along with three other properties from Tiger Oil Corporation for the public purpose of
environmental remediation and site clean-up. Following completion of necessary cleanup, the
City's intention has been to return the properties to the private sector for beneficial economic
development. The City has worked with the Washington State Department of Ecology to achieve
cleanup on this site. The property has not yet been determined subject to issuance of a "No
Further Action" letter from the Department of Ecology, but has been deemed amendable to
construction in accordance with the environmental covenants previously granted to the
Department of Ecology by the City on December 11, 2015.
The subject property was determined surplus to the uses and needs of the City of Yakima by
action of the Council under Resolution R-2015-089 and is therefore subject to disposition. By
instrument dated September 7, 2018, the City of Yakima has received from JAG Retail
Properties, Inc. an "Agreement of Purchase and Sale and Escrow Instructions" ("Purchase and
Sale Agreement"), whereby the buyer proposes to purchase the subject property for $420,000.
This amount is $40,000 less than the appraised value of the property, said appraisal being based
upon an assumption that the property is free of any environmental restrictions. The City believes
that the current offer under consideration by the Council represents a fair value for the property
given its current environmental status. The terms of the Agreement also require that the City
continue to monitor the status of the site for the next 20 years, or until a "No Further Action" letter
is issued by the Department of Ecology, whichever first occurs. Monitoring costs will be covered
by remaining funds currently held by the City from the trust fund that was provided by Tiger Mart
corporation as part of the purchase agreement when the City bought the four properties. In
addition, to date the Department of Ecology has been willing to underwrite much of the mitigation
activities for the four properties. It is expected that this support would continue if necessary.
The attached Resolution acknowledges the prior declaration of Council that the property is
surplus to the uses and needs of the City of Yakima and may be disposed of and further
approves the Agreement of Purchase and Sale and Escrow instructions.
ITEM BUDGETED:
NA
STRATEGIC PRIORITY: Neighborhood and Community Building
APPROVED FOR
SUBMITTAL:
STAFF RECOMMENDATION:
Adopt Resolution
BOARD/COMMITTEE RECOMMENDATION:
ATTACHMENTS:
Description Upload Date
d Resolution -Tiger -2312 VV Hill BI\ed-JAG Inc -9 7 2018 9/7/2018
Tiger Mart -2312 W Nob Hill \Tiger Property -2308 W
Hill -PSA -FINAL Signed JAG 9-7 2018
Type
Resd ution
9/7/2018 tract
2
A RESOLUTION
3
RESOLUTION NO. R -2018 -
acknowledging the prior City Council determination declaring the property
located at 2312 West Nob Hill Boulevard, Yakima Washington, to be
surplus to the uses and needs of the City of Yakima and subject to
disposition; and approving Agreement of Purchase and Sale.
WHEREAS, in February 2014 the City of Yakima (City) purchased the subject property
(2312 West Nob Hill Boulevard), along with three other properties from the Tiger Oil Corporation
for the public purpose of environmental remediation and site clean-up; and
WHEREAS, substantial site remediation was accomplished in cooperation with the
Department of Ecology (DOE) to remove hazardous waste from the site; DOE has not yet
determined it is appropriate to issue a "No Further Action" decision for the site, but that the site is
presently amenable to development subject to the Environmental Covenant granted by the City
to DOE on December 11, 2015; and
WHEREAS, the City Council previously determined that the subject property is surplus to
the uses and needs of the City of Yakima and may be disposed of, by action of Resolution R-2015-
089; and
WHEREAS, by instrument dated September 7, 2018, the City of Yakima received from
JAG Retail Properties, Inc. an "Agreement of Purchase and Sale and Escrow Instructions"
("Purchase and Sale Agreement"), a copy of which is attached hereto and incorporated herein by
this reference, whereby the purchaser proposes to purchase the subject property for $420,000,
which amount is $40,000 less than the appraised fair market value of said property when valued
as if clean and free of any environmental contamination; and
WHEREAS, as a condition of the Purchase and Sale Agreement the City agrees to
continue to provide any necessary well monitoring on the site for twenty years or until a "No
Further Action" letter is issued by DOE; and
WHEREAS, the City Council acknowledges the previous declaration of surplus property
and determination that the property may be disposed of; the Council further determines that
acceptance of the Purchase and Sale Agreement are in the best interests of residents of the City
of Yakima and will promote the general health, safety and welfare; now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
Section 1. The Agreement of Purchase and Sale and Escrow Instructions attached
hereto and incorporated herein by this reference is hereby approved; the City Manager is hereby
authorized to execute and administer such Agreement for and on behalf of the City of Yakima,
and to execute all documents necessary or appropriate to accomplish such sale.
Section 2. The City Manager is authorized to dispose of the property by any means
deemed necessary and appropriate in accordance with applicable codes and laws of the State of
Washington and the Agreement of Purchase and Sale approved in Section 1 above. The City
Manager is further authorized to prepare and execute a deed of conveyance to accomplish such
sale in accordance with the terms and conditions above, and to deliver such deed for recording
by the purchaser upon payment in full to the City of Yakima of the consideration described above;
4
ADOPTED BY THE CITY COUNCIL this 18th day of September, 2018.
ATTEST:
Kathy Coffey, Mayor
Sonya Claar Tee, City Clerk
AGREEMENT OF PURCHASE AND SALE AND
ESCROW INSTRUCTIONS
This Agreement of Purchase and Sale and Joint Escrow Instructions ("Agreement"),
dated for reference purposes only as of September 6, 2018 is entered into by and between, The
City of Yakima, (collectively, the "Seller"), and, JAG Retail Properties Inc, a California
corporation (or an assignee or nominee), (collectively, the "Buyer"). This Agreement is
effective as of the date it is executed by the later of Buyer and Seller, approval of the Yakima
City Council and upon receipt by Escrow ("Effective Date") (Seller and Buyer may collectively
be referred to as the "Parties"). Buyer and Seller shall prepare and execute such escrow
instructions as may be necessary and appropriate to close the transaction in accordance with
the terms of this Agreement. Each party directs and authorizes Escrow Holder to close escrow
pursuant to the terms and conditions of this Agreement should either party fail to execute the
escrow instructions.
Seller hereby agrees to sell to Buyer and Buyer agrees to purchase from Seller all of the
following:
a. Certain real property known as 2312 W Nob Hill Blvd, City of Yakima,
County of Yakima, State of Washington (APN #'s 181326-42051) ("Land").
b. All rights, privileges, obligations (other than as specifically defined
herein), buildings, improvements, easements, tenements, hereditaments, rights of way
and appurtenances which belong to or appertain to the Land and/or are owned by Seller,
including, without limitation, rights to all minerals, oil, gas and other hydrocarbon
substances on and under the Land, as well as all development rights, air rights, water,
water rights and water stock, if any, relating to the Land (collectively,
"Appurtenances"); and
c. All intangible property owned or held by Seller in connection with the
Land or with the use thereof including, without limitation, all permits, maps, surveys,
plans, leases, guarantees, licenses, rental contracts and agreements (collectively,
"Intangible Property").
The Land, Appurtenances and Intangible Property are hereinafter collectively referred to as the
"Property".
Seller
lBuyer J G
5
6
1. TERMS OF PURCHASE:
1.1 Purchase Price - The purchase price ("Purchase Price") for the Property
shall be four hundred twenty thousand dollars and no cents ($420,000.00).
1.2 Payment of the Purchase Price - The Purchase Price for the Property
shall be payable by Buyer as follows:
a. Upon mutual acceptance of this Agreement, Buyer shall deposit with Fidelity
Title Insurance (the "Escrow Holder"), an amount equal to fifteen thousand dollars and no
cents ($15,000.00) ("Deposit"). Upon Escrow Holder's receipt of the Deposit, Escrow
Holder, shall automatically release ten dollars and no cents ($10.00) to Seller to validate
this contract. The remaining Deposit shall remain with Escrow Holder per the terms of this
Agreement.
b. The Deposit held in escrow under this Agreement shall be placed in an
interest-bearing account as directed by Buyer with all interest being credited to Buyer.
The Deposit shall be refundable in full to Buyer until all Conditions Precedent described
in Paragraph 4 below have been approved or waived by Buyer, at which time the
Deposit shall become non-refundable, except in the event of either a right under this
Agreement for Buyer to obtain a refund of the Deposit or Seller's default. If Buyer
cancels escrow for any reason whatsoever prior to the expiration of the Diligence Period
as described in paragraph 4, then Buyer's deposit shall be fully refundable to Buyer, and
no additional signatures from Seller shall be necessary in order to refund the Deposit to
Buyer. At Closing such deposit shall be applied to the Purchase Price or be treated as
liquidated damages as provided in Paragraph 10 below.
c. Buyer shall cause the remainder of the Purchase Price to be paid through
Escrow prior to Closing.
2. CLOSING: The closing of the purchase and sale of the Property ("Closing") shall take
place at Escrow Holder's office on or before thirty (30) days after the expiration of the Diligence
Period, which shall be after the approval or waiver of all Conditions Precedent provided for in
Paragraph 4.
Seller
J G
2Buyer
3. TITLE:
3.1 Title - Seller shall deliver title to the real property to Buyer by General
Warranty Deed, and an ALTA lenders title policy insuring the Property is free and clear
of all liens, financial encumbrances, licenses, leases, other third party rights of record,
except as approved by Buyer in writing.
4. BUYER'S CONDITIONS PRECEDENT ("Conditions Precedent"): The performance by
Buyer of its obligations herein to close are expressly contingent upon the satisfaction or waiver
by Buyer at the sole and absolute discretion of Buyer, of the conditions herein set forth within
the time periods provided ("Diligence Period"). The failure of Buyer to give written notice of
satisfaction or waiver within the specified time frame above or below, as applicable, shall be
deemed to constitute Buyer's disapproval of any of the following matters, conditions and
contingencies:
Seller
4.1 Seller Document Delivery - Concurrent with the execution of this
Agreement, Seller hereby agrees to make available or to furnish Buyer with clearly legible
copies of all required documents as described in Paragraph 4.1.a thru 4.1.m, within seven
(7) days of opening escrow. Buyer shall have until the expiration of the Diligence Period
described in paragraph 4.2 to review and approve each of the documents. Documents
shall include:
a. A current preliminary title report ("Title Report") from Pacific Alliance
Title (311 N. 4th Street, Suite 102, Yakima, WA) with respect to the Land, and clearly
legible copies of all underlying documents referred to in the Title Report. If any
objectionable exceptions are set forth in any notice from Buyer to Escrow Holder and
Seller prior to the end of the Diligence Period, then Buyer shall have the right to elect at
any time prior to the Closing to terminate this Agreement and receive a full refund of the
Deposit if such objections are not removed by Seller prior to the Closing. If Seller gives
Buyer written notice that Seller does not intend to remove any such objectionable item,
Buyer may elect, at any time prior to the Closing to either terminate this Agreement or to
waive its disapproval and accept title in its then condition. Notwithstanding the
foregoing, Seller covenants and agrees to remove at the Closing any and all monetary
encumbrances on the Property, except for non -delinquent real property taxes.
In addition to the review of the Title Report, if during the Diligence Period, the
Title Company adds an exception to the coverage of the Title Report not previously
disclosed by the Title Report ("New Title Matter") relating to the status of title to the
JG
3Buyer
7
8
Property, Buyer shall, within five (5) days after receipt of the added exception, be
entitled to object to any such New Title Matter by giving written notice to Escrow Holder
and Seller. In the event such notice to Seller is given, the procedures in the foregoing
paragraph shall apply to such New Title Matter.
b. Copy of Seller's most current ALTA survey.
c. Copies of Seller's title policy together with all title exception documents
in Seller's possession.
d. Copies of all environmental studies, indemnities, UST studies and reports,
agency correspondence and notices and related documents ("Environmental
Documents").
e. Copies of permits, tax bills, and any other contract(s) related to the
property.
£ Copy of any leases and or sub leases and all related guaranty
documentation.
g. Copy of any building condition reports in Sellers possession.
h. Copy of any notices from municipalities or other governing entities
regarding on going conditions or future Property development.
i. Copy of any vendor contracts.
j. Plans and Specifications
k. Three (3) year operating history
1. Third party contracts encumbering the Property.
m. Copies of such other documentation related to the Property in Seller's
possession or under its control which is reasonably requested by Buyer during the
Diligence Period.
4.2 Buyers Investigations ("Diligence Period") - Buyer shall have until February 19,
2019 to complete, to its sole satisfaction a physical and economic examination of the
property. During that time Buyer shall have the right and opportunity to inspect and
review the physical condition of the Property, including the right to have Buyer's
consultants enter the Property and inspect the Land and prepare written reports
regarding the same, on the following terms and conditions. Seller grants Buyer and its
consultants, engineers and other agents and contractors the right to enter upon the
Property during reasonable business hours for the purpose of conducting such
examinations and tests as Buyer may desire (with any invasive testing requiring Seller's
approval as to type and placement, which approval shall not be unreasonably withheld
Seller 4Buyer J G
or delayed). Buyer shall keep the Property free and clear of any mechanic's liens
arising out of Buyer's entry on the Property and, in the event of any damage or
alteration caused by such entry, shall promptly and fully restore the Property to its
condition existing prior to such entry on the Property. Buyer shall indemnify Seller and
hold Seller harmless from and against any and all claims, demands, actions, damages,
liability, loss or costs whatsoever (including without limitation, reasonable attorneys'
fees and costs), directly arising out of the entry, inspections, negligence or willful
misconduct of Buyer or Buyer's agents, employees, consultants, and engineers on the
Property. Buyer shall be responsible for the costs of Buyers' reports and studies. All
reports that Buyer completes during this inspection shall be provided to Seller should
Buyer decide to terminate this Agreement.
a. Buyer may elect to obtain a new ALTA survey or an update to the Seller's
ALTA survey.
b. Buyer may elect to obtain a new environmental study or an update to the
Environmental Reports.
c.
d.
Buyer may elect to obtain new soils reports or update existing reports.
Buyer shall complete such economic studies as it deems necessary to
determine the Property's economic viability and suitability for its intended use.
e. Buyer shall have the right to market the property to a prospective
tenant, and Buyer shall have the right to enter into discussions and/or
negotiations with any future or current tenant.
If Buyer chooses to cancel Escrow at any time during the Diligence Period by providing
notice in writing to Seller and Escrow, for any reason whatsoever, then Buyer's deposit
shall be refunded in full, less Buyer's share of the escrow cancellation costs, and
neither party shall have any further liability towards one another.
4.3 Performance Contingencies - Buyers' obligation to close escrow is conditioned
upon Buyer obtaining
(a) expeditious review of Buyer's complete development application; upon
completion of said review City shall notify Buyer when necessary permits may be issued
for the "Proposed Project".
Seller 5Buyer
9
(b) Buyers receipt of notice that sewer and water utilities reasonably necessary to
serve the Proposed Project (collectively, the "Public Infrastructure") are either
completed and in place at the property line at the Closing or that the City will
construct and install uncompleted Public Infrastructure prior to planned
completion of the Proposed Project or on a schedule otherwise reasonably
satisfactory to Buyer.
(c) Buyer, as determined in its sole and absolute discretion, will notify Seller
within twenty one (21) days after receipt of the notice identified above as to
(i) satisfaction, (ii) waiver or (iii) non satisfaction of each item in this
paragraph 4.3.
5. MUTUAL COSTS:
5.1 Seller - Seller to pay for, at closing, an ALTA Lenders Policy of title
insurance in favor of Buyer with Fidelity Title Insurance, in the amount of the Purchase
Price; any transfer tax; Seller's legal fees and expenses; one-half (') of the escrow fees;
deed preparation and recording charges; and all other costs and expenses incurred by
Seller.
5.2 Buyer - Buyer to pay for Buyer's legal fees and expenses; one-half (') of
the escrow fees, deed recording charges; and all other costs or expenses incurred by
Buyer.
6. PRORATIONS AND CLOSING ADJUSTMENTS: Except as hereinafter specifically provided
to the contrary or unless required to be paid directly by the Tenant, rents, insurance, real estate
taxes, rents, personal property taxes, other taxes and assessments (whether general or special),
all utilities, water and sewer charges, shall be adjusted and prorated as of the day preceding the
Closing Date. Buyer shall be deemed the owner of the Property, for the preparation of these
calculations, for the entire Closing Date. Seller will credit Buyer at Closing for any and all Tenant
security deposits and prepaid rents under any Lease.
7. DAMAGE OR CONDEMNATION OF PROPERTY: In the event the Property is either
damaged or destroyed due to a casualty or is the subject to a condemnation or other taking,
Buyer shall have the right to terminate this Agreement, and the Deposit shall be returned to
Buyer; or to proceed with the transaction and secure from Seller an assignment of any and all
Seller
6Buyer J G
10
insurance or condemnation or taking proceeds paid or payable in connection with the damage
or destruction of the condemnation or taking.
8. EXISTING LEASES AND CONTRACTS: After the Effective Date, Seller shall not execute
new leases and contracts pertaining to the Property, or modify or terminate the Lease or any such
contracts prior to Closing without Buyer's prior written approval, which shall not be unreasonably
withheld upon receipt by Buyer of a written request of Seller. If there are existing leases and/or
contracts on the property, Seller acknowledges and understands Buyer will contact and
correspond directly with the Tenant/s, licensees, licensors, or any other 3rd party contract
holder, during Escrow and such action(s) shall not violate the terms of the agreement. Buyer
shall have no liability and Seller shall hold Buyer harmless, indemnify, release, and defend
Buyer from and against any actions of Tenant, licensees, licensors, or any other 3rd party
contract holder, resulting from such correspondence. At Closing, Seller shall assign to Buyer the
Lease and/or 3rd party contracts to Buyer, at Buyer's sole discretion, and all related lease
documentation and lease guaranties pursuant to a form of Lease Assignment provided by Buyer,
which form shall be subject to Seller's approval, not to be unreasonably withheld, within three (3)
business days of receipt. At Closing, Seller shall assign to Buyer any contracts related to the
Property which Buyer elects in writing to assume pursuant to a form of Contract Assignment
provided by Buyer, which form shall be subject to Seller's approval, not to be unreasonably
withheld, within three (3) business days of receipt.
9. WARRANTIES AND GUARANTEES: In addition to the representations and warranties
contained elsewhere in this Agreement, Seller hereby makes the following representations and
warranties, each of which individual representations and warranties shall be true and correct as of
the date hereof and again as of the Closing.
Seller
(a) At the Closing, to Seller's best knowledge, title to the Property shall be
delivered free and clear of all liens, claims and other third party rights of record except
those encumbrances and easements expressly approved by Buyer, in the title insurance
policy to be delivered by Seller to Buyer.
(b) To the best of Seller's knowledge, Seller has not received any written
notice of any condemnation proceedings or proposed zoning changes with respect to any
portion of the Property or any written notice from any insurance carrier for the Property
or the Tenant that requests or requires improvements, repairs or maintenance to the
Property.
7Buyer(76
11
Seller
(c) To the best of Seller's knowledge, Seller has the authority to transfer the
Property to Buyer and the person executing this Agreement on behalf of Seller is duly
authorized by Seller to execute this Agreement.
(d) To Seller's best knowledge, the Property is not in violation of any laws,
codes, rules, regulations or ordinances; other than disclosed to Buyer in writing.
(e) To the best of Seller's knowledge, there are no lawsuits filed or, to
Seller's best knowledge, threatened which may affect the Property.
(f) Except as may be set forth in the Environmental Documents, to the
best of Seller's knowledge, Seller has received no written notice that the Property is in
violation of any laws governing the generation, handling, manufacturing, treatment,
storage, use, transportation, spillage, leakage, dumping, discharge or disposal
(whether accidental or intentional) of Hazardous Materials. As used herein, the term
"Hazardous Materials" means hazardous waste, toxic substance, polychlorinated
biphenyls, asbestos or related materials, and also includes but is not limited to,
substances defined as (a) "hazardous substances" or "toxic substances" in the
Comprehensive Environmental Response Compensation Liability Act of 1980, as
amended, 43 USC Section 9063, et seq., and Hazardous Material Transportation Act, as
amended, 49 USC 6901 et seq., and The Resources Conservation and Recovery Act of
1976, 42 USC 6901 et seq.; and the Toxic Substances Control Act, 15 USC 2601 et seq.
and (b) "hazardous waste", "extremely hazardous waste" or "restricted hazardous waste"
under Sections 25155, 25117 or 25112.7.
(g) Seller warrants and represents that the property is subject to an
Environmental Covenant granted to the Washington State Department of Ecology by the
City of Yakima on the 11th day of December, 2015 and recorded with the Yakima County
Auditor. The parties specifically understand and agree that all uses and activities
occurring on the property must comply with the terms of the referenced Covenant. The
Seller will deliver the property free and clear of any underground storage tanks, if tanks
are in existence on the Property. Such removal shall be solely at the cost of the Seller.
Seller further represents that as part of this Agreement, should the Department of
Ecology require additional site monitoring Seller shall be financially responsible for the
Department of Ecology monitoring costs associated with the Environmental Covenant
attached to the subject property for a period of twenty (20) years following the date of
closing, or until the Department of Ecology issues a No Further Action letter for the
8Buyer J G
12
13
property, whichever shall first occur; thereafter Buyer shall be solely responsible for any
and all further environmental costs associated with the property.
(h) Seller represents that both Buyer and Seller shall enter into a license
agreement that provides for existing and continuous monitoring wells on the property
that shall include the following language with additional reasonable language which shall
be provided for Seller's review prior to the expiration of the due diligence:
(h.i.) Seller shall indemnify, defend, release, and hold harmless Buyer, its
successors and assigns, subsidiaries, affiliates, Tenants (its employees), from and against
any and all claims, lossess, causes of action, judgements, settlements, fines, penalties,
damages including economic and direct damages, injuries to persons, damages to
property, costs and expenses, including reasonable attorney fees and costs (collectively
"Claims") arising out of, in connection with, resulting from: (a) prior and existing
contamination of Hazardous materials on the site, (b) the monitoring of wells on the
property, (c) any intentional misconduct or negligents acts, errors or omissions by City of
Yakima, its agents, employees, representatives, consultants, or any other person acting
directly or indirectly through such, (d) any actual violation by the City of any applicable
federal, state, or local laws, regulations, ordinances, administrative orders or rule, (e)
any actual breach by the City of any representations, warranties or obligations.
(h.ii.) Existing Monitoring wells shall be closed as appropriate, and shall not
unduly disrupt the operation of any future development. Costs of replacing existing
monitoring wells due to damage or development design shall be the responsibility of
Buyer.
(h.iii.) Insurance: City of Yakima shall maintain appropriate insurance reasonably
acceptable to both parties for such ongoing monitoring.
ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS
AGREEMENT SHALL SURVIVE THE CLOSING.
10. LIQUIDATED DAMAGES FOR BUYER'S DEFAULT:
IF BUYER COMMITS A MATERIAL DEFAULT UNDER THIS AGREEMENT AND
THE CLOSE OF ESCROW FAILS TO OCCUR BY REASON OF SUCH DEFAULT, BUYER
AND SELLER AGREES THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING,
KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT
TO ESTABLISH SELLER'S DAMAGE BY REASON OF BUYER'S DEFAULT.
ACCORDINGLY, BUYER AND SELLER AGREE THAT IT WOULD BE REASONABLE AT
Seller 9Buyer G
SUCH TIME TO AWARD SELLER "LIQUIDATED DAMAGES" EQUAL TO THE TOTAL OF
ALL DEPOSITS PLACED INTO ESCROW BY BUYER PURSUANT TO THIS AGREEMENT
LESS ANY OF ESCROW HOLDER'S CHARGES.
FOR THE PURPOSE OF THE FOREGOING PROVISIONS OF THIS PARAGRAPH 10,
BUYER SHALL BE DEEMED TO HAVE COMMITTED A MATERIAL DEFAULT UNDER THIS
AGREEMENT AT THE TIME BUYER IS IN FACT IN DEFAULT AND/OR BUYER NOTIFIES
SELLER OF BUYER'S ELECTION TO TERMINATE THIS AGREEMENT AND THE ESCROW AT A
TIME WHEN BUYER DOES NOT HAVE THE RIGHT UNDER THE TERMS OF THIS
AGREEMENT TO SO TERMINATE THIS AGREEMENT OR THE ESCROW. SELLER AND BUYER
ACKNOWLEDGE AND AGREE THAT THE APPLICABLE FOREGOING AMOUNTS OF
LIQUIDATED DAMAGES ARE REASONABLE AS LIQUIDATED DAMAGES AND SHALL BE
SELLER'S SOLE AND EXCLUSIVE REMEDY IN LIEU OF ANY OTHER RELIEF, RIGHT OR
REMEDY, AT LAW OR IN EQUITY, TO WHICH SELLER MIGHT OTHERWISE BE ENTITLED BY
REASON OF BUYERS DEFAULT. ACCORDINGLY, IF BUYER FAILS TO COMPLETE THE
PURCHASE OF THE PROPERTY AND SUCH FAILURE CONSTITUTES A BREACH OF THIS
AGREEMENT, SELLER MAY INSTRUCT THE ESCROW HOLDER TO CANCEL THE ESCROW
WHEREUPON SELLER SHALL BE RELIEVED FROM ALL LIABILITY HEREUNDER, AND,
PROMPTLY FOLLOWING ESCROW HOLDER'S RECEIPT OF SUCH INSTRUCTION, ESCROW
HOLDER SHALL (I) CANCEL THE ESCROW, (II) PAY ALL OF ESCROW HOLDER'S CHARGES
FROM THE TOTAL AMOUNT OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AND (III)
DISBURSE TO SELLER THE REMAINING BALANCE OF THE DEPOSITS. SELLER AND BUYER
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS
PARAGRAPH 10 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY
ITS TERMS.
J6
SELLER'S INITIALS BUYER'S INITIALS
11. OTHER REASONS FOR FAILURE TO CLOSE; SELLER'S DEFAULT:
IF THE CLOSE OF ESCROW FAILS TO OCCUR FOR ANY REASON OTHER THAN
BUYER'S DEFAULT UNDER THIS AGREEMENT, ESCROW HOLDER SHALL DISBURSE TO
BUYER ALL OF THE DEPOSIT THEN HELD BY ESCROW HOLDER, PLUS THE ACCRUED
INTEREST THEREON, LESS BUYER'S SHARE OF ESCROW CANCELLATION CHARGES; AND
IF ESCROW FAILS TO OCCUR BY REASON OF SELLER'S DEFAULT, BUYER SHALL HAVE
ALL RIGHTS AND REMEDIES AVAILABLE TO BUYER WITH RESPECT THERETO UNDER LAW
Seller 1OBuyer
(7G
14
AND/OR IN EQUITY, INCLUDING THE RIGHT TO SPECIFICALLY ENFORCE THIS
AGREEMENT. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS PARAGRAPH 11 AND BY THEIR INITIALS
IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
(76
SELLER'S INITIALS BUYER'S INITIALS
12. TIME IS OF THE ESSENCE: All Parties expressly understand hereto that time is of the
essence of each and every provision of this Agreement.
13. BROKER'S COMMISSION: Seller represents that it has not entered into any contracts
with any brokers or finders nor has Seller obligated itself to pay any real estate commissions or
finder's fees on account of the execution of this Agreement or the close of the transaction
contemplated hereby. Mike Abrams of Heritage Moultray Real Estate Services, LLC has
represented the Seller and Nick Ritch of Heritage Moultray Real Estate Services, LLC has
represented the Buyer (collectively, "Brokers") during the negotiaton of this agreement. Seller
agrees to pay Brokers a fee at Closing in an amount to be negotiated between the Seller and
the Brokers in accordance with the terms of a separate agreement between Seller and Brokers.
If no closing occurs no Broker's fee shall be paid. Buyer represents that it has not obligated
itself to pay any real estate commissions or finder's fees in account of the execution of this
Agreement or the close of the transaction contemplated hereby. Buyer and Seller hereby agree
to indemnify, defend and hold each other harmless from any reasonable claims, damages,
expenses, liabilities, liens and judgments (including cost, expenses and attorneys' fees in
defending the same) which arise on account of any claim made by any person or entity, other
than those set forth above (if any), for commissions or finders' fees with respect to the
transaction contemplated hereby due to the breach of any of the representations and
warranties made by the indemnifying Party in this Section 13. This indemnification shall
survive the Closing or the cancellation and termination of this Agreement. The commission or
other compensation payable to the broker or finders relating to this transaction shall only be
payable, if at all, upon a Closing, and, notwithstanding anything to the contrary herein, in no
event shall Buyer be liable to any broker or finders for all or any portion of any commission or
other compensation arising out of this transaction, whether or not there is a Closing (even if
the failure of the Closing is due to a default by Buyer of this Agreement or the escrow
instructions executed in connection herewith).
Seller
JG
11Buyer
15
16
14. ENTIRE DOCUMENT: This Agreement supersedes any and all prior written or verbal
arrangements, discussions, and representations and warranties between the Parties hereto or their
agents regarding the Property or the subject matter of this Agreement.
15. CONSTRUCTION (GOVERNING LAW): The laws of the State of Washington shall in all
respects govern this Agreement. Nothing contained herein shall be construed as to require the
commission of any act contrary to law and whenever there is any conflict between any provision
contained herein, any present or future statute, law, ordinance, or regulation contrary to which
the Parties have no legal right to contract, the present or future statute, law, ordinance, or
regulation shall prevail, but only the provision of this Agreement which is affected shall be limited
or deleted to the extent necessary and the remainder of the terms and provisions of this
Agreement shall not be affected.
16. DISPUTE RESOLUTION: Any controversy or claim arising between Buyer, Seller or
Broker, including, without limitation, any claim or dispute involving this Agreement, or the
breach or interpretation thereof, shall first be subject to mediation by the parties hereto, with
each party equally sharing in the cost of a mutally acceptable mediator. In the event
mediation is unsuccessful in resolving the dispute, the dispute shall be subject to the
determination of a court of competent jurisdiction in Yakima County, Washington. The
prevailing party, as determined by the court shall, in addition to such other relief as may be
awarded, be entitled to recover attorneys' fees, expenses and costs of investigation as actually
incurred.
17. NOTICES: All notices required or permitted to be given hereunder shall be in writing and
shall be delivered to the Parties at the addresses set forth below, by any one or more of hand
delivery, registered mail or certified mail, return receipt requested and postage prepaid,
overnight courier or facsimile or electronic e-mail transmission. Any notice shall be deemed
effective upon receipt or if given by registered or certified mail, three (3) business days after
delivery of the notice to the postal service.
If to Buyer:
JAG Retail Properties Inc,
1626 Montana Ave, Suite 625
Santa Monica, CA 90403
Attn: Joshua Guthartz
310 310 2116
josh@jagretail.com
With a copy to: n/a
If to Seller: address on signature page
Seller 12Buyer `7 ra
18. TIME OF ACCEPTANCE: This presentation of this Agreement to Seller constitutes an offer
and this Agreement shall expire unless accepted by Seller by Seller signing and delivering this
Agreement to Buyer on or before the close of business on September 21St, 2018.
19. PURCHASER'S 1031 TAX DEFERRED EXCHANGE: Buyer may make this transaction in
order to complete a 1031 tax deferred exchange for an affiliate of Buyer. Seller agrees to
cooperate with Buyer and its affiliate in order to accomplish such exchange at no additional
liability or expense to Seller.
20. SELLER'S TAX ELECTION: Seller may elect to create a 1031 tax deferred exchange. In
such event Buyer agrees to cooperate with Purchaser at no additional liability or expense to the
Buyer.
21. CONFIDENTIALITY: The Seller is a Washington Municipal Corporation subject to the
Washington State Open Public Record Act, RCW 42.56. Except as may be required by law all
Parties hereto agree to keep the contents of this document and the terms of this transaction(s)
confidential. Buyer shall have the right to market the property for lease, which shall not be a
violation of this confidentiality.
22. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon, and inure to the
benefit of, the Parties hereto and their respective successors, and assigns. No consent shall be
required in connection with any assignment or transfer related to this transaction.
23. COUNTERPARTS; FAX OR ELECTRONIC SIGNATURES: This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. This Agreement may also be executed by the
exchange of facsimile or electronically transmitted signatures to identical counterparts with the
same effect as if executed on the same instrument. The Parties expressly acknowledge and agree
that, notwithstanding any statutory or decisional law to the contrary, the printed product of an e-
mail transmission shall be deemed to be "written" and a "writing", and a signature delivered by
facsimile or e-mail shall be as binding upon the delivering party as an original signature.
24. FURTHER ACTS: Each party shall, at the request of the other, execute, acknowledge (if
appropriate) and deliver such additional documents, and do such other acts, as may be reasonably
required in order to accomplish the intent and purposes of this Agreement.
Seller
V G
13Buyer
17
25. NON -BUSINESS DAYS: If the time period for the performance of any act or notice called
for under this Agreement expires on a Saturday, Sunday, or any other holiday in which banking
institutions in the State of Washington are authorized or obligated by law or executive order to
close, the act or notice in question shall be performed on the next succeeding day that is not a
Saturday, Sunday or holiday.
26. HEADINGS: The titles and headings of the various Articles and Paragraphs hereof are
intended solely for means of reference and are not intended for any purpose whatsoever to
modify, explain or place any construction on any of the provisions of this Agreement.
27. SEVERABILITY: If any of the provisions of this Agreement or the application thereof to
any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement by the application of such provision or provisions to persons or circumstances other
than those as to whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
Seller
Signature Page to Follow on Separate Pages
U6
14Buyer
18
IN WITNESS WHEREOF, THE PARTIES HAVE SIGNED THIS AGREEMENT ON THE DATE
SET FORTH BELOW EACH SIGNATURE.
BUYER:
JAG RETAIL PROPERTIES, INC.
a California corporation
By:
Jos�uaGut�artz, Its President
Phone: 310'310'2116
Email: josh@jagretail.com
Dated 9-7-18
Seller 15Buyer
19
Seller
ACCEPTANCE:
The undersigned warrants that with City Council approval he/she/ has authority to
execute this document on behalf of Seller, to accept the foregoing offer, to sell the
Property described therein and to transfer marketable title to the Property to the Buyer
on the terms and conditions therein set forth in said Agreement of Purchase and Sale, said
acceptance conditioned entirely on the Yakima City Council's approval of said sale.
AGREED:
SELLER:
By:
The City of Yakima
By: Dated
Cliff Moore, City Manager
Address
Yakima City Hall
129 N. 2nd Street
Yakima, WA 98901
16BuyerJO
20
EXHIBIT A
LEGAL DESCRIPTION
APN #'s 181326-42051)
Seller 17Buyer
UG
JG
21