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HomeMy WebLinkAboutR-2016-045 5511 Summitview Avenue; Surplus Property Declaration and DispositionA RESOLUTION RESOLUTION NO. R-2016-045 declaring the property located at 5511 Summitview Avenue, Yakima, Washington, 98908 to be surplus to the uses and needs of the City of Yakima, and authorizing disposition of such parcel. WHEREAS, in February 2014, the City of Yakima (City) purchased the subject property, 5511 Summitview Avenue ("Subject Property"), along with three other properties from the Tiger Oil Corporation for the public purpose of environmental remediation and site clean-up, and WHEREAS, on September 16, 2014, the City received from the Department of Ecology a Notice of Potential Liability under the Model Toxic Control Act which named the City, as property owner, to be liable for the release or hazardous substances under RCW 70.105D 040, and WHEREAS, the City acknowledged the potential liability and that it was a potentially liable person to accommodate clean-up efforts at this site and in light of the cooperative clean- up efforts at other Tiger Oil sites purchased by the City needing clean-up and remediation; and WHEREAS, the City has taken DOE approved action to clean up and remediate the site, and is awaiting a final No Further Action letter; and WHEREAS, the City Council finds and determines that the subject property is surplus to the uses and needs of the City of Yakima, and that a declaration of surplus and authorization for disposition of the property at 5511 Summitview Avenue, Yakima, Washington 98908, are in the best interests of the residents of the City of Yakima, and will promote the public health, safety and welfare; therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: Section 1. Fee title ownership of the property at 5511 Summitview Avenue, Yakima, Washington 98908 (Yakima County Assessor's Tax Parcel Number 181321-13014) is hereby declared surplus to the uses and needs of the City of Yakima. Section 2. The City Manager is hereby authorized to dispose of the Subject Property by any means authorized by law, subject to the following conditions (a) The fair market value is established by a certified appraiser, and a minimum sales price will be equal to or greater than that fair market value determination; (b) The sale of the Subject Property will be subject to the retention of easements and/or rights-of-way for public utilities as deemed necessary and appropriate by the City of Yakima, (c) The sale of the Subject Property is subject to the terms and conditions as detailed in any environmental covenants specified by DOE for the property. These covenants shall be recorded with the title of the property and shall run with the interest in land; and (d) The sale of the Subject Property shall be subject to the issuance of a No Further Action letter by DOE. Section 3. The City Manager is authorized to dispose of the Subject Property by any Means deemed necessary and appropriate in accordance with applicable codes and laws of the State of Washington, including, but not limited to, negotiations for the sale of the Subject Property, and 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; now, therefore ADOPTED BY THE CITY COUNCIL this 5th da 1 of Apri ATTEST: 2016 GutieT ay•� Sonylaar Tee, City Clerk BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDASTATEMENT Item No. 5.F. For Meeting of: April 5, 2016 ITEM TITLE: Resolution declaring the property located at 5511 Summitview Avenue, Yakima, Washington, to be surplus to the uses and needs of the City and authorizing disposition of such parcel SUBMITTED BY: Sean Hawkins, Economic Development Manager, 575-6274 SUMMARY EXPLANATION: The attached resolution allows the City to surplus the former Tiger Mart facility at 56th and Summitview Avenue. A separate resolution for tonight's meeting addresses the Purchase and Sales Agreement the City has awaiting approval to allow the property to be sold to a development firm. ITEM BUDGETED: STRATEGIC PRIORITY: Economic Development APPROVED FOR SUBMITTAL: Interim City Manager STAFF RECOMMENDATION: BOARD/COMMITTEE RECOMMENDATION: This resolution was discussed with the Council Economic Development Committee members (Coffey, A Gutierrez, Adkison) at the March 24, 2016 meeting. The Council Committee recommended bringing the resolution to the full council for its consideration at the April 5, 2016 Yakima City Council meeting. ATTACHMENTS: Description Upload Date 0 Surplus Resolution 56 3/28/2016 Type Cover Memo Summit and 56 LLC. 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 325-4534 © Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev 1/2011 Page 1 of 13 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT This has been prepared for submission to your attorney for review and approval prior to signing. No representation is made by licensee as to its sufficiency or tax consequences Reference Date. May 20, 2016 Summit and 56 LLC, a Washington limited liability company ("Buyer") agrees to buy and City of Yakima ("Seller") agrees to sell, on the following terms, the commercial real estate and all improvements thereon (collectively, the "Property") commonly known as 5511 Summitview Avenue in the City of Yakima, Yakima County, Washington, legally described on attached Exhibit A. The Reference Date above is intended to be used to reference this Agreement and is not the date of "Mutual Acceptance," which is defined in Section 23. 1. PURCHASE PRICE. The purchase price is T follows (check only one): -74-\ 0-E rE ® All cash at closing with no financing contingency. ❑ All cash at closing contingent on new financing in Form PS_FIN). -- 1. . 1 • n Dollars ($359,000) payable as 1-4•1r 11- n.N ‘C-1"--7 N I NE - TVA ETVAo"S &a,'n 7" accordance with the Financing Addendum (attach CBA ❑ $ OR % of the purchase price in cash at closing with the balance of the purchase price paid as follows (check one or both, as applicable) ❑ Buyer's assumption of the outstanding principal balance as of the Closing Date of a first lien note and deed of trust (or mortgage), or real estate contract, in accordance with the Financing Addendum (attach CBA Form PS_FIN); ❑ Buyer's delivery at closing of a promissory note for the balance of the purchase price, secured by a deed of trust encumbering the Property, in accordance with the Financing Addendum (attach CBA Form PS_FIN ). ❑ Other: . 2. EARNEST MONEY. The earnest money in the amount of $5,000 shall be in the form of ❑ Cash ® Personal check El Promissory note (attached CBA Form EMN) ❑ Other. The earnest money shall be held by ❑ Selling Firm ® Closing Agent. Selling Broker may, however, transfer the earnest money to Closing Agent. Buyer shall deliver the earnest money no later than. ® 10 days after Mutual Acceptance. ❑ On the last day of the Feasibility Period defined in Section 5 below El Other: If the earnest money is to be held by Selling Firm and is over $10,000, it shall be deposited to: ❑ Selling Firm's pooled trust account (with interest paid to the State Treasurer) ❑ A separate interest bearing trust account in Selling Firm's name. The interest, if any, shall be credited at closing to Buyer. If this sale fails to close, whoever is entitled to the earnest money is entitled to interest. Selling Firm shall deposit any check to be held by Selling Firm within 3 days after receipt or Mutual Acceptance, whichever occurs later. Buyer agrees to pay financing and purchase costs incurred by Buyer. Unless otherwise provided in this Agreement, the earnest money shall be applicable to the purchase price. 3. EXHIBITS AND ADDENDA. The following Exhibits and Addenda are made a part of this Agreement: • Exhibit A - Legal Description El Earnest Money Promissory Note, CBA Form EMN ❑ Promissory Note, LPB Form No. 28N ❑ Short Form Deed of Trust, LPB Form No. 20 ❑ Deed of Trust Rider, CBA Form DTR ,/ INITIALS: Buyer 1144- Date 5,14//‘ Seller Date ( f /up Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) © Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev. 1/2011 Page 2 of 13 ❑ Utility Charges Addendum, CBA Form UA ❑ FIRPTA Certification, CBA Form 22E ❑ Assignment and Assumption, CBA Form PS -AS Addendum/Amendment, CBA Form PSA ❑ Back -Up Addendum, CBA Form BU -A ❑ Vacant Land Addendum, CBA Form VLA ❑ Financing Addendum, CBA Form PS_FIN ❑ Tenant Estoppel Certificate, CBA Form PS_TEC ❑ Defeasance Addendum, CBA Form PS_D ❑ Other 4. SELLER'S UNDERLYING FINANCING. Unless Buyer is assuming Seller's underlying financing, Seller shall be responsible for confirming the existing underlying financing is not subject to any "lock out" or similar covenant which would prevent the lender's lien from being released at closing. In addition, Seller shall provide Buyer notice prior to the end of the Feasibility Period if Seller is required to substitute securities for the Property as collateral for the underlying financing (known as "defeasance"). If Seller provides this notice of defeasance to Buyer, then the parties shall close the transaction in accordance with the process described in CBA Form PS_D or any different process identified in Seller's defeasance notice to Buyer. 5. FEASIBILITY CONTINGENCY. Buyer's obligations under this Agreement are conditioned upon Buyer's satisfaction in Buyer's sole discretion, concerning all aspects of the Property, including its physical condition; the presence of or absence of any hazardous substances; the contracts and leases affecting the property; the potential financial performance of the Property; the availability of government permits and approvals; and the feasibility of the Property for Buyer's intended purpose. This Agreement shall terminate and Buyer shall receive a refund of the earnest money unless Buyer gives written notice to Seller within 30 days (30 days if not filled in) (the "Feasibility Period") of Mutual Acceptance stating that this condition is satisfied. If such notice is timely given, the feasibility contingency stated in this Section 5 shall be deemed to be satisfied a. Books, Records, Leases, Agreements. Seller shall make available for inspection by Buyer and its agents within 2 days (2 days if not filled in) after Mutual Acceptance 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: 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 consultants; leases or other agreements relating to occupancy of all or a portion of the Property and a suite -by - suite schedule of tenants, rents, prepaid rents, deposits and fees; plans, specifications, permits, applications, drawings, surveys, and studies; maintenance records, accounting records and audit reports for the last three years and year to date, 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. Buyer shall determine within the Feasibility Period: (i) whether Seller will agree to terminate any objectionable Vendor Contracts; and (ii) whether Seller will agree to pay any damages or penalties resulting from the termination of objectionable Vendor Contracts Buyer's waiver of the Feasibility Contingency shall be deemed Buyer's acceptance of all Vendor Contracts which Seller has not agreed in writing to terminate. Buyer shall be solely responsible for obtaining any required consents to such assumption and the payment of any assumption fees. Seller shall cooperate with Buyer's efforts to receive any such consents but shall not be required to incur any out-of-pocket expenses or liability in doing so. Seller shall transfer the Vendor Contracts as provided in Section 17. Seller shall provide a "No Further Action Letter" for the site to Buyer. b. Access. Seller shall permit Buyer and its agents, at Buyer's sole expense and risk to enter the Property at reasonable times subject to the rights of and after legal notice to tenants, to conduct inspections concerning the Property and improvements, including without limitation, the structural condition of improvements, hazardous INITIALS: Buyer Date 5/7e/A Seller e., Date lid 11-2 Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone. (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) © Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev 1/2011 Page 3 of 13 G materials, pest infestation, soils conditions, sensitive areas, wetlands, or other matters affecting the feasibility of the Property for Buyer's intended use. Buyer shall schedule any entry onto the Property with Seller in advance and shall comply with Seller's reasonable requirements including those relating to security, confidentiality, and disruption of Seller's tenants. Buyer shall not perform any invasive testing including environmental inspections beyond a phase I assessment or contact the tenants or property management personnel without obtaining the Seller's prior written consent, which shall not be unreasonably withheld. Buyer shall restore the Property and improvements to the same condition they were in prior to inspection Buyer shall be solely responsible for all costs of its inspections and feasibility analysis and has no authority to bind the Property for purposes of statutory liens. Buyer agrees to indemnify and defend Seller from all liens, costs, claims, and expenses, including attorneys' and experts' fees, arising from or relating to entry onto or inspection of the Property by Buyer and its agents This agreement to indemnify and defend Seller shall survive closing. Buyer may continue to enter the Property in accordance with the foregoing terms and conditions after removal or satisfaction of the feasibility contingency only for the purpose of leasing or to satisfy conditions of financing. c. Buyer waives the right to receive a seller disclosure statement ("Form 17 -Commercial") if required by RCW 64.06. However, if Seller would otherwise be required to provide Buyer with a Form 17 -Commercial, and if the answer to any of the questions in the section of the Form 17 -Commercial entitled "Environmental" would be "yes," then Buyer does not waive the receipt of the "Environmental" section of the Form 17 -Commercial which shall be provided by Seller. 6. TITLE INSURANCE. a. Title Report. Seller authorizes Buyer, its Lender, Listing Broker, Selling Broker or Closing Agent, at Seller's expense, to apply for and deliver to Buyer a ® standard ❑ extended (standard, if not completed) coverage owner's policy of title insurance. If an extended coverage owner's policy is specified, Buyer shall pay the increased costs associated with that policy including the excess premium over that charged for a standard coverage policy, and the cost of any survey required by the title insurer. The title report shall be issued by Fidelity Title Company (a title company of Seller's choice, if not completed). If Seller previously received a preliminary commitment from a title insurer that Buyer declines to use, Buyer shall pay any cancellation fee owing to the original title insurer. Otherwise, the party applying for title insurance shall pay any title cancellation fee, in the event such a fee is assessed. b. Permitted Exceptions. Buyer shall notify Seller of any objectionable matters in the title report or any supplemental report within the earlier of: (1) twenty (20) days after Mutual Acceptance of this Agreement; or (2) the expiration of the Feasibility Period. This Agreement shall terminate and Buyer shall receive a refund of the earnest money, less any costs advanced or committed for Buyer, unless within five (5) days of Buyer's notice of such objections (1) Seller agrees, in writing, to remove all objectionable provisions or (2) Buyer notifies Seller that Buyer waives any objections which Seller does not agree to remove If any new title matters are disclosed in a supplemental title report, then the preceding termination, objection and waiver provisions shall apply to the new title matters except that Buyer's notice of objections must be delivered within five (5) days of delivery of the supplemental report and Seller's response or Buyer's waiver must be delivered within two (2) days of Buyer's notice of objections. The closing date shall be extended to the extent necessary to permit time for these notices. Buyer shall not be required to object to any mortgage or deed of trust liens, or the statutory lien for real property taxes, and the same shall not be deemed to be Permitted Exceptions; provided, however, that the lien securing any financing which Buyer has agreed to assume shall be a Permitted Exception Except for the foregoing, those provisions not objected to or for which Buyer waived its objections shall be referred to collectively as the "Permitted Exceptions." Seller shall cooperate with Buyer and the title company to clear objectionable title matters but shall not be required to incur any out-of-pocket expenses or liability other than payment of monetary encumbrances not assumed by Buyer and proration of real property taxes, and Seller shall provide an owner's affidavit containing the information and reasonable covenants requested by the title company. The title policy shall 4- INITIALS: Buyer '-f Date /Z�/4- Seller Date `�' Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone. (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) 0 Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev. 1/2011 Page 4 of 13 (Be contain no exceptions other than the General Exclusions and Exceptions common to such form of policy and the Permitted Exceptions 7. CLOSING OF SALE. The sale shall be closed 15 days following the Buyers removal of contingencies ("Closing") by Fidelity Title Company ("Closing Agent") (Seller shall select the Closing Agent, if not completed). Buyer and Seller shall deposit with Closing Agent by 12:00 p.m on the scheduled Closing date all instruments and monies required to complete the purchase in accordance with this Agreement. "Closing" shall be deemed to have occurred when the deed is recorded and the sale proceeds are available to Seller. Time is of the essence in the performance of this Agreement. Sale proceeds shall be considered available to Seller, even though they cannot be disbursed to Seller until the next business day after Closing. Notwithstanding the foregoing, if Seller informed Buyer during the Feasibility Period that Seller's underlying financing requires that it be defeased and may not be paid off, then Closing shall be conducted in accordance with the three-day closing process described in CBA Form PS_D. This Agreement is intended to constitute escrow instructions to Closing Agent. Buyer and Seller will provide any supplemental instructions requested by Closing Agent provided the same are consistent with this Agreement. 8. CLOSING COSTS AND PRORATIONS. Seller shall deliver an updated rent roll to Closing Agent not later than two (2) days before the scheduled Closing date in the form required by Section 5(a) and any other information reasonably requested by Closing Agent to allow Closing Agent to prepare a settlement statement for Closing. Seller certifies that the information contained in the rent roll is correct as of the date submitted Seller shall pay the premium for the owner's standard coverage title policy. Buyer shall pay the excess premium attributable to any extended coverage or endorsements requested by Buyer, and the cost of any survey required in connection with the same. Seller and Buyer shall each pay one-half of the escrow fees. Any real estate excise taxes shall be paid by the party who bears primary responsibility for payment under the applicable statute or code. Real and personal property taxes and assessments payable in the year of closing; collected rents on any existing tenancies, interest; utilities; and other operating expenses shall be pro -rated as of Closing. If tenants pay any of the foregoing expenses directly, then Closing Agent shall only pro rate those expenses paid by Seller. Buyer shall pay to Seller at Closing an additional sum equal to any utility deposits or mortgage reserves for assumed financing for which Buyer receives the benefit after Closing Buyer shall pay all costs of financing including the premium for the lender's title policy. If the Property was taxed under a deferred classification prior to Closing, then Seller shall pay all taxes, interest, penalties, deferred taxes or similar items which result from removal of the Property from the deferred classification. At Closing, all refundable deposits on tenancies shall be credited to Buyer or delivered to Buyer for deposit in a trust account if required by state or local law. Buyer shall pay any sales or use tax applicable to the transfer of personal property included in the sale. a. Unpaid Utility Charges. Buyer and Seller ❑ WAIVE ® DO NOT WAIVE (do not waive if neither box checked) the right to have the Closing Agent disburse closing funds necessary to satisfy unpaid utility charges affecting the Property pursuant to RCW 60 80. If "do not waive" is checked, then attach CBA Form UA ("Utility Charges" Addendum) to this Agreement. 9. POST -CLOSING ADJUSTMENTS, COLLECTIONS, AND PAYMENTS. After Closing, Buyer and Seller shall reconcile the actual amount of revenues or liabilities upon receipt or payment thereof to the extent those items were prorated or credited at Closing based upon estimates. Any bills or invoices received by Buyer after Closing which relate to services rendered or goods delivered to the Seller or the Property prior to Closing shall be paid by Seller upon presentation of such bill or invoice. At Buyer's option, Buyer may pay such bill or invoice and be reimbursed the amount paid plus interest at the rate of 12% per annum beginning fifteen (15) days from the date of Buyer's written demand to Seller for reimbursement until such reimbursement is made. Notwithstanding the foregoing, if tenants pay certain expenses based on estimates subject to a post -closing reconciliation to the actual amount of those expenses, then Buyer shall be entitled to any surplus and shall be liable for any credit resulting from the reconciliation. Rents collected from each tenant after Closing shall be applied first to rentals due most INITIALS: Buyer Pr/ L Date r7:ze/7 Seller Date (` Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) ij Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev 1/2011 Page 5 of 13 recently from such tenant for the period after closing, and the balance shall be applied for the benefit of Seller for delinquent rentals owed for a period prior to closing The amounts applied for the benefit of Seller shall be turned over by Buyer to Seller promptly after receipt. Seller shall be entitled to pursue any lawful methods of collection of delinquent rents but shall have no right to evict tenants after Closing. 10. OPERATIONS PRIOR TO CLOSING. Prior to Closing, Seller shall continue to operate the Property in the ordinary course of its business and maintain the Property in the same or better condition than as existing on the date of Mutual Acceptance but shall not be required to repair material damage from casualty except as otherwise provided in this Agreement. After the Feasibility Period, Seller shall not enter into or modify existing rental agreements or leases (except that Seller may enter into, modify, extend, renew or terminate residential rental agreements or residential leases in the ordinary course of its business), service contracts, or other agreements affecting the Property which have terms extending beyond Closing without first obtaining Buyer's consent, which shall not be unreasonably withheld. 11. POSSESSION. Buyer shall be entitled to possession ® on closing ❑ (on closing, if not completed). Buyer shall accept possession subject to all tenancies disclosed to Buyer during the Feasibility Period. 12. SELLER'S REPRESENTATIONS. Except as disclosed to or known by Buyer prior to the satisfaction or waiver of the feasibility contingency stated in Section 5 above, including in the books, records and documents made available to Buyer, or in the title report or any supplemental report or documents referenced therein, Seller represents to Buyer that, to the best of Seller's actual knowledge, each of the following is true as of the date hereof: (a) Seller is authorized to enter into the Agreement, to sell the Property, and to perform its obligations under the Agreement; (b) The books, records, leases, agreements and other items delivered to Buyer pursuant to this Agreement comprise all material documents in Seller's possession or control regarding the operation and condition of the Property; (c) Seller has not received any written notices that the Property or the business conducted thereon violate any applicable laws, regulations, codes and ordinances; (d) Seller has all certificates of occupancy, permits, and other governmental consents necessary to own and operate the Property for its current use; (e) There is no pending or threatened litigation which would adversely affect the Property or Buyer's ownership thereof after Closing, (f) There is no pending or threatened condemnation or similar proceedings affecting the Property, and the Property is not within the boundaries of any planned or authorized local improvement district; (g) Seller has paid (except to the extent prorated at Closing) all local, state and federal taxes (other than real and personal property taxes and assessments described in Section 8 above) attributable to the period prior to closing which, if not paid, could constitute a lien on Property (including any personal property), or for which Buyer may be held liable after Closing; (h) Seller is not aware of any concealed material defects in the Property except as disclosed to Buyer in writing during the Feasibility Period, (i) There are no Hazardous Substances (as defined below) currently located in, on, or under the Property in a manner or quantity that presently violates any Environmental Law (as defined below); there are no underground storage tanks located on the Property; and there is no pending or threatened investigation or remedial action by any governmental agency regarding the release of Hazardous Substances or the violation of Environmental Law at the Property. As used herein, the term "Hazardous Substances" shall mean any substance or material now or hereafter defined or regulated as a hazardous substance, hazardous waste, toxic substance, pollutant, or contaminant under any federal, state, or local law, regulation, or ordinance governing any substance that could cause actual or suspected harm to human health or the environment ("Environmental Law"). The term "Hazardous Substances" specifically includes, but is not limited to, petroleum, petroleum by-products, and asbestos. If prior to Closing Seller or Buyer discovers any information which would cause any of the representations above to be false if the same were deemed made as of the date of such discovery, then the party discovering the same shall promptly notify the other party in writing. If the newly -discovered information will result in costs or liability to Buyer in excess of the lesser of $100,000 or five percent (5%) of the purchase price stated in this Agreement, or will materially adversely affect Buyer's intended use of the Property, then Buyer shall have the right to terminate INITIALS' Buyer frt Date Seller C/C- Date �C Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) CD Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase 8 Sale Agreement Rev. 1/2011 Page 6 of 13 the Agreement and receive a refund of its earnest money. Buyer shall give notice of termination within five (5) days of discovering or receiving written notice of the new information. Nothing in this paragraph shall prevent Buyer from pursuing its remedies against Seller if Seller had actual knowledge of the newly -discovered information such that a representation provided for above was false 13. AS -IS. Except for those representations and warranties specifically included in this Agreement: (i) Seller makes no representations or warranties regarding the Property; (ii) Seller hereby disclaims, and Buyer hereby waives, any and all representations or warranties of any kind, express or implied, concerning the Property or any portion thereof, as to its condition, value, compliance with laws, status of permits or approvals, existence or absence of hazardous material on site, occupancy rate or any other matter of similar or dissimilar nature relating in any way to the Property, including the warranties of fitness for a particular purpose, tenantability, habitability and use; (iii) Buyer otherwise takes the Property "AS IS;" and (iv) Buyer represents and warrants to Seller that Buyer has sufficient experience and expertise such that it is reasonable for Buyer to rely on its own pre-closing inspections and investigations. 14. PERSONAL PROPERTY. a. This sale includes all right, title and interest of Seller to the following tangible personal property: ❑ None ® That portion of the personal property located on and used in connection with the Property. The value assigned to the personal property shall be $ 0 (if not completed, the County -assessed value if available, and if not available, the fair market value determined by an appraiser selected by the Listing Broker and Selling Broker) Seller warrants title to, but not the condition of, the personal property and shall convey it by bill of sale. b. In addition to the leases and Vendor Contracts assumed by Buyer pursuant to Section 5(a) above, this sale includes all right, title and interest of Seller to the following intangible property now or hereafter existing with respect to the Property including without limitation: all rights-of-way, rights of ingress or egress or other interests in, on, or to, any land, highway, street, road, or avenue, open or proposed, in, on, or across, in front of, abutting or adjoining the Property; all rights to utilities serving the Property; all drawings, plans, specifications and other architectural or engineering work product; all governmental permits, certificates, licenses, authorizations and approvals; all rights, claims, causes of action, and warranties under contracts with contractors, engineers, architects, consultants or other parties associated with the Property; all utility, security and other deposits and reserve accounts made as security for the fulfillment of any of Seller's obligations; any name of or telephone numbers for the Property and related trademarks, service marks or trade dress; and guaranties, warranties or other assurances of performance received. 15. CONDEMNATION AND CASUALTY. Seller bears all risk of loss until Closing, and thereafter Buyer shall bear the risk of loss. Buyer may terminate this Agreement and obtain a refund of the earnest money if improvements on the Property are destroyed or materially damaged by casualty before Closing, or if condemnation proceedings are commenced against all or a portion of the Property before Closing. Damage will be considered material if the cost of repair exceeds the lesser of $100,000 or five percent (5%) of the purchase price stated in this Agreement. Alternatively, Buyer may elect to proceed with closing, in which case, at Closing, Seller shall assign to Buyer all claims and right to proceeds under any property insurance policy and shall credit to Buyer at Closing the amount of any deductible provided for in the policy. 16. FIRPTA - TAX WITHHOLDING AT CLOSING. Closing Agent is instructed to prepare a certification (CBA or NWMLS Form 22E, or equivalent) that Seller is not a "foreign person" within the meaning of the Foreign Investment in Real Property Tax Act, and Seller shall sign it on or before Closing. If Seller is a foreign person, and this transaction is not otherwise exempt from FIRPTA, Closing Agent is instructed to withhold and pay the required amount to the Internal Revenue Service. 17. CONVEYANCE. Title shall be conveyed by a Statutory Warranty Deed subject only to the Permitted Exceptions. If this Agreement is for conveyance of Seller's vendee's interest in a Real Estate Contract, the Statutory Warranty Date (1 INITIALS: Buyer dee- Date 5776//- Seller Li C Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) © Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev 1/2011 Page 7 of 13 Deed shall include a contract vendee's assignment sufficient to convey after acquired title. At Closing, Seller and Buyer shall execute and deliver to Closing Agent CBA Form No. PS -AS Assignment and Assumption Agreement transferring all leases and Vendor Contracts assumed by Buyer pursuant to Section 5(a) and all intangible property transferred pursuant to Section 14(b). 18. NOTICES AND COMPUTATION OF TIME. Unless otherwise specified, any notice required or permitted in, or related to, this Agreement (including revocations of offers and counteroffers) must be in writing. Notices to Seller must be signed by at least one Buyer and must be delivered to Seller and Listing Broker with a courtesy copy to any other party identified as a recipient of notices in Section 28. A notice to Seller shall be deemed delivered only when received by Seller, Listing Broker, or the licensed office of Listing Broker. Notices to Buyer must be signed by at least one Seller and must be delivered to Buyer, with a copy to Selling Broker and with a courtesy copy to any other party identified as a recipient of notices in Section 28. A notice to Buyer shall be deemed delivered only when received by Buyer, Selling Broker, or the licensed office of Selling Broker. Selling Broker and Listing Broker have no responsibility to advise of receipt of a notice beyond either phoning the represented party or causing a copy of the notice to be delivered to the party's address provided in this Agreement. Buyer and Seller shall keep Selling Broker and Listing Broker advised of their whereabouts in order to receive prompt notification of receipt of a notice. If any party is not represented by a licensee, then notices must be delivered to and shall be effective when received by that party at the address, fax number, or email indicated in Section 28. Unless otherwise specified in this Agreement, any period of time in this Agreement shall mean Pacific Time and shall begin the day after the event starting the period and shall expire at 5:00 p.m. of the last calendar day of the specified period of time, unless the last day is a Saturday, Sunday or legal holiday as defined in RCW 1.16.050, in which case the specified period of time shall expire on the next day that is not a Saturday, Sunday or legal holiday. Any specified period of five (5) days or less shall not include Saturdays, Sundays or legal holidays. Notwithstanding the foregoing, references to specific dates or times or number of hours shall mean those dates, times or number of hours; provided, however, that if the Closing Date falls on a Saturday, Sunday, or legal holiday as defined in RCW 1.16.050, or a date when the county recording office is closed, then the Closing Date shall be the next regular business day. 19. AGENCY DISCLOSURE. At the signing of this Agreement, Selling Broker Marshall Clark of Clark Pacific Real Estate, Inc represented The Buyer and also member of Summit and 56 LLC and the Listing Broker Russ Roberts of Heritage Moultray Real Estate Services represented The Seller Selling Firm, Selling Firm's Designated Broker, Selling Broker's Branch Manager (if any) and Selling Broker's Managing Broker (if any) represent the same party that Selling Broker represents. Listing Firm, Listing Firm's Designated Broker, Listing Broker's Branch Manager (if any), and Listing Broker's Managing Broker (if any) represent the same party that the Listing Broker represents. If Selling Broker and Listing Broker are different persons affiliated with the same Firm, then both Buyer and Seller confirm their consent to the Brokers' Designated Broker, Branch Manager (if any), and Managing Broker (if any) representing both parties as a dual agent. If Selling Broker and Listing Broker are the same person representing both parties, then both Buyer and Seller confirm their consent to that person and his/her Designated Broker, Branch Manager (if any), and Managing Broker (if any) representing both parties as dual agents. All parties acknowledge receipt of the pamphlet entitled "The Law of Real Estate Agency." 20. ASSIGNMENT. Buyer ® may ❑ may not (may not, if not completed) assign this Agreement, or Buyer's rights hereunder, without Seller's prior written consent, unless provided otherwise herein If the "may not" option INITIALS' Buyer h^ -c Date Buyer Date Seller Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) © Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Fomi PS -1A Purchase & Sale Agreement Rev 1/2011 Page 8 of 13 G is selected and the words "and/or assigns" or similar words are used to identify the Buyer, then this Agreement may be assigned with notice to Seller but without Seller's consent only to an entity which is controlled by or under common control with the Buyer identified in this Agreement. Any other assignment requires Seller's consent. The party identified as the initial Buyer shall remain responsible for those obligations of Buyer stated in this Agreement notwithstanding any assignment and, if this Agreement provides for Seller to finance a portion of the purchase price, then the party identified as the initial Buyer shall guarantee payment of the Seller financing. 21. DEFAULT AND ATTORNEY'S FEE. a. Buyer's default. In the event Buyer fails, without legal excuse, to complete the purchase of the Property, then (check one) ® Seller may terminate this Agreement and keep the earnest money as liquidated damages as the sole and exclusive remedy available to Seller for such failure; or ❑ Seller may, at its option, (a) terminate this Agreement and keep as liquidated damages the earnest money as the sole and exclusive remedy available to Seller for such failure, (b) bring suit against Buyer for Seller's actual damages, (c) bring suit to specifically enforce this Agreement and recover any incidental damages, or (d) pursue any other rights or remedies available at law or equity. b. Seller's default. In the event Seller fails, without legal excuse, to complete the sale of the Property, then (check one) ® As Buyer's sole remedy, Buyer may either (a) terminate this Agreement and recover all earnest money or fees paid by Buyer whether or not the same are identified as refundable or applicable to the purchase price; or (b) bring suit to specifically enforce this Agreement and recover incidental damages, provided, however, Buyer must file suit within sixty (60) days from the scheduled date of closing or from the date Seller has informed Buyer in writing that Seller will not proceed with closing, whichever is earlier; or ❑ Buyer may, at its option, (a) bring suit against Seller for Buyer's actual damages, (b) bring suit to specifically enforce this Agreement and recover any incidental damages, or (c) pursue any other rights or remedies available at law or equity Neither Buyer nor Seller may recover consequential damages such as lost profits. If Buyer or Seller institutes suit against the other concerning this Agreement, the prevailing party is entitled to reasonable attorneys' fees and expenses. In the event of trial, the amount of the attorney's fee shall be fixed by the court. The venue of any suit shall be the county in which the Property is located, and this Agreement shall be governed by the laws of the state where the Property is located 22. MISCELLANEOUS PROVISIONS. a. Complete Agreement. This Agreement and any addenda and exhibits thereto state the entire understanding of Buyer and Seller regarding the sale of the Property. There are no verbal or other written agreements which modify or affect the Agreement. b. Counterpart Signatures. This Agreement may be signed in counterpart, each signed counterpart shall be deemed an original, and all counterparts together shall constitute one and the same agreement. c. Electronic Delivery. Electronic delivery of documents (e.g , transmission by facsimile or email) including signed offers or counteroffers and notices shall be legally sufficient to bind the party the same as delivery of an original. At the request of either party, or the Closing Agent, the parties will replace electronically delivered offers or counteroffers with original documents. d. Section 1031 Like -Kind Exchange. If either Buyer or Seller intends for this transaction to be a part of a Section 1031 like -kind exchange, then the other party agrees to cooperate in the completion of the like -kind exchange so long as the cooperating party incurs no additional liability in doing so, and so long as any expenses INITIALS. Buyer /bac Date s/2'/7� Seller Date 6 } t I I Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone. (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) © Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev. 112011 Page 9 of 13 c (including attorneys fees and costs) incurred by the cooperating party that are related only to the exchange are paid or reimbursed to the cooperating party at or prior to Closing. Notwithstanding Section 20 above, any party completing a Section 1031 like -kind exchange may assign this Agreement to its qualified intermediary or any entity set up for the purposes of completing a reverse exchange. j J ,..'C 17a N 6 23. ACCEPTANCE; COUNTEROFFERS. Seller has until midnight of kier277217 (if not fixed in, the third business day) following the day Buyer delivers the offer to accept this offer, unless sooner withdrawn. If this offer is not timely accepted, it shall lapse and the earnest money shall be refunded to Buyer. If either party makes a future counteroffer, the other party shall have until 5:00 p m. on the third business day (if not filled in, the second business day) following receipt to accept the counteroffer, unless sooner withdrawn. If the counteroffer is not timely accepted or countered, this Agreement shall lapse and the earnest money shall be refunded to the Buyer. No acceptance, offer or counteroffer from the Buyer is effective until a signed copy is received by the Seller, the Listing Broker or the licensed office of the Listing Broker. No acceptance, offer or counteroffer from the Seller is effective until a signed copy is received by the Buyer, the Selling Broker or the licensed office of the Selling Broker. "Mutual Acceptance" shall occur when the last counteroffer is signed by the offeree, and the fully -signed counteroffer has been received by the offeror, his or her broker, or the licensed office of the broker. If any party is not represented by a broker, then notices must be delivered to and shall be effective when received by that party 24. INFORMATION TRANSFER. In the event this Agreement is terminated, Buyer agrees to deliver to Seller within ten (10) days of Seller's written request copies of all materials received from Seller and any non -privileged plans, studies, reports, inspections, appraisals, surveys, drawings, permits, applications or other development work product relating to the Property in Buyer's possession or control as of the date this Agreement is terminated 25. CONFIDENTIALITY. Until and unless closing has been consummated, Buyer and Seller shall follow reasonable measures to prevent unnecessary disclosure of information obtained in connection with the negotiation and performance of this Agreement. Neither party shall use or knowingly permit the use of any such information in any manner detrimental to the other party. 26. SELLER'S ACCEPTANCE AND BROKERAGE AGREEMENT. Seller agrees to sell the Property on the terms and conditions herein, and further agrees to pay a commission in a total amount computed in accordance with the listing or commission agreement. If there is no written listing or commission agreement, Seller agrees to pay a commission of 6% of the sales price. The commission shall be apportioned between Listing Firm and Selling Firm as specified in the listing or any co -brokerage agreement. If there is no listing or written co -brokerage agreement, then Listing Firm shall pay to Selling Firm a commission of 3% of the sales price. Seller assigns to Listing Firm and Selling Firm a portion of the sales proceeds equal to the commission If the earnest money is retained as liquidated damages, any costs advanced or committed by Listing Firm or Selling Firm for Buyer or Seller shall be reimbursed or paid therefrom, and the balance shall be paid one-half to Seller and one-half to Listing Firm and Selling Firm according to the listing agreement and any co -brokerage agreement. In any action by Listing Firm or Selling Firm to enforce this Section, the prevailing party is entitled to reasonable attorneys' fees and expenses. Neither Listing Firm nor Selling Firm are receiving compensation from more than one party to this transaction unless disclosed on an attached addendum, in which case Buyer and Seller consent to such compensation. The Property described in attached Exhibit A is commercial real estate. Notwithstanding Section 25 above, the pages containing this Section, the parties' signatures and an attachment describing the Property may be recorded. 27. LISTING BROKER AND SELLING BROKER DISCLOSURE. EXCEPT AS OTHERWISE DISCLOSED IN WRITING TO BUYER OR SELLER, THE SELLING BROKER, LISTING BROKER, AND FIRMS HAVE NOT MADE ANY REPRESENTATIONS OR WARRANTIES OR CONDUCTED ANY INDEPENDENT INVESTIGATION CONCERNING THE LEGAL EFFECT OF THIS AGREEMENT, BUYER'S OR SELLER'S FINANCIAL STRENGTH, BOOKS, RECORDS, REPORTS, STUDIES, OR OPERATING STATEMENTS; THE CONDITION OF THE PROPERTY OR ITS IMPROVEMENTS; THE FITNESS OF THE PROPERTY FOR BUYER'S INTENDED USE, OR OTHER MATTERS RELATING TO THE PROPERTY, INCLUDING WITHOUT / INITIALS: Buyer 41C Date /77jj ' Seller ✓ Date (i \ [ l 110 Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev 1/2011 Page 11 of 13 28. IDENTIFICATION OF THE PARTIES. The following is the contact information for the parties involved in this Agreement: Buyer Seller Contact: Summit and 56, LLC Address: 2320 N. Atlantic Street, Suite 100 Business Phone: (509) 325-3333 Mobile Phone: Fax: (509) 325-4534 Email: clark@clarkpacific.net Contact: City of Yakima Address: 129 N 2nd St. Yakima, WA. 98901 Business Phone: (509) 575-6194 Mobile Phone: Fax: Email: Selling Firm Listing Firm Name: Clark Pacific Real Estate Name: Heritage Moultray, RE Assumed Name (if applicable) : Assumed Name (if applicable) : Selling Broker: Marshall Clark Listing Broker: Russ Roberts Address: 2320 Atlantic, Ste 100, Spokane, WA. Address: 5625 Summitview Ave, Yakima WA. Business Phone: (509) 325-3333 Business Phone: (509) 248-9400 Mobile Phone: (509) 994-7331 Mobile Phone: Email: clark@clarkpacific.net Email: rrobertsCa)ccim.net Fax: (509) 325-4534 Fax: (509) 965-6105 MLS Office No.: MLS Office No.: Licensed Office of the Selling Broker Licensed Office of the Listing Broker Address: Business Phone: Email: Fax: Address: Business Phone: Email: Fax: CBA Office No.: CBA Office No.: INITIALS' Buyer ' - Date 5�, 4%/U' Seller ` Date Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) O Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev 1/2011 Page 10 of 13 G LIMITATION, THE PROPERTY'S ZONING, BOUNDARIES, AREA, COMPLIANCE WITH APPLICABLE LAWS (INCLUDING LAWS REGARDING ACCESSIBILITY FOR DISABLED PERSONS), OR HAZARDOUS OR TOXIC MATERIALS INCLUDING MOLD OR OTHER ALLERGENS SELLER AND BUYER ARE EACH ADVISED TO ENGAGE QUALIFIED EXPERTS TO ASSIST WITH THESE DUE DILIGENCE AND FEASIBILITY MATTERS, AND ARE FURTHER ADVISED TO SEEK INDEPENDENT LEGAL AND TAX ADVICE RELATED TO THIS AGREEMENT. INITIALS. Buyer #4Date 2`' moi=' Seller 9,v Buyer Date Seller Date Date ( (-4( 6 Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) © Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev 1/2011 Page 12 of 13 Courtesy Copy of Notices to Buyer to: Courtesy Copy of Notices to Seller to: Name: ells A.) /( (✓' lar k' Address: (23?a.c/,044,1, S/ Su, /a> Business Phone: — z� 333 Fax: 53-'/5'9 Mobile Phone: rr'i 1733y Email: ]/e,- e (? hi.c14fl o Nei oC,�/.c Name: Address: Business Phone: Fax: Mobile Phone: Email: IN WITNESS WHEREOF, the parties have signed this Agreement intending to be bound. Buyer Summit and 56, LLC Buyer Marshall Clark, Member of LLC and Broker Printed name and type of entity Buyer �/l��` ` G/vim Buyer Signature and title Signature and title Date signed Date signed Seller City of Yakima Seller Printed name and type of entity Seller 4,41,„ lignature and title Date signed(JU4LQ, I l l Lp Seller INITIALS' Buyer ire e Date Printed name and type of entity Signature and title Date signed Seller Date Buyer Date Seller Date Summit and 56 LLC 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone. (509) 325-3333 Fax: (509) 325-4534 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALE AGREEMENT (CONTINUED) EXHIBIT A * [Legal Description] Exhibit A Commitment No, 00110892 © Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PS -1A Purchase & Sale Agreement Rev. 1/2011 Page 13 of 13 The South 160 feet of the West 160 feet of the Southwest 1/4 of the Southwest 1/4 of the Northeast 1/4 of Section 21, Township 13 North, Range 18, E.W.M.; EXCEPT the South 40 feet and the West 30 feet for roads. Situated in Yakima County, State of Washington. ASSESSOR'S PARCEL NO. 18132143014 PROPERTY ADDRESS: 5511 Summitview Avenue Yakima, Washington 98908 AREA CODE: 581 INITIALS* Buyer ' Date -Chi / Seller 9c, Date ll! 1 Seller Date Buyer Date Clark Pacific Real Estate Co., Inc. 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 326.3333 Fax: (509) 325-4534 ADDENDUM TO REAL ESTATE PURCHASE & SALE AGREEEMENT o Commercial Brokers Association 2011 ALL RIGHTS RESERVED CBA Form P11 -1A Addendum Ray. 1f2011 Pape 1 of 2 THIS AGREEMENT (hereinafter referred to as the "Addendum"), Is made this 11 day of July, 2016, by and between Summit and 88, LLC, ("Buyer") and City of Yakima, ("Seller"). WITNESSETH: WHEREAS, Buyer and Seller have entered into a Real Estate Purchase & Sale Agreement dated Mav 20. 2016 (herein referred to as the "PSA"), for real property located at 5511 Summitview Ave, Yakima, WA and as legally described in Exhibit "A" attached; and WHEREAS, Buyer and Seller desire to modify the terms of the PSA as hereinafter set forth. Terms used herein shall have the meanings ascribed to them In the PSA, unless otherwise modified herein. NOW THEREFORE, in consideration of the mutual promises and covenants herein contained, the parties hereto, intending to be legally bound hereby, do covenant and agree as follows: 1. Notwithstanding anything to the contrary, Buyer and Seller agree to extension Buyers Feasibility Period thru August 23, 2016. 2. All other terms of the purchase and sale agreement shall remain shall hereby be affirmed. IN WITNESS WHEREOF, the parties hereto have executed this Addendum to the PSA below. BUYER Summit and 88, LLC 77/0.,,--e6 SELLER City of Yaklma By: By: C/A - Marshall Marshall Clark Person SI i# Date: 'N // Zd / ' Date: - 13 - /4 R:l AQ"rk PropadntArarad1 and S6 LW (7O. of ]okknal3nd Addendum, to PSA.doc 1 c Clark Pacific Real Estate Co., Inc. 2320 N Atlantic St., Suite 100 Spokane, WA 99205 Phone: (509) 325-3333 Fax: (509) 326-4534 Rxhibit A Cont No. 00170892 o Commercial Brokers Association 2011 AU. RIGHTS RESERVED CBA farm PEI -1A Addendum Rsv. 112011 Page 2of2 The South 160 feet of the West 160 feet of the Southwest 1/4 of the Southwest 1/4 of the Northeast 1/4 of Section 21, Township 13 North, Range 18, E.W.M.; EXCEPT the South 40 feet and the West 30 feet for roads. Situated In Yaldma County, State of Washington. ASSESSOR'S PARCEL NO. 181321-1.3014 • PROPERTY ADDRESS, 5511 Summitvlew Avenue Yaldma, Washington 98908 Rr1ACktrk PwpontalSunuufr and d6 LLC%Clo of ilrkkkm.UadAddendum to PSA.doa AREA CODE: 581 2 Comrnerclal Brokers Association 2011 ALL RIGHTS RESERVED CBA Form PSA Addendum/Amendment to PSA Rev 112011 Page 1 of 1 ADDENDUM/AMENDMENT TO PURCHASE AND SALE AGREEMENT The following Is part of the Purchase and Sale Agreement dated May 20.2018 (the "Agreement"), between Summit and 56, LLC ("Buyer"), and City of Yakima ("Seller"), regarding the sale of the Property known as: 5511 Summitvlew Ave, Yakima, WA 98908 (the "Property"). IT IS AGREED BETWEEN THE SELLER AND BUYER AS FOLLOWS: PRICE: Three Hundred Fifty Nine Thousand Dollars $359,000.00 SELLER CREDITS: Seller agrees to credit buyer $47,689.09 at closing for repairs, demolition, and asbestos removal. Su ,r�,tics c.,lt 1�.-' (� 8:45)1131i, ; ryo k• _ F.t c t S z t a. � R o. -s - S �`- 3 /6 ,3JJ ew FEASIBILITY: Buyer hereby waives all contingencies and agrees to close as soon as possible but no later than September 9, 2016 Subject to further conditions attached here as Exhibit (}' INITIALS: BUYER C— DATE BUYER `_. DATE SELLER Ce44/1 DATE g/a3/zM 4 SELLER DATE______._. Ho knee 0lnnhr"y Reel Ibinle, 1400 Lnkurtde C01111, 0111 105 Ynklmu, OVA 98901 Phone; 509.148.9400 Fait 509.905.9182 City of Yakima 561h Huts Hnburls Produced wllh zlpForme by zipl,ogls 18070 FUleen We Road, Fraser, M chlgan 48020 y, ervr.zioLe9ls.enm EXHIBIT The subject Property located at 5511 Summitview Avenue, Yakima, Washington, is subject to the terms and conditions of the No Further Action Determination issued by the Washington State Department of Ecology dated and approved April 13, 2016 (DOE Facility/Site ID #58425191; Cleanup Site ID #6338). Such Determination states that No Further Action will be conducted on the site as long as the contingencies in such Determination are followed. This Determination hereby supplements Seller's Representations pursuant to Section 12(c), (d), (e), (h) and (i) of the May 20, 2016 Commercial & Investment Real Estate Purchase and Sale Agreement between the parties. A copy of the No Further Action Determination described above is attached hereto and incorporated herein by this reference. SELLER: City of Yakima ACCEPTED: Purchaser � By: By: d�ir--2 Cliff'MOc, City Manager g/zq(l6 j. STATE OF WASHINGTON DEPARTMENT OF ECOLOGY 1250 W Alder St o Union Gap, WA 98903-0009 (509) 575-2490 July 19, 2016 Marshall Clark Clark Pacific Real Estate 2320 N. Atlantic Suite 100 Spokane, WA 99205 Re: No Further Action at the following Site: Site Name: Site Address: Facility/Site No.: Cleanup Site No.. Dear Mr. Marshall: Tiger Oil Summitview 5511 Summitview Avenue, Yakima 58425191 6338 RECEIVED JUL 2 1 2016 CITY OF YAKIMA PLANNING DIV. The Washington State Department of Ecology (Ecology) has reviewed the recent site • characterization data for the cleanup of the Tiger Oil Summitview facility (Site). Attached to this letter is the Department Decision Recommendation document that provides our opinion. We are providing this opinion under the authority of the Model Toxics Control Act (MTCA), Chapter 70.105D RCW. The Department of Ecology (Ecology) has concluded that no further remedial action is necessary to clean up contamination at the Site. This opinion is contingent upon the following conditions: • An environmental covenant shall be recorded and maintained for the property, and the conditions of the covenant shall be observed. This covenant shall restrict the use of groundwater at the Site, and shall restrict uses of the property that may expose or mobilize hazardous materials contained beneath the surface. A covenant was recorded for the Site in June 2016 that contains the appropriate restrictions. The covenant is attached to this letter. • The groundwater monitoring well downgradient of the Site that is known as SVMW-2 shall be sampled on an annual basis for a minimum of 5 years during the period of approximate high groundwater elevation. Samples shall be analyzed, at a minimum, for NWTPH-Gx, NWTPH-Dx, and volatile organic compounds by EPA Method 8260. In • the event that MTCA Method A cleanup levels are exceeded in any of the samples, the well shall be resampled within 30 days. If the second sample exceeds MTCA Method A cleanup levels, additional remedial actions may be required at the Site. o �� Marshall Clark Clark Pacific Real Estate July 19, 2016 Page 2 RECEIVED JUL 2 1 2016 CITY OF YAKIMA PLANNING DIV. Ecology will update its database to reflect this "No Further Action" determination. If you have any questions about this opinion, please contact me by phone at 509-454-7842 or e-mail at jeff.newschwander@ecy.wa.gov. Jeff Newschwander Site Manager CRO Toxics Cleanup Program Enclosures (2): A — Department Decision Recommendation B — Environmental Covenant cc: Joan Davenport, City of Yakima Department Decision Recommendation RE: ERTS #: UST ID #: Facility/Site ID #: 58425191 Cleanup Site ID #: 6338 Site: Tiger Oil Summitview RECEIVED JUL 2 1 2016 CITY OF YAKIMA PLANNING DIV. City: Yakima County: Yakima The Washington State Department of Ecology re-evaluated conditions at this Site following additional Site characterization in 2014 and 2015. Based on this information, the Washington State Department of Ecology (Ecology) recommends No Further Action be conducted at this Site as long as the contingencies are followed that are detailed in the opinion below. A release of a hazardous substance has occurred but in the department's judgment, does not pose a threat to human health or the environment. Supporting Criteria: Site Background: The Tiger Oil Summitview site (Site) is located at 5511 Summitview Avenue in Yakima. The Site operated as a retail gasoline station and convenience store until closure in 2001. In 2005, three underground storage tanks (USTs) were decommissioned and removed from the Site. Fuel delivery lines were drained and capped. Following the collection of soil samples from the limits of the excavations, the tank pits were backfilled with imported fill. Gasoline -range petroleum hydrocarbons (GRPH) benzene, toluene, ethylbenzene and xylenes (BTEX) and lead were detected in soil samples collected at the limits of the tank excavations at concentrations exceeding Model Toxics Control Act (MTCA) Method A cleanup levels. In 2014, additional assessment activities were conducted to confirm the presence and extent of contamination identified in the 2005 UST removal. The results from recent investigations are discussed below as part of a media -specific Site evaluation. Soil Soil and groundwater samples were collected at the Site during the 2014 investigation through direct - push soil borings. Borings were advanced upgradient of the former tank locations, in the immediate vicinity and crossgradient of the former tank locations, and downgradient of the former tank locations. Residual concentrations of GRPH (up to 4,500 milligrams per kilogram [mg/kg]), ethylbenzene (up to 24 mg/kg), toluene (up to 12 mg/kg) and total xylenes (up to 130 mg/kg) were detected at several locations downgradient from the former tank locations; however, benzene was not detected above MTCA Method A cleanup levels. The lack of benzene in the presence of GRPH concentrations up to 4,500 mg/kg indicates that the petroleum contamination at the Site is significantly aged and degraded. It is also contained beneath impermeable surfaces and public roadway. Residual soil contamination at the Site is not likely to pose a threat to human health or the environment if institutional controls are implemented to prevent activities that may allow exposure. It is not possible to implement a traditional institutional control in the form of an environmental covenant beneath the City of Yakima roadway. For the contaminated soils extending beneath the roadway, an alternative institutional control should be implemented by the City of Yakima. This alternative institutional control may include any notification and tracking system that will allow future workers to be made aware of residual contamination and follow appropriate safety and disposal measures when it is encountered. Residual GRPH in soil may pose a threat to groundwater quality, as discussed in the following section. Groundwater Groundwater samples have been collected for four consecutive quarters from 3 monitoring wells at the Site, as well as a single sampling event in May 2015 from two new monitoring wells and the direct - push soil borings advanced in 2014. GRPH, BTEX and naphthalene have been detected in all four monitoring events at concentrations exceeding MTCA Method A cleanup levels in monitoring well SVMW-3, which is located slightly downgradient of the former tank locations. Contamination has not been detected in groundwater in upgradient monitoring well SVMW-1 or downgradient monitoring well SVMW-2. Samples collected from the direct -push soil borings were analyzed for petroleum hydrocarbons by HCID. Petroleum hydrocarbons were detected at concentrations exceeding laboratory detection limits, but below MTCA Method A cleanup levels. There are no exceedances of MTCA Method A cleanup levels for groundwater beyond the Site boundaries. Institutional Control and Groundwater Monitoring Requirements It has been determined that soil and groundwater contamination remaining at the Site will not pose a threat to human health or the environment under the following conditions. 1. Groundwater quality will be monitored in downgradient well SVMW-2 on an annual basis for 5 years beginning in the late summer of 2016. Groundwater samples will be analyzed for GRPH, BTEX and Napthalene. If MTCA Method A cleanup levels are exceeded in any monitoring event, a follow-up event will be conducted within 30 -days of the receipt of analytical results. If MTCA Method A cleanup levels are exceeded in the followup event, the NFA determination will be rescinded and additional remediation may be required. If MTCA Method A cleanup levels are not exceeded during any of the five annual monitoring events, groundwater monitoring may be discontinued at the Site. • Institutional controls will be implemented in the form of a restrictive environmental covenant for the foturer Tiger Oil parcel. The covenant will impose restrictions on the exposure of contaminated soil and groundwater without consultation with Ecology. • Intitutional controls will be implemented for contaminated soils beneath the City of Yakima roadway in the fowl of an alternative institutional control. This alternative institutional control will consist of an internal procedure implemented by the City of Yakima public works department that will notify workers, contractors and permit holders of residual contamination at the Site. It will provide appropriate health and safety measures, soil handling guidelines, and soil disposal procedures. If these conditions are followed, no additional remedial actions are necessary at the Site. RECEIVED JUL 2 ? 2016 CITY OF YAKIMA PLANNIM DIV This Department Decision Recommendation should be reviewed and re-evaluated based on any new information about this site. Investigator(s) DATE: Section Manager DATE: Ls c iu...)aeaes Print and sign name(s) //& 5uz,t0/ RECEIVED JUL 2 . 2016 CITY OF YAKIMi PLANNING DIV Return Address: `� r"t V d ,-jk ( Cc, l Document 1 Title. (-0 Reference #'s' Additional reference #'s on page Grantors. Additional grantors on page Document 2 Title: IUH 1111 iII I j1'x171211 Grantees: Additional grantees on p Reference #'s: Additional reference #'s on page Grantors: Grantees: FILE# 7912110 YAKIMA CRAP( Y , V1A 06/16/2016 12:52: 2oPU COVENANT PAGES: II DEPARTMENT OF ECOLOGY Recording Fete: 83.00 Expedite Fre: 50.00 Additional grantors on page . Additional grantees on page Legal Description (abbreviated form 1 e lot, block, plat or S,T,R quarter/quarter). j ET 9-2t, r 3 Additional legal is on page Assessor's Property Tax Parcel/Account Number (3"7-, t- ®_ Emergency nonstandard document recording: t am requesting an emergency nonstandard recording for an additional fee as provided in RCW 36 18 010. I understand that the recording processing requirements may cover up or otherwise obscure some part of the text of the original document. Signature: �d wil The Auditor Rec ] rely on the information provided on the form. The staff will not read the document to verify the accuracy or completeness of the indexing information provided herein. 11 After Recording Return Original Signed Covenant to: Toxics Cleanup Program Department of Ecology c/o Jeff Newschwander 1250 West Alder Union Gap, WA 98903 Environmental Covenant Grantor: City of Yakima, Yakima, WA Grantee: State of Washington, Department of Ecology (hereafter "Ecology") Brief Legal Description: S 160 FT OF W 160 FT OF SW % SW `/a NE '//yEX S 40 FT & W 30 FT FOR ROAD Tax Parcel Nos.: 181321-13014 Cross Reference: RECITALS a. This document is an environmental (restrictive) covenant (hereafter "Covenant") executed pursuant to the Model Toxics Control Act ("MTCA"), chapter 70.105D RCW, and Uniform Environmental Covenants Act ("UECA"), chapter 64.70 RCW. b. The Property that is the subject of this Covenant is part or all of a site commonly known as the Tiger Oil-Summitview Site. The Property is legally described in Exhibit A, and illustrated in Exhibit B, both of which are attached (hereafter 'Property"). If there are differences between these two Exhibits, the legal description in Exhibit A shall prevail. c. The Property is the subject of remedial action conducted under MTCA. This Covenant is required because residual contamination remains on the Property after completion of remedial actions. Specifically, the following principal contaminants remain on the Property. Med ium Principal Contaminants Present Soil Gasoline, BTEX and naphthalene Groundwater Gasoline, BTEX and naphthalene Surface Water/Sediment d. It is the purpose of this Covenant to restrict certain activities and uses of the Property to protect human health and the environment and the integrity of remedial actions conducted at the site. Records describing the extent of residual contamination and remedial actions conducted are available through Ecology. e. This Covenant grants Ecology certain rights under UECA and as specified in this Covenant. As a Holder of this Covenant under UECA, Ecology has an interest in real property, however, this is not an ownership interest which equates to liability under MTCA or the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. The rights of Ecology as an "agency" under UECA, other than_its' right as a holder, are not an interest in real property. COVENANT The City of Yakima, as Grantor and fee simple owner of the Property hereby grants to the Washington State Department of Ecology, and its successors and assignees, the following covenants. Furthermore, it is the intent of the Grantor that such covenants shall supersede any prior interests the GRANTOR has in the property and run with the land and be binding on all. current and future owners of any portion of, or interest in, the Property. Section 1. General Restrictions and Requirements. The following general restrictions and requirements shall apply to the Property: a. Interference with Remedial Action. The Grantor shall not engage in any activity on the Property that may impact or interfere with the remedial action and any operation, maintenance, inspection or monitoring of that remedial action without prior written approval from Ecology. b. Protection of Human Health and the Environment. The Grantor shall not engage in any activity on the Property that may threaten continued protection of human health or the environment without prior written approval from Ecology. This includes, but is not limited to, any activity that results in the release of residual contamination that was contained as a part of the remedial action or that exacerbates or creates a new exposure to residual contamination remaining on the Property c. Continued Compliance Required. Grantor shall not convey any interest in any portion of the Property without providing for the continued adequate and complete operation, maintenance and monitoring of remedial actions and continued compliance with this Covenant. d. Leases. Grantor shall restrict any lease for any portion of the Property to uses and activities consistent with this Covenant and notify all lessees of the restrictions on the use of the Property. e. Preservation of Reference Monuments. Grantor shall make a good faith effort to preserve any reference monuments and boundary markers used to define the areal extent of coverage of this Covenant. Should a monument or marker be damaged or destroyed, Grantor shall have it replaced by a licensed professional surveyor within 30 days of discovery of the damage or destruction. Section 2. Specific Prohibitions and Requirements. In addition to the general restrictions in Section 1 of this Covenant, the following additional specific restrictions and requirements shall apply to the Property. a. Containment of Soil. The remedial action for the Property is based on containing contaminated_soil under a cap consisting of paved or compacted surfaces and building foundation and located as illustrated in Exhibit B. The purpose of this cap is to prevent direct contact with contaminated soils and prevent surface water infiltration that will contribute to the migration of contamination. As such, the following restrictions shall apply within the area illustrated in Exhibit B: Any activity on the Property that will disturb soils beneath the site at depths greater than ten feet below the ground surface is prohibited without prior written approval by Ecology. The Grantor shall report to Ecology within forty-eight (48) hours of the discovery of any damage to the cap. Unless an alternative plan has been approved by Ecology in writing, the Grantor shall promptly repair the damage and submit a memo documenting this work to Ecology within thirty (30) days of completing the repairs. The Grantor must obtain prior written approval from Ecology before altering or removing the existing building structures on the Property in any manner that would expose contaminated soil, result in a release to the environment of contaminants, or create a new exposure pathway. Any contaminated soils encountered during site activities must be handled and disposed of according to State waste regulations. b. Stormwater facilities. Stormwater infiltration facilities at the Property shall be designed and constructed in a manner that prevents the migration of contamination. Stormwater shall not be infiltrated in portions of the Property known to contain residual contaminated soils. c. Groundwater Use. The groundwater beneath some portions of the Property remains contaminated and shall not be extracted for any purpose other than temporary construction dewatering, investigation, monitoring or remediation. Drilling of a well for any water supply purpose is strictly prohibited. Groundwater extracted from the Property for any purpose shall be considered potentially contaminated and any discharge of this water shall be done in accordance with state and federal law. d. Monitoring. Several groundwater monitoring wells are located on the Property to monitor the performance of the remedial action. The Grantor shall maintain clear access to these devices and protect them from damage. The Grantor shall report to Ecology within forty-eight (48) hours of the discovery of any damage to any monitoring device. Unless Ecology approves of an alternative plan in writing, the Grantor shall promptly repair the damage and submit a report documenting. this work to Ecology within thirty (30) days of completing the repairs. Section 3. Access. a. The Grantor shall maintain clear access to all remedial action components necessary to construct, operate, inspect, monitor and maintain the remedial action. b. The Grantor freely and voluntarily grants Ecology and its authorized representatives, upon reasonable notice, the right to enter the Property at reasonable times to evaluate the effectiveness of this Covenant and associated remedial actions, and enforce compliance with this Covenant and those actions, including the right to take samples, inspect any remedial actions conducted on the Property, and to inspect related records. c. No right of access or use by a third party to any portion of the Property is conveyed by this instrument. Section 4. Notice Requirements. a. Conveyance of Any Interest. The Grantor, when conveying any interest in any part of the Property, including but not limited to title, easement, leases, and security or other interests, must: i. Provide written notice to Ecology of the intended conveyance at least thirty (30) days in advance of the conveyance. ii. Include in the conveying document a notice m substantially the following form, as well as a complete copy of this Covenant: NOTICE: THIS PROPERTY IS SUBJECT TO AN ENVIRONMENTAL COVENANT GRANTED TO THE WASHINGTON STATE DEPARTMENT OF ECOLOGY ON [DATE] AND RECORDED WITH THE [COUNTY] : COUNTY AUDITOR UNDER RECORDING NUMBER [RECORDING Nil'FIBER]. USES AND ACTIVITIES ON THIS PROPERTY MUST CONIPLY WITH THAT COVENANT, A COMPLETE COPY OF WHICH IS ATTACHED TO THIS DOCUMENT. iii. Unless otherwise agreed to in writing by Ecology, provide Ecology with a complete copy of the executed document within thirty (30) days of the date of execution of such document. b. Reporting Violations. Should the Grantor become aware of any violation of this Covenant, Grantor shall promptly report such violation in writing to Ecology. c. Emergencies. For any emergency or significant change in site conditions due to Acts of Nature (for example, flood or fire) resulting in a violation of this Covenant, the Grantor is authorized to respond to such an event in accordance with state and federal law. The Grantor must notify Ecology in writing of the event and response actions planned or taken as soon as practical but no later than within 24 hours of the discovery of the event. d. Notification procedure. Any required written notice, approval, reporting or other communication shall be personally delivered or sent by first class mail to the following persons. Any change in this contact information shall be submitted in writing to all parties to this Covenant. Upon mutual agreement of the parties to this Covenant, an alternative to personal delivery or first class mail, such as e-mail or other electronic means, may be used for these communications. Environmental Covenants Coordinator Washington State Department of Ecology Toxics Cleanup Program 1250 West Alder, Union Gap, WA 98903 (509) 575-2490 ToxicsC leanupProeramCROnecv.wa. aov Section 5. Modification or Termination. a. Grantor must provide written notice and obtain approval from Ecology at least sixty (60) days in advance of any proposed activity or use of the Property in a manner that is inconsistent with this Covenant. For any proposal that is inconsistent with this Covenant and permanently modifies an activity or use restriction at the site: i. Ecology must issue a public notice and provide an opportunity for the public to comment on the proposal; and ii. If Ecology approves of the proposal, the Covenant must be amended to reflect the change before the activity or use can proceed. b. If the conditions at the site requiring a Covenant have changed or no longer exist, then the Grantor may submit a request to Ecology that this Covenant be amended or terminated. Any amendment or termination of this Covenant must follow the procedures in MTCA and UECA and any rules promulgated under these chapters. c. By signing this agreement, per RCW 64.70.100, the original signatories to this agreement, other than Ecology, agree to waive all rights to sign amendments to and termination of this Covenant. Section 6. Enforcement and Construction. a. This Covenant is being freely and voluntarily granted by the Grantor b. Within ten (10) days of execution of this Covenant. Grantor shall provide Ecology with an original signed Covenant and proof of recording and a copy of the Covenant and proof of recording to others required by RCW 64 70.070. c. Ecology shall be entitled to enforce the terms of this Covenant by resort to specific performance or legal process. All remedies available in this Covenant shall be in addition to any and all remedies at law or in equity, including MTCA and UECA. Enforcement of the terms of this Covenant shall be at the discretion of Ecology, and any forbearance, delay or omission to exercise its rights under this Covenant in the event of a breach of any term of this Covenant is not a waiver by Ecology of that term or of any subsequent breach of that term, or any other term in this Covenant, or of any rights of Ecology under this Covenant. d. The Grantor shall be responsible for all costs associated with implementation of this Covenant. Furthermore, the Grantor, upon request by Ecology, shall be obligated to pay for Ecology's costs to process a request for any modification or termination of this Covenant and any approval required by this Covenant. e. This Covenant shall be liberally construed to meet the intent of MVITCA and UECA. f. The provisions of this Covenant shall be severable. If any provision in this Covenant or its application to any person or circumstance is held invalid, the remainder of this Covenant or its application to any person or circumstance is not affected and shall continue in full force and effect as though such void provision had not been contained herein. g. A heading used at the beginning of any section or paragraph or exhibit of this Covenant may be used to aid in the interpretation of that section or paragraph or exhibit but does not override the specific requirements in that section or paragraph. The Department of Ecology, hereby accepts the status as GRANTEE and HOLDER of the above Environmental Covenant. STATE OF WASHINGTON DEPARTMENT OF ECOLOGY STATE ACI NOW'LEDGMFNT On this I ') day of - t P , 20k I certify that \ill eek'. ItCY6Ofki personally appeared before me, acknowledged that he/she is the vkik I\ ocA :ta , of the state agency that executed the within and foregoing instrument, and signed said instrument by free and voluntary act and deed, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument for said state agency. Notary Public in sand Residing at or ti State of Washington My appointment expires The undersigned Grantor warrants he/she holds the title to kl and has authority to execute this Covenant. EXECUTED this I( ' day of i _x ; 20/(-, • STATE OF t .i ,1 :�/,1i''" COUNTY OF 1 d<".'l-,,0 try) ) .s" On this [? `' day of. _ („ ...I 2O/t I certify that. REPRESENTATIVE ACKNOWLEDGEMENT personally appeared before me, acknowledged that(Iii),sk6 signed this instrument, on oath stated thafhefshe was authorized to execute this instrument, and acknowledged it as the representative of theCity of Yakima to be the free and voluntary act and deed of such party for the uses and purposes mentioned in the instrument / r r Notary Public in and for the State of Washington Residing at My appointment expires Exhibit A LEGAL DESCRIPTION The South 160 feet of the West 160 feet of the Southwest 1/4 of the Southwest 1/4 of the Northeast 1/4 of Section 21, Township 13 North, Range 18, E.W M , EXCEPT the South 40 feet and the West 30 feet for roads Exhibit B PROPERTY MAP Former Tiger Oil Summitview Property Extent of Residual Soil Contamination ./$1AM inview: /;'. Legend Monitoring Wells Site Buildings 135 Contamination Footprint 0 35 70 140 Feet 1