HomeMy WebLinkAbout05-13-2013 PCD AGENDA MODIFICATION (2)CITY Of
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Memorandum
Planning Division
To: Planning and Community Development Committee
From: Jeff Tate, Planning and Development Interim Director
CC: Mayor
City Clerk
Councilmembers
Elizabeth Chamberlain, Planning Manager
Date: May 13, 2013
Re: Agenda Modifications for the May 13, 2013 Meeting
This modification transmits the following agenda item(s):
111. ACTION ITEM
B. Resolution No. 4955` (Chamberlain)
Summary: Purchase and Sale Agreement with Jeff Oliphant related Unit 380 in
the One Main Professional Plaza.
IV. DISCUSSION AND INFORMATION
G. Resolution No. 4953` (Tate)
Summary: Concerns regarding Solid Waste Transfer Station
AUBURN, MORE THAN YOU [MAGENED
4
CITY OF
U -U ,"
WASHINGTON
Memorandum
To: Deputy Mayor Nancy Backus, Chair, Planning and Community Development
Committee
Councilmember, John Holman Vice- Chair, Planning and Community Development
Committee
Councilmember, Largo Wales, Member, Planning and Community Development
Committee
From: Dan Heid, City Attorney
Elizabeth Chamberlain, AICP, Planning Manager, Planning and Development
Department
cc: Pete Lewis, Mayor
Date: May 13, 2013
Re: Action Item: Resolution No. 4955 Purchase and Sale Agreement with Jeff Oliphant
related Unit 380 in the One Main Professional Plaza
Jeff Oliphant of Auburn Professional Plaza LLC, approached the City to purchase Unit 380
within the One Main Professional Plaza. The City's team has been negotiating with Jeff on the
purchase and sale agreement as well as a potential amendment to the parking garage lease
agreement. There is more discussion needed on any amendment to parking garage lease so in
order to move forward with the purchase and sale agreement, we are separating the
negotiations. With the existing parking garage lease agreement and with what is on -site at the
One Main Professional Plaza, there is sufficient parking, by code requirements, for the units
owned by Jeff Oliphant and Key Bank.
Summary of the Purchase and Sale Agreement PSA
1. Purchase Price - $1,074,949.00 (price outlined in the right to re- purchase agreement
when the City purchased its condo units in 2010 from Auburn Professional Plaza LLC).
2. The PSA is contingent on the Buyer entry into a lease agreement for Unit 380 with
MultiCare Health Systems.
3, Requires Buyer to complete the necessary tenant improvements for the City to relocate
the employee breakroom to the 2nd floor and the GIS offices.
4. Amendments to the Condominium Declarations and Survey will be required to reallocate
the 3`d Floor Terrace limited common element to Unit 300 (City's other third floor space)
Page 1
AUBURN * MOIZETHAN YOU IMAGINED
and allocated the currently combined parking spaces in the Mel`s Lot to the specific
units.
Staff Recommendation: Planning and Community Development Committee recommend
approval of Resolution No. 4955 to full City Council.
Attachments
Attachment A: Resolution No. 4955 with Exhibit A — Purchase and Sale Agreement
Page 2
AUBURN *MORE THAN YOU IMAGINED
Attachment A
RESOLUTION NO. 4 9 5 5
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, DECLARING CERTAIN REAL
PROPERTY AS SURPLUS AND AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A PURCHASE
AND SALE AGREEMENT BETWEEN THE CITY OF
AUBURN AND AUBURN PROFESSIONAL PLAZA, LLC
WHEREAS, the City owns real property that it no longer needs for
municipal purposes; and
WHEREAS, Auburn Professional Plaza, LLC ( "APP "), desires to
purchase said property; and
WHEREAS, the City of Auburn and APP have negotiated an agreement
that is beneficial to both parties at a cost that is acceptable to the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the following property is declared to no longer be
required for municipal purposes, and is hereby declared to be surplus:
Unit 380 of Lot 1, City of Auburn Boundary Line Adjustment No.
BLA0019, recorded under recording number 20091124900003,
records of King County, Washington
Together with an easement for parking under parking easement
agreement recorded under King County recording number
20091118001355, with respect to the following property:
Lot 7, Map of L.W. Ballard's Park Addition of Slaughter,
according to the plat thereof recorded in Volume 3 of Plats, Page 91,
in King County, Washington; together with the vacated west 10 feet
Resolution No. 4955
May 10, 2013
Page 1 of 3
Attachment A
of Silver Street (now A Street Northwest) adjoining and subject to a
revocable license in favor of the City recorded under King County
Recording No. 20100218000151.
Section 2. The Mayor of the City of Auburn and the Auburn City Clerk
are hereby authorized to execute a Purchase and Sale Agreement between the
City of Auburn and APP for the purchase of either or both these properties,
which agreement shall be in substantial conformity with the Agreement a copy
of which is attached hereto, marked as Exhibit "A" and incorporated herein by
this reference.
Section 3. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation.
Section 4. This resolution shall be in full force and effect upon
passage and signatures hereon.
Dated and Signed this day of , 2013.
CITY OF AUBURN
PETER B. LEWIS, MAYOR
ATTEST:
Danielle E, Daskam, City Clerk
Resolution No. 4955
May 10, 2013
Page 2 of 3
Attachment A
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Resolution No. 4955
May 10, 2013
Page 3 of 3
Exhibit A to Resolution No. 4955
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement ") is entered into as of
the day of , 2013, by and between the CITY OF AUBURN, a
Washington municipal corporation, as Seller (hereinafter the "City" or "Seller "), and
AUBURN PROFESSIONAL PLAZA, LLC, a Washington limited liability company
(hereinafter the "Buyer ").
RECITALS
A. The City is the owner of certain real property and all improvements
thereon ( "Property ") located in the City of Auburn, County of King, Washington,
commonly known as Unit 380, One Main Street Professional Plaza, a Condominium,
which is legally described as follows:
Unit 380 of Lot 1, City of Auburn Boundary Line Adjustment No. BLA0019,
recorded under recording number 20091124900003, records of King County,
Washington
Together with an easement for parking under parking easement agreement
recorded under King County recording number 20091118001355, with
respect to the following property;
Lot 7, Map of L.W. Ballard's Park Addition of Slaughter, according to the
plat thereof recorded in Volume 3 of Plats, Page 91, in King County,
Washington; together with the vacated west 10 feet of Silver Street (now A
Street Northwest) adjoining and subject to a revocable license in favor of the
City recorded under King County Recording No. 20100218000151.
B. City desires to sell the Property to Buyer, on the terms and conditions set
forth herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, Buyer and Seller hereby agree
as follows:
1. Certain Defined Terms. For purposes of this Agreement, the terms set forth
below shall have the meaning assigned to them:
1.1 "Closing" or "Close of Escrow" means the recordation of the Deed in the Official
Records and Seller's receipt of the Purchase Price.
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5.10.13
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1,2 "Closing Date" means any mutually agreeable date on or before December 31,
2013.
1.3 "Escrow" means the escrow opened with Escrow Agent for the consummation of
the transaction described in this Agreement,
1.4 "Escrow Agent" means Stephani Owens of Stewart Title Company
(206.770,8811) whose address is 1420 5th Avenue, Suite 500, Seattle, WA 98101,
1.5 "Official Records" means the official real property records of King County,
Washington,
1.6 "Opening of Escrow" means the date a fully executed copy of this Agreement is
deposited with Escrow Agent.
1.7 "Permitted Exceptions" has the meaning as set forth in Section 6.3 below.
1.8 "Purchase Price" has the meaning as set forth in Section 3.
1.9 "Title Company" means Stewart Title Company.
1.10 "Title Policy" means an ALTA (1970 Form B) extended coverage owner's policy
of title insurance issued by the Title Company to Buyer with coverage in the amount of
purchase price, showing title to the Property vested in Buyer subject only to the Permitted
Exceptions.
2. Purchase and Sale. The City agrees to sell to Buyer, and Buyer agrees to purchase
from City, the Property upon the terms and conditions set forth in this Agreement.
3. Purchase Price; Cash Payment. The total cash purchase price for the Property (tile
"Purchase Price ") shall be One Million, Seventy -Four Thousand, Nine Hundred Forty
Dollars and no cents ($1,074,949.00). The Purchase Price shall be paid to City in cash at
Closing.
4, Covenants, Conditions, Restrictions.
4.1 This Agreement is subject to the terms and conditions of;
4.1.1 Declaration of One Main Street Professional Plaza, a Condominium, recorded
under King County Recording No. 2010051200511 on May 12, 2010.
4,1.2 Bylaws of the One Main Street Profession Plaza Owners Association.
4.1.3 This Agreement is subject to a right of first refusal held by Ceradimm, LLC.
(Ceradimm ROFR ")
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4.1.4 This Agreement is contingent on Buyer's entry into a lease agreement with
MultiCare Health System for Unit 380 or for an area that includes the area currently
known as Unit 380 together with additional space presently owned by Buyer.
5. Earnest Money Deposit. On execution of this Agreement, Buyer shall deposit
with Escrow Agent One Thousand Dollars and no cents ($1,000.00) in cash (the
"Deposit "), which shall be held by Escrow Agent as an earnest money deposit hereunder.
The Deposit shall be held in Escrow and applied or disposed of by Escrow Agent as
provided herein. Escrow Agent shall place the Deposit in an interest - bearing account
approved by City and Buyer and all interest earned thereon shall be added to and become
a part of the Deposit.
6. Due Diligence.
6.1 Due Diligence Period. Buyer shall have the right for a period of sixty (60) days
from the date of this Agreement (the "Due Diligence Period ") to conduct Buyer's due
diligence review, examination and inspection of all matters pertaining to its acquisition of
the Property, including such inspections, tests, and surveys as Buyer deems appropriate to
determine the suitability of the Property for Buyer's intended use. City shall provide
Buyer and Buyer's agents and consultants with reasonable access to the Property and, to
the extent such information is in the possession or control of City, shall provide
reasonable access to appropriate information respecting the Property, subject to the terms
and conditions of this Agreement. Buyer's obligation to purchase the Property shall be
contingent upon its approval of such property after conducting its due diligence review.
If, based upon Buyer's review, examination and inspection, Buyer shall determine in its
sole discretion that it intends to acquire the Property, then Buyer shall promptly notify
City of such determination in writing prior to the expiration of the Due Diligence Period,
whereupon Buyer's due diligence contingency shall be deemed satisfied and waived, the
Deposit shall become nonrefundable (except as otherwise provided herein), and Buyer
shall proceed to Closing. In the event that Buyer shall fail to have delivered such notice
to Seller on or before the expiration of the Due Diligence Period, Buyer shall have been
deemed to be satisfied with the results of its aforesaid review, and shall be deemed to
have waived its right to terminate this Agreement pursuant to this subsection. If Buyer
shall have timely and affirmatively advised the City in writing of its dissatisfaction with
the aforesaid matters based on its review, then this Agreement shall automatically
terminate, the Deposit shall be returned to Buyer, and the parties' rights under this
Agreement shall be of no further force or effect.
6.2 Title Commitment. Promptly after mutual execution of this Agreement, Seller
shall obtain an extended preliminary title insurance commitment covering the Property
from the Title Company (the "Commitment ") as is consistent with Section 9 together
with copies of all recorded documents listed as special exceptions therein. Approval by
Buyer of the exceptions to title set forth in the Commitment (other than as hereinafter set
forth) shall be a condition precedent to Buyer's obligation to purchase the Property.
City of Auburn/Auburn Professional Plaza, LLC
5.10.13
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Unless Buyer gives written notice that it disapproves the exceptions to tide shown on the
Commitment (other than the exceptions to title approved by Buyer and described in
Section 6.3 below), stating the exceptions so disapproved, within sixty (60) days after the
date of this Agreement, Buyer shall be deemed to have approved such exceptions. If
Buyer disapproves any title exceptions, City shall have a ten (10) day period after its
receipt of Buyer's written notice of disapproval of the same within which to provide
written notice to Buyer as to which of such disapproved tide exceptions the City will
remove (or cause to be removed) from title; provided, however, that City shall not be
required to actually remove such exception(s) until Closing. If, for any reason, City's
notice given pursuant to the immediately preceding sentence does not covenant to remove
all of Buyer's disapproved title exceptions at or prior to Closing, Buyer shall have the
right to terminate this Agreement by written notice to City and Escrow Agent given
within ten (10) days after the earlier of the expiration of such ten (10) day period or the
date City informs Buyer that it does not intend to remove the disapproved items (the
"Termination Notice "). Buyer's failure to deliver the Termination Notice within such ten
(10) day period shall be deemed Buyer's approval of any such previously disapproved
title exception. If Buyer delivers the Termination Notice within such ten (10) day period,
the obligation of City to sell, and Buyer to buy, the Property as herein provided shall
terminate and the Deposit shall be returned to Buyer. Buyer shall have the option to
waive the condition precedent set forth in this Section 6.2 by written notice to Seller. In
the event of such waiver, such condition precedent shall be deemed satisfied.
6.3 Permitted Exceptions. In addition to such other exceptions to title as may be
approved by Buyer pursuant to the provisions of Section 6.2 above, Buyer shall accept
title to the Property subject to the following (collectively, the "Permitted Exceptions "):
6.3.1 The printed exceptions which appear in the ALTA (Form 1970B) form extended
coverage owner's policy of title insurance issued by Title Company in the State of
Washington; and items created by, or on behalf of, Buyer.
6.4 No New Leases or Contracts. Prior to Closing, City shall not enter into any new
leases, contracts or agreements affecting the Property without the prior written consent of
Buyer, except the City may enter into interim contracts or agreements in connection with
the management, maintenance, repair or preservation of the Property in the normal course
of business if each such contract or agreement expires or is terminated at or prior to
Closing.
7. Buyer's Right of Entry. Buyer, and its agents and consultants, at Buyer's sole
expense and risk, may enter the Property during the term of this Agreement at reasonable
times scheduled in advance with City for the purpose of Buyer's due diligence study of
the Property. Buyer shall (a) exercise care at all times on or about the Property, and (b)
take precautions for the prevention of injury to persons or damage to property on or about
the Property. Buyer shall keep the Property free from all mechanics', nhaterialmen's and
other liens, and all claims thereof, arising from any work or labor done, services
performed, or materials and supplies furnished in with Buyer's actions in the exercise of
City of Auburn/Auburn Professional Plaza, LLC
5.10.13
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its right of entry on the Property, and Buyer shall indemnify and defend City against and
hold City harmless from all such liens and claims.
8. Closing.
8.1 Time for Closing. This purchase and sale shall be closed in the office of Escrow
Agent on the Closing Date. Buyer and City shall deposit in Escrow with Escrow Agent
all instruments, documents and monies necessary to complete the sale in accordance with
this Agreement. Funds held in reserve accounts pursuant to escrow instructions shall be
deemed, for purposes of this definition, as available for disbursement to City.
8.2 Closing Costs.
8.2.1 City Costs. City shall pay (a) the City's share of prorations, if any and, (b) any
commissions due on the sale. This sale is exempt from real estate excise taxes under
Washington Administrative Code Section 458 -61A -205.
8,2.2 Buyer's Costs, Buyer shall pay (a) all escrow fees and costs, (b) the recording
fees for the Deed, (c) Buyer's share of prorations, if any and, (d) all premiums charged
for basic and extended coverage for the Title Policy and any additional endorsements of
coverage Buyer may require, including applicable sales tax.
8.2.3 Other Costs. Buyer and City shall each pay its own legal fees and fees of its own
consultants. All other costs and expenses shall be allocated between Buyer and City in
accordance with the customary practice of King County, Washington.
8.3 Real Property Taxation. City shall be responsible for all real property taxes due
and owing prior to the Closing.
8.4 Closing Documents.
8.4.1 City's Documents. At Closing, City shall deliver to Escrow Agent the following
instruments and documents:
8.4.1.1 The executed and acknowledged Deed in the form attached hereto as
Exhibit "A," conveying the Property to Buyer;
8.4.1.2 The executed real estate excise tax affidavit to accompany the Deed; and
8.4.1.3 An executed nonforeign person affidavit in the form required tinder
Section 1445 of the Internal Revenue Code.
8.4.1.4 All assignable construction, equipment, and supplier warranties pertaining
to Unit 380.
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5.10.13
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8.4.2 Buyer's Documents. At Closing, Buyer shall deliver to Escrow Agent the
following funds, instruments and documents:
8.4.2.1 The balance of the Purchase Price in accordance with Section 3;
8.4.2.2 The executed real estate excise tax affidavit referenced in Section 8.4.1.2
above.
8.5. Possession. Buyer shall be entitled to possession of the Property upon Closing.
9. Title Insurance. As soon as available after Closing, City shall provide to Buyer
the Title Policy, dated as of the Closing Date, subject only to the Permitted Exceptions.
10. Conditions to Closing.
10.1 Buyer's Conditions to Closing. Notwithstanding anything to the contrary set forth
herein, Buyer's obligation to close hereunder is expressly subject to satisfaction or waiver
by Buyer in writing of each of the following conditions:
10.1.1 The Seller's designation of the Property as "surplus" and its authorization to sell
the Property.
10.1.2 Seller's representation that the third party's rights to purchase the Property under
the Ceradimm ROFR have been waived or terminated.
10.2. Seller's Conditions to Closing. Notwithstanding anything to the contrary set forth
herein, Seller's obligation to close hereunder is expressly subject to satisfaction or waiver
by Seller in writing of each of the following conditions:
10.2.1 Buyer's completion, at its own cost and expense, for all tenant improvements
required to relocate employee space and break room into another portion of the City -
owned Condominium Units. The City has the sole right to approve the design and
construction of these tenant improvements associated with the relocation of the employee
space and break room.
CITY REPRESENTS AND BUYER SPECIFICALLY ACKNOWLEDGES THAT
CONSTRUCTION OF THESE REPLACEMENT TENANT IMPROVEMENTS IS
NOT SUBJECT TO WASHINGTON STATE LAW REGARDING PUBLIC
WORKS. THEREFORE, THE TENANT IMPROVEMENTS ARE NOT SUBJECT
TO COMPETITIVE BID, PREVAILING WAGE, BONDING, AND RETAINAGE
REQUIREMENTS.
BUYER MUST GUARANTEE PAYMENT FOR ALL SUBCONTRACTORS AND
MATERIALMEN BY DEPOSITING WITH THE CITY, AT THE TIME OF
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5.10.13
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PERMIT ISSUANCE, A PAYMENT AND COMPLETION GUARANTEE IN THE
AMOUNT OF TWO HUNDRED PERCENT (200 %) OF THE ESTIMATED
COSTS OF THE TENANT IMPROVEMENTS. THIS GUARANTEE SHALL BE
ADDED TO AND CONSIDERED TO BE "EARNEST MONEY" UNDER
SECTION 5 OF THIS AGREEMENT.
ADDITIONALLY, BUYER AGREES TO DEFEND, INDEMNIFY, AND HOLD
THE CITY HARMLESS AGAINST ALL CLAIMS RELATED TO THE TENANT
IMPROVEMENTS.
10.2.2 Approval by the Board of the One Main Street Professional Plaza Owner's
Association to amend the Condominium Declarations and Survey to reallocate the 3`a
floor Terrace limited common element to Unit 300 and to clearly allocate the currently -
combined parking spaces designated as limited common elements for parking in the
"Mel's Lot" specifically to and among Units 200, 300, and 380. All documents required
to amend the condominium declarations and survey shall be prepared by and paid for by
Buyer.
10.2.3 Buyer's payment for all other costs associated with relocating City employees and
equipment out of Unit 380. Seller shall submit invoices not later than 30 days after Unit
380 is vacated.
11. Representations and Warranties,
11.1 City's Representations and Warranties. In addition to any other representations or
warranties of City elsewhere in this Agreement, City represents and warrants to Buyer
now, and as of the Date of Closing, that:
11.1.1 Authority. City, and the person signing on behalf of City, has full power and
authority to execute this Agreement and perform City's obligations hereunder, and all
necessary action to authorize this transaction has been taken, except as specifically
provided herein.
11. 1.2 Hazardous Substances. City has not received notification of any kind from any
governmental agency suggesting that the Property is or may be targeted for a Hazardous
Substances cleanup; to the best of City's knowledge the Property has not been used (a)
for the storage, disposal or discharge of oil, solvents, fuel, chemicals or any type of toxic,
dangerous, hazardous or biological waste or substance (collectively, "Hazardous
Substances "), or (b) as a landfill or waste disposal site; to the best of City's knowledge
the Property has not been contaminated with any Hazardous Substances; and to the best
of City's knowledge, there are no underground storage tanks on the Property.
11.2 Buyer's Representations and Warranties. In addition to any other representations
and warranties of Buyer elsewhere in this Agreement, Buyer represents and warrants to
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5.10.13
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City now, and as of the Date of Closing, that (a) Buyer has full power to execute, deliver
and carry out the terns and provisions of this Agreement, and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement; and (b)
the individual executing this Agreement on behalf of Buyer has the authority to bind
Buyer to the terms and conditions of this Agreement.
11.3 "AS IS" CONDITION OF PROPERTY. THE PURCHASE PRICE REFLECTS
THAT THE PROPERTY IS BEING PURCHASED BY BUYER ON AN "AS IS"
"WHERE IS" AND "WITH ALL FAULTS" BASIS, EXCEPT TO THE EXTENT OF
REPRESENTATIONS AND WARRANTIES SPECIFICALLY MADE BY SELLER
HEREIN OR IN THE DEED OR OTHER DOCUMENTS TO BE DELIVERED BY
CITY AT CLOSING. BUYER HEREBY WAIVES AND RELINQUISHES ALL
RIGHTS AND PRIVILEGES ARISING OUT OF, OR WITH RESPECT TO, ANY
REPRESENTATIONS, WARRANTIES OR COVENANTS, WHETHER EXPRESS OR
IMPLIED, WHICH MAY HAVE BEEN MADE OR GIVEN, OR WHICH MAY BE
DEEMED TO HAVE BEEN MADE OR GIVEN, BY CITY OR ITS
REPRESENTATIVES, INCLUDING BUT NOT LIMITED TO ANY BROKER,
EXCEPT FOR THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS
SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE EXECUTED
AND DELIVERED BY CITY AT CLOSING.
EXCEPT TO THE EXTENT OF ANY REPRESENTATIONS OR WARRANTIES SET
FORTH ELSEWHERE IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE
EXECUTED AND DELIVERED BY CITY AT CLOSING, BUYER HAS NOT
RELIED UPON AND WILL NOT RELY UPON, AND CITY EXPRESSLY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO,
AND SHALL HAVE NO LIABILITY FOR: (I) THE CONDITION OF THE
PROPERTY OR ANY BUILDINGS, STRUCTURES OR IMPROVEMENTS
LOCATED THEREON OR THE SUITABILITY THEREOF FOR HABITATION,
OCCUPANCY OR FOR BUYER'S INTENDED USE OR FOR ANY USE
WHATSOEVER; (11) ANY APPLICABLE BUILDING, ZONING OR FIRE LAWS OR
REGULATIONS OR WITH RESPECT TO COMPLIANCE THEREWITH OR WITH
RESPECT TO THE EXISTENCE OF OR COMPLIANCE WITH ANY REQUIRED
PERMITS, IF ANY, OF ANY GOVERNMENTAL AGENCY; (III) THE
AVAILABILITY OR EXISTENCE OF ANY WATER, SEWER OR UTILITIES, ANY
RIGHTS THERETO, OR ANY WATER, SEWER OR UTILITY DISTRICTS; (IV)
ACCESS TO ANY PUBLIC OR PRIVATE SANITARY SEWER SYSTEM; (V) THE
FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE LOCATED ON
OR NEAR AN EARTHQUAKE FAULT LINE; OR (VI) EXCEPT AS SPECIFICALLY
SET FORTH ABOVE, THE PRESENCE OF ANY HAZARDOUS SUBSTANCES IN
ANY IMPROVEMENTS ON THE PROPERTY, INCLUDING WITHOUT
LIMITATION ASBESTOS OR FORMALDEHYDE, OR THE PRESENCE OF ANY
ENVIRONMENTALLY HAZARDOUS WASTES OR MATERIALS ON OR UNDER
THE PROPERTY. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, EXCEPT TO THE EXTENT OF ANY REPRESENTATIONS OR
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5.10.13
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WARRANTIES SET FORTH ELSEWHERE IN THIS AGREEMENT OR IN ANY
DOCUMENTS TO BE EXECUTED AND DELIVERED BY CITY AT CLOSING,
CITY SHALL HAVE NO LIABILITY TO BUYER WITH RESPECT TO THE
CONDITION OF THE PROPERTY UNDER COMMON LAW, OR ANY FEDERAL,
STATE, OR LOCAL LAW OR REGULATION, INCLUDING BUT NOT LIMITED TO
THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND
LIABILITY ACT OF 1980 AS AMENDED, 42 U.S.C.A. SECTIONS 9601 ET SEQ.,
AND THE WASHINGTON MODEL TOXICS CONTROL ACT ( "MTCA "), RCW
70.105D. BUYER HEREBY RELEASES AND WAIVES ANY AND ALL CLAIMS
WHICH THE BUYER HAS OR MAY HAVE AGAINST CITY UNDER ANY OF THE
FOREGOING LAWS OR WITH RESPECT TO THE CONDITION OF THE
PROPERTY, EXCEPT TO THE EXTENT OF ANY CLAIMS BUYER MAY HAVE
ARISING FROM ANY EXPRESS REPRESENTATIONS, WARRANTIES OR
COVENANTS OF CITY UNDER THIS AGREEMENT OR ANY DOCUMENTS TO
BE EXECUTED AND DELIVERED BY CITY AT CLOSING. BUYER
ACKNOWLEDGES TO CITY THAT BUYER IS GIVEN THE OPPORTUNITY
UNDER THIS AGREEMENT TO FULLY INSPECT THE PROPERTY AND BUYER
ASSUMES THE RESPONSIBILITY AND RISKS OF ALL DEFECTS AND
CONDITIONS, INCLUDING SUCH DEFECTS AND CONDITIONS, IF ANY, THAT
CANNOT BE OBSERVED BY CASUAL INSPECTION, SUBJECT TO THE
EXCEPTION OF RIGHTS EXPRESSLY SET FORTH ABOVE.
BUYER: CITY:
IF A PHASE I ENVIRONMENTAL SITE ASSESSMENT REPORT OR OTHER
ENVIRONMENTAL STUDY OR REPORT (COLLECTIVELY, THE "PHASE I
REPORT) HAS BEEN DELIVERED BY CITY TO BUYER, THEN, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, BY CLOSING THE
TRANSACTION AS CONTEMPLATED HEREIN, BUYER AGREES THAT,
EXCEPT TO THE EXTENT EXPRESSLY CONTRARY TO ANY
REPRESENTATIONS, WARRANTIES OR COVENANTS OF CITY SET FORTH IN
THIS AGREEMENT: (A) BUYER SHALL BE DEEMED TO HAVE ACCEPTED ALL
RISK ASSOCIATED WITH ADVERSE PHYSICAL CHARACTERISTICS AND
EXISTING ENVIRONMENTAL CONDITIONS THAT MAY OR MAY NOT HAVE
BEEN REVEALED BY CITY'S INVESTIGATION OF THE PHASE I REPORT, AND
(B) AS BETWEEN CITY AND BUYER, BUYER SHALL BE DEEMED TO HAVE
ACCEPTED ALL COSTS AND LIABILITIES ASSOCIATED IN ANY WAY WITH
THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY.
BUYER ACKNOWLEDGES AND AGREES THAT CITY MAKES NO
REPRESENTATIONS OR WARRANTIES REGARDING THE TRUTH, ACCURACY
OR THOROUGHNESS OF THE INVESTIGATION, PREPARATION OR CONTENT
OF THE PHASE I REPORT, OR THE COMPETENCE OR ABILITY OF THE
PERSONS OR COMPANIES PREPARING SUCH REPORT. BUYER AGREES
THAT, BY CLOSING THE TRANSACTION CONTEMPLATED HEREIN, BUYER
WILL HAVE HAD AN OPPORTUNITY TO REVIEW THE ABOVE REPORT PRIOR
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5.10.13
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TO THE CLOSING DATE IN ORDER TO MAKE AN INDEPENDENT
VERIFICATION OF THE INFORMATION CONTAINED THEREIN, AND THAT
BUYER AND ITS ENVIRONMENTAL CONSULTANTS WILL HAVE HAD AN
OPPORTUNITY TO CONDUCT TESTS ON THE PROPERTY.
12. Maintenance of Property; Risk of Loss, Condemnation.
12.1 Maintenance of Property. From the date of this Agreement until the Closing Date
(or any earlier termination of this Agreement), City agrees to maintain the Property in
substantially the same condition existing as of the date hereof, ordinary wear and tear,
damage by casualty excepted.
12.2 Risk of Loss; Condemnation. Risk of loss of or damage to the improvements on
the Property shall be borne by Seller at all times and no event of casualty or damage shall
affect the parties' obligations hereunder or the Purchase Price, however, Buyer shall have
the right to receive any insurance proceeds due City in connection with any casualty or
damage and City hereby covenants to maintain commercially reasonable casualty
insurance in place with respect to the Property at all times prior to Closing. City shall
promptly notify Buyer of any condemnation or eminent domain proceeding which affects
the Property, and City covenants and agrees not to commence or pursue any such action.
In the event of any condemnation or eminent domain proceeding by any entity other than
City, or a deed in lieu or under threat thereof, which affects a material portion of the
Property, Buyer may elect either to terminate this Agreement, or to purchase the Property
in the condition existing on the Closing Date without adjustment of the Purchase Price. If
Buyer elects to terminate this Agreement, the Deposit shall be returned to Buyer. If
Buyer elects to purchase the Property, City shall not be liable to restore same, and Buyer
shall be entitled to any condemnation award or payment in lieu thereof payable to City in
its capacity as the owner thereof.
13. Default.
13.1 Time of Essence. Time is of the essence of this Agreement.
13.2 City's Remedies for Buyer's Default or Failure to Close. If Buyer fails, without
legal excuse, to complete the purchase of the Property in accordance with this
Agreement, City's sole and exclusive remedies shall be to retain the Deposit as liquidated
damages. Buyer expressly agrees that the retention of the Deposit by City represents a
reasonable estimation of the damages in the event of Buyer's default and failure to close
hereunder, that actual damages may be difficult to ascertain and that this provision does
not constitute a penalty. In this respect, Buyer and City acknowledge that these damages
have been specifically negotiated between Buyer and City and are, inter alia, to
compensate City for delaying the eventual sale of the Property and to compensate City or
its costs and expenses associated with this Agreement. Buyer hereby waives the rights
and benefits of any law, rule, regulation or order now or hereafter existing that would
City of Auburn /Auburn Professional Plaza, LLC
5.10.13
Page 10 of 16
allow Buyer to claim a refund of the Deposit as unearned earnest money, a penalty or for
any other reason except default by City.
13.3 Buyer's Remedies for City's Default. if City fails to complete the sale of the
Property in accordance with this Agreement, Buyer shall have and may enforce the
following exclusive remedies: (a) seek specific performance; (b) terminate this
Agreement, receive a refund of the Deposit and recover from City all of Buyer's actual
third -party costs and expenses incurred by it in connection with the transaction and the
Project; or (c) seek rescission of this Agreement and receive a refund of the Deposit.
14. Notices. All notices, demands and other communications required or permitted to
be given hereunder shall be in writing, and shall be sent by personal delivery (including
by means of professional messenger or courier service) or registered or certified mail,
postage- prepaid, return - receipt requested, or by email at the addresses provided herein.
Notice shall be deemed to have been given if personally delivered or sent by email, upon
receipt, if sent by mail, two (2) days after duly deposited in the U.S. Mail to all of the
addresses designated for such party.
The parties' respective addresses for notices are as follows:
If to City: City of Auburn
Planning & Development Department
25 West Main Street
Auburn, WA 98001 -4998
Attn: Planning Manager
Email: echamberlain @auburnwa.gov
With copies to: City Attorney's Office
City of Auburn
25 West Main Street
Auburn, WA 98001 -4998
Attn: City Attorney
Email: sp,rossnauburnwa.gov; dhcid aubumwa, gov
If to Buyer:
Auburn Professional Plaza, LLC
P.O. Box 1294
Auburn, WA 98071 -1294
Attn: Jeffrey Oliphant, President
Email: jlo555 c,aol.com
With copies to: Auburn Professional Plaza, LLC
City of Auburn/Auburn Professional Plaza, LLC
5.10.13
Page 11 of 16
c/o Michael John Klein, CPA
5743 Corsa Avenue, Suite 216
Westlake Village, CA 91362
Anthony Rafel, Esq.
Rafel Law Group, PLLC
600 University Street, Suite 2520
Seattle, WA 98101
Notice of change of address shall be given by written notice in the manner detailed in this
Section 14.
15. General.
15.1. Entire Agreement. This is the entire agreement of Buyer and City with respect to
the matters covered hereby and supersedes all prior agreements between them, written or
oral. This Agreement may be modified only in writing, signed by Buyer and City. Any
waivers hereunder must be in writing. No waiver of any right or remedy in the event of
default hereunder shall constitute a waiver of such right or remedy in the event of any
subsequent default. This Agreement shall be governed by the laws of the State of
Washington. Venue for disputes udder this agreement shall lie with the Superior Court of
King County, Washington.
15.2 No Third Party Beneficiaries /Severability. This Agreement is for the benefit only of
the parties hereto and shall inure to the benefit of and bind the heirs, personal
representatives, successors and permitted assigns of the parties hereto. The invalidity or
unenforceability of any provision of this Agreement shall not affect the validity or
enforceability of any other provision hereof. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
15.3 Buyer waives its right to receive a resale certificate as provided for in RCW
64.34.425.
15.4 Buyer waives its right to receive a Commercial Seller's Disclosure Form as provided
for in RCW 64.06.010(7 ).
16. Commissions. City represents to Buyer that City has engaged a broker, agent or
finder in cormection with the negotiations leading to this Agreement. Buyer represents to
City that Buyer has not engaged or in any way dealt with any broker, agent or finder in
connection with the negotiations leading to this Agreement. The City will be responsible
for commissions to be paid to its broker. Other than as specified in this agreement, each
party hereby agrees to indemnify, defend and hold the other party harmless from and
City of Auburn/Auburn Professional Plaza, LLC
5.10.13
Page 12 of 16
against any claims for broker's, agent's, or finder's fees or commissions arising from or
through the actions of the indemnifying party.
17. Attorneys' Fees. In the event suit or action is instituted to interpret or enforce the
terms of this Agreement, the prevailing party therein shall be entitled to recover frorn the
other party such sum as the Court may adjudge reasonable as attorneys' fees, including
fees incurred at trial, on any appeal and in any petition for review.
18. Exclusivity. During the term of this Agreement City shall not market nor list the
Property for sale, nor accept any offers from third parties with respect to sale of the
Property.
19. Reservation of Police Power. Notwithstanding anything to the contrary set forth
herein, Buyer understands and acknowledges that the City's authority to exercise its
police (regulatory) powers in accordance with applicable law shall not be deemed limited
by the provisions of this Agreement.
20. City Council Approval. The Buyer acknowledges that this Agreement does not
bind the City of Auburn until the City Council approves the Purchase Agreement and the
Mayor executes the Agreerrrent.
21. Licensing Disclosure. Buyer hereby discloses to City that Jeffrey Oliphant,
President of Buyer, is the managing broker, designated broker and president of a
Washington licensed real estate brokerage firm that is not involved with this transaction.
City of Auburn/Auburn Professional Plaza, LLC
5.10.13
Page 13 of 16
21. Exhibits. Exhibit A attached hereto is incorporated herein as if frilly set forth.
SIGNED in duplicate original as of the date first above written.
CITY OF AUBURN AUBURN PROFESSIONAL PLAZA,
LLC
By
Peter B. Lewis, Mayor Jeffrey Oliphant, President
Attest;
Title
Danielle Daskam, City Clerk
Approved as to form:
Daniel B. Heid, Auburn City Attorney
EXHIBITS
Exhibit A, Warranty Deed
City of Auburn/Auburn Professional Plaza, LLC
5.10.13
Page 14 of 16
Return Address:
City of Auburn
City Clerk
25 West Main
Auburn, WA 98001
Above this line reserved for recording information.
WARRANTY DEED
Reference # (if applicable): NIA
Grantor/Borrower: City of Auburn
Grantee /Assignee /Beneficia►y: Auburn Professional Plaza, LLC
Legal Description /STR: Unit 380 of Lot 1, City of Auburn Boundary Line
Adjustment No. BLAOO 19, recorded under
recording number 20091124900003, records of
King County, Washington
Assessor's Tax Parcel ID#:
For and in consideration of the sum of TEN DOLLARS ($10.00) and other good
and valuable consideration, receipt of which is hereby acknowledged, Grantor, the City
of Auburn, a municipal corporation of the State of Washington, hereby conveys and
warrants to Auburn Professional Plaza, LLC, Grantee herein, its successors and
assigns, the property legally described and depicted in Exhibit "A," attached hereto and
incorporated herein by this reference (the "Property ").
IN WITNESS WHEREOF, the parties have caused this instrument to be executed
by its proper officer(s) this day of 52013.
Grantor:
The City of Auburn
Its: Mayor
Date Signed:
City of Auburn/Auburn Professional Plaza, LLC
5.10.13
Page 15 of 16
STATE OF
)ss.
County of
STATE OF WASHINGTON )
)ss.
County of King )
I certify that I know or have satisfactory evidence that PETER B. LEWIS is the person who appeared
before me, and said person acknowledged that he /she signed this instrument, on oath stated that lie was
authorized to execute the instrument and acknowledged it as the Mayor of the City of Auburn, a
Washington municipal corporation, to be the free and voluntary act of such party for the uses and
purposes mentioned in this instrument.
Dated
Notary Public in and for the State of
residing at
My appointment expires
City of Auburn/Auburn Professional Plaza, LLC
5.10.13
Page 16 of 16
Bobbie Hod kinson
From: Jeff Tate
Sent: Monday, May 13, 2013 12:33 PM
To: Nancy Backus; John Holman; Largo Wales
Cc: Tina Kriss; Bobbie Hodgkinson; Pete Lewis
Subject: King County Solid Waste Handling Facility - DRAFT Concil Resolution
Attachments: RES4963 Concerns re Solid Waste Transfer Station.doc
Good afternoon, Councilmembers,
Please find the attached DRAFT City of Auburn Resolution for your review. We will be requesting a PCD agenda
modification this evening so that this may be discussed further.
One additional item of information that I thought you might find useful is the list of cities in King County that do not
have mandatory service. It is interesting because some of those are nearby cities (for which I have included their 2010
census population) and some are quite significant in size:
NOT Mandatory:
Beaux Arts
Bellevue
Black Diamond (2010 pop. 4,151)
Burien (2010 pop. 33,313)
Clyde Hill
Covington (2010 pop. 17,757)
Des Moines (2010 pop. 29,673)
Federal Way (2010 pop. 89,306)
Hunts Point
Issaquah
Kenmore
Lake Forest Park
Maple Valley (2010 pop. 22,654)
Medina
Mercer island
Newcastle
Normandy Park (2010 pop. 6,335)
Redmond
Sammamish
SeaTac (2010 pop. 26,909)
Shoreline
Tukwila (2010 pop. 19,107)
Woodinville
Yarrow Point
Total 2010 population for cities listed = 249,235
FYI on Mandatory:
Algona
Auburn
Bothell
Carnation
Duvall
Enumclaw
Kent
Kirkland
North Bend
Pacific
Renton
Skykomish (but no recycling)
Snoqualmie
RESOLUTION NO.4 9 a 3
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, ADDRESSING
THE CONCERNS RELATED TO LOCATING A SOLID
WASTE TRANSFER STATION AT 28721 WEST
VALLEY HIGHWAY IN AUBURN, WASHINGTON
WHEREAS, the City Council of the City of Auburn, Washington, previously
passed Resolution No. 4934 on the 15t day of April, 2013, a copy of which
Resolution is attached hereto and incorporated fully herein by this reference; and
WHEREAS, in furtherance of Resolution No. 4934, the City Council wishes to
make it clear that it has significant and ongoing concerns that were not only
addressed in that Resolution but that are related to the siting of a Solid Waste
Transfer Station proposed to be located in North Auburn, on West Valley Highway
because of historical implications that now bear on properties in the area that would
be affected thereby; and
WHEREAS, prior to the annexation of West Hill by the City of Auburn, King
County allowed development to occur in the higher elevation areas of the West Hill
Annexation Area, which development did not have adequate storm drainage
facilities or that storm drainage facilities were inadequate to handle the storm
drainage needs in the West Hill and lower lying areas to which storm drainage
waters flow; and
WHEREAS, in addition to and notwithstanding the impacts of the Solid
Waste Transfer Station, the development that King County permitted in the West
Hill neighborhoods from the 1980's until annexation has left storm drainage impacts
on the low -lying areas that have not been suitably or adequately addressed and
Resolution No, 4953
May 10, 2013
Page 1 of 4
which has therefore caused harm on the affected properties that were developed
between 1920 and 1962; and
WHEREAS, it is the position of the City Council of the City of Auburn that
King County and the West Hill upland property owners should take steps to address
the impacts related to that development; and
WHEREAS, the City Council further believes that King County needs to
consider the issues and concerns that relate to any proposal for an additional Solid
Waste Transfer Station in South King County.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the City Council of the City of Auburn hereby expresses its
opposition to King County locating a Solid Waste Transfer Station at 28721 West
Valley Highway, in Auburn, Washington, because it is an expensive facility with an
approximately $70,000,000.00 tax payer cost that is not needed, since the newly
completed Bow Lake Transfer Station is able to handle solid waste needs in South
King County, and since there are other reasonable alternatives that could be
employed to alleviate the need for another Solid Waste Transfer Station in South
King County.
Section 2. That rather than promoting another Solid Waste Transfer
Stations in South King County, and locating it so as to exacerbate existing impacts
on affected properties, the City Council of the City of Auburn hereby expresses its
position that, consistent with the King County Solid Waste Management Plan, King
County should take steps to implement mandatory curb -side garbage collection and
----------------------------
Resolution No. 4953
May 10, 2013
Page 2 of 4
mandatory recycling services, and King County should promote other jurisdictions
within King County to likewise require recycling and solid waste garbage collection
services since only 13 of the 37 cities require mandatory garbage service and only
12 of the 37 cities require mandatory recycling service, so as to minimize the need
for any other Solid Waste Transfer Stations anywhere in South King County.
Section 3. That the City Council further wishes to solicit cooperation and
assistance by King County and from the property owner's of the western slopes to
address the impacts on the low -lying areas down- stream of the West Hill
Annexation neighborhoods, where those low -lying areas have been so affected by
inadequate storm drain facilities resulting from the residential development that King
County permitted to occur without adequately addressing storm drainage impacts
on the low -lying areas.
Section 4. That the Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Section 4. That this Resolution shall take effect and be in full force upon
passage and signatures hereon.
Dated and Signed this
ATTEST:
Danielle E. Daskam, City Clerk
---------------------------
Resolution No. 4953
May 10, 2013
Page 3 of 4
day of 12013.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Resolution No. 4953
May 10, 2013
Page 4 of 4