HomeMy WebLinkAboutAD04-065 - Original - Yarrow Bay Development, LLC - Reservoir Impoundment Property - 10/22/2003 % cords M emem%
KENT Document
WASHINGTON
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission to City Clerks Office. All
portions are to be completed, if you have questions, please contact Mary Simmons, City
Clerks Office.
Vendor Name: YA1LgVW BJOY p"Ropm6TIT) Ltd' Vendor Number:
JD Edwards Number
Contract Number:
This is assigned by Mary Simmons
Description: RESE-ZVOTIZ Imp6WDMm NT P710"-TY
Detail: Pyyt #SP- cmd Sale LrCernr,n+
Project Name:
Contract Effective Date: �!J j2 Z'03 Termination Date:
Contract Renewal Notice (Days):
Number of days required notice for termination or renewal or amendment
Contract Manager: NATIM-iJ -21ECKI S I-nJ Department: NOAl1N
Abstract:
5 Public\RecordsManagement\Forms\ContractCover\ADCL7832 07/02
REAL ESTATE PURCHASE AND SALE AGREEMENT
This Agreement is entered between the CITY OF KENT, a Washington municipal
corporation, whose mailing address is 220 4th Ave. S, Kent, Washington 98032, ("Seller'), and
YARROW BAY DEVELOPMENT, LLC, a Washington limited liability company, whose mailing
address is 825 Fifth Avenue, Suite 202, Kirkland, Washington ("Buyer"), for the sale and
purchase of real property as follows:
1. PROPERTY. The property, including all improvements and appurtenances
situated thereon, which Buyer agrees to buy and Seller agrees to sell, is approximately 156.58
acres, legally described in the attached Exhibit A, incorporated by this reference, and identified
as King County tax parcel numbers 786700-0046 and 042105-9016 (the "Property").
- --- --- --------------
2. EARNEST MONEY. Seller acknowledges receipt from Buyer of earnest money in
the amount of Five Hundred Thousand and No/100 Dollars ($500,000.00) in the form of a
promissory note, as seen in Exhibit B attached and incorporated herein (Earnest Money Note),
payable upon the satisfaction and removal of Buyer's Feasibility Study in subsection 4(c).
Following the satisfaction and removal of Buyer's Feasibility Study, the earnest money shall be
nonrefundable except in the case of Seller's default. The earnest money shall be applicable to
the purchase price.
3. PURCHASE PRICE. The purchase price for the Property is Eleven Million Five
Hundred Thousand Dollars and No/100ths ($11,500,000.00) to be paid as follows:
(a) Eight Million Five Hundred Thousand Dollars and No/100ths
($8,500,000.00) in cash at Closing; and
(b) Three Million Dollars and No/100ths ($3,000,000.00) at Closing in the
form of a deed of trust and promissory note, as seen in Exhibits C and D attached and
incorporated herein. The promissory note shall be payable (i)within ten days of Buyer receiving
a Notice of Completeness from the City of Kent on an application for preliminary plat approval or
a planned unit development that has been filed by Buyer in accord with the comprehensive plan
and zoning regulations applicable at the time the application is filed, or (ii) December 1, 2005,
whichever is sooner.
4. CONTINGENCIES. This Agreement is contingent upon:
(a) Acceptance of its terms by the Kent City Council, which shall occur prior
to the removal of Buyers Feasibility Study.
(b) Buyers review and approval of the title report according to Section 5(b)
REAL ESTATE PURCHASE AND SALE AGREEMENT—Page 1 of 7
(between City of Kent and Yarrow Bay Development, LLC)
(c) A Feasibility Study as follows:
(i) Buyer shall have sixty (60) days from the date of mutual
acceptance of this Agreement to determine, in Buyer's sole and absolute discretion, if the real
property is feasible for investment and/or development by Buyer. Buyer is granted a right of
entry during the term of the Feasibility Study. Buyer agrees to assume all liability for and to
defend, indemnify and save Seller harmless from all liability and expense (including reasonable
attorneys' fees) in connection with all claims, suits and actions of every name, kind and
description brought against Seller or its agents or employees by any person or entity as a result
of or on account of injuries or damages to persons, entities and/or property received or
sustained, arising out of, in connection with or as a result of the acts or omissions of Buyer or its
agents or employees in exercising its rights under the right of entry granted in this Section,
except for claims caused by Seller's sole negligence. The provision of this subsection shall
survive Closing or the termination of this Agreement.
(n) Buyer's Feasibility Study may include, but is not limited to utilities
availability and capacity, access availability, preliminary architectural and engineering studies,
and marketing feasibility.
(iii) Buyer agrees to conduct its Feasibility Study at its sole cost and
expense; and if Buyer does not remove the feasibility contingency or terminates this
Agreement on or before the expiration of the feasibility period, then Buyer also agrees, if
requested by Seller, to deliver to Seller copies of all information and documentation obtained
or developed by Buyer in connection with its Feasibility Study. Buyer acknowledges receipt
from Seller of copies of all applicable reports in Seller's possession.
(iv) If Buyer fails to notify Seller in writing of the results of the
Feasibility Study in 4(c), on or before sixty (60) days after mutual acceptance of this
Agreement, then the feasibility contingency will be deemed satisfied and removed. If Buyer
does not remove the feasibility contingency and terminates this Agreement before the
expiration of the sixty (60) day contingency period, neither Buyer nor Seller shall have any
further rights, duties or obligations hereunder, except that Buyer agrees to return the real
property to its original state (i.e., fill all boring holes, etc.) and except as Buyer remains
obligated under the provisions of 4(c)(i).
(d) (i) The Seller shall have thirty (30) days from mutual acceptance to
provide legal descriptions to Buyer for the following Utility and Access Easements that will
be reserved by Seller at Closing:
(A) An area to accommodate the Seller's utilities beginning
at the southwest boundary of the Bonneville Power Administration (BPA) easement on the
Property and extending north along the western boundary of the Property approximately
thirty (30) feet in width for the easement and an additional ten (10) feet in width for a
building setback.
(B) An area to accommodate the Seller's utilities along the
northern boundary of the Property approximately forty (40)feet in width.
REAL ESTATE PURCHASE AND SALE AGREEMENT—Page 2 of 7
(between City of Kent and Yarrow Bay Development, LLC)
(C) An easement within the existing Bonneville Power
Administration (BPA) easement that will allow Seller to connect to the City of Tacoma water
pipeline lying within the BPA easement and to construct an extension of the water pipeline
to the eastern boundary of the Property.
(D) A Wetland and Buffer Creation and Enhancement
Easement. The Seller is currently obtaining a wetland delineation for wetlands that exist
along the western boundary of the Property. Some or all of these wetlands will be disturbed
or potentially eliminated by the utility construction within the easement area in 4(d)(i)(A).
Seller will analyze the delineation and determine the amount of mitigation that is necessary
and the location for that mitigation. Seller will provide a Conceptual Mitigation Plan to Buyer
as well as the legal description within thirty (30) days of mutual acceptance.
_ (E) A temporary construction easement four hundred (400)
feet deep by five hundred �600) eT-efTong at-W6 no-i Tiwesi corner of the-Propertyty fb-- -- --
accommodate a sedimentation pond during construction of Seller's utilities. This easement
shall be effective from Closing until the earlier of December 31, 2005, or Seller's acceptance
of the project for maintenance and operation The Temporary Construction Easement to be
executed at Closing is attached as Exhibit E.
(ii) The Seller shall have thirty (30) days from mutual acceptance to
provide a legal description to Buyer for the Property that excludes an area one hundred sixty
(160) feet by one hundred sixty (160) feet at the northwest corner of the Property for Seller
to locate utility appurtenances such as two pressure reducing valve stations and one Hydro
Generation Facility.
(iii) Buyer shall have until the end of the Feasibility Study in 4(c) to
approve or disapprove of the legal descriptions provided per 4(d)(i) and (ii). Seller is willing
to discuss the relocation of these easements with the Buyer during the Feasibility Study, but
Seller is under no obligation to agree to a relocation proposed by Buyer. If the legal
descriptions for the easements are agreed to by the parties, the parties shall execute an
addendum to this Agreement within three (3) days of the end of the Feasibility Study
agreeing to the legal descriptions to be provided per 4(d)(i) and (ii) and attaching them to
the addendum as exhibits.
(iv) The reservation of Utility and Access Easements in the deed
described in 5(a) shall contain the language attached in Exhibit F:
(v) The reservation of a Wetland and Buffer Creation and
Enhancement Easement in the deed described in 5(a) shall contain the language attached
in Exhibit G.
5. TITLE.
(a) Conveyance. At Closing, Seller shall convey to Buyer fee simple title to
the Property by duly executed and acknowledged Bargain and Sale deed (the "Deed"), free and
clear of all defects and encumbrances. For purposes of this Agreement, the following shall not
be deemed encumbrances or defects: (i) reasonable and customary rights reserved, federal
REAL ESTATE PURCHASE AND SALE AGREEMENT-Page 3 of 7
(between City of Kent and Yarrow Bay Development, LLC)
patents and state deeds; building or use record, and those exceptions that Buyer approves
pursuant to this Agreement; (ii) the reservation of a Utility and Access Easements described in
4(d)(i)(A) through (C) and 4(d)(iv); (iii) the Temporary Construction Easement described in
4(d)(i)(E), and (iv) the Wetland and Buffer Creation and Enhancement Easement described in
4(d)(i)(D)and 4(d)(v).
(b) Preliminary commitment.
(i) Seller has provided a preliminary commitment for an owner's
standard policy of title insurance, Order No. 515554, issued by Pacific Northwest Title, whose
address and telephone number is 215 Columbia Street, Seattle, Washington 98104-1511, (206)
343-1327 the "Title Company") and which was accompanied by copies of all documents
referred to in the commitment (the "Preliminary Commitment"). Buyer shall advise Seller by
written notice what exceptions to title, if any, are disapproved by Buyer ("Disapproved
Exceptions)witfiin fifteen(1bbusiness ays of muU9 acceptance:---eptance:—Seite—will have-fifteen-My-- ---
days after receipt of Buyers notice to give Buyer notice that (i) Seller will remove the
Disapproved Exceptions or(ii) Seller elects not to remove the Disapproved Exceptions. If Seller
fails to give Buyer notice before the expiration of the fifteen (15) day period, Seller will be
deemed to have elected not to remove the Disapproved Exceptions.
(ii) If Seller elects not to remove any non-monetary Disapproved
Exemptions, Buyer will have until the expiration of the Feasibility Study period to notify Seller of
Buyer's election either to proceed with the purchase and take the Property subject to those
exceptions, or to terminate this Agreement. If Buyer elects to terminate this Agreement under
this Section, the escrow will be terminated, all documents and other funds will be returned to the
party who deposited them in escrow, and neither party will have any further rights or obligations
under this Agreement except as otherwise provided herein. If this Agreement is terminated
through no fault of Seller, then Buyer shall pay any costs of terminating the escrow and any
cancellation fee for the Preliminary Commitment.
(c) Title policy. Seller shall cause the title company to issue to Buyer at
Closing a standard owner's policy of title insurance insuring Buyer's title to the Property in the
full amount of the purchase price subject only to the items in subsection 5(a) (the "Title Policy").
The Title Policy must be dated as of the Closing date.
6. CLOSING COSTS AND PRO-RATIONS. The cost of escrow shall be shared
equally between Buyer and Seller, except those fees which are expressly limited by Federal
Regulation. Seller shall pay for excise tax and revenue stamps, should they become due for
this transaction. Taxes for the current year, rents, interest, water and other utility charges, if any,
shall be pro-rated as of date of Closing unless otherwise agreed.
7. CLOSING OF THE SALE. WITH THE UNDERSTANDING THAT TIME IS OF
THE ESSENCE FOR THIS AGREEMENT, this sale shall be closed within ten (10) days of the
removal of the feasibility contingency in subsection 4(c) ("Closing Date"), unless said Closing
date is extended in writing by mutual agreement of the parties ("Closing"). When notified, the
Buyer and Seller will deposit, without delay, in escrow with Pacific Northwest Title, whose address
and telephone number is 116 Washington Avenue North, Kent, Washington 98032-5717, (253)
520-0805, all instruments and monies required to complete the transaction in accordance with this
REAL ESTATE PURCHASE AND SALE AGREEMENT—Page 4 of 7
(between City of Kent and Yarrow Bay Development, LLC)
Agreement. At Closing, all documents will be executed and the sale proceeds will be available for
disbursement to the Seller.
8. POSSESSION. Buyer shall be entitled to possession on Closing.
9. PROPERTY SOLD IN "AS IS" CONDITION. In connection with its Feasibility
Study, Buyer will inspect those aspects of the Property, including, without limitation, its physical
condition, that Buyer deems necessary in order to make a determination whether to purchase
the Property. Buyer hereby acknowledges that it intends to purchase the property on an "as is
with all faults" basis with any and all patent and latent defects, including those relating to the
environmental condition of the property, and that Buyer is not relying on any representations or
warranties, express or implied, of any kind whatsoever from Seller as to any matters concerning
the Property, including physical condition of the property and any defects thereof, the presence
of-any hazardous substances, wastes or contaminants in, on or under the Property, the
condition or existence of any of the above ground or under§�ructures or improveme—hTs in, or---s—
under the Property, the condition of title to the Property, and the leases, easements, or other
agreements affecting the Property. Buyer indemnifies, holds harmless and hereby waives,
releases and discharges forever Seller from any and all present or future claims or demands,
and any and all damages, loss, injury, liability, claims or costs, including fines, penalties and
judgments, and attorney's fees, arising from or in any way related to the condition of the
Property or alleged presence, use, storage or contaminations in, on or under the Property.
Losses shall include without limitation (a) the cost of any investigation, removal, remedial or
other response action that is required by any Environmental Law, that is required by judicial
order or by order of or agreement with any governmental authority, or that is necessary or
otherwise is reasonable under the circumstances; (b) Losses for injury or death of any person;
and (c) Losses arising under any Environmental Law enacted after Closing. The rights of Seller
under this section shall be in addition to and not in lieu of any other rights or remedies to which
Seller may be entitled under this Agreement or otherwise. This indemnity specifically includes
the obligation of Buyer to remove, close, remediate, reimburse or take other actions requested
or required by any governmental agency concerning any hazardous substances or
contaminants on the Property.
The term "Environmental Law" means any federal, state or local statute, regulation,
code, rule, ordinance, order, judgment, decree injunction or common law pertaining in any way
to the protection of human health or the environment. The term "Hazardous Substance" means
any hazardous, toxic radioactive or infectious substance, material or waste as defined, listed or
regulated under any Environmental Law, and includes without limitation, petroleum oil and any
of its fractions.
10. COMMISSION. Seller is not represented by a real estate broker in this
transaction. Buyer is responsible for any commission due to any real estate broker representing
Buyer.
REAL ESTATE PURCHASE AND SALE AGREEMENT—Page 5 of 7
(between City of Kent and Yarrow Bay Development, LLC)
11. DEFAULT AND ATTORNEY'S FEES.
(a) Default.
(1) In the event Buyer fails, without legal excuse, to complete the
purchase of the Property, the earnest money deposit made by Buyer will be forfeited to Seller as
the sole and exclusive remedy available to Seller for such failure.
(ii) In the event that Seller defaults, without legal excuse, under this
Agreement, Buyer will be entitled to seek specific performance, or reimbursement of monies
Buyer paid to third parties as a result of Buyer's Feasibility Study.
(b) Attorney's Fees and Costs. In the event of litigation or a claim of any kind
to enforce any of the terms or provisions herein, each party shall be responsible to pay all of its
attorney's fees and costs incurred-in bringing-or defending-the claim or suit.
12. NOTICES. All notices required or permitted to be given hereunder shall be in writing
and shall be sent U.S. certified mail, return receipt requested, or by facsimile transmission
addressed as set forth below:
(a) All notices to be given to Seller shall be addressed as follows:
Nathan Torgelson
Economic Development Manager
City of Kent
220 Fourth Avenue South
Kent,Washington 98032-5895
(b) All notices to be given to Buyer shall be addressed as follows:
Brian Ross
Yarrow Bay Development, LLC
825 Fifth Avenue
Suite 202,
Kirkland, Washington 98033
Either party may, by written notice to the other, designate such other address for the
giving of notices as being necessary. All notices shall be deemed given on the day such notice
is personally served, or on the date of the facsimile transmission, or on the third day following
the day such notice is mailed in accordance with this paragraph.
13. ENTIRE AGREEMENT. This Agreement, including all incorporated exhibits,
constitutes the full understanding between Seller and Buyer. There have been no verbal or
other agreements that modify this Agreement.
REAL ESTATE PURCHASE AND SALE AGREEMENT—Page 8 of 7
(between City of Kent and Yarrow Bay Development, LLC)
14. BINDING EFFECT AND SURVIVAL. This Agreement shall be binding upon
parties and their respective heirs, successors and assigns; and the terms, conditions and
provisions of this Agreement shall not be deemed merged and shall survive the Closing of this
transaction.
15. MUTUAL ACCEPTANCE. For the purposes of this Agreement, mutual
acceptance shall be the last date on which the parties to this Agreement have executed this
Agreement as indicated below.
16. CONFIDENTIALITY. Prior to Closing, Buyer will not distribute or divulge, or
allow its agents or consultants to distribute or divulge, to other persons the information or
__materials Buyer and its agents and consultants may generate in connection with Buyer's
Feasibility Study except as may be required by law. Buyer further agrees that prior to Closing,_--
except as may be required by law, it will not further divulge or further distribute any information
or materials concerning the Property except with Seller's consent. If Buyer elects not to
purchase the Property, and Seller requests copies of the written reports and studies prepared
for Buyer in connection with this Agreement, Buyer will deliver to Seller copies of the written
reports and studies.
17. FACSIMILE SIGNATURES. Facsimile signatures on this Agreement will be
considered originals.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
set forth below
SELLER: BUYER:
OF KENT YARROW BAY DEVELOPMENT, LLC
By: L /(/�� By:
LUG ayor ro Trx Managing Member
ated: ,&1a.q/Qu Dated:
APPROVED AS TO FORM:
By:
Kent City Attorney
Dated: /G' o? a-03
FknfAIlE\g "MvktP is
REAL ESTATE PURCHASE AND SALE AGREEMENT—Page 7 of 7
(between City of Kent and Yarrow Bay Development, LLC)
The land referred to in this commitment is situatea in the State of
Washington, and described as follows:
That portion of the west half of Section 4, Township 21 North,
Range 5 East, W.M. , in King County, Washington, and that portion of
The Sound Trustee Company's Third Addition, according to the plat
thereof recorded in Volume 13 of Plats, page 100, in King County,
Washington, described as follows:
Commencing at the north quarter corner of said Section 4;
Thence north 88*58,051, west along the north line of Government Lot 3
in said Section 4, a distance of 285.00 feet to the TRUE POINT OF
BEGINNING of the herein described parcel;
Thence south 01039108" west, parallel with the east line of said
west half, 272.00 feet;
Thence south 880581050 east, parallel with the north line of said
Government Lot 3, a distance of 100.00 feet;
— - -- - -Thence south-01°39'_08"__a,reat, parallel with the east line of said
west half, 114.00 feet; - - -�--
Thence south 88058105" east, parallel with the north line of said
Government Lot 3, a distance of 155.00 feet to the west line of the
east 30.00 feet of said west half and the westerly right of way line
of 124u` Avenue Southeast;
Thence south 01039108" west, along said west line and said westerly
right of way line, 4557.05 feet to a point of tangency with a 40.00
foot radius circular curve to the right;
Thence southwesterly, along said curve, through a central angle of
90*2814411, an arc distance of 63.17 feet to a point of tangency with
the north line of the south 30.00 feet of said west half and the
northerly right of way line of Southeast 304th Street;
Thence north 87052108" west, along said north line and said
northerly right of way line, 495.79 feet to the most easterly corner
of the plat of Crystal Meadows as recorded in Volume 194 of Plats,
pages 66 and 67, records of said County;
Thence north 23016,13" west, along the northeast line of said plat,
664.09 feet to an angle point in said northeast line;
Thence continuing along the northeast line of said plat, north
75037158" west 472 .02 feet to the most northerly corner of said
plat, said point being on the east line of the plat of The Sound
Trustee Company's Third Addition, as recorded in Volume 13 of Plats,
page 100, records of said County;
Thence south 01018159" west, along the east line of Tract 11 in said
plat, 20.37 feet to a point on said east line that is 50.00 feet
north of the southeast corner of said tract when measured along said
east line;
(continued)
EXHIBIT "A"
Page 1 of 2
LEGAL DESCRIPTION, continued:
Thence north 24016'52" west 312.43 feet to a point on the north line
of the south half of said Tract 11, said point being 135.00 feet
westerly of the northeast corner of said south half, when measured
along said north line;
Thence north 26053148" west 377.24 feet to a point on the north line
of said Tract 11, said point being 313.36 feet westerly of the
northeast corner of said Tract it when measured along said north
line;
Thence north 87050158" west, along said north line, 4.11 feet to the
southwest corner of the east half of Tract 10 in said plat;
Thence north 01013/580 east, along the west line of the east half of
said Tract 10, a distance of 120.02 feet to the north line of the
south 120.00 feet of said Tract 10;
Thence north 87050.58" west, along said north line, 317.65 feet to
--- --- ----- the west line-of-said 'Tract 10
Thence north 01008/56/ east, along the west line of Tracts 9 and 10
in said plat, 1195.14 feet to an angle point in the west line of
said Tract 9;
Thence continuing along the west line of said Tract 9, north
01043122" east 4.38 feet to the northwest corner of said Tract 9;
Thence south 87049149" east, along the north line of said Tract 9, a
distance of 638 .80 feet to the northeast corner of said Tract 9 and
the east line of said plat;
Thence north 01041156" east, along the east line of said plat,
1319.16 feet to the northeast corner of said plat and the southwest
corner of aforesaid Government Lot 3;
Thence continuing north 01041'56" east along the west line of said
Government Lot, 1031.21 feet to the northwest corner of said
Government Lot;
Thence south 88058,05" east, along the north line of said Government
Lot, 1030.70 feet to the TRUE POINT OF BEGINNING of the herein
described parcel.
EXHIBIT "A"
Page 2 of 2
EXHIBIT B
EARNEST MONEY NOTE
FOR VALUE RECEIVED, ("Maker") promises to pay to the order of
("Payee") the principal sum of Dollars
($_ interest-free. This Note shall be payable in lawful money of the United States, at
such place as the Payee may designate.
This Note is made pursuant to that certain Purchase and Sale Agreement dated as of
between the Maker and Payee (the "Agreement"), the terms and conditions
-Of which-are incorporated herein by this reference. This Note shall-be-due and payable as set
forth in such Agreement.
Maker shall have the right to prepay at any time in advance of maturity, without premium
or penalty,all or any part of the principal amount of this Note.
If default is made in the payment of the principal hereunder when due, the Agreement
shall terminate.
Maker waives diligence, presentment, demand, protest, and notice of any kind
whatsoever. The non-exercise by the Payee of any of Payee's rights hereunder in any instance
shall not constitute a waiver thereof in that or any subsequent instance.
If this Note is placed in the hands of any attorney for collection after any default, Maker
promises to pay all costs of collection and a reasonable sum as attorneys' fees, whether suit is
brought or not.
This Note is to be construed in all respects and enforced according to the laws of the
State of Washington.
MAKER:
By:
Its:
Date:
V10/07/03 4- EARNEST MONEY NOTE V2
TREAD\YARROW BAY DEVELOPMENT\C1TY OF KENrDETENT(ON PARCEL
EXHIBIT C
DEED OF TRUST
When Recorded Return to:
CITY OF KENT
PROPERTY MANAGER
220 FOURTH AVENUE SOUTH
KENT,WA 98032
SHORT FORM DEED OF TRUST, SECURITY AGREEMENT,
AND FIXTURE FILING
Grantor: YARROW BAY DEVELOPMENT, LLC.
Grantee: CITY OF KENT,WASHINGTON
Legal Description (abbreviated): Ptns Lots 9-11, Sound Trustee Company's Third
Addition,Vol. 13, pg. 100; and SW, NW 04-21-05
0 Complete legal on EXHIBIT A.
Assessor's Tax Parcel Identification 786700-0046 and 042105-9016
No(s):
Reference Nos. of Documents Released or N/A
Assigned:
THIS SHORT FORM DEED OF TRUST, SECURITY AGREEMENT, AND FIXTURE
FILING (the "Deed of Trust") dated , 2003, is made between
YARROW BAY DEVELOPMENT, LLC., a Washington limited liability company
(the "Grantor"), whose address is 825 Fifth Avenue, Suite 202, Kirkland,
Washington 98101; Pacific Northwest Title Company (the "Trustee"), whose
address is 215 Columbia Street, Seattle, Washington 98104-1511; and the CITY OF
KENT, WASHINGTON, a municipal corporation (the "Beneficiary"), whose
address is 220 Fourth Avenue South, Kent, Washington 98032.
1. GRANTING CLAUSE. Grantor hereby irrevocably bargains, sells, and
conveys to Trustee, in trust, with power of sale, all of Grantor's right, title, and
interest in and to that certain real property located in King County, Washington,
more particularly described on EXHIBIT A attached hereto and incorporated herein
by this reference (the "Transferred Property"); together with:
DEED OF TRUST OF YARROW BAY—Page 1 of 5
RE: CITY OF KENT IMPOUNDMENT RESERVOIR PROPERTY
1.1 After-Acquired Title. Any after-acquired title of Grantor in
the Transferred Property;
1.2 Easements, Etc. All of Grantor's easements, tenements,
hereditaments and appurtenances now or hereafter belonging or in any way
appertaining to the Transferred Property;
1.3 Rents. The rents, issues, and profits of the Transferred
Property;
1.4 Improvements. All buildings, improvements, structures,
fixtures, and articles of Transferred Property now or hereafter erected on,
attached to, located on, or used or intended to be used in connection with the
___ _ __-�ransfei:i•ed Property,�rfd _ _ - _ __ _____ _ _
1.5 Additional Transferred Property and Rights. All other
property or rights of any kind or nature further set forth herein or in the Master
Form Deed of Trust referred to below; all of which shall be deemed to be and
remain a part of the Transferred Property and not severable wholly or in any part
without material injury to the freehold and shall be included in any references to
the Transferred Property hereunder.
2. SECURITY AGREEMENT. This Deed of Trust shall also constitute a
"Security Agreement" under the Uniform Commercial Code of the State of
Washington (the "UCC") between Grantor as debtor and Beneficiary as secured
party. As additional security for the performance of the obligations secured
hereby, Grantor further grants and conveys to Beneficiary a security interest and
a continuing lien on the following-described property and all proceeds of such
property (the "Collateral"), all of which Collateral shall be deemed a part of and
shall be included in any reference to the Transferred Property hereunder:
2.1 Rights Under Covenants. All of Grantor's rights under any
declarations of covenants, conditions, and restrictions recorded for the
Transferred Property.
2.2 Improvements, Fixtures, Etc. All improvements, fixtures,
equipment, furnishings, appliances, machinery, goods, construction materials,
and other articles of personal property owned by Grantor and now or hereafter
affixed to the Transferred Property, including, but not limited to, any structures
constructed on the Transferred Property, and any and all replacements and
improvements thereof;
3. OBLIGATIONS SECURED. This Deed of Trust is given for the purpose
of and does secure the following obligations:
DEED OF TRUST OF YARROW BAY-Page 2 of 5
RE- CITY OF KENT IMPOUNDMENT RESERVOIR PROPERTY
3.1 Promissory Note. Payment of the sum of Three Million and
No100 Dollars ($3,000,000.00), with interest, in accordance with the terms of the
Promissory Note of even date payable to or to the order of Beneficiary and made
by Grantor (the "Note"), and all renewals, modifications and extensions thereof,
and any judgment rendered on the Note or any renewals thereof or substitutions
therefore;
3.2 Obligations Under Deed of Trust. Performance of each
agreement, term, and condition set forth in this Deed of Trust.
4. MASTER FORM DEED OF TRUST. By executing and delivering this
Deed of Trust and the Note secured hereby, the parties agree that all provisions
- ---
of Paragraphs 1 through 35 inclusive of the Master Form Deed of Trust recorded
July 25, 1968, in the o IclaI records of Kng-Countylashington-and Recording-- -
No. 6382309 (the "Master Form Deed of Trust"), except paragraphs 5, 8, 9, 101
13, 15, 30 and 32 and such other paragraphs as are specifically excluded or
modified herein or such terms of the Master Form Deed of Trust as are otherwise
in conflict with the provisions of the Note, are hereby incorporated herein by
reference and made an integral part hereof for all purposes the same as if set
forth herein at length, and Grantor hereby makes said covenants and agrees to
fully perform all of said provisions.
4.1 Conflicts. In case of any conflict between the provisions of
the Master Form Deed of Trust and this instrument or the Note, the terms of the
Note shall control.
4.2 Copy Provided. A copy of the Master Form Deed of Trust
has previously been or is hereby furnished to Grantor. By executing this Deed of
Trust, Grantor acknowledges receipt of such Master Form Deed of Trust.
5. REPAYMENT OF BENEFICIARY'S ExPENDITURES AND ADVANCES.
Grantor shall pay, upon 15 days written notice from Beneficiary, all sums
expended or advanced hereunder, and all costs incurred by Beneficiary or
Trustee in enforcing or protecting their rights or interests hereunder (including,
without limitation, attorneys' fees, accountants' fees, and any other costs or
expenses whatsoever), with interest from the date of any such expenditure or
advance at the Default Rate provided in the Note, and the same shall constitute
advances made under this Deed of Trust and repayment thereof shall be secured
hereby.
6. REPRESENTATIONS AND WARRANTIES. To protect the security of this
Deed of Trust and for the benefit of Beneficiary, Grantor does, for Grantor and for
Grantor's successors and assigns, represent, covenant, warrant, and agree as
follows:
DEED OF TRUST OF YARROW BAY-Page 3 of 5
RE:CITY OF KENT IMPOUNDMENT RESERVOIR PROPERTY
6.1 Transferred Property Not Agricultural. That the
Transferred Property is not used principally for agricultural, timber, grazing, or
farming purposes;
6.2 Warranty of Title. That Grantor has good and marketable
title to an indefeasible fee simple estate in all real property described herein
subject only to such liens and encumbrances, if any, (i) specifically described in
the Statutory Warranty Deed delivered from Beneficiary to Grantor for the real
property herein secured, (ii) or otherwise accepted or approved by Beneficiary in
writing; that Grantor owns all of the Transferred Property described herein free
from liens, security interests, and encumbrances of any kind (other than those
approved in writing by Beneficiary); that Grantor is vested with the right to convey
all real property described herein to Trustee for the benefit of Beneficiary; and
`that no consent of other parties Ts requ re as a con I ion'therefa,and -
7. DUE ON SALE. Grantor acknowledges and agrees that the
obligations secured by this Deed of Trust are personal to Grantor and that
Grantor's personal responsibilities, financial condition, and control of the
Transferred Property were material inducements on which Beneficiary relied.
Grantor shall not sell or transfer all or any portion of Grantor's interest in the
Transferred Property without the prior written approval of Beneficiary. If Grantor
sells or transfers any interest without such approval, then the change in title shall
be deemed to increase the risk of Beneficiary and Beneficiary may declare the
entire principal balance of the Note immediately due and payable.
8. Non-Recourse. This Deed of Trust and Beneficiary's exercise of
its rights hereunder in the event of a default by Grantor are subject to the non-
recourse provisions of the Note as set forth in Section 8 of the Note and
incorporated herein by reference.
EXECUTED as of the day and year first above written.
YARROW BAY DEVELOPMENT, LLC.
By
Name:
Title:
DEED OF TRUST OF YARROW BAY—Page 4 of 5
RE.CITY OF KENT IMPOUNDMENT RESERVOIR PROPERTY
STATE OF
WASHINGTON Ss.
COUNTY OF KING
On this day personally appeared before me
to me known to be the
for the YARROW BAY DEVELOPMENT, LLC., a
Washington limited liability company, that executed the foregoing instrument, and
acknowledged such instrument to be the free and voluntary act and deed of such
municipal corporation, for the uses and purposes therein mentioned, and on oath
stated that was duly authorized to execute such instrument.
GIVEN UNDER MY HAND AND OFFICIAL SEAL this day of ,
2003.
-Notary Sea!Must Appear Within This Bar-
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
NOTARY PUBLIC, in and for the State of Washington
residing at
My appointment expires
DEED OF TRUST OF YARROW BAY—Page 5 of 5
RE: CITY OF KENT IMPOUNDMENT RESERVOIR PROPERTY
EXHIBIT D
DEFERRED PURCHASE PRICE
PROMISSORY NOTE
$3,000,000. (U.S.) , 2003
Kent, Washington
FOR VALUE RECEIVED, the undersigned, YARROW BAY DEVELOPMENT,
LLC., a Washington limited liability company, ("Borrower") promises to pay to the
order of CITY OF KENT, a Washington municipal corporation, ("Lender"), at 220
_Fourth Avenue South, Kent, WA 98032, or such other place as Lender may from
time to�time designate in writing, fhe sum of Three lllrion and Not100 Dollars
($3,000,000), in lawful money of the United States of America.
1. Interest Rate.
1.1 Note Rate. No interest shall accrue on the unpaid principal
balance except as provided in 1.2 below.
1.2 Default Rate. Should Borrower default in the payment of
any installment when due hereunder or if Borrower defaults in the observance or
performance of the Deed of Trust of even date securing this loan, interest shall
accrue hereunder from the date of such default at an annual interest rate equal to
twelve percent (12%) per annum ("Default Rate"). After the entire principal
amount of the loan evidenced hereby shall become due and payable, whether by
acceleration, at maturity, or otherwise, this Note shall bear interest at the Default
Rate.
1.3 Computation of Interest. Interest shall be computed on the
basis of a 365-day year and accrue on the basis of the actual number of days
(including the first day but excluding the last day) occurring.
2. Security. This Note is secured by a Deed of Trust, (the "Deed of
Trust") of even date made by Borrower in favor of Lender. Borrower agrees to
perform and comply with all of the agreements, terms, and conditions of the
Deed of Trust.
3. Repayment. This Note shall be due and payable (i) within ten (10)
days of Borrower receiving a Notice of Completeness from the City of Kent on an
application for preliminary plat approval and/or a planned unit development that
has been filed by Borrower in accord with the comprehensive plan and zoning
regulations applicable at the time the application is filed, or (ii) December 1,
2005, whichever is sooner.
PROMISSORY NOTE—Page 1 of 4
(Yarrow Bay—Re: Impoundment Reservoir)
4. Prepayment. Borrower may prepay Borrower's obligations under
this Note in full or in part at any time or from time to time without premium or
penalty.
5. Application of Payments. Payments received by Lender from
Borrower shall be applied first to interest and then to principal, except that
prepayments made under paragraph 3 of this Note shall be applied as
designated by Borrower
6. Acceleration. Upon Borrower's failure to pay any amount payable
hereunder as and when due or upon the occurrence of any other default under
this Note or the Deed of Trust of even date, Lender may declare, at its sole
option and _upon fifteen (15) days written notice to Borrower, the entire
indebtedness evidenced hereby imme iat6ly due and payabie in ILK--Failure to
exercise this option or any other right Lender may have shall not constitute a
waiver of the right to exercise such option or any other right in the event of any
subsequent default.
7. Costs and Fees of Collection. Borrower and every other person
or entity at any time liable for the payment of the indebtedness evidenced hereby
shall also be liable for all costs, expenses, and fees incurred by Lender in
collecting any amounts owing hereunder, including reasonable attorneys' fees.
Any judgment recovered by Lender shall bear interest at the Default Rate.
8. Non-Recourse. Subject to the qualifications set forth below,
Lender agrees that (i) Borrower shall be liable upon the indebtedness evidenced
hereby to the full extent (but only to the extent) of the security therefore, (the
"Security Property"), (ii) if default occurs in the timely and proper payment of all
or any part of such indebtedness evidenced hereby, any judicial or other
proceedings brought by Lender against Borrower shall be limited to the
preservation, enforcement and foreclosure of the liens, estates, assignments,
rights and security interests now or at any time hereafter securing the payment of
this Note, and no attachment, execution or other writ of process shall be sought,
issued or levied upon any assets, properties or funds of Borrower other than the
Security Property except with respect to the liability described below in this
section, and (iii) in the event of a foreclosure of such liens, estates, assignments,
rights or security interests securing the payment of this Note, no judgment for any
deficiency upon the indebtedness evidenced hereby shall be sought or obtained
by Lender against Borrower, except with respect to the liability described below
in this section; provided, however, that, notwithstanding the foregoing provisions
of this section, Borrower shall be fully and personally liable and subject to legal
action:
(a) for proceeds paid under any insurance policies (or paid as a
result of any other claim or cause of action against any person or entity) by
reason of damage, loss or destruction to all or any portion of the Security
PROMISSORY NOTE-Page 2 of 4
(Yarrow Bay-Re: Impoundment Reservoir)
Property, to the full extent of such proceeds not previously delivered to Lender,
but which, under the terms of the Deed of Trust, should have been delivered to
Lender;
(b) for proceeds or awards resulting from the condemnation or
other taking in lieu of condemnation of all or any portion of the Security Property,
or any of them, to the full extent of such proceeds or awards not previously
delivered to Lender, but which, under the terms of the Deed of Trust, should have
been delivered to Lender;
(c) for rents, issues, profits and revenues of all or any portion of
the Security Property received or applicable to a period after the occurrence of
_eny,eyent of default or anry event which,_with the giving of notice and/or the
passage of time, would constitute an event of default hereunder which are not
either applied to the ordinary and necessary expenses of owning and operating
the Security Property or paid to Lender;
In the event that Borrower fails to obtain Lender's prior written consent to
any assignment, transfer or conveyance of the Security Property or any interest
therein as required by the Deed of Trust: (i) the Loan shall be fully recourse to
Borrower; and (ii) Lender shall not be deemed to have waived any right which
Lender may have under Sections 506(a), 506(b), 1111(b) or any other provisions
of the U.S. Bankruptcy Code to file a claim for the full amount of the Loan or to
require that all collateral shall continue to secure all of the indebtedness owing to
Lender in accordance with the Deed of Trust.
Nothing contained in this Section shall (1) be deemed to be a release or
impairment of the indebtedness evidenced by this Note or the Deed of Trust or
(2) preclude Lender from foreclosing the Deed of Trust in case of any default or
from enforcing any of the other rights of Lender except as stated in this Section.
9. Applicable Law. This Note is made with reference to and is to be
construed in accordance with the laws of the State of Washington, without regard
to that state's choice of law rules.
PROMISSORY NOTE—Page 3 of 4
(Yarrow Bay—Re: Impoundment Reservoir)
NOTICE: ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN
MONEY, EXTEND CREDIT, OR FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
EXEcu*rED as the day and year first above written.
YARROW BAY DEVELOPMENT, LLC.
By
Name:
- - --- - - - - --
'-- - - —Title:
STATE OF
WASHINGTON ss.
COUNTY OF KING
On this day personally appeared before me
to me known to be the
for YARROW BAY DEVELOPMENT, LLC., a Washington
limited liability company, that executed the foregoing instrument, and
acknowledged such instrument to be the free and voluntary act and deed of such
municipal corporation, for the uses and purposes therein mentioned, and on oath
stated that was duly authorized to execute such instrument.
GIVEN UNDER MY HAND AND OFFICIAL SEAL this day of ,
2003.
-Notary Seal Must Appear Within This gox-
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
NOTARY PUBLIC, in and for the State of Washington
residing at
My appointment expires
PROMISSORY NOTE-Page 4 of 4
(Yarrow Bay-Re: Impoundment Reservoir)
EXHIBIT E
WHEN RECORDED RETURN TO:
Property Management
City of Kent
220 Fourth Avenue South
Kent, Washington 98032
Grantor: YARROW BAY DEVELOPMENT, LLC, a Washington limited liability company
Grantee: CITY OF KENT, a Washington municipal corporation,
Abbreviated Legal Description:
Additional Legal Description on page of Document.
Assessor's Tax Parcel ID No. 786700-0046-03
Project Name: Tacoma Pipeline 5 Connection
TEMPORARY CONSTRUCTION EASEMENT
YARROW BAY DEVELOPMENT, LLC, a Washington limited liability company
("Grantor"), for and in consideration of valuable consideration receipt of which is hereby
acknowledged by Grantor, conveys and quit claims to the City of Kent, a Washington
municipal corporation ("Grantee"), a Temporary Construction Easement (the "Temporary
Easement") to be used during construction of utilities and their appurtenances, generally
known as the Tacoma Pipeline 5 Connection, for a sedimentation pond, over, under,
through, across and upon the following described real property parcel(s), situated in King
County, Washington (Easement Area):
SEE EXHIBIT " " ATTACHED
TEMPORARY CONSTRUCTION EASEMENT(Yarrow Bay)-Page 1 of 3
Grantee shall have the right,without prior institution of any suit or proceeding at law,
at those times as may be necessary, to enter upon the Easement Area for the purpose of
installing a sedimentation pond to be used during construction of the Tacoma Pipeline 5
Connection project, including all necessary appurtenances, without incurring any legal
obligation or liability; provided, however, that the Grantee shall use the Easement Area in
such a manner that the existing improvements in the Easement Area shall not be disturbed
or destroyed. In the event that they are disturbed or destroyed, Grantee will replace all
improvements in as good a condition as they were immediately before the property was
entered upon by the Grantee.
Grantee shall at all times exercise its rights under this Temporary Easement in
accordance with the requirements of all applicable statutes,orders, rules and regulations of
._-any public_autho*havingiutisdiction`Grantee accents the Easement-Area in-its present _ _
physical condition,AS IS. Grantee does hereby release, indemnify and promise to defend
and save harmless Grantor from and against any and all liability, loss, damage, expense
actions and claims, including costs and reasonable attorneys' fees incurred by Grantor in
connection therewith, arising directly or indirectly on account of or out of the exercise by
Grantee, its servants, agents, employees, and contractors of the rights granted in this
Temporary Easement.
The Temporary Easement shall be a covenant running with the land and shall bind
Grantor's successors and assigns and all future owners of the real properties affected by
this Temporary Easement until the Tacoma Pipeline 5 Connection project has been
accepted by Grantee for maintenance and operation, or December 31, 2005,whichever is
sooner.
GRANTOR:
YARROW BAY DEVELOPMENT, INC.
By:
Its:
Date:
(Notary Acknowledgment Appears on Next Page)
TEMPORARY CONSTRUCTION EASEMENT(Yarrow Bay)- Page 2 of 3
STATE OF WASHINGTON )
) Ss.
COUNTY OF KING )
On this day of ,2003, before me a Notary Public in and for
the State of Washington, personally appeared and
, to me known to be the and Of
YARROW BAY DEVELOPMENT, INC.,a Washington limited liability company,the company
that executed the foregoing instrument,and acknowledged it to be the free and voluntary act
of said corporation, for the uses and purposes mentioned in this instrument, and on oath
stated that they were authorized to execute said instrument.
- ----_ -Notary Seal Mist Appear W#on This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
NOTARY PUBLIC, in and for the State of Washington
residing at
My appointment expires
APPROVED AS TO FORM:
Kent City Attorney
P%CiviRFORMS1Deeds.Eaemis.Leases,&etclProperty Manager FormslTamporaryConstruclwnEssemwd{LC doc
TEMPORARY CONSTRUCTION EASEMENT(Yarrow Bay)-Page 3 of 3
EXHIBIT F
The Grantor reserves a Utility and Access Easement with necessary
appurtenances, over, through, across and upon the following described real property
situated in King County, Washington, more particularly described as follows (Easement
Area):
SEE EXHIBIT " "ATTACHED
The Grantor shall have the right without prior institution of suit or proceeding at
law, at times as may be necessary, to enter upon said Easement Area with the
necessary equipment for the purposes of accessing, altering, installing, operating,
maintaining, extending, constructing, repairing, and reconstructing utilities or making any
connection-sAo_the utbhties_without incurring any legal obligation or liability;_providing that
said accessing, altering, installing, operating, maintaining, extending, constructing,
repairing, and reconstructing of said utilities shall be accomplished in such a manner that
the private improvements existing within this Easement Area shall not be disturbed or
destroyed, or in the event that they are disturbed or destroyed, they will be replaced in
as good a condition as they were immediately before the Easement Area was entered
upon by the Grantor.
The Grantee shall retain the right to use the surface of the Easement Area so
long as said use does not interfere with the uses reserved by Grantor. Under no
circumstances shall any cement, concrete, structures, fences, fixtures such as play
structures anchored into the real property, or fill material of any kind be placed or
erected on this Easement Area. This easement reservation shall be a covenant running
with the land forever and shall be binding on the Grantee's successors, heirs, and
assigns.
EXHIBIT G
The Grantor reserves a Wetland and Buffer Creation and Enhancement
Easement with necessary appurtenances, over, through, across and upon the following
described real property situated in King County, Washington, more particularly described
as follows (Easement Area):
SEE EXHIBIT " "ATTACHED
The Grantor shall have the right without prior institution of suit or proceeding at
law, at times as may be necessary, to enter upon said Easement Area with the
necessary equipment for the purposes of accessing, altering, installing, operating,
maintaining, extending, constructing, repairing, and reconstructing wetlands and buffers
without_incurring _any legal obligation_or liability.__ Attached as Exhibit "_" i_s the
Conceptual Mitigation Plan that will be used as the basis for the wetland and buffer
creation and enhancement. This plan may be altered by Grantor, but will remain within
the Easement Area.
Grantor's accessing, altering, installing, operating, maintaining, extending,
constructing, repairing, and reconstructing of the wetlands and buffers shall be
accomplished in such a manner that the existing wetlands and buffers within this
Easement Area shall not be disturbed or destroyed, or in the event that they are
disturbed or destroyed, they will be replaced in as good a condition as they were
immediately before the Easement Area was entered upon by the Grantor.
The Grantee shall retain the right to use the surface of the Easement Area so
long as said use does not interfere with the uses reserved by Grantor. This easement
reservation shall be a covenant running with the land forever and shall be binding on the
Grantee's successors, heirs, and assigns.
EARNEST MONEY NOTE
c �cc��T. �--
FOR VALUE RECEIVED,YPtR� B/�`; Dr Maker") promfses to pay to the order of
1 CEz CA—,; oi= lc ,I 'Payee") the principal sum of 1rythz' L+d)t D M 11',A dollars
($ , interest-free. This Note shall be payable in lawful money of the United States, at
such place as the Payee may designate.
This Note is made pursuant to that certain Purchase and Sale Agreement dated as of
OMC64 L V�I etween the Maker and Payee (the "Agreement"), the terms and conditions
of which are incorporated herein by this reference. This Note shall be due and payable as set
forth in such Agreement.
Maker shall have the right to prepay at any time in advance of maturity, without premium
or penalty, all or any part of the principal amount of this Note.
If default is made in the payment of the pnncipal hereunder when due, the Agreement
shall terminate.
Maker waives diligence, presentment, demand, protest, and notice of any kind
whatsoever. The non-exercise by the Payee of any of Payee's rights hereunder in any instance
shall not constitute a waiver thereof in that or any subsequent instance.
If this Note is placed in the hands of any attorney for collection after any default, Maker
promises to pay all costs of collection and a reasonable sum as attorneys' fees, whether suit is
brought or not.
This Note is to be construed in all respects and enforced according to the laws of the
State of Washington.
MAKER:
(Woul AM
By:
Its: p Q T N
l=
Date: Cf o$
\10/07/03 -1- EARNEST MONEY NOTE V2
TREAD\YARROW BAY DEVELOPMENT\CITY OF KENT\DETENTION PARCEL