HomeMy WebLinkAboutFD06-018 - Original - Applus Technologies, Inc. - Purchase of 407 Washington Avenue North - 06/13/2006 REAL ESTATE PURCHASE AND SALE AGREEMENT
WITH EARNEST MONEY PROVISION BETWEEN THE CITY OF KENT
AND APPLUS TECHNOLOGIES, INC.
This ,Agreement is entered between the CITY OF KENT, a Washington municipal
corporation, whose mailing address is 220 4th Avenue South, Kent, Washington 98032-5895,
("Buyer"), and APPLUS TECHNOLOGIES, INC. ("Seller"), whose mailing address is 444 North
Michigan Avenue, Chicago, IL 60611, for the sale and purchase of real properly as follows:
1. PROPERTY. The property,including all improvements and appurtenances situated
thereon, which Buyer agrees to buy and Seller agrees to sell, is known 407 Washington Avenue
North, Kent, Washington and is legally described in Exhibit A, (the "Property").
2. EARNEST MONEY. Within 5 days of mutual acceptance of this Agreement, Buyer
shall deposit with Pacific Northwest Title Company, 116 Washington Avenue N., Kent, Washington
98032 (the"Closing Agent', the sum of Twenty Thousand Dollars and NO/100ths($20,000.00) in
the form of a City of Kent Purchase Order(the"Purchase Order', as refundable earnest money to
be applied toward the purchase price of tl e Property payable at Closing.
3. PURCHASE PRICE. The total purchase price for the Property is Eight Hundred
Twenty-Five Thousand Dollars and NO/100ths($825,000.00), including earnest money, payable all
cash at Closing.
4. CONTINGENCIES. This agreement is contingent upon:
(a) Acceptance of its terms by the Kent City Council.
(b) Buyer's review and approval of the title report on the Property prior to
Closing.
(C) Buyer's approval of an appraisal of fair market value of the Property. Buyer
will pay the costs of the appraisal.
(d) A Feasibility Study as follows:
(1) Buyer shall have one hundred twenty (120) days from the date of
mutual acceptance of this Agreement to determine, in Buyer's sole
and absolute discretion, if the Property is feasible for purchase by
Real Estate Purchase and Sale Agreement— Page 1 of 8 (May 26, 2006)
(between City of Kent and Applus Technologies, Inc.)
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Buyer (Feasibility Period).
(2) Buyer's Feasibility Study may include (but is not limited to)a Phase I
and/or Phase II environmental assessment, utilities availability and
capacity,access availability,zoning,and preliminary architectural and
engineering studies.
(3) BY EXECUTING THIS AGREEMENT, SELLER HEREBY AUTHORIZES
BUYER A RIGHT OF ENTRY TO THE PROPERTY FOR THE PURPOSE
OF CONDUCTING THIS FEASIBILITY STUDY INCLUDING A PHASE I,
AND IF NECESSARY, A PHASE II ENVIRONMENTAL ASSESSMENT.
(4) 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 grantedin this Section,
except for claims caused by Seller's negligence.
(5) A Phase I environmental assessment generally will consist of a review
of title of ownership and land use, review of geologic and hydrologic
maps of the area, review of federal and state databases for known
hazardous waste generators or contaminated sites and a site visit.
(6) Buyer agrees to conduct its Feasibility Study at its sole cost and
expense;and if Buyer does not remove the feasibility contingency 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 by Buyer in connection with
its Feasibility Study.
(7) Buyer agrees to return the Property to its original state (i.e., fill all
boring holes, etc.) prior to the end of the Feasibility Period.
Should any of these contingencies set forth above not be met or removed prior to
Closing or the earlier date specified, then this Agreement shall terminate and nether Buyer nor
Real Estate Purchase and Sale Agreement— Page 2 of 8 (May 26, 2006)
(between City of Kent and Applus Technologies, Inc.)
Seller shall have any further rights, duties, or obligations hereunder, except that the Earnest Money
shall be returned to Buyer and Buyer's obligation in Section 4 shall remain.
S. CONDEMNATION AND CASUALTY. Seller bears all risk of loss until Closing,and
thereafter Buyer shall bear the risk of loss. Buyer may terminate this Agreement and obtain a refund
of the earnest money if improvements on the Property are destroyed or materially damaged by
casualty before Closing, or if condemnation proceedings are commenced against all or a portion of
the Property before Closing. Damage will be considered material if the cost of repair exceeds five
percent (5%) of the purchase price stated in this Agreement. Alternatively, Buyer may elect to
proceed with Closing in which case at Closing Seller shall assign to Buyer all claims and right to
proceeds underany property insurance policy and shall credit to Buyer at closing the amount of any
deductible provided for in the policy.
6. CONVEYANCE AND CONDITION OF TITLE. The title to the Property shall be
conveyed by Seller to Buyer at closing by Statutory Warranty Deed, free and clear of all liens,
encumbrances, or defects except those described in Section 7.
7. TITLE INSURANCE. At Closing, Seller shall cause Pacific Northwest Title, 215
Columbia Street,Seattle, Washington 98104-1511,to issue standard coverage owner's policy of title
insurance to Buyer in an amount equal to the total purchase price of the Property. The cost of the
title insurance shall be paid from Seller's funds at Closing. For purposes of this Agreement, the
following shall not be deemed encumbrances or defects: rights reserved in federal patents or state
deeds, building or use restrictions consistent with current zoning,and utility and road easements of
record. If title cannot be made so insurable prior to the Closing date, unless, Buyer elects to waive
such defects or encumbrances, this Agreement shall terminate and the Earnest Money shall be
returned to Buyer.
8. CLOSING COSTS AND PRO-RATIONS. The cost of escrow shall be shared
equally between Buyer and Seller, except those fees that are expressly limited by Federal
Regulation. Seller shall pay for all applicable revenue stamps and excise tax. 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.
Real Estate Purchase and Sale Agreement— Page 3 of 8 (May 26, 2006)
(between City of Kent and Applus Technologies, Inc.)
9. CLOSING OF THE SALE. WITH THE UNDERSTANDING THAT TIME IS OF THE
ESSENCE FOR THIS AGREEMENT, this sale shall be closed on or before fourteen (14) days after
waiver of feasibility contingency outlined in Section 4(d),which shall also be the termination date of
this Agreement unless said closing date is extended in writing by mutual agreement of the parties.
When notified, the Buyer and Seller will deposit, without delay, in escrow with Closing Agent all
instruments and monies required to complete the transaction in accordance with thisAgreement.
Closing, for the purpose of this agreement, is defined as the date that all documents are executed
and the sale proceeds are available for disbursement to the Seller("Closing').
10. POSSESSION. Buyer shall be entitled to possession on dosing.
11. BOOKS, RECORDS, LEASES, AGREEMENTS. Seller shall make available for
inspection by Buyer and its agents within ten (10) days after Mutual Acceptance all documents in
Seller's possession or control relating to the ownership,operation, renovation or development of the
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Property, excluding appraisals or other statements of value, and including: statements for real
estate taxes, assessments, and utilities; property management agreements, service contracts,and
agreements with professionals or consultants; leases of personal property Yor fixtures, leases or
other agreements relating to occupancy of all or a portion of the Property and a suite-by-suite
schedule of tenants, rents, prepaid rents, deposits and fees; plans, specifications, permits,
applications,drawings,surveys,studies and maintenance records; and accounting records and audit
reports.
12. SELLER'S REPRESENTATIONS. Except as Seller has disclosed to Buyer prior to
the satisfaction or waiver of the feasibility contingency stated in Section 4 above, including
information in the books, records and documents made available to Buyer, or in the title report or
any supplemental report or documents referenced therein, Seller represents to Buyer that, to the
best of Seller's actual knowledge, each of the following selected paragraphsis true as of the date
the Agreement is signed by Seller.
(a) Seller is authorized to enter into the Agreement,to sell the Property,and to
perform its obligations under the Agreement;
Real Estate Purchase and Sale Agreement— Page 4 of 8 (May 26, 2006)
(between O y of Kent and Applus Technologies, Inc.)
(b) The documents delivered to Buyer pursuant to this Agreement comprise all
material documents in Seller's possession or control regarding the operation and condition of
the Property;
(c) Seller has not received any written notices that the Property or the business
conducted thereon violate any applicable laws, regulations, codes and ordinances;
(d) Seller has all certificates of occupancy, permits, and other governmental
consents necessary to own and operate the Pioperty for its current use;
(e) There is no pending or threatened litigation which would adversely affectthe
Property or Buyer's ownership thereof after closing;
(f) Seller will maintain the Property in present or better condition until time of
agreed possession;
(g) Seller is not aware of any concealed material defects in the Property except
those that Seller has disclosed to Buyer in writing during the Feasibility Period.
13. SELLER'S ENVIRONMENTAL REPRESENTATIONS. Seller represents that to the
best of their knowledge that they are not aware of existence of, or has caused or allowed to be
caused, any environmental condition arising or occurring during Seller's ownership of the Property
(including,without limitation,a spill, discharge or contamination). This provision shall survive the
Closing.
14. ABANDONMENT OF PERSONAL PROPERTY. Any personal property located on
the Property as of Closing shall be deemed to have been abandoned by the Seller and shall be
disposed of by the Buyer, as determined by the Buyer, at Seller's expense.
15. ASSIGNMENT. Buyer may not assign this Agreement without Seller's prior written
consent.
16. DEFAULT AND ATTORNEY'S FEES.
(a) Buyer's Default. If Buyer defaults hereunder, Seller's sole remedy shall be
limited to damages in the liquidated amount of the earnest money previously paid by the Buyer.
Buyer and Seller intend that this amount constitutes liquidated damages in order to avoid other
costs and expenses to either party in connection with potential litigation on account of Buyers'
default.
Real Estate Purchase and Sale Agreement— Page 5 of 8 (May 26, 2006)
(between City of Kent and Applus Technologies, Inc.)
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Jun 13 06 05:26p Rpplus Legal 1 312 961 0139 p.2
Buyer and Seller believe this amount to be a fair estimate of actual damages.
BUYER'S INITIALS: SELLER'S INITIALS:
6'-� 76
Suzette Cooke, Mayor Jonathan Donado, CEO
(b) Seller's Default. If Seller defaults hereunder,Buyer shall have all the rights
and remedies available at law or in equity.
(c) Attorneys Fees and Costs. In the event of litigation to enforce any of the
terms or provisions herein the prevailing party shall be awarded its reasonable costs and attorney's
fees.
1.7. NON-MERGER. The terms,conditions, and provisions of this Agreement shall not
be deemed merged into the deed,and shall survive the Closing and continue in full force and effect.
18. 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 Buyer shall be addressed as follows:
Larry Rabel, Captain
City of Kent Fire Prevention
220 4th Avenue South
Kent, Washington 98032-5895
Phone (253) 856-4400, Facsimile (253) 856-6400
And to:
Jeri Cranney of Abaco Pacific, LLC
P.O. Box 1119
North Bend,WA 98045
Phone (425)888-4055, Facsimile (425)888-4077
(b) All notices to be given to Seller shall be addressed as follows:
Applus Technologies, Inc.
444 North Michigan Avenue
Chicago, IL 60611
Phone(312) 661-1100, Facsimile (312) 661-0070
Real Estate Purchase and Sale Agreement—Page 6 of 8 (May 26, 2006)
(between Gfy of Kent and App/us Techno/ogies, Inc.)
JUN 13 106 15 57 1 312 661 0139 PAGE.02
And to:
CB Richard Ellis
Attn: Casey Trees, Geoff Pendergast, John Sullivan
16400 Southcenter Parkway #100
Tukwila, WA 98188
Phone (206) 575-2553, Facsimile (206)575-2659
Either party hereto 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 thissection.
19. AGENCY DISCLOSURE. At the signing of this Agreement,
Buyer's Agent: Jeri Cranney of Abaco Pacific, LLC
Listing Agents: Casey Trees, Geoff Pendergast, and John Sullivan of CB Richard Ellis
20. SELLER'S ACCEPTANCE AND BROKERAGE AGREEMENT. Seller agrees to pay a
commission in a total amount computed in accordance with the listing or commission agreement.If
there is no written listing or commission agreement, Seller agrees to pay a commission of 4.2% of
the sales price. The commission shall be apportioned between the Listing Agent and the Buyer's
Agent as specified in the listing or any co-brokerage agreement. Seller assigns to Listing Agent and
Buyer's Agent a portion of the sale proceeds equal to the commission. If the Earnest Money is
retained as liquidated damages,any costs advanced to Seller by Listing Agent or Buyer's Agent shall
be reimbursed or paid from the assigned proceeds, and the balance shall be paid one half to Seller
and one half to Listing Agent and Buyer's Agent according to the listing agreement and any co-
brokerage agreement. In any action by Listing Agent or Buyer's Agent to enforce this Section,the
prevailing party is entitled to reasonable attorney's fees and expenses. Neither Listing Agent nor
Buyer's Agent are receiving compensation from more than one party in this transaction.
21. ENTIRE AGREEMENT. Except as otherwise disclosed in writing to Seller or Buyer,
the Listing Agent and Buyer's Agent have not made any representations or warranties or conducted
an independent investigation concerning the legal effect of this Agreement, Buyer or Seller's
financial strength, or other matters relating to the Property, including without limitation, the
Property's zoning, boundaries, area, compliance with applicable laws, or hazardous or toxic
Real Estate Purchase and Sale Agreement— Page 7 of 8 (May 26, 2006)
(between City of Kent and Applus Technologies, Inc.)
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materials, including mold or other allergens. Seller and Buyer have each been advised to engage
qualified experts, including legal and tax advisors.
22. 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.
23. BINDING EFFECT AND SURVIVAL. This Agreement shall be binding upon parties
hereto and their respective heirs, successors and assigns.
24. DATE OF MUTUAL ACCEPTANCE. For the purposes of this Agreement,the date of
mutual acceptance of this Agreement shall be the last date on which the parties to this Agreement
have executed this Agreement as indicated below.
25. EXPIRATION OF OFFER. Seller shall have until 5:00 p.m. on June 2006, to
accept the Purchase and Sale Agreement as written, by delivering a signed copy thereof to the
Buyer or the Buyer's agent. If Seller does not so deliver a signed copy within said period, this
Agreement shall lapse and all right of the parties hereunder shall terminzte.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dateset
forth below.
BUYER: SELLERS:
CITY OF KENT / APPLUS TECHNOLO/GIIES, INC
By: c_ L-c f�` By: ( /�(QP� LUGrte
Its: lztt Cooke, Print Name: Jonathan Donado
avo Its: Chief Executive Officer
Dated: _ l-/3- o Dated: June 9, 2006
APPROVED AS TO FORM:
By:_ Z�- r f In
Kent Law Department
P\CNA\FILES\OpenFlles\107APurchaseSaleAgreement cbc
Real Estate Purchase and Sale Agreement— Page 8 of 8 (May 26, 2006)
(between City of Kent and App/us Technologies, Inc.)
7 Form WA-5(6176) He No•NCS-222379-WA1
CommRment Page No.2
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+� EXHIBIT 'A'
LEGAL DESCRIPTION:
PARCEL A:
LOTS 3 AND 4, CITY OF KENT SHORT PLAT NO. SP-81-11, (ALSO KNOWN AS BADGER NURSERY SHORT PLAT)
AND APPROVED UNDER CITY OF KENT RESOLUTION NO.SPC-82-4, RECORDED APRIL 29, 1982 UNDER
RECORDING NO. 8204290391, IN KING COUNTY, WASHINGTON.
PARCEL B:
AN EASEMENT FOR ACCESS AND UTILITIES AS DELINEATED ON SAID SHORT PLAT;
EXCEPT THAT PORTION THEREOF LYING WITHIN PARCEL A.
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