AGREEMENT BETWEEN PARK OWNER (FRIENDLY VILLAGE LLC) AND
HOME OWNERS OF FRIENDLY VILLAGE
(SIDE AGREEMENT)
This Agreement is made and entered into this _21st__ day of April, 2008 by and between Robert Chrisler and Joyce Brix, in their individual capacities, and the Friendly Village Residents Association, herein collectively referred to as the “Home Owners”; and Friendly Village LLC, herein referred to as the “Park Owner”. Home Owners and Park Owner are collectively referred to as “Parties.”
Whereas, the Home Owners and Joyce Brix reside within a mobile home park in Olympia, Washington known as Friendly Village, which is owned by the Park Owner, and is located on property, herein referred to as the “Property”, described in the attached Exhibit A, which is incorporated herein by reference.
Whereas, in 2006 Robert Chrisler and Joyce Brix, on their own behalf and on behalf of the Home Owners, did file a request with the City of Olympia to change the zoning designation of Friendly Village from Residential Multi-family (24) to Manufactured Home Park, which application identified Joyce Brix as the Authorized Representative of the Applicants, and
Whereas, the Park Owner, in the same City of Olympia zoning cycle, requested that the zoning for the Property be changed to General Commercial use, and
Whereas, the City of Olympia did not act on either request, and
Whereas, the Park Owner seeks to propose to the City of Olympia a development agreement, herein referred to as the “Development Agreement”, which would allow use of the Property under the General Commercial, High Density Corridor 4, or other commercial zoning designation adopted by the City of Olympia after the date of this Agreement that allows the same or greater range of uses and density of development, and
Whereas, the said Development Agreement includes provisions which relate to the interests of Chrisler, Brix and the Home Owners, and
Whereas, Chrisler, Brix and the Home Owners are third party beneficiaries under the Development Agreement, and
Whereas, the Development Agreement will not go into effect unless and until the Park Owner and the City of Olympia execute said agreement in the 2008 zoning cycle, which is scheduled to occur in November or December of 2008, and
Whereas, there exist issues that the parties need to resolve between the date of this Agreement and the date the Development Agreement is scheduled to go into effect, and
Whereas, it is the purpose of this Agreement to resolve said issues.
THE PARTIES AGREE AS FOLLOWS:
Section 1. Application Form. The Park Owner will submit a proposed Development Agreement (as set forth in Exhibit B) to the City of Olympia for consideration in 2008. The term of the Development Agreement will not be reduced below 20 years unless the City requires such a reduction.
Section 2. Support of the Development Agreement. Chrisler, Brix and the Home Owners agree to support the Development Agreement before the City of Olympia staff, Planning Commission and Council when it comes before each body. If the Development Agreement is changed in a significant way, Brix, Chrisler and the Home Owners reserve the right to not support it before the City of Olympia.
Section 3. Sale or Redevelopment of the Property. The Park Owner further agrees it will not sell or convey, redevelop or encumber in any significant way the Property for a period of three (3) years from the effective date of this Agreement. This shall not preclude refinancing of existing loans against the Property. The parties acknowledge that this Agreement will expire before the running of the three (3) year period described in this section. The Park Owner agrees, therefore, that the Development Agreement shall contain a similar covenant to apply to the Property for the period running from the expiration of this agreement to three (3) years from the execution of this Agreement.
Section 4. Withdrawal of Petition. In consideration for the above, Chrisler, Brix and the Home Owners hereby agree to withdraw its petition with the City of Olympia to rezone the Property to Manufactured Home Park. The parties agree that this withdrawal will also constitute forbearance of a right so as to provide consideration for third party beneficiary status under the Development Agreement.
Section 5. Plat Application. The Park Owner hereby agrees to put its plat application for the Property on hold during the term of this Agreement, so long as the City of Olympia allows this action without affecting any vesting accruing to the Park Owner by virtue of said application. The Park Owner agrees to withdraw the short plat application if and when the Development Agreement and rezone of the Property to General Commercial, High Density Corridor 4, or other commercial zoning designation adopted by the City after the date of this Agreement becomes effective.
Section 6. Covenant Running with the Land. The provisions of this Agreement shall run with the Property and shall be binding upon and inure to the benefit of the Parties, their successors and assigns.
Section 7. Remedies. The Parties agree that damages are not an adequate remedy for breach of this Agreement, and that the parties are entitled to compel specific performance of all material terms of this Agreement. The parties are also entitled to seek other remedies, including damages, to the extent otherwise provided for by law.
Section 8. Term. The term of this Agreement shall run from its date of execution to the date the Development Agreement is signed by the Owner and the City of Olympia and is effective. If the Development Agreement and the Comprehensive Plan Amendment and Rezone described in Paragraph 1 of the Development Agreement are not approved by the City of Olympia during the 2008 land use cycle, this agreement shall terminate. Such termination shall not preclude future agreements between the Parties.
Section 9. Provisions in Development Agreement. If, during the 2008 land use cycle, the City of Olympia approves the Development Agreement and Comprehensive Plan amendment and zoning to General Commercial, High Density Corridor 4, or other commercial zoning designation adopted by the City after the date of this Agreement that allows the same or greater range of uses and density of development, but deems all or part of Section 5 to be inappropriate for a development agreement and requires that it be deleted, in whole or in part, then the Parties shall enter into a private agreement containing the deleted provisions, having the same terms as the Development Agreement as originally submitted to the City and running with the land. Changes may be made to the Development Agreement (Exhibit B) prior to the date it is signed by the City and Park Owner only with the consent of both Parties.
Section 10. Governing Law. This Agreement shall be governed by the laws of the State of Washington.
Section 11. Authority. The undersigned __President___ of the Friendly Village Residents Association represents and warrants that he or she is authorized to execute this document on behalf of the Residents Association.
Dated this 21 day of April, 2008
Friendly Village LLC
By_______________________, F. Hines, on ___________________, 2008
Friendly Village Residents Association
By ______________________, T. Robinson, President, on ___________, 2008
By_______________________, S. Gill, Vice President, on __________, 2008
By________________________, Joyce Brix, on _________, 2008
By________________________, Robert Chrisler, on ____________, 2008
ATTACHMENT A
(to Home Owner/Park Owner Agreement)
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (“Agreement”) is entered into this ___ day of _______________, 2008, by and between the City of Olympia (“City”), a Washington municipal corporation, and Friendly Village LLC (“Owner”), a Washington limited liability company (collectively, “Parties”).
RECITALS
A. WHEREAS, the Washington State legislature has authorized the execution of a development agreement between a local government and a person having ownership or control of real property within its jurisdiction pursuant to RCW 36.70B.170(1).
B. WHEREAS, a development agreement made pursuant to that authority must set forth the development standards and other provisions that shall apply to, govern, and vest the development, use, and mitigation of the development of the real property for the duration specified in the agreement. RCW 36.70B.170(1).
C. WHEREAS, for the purposes of this Agreement, the term development standards (“Development Standards”) includes, but is not limited to, all of the standards listed in RCW 36.70B.170(3), except as further provided in this Agreement.
D. WHEREAS, the Parties recognize that development agreements must be consistent with the applicable development regulations adopted by a local government planning under Chapter 36.70A RCW. RCW 36.70B.170(1).
E. WHEREAS, this Agreement relates to the property (“Property”) owned by Owner and known as the Friendly Village manufactured housing park, which is more particularly described in Exhibit A to this Agreement.
AGREEMENTS
The Parties agree as follows:
1. Comprehensive Plan Amendment and Rezone. This Agreement shall become effective on the date that a Comprehensive Plan Amendment and Rezone designating the Property General Commercial, High Density Corridor4, or other commercial zoning designation adopted by the City after the date of the Agreement Bew=tween Park Owner (Friendly Village LLC) and Home Owners of Friendly Village that allows the same or greater range of uses and density of development (“CPA and Rezone”) becomes effective. If the City Council does not adopt the CPA and Rezone in 2008, then this Agreement shall be void.
2. Development Standards. The Development Standards that shall apply to the Property for the term of this Agreement (“Term”) are those contained in the Olympia Municipal Code (“OMC”) Title 14 (Environmental Protection), Title 17 (Subdivisions), and Title 18 (Unified Development Code) in effect as of the date of this Agreement. The Development Standards are attached as Exhibit B to this Agreement.
3. Vesting. This Agreement vests the Property to the Development Standards for the Term of the Agreement. Pursuant to RCW 36.70B.170(4), the City reserves the authority to impose new or different regulations only to the extent required by a serious threat to public health or safety.
4. Impact Fees and Building and Construction Codes. The Property shall be subject to the requirements of OMC Title 15 (Impact Fees) and Title 16 (Buildings and Construction) to which it would be subject in the absence of this Agreement, to the extent these requirements are consistent with the Development Standards.
5. Mitigation. Pursuant to RCW 36.70B.170(1), the Parties agree that:
a. Redevelopment. The Owner agrees that the Property will not be redeveloped with a use other than manufactured housing park during the time that Friendly Village LLC is the Owner. Redevelopment shall be defined as physical modification but shall not include application for land use and construction permits. The intent of this provision is that the Property will not be developed unless it is sold to a separate entity from Friendly Village LLC, after compliance with the provisions of Paragraph 5b.
b. Sale. The Owner agrees that it will not sell the Property for a period of three years from the date of the Agreement Between Park Owner (Friendly Village LLC) and Home Owners of Friendly Village.
c. Right of First Opportunity. In the event that at any time during the Term of this Agreement, Friendly Village LLC shall decide to place the Property for sale to a related or unrelated third party or parties, Friendly Village LLC shall first offer the Property to the owners of manufactured homes located in the Friendly Village manufactured housing park (“Residents”) at the same price and on such other terms and conditions as Friendly Village LLC shall later offer to any related or unrelated third party or parties in an arms-length transaction.
(i) Friendly Village LLC shall notify the Residents of its decision to sell the Property and the price and other terms and conditions of such proposed sale by delivering written notice to the Residents (the “Notice”) at the address set forth in Paragraph 6 of this Agreement, or at such other address as the Residents may hereafter designate in accordance with the provisions of this Agreement. The Notice shall include a Purchase and Sale Agreement (“PSA”) in the form attached as Exhibit C to this Agreement.
(ii) The Residents shall have a period of thirty (30) days following its receipt of the Notice within which to deliver to Friendly Village LLC written notice (“Residents’ Response”) that Residents will purchase the Property at the price and on the terms set forth in the Notice. The Residents’ Response may contain a counteroffer. Friendly Village LLC will give good faith consideration to the counteroffer; however, Friendly Village LLC is under no obligation to accept this counteroffer. The Residents’ Response shall include the PSA executed by a member of the Residents or third party (“Authorized Party”) with authority to act on behalf of the Residents. Such authority shall be evidenced by a written statement signed by at least three-quarters of the Residents authorizing the Authorized Party to sign the PSA on their behalf. Prior to closing, the Residents shall form a legal entity capable of holding title under Washington law. At closing, title shall be conveyed to this entity. The Residents’ Response shall be delivered to Friendly Village LLC at the address set forth in Paragraph 6 of this Agreement, or at such other address as Friendly Village LLC may hereafter designate in accordance with the provisions of this Agreement.
(iii) If the Residents reject such offer or do not deliver the Residents’ Response and executed PSA to Friendly Village LLC within the above thirty (30) day period, then the Residents shall be conclusively deemed to have rejected the Right of First Opportunity set forth in this Paragraph 5b and thereafter Friendly Village LLC may offer and sell the Property to other third party or parties free of any right or interest of the Residents; provided, however, Friendly Village LLC shall not sell the Property to a third party for less than 93 percent of the sale price contained in the Notice and PSA, without re-offering the same to the Residents on such revised terms. Friendly Village LLC covenants that it shall accept no offer to sell or convey the Property until it has complied with the terms of this Paragraph 5b. Any conveyance of the Property made in the absence of full satisfaction of this Paragraph 5b shall be void.
(iv) This Paragraph 5c applies only to Friendly Village LLC and does not bind subsequent Owners.
d. Relocation Assistance. If the Property is redeveloped in whole or in part, and some or all of the Residents are required to relocate due to the redevelopment, then the Owner shall pay relocation assistance (“Relocation Assistance”) to the Residents who are required to relocate in the amount of $2,000 per manufactured home. The Owner shall pay such Relocation Assistance to a Resident within seven (7) days of the relocation of the Resident’s manufactured home from the Property.
6. Notices. All notices required to be given hereunder shall be given in writing and shall be deemed delivered on the date of hand delivery of the notice or the date that is three days after mailing of the notice by certified or registered mail, return receipt, postage prepaid, to the parties at the addresses set forth below:
If to Owner: Friendly Village, LLC
c/o PCF Management, Inc.
8625 Evergreen Way, Suite 200
Everett, WA 98208
Attn: Fred Hines
If to Residents: _______________________
_______________________
_______________________
The parties, by notice given, may designate any further or different address to which subsequent notices are to be sent.
7. Term. The Term of this Agreement shall commence upon the effective date of the Ordinance approving this Agreement (“Effective Date”) and shall continue in force for a period of 20 years from the Effective Date.
8. Covenant Running with the Land. The provisions of this Agreement shall run with the land and shall be binding upon and inure to the benefit of the Parties, their successors and assigns.
9. Recording. This Agreement shall be recorded with the Office of the Thurston County Auditor.
10. Remedies. The Parties agree that damages are not an adequate remedy for breach of this Agreement, and that the Parties are entitled to compel specific performance of all material terms of this Agreement. The parties are also entitled to seek other remedies, including damages, to the extent otherwise provided for by law.
11. Third Party Beneficiaries. The Residents are third party beneficiaries of Paragraph 5 of this Agreement and a Resident or legal entity representing a Resident at the time of an alleged breach of Paragraph 5 of this Agreement shall be entitled to enforce Paragraph 5 of this Agreement. There are no other third party beneficiaries of this Agreement and no party other than the City, the Owner and the Residents shall be entitled to enforce any part of this Agreement.
12. Prior Agreements; Amendments. This Agreement is the full, final and complete expression of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement, and no prior agreements or understandings, promises or representations, oral or otherwise, pertaining to any such matters shall be effective for any purpose with respect to any matter covered or mentioned in this Agreement. No provision of this Agreement may be amended except by an agreement in writing signed by the Parties or their respective successors in interest and approved by the City pursuant to the process established by law for the adoption of a development agreement.
13. Severability. If any provision of this Agreement or the CPA and Rezone is determined by an administrative appellate body or court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement or the CPA and Rezone is rendered invalid or unenforceable according to the terms of any statute of the State of Washington effective after the Effective Date, and either Party in good faith determines that such provision is material to its entering into this Agreement, that Party may elect to terminate this Agreement as to all of its obligations remaining unperformed.
14. Governing Law. This Agreement shall be governed by the laws of the State of Washington.
EXECUTED as of the date first above written.
GRANTOR:
Friendly Village LLC,
a Washington limited liability company
By: ________________________________
Frederick W. Hines, its Manager
GRANTEE:
City of Olympia
a Washington limited liability company
By: ________________________________
Doug Mah, its Mayor
ATTEST:
By: ________________________________
City Clerk
APPROVED AS TO FORM:
By: ________________________________
City Attorney
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Frederick W. Hines is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it as the Manager of Friendly Village, LLC., a Washington limited liability corporation, to be the free and voluntary act of such corporation for the uses and purposes mentioned in the instrument.
Dated this ___ day of ______________, 2008.
(Signature)
Notary Public in and for the State of
Washington, residing at .
My appointment expires
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Doug Mah is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it as the Mayor of the City of Olympia, a Washington municipal corporation, to be the free and voluntary act of such corporation for the uses and purposes mentioned in the instrument.
Dated this ___ day of ______________, 2008.
(Signature)
Notary Public in and for the State of Washington, residing at .
My appointment expires
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B
DEVELOPMENT STANDARDS
EXHIBIT C
FORM PURCHASE AND SALE AGREEMENT
|