HomeMy WebLinkAbout4625 RESOLUTION N0. 4 62 5
_ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF _ �
AUBURN, WASHINGTON, APPROVING, AUTHORIZING
AND RATIFYING THE AGREEMENT FOR PURCHASE
AND SALE OF REAL PROPERTY
WHEREAS, in connection with the Aubum Environmerrtal Park, the City
of Auburn has interests in acquiring property as part of the Auburn
Environmental Park and has the opportunity to do so in connection with
transactions that had been pending for some time;
WHEREAS, through various proposals and through previous
considerations involving the purchase of said property; including considerations
in executive sessions, the City Councii has authorized the Mayor to move
forward with the purchase of the property located at 801 15�h Street Northwest,
Auburn, Washington, according to certain terms and conditions, which purchase
has been successfully negotiated and culminated; and
� : WHEREAS, the City Council is interested in ratifying and approying the _
purchase and sale of said property in accordance with the directions previously
given.
NOW, THEREFORE;THE CITY COUNCIL OF THE CITY OF AUBURN,
KING COUNTY, WASHINGTON, HEREBYRESOLVES as follows:
Section 1. That the Agreement for Purchase and Sal� of Real
Property, a copy of which is attached hereto; marked as Exhibit A and
incorporated herein by this reference, be, and the same hereby is, approved
Resolution No. 4625 �
July 14, 2010
Page 1 of 2
and the Mayor is authorized to execute the same and action taken by the Mayor
in furtherance thereof is hereby rat�ed.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation.
Section 3. This resolution shall be in full force and effect upon
passage and signatures hereon.
Dated and Signedthis ��day of , 2010.
FA
TE . LEWIS
MAYOR
ATTEST:
Danie le E. Daskam, City Clerk
;h n
• � .
APPR D O FOR :
D iel B. Hei , ity Attorney
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Resolution No.4625
July 14, 2010
Page 2 of 2
�
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
This PURCHASE AND SALE AGREEMENT (this "Agreement") i� entered into
as of the . 13f+. day of �s�, 2010, by and between the CITY OF
AUBURN, a Washington municipal rporation, as Purchaser (hereinafter the "CITY"),
and TNE AUBURN LAND COMPANY, a Nevada Limited Partnership (hereinafter the.
°SELLER°).
RECITALS
A. The SELLER is the owner of certain real property and ali improvements
thereon located in the City of Aubum, County of King, Washington, at the common
address of 801 15th Street Northwest (King County Tax Parcel No. 1221049009) which
is legally described as fotlows ("Property'�:
The northeast quarter of the southwest quarter of Section 12, Township 21
North, Range 4 East, W.M., in King Courrty, Washington;
�EXCEPT that portion condemned for State Highway unde� King •County
Superior Court Cause Number 718093 and conveyed to the City of
Aubum by Govemor's Deed recorded under King County Recording
number 7402270280;
_ AND EXCEPT portion for Railroad Right of Way. ._
B. BARGAIN SALE PURCHASE. The City acknowledges that it is Sellers
intention to effectuate a "bargain sale" of the properiy, i:e. a sale to a govemmental non-
profit organization that qualifies as a chariiy pursuant to the United States tax laws and
Irrtemal Revenue Code. The City acknowledges that, from Seller's perspecfive, the
subject sale is at a price 6elow fair market value (which, though asserted by Seller, is
not necessarily agreed to by the City), wherein the d'rfference Seller will consider a
' charitable corrtribution under applicable sections of the Irrtemal Revenue Code. The
bargain sale price of the Property of $629,800.00 (SIX HUNDRED TWENTY-NINE
THOUSAND EIGHT HUNDRED DOLLARS) is less than what the Seller contends the
fair market value of the properly would be 'rf not damaged as established by the 2010
appra"isal of Lamb Hanson Lamb Appraisal Associates, Inc. Seller adcnowledges thffi
(a) the substantiation of a charitable contribution deduction rests exclusively with.Seller
for the City's execution of Intemal Revenue Service Form 8283 that has been fully
completed and signed by Seller and Seller's appraiser, (b) the City may refuse to
execute Intemal Revenue Service Form 8283 if, in its sole discretion, the valuation of
the Property is not something with which it is not reasonably or sufficierrtly acquainted
' as to whaf the value of the Property could be 'rf the property were fully developable; (c)
at fhe request of the City, Selle� shall provide a copy of Sellers appraisal for review by
the City in conjunction with its review of the Intemal Revenue Service Form 8283; and,
(d) the seller agrees to sign a statement of difference in value acknowledging that
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
Page 1 of 11
before the sale, the owner was aware of the estimated just compensation amount and
made the choice to seli for less than the estimated fair compensa4ion volurrtarily, as an
act of free wilL
C. And SELLER desires to sell the Property to CITY, on the terms and
condfions set forth herein.
D. The Parties acknowledge that the purchase of the properiy is being
partially funded by a grant from the Washington Sfate Recreation and Conservation
Office. The Parties hereto also recognize that there may be obligations that are tied to
this grant funding, and agree 4o cooperate with any such requirements or o6ligafions,
provided that no such obligafions or requirements unduly increase the obligations or
� responsibilities of the SELLER, or decrease the purchase price to be paid to the
SELLER.
AGREEMENT
NOW, THEREFORE, for good and �aluable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, SELLER and CITY hereby
agree as follows:
1. Certain Defined Terms. For purposes of this P�qreement, 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.
1•.2 °Closing Date" means any mutually agreeable date on or before 60 (sizty)
calendar days after this Agreement has been signed by aIl parties hereto.
1.3 "Escrow" means the escrow opened with Escrow Agent for the consummation of
�the transadiomdescribed in this Agreement. ��. � -
1.4 "Escrow AgenY' means Chicago Tdle Insurance Company.
1.5 "Official Records" means the official real property records of King County,
Washington.
1.6 "Opening of Esaov�' means the date a fully executed copy of this Agreement is
deposited with Escrow/�qent.
1.7 °Permitted Exoeptions° has the meaning as set forth in Sedion 6.4 below. - ° =
1.8 "Purchase Price" has the meaning as set forth in Section 3.
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
Page 2 of 11
1.9 "T'dle Company" means Chicago Title Company.
1.10 "Title Policy" means an ALTA (1970 Form B) extended coverage owner's policy
of title insurance issued by the TiUe Company to CiTY with coverage in the amount.of
purchase prioe, showing title to fhe Property vested in CITY subject only to the
Permitted Exceptions.
2. Purchase and Sale. The SELLER agrees to sell to CITY, and CITY agrees to
purchase from SELLER, the Property upon the tertns and conditions set forth in this
Agreement.
3. Purchase Price; Cash PaymeM. The total cash purchase price for the Property
(the °Purchase Price°) shall be Six Hundred, Twenty-Nine Thousand, Eight Hundred
Dollais and No/100's ($629,800.00). The Purchase Price shall be paid to SELLER in
cash at Closing.
4. Eamest Money Deposit. On execution of this/�qreement, CITY shall deposit with
Escrow Agent Twerrty-Five Thousand Dollars and No/100's Dollars ($25,000.00) in cash
(the "DeposiY'), which shall be held by Escrow Agent as an eamest-money deposit
hereunder. The Depasit shall be held in Escrow and applied or disposed of by Escrow
Agent as provided fierein. Escrow Agent shalf place the Deposit in an interest-bearing
account approved by CITY and SELLER and all interest eamed thereon shall be added
to and become a part of the Deposit.
5 Due Diligence.
5.1 Due Diligence Contingency Waived. CITY has conduded reviews of the,site of
4he Property and has independently obtained and reViewed such documents as
SELLER would normally provide as part of a due diligence review, and CITY has
determined in its sole discretion that it intends to acquire the Property, and this Section
5.1 shall serve as notice to SELLER of such determination. CITY's due diligence
- - corrtingency is hereby satisfied and waived. ..The Deposit is nonrefundable (except as
otherwise provided herein), and CITY shall proc�ed to Closing.
Upon such satisfaction and waiver, the Deposit is nonrefundable (except as otherwise
provided herein), and CITY shall proceed to Closing.
5.2 Tide Commitment. Promptly after mutual exeartion of this Agreemerit, CITY
shall obtain an extended preliminary tiUe insuranc� commitment covering the Property
from the Title Company (the °Comm'�trnenY�, together with copies of all recorded
documents listed as special exceptions therein. Approval by CITY of the exceptions to
" title set forth in the Commitment (other than as hereinafter set forth) shall be a condfion
precedent to CITY's obligation to purchase the Property. Unless CITY gives written
notice that it disapproves the exceptions to title shown on the Comm'�tment (other than
the excepdons to title approved by CITY and descn'bed in Section 6:4 below), stating
AGREEMENT FOR PURCHASE AND SALE OF REAI PROPERTY
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the exceptions so disapproVed, within thirty (30) days after the date of this Agreement,
CITY shall be deemed to have approved such exceptions. If CITY disapproves any title
ezceptions; SELLER shall have a ten (10) day period after its receipt of CITY's written
notice of disapproval of the same within which to provide written notice to CITY as to
which of such disapproved title exceptions the SELLER wilt remove (or cause to be
removed) from title; provided, however, that SELLER shall not be required to actuatly
remove such exception(s) un4il Closing. If, for any reason, SELLER's notice given
pursuant to the immediately preceding serrtence does not covenant to remove all of
CITY's disapproved title exceptions at or prior to Closing, CITY shall have the right to
terminate this Agreement by written notice to SELLER and Escrow Agent given within
ten (10) days after the earlier of the expiration of such ten (10) day period or the date
SELLER informs CITY that 'it does not intend to remove the disapproved Rems (the
"Termination Notice'�. CITY's failure to deliver the Termination Notice wfthin such ten
(10) day period shall be deemed CITY's approval of eny such previously disapproved
title excepfion. If CffY deliyers the Tertnination Notice within such ten (10) day period,
the obligation of SELLER to sell, and CITY to buy, the Property as herein provided shall
terminate and the Deposit shall be retumed to. CITY. CITY shall have the option to
waive the condition precedent set forth in this Section 5.2 by written notice to SELLER.
In the event of such waiver, such cond'Rion precedent shall be deemed satisfied.
5.3 Permitted Exceptions. In addition to such other exceptions to title as may be
approved by CITY pursuant to the provisions of Section 5:3 above, CITY shall acoept
tftleto the Property subject to the following (collectively, the "Permitted Exceptions"):
5.3.1 The prfnted 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
5.3.2 Items created by, or on behalf of, CITY.
5.4 No New Leases or Corrtracts. Prior to Closing, SELLER shall not enter into any
new leases; contracts or agreements affecting the Property without the ,prior written . -
consent of CITY, except the SELLER may enter'into interim coritracts or agreements in
connection with the management, maintenance, repairorpreservation of the Property in
the normal course of business if each such contract or agreement expires or is
terminated at or prior to Closing.
6. CITY's Right of Entry. CIN, and its agerrts and consuftants, at CI7Y's sole
expense and risk, may enter the Properly during the term of this P�qreement at
reasonable times scheduled in advance with SELLER for the purpose of CITY's due
diligence study.of the Property. CITY shall (a) exercise care at all times on or abou�the
Prop"erty, and j6) take precautions for the prevention of injury to persons or damage to
property on or about the Property. CITY shall keep the Property free from aIl
mechanics', materialmen's and other liens, and all claims thereof, arising from arry work
or labor done, services performed; or materials and supplies fumished in connection
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
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with CITY's actions in the exerase of its right of entry on the Properly, and CITY shall
indemnify and defend SELLER against and hold SELLER harmless from all such liens
and claims. If this transaction fails to close for any reason other than a defautt by
SELLER hereunder, CITY shall fumish SELLER with a copy of alt such inspections,
studies and surveys and shall�assign or quitclaim all of CITY's right,title and inte�est in
and to arry permits, approvals, or permit or approval applications.
7. Closing.
7.1 Time for Closing. This purchase and sale shall be dosed in the office of Escrow
Agent on the Closing Date. CITY and SELLER shall deposit in Escrow with Escrow
P�qent 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 SELLER.
72 Closing.Costs.
.- 7.2.1 SELLER's Costs. SELLER shall pay (a) the premiums for the standard coverage
portion of the Tdle Policy, inGuding applicable sales taz, (b) one-haff (%:) of aIF escrow
fees and costs, (c) SELLER's share of prorations; ff any, and (d) all assessments for
locaf improvement or special benefit districts.
7.22 CITY's Costs. CITY shall pay (a) one-h_alf (%z) of all escrow fees and costs, (b)
the recording fees for the Deed, (c) CITY's share of prorations, if any, and (d) any
additional pnemium charged for extended coverage for the Tdle Policy and any
additional endorsements or co"verage CITY may require, including applicable sales tax.
7.2.3 Other Costs. CITY and SELLER shall each pay its own legal fees and fees of its
own consuttants. All other costs and expenses shall be allocated between CI7Y and.
SELLER in accordance with the customary practice of King County, Washington.
7.3 Real Property Taxafion. SELLER shall be responsible for all real property taxes
due and owing prior to the Closing.
7.4 Closing Documents.
7.4.1 SELLER's Documents: At Closing, SELLER shall deliver to Escrow AgeM the
following instrumeMs and doaiments:
7.4.1.1 An executed and acknowledged de�d conveying the Property to CITY;
7.4.1.2 An executed real estate excise tax affidavit to accompany the Deed; and
AGREEMENT FOR PURCHASE AND SALEAF REAL PROPERTY
Page 5 of11
7.4.1.3 An executed nonforeign person affidayit in the form required undec
Section 1445 of the Intemal Revenue Code.
7.4.2 CITY's Documents. At Closing, CITY shall deliver to Escrow P�qent the
following funds, instruments and documents:
7:4.2.1 The balance of the Purchase Price in acxordance with Section.3;
7.4:2.2 CITY's share of costs and expenses.as determined in accordance with
Section 72; and
7.4.2.3 The executed real estate excise tax,affidavit referenced in Section 7.4.1.2
above.
7.5 Possession. CIIY shall be entitled to possession of the Property upon Closing.
8. Title Insurance. As soon as available after Closing, SELLER shall provide to
CITY the Title Policy, dated as of the Closing Date, subject only to the Permitted
Exceptions. _-
9. Representations and Warranties.
9.1 SELLER's Representations and Warranties. In addition to any othen
representatior�s or warranties�of SELLER elsewhere in this /�qreement, SELLER
represents and warrants to CITY now, and as of the Date of Closing, that:
9.1.1 Authority. SELLER, and the person signing on behalf of SELLER, has full power
and authority to execute this Agreement and perform SELLER's obligations hereunder,
and aIl neoessary action to authorize this transaction has been taken, except: as
specifically provided herein.
9.12 HBzardous Substances: SELLER has not received notfication of any kind-from
any govemmer�tal agency suggesting that the Property is or may be targeted for a
Hazardous Substances cleanup; to the best of SELLER's knowledge the Property has
not been used (a) for the storage, disposal or discharge of oil, solverrts, fuel, chemicals
or any type of toxic, dangerous, hazardous or biological waste or substance
(collectively, "Hazardous Sub§tances'�, or (b) as a landfill or waste dispasal. site; to the
best of SELLER's knowledge the Property has not been contaminated with any
Hazardous Substances; .and to the best of SELLER's knowledge, there are no
unclerground storage tanks on the Property.
. . ..
9.1.3 Oth�Rights. No person or entity has arry right to lease or purchase any interest -�-
in the Properly or any part thereof.
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
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�
9.2 CITY's Representations and Warranties. In addition to any other representations
and warranties of CITY elsewhere in this Agreement, CITY represents and warrants to
SELLER now, and as of the Date of Closing, that (a) CITY has full power to execute,
deliver and carry out the terms and provisions of this Agreement, and has taken all
necessary action to authorize the execution; delive_ry and performance of this
Agreement; and (b) the individual executing this Agreement on behalf of CITY has the
authority to bind CITY to the terms and conditions of this Agreement.
9.3 "AS IS" CONDITION OF PROPERTY. THE PURCHASE PRICE REFLECTS
THAT THE PROPERTY IS BEING'PURCHASED BY CITY ON AN "AS IS° "WHERE IS"
AND "WITH ALL FAULTS" BASIS, EXCEPT TO THE EXTENT OF
REPRE8ENTATIONS AND WARRANTIES SPEGIFICALLY MADE BY SELLER
HEREIN OR IN THE WARRANTY DEED OR OTHER DOCUMENTS TO BE
DELNERED TO CITY AT CLOSING. CITY HEREBY WAIVES AND RELINQUISHES
ACL RIGHTS AND PRIVILEGES ARISING OUT OF, OR WITH RESPECT TO, ANY
REPRESENTATIONS, VVARRANTIES 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 SELLER 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 SELLER AT CLOSING.
EXCEPT TO THE EXTENT OF ANY REPRESENTATIONS OR WARRANTIES SET
FORTH ELSEWHERE IN THI8 AGREEMENT OR IN ANY DOCUMENTS TO BE
EXECUTED AND DELIVERED BY SELLER AT CLOSING, CITY HAS NOT REUED
UPON AND WILL NOT RELY UPON, AND SELLER EXPRESSLY DISCLAIM3, 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, OGCUPANCY OR FOR CITY'S INTENDED USE OR
FOR ANY USE WHATSOEVER; (II) AI�Y 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; (I� ACCESS TO ANY PUBUC OR
PRNATE SANITARY SEWER SYSTEM; (� THE FAGT 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, IN,C_L.UDING WITHOUT GMI�ATION ASBESTOS OR FORAAALDEHYDE,
OR THE PRESENCE OF ANY ENVIRONMENTALLY HA�ARDOU8 WASTES OR
MATERIALS ON OR UNDER THE PROPERTY. _. WITHOUT LIMITING THE
. _ _
GENERALITY OF THE FOREGOING, EXCEPT TO THE EXTENT OF ANY
AGREEMENT FOR FURCHASE AND SALE OF REAL PROPERTY
Page 7 of 11
REPRESENTATIONS OR WARRANTIES SET FORTH ELSEWHERE IN THIS
AGREEMENT OR IN ANY DOCUMENTS TO BE EXECUTED AND DELNERED BY
SELLER AT CLOSING, SELLER SHALL HAVE NO LIABILITY TO CITY WITH
RESPEGT TO THE CONDITION OF THE PROPERTY UNDER COMMON LAW, OR
ANY FEDERAL, STATE, OR LOCAL LAW OR REGULATION, INCLUDING BUT NOT
LIMITED TO TIiE COMPREHENSNE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT OF 1980 AS AMENDED, 42 U.S.CA.
SECTIONS 9601 ET SEQ., AND THE WASHINGTON' MODEL TOXICS CONTROL
ACT ("MTCA°), RCW 70.105D. CITY HEREBY RELEASES AND WANES ANY AND
ALL CLAIMS WHIGH THE CITY HAS OR MAY HAVE AGAINST SELLER UNDER ANY
OF THE FOREGOING LAWS OR WITH RESPECT TO THE CONDITION OF THE
PROPERTY, EXCEPT TO THE EXTENT OF ANY CLAIMS CITY MAY HAVE ARISING
FROM ANY EXPRESS REPRESENTATIONS, WARRANTIES OR COVENANTS OF
SELLER UNDER THIS AGREEMENT OR ANY DOCUMENTS TO BE EXECUTED
AND DELNERED BY SELLER AT CLOSING. CITY i4CKNOWLEDGES TO SELLER
THAT CITY IS GIVEN THE OPPORTUNITY UNDER THIS AGREEMENT TO FULLY
INSPECT THE PROPERTY AND CITY ASSUMES THE RESPONSIBILITY AND RISKS
OF ALL DEFECTS AND CONDITIONS, INCLUDING SUCH DEFECTS AND
CONDITIONS, IF ANY, THAT CANNOT BE OBSERVED BY SPECTION, _
SUBJECT TO THE EXCEPTIO OF RIGHTS EXPRESSLY F TH BOVE.
SELLER: CITY:
IF A PHASE I ENVIR MENTAL SITE ASSES REPORT OR OTHER
ENVIRONMENTAL STUDY OR REPORT (COLLECTIVELY, THE "PHASE I REPORT')
HAS BEEN DELIVERED BY SELLER TO CITY, THEN, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, BY CLOSING THE TRANSACTION AS
CONTEMPLATED HEREIN, CITY AGREES THAT, EXCEPT TO THE EXTENT
EXPRESSLY CONTRARY TO ANY REPRESENTATIONS, WARRANTIES OR
COVENANTS OF SELLER SET FORTH IN THIS AGREEMENT: (A) CITY SHAtL BE
DEEMED TO HAVE ACCEPTED ALL RISK ASSOCIATED WITH ADVERSE
PHYSICA'L CHARACTERISTICS AND EXISTING ENVIRONMENTAIc CONDITIONS
THAT MAY OR MAY NOT HAVE BEEN REVEALED BY CITY'S INVESTIGATION OF
THE PHASE I REPORT, AND (B)AS BETWEEN SELLER AND CITY, CITY SHALL BE
DEEMED TO HAVE ACCEPTED ALL COSTS AND LIABILITIES ASSOCIATED IN ANY
WAY WITH THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE
FROPERTY. CITY ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES REGARDING THE TRUTH, ACCURACY OR
THOROUGHNESS OF THE INVESTIGATION; PREPARATION OR CONTEN7' OF
THE PHASE 1 REPORT, OR THE COMPETENCE OR ABILITY OF THE PERSONS
OR COMPANIES PREPARING SUCH REPORT. CITY AGREES THAT, BY,CLOSING
THE-�ANSACTION CONTEMPLATED HEREIN; CITY WILL HAVE=• HAD AN--
OPRORTUNITY TO REVIEW THE ABOVE REPORT_PRIOR TO THE CLOSING DATE
1N ORDER TO MAKE AN INDEPENDENT VERIFICATION OF THE INFORMATION
CONTAINED THEREIN, AND THAT CITY AND ITS ENVIRONMENTAL
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
Page 8 of 11
CONSUCTANTS WILL HAVE HAD AN OPPORTUNITY TO CONDUCT TESTS ON
THE PROPERTY.
10. Maintenance of Properly; Risk of Loss, Condemnation.
10.1 Mairrtenance of Property. From the date of this AgreemeM until the Closing Date
(or any earlier termination of this Agreement), SELLER agrees to maintain the Property
in substan6ally the same condition exisUng as of the date hereof, ordinary wear and
tear;damage by casualty excepted.
10.2 Risk of Loss; Condemnation. Risk of loss of or damage to the improvements on
the Property shall be bome by CITY at all times and no event of casuaity or damage
shall affect the parties' obligations hereunder or the Purchase Price, however, CITY
shall have the right to receive any insurance proceeds due SELLER in connection with
any casualty or damage and SELLER hereby covenants to maintain commercially
reasonable casualty insurance in place with respect to the Property at all times prior to
Closing. SELLER shall promptly notify CITY of any condemnation or eminent domain
proceeding which affects the Properly, and SELLER covenants and agrees not to
- ' commence or pursue any such action. In the event of an�r condemnation or eminent
� domain proceeding by any enfity other than SELLER, or a deed in lieu or under threat
thereof, which affects a material portion of the Property, CITY may elect e"ither to
terminate this Agreement, or to purchase the Property in the condition existing on the
Closing Date without adjustment of the Purchase Price. lf CITY elects to tertninate this
Agreement, the Deposit shall be retumed to CITY. If CITY elects to purchase the
Property, SELLER shall not be liable to restore same, and CITY shall be entitled to arry
condemnation award or payment in lieu thereof payable to SELLER in its capacity as
the owner thereof.
11. Default.
11.1 Time of Essence. Time is of the essence of this Agreement.
., ,
11.2 SELLER's Remedies for CITY's Defauft and Failure to Close. If the CITY fails to
complete the purchase of the Property in accordance with this �qreement, SELLER's
remedies shall include (a) the right to retain the Deposit as liquidated damages and (b)
the right to specfic performance, to require the City to complete the purchase of the
Property under the terms hereof.
12.3 CITY's Remedies for SELLER's Default If SELLER fails to complete the sale of
the Property in acxordance with this Agreement, CITY shall have and may enforce the
following exclusive remedies: (a) seek speafic perfortnance; or (b) seek rescission of
' this Agreemept and receive a refund of ffie Deposit' " �
12.4 Specfic Performance. Notwithstanding any other options orremedies available
hereunder, it is mutually agreed that in the evenf that any parly fails to comply with the
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
Page 9 of 11
terms of this agreement or with any term therein, then any other party hereto may at the
parly`s option take legal action to er�force specfic performance of the terms hereof.
13. 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 profess'ional messenger or courier service) or registered or
certified mail, postage-prepaid, retum-receipt reguested. Notice shall be deemed to
have been given if personally delivered, upon receipt; and if sent by mail, two (2) days
after duly deposited in the U.S. Mail. The parties' respective addresses for notices are
as follows:
If to CITY: With copies to:
City of Aubum . City Attomey's Office
Human Resources Department City of Aubum
25 West Main Street 25 West Main Street
Aubum, WA 98001�1998 Aubum, WA 98001-4998
. Attn: Director of Human Resources Attn: City Attorney
If to SELLER: With copies to: .
Aubum Land Company Steven A. Reisler
Atfi: Donald Dombrowski, MD Attomey at Law
7545 Spanish Bay Road 4500 San.d Point Way NE Ste 250
Las Vegas, Nevada 89113 Seattle,WA 98105-3941
Notice of change of address shall be given by written notice in the manner detailed in
tfiis Section 13.
14. General. This is the entire agreement of CITY and SELLER with respec�.to 4he
matters covefed hereby and supersedes all prior agreements betinreen them, written or
oral. This Agreement may be modfied only in writing, signed by CITY, and SELLER.
Any waivers hereunder must be in writing. No waiver of any right or remedy ia the
event of default hereunder shall constitute a waiver of such rigM or remedy in the event
of any subsequent default: This Agreement shall be govemed by the laws of the State
of,Washington: This /�qreement is for the benefit onty 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 unenforceabil'ity of any
provision of this Agreement shall not affect the validify or enforceabil'ity 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 tFie same
insfivroe►rt.
- . _ ..- ,.. a ._.s.�;.. ,,,.
.. .�.-
15. Commissions. SELLER represents to CITY that SELLER has engaged no
broker, agent or finder in conneotion with the negotiations leading to this Agreement.
CI7Y represents to SELLER that.CITY has noY engaged or in any way dealt with any
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
Fage 10 of 11
broker; agent or finder in connecfion with the negotiations leading to this Ptiqreement.
Each party hereby agrees to indemnify, defend and hold the other party harmless from
and against any claims for broker's, agenYs, or findeYs fees or commissions arising
from or through the actions of the indemnifying party.
16. Attomeys' Fees. In the event suit or action is instituted to interpret or er�force the
terms of fhis�greement, the prevailing party therein shall be entitled to recover from the
ofherparty such sum as the Court may adjudge reasonable as attomeys'fees, including
fees incuRed at trial, on any appeal and in any pet�ion fo'r review.
17. Exclusivity. During the tertn of this �greement SELLER shall not market nor list
the Property for sale, nor accept arry offers from third parties with respect to sale of the
Property.
18. Reservation of Police Power. Notwithstanding anything to the contrary set forth
herein, SELLER understands and acknowledges that the CITY's authority to exercise its
police (regulatory) powers in accordance with applicable law shalf not be deemed
limited by the provisions of this Agreement.
19. City Council Approval. The signature of the Mayor of_the City of Aubum hereon
binds the City of Aubum as purchaser herein and acknowledges the approval of the City
Council of the purchase Agreement.
SIGNED in duplicate original as of the date first above written. '
CITY OF A THE AUBURN LAND COMPANY
i
. �-� � / �.
By
Peter B. Lewis, Aubum Mayor Name �0 � S. �� e2°�'��
�, -
ritle PHie-r•veiz
ATTEST:
/C�� �����.�--�
Danielle E. Daskam,Aubum Cily Cle�lc
APPROVED AS TO FORM:
w- , _.
� Daniel B. eid,Aubum Cily Attomey
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
Page 11 of 11
� \ * �*
�' CITY.OF J_�
Peter B. Lewis, Mayor
WASHINGTON 25 West Main Sfreet * Aubum WA 98001-4998 * www.aubumwa.gov * 253-931-3000
July 8, 2010
Donald Dombrowski, MD �
Aubum Land Company
7545 5panish Bay Road
Las Vegas, Nevada 89113
Steven A. Reisler
Attomey at Law
4500 3and Point Way NE Ste 250
Seattle, WA 98105-3941
Re: Letter of Understanding
Gentlemen:
This letter communicates the City of Aubum's commitmenY to purchase the Aubum Land
Gompany properly described in the purchase and.sale agreement included with this letter,
and the City's commitment to conclude the sale in accordance therewith. Once the property
is no longer encumbered by King County Superior Gourt Cause No. 07-2-16064-7 KNT, the
City is not aware of any remaining contirigencies that would prevent closing of the purchase
and sale agreement, In order to ensure dismissal of 4he lawsuit, which benefits the City and
the State, and to ensure payment of the full purchase price, which benefits the Auburn Land
Company, all fhree parties agree, 6y fhe'ir signatures below, to fhe additional settlemeM
terms coritained in this letter.
The parties had originally approached the purchase and sale of the property as part of a
settlement of the lawsuit involving the same property. However, it is advantageous for the
City of Aubum to settle the lawsuit before closing the purchase and sale to clear fhe
property's title. This letter is provided to induce the Aubum Land Company to settle the
lawsuk and close the sale of the property to the City separately. The City will compy with
bofh fhe settlement agreemeM and the real estate Furchase and Sale Agreemerrt: The City
has concluded its due diligence and waived any ob}ections to title, other than the
encumbrance of the lawsuit; after the lawsuit is dismissed and no longer appears as an
encumbrance on the title, the City witl have the funds to purchase the property and will
close as soon thereafter as reasonably possible. You may rely on the representations in this
letter as a commitment by the City to purchase the property as described in the Purchase
and Sale Agreement, made w'ith the concurrence, authority and approval of the Aubum City
Council.
The City of Aubum intends to include the property in its Aubum Environmental Park..
Addfionally, the City and the Washington State Department of Transportation are
negotiating agreements, and have every intention of implementing such ag�eements, that
will ulfimatey transfer to the City environmental mitigation sites owned by the State, after
those sites are certified by the agency requiring mitigation. The land the State will transfer is
within a parcel generally bordered on the East by SR 167, on the 1Nest by SR 181, and on
AUBURN * MORE 1"HAN YOU IMAGINED
Letter of Understanding
Ta Donald Dombrowski,MD
Md To: Steven A Reisler
July 8, 2010
Pag82 of 3
4he Nnrth by 15th Street NW; this transfer is specfied with more particularity in the
agreemeM between the City and the 3tate. In connection therewfth, upon concluding its
purchase of the Aubum Land Company property, the City of Aubum shall convey to the
state Department of Transportation a drainage easement on the former Aubum Land
Company property. If the City does not complete its purchase of the Aubum Land Company
property, tlie State witl have no obligation to transfer the above-referenced land.
The City will conclude the purchase as soon as possible after the property's title report no
longer refers to the lawsuit as an encumbrance, and you shall be entitled to enforce in court
your right to conclude the sale should the City fail, for any reason, to complete the
purchase..
It is further agreed and understood that the dismissal of the lawsuit shall� be without
prejudice, but Aubum Land Company may re-file it ony if the.City fails to close the property
purchase. Upon dismissal without prejudice, alCof Aubum Land Gompany's.claims and all of
the City and State's defenses or counter-claims currenUy set forth in the lawsuit or prese.ntly
related thereto shall be tolled from the time of such dismissal.until the lawsuit is re-filed;
should that occu� as a resuft of the parties' failure to conclude the agreements between
� fhem, so that the parties are in the same position with respect to the claims and defenses
as they would have been had the lawsuit not been dismissed. But it is further agreed and
understood that when the City closes its purchase of fhe Aubum Land Company property,
Plaintiff agrees to forever give up and release its right to re-file the lawsuft.
It is understood and agreed by the parties that upon the City closing the purchase of the
Aubum Land Company property as agreed and the separate payment of the $75,000
referenced in the parties' Agreement Settling Lawsuit Wi4hout Prejudice (which $75,000
dollar payment will be made imroediately upon execution by all parties of the settlement
agreement), Aubum Land Company also fully releases and forever discharges the City and
the State from and against any and all past, present or future claims, demands, actions,
rights, causes of action, obligations, costs, expenses, damages, losses, and liabilities, of
any kind or nature whatsoever, based on torf, contract, ciyil rights law, the legal theories
raised in the dismissed cause, or other theory of recovery, including, but not limited to,
claims under 42 U.S.C. § 1983, existing, claimed to exist, or which can hereafter ever arise
out ofior resuk from or in connection with any past, current, or future act, error, or omission
relating to Aubum Land Company's ownership of the property, the City's and the;State's
actions or inactions claimed to affect the property 'in any way, the facts alleged in the
Aubum Land Company's previously filed claims fo� damages, or the facts alleged in tfie
aboVe-described Ilawsuit. This release fuly protecfs and fully binds fhe officials, .agents,
servants, employees, stockholders, representatives; sureties, attorneys, predecessors,
successors, and assigns of the City, State, and Autium Land Company, and all other
persons, firms, or corporations wifh whom any of the former have been, are now, or may
hereafter be affiliated. '
Letter of Understanding
To: Donald Dombmwski, MD
And To: Steven A Reisler -
July S, 2010 .
Page 3 of 3
If this is acceptable, please-sign where indicated below and retum a copy to me. By cc`ing
the State �Department of Transportation, f am atso asking fo� their concurring signature
hereon as well. ,
S�n " � �
�
te . Lewis, Mayor
City of Aubum
Reyiewed and approved as to form:
� Da iel . eid, CityAttomey
City of Auburn �
cc: � Washington State Dept. of Transportation Transportadon and Public Construction Division
NW Region Real Estate ServicesManager Washington State Attomey General's Office
15700 Dayton Avenue Nortfi P.O. Box 40113
P.O. Box 33031D Olympia,WA 98504-A113
Seattle,WA 98733-9710
THE AUBURN LAND COMPANY STATE OF WASHINGTON
DEPT OF TRANSPORTATION
B���i�� �f� � gY
Name �. DO �IQv�tJS�� Name
Title �iL�a.t. Title
Date 7��2�/� Date
STATE OF WASHINGTON
DEPT OFTRANSPORTATION
By
Name .
Title
Date
* �*
CITY OF J *
Peter B. Lewis, Mayor
� WASHINGTON 25\!VestMnlnSheet s Aubum WA98001-4998 * www.aubumwa,gov * 253-931-3000
July 8, 2010
Donald Dombrowski, MD
Aubum Land Company
7545 Spanish Bay Road
Las Vegas, Nedada 89113
Steven A. Reisler
Attomey at Law
4500 Sand Poirit Way NE Ste 250
Seattle, WA 98105-3941
Re: Letter of Understanding
Gentlemen:
This letter communicates the City of Aubum's commitment to purchase the Aubum Land
Company property described in the purchase and sale agreemeM included with this letter,
and the City's commitrnent to conclutle 4he sale in accordance therewith. Once the property
is na longer encumbered by King Gounty Superior Court Gause No. 07-2-160647 KNT, the
City is not aware of any rerriaining contingencies that virould°prevent closing of the pu�chase.
and sale agreement. In order to ensure dismissal of 4he lawsuit, which benefits the City and
the State, and to ensure payment of the full purchase price, which benefits the Aubum Land
Company, all three parties agree, by their signatures below, to the additional settlement
terms contained in this letter.
The parties had origina!ly approached the purchase and sale of the property as part of a
settlement of the lawsuit involving the same property. However, it is advantegeous for the
City of Aubum to settle the lawsuit before closing the purchase and sale to clear the
property's title. This letter is provided to induce the Aubum Land Company to settle the
lawsuit and close the sale of the property to the City separately. The City will compty with
bofh the settlement agreemenY and 4he real estate Purchase and Sale Agreemerrt. The City
has concluded its due diligence and waived any objections to title, other than the
encumbrance of the lawsuit; after fhe lawsuft is dismissed and no longer appears as an
encumbrance on the title, the City will have the funds to purchase the property and will
close as soon thereafteras reasonably possible. You may rely on the representations in this
lette.r as a commitment by the City to purchase the property as described in the Purchase
and 8ale Agreement, made wRh the concurrence, authority and approval of the Auburn City
Council.
The City of Auburn intends to include fhe property in its Aubum Environmental Park.
Additionally, the City and the Washington State Department of Transportation are
negotiating agreements, and have every intention of implerrienting such agreements, that
will ul6mately transfer to ttie City enVironmental mitigation sites awned by fhe State, after
4hose sites are cefified by the agency reguiring mitigation..The land the State will transfer is
within a parcel generallybordered on the East by SR 169, on the Westby SR 181, and on
• �J$LJj� * MORE 7'HAN YOU IMAGINED
Letter of Understanding
To: Donaid Dombrowski, MD
And To:Steven A Reisler
July 8,2010
Page 2 of 3
the North by 15th Street NW; this transfer is specified with more particutarity in the
agreemeM between the City and the State. In connection therewith, upon concluding its
purchase of the Aubum Land Company property, the Cily of Aubum shall convey to the
state Department of Transportation a drainage easement on the former Auburn Land
Company property. If the City does not complete its purchase of the Aubum Land Company
property, the State wilf have no obligation to transfer the above-referenced land.
The City will conclude the purchase as soon as possible after the property's title report no
longer refers to the lawsuit as an encum6rance, and you shall be entitled to enforce in court
your right to conclude the sale shauld the City fail, for any reason, to complete the
purchase.
It is further agreed and understood that the dismissal of the lawsuit shall be without
prejudice, but Aubum Land Company may re-file if'nnly'if�the City fails to close the property
purchase. Upon dismissal without prejudice, all of Aubum Land Company's claims and atl of
the Ciry and State's defenses or counter-claims currenty set forth in the lawsuit or presently
related thereto shall be tolled' f[om the time of such dismissal until the lawsuit is re-filed,
should that occur as a result of the parties' failure to conclude the agreements between
them, so that the parties are in the same position with respect to 4he claims and defenses
as they would have been had the lawsuit not been dismissed. But it is further agreed and
understood that when the Citycloses its purchase of the Auburn land Company property,
Plaintiff agrees to forever give up and release its right to re-file the lawsuit.
It is understood and agreed by the parties that upon the City closing the purchase of the
Aubum Land Company property as agreed and the separate payment of the $75,000
referenced in the parties' Agreement Settling Lawsuit Without Prejudice (which $75,000
dollar payment will be made immediately upon execution by all parties of the settlement
agreement), Aubum Land Company also fully releases and forever discharges the City and
the State from and against any and all past, present or future claims, demands, actions,
rights, causes of action, obfigations, c�sts, expenses, damages, losses, and tiabilities, of
any kind or nature whatsoever, based on tort, contract, civil rights law, the legal theories
raised in the dismissed cause, or other theory of recovery, including, but not limited to,
claims under 42 U:S.C. § 1983, existing, claimed to exist, or which can hereafter ever arise
out of or result from or in connection with any past; current, or future act, error, or omission
relating to Auburn Land Cortipany's ownership of the property, the City's and the State's
actions or inactions claimed to affect the property in any way, the facts alleged in the
Aubum Land Company's previously filed claims for damages, or the facts alleged in the
above-described lawsuit. This release fully protects and fully binds the officials, agents,
servants, employees, stockholders, representatives, sureties, attomeys, predecessors,
successors; and assigns of the City, State, and Aubum Land Company, and all other
persons, firms, or corporations wi4h whom any of the former have been, are now, or may
hereafter be affiliated.
LeCer of Understanding
To: Donald Dombrowski, MD
Md To: Steven A Reisler
July 8,2010
Page 3 of 3
If this is acceptable, please.sign where indicated below and return a copy to me. By cc'ing
the State Department of Transportation, I am also asking for their concurring signature
- hereon as well.
Since ,
� _
Pe r B. Lewis, Mayor <_. ~
City of Aubum ` '. , _ ' :
Reviewed and approved as to form: :- � . '
't+�+! Da I , ity Attomey
City of Aubum
cc: Washington Statg.Dept of TransportaUon Transportation and Public Construction,Diyision
NW Region Real Estate 8ervices Manager Washington State Attomey General's Office
15700 Dayton Avenue North P.O. Box,401'13 '
P.O. Box 330310, . Olympia,WA. 985D4-0113
Seattle,WA 98133-9710
TNE AUBURN LAND COMPANY STATE OF WASHINGTON
DEPT OF TRANSPORTATION
By By°������� �
Name Name �i.�4=el/ S �it�-F
Title Title 61-Q�— S rio.�%ha
Date Date 7�Z�7�
STATE'OF WASHINGTON
DEPT OF TRANSPORTATION
By C•
Nam - TeHN G.. ►.A IL.�p�1
Title D 111o.t�t - Q.i1�i rnd�w�
�
Date ���-�-� t o
�
/� Q p�ove d as -(o ;
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io,,. �4. N �{I,,,�,p, Ar/!�G �xuos