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RESOLUTION NO. 5788
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR
TO EXECUTE, ON BEHALF OF THE CITY, A PURCHASE
AND SALE AGREEMENT FOR COMMERCIAL PROPERTY
OWNED BY FEENIX PARKSIDE LLC LOCATED AT 2802 —
2826 AUBURN WAY NORTH
WHEREAS, the City leases a portion of the 2802 — 2826 Auburn Way North
("Property") from Feenix Parkside LLC; and
WHEREAS, the City operates a Community Court and a "Resource Center" at
the Property for those in the Auburn Community experiencing, or on the verge of
experiencing homelessness, including providing space for both a Day and Night Shelter,
and a Warming and Cooling Center. The City also subleases and licenses portions of its
leasehold to various service providers, including the Auburn Food Bank, that provide
critical services to the most vulnerable populations of the Auburn Community; and
WHEREAS, the City's lease has only a specific number of years remaining on its
term; and
WHEREAS, the City believes that purchasing the Property as a way to protect
the location and operations of those services and the service providers providing those
services, is in the best financial, health, and service interest of the public; and
WHEREAS, Under the threat of condemnation, Feenix Parkside LLC has agreed
to sell the Property to the City under those terms and conditions described in the
attached Purchase and Sale Agreement; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Resolution No. 5788
May 23, 2024
Page 1 of 2
Section 1. The Mayor is (i) authorized to execute the purchase and sales
agreement attached as Exhibit A (the "Agreement"), and any future amendments to the
Agreement, as appropriate, so long as those amendments do not increase the purchase
price of the Property; and (ii) to execute all necessary documents to complete the
closing of the purchase transaction to acquire the Property consistent with the terms
and conditions of the Agreement.
Section 2. The Mayor is authorized to implement those administrative
procedures necessary to carry out the directives of this legislation.
Section 3. This Resolution will take effect and be in full force on passage and
signatures.
Dated and Signed this 21st day of October, 2024.
CITY OF AUBURN
N A NCY :" '. S, MAYOR
•
ATTEST: APP e ED A JO FAA'/' :
—/
2S-4::".%xw%....—Caurns
Shawn Campbell, MMC, City Clerk ason Whalen, City Attorney
•
Resolution No. 5788
May 23, 2024
Page 2 of 2
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT(this"Agreement")is entered into as of the
2 t day of OLEO bey;2024 ("Effective Date"), by and between the City of Auburn, a
Washington municipal corporation ("City" or "Buyer"), and Feenix Parkside LLC, a
Washington Limited Liability Company ("Seller"). Seller and Buyer are collectively
referred to as the"Parties."
RECITALS
A. Seller owns certain real property located at 2802—2826 Auburn Way North,
Auburn, Washington 98002, also known as King County Parcel No. 000100-0098 (the
"Subject Property"), legally described in attached Exhibit A.
B. The Parties entered into a lease agreement dated as of January 31,2020(the
"Lease Agreement") whereby the City began operating a Resource Center in a portion of
the Subject Property.
C. The Lease Agreement sets forth timeframes where the City and Feenix are
to renegotiate rent and other terms in exchange for exercising term extension options.
D. Rather than extend the existing Lease Agreement, the City desires to buy
the Subject Property and continue its Resource Center operations. The City has previously
notified the Seller in writing of its intent to exercise its power of eminent domain to acquire
the Subject Property and the Seller agrees to sell the Subject Property under threat of
eminent domain (sale as an involuntary conversion under Section 1033 of the Internal
Revenue Code)under the following terms and conditions.
E. This Agreement shall be approved through the ratification of Resolution
5788 by the Auburn City Council, a copy of which shall be attached hereto as Exhibit B
upon approval.
AGREEMENT
Now, therefore, for good and valuable consideration, the receipt and sufficiency of
which the Parties mutually acknowledge,Buyer and Seller agree as follows:
1. Certain Defined Terms. For purposes of this Agreement, the following
capitalized terms in this Agreement will have the following definitions:
1.1 "Closing" or "Close of Escrow" means the recordation of the Deed in the
Official Records and Seller's receipt of the Purchase Price.
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1.2 "Closing Date"means December 31,2024,or a date sooner or later,as agreed
to by both Buyer and Seller.
1.3 "Deposit" means an amount of one hundred sixty-two thousand dollars
($162,000),plus any other amounts designated as a Deposit in this Agreement.
1.4 "Escrow" means the escrow opened with Escrow Agent for the
consummation of the transaction described in this Agreement.
1.5 "Escrow Agent" means Stewart Title Guaranty Company — Commercial
Services,located at: 1420 5th Avenue. Suite 440, Seattle, WA 98101. 206.770.8849
1.6 "Official Records"means the official real property records of King County,
Washington.
1.7 "Permitted Exceptions"has the meaning as set forth in Section 6.1 below.
1.8 "Purchase Price"has the meaning as set forth in Section 3.
1.9 "Title Company"means Stewart Title Company.
1.10 "Title Policy" means the then-current Buyer-purchased standard coverage
ALTA owner's policy of title insurance issued by the Title Company to Buyer with
coverage in the amount of the Purchase Price, showing title to the Subject Property vested
in Buyer subject only to the Permitted Exceptions.
2. Purchase and Sale. Buyer agrees to buy, and Seller agrees to sell, all Seller's
rights, title and interest in the real property legally described in Exhibit A (Subject
Property)on the terms and conditions set forth in this Agreement.
3. Purchase Price;Cash Payment. The Purchase Price is Six Million One Hundred
Thirty Thousand and 00/100 Dollars ($6,130,000.00), which will be payable in full at
Closing. The Deposit will be applied to the Purchase Price due at Closing. The Purchase
Price payment by Buyer will be via wire transfer of collected federal funds.
4. Earnest Money Deposit. On execution of this Agreement,Buyer will deposit with
Escrow Agent One Hundred Sixty-Two Thousand Dollars and 00/100 Dollars
($162,000.00) in cash (the "Deposit"), which the Escrow Agent will hold as an earnest
money deposit for this transaction. The Deposit will be held in Escrow and applied or
disposed of by the Escrow Agent based on the terms of this Agreement. The Deposit will
not be refunded and will become property of Seller upon waiver of Buyer's Diligence &
Review Period.
5. Diligence&Review. Subject to the right of entry requirements detailed in Section
7 below, Buyer shall have the right for a period of forty-five(45) days from the Effective
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Date of this Agreement (the "Diligence & Review Period") to conduct due diligence,
feasibility, review, examination, tests, and inspection of all matters pertaining to the
acquisition and operation of the Subject Property as Buyer deems necessary or appropriate
("Due Diligence").Except as provided in Section 7,Buyer is granted the ability to conduct
diligence, feasibility,review, examination,testing and inspections without the requirement
of approval from the Seller or any of Seller's tenants. However, Buyer will endeavor to
provide Seller and tenants of the Subject Property with no less than 48-hours advance
notice of any such diligence,feasibility,review, examination,testing and inspections when
such endeavors will likely have a physical or operational impact on Seller or tenants'
business operations. Buyer further endeavors to take reasonable measures to mitigate
interruptions to tenants' business operations or their rights of quiet enjoyment.
Seller within 10 days of the Effective Date, shall also provide Buyer or make
available for Buyer's review all materials that exist and that are in Seller's actual possession
or reasonable control including but not limited to:
(a) All surveys,plats or plans relating to the Subject Property; (if any)
(b) All warranties and guarantees affecting any portion of the Subject Property; (if
any);
(c) Notice of any existing litigation affecting or relating to the Subject Property and
any copies of any pleadings concerning any litigation;
(d) Any documentation of known environmental hazards affecting or potentially
affecting the Subject Property;
(e) Copies of all Permits held by Seller, or any agent of the Seller, in connection
with its ownership of the Subject Property;
(f) Copies of all final, written environmental assessment reports concerning the
Real Property performed by or for the Seller in connection with its ownership
of the Subject Property which Seller, or any agent of the Seller, may possess;
and
(g) Copies of all vendor and supplier service contracts in connection with the
Subject Property ("Operational Contracts"), all existing tenant Leases, and a
current Rent Roll, as well as access to Seller's property manager for Buyer's
review of financial records relating to Seller's ownership of the Subject
Property for the past five (5)years ("Operational Accounting Records").
If, based upon Buyer's review of any such diligence, feasibility, examination, testing,
and/or inspection, including the, Operational Contracts, Leases, Rent Roll and the
Operational Accounting Records described in this Section 5 or Section 8 below, Buyer
determines in its sole discretion that it intends not to acquire the Subject Property, then
Buyer shall promptly notify Seller of such determination in writing prior to the expiration
of the Diligence & Review Period. In the event that Buyer fails to deliver such notice to
Seller on or before the expiration of the Diligence&Review Period,Buyer will be deemed
to be satisfied and to have waived its right to terminate this Agreement pursuant to this
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subsection. If Buyer advises Seller in writing on or before the expiration of the Diligence
& Review Period of its dissatisfaction based on its Due Diligence review, then this
Agreement automatically terminates, the Parties' rights under this Agreement shall be of
no further force or effect and the Deposit will be returned to Buyer.
6. Title Policy. Promptly after mutual execution of this Agreement, Escrow Agent
will obtain and deliver to Buyer, Seller, and the Parties' respective counsel, a standard
coverage preliminary title insurance commitment covering the Subject Property from the
Title Company(the"Commitment"),together with copies of all title exceptions. Approval
by Buyer of the exceptions to title set forth in the Commitment (other than as hereinafter
set forth) will be a condition precedent to Buyer's obligation to purchase the Subject
Property.Unless Buyer gives written notice that it disapproves the exceptions to title shown
on the Commitment(other than the exceptions to title approved by Buyer and described in
Section 6.1 below), stating the exceptions so disapproved, within fourteen (14) calendar
days after the date of delivery of the Commitment to Buyer,Buyer will be deemed to have
approved such exceptions. If Buyer disapproves any title exceptions, Seller will have a ten
(10) calendar day period after its receipt of Buyer's written notice of disapproval of the
same within which to provide written notice to Buyer as to which of such disapproved title
exceptions Seller will remove(or cause to be removed)from title;provided,however,that
Seller will not be required to actually remove such exception(s)until Closing. If, for any
reason, Seller's notice given pursuant to the immediately preceding sentence does not
covenant to remove all of Buyer's disapproved title exceptions at or prior to Closing,Buyer
has the right to terminate this Agreement by written notice to Seller and Escrow Agent
given within ten (10) calendar days after the earlier of the expiration of such ten (10)
calendar day period or the date Seller informs Buyer that it does not intend to remove the
disapproved items (the"Termination Notice"). Buyer's failure to deliver the Termination
Notice within such ten (10) day period will be deemed Buyer's approval of any such
previously disapproved title exception. If Buyer delivers the Termination Notice within
such ten (10) day period, the obligation of Seller to sell, and Buyer to buy, the Subject
Property will terminate and Escrow Agent shall promptly return Buyer's Deposit.
6.1 Permitted Exceptions. In addition to such other exceptions to title as may
be approved by Buyer pursuant to the provisions of Section 6 above, Buyer shall accept
title to the Subject Property subject to the following (collectively, the "Permitted
Exceptions"): (i) the printed exceptions which appear in the then current ALTA form
standard coverage owner's policy of title insurance issued by Title Company in the State
of Washington;(ii)all non-delinquent property taxes and assessments,(iii)the rights of the
tenants under the Leases (excluding therefrom any rights or option to purchase all of any
part of the Property), and(iv) all matters created by or on behalf of Buyer.
7. Buyer's Right of Entry. Buyer, and its agents and consultants, at Buyer's sole
expense and risk,may enter the Subject Property during the term of this Agreement for the
purpose of Buyer's Diligence & Review of the Subject Property. Buyer warrants that it
will (a) exercise care at all times on or about the Subject Property, (b) take necessary
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precautions for the prevention of injury to persons or damage to property on or about the
Subject Property and (c) comply with any advance notice requirements in any leases by
tenants of the Subject Property. Any physical alteration of the Subject Property in
connection with Buyer's Due Diligence shall be restored by Buyer so that the Subject
Property and improvements are in substantially the same condition they were in prior to
inspection, at Buyer's sole expense. Buyer indemnifies and holds harmless Seller against
any loss, damage, or claim including attorneys'and experts' fees, and court costs,resulting
from Buyer's presence on Subject Property, inspections and tests in connection with
Buyer's Due Diligence.This indemnity shall survive the Closing or any termination of this
Agreement. Buyer is not Seller's agent in connection with such activities and has no
authority to allow any liens to encumber the Subject Property.Buyer shall keep the Subject
Property free from all mechanics',materialmen and other liens,and all claims,arising from
any work or labor done, services performed, or materials and supplies furnished in with
Buyer's actions in the exercise of its right of entry on the Subject Property and Buyer will
maintain all insurance as required by Seller with respect to activities on the Subject
Property. All of Buyer's representatives who visit the Subject Property must have required
insurance coverage and provide 48 hours of notice as required under this Agreement.
Buyer shall not perform any invasive testing beyond a Phase I Assessment and a Regulated
Building Materials (or similar) Survey or contact the tenants or property management
personnel without obtaining Seller's prior written consent, which may not be unreasonably
withheld.
8. Contracts,Leases,Rent Roll& Operational Accounting Records.
8.1 Delivery and Review. Within 10 calendar days following the Effective Date,
Seller shall provide complete copies (including amendments, addenda, or other
modifications) of all management, maintenance and security contracts ("Operational
Contracts"),all Leases,Licenses,Use Agreements,or other such Agreements related to the
use or occupancy of the Subject Property(individually and/or collectively referred to as the
"Lease(s)")together with current accounting record(s)certified by Seller's manager or CPA
to be true and correct of all rent deposits, collected, delinquent, and pre-paid rents
(individually and/or collectively referred to as the"Rent Roll"), and all accounting records
related to the management, collection and expenditures of maintenance, maintenance
contracts, management and security contracts, insurance, taxes, utilities, reserves and any
other items related to the ownership and operations of the Subject Property paid by Seller
but collected from tenants through what is commonly referred to in the industry as "triple
nets". Individually and/or collectively the accounting records related to the collection and
expenditures of the Subject Property's triple nets are herein referred to as the"Operational
Accounting Records". Review of these items shall be done as part of and subject to the
Diligence&Review Period described in Section 5 above.
8.2 Seller Estoppel. Seller represents to Buyer that the Lease Agreement with the
Buyer, and that(i) all of the currently existing obligations of tenants under other leases for
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of the Subject Property (collectively the "Existing Leases") are all current as of the
Effective Date; (ii) all of the currently existing obligations of Seller under the Existing
Leases have been duly performed and completed; (iii) all improvements or repairs required
under the terms of the Existing Leases to be made by Seller have been satisfactorily
completed or are in process to be completed before the Closing; (iv) all allowances and
other payments due to Subject Property tenants by Seller under the terms of the Existing
Leases have been paid in full; and(v) Seller represents that tenants have no offsets, claims,
counterclaims or defenses against the enforcement of the Existing Leases by Seller, and no
events have occurred that could give rise to an offset, claim, counterclaim, or defense
against enforcement of the Existing Leases by Seller.
8.3 Intentionally Deleted.
9. Closing.
9.1 Time for Closing. This purchase and sale will be closed in the office of
Escrow Agent on the Closing Date. Buyer and Seller will place in Escrow with Escrow
Agent all instruments, documents, and funds in U.S. Dollars necessary to complete the
purchase and sale under this Agreement. Funds held in Escrow pursuant to Escrow
instructions will be deemed, for purposes of this definition, as available for disbursement
to Seller.Neither party needs to be physically present at the Closing.
9.2 Closing Costs.
9.2.1 Seller's Costs. Associated with the sale and conveyance of the
Subject Property, Seller will pay: (a) Seller's own legal fees and fees of its own consultant,
including but not limited to real estate broker commissions owed in connection with this
Agreement,if any;(b)Seller's share of prorations not otherwise described in Sections 9.2.1
— 9.2.6, including but not limited to utilities, assumed service, management and/or
maintenance contracts, etc.
9.2.2 Buyer's Costs. Associated with the sale and conveyance of the
Subject Property,Buyer will pay;(a)the full Escrow fees and cost,(b)the full costs and fees
for the title insurance policy issued to Buyer, together with applicable taxes, cost of all
endorsements, and/or extended coverage Buyer may require or request, (c) the recording
fees for the Deed, (d) any and all excise taxes resulting from the sale, unless otherwise
exempt under the provisions of WAC 458-61A-206, (e) sales tax due on any personal
property conveyed to Buyer, if any, (f)Buyer's legal, consultant fees and all costs related
to its Due Diligence, and (g) Buyer's share of prorations not otherwise described in
Sections 9.2.1 —9.2.6.
9.2.3 Other Costs. All other costs and expenses will be charged according
to local industry customs.
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9.2.4 Real Property Taxation. Seller will be responsible for the prorated
real property taxes due and owing prior to the Closing Date.
9.2.5 Pro-Ration of Rents. Rents shall be prorated as of the Closing Date.
Any refundable deposits and/or prepaid rents shall be transferred to Buyer at Closing.
9.2.6 Triple Net monies collected from tenants. Seller shall transfer to
Buyer any unspent triple net monies collected from tenants.
9.3 Closing Documents.
9.3.1 Seller's Documents. At Closing, Seller will deliver to Escrow Agent
the following instruments and documents:
a. An executed and acknowledged Special Warranty Deed ("Deed")
subject to all Permitted Exceptions.
b. The executed real estate excise tax affidavit to accompany the Deed;
and
c. An executed nonforeign person affidavit in the form required under
Section 1445 of the Internal Revenue Code.
d. A certified Rent Roll and Operational Accounting Documents dated as
of the Closing Date.
e. A bill of sale for any personal property conveyed to Buyer, if any.
9.3.2 Buyer's Documents. At or before Closing, Buyer shall deliver to
Escrow Agent the following funds, instruments and documents:
a. The balance of the Purchase Price in accordance with Section 3;
b. An executed real estate excise tax affidavit; and
c. A copy of the Resolution by the Auburn City Council approving the
purchase of the Subject Property, a copy of which will be appended as
Exhibit B hereto.
10. Possession. Buyer will be entitled to possession of the Subject Property, subject to
all tenancies disclosed to Buyer as provided in paragraph 8 and other Permitted Exceptions
to title,upon Closing.
11. Representations and Warranties.
11.1 Seller's Representations and Warranties. In addition to any other
representations or warranties to City elsewhere in this Agreement, Seller represents and
warrants to Buyer that:
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11.1.1 Authority. Seller has full power and authority to execute this
Agreement and perform Seller's obligations and all necessary action to authorize this
transaction has been taken, except as specifically provided herein.
11.1.2 Hazardous Substances. Seller has not received notification of any
kind from any governmental agency suggesting that the Subject Property is or may be
targeted for a Hazardous Substances cleanup; to Seller's Knowledge the Subject Property
has not been used(a) for the storage, disposal or discharge of oil, solvents, fuel, chemicals
or any type of toxic, dangerous, hazardous or biological waste or substance (collectively,
"Hazardous Substances"),or(b) as a landfill or waste disposal site;to Seller's Knowledge
the Subject Property has not been contaminated with any Hazardous Substances; and(c)to
Seller's Knowledge,there are no underground storage tanks on the Subject Property.Buyer
agrees to waive Seller's Disclosure Statement under RCW 64.06.010 with the exception
of item 6 `Environmental" under RCW 64.06.013 which Seller shall deliver to Buyer
within five (5) business days following execution of this Agreement. A Seller completed
copy of the Environmental Section of Seller's Disclosure Statement is attached as Exhibit
C for reference.
Notwithstanding the foregoing, based on the age of the improvements located on
the Subject Property, Buyer should presume the presence of asbestos and lead-based paint.
As used in this Agreement, the phrase "to Seller's knowledge" or words of similar
import shall mean the actual present knowledge of Benson Liu and of the Seller's Property
Manager,Jonny Sloan,about the matters so stated,without investigation of any kind or nature
and expressly excludes imputed knowledge.
If after the opening of Escrow either party comes to have actual knowledge of a fact
or circumstance which would render a representation or warranty by Seller herein inaccurate
in any material respect, that party shall promptly advise the other party thereof in writing.
Buyer shall have, as its sole and exclusive remedy,the option, exercisable by the later of(a)
the end of Diligence&Review Period or(b)five(5)business days after such notice is given,
to either(i)terminate this Agreement and receive a return of the Deposit or(ii)to waive such
inaccuracy in writing, in which latter event it shall be deemed to have waived all claims and
causes of action against Seller related thereto.
EXCEPT AS MODIFIED PURSUANT TO THE PRECEDING PARAGRAPH,
SELLER'S REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN WILL
EXPRESSLY SURVIVE THE CLOSING OR TERMINATION OF THIS AGREEMENT,
WILL NOT BE MERGED INTO THE CLOSING DOCUMENTS, AND WILL BE
DEEMED INCORPORATED INTO THE DEED. TO MAKE ANY CLAIM BASED ON
SELLER'S BREACH OF ANY OF THESE WARRANTIES OR REPRESENTATIONS,
BUYER SHALL GIVE NOTICE OF SUCH BREACH TO SELLER WITHIN ONE YEAR
AFTER THE DATE OF RECORDING OF THE DEED. SELLER SHALL ACCEPT AND
PERFORM AS REQUESTED BY BUYER IN SAID NOTICE OR REJECT THE CLAIM
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IN WRITING WITHIN THIRTY (30)DAYS AFTER RECEIPT OF THE NOTICE FROM
BUYER. IF SELLER REJECTS SUCH CLAIM, BUYER SHALL BRING AN ACTION
AGAINST SELLER FOR SUCH BREACH WITHIN FORTY-FIVE (45) DAYS AFTER
BUYER RECEIVES SELLER'S WRITTEN REJECTION. IF BUYER DOES NOT GIVE
WRITTEN NOTICE OF SUCH A CLAIM WITHIN SAID ONE-YEAR PERIOD OR
BRING AN ACTION WITHIN SAID 45-DAY PERIOD, THEN BUYER'S RIGHT TO
MAKE CLAIM BASED ON BREACH OF SELLER'S REPRESENTATIONS AND
WARRANTIES WILL BE TERMINATED. jLrv�,
Atto c�ivL
Buyer's Initials Seller's Initials
11.1.3 Buyer's Representations and Warranties. In addition to any other
representations and warranties of Buyer elsewhere in this Agreement,Buyer represents and
warrants to Seller now, and as of the Date of Closing, that (i) Buyer 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, delivery and performance of this
Agreement; (ii) has full power to condemn the Subject Property and will do so if Seller
does not accept and agree to this Agreement and (iii) the individual executing this
Agreement on behalf of Buyer has the authority to bind Buyer to the terms and conditions
of this Agreement.
11.1.4 "As is" condition of Subject Property. OTHER THAN THE
MATTERS REPRESENTED IN SECTION 11 HEREOF OR THE DOCUMENTS MADE
AVAILABLE BY SELLER PURSUANT TO SECTION 5,BUYER HAS NOT RELIED
UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY,ANY
REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER'S AGENTS
OR REPRESENTATIVES. SELLER SPECIFICALLY DISCLAIMS ANY
REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER
AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EITHER EXPRESS OR IMPLIED, MAY BE RELIED UPON BY
BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE,
REPAIR, CONDITION,DESIGN OR MARKETABILITY OF ANY PORTION OF THE
PROPERTY,INCLUDING BUT NOT LIMITED TO(a)ANY IMPLIED OR EXPRESS
WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c)ANY IMPLIED OR
EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF
MATERIALS, (d) THE FINANCIAL CONDITION OR PROSPECTS OF THE
PROPERTY AND (e) THE COMPLIANCE OR LACK THEREOF OF THE REAL
PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS,
IT BEING THE EXPRESS INTENTION OF SELLER AND BUYER THAT, EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE DOCUMENTS MADE
AVAILABLE BY SELLER PURSUANT TO SECTION 5, THE PROPERTY WILL BE
CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT CONDITION AND
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STATE OF REPAIR, "AS IS" AND "WHERE IS", WITH ALL FAULTS. BUYER
REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND
SOPHISTICATED BUYER OF REAL ESTATE,AND THAT IT IS RELYING SOLELY
ON ITS OWN EXPERTISE AND THAT OF BUYER'S CONSULTANTS IN
PURCHASING THE PROPERTY. DURING THE INSPECTION PERIOD, BUYER
WILL CONDUCT SUCH INDEPENDENT INSPECTIONS OF THE PROPERTY AND
RELATED MATTERS AS BUYER DEEMS NECESSARY, INCLUDING, BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF,
AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER
(EXCLUDING THE MATTERS REPRESENTED BY SELLER IN SECTION 11
HEREOF OR THE DOCUMENTS MADE AVAILABLE BY SELLER PURSUANT TO
SECTION 5) OR OF ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR
ATTORNEY OF SELLER. BUYER ACKNOWLEDGES THAT ALL INFORMATION
OBTAINED OR THAT WILL BE OBTAINED BY BUYER WAS OR WILL BE
OBTAINED FROM A VARIETY OF SOURCES AND SELLER WILL NOT BE
DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESS,
TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH
INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO BUYER THAT
WAS CREATED, PREPARED, COMPILED, OR AUTHORED BY ANY PERSON OR
ENTITY OTHER THAN SELLER OR ANY OF ITS AGENTS OR AFFILIATES.
EXCEPT AS MAY BE EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT OR THE DOCUMENTS MADE AVAILABLE BY SELLER
PURSUANT TO SECTION 5, UPON CLOSING, BUYER WILL ASSUME THE RISK
THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE
PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN
REVEALED BY BUYER'S INSPECTIONS AND SELLER WILL SELL AND
CONVEY TO BUYER, AND BUYER WILL ACCEPT THE PROPERTY, "AS IS,
WHERE IS," WITH ALL FAULTS. BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY
ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER,
AGENT, EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS THE SAME ARE
SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. BUYER, WITH
BUYER'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND
WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE
SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND
AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH
HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT. THE TERMS AND
CONDITIONS OF THIS SECTION 11.1.4 WILL EXPRESSLY SURVIVE THE
CLOSING OR TERMINATION OF THIS AGREEMENT, WILL NOT BE MERGED
INTO THE CLOSING DOCUMENTS AND WILL BE DEEMED INCORPORATED
INTO THE DEED.
12. Maintenance of Subiect Property;Risk of Loss,Condemnation.
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12.1 Maintenance of Subject Property. From the date of this Agreement until the
Closing Date (or any earlier termination of this Agreement), Seller agrees to maintain the
Subject Property in substantially the same condition existing as of the Effective Date,
ordinary wear and tear accepted.
12.1.1 Prior to execution of this Agreement, the parties have identified the
need to make certain repairs to plumbing to the improvements on the Subject Property
which are identified in an estimate for repairs to be made by Pinky's Plumbing Quote
#q15062 (the "Bid"), which is attached hereto as Exhibit D. Buyer and Seller agree that
Seller shall engage Pinky's Plumbing, LLC to make the repairs necessary in connection
with the Bid, with Buyer and Seller sharing the expense equally up to$10,000 each. In the
event the necessary repairs exceed$20,000, Seller shall be responsible for$10,000 of said
expense with Buyer paying the balance of the cost of such repairs. Buyer agrees that if any
post-repair issues in connection to said repairs arise, that it shall hold Seller harmless and
seek redress from Pinky's Plumbing, LLC. Seller agrees that any warranties arising from
said repairs shall be assigned to the Buyer at Closing without need for further assignment
documentation. This provision shall survive Closing and be enforceable by both parties.
12.2 Risk of Loss;Condemnation.Risk of loss of or damage to the improvements
on the Subject Property will be borne by Seller at all times until the Closing Date and no
event of casualty or damage shall affect the parties' obligations under the Agreement or
the Purchase Price. However, in the case of casualty occurring after the Effective Date,
Buyer will have the right to receive any insurance proceeds due Seller in connection with
any casualty or damage and Seller covenants to maintain commercially reasonable casualty
insurance in place with respect to the Subject Property at all times prior to Closing. Seller or
Buyer shall promptly notify Buyer or Seller of any condemnation or eminent domain
proceeding which affects or may affect the Subject Property. In the event of any
condemnation or eminent domain proceeding by any entity other than City, or a deed in
lieu of or under threat thereof, which affects a material portion of the Subject Property,
Buyer may elect either to terminate this Agreement,or to purchase the Subject Property in
the condition existing on the Closing Date without adjustment of the Purchase Price.
13. Default.
13.1 Time of Essence. Time is of the essence for this Agreement.
13.2 Seller's Election of Remedies. Should Buyer default under this Agreement,
Seller may,at its sole and exclusive remedy,terminate this Agreement and keep that portion
of the Deposit that does not exceed five percent (5%) of the Purchase Price as liquidated
damages as the sole and exclusive remedy. Buyer and Seller agree that retention of the
Deposit by Seller as outlined above, represents a reasonable estimation of damages in the
event of Buyer's default, as actual damages would be difficult to ascertain, and further that
this provision does not constitute a penalty. In this respect,Buyer and Seller acknowledge
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that these damages have been specifically negotiated between Buyer and Seller and are,
inter alia, to compensate Seller for delaying the eventual sale of the Subject Property and
to compensate Seller or its costs and expenses associated with this Agreement.
13.3 Buyer's Remedies for Seller's Default. If Seller fails to complete the sale
of the Subject Property in accordance with this Agreement, Buyer's remedy will be to
terminate this Agreement or to seek specific performance.
14. Notices. All notices, demands and other communications required or permitted to
be given shall be in writing and shall be sent by personal delivery(including by means of
professional messenger or courier service) or registered or certified mail,postage-prepaid,
return-receipt requested, or by electronic mail (email) at the addresses provided. Notice
shall be deemed to have been given if personally delivered or sent by electronic mail
(email),upon receipt, if sent by mail,two(2) days after duly placed in the U.S. Mail to all
of the addresses designated for such party.
The Parties' respective addresses for notices are as follows:
TO THE CITY TO SELLER
City of Auburn—Real Estate Division Feenix Parkside LLC
Attn: Josh Arndt Attn: Benson W. Liu
25 West Main 3020 Issaquah Pine Lake Rd., #521
Auburn,WA 98001 Sammamish,WA 98075
253.288.4325 (425) 391-2445
Jarndt@auburnwa.gov bwliu@comcast.net
With copies to: With copies to:
City of Auburn—Legal Department George S. Treperinas
Attn: Jason Whalen 701 Fifth Avenue, Suite 3300
25 West Main St Seattle,WA 98104
Auburn,WA 98001 206.224.8053
253.804.5026 gtreperinas@karrtuttle.com
JWhalen@auburnwa.gov
Notice of change of address shall be given by written notice in the manner detailed in this
Section.
15. General.
15.1. Entire Agreement. This is the entire Agreement (including the attached
Exhibits)of Buyer and Seller with respect to the matters covered hereby and supersedes all
prior agreements between them,written or oral. This Agreement may only be modified or
amended in writing, signed by Buyer and Seller. Any waivers must be in writing. No
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waiver of any right or remedy in the event of default will constitute a waiver of such right
or remedy in the event of any subsequent default. Venue for disputes under this Agreement
is the Superior Court of King County, Washington.
15.2 Choice of Law. This Agreement will be governed by the laws of the State
of Washington.
15.3 No Third-Party Beneficiaries/Severability. This Agreement is for the
benefit only of the Parties and shall inure to the benefit of and bind the heirs, personal
representatives, successors and permitted assigns of the parties. The invalidity or
unenforceability of any provision of this Agreement shall not affect the validity or
enforceability of any other provision. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
15.4 Survival of Rights, Duties, and Obligations. The Parties' rights, duties,
covenants, and obligations shall survive Closing and the expiration or earlier termination
of this Agreement.
15.5 Intentionally Deleted.
15.6 Signing Authority. Each of the Parties represents and warrants that the
individual signing this Agreement on its behalf is duly authorized to enter into this
Agreement and to execute and legally bind such Party to it. The City of Auburn's signing
authority is subject to Section 15.12.
15.7 Attorneys' Fees. In the event suit or action is instituted to interpret or
enforce the terms of this Agreement, the prevailing party is entitled to recover from the
other party such sum as the Court may adjudge reasonable as attorneys' fees, including
fees incurred at trial, on any appeal and in any petition for review.
15.8 Exclusivity. During the term of this Agreement, Seller will not market nor
list the Subject Property for sale, nor accept any offers from third parties with respect to
the sale of the Subject Property.
15.9 Information Transfer. In the event this Agreement is terminated, Buyer
agrees to deliver to Seller within ten (10) days of Seller's written request copies of all
materials received from Seller and any non-privileged plans, studies, reports, inspections,
appraisals, surveys, drawings, permits, applications or other development work product
relating to the Property in Buyer's possession or control as of the date this Agreement is
terminated.
15.10 Reservation of Police Power. Notwithstanding anything to the contrary set
forth in this Agreement, Buyer understands and acknowledges that City's authority to
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exercise its police (regulatory) powers in accordance with applicable law shall not be
deemed limited by the provisions of this Agreement.
15.11 Counterparts.This Agreement and any amendments that may come to exist,
may be executed in as many counterparts as may be convenient or required. It shall not be
necessary that the signature of, or on behalf of, each Party, or that the signature of all
persons required to bind any Party, appear on each counterpart. All counterparts
collectively constitute a single instrument.
15.12 Approval by Auburn City Council.The Parties acknowledge and agree that
this Agreement is subject to and contingent upon the approval and ratification of the
Auburn City Council.
15.12 No Broker.No broker, finder, agent or similar intermediary has acted for or
on behalf of the Buyer. Any broker, finder, agent or similar intermediary acting for or on
behalf of the Seller,if any, shall be paid from Seller's proceeds in accordance with Section
9.2.1 above.
15.13 Assignment. Buyer's rights and obligations under this Agreement are not
assignable without the prior written consent of Seller, which shall not be withheld
unreasonably; provided, however, Buyer may assign this Agreement without the consent
of Seller, but with notice to Seller, to any entity under common control and ownership of
Buyer, provided no such assignment shall relieve Buyer of its obligations hereunder. The
party identified as the initial Buyer shall remain responsible for those obligations of Buyer
stated in this Agreement notwithstanding any assignment.
15.14 Exhibits. The following exhibits are attached and incorporated into this
Agreement by reference.
(i) Exhibit A—Legal Description of the Subject Property
(ii) Exhibit B—Copy of Resolution 5788
(iii) Exhibit C—Seller Disclosure,Environmental
(iv) Exhibit D—Pinky's Plumbing Quote for Work
SIGNATURES ON THE FOLLOWING PAGE
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SIGNATURE PAGE
BUYER SELLER
C eF AUBURN Feenix Parkside LLC
..�' - �.•. 10 21 Zvi ✓/569/ } '.mac;
Nancy:Ba !.' Mayor Date: Benson Liu,Manager Date:
, tic
Kaye Lou,Manager Date:
A, rove+ .,s to F•.. ��
ason Whalen,Auburn City Attorney
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EXHIBIT A
Legal Description
LOT B, CITY OF AUBURN SHORT PLAT NUMBER SP-3-78, RECORDED UNDER
RECORDING NUMBER 7806150922, BEING A CORRECTION OF SHORT PLAT
RECORDED UNDER RECORDING NUMBER 7803060927, IN KING COUNTY,
WASHINGTON.
King County Parcel Number-0001000098
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EXHIBIT B
Copy of Auburn City Council Resolution to Condemn Subject Property
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EXHIBIT C
Seller Disclosure—Environmental
.K116W
A Have there been any flooding, standing water, or drainage
problems on the property that affect the property or access to
the property?
B Does any part of the property contain fill dirt,waste,or other
x
fill materials?
C Is there any material damage to the property from fire,wind,
floods, beach movements, earthquake, expansive soils, or
landslides?
D Are there any shorelines, wetlands, floodplains, or critical
areas on the property?
E Are there any sUbstances,materials,or products in Or on the
property that may be environmental concerns, such as K"
asbestos,formaldehyde, radon gas, lead-based paint,fuel or
chemical storage tanks,or contaminated soil or water?
F Has the property been used for commercial or industrial
purposes?
G Is there any soil or groundwater contamination?
H Are there transmission poles or other electrical utility
equipment installed,maintained,or buried on the property that
do not provide utility service to the structures on the property?
I Has the property been used as a legal or illegal dumping site?
J Has the property been used as an illegal drug manufacturing
site?
K Are there any radio towers in the area that cause interference
X
with cellular telephone reception?
If you answered yes to any of the following,please give further details here.
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EXHIBIT D
Pinky's Plumbing 10.1.2024 Quote#q15062
till,;: Pinky's Plumbing,LLC Phone:(206)316-8876
(� P.O.Box 68133 customerservioe@pinkysplumbingbiz
Ili I �p I W` U.
Seaffie,WA 98168 wvnv.pinkysplumbing.txxn
1 ue
Lic#PINKYPL905LS
BIWNG JOB LOCATION
Azose Commercial Properties Azose-Auburn Shops
8451 SE 68th Street,Ste 200 2802 Auburn Way N
Mercer Island,WA 98040 Auburn,WA 98002
Transaction Date:10112024 Terms:Net 30
Invoice#:i21040
SEE ATTACHED ADDITIONAL REMARKS ON THE CONTINUATION
Item Description Quantity Price Amount
trailerjetter trailerjetter 1 $1,869.00 $1,869.00
If drain equipment becomes stuck within a damaged line,
additional work,including excavation,will be at additional
cost.
This is to fully flush all debris from the line so that we may
properly evaluate the health and grading of the cast iron
pipeline.Service completed through grease trap outlet Upon
removing of the rust that had settled in the bottom of the tine,
we have confirmed that there is not a grading issue with the
pipeline.Blockages and standing water were due to rust
debris left behind in the line from the rusty cast iron pipeline.
After rust was removed,we discovered a 20'length of cast
iron which is entirely missing the bottom and is cracked
through 2 full lengths of piping.Recommendations for repair
entail excavation and pipe finer for rehabilitation.
Subtotal: $1,869.00
Tax: $192.51
Total: $2,061.51
Payments: 50.00
Quote#:q15062
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Pinky's Plumbing, LLC Phone:(206)316-8876
0 ,. P.O. Box 68133 customerservice@pinkysplumbing.biz
Pinky PlUI11Ii_J_iLLC
Seattle, WA 98168 www.pinkysplumbing.com
1
Lic#PINKYPL905LS
Item Description Quantity Price Amount
SDR28 4" Pipe Repair up to 3'in length with excavation up to 4'in depth. 1 $6,132.14 $6,132.14
The line which services the food bank has a massive break
extending downstream through approximately 20'of piping.This
break extends from the womens restroom near the food banks
kitchen until the second single toilet restroom in the main area of
the food bank.This length of piping is cracked across the entire
bottom with about half of that length entirely missing a section of
about an inch wide.As we are unable to securely attached to
broken piping,and proper repair would entail significant demolition
across 3 restrooms,we are instead recommending to gain access
through excavation in front of the ADA toilet within the womens
restroom to attach to a secure section of line.Through this access
point,we are recommending installation of a sleeved pipe liner to
fully seal off the broken section.This is the only means of repair
without complete demolition starting at this proposed location until
the second single toilet restroom. Price includes private locates to
ensure there will be no da,aged utilities in the process of the
excavation. Price includes concrete demolition and excavation up
to 4'in depth. Includes backfill with a cleanout with a brass body
brought to surface for better accessibility of the drain.Through this
cleanout,we will again hydrojettthe line to ensure that debris is
removed past the point our equipment was unable to reach past
from existing accesses. Pipe liner is separate. Price does not
includes concrete repair or finish layer of flooring in the restroom
pipe install pipe liner in sewer/drain not responsible for reinstatement of 1 $7,650.00 $7,650.00
lining lines liner of 30'in length to be installed from proposed excavation
until tie in at second single toilet restroom. Liner will fully repair
and seal off broken section of line.
Subtotal: $13,782.14
Tax: $1,419.56
Total: $15,201.70
Page 2 of 4
R Pinky's Plumbing, LLC Phone:(206)316-8876
P.O. Box 68133 customerservice@pinkysplumbing.biz
a-0
� Piumb :
Seattle, WA 98168
Lic#PINKYPL905LS
Authorization
AUTHORIZATION TO PROCEED WITH ABOVE DIAGNOSIS/SOLUTION-I,the undersigned,am owner/authorized
representative/tenant of the premises at which the work mentioned above is to be done. I hereby authorize you to perform
Diagnosis/Solution, and to use such labor and materials as you deem advisable.A monthly service charge of 1.5%will be added after
30 days,up to$1000. I agree to pay reasonable attorney's fees and court costs in the event of legal action. If your check bounces,
you could be liable for 3 times the amount of the check or$100.00,whichever is more, plus the face value of the check and court
costs. I have read this invoice and agree to all the terms and conditions set forth and have received a copy of the contract.A one year
warranty is provided by Pinky's Plumbing, LLC on new plumbing installations.There is no warranty on customer supplied materials or
drain cleaning. Not responsible for existing plumbing or water damage. If drain equipment becomes stuck within a damaged line,
additional work,including excavation,will be at additional cost. By agreeing to these terms, Pinky's Plumbing, LLC retains the first
right of refusal on all warranty work.Warranty work provided by someone other than Pinky's Plumbing, LLC is the sole responsibility of
the authorized representative and voids any future liability from Pinky's Plumbing, LLC. Some materials/equipement may be required to
be left onsite it shall be the property owners responsibility to ensure that this equipement is not stolen/vandalized and will be
responsible for replacement/repair cost. Permits, inspections,and additional work are over and above the written estimate. Pinky's
Plumbing, LLC is not responsible for damage to any utilities or materials that may be damaged in the process of performing work. On
all jobs over$1000.00,taking more than one day or with a substantial parts cost, Pinkys Plumbing, LLC will collect half of the money
before beginning work and this deposit is not refundable once work has started. NOTICE TO CUSTOMER:The Washington State
Department of Labor and Industries requires all contractor to provide the following disclosure statement before starting work on
contracts priced at$1,000 or more:This contractor is registered with the state of Washington, registration no. PINKYPL905LS
(expiration date 06/10/26)and specialty plumbing contractor license PINKYPL799MW(expiration date 10/15/2025), and has posted
with the state a bond of$12,000 for the purpose of satisfying claims against the contractor for breach of contract including negligent or
improper work in the conduct of the contractor's business.THIS BOND OR DEPOSIT MIGHT NOT BE SUFFICIENT TO COVER A
CLAIM THAT MIGHT ARISE FROM THE WORK DONE UNDER THE CONTRACT.You may withhold a contractually defined
percentage of your construction contract for a stated period of time to provide you protection and to help insure that your project will be
completed as required by your contract.YOUR PROPERTY MAY BE LIENED,if a materials supplier used in your project or an
employee or subcontractor of your contractor or subcontractors is not paid,then your property may be liened to force payment and
you could pay twice for the same work.FOR ADDITIONAL PROTECTION,YOU MAY REQUEST THE CONTRACTOR TO PROVIDE
YOU WITH ORIGINAL"LIEN RELEASE"DOCUMENTS FROM EACH SUPPLIER OR SUBCONTRACTOR ON YOUR PROJECT.The
contractor is required to provide you with further information about lien release documents if you request it.General information is also
available from the state Department of Labor and Industries. I HAVE READ, UNDERSTAND,AND HEREBY AUTHORIZE YOU TO
PROCEED WITH THE WORK STATED AT THE FLAT RATE PROVIDED
Page 3 of 4
Pinky's Plumbing, LLC Phone:(206)316-8876
freaPlunib-118 P.O. Box 68133
customerservice@pinkysplumbing.biz
Seattle, WA 98168 www.pinkysplumbing.com
Lic#PINKYPL905LS
Acceptance
ACCEPTANCE OF WORK PERFORMED. I find the service and materials rendered and installed in connection with the above work
mentioned to have been completed in a satisfactory manner. I agree that the amount set forth on this contract in the space labeled
"TOTAL"to be the total and complete flat rate/minimum charge. I agree to pay reasonable attorney's fees and court costs in the event
of legal action.A monthly service charge of 1.5%will be added after 30 days.All old equipment, parts and debris will be removed and
discarded unless by written request at time of service. I acknowledge that I have read and received a copy of this contract.
Debbie
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