HomeMy WebLinkAboutITEM V-C-5C[TY OF * •
~ AGENDA BILL APPROVAL FORM
U RN
~ WASHINGTON
Agenda Subject:
Date:
Purchase of Safewa Pro ert ortion of)l
A ril 27, 2009
Department:
Attachments:
Budget Impact:
Human Resources
Purchase and
Sale Agreement
$209,088.00
Bar ain and Sale Deed
Administrative Recommendation:
City Council authorize the Mayor and City Clerk to execute a Purchase and Sale Agreement for the
purchase of a portion of the Safeway Property.
Background Summary:
The City desires to purchase a certain portion of the Safeway Property an.d develop certain improvements
on the Parcel.
S0504-1
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES:
❑ Building ❑ M&O
❑ Airport 0 Finance
❑ Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv.
❑ Finance ❑ Parks
❑ Human Services ❑ Planning & CD
❑ Fire ❑ Planning
❑ Park Board ❑Public Works
0 Legal ❑ Police
❑ Planning Comm. ❑ Other
❑ Public Works ~ Human Resources
❑ Information Services
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No
Call for Public Hearing
Referred to Until
Tabled Until
Councilmember: Backus
Staff: Heineman
Meetin Date: Ma 4, 2009
Item Number: V.C.S
AU$LjRN * MOKE THAN YOU IMAGINED
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into
as of the day of , 2009, by and between the CITY OF AUBURN, a
Washington municipal corporation, as Purchaser (hereinafter the "CITY"), and
SAFEWAY, INC., a Delaware corporation (hereinafter the "SELLER").
RECITALS
A. The SELLER is the owner of certain real property and all improvements
thereon ("the Safeway Property") located in the City of Auburn, County of King,
Washington, which is legally described on Exhibit A attached hereto.
B. CITY desires to purchase a certain portion of the Safeway Property (the
"Parcel") from SELLER and develop certain improvements on the Parcel, which is
legally described on Exhibit B attached hereto.
C. SELLER desires to sell the Parcel to CITY, on the terms and conditions
set forth herein.
AGREEMENT
NOW, THEREFORE, for good and valuable 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 Agreement, 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 June 30, 2009
but in no event shall the date be sooner than ten (10) business days following the end of
the due diligence period.
1.3 "Deed" means a statutory warranty deed.
1.4 "Escrow" means the escrow opened with Escrow Agent for the consummation of
the transaction described in this Agreement.
1.5 "Bscrow Agent" means Chicago Title Insurance Company (Phone: (253) 945-
9140).
1.6 "Official Records" means the official real property records of King County,
Washington.
1.7 "Opening of Escrow" means the date a fully executed copy of this Agreement is
deposited with Escrow Agent.
1.8 "Permits" has the meaning as set forth in Section 9.1 below.
1.9 "Purchase Price" has the meaning as set forth in Section 3.
1.10 "Exhibit C Location Map" means the map provided by City of Auburn showing
the area City of Auburn desires to purchase, which is attached hereto as Exhibit C.
1.11 Title Company" means Chicago Title Company.
1.12 "Title Policy" means an ALTA (1970 Form B) extended coverage owner's policy
of title insurance issued by the Title Company to CITY with coverage in the amount of
purchase price, showing title to the Parcel 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 Parcel upon the terms and conditions set forth in this
Agreement. .
3. Purchase Price; Cash Payment. The total cash purchase price for the Parcel (the
"Purchase Price") shall be Two Hundred Nine Thousand Eighty-eight Dollars and
No/100's ($209,088.00). The Purchase Price shall be paid to SELLER in cash at Closing.
The above purchase price includes the CITY'S full contribution toward the SELLER'S
maintenance and upkeep obligations under the Drainage Agreement entered into.between
the SELLER and the Boeing Company ("Boeing" dated September 18, 2002, which is
attached hereto as Exhibit D.
4. Covenants, Conditions, Restrictions and Drainage Agreement.
a. SELLER is obligated pursuant to the Drainage Agreement, which is attached
hereto as Exhibit D, and pursuant to Covenants, Conditions, Easements and Restrictions
(CCERs"), entered into between SELLER and Boeing dated September 18, 2002, which
is attached hereto as Exhibit E, to assist with the maintenance and upkeep of various
drainage easements. No further contributions or obligations for maintenance and upkeep
of the drainage easements shall fall upon the CITY in connection with the obligations of
the Drainage Agreement or CCERs
PURCHASE AND SALE AGREEMENT
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b. In connection herewith, the SELLER agrees to indemnify, defend, and hold
harmless, the CITY, its officers, employees, agents, attorneys, and assigns from and
against any and all obligations to perform, actions, causes of action, liabilities, claims,
suits, penalties, fines, judgments, liens, awards and damages of any kind whatsoever, for
injury to or death of any person (including without limitation claims brought by (a) the
general public, (b) employees, licensees or invitees of the parties, or damage to or loss of
any property or clean up of any discharge or release by anyone, and expenses, costs of
litigation, and reasonable attorneys' fees related thereto, or incident to establishing the
right to indemnification,) arising out of or in any way related to the obligations of the
CCERs and Drainage Agreement, to the full extent permitted by law. SELLER agrees
that the obligations under this Section 4.b shall survive after the closing date.
c. SELLER may reserve an easement for emergency access across the Parcel,
said easement to be in a form acceptable to the City.
5. Earnest Money Deposit. On execution of this Agreement, CITY shall deposit
with Escrow Agent One Thousand Dollars and No/100's Dollars t$1,000.00~) in cash
(the "Deposit"), which shall be held by Escrow Agent as an earnest money deposit
hereunder. The Deposit shall be held in Escrow and applied or disposed of by Escrow
Agent as provided herein. Escrow Agent shall place the Deposit in an interest-bearing
account approved by CITY and SELLER and all interest earned thereon shall be added to
and become a part of the Deposit.
6 Due Diligence.
6.1 Due Diligence Period. CITY shall have the right for a period of sixty (60) days
from the date of this Agreement (the "Due Diligence Period") to conduct CITY's due
diligence review, examination and inspection of all matters pertaining to its acquisition of
the Parcel, including such inspections, tests, and surveys as CITY deems appropriate to
determine the suitability of the Parcel for CITY's intended use. SELLER shall provide
CITY and CITY's agents and consultants with reasonable access to the Parcel and, to the
extent such information is in the possession or control of SELLER, shall provide
reasonable access to appropriate information respecting the Parcel, subject to the terms
and conditions of this Agreement. CITY's obligation to purchase the Parcel shall be
contingent upon its approval of such property after conducting its due diligence review.
If, based upon CITY's review, examination and inspection, CITY shall determine in its
sole discretion that it intends to acquire the Parcel, then CITY shall promptly notify
SELLER of such determination in writing prior to the expiration of the Due Diligence
Period, whereupon CITY's due diligence contingency shall be deemed satisfied and
waived, the Deposit shall become nonrefundable (except as otherwise provided herein),
and CITY shall proceed to Closing. In the event that CITY shall fail to have delivered
such notice to SELLER on or before the expiration of the Due Diligence Period, then this
Agreement shall automatically terminate, the Deposit shall be returned to CITY, and
CITY's rights under this Agreement shall be of no further force or effect.
PURCHASE AND SALE AGREEMENT
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6.2 Delivery of Due Diligence Items. Within five (5) business days after the date of
this Agreement, SELLER shall make available to CITY for 'its review, the following
items:
6.2.1 Tax Statements. Copies of the real estate tax statements for the Parcel for the past
two (2) years;
6.2.2 Other pocuments. All other documents in SELLER's possession or control
relating to the SELLER's ownership of the Parcel and any improvements thereon,
including surveys, planning and zoning documents and approvals, environmental and
water and soils reports and tests and evidence confirming the location and capacity of all
utilities and utility easements.
6.3 Title Commitment. Promptly after mutual execution of this Agreement, CITY
shall obtain an extended preliminary title insurance commitment covering the Parcel
from the Title Company (the "Commitment"), 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 condition
precedent to CITY's obligation to purchase the Parcel. Unless CITY gives written notice
that it disapproves the exceptions to title shown on the Commitment (other than the
exceptions to title approved by CITY and described in Section 5.4 below), stating 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
exceptions, 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 will remove (or cause to be
removed) from title; provided, however, that SELLER shall 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
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 items (the
"Termination Notice"). CITY's failure to deliver the Termination Notice within such ten
(10) day period shall be deemed CITY's approval of any such previously disapproved
title exception. If CITY delivers the Termination Notice within such ten (10) day period,
the obligation of SELLER to sell, and CITY to buy, the Parcel as herein provided shall
terminate and the Deposit shall be returned to CITY. CITY shall have the option to
waive the condition precedent set forth in this Section 5.3 by written notice to SELLER.
In the event of such waiver, such condition precedent shall be deemed satisfied.
PURCHASE AND SALE AGREEMENT
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6.4 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 accept
title to the Parcel subject to the following (collectively, the "Permitted Exceptions"):
6.4.1 The printed exceptions which appear in the ALTA (Form 197013) form extended
coverage owner's policy of title insurance issued by Title Company in the State of
Washington; and
6.4.2 Items created by, or on behalf of, CITY.
6.5 No New Leases or Contracts. Prior to Closing, SELLER shall not enter into any
new leases, contracts or agreements affecting the Parcel without the prior written consent
of CITY, except the SELLER may enter into interim contracts or agreements in
connection with the management, maintenance, repair or preservation of the Parcel in the
normal course of business if each such contract or agreement expires or is terminated at
or prior to Closing.
7. CITY's Right of Entry. CITY, and its agents and consultants, at CITY's sole
expense and risk, may enter the Parcel during the term of this Agreement at reasonable
times scheduled in advance with SELLER for the purpose of CITY's due diligence study
of the Parcel. CITY shall (a) exercise care at all times on or about the Parcel, and (b)
take precautions for the prevention of injury to persons or damage to property on or about
the Parcel. CITY shall keep the Parcel free from all mechanics', materialmen's and other
liens, and all claims thereof, arising from any work or labor done, services performed, or
materials and supplies furnished in connection with CITY's actions in the exercise of its
right of entry on the Parcel, 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 default by SELLER hereunder, CITY shall furnish SELLER
with a copy of all such inspections, studies and surveys and shall assign or quitclaim all
of CITY's right, title and interest in and to any permits, approvals, or permit or approval
applications.
8. Closing.
8.1 Time for Closing. This purchase and sale shall be closed in the office of Escrow
Agent on the Closing Date. CITY and SELLER shall deposit in Escrow with Escrow
Agent 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.
8.2 Closing Costs.
PURCHASE AND SALE AGREEMENT
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8.2.1 SELLER's Costs. SELLER shall pay (a) the premiums for the standard coverage
portion of the Title Policy, including applicable sales tax, (b) one-half (1/2) of all escrow
fees and costs, (c) SELLER's share of prorations, if any, (d) all real estate excise taxes
due as a result of this transaction, and (e) all assessments for local improvement or
special benefit districts. 8.2.2 CITY's Costs. CITY shall pay (a) one-half (1/2) 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 premium charged for extended coverage for the Title Policy and any additional
endorsements or coverage CITY may require, including applicable sales tax.
8.2.3 Other Costs. CITY and SELLER shall each pay its own legal fees and fees of its
own consultants. All other costs and expenses shall be allocated between CITY and
SELLER in accordance with the customary practice of King County, Washington.
8.3 Real Property Taxation. Accordingly, SELLER shall be responsible for all real
property taxes due and owing prior to the Closing.
8.4 Closing Documents.
8.4.1 SELLER's Documents. At Closing, SELLER shall deliver to Escrow Agent the
following instruments and documents:
8.4.1.1 The executed and acknowledged Warranty Deed in a form acceptable to
the City, conveying the Parcel to CITY, which Deed shall include a reservation of an
easement for emergency access in a form acceptable to the City;
8.4.1.2 The executed real estate excise tax affidavit to accompany the Deed; and
8.4.1.3 An executed nonforeign person affidavit in the form required under
Section 1445 of the Internal Revenue Code.
8.4.2 CITY's Documents. At Closing, CITY shall deliver to Escrow Agent the
following funds, instruments and documents:
8.4.2.1 The balance of the Purchase Price in accordance with Section 3;
8.4.2.2 CITY's share of costs and expenses as determined in accordance with
Section 7.3; and
8.4.2.3 The executed real estate excise tax affidavit referenced in Section 7.4.1.2
above.
PURCHASE AND SALE AGREEMENT
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8.5 Possession. CITY shall be entitled to possession of the Parcel upon Closing.
9. 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.
10. Conditions to Closing.
10.1 CITY's Conditions to Closing. Notwithstanding anything to the contrary set forth
herein, CITY's obligation to close hereunder is expressly subject to satisfaction or waiver
by CITY in writing of each of the following conditions:
10.1.1 Written confirmation of the Washington State Department of Ecology's ("DOE")
consent to the sale as provided for in the Restrictive Covenant between Boeing and DOE
dated September 18, 2002, a copy of which is attached hereto as Exhibit F.
10.2. SELLER's Conditions to Closing. Reserved.
11. Representations and Warranties.
11.1 SELLER's Representations and Warranties. In addition to any other
representations or warranties of SELLER elsewhere in this Agreement, SELLER
represents and warrants to CITY now, and as of the Date of Closing, that:
11.1.1 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 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 Parcel is or may be targeted for a
Hazardous Substances cleanup; to the best of SELLER's knowledge the Parcel 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 the best of
SELLER's knowledge the Parcel has not been contaminated with any Hazardous
Substances; and to the best of SELLER's knowledge, there are no underground storage
tanks on the Parcel.
11.1.3 Other Rights. No person or entity has any right to lease or purchase any interest
in the Parcel or any part thereof.
PURCHASE AND SALE AGREEMENT
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11.2 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, delivery 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.
11.3 "AS IS" CONDITION OF PROPERTY. THE PURCHASE PRICE REFLECTS
THAT THE PARCEL IS BEING PURCHASED BY CITY ON AN "AS IS" "WHERE
IS" AND "WITH ALL FAULTS" BASIS, EXCEPT TO THE EXTENT OF
REPRESENTATIONS AND WARRANTIES SPECIFICALLY MADE BY SELLER
HEREIN OR IN THE WARRANTY DEED OR OTHER DOCUMENTS TO BE
DELIVERED TO CITY AT CLOSING. CITY HEREBY WAIVES AND
RELINQUISHES ALL RIGHTS AND PRIVILEGES ARISING OUT OF, OR WITH
RESPECT TO, ANY REPRESENTATIONS, WARRANTIES 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, WARR.ANTIES 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 THIS AGREEMENT OR IN ANY DOCUMENTS TO BE
EXECUTED AND DELNERED BY SELLER AT CLOSING, CITY HAS NOT
RELIED UPON AND WILL NOT RELY UPON, AND SELLER EXPRESSLY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO,
AND SHALL HAVE NO LIABILITY FOR: (I) THE CONDITION OF THE PARCEL
OR ANY BUILDINGS, STRUCTURES OR IMPROVEMENTS LOCATED THEREON
OR THE SUITABILITY THEREOF FOR HABITATION, OCCUPANCY OR FOR
CITY'S INTENDED USE OR FOR ANY USE WHATSOEVER; (II) ANY
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; (IV) ACCESS TO ANY PUBLIC OR
PRNATE SANITARY SEWER SYSTEM; (V) THE FACT THAT ALL OR A
PORTION OF THE PARCEL MAY BE LOCATED ON OR NEAR AN
EARTHQUAKE FAULT L1NE; OR (VI) EXCEPT AS SPECIFICALLY SET FORTH
ABOVE, THE PRESENCE OF ANY HAZARDOUS SUBSTANCES 1N ANY
IMPROVEMENTS ON THE PARCEL, iNCLUDING WITHOUT LIMITATION
PURCHASE AND SALE AGREEMENT
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ASBESTOS OR FORMALDEHYDE, OR THE PRESENCE OF ANY
ENVIRONMENTALLY HAZARDOUS WASTES OR MATERIALS ON OR UNDER
THE PARCEL. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
EXCEPT TO THE EXTENT OF ANY REPRESENTATIONS OR WARRANTIES SET
FORTH ELSEWHERE IN THIS AGREEMENT OR 1N ANY DOCUMENTS TO BE
EXECUTED AND DELIVERED BY SELLER AT CLOSING, SELLER SHALL HAVE
NO LIABILITY TO CITY WITH RESPECT TO THE CONDITION OF THE PARCEL
UNDER COMMON LAW, OR ANY FEDERAL, STATE, OR LOCAL LAW OR
REGULATION, INCLUDING BUT NOT LIMITED TO THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980
AS AMENDED, 42 U.S.C.A. SECTIONS 9601 ET SEQ., AND THE WASHINGTON
MODEL TOXICS CONTROL ACT ("MTCA"), RCW 70.105D. CITY HEREBY
RELEASES AND WAIVES ANY AND ALL CLAIMS WHICH THE CITY HAS OR
MAY HAVE AGAINST SELLER UNDER ANY OF THE FOREGOING LAWS OR
WITH RESPECT TO THE CONDITION OF THE PARCEL, 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 DELIVERED BY
SELLER AT CLOSING. CITY ACKNOWLEDGES TO SELLER THAT CITY IS
GIVEN THE OPPORTUNITY UNDER THIS AGREEMENT TO FULLY INSPECT
THE PARCEL AND CITY ASSUMES THE RESPONSIBILITY AND RISKS OF ALL
DEFECTS AND CONDITIONS, INCLUDING SUCH DEFECTS AND CONDITIONS,
IF ANY, THAT CANNOT BE OBSERVED BY CASUAL INSPECTION, SUBJECT
TO THE EXCEPTION OF RIGHTS EXPRESSLY SET FORTH ABOVE.
SELLER: CITY:
IF A PHASE I ENVIRONMENTAL SITE ASSESSMENT 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 SHALL BE DEEMED TO HAVE ACCEPTED ALL RISK ASSOCIATED
WITH ADVERSE PHYSICAL CHARACTERISTICS AND EXISTING
ENVIRONMENTAL CONDITIONS THAT MAY OR MAY NOT HAVE BEEN
REVEALED BY CITY'S 1NVESTIGATION 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 PARCEL. CITY
ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES REGARDING THE TRUTH, ACCURACY
PURCHASE AND SALE AGREEMENT
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OR THOROUGHNESS OF THE 1NVESTIGATION, PREPARATION OR CONTENT
OF THE PHASE I REPORT, OR THE COMPETENCE OR ABILITY OF THE
PERSONS OR COMPANIES PREPARING SUCH REPORT.- CITY AGREES THAT,
BY CLOSING THE TRANSACTION CONTEMPLATED HEREIN, CITY WILL
HAVE HAD AN OPPORTUNITY 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 CONSULTANTS WILL HAVE HAD AN OPPORTUNITY TO
CONDUCT TESTS ON THE PARCEL.
12. Maintenance of Property; Risk of Loss, Condemnation. •
12.1 Maintenance of Property. From the date of this Agreement until the Closing Date
(or any earlier termination of this Agreement), SELLER agrees to maintain the Parcel in
substantially the same condition existing as of the date hereof, ordinary wear and tear,
damage by casualty excepted.
12.2 Risk of Loss; Condemnation. Risk of loss of or damage to the improvements on
the Parcel shall be borne by CITY at all times and no event of casualty 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 Policy/Court Building at all times prior to Closing.
SELLER shall promptly notify CITY of any condemnation or eminent domain
proceeding which affects the Parcel or the Alley, and SELLER covenants and agrees not
to commence or pursue any such action. In the event of any condemnation or eminent
domain proceeding by any entity other than SELLER, or a deed in lieu or under threat
thereof, which affects a material portion of the Parcel, CITY may elect either to terminate
this Agreement, or to purchase the Parcel in the condition existing on the Closing Date
without adjustment of the Purchase Price. If CITY elects to terminate this Agreement,
the Deposit shall be returned to CITY. If CITY elects to purchase the Parcel, SELLER
shall not be liable to restore same, and CITY shall be entitled to any condemnation award
or payment in lieu thereof payable to SELLER in its capacity as the owner thereof.
13. Default.
13.1 Time of Essence. Time is of the essence of this Agreement.
13.2 SELLER's Remedies for CITY's Default and Failure to Close. If CITY fails,
without legal excuse, to complete the purchase of the Parcel in accordance with this
Agreement, SELLER's sole and exclusive remedy shall be to retain the Deposit as
liquidated damages. CITY expressly agrees that the retention of the Deposit by SELLER
represents a reasonable estimation of the damages in the event of CITY's default and
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failure to close hereunder, that actual damages may be difficult to ascertain and that this
provision does not constitute a penalty. In this respect, CITY and SELLER acknowledge
that these damages have been specifically negotiated between CITY and SELLER and
are, inter alia, to compensate SELLER for delaying the eventual sale of the Parcel and to
compensate SELLER for its costs and expenses associated with this Agreement. CITY
hereby waives the rights and benefits of any law, rule, regulation or order now or
hereafter existing that would allow CITY to claim a refund of the Deposit as unearned
earnest money, a penalty or for any other reason except default by SELLER.
13.3 SELLER's Remedies for CITY's Default Under Section 14. Should CITY breach
any of its obligations under Section 14, and such failure shall not be cured by CITY
within thirty (30) days after CITY's receipt of written notice thereof, SELLER shall have
the right to pursue any remedies available to it at law or equity, including specific
performance or damages but excluding rescission.
13.4 CITY's Remedies for SELLER's Default. If SELLER fails to complete the sale
of the Parcel in accordance with this Agreement, CITY shall have and may enforce the
following exclusive remedies: (a) seek specific performance; (b) terminate this
Agreement, receive a refund of the Deposit and recover from SELLER all of CITY's
actual third-party costs and expenses incurred by it in connection with the transaction and
the Project; or (c) seek rescission of this Agreement and receive a refund of the Deposit.
14. 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 professional messenger or courier service) or registered or certified mail,
postage-prepaid, return-receipt requested. 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: City of Auburn
Human Resources Department
25 West Main Street
Auburn, WA 98001-4998
Attn: Planning Director
With copies to: City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Attn: City Attorney
If to SELLER: Safeway, Inc.
Garv Slabauah
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1121 124th Ave NE
With copies to:
Bellevue, WA 98005
Notice of change of address shall be given by written notice in the manner detailed in this
Section 13.
15. General. This is the entire agreement of CITY and SELLER with respect to the
matters covered hereby and supersedes all prior agreements between them, written or
oral. This Agreement may be modified only in writing, signed by CITY and SELLER.
Any waivers hereunder must be in writing. No waiver of any right or remedy in the event
of default hereunder shall constitute a waiver of such right or remedy in the event of any
subsequent default. This Agreement shall be governed by the laws of the State of
Washington. This Agreement is for the benefit only 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 unenforceability of any provision of this
Agreement shall not affect the validity or enforceability 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 the same instrument.
16. Commissions. SELLER represents to CITY that SELLER has engaged no broker,
agent or finder in connection with the negotiations leading to this Agreement. CITY
represents to SELLER that CITY has not engaged or in any way dealt with any broker,
agent or finder in connection with the negotiations leading to this Agreement. Each party
hereby agrees to indemnify, defend and hold the other party harmless from and against
any claims for broker's, agent's, or finder's fees or commissions arising from or through
the actions of the indemnifying party.
17. Assignment. CITY may, without need of SELLER's consent but after at least
five (5) days prior written notice to SELLER, one time only assign this Agreement and
CITY's rights hereunder prior to Closing to an entity owned or controlled by CITY, but
no such assignment shall release CITY from its obligations under this Agreement.
18. Attorneys' Fees. In the event suit or action is instituted to interpret or enforce the
terms of this Agreement, the prevailing party therein shall be entitled to recover from the
PURCHASE AND SALE AGREEMENT
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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.
19. Exclusivity. During the term of this Agreement SELLER shall not market nor list
the Parcel for sale, nor accept any offers from third parties with respect to sale of the
Parcel.
20. 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 shall not be deemed limited
by the provisions of this Agreement.
21. City Council Approval. The Seller acknowledges that this Agreement does not
bind the City of Auburn until the City Council approves of the purchase Agreement and
the Mayor executes the Agreement.
22. Exhibits. Exhibits A, B, C, D, E and F attached hereto are incorporated herein as
if fully set forth.
23. Recording. This Purchase and Sale Agreement may be recorded.
SIGNED in duplicate original as of the date first above written.
CITY OF AUBURN SAFEWAY,INC.
By
Peter B. Lewis, Mayor
Attest:
Name
Title
Danielle Daskam, City Clerk
Approved as to form:
Daniel B. Heid, Auburn City Attorney
PURCHASE AND SALE AGREEMENT
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EXHIBITS
Exhibit A, Legal Description of Safeway Property
Exhibit B, Legal Description of the Parcel (portion City to purchase)
Exhibit C, Parcel Map
Exhibit D, Drainage Agreement
Exhibit E, Declaration of Covenants, Conditions, Easements and Restrictions
Exhibit F, Restrictive Covenant between Boeing and Safeway
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EXHIBIT A
LEGAL DESCRIPTION OF SAFEWAY PROPERTY
Location: 3520 PACIFIC AVE S AUBURN WA 98001
Assessor's Property Tax Parcel Numbers: 252104-9096
Legal Description:
That portion of the East half of Section 25, Township 21 North,-Range 4 East, Willamette
Meridian, King County, Washington, more particularly described as follows;
Lot 1 of the City Of Auburn Lot Line Adjustment No. LLA02-0015, as recorded under
recording no. 20020725001632, records of said county.
PURCHASE AND SALE AGREEMENT
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EXHIBIT B
LEGAL DESCRIPTION OF PORTION OF PROPERTY TO BE PURCHASED BY
THE CITY OF AUBURN
Location: 3520 PACIFIC AVE S AUBURN WA 98001
Legal Description:
LEGAL DESCRIPTION OF THE 1.2 ACRE SAFEWAY PARCEL
That portion of the Northeast quarter of Section 25, Township 21 North, Range 4
East, Willamette Meridian, King County, Washington, more particularly described
as follows:
The North 430 feet of Lot 1 of the City Of Auburn Lot Line Adjustment No.
LLA02-0015, as recorded under recording no. 20020725001632, records of said
county, as measured perpendicular to the most Northerly line of said Lot 1, said
most Northerly line Bearing South 89° 12' 14" East, a distance of 57.79 feet.
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EXHIBIT C
LOCATION MAP
S 89'12'14" E
57.79'
1.2 Acre Safeway Parcel
0' 200' 400'
N Ol'06-42' W
92.34'
kn
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L=630.88' ~
R=603.11'
p=59'56'03" IZ S 89' 12' 14" E
236.92'
1 "=200'
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1HI5 EXHIBIT MAP IS BASED ON CITY OF AUBURN
LOT LINE ADJUSTMENT LLA02-0015 REDORDED UNDER ExPREs
KING COUNTY RECORDING NUMBER 20020725001632
AND DOES NOT REPRESENT A BOUNDARY SURVEY.
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~R.~ 1-` . Exhibit for 1.2 Acre Safeway Parcel
EXHIBIT MAP TO ACCOMPANY LE(3AL DESCRIPTION
WASHINGTON "
CITY OF AUBURN PUBUC WORKS F9bfU8fy 11, 2008
25 WEST MAIN STREET
AUBURN, WA 98007
PURCHASE AND SALE AGREEMENT
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EXHIBIT D
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
a~
-l'
PURCHASE AND SALE AGREEMENT
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Page 18
PURCHASE AND SALE AGREEMENT
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EXHIBIT E
DRAINAGE EASEMENT
_
. . ,
. Pi~SNbB RBC70RD' AHI) PH~f . - . . BBCORDBD, RSTURt7 TO:
. Gerald 8reeslour
Otiaae of tM OeneralCovasel .
. 'Pbe BoEiag Comgany 10 TiH 3707, 124
96C 13-OB
SeAtt
yas'Hy4s; 9iDOC;FR,1W TTtLSe Drainsge Agrelffm4t
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o GRAWT.OR1B0&aOWER- Ths Boeaa9 CcapenY and SaEevay Iuc. .
tlRANTBB/AS81(iM/882-W fCIARX: .
e~a 139AT. DBSCRIPRIONs Portlone ot S.ectlons 24. awd 25. T2111. &48, ° . , N.N.: in xing Munty. Mas}ungEon, at more .
~fully deaaribad ia Sldssbiia A and H, .
beginaing on paoge Ja_.,
A8SR8@OR'8 PARCffi. 1;0(8) e 242304-90691 ]4]104-9089, 292304-9090; 242104-9091;~242104-9092; 242104-9093i
. ' 242101-90941 242104-9095t 25410479035j 257304-9D78T.
, . 252104-90801252104-9084, 452104-9094;.252104-9096j
. . 2S)104-91041 252104-9105i 357104-91061 252104-4307j
ana sssioa-saoe
RFDPoRR~Ip1fE11~UQ6TOF .
1HAIL4NNION7ITLENUVMMC0. . PURCHASE AND SALE AGREEMENT
172824.doc
Page 19
PURCHASE AND SALE AGREEMENT
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WHEN RECORDED RETURN TO:
City of Auburn
Attn: Facilities Management
25 W. Main Street
Auburn, WA 98001
BARGAIN AND SALE DEED
Grantor: Safeway, Incorporated, a Delaware Corporation
Grantees: City of Auburn, a Washington Municipal
Corporation .
Abbreviated Legal: The North 430 feet of Lot 1 of the City Of Auburn Lot Line
Adjustment No.LLA02-0015, as recorded under recording
No. 20020725001632, records of King County, as
measured perpendicular to the most Northerly line of said
Lot 1, said most Northerly line Bearing South 89° 12' 14"
East, a distance of 57.79 feet.
Tax Parcel Number(s):
GRANTOR, SAFEWAY, INCORPROATED, a Delaware corporation
for and in consideration of TEN DOLLARS ($10.00) and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, bargains, sells and conveys to CITY OF AUBURN, a
Washington municipal corporation and political subdivision of the state of
Washington the real property situated in King County, Washington, legally
described in Exhibit A attached hereto and by this reference incorporated herein.
Subject to those matters set forth in Exhibit B attached hereto and by this
reference incorporated herein.
Dated this day of , 2009.
Grantor:
SAFEWAY, INCORPORATED
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STATE OF WASHiNGTON )
) ss
COUNTY OF PIERCE )
On this day of , 2008, before me personally
appeared , to me known to be the of the municipal
corporation that executed the foregoing instrument, and acknowledged said instrument to
be the free and voluntary act and deed of said corporation, for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said instrument
and that seal affixed is the corporate seal of said corporation.
Notary Public in and for the
State of Washington
My Commission Expires: _
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EXHIBIT A
LEGAL DESCRIPTION OF THE 1.2 ACRE SAFEWAY PARCEL
That portion of the Northeast quarter of Section 25, Township 21 North, Range 4
East, Willamette Meridian, King County, Washington, more particularly described
as follows:
The North 430 feet of Lot 1 of the City Of Auburn Lot Line Adjustment No.
LLA02-0015, as recorded under recording no. 20020725001632, records of said
county, as measured perpendicular to the most Northerly line of said Lot 1, said
most Northerly line Bearing South 89° 12' 14" East, a distance of 57.79 feet.
EXCEPT for an easement for emergency access across said Parcel, which access may only
be used by the Grantor.
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EXHIBIT B
1. Drainage Easement by and between The Boeing Company and Safeway
dated September 18, 2002 and recorded under King County Recording No.
20020920001615. PROVIDED, that Safeway covenants and warrants that it shall remain
fully responsible for all obligation and costs under the Drainage Easement, and shall
defend, indemnify, and hold harmless the City from any obligations thereunder.
2. Declaration of Covenants, Conditions, Easements, and Restrictions by and
between The Boeing Company and Safeway dated September 20, 2002, and recorded
under King County Recording No. 20020920001614. PROVIDED, that Safeway
covenants and warrants that it shall remain fully responsible for all obligation and costs
under the Declaration, and shall defend, indemnify, and hold harmless the City from any
obligations thereunder.
3. Declaration of Restrictive Covenant between the Boeing Company and the
State of Washington Department of Ecology dated September 18, 2002 and recorded
under King County Recording Number 20020920001611. PROVIDED, Safeway
covenants and warrants that it shall remain fully responsible for all obligation and costs
under the Declaration, and shall defend, indemnify, and hold harmless the City from any
obligations thereunder.
4. ADDITIONAL RESTRICTIONS AS SET FORTH IN A TITLE REPORT
MAY NEED TO BE INCLUDED HERE .
[END OF EXHIBIT BJ
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