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RESOLUTION NO. 3821
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE A
CONTRACT WITH NORTHWEST RACING
ASSOCIATES FOR SALE AND PURCHASE OF
REAL ESTATE
WHEREAS, the City of Auburn is engaged in various municipal functions,
including development and planning with regard to the regulation, conveyance,
storage and treatment of stormwater; and
WHEREAS, in order to provide for such services, it is appropriate that the
City purchase the real property described in Exhibit "A" attached hereto; and
WHEREAS, in order to provide for those services and to avoid potential
legal action related to the real property described in Exhibit "A" attached hereto,
the City has negotiated a Real Estate Purchase and Sale Agreement with
Northwest Racing Associates.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the Mayor and the City Clerk are authorized to execute
an agreement in substantial conformity with the Agreement attached hereto,
marked as Exhibit "A" and incorporated herein by this reference and the Mayor
and City Clerk are further authorized to execute any documents necessary to
carry out the purpose of the Agreement, including the execution of all necessary
closing documents.
Resolution 3821
January 31, 2005
Page 1
Section 2. That the Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Section 3. That this Resolution shall take effect and be in full force
upon passage and signatures hereon.
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Dated and Signed this r day of T.*\)lW~, 2005.
CITY OF AUBURN
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ATTEST:
Da . lie E. Daskam,
City Clerk
APPROVED AS TO FORM:
iel B. Heid,
City Attorney
Resolution 3821
January 31, 2005
Page 2
REAL ESTATE PURCHASE AND SALE AGREEMENT
This Agreement is made and entered into by and between the CITY OF AUBURN, (the
"City') and Northwest Racing Associates (the "Seller(s)").
WITNESSETH:
WHEREAS, the CITY and SELLER have previously entered into an agreement whereby
the CITY will purchase property owned by the SELLER; and,
WHEREAS, certain title encumbrances were reported in the original commitment for title
insurance resulting in an inability to obtain clear title and therefore a delay of the closing date past
the closing date stated in the original purchase and sale agreement; and,
WHEREAS, a supplemental commitment has been issued by the title company which has
eliminated the encumbrances which had caused the property title to be clouded; and,
WHEREAS, the CITY and SELLER are both desirous of re-enacting the original purchase
and sale agreement and setting a new closing date
NOW, THEREFORE, in consideration of the following terms, conditions and covenants and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, IT IS AGREED by the City and the Seller as follows:
1. RE-ENACTMENT OF PURCHASE AND SALE AGREEMENT: The agreement
between the parties for purchase and sale of real estate executed on the 11th day of February,
2005 is hereby re-enacted by and according to the terms of this agreement, provided that the
terms of the final transaction shall be approved by the City Council.
2. SALE OF PROPERTY. The Seller shall sell, convey and transfer to the City, and the
City shall purchase, acquire and take from the Seller, the real property generally located at 440
Clay Street in the City of Auburn, King County, Washington, legally described as:
Section 13, Township 21 N, Range 4E, WM, Tax Lot 110 Por of
Lot 2 of Revised Auburn Short Plat #SP 4-79 Rec #
7909250815 (Sd Sp Located in NE '!. of NW '!. of Sec 13-21-4)
Ly Ely of Clay St NW & L Y WL Y of PSE Transmission RIW -
AKA Lot 2 of Revised Auburn LLA # LLA-0026-94 Rec
#9501310691
and all herediments, appurtenances, improvements, and buildings belonging or in any way
appertaining to the "Property".
3. PURCHASE PRICE. The purchase price for the Property is $588,060.00. Said amount
to be paid in the form of a promissory note to be deposited as earnest money and as part payment
on the purchase price. The agreed upon amount is payable by City warrant at closing.
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4. CONDITION OF PROPERTY. Unless otherwise described in this paragraph the City
offers to purchase the Property in an "as is" condition, with all physical defects, except those
identified in paragraph 12, herein, including those that cannot be observed by casual inspection.
Physical defects known to the Seller at the time of closing which are not observable by casual
inspection shall be disclosed to the City.
OTHER CONDITIONS OF PURCHASE:
NONE
5. REPRESENTATIONS OF SELLER. The Seller hereby represents to the City the
following:
(A) To the best of the Seller's knowledge there are no pending special assessments or
condemnation actions with respect to the Property or any part thereof, and the Seller has no
knowledge of any special assessment or condemnation actions being contemplated, and;
(B) There is no pending litigation or suit threatened or asserted which could result in a lis
pendens being lawfully filed against the Property, and;
(C) The Seller will cooperate with the City and execute all documents necessary to remove
or release liens, assessments, encumbrances, mortgages or deeds of trust in order to deliver to
the City marketable title to the Property;
(D) The Seller has good and marketable title and fee simple to the Property, which is not
subject to any liens, encumbrances, restrictions, or easements of any kind except those which
have been disclosed on the Commitment for Title Insurance received by the City; and
(E) Neither the execution of this agreement, nor the performance of any of the terms or
provisions hereof, violates, or shall violate, or conflicts with in any material aspect or constitutes a
default under, any existing contract document understanding, agreement or instrument to which
the Seller is a party, or by which the Seller may be bound.
6. CLOSING. The closing date shall be on or before July 30, 2005, unless the City and the
Seller agree to another time. The place of closing shall be at Chicago Title Ins. Co., 3162023"'
Avenue South, Suite 200, Federal Way, WA 98003. The Seller shall be responsible and entitled to
have all closing documents reviewed by its own counselor agent prior to closing. The risk of loss
to the improvements, if any, on the Property prior to closing shall be Seller's and in the event of
damage or destruction, the City shall be entitled to terminate this agreement. The City may
postpone closing or terminate this agreement if it reasonably appears to the City that the Seller
has misrepresented the condition of title, marketability of the Property or any other matter
contained in Paragraph 4, above.
7. SELLER'S CLOSING DOCUMENTS. At the closing, the Seller shall produce and
execute:
(A) a Warranty Deed (The "Deed"), duly executed and acknowledged in a recordable form,
conveying to the City marketable title to the Property free and clear of all liens, assessments,
deeds of trust, mortgages, or encumbrances except those expressly agreed to by the City;
(B) a detailed statement, prepared by the escrow officer and/or the closing attomey, setting
forth the appropriate adjustments and prorations to be made at the closing;
(C) a completed Seller's Disclosure Statement; and
(D) all other documentation reasonably required by the City.
8. EXPENSES.
A. Expenses of Seller. The Seller shall pay:
(i) real estate taxes prorated to the date of closing;
(ii) all assessments, liens, mortgages, deeds of trust or other
encumbrances (ie. real estate excise tax);
(iii) the Seller's attorney fees; and
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(iv) all other expenses incurred by Seller which relate to the
Property;
(v) title insurance premiums.
B. Expenses of City. The City shall pay:
(i) all recording fees;
(ii) its attorney fees;
(iii) real estate taxes due after the closing date, if any.
9. POSSESSION. The Seller shall deliver possession of the Property to the City on the
date of closing.
10. TIME. Time is of the essence of this Agreement.
11. TITLE EXAMINATION. This Agreement is subject to and conditioned on the Seller
providing to the City clear title to the real property, to the City's satisfaction, as shown on a Policy
of Title Insurance covering the purchase of the Property in the amount of the cash purchase price,
provided and paid for by the Seller. In the event that Seller is unable to cure any title
encumbrances which are unacceptable to the City, the City may at its option: (1) terminate this
agreement by written notice, whereupon no party shall have any further liability under this
agreement; or (2) postpone the date of closing for up to sixty (60) days, during which time Seller
shall use all reasonable efforts and expend reasonable sums as may be necessary to cure the
objections of the City. If the objections to title are not cured on or before the closing date, as
postponed, the City may terminate this agreement or waive the objections to title.
12. COMMISSION. The Seller warrants and represents to the City that if any real estate
brokerage commission or fees are payable, the Seller hereby indemnifies the City from and
against any and all claims for any real estate brokerage commission fees which may arise as a
result of any acts of the Seller. The Seller will pay any real estate fees at closing, unless agreed
otherwise.
13. HAZARDOUS WASTE. To the best of the Seller's knowledge the Property is not in
violation of any federal, state or local law, ordinance, or regulation relating to the environmental
conditions on, under, or about the Property, including but not limited to, soil and ground water
conditions, and that during the time in which the Seller owned the Property, neither the Seller nor,
to the best of the Seller's knowledge, any third party has used, generated, stored, or disposed of,
on, under, or about the Property or transported to or from the Property any hazardous waste, toxic
substances, or related materials (the "Hazardous Materials"). For the purposes of this paragraph,
Hazardous Materials shall include, but is not limited to, substances defined as "Hazardous
Substances," "Hazardous Materials," "Hazardous Waste," "Toxic Substances," in the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended,
and RCW Title 7 and the regulations promulgated pursuant to such laws.
The Seller will indemnify and hold harmless the City from all required remediation,
damage, claim or loss (including attorney fees incurred in defending any claim) arising from the
placement, storage, disposal or release on the Property of any Hazardous Materials during such
time as the Seller was in possession or had any interest in the Property. This indemnification and
hold harmless shall survive and not be merged into the deed delivered by the Seller to the City for
the Property.
If prior to the closing date the City discovers that the Property contains any Hazardous
Waste, of which it has not been previously advised, the City may terminate this Agreement.
14. CONDEMNATION. The City and the Seller acknowledge that the Property is not being
purchased under the threat of condemnation pursuant to RCW Title 8.
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15. NOTICES. Any notices required or permitted to be given shall be in writing and
delivered either in person or by certified mail, return receipt requested, postage pre-paid,
addressed as follows or such other address as may be designated by either party:
City: City of Auburn
Department of Planning
25 W. Main Sl. Auburn WA 98001
Copy to: Office of the City Clerk
25 W. Main St. Auburn WA 98001
Seller: Northwest Racing Associates Limited
Partnership, a Washington Limited Partnership
ATTN: Jack E. Hodge, Jr.
P.O. Box 617
Auburn, Washington
98071-0617
Any notice given pursuant to this Agreement shall be deemed effective the day it is
personally delivered or three (3) business days after the date it is deposited in the United States
mails.
16. ENTIRE AGREEMENT/MODIFICATION. This written Agreement constitutes the entire
and complete Agreement between the City and the Seller hereto and supersedes any prior oral or
written agreements between the City and the Seller with respect to the Property. It is expressly
agreed that there are no verbal understandings or agreements, which in any way change the
terms, covenants, and conditions herein set forth. No modifications of this Agreernent and waiver
of any of its terms and conditions shall be effective unless in writing and duly executed by the City
and the Seller hereto.
17. BINDING EFFECT. All covenants, agreements, warranties and provisions of this
Agreement shall be binding upon and inure to the benefit of the City and the Seller hereto and
their respective heirs, executors, administrators, personal representatives, successors and
assigns.
18. CITY COUNCIL APPROVAL. The Seller acknowledges that this Agreement does not
bind the City of Auburn until the City Council approves the Agreement and the Mayor executes the
Agreement.
19. DEFAULT AND ATTORNEY'S FEES: In the event that either party fails, without legal
excuse, to perform any obligation under this Agreement, then the other party may, at its option,
bring suit against the party failing to perform for the other party's actual damages, or pursue any
other rights or remedies available at law or in equity.
If either party institutes suit concerning this Agreement, the prevailing party is entitled to its
court costs and reasonable attorney's fees. In the event of trial, the court shall fix the amount of
the attorney's fees. Venue of any suit shall be in the county in which the property is located, and
this Agreement is to be governed by the laws of the state where the property is located.
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CITY OF AJ,lBURN_. . . ....
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By: ...... .-:.- ... -
Peter B. Le .
Mayor
DATED
c()
,2005
Attest:
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By:J'd~~C~
DanielleE. Daskam. City Clerk
By:
Ron Crockett
Title:
rJUJ
4/4 {o,'
,2005.
DATED
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