HomeMy WebLinkAboutITEM IX-A
' RESOLUTION NO. 4 6 2 5 ` A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF .
AUBURN, WASHINGTON, APPROVING, AUTHORIZING
AND RATIFYING THE AGREEMENT FOR PURCHASE
AND SALE OF REAL PROPERTY
WHEREAS, in connection with the Auburn Environmentaf Pack, the City
of Aubum has interests in acquiring property as part of the Aubum
Environmental Park and has the opportunity to do so in connection with
transactions that had been pending for some time;
. WHEREAS, through various proposals and through previous
considerations involving the purchase of said property, including considerations
in executive sessions, the City Council has authorized the Mayor to move
forward with the purchase of the property located at 801 15th Street Northwest;
, Auburn, Washington, according to certain terms and conditions, which purchase
has been successfully negotiated and culminated; and
WH;~REAS, the City Council is interested in rafifying and approving the _
purchase and sale of said.properly ih accordance with the directions previously
given.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows:
Section 9. That ttie Agreement for Purchase and Sale of Real '
Property, a copy of which is attached hereto, marked as Exhibit A and
incorporated herein by this reference, be, and the same hereby is, approved
Resolution No. 4625
. July 14, 2010
Page 1 of 2
and the Mayor is authorized to execute the same and action taken by the Mayor
. in furtherance thereof is hereby ratified.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
` this legislation.
_ Section 3. This resolution shall be in.: full force and effect upon
passage and.signatures hereon.
Dated and Signed this day of ; 2010.
CITY OF AUBURN
PETER B. LEVlIIS -
MAYOR ATTEST:
Danielle E. Daskam, City Clerk
. . .
FORM`
7.iel bHeia~,~*Attohe
. . ..3-.__...,. . _ .
Resolution No. 4625
July 14, 2010
Page 2 of 2
EXHIBIT "A"
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY ;
This PURCHASE AND SALE AGREEMENT (this "Agreement'") is enfered: into
as of the day of , 2010, by and befinreen, the CITY OF
AUBURN, a 1Nashington municipal corporation, as Purchaser (hereinafter the "CITY"),
and THE AUBURN LAND CCIMPANY, a Nevada Limited Partnership (hereinafter the
"SELLER").
, RECITALS
A. The SELLER is the: owner of certain real property and all improvements
thereon located in the City of Auburn, County of King, Washington, at the common
address of 801 15th Street Northwest (King County Tax Parcel Na 1221049009) which
is legally descri6ed as follows ("Property"):
The northeast quarter of the southwest quarter of Section 12, Township 21
North, Range 4 East, W.M., in King County, Washington;
EXCEPT that portion condemned for State Highway under King County
Superior Court Cause Number 718093 and conveyed to the City of
Auburn by Governor's Deed recorded under King County Recording
number 7402270280; - -
AND EXCEPT portion for Railroad Right of Way.
B. BARGAIN SALE PURCHASE. The City acknowledges that it is Seller's
intention to effectuate a"bargain sale" of the property, i.e. a sale to a governmental non-
profit organization that qualifies as a charity pursuant to the United States tax laws and
Intemal Revenue Code. The City, acknowledges that, from Seller's perspectiye, the
subject sale is at a price below fair market value (which, though asserted bY"Seller, is
not necessarily agreed to by the City), wherein the difference Seller will consider a
charifable contribution under applicable sections of the Intemal Revenue Code. The
bargain sale price of the Property of $629,800.00 (SIX HUNDRED TINENTY-NINE
THOUSAND EIGHT HUNDRED `DOLLARS) is less than what the Seller contends the
fair marlcet value af the property would be if not damaged as established by the 2010
appraisal ofi Lamb Hanson Lamb Appraisal Associates; Inc: Seller acknowledges that
(a) the substantiation of a charitable confribution deduction rests exclusivety with Seller
for the City's. execution of Intemal Revenue Service Form 8283 that has., been #ully
completed an.d signed by ; Seller and Seller's appraiser; (b) the City . may_ refuse to _
execute Infemal Revenue Service Form 8283 if, in its sole discretion, the valuation of
the Property is not something with which it is not reasonably or suffciently acquainted
as to what the value of the Property could be if the property were fully developable, (c)
at the request of the C6ty, Seller, shall provide a copy of Seller's appraisal for review by
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY .
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the City in conjunction with its review of the Internal Revenue Service Form 8283; and,
(d) the seller' agrees to sign a statement of difference in value acknowledging ttiat
before the sale, fhe owner was aware of the estimated just compensafion amount and
made the choice to sell for less than the estimafed fair compensation voluntarily, as an
act of free wilL
C. And SELLER desires to sell the Property to CITY, on the terms and
conditions set forth herein. ;
D. The Parties acknowledge that the purchase of the property is being .
partially funded by a grant from the Washington Stafe Recreation and Conservation.
` Office. The Parties hereto also recognize that there may, be obligations that are'tied to:
'this grant funtling;`and agree to cooperate with any such requirements or obligations;
provided that no such obligations or requirements unduly increase the obligations or
responsibilities of the SELLER, or decrease the purchase price to be _ paid to the
SELLER.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the. receipt and .
sufficiency of which are hereby mutualty acknowledged, SELLER and CITY hereby_
agree as follows:
1. Certain Defined Terms. For purposes af. 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 60 (sixiy)
calendar days after this Agreement has been signed by all parties hereto.
1.3 ".Escrow" means the escrow opened with Escrow Agent for the consummation of
the transaction described in thisAgreement.
1.4 "Escrow Agent" means Chicago Title Insurance Company.
1,5 "Official Records" means the official real property records of King County,
- Washington.
1.6 "Opening ofi Escrow» means the date a fully execute~ copy of this Agreement is
deposited with Escrow Agent. '
1.7 "Permitted Exceptions" has the meaning as set forth in Section 6.4 below.
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AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY `
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1.8 "Purchase Price" has the meaning as set forth in Section 3.
1.9 "Title Company" means Chicago Title Company.
1.10 "Title Policyn means an ALTA (1970 Form B) extended coverage owner's policy
of title insuranee issued by the Title Company to CITY with coverage in the amount of
purchase price, showing title to the Properfy vested in CITY subject only to the
Permitted Exceptions.
2. Purchase and Sale. The SELLER agrees to sell to CITY, and CITY agrees to
purchase from SELLER, the Property upon the terms and conditions set forth in this
Agreement.
3. Purchase Price; Cash Payment. The total cash purchase price for the Property
(the "Purchase Price") shall be Six Hundred, Twenty-Nine Thousand, Eight Hundred
Dollars and No/100's ($629,800.00). The Purchase Price shall be paid to SELLER in cash at Closing.
4. Earnest Money Deposit. On.execution of this Agreement, CITY shall deposit with
- Escrow Agent Twenty-Five Thousand Dollars and No/100's Dollars ($25,000.00) in cash
(the "Deposit"), which shall be held by Escrow Agent as an earnest money deposit
hereunder. The Deposit shall be held in Escrow arad 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 eamed thereon shall be .added
to and become a part of the Deposit.
5 Due Diligence.
5.1 Due Diligence Contingency Waived. CITY has conducted reviews of the site of
the Property and has independently obtained and reviewed such documents as
SELLER would nocmally provide as part of a due diligence review, and CITY has ;
determirfed irrits sole discretion-thaf it intends to acquire the Property, and Abis Section
5.1 shall senie as notice to SELLER of such determination. CITY's due diligence
contingency is hereby satisfied and waived. The Deposit is nonrefundable (except as
otherwise provided herein), and CITY shall proceed to Closing.
Upon such satisfaction and waiver, the Deposit is nonrefundable (except as otherwise
provided herein),.and CITY shall proceed to Closing.
5.2 Title Commitment. Promptly after mutual execution of this Agreement, CITY
shall obtain;an extended:.preliminary title insurance commitment covering the Pr.operty
from tfie Titie' 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 C(TY's obligation to purchase #he Property. Unless CITYgives written
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AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
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notiee that it disapproves the exceptions to title shown on the Commitment (other than
the exceptions to title approved by CITY and described in Section 6.4 below), sfating
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
ferminate 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 Property as herein provided shall
°terminafe and the Deposit shall be returned to CITY. CITY shall have the option to
waive the condition precedent set forth in this Section 5.2 by written notice to SELLER.
In the event of such waiver, such condition precedent shall be deemed satis,fied.
5.3 Permitted Exceptions. In addition to such other exceptions to title as may be
approved by CITY pursuant to the provisions_.of Section 5.3 above, CITY shall accept
title to the Property subjecf to the following (collectivety, the °Permitted Exceptions"):
5.3.1 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
1Nashington; and
53.2 Items created by, or on behalf of, CITY.
. _ .
5:4 No New Leases or Contracts. Prior to Closing, SELLER shall not enter into any
new. leases, contracts or agreements affecting the Property without the prior written
" consent of CITY, except the SELLER may enter into interim contracts or agreements in -
connection with the management, maintenance, repair or'preservation of the Property in
the normal 'course of business if each such contract or agreement expires or is
terminated at or prior to Closing.
6. CITY's Right of Entry. . CITY, and its agents and consultants, at CITY's sole
expense and risk, may enter the Property during the, _term of this Agreement at
reasonable times scheduled in advance Vftti~ SELLER for the purpose of CIIY's due
diligence study of the Property. CITY shall (a) exercise care at all times on or about the
Property, and (b) take precautions for the prevention of injury to persons or damage to
property on or about the Properiy. CITY shall keep the Property free from all
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mechanics', materialmen's and other liens, and all claims theceof, arising from any work
or labor done, services performed, or materials and supplies fumished in connection
with CITY's actions in the sxercise of its right of entry on the Property, and CITY shall
indemnify and'defend SELLER against and hold SELLER harmless from all such liens
and claims. If thi.s 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.
7: Closing.
7.1 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 foc
' disbursement to SELLER.
7:2 Closing Costs.
. 7.2.1 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 afl escrow
fees and costs, (c) SELLER's share of prorations, if any, and (d) all assessments for
local improvement or special benefit districts.
7.2.2 CITY's Costs. CITY shall pay (a) one-half ('/Z) of all escrow fees and costs, (b)
the recording fees for the Deed, (c) CITY's share of prorations, if any, and (d) any
additional premium charged for extended coverage for the Title Policy and any
additional endorsements or coverage CITY may require, including applicable sales tax. .
7.2.3 Other Costs. CITY and SELLER shall each pay its own legal fees and fees of its
own 'consultants. All other costs and expenses shall be allocated betv+ieen_-CITY and SELLER in accordance with the customary practice of King County, Washington.
. 7.3 Real Property Taxation. SELLER shall be responsible for all real property taxes
due and owing prior to the Closing.
7.4 Closing Documents.
7.4.1 SELLER's Documents. At Closing, SEL.LER shall deliver to Escrow Agent the
following instruments and documents: - `
7.4.1.1 An executed and acknowiedged deed conveying the Property to CITY;
7.4.1.2 An executed real estate excise tax affidavit #o accompany the Deed; and
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AGREEIUIENT FOR PURCHASE AND SALE OF REAL PROPERTY
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,
7.4.1.3, An executed nonforeign person affidavit in the form required under
Section 1445 of the tnfernal Revenue Code.
7.4.2 CITY's Documents. At Closing, CITY shall deliver to Escrow Agent the.
following funds, instruments and documents:
7.4.2.1 The balance of the Purchase Price in accordance with Section 3;
7.4:2.2 CITY's share of costs and expenses as determined in accordance with
Section 7.2; and
7.4:2.3 The executed real estate excise tax affidavit referenced in Section 7:41.2
above.
7.5 Possession: CITY shall be entitled to possession of the Property upon Closing. '
8. Title Insurance. As soon as available after Closing, SELLER shall provide to
CITY the Title Policy, dated as of the Closing Date, subject only to the Permitted
Exceptions.
9. Representations and Warranties.
9.1 SELLER's Representations and .~YVarranties. In addition to any other
representations or warranties of SELLER elsewhere in this Agreement, SELLER
represenfs and warrants to CITY now, and as of the Date of Closing, that:
9.1.1 Authority. SELLER, and the person signing on behalf. of SELLER, has full power
and authority to execute this Agreement and perform SELLER's obligations hereunder, .
and all necessary action to authorize this transaction has been taken, , except as
: specifically provided herein.
9.1.2 Hazardous Substances. SELLER has not received notffication of any kind from
any governmental agency suggesting that the Properfy.is or may be`..targeted for a
Hazardous Substances cleanup; to the best of SELLER's :knowledge the Property has.
not been used (a) for the storage, disposal or discharge of oil, 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 Properly has. not been contaminated with any
Hazardous Substances; and to the best of SELLER's knowledge, there are no
underground storage tanks on the Property.
9.1.3 Other Rights. No person or entity has any right to lease or purchase any interest
in the Properly or any part thereof:
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AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY. .
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9.2 CITY's Representations and Warranties. In addition to any other representations
and warranties of CITY elsewhere in this Agreement, CITY represents and warrants fo
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 perfoRnance 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. 91 "AS IS" CONDITION OF PROPERTY. THE PURCHASE PRICE REFLECTS
THAT THE PROPERTY IS BEING PURCHASED BY CITY ON AN "AS IS" "WHERE IS"
AND "WITH ALL FAULTS" BASIS, EXCEPT TO THE EXTENT OF
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 1NAIVES 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 TQ HAVE BEEN MADE OR GIVEN, BY SELLER OR ITS
REPRESENTATIVES, INCLUDING BUT NOT LIMITED TO ANY BROKER, EXCEPT FOR THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS SET FORTH
IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE EXECUTED AND .
DEUVERED 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 DEL.IVERED BY SELLER AT CLOSING, CITY HAS NOT RELIED
UPON AND WILL NOT RELY UPON, AND SELLER EXPRESSLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES WITH RESPEGT TO, AND SHALL HAVE NO -
' LIABILITY FOR: (I) THE CONDITION OF THE PROPERTY OR ANY BUILDINGS,
STRUCTURES OR IMPROVEMENTS LOCATED THEREON OR THE SUITABILITY
THEREOF FOR HABITATION, OCCUPANCY OR FOR C1TY'S INTENDED USE OR
-F01k ANY -USE V1lHATSOEVER; (II) ANY APPUCABLE BUILDING, ZONING=OR FIRE
LAWS OR REGULATIONS OR 1NITH RESPECT TO COMPLIANCE THEREWITH OR
WITH RESPECT TO THE EXISTENCE OF OR COMPLIANCE WITH ANY REQUIRED
' PERMITS, 1F ANY, OF ANY GOVERNMENTAL AGENCY; (III) THE AVAILABILITY OR
EXISTENCE OF ANY WATER, $EVVER OR UTILITIES,.ANY RIGHTS THERETO, OR
ANY WATER, SEWER OR UTILITY DISTRICTS; (1V) AGCESS TO ANY PUBLIC OR
PRIVATE SANITARY SEWER SYSTEM; M THE FACT THAT ALL OR A PORTION
OF THE PROPERTY MAY BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT
LINE; OR (VI) EXCEPT AS SPECIFICAL.LY SET FORTH ABOVE, THE PRESENCE
OF -ANY HAZARDOUS SUBSTANCES IN ANY IMPROVEMENTS ON THE .
PROpERTY, INCCUDING WITHOUT LIMITATION ASBESTOS OR FORMALDEHYDE,
OR THE PRESENCE OF ANY ENVIRONMENTALLY HAZARDOUS WASTES OR
MATERIALS ON OR UNDE- R THE PROPERTY. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, EXCEPT TO THE EXTENT OF ANY
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REPRESENTATIONS OR WARRANTIES SET FORTH ELSEWHERE IN THIS
AGREEMENT OR IN 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 PROPERTY 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 WHfCH THE CITY HAS OR MAY HAVE AGAINST SELLER UNDER ANY
OF THE FOREGOING LAWS OR WITH RESPECT TO THE CONDITION .OF THE
PROPERTY, EXCEPT TO THE EXTENT OF ANY CLAIMS CITY MAY. HAVE ARISING
FROM ANY EXPRESS REPRESENTATIONS, WARRANTIES OR COVENANTS OF
SELLER UNDER THIS AGREEMENT OR ANY DOCUMENTS TO BE EXECUTED
AND DELIVERED BY SELLER AT CLOSING. CITY ACKNOWLEDGES TO SELLER
THAT CITY IS GIVEN THE OPPORTUNITY UNDER THIS AGREEMENT TO FULLY
INSPECT THE PROPERTY AND CITY ASSUMES THE RESPONSIBIUTY 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 D'ELIVERED 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 4AND- EXISTING ENVIRONMENTAL CONDITIONS
THAT MAY OR MAY NOT HAVE BEEN REVEALED BY CITY'S INVESTIGATION OF
THE PHASE I REPORT, AND (B) AS BETWEEN SELLER AND CITY, CITY SHALL BE
DEEMED TO HAVE ACCEPTED ALL COSTS AND LIABILITIES ASSOCIATED IN ANY
WAY - WITH THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE
PROPERTY. CITY ACKN0INLEDGES AND AGREES THAT SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES REGARDING THE TRUTH, ACCURACY OR
THOROUGHNESS OF THE INVESTIGATIDN, PREPARATION OR CONTENT OF
THE PHASE I REPORT, OR THE COMPETENCE OR ABILITY OF THE PERSONS
OR COMP/1NIES PREPARING SUCH :REPORT. , CITY AGREES THAT, BY CLOSING
THE TRANSACTION CONTEMPL:ATED HEREtN, CIlY WILL HAVE HAD AN
OPPORTUNITY TO REVIEW THE ABOVE REPORT PRIOR TO THE CLOSING DATE
IN ORDER TO MAKE AN INDEPENDENT VERIFICATION OF THE INFORMATION
CONTAINED . THEREIN, AND _ THAT CITY AND ITS ENVIRONMENTAL
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CONSULTANl"S WILL HAVE HAD AN OPPORTUNITY TO CONDUCT TESTS ON
THE PRUPERTY.
10. Maintenance of Property; Risk of Loss, Condemnation.
10:1 Maintenance of Property. From the date of this Agreement until the Closing Date
(or any eaclier termination of this Agreement), SELLER agrees to maintain the Properfy
in substantially the same condition existing as of the date hereof, ordinary wear and
tear, damage"by casualty excepted.
102- Risk of Loss; Condemnation. Risk of loss of oc damage to the improvements on
the Property shall be. borne by CITY at all times and no event of casualty or damage .
shall a.ffect the parties' obligations hereunder or fhe Purchase Price, however, CITY
shall have the right to receive any insurance proceeds due SELLER in connection with
any casualty or damage and SELL.ER hereby covenants to maintain commercially.
reasonable casualty insurance in place with respect to the Property at all times prior to
- Closing. SELLER shall promptly notify CITY of any condemnation or eminent domain
proceeding which affects the Property, 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 Property, CITY may elecf either to
terminate this Agreement, or to purchase the Property 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 retumed to CITY. lf CITY elects to_ purchase the, ~
Property, SELLER shalf 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.
11. Default.
11.1 Time of Essence. Time is of the essence of this Agreement.
11.2 SELLER's Remedies far CJl"Y's Default and Failure to Close. If the CITY fails to
complete the purchase of the Property in accordance with this Agceement, SELLER's
remedies shall include (a) the right #o retain the Deposit as liquidated damages and (b) -
` the right to specific performance, to require the City to complete the purchase of the
Property under the terms hereof:
12.3 CITY's Remedies for SEILER's Default. If SELLER fails to complete the sale of
the, Property in accordance with -this Agreement, CITY shall have and may enforce the
follawing exclusive remedies: (a) seek specific performance; or (b) _ seek rescission of
'-this=Agreement and receive a refund of the Deposit.
12.4 Specific Performance. Notwithsfanding any other options or remedies available
hereunder, it is mutually agreed that in the event that any party fails to comply with the
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terms of this agreement or with any term therein, then any other party hereto may at the
pacty's option take legal action to enforce specific performance of the terms hereof.
13. Notices. All notices, demands and other communications required or permitted
to be given hereunder shall be in writing, and shall be sent by personal delivery
(including by. means of professional messenger or courier service) or registered or. ,
certified mail, postage-prepaid, return-receipt requested. Notice shall be deemed to
have been giv.en if personally delivered, upon receipt, and if sent by mail; two (2) days
after duly deposited in the U.S. Mail. The parties' respective addresses for notices are
as follows:
If to CITY: With copies to:
City of Auburn City Attomey's Office
Human :Resources Department City of Auburn
25 West Main Street 25 West:Main Street
Aubum, V11A 98001-4998 Auburn, WA 98001-4998
Attn: Director of Human Resources Attn: City Attorney ,
-If to SELLER: With copies to:
Auburn Land Company Steven A. Reisler
Attn: Donald Dombrowski, MD Attorney at Law
7545 Spanish Bay Road 4500 Sand Point Way NE Ste 250
Las Vegas, Nevada 89113 Seattle, WA 98105-3941
Notice of change of address shall be given by written notice in the manner detailed in
this Section 13.
14. General. This is the entire agreement of CITY and SELLER with respect to the
matters covered hereby and supersedes all prior agreements befinreen them, written or
oral. This Agreement may be modffied only in writing; signed by CITY, and SELLER.
Any waivers hecewnder must be 010 writing. No waiver of any right or remedy in the event of default hereunder shall constifute a waiver of such right or remedy in the eyent
- of any subsequent.default. This Agreement shall be govemed by the laws of the State
of Washington:- This Agreerrient is for the benefit only of the parties hereto and. shall
inure to the benefit of and bind the heirs, personal cepresentatives, successors and
permifted assigns of the parties fiereto. The invalidity or unenfocceability 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.
15. Commissions. SELLER represents to CIIY 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
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AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY ~
Page 10 of 11
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 brokees, agent's, or finder's fees or commissions arising
from-orthrough the actions of the indemnifying party.
16. Attorneys' Fees, In the event suif or action is instituted to interpret or enforce the
terms of this Agreement, the prevailing party therein shall be 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.
17. Exclusivity. During the term; of this Agreement SELLER shall not market nor list
the Property for sale, nor accept any offers from third' parties with respect to sale of the
Property.
18. Reservation of Police Power. Notwithstanding anything to the contrary set forth
herein, SELLER understands and acknowledges that the CITY's authority to exercise its
police (regulatory) powers in accordance with applicable law shall not be deemed
limited by the provisions of this_Agreement. _
19. City Council ApprovaL The signature of the Mayor of the City of Aubum hereon -
binds the City of Auburn as purchaser herein and acknowledges the approva.l of the City. .
Council of the purchase Agreement.
SIGNED in duplicate original as of the date first above written.
CITY OF AUBURN THE AUBURN LAND COMPANY -
By
Peter B. Lewis, Auburn Mayor Name
Title
ATTEST:
Danielle E. Daskam, Aubum City Clerk
APPROVED AS TO FORM: .
Daniel B. Heid, Aubum 'City Attomey '
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY .
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